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EXHIBIT 10.2
FIRST BANKING COMPANY OF
SOUTHEAST GEORGIA PROFIT SHARING PLAN
TRUST AGREEMENT
THIS AGREEMENT (hereinafter referred to as the "Trust") made on the
30th day of December, 1988, by and between FIRST BANKING COMPANY OF SOUTHEAST
GEORGIA, a corporation organized and existing under the laws of the State of
Georgia (hereinafter referred to as the "Primary Sponsor"); FIRST XXXXXXX BANK &
TRUST COMPANY ("First Xxxxxxx"), METTER BANKING COMPANY ("Metter") and each
corporation or Affiliate hereafter adopting the First Banking Company of
Southeast Georgia Profit Sharing Plan (the "Plan") as provided therein (First
Bulloch, Metter, and each such corporation or Affiliate being hereinafter
sometimes individually referred to as a "Plan Sponsor"); and FIRST XXXXXXX BANK
& TRUST COMPANY (hereinafter referred to as the "Trustee"):
W I T N E S S E T H:
WHEREAS, the Primary Sponsor established a trust agreement under the
First Banking Company of Southeast Georgia Uniform Profit Sharing Plan under an
indenture dated December 11, 1985 (the "Old Trust" and "Old Plan",
respectively); and
WHEREAS, First Xxxxxxx adopted the Old Plan and Old Trust; and
WHEREAS, Metter maintains the Metter Banking Company Profit Sharing
Plan under an indenture effective January 1, 1984 (the "Metter Plan"); and
WHEREAS, the Primary Sponsor, First Xxxxxxx, and Metter will amend and
restate the Old Plan and the Metter Plan into the Plan effective January 1,
1989; and
WHEREAS, the Primary Sponsor, First Xxxxxxx, and Metter desire to amend
and restate the Old Trust and the trust under the Metter Plan into the Trust;
NOW, THEREFORE, the Primary Sponsor, First Xxxxxxx, and Metter, hereby
amend and restate the Old Trust and the trust under the Metter Plan into the
Trust, effective January 1, 1989, as follows:
SECTION I.
DEFINITIONS
All terms and definitions contained in the Plan are hereby incorporated
in the Trust by reference except to the extent that the terms of the Trust
clearly indicate to the contrary.
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SECTION II.
THE FUND
The Primary Sponsor hereby establishes the Fund with the Trustee. The
Fund shall be held, managed and administered by the Trustee in trust in
accordance with the provisions of the Plan and of the Trust without distinction
between principal and income. At no time shall any part of the Fund be used for
or diverted to purposes other than the exclusive benefit of the Members or their
Beneficiaries, subject, however, to the payment of taxes and administrative
expenses and to the return of contributions to a Plan Sponsor under the specific
conditions set forth in the Plan.
SECTION III.
MAINTENANCE OF AND DISTRIBUTIONS FROM ACCOUNTS
(a) The Plan Administrator shall maintain Accounts in accordance with
the Plan.
(b) A written notice, direction, statement or certificate to the
Trustee, to the extent authorized in and given in accordance with the terms and
conditions of the Plan, is the notice, direction, statement or certificate of
the person so giving it, and the Trustee may rely upon the notice, direction,
statement or certificate, and the authenticity and genuineness thereof and of
the signatures thereon, and the authority of the person or persons executing and
delivering it, without making inquiry in regard thereto. The Trustee is not
charged with any notice of any direction, statement or certificate whatsoever
unless given in accordance with the Plan, including, without limitation,
notification of any changes in the identity or authority of any Fiduciary (other
than the Trustee) or any other person acting in regard to the Plan.
(c) The Trustee shall from time to time, on the written direction of
the Plan Administrator, make payments out of the Fund to the persons, in the
manner and in the amounts, as may be specified in the written directions of the
Plan Administrator, and upon any payments being made, the amount thereof shall
no longer constitute a part of the Fund. The Plan Administrator assumes all
responsibility with respect to the directions and the application of the
payments. The Trustee is under no duty to enforce payments of any contributions
to the Fund and is not responsible for the adequacy of the Fund to meet and
discharge any or all liabilities arising in connection with the Plan or the
Trust.
(d) In the event that any dispute arises as to the persons to whom the
payment of any funds or delivery of any assets shall be made by the Trustee, the
Trustee may withhold such payment or delivery until the dispute has been
determined by a court of competent jurisdiction or has been settled by the
parties concerned and may, in its sole discretion, submit any such dispute to a
court of competent jurisdiction.
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SECTION IV.
INVESTMENTS
(a) Subject to the provisions of Sections IV, V and VI hereof, the
Trustee agrees to invest the assets of the Fund with the care, skill and
diligence under the circumstances then prevailing that a prudent man acting in
like capacity and familiar with such matters pursuant to the Trust would use in
the conduct of an enterprise of a like character and with like aims.
(b) The Trustee shall invest the assets of the Fund held in the
Matching Accounts and ROA Accounts of Members primarily in shares of Company
Stock to the extent such Company Stock is available. The number of shares of
Company Stock purchased by the Trustee using all or any portion of a Member's
Matching Account or ROA Account shall be allocated to the Company Stock
Subaccount of each such Account, as appropriate, as of the Valuation Date
coinciding with or next following the date of acquisition.
(c) Since from time to time shares of Company Stock may not be
available and since all of the assets of the Fund will not be invested in shares
of Company Stock, the Primary Sponsor shall give written notice to the Trustee
of the other investment goals and objectives of the Plan upon which notice the
Trustee shall be entitled to rely in investing and reinvesting the Fund until
the Trustee receives a subsequent notice in regard to such investment goals and
objectives. In order to attain the other investment goals and objectives of the
Plan, or, if the Primary Sponsor has not given the Trustee the notice, to attain
the "Normal Investment Goals and Objectives of the Trustee" as set out in
Paragraph (e) of this Section IV, subject, however, to the terms of the Plan and
the Trust and the provisions of ERISA, the Trustee has the authority to invest
and reinvest the principal and income of the Fund and keep the Fund invested,
without distinction between principal and income, in securities or in property,
real or personal and wherever situated, as the Trustee deems advisable, in its
sole discretion. The Trustee may make investments and reinvestments in, and may
purchase, acquire, obtain, retain, sell, transfer, pledge, hypothecate or
encumber common or preferred stocks, shares of mutual funds, trust and
participation certificates, bonds and mortgages, other evidences of indebtedness
or ownership, certificates of deposit and savings accounts or plans, including,
without limitation, certificates of deposit and savings accounts or plans
established or to be established by the Trustee, and group trusts or collective
investment funds including, without limitation, group trusts or collective
investment funds operated or to be operated by the Trustee, covered call
options, put options, and financial futures contracts, irrespective of whether
such securities or property shall be of a character authorized from time to time
by applicable state law for trust investments.
(d) Notwithstanding any language in the Trust to the contrary, the
Trustee shall not invest in any securities issued by the Primary Sponsor or any
affiliate (as defined in ERISA Section 407(d)(7)) of the Primary Sponsor unless
the securities are "Qualifying Employer Securities" which means, for purposes of
the Plan and the Trust, securities of the Primary Sponsor or any Affiliate which
are stock; provided, however, that, in no event shall the Trustee be required to
invest in Qualifying Employer Securities if the Trustee makes a good faith
determination that the investment would be contrary to ERISA Section 406 or
Section 4975 or
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the Code, taking into consideration, however, only the relative merits of the
Qualifying Employer Securities without considering other investment
alternatives. Notwithstanding anything herein to the contrary, the Trustee may
not be required to invest in any real property leased to or used by a Plan
Sponsor or any Affiliate of a Plan Sponsor.
(e) The Normal Investment Goals and Objectives of the Trustee when the
acquisition of shares of Company Stock is not possible are capital growth,
conservation of principal and production of income through the receipt of
interest or dividends from investments.
(f) In addition to any other investments proper under the Trust, the
Trustee may, after receiving the prior approval of the Primary Sponsor, from
time to time invest all or any part of the Fund in one or more group trusts or
collective investment funds now existing or hereafter established (including,
without limitation, trusts or funds established by the Trustee), which
contemplate the commingling for investment purposes of the funds therein with
trust assets of other pension plans as defined in ERISA which are qualified
under Section 401 of the Code and established by other businesses, institutions
and organizations. The terms and provisions of the declaration of trust creating
any group trust or collective investment fund in which all or any part of the
Fund is invested, as in force and effect at the time of the investment and as
thereafter amended, are hereby adopted and made a part hereof, and any part of
the Fund so invested shall be subject to all of the terms and provisions, as in
force and effect at the time of the investment and as thereafter amended, of any
declaration of trust creating the group trust or collective investment fund. The
Trustee shall, after receiving written approval from the Primary Sponsor, from
time to time withdraw from the group trust or collective investment fund all or
a part of the Fund as the Trustee may deem advisable.
SECTION V.
INVESTMENT MANAGER
(a) In the event an Investment Manager is designated in accordance with
the provisions of the Plan, the Trustee shall either (i) turn over to the
Investment Manager for investment, all or the portion of the Fund as is
specified in a written direction to the Trustee from the Primary Sponsor, in
which case the assets shall continue to be a part of the Fund, even though not
in the possession of the Trustee, or (ii) invest and reinvest all or the portion
of the Fund as shall be specified in a written direction to the Trustee from the
Primary Sponsor in the manner as the Investment Manager directs the Trustee in
writing. In either event, whether the Trustee actually gives the Investment
Manager possession of all or any portion of the Fund or is required to invest
all or any portion of the Fund as directed by the Investment Manager, the
Trustee has no discretion with respect to the investment or reinvestment of such
portion and is not liable for that portion of the Fund invested by or under the
direction of the Investment Manager or for any acts or omissions of the
Investment Manager or for following or for taking or refraining from taking any
action at any direction of the Investment Manager given prior to receipt by the
Trustee of written notice from the Primary Sponsor of revocation of the
designation of the Investment Manager or for the failure of the Investment
Manager to give a
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direction or for any act or omission in connection with such failure. The
Trustee has no responsibility for any assets of the Fund while in the possession
of the Investment Manager or while the assets have not been returned to the
possession of the Trustee, and the Trustee is entitled to rely upon notice of
the designation of an Investment Manager from the Primary Sponsor until notified
in writing by the designating party that the designation is no longer in effect.
(b) During any period of time in which an Investment Manager directs
the investment of a portion of the Fund, the Trustee shall continue to receive
all securities purchased against payment therefor and to deliver all securities
sold against receipt of the proceeds therefrom. Any duly designated Investment
Manager authorized to direct investments may from time to time issue orders on
behalf of the Trustee for the purchase or sale of securities directly to a
broker or dealer and for that purpose the Trustee shall, upon request, execute
and deliver to such Investment Manager one or more trading authorizations.
Written notification of the issuance of each order shall be given promptly to
the Trustee by the Investment Manager and the execution of each order shall be
confirmed by the broker to the Investment Manager and to the Trustee. The
notification is the authority of the Trustee to receive securities purchased
against payment therefor and to deliver securities sold against receipt of the
proceeds therefrom, as the case may be. All directions concerning investments of
the Investment Manager shall be signed by the person acting on behalf of the
Investment Manager, as may be duly authorized in writing; provided, however,
that the transmission by the Investment Manager to the Trustee of directions by
photostatic teletransmission with duplicate or facsimile signature or signatures
is considered a delivery in writing of the directions until the Trustee is
notified in writing by the Primary Sponsor that the use of such devices with
duplicate or facsimile signatures is no longer authorized. The Trustee shall be
entitled to rely upon directions which it receives by such means prior to
receipt of notice from the Primary Sponsor that they are no longer authorized,
and the Trustee shall not be responsible for the consequences of any
unauthorized use of a device which use was not known by the Trustee at the time
to be unauthorized.
(c) Notwithstanding any other provision of the Trust or the Plan, the
Trustee is under no duty to make any review of investments acquired for the Plan
at the direction or order of an Investment Manager or to make any recommendation
with respect to disposing of or continuing to retain any such investment.
(d) Notwithstanding any other provision of the Trust or the Plan, the
Trustee has no obligation to determine the existence of any conversion,
redemption, exchange, subscription or other right relating to any securities
purchased, of which notice was given prior to the purchase of the securities,
and shall have no obligation to exercise the right unless the Trustee is
informed of the existence thereof by the Investment Manager and is requested in
writing by the Investment Manager to exercise the right within a reasonable time
before the time for the exercise thereof expires.
(e) Notwithstanding any other provision of the Trust or the Plan, in
the event that the Trustee is directed to purchase securities issued by any
foreign government or agency thereof, or by any corporation domiciled outside of
the continental limits of the United States or
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its territories, it is the responsibility of the Investment Manager to advise
the Trustee in writing with respect to any laws or regulations of any foreign
countries which applies, in any manner whatsoever, to the securities, including,
but not limited to, receipt of dividends or interest by the Trustee from the
securities.
SECTION VI.
INVESTMENT COMMITTEE
(a) In the event an Investment Committee is designated in accordance
with the Plan, the Trustee shall, unless otherwise directed in writing, invest
and reinvest all of the Fund in the manner directed by the Investment Committee;
provided, however, that the Trustee shall only be subject to proper directions
of the Investment Committee which are made in accordance with the terms of the
Plan and which are not contrary to ERISA and the Code.
(b) The Board of Directors may in writing direct that only a portion of
the Fund shall be invested and reinvested as the Investment Committee designated
by it shall direct, in which case the Trustee shall invest and reinvest the
balance of the Fund pursuant to Section IV hereof, subject to Sections V and VI
hereof.
SECTION VII.
TRUSTEE POWERS
In the administration of the Trust, in addition to, and not in
limitation of, any powers or authority of the Trustee under the Trust or which
the Trustee has under applicable law in addition thereto (all such additional
powers and authority being specifically hereby granted to the Trustee), the
Trustee is authorized and empowered to do the following, without advertisement
and without order of court and without having to post bond or make any returns
or report of its doings to any court:
(a) To purchase or subscribe for any securities or property, including,
without limitation, shares of mutual funds, and to retain the same in trust;
(b) To sell, exchange, convey, transfer, or otherwise dispose of, any
securities or property held by it, by private contract or at public auction,
with or without advertising, and no person dealing with the Trustee shall be
bound to see to the application of the purchase money or to inquire into the
validity, expediency or propriety of any sale or other disposition;
(c) To vote any stocks, bonds or other securities except for these
securities held at the direction of the Investment Manager as described in
Section V hereof; to give general or special proxies or powers of attorney with
or without power of substitution; to exercise any conversion privileges,
subscription rights or other options, and to make any payments incidental
thereto; to oppose or to consent to, or otherwise participate in, corporate
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reorganizations or other changes affecting corporate securities, and to delegate
discretionary powers, and to pay any assessments or charges in connection
therewith; and generally to exercise any of the powers of an owner with respect
to stocks, bonds, securities or other property held as part of the Fund;
(d) To register any investment held as a part of the Fund in its own
name or in the name of a nominee, and to hold any investment in bearer form or
through or by a central clearing corporation maintained by institutions active
in the national securities markets, but the books and records of the Trustee
shall at all times show that all investments are part of the Fund;
(e) To write covered call options and to purchase or sell put options and
financial futures contracts;
(f) To employ and act through suitable agents, accountants, appraisers
and attorneys (who may be counsel for the Trustee) and to pay their reasonable
expenses and compensation, and the Trustee may from time to time consult with
counsel (who, without limitations may be counsel to the Trustee or to a Plan
Sponsor), and shall be protected to the extent the law permits in acting upon
the advice of counsel in regard to legal questions, and may also from time to
time employ agents and expert assistants and delegate to them the ministerial
duties which it sees fit, and in which event the Trustee shall periodically
review the performance of the persons to whom these duties have been delegated;
(g) To borrow or raise moneys for the purposes of the Trust in such
amounts, and upon such terms and conditions, as the Trustee in its absolute
discretion may deem advisable; and for any sums so borrowed to issue its
promissory note as Trustee, and to secure the repayment thereof by pledging all
or any part of the Fund; and no person lending money to the Trustee shall be
bound to see to the application of the money lent or to require into the
validity, expediency or propriety of the borrowing;
(h) To make, execute, acknowledge and deliver any and all documents of
transfer and conveyance and any and all other instruments or agreements that may
be necessary or appropriate to carry out the powers of the Trustee under this
Trust or incidental thereto;
(i) To settle, compromise or submit to arbitration any claims, debts or
damages due or owing to or from the Fund, to commence or defend any suits or
legal or administrative proceedings arising or necessary or appropriate in
connection with the Plan, the Trust, the Fund, the administration and operation
thereof or the powers or authority of the Trustee under the Trust, and to
represent the Plan, the Trust, and the Fund in all suits and legal and
administrative proceedings;
(j) To keep such Portions of the Fund in cash or cash balances as the
Trustee may, from time to time, deem to be in the best interest of the Trust, it
being understood that the Trustee shall not be required to pay any interest on
any cash balances; and
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(k) Generally, to do all such acts and to execute and deliver all such
instruments as in the judgment of the Trustee may be necessary or desirable to
carry out any powers or authority of the Trustee, without advertisement and
without order of court and without having to post bond or make any returns or
report of its doings to any court.
Notwithstanding any other term or condition of the Trust or the Plan,
the Trustee shall neither engage in any transaction with the assets of the Fund
in violation of the provisions of Section 406 of ERISA nor violate the
provisions of Section 406 of ERISA, nor may the Trustee purchase or sell Company
Stock or determine the price at which Company Stock will be purchased or sold,
except at the proper direction of the Investment Committee, or, in the event an
Investment Committee has not been appointed, the Board of Directors or an
appropriate committee thereof, which direction is given in accordance with the
terms of the Plan and is not contrary to ERISA.
SECTION VIII.
TRUSTEE COMPENSATION
(a) The Trustee's compensation shall be such as may be agreed upon from
time to time in a separate written agreement between the Primary Sponsor and the
Trustee and shall be paid by the Primary Sponsor, but until paid shall
constitute a charge on the assets held by the Trustee under the Trust. In the
event the Primary Sponsor shall fail to pay to the Trustee its compensation and
expenses within ninety (90) days of invoicing of the same to the Primary Sponsor
by the Trustee, the Trustee is authorized to use the assets held by the Trustee
under the Trust to pay its unpaid compensation and expenses. Notwithstanding the
foregoing, no person, if any, who serves as the Trustee and who receives
full-time pay from a Plan Sponsor shall be entitled to receive any compensation
from the Fund, except for the reimbursement of expenses properly and actually
incurred by him in his role as Trustee.
(b) All taxes of whatever kind or nature that may be levied or assessed
under existing or future laws upon, or in respect of, the Plan, the Trust, the
Fund or the income or gains thereof or therefrom shall be paid from the Fund.
SECTION IX.
TRUSTEE RESPONSIBILITY
The Trustee is not responsible for the application, investment or other
disposition of any funds or property held or managed by, or otherwise subject to
direction by, any person other than the Trustee. The Trustee is not responsible
for the application of any funds or property held by it under the Trust which
have been paid to the Plan Administrator or which have been paid pursuant to the
Plan and the Trust or as directed by the Plan Administrator. The Trustee has no
responsibility with respect to any administration of the Plan or the payment of
any benefits under the Plan.
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SECTION X.
RECORDKEEPING
The Trustee shall keep accurate and detailed accounts of all
investments, receipts, disbursements and other transactions pursuant to the Plan
and the Trust, and all accounts, books and records relating thereto shall be
open to inspection and audit at all reasonable times by the Plan Administrator.
Within ninety (90) days following the later of the close of each Plan Year or
the receipt of a Plan Sponsor's contribution, and within ninety (90) days after
(a) the removal or resignation of the Trustee, (b) the death, removal or
resignation of an individual trustee, if any, or (c) the termination of the
Trust (hereinafter the date of an event described in Subsection (a), (b) or (c)
of this Section is referred to as a "Report Date"), the Trustee shall file with
the Plan Administrator a written account setting forth (i) all investments,
receipts, disbursements and other transactions effected by it during such Plan
Year or during the period from the last Valuation Date to the Report Date and
(ii) the determination of the Trustee of the net income or net loss of the Fund
pursuant to the Plan for such Plan Year or during the period from the last
Valuation Date to the Report Date and the determination of the Trustee of the
fair market value of the assets of the Fund pursuant to the Plan as at the
Valuation Date or as at the Report Date, as the case may be, except that unless
the Report Date is also a Valuation Date, no allocation of net income, net loss,
earnings, gains or losses shall be made to the Account of a Member.
SECTION XI.
REMOVAL OR RESIGNATION OF TRUSTEE AND
AMENDMENT OR TERMINATION OF TRUST
(a) Any Trustee may be removed by the Primary Sponsor at any time upon
ninety (90) days' notice in writing to such Trustee and to the Plan
Administrator, given by the Primary Sponsor. Any Trustee may resign at any time
upon ninety (90) days' notice in writing to the Primary Sponsor and the Plan
Administrator.
(b) Upon the death, removal or resignation of an individual trustee,
the Primary Sponsor may appoint a successor to the individual trustee who shall
have the same powers and duties under this Trust as the individual trustee;
provided, however, upon the death of the last remaining individual trustee the
Primary Sponsor shall appoint a successor as soon as possible. Until a
successor, if any, is appointed the remaining person or persons constituting the
Trustee may continue to act as Trustee.
(c) Upon the removal or resignation of the Trustee the Primary Sponsor
shall appoint a successor who shall have the same powers and duties as those
conferred upon the Trustee under this Trust, and, upon receipt by the Trustee of
a written acceptance of such appointment by the successor trustee, the Trustee
shall assign, transfer and pay over to the successor trustee the funds and
properties then constituting the Fund; provided, however, the
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Trustee shall not be required to pay over funds and properties to a successor
trustee unless the Trustee shall be discharged from all liability for any taxes
which may be due and owing by the Plan and Trust, or unless either (i) the
successor trustee, who must be acceptable to the Trustee, indemnifies the
Trustee against any liability or (ii) each Plan Sponsor so indemnifies the
Trustee and the Trustee in its sole discretion agrees to accept indemnification.
In the event that by the end of the ninety (90) day notice period, the Primary
Sponsor fails to appoint a successor trustee or the Trustee has not received a
written acceptance from a successor trustee, then at any time after the end of
the ninety (90) day notice period the Trustee may file an appropriate action in
a court of competent jurisdiction and assign, transfer and pay over to the
custody of the court the funds and properties then held by the Trustee
constituting the Fund. Upon assignment, transfer and payment to a successor
trustee or to the court, as the case may be, the Trustee shall be relieved of
all further duties, responsibilities, obligations and liabilities in connection
with the Plan, the Trust or the Fund. The Trustee is authorized, however, to
reserve therefrom such money or property as it may deem advisable for payment of
its fees and expenses in connection with the settlement of its account or
otherwise, and any balance of the reserve remaining after the payment of the
Trustee's fees and expenses shall be paid over to the successor trustee or to
the court.
(d) The Primary Sponsor reserves the right at any time to amend, in
whole or in part, any or all of the provisions of this Trust by notice thereof
delivered in writing to the Trustee, provided that any amendment which affects
the rights, duties or responsibilities of the Trustee may not be made without
the consent of the Trustee.
(e) The Trust shall continue for such time as may be necessary to
accomplish the purposes for which it was created and shall terminate only upon
the complete distribution of the Fund. This Trust may be terminated as of any
date (and shall in fact terminate upon the complete distribution of the Fund on
such date or thereafter) by the Primary Sponsor by notice to the Trustee and the
Plan Administrator, which notice shall specify the date as of which this Trust
shall terminate, must be received by the Trustee prior to such date and must be
given in the manner prescribed for notices in the Plan. Upon termination of the
Trust, provided that the Trustee has not received instructions to the contrary
from the Primary Sponsor, the Trustee shall liquidate the Fund and, after paying
the reasonable expenses of the Trust, including expenses involved in the
termination, distribute the balance thereof according to the written directions
of the Plan Administrator; provided, however, that the Trustee shall not be
required to make any distribution until it receives a copy of an Internal
Revenue Service determination letter to the effect that the termination does not
affect the qualified status of the Plan and the Trust nor the exempt status of
the Plan and the Trust or, in the event that such letter is not issued, until
the Trustee is reasonably satisfied that adequate provision has been made for
the payment of all taxes which may be due and owing by the Plan and the Trust;
and provided, further, that in no event shall any distribution be made by the
Trustee unless and until the Trustee is reasonably satisfied that the
distribution will not be contrary to the applicable provisions of the Plan
dealing with terminations of the Plan and the Trust.
(f) The Trust and the contributions made by a Plan Sponsor to the
Trustee pursuant to the Plan and the Trust are conditioned upon the conditions
set forth in the Plan as to
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qualification and returns of contributions, and the returns of contributions
by the Trustee to a Plan Sponsor in certain events shall be governed by such
provisions of the Plan.
(g) In the event more than one person or entity is serving as the
Trustee, the persons or entities so serving shall act by the action of a
majority, with or without a meeting, and any action may be evidenced by a
writing executed by a majority of the persons or entities constituting the
Trustee.
(h) Any notice, direction, statement or certificate to be given to the
Trustee in connection with the Plan, this Trust or the Fund shall be promptly
given and shall be given in accordance with the Plan.
(i) Each Plan Sponsor agrees at its sole cost and expense to indemnify
and hold harmless the Plan, the Trust, the Fund and the Trustee from and against
any claim, liability, loss, cost, expense, action or cause of action resulting
from or in connection with any claim asserted by any person or persons where the
Trustee has acted in good faith pursuant to this Trust or in reliance on a
written notice, direction or certificate to the extent the notice, direction, or
certificate is authorized in the Plan or the Trust and has been given in
accordance with the terms and conditions of the Plan.
(j) The Trust shall be administered, construed and enforced according
to the laws of the State of Georgia and the laws of the United States to the
extent they preempt state law or are otherwise applicable to this Trust, and the
Trustee shall be liable to account only in the courts of that state and in any
court of appropriate jurisdiction of the United States. All transfers of funds
or other property to or from the Trustee shall be deemed to take place in the
State of Georgia.
IN WITNESS WHEREOF, the parties hereto have caused this Trust to be
duly executed as of the day and year first above written.
PRIMARY SPONSOR: FIRST BANKING COMPANY
OF SOUTHEAST GEORGIA
By: Xxxxx Xxx Xxxxxx
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Title: President
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ATTEST:
Xxxx X. Xxxxxx
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Secretary - Treasurer
[CORPORATE SEAL]
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PLAN SPONSORS: FIRST XXXXXXX BANK
& TRUST COMPANY
By: Xxxxx Xxx Xxxxxx
-------------------------------
Title: President
-------------------------------
ATTEST:
Xxxx X. Xxxxxx
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Secretary
[CORPORATE SEAL]
METTER BANKING COMPANY
By: Xxxxxx X. Xxxx
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Title: President
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ATTEST:
Xxx Xxxxxxx, Xx.
------------------------------------
Secretary
[CORPORATE SEAL]
TRUSTEE: FIRST XXXXXXX BANK
& TRUST COMPANY
By: Xxxx X. Xxxxxx
---------------------------------
Title: Vice President & Trust Officer
--------------------------------
ATTEST:
Xxxxx X. Xxxxxxxxxx
------------------------------------
Title: Trust Administrative Officer
------------------------------
[SEAL]
