EXHIBIT 10.4
DIRECTOR DEFERRED FEE AGREEMENT
THIS AGREEMENT is made this ____ day of _______________, _____, by and
between FIRST GEORGIA COMMUNITY BANK, located in Xxxxxxx, Xxxxxxx (the
"Company"), and [NAME OF DIRECTOR] (the "Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's Board of
Directors, the Company is willing to provide to the Director a deferred fee
opportunity. The Company will pay each Director's benefits from the Company's
general assets.
AGREEMENT
The Director and the Company agree as follows:
Article 1
Definitions
1.1 Definitions. Whenever used in this Agreement, the following words
and phrases shall have the meanings specified:
1.1.1 "Anniversary Date" means December 31st of each year.
1.1.2 "Change of Control" means the transfer of 25% or more of the
Company's voting common stock.
1.1.3 "Code" means the Internal Revenue Code of 1986, as amended.
1.1.4 "Crediting Rate" means the rate established by the Board of
Directors of the Company prior to the beginning of each Plan Year. The
Crediting Rate in the first plan year shall be 10% per year.
1.1.5 "Deferral Account" means the Company's accounting of the
Director's accumulated Deferrals plus accrued interest.
1.1.6 "Deferrals" means the amount of the Director's Fees which the
Director elects to defer according to this Agreement.
1.1.7 "Disability" means the Director's inability to perform
substantially all normal duties of a Director, as determined by the
Company's Board of Directors in its sole discretion. As a condition to
any benefits, the Company may require the Director to submit to such
physical or mental evaluations and tests as the Board of Directors
deems appropriate.
1.1.8 "Effective Date" means January 1, 2001.
1.1.9 "Election Form" means the Form attached as Exhibit 1.
1.1.10 "Fees" means the committee meeting fees payable to the Director
for the Director's attendance at meetings of the committee(s) upon which
the Director serves as a member.
1.1.11 "Final Crediting Rate" means the Crediting Rate in effect for
the Plan Year in which Termination of Service occurs.
1.1.12 "Normal Retirement Age" means the age at the later of the
Director's 65th birthday or the end of the fifth Plan Year from the
Effective Date.
1.1.13 "Normal Retirement Date" means the later of the Normal
Retirement Age or the Director's Termination of Service.
1.1.14 "Plan Year" means the twelve-month period beginning on the
Effective Date and on each anniversary of the Effective Date thereafter.
1.1.15 "Termination of Service" means the Director ceasing to be a
member of the Company's Board of Directors for any reason whatsoever.
Article 2
Deferral Election
2.1 Initial Election. The Director shall make an initial deferral election
under this Agreement by filing with the Company a signed Election Form within
thirty (30) days after the Effective Date of this Agreement. The Election Form
shall set forth the amount of Fees to be deferred. The Election Form shall be
effective to defer only Fees earned after the date the Election Form is received
by the Company.
2.2 Election Changes
2.2.1 Generally. The Director may modify the amount of Fees to be
deferred annually by filing a new Election Form with the Company prior to
the beginning of the Plan Year in which the Fees are to be deferred. The
modified deferral election shall not be effective until the calendar year
following the year in which the subsequent Election Form is received and
approved by the Company.
2.2.2 Hardship. If an unforeseeable financial emergency arising from
the death of a family member, divorce, sickness, injury, catastrophe or
similar event outside the control of the Director occurs, the Director, by
written instructions to the Company, may reduce future deferrals under this
Agreement.
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Article 3
Deferral Account
3.1 Establishing and Crediting. The Company shall establish a Deferral
Account on its books for the Director and shall credit to the Deferral Account
the following amounts:
3.1.1 Deferrals. The Fees deferred by the Director as of the time the
Fees would have otherwise been paid to the Director.
3.1.2 Interest. On each Anniversary Date and immediately prior to the
payment of any benefits, but only until commencement of the benefit
payments under this Agreement, interest is to be accrued on the account
balance and compounded at an annual rate on each anniversary of the date of
this Agreement and immediately prior to the payment of any benefits at an
annual rate equal to the Crediting Rate.
3.2 Statement of Accounts. The Company shall provide to the Director,
within one hundred twenty (120) days after each Anniversary Date, a statement
setting forth the Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a device for
measuring amounts to be paid under this Agreement. The Deferral Account is not a
trust fund of any kind. The Director is a general unsecured creditor of the
Company for the payment of benefits. The benefits represent the mere Company
promise to pay such benefits. The Director's rights are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by the Director's creditors.
Article 4
Lifetime Benefits
4.1 Normal Retirement Benefit. Upon the Normal Retirement Date, the
Company shall pay to the Director the benefit described in this Section 4.1 in
lieu of any other benefit under this Agreement.
4.1.1 Amount of Benefit. The benefit under this Section 4.1 is the
Deferral Account balance at the Director's Normal Retirement Date.
4.1.2 Payment of Benefit. The Company shall pay the benefit to the
Director in 120 equal monthly installments, including interest at the Final
Crediting Rate, compounded monthly, commencing on the first day of the
month following the Director's Normal Retirement Date.
4.2 Early Retirement Benefit. Upon Termination of Service prior to the
Normal Retirement Age for reasons other than death, Change of Control or
Disability, the Company shall pay to the Director the benefit described in this
Section 4.2 in lieu of any other benefit under this Agreement.
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4.2.1 Amount of Benefit. The benefit under this Section 4.2 is the
Deferral Account balance at the Director's Termination of Service.
4.2.2 Payment of Benefit. The Company shall pay the benefit to the
Director in 120 equal monthly installments, including interest at the Final
Crediting Rate, compounded monthly, commencing on the first day of the
month following the Director's Termination of Service.
4.3 Disability Benefit. If the Director terminates service as a Director
for Disability prior to Normal Retirement Age, the Company shall pay to the
Director the benefit described in this Section 4.3 in lieu of any other benefit
under this Agreement.
4.3.1 Amount of Benefit. The benefit under this Section 4.3 is the
Deferral Account balance at the Director's Termination of Service.
4.3.2 Payment of Benefit. The Company shall pay the benefit to the
Director in 120 equal monthly installments, including interest at the Final
Crediting Rate, compounded monthly, commencing on the first day of the
month following the Director's Termination of Service.
4.4 Change of Control Benefit. Upon termination following a Change of
Control, the Company shall pay to the Director the benefit described in this
Section 4.4 in lieu of any other benefit under this Agreement.
4.4.1 Amount of Benefit. The benefit under this Section 4.4 shall be
the Deferral Account balance on Termination of Service.
4.4.2 Payment of Benefit. The Company shall pay the benefit to the
Director in 120 equal monthly installments, including interest at the Final
Crediting Rate, compounded monthly, commencing on the first day of the
month following the Director's Termination of Service. Upon petition by the
Director, the Company may, at its sole discretion, pay the unpaid balance
in the Deferral Account to the Director in a lump sum in lieu of any
remaining installments otherwise due under this Section 4.4.
4.5 Hardship Distribution. Upon the Board of Director's determination
(following petition by the Director) that the Director has suffered an
unforeseeable financial emergency as described in Section 2.2.2, the Company
shall distribute to the Director all or a portion of the Deferral Account
balance as determined by the Company, but in no event shall the distribution be
greater than is necessary to relieve the financial hardship.
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Article 5
Death Benefits
Upon the Director's death prior to the termination of this Agreement,
the Company shall pay to the Director's beneficiary a benefit equal to the
Deferral Account balance as of the date of the Director's death. The Company
shall pay the benefit to the Director's beneficiary in a lump sum within 30 days
following the Director's death.
Article 6
Beneficiaries
6.1 Beneficiary Designations. The Director shall designate a
beneficiary by filing a written designation with the Company. The Director may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Director and
accepted by the Company during the Director's lifetime. The Director's
beneficiary designation shall be deemed automatically revoked if the beneficiary
predeceases the Director, or if the Director names a spouse as beneficiary and
the marriage is subsequently dissolved. If the Director dies without a valid
beneficiary designation, all payments shall be made to the Director's estate.
6.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incompetent person or incapable person. The Company may require proof of
incompetence, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
Article 7
General Limitations
7.1 Notwithstanding any provision of this Agreement to the contrary,
the Company shall not pay any benefit under this Agreement that is in excess of
the Director Deferrals if any of the following events occur:
7.1.1 Termination for Cause. If the Company terminates the
Director's service for:
7.1.1.1 Gross negligence or gross neglect of duties to the
Company;
7.1.1.2 Commission of a felony or of a gross misdemeanor
involving moral turpitude involving the Director's services to the
Company; or
7.1.1.3 Fraud, disloyalty, dishonesty or willful violation of
any law or significant Company policy committed in connection with
the Director's Service and resulting in an adverse effect on the
Company.
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7.2 Regardless of Section 7.1 and any other provision to the contrary, no
benefit will be paid to the extent the benefit would be creating an excess
parachute payment under Section 280G of the Code.
Article 8
Claims and Review Procedures
8.1 Claims Procedure. The Company shall notify any person or entity that
makes a claim against the Agreement (the "Claimant") in writing, within ninety
(90) days of his or her written application for benefits, of his or her
eligibility or non-eligibility for benefits under the Agreement. If the Company
determines that the Claimant is not eligible for benefits or full benefits, the
notice shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of the Agreement on which the denial is based, (3) a
description of any additional information or material necessary for the Claimant
to perfect his or her claim, and a description of why it is needed, and (4) an
explanation of the Agreement's claims review procedure and other appropriate
information as to the steps to be taken if the Claimant wishes to have the claim
reviewed. If the Company determines that there are special circumstances
requiring additional time to make a decision, the Company shall notify the
Claimant of the special circumstances and the date by which a decision is
expected to be made, and may extend the time for up to an additional ninety-day
period.
8.2 Review Procedure. If the Claimant is determined by the Company not to
be eligible for benefits, or if the Claimant believes that he or she is entitled
to greater or different benefits, the Claimant shall have the opportunity to
have such claim reviewed by the Company by filing a petition for review with the
Company within sixty (60) days after receipt of the notice issued by the
Company. Said petition shall state the specific reasons which the Claimant
believes entitle him or her to benefits or to greater or different benefits.
Within sixty (60) days after receipt by the Company of the petition, the Company
shall afford the Claimant (and counsel, if any) an opportunity to present his or
her position to the Company orally or in writing, and the Claimant (or counsel)
shall have the right to review the pertinent documents. The Company shall notify
the Claimant of its decision in writing within the sixty-day period, stating
specifically the basis of its decision, written in a manner calculated to be
understood by the Claimant and the specific provisions of the Agreement on which
the decision is based. If, because of the need for a hearing, the sixty-day
period is not sufficient, the decision may be deferred for up to another
sixty-day period at the election of the Company, but notice of this deferral
shall be given to the Claimant.
Article 9
Amendments and Termination
9.1 This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Director.
9.2 Notwithstanding Section 9.1, the Company may amend or terminate this
Agreement at any time if, pursuant to legislative, judicial or regulatory
action, continuation of
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the Agreement would (i) cause benefits to be taxable to the Director prior to
actual receipt, or (ii) result in significant financial penalties or other
significantly detrimental ramifications to the Company (other than the financial
impact of paying the benefits). In no event shall this Agreement be terminated
under this Section 9.2 without payment to the Director of the Deferral Account
balance attributable to the Director's Deferrals and interest credited on such
amounts.
Article 10
Miscellaneous
10.1 Binding Effect. This Agreement shall bind the Director and the
Company, and their beneficiaries, survivors, executors, administrators and
transferees.
10.2 No Guarantee of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain a Director of the
Company, nor does it interfere with the shareholders' rights to replace the
Director. It also does not require the Director to remain a Director nor
interfere with the Director's right to terminate services at any time.
10.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
10.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of Georgia, except to the extent preempted by
the laws of the United States of America.
10.6 Unfunded Arrangement. The Director and the Director's beneficiary are
general unsecured creditors of the Company for the payment of benefits under
this Agreement. The benefits represent the mere promise by the Company to pay
such benefits. The rights to benefits are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors. Any insurance on the Director's life is
a general asset of the Company to which the Director and the Director's
beneficiary have no preferred or secured claim.
10.7 Reorganization. The Company shall not merge or consolidate into or
with another company, or reorganize, or sell substantially all of its assets to
another company, firm, or person unless such succeeding or continuing company,
firm, or person agrees to assume and discharge the obligations of the Company
under this Agreement.
10.8 Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Director as to the subject matter hereof. No rights
are granted to the Director by virtue of this Agreement other than those
specifically set forth herein.
10.9 Administration. The Company shall have powers which are necessary to
administer this Agreement, including but not limited to:
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10.9.1 Interpreting the provisions of the Agreement;
10.9.2 Establishing and revising the method of accounting for the
Agreement;
10.9.3 Maintaining a record of benefit payments; and
10.9.4 Establishing rules and prescribing any forms necessary or
desirable to administer the agreement.
10.10 Designated Fiduciary. The Company shall be the named fiduciary and
plan administrator under the Agreement. The named fiduciary may delegate to
others certain aspects of the management and operation responsibilities of the
plan including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer have
signed this Agreement.
COMPANY: DIRECTOR:
FIRST GEORGIA COMMUNITY
BANK
By_____________________________ ___________________________
Title__________________________ [Name of Director]
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EXHIBIT 1
TO
DIRECTOR DEFERRED FEE AGREEMENT
Deferral Election
I elect to defer my committee meeting Fees under the Director Deferred Fee
Agreement with the Company, as follows:
----------------------------------------------------------------------
Amount of Deferral Duration
----------------------------------------------------------------------
[Initial and Complete one] [Initial One]
_____ I elect to defer ______% of the _____ One Year only
Fees earned by me.
_____ For ____ [Insert
_____ I elect to defer $_______ of Number] Years
all Fees earned by me.
_____ Until Termination of
Service
_____ I elect not to defer any of my
Fees ______ Until _________,
______ (date)
----------------------------------------------------------------------
I understand that I may change the amount and duration of my deferrals by filing
a new election form with the Company; provided, however, that any subsequent
election will not be effective until the calendar year following the date in
which the new election is received by the Company.
Signature
-----------------------------------------------------
[Name of Director]
Date ___________________________________
Accepted by the Company this _____ day of ____________, _____.
By ____________________________________________
Title ___________________________________
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Beneficiary Designation
I designate the following as beneficiary of benefits under the Director Deferred
Fee Agreement payable following my death:
Primary: _______________________________________________________________________
________________________________________________________________________________
Contingent: ____________________________________________________________________
________________________________________________________________________________
Note: To name a trust as beneficiary, please provide the name of the trustee(s)
and the exact name and date of the trust agreement.
-----
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary, in the event of the dissolution of our marriage.
Signature ___________________________________________________
[Name of Director]
Date _____________________________
Accepted by the Company this _____ day of ______________, ________.
By __________________________________________________________
Title ____________________________
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FIRST AMENDMENT TO
FIRST GEORGIA COMMUNITY BANK
DIRECTOR DEFERRED FEE AGREEMENT
THIS AMENDMENT is made this _____ day of _______________, 2002, by and
between the FIRST GEORGIA COMMUNITY BANK, a state bank located in Xxxxxxx,
Xxxxxxx (the "Company"), and ________________ (the "Director").
W I T N E S S E T H:
WHEREAS, the Director and the Company entered into a Director Deferred
Fee Agreement (the "Agreement") dated _________________, _____; and
WHEREAS, the Director and the Company are desirous of amending the
language to the Agreement.
NOW, THEREFORE, in consideration of the premises, the Director and the
Company agree to amend the "Agreement" as follows:
Paragraph 1.1.10 is amended to read as follows:
1.1.10 "Fees" means the board meeting fees and the committee meeting
fees payable to the Director for the Director's attendance at board of
director meetings and meetings of the committee(s) upon which the
Director serves as a member.
Except as amended herein, the Agreement remains in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have entered into this Amendment
on the date and year first above written.
DIRECTOR: COMPANY:
FIRST GEORGIA COMMUNITY BANK
______________________________ By _________________________________
Title ______________________________
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