Exhibit 10.4
STATE OF GEORGIA
COUNTY OF XXXXXXX
DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT, made and entered into this 17TH day of March, 2004, by and
between ___FRANK X. XXXXXX III__ (hereinafter the "DIRECTOR"), and FARMERS &
MERCHANTS BANK of Statesboro, Georgia (hereinafter the "BANK"), as follows:
W I T N E S S E T H:
WHEREAS, the BANK has had a policy of compensating outside directors by payment
to them of a monthly director's fee of $500.00 per month, subject to increase or
decrease as the BANK'S board of directors may determine from time to time; and
WHEREAS, the BANK has further had a policy of allowing directors to elect to
receive their director fees in monthly checks payable directly to the individual
director or, alternatively, to defer actual receipt of the monthly fee through
deposit by the BANK into a non-qualified deferred compensation program; and
WHEREAS, the BANK has offered to its directors the option of participating in
its non-qualified deferred compensation program since 1992, and desires to
memorialize in writing the terms thereof; and
WHEREAS, the DIRECTOR has elected to participate in the BANK'S non-qualified
deferred compensation program rather than receiving monthly director's fees
directly payable to the DIRECTOR; NOW THEREFORE, in consideration of the
foregoing recitals, the terms and covenants set forth hereinbelow, and the sum
of $10.00 paid by each party to the other the receipt and sufficiency of which
are hereby acknowledged, the parties have agreed as follows:
1. ELECTION TO PARTICIPATE: By execution of this agreement, the DIRECTOR has
affirmatively elected to participate in the BANK'S non-qualified deferred
compensation program for its outside directors. The DIRECTOR acknowledges that
by having made such election, the DIRECTOR shall not be entitled to receive
directly a monthly director's fee for services performed as a director of the
BANK. The DIRECTOR further acknowledges that the amount contributed to the
deferred compensation program on behalf of the DIRECTOR shall be in the amount
of $6,000.00
per year, which the DIRECTOR may elect to increase but which in no event shall
be more than the sum paid directly to members of the BANK'S board of directors
who do not elect to participate in the program.
2. INVESTMENT OF CONTRIBUTIONS: For so long as the DIRECTOR is a participant in
the BANK'S non-qualified deferred compensation program, the BANK shall
periodically contribute to one or more policy or policies of insurance,
annuities, or similar form of investment, the ownership of which shall be in the
name of the BANK and the insured/annuitant shall be the DIRECTOR.
3. TERMINATION OF PARTICIPATION BY DIRECTOR: The DIRECTOR may elect to terminate
his participation in the program at any time upon furnishing the then President
of the BANK of written notice that the DIRECTOR has elected to so terminate the
participation. The notice shall be effective thirty (30) days after receipt by
the then President. In the event of such a termination, the DIRECTOR may elect
to demand immediate transfer of the policy or policies of insurance or annuities
from the BANK to the DIRECTOR, or the DIRECTOR may elect to leave the ownership
unchanged until the occurrence of one of the events classified in Paragraphs 4
and 5 below.
4. DEATH OF DIRECTOR: In the event of the death of the DIRECTOR, the then
accrued benefits in the program shall be payable in accordance with the
designation of beneficiary form(s) executed by the DIRECTOR and the BANK shall
have no further obligation to the DIRECTOR'S estate or beneficiaries in
connection with the program.
5. RETIREMENT, RESIGNATION OR REMOVAL OF DIRECTOR: In the event the DIRECTOR
retires, resigns or is removed as an outside director of the BANK, the ownership
of the policy or policies of insurance or annuities then accrued in the program
on behalf of the DIRECTOR shall be transferred from the BANK to the DIRECTOR and
the BANK shall have no further obligation to the DIRECTOR in connection with the
program.
6. TERMINATION OF PROGRAM BY BANK: The BANK reserves the right to terminate the
non-qualified deferred compensation program at a time upon the appropriate
resolution of the board of directors of the BANK. In the event of such a
termination, the DIRECTOR may elect to demand immediate transfer of the policy
or policies of insurance or annuities from the BANK to the DIRECTOR, or the
DIRECTOR may elect to leave the ownership unchanged until the occurrence of one
of the events classified in Paragraphs 4 and 5 above.
7. TAX AND INVESTMENT RISK ISSUES: The DIRECTOR acknowledges that the BANK has
made no representation to the DIRECTOR that this non-qualified deferred
compensation agreement is:
(a) covered by the provisions of ERISA or that the BANK will make any
effort to obtain qualification of the program under the provisions
of ERISA;
(b) based upon underlying assets that are of any particular risk or
will provide any specific rate of return on contributions, it
being expressly understood that the entity in which the investment
is made could become insolvent or suffer adverse financial
consequences; and/or
(c) tax-free to the DIRECTOR either as contributions are made or upon
ultimate transfer of ownership to the DIRECTOR (or his designated
beneficiaries in the event of death of the DIRECTOR).
8. ENTIRE AGREEMENT: The terms memorialized above constitute the entire
agreement between the BANK and the DIRECTOR and this agreement may only be
amended in writing signed by the BANK and the DIRECTOR.
9. TIME OF ESSENCE: Time shall be deemed to be of the essence of this agreement.
10. GOVERNING LAW: The terms and provisions of this agreement shall be construed
under the laws of the State of Georgia.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed the
day and year first written above.
FARMERS & MERCHANTS BANK
BY: /S/C. XXXXX XXXXXXXX
ATTEST: /S/XXXXXX X. ROCKER
/S/ XXXXXXXX X. XXXXXX
Witness
/S/ XXXXX X. XXXXXX III
Signature of the DIRECTOR
XXXXX X. XXXXXX III
-------------------------
Printed Name of DIRECTOR
/S/XXXXXXXX X. XXXXXX
Witness
