EXHIBIT 10.17
DIRECTORS DELAYED COMPENSATION PLAN AGREEMENT
THIS AGREEMENT, made and entered into this 26/th/ day of October, 1999 by
and between Community Trust Bank, a Bank organized and existing under the laws
of the State of Georgia, (hereinafter referred to as the, "Bank"), and J. Xxxxxx
Xxxxxxx, a member of the Board of Directors of the Bank (hereinafter referred to
as the, "Director").
WITNESSETH:
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WHEREAS, it is the consensus of the Board of Directors (hereinafter
referred to as the, "Board") that the Director's services to the Bank in the
past have been of exceptional merit and have constituted an invaluable
contribution to the general welfare of the Bank and in bringing it to its
present status of operating efficiency, and its present position in its field of
activity;
WHEREAS, the Director's experience, knowledge of the affairs of the Bank,
reputation, and contacts in the industry are so valuable that assurance of the
Director's continued services is essential for the future growth and profits of
the Bank and it is in the best interests of the Bank to arrange terms of
continued employment for the Director so as to reasonably assure the Director's
remaining in the Bank's employment or in the employment of the Bank's parent
company, Community Trust Financial Services Corporation (hereinafter referred
to as "CTFSC") during the Director's lifetime or until the age of retirement;
WHEREAS, it is the desire of the Bank that the Director's services be
retained as herein provided;
WHEREAS, the Director is willing to continue in the employ of the Bank or
CTFSC provided the Bank agrees to pay the Director's or the Director's
beneficiary(ies) certain benefits in accordance with the terms and conditions
hereinafter set forth;
ACCORDINGLY, it is the desire of the Bank and the Director to enter into
this agreement under which the Bank will agree to make certain payments to the
Director at retirement or the Director's beneficiary(ies) in the event of the
Director's death pursuant to this Agreement;
FURTHERMORE, it is the intent of the parties hereto that this Directors
Delayed Compensation Plan Agreement be considered an unfunded arrangement
maintained primarily to provide supplemental retirement benefits for the
Director, and to be considered a non-qualified benefit plan for purposes of the
Employee Retirement Security Act of 1974, as amended ("ERISA"). The Director is
fully advised of the Bank's financial status and has had substantial input in
the design and operation of this benefit plan; and
NOW, THEREFORE, in consideration of services performed in the past and to
be performed in the future as well as of the mutual promises and covenants
herein contained it is agreed as follows:
I. SERVICE
The Director will continue to serve the Bank in such capacity and with such
duties and responsibilities as may be assigned, and with such compensation
as may be determined from time to time by the Board of Directors of the
Bank.
II. FRINGE BENEFITS
The fee continuation benefits provided by this agreement are granted by the
Bank as a fringe benefit to the Director and are not part of any fee
reduction plan or an arrangement deferring a bonus or a fee increase. The
Director has no option to take any current payment or bonus in lieu of
these fee continuation benefits except as set forth hereinafter.
III. RETIREMENT DATE
If the Director continuously serves the Bank or CTFSC, the Director shall
begin receiving the benefits set forth herein thirty (30) days following
the Director's sixty-fifth (65th) birthday, or thirty (30) days following
the Director's actual retirement date, whichever event shall last occur.
Notwithstanding the foregoing, the Director shall retire on or before
attaining age seventy (70).
IV. RETIREMENT BENEFIT AND POST-RETIREMENT DEATH BENEFIT
Upon said retirement and commencing thirty (30) days following the
Director's sixty-fifth (65th) birthday or commencing thirty (30) days
following the Director's actual retirement date, whichever event shall last
occur, the Bank shall pay the Director an annual benefit equal to eleven
thousand eight hundred forty-three dollars and No/00ths ($ 11,843.00) for a
period of five (5) years, provided that if less than five (5) such annual
payments have been made prior to the death of the Director, the Bank shall
either, at the discretion of the Bank, continue such annual payments to the
individual or individuals the Director may have designated in writing and
filed with the Bank until the full number of five (5) annual payments have
been made, or make the total amount of said payment due in a lump sum
discounted to present value as set forth in Subparagraph XI (K) to said
beneficiary(ies). In the absence of any effective designation of
beneficiary, any such amounts becoming due and payable upon the death of
the Director shall be payable to the duly qualified executor or
administrator of the Director's estate. Said payments due hereunder shall
begin the first day of the second month following the decease of the
Director. Provided, however, that anything hereinabove to the contrary
notwithstanding, no death benefit shall be payable
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hereunder if the Director commits suicide on or before the 26/th/ day of
October, 2001.
V. DEATH BENEFIT PRIOR TO RETIREMENT
In the event the Director should die while actively serving the Bank or
CTFSC at any time after the date of this Agreement but prior to the
Director attaining the age of sixty-five (65) years, the Bank will pay an
annual benefit as set forth in Paragraph IV herein in either, at the
discretion of the Bank, a lump sum discounted to present value as set
forth in Subparagraph XI (K) or annual payments for a period of five (5)
years to such individual or individuals as the Director may have
designated in writing and filed with the Bank. In the absence of any
effective designation of beneficiary, any such amounts becoming due and
payable upon the death of the Director shall be payable to the duly
qualified executor or administrator of the Director's estate. Said
payments due hereunder shall begin the first day of the second month
following the decease of the Director. Provided, however, that anything
hereinabove to the contrary notwithstanding, no death benefit shall be
payable hereunder if the Director commits suicide on or before the 26/th/
day of October, 2001.
VI. BENEFIT ACCOUNTING
The Bank shall account for this benefit using the regulatory accounting
principles of the Bank's primary federal regulator. The Bank shall
establish an accrued liability retirement account for the Director into
which appropriate reserves shall be accrued.
VII. VESTING
The Director shall be one hundred percent vested in the benefits that are
the subject of this Agreement.
VIII. OTHER TERMINATION OF SERVICE
Subject to Subparagraph VIII (i) hereinbelow, in the event that the
service of the Director shall terminate prior to retirement from active
service, as provided in Paragraph III, by the Director's voluntary action,
or by the Director's discharge by the Bank or CTFSC without cause, then
the Bank shall pay to the Director an annual benefit as set forth in
Paragraph IV. This annual benefit shall commence the first day of the
month following the month in which the Director attains age sixty-five
(65).
In the event the Director's death should occur prior to the Director
receiving the full benefit as set forth in this Paragraph VIII, any
benefit due, or a lump sum discounted to present value as set forth in
Subparagraph XI (K), at the discretion of the Bank, shall be paid to such
individual or individuals as the Director may have designated in writing
and filed with the Bank. In the absence of any
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effective designation of beneficiary, any such amounts shall be payable to
the duly qualified executor or administrator of the Director's estate. Said
payments due hereunder shall begin the first day of the second month
following the decease of the Director. Provided, however, that anything
hereinabove to the contrary notwithstanding, no death benefit shall be
payable hereunder if the Director commits suicide on or before the 26/th/
day of October, 2001.
(i) Discharge for Cause: In the event the Director shall be
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discharged from service with the Bank or CTFSC for cause at any time,
all benefits provided herein shall be forfeited. The term for "cause"
shall mean any of the following that result in an adverse effect on
the Bank or CTFSC: (i) gross negligence or gross neglect; (ii) the
commission of a felony or gross misdemeanor involving moral turpitude,
fraud, or dishonesty; (iii) the willful violation of any law, rule, or
regulation (other than a traffic violation or similar offense); (iv)
an intentional failure to perform stated duties; or (v) a breach of
fiduciary duty involving personal profit. If a dispute arises as to
discharge for "cause", such dispute shall be resolved by arbitration
as set forth in this Directors Delayed Compensation Plan Agreement.
IX. CHANGE OF CONTROL
Change of Control shall be deemed to be the cumulative transfer of more
than fifty percent (50%) of the voting stock of the Bank or CTFSC from the
date of this Agreement. For the purposes of this Agreement, transfers on
account of deaths or gifts, transfers between family members or transfers
to a qualified retirement plan maintained by the Bank or CTFSC shall not be
considered in determining whether there has been a change in control. Upon
a Change of Control, if the Director subsequently suffers a Termination of
Service (voluntary or involuntary), except for cause, then the Director
shall receive the benefits as set forth in Paragraph IV herein.
X. RESTRICTIONS ON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any fund
or money with which to pay its obligations under this Directors Delayed
Compensation Plan Agreement. The Directors, their beneficiary(ies), or any
successor in interest shall be and remain simply a general creditor of the
Bank in the same manner as any other creditor having a general claim for
matured and unpaid compensation.
The Bank reserves the absolute right, at its sole discretion, to either
fund the obligations undertaken by this Directors Delayed Compensation Plan
Agreement or to refrain from funding the same and to determine the extent,
nature and method of such funding. Should the Bank elect to fund this
Directors Delayed Compensation Plan Agreement, in whole or in part, through
the purchase of life insurance, mutual funds, disability policies or
annuities, the Bank reserves the
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absolute right, in its sole discretion, to terminate such funding at any
time, in whole or in part. At no time shall any Director be deemed to have
any lien nor right, title or interest in or to any specific funding
investment or to any assets of the Bank.
If the Bank elects to invest in a life insurance, disability or annuity
policy upon the life of the Director, then the Director shall assist the
Bank by freely submitting to a physical exam and supplying such additional
information necessary to obtain such insurance or annuities.
XI. MISCELLANEOUS
A. Alienability and Assignment Prohibition:
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Neither the Director, nor the Director's surviving spouse, nor any
other beneficiary(ies) under this Directors Delayed Compensation Plan
Agreement shall have any power or right to transfer, assign,
anticipate, hypothecate, mortgage, commute, modify or otherwise
encumber in advance any of the benefits payable hereunder nor shall
any of said benefits be subject to seizure for the payment of any
debts, judgments, alimony or separate maintenance owed by the Director
or the Director's beneficiary(ies), nor be transferable by operation
of law in the event of bankruptcy, insolvency or otherwise. In the
event the Director or any beneficiary attempts assignment,
commutation, hypothecation, transfer or disposal of the benefits
hereunder, the Bank's liabilities shall forthwith cease and terminate.
B. Binding Obligation of the Bank and any Successor in Interest:
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The Bank shall not merge or consolidate into or with another bank or
sell substantially all of its assets to another bank, firm or person
until such bank, firm or person expressly agrees, in writing, to
assume and discharge the duties and obligations of the Bank under this
Directors Delayed Compensation Plan Agreement. This Directors Delayed
Compensation Plan Agreement shall be binding upon the parties hereto,
their successors, beneficiaries, heirs and personal representatives.
C. Amendment or Revocation:
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It is agreed by and between the parties hereto that, during the
lifetime of the Director, this Directors Delayed Compensation Plan
Agreement may be amended or revoked at any time or times, in whole or
in part, by the mutual written consent of the Director and the Bank.
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D. Gender:
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Whenever in this Directors Delayed Compensation Plan Agreement words
are used in the masculine or neuter gender, they shall be read and
construed as in the masculine, feminine or neuter gender, whenever
they should so apply.
E. Effect on Other Benefit Plans of the Bank or CTFSC:
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Nothing contained in this Directors Delayed Compensation Plan
Agreement shall affect the right of the Director to participate in or
be covered by any qualified or non-qualified pension, profit-sharing,
group, bonus or other supplemental compensation or fringe benefit plan
constituting a part of the Bank's or CTFSC's existing or future
compensation structure.
F. Headings:
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Headings and subheadings in this Directors Delayed Compensation Plan
Agreement are inserted for reference and convenience only and shall
not be deemed a part of this Directors Delayed Compensation Plan
Agreement.
G. Applicable Law:
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The validity and interpretation of this Agreement shall be governed by
the laws of the State of Georgia.
H. 12 U.S.C. (S) 1828(k):
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Any payments made to the Director pursuant to this Directors Delayed
Compensation Plan Agreement, or otherwise, are subject to and
conditioned upon their compliance with 12 U.S.C. (S) 1828(k) or any
regulations promulgated thereunder.
I. Partial Invalidity:
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If any term, provision, covenant, or condition of this Directors
Delayed Compensation Plan Agreement is determined by an arbitrator or
a court, as the case may be, to be invalid, void, or unenforceable,
such determination shall not render any other term, provision,
covenant, or condition invalid, void, or unenforceable, and the
Directors Delayed Compensation Plan Agreement shall remain in full
force and effect notwithstanding such partial invalidity.
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J. Continuation as Director:
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Neither this Agreement nor the payments of any benefits thereunder
shall be construed as giving to the Director any right to be retained
as a member of the Board of Directors of the Bank or CTFSC.
K. Present Value:
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All present value calculations under this Agreement shall be based on
the following interest rate:
Interest Rate: The interest rate of 30-year Treasury securities
published by the Board of Directors of the Federal
Reserve System for the month immediately preceding the
month in which the present value is determined.
XII. ERISA PROVISION
A. Named Fiduciary and Plan Administrator:
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The "Named Fiduciary and Plan Administrator" of this Directors Delayed
Compensation Plan Agreement shall be Community Trust Bank until its
resignation or removal by the Board. As Named Fiduciary and Plan
Administrator, the Bank shall be responsible for the management,
control and administration of the Directors Delayed Compensation Plan
Agreement. The Named Fiduciary may delegate to others certain aspects
of the management and operation responsibilities of the Directors
Delayed Compensation Plan Agreement including the employment of
advisors and the delegation of ministerial duties to qualified
individuals.
B. Claims Procedure and Arbitration:
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In the event a dispute arises over benefits under this Directors
Delayed Compensation Plan Agreement and benefits are not paid to the
Director (or to the Director's beneficiary(ies) in the case of the
Director's death) and such claimants feel they are entitled to receive
such benefits, then a written claim must be made to the Named
Fiduciary and Plan Administrator named above within sixty (60) days
from the date payments are refused. The Named Fiduciary and Plan
Administrator shall review the written claim and if the claim is
denied, in whole or in part, it shall provide in writing within sixty
(60) days of receipt of such claim its specific reasons for such
denial, reference to the provisions of this Directors Delayed
Compensation Plan Agreement upon which the denial is based and any
additional material or information necessary to perfect the claim.
Such
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written notice shall further indicate the additional steps to be taken
by claimants if a further review of the claim denial is desired. A
claim shall be deemed denied if the Named Fiduciary and Plan
Administrator fails to take any action within the aforesaid sixty-day
period.
If claimants desire a second review they shall notify the Named
Fiduciary and Plan Administrator in writing within sixty (60) days of
the first claim denial. Claimants may review this Directors Delayed
Compensation Plan Agreement or any documents relating thereto and
submit any written issues and comments it may feel appropriate. In
its sole discretion, the Named Fiduciary and Plan Administrator shall
then review the second claim and provide a written decision within
sixty (60) days of receipt of such claim. This decision shall
likewise state the specific reasons for the decision and shall include
reference to specific provisions of the Plan Agreement upon which the
decision is based.
If claimants continue to dispute the benefit denial based upon
completed performance of this Directors Delayed Compensation Plan
Agreement or the meaning and effect of the terms and conditions
thereof, then claimants may submit the dispute to an Arbitrator for
final arbitration. The Arbitrator shall be selected by mutual
agreement of the Bank and the claimants. The Arbitrator shall operate
under any generally recognized set of arbitration rules. The parties
hereto agree that they and their heirs, personal representatives,
successors and assigns shall be bound by the decision of such
Arbitrator with respect to any controversy properly submitted to it
for determination.
Where a dispute arises as to the Bank's or CTFSC's discharge of the
Director for "cause", such dispute shall likewise be submitted to
arbitration as above-described and the parties hereto agree to be
bound by the decision thereunder.
XIII. TERMINATION OR MODIFICATION OF AGREEMENT BY REASON OF CHANGES IN THE LAW,
RULES OR REGULATIONS
The Bank is entering into this Agreement upon the assumption that certain
existing tax laws, rules and regulations will continue in effect in their
current form. If any said assumptions should change and said change has a
detrimental effect on this Directors Delayed Compensation Plan Agreement,
then the Bank reserves the right to terminate or modify this Agreement
accordingly. Upon a Change of Control (Paragraph IX), this paragraph shall
become null and void effective immediately upon said Change of Control.
IN WITNESS WHEREOF, the parties hereto acknowledge that each has carefully
read this Agreement and executed the original thereof on the 26/th/ day of
October, 1999 and that, upon execution, each has received a conforming copy.
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XXXXXXXXX XXXXX XXXX
Xxxxx, Xxxxxxx
/s/ Xxxxxx Xxxxxxxx By: /s/ X. X. Xxxxxx, Xx. SVP
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Witness Title
/s/ Xxxxxx Xxxxxxxx /s/ J. Xxxxxx Xxxxxxx
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Witness J. Xxxxxx Xxxxxxx
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