EXHIBIT 10.5
DEFERRED COMPENSATION MASTER PLAN AGREEMENT
THIS AGREEMENT is made and entered into this 1st day of April, 2001, by
Community First Bank & Trust, a banking corporation with principal offices and
place of business in the State of Tennessee, hereinafter referred to as the
"Corporation".
WITNESSETH:
WHEREAS, the Corporation wishes to establish a deferred compensation plan
to provide additional retirement benefits for a select group of management and
highly compensated employees; and
WHEREAS, the Corporation intends that the Plan shall at all times be
administered and interpreted in such a manner as to constitute an unfunded
deferred compensation plan for a select group of management or highly
compensated employees, so as to qualify for all available exemptions from the
provisions of ERISA;
NOW, THEREFORE, in consideration of the premises, the Corporation hereby
adopts the following Deferred Compensation Plan.
DEFINITIONS:
ACCRUED BENEFIT. The sum of all amounts deferred hereunder by or on behalf
of the Participant, including (i) any contributions made by the Corporation
pursuant to paragraph 1.03 hereof, (ii) any interest credited to the Participant
or his or her beneficiaries pursuant to this Plan and (iii) any investment
earnings or losses credited pursuant to Article Four hereof, minus any
distributions to such Participant or his or her beneficiaries hereunder.
AFFILIATE. Any corporation, partnership, joint venture, association, or
similar organization or entity, which is a member of a controlled group of
corporations which includes, or which is under common control with, the
Corporation under Section 414(b) or 414(c) of the Code.
CALENDAR YEAR. January 1 to December 31.
CODE. The Internal Revenue Code of 1986, as amended from time to time.
COMPLETED YEAR OF SERVICE. One year of service shall mean twelve
consecutive months of continuous employment with Community First Bank and Trust.
EARLY RETIREMENT DATE. The date the Participant attains age 60.
EFFECTIVE DATE. January 1, 2001.
ELIGIBLE EMPLOYEE. Any employee of the Corporation or an Affiliate who is
selected to participate herein in accordance with the provisions of paragraph
1.01 hereof.
ERISA. The Employee Retirement Income Security Act of 1974, as amended
from time to time.
NORMAL RETIREMENT DATE. The date the Participant attains 65 years of age.
PARTICIPANT. An Eligible Employee who is participating in the Plan.
PLAN. This Plan, together with any and all amendments or supplements
thereto.
PLAN ADMINISTRATOR. The Board of Directors of the Corporation or their
Designee.
PLAN YEAR. The Calendar Year.
RETIREMENT ACCOUNT. Book entries maintained by the Corporation reflecting
the Participant's Accrued Benefit; provided, however, that the existence of such
book entries and the Retirement Account shall not create, and shall not be
deemed to create, a trust of any kind, or a fiduciary relationship between the
Corporation and the Participant, his or her beneficiary, or other beneficiaries
under this Plan.
YEAR OF PLAN SERVICE. Shall mean a period of twelve (12) months of
continuous employment with Community First Bank & Trust commencing with the
Participant's date of hire.
ARTICLE ONE
1.01 ELIGIBILITY. (a) An employee is eligible to become a Participant in
the Plan if such employee is designated as a Participant by the Board of
Directors or the Plan Administrator, in their complete discretion and in
writing. As a condition of participation, the Plan Administrator may require the
employee to execute a participation agreement in (or similar to) the form
annexed hereto as Exhibit B. (b) Once an employee becomes a Participant, he or
she shall remain a Participant until his or her termination or employment with
the Corporation and its Affiliates, and thereafter until all benefits to which
he or she (or his or her beneficiary) is entitled under the Plan have been paid
unless otherwise so provided herein. (c) In the case of any employee who first
becomes a Participant after the Effective Date, the Plan Administrator shall
specify the date as of which his or her participation shall commence.
1.02 CORPORATE CONTRIBUTIONS. The Corporation will make contributions to
the Participant's Retirement Account at the written direction of the Board of
Directors in amounts determined at the sole discretion of the Board of
Directors. The amounts so determined shall be credited to the Participant's
Retirement Account within (30 days) after the date on which they are declared.
ARTICLE TWO
2.01 RESPONSIBILITY FOR ADMINISTRATION OF THE PLAN. (a) The Plan
Administrator shall be responsible for the management, operation and
administration of the Plan. The Plan Administrator may employ others to render
advice with regard to its responsibilities under this Plan. It may also allocate
its responsibilities to others and may exercise any other powers necessary for
the discharge of the duties. (b) The primary responsibility of the Plan
Administrator is to administer the Plan for the benefit of the Participants and
their beneficiaries, subject to the specific terms of the Plan. The Plan
Administrator shall administer the Plan in accordance with its terms and shall
have the power to determine all questions arising in connection with the
administration, interpretation and application of the Plan. Any such
determination shall be conclusive and binding upon all persons. The Plan
Administrator shall have all powers necessary or appropriate to accomplish its
duties under the Plan.
2.02 INFORMATION FROM CORPORATION. The Corporation and each Affiliate
shall supply full and timely information to the Plan Administrator on all
matters as may be required properly to administer the Plan. The Plan
Administrator may rely upon the correctness of all such information as is so
supplied and shall have no duty or responsibility to verify such information.
The Plan Administrator shall also be entitled to rely conclusively upon all
tables, valuations, certifications, opinions and reports furnished by any
actuary, accountant, controller, counsel or other person employed or engaged by
the Plan Administrator with respect to the Plan.
2.03 INVESTMENTS. The Plan Administrator shall determine, in its sole
discretion, whether, and if so, to what extent, contributions made to the Plan
on behalf of a Participant shall be invested in the funds selected by such
Participant. In its discretion, the Plan Administrator may (i) hold
contributions as part of its general assets and/or (ii) invest contributions in
investments other than the funds selected by such Participant. The Employee
agrees on behalf of himself or herself and his or her designated beneficiary to
assume all risk in connection with any decrease in value of the funds which are
invested or which continue to be invested in accordance with the provisions of
this Agreement.
ARTICLE THREE
3.01 VESTING OF BENEFITS. In the event of the Participant's termination of
employment for any reason other than termination "for cause" as defined in
Paragraph 9.02, the Retirement Account balance attributable to Corporate
Contributions under Paragraphs 1.02 and investment earnings or losses thereon,
will vest according to the following schedule:
COMPLETED YEARS OF SERVICE VESTED PERCENTAGE
-------------------------- -----------------
0-10 00.00%
11 or more 100.00%
ARTICLE FOUR
4.01 INVESTMENT EARNINGS OR LOSSES ON DEFERRED AMOUNTS. The Corporation
hereby agrees that it will credit the Participant's Retirement Account in an
amount equal to the investment earnings or losses attributable to such
Participant's Retirement Account. The amount actually credited to the
Participant's Retirement Account shall be determined at the sole discretion of
the Plan Administrator as provided herein, regardless of whether the
contributions are actually invested as directed by the Participant. If any
federal, state or local tax is imposed on the Corporation or any Affiliate,
attributable to investment earnings on any such fund, then the amount of such
tax shall be charged to the Participant's Retirement Account.
4.02 INVESTMENT OF AMOUNT CREDITED TO DEFERRED COMPENSATION ACCOUNT. While
this agreement is an unfunded agreement to provide the Participant with deferred
compensation, the Corporation shall nevertheless hold and/or invest all amounts
credited to the Participant's Deferred Compensation Account as it sees fit in
its sole discretion, including but not limited to the following:
4.03 The Corporation may utilize and/or invest all or part of the amounts
credited to the Participant's Deferred Compensation Account in any manner in it
absolute discretion, including but not limited to life insurance, mutual funds,
stocks, bonds, certificates of deposit, interest bearing accounts, etc.,
including all costs, premiums and fees associated therewith. The Corporation
makes no representations or guarantees regarding any return on the investments
made by the Corporation, and the Participant agrees to assume all risk in
connection with any decrease in value of the funds which are invested or which
continue to be invested in accordance with this Agreement.
4.04 Any policy of life insurance acquired hereunder, if any, or other
investment made in accordance with this Agreement shall be in such amounts and
contain such terms as the Corporation, in its sole and absolute discretion,
shall determine. For example, all or any amounts credited to the Participant's
Deferred Compensation may be treated as used, but shall not be required to be
used, to pay premiums on any life insurance policy on the Participant's life
("the policy") which may be used to reimburse the Corporation for all or part of
the Deferred Compensation to be made pursuant to this Agreement. Any such policy
may be in such face amount and contain such terms as the Corporation may
determine in its sole discretion. Provided, however that the Corporation shall
be under no obligation to purchase any life insurance policy or make any
investments with any amounts credited to the Participant's Deferred Compensation
Account.
4.05 Title to and beneficial ownership of any policy of insurance or other
investment purchased or obtained by the Corporation which it may earmark to pay
its deferred compensation obligations to the Participant hereunder shall at all
times remain in the Corporation, and the Participant shall not have any property
interest
whatsoever in any specific assets of the Corporation, including any Policy. The
Participant's Deferred Compensation Account and any policy or investment
obtained under any account of the Participant shall be subject to the claims of
the Corporation's general creditors.
4.06 Nothing contained herein shall be construed to be a contract of
employment for any term of years, nor as conferring upon the Participant the
right to continue to be employed by the Corporation in his or her present
capacity or in any capacity. It is expressly understood that this Plan relates
to the payment of deferred compensation for the Participant's services, payable
after termination of his or her employment with the Corporation, and is not
intended to be an employment contract.
4.07 No Participant or beneficiary under this Plan shall have any power or
right to transfer, assign, anticipate, hypothecate or otherwise encumber any
part of all of the amounts payable hereunder. No such amounts shall be subject
to seizure by any creditor of any such Participant or beneficiary, by a
proceeding at law or in equity, nor shall such amounts be transferable by
operation of law in the event of bankruptcy, insolvency or death of the
Participant or beneficiary. Any such attempted assignment shall be void.
4.08 It is expressly agreed and understood that the Participant shall have
no right to any amounts associated with the Deferred Compensation Account
established by the Corporation in the name of the Participant until and unless
all terms and conditions of this Agreement are satisfied. The parties hereto
specifically acknowledge that the Participant's Deferred Compensation Account is
merely a book reserve maintained by the Corporation, and the amounts, if any,
eventually to be payable by the Corporation as deferred compensation to the
Participant under this Agreement, and the manner and extent of, and conditions
on, of the Corporations' obligations to pay such amounts are set forth in
Article VI below.
ARTICLE FIVE
5.01 RETIREMENT BENEFIT. From and after the retirement of the Participant
from the service of the Corporation or an Affiliate, upon reaching his or her
Early Retirement Date or Normal Retirement Date, the Corporation shall
thereafter pay to the Participant, his or her Accrued Benefit. Such benefit
shall be payable in equal annual installments for a period of fifteen (15)
years. The amount of each annual installment shall be determined at the sole
discretion of the Plan Administrator based on the value of the Participant's
Accrued Benefit at the date of retirement and on prevailing interest rates at
that time. Such payments shall commence as of the first day of the first month
following the Participant's attaining age 65.
5.02 ACCELERATED PAYMENTS. The Plan Administrator may make payment of all
or part of the Participant's Retirement Account balance before any payments
would otherwise be due, if, based on a change in the federal tax or revenue
laws, a published ruling or similar announcement issued by the Internal Revenue
Service, a regulation issued by the Secretary of the Treasury, a decision by a
court of competent jurisdiction involving a Participant or a beneficiary, or a
closing agreement made under 7121 of the Code that is approved by the Internal
Revenue Service and involves a Participant, the Plan Administrator determines
that a Participant has or will receive income under the Plan for federal income
tax purposes with respect to amounts that are or will be payable under the Plan
before they are to be paid to the Participant. In the event any such accelerated
payment is determined to be necessary, all Participants will receive such
accelerated payments in the same form of distribution.
ARTICLE SIX
6.01 DISABILITY RETIREMENT BENEFIT. The Participant shall be entitled to
receive payments hereunder prior to his or her Normal Retirement Date if it is
determined by a duly licensed physician selected by the Corporation that,
because of ill health, accident, or disability, the Participant is no longer
able properly and satisfactorily perform his or her regular duties as an
employee. If the Participant's employment is terminated pursuant to this
paragraph, the benefit payable hereunder shall be the vested value of the
Participant's accrued benefit on the date of the physician's disability
determination. The Disability Retirement Benefit payable under
this Article shall be distributed in a lump sum on or about the first day of the
third month following the determination of disability.
ARTICLE SEVEN
7.01 DEATH PRIOR TO RETIREMENT. In the event the Participant should die
while actively employed by the Corporation at any time after the date of this
Agreement but prior to his attaining the age of sixty-five (65) years, or such
later date as may be agreed upon, the Corporation will pay Thirty Thousand
dollars ($30,000.00) per year for a total of ten (10) years to such individual
or individuals as the Participant may have designated in writing, filed with and
been approved by the Corporation. The first payment shall be due on or about the
first day of the third month following the month the decease of the Executive
and the Corporation will pay a like sum on each anniversary of said date to the
beneficiary until said beneficiary shall have received ten (10) payments of
$30,000.00 each. In the absence of any effective designation of beneficiary any
such amount becoming due and payable upon the death of the Executive shall be
payable to his duly qualified executor or administrator. In the event that the
Executive shall die prior to July 1, 2003 and that such death is the result of
suicide, then, and in such event, the death benefits provided by the Article
shall not be payable.
7.02 DEATH BENEFIT AFTER COMMENCEMENT OF RETIREMENT BENEFITS. In the event
of the Participant's death after the commencement of benefit payments, but prior
to the completion of all such payments due and owing hereunder, the Corporation
shall continue to make such payments, in installments over the remainder of the
period specified in Article Five hereof that would have been applicable to the
Participant had he or she survived. Such continuing payments shall be made to
the Participant's designated beneficiary in accordance with the last such
designation received by the Corporation from the Participant prior to his or her
death. If no such designation has been received by the Corporation, such
payments shall be made to the Participant's surviving legal spouse. If such
spouse dies before receiving all payments to which he or she is entitled
hereunder, then payments shall continue, for the remainder of the payment
period, to such person or persons, including his or her estate, as he or she may
designate in the last beneficiary designation received by the Corporation from
such spouse prior to his or her death. If the Participant is not survived by a
legal spouse, or if such spouse shall fail to so appoint, then said payments
shall be made to the then living children of the Participant, if any, in equal
shares. If there are no surviving children, the payments will be made to the
estate of the later to die of the Participant and (if any) his or her legal
spouse. Such continuing payments shall commence as of the first day of the first
month following the Participant's death.
ARTICLE EIGHT
8.01 TERMINATION BENEFITS. In the event of the Participant's termination
of employment with the Corporation or an Affiliate, for any reason other than
disability, retirement, death, or termination for cause, the Corporation shall
pay to the Participant a Termination Benefit as if he or she had retired on the
date of termination. The amount payable shall be equal to the vest Accrued
Benefit at the date of termination and shall be paid in accordance with the
provisions of Article Five.
8.02 TERMINATION FOR CAUSE. Termination "for cause" shall mean (i)
conviction of robbery, bribery, extortion, embezzlement, fraud, grand larceny,
burglary, perjury, income tax evasion, misapplication of company funds, false
statements in violation of 18 U.S.C. Sec. 1001, and any other felony that is
punishable by a term of imprisonment of more than one year, or (ii) any breach
of the participant's duty of loyalty to the corporation, any acts of omission in
the performance of his or her company duties not in good faith or which involve
intentional misconduct or a knowing violation of law, or any transaction in the
performance of his or her company duties from which the participant derived an
improper personal benefit. In the event the Participant's employment is
terminated for cause, no benefits of any kind will be due or payable under the
terms of this Agreement and all rights under the Agreement of the Employee, his
or her designated beneficiary, executors, or administrators, or any other
person, to receive payments thereof shall be forfeited.
ARTICLE NINE
9.01 APPLICATION FOR HARDSHIP DISTRIBUTION. In the event that any
Participant incurs a financial hardship, as hereinafter defined, such
Participant may apply to the Plan Administrator for a hardship distribution.
After the Participant's death, his or her beneficiary may apply for a hardship
distribution, and references herein to the Participant shall include the
beneficiary. The Plan Administrator shall consider the circumstances of each
such case, and the best interests of the Participant and his or her family, and
shall have the right, in its sole discretion, to allow such application, in full
or in part, or to refuse to make a hardship distribution.
9.02 AMOUNT OF DISTRIBUTION. In no event shall the amount of any hardship
distribution exceed the amount determined by the Plan Administrator to be
necessary to alleviate the hardship, including any taxes payable by the
Participant as a result of receiving such hardship distribution, and which is
not reasonably available from other resources of the Participant.
9.03 FINANCIAL HARDSHIP. For purposes of this Article, a "financial
hardship" means an immediate and heavy financial need of the Participant which
is described in section 1.401(k)-1(d)(iv)(A) of the Treasury Department
regulations relating to qualified cash or deferred arrangements.
9.04 RULES ADOPTED BY PLAN ADMINISTRATOR. The Plan Administrator shall
have the authority to adopt additional rules relating to hardship distributions.
In administering these rules, the Plan Administrator shall act in accordance
with the principle that the primary purpose of this Plan is to provide
additional retirement income, not additional funds for current consumption.
9.05 LIMIT ON NUMBER OF HARDSHIP DISTRIBUTIONS. No Participant may receive
more than one hardship distribution in any Calendar Year.
ARTICLE TEN
10.01 BENEFICIARY DESIGNATION. The Participant shall have the right, at
any time, to submit in substantially the form attached hereto as Exhibit C, a
written designation of primary and secondary beneficiaries to whom payment under
this Plan shall be made in the event of his or her death prior to complete
distribution of the benefits payable. Each beneficiary designation shall become
effective only when receipt thereof is acknowledged in writing by the
Corporation. The Corporation shall have the right, in its sole discretion, to
reject any beneficiary designation which is not in substantially the form
attached here to as Exhibit C. Any attempt to designate a beneficiary, otherwise
than as provided in this Article, shall be ineffective.
ARTICLE ELEVEN
11.01 NO TRUST CREATED. Nothing contained in this Plan, and no action
taken pursuant to its provisions by any person shall create, or be construed to
create, a trust of any kind, or a fiduciary relationship between the Corporation
and any other person.
11.02 BENEFITS PAYABLE ONLY FROM GENERAL CORPORATE ASSETS: (UNSECURED
GENERAL CREDITOR STATUS OF PARTICIPANT). (a) Payments to the Participant or any
beneficiary hereunder shall be made from assets which shall continue, for all
purposes, to be part of the general, unrestricted assets of the Corporation; no
person shall have any interest in any such asset by virtue of any provision of
this Plan. The Corporation's obligation hereunder shall be an unfunded and
unsecured promise to pay money in the future. To the extent that any person
acquires a right to receive payments form the Corporation under the provisions
hereof, such right shall be no greater than the right of any unsecured general
creditor of the Corporation; no such person shall have or acquire any legal or
equitable right, interest or claim in or to any property or assets of the
Corporation. (b) In the event that, in its discretion, the Corporation purchases
an insurance policy or policies insuring the life of a Participant (or any other
property), to allow the Corporation to recover or meet the cost of providing
benefits, in whole or in part, hereunder, no Participant or beneficiary shall
have any rights whatsoever therein or in the proceeds therefrom. The Corporation
shall be the sole owner and beneficiary of any such insurance policy or property
and shall possess and may exercise all incidents of ownership therein.
11.03 NO CONTRACT OF EMPLOYMENT. Nothing contained herein shall be
construed to be a contract of employment for any term of years, nor as
conferring upon the Participant the right to continue to be employed by the
Corporation in his or her present capacity or in any capacity. It is expressly
understood that this Plan relates to the payment of deferred compensation for
the Participant's services, payable after termination of his or her employment
with the Corporation, and is not intended to be an employment contract.
11.04 BENEFITS NOT TRANSFERABLE. No Participant or beneficiary under this
Plan shall have any power or right to transfer, assign, anticipate, hypothecate
or otherwise encumber any part of all of the amounts payable hereunder. No such
amounts shall be subject to seizure by any creditor of any such Participant or
beneficiary, by a proceeding at law or in equity, nor shall such amounts be
transferable by operation of law in the event of bankruptcy, insolvency or death
of the Participant or beneficiary. Any such attempted assignment shall be void.
ARTICLE TWELVE
12.01 CLAIM PROCEDURE. A person who believes that he or she is being
denied a benefit to which he or she is entitled under the Plan (hereinafter
referred to as a "Claimant") may file a written request for such benefit with
the Corporation, setting forth his or her claim. The request must be addressed
to the President of the Corporation at its then principal place of business.
12.02 CLAIM DECISION. Upon receipt of a claim, the Corporation shall
advise the Claimant that a reply will be forthcoming within 90 days and the Plan
Administrator shall, in fact, deliver such reply within such period. The Plan
Administrator may, however, extend the reply period for an additional 90 days
for reasonable cause. If the claim is denied in whole or in part, the Plan
Administrator shall adopt a written opinion, using language calculated to be
understood by the Claimant, setting forth:
i. The specific reason or reasons for such denial;
ii. Specific reference to pertinent provisions of this Plan on
which such denial is based;
iii. A description of any additional material or information
necessary for the Claimant to perfect his or claim and an
explanation why such material or such information is
necessary;
iv. Appropriate information as to the steps to be taken if the
Claimant wishes to submit the claim for review; and
v. The time limits for requesting a review under subsection iii
and for review under subsection iv hereof.
12.03 REQUEST FOR REVIEW. Within 60 days after receipt by the Claimant of
the written opinion described above, the Claimant may request in writing that
the Corporation review the Plan Administrator's determination. Such request must
be addressed to the Secretary of the Corporation at its then principal place of
business. The Claimant or his or her duly authorized representative may, but
need not, review the pertinent documents and submit issues and comments in
writing for consideration by the Corporation. If the Claimant does not request a
review of the determination within such 60 day period, he or she shall be bared
and estopped from challenging the determination.
12.04 REVIEW OF DECISION. Within 60 days after the Corporation's receipt
of a request for review, it will review the Plan Administrator's determination.
After considering all material presented by the Claimant, the Corporation will
render a written opinion, written in a manner calculated to be understood by the
Claimant, setting forth the specific reasons for the decision and containing
specific references to the pertinent provisions of this Plan on which the
decision is based. If special circumstances require that the 60 day time period
be extended, the Corporation will so notify the Claimant and will render the
decision as soon as possible, but no later than 120 days after receipt of the
request for review.
ARTICLE THIRTEEN
ARBITRATION
13.01 APPLICABLE RULES AND LAWS: Any controversy relating to a claim
arising out of or relation to this Plan, including, but not limited to claims
for benefits due under this Plan, claims for the enforcement of ERISA,
claims based on the federal common law of ERISA, claims alleging discriminatory
discharge under ERISA, claims based on state law, and assigned claims relation
to this Plan shall be settled by arbitration in accordance with the then current
Employee Benefit Claims Arbitration Rules of the American Arbitration
Association (the "AAA") or any successor rules which are hereby incorporated
into the Plan by this reference; provided, however, both the Corporation and the
Participant shall have the right at any time to seek equitable relief in court
without submitting the issue to arbitration.
13.03 EXHAUSTION OF ADMINISTRATIVE REMEDY: Neither the Participant (or his
beneficiary) nor the Plan may be required to submit such claim or controversy to
arbitration until the Participant (or his beneficiary) has first exhausted the
Plan's initial appeals procedures set forth in Section 2.6. However, if the
Participant (or his beneficiary) and the Corporation agree to do so, they may
submit the claim or controversy to arbitration at any point during the
processing of the dispute.
13.04 COSTS: The Corporation will bear all costs of an arbitration, except
that the Participant will pay the filing fee set by the AAA and the arbitrator
shall have the power to apportion among the parties expenses such as pre-hearing
discovery, travel, experts' fees, accountants' fees, and attorneys' fees except
as otherwise provided herein. The decision of the arbitrator shall be final and
binding on all parties, and judgment on the arbitrator's award may be entered in
any court of competent jurisdiction.
13.05 STATUTE OF LIMITATIONS: If there is a dispute as to whether a claim
is subject to arbitration, the arbitrator shall decide the issue. The claim must
be filed with the AAA within the applicable statute of limitations period. The
arbitrator shall issue a written determination sufficient to ensure consistent
application of the Plan in the future.
13.06 PLACE OF HEARING AND SELECTION OF ARBITRATOR: Any arbitration will
be conducted in accordance with the following provisions, notwithstanding the
Rules of the AAA. The arbitration will take place in a neutral location within
the metropolitan area in which the Participant was or is employed by the
Corporation. The arbitrator will be selected from the attorney members of the
Commercial Panel of the AAA who reside in the metropolitan area where the
arbitration will take place and have at least 5 years of ERISA experience. If an
arbitrator meeting such qualifications is unavailable, the arbitrator will be
selected from the attorney members of the National Panel of Employee Benefit
Claims Arbitrators established by the AAA.
13.07 DISCOVERY: In any such arbitration, each party shall be entitled to
discovery of any other party as provided by the Federal Rules of Civil Procedure
then in effect; provided, however, that discovery shall be limited to a period
of 60 days. The arbitrator may make orders and issue subpoenas as necessary. The
arbitrator shall apply ERISA, as construed in the federal Circuit in which the
arbitration takes place, to the interpretation of the Plan and the Federal
Arbitration Act to the interpretation of this arbitration provision.
ARTICLE FOURTEEN
14.01 AMENDMENT. This Plan may be amended or terminated by the Corporation
at any time, without notice to or consent of any person, pursuant to resolutions
adopted by its Board of Directors. Any such amendment or termination shall take
effect as of the date specified therein and, to the extent permitted by law, may
have retroactive effect. However, no such amendment or termination shall reduce
(i) the amount then credited to the Participant's Retirement Account, or (ii)
his or her vested percentage under paragraph 3.01. If the Plan is terminated,
benefits will be distributed in accordance with Article Six, as if the
termination date were the Participant's Normal Retirement Date. Any other
provision of this Plan to the contrary notwithstanding, the Plan may be amended
by the Corporation at any time, and retroactively if required to the extent
that, in the opinion of the Corporation, such amendment shall be necessary in
order to ensure that the Plan will be characterized as a plan maintained for a
select group of management or highly compensated employees, as described in
sections 201(2), 301(a) (3) and 401 (a)(1) of ERISA, or to conform the Plan to
the requirements of any applicable law, including ERISA and the Code. No such
amendment shall be considered prejudicial to any interest of a Participant or
beneficiary hereunder.
ARTICLE FIFTEEN
15.01 NOTICE. Any notice, consent or demand required or permitted to be
given under the provisions of this Plan shall be in writing, and shall be signed
by the party giving or making the same. If such notice, consent or demand is
mailed, it shall be sent by United States certified mail, postage prepaid,
addressed to the addressee's last known address as shown on the records of the
Corporation. The date of such mailing shall be deemed the date of notice consent
or demand. Any person may change the address to which notice is to be sent by
giving notice of the change of address in the manner aforesaid.
ARTICLE SIXTEEN
16.01 FACILITY OF PAYMENT. If a distribution is to be made to a minor, or
to a person who is otherwise incompetent, then the Plan Administrator may, in
its discretion, make such distribution (i) to the legal guardian, or if none, to
a parent of a minor payee with whom the payee maintains his or her residence, or
(ii) to the conservator or committee or, if none, to the person having custody
of an incompetent payee. Any such distribution shall fully discharge the Plan
Administrator, the Corporation and Plan from further liability on account
thereof.
ARTICLE SEVENTEEN
17.01 BOARD AUTHORITY. The Board shall have full power and authority to
interpret, construe, and administer this Agreement and the Board's
interpretations and constructions thereof, and actions thereunder, including any
valuation of the Deferred Compensation Account or the amount or recipient of the
payment to be made therefrom, shall be binding and conclusive on all persons for
all purposes, subject to the terms and conditions of Article 12. No member of
the Board shall be liable to any person for any action taken or admitted in
connection with the interpretation and administration of this Agreement unless
attributable to their willful misconduct or lack of good faith.
ARTICLE EIGHTEEN
18.01 GOVERNING LAW. The Plan and the right and obligations of all persons
hereunder shall be governed by and construed in accordance with the laws of the
State of Tennessee other than its laws regarding choice of law, to the extent
that such state law is not preempted by federal law.
IN WITNESS WHEREOF, the Corporation has executed this Plan as of the day
and year above first written.
ATTEST:
_____________________________ COMMUNITY FIRST BANK & TRUST
By:______________________________________
Xxxxxx Xxxxxxxxx, Chief Financial Officer
