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Exhibit
10-e
DIRECTORS'
DEFERRED FEE PLAN
OF
TRUSTMARK NATIONAL BANK, JACKSON, MISSISSIPPI
As Restated Effective as of December 31, 2007
DIRECTORS'
DEFERRED
FEE PLAN
OF
TRUSTMARK
NATIONAL BANK, JACKSON, MISSISSIPPI
As Restated Effective as of December 31, 2007
PURPOSE
AND EFFECTIVE DATE
The
purpose of the Directors' Deferred Fee Plan of Trustmark National Bank,
Jackson, Mississippi is to provide specified benefits
to Directors who contribute materially to the continued
growth, development and future business success of Trustmark National Bank,
Jackson, Mississippi . It is the intention
of Trustmark
National Bank, Jackson, Mississippi that this program
and the individual plans established hereunder be administered
as unfunded welfare benefit plans established for Directors of
the Bank. The effective date of this Plan is
February 12, 1985; and this Plan was amended and restated as
of February 12, 1986. This Plan was last restated
effective January 1, 1999. This Plan is
further amended and restated as of December 31, 2007 in
order to comply, where applicable, with the requirements of
Code Section 409A (as defined below).
ARTICLE
I
DEFINITIONS AND CONSTRUCTION
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1.1
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Definitions . For purposes of this Plan, the
following phrases or terms shall have the indicated meanings unless
otherwise clearly apparent from the context:
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(e)
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"
Bank " shall
mean Trustmark
National Bank, Jackson, Mississippi and any Subsidiary that
duly adopts the Plan as provided in Article XIV
hereof. Where the context dictates, the term "Bank" as
used herein refers to the particular Bank that has entered into a
Plan Agreement with a particular Participant.
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(b)
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"
Beneficiary "
shall mean the person, persons or estate of a Participant, entitled
to receive any benefits subsequent to the death of a Participant
under a Plan Agreement entered into in accordance with the terms of
this Plan.
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(c)
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"
Beneficiary
Designation " shall mean the form of written agreement,
attached hereto as Annex II, by which the Participant names the
Beneficiary(ies) of the Plan.
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(d)
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"
Benefit
Level " shall mean that level of Benefits (Death and
Retirement) which is made available by the Bank to the Participant
for computation of Retirement and Death Benefits pursuant to the
terms and conditions of the Plan.
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(e)
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"
Board of
Directors " shall mean the Board of Directors of
Trustmark National
Bank, Jackson, Mississippi unless otherwise indicated or the
context otherwise requires.
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(f)
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"
Buyout " shall
mean a transaction or series of related transactions by which the
Bank or Holding Company is sold, either through the sale of a
Controlling Interest in the Bank's or Holding Company’s
voting stock or through the sale of substantially all of the Bank's
or Holding Company’s assets, to a party not having a
Controlling Interest in the Bank's or Holding Company’s
voting stock.
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(g)
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"
Change in
Control " shall mean a Buyout, Merger, or Substantial Change
in Ownership.
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(h)
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"
Code " shall
mean the Internal Revenue Code of 1986, as the same may be amended
from time to time, or the corresponding Section of any
subsequent Internal Revenue Code, and, to the extent not
inconsistent therewith, regulations issued thereunder.
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(i)
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"
Committee "
shall mean the Human Resources Committee of the Board of Directors
of the Holding Company (or any successor committee thereto) or any
other committee appointed by the Board of Directors of the Bank in
lieu thereof to manage and administer the Plan and individual Plan
Agreements in accordance with the provisions of Article XII
hereof.
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(k)
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"
Controlling
Interest " shall mean ownership, either directly or
indirectly, of more than twenty percent (20%) of the Bank's or
Holding Company’s voting stock.
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(l)
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"
Death
Benefit " shall mean the benefit provided under
Article III of the Plan.
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(l)
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"
Director "
shall mean any person who is associated as a Director or Advisory
Director with the Bank or one of its Subsidiaries.
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(m)
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"
Disability" or
"Disabled " shall mean that a Participant is disabled as
provided in Section 3.8.
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(n)
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"
Election
to Participate " shall mean the form of written agreement
that will be executed and entered into between a Participant and
the Bank specifying the amount of annual compensation to be
deferred immediately following the date of execution of said
"Election to Participate" and continuing thereafter under the terms
of the Plan.
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(o)
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“
Employer(s)
” shall mean the Bank and/or any Subsidiary (now in existence
or hereafter formed or acquired) that duly adopts the Plan as
provided in Article XIV hereof.
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(p)
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“
ERISA ”
shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time, and, to the extent not
inconsistent therewith, regulations issued thereunder.
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(q)
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"
Holding
Company " shall mean Trustmark Corporation.
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(r)
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"
Merger " shall
mean a transaction or series of transactions wherein the Bank or
Holding Company is combined with another business entity, and after
which the persons or entities who had owned, either directly or
indirectly, a Controlling Interest in the Bank's or Holding
Company’s voting stock own less than a Controlling Interest
in the voting stock of the combined entity.
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(s)
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"
Normal
Retirement Date " shall be March 1 following
Participant’s sixty-fifth (65th) birthday.
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(t)
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"
Participant "
shall mean a Director who is selected and elects to participate in
the Plan through the execution of a Plan Agreement in accordance
with the provisions of Article II.
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(u)
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"
Participant's Benefit
Level " shall mean that portion of the Benefit Level which
the Participant chooses as a basis for computation of Death and
Retirement Benefits pursuant to the terms and conditions of the
Plan.
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(v)
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"
Plan " shall
mean the Directors' Deferred Fee Plan of Trustmark National Bank,
Jackson, Mississippi as amended from time to
time.
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(w)
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"
Plan
Agreement " shall mean the form of written agreement,
attached hereto as Annex I, which is entered into from time to time
by and between the Bank and a Director selected to become a
Participant as a condition to participation in the
Plan. Each Plan Agreement executed by a Participant
shall provide for the entire benefit to which such Participant is
entitled under the Plan, and the Plan Agreement bearing the latest
date shall govern such entitlement.
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(x)
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"
Retirement "
and " Retire " shall
mean severance of relationship with the Bank at or after the
attainment of his or her Normal Retirement Date.
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(y)
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"
Retirement
Benefit " shall mean the benefit provided under
Article IV of the Plan.
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(aa)
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"
Subsidiary "
shall mean any business organization in which Trustmark National Bank,
Jackson, Mississippi , directly or indirectly, owns an
interest, excluding ownership interests Trustmark National Bank,
Jackson, Mississippi may hold in their fiduciary capacities
as trustee or otherwise, and any other business organization that
the Board of Directors designates as a Subsidiary for purposes of
this Plan, provided in each such case the business organization
would be aggregated and treated as a single employer with
Trustmark National
Bank, Jackson, Mississippi under Code Section 414(b)
(controlled group of corporations) and Code Section 414(c) (a
group of trades or businesses, whether or not incorporated, under
common control), as applicable. In order to identify the
group of entities described in the preceding sentence, the
Committee shall use an ownership threshold of at least eighty
percent (80%) when applying, the applicable provisions of (1) Code
Section 1563 for determining a controlled group of
corporations under Code Section 414(b), and (2) Treas. Reg.
Sec.1.414(c)-2 for determining the trades or businesses that are
under common control under Code Section 414(c).
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(bb)
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Substantial Change in
Ownership " shall mean a transaction or series of
transactions in which a Controlling Interest in the Bank or Holding
Company is acquired by or for a person or business entity, either
of which did not own, either directly or indirectly, a Controlling
Interest in the Bank or Holding Company. The above shall
not apply to stock purchased by any tax-qualified employee stock
ownership plan or other such type of benefit plan sponsored by the
Bank or any company affiliated with the Bank or the Holding
Company.
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(a)
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The
masculine gender when used herein shall be deemed to include the
feminine gender, and the singular may include the plural unless the
context clearly indicates to the contrary. The words
"hereof", "herein," "hereunder", and other similar compounds of the
word "here" shall mean and refer to the entire Plan and not to any
particular provision or section. Whenever the words
"Article" or "Section" are used in this Plan, or a cross-reference
to an "Article" or "Section" is made, the Article or
Section referred to shall be an Article or
Section of this Plan unless otherwise specified.
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(b)
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The
Plan is intended to be a plan that is not qualified within the
meaning of Code Section 401(a) and that “is
unfunded. It not intended to be covered by ERISA, but if
it is considered to be covered by ERISA, it should be viewed as
maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated
employees within the meaning of ERISA Sections 201(2), 301(a)(3)
and 401(a)(1). Except with respect to Plan benefits not
subject to Code Section 409A, the Plan shall be administered
and interpreted (i) to the extent possible in a manner
consistent with the intent described in the preceding sentence, and
(ii) in accordance with Code Section 409A and related
Treasury guidance.
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1.3
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Applicability of Code Section 409A .
It is intended that if no part of a
Participant ’
s Retirement Benefit is earned or
becomes vested after December 31, 2004 and there is no
material modification with respect to such benefit which would
cause it to become subject to Code Section 409A, then neither
this Plan restatement nor Code Section 409A shall apply to
such Participant ’ s
Plan benefits, and the payment of such Participant
’ s Plan benefits shall be governed by the terms of
the Plan as in effect on December 31,
2004.
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ARTICLE
II
ELIGIBILITY AND PARTICIPATION
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2.1
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Eligibility . In order to be eligible for
participation in the Plan, a Director must be selected by the
Committee in the year preceding the year in which the Director is
eligible to participate as hereinafter provided. The
Committee, in its sole and absolute discretion, shall determine
eligibility for participation in accordance with the purposes of
the Plan.
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2.2
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Participation . After being selected by the
Committee to participate in this Plan, a Director shall, as a
condition precedent to participation herein, complete and return to
the Committee a duly executed Plan Agreement and Election to
Participate electing to participate herein and agreeing to the
terms and conditions thereof, and by the execution of such Plan
Agreement and Election to Participate a Participant shall agree
that all amounts deferred thereby shall be irrevocably deferred and
that in lieu thereof the Participant shall be entitled solely to
the benefits provided under this Plan. Such Plan
Agreement shall be completed and returned to the committee at the
time specified thereby, and should be subsequent to December 31st
of the year preceding the year to which the Plan Agreement
relates.
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ARTICLE
III
DEATH BENEFIT
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3.1
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Amount and Payment of Death Benefit . If a
Participant dies before Retirement, before his or her Retirement
Benefit commences to be paid pursuant to Section 4.1(b) and
the Plan is in effect at that time, the Bank will pay or cause to
be paid a Death Benefit to such Participant's
Beneficiary. The said Death Benefit shall be one hundred
percent (100%) of the Participant's Benefit Level as set forth in
the Plan Agreement paid monthly for the next one hundred and twenty
(120) months. Such payments shall commence effective the
first day of the month following the date of death.
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Notwithstanding
the immediately preceding paragraph of this Section 3.1, the
Bank will pay or cause to be paid the Death Benefit specified
therein only if:
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(a)
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At
the time of the Participant's death prior to attaining his or her
Normal Retirement Date:
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(i)
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Such
Participant was a Director and had not Retired, or was Disabled or
on authorized leave of absence, his or her Retirement Benefit has
not commenced to be paid pursuant to Section 4.1(b) and all
deferrals and payments required to be made by such Participant
under Sections 3.2 et. seq. have been made, or
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(ii)
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Such
required deferrals or payments were waived pursuant to Section 3.5
because of such Participant's Disability;
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(b)
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The
Participant's Plan Agreement had been kept in force throughout the
period commencing on the date of such Plan Agreement and ending on
the date of his or her death;
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(c)
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The
Participant's death was due to causes other than suicide within two
(2) years of the date of his or her original Plan Agreement or
within two (2) years of the date of any amendment to his or her
Plan Agreement or any subsequent Plan Agreement resulting from
additional benefits granted because of an increase in the
Participant's Benefit Level; but the Participant's suicide shall
relieve the Bank only of its obligation to pay that portion of the
Death Benefit that was granted within two (2) years prior to the
date of such suicide;
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(d)
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The
Participant's death is determined not to be from a bodily or mental
cause or causes, information about which was withheld, or knowingly
concealed, or falsely provided by the Participant when requested by
the Bank to furnish evidence of good health upon the Participant's
enrolling in the Plan or upon an application for an increase in
benefits because of an increase in Participant's Benefit Level;
and
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(e)
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Proof
of death in such form as determined acceptable by the Committee is
furnished.
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3.2
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Amount of Participant Deferral and Payments . In
consideration for the Death Benefit selected in Participant's Plan
Agreement, each Participant shall defer an amount of his or her
compensation in such amounts and at such times as shall be
determined by the Committee and as specified in his or her Election
to Participate, and the Committee may change the amount of such
deferral prospectively on a calendar year by calendar year basis,
provided that any change is made prior to the beginning of the
calendar year for which it is effective. If a
Participant is authorized to take a leave of absence from his or
her relationship or, subject to the provisions of Section 3.5, is
Disabled, the Participant shall be required to make payments to the
Bank in accordance with this Article III in order to maintain
his or her Plan Agreement in force. A Participant's
obligation to defer an amount of his or her compensation in
accordance with this Article III or to make the payments
required by this Article III shall be stated in his or her
Plan Agreement and Election to Participate, shall commence on the
date his or her Plan Agreement becomes effective, and shall
continue thereafter during the term of his or her Plan Agreement or
until the earlier of such Participant's death or attainment of his
or her Normal Retirement Date. A Participant shall have
the right, prospectively on a calendar year by calendar year basis,
to increase or decrease the amount of his or her deferral initially
selected by him by amending his or her Plan Agreement and Election
to Participate in accordance with the rules adopted by the
Committee for this purpose, provided that any change is agreed to
prior to the beginning of the calendar year for which it is
effective.
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3.3
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Time and Manner of Deferring or Making Payments
. A Participant shall, in his or her Plan Agreement and
Election to Participate, authorize the Employer to defer an amount
of such Participant's compensation equal to the amount specified
pursuant to Section 3.2. A Participant who is on
authorized leave of absence or is Disabled and who is required to
make the payments required in this Article III shall make such
payments at such time and in such manner as the Committee shall
provide; provided, however, that the Participant shall not continue
to make such payments during any period in which a portion of his
or her compensation is being deferred or such payments have been
waived pursuant to Section 3.5.
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3.4
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Participant Deferrals and Payments - Use and Forfeitability
. The amount of each Participant's compensation deferred
pursuant to Sections 3.2 and 3.3 shall be and remain solely the
property of the Bank and the amount collected by the Bank pursuant
to Sections 3.2 and 3.3 from each Participant who is on an
authorized leave of absence or Disabled shall be and become solely
the property of the Bank, and a Participant shall have no right
thereto, nor shall the Bank be obligated to use such amounts in any
specific manner. Except as provided in Article IV, if a
Participant's death occurs under circumstances other than those
specified in Section 3.1, no benefit shall be payable hereunder or
under his or her Plan Agreement to his or her Beneficiary or any
other person or entity on his or her behalf, and any payments made
by such Participant under Sections 3.2 and 3.3 shall be
forfeited.
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3.5
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Waiver of Participant Deferral or Payments . If a
Participant becomes Disabled before attaining his or her Normal
Retirement Date, the Disability continues for more than three (3)
months, and the Disability benefit specified in Item 4 of the
Participant's Plan Agreement is in effect, such Participant shall
not be required to defer a portion of his or her compensation
pursuant to Sections 3.2 and 3.3 or make the payments provided for
in Sections 3.2 and 3.3, commencing with the fourth (4th) month
following the date of such Disability and continuing thereafter for
as long as such Disability continues.
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3.6
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Required Payments and Leave of Absence . If a
Participant is authorized by the Bank for any reason, including
military, medical or other, to take a leave of absence, such
Participant shall be required to make payments in order to maintain
his or her Plan Agreement in force (first out of his or her
compensation during such leave of absence and, if his of her
compensation is insufficient, from his or her personal
assets). Such required payments shall be an amount equal
to the amount of the Participant's compensation that is to be
deferred under the terms of his or her Plan Agreement and Election
to Participate. A Participant required to make payments
under this Section 3.6 shall continue making such required
payments until the earlier of (i) the date he or she returns
to his or her duties following a leave of absence, (ii) the
date such payments are waived pursuant to Section 3.5, or
(iii) the effective date that he or she enters into a new Plan
Agreement and Election to Participate. If a
Participant's payments are waived pursuant to Section 3.5 and
subsequently the Participant returns to his or her duties, he or
she shall be required to resume deferring his or her compensation,
in the amount specified above.
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3.7
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Failure to Make Required Payments . Failure to
make payments required by Section 3.6 shall cause Participant's
Plan Agreement to terminate without the necessity of any notice
from either party to the other. From and after such
termination, except as provided in Section 4.5 hereof, neither
party shall have any further obligation to the other party under
this Plan or such Plan Agreement.
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(a)
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If
a Participant becomes Disabled before attaining his or her Normal
Retirement Date and subsequently dies before Retirement and before
his or her Retirement Benefit commences to be paid pursuant to
Section 4.1(b) and while the waiver described in Section 3.5
is in effect, the Death Benefit provided in this Article III
shall be paid. If a Participant Retires while the waiver
described in Section 3.5 after becoming Disabled or attains his or
her Normal Retirement Date or commences to be paid pursuant to
Section 4.1(b), the Retirement Benefit provided in
Article IV shall be paid.
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(b)
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For
purposes hereof, either Disability and Disabled means unable to
engage in any substantial gainful activity (1) by reason of
any medically determinable physical or mental impairment that can
be expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months, or
(2) by reason of any medically determinable physical or mental
impairment that can be expected to result in death or can be
expected to last for a continuous period of not less than twelve
(12) months, where the Participant is receiving income replacement
benefits for a period of not less than 3 months under an accident
and health plan covering employees of the Participant’s
Employer. For purposes of this Plan, a Participant shall
be deemed Disabled if determined to be totally disabled by the
Social Security Administration. A Participant shall also
be deemed Disabled if determined to be disabled in accordance with
the applicable disability insurance program of such
Participant’s Employer, provided that the definition of
“disability” applied under such disability insurance
program complies with the requirements hereof.
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Notwithstanding
the foregoing, a Participant will not be considered Disabled
unless:
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(1)
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such
Disability was not either intentionally self-inflicted or caused by
illegal or criminal acts of the Participant;
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(2)
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the
Participant was a Director at the time he or she became Disabled
(or was then on an authorized Leave of Absence) and had made all
payments required hereunder;
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(3)
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the
Participant's Plan Agreement has been kept in force until the time
of such Disability; and
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(4)
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the
Committee has approved the waiver of such fee and such waiver is so
noted in the Participant's Plan Agreement.
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The
determination of what constitutes a Disability or being
Disabled and the cessation of being Disabled for purposes of
this Section 3.8 shall be made by the Committee, in its
sole and absolute discretion, and such determination shall be
conclusive.
ARTICLE
IV
RETIREMENT BENEFIT
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4.1
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Payment at Normal Retirement Date .
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(a)
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If
a Participant has remained a Director until his or her Normal
Retirement Date and shall then Retire, and if the Plan and his or
her Plan Agreement have been kept in force, the Bank shall pay or
cause to be paid to such Participant, as a Retirement Benefit
(herein so called), the amount per month specified in his or her
Plan Agreement as a Retirement Benefit. Payment of such
monthly amount shall commence on the Participant's Normal
Retirement Date and shall continue for the life of the
Participant. If such Participant shall die before
receiving three hundred (300) monthly payments, the Retirement
Benefit will be continued to the Participant's Beneficiary as set
forth in the Beneficiary Designation until an aggregate of three
hundred (300) monthly payments has been paid to the Participant and
his or her Beneficiary.
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(b)
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This
Section 4.1(b) shall apply, effective January 1,
2008. In lieu of payment pursuant to the other
applicable provisions of this Article IV, if (1) any
portion of a Participant
’ s Retirement Benefit is earned or becomes vested
after December 31, 2004 and is thus subject to Code
Section 409A, (2) such a Participant has remained
a Director until his or her Normal Retirement Date (or, if later,
until February 29, 2008), and (3) the Plan and such
Participant’s Plan Agreement have been kept in force until
such time, the Retirement Benefit of such a Participant shall
commence to be paid on the Participant's Normal Retirement Date (or
if later, on March 1, 2008) and shall continue for the life of
the Participant. The amount of such monthly payment
shall be the amount per month specified in the Participant's Plan
Agreement on the Participant's Normal Retirement Date (increased
where applicable for interest at the rate of four percent (4%), or
such other rate as the Committee may determine from time to time,
per annum, compounded annually, to the Participant's Normal
Retirement Date (or if later, to March 1, 2008). If
such Participant shall die before receiving three hundred (300)
monthly payments, the Retirement Benefit will be continued to the
Participant's Beneficiary as set forth in the Beneficiary
Designation until an aggregate of three hundred (300) monthly
payments has been paid to the Participant and his or her
Beneficiary. Notwithstanding any other provisions of the
Plan, in the event a Participant commences to receive his or her
Retirement Benefit pursuant to this Section 4.1(b), there
shall be no further accrual of, or any increase to, the
Participant’s Retirement Benefit under the Plan after the
Participant’s Normal Retirement Date (or, if later,
February 29, 2008).
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