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Exhibit 10-f
EXECUTIVE
DEFERRAL PLAN
OF
TRUSTMARK
NATIONAL BANK, JACKSON, MISSISSIPPI
As Restated Effective as of December 31, 2007
(Group 1)
EXECUTIVE
DEFERRAL PLAN
OF
TRUSTMARK
NATIONAL BANK, JACKSON, MISSISSIPPI
As Restated Effective as of December 31, 2007
(Group 1)
PURPOSE
AND EFFECTIVE DATE
The
purpose of the Executive Deferral Plan of Trustmark National Bank,
Jackson, Mississippi is to provide specified benefits
to a select group of management and highly compensated
Employees 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 benefit plans established and maintained for a
select group of management or highly compensated
Employees. The effective date of this Plan is
January 1, 1993 and was restated effective January 1,
1996. 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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(a)
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"
Actuarially
Reduced " shall mean the present value of Participant's
Retirement Benefit as set forth in Item 3(a) of his or her Plan
Agreement at the time of Participant's Early Retirement Date (or
other applicable time) using a discount rate equal to the Aa
Corporate Bond Rate as published by Moody's Investors Services,
Inc. or its successor as of the date of Early Retirement (or other
applicable date).
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(b)
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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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(c)
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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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(d)
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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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(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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(j)
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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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(k)
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"
Covered
Salary " shall mean the amount specified in Item 1 of the
Plan Agreement that is used as a basis for computation of
Participant's Death and Retirement Benefits pursuant to the terms
and conditions of the Plan.
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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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(m)
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"
Disability" or
"Disabled " shall mean that a Participant is disabled as
provided in Section 3.2.
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(n)
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"
Early
Retirement Date " shall be the first day of the month next
following the date of a Participant's Retirement prior to his or
her Normal Retirement Date and following the month in which the
Participant attains his or her fifty-fifth (55th) birthday and has
completed five (5) full years of continuous employment as an
Employee of the Bank commencing on the date of his or her
commencement of participation in the Plan.
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(o)
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"
Employee "
shall mean any person who is in the full time employment of the
Bank or a Subsidiary, as determined by the personnel rules and
practices of the Bank or the Subsidiary.
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(p)
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“
Employer(s)
” shall be defined as follows:
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(1)
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Except
as otherwise provided in part (2) below, the term
“Employer” 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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(2)
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For
the purpose of determining whether a Participant has experienced a
Separation from Service, the term “Employer” shall
mean:
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(A)
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The
entity for which the Participant performs services and with respect
to which the legally binding right to compensation deferred or
contributed under this Plan arises; and
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(B)
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All
other entities with which the entity described above would be
aggregated and treated as a single employer 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 (i) Code
Section 1563 for determining a controlled group of corporations
under Code Section 414(b), and (ii) Treas. Reg. §1.414(c)-2
for determining the trades or businesses that are under common
control under Code Section 414(c).
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(q)
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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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(r)
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"
Good
Reason " shall mean (1) a demotion in the Employee’s
functional position, or the assignment to the Employee of duties or
responsibilities which are materially inconsistent with his or her
experience and skills; or (2) a material breach of this Plan by the
Bank, provided the Bank has not remedied such breach within thirty
(30) days of receipt of written notice of such breach.
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(s)
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"
Holding
Company " shall mean Trustmark Corporation.
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(t)
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"
Just
Cause " shall mean theft, fraud, embezzlement or willful
misconduct causing significant property damage to the Bank, the
Holding Company or any Subsidiary or personal injury to another
employee.
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(u)
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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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(v)
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"
Normal
Retirement Date " shall be the first day of the month
following the month in which the Participant attains his or her
sixty-fifth (65th) birthday.
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(w)
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"
Participant "
shall mean an Employee 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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(x)
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"
Plan " shall
mean the Executive Deferral Plan of Trustmark National Bank,
Jackson, Mississippi as amended from time to
time.
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(y)
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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 an Employee 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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(z)
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"
Retirement "
and " Retire " shall
mean severance of employment with the Bank at or after the
attainment of his or her Normal Retirement Date (sometimes referred
to as “Normal Retirement”) or, if earlier, at or after
attainment of his or her Early Retirement Date (sometimes referred
to as “Early Retirement”), in either case where Just
Cause does not exist.
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(aa)
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"
Retirement
Benefit " shall mean the benefit provided under Article IV
of the Plan.
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(bb)
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“
Separation from
Service ” or “ Separate from
Service ” shall mean a termination of services
provided by a Participant to his or her Employer, whether
voluntarily or involuntarily, other than by reason of death or
Disability, as determined by the Committee in accordance with
Treas. Reg. §1.409A-1(h). In determining whether a
Participant has experienced a Separation from Service, the
following provisions shall apply:
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(1)
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For
a Participant who provides services to an Employer as an employee,
except as otherwise provided in part (3) below, a Separation from
Service shall occur when such Participant has experienced a
termination of employment with such Employer. A
Participant shall be considered to have experienced a termination
of employment when the facts and circumstances indicate that the
Participant and his or her Employer reasonably anticipate that
either (i) no further services will be performed for the Employer
after a certain date, or (ii) that the level of bona fide services
the Participant will perform for the Employer after such date
(whether as an employee or as an independent contractor) will
permanently decrease to less than fifty percent (50%) of the
average level of bona fide services performed by such Participant
(whether as an Employee or an independent contractor) over the
immediately preceding thirty-six (36) month period (or the full
period of services to the Employer if the Participant has been
providing services to the Employer less than thirty-six (36)
months).
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If
a Participant is on military leave, sick leave, or other bona
fide leave of absence, the employment relationship between the
Participant and the Employer shall be treated as continuing
intact, provided that the period of such leave does not exceed
6 months, or if longer, so long as the Participant retains a
right to reemployment with the Employer under an applicable
statute or by contract. If the period of a military
leave, sick leave, or other bona fide leave of absence exceeds
6 months and the Participant does not retain a right to
reemployment under an applicable statute or by contract, the
employment relationship shall be considered to be terminated
for purposes of this Plan as of the first day immediately
following the end of such 6-month period. In
applying the provisions of this paragraph, a leave of absence
shall be considered a bona fide leave of absence only if there
is a reasonable expectation that the Participant will return
to perform services for the Employer.
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(2)
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For
a Participant who provides services to an Employer as an
independent contractor, except as otherwise provided in part (3)
below, a Separation from Service shall occur upon the expiration of
the contract (or in the case of more than one contract, all
contracts) under which services are performed for such Employer,
provided that the expiration of such contract(s) is determined by
the Committee to constitute a good-faith and complete termination
of the contractual relationship between the Participant and such
Employer.
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(3)
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For
a Participant who provides services to an Employer as both an
employee and an independent contractor , a Separation from
Service generally shall not occur until the Participant has ceased
providing services for such Employer as both as an employee and as
an independent contractor, as determined in accordance with the
provisions set forth in parts (1) and (2) above,
respectively. Similarly, if a Participant either (i)
ceases providing services for an Employer as an independent
contractor and begins providing services for such Employer as an
employee, or (ii) ceases providing services for an Employer as an
employee and begins providing services for such Employer as an
independent contractor, the Participant will not be considered to
have experienced a Separation from Service until the Participant
has ceased providing services for such Employer in both capacities,
as determined in accordance with the applicable provisions set
forth in parts (1) and (2) above.
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Notwithstanding
the foregoing provisions in this part (3), if a Participant
provides services for an Employer as both an employee and as a
member of the board of directors (a “Director”),
to the extent permitted by Treas. Reg. §1.409A-1(h)(5)
the services provided by such Participant as a Director shall
not be taken into account in determining whether the
Participant has experienced a Separation from Service as an
employee, and the services provided by such Participant as an
employee shall not be taken into account in determining
whether the Participant has experienced a Separation from
Service as a Director .
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(cc)
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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. §1.414(c)-2 for
determining the trades or businesses that are under common control
under Code Section 414(c).
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(dd)
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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 and is
maintained by an employer 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, an Employee must be selected by the
Committee in the year in which the Employee is eligible to
participate and in each succeeding year thereafter 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, an Employee shall, as a
condition precedent to participation herein, complete and return to
the Committee a duly executed Plan Agreement agreeing to the terms
and conditions thereof. Such Plan Agreement shall be
completed and returned to the Committee at the time specified
thereby and comply with such further conditions as may be
established and are determined in the sole discretion of the
Committee.
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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 and 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 (i) one
hundred percent (100%) of the Participant's Covered Salary as set
forth in the Plan Agreement paid monthly for the next twelve (12)
months after such death and (ii) seventy five percent (75%) of said
Participant's Covered Salary paid monthly for the next one hundred
and eight (108) months or until the Participant would have been age
sixty-five (65), whichever is later. 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 such Participant was an Employee and had not
Retired, or was Disabled or on authorized leave of absence, and his
or her Retirement Benefit has not commenced to be paid pursuant to
Section 4.1(b);
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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 Covered Salary; 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 Covered Salary;
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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(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), the Death Benefit provided in this Article III
shall be paid. If a Participant Retires after becoming
Disabled or attains his or her Normal Retirement Date, 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 an Employee at the time he or she became Disabled
(or was then on an authorized leave of absence); and
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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.
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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 3.2 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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Subject
to Section 4.1(b) and Section 4.7, if a Participant has remained an
Employee 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 one hundred and twenty (120) monthly payments,
the Retirement Benefit will be continued to the Participant's
Beneficiary as set forth in the Beneficiary Designation until an
aggregate of one hundred and twenty (120) 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,
notwithstanding any other provisions of the Plan other than Section
4.7(b). 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 an Employee until his or her
Normal Retirement Date (or, if later, until December 31, 2007), 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 January 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 January 1,
2008). If such Participant shall die before receiving
one hundred and twenty (120) monthly payments, the Retirement
Benefit will be continued to the Participant's Beneficiary as set
forth in the Beneficiary Designation until an aggregate of one
hundred and twenty (120) 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, December 31, 2007) unless the Committee provides for the
same in a Participant’s Plan Agreement (in which case any
additional accrual for a year shall commence to be paid on the next
anniversary date of the Participant’s Normal Retirement Date
and shall be payable for the Participant’s life, but there
shall be no extension of the one hundred and twenty (120) monthly
payment period for Retirement Benefits).
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(a)
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Subject
to Section 4.7, if a Participant has remained an Employee until his
or her Early 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 an Early
Retirement Benefit commencing as of the Participant's Early
Retirement Date. In such event, the Participant's
monthly Early Retirement Benefit shall be the Retirement Benefit
set forth in his or her Plan Agreement Actuarially Reduced to the
Participant's Early Retirement Date. The said reduced
monthly amount, payable for life shall be the only benefit to which
such Participant is entitled. If Participant shall die
before receiving one hundred and twenty (120) installments after
commencement of the Early Retirement Benefit, said amount will be
continued to Participant's Beneficiary as set forth in the
Beneficiary Designation until a total of one hundred and twenty
(120) installments have been paid to the Participant and his or her
Beneficiary.
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(b)
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A
Participant, in connection with his or her commencement of
participation in the Plan (or, if later, by December 31, 2008) and
consistent with the payment election rules of Code Section 409A
(including that the election does not cause amounts otherwise to be
paid in the calendar year of election to be deferred to a later
calendar year and does not cause amounts otherwise to be paid later
th
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