Exhibit 10J
EXECUTIVE DEFERRAL PLAN
OF
TRUSTMARK NATIONAL BANK, JACKSON, MISSISSIPPI
TRUSTMARK NATIONAL BANK, JACKSON, MISSISSIPPI
TABLE OF CONTENTS
Article Subject Page
- ------- ------- ----
I Definitions and Construction 1
II Eligibility and Participation 4
III Death Benefit 4
IV Retirement Benefit 5
V Beneficiary 6
VI Source of Benefits 6
VII Termination of Employment 7
VIII Termination of Participation 8
IX Termination, Amendment, Modification,
or Supplement of Plan 8
X Other Benefits and Agreements 9
XI Restrictions on Alienation of Benefits 9
XII Administration of this Plan 10
XIII Named Fiduciary and Claims Procedure 11
XIV Adoption of Plan by Subsidiary,
Affiliated or Associated Companies 13
XV Miscellaneous 13
Plan Agreement I-1
EXECUTIVE DEFERRAL PLAN
OF
TRUSTMARK NATIONAL BANK, JACKSON, MISSISSIPPI
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 welfare 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, amended and restated as of
January 1, 1996, and is further amended and restated as of January 1,1999.
ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.1 Definitions. For purposes of this Plan, the following phrases or terms
shall have the indicated meanings unless otherwise clearly apparent
from the context:
(a) "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.
(b) "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.
(c) "Board of Directors" shall mean the Board of Directors of
Trustmark National Bank, Jackson, Mississippi unless otherwise
indicated or the context otherwise requires.
(d) "Committee" shall mean the Employee Benefits Committee
appointed to manage and administer the Plan and individual
Plan Agreements in accordance with the provisions of Article
XII hereof.
(e) "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.
(f) "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.
(g) "Employee" shall mean any person who is in the full time
employment of the Bank or Subsidiary, as determined by the
personnel rules and practices of the Bank or a Subsidiary.
(h) "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.
(i) "Early Retirement Date" shall be the date of Participant's
Retirement prior to his or her Normal Retirement Date which
may occur on the first day of any month following the month in
which the Participant attains his or her fifty-fifth (55th)
birthday and has completed five (5) full years of
participation in the Plan.
(j) "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.
(k) "Plan" shall mean the Executive Deferral Plan of Trustmark
National Bank, Jackson, Mississippi as amended from time to
time.
(l) "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.
(m) "Retirement" and "Retire" shall mean severance of employment
with the Bank at or after the attainment of his or her Normal
Retirement Date or, with the consent of the Committee, at or
after attainment of his or her Early Retirement Date.
(n) "Just Cause" shall mean theft, fraud, embezzlement or willful
misconduct causing significant property damage to the Bank or
personal injury to another employee.
(o) "Disability" or "Disabled", as used herein, means permanent
and/or total Disability of the person referred to, as
determined by the Committee in its sole discretion.
(p) "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 using a discount rate as determined by the
Committee in its sole and absolute discretion not to exceed
the Monthly Average of the Composite Yield on Seasoned
Corporate Bonds as published by Moody's Investors Services,
Inc. or its successor as stated for the month of October
preceding December 31 of the year immediately prior to the
date of Early Retirement.
(q) "Change in Control" shall mean a Buyout, Merger, or
Substantial Change in Ownership.
(r) "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.
(s) "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.
(t) "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.
(u) "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.
(v) "Good Reason" shall mean (1) a demotion in the executive's
functional position, or the assignment to the executive 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.
(w) "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.
(x) "Holding Company" shall mean Trustmark Corporation.
1.2 Construction. 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.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 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.
2.2 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 in the sole discretion of the Committee.
ARTICLE III
DEATH BENEFIT
3.1 Amount and Payment of Death Benefit. If a Participant dies before
Retirement 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 Covered Salary as set forth in the Plan Agreement paid
monthly for the next twelve (12) months after such death and 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.
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:
(a) 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 totally Disabled or on authorized
leave of absence;
(b) 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;
(c) 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;
(d) 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
(e) Proof of death in such form as determined acceptable by the
Committee is furnished.
3.2 Total Disability. If a Participant becomes totally Disabled before
attaining Normal Retirement and subsequently dies before Retirement,
the Death Benefit provided in this Article III shall be paid. If a
Participant Retires after becoming Disabled, the Retirement Benefit
provided in Article IV shall be paid.
The determination of what constitutes total Disability and the removal
thereof for purposes of the Article III, shall be made by the
Committee, in its sole and absolute discretion, and such determination
shall be conclusive. Among other factors that the Committee will
consider are:
(a) Such Disability was not either intentionally self-inflicted or
caused by illegal or criminal acts of the Participant;
(b) The Participant was an Employee at the time he or she became
totally Disabled (or was then on authorized leave of absence);
and
(c) The Participant's Plan Agreement has been kept in force until
the time of such total Disability.
ARTICLE IV
RETIREMENT BENEFIT
4.1 Normal Retirement. 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 the balance of the one hundred and
twenty (120) monthly payments has been paid to the Participant and his
or her Beneficiary.
4.2 Early Retirement. The Committee, in its sole and absolute discretion,
may permit a Participant to receive an Early Retirement Benefit
commencing as of the first day of any month coincident with or
following the Participant's Early Retirement Date, but before the
attainment of his or her Normal 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 has been paid to the
Participant and his or her Beneficiary.
4.3 Post Retirement Death Benefit. If a Participant dies after Retirement
but before the applicable Retirement Benefit is paid in full, the
unpaid Retirement Benefit payments to which such Participant is
entitled shall continue and be paid to that Participant's Beneficiary.
Such payments shall be made in accordance with the payment schedule to
that Participant pursuant to Sections 4.1 of the Plan.
4.4 Exclusivity of Post Retirement Death Benefit. No Death Benefit as
defined in Article III shall be paid to the Beneficiary of a
Participant who dies after Retirement.
4.5 Accrual of Retirement Benefit. A Participant who ceases to be an
Employee before completion of one (1) full year of participation in the
Plan, except as a result of death, Retirement, total Disability within
the meaning of Section 3.5, or Just Cause at any time shall not be
entitled to any benefits hereunder and the Bank shall have no
obligation hereunder to such Participant.
4.6 Deferred Termination Benefit. A Participant who ceases to be an
Employee after the completion of one (1) full year of
participation in the Plan shall receive a portion of his or her
monthly Retirement Benefit upon the earlier of (i) the
Participant's death or (ii) attainment of his or her Normal
Retirement Date. Said portion shall be the monthly amount of the
Retirement Benefit set forth in the Participant's Plan Agreement
multiplied by a fraction, not to exceed one (1), the numerator of
which is the number of whole years said Employee was a
Participant in the Plan and the denominator of which is ten (10).
The resulting reduced monthly amount shall be the only benefit to
which such Participant is entitled. The reduced monthly amount
will be payable for life, if Participant so survives, at the
attainment of the Participant's Normal Retirement Date. If such
Participant shall die before receiving one hundred and twenty
(120) monthly payments, the reduced amount will be continued to
the Participant's Beneficiary as set forth in the Beneficiary
Designation until the balance of the one hundred and twenty (120)
monthly payments has been paid to the Participant and his or her
Beneficiary.
If Participant dies before attainment of his or her Normal Retirement
Date, the reduced monthly amount will be paid to Participant's
Beneficiary as set forth in Participant's Beneficiary Designation for
one hundred and twenty (120) months. Such payments shall commence
effective the first day of the month following the date of death.
ARTICLE V
BENEFICIARY
A Participant shall designate his or her Beneficiary to receive
benefits under the Plan and his or her Plan Agreement by completing the
Beneficiary Designation. If more than one Beneficiary is named, the shares
and/or precedence of each Beneficiary shall be indicated. A Participant shall
have the right to change the Beneficiary by submitting to the Committee a new
Beneficiary Designation. The Beneficiary Designation must be approved in writing
by the Bank; however, upon the Bank's acknowledgment of approval, the effective
date of the Beneficiary Designation shall be the date it was executed by the
Participant. If the Bank has any doubt as to the proper Beneficiary to receive
payments hereunder, it shall have the right to withhold such payments until the
matter is finally adjudicated. Any payment made by the Bank in good faith and in
accordance with the provisions of this Plan and a Participant's Plan Agreement
and Beneficiary Designation shall fully discharge the Bank from all further
obligations with respect to such payment.
ARTICLE VI
SOURCE OF BENEFITS
6.1 Benefits Payable from General Assets. Amounts payable hereunder shall
be paid exclusively from the general assets of the Bank, and no person
entitled to payment hereunder shall have any claim, right, security
interest, or other interest in any fund, trust, account, or other asset
of the Bank that may be looked to for such payment. The Bank's
liability for the payment of benefits hereunder shall be evidenced only
by this Plan and each Plan Agreement entered into between the Bank and
a Participant.
6.2 Investments to Facilitate Payment of Benefits. Although the Bank
is not obligated to invest in any specific asset or fund in order
to provide the means for the payment of any liabilities under
this Plan, the Bank may elect to do so and, in such event, no
Participant shall have any interest whatever in such asset or
fund. As a condition precedent to the Bank's obligation to
provide any benefits, including incremental increases in
benefits, under this Plan, the Participant shall, if so requested
by the Bank, provide evidence of insurability at standard and
other rates, in such amounts, and with such insurance carrier or
carriers as the Bank may require, including the results and
reports of previous Bank and other insurance carrier physical
examinations, taking such additional physical examinations as the
Bank may request, and taking any other action that the Bank may
request. If a Participant is requested to and does not or cannot
provide evidence of insurability as specified in the immediately
preceding sentence, then the Bank shall have no further
obligation to such Participant under this Plan, and such
Participant's Plan Agreement shall terminate, except as to
benefits previously granted. Notwithstanding the foregoing, if a
Participant cannot provide evidence of insurability at standard
rates or for the amounts initially contemplated in connection
with his or her participation in the Plan, the Bank may, at its
discretion, permit the Participant to participate herein for such
benefits and upon such deferral of his or her compensation as the
Bank may, in its sole discretion, deem appropriate.
The Participant also understands and agrees that his or her
participation, in any way, in the acquisition of any such insurance
policy or any other general asset by the Bank shall not constitute a
representation to the Participant, his designated recipient, or any
person claiming through the Participant that any of them has a special
or beneficial interest in such general asset.
6.3 Bank Obligation. The Bank shall have no obligation of any nature
whatsoever to a Participant under this Plan or a Participant's Plan
Agreement, except otherwise expressly provided herein and in such Plan
Agreement.
6.4 Withholding of Information, Etc. If, in connection with a Participant's
enrolling in or applying for incremental benefit increases under the
Plan, the Bank requests the Participant to furnish evidence of
insurability, the Participant dies, and it is determined that the
Participant withheld, knowingly concealed, or knowingly provided false
information about the bodily or mental condition or conditions that
caused the Participant's death, the Bank shall have no obligation to
provide the benefits contracted for on the basis of such withholding,
concealment, or false information.
ARTICLE VII
TERMINATION OF EMPLOYMENT
Neither this Plan nor a Participant's Plan Agreement, either singly or
collectively, in any way obligate the Bank to continue the employment of a
Participant with the Bank nor does either limit the right of the Bank at any
time and for any reason to terminate the Participant's employment. Termination
of a Participant's employment with the Bank for any reason, whether by action of
the Bank, shall immediately terminate his or her participation in this Plan and
his or her Plan Agreement, and all further obligations of either party
thereunder, except as may be provided in Section 4.6 and/or Section 9.3. In no
event shall this Plan or a Plan Agreement, either singly or collectively, by
their terms or implications constitute an employment contract of any nature
whatsoever between the Bank and a Participant.
ARTICLE VIII
TERMINATION OF PARTICIPATION
8.1 Termination of Participation - General. A Participant reserves the
right to terminate his or her participation in this Plan and his or her
Plan Agreement at his or her election at any time by giving the
Committee written notice of such termination not less than 30 days
prior to an anniversary date of the date of execution of his or her
Plan Agreement. A Participant's termination shall be effective as soon
as administratively convenient after such anniversary date.
8.2 Rights After Termination of Participation. Participants who elect to
terminate participation in the Plan after one (1) full year of
participation but before eligibility for Retirement will be entitled to
the same benefits as a Participant who ceases to be an Employee as
described in Section 4.6. Such Participants will not be entitled to a
Death Benefit under Article III.
ARTICLE IX
TERMINATIONS, AMENDMENTS, MODIFICATION OR
SUPPLEMENT OF PLAN
9.1 Termination Amendment, Etc. The Bank reserves the right to terminate,
amend, modify or supplement this Plan, wholly or partially, and from
time to time, at any time. The Bank likewise reserves the right to
terminate, amend, modify, or supplement any Plan Agreement, wholly or
partially, from time to time. Such right to terminate, amend, modify,
or supplement this Plan or any Plan Agreement shall be exercised for
the Bank by the Committee; provided, however, that:
(a) No action to terminate this Plan or a Plan Agreement shall be
taken except upon written notice to each Participant to be
affected thereby, which notice shall be given not less than
thirty (30) days prior to such action; and
(b) The Committee shall take no action to terminate this Plan or a
Plan Agreement with respect to a Participant or his or her
Beneficiary after the payment of any benefit has commenced in
accordance with Article III or Article IV but has not been
completed.
9.2 Rights and Obligations Upon Termination. Upon the termination of this
Plan or any Plan Agreements, by either the Committee or a Participant
in accordance with the provisions for such termination, neither this
Plan nor the Plan Agreement shall be of any further force and effect,
and no party shall have any further obligation under either this Plan
or any Plan Agreement so terminated except as may be provided for in
Section 4.6, Section 9.3, or the provisions of this Article IX.
9.3 Rights and Obligations Upon Termination as Result of "Change of
Control". In the event the Bank or Holding Company should undergo
a Change of Control to another corporation, firm or person and
within three (3) years of such Change of Control such
corporation, firm or person takes action to terminate this Plan
or a Participant in the Plan or if the executive resigns for Good
Reason such Participant will, nevertheless, be entitled to a
portion of his or her monthly Retirement Benefit upon the earlier
of (i) the Participant's death or (ii) attainment of his or her
Normal Retirement Date. Said portion shall be the monthly amount
of the Retirement Benefit set forth in the Participant's Plan Agreement
multiplied by a fraction, not to exceed one (1), the numerator of which
is the number of whole years said Employee was a Participant in the
Plan plus five (5) additional years and the denominator of which is ten
(10). The resulting reduced monthly amount shall be the only benefit to
which such Participant is entitled. The reduced monthly amount will be
payable for life, if Participant so survives, at the attainment of the
Participant's Normal Retirement Date. If such Participant shall die
before receiving one hundred and twenty (120) monthly payments, the
reduced amount will be continued to the Participant's Beneficiary as
set forth in the Beneficiary Designation until the balance of the one
hundred and twenty (120) monthly payments has been paid to the
Participant and his or her Beneficiary. If Participant dies before
attainment of his or her Normal Retirement Date, the reduced monthly
amount will be paid to Participant's Beneficiary as set forth in
Participant's Beneficiary Designation for one hundred and twenty (120)
months. Such payments shall commence effective the first day of the
month following the date of death.
9.4 Revocation. In the event Participant is discharged for Just Cause at
any time, this Plan and his or her Plan Agreement shall be terminated
and considered null and void with neither the Participant nor
Participant's Beneficiary having any claim or right against Bank
thereafter.
ARTICLE X
OTHER BENEFITS AND AGREEMENTS
The benefits provided for a Participant and his or her Beneficiary
hereunder and under such Participant's Plan Agreement are in addition to any
other benefits available to such Participant under any other program or plan of
the Bank for its Employees, and, except as may otherwise be expressly provided
for, this Plan and Plan Agreements entered into hereunder shall supplement and
shall not supersede, modify, or amend any other program or plan of the Bank or a
Participant. Moreover, benefits under this Plan and Plan Agreements entered into
hereunder shall not be considered compensation for the purpose of computing
deferrals or benefits under any plan maintained by the Bank that is qualified
under section 401 (a) of the Internal Revenue Code of 1954, as amended.
ARTICLE XI
RESTRICTIONS ON ALIENATION OF BENEFITS
No right or benefit under this Plan or a Plan Agreement shall be
subject to anticipation, alienation, sale, assignment, pledge, encumbrance, or
charge, and any attempt to anticipate, alienate, sell, assign, pledge, encumber,
or charge the same shall be void. No right or benefit hereunder or under any
Plan Agreement shall in any manner be liable for or subject to the debts,
contract, liabilities, or torts of the person entitled to such benefit. If any
Participant or Beneficiary under this Plan or a Plan Agreement should become
bankrupt or attempt to anticipate, alienate, sell, assign, pledge, encumber, or
charge any right to a benefit hereunder or under any Plan Agreement, then such
right or benefit shall, in the discretion of the Committee, terminate, and, in
such event, the Committee shall hold or apply the same or any part thereof for
the benefit of such Participant or Beneficiary, his or her spouse, children, or
other dependents, or any of them, in such manner and in such portion as the
Committee, in its sole and absolute discretion, may deem proper.
ARTICLE XII
ADMINISTRATION OF THIS PLAN
12.1 Appointment of Committee. The general administration of this Plan, and
any Plan Agreements executed hereunder, as well as construction and
interpretation thereof, shall be vested in the Committee, the number
and members of which shall be designated and appointed from time to
time by, and shall serve at the pleasure of, the Board of Directors.
Any such member of the Committee may resign by notice in writing filed
with the secretary of the Committee. Vacancies shall be filled promptly
by the Board of Directors but any vacancies remaining unfilled for
ninety days may be filled by a majority vote of the remaining members
of the Committee. Each person appointed a member of the Committee shall
signify his or her acceptance by filing a written acceptance with the
secretary of the Committee.
12.2 Committee Officials. The Board of Directors shall designate one of the
members of the Committee as chairman and shall appoint a secretary who
need not be a member of the Committee. The secretary shall keep minutes
of the Committee's proceedings and all data, records and documents
relating to the Committee's administration of this Plan and any Plan
Agreements executed hereunder. The Committee may appoint from its
number such subcommittees with such powers as the Committee shall
determine and may authorize one or more of its members or any agent to
execute or deliver any instrument or make any payment on behalf of the
Committee.
12.3 Committee Action. All resolutions or other actions taken by the
Committee shall be by the vote of a majority of those members present
at a meeting at which a majority of the members are present, or in
writing by all the members at the time in office if they act without a
meeting.
12.4 Committee Rules and Powers - General. Subject to the provisions of this
Plan, the Committee shall from time to time establish rules, forms, and
procedures for the administration of this Plan, including Plan
Agreements. The Committee shall have the exclusive right to determine,
among other matters, (i) total Disability with respect to a Participant
and (ii) the degree thereof, either or both determinations to be made
on the basis of such medical and/or other evidence that the Committee,
in its sole and absolute discretion, may require. Such decisions,
actions, and records of the Committee shall be conclusive and binding
upon the Bank and all person having or claiming to have any right or
interest in or under this Plan.
12.5 Reliance on Certificate, etc. The members of the Committee and the
officers and directors of the Bank shall be entitled to rely on all
certificates and reports made by any duly appointed accountants, and on
all opinions given by any duly appointed legal counsel. Such legal
counsel may be counsel for the Bank.
12.6 Liability of Committee. No member of the Committee shall be
liable for any act or omission of any other member of the
Committee, or for any act or omission on his or her own part,
excepting only his or her own willful misconduct. The Bank shall
indemnify and save harmless each member of the Committee against
any and all expenses and liabilities arising out of his or her
membership on the Committee, excepting only expenses and
liabilities arising out of his or her own willful misconduct.
Expenses against which a member of the Committee shall be
indemnified hereunder shall include, without limitation, the
amount of any settlement or judgment, costs, counsel fees, and
related charges reasonably incurred in connection with a claim
asserted, or a proceeding brought, or settlement thereof. The
foregoing right of indemnification shall be in addition to any
other rights to which any such member may be entitled as a matter
of law.
12.7 Determination of Benefits. In addition to the powers hereinabove
specified, the Committee shall have the power to compute and certify,
under this Plan and any Plan Agreement, the amount and kind of benefits
from time to time payable to Participants and their Beneficiaries, and
to authorize all disbursements for such purposes.
12.8 Information to Committee. To enable the Committee to perform its
functions, the Bank shall supply full and timely information to the
Committee on all matters relating to the compensation of all
Participants, their retirement, death or other cause for termination of
employment, and such other pertinent facts as the Committee may
require.
12.9 Manner and time of Payment of Benefits. The Committee shall have the
power, in its sole and absolute discretion, to change the manner and
time of payment of benefits to be made to a Participant or his or her
Beneficiary from that set forth in the Participant's Plan Agreement if
requested to do so by such Participant or Beneficiary.
ARTICLE XIII
NAMED FIDUCIARY AND CLAIMS PROCEDURE
13.1 Named Fiduciary. The named Fiduciary of the Plan for purposes of the
claims procedure under this Plan is the Chief Financial Officer.
13.2 Right to Change Named Fiduciary. The Bank shall have the right to
change the Named Fiduciary created under this Plan. The Bank shall also
have the right to change the address and telephone number of the Named
Fiduciary. The Bank shall give the Participant written notice of any
change of the Named Fiduciary, or any change in the address and
telephone number of the Named Fiduciary.
13.3 Procedure for Claims. Benefits shall be paid in accordance with the
provisions of this Plan. The Participant, or a designated recipient, or
any other person claiming through the Participant (hereinafter
collectively referred to as the "Claimant") shall make a written
request for the benefits provided under this Plan. This written claim
shall be mailed or delivered to the Named Fiduciary.
13.4 Notification of Denial of Claim. If the claim is denied, either wholly
or partially, notice of the decision shall be mailed to the Claimant
within a reasonable time period. This time period shall not exceed more
than 90 days after the receipt of the claim by the Named Fiduciary.
13.5 Procedure if Claim Denied. The Named Fiduciary shall provide a written
notice to every Claimant who is denied a claim for benefits under this
Plan. The notice shall set forth the following information:
(a) the specific reasons for the denial;
(b) the specific reference to pertinent plan provisions on which
the denial is based;
(c) a description of any additional material or information
necessary for the Claimant to perfect the claim and an
explanation of why such material or information is necessary;
and
(d) appropriate information and explanation of the claims
procedure under this Agreement so to permit the Claimant to
submit his claim for review.
13.6 Procedure for Appeal by Claimant. The claims procedure under this Plan
shall allow the Claimant a reasonable opportunity to appeal a denied
claim and to get a full and fair review of that decision from the Named
Fiduciary.
(a) The Claimant shall exercise his right of appeal by submitting
a written request for a review of the denied claim to the
Named Fiduciary. This written request for review must be
submitted to the Named Fiduciary within sixty (60) days after
receipt by the Claimant of the written notice of denial.
(b) The Claimant shall have the following rights under this appeal
procedure:
(1) to request a review upon written application to the
Named Fiduciary;
(2) to review pertinent documents with regard to the
Participant's benefit plan created under this Plan;
(3) the right to submit issues and comments in writing;
(4) to request an extension of time to make a written
submission of issues and comments; and
(5) to request that a hearing be held to consider
Claimant's appeal.
13.7 Procedure for Decision to Review Appeal. The decision on the review of
the denied claim shall promptly be made by the Named Fiduciary:
(a) within sixty (60) days after the receipt of the request for
review if no hearing is held; or
(b) within one hundred and twenty (120) days after the receipt of
the request for review, if an extension of time is necessary
in order to hold a hearing.
(1) If an extension of time is necessary in order to hold
a hearing, the Named Fiduciary shall give the
Claimant written notice of the extension of time and
of the hearing. This notice shall be given prior to
any extension.
(2) The written notice of extension shall indicate that
an extension of time will occur in order to hold a
hearing on Claimant's appeal. The notice shall also
specify the place, date, and time of that hearing and
the Claimant's opportunity to participate in the
hearing. It may also include any other information
the Named Fiduciary believes may be important or
useful to the Claimant in connection with the appeal.
13.8 Discretion of Fiduciary for Hearing. The decision to hold a hearing to
consider the Claimant's appeal of the denied claim shall be within the
sole discretion of the Named Fiduciary, whether or not the Claimant
requests such a hearing.
13.9 Procedure After Review. The Named Fiduciary's decision on review shall
be made in writing and provided to the Claimant within the specified
time periods in Section 13.7. This written decision on review shall
contain the following information:
(a) the decision(s);
(b) the reasons for the decision(s); and
(c) specific references to the Plan provisions of the Plan on
which the decision(s) is/are based.
ARTICLE XIV
ADOPTION OF PLAN BY SUBSIDIARY,
AFFILIATED OR ASSOCIATED COMPANIES
Any corporation that is a Subsidiary may, with the approval of the
Board of Directors, adopt this Plan and thereby come within the definition of
Bank in Article I hereof.
ARTICLE XV
MISCELLANEOUS
15.1 Execution of Receipts and Releases. Any payment to any Participant, a
Participant's legal representative, or Beneficiary in accordance with
the provisions of this Plan or Plan Agreement executed hereunder shall,
to the extent thereof, be in full satisfaction of all claims hereunder
against the Bank. The Bank may require such Participant, legal
representative, or Beneficiary, as a condition precedent to such
payment, to execute a receipt and release therefore in such form as it
may determine.
15.2 No Guarantee of Interests. Neither the Committee nor any of its members
guarantees the payment of any amounts which may be or become due to any
person or entity under this Plan or any Plan Agreement executed
hereunder. The liability of the Bank to make any payment under this
Plan or any Plan Agreement executed hereunder is limited to the then
available assets of the Bank.
15.3 Bank Records. Records of the Bank as to a Participant's employment,
termination of employment and the reason therefor authorized leaves of
absence, and compensation shall be conclusive on all persons and
entities, unless determined to be incorrect.
15.4 Evidence. Evidence required of anyone under this Plan and any Plan
Agreement executed hereunder may be by certificate, affidavit,
document, or other information which the person or entity acting on it
considers pertinent and reliable, and signed, made, or presented by the
proper party or parties.
15.5 Notice. Any notice which shall be or may be given under this Plan or a
Plan Agreement executed hereunder shall be in writing and shall be
mailed by United States mail, postage prepaid. If notice is to be given
to the Bank, such notice shall be addressed to the Bank at:
Trustmark National Bank, Jackson, Mississippi
Box 291
Jackson, Mississippi 39205
marked to the attention of the Secretary, Administrative Committee,
Executive Deferral Plan; or, if notice to a Participant, addressed to
the address shown on such Participant's Plan Agreement.
15.6 Change of Address. Any party may, from time to time, change the address
to which notices shall be mailed by giving written notice of such new
address.
15.7 Effect of Provisions. The provisions of this Plan and of any Plan
Agreement executed hereunder shall be binding upon the Bank and its
successors and assigns, and upon a Participant, his or her Beneficiary,
assigns, heirs, executors, and administrators.
15.8 Headings. The titles and headings of Articles and Sections are included
for convenience of reference only and are not to be considered in the
construction of the provisions hereof or any Plan Agreement executed
hereunder.
15.9 Governing Law. All questions arising with respect to this Plan and any
Plan Agreement executed hereunder shall be determined by reference to
the laws of the State of Mississippi, as in effect at the time of their
adoption and execution, respectively.