EXHIBIT 10.5


 


Tennessee Commerce Bank


 


FORM OF SALARY CONTINUATION PLAN


 


THIS SALARY CONTINUATION PLAN AGREEMENT (this “Agreement”) is entered into as of this 19th day of May, 2009 by and
between Tennessee Commerce Bank and Tennessee Commerce Bancorp, Inc.
(collectively, the “Employer”), and                        ,
an individual resident of Tennessee (the “Executive”).


 


WHEREAS, the Executive has contributed substantially to the success of the
Employer and the Employer desires that the Executive continue in its employ;


 


WHEREAS, to encourage the Executive to remain an employee of the Employer, the
Employer is willing to provide salary continuation benefits to the Executive,
payable out of the Employer’s general assets; and


 


WHEREAS, the parties hereto intend that this Agreement shall be considered an
unfunded arrangement maintained primarily to provide supplemental retirement
benefits for the Executive, and shall be considered a plan described in Section
301(a)(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).


 


WHEREAS, this Plan is intended to comply with the requirements of Internal
Revenue Code Section 409A. Accordingly, the intent of the parties hereto
is that the Plan shall be operated and interpreted consistent with the requirements
of Section 409A.


 


NOW THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows.


 


ARTICLE 1

DEFINITIONS


 


Whenever
used in this Agreement, the following terms have the meanings specified


 


1.1           “Accrual Balance” means
the liability that should be accrued by the Employer under accounting
principles generally accepted in the United States (“GAAP”) for the Employer’s obligation to the Executive under
this Agreement, by applying Accounting Principles Board Opinion No. 12, as
amended by Statement of Financial Accounting Standards No. 106, and the
calculation method and discount rate specified hereinafter. The Accrual Balance
shall be determined by the liability accrued by the Employer as of the
Effective Date. The Accrual Balance shall be calculated assuming a level
principal amount and interest as the discount rate is accrued each period. The
principal accrual is determined such that when it is credited with interest
each month, the Accrual Balance at Normal Retirement Age equals the present
value of the normal retirement benefits described in Section 2.1. At the
end of each Plan Year, the Accrual Balance shall be adjusted to reflect the
Employer’s obligation under Sections


 

















 


2.1
in terms of the Executive’s actual base salary for that Plan Year. The discount
rate means the rate used by the Plan Administrator for determining the Accrual
Balance. The rate is based on the yield on a 20-year corporate bond rated Aa by
Moody’s, rounded to the nearest 1/4%, or as otherwise determined by the
governing Regulatory Body. The initial discount rate is 5.00%. In its sole
discretion, the Plan Administrator may adjust the discount rate to maintain the
rate within reasonable standards according to GAAP and consistent with the
Interagency Advisory on Accounting for Deferred Compensation Agreements which
states that the “cost of those benefits shall be accrued over that period of
the employee’s service in a systematic and rational manner.”


 


1.2           “Beneficiary” means each
designated person, or the estate of the deceased Executive, entitled to benefits, if any, upon the death of the
Executive, determined according to Article 4.


 


1.3           “Beneficiary Designation Form”
means the form established from time to time by the Plan Administrator that the Executive completes, signs, and
returns to the Plan Administrator to designate one or more Beneficiaries.


 


1.4           “Board” means the Board of
Directors of the Employer.


 


1.5           “Change in Control” For
the purposes of this Agreement, the term Change in Control means a change in
the ownership or effective control of either or both of Tennessee Commerce Bank
and Tennessee Commerce Bancorp, Inc., or in the ownership of a substantial
portion of the assets of either or both of Tennessee Commerce Bank and
Tennessee Commerce Bancorp, Inc., as such change is defined under the
default definition in Treasury Regulation §1.409A-3(i)(5) or any
subsequently applicable Treasury Regulation.


 


1.6           “Disability” means a
condition that results in Executive’s (i) being unable to engage in any
substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or can be expected
to last for a continuous period of not less than twelve months or, (ii) by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not less than 12 months, receiving income replacement benefits for a period
of not less than three months under an accident and health plan covering
employees of Employer.


 


1.7           “Early Retirement Date”
means the date of the Executive’s Termination of Employment with the Employer
for reasons other than death, Disability, Termination for Cause, termination
under Article 5 of this Agreement, or within twenty-four (24) months after
a Change in Control, provided, however, that an Early Retirement Date may only
occur following both the completion of ten (10) Years of Service with the
Employer and attaining age sixty-two (62).


 


1.8           “Effective Date” means January 1,
2009.


 


1.9           “ERISA” means the Employee
Retirement Income Security Act of 1974.


 


1.10         “Final Base Salary” means
the Executive’s average annual base salary for the highest three (3) year
period ending at Executive’s Normal Retirement Date.


 


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1.11         “Normal Retirement Age”
means age sixty-five (65).


 


1.12         “Normal Retirement Date”
means the date of the Executive’s Termination of Employment on or after the
Executive reaches Normal Retirement Age, other than a Termination of Employment
due to the Executive’s death, Termination for Cause or following a Change in
Control.


 


1.13         “Plan Administrator” means
the plan administrator described in Article 9.


 


1.14         “Plan Year” means a
twelve-month period commencing on January 1, and ending on December 31
of each year. The initial Plan Year shall commence on the Effective Date of
this Agreement and end on December 31 of the year in which occurs the
Effective Date.


 


1.15         “Regulatory Body” refers
to The Office of the Comptroller of the Currency (OCC), the Board of Governors
of the Federal Reserve System (FRB), the Federal Deposit Insurance Corporation
(FDIC), and the Office of Thrift Supervision (OTS), also known as “the
agencies.”


 


1.16         “Termination for Cause”
and “Cause” shall have the same
definition specified in any effective severance or employment agreement
existing on the date hereof or hereafter entered into between the Executive and
the Employer. If the Executive is not a party to a severance or employment
agreement containing a definition of termination for cause, Termination for
Cause means the Employer terminates the Executive’s employment because of:


 


(a)           fraud;


 


(b)           embezzlement;


 


(c)           conviction of or plea of nolo contendere by the Executive of any
felony;


 


(d)           a material breach of, or the willful failure or refusal by the
Executive to perform and discharge the Executive’s duties, responsibilities and
obligations under this Agreement;


 


(e)           any act of moral turpitude or willful misconduct by the Executive
intended to result in personal enrichment of the Executive at the expense of
the Employer, or any of its affiliates or which has a material adverse impact
on the business or reputation of the Employer or any of its affiliates (such
determination to be made by the Board in its reasonable judgment);


 


(f)            intentional material damage to the property
or business of the Employer;


 


(g)           gross negligence; or


 


(h)           the ineligibility of the Executive to perform his duties because of a
ruling, directive or other action by any agency of the United States or any
state of the United States having regulatory authority over the Employer; but
in each case only if


 


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(1)           the Executive has been provided with written notice of any assertion
that there is a basis for termination for cause which notice shall specify in reasonable detail specific facts regarding
any such assertion,


 


(2)           such written notice is provided to the Executive a reasonable time (and
in any event no less than three business days) before the Board meets to
consider any possible termination for cause,


 


(3)           at or prior to the meeting of the Board to consider the matters
described in the written notice, an opportunity is provided to the Executive
and his counsel to be heard before the Board with respect to the matters
described in the written notice,


 


(4)           any resolution or other Board action held with respect to any
deliberation regarding or decision to terminate the Executive for cause is duly
adopted by a vote of at least two-thirds of the entire Board (excluding the
Executive) at a meeting of the Board duly called and held, and


 


(5)           the Executive is promptly provided with a copy of the resolution or
other corporate action taken with respect to such termination. No act or
failure to act by the Executive shall be considered willful unless done or
omitted to be done by him not in good faith and without reasonable belief that
his action or omission was in the best interests of the Employer. The
unwillingness of the Executive to accept any or all of a material change in the
nature or scope of his position, authorities or duties, a reduction in his
total compensation or benefits, a relocation that he deems unreasonable in
light of his personal circumstances, or other action by or request of the
Employer in respect of his position, authority, or responsibility that he
reasonably deems to be contrary to this Agreement, may not be considered by the
Board to be a failure to perform or misconduct by the Executive.


 


1.17         “Termination of Employment”
with the Employer means that the Executive shall have ceased to be employed by
the Employer for reasons other than death, excepting a leave of absence
approved by the Employer. Whether a termination of employment has occurred is
determined based on whether the facts and circumstances indicate that the
Employer and the Executive reasonably anticipated that no further services
would be performed after a certain date or that the level of bona fide services
the Executive would perform after such date (whether as an employee or as an
independent contractor) would permanently decrease to less than twenty-five
percent (25%) of the average level of bona fide services performed (whether as
an employee or an independent contractor) over the immediately preceding
twenty-four (24) month period (or the full period of services to the Employer
if the Executive has been providing services to the Employer less than
twenty-four (24) months).


 


1.18         “Vesting” means the
executive’s absolute right to the benefit, or portion thereof, as outlined in
this agreement. The Executive shall become one hundred percent (100%) vested in
the Accrual Balance earned as of the last day of the immediately preceding Plan
Year upon completing ten (10) years of service with the Employer.
Thereafter, the Executive shall be one hundred percent (100%) vested in the
Accrual Balance earned as of the last day of the Plan Year during each
additional year of service, until attaining Normal Retirement Age or Early
Retirement Date, whichever occurs sooner.


 


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1.19         “Year of Service” means
each full calendar year the Executive is employed by the Employer.


 


ARTICLE 2

RETIREMENT BENEFITS


 


2.1           Normal Retirement Benefit. Upon the Executive’s Termination of
Employment on or after Normal Retirement Date for reason other than death, the
Executive shall be eligible to receive the benefit described in this Section 2.1
in lieu of any other benefit under Article 2 of this Agreement. Such
benefit shall consist of one hundred eighty (180) identical monthly payments.
Each such monthly payment shall be equal to the Executive’s Final Base Salary
divided by forty-eight (48). Such payments shall begin on the first day of the
month after the month in which the Executive’s Normal Retirement Date occurs.


 


2.2           Early Retirement Benefit. Upon the Executive’s Early Retirement Date,
the Executive shall be eligible to receive the benefit described in this Section 2.2
in lieu of any other benefit under Article 2 of this Agreement. Such
benefit shall consist of one hundred eighty (180) identical monthly payments.
Each such monthly payment shall be equal to the Accrual Balance earned as of
the last day of the Plan Year immediately preceding the Executive’s Early
Retirement Date divided by one hundred eighty (180), and payments shall begin
on the first day of the month after the month in which the Executive’s Early
Retirement Date occurs.


 


2.3           Disability Benefit. Upon the Executive’s Termination of
Employment due to a Disability before reaching Normal Retirement Age, the
Executive shall be eligible to receive the benefit described in this Section 2.3
in lieu of any other benefit under this Agreement. Such benefit shall consist
of one hundred eighty (180) identical monthly payments. Each such monthly
payment shall be equal to the Accrual Balance earned as of the last day of the
Plan Year immediately preceding the Executive’s Termination of Employment
divided by one hundred eighty (180), and payments shall begin on the first day
of the month after the month in which the Executive’s employment is terminated
due to Disability.


 


2.4           Change in Control Benefit. Notwithstanding the foregoing, upon a
Termination of Employment within the period beginning 12 months before and
ending 24 months following a Change of Control of the Company, the Executive
shall be paid an amount equal to the present value of the Normal Retirement
benefit set forth in Section 2.1, or the Executive’s Accrual Balance as of
the last day of the Plan Year preceding the effective date of the Change in
Control, whichever is greater. Such lump sum payment shall be made within
thirty (30) days after the later of the Executive’s Termination of Employment
or the Change in Control.


 


2.5           Restriction on Timing of Distributions. Notwithstanding the applicable
provisions of this Agreement regarding timing of payments, the following
special rules shall apply if the stock of the Company is publicly traded
at the time of the Executive’s termination of employment in order for this
Agreement to comply with section 409A of the Internal Revenue Code (the “Code”):
(i) to the extent the Executive is a “specified employee” (as defined
under section 409A of the Code) at the time of a distribution and to the extent
such applicable provisions of section 409A of the Code and the regulations
thereunder require a delay of such distributions by a six-month period after
the date of such Executive’s separation from service


 


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with
the Company, no such distribution shall be made prior to the date that is six
months after the date of the Executive’s separation from service with the Company,
and (ii) any such delayed payments shall be paid to the Executive in a
single lump sum within five business days after the end of the six-month delay.


 


2.6           Change in Form or Timing of
Distributions. All changes
in the form or timing of distributions hereunder must comply with the following
requirements. The changes:


 


(a)           may not accelerate the time or schedule of any distribution, except as
provided in section 409A of the Code and the regulations thereunder;


 


(b)           must, for benefits distributable under Sections 2.1, 2.2, 2.3 and 2.4,
be made at least twelve (12) months prior to the first scheduled distribution;


 


(c)           must, for benefits distributable under Sections 2.1, 2.2, 2.3 and 2.4,
delay the commencement of distributions for a minimum of five (5) years
from the date the first distribution was originally scheduled to be made; and


 


(d)           must take effect not less than twelve (12) months after the election is
made.


 


2.7           One Benefit Only. Despite any contrary provision of this
Agreement, the Executive and Beneficiary are entitled to one benefit only under
Article 2 of this Agreement, which shall be determined by the first event
to occur that is dealt with by Article 2 of this Agreement. Subsequent
occurrence of events dealt with by this Article 2 shall not entitle the
Executive or the Executive’s Beneficiary to other or additional benefits under Article 2.


 


2.8           Compliance with Section 409A. This Agreement shall be interpreted and
administered consistent with section 409A of the Code. Notwithstanding anything
herein to the contrary in this Agreement, to the extent that any benefit under
this Agreement that is nonqualified deferred compensation (within the meaning
of section 409A of the Code) is payable upon Executive’s termination of
employment, such payment(s) shall be made only upon Executive’s “Separation
from Service” pursuant to the default definition in Treasury Regulation section
1.409A-1(h).


 


2.9           Reduction for Consulting and Noncompetition
Payments. Notwithstanding
anything herein to the contrary, monthly payments under this Agreement shall be
reduced by any payments to the Executive paid under consulting and/or
noncompetition agreements.


 


2.10         Termination for Cause. Notwithstanding anything herein to the
contrary, no benefits are payable hereunder in the event Executive’s employment
is terminated for “Cause.” For these purposes, “Cause” shall mean (a) fraud;
(b) embezzlement; (c) conviction of or plea of nolo contendere by the
Executive of any felony; (d) a material breach of, or the willful failure
or refusal by the Executive to perform and discharge the Executive’s duties,
responsibilities and obligations under this Agreement; (e) any act of
moral turpitude or willful misconduct by the Executive intended to result in
personal enrichment of the Executive at the expense of the Employer, or any of
its affiliates or which has a material adverse impact on the business or
reputation of the Employer or any of its affiliates (such determination to be
made by the Board in


 


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its
reasonable judgment); (f) intentional material damage to the property or
business of the Employer; (g) gross negligence; or (h) the
ineligibility of the Executive to perform his duties because of a ruling,
directive or other action by any agency of the United States or any state of
the United States having regulatory authority over the Employer; but in each
case only if (1) the Executive has been provided with written notice of
any assertion that there is a basis for termination for cause which notice
shall specify in reasonable detail specific facts regarding any such assertion,
(2) such written notice is provided to the Executive a reasonable time
(and in any event no less than three business days) before the Board meets to
consider any possible termination for cause, (3) at or prior to the
meeting of the Board to consider the matters described in the written notice,
an opportunity is provided to the Executive and his counsel to be heard before
the Board with respect to the matters described in the written notice, (4) any
resolution or other Board action held with respect to any deliberation
regarding or decision to terminate the Executive for cause is duly adopted by a
vote of at least two-thirds of the entire Board (excluding the Executive) at a
meeting of the Board duly called and held, and (5) the Executive is
promptly provided with a copy of the resolution or other corporate action taken
with respect to such termination. No act or failure to act by the Executive
shall be considered willful unless done or omitted to be done by him not in
good faith and without reasonable belief that his action or omission was in the
best interests of the Employer. The unwillingness of the Executive to accept
any or all of a material change in the nature or scope of his position,
authorities or duties, a reduction in his total compensation or benefits, a
relocation that he deems unreasonable in light of his personal circumstances,
or other action by or request of the Employer in respect of his position, authority,
or responsibility that he reasonably deems to be contrary to this Agreement,
may not be considered by the Board to be a failure to perform or misconduct by
the Executive.


 


ARTICLE 3

DEATH BENEFITS


 


3.1           Death during Active Service. If the Executive dies while employed by the
Employer, instead of any benefits payable under Article 2 of this
Agreement the Employer shall pay to the Executive’s Beneficiary an amount equal
to the Accrual Balance earned as of the last day of the Plan Year immediately
preceding the date of the Executive’s death. The Employer shall pay the death
benefit under this Section 3.1 within thirty (30) days after the Executive’s
death.


 


3.2           Death during Benefit Period. If the Executive dies after benefit
payments under Article 2 of this Agreement commences but before receiving
all such payments, or if the Executive is entitled to benefit payments under Article 2
but dies before payments commence, the remaining Accrual Balance shall be
payable to the Executive’s Beneficiary in accordance with the applicable
payment provisions of Article 2, until fully disbursed. Payments shall be
made in the same amounts they would have been made to the Executive had the
Executive survived.


 


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ARTICLE 4

BENEFICIARIES


 


4.1           Beneficiary Designations. The Executive shall have the right to
designate at any time a Beneficiary to receive any benefits payable under this
Agreement upon the death of the Executive. The Beneficiary designated under
this Agreement may be the same as or different from the beneficiary designation
under any other benefit plan of the Employer in which the Executive
participates.


 


4.2           Beneficiary Designation: Change. The Executive shall designate a Beneficiary
by completing and signing the Beneficiary Designation Form and delivering
it to the Plan Administrator or its designated agent. The Executive’s
Beneficiary designation shall be deemed automatically revoked if the
Beneficiary predeceases the Executive or if the Executive names a spouse as
Beneficiary and the marriage is subsequently dissolved. The Executive shall
have the right to change a Beneficiary by completing, signing, and otherwise
complying with the terms of the Beneficiary Designation Form and the Plan
Administrator’s rules and procedures, as in effect from time to time. Upon
the acceptance by the Plan Administrator of a new Beneficiary Designation Form,
all Beneficiary designations previously filed shall be cancelled. The Plan
Administrator shall be entitled to rely on the last Beneficiary Designation Form filed
by the Executive and accepted by the Plan Administrator before the Executive’s
death.


 


4.3           Acknowledgment. No designation or change in designation of
a Beneficiary shall be effective until received in writing by the Plan
Administrator or its designated agent.


 


4.4           No Beneficiary Designation. If the Executive dies without a valid
beneficiary designation, or if all designated Beneficiaries predecease the
Executive, then the Executive’s spouse shall be the designated Beneficiary. If
the Executive has no surviving spouse, the benefits shall be distributed to the
personal representative of the Executive’s estate.


 


4.5           Facility of Payment. If a benefit is payable to a minor, to a
person declared incapacitated, or to a person incapable of handling the
disposition of his or her property, the Employer may pay such benefit to the
guardian, legal representative, or person having the care or custody of the
minor, incapacitated person, or incapable person. The Employer may require
proof of incapacity, minority, or guardianship as it may deem appropriate
before distribution of the benefit. Distribution shall completely discharge the
Employer from all liability for the benefit.


 


ARTICLE 5

COVENANTS AGAINST

COMPETITION, SOLICITATION OR DISCLOSURE


 


5.1           Competition. For and in consideration of the benefits described herein, the
Executive shall not, either separately, jointly, or in association with others,
directly or indirectly, as an agent, employee, owner, partner, stockholder, or
otherwise, allow the Executive’s name to be used by, or establish, engage in,
or become interested in any business, trade, or occupation similar to the
business being conducted by the Employer, in any county in any of the States of
the United States in which the Employer’s business is currently being conducted
or is being


 


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conducted when the Executive’s separation from service occurs, as long
as the Employer, or any person, firm, or corporation deriving title to the
goodwill of, or shares from it, carries on a like business therein. The Company
and the Executive acknowledge that during the term of the Executive’s
employment the Executive has acquired and will acquire special knowledge and
skill that can be used to compete with the Employer. Furthermore, although not
a term or condition of this Agreement, the Company and the Executive
acknowledge that the Executive’s services are being and will be used by the
Employer in executive, managerial, and supervisory capacities throughout the
areas in which Company and the Bank conduct business.


 


5.2           Solicitation. For and in consideration of the benefits
described herein, the Executive shall not (x) directly or indirectly
solicit or attempt to solicit any customer of the Employer to accept or
purchase financial products or services of the same nature, kind or variety
currently being provided to the customer by the Employer or being provided to
the customer by the Employer when the Executive’s separation from service
occurs, (y) directly or indirectly influence or attempt to influence any
customer, joint venturer, or other business partner of the Employer to alter
that person or entity’s business relationship with the Employer in any way, and
(z) accept the financial products or services business of any customer or
provide financial products or services to any customer on behalf of anyone
other than the Employer. In addition, the Executive shall not solicit or
attempt to solicit and shall not encourage or induce in any way any employee,
joint venturer, or business partner of the Employer to terminate an employment
or contractual relationship with the Employer, and shall not hire any person
employed by Company or the Bank during the two-year period immediately before the
Executive’s employment termination or any person employed by the Employer
during the term of this covenant.


 


For
purposes of this Agreement the term customer shall mean any individual, joint
venturer, entity of any sort, or other business partner of the Employer with,
for, or to whom the Employer has provided financial products or services during
the final two years of the Executive’s employment with the Employer, or any
individual, joint venturer, entity of any sort, or business partner whom the
Employer has identified as a prospective customer of financial products or
services within the final two years of the Executive’s employment with the
Employer. For purposes of this Agreement the term financial products or
services shall mean any product or service that a financial institution or a
financial holding company could offer by engaging in any activity that is
financial in nature or incidental to such a financial activity under Section 4(k) of
the Bank Holding Company Act of 1956 and that is offered by the Company, the
Bank, or an affiliate on the date of the Executive’s employment termination,
including but not limited to banking activities and activities that are closely
related and a proper incident to banking, or other products or services of the
type in which the Executive was involved during the Executive’s employment with
the Employer. For purposes of this Agreement, the term affiliate means the Bank
and any entity that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with the Company.


 


5.3           Disclosure of Confidential Information. For and in consideration of the benefits
described herein, the Executive shall not reveal to any person, firm, or
corporation any confidential information of any nature concerning the Employer
or the business of the Company, the Bank, or affiliates. For purposes of this
Agreement the term confidential information shall mean any and all information
of the Company, the Bank, or affiliates that the Executive acquires or to which
the Executive has access that has not been disclosed publicly by the Employer
and


 


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that
is not a matter of common knowledge in the fields of work of the Employer.
Confidential information shall include but shall not be limited to trade
secrets, technical data, mailing lists, the names of suppliers and customers,
and the arrangements made from time to time with suppliers and customers.
Despite the foregoing, confidential information excludes information that — as
of the date hereof or at any time after the date hereof — is published or
disseminated without obligation of confidence or that becomes a part of the
public domain (x) by or through action of the Employer or (y) otherwise
than by or at the Executive’s direction. The covenant in this section 5.3 does
not prohibit disclosure required by an order of a court having jurisdiction or
a subpoena from an appropriate governmental agency or disclosure made by the
Executive in the ordinary course of business and within the scope of the
Executive’s authority.


 


5.4           Duration; No Impact on Existing Obligations
under Law or Contract. The
covenants in this Article 5 shall apply during the Executive’s employment
with the Company and throughout the ten year period following the Executive’s
Termination of Employment. The Executive acknowledges and agrees that nothing
in this Agreement is intended to or shall have any impact on the Executive’s
obligations as an officer or employee of the Employer to refrain from competing
against, soliciting customers, officers, or employees of, or disclosing
confidential information of the Employer while the Executive is serving as an
officer or employee of the Employer or thereafter, whether the Executive’s
obligations arise under applicable law or under an employment agreement or
otherwise.


 


5.5           Remedies. The Executive acknowledges and agrees that remedies at law for the
Executive’s breach of the covenants contained herein are inadequate and that
for violation of the covenants contained herein, in addition to any and all
legal and equitable remedies that may be available, the covenants may be
enforced by an injunction in a suit in equity without the necessity of proving
actual damage, and that a temporary injunction may be granted immediately upon
the commencement of any such suit, and without notice. The parties hereto
intend that the covenants contained in this Article 5 shall be deemed to
be a series of separate covenants, one for each county of each state in which
the Employer does business. If in any judicial proceeding a court refuses to
enforce any or all of the separate covenants, the unenforceable covenants shall
be deemed eliminated from the provisions hereof for the purposes of that
proceeding to the extent necessary to permit the remaining separate covenants
to be enforced. Furthermore, if in any judicial proceeding a court refuses to
enforce any covenant because of the covenant’s duration or extent, the covenant
shall be construed to have only the maximum duration or extent permitted by
law.


 


5.6           Forfeiture of payments under this Agreement. If the Executive breaches any of the
covenants in this Article 5, the Executive’s right to any of the payments
specified in this Agreement after the date of the breach shall be forever
forfeited and the right of the Executive’s designated beneficiary or estate to
any payments under this Agreement shall likewise be forever forfeited. This
forfeiture is in addition to and not instead of any injunctive or other relief
that may be available to the Company. The Executive further acknowledges and
agrees that any breach of any of the covenants in this Article 5 shall be
deemed a material breach by the Executive of this Agreement.


 


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ARTICLE 6

GENERAL LIMITATIONS


 


6.1           Termination for Cause. If the Executive experiences a Termination
of Employment which is a Termination for Cause, notwithstanding any provision
of this Agreement to the contrary, this Agreement and the Employer’s
obligations under this Agreement shall terminate as of the effective date of
the Termination for Cause.


 


6.2           Suicide or Misstatement. No benefits shall be paid under this
Agreement if the Executive commits suicide within two years after the Effective
Date of this Agreement or if the Executive makes any material misstatement of
fact on any application for life insurance purchased by the Employer.


 


6.3           Removal. Despite any contrary provision of this Agreement, if the Executive is
removed from office or permanently prohibited from participating in the
Employer’s affairs by an order issued under section 8(e) (4) or (g) (1) of
the Federal Deposit Insurance Act, 12 U.S.C. 1818(e) (4) or (g) (1),
all obligations of the Employer under this Agreement shall terminate as of the
effective date of the order.


 


6.4           Default. Despite any contrary provision of this Agreement, if the Employer is
in “default” or “in danger of default”, as those terms are defined in of
section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all
obligations under this Agreement shall terminate.


 


6.5           FDIC Open-Bank Assistance. All obligations under this Agreement shall
be terminated, except to the extent determined that continuation of the
contract is necessary for the continued operation of the Employer, at the time
the Federal Deposit Insurance Corporation enters into an agreement to provide
assistance to or on behalf of the Employer under the authority contained in
section 13(c) of the Federal Deposit Insurance Act, 12 U.S.C. 1823(c).


 


6.6           EESA Limitations. Notwithstanding anything herein to the
contrary, the terms of this Agreement shall be construed subject to the
limitations of the Emergency Economic Stabilization Act of 2008, as amended (“EESA”).
It is expressly understood that this Agreement will be enforced in a manner
which is consistent with Section 111 of EESA, as amended, and rules and
regulations currently issued and to be issued thereunder. Until such time that
the United States Treasury ceases to own any debt or equity or equity
securities of the Company acquired pursuant to the Capital Purchase Program,
the Company and Executive agree that all payments under this Agreement shall be
limited to the extent necessary to comply with Section 111 of EESA, as
amended. In the event of Executive’s termination of employment, payments to the
Executive shall not be made to the extent that the payment would otherwise
constitute a “golden parachute” as defined under Section 111(a) of
the EESA and any regulations issued thereunder.


 


6.7           280G Limitations. Notwithstanding anything herein to the
contrary, to the extent that payments under this Agreement would be “parachute
payments,” such payments shall be reduced to the extent that payments
hereunder, when aggregated with all other “parachute payments,” would not
create an “excess parachute payment” as such terms are defined in Section 280G
of the Code, as subsequently amended.


 


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ARTICLE 7

CLAIMS AND REVIEW PROCEDURES


 


7.1           Claims Procedure. A person or beneficiary (a “claimant”) who
has not received benefits under the Agreement that he or she believes should be
paid shall make a claim for such
benefits as follows —


 


7.1.1        Initiation - Written Claim. The claimant initiates a claim by submitting to the Plan Administrator
a written claim for the benefits. If the claim relates to the contents of a
notice received by the claimant, the claim must be made within 60 days after
the notice was received by the claimant. All other claims must be made within
180 days after the date of the event that caused the claim to arise. The claim
must state with particularity the determination desired by the claimant.


 


7.1.2        Timing of Plan Administrator Response. The Plan Administrator shall respond to such claimant within ninety
(90) days after receiving the claim. If the Plan Administrator determines that
special circumstances require additional time for processing the claim, the
Plan Administrator can extend the response period by an additional ninety (90)
days by notifying the claimant in writing, prior to the end of the initial
ninety (90)-day period, that an additional period is required. The notice of
extension must set forth the special circumstances and the date by which the
Plan Administrator expects to render its decision.


 


7.1.3        Notice of Decision. If
the Plan Administrator denies part or all of the claim, the Plan Administrator
shall notify the claimant in writing of such denial. The Plan Administrator
shall write the notification in a manner calculated to be understood by the
claimant. The notification shall set forth:


 


7.1.3.1     The specific reasons for the denial,


 


7.1.3.2     A reference to the specific provisions of the Agreement on which the
denial is based,


 


7.1.3.3     A description of any additional information or material necessary for
the claimant to perfect the claim and an explanation of why it is needed,


 


7.1.3.4     An explanation of the Agreement’s review procedures and the time limits
applicable to such procedures, and


 


7.1.3.5     A statement of the claimant’s right to bring a civil action under ERISA
section 502(a) following an adverse benefit determination on review.


 


7.2           Review Procedure. If the Plan Administrator denies part or
all of the claim, the claimant shall have the opportunity for a full and fair
review by the Plan Administrator of the denial, as follows


 


7.2.1        Initiation - Written Request. To initiate the review, the claimant, within 60 days after receiving
the Plan Administrator’s notice of denial, must file with the Plan
Administrator a written request for review.


 


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7.2.2        Additional Submissions - Information Access. The claimant shall then have the
opportunity to submit written comments, documents, records and other
information relating to the claim. The Plan Administrator shall also provide
the claimant, upon request and free of charge, reasonable access to, and copies
of, all documents, records and other information relevant (as defined in
applicable ERISA regulations) to the claimant’s claim for benefits.


 


7.2.3        Considerations on Review. In considering the review, the Plan Administrator shall take into
account all materials and information the claimant submits relating to the
claim, without regard to whether such information was submitted or considered
in the initial benefit determination.


 


7.2.4        Timing of Plan Administrator Response. The Plan Administrator shall respond in writing to such claimant
within sixty (60) days after receiving the request for review. If the Plan
Administrator determines that special circumstances require additional time for
processing the claim, the Plan Administrator can extend the response period by
an additional sixty (60) days by notifying the claimant in writing, prior to
the end of the initial sixty (60)-day period, that an additional period is
required. The notice of extension must set forth the special circumstances and
the date by which the Plan Administrator expects to render its decision.


 


7.2.5        Notice of Decision. The
Plan Administrator shall notify the claimant in writing of its decision on
review. The Plan Administrator shall write the notification in a manner
calculated to be understood by the claimant. The notification shall set forth —


 


7.2.5.1     The
specific reasons for the denial,


 


7.2.5.2     A reference to the specific provisions of the Agreement on which the
denial is based,


 


7.2.5.3     A statement that the claimant is entitled to receive, upon request and
free of charge, reasonable access to, and copies of, all documents, records and
other information relevant (as defined in applicable ERISA regulations) to the
claimant’s claim for benefits, and


 


7.2.5.4     A statement of the claimant’s right to bring a civil action under ERISA
Section 502(a).


 


ARTICLE 8

MISCELLANEOUS


 


8.1           Amendments and Termination. Subject to Section 8.13 of this Agreement,
(a) this Agreement may be amended solely by a written agreement signed by
the Employer and by the Executive, and (b) except for termination
occurring under Article 5, this Agreement may be terminated solely by a
written agreement signed by the Employer and by the Executive.


 


8.2           Binding Effect. This Agreement shall bind the Executive and
the Employer and their beneficiaries, survivors, executors, successors,
administrators, and transferees.


 


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8.3           No Guarantee of Employment. This Agreement is not an employment policy
or contract. It does not give the Executive the right to remain an employee of
the Employer, nor does it interfere with the Employer’s right to discharge the
Executive. It also does not require the Executive to remain an employee nor
interfere with the Executive’s right to terminate employment at any time.


 


8.4           Non-Transferability.  Benefits under this Agreement cannot
be sold, transferred, assigned, pledged, attached, or encumbered in any manner.


 


8.5           Tax Withholding. The Employer shall withhold any taxes that
are required to be withheld from the benefits provided under this Agreement.


 


8.6           Applicable Law. Except to the extent preempted by the laws
of the United States of America, the validity, interpretation, construction,
and performance of this Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee, without giving effect to
the principles of conflict of laws of such state.


 


8.7           Unfunded Arrangement. The Executive and the Executive’s
Beneficiary are general unsecured creditors of the Employer for the payment of
benefits under this Agreement. The benefits represent the mere promise by the
Employer to pay such benefits. The rights to benefits are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors. Any insurance on the
Executive’s life is a general asset of the Employer to which the Executive and
Beneficiary have no preferred or secured claim.


 


8.8           Severability. If any provision of this Agreement is held
invalid, such invalidity shall not affect any other provision of this
Agreement, and each such other provision shall continue in full force and
effect to the full extent consistent with law. If any provision of this
Agreement is held invalid in part, such invalidity shall not affect the
remainder of the provision, and the remainder of such provision together with
all other provisions of this Agreement shall continue in full force and effect
to the full extent consistent with law.


 


8.9           Headings. The headings of sections herein are included solely for convenience
of reference and shall not affect the meaning or interpretation of any
provision of this Agreement.


 


8.10         Notices. All notices, requests, demands, and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered by
hand or mailed, certified or registered mail, return receipt requested, with
postage prepaid. Unless otherwise changed by notice, notice shall be properly
addressed to the Executive if addressed to the address of the Executive on the
books and records of the Employer at the time of the delivery of such notice,
and properly addressed to the Employer if addressed to the Board of Directors,
at                                                                       ,
Tennessee                          .


 


8.11         Entire Agreement. This Agreement constitutes the entire
agreement between the Employer and the Executive concerning the subject matter
hereof. No rights are granted to the Executive under this Agreement other than
those specifically set forth herein.


 


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8.12         Payment of Legal Fees. In the event litigation ensues between the
parties concerning the enforcement of the obligations of the parties under this
Agreement, the Employer shall pay all costs and expenses in connection with
such litigation until such time as a final determination (excluding any appeals)
is made with respect to the litigation. If the Employer prevails on the
substantive merits of the each material claim in dispute in such litigation,
the Employer shall be entitled to receive from the Executive all reasonable
costs and expenses, including without limitation attorneys’ fees, incurred by
the Employer on behalf of the Executive in connection with such litigation, and
the Executive shall pay such costs and expenses to the Employer promptly upon
demand by the Employer.


 


8.13         Termination or Modification of Agreement Because
of Changes in Law, Rules or Regulations. The Employer is entering into this Agreement on the assumption that
certain existing tax laws, rules, and regulations will continue in effect in
their current form. If that assumption materially changes and the change has a
material detrimental effect on this Agreement, then the Employer reserves the
right to terminate or modify this Agreement accordingly, subject to the written
consent of the Executive, which shall not be unreasonably withheld. This Section 8.13
shall become null and void effective immediately if a Change in Control occurs.


 


ARTICLE 9

ADMINISTRATION OF AGREEMENT


 


9.1           Plan Administrator Duties. This Agreement shall be administered by a
Plan Administrator consisting of the Board of Directors of the Employer or such
committee or person(s) as the Board of Directors of the Employer shall
appoint. The Plan Administrator shall have the sole and absolute discretion and
authority to interpret and enforce all appropriate rules and regulations
for the administration of this Agreement and the rights of the Executive under
this Agreement, to decide or resolve any and all questions or disputes arising
under this Agreement, including benefits payable under this Agreement and all
other interpretations of this Agreement, as may arise in connection with the
Agreement.


 


9.2           Agents. In the administration of this Agreement, the Plan Administrator may
employ agents and delegate to them such administrative duties as it sees fit
(including acting through a duly appointed representative) and may from time to
time consult with counsel, who may be counsel to the Employer.


 


9.3           Binding Effect of Decisions. The decision or action of the Plan
Administrator with respect to any question arising out of or in connection with
the administration, interpretation, and application of the Agreement and the rules and
regulations promulgated hereunder shall be final and conclusive and binding
upon all persons having any interest in the Agreement. No Executive or Beneficiary
shall be deemed to have any right, vested or nonvested, regarding the continued
use of any previously adopted assumptions, including but not limited to the
discount rate and calculation method described in Section 1.1.


 


9.4           Indemnity of Plan Administrator. The Plan Administrator shall not be liable
to any person for any action taken or omitted in connection with the
interpretation and administration of this Agreement, unless such action or
omission is attributable to the willful


 


15

















 


misconduct
of the Plan Administrator or any of its members. The Employer shall indemnify
and hold harmless the members of the Plan Administrator against any and all
claims, losses, damages, expenses, or liabilities arising from any action or
failure to act with respect to this Agreement, except in the case of willful
misconduct by the Plan Administrator or any of its members.


 


9.5           Employer Information. To enable the Plan Administrator to perform
its functions, the Employer shall supply full and timely information to the
Plan Administrator on all matters relating to the date and circumstances of the
retirement, Disability, death, or Termination of Employment of the Executive
and such other pertinent information as the Plan Administrator may reasonably
require.


 


IN WITNESS WHEREOF, the Executive and a duly authorized Officer of the Employer have signed
this Agreement as of the date first written above.


 


 


	
  THE EXECUTIVE:

  	
  TENNESSEE COMMERCE BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENNESSEE COMMERCE BANCORP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
				



 


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BENEFICIARY DESIGNATION


 


SALARY CONTINUATION AGREEMENT


 


I,
                      ,
designate the following as beneficiary of any death benefits under this Salary
Continuation Agreement


 


	
   

  	
  Primary:

  	
   

  
	
   

  
	
   

  
	
   

  	
  Contingent:

  	
   

  
	
   

  
				



 


Note: To name a trust as beneficiary, please provide the name
of the trustee(s) and the exact name and date of the trust agreement.


 


I
understand that I may change these beneficiary designations by filing a new
written designation with the Employer. I further understand that the
designations will be automatically revoked if the beneficiary predeceases me,
or if I have named my spouse as beneficiary and our marriage is subsequently
dissolved.


 


	
   

  	
  Signature:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
  ,
  2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Accepted
  by the Employer this
           day of                                ,
  2009.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Print
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title: