EXHIBIT
10.4


 


Tennessee Commerce Bank


FORM OF
SPLIT DOLLAR AGREEMENT


 


THIS  SPLIT
DOLLAR 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 (hereinafter referred to as the “Executive”)
..


 


WHEREAS, to encourage the Executive to remain in the
employ of the Employer, the Employer is willing to allocate a portion of the death
proceeds of life insurance policy(ies) on the Executive’s life to the Executive’s
beneficiary(ies). The Employer will pay life insurance premiums from its
general assets.


 


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


 


ARTICLE 1


DEFINITIONS


 


Whenever used in this
Agreement, the following words and phrases shall have the meanings specified:


 


1.1           “Beneficiary” means any designated person, or the estate of the deceased
Executive, entitled to benefits, if any, upon the death of the Executive,


 


1.2           “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.


 


1.3           “Cash Compensation” means
the annual salary and bonus paid to the Executive for the most recent full
calendar year of employment, provided however, that for purposes of determining
compensation which is not fixed (such as a bonus), the annual amount of such
unfixed compensation shall be deemed to be equal to the greatest amount of such
unfixed compensation paid in any of the last three full calendar years of
employment.


 


1.4           “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 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.


 


1.5           “Company” means
Tennessee Commerce Bank and/or Tennessee Commerce Bancorp, Inc. and their
successors.


 


1.6           “Disability” means
the Executive (i) is 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 12 months or (ii) is 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 the Employer.


 


1.7           “Good Reason”
means (i) without the Executive’s express written consent, a material
diminution in authority, duties or responsibilities; (ii) any reduction by
the Employer in the Executive’s Base Salary; (iii) any failure of the
Employer to obtain the assumption of, or the agreement to perform, this
Agreement by any successor as contemplated in Section 13 hereof; (iv) the
Employer materially breaches this Agreement; or (v) the Employer requiring
the Executive to be permanently assigned to a location other than the current
or future headquarters of the Employer, except for required travel on the
Employer business to an extent substantially consistent with the Executive’s
present business travel obligations and as described under Section 3, or,
in the event the Executive consents to any relocation, the failure by the
Employer to pay (or reimburse the Executive) for all reasonable moving expenses
incurred by the Executive relating to a change of the Executive’s principal
residence in connection with such relocation and 


 


2

















 


to indemnify the Executive
against any loss realized on the sale of the Executive’s principal residence in
connection with any such change of residence. Good Reason shall be deemed to
occur only when Executive provides notice to the Employer of his judgment that
a Good Reason event has occurred within 90 days of such occurrence, and the
Employer will have at least 30 days during which it may remedy the condition.


 


1.8           “Insurer” means
each life insurance carrier in which there is a Split Dollar Policy Endorsement
attached to this Split Dollar Agreement.


 


1.9           “Net Amount At Risk”
as used in this agreement refers to the difference in the Death Benefit payable
by the insurance carrier and the Cash Value of the policy(ies) owned by the
Employer on the Executive’s life.


 


1.10         “Plan Administrator” means
the Board of Directors of the Company or anyone designated by the Board of
Directors of the Company as described in Article 6.


 


1.11         “Policy” means
the specific life insurance policy or policies issued by the Insurer(s).


 


1.12         “Retirement” means
termination of employment following attainment of age sixty-five (65) other than
for Cause.


 


1.13         “Separation from Service”
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).


 


1.14         “Split Dollar Policy
Endorsement” means the form required by the Administrator or the
Insurer to indicate the Executive’s interest, if any, in a Policy on the
Executive’s life.


 


ARTICLE 2


POLICY
OWNERSHIP/INTERESTS


 


2.1           Employer Ownership.  The Employer is the sole owner of the Policy
and shall have the right to exercise all incidents of ownership.  The Employer shall be the beneficiary of any
death proceeds remaining after the Executive’s interest has been paid under Section 2.2
of this Split Dollar Agreement.


 


2.2           Executive’s
Interest.  In the case of the
Executive’s death, the Executive shall have the right to designate the
beneficiary(ies) of death proceeds distributed as follows:


 


(a)                                  If Executive
dies prior to his Separation from Service and this Agreement is still in 


 


3

















 


effect, a death benefit will be payable to his
designated beneficiary equal to the lesser of, (i) one hundred percent
(100%) of the portion of the insurance proceeds on the life of the Executive
designated as Net Amount at Risk (NAR); or (ii) a sum equal to two times
the Executive’s aggregate Cash Compensation, as reduced by any payments due to
or paid to the Executive or the Executive’s Beneficiary under any Salary Continuation
Plan and/or Consulting and Non-Competition Agreement.


 


(b)                                 If Executive
dies following Separation from Service and this Agreement is still in effect, a
death benefit will be paid to the Executive’s designated beneficiary equal to
the lesser of (i) one hundred percent (100%) of the portion of the
insurance proceeds on the life of the Executive designated as Net Amount at
Risk; or (ii) a sum equal to two times the Executive’s aggregate Cash
Compensation, as reduced by any payments due to or paid to the Executive or the
Executive’s Beneficiary under any Salary Continuation Plan and/or Consulting
and Non-Competition Agreement.


 


Except as provided in
Sections 7.11, 7.12 and 7.13, payments shall generally be made within 75 days
of the triggering event.  The Employer
shall be entitled to the remainder of such Policy proceeds.


 


Subject to the terms of this
Split Dollar Agreement, including but not limited to the Employer’s right to
terminate this Split Dollar Agreement under Section 7.1, the Employer
hereby endorses the Executive’s interest to the Executive and agrees to execute
any other or further documents that may be required to effectuate this Split
Dollar Agreement.


 


2.3           Premium
Payment.  The Employer shall pay any
premiums due on the Policy.  It is
anticipated that the Policy will be a single premium modified endowment contract.


 


2.4           Imputed
Income.  The Employer shall impute
income to the Executive to the extent required by applicable law.


 


2.5           Internal
Revenue Code Section 1035 Exchanges.  The Executive recognizes and agrees that the
Employer may, after this Executive Split Dollar Agreement is adopted, wish to
exchange the Policy of life insurance on the Executive’s life for another
contract of life insurance insuring the Executive’s life.  Provided that the Policy is replaced (or
intended to be replaced) with a comparable policy of life insurance, the
Executive agrees to provide medical information and cooperate with medical
insurance-related testing required by a prospective insurer for implementing
the Policy or, if necessary, for modifying or updating to a comparable insurer.


 


ARTICLE 3


BENEFICIARIES


 


3.1           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

















 


3.2           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.


 


3.3           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.


 


3.4           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.


 


3.5           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 4


GENERAL
LIMITATIONS


 


4.1           Termination
of Service. 
Notwithstanding any provision of this Agreement to the contrary, the
Executive’s interest in the Policy shall terminate upon a voluntary Separation from
Service, other than Retirement or for Good Reason. In the event the Executive’s
employment with the Employer is terminated for Cause, the Employer’s
obligations under this Agreement shall terminate as of the effective date of
the termination of service.


 


4.2           Removal.  Notwithstanding any provision of this
Agreement to the contrary, if the Executive is permanently prohibited from
participating in the conduct of 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.


 


5

















 


4.3           Insurer. The Insurer
shall be bound only by the terms of the Policy. 
Any payments the Insurer makes or actions it takes in accordance with
the Policy shall fully discharge it from all claims, suits and demands of all
entities or persons.  The Insurer shall
not be bound by or be deemed to have notice of the provisions of this Split
Dollar Agreement. 


 


ARTICLE 5


CLAIMS AND
REVIEW PROCEDURES


 


5.1           Claims
Procedure.  If the
Administrator denies part of or the entire claim, the claimant shall have the
opportunity for a full and fair review by the Administrator of the denial, as follows:


 


5.1.1        Initiation:
Written Claim.  The
claimant initiates a claim by submitting to the Administrator a written claim
for the benefits.


 


5.1.2        Timing
of Administrator Response.  The
Administrator shall respond to such claimant within 90 days after receiving the
claim.  If the Administrator determines
that special circumstances require additional time for processing the claim,
the Administrator can extend the response period by an additional 90 days by
notifying the claimant in writing, prior to the end of the initial 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 Administrator expects to render its decision.


 


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


 


(a)           the specific reasons for the denial,


 


(b)           a reference to the specific
provisions of this Agreement on which the denial is based,


 


(c)           a description of any
additional information or material necessary for the claimant to perfect the
claim and an explanation of why it is needed,


 


(d)           an explanation of
this Agreement’s review procedures and the time limits applicable to such
procedures, and


 


(e)           a statement of the
claimant’s right, if any, to bring a civil action under ERISA Section 502(a) following
an adverse benefit determination on review.


 


6

















 


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


 


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


 


5.2.2        Additional
Submissions for Information Access.  The claimant shall then have the opportunity
to submit written comments, documents, records, and other information relating
to the claim.  The 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 to
the claimant’s claim for benefits.


 


5.2.3        Considerations
on Review.  In
considering the review, the 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.


 


5.2.4        Timing
of Administrator Response.  The
Administrator shall respond in writing to such claimant within 60 days after
receiving the request for review.  If the
Administrator determines that special circumstances require additional time for
processing the claim, then the Administrator can extend the response period by
an additional 60 days by notifying the claimant in writing, prior to the end of
the initial 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 Administrator expects to render
its decision.


 


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


 


(a)           the specific reasons
for the denial,


 


(b)           a reference to the
specific provisions of this Agreement on which the denial is based,


 


(c)           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 to the claimant’s claim for benefits, and


 


7

















 


(d)           a statement of the
claimant’s right, if any, to bring a civil action under ERISA Section 502(a).


 


ARTICLE 6


ADMINISTRATION


 


6.1           Administration.  This Split Dollar Agreement shall be
administered by an Administrator, which shall consist of the Employer’s board
of directors or such committee as the board shall appoint.  The Administrator shall also have the
discretion and authority to:


 


(a)                                  make, amend,
interpret, and enforce all appropriate rules and regulations for the
administration of this Split Dollar Agreement and


 


(b)                                 decide or
resolve any and all questions, including interpretations of this Split Dollar
Agreement, as may arise in connection with the Split Dollar Agreement.


 


6.2           Named
Agents  In the administration of this
Split Dollar Agreement, the 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.


 


6.3           Binding Effect of Decisions.  The decision or action of the Administrator
with respect to any question arising out of or in connection with the
administration, interpretation, and application of this Split Dollar Agreement
and the rules and regulations promulgated hereunder shall be final and
conclusive and binding upon all persons having any interest in this Split Dollar
Agreement.


 


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


 


6.5           Information.  To enable the Administrator to perform its
functions, the Employer shall supply full and timely information to the
Administrator on all matters relating to the date and circumstances of the Retirement,
death, or Separation from Service of the Executive and such other pertinent
information as the Administrator may reasonably require.


 


8






 












 


ARTICLE 7


MISCELLANEOUS


 


7.1                                 Amendment
and Termination.  This Split
Dollar Agreement shall terminate automatically and no payments shall be made
hereunder if Executive voluntarily terminates service with the Employer, other
than for Retirement or Good Reason, or is terminated for Cause prior to the
Executive’s death.  This Split Dollar
Agreement shall also terminate and no further payments shall be made hereunder
upon the occurrence of any one of the following:


 


(a)                                  Bankruptcy,
receivership, or dissolution of the Employer, or


 


(b)                                 distribution of
the death benefit proceeds in accordance with Section 2.2 above, or


 


(c)                                  if the
Executive commits suicide within two years after the  issuance of the Policy on the Executive’s
life.


 


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


 


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


 


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


 


7.5                                 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.


 


7.6                                 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’s beneficiary(ies) under this Agreement other than those specifically
set forth herein.


 


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


 


7.8                                 Headings.  The captions and section headings in this
Agreement are included solely for convenience of reference and shall not affect
the meaning or interpretation of any provision of this Agreement.


 


9

















 


7.9                                 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, to the following addresses or to such
other address as either party may designate by like notice.


 


(a)                                  If to the
Employer, to:


The Board of Directors


Tennessee Commerce Bank


 


 


(b)                                 If to the
Executive, to:


 


 


and to such other or additional person or persons as either party shall
have designated to the other party in writing by like notice.


 


7.10                           Successors.  By an assumption agreement in form and
substance satisfactory to the Executive, the Employer shall require any
successor (whether direct or indirect, by purchase, merger, consolidation, or
otherwise) to all or substantially all of the business or assets of the
Employer to expressly assume and agree to perform this Executive Split Dollar
Agreement in the same manner and to the same extent that the Employer would be
required to perform this Executive Split Dollar Agreement if no succession had
occurred.


 


7.11                           Compliance with Code Section 409A.  The Company and the Executive intend that
their exercise of authority or discretion under this Agreement shall comply
with Section 409A of the Internal Revenue Code (the “Code”). 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 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 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.  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).


 


10

















 


7.12                           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.


 


7.13                           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.


 


7.14                           Covenants against competition,
solicitation, or disclosure of confidential information.


 


(a)                                  Competition. 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 Company or the Bank, in any county in any of
the States of the United States in which the Company’s or the Bank’s business
is currently being conducted or is being conducted when the Executive’s
separation from service occurs, as long as the Company or the Bank, 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 Company or the Bank. 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 Company and the Bank in
executive, managerial, and supervisory capacities throughout the areas in which
Company and the Bank conduct business.


 


(b)                                 Solicitation. The Executive
shall not (x) directly or indirectly solicit or attempt to solicit any
customer of the Company or the Bank to accept or purchase financial products or
services of the same nature, kind or variety currently being provided to the
customer by the Company or the Bank or being provided to the customer by the
Company or the Bank 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 Company or the Bank to alter that person or
entity’s business relationship with the Company or the Bank 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 Company or the Bank. 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 Company or the Bank to terminate an
employment or contractual relationship with the Company or the Bank, 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 Company or the Bank 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 Company or the Bank with, for, or to whom the Company
or the Bank has provided financial products or services during the final two
years of the Executive’s employment with the Company or the Bank, or any
individual, joint venturer, entity of any sort, or business partner whom the
Company or the Bank has identified as a prospective customer of financial
products or services within the final two years of the Executive’s employment
with the Company or the Bank. 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 


 


11

















 


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 Company or the Bank. 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.


 


(c)                                  Disclosure of confidential
information. The Executive shall not reveal to any person,
firm, or corporation any confidential information of any nature concerning the
Company or the Bank 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 Company or the Bank and that is not a matter of common
knowledge in the fields of work of the Company or the Bank. 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 Company or the Bank or (y) otherwise than by or
at the Executive’s direction. This covenant 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.


 


(d)                                 Duration; no impact on
existing obligations under law or contract. The covenants in this
section 3 shall apply throughout the 120-month period beginning on the date of
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 Company or the Bank to
refrain from competing against, soliciting customers, officers, or employees
of, or disclosing confidential information of the Company or the Bank while the
Executive is serving as an officer or employee of the Company or the Bank or
thereafter, whether the Executive’s obligations arise under applicable law or
under an employment agreement or otherwise.


 


(e)                                  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 herein shall be deemed to be a series of separate covenants, one for
each county of each state in which the Company or the Bank 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 


 


12

















 


covenant’s duration or extent, the covenant
shall be construed to have only the maximum duration or extent permitted by
law.


 


(f)                                    Forfeiture of payments under
this Agreement. If the Executive breaches any of the covenants in
this Section, the Executive’s right to any of the payments hereunder 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 Section shall be deemed a material breach by the
Executive of this Agreement.


 


IN WITNESS
WHEREOF, the Executive and a duly authorized Employer officer have executed
this Agreement as of the day and year first written above.


 


 




	
  EXECUTIVE

  	
   

  	
  EMPLOYER

  
	
   

  	
   

  	
  Tennessee Commerce Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tennessee Commerce Bancorp, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  






 


13

















 


AGREEMENT
TO COOPERATE WITH INSURANCE UNDERWRITING INCIDENT TO INTERNAL REVENUE CODE SECTION 1035
EXCHANGE


 


I acknowledge that I have read the Split
Dollar Agreement and agree to be bound by its terms, particularly the covenant
on my part set forth in section 2.5 of the Split Dollar Agreement to provide
medical information and cooperate with medical insurance-related testing
required by an insurer to issue a comparable insurance policy to cover the
benefit provided under this Executive Split Dollar Agreement.


 




	
   

  	
   

  	
   

  
	
   

  Witness

  	
   

  	
   

  Executive

  






 


14

















 


SCHEDULE “A”


 


 


To be completed for each Executive


 


15

















 


TENNESSEE COMMERCE BANK


DEATH BENEFIT PLAN


DESIGNATION OF BENEFICIARY


 


Executive:  


Social
Security Number:  


 


Definitions:


 


Primary Beneficiary means the person(s) who
will receive the Benefits in the event of the Executive’s death.  Proceeds will be divided in equal shares if
multiple primary beneficiaries are named, unless otherwise indicated.  If percentages are listed, the total must
equal 100%.


 


Contingent Beneficiary means the person(s) who
will receive the Benefits if the primary beneficiary is not living at the time
of the Executive’s death.


 


Trust as Beneficiary Designation can be done by
using the following written statement: “To
[name of trustee], trustee of the  [name
of trust], under a trust agreement dated [date of trust].”


 


	
  Primary Beneficiary

  	
   

  	
  DOB

  	
   

  	
  Social Security #

  	
   

  	
  Address

  	
   

  	
  % of Proceeds

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  Contingent Beneficiary

  	
   

  	
  DOB

  	
   

  	
  Social Security #

  	
   

  	
  Address

  	
   

  	
  % of Proceeds

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


The
undersigned Executive acknowledges that Tennessee Commerce Bank (“Employer”) is
providing this Death Benefit subject to the terms and conditions of the
Agreement entered into with Executive; only to the extent that the Death
Benefit is actually paid by the Insurer, and that Employer is also entitled to
separate benefits in the Policy.


 




	
   

  	
   

  	
   

  	
  , 2008

  
	
  Executive’s
  Signature

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  
	
  Acknowledged
  Receipt by the Employer:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  , 2008

  
	
  Officer

  	
   

  	
   

  






 


16