EXHIBIT 10.6


 


FORM OF CONSULTING AND NON-COMPETITION AGREEMENT


 


This CONSULTING AND NON-COMPETITION AGREEMENT (this “Agreement”) is entered into as of this 19th day of May, 2009, by and between
Tennessee Commerce Bancorp, Inc., a Tennessee corporation (the “Company”),
Tennessee Commerce Bank (the “Bank”) and                        ,
(the “Executive”).


 


WHEREAS,
Executive is an employee of the Bank who has provided guidance, leadership, and
direction in the growth, management, and development of the Company and the
Bank and has learned trade secrets, confidential procedures and information,
and technical and sensitive plans of the Company and the Bank,


 


WHEREAS, the
Company desires to restrict after the Executive’s separation from service with
the Company and the Bank the Executive’s availability to other employers or
entities that compete with the Company or the Bank,


 


WHEREAS, the
Company desires to offer to Executive a non-competition and consulting
arrangement, and the parties hereto have reached an agreement concerning the
arrangement and other matters contained herein and desire to set forth the
terms and conditions thereof, and


 


NOW THEREFORE, in consideration of these premises, the mutual promises and
undertakings set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Executive and the Company hereby agree as follows.


 


1.             Administration of this Agreement.


 


(a)           Administrator duties. This
Agreement shall be administered by the Company’s board of directors or by such
committee or person as the board shall appoint (the “Administrator”). The
Administrator shall have the discretion and authority to (x) make, amend,
interpret, and enforce all appropriate rules and regulations for the
administration of this Agreement and (y) decide or resolve any and all
questions that may arise, including interpretations of this Agreement.


 


(b)           Agents. In the administration of this
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 Company.


 


(c)           Binding effect of decisions. The
decision or action of the Administrator concerning any question arising out of
the administration, interpretation, and application of this Agreement and the rules and
regulations promulgated hereunder shall be final and conclusive and binding
upon all persons having any interest in this Agreement.


 


(d)           Indemnity of Administrator. The
Company 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 Agreement,


 

















 


except in the case of willful misconduct by the
Administrator or any of its members. No individual shall be liable while acting
as Administrator for any action or determination made in good faith regarding
this Agreement, and any such individual shall be entitled to indemnification
and reimbursement in the manner provided in the Company’s Charter and Bylaws
and under applicable law.


 


(e)           Information. To enable the Administrator to
perform its functions, the Company shall supply full and timely information to
the Administrator on all matters relating to the date and circumstances of the
separation from service of the Executive and such other pertinent information
as the Administrator may reasonably require.


 


(f)            Action by the Administrator. In addition
to acting at a meeting in accordance with applicable laws, any action of the
Administrator concerning this Agreement may be taken by a written instrument
signed by the Administrator (including, if the Company’s board of directors or
a board committee serves as the Administrator, by written consent in accordance
with Tennessee law and the Charter and Bylaws of the Company, and any such
action so taken by written consent shall be effective as if it had been taken
by a majority of the members at a meeting duly called and held).


 


2.               Consulting Services.


 


(a)           Services. For the first 24 months after
separation from service, at the sole discretion of the Company the Executive
shall provide consulting services as an independent contractor to the Company
as and when the Company requests, which services may have to do with any or all
phases of the Company’s or the Bank’s business, but particularly concerning
those phases in which the Executive has particular expertise and knowledge. The
Executive shall devote best efforts to performance of the consulting services
hereunder, and shall in a timely manner commit and make available sufficient
time to provide the services reasonably requested by the Company. The amount of
time in any month for which the Executive provides consulting services under
this Agreement shall not exceed 25% of the amount of time for which the
Executive provided services to the Company or the Bank each month as an officer
or employee before the Executive’s separation from service.


 


(b)           The Executive shall be an independent contractor. In the Executive’s capacity as a consultant the Executive shall be an
independent contractor and shall not operate under the direction or supervision
of any officer of the Company or the Bank, except as is necessary to outline
the end product of consulting services to be provided by the Executive under
this Agreement. The Executive’s services shall not be on a day-to-day regularly
scheduled operational basis, and shall be provided only when Executive is
reasonably available. The Executive and the Company agree that the Executive
shall be, under the terms of this Agreement, an independent contractor and the
Executive agrees that the Executive’s rights and privileges and obligations are
solely those provided in this Agreement. However, if the Company determines
that the consulting payments under this Agreement are compensation for services
other than consulting and that the payments are subject to withholding, Social
Security, employment, income, and other taxes or assessments under applicable
tax law, the payments shall be subject to the required withholdings.


 


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


 


(a)           Competition. For and in consideration of the monthly payments
described in section 4 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. For and in consideration of the monthly payments
described in section 4, 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 1956 and that is offered by the Company, the
Bank, or an affiliate on the date of the Executive’s


 


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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. For
and in consideration of the monthly payments described in section 4 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. The covenant in this section 4(c) 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 24-month
period in which the Executive is providing consulting services under section 2,
as well as for the entire eight-year period thereafter. 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 in this section
3 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.


 


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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.


 


(f)            Forfeiture
of payments under this Agreement. If the
Executive breaches any of the covenants in this section 3, the Executive’s
right to any of the payments specified in section 4 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 3 shall be deemed a material breach by the Executive of this Agreement.


 


4.               Consulting and Noncompete Payments.


 


(a)           Payments. For the Executive’s separation
from service and in consideration of the Executive’s support, sponsorship,
advisory, and other services provided to the Company and the Bank in accordance
with section 2, and in consideration of the Executive’s consulting and
noncompete arrangements described in Sections 2 and 3 hereto, the Company shall
pay to the Executive the following:


 


i.              Twenty-four (24) identical monthly payments, with each such payment equal
to the Executive’s greatest annual cash compensation (including base salary and
bonus) paid in any of the last three full calendar years of employment
preceding separation from service, divided by forty-eight (48). Such payments
shall begin on the first day of the month following Executive’s separation from
service.


 


ii.             Ninety-six (96) identical monthly payments, with each such payment equal
to the Executive’s greatest annual cash compensation (including base salary and
bonus) paid in any of the last three full calendar years of employment
preceding separation from service, divided by forty-eight (48). Such payments
shall begin on the first day of the month following the two-year anniversary of
the Executive’s separation from service.


 


(b)           Death and Disability.
Notwithstanding anything herein to the contrary, no amounts are payable under
this Agreement in the event of the Executive’s termination of employment as a
result of death or disability (as defined in the Executive’s employment
agreement). Further, all payments under this Agreement shall cease upon
Executive’s death.


 


5.             Change in Control after Separation from Service.


 


(a)           Accelerated payment after a Change in Control. If a Change in Control of the Company and/or Bank occurs after the
Executive’s separation from service and if when the Change in Control occurs
the Executive is receiving the payments under section 4, the Executive shall be
entitled to receive in a single lump sum within five days after the date on
which the Change in Control occurs all payments not yet made under section 4,
without present value discount for the time value of money. If a Change in
Control of the Company occurs after the Executive’s separation from service,
the obligations of the Executive under sections 2 and 3 shall become null and
void immediately after the Change in Control occurs.


 


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(b)           Change in Control defined. For
purposes of this Agreement the term Change in Control shall mean a change in
control as defined in Code section 409A, including —


 


1)             Change in ownership. a change in ownership
of the Company occurs on the date any one person or group accumulates ownership
of Company stock constituting more than 50% of the total fair market value or
total voting power of Company stock, or


 


2)             Change in effective control. (x) any
one person or more than one person acting as a group acquires within a 12-month
period ownership of Company stock possessing 30% or more of the total voting
power of the Company, or (y) a majority of the Company’s board of
directors is replaced during any 12-month period by directors whose appointment
or election is not endorsed in advance by a majority of the Company’s board of
directors, or


 


3)             Change in ownership of a substantial portion of assets. a change in ownership of a substantial portion of the Company’s assets
occurs if in a 12-month period any one person or more than one person acting as
a group acquires from the Company assets having a total gross fair market value
equal to or exceeding 40% of the total gross fair market value of all of the
Company’s assets immediately before the acquisition or acquisitions. For this
purpose, gross fair market value means the value of the Company’s assets, or
the value of the assets being disposed of, determined without regard to any
liabilities associated with the assets.


 


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


 


(a)           Initiation — written claim. The
claimant initiates a claim by submitting to the 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.


 


(b)           Timing of Company response. The
Administrator shall respond to the claimant within 90 days after receiving the
claim. If the Administrator determines that special circumstances require
additional time for processing the claim, the Administrator may extend the response
period by an additional 90 days by notifying the claimant in writing before the
end of the initial 90-day period that an additional period is required. The
notice of extension must state the special circumstances and the date by which
the Administrator expects to render its decision.


 


(c)           Notice of decision. If the Administrator
denies part or all of the claim, the Administrator shall notify the claimant in
writing of the denial. The Administrator shall write the notification in a
manner calculated to be understood by the claimant. The notification shall set
forth —


 


1)              the specific reasons for the denial, 


 


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2)             a reference to the specific provisions of the Agreement on which the
denial is based,


 


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,


 


4)             an explanation of this Agreement’s review procedures under section 10 and
the time limits applicable to such procedures, and


 


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.             Review Procedure. If the
Administrator denies part or all of the claim under section 6, the claimant
shall have the opportunity for a full and fair review by the Administrator of
the denial, as follows —


 


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


 


(b)           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
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.


 


(c)           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 the information was submitted or considered in the initial benefit
determination.


 


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


 


(e)           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 —


 


1)             the specific reason for the denial,


 


2)             a reference to the specific provisions of the Agreement on which the
denial is based,


 


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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


 


4)             a statement of the claimant’s right to bring a civil action under ERISA
section 502(a).


 


8.             Unfunded Plan. The Executive and the Company do not intend that the amounts payable
hereunder be held by the Company in trust or as a segregated fund for the
Executive or any other person entitled to payments hereunder. The benefits
provided under this Agreement shall be payable solely from the general assets
of the Company. Neither the Executive nor any other person entitled to payments
hereunder shall have any interest in any assets of the Company because of this
Agreement. The Company’s obligation under this Agreement shall be merely that
of an unfunded and unsecured promise on the Company’s part to pay money in the
future. The rights accruing to the Executive or any beneficiary hereunder shall
be solely those of an unsecured creditor of the Company. If this Agreement is
deemed to be a pension plan, the Executive and the Company intend that it be
unfunded for Federal income tax purposes as well as for purposes of ERISA.


 


9              Payments and Funding. Any payments under this Agreement shall be independent of and in
addition to those under any other plan, program, or agreement that may be in
effect between the parties hereto or any other compensation payable to the
Executive by the Company or the Bank. In its sole discretion the Company may
purchase an insurance policy on the Executive’s life. Executive agrees to
promptly supply to the Company and its selected or prospective insurance
carrier, upon request, any and all information requested to enable the
insurance carrier to evaluate the risks associated with providing the insurance
requested by the Company. Any and all rights to any and all benefits under the
insurance policy on the Executive’s life shall be solely the property of the
Company and all proceeds of the policy shall be payable by the insurer solely
to the Company as owner of such policy. The Executive specifically waives any
rights in any insurance policy on the Executive’s life owned by the Company
under this Agreement. Any such insurance policy shall not serve in any way as
security to the Executive for the Company’s performance under this Agreement.
Any insurance on the Executive’s life is a general asset of the Company to
which the Executive and the Executive’s designated beneficiary have no
preferred or secured claim.


 


10.         Assignment of Rights; Spendthrift Clause. None of the Executive, the Executive’s estate, or
the Executive’s beneficiary shall have any right to sell, assign, transfer,
pledge, attach, encumber, or otherwise convey the right to receive any payment
hereunder. To the extent permitted by law, benefits payable under this
Agreement shall not be subject to the claim of any creditor of the Executive,
the Executive’s estate, or the Executive’s designated beneficiary or subject to
any legal process by any creditor of the Executive, the Executive’s estate, or
the Executive’s designated beneficiary.


 


11.         Suicide. If the
Executive commits suicide within two years after the date of this Agreement,
all payments provided for herein shall be forfeited.


 


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12.         Binding Effect. This Agreement shall bind the Executive, the
Company, and their beneficiaries, survivors, executors, successors and assigns,
administrators, and transferees.


 


13.         Successors; Binding
Agreement. By an assumption
agreement in form and substance satisfactory to the Executive, the Company
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 Company to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to
perform this Agreement had no succession occurred.


 


14.         Amendment of Agreement. This Agreement may not be altered or amended
except by a written agreement signed by the Company and by the Executive.
However, if the Company determines to its reasonable satisfaction that an
alteration or amendment of this Agreement is necessary or advisable so that the
Agreement complies with the Code or any other applicable tax law, then upon
written notice to Executive the Company may unilaterally amend this Agreement
in such manner and to such an extent as the Company reasonably considers
necessary or advisable to ensure compliance with the Code or other applicable tax
law. Nothing in this section 14 shall be deemed to limit the Company’s right to
terminate this Agreement at any time and without stated cause.


 


15.         Interpretation. Caption headings and subheadings herein are
included solely for convenience of reference and shall not affect the meaning
or interpretation of any provision of this Agreement. Words used in the
singular in this Agreement shall include the plural and words used in the
masculine shall include the feminine.


 


16.         Severability. If any provision of this Agreement is held
invalid, such invalidity shall not affect any other provision of this Agreement
not held invalid, 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 not held invalid, 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.


 


17.         Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Tennessee, except to
the extent preempted by the laws of the United States of America.


 


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


 


19.         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 Company or the Bank nor does
it interfere with the Company’s or the Bank’s right to discharge the Executive.


 


20.         Tax Withholding. If taxes are required by the Code or other
applicable tax law to be withheld by the Company from payments under this
Agreement, the Company shall withhold any taxes that are required to be
withheld.


 


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21.         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. If to the Company, notice shall be given to the
board of directors, Tennessee Commerce Bancorp, Inc., 381 Mallory Station
Road, Suite 207, Franklin, Tennessee 37067, or to such other or additional
person or persons as the Company shall have designated to the Executive in
writing. If to the Executive, notice shall be given to the Executive at the
Executive’s address appearing on the Company’s records, or to such other or
additional person or persons as the Executive shall have designated to the
Company in writing.


 


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


 


23.         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.


 


24.         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


 


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payments,” would not create an “excess parachute payment”
as such terms are defined in Section 280G of the Code, as subsequently
amended.


 


25            Termination for Cause. Notwithstanding
anything herein to the contrary, nothing is payable to Executive under this
Agreement in the event the Executive’s employment is terminated for “Cause.”
For purposes of this Agreement, “Cause” means (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 Company, or any of its affiliates or
which has a material adverse impact on the business or reputation of the
Company or any of its affiliates (such determination to be made by the Company’s
board of directors (the “Board”) in its reasonable judgment); (f) intentional
material damage to the property or business of the Company; (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 Company; 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 Company. 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 Company 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.


 


11

















 


IN WITNESS WHEREOF, the
Executive and a duly authorized officer of the Company have executed this
Consulting and Non-Competition Agreement as of the date first written above.


 


	
  EXECUTIVE

  	
   

  	
  COMPANY

  
	
   

  	
   

  	
  Tennessee Commerce Bancorp, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
  Attest:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  print name:

  	
   

  	
  print name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANK

  
	
   

  	
   

  	
  Tennessee Commerce Bank

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attest:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  print name:

  



 


12

















 


EXHIBIT A


 


BENEFICIARY DESIGNATION


 


TENNESSEE COMMERCE BANCORP, INC.

CONSULTING AND NON-COMPETITION
AGREEMENT


 


I,                       ,
designate the following as beneficiary of any death benefits under this
Consulting and Non-Competition 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 Tennessee Commerce
Bancorp, Inc. 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:

  	
                      ,
  20    

  	
   

  
	
   

  	
   

  	
   

  
	
  Accepted by the Tennessee Commerce Bancorp, Inc.
  this           day of               , 20   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


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