Exhibit 10.16


 


FIRST FARMERS AND MERCHANTS NATIONAL BANK 


GROUP TERM CARVE-OUT PLAN


 


THIS PLAN, hereby made effective this 23rd day of July, 2002 (the “Effective Date”), by
and between First Farmers and Merchants National Bank, a national banking
association located in Columbia, Tennessee (the “Bank”), and the Participant
(the “Participant”) selected to participate in this Plan, intending to be
legally bound hereby.


 


INTRODUCTION


 


The Bark wishes to attract, retain and reward highly qualified
executives. To further this objective, the Bank is willing to divide the death
proceeds of certain life insurance policies which are owned by the Bank on the
lives of the participating executives with the designated beneficiary of each
insured participating executive. The Bank will pay the life insurance premiums
from its general assets.


 


Article 1 


General Definitions


 


The following terms shall have the meanings specified:


 


1.1           “Base Annual Salary” shall mean the Participant’s current
annual salary as of June 1, 2002, exclusive of special payments such as
bonuses or fees, but including any salary reductions made in accordance with
Sections 125 or 401(k) of the Code.


 


1.2           “Change in Control of the Corporation” means a change in
control of a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (“Exchange Act”), or any successor thereto, whether or not the
Corporation is registered under Exchange Act; provided that, without
limitation, such a change in control shall be deemed to have occurred if (i) any
“person” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Corporation representing 25% or more of the combined voting power of the
Corporation’s then outstanding securities; or (ii) during any period of
two (2) consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Corporation cease for any reason to
constitute at least a majority thereof unless the election, or the nomination
for election by stockholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at
the beginning of the period.


 


1.3           “Code” shall mean the Internal Revenue Code of 1986, as
amended.


 


1.4           “Corporation “ shall mean First Farmers & Merchants
Corporation.


 


1.5           “Disability” means the Participant’s suffering a sickness,
accident or injury which has been determined by the carrier of any individual
or group disability insurance policy


 

















 


covering the Participant, or by the Social
Security Administration, to be a disability rendering the Participant totally
and permanently disabled. The Participant must submit proof to the Bank of the
carrier’s or Social Security Administration’s determination upon the request of
the Bank.


 


1.6           “Insured” shall mean the individual whose life is insured.


 


1.7           “Insurer” shall mean the insurance company issuing the life
insurance policy on the life of the insured.


 


1.8           “Normal Retirement Age” shall mean the Participant’s 65th birthday, except for Mr. Waymon L.
Hickman, whose Normal Retirement Age shall mean his 68th birthday.


 


1.9           “Participant” shall mean the employee who is designated by
the Board of Directors as eligible to participate in the Plan, elects in
writing to participate in the Plan using the form attached hereto as Exhibit A,
and signs a Split Dollar Endorsement for the Policy in which he or she is the
Insured.


 


1.10         “Policy”
or “Policies” shall mean the individual
insurance policy (or policies) adopted by the Board of Directors for purposes
of insuring a Participant’s life under this Plan.


 


1.11         “Plan”
shall mean, this instrument, including all amendments thereto.


 


1.12         “Plan Year”
shall mean each consecutive twelve (12) month period commencing with the
Effective Date of this Plan.


 


1.13         “Termination
of Employment” shall mean that the Participant ceases to be employed
by the Bank for any reason whatsoever other than by reason of a leave of
absence, which is approved by the Bank For purposes of this Plan, if there is a
dispute over the employment status of the Participant or the date of the
Participant’s Termination of Employment, the Bank shall have the sole and
absolute right to decide the dispute.


 


1.14         “Vested
Insurance Benefit” shall mean the Bank will provide the Participant
with continued insurance coverage from the date of vesting until death, subject
to the forfeiture provisions detailed in Section 5.2 and Article 8. Article 5
explains how a Participant achieves vested status.


 


1.15         “Years of
Service” shall mean the number of consecutive twelve (12) month
periods of continuous employment with the Bank, including leaves of absences
approved by the Bank.


 


Article 2 


Participation


 


2.1           Eligibility
to Participate. The Board of Directors in its sole discretion shall
designate from time to time Participants that are eligible to participate in
this Plan. The Board may delegate this authority to management.


 


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2.2           Participation.
The eligible executive may participate in this Plan by executing an Election to
Participate (Exhibit A) and a Split Dollar Endorsement. The Split Dollar
Endorsement shall bind the Participant and his or her beneficiaries, assigns
and transferees, to the terms and conditions of this Plan. A Participant’s
participation is limited to only Policies where he or she is the Insured. Exhibit A
sets forth the information about the Policy or Policies and maximum Participant
benefit under the Plan.


 


2.3           Termination
of Participation. A Participant’s rights under this Plan shall cease
and his or her participation in this Plan shall terminate if one of the
following events occur: (1) the Participant’s employment with the Bank is
terminated prior the Participant meeting any of the criteria for a Vested
Insurance Benefit under Section 5.1 or (2) the Plan or any
Participant’s rights under the Plan are terminated in accordance with Sections
5.2 or 12.1 of this Plan. In the event that the Bank decides to maintain the
Policy after the Participant’s termination of participation in the Plan, the
Bank shall be the direct beneficiary of the entire death proceeds of the
Policy. The Bank may document the Participant’s termination from the Plan by
indicating the date of termination on Exhibit A. However, the Bank’s
failure to do so will not be deemed evidence of Participant’s continued
participation in the Plan.


 


Article 3 


Premium Payments


 


The Bank shall pay all premiums due on all Policies under this Plan.


 


Article 4 


Policy Ownership/Interests


 


4.1                               Bank Ownership. The Bank shall own the Policies and shall
have the right to exercise all incidents of ownership and, subject to Article 7,
the Bank may terminate a Policy without the consent of the Insured. With
respect to each Policy, the Bank shall be the direct beneficiary of an amount
of death proceeds equal to the greatest of (1) the cash surrender value of
the policy; (2) the aggregate premiums paid on the Policy by the Bank less
any outstanding indebtedness to the Insurer; or (3) the amount in excess
of the Participant’s interest specified in Section 4.2. If the Bank owns
more than one policy on a Participant, the Policies shall be aggregated with
respect to item (3) of this paragraph.


 


4.2                               Participant’s Interest. Each Participant, or the
Participant’s assignee, shall have the right to designate the beneficiary of
the death proceeds of the Policy as specified in Section 4.2.1 or 42.2.
The Participant shall also have the right to elect and change settlement
options.


 


4.2.1       Death Prior to Termination of Employment. If the Participant
dies while employed by the Bank, the Participant’s beneficiary shall be
entitled to a benefit equal to two and one-half (21⁄2) times (one times for Mr. Waymon
L. Hickman) the deceased Participant’s Base Annual Salary at the effective date
of the Plan, the amount of which is specified in Exhibit A.


 


4.2.2       Death After Termination of Employment. If, pursuant to Article 5,
a terminated Participant has a Vested Insurance Benefit at the date of death,
the Participant’s beneficiary shall be entitled to a benefit equal to two and
one-half (21/2) 


 


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times (one times for Mr. Waymon L.
Hickman) the Participant’s Base Annual Salary as specified in Exhibit A.
If the terminated Participant has not achieved a Vested Insurance Benefit, the
Participant’s beneficiary will not be entitled to a benefit under this Plan.


 


Article 5


Vesting


 


5.1                               Vested Insurance Benefit. The Participant shall have a
Vested Insurance Benefit equal to the amount specified in Section 4.2 at
the earliest of the following events:


 


5.1.1                      Remaining in
continuous employment with the Bank until age 65;


 


5.1.2                      Remaining in continuous
employment with the Bank until age 60 with fifteen (15) or more Years of
Services;


 


5.1.3                      Remaining in continuous
employment with the Bank for ten (10) years or more from the date the
Participant enters into this Plan;


 


5.1.4                      Termination of Employment due to
Disability; or


 


5.1.5                      At the discretion of the Board of
Directors if there are other circumstances not addressed in Sections 5.1.1
through 5.1.4 of this Plan.


 


5.2                               Forfeiture of Benefit. Notwithstanding the provisions of Section 5.1,
the Participant will forfeit his or her Vested Insurance Benefit if: (1) the
Participant violates any of the provisions detailed in Article 8 or, (2) in
the case of a Disabled Participant who vested pursuant to Section 5.1.3,
if such Participant becomes gainfully employed by an entity other than the
Bank.


 


Article 6 


Imputed Income/Reimbursement


 


The Bank shall impute income to the Participant in an amount equal to
the annual cost of current life insurance protection on the life of the
Participant measured by the lesser of the Table 2001 rate set forth in Notice
2002-8 (or the corresponding applicable provision of any later Revenue Ruling)
or the Insurer’s current published premium rate for annually renewable term insurance
for standard risks; provided that the Insurer’s current published premium rate
meets the limitations set forth in Notice 2002-8 (or the corresponding
applicable provision of any later Revenue Ruling.) The Bank will provide each
Participant with an annual statement of the amount of income reportable by the
Participant for federal and state income tax purposes as a result of such
imputed income.


 


Article 7 


Comparable Coverage


 


7.1                               Insurance Policies. If a Participant has a Vested Insurance
Benefit, the Bank may provide such benefit through the Policies purchased at
the commencement of this Plan or may provide comparable insurance coverage to
the Participant through whatever means the Bank 


 


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deems appropriate. If the Participant waives
or forfeits his or her right to the Vested Insurance Benefit, the Bank can
choose to cancel the Policy or Policies on the Participant, or may continue
such coverage and become the direct beneficiary of the entire death proceeds.


 


7.2                               Offer to Purchase. If the Bank discontinues a Policy on a
Participant who is employed by the Bank at the date of discontinuance or who
has a Vested Insurance Benefit that has not been forfeited, the Bank shall give
the Participant at least thirty (30) days to purchase such Policy. The purchase
price shall be the cash surrender value of the Policy. Such notification shall
be in writing.


 


Article 8 


General Limitations


 


8.1                               Excess Parachute or Golden Parachute Payment. If the
payments and benefits pursuant to this Plan, either alone or together with
other payments and benefits which the Participant has the right to receive from
the Bank, would constitute a “parachute payment” under Section 280G of the
Code, the payments and benefits pursuant to this Plan shall be reduced, in the
manner determined by the Participant, by the amount, if any, which is the
minimum necessary to result in no portion of the payments and benefits under
this Plan being non-deductible to the Bank pursuant to Section 280G of the
Code and subject to the excise tax imposed under Section 4999 of the Code.


 


8.2                               Termination for Cause. Notwithstanding any provision of this
Plan to the contrary, the Participant shall forfeit any right to a benefit
under this Plan, if the Bank terminate the Participant’s employment for cause.
Termination of the Participant’s employment for “Cause” shall mean termination
because of personal dishonesty, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order or material
breach of any provision of the Plan. For purposes of this paragraph, no act or
failure to act on the Participant’s part shall be considered “willful” unless
done, or omitted to be done, by the Participant not in good faith and without
reasonable belief that the Participant’s action or omission was in the best
interest of the Bank.


 


8.3                               Removal. Notwithstanding any provision of this Plan to the
contrary, the benefit provided under this Plan shall be forfeited if the
Participant is subject to a final removal or prohibition order issued by an
appropriate federal banking agency pursuant to Section 8(e) of the
Federal Deposit Insurance Act (“FDIA”).


 


8.4                               Competition After Termination of Service. The Participant
shall forfeit his right to his split dollar benefit if the Participant, without
the prior written consent of the Corporation, violates the following described
restrictive covenants.


 


8.4.1        Non-compete
Provision. The Participant shall not, directly or indirectly, either
as an individual or as a proprietor, stockholder, partner, officer,
Participant, employee, agent, consultant or independent contractor of any
individual, partnership, corporation or other entity (excluding an ownership
interest of three percent (3%) or less in the stock of a publicly traded
company):


 


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(i)                                     become
employed by, participate in, or be connected in any manner with the ownership,
management, operation or control of any bank, savings and loan or other similar
financial institution if the Participant’s responsibilities will include
providing banking or other financial services within the twenty-five (25) miles
of any office maintained by the Corporation as of the date of the termination
of the Participant’s employment;


 


(ii)                                  participate
in any way in hiring or otherwise engaging, or assisting any other person or
entity in hiring or otherwise engaging, on a temporary, part-time or permanent
basis, any individual who was employed by the Corporation as of the date of
termination of the Participant’s employment;


 


(iii)                               assist,
advise, or serve in any capacity, representative or otherwise, any third party
in any action against the Corporation or transaction involving the Corporation;


 


(iv)                              sell,
offer to sell, provide banking or other financial services, assist any other
person in selling or providing banking or other financial services, or solicit
or otherwise compete for, either directly or indirectly, any orders, contract,
or accounts for services of a kind or nature like or substantially similar to
the financial services performed or financial products sold by the Corporation
(the preceding hereinafter referred to as “Services”), to or from any person or
entity from whom the Participant or the Corporation, to the knowledge of the
Participant provided banking or other financial services, sold, offered to sell
or solicited orders, contracts or accounts for Services during the three (3) year
period immediately prior to the termination of the Participant’s employment;


 


(v)                                 divulge,
disclose, or communicate to others in any manner whatsoever, any confidential
information of the Corporation, to the knowledge of the Participant, including,
but not limited to, the names and addresses of customers or prospective
customers, of the Corporation, as they may have existed from time to time, of
work performed or services rendered for any customer, any method and/or
procedures relating to projects or other work developed for the Corporation or
any of its subsidiaries, earnings or other information concerning the
Corporation. The restrictions contained in this subparagraph (v) apply to
all information regarding the Corporation, regardless of the source who
provided or compiled such information. Notwithstanding anything to the
contrary, all information referred to herein shall not be disclosed unless and
until it becomes known to the general public from sources other than the
Participant.


 


8.5                               Suicide or Misstatement. The Participant shall forfeit his
benefit under this Plan if the Participant commits suicide within two years
after the date of this Plan, or if the insurance company denies coverage for
material misstatements of fact made by the Participant on any application for
life insurance purchased by the Bank, or any other reason; provided, however
that


 


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the Bank shall evaluate the reason for the
denial, and upon advice of Counsel and in its sole discretion, consider
judicially challenging any denial. The Bank shall have no liability to the
Participant for any denial of coverage by the insurance company.


 


Article 9 


Assignment


 


Any Participant may assign without consideration all interests in his
or her Policy and in this Plan to any person, entity or trust. In the event a
Participant shall transfer all of his/her interest in the Policy, then all of
that Participant’s interest in his or her Policy and in the Plan shall be
vested in his/her transferee, subject to such transferee executing agreements
binding them to the provisions of this Plan, who shall be substituted as a
party hereunder, and that Participant shall have no further interest in his or
her Policy or in this Plan.


 


Article 10 


Insurer


 


The Insurer shall be bound only by the terms of their corresponding
Policy. Any payments the Insurer makes or actions it takes in accordance with a
Policy shall fully discharge it from all claims, suits and demands of all
persons relating to that Policy. The Insurer shall not be bound by the
provisions of this Plan, except to the extent of any endorsement filed with the
Insurer. The Insurer shall have the right to rely on the Bank’s representations
with regard to any definitions, interpretations, or Policy interests as
specified under this Plan.


 


Article 11


Claims Procedure


 


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


 


11.1.1                      Initiation — Written Claim. 
The claimant initiates a claim by submitting to the Bank a written claim
for the benefits.


 


11.1.2                      Timing of Bank Response. The Bank shall respond to such
claimant within 90 days after receiving the claim. If the Bank determines that
special circumstances require additional time for processing the claim, the
Bank 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 Bank expect to render their
decision.


 


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


 


11.1.3.1        The
specific reasons for the denial,


 


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11.1.3.2        A
reference to the specific provisions of the Plan on which the denial is based,


 


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


 


11.1.3.4        An
explanation of the Plan’s review procedures and the time limits applicable to
such procedures, and


 


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


 


Article 12 


Amendment or Termination of Plan


 


12.1                         Non-Vested Insurance Benefit. Unless a Participant has a
Vested Insurance Benefit pursuant to Section 5.1, the Bank may amend or
terminate the Plan at any time or may amend or terminate a Participant’s rights
under the Plan at any time prior to a Participant’s death by written notice to
the Participant.


 


12.2                         Vested Insurance Benefit. If a Participant has a Vested Insurance
Benefit, the Bank may amend or terminate the Plan for that Participant only if:
(1) continuation of the Plan would cause significant financial harm to the
Bank and (2) the Participant agrees to such action.


 


Article 13


Miscellaneous


 


13.1                         Administrator. The Bank shall be the administrator of this
Plan. The Bank may delegate to others certain aspects of the management and
operational responsibilities including the service of advisors and the
delegation of ministerial duties to qualified individuals.


 


13.2                         Administration. The Bank shall have powers which are
necessary to administer this Plan, including but not limited to:


 


13.2.1        Interpreting
the provisions of the Plan;


 


13.2.2        Establishing
and revising the method of accounting for the Plan;


 


13.2.3        Maintaining
a record of benefit payments; and


 


13.2.4        Establishing
rules and prescribing any FORMS necessary or desirable to administer the
Plan.


 


13.3                         Applicable Law. The Plan and all rights hereunder shall be
governed by the laws of the State of Tennessee, except to the extent preempted
by the laws of the United States of America.


 


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13.4         Binding
Effect. This Plan shall bind the Participant and the Bank, and their
beneficiaries, survivors, executors, successors, administrators and
transferees.


 


13.5         Entire
Agreement. This Plan constitutes the entire agreement between the
Bank and the Participant as to the subject matter hereof. No rights are granted
to the Participant by virtue of this Plan other than those specifically set
forth herein.


 


13.6         Right of
Offset. The Bank shall have the right to offset the benefits against
any unpaid obligation the Participant may have with the Bank.


 


13.7         No Guarantee
of Employment. This Plan is not an employment policy or contract. It
does not give the Participant the right to remain an employee of the Bank, nor
does it interfere with the Bank’s right to terminate the Participant’s
employment. It also does not require the Participant to remain in employment
nor interfere with the Participant’s right to terminate employment at any time.


 


13.8         Notice.
Any notice, consent or demand required or permitted to be given under the
provisions of this Group Term Carve-Out Plan by one party to another shall be
in writing, shall be signed by the party giving or making the same, and may be
given either by delivering the same to such other party personally, or by
mailing the same, by United States certified mail, postage prepaid, to such
party, addressed to his or her last known address as shown on the records of
the Bank. The date of such mailing shall be deemed the date of such mailed
notice, consent or demand.


 


13.9         Recovery of
Estate Taxes. If the Participant’s gross estate for federal estate
tax purposes includes any amount determined by reference to and on account of
this Plan, and if the beneficiary is other than the Participant’s estate, then
the Participant’s estate shall be entitled to recover from the beneficiary
receiving such benefit under the terms of the Plan, an amount by which the total
estate tax due by the Participant’s estate, exceeds the total estate tax which
would have been payable if the value of such benefit had not been included in
the Participant’s gross estate. If there is more than one person receiving such
benefit, the right of recovery shall be against each such person. In the event
the beneficiary has a liability hereunder, the beneficiary may petition the
Bank for a lump sum payment in an amount not to exceed the beneficiary’s
liability hereunder.


 


13.10       Reorganization.
The Bank shall not merge or consolidate into or with another company, or
reorganize, or sell substantially all of its assets to another company, firm,
or person unless such succeeding or continuing company, firm, or person agrees
to assume and discharge the obligations of the Bank under this Plan. Upon the
occurrence of such event, the term “Bank” as used in this Plan shall be deemed
to refer to the successor or survivor company.


 


13.11       Tax
Withholding. The Bank shall withhold any taxes that are required to
be withheld from the benefits provided under this Plan.


 


13.12       Unfunded
Arrangement. The Participant and beneficiary are general unsecured
creditors of the Bank for the payment of benefits under this Plan. The benefits
represent the mere promise by the Bank to pay such benefits. Any insurance on
the Participant’s life is a general asset of the Bank to which the Participant
and beneficiary have no preferred or secured claim.


 


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IN WITNESS WHEREOF, the Bank executes this Plan as of the date
indicated above.


 


	
  ATTEST:

  	
   

  	
  BANK:

  
	
   

  	
   

  	
  FIRST FARMERS & MERCHANTS NATIONAL
  BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   /s/
  Martha M. McKennon

  	
   

  	
  By:

  	
   /s/
  Waymon L. Hickman

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   Chairman

  
					



 


 


By execution hereof, First Farmers & Merchants Corporation consents
to and agrees to be bound by the terms and condition of this Plan document.


 


 


	
  ATTEST:

  	
   

  	
  BANK:

  
	
   

  	
   

  	
  FIRST FARMERS & MERCHANTS
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Martha M. McKennon

  	
   

  	
  By:

  	
   /s/
  Waymon L. Hickman

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title: 

  	
  Chairman

  
					



 


10

















 


SCHEDULE


TO


FIRST FARMERS & MERCHANTS BANK


GROUP TERM CARVE-OUT PLAN


 




	
  Named Executive Officer

  	
   

  	
  Benefit Amount

  	
   

  
	
  N. Houston
  Parks

  	
   

  	
  $

  	
  250,000

  	
   

  
	
  Timothy E.
  Pettus

  	
   

  	
  250,000

  	
   

  
	
  T. Randy
  Stevens

  	
   

  	
  450,000

  	
   

  
	
  John P.
  Tomlinson, III

  	
   

  	
  325,000

  	
   

  
					






 


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