Exhibit 10.12
FIRST UNITED SECURITY BANK
DIRECTOR RETIREMENT AGREEMENT
THIS AGREEMENT is made this 17th day of October, 2002, by and between
UNITED SECURITY BANCSHARES, INC., a Delaware corporation ("USB"), FIRST UNITED
SECURITY BANK, a state-chartered commercial bank located in Thomasville, Alabama
("FUSB") (USB and FUSB are collectively referred to herein as the "Company") and
Hardie B. Kimbrough (the "Director").
INTRODUCTION
To encourage the Director to remain a member of the Company's Board of
Directors, the Company is willing to provide retirement benefits to the
Director. The Company will pay the benefits from its general assets.
AGREEMENT
The Director and the Company agree as follows:
Article 1
Definitions
Whenever used in this Agreement, the following words and phrases shall have
the meanings specified:
1.1 "Board" means the Board of Directors of USB.
1.2 A "Change of Control" shall be deemed to have occurred as of the first
day that any one or more of the following conditions have been satisfied:
(i) Any Person (other than those Persons in control of USB as of
the Effective Date, or other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or a corporation
owned directly or indirectly by the stockholders of USB in substantially
the same proportions as their ownership of stock of USB), who becomes the
Beneficial Owner, directly or indirectly, of securities of USB or FUSB
representing thirty percent (30%) or more of the combined voting power of
USB or FUSB then outstanding securities; or
(ii) During any period of two (2) consecutive years (not including
any period prior to the Effective Date), individuals who at the beginning
of such period constitute the Board (and any new Director, whose election
by USB stockholders was approved by a vote of at least two-thirds (2/3) of
the Directors then still in office who either were Directors at the
beginning of the period or whose election or nomination for election was
so approved, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board) cease for any reason to
constitute at least sixty percent (60%) thereof; or
(iii) The stockholders of USB and/or FUSB approve: (A) a plan of
complete liquidation of USB or FUSB; or (B) an agreement for the sale or
disposition of all or substantially all the assets of USB or FUSB; or (C)
a merger, consolidation or reorganization of USB or FUSB with or involving
any
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other corporation, other than a merger, consolidation or reorganization
that would result in the voting securities of USB or FUSB, as the case may
be, outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of
the surviving entity) greater than 50% of the combined voting power of the
voting securities of USB or FUSB, as the case may be (or the surviving
entity, or an entity which as a result of such transaction owns USB or
FUSB, as the case may be, or all or substantially all of such Company's
assets either directly or through one or more subsidiaries) outstanding
immediately after such merger, consolidation or reorganization.
Provided, however, that in no event shall a Change of Control be deemed to
have occurred, with respect to the Director, if the Director is part of a
purchasing group which consummates the Change of Control transaction. The
Director shall be deemed "part of a purchasing group" for purposes of the
preceding sentence if the Director is an equity participant in the
purchasing company or group (except for: (i) passive ownership of less
than three percent (3%) of the stock of the purchasing company; or (ii)
ownership of equity participation in the purchasing company or group which
is otherwise not significant, as determined prior to the Change of Control
by a majority of the non-employee Directors who were Directors prior to
the transaction, and who continue as Directors following the transaction).
For purposes of this definition of Change of Control, the following terms
have the following meanings:
"Beneficial Owner" shall have the meaning ascribed to such term in Rule
13d-3 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended ("Exchange Act").
"Person" shall have the meaning ascribed to such term in Section 3(a)(9)
of the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a "group" as defined in Section 13(d).
1.3 "Code" means the Internal Revenue Code of 1986, as amended.
1.4 "Disability" means, if the Director is covered by a Company-sponsored
disability policy, total disability as defined in such policy without regard to
any waiting period. If the Director is not covered by such a policy, Disability
means the Director suffering a sickness, accident or injury which, in the
judgment of a physician who is satisfactory to the Company, prevents the
Director from performing substantially all of the Director's normal duties for
the Company. As a condition to receiving any Disability benefits, the Company
may require the Director to submit to such physical or mental evaluations and
tests as the Company's Board of Directors deems appropriate.
1.5 "Early Termination" means the Termination of Service before Normal
Retirement Age for reasons other than death, Disability, Termination for Cause
or Termination of Service following a Change of Control.
1.6 "Early Termination Date" means the month, day and year in which Early
Termination occurs.
1.7 "Effective Date" means September 1, 2002.
1.8 "Financial Hardship" shall mean (a) a severe financial hardship to the
Director resulting from a sudden and unexpected illness or accident of the
Director or of a dependent (as defined in Code Section 152(a)) of the Director,
(b) loss of the Director's property due to casualty, or (c) other similar
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the Director, each as determined to exist by the Board of
Directors of the Company.
1.9 "Normal Retirement Age" means the Director's Seventieth (70th)
birthday.
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1.10 "Normal Retirement Date" means the later of the Normal Retirement Age
or Termination of Service.
1.11 "Plan Year" means a twelve-month period commencing on September 1st
and ending on the following August 31st. The initial Plan Year shall commence on
the Effective Date.
1.12 "Termination for Cause" See Section 5.1.
1.13 "Termination of Service" means that the Director ceases to be a
member of the Company's Board of Directors for any reason, voluntarily or
involuntarily, other than by reason of a leave of absence approved by the
Company.
Article 2
Lifetime Benefits
2.1 Normal Retirement Benefit. Subject to the limitations of Article 5,
upon Termination of Service on or after the Normal Retirement Age for reasons
other than death, the Company shall pay to the Director the annual benefit
described in this Section 2.1 in lieu of any other benefit under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this Section 2.1
is Twelve Thousand Dollars ($12,000). Commencing at the end of the first
Plan Year, and each Plan Year thereafter, the annual benefit shall be
increased three percent (3.0%) from the previous Plan Year. Any additional
increase in the annual benefit, as agreed to in writing by the parties
hereto after the Effective Date, shall require the recalculation of
Schedule A.
2.1.2 Payment of Benefit. The Company shall pay the annual benefit
described in Section 2.1.1 above to the Director in twelve (12) equal
monthly installments payable on the first day of each month commencing
with the month following the Director's Normal Retirement Date. Such
annual benefit shall be paid to the Director for ten (10) consecutive
years.
2.2 Early Termination Benefit. Subject to the limitations of Article 5,
upon Early Termination, the Company shall pay to the Director the annual benefit
described in this Section 2.2 in lieu of any other benefit under this Agreement.
2.2.1 Amount of Benefit. The annual benefit under this Section 2.2
is the Early Termination Annual Benefit Payable at 65 set forth in
Schedule A for the Plan Year ending immediately prior to the date of
Termination of Service.
2.2.2 Payment of Benefit. The Company shall pay the annual benefit
described in Section 2.2.1 above to the Director in twelve (12) equal
monthly installments payable on the first day of each month commencing
with the month following the Normal Retirement Age. Such annual benefit
shall be paid to the Director for ten (10) consecutive years.
2.3 Disability Benefit. Subject to the limitations of Article 5, if the
Director terminates service due to
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Disability prior to Normal Retirement Age, the Company shall pay to the Director
the annual benefit described in this Section 2.3 in lieu of any other benefit
under this Agreement.
2.3.1 Amount of Benefit. The annual benefit under this Section 2.3
is the Disability Annual Benefit Payable at 65 set forth in Schedule A for
the Plan Year ending immediately prior to the date on which the
Termination of Service occurs.
2.3.2 Payment of Benefit. The Company shall pay the annual benefit
described in Section 2.3.1 above to the Director in twelve (12) equal
monthly installments payable on the first day of each month commencing
with the month following the Normal Retirement Age. Such annual benefit
shall be paid to the Director for ten (10) consecutive years.
2.4 Change of Control Benefit. Subject to the limitations of Article 5,
upon Termination of Service following a Change of Control, the Company shall pay
to the Director the annual benefit described in this Section 2.4 in lieu of any
other benefit under this Agreement.
2.4.1 Amount of Benefit. The annual benefit under this Section 2.4
is the Change of Control Annual Benefit Payable at 65 set forth in
Schedule A for the Plan Year ending immediately prior to the date in which
Termination of Service occurs.
2.4.2 Payment of Benefit. The Company shall pay the annual benefit
described in Section 2.4.1 above to the Director in twelve (12) equal
monthly installments payable on the first day of each month commencing
with the month following the Normal Retirement Age. Such annual benefit
shall be paid to the Director for ten (10) consecutive years.
Article 3
Death Benefits
3.1 Death During Active Service. If the Director dies while in the active
service of the Company, the Company shall pay to the Director's beneficiary the
benefit described in this Section 3.1. This benefit shall be paid in lieu of any
benefits described in Article 2.
3.1.1 Amount of Benefit. The benefit under this Section 3.1 is the
maximum Annual Benefit described in Section 2.1.1 as if the Director's
death had occurred at the Normal Retirement Age.
3.1.2 Payment of Benefit. The Company shall pay the benefit
described in Section 3.1.1 above to the Director's beneficiary in twelve
(12) equal monthly installments payable on the first day of each month
commencing with the month following the Director's death. Such annual
benefit shall be paid to the Director's beneficiary for ten (10)
consecutive years.
3.2 Death During Benefit Period. If the Director dies after the benefit
payments have commenced under this Agreement but before receiving all such
payments, the Company shall pay the remaining benefits to the Director's
beneficiary designated in accordance with Section 4.1 below at the same time and
in the same amounts as would have been paid to the Director had the Director
survived.
3.3 Death After Termination of Service But Before Benefit Payments
Commence. If the Director is entitled to benefit payments under this Agreement,
but dies prior to the commencement of said benefit payments, the Company shall
pay to the Director's beneficiary designated in accordance with Section 4.1
below the benefit
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payments that the Director was entitled to prior to death except that the
benefit payments shall commence on the first day of the month following the date
of the Director's death.
Article 4
Beneficiaries
4.1 Beneficiary Designations. The Director shall designate a beneficiary
by filing a written designation with the Company. The Director may revoke or
modify the designation at any time by filing a new designation. However,
designations will only be effective if signed by the Director and accepted by
the Company during the Director's lifetime. The Director's beneficiary
designation shall be deemed automatically revoked if the beneficiary predeceases
the Director, or if the Director names a spouse as beneficiary and the marriage
is subsequently dissolved. If the Director dies with no beneficiary designation
or without a valid beneficiary designation, all payments shall be made to the
Director's estate.
4.2 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 Company may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor, incapacitated
person or incapable person. The Company may require proof of incapacity,
minority or guardianship as it may deem appropriate prior to distribution of the
benefit. Such distribution shall completely discharge the Company from all
liability with respect to such benefit.
Article 5
General Limitations
5.1 Termination for Cause. Notwithstanding any provision of this Agreement
to the contrary, the Company shall not pay any benefit under this Agreement if
the Company terminates the Director's service for:
(a) Gross negligence, gross neglect or repeated failure of duties;
(b) Commission of a gross misdemeanor involving moral turpitude or
conviction of, or pleading guilty or nolo contendere to, a felony; or
(c) Fraud, disloyalty, dishonesty or willful violation of any law or
significant Company policy committed in connection with the Director's
service and resulting in an adverse effect on the Company.
5.2 Suicide or Misstatement. The Company shall not pay any benefit under
this Agreement if the Director commits suicide within two (2) years after the
date of this Agreement, or if the Director has made any material misstatement of
fact on any application for life insurance purchased by the Company.
5.3 Competition after Termination of Service. The Company shall not pay
any benefit, or shall cease paying benefits, under this Agreement if the
Director, without the prior written consent of the Company, engages in, becomes
interested in, directly or indirectly, as a sole proprietor, as a partner in a
partnership, or as a substantial shareholder in a corporation, or becomes
associated with, in the capacity of employee, director, officer, principal,
agent, trustee or in any other capacity whatsoever, any other federally insured
depository institution headquartered or having a physical presence within a
fifty (50) mile radius of the office of the Company or its affiliates in which
the Director was most recently employed, which institution is, or may deemed to
be, competitive with any business carried on by the Company, within a period of
two (2) years following Termination of Service. In the event the Company
determines that the Director has violated the conditions of this
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Section 5.3 after receiving benefits under this Agreement, the Director shall
repay to the Company an amount equal to the benefits paid hereunder, with
interest computed at an annual rate of eight percent (8%). In the event that the
Company has a right to recoup any benefits paid hereunder, the Company shall
also have the right to offset any other payments to be made to the Director by
the Company, as allowed by law. This Section 5.3 shall not be applicable in the
case of Termination of Service following a Change of Control nor shall it apply
in the event the Director is terminated by the Company without cause (as defined
in Section 5.1 above).
Article 6
Claims and Review Procedures
6.1 Claims Procedure. A Director or beneficiary ("claimant") who has not
received benefits under the Agreement that he or she believes should be paid
shall make a claim for such benefits as follows:
6.1.1 Initiation - Written Claim. The claimant initiates a claim by
submitting to the Company a written claim for the benefits.
6.1.2 Timing of Company Response. The Company shall respond to such
claimant within 90 days after receiving the claim. If the Company
determines that special circumstances require additional time for
processing the claim, the Company 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 Company expects to render its decision.
6.1.3 Notice of Decision. If the Company denies part or all of the
claim, the Company shall notify the claimant in writing of such denial.
The Company shall write the notification in a manner calculated to be
understood by the claimant. The notification shall set forth:
6.1.3.1 The specific reasons for the denial,
6.1.3.2 A reference to the specific provisions of the
Agreement on which the denial is based,
6.1.3.3 A description of any additional information or
material necessary for the claimant to perfect the claim and an
explanation of why it is needed,
6.1.3.4 An explanation of the Agreement's review procedures
and the time limits applicable to such procedures, and
6.1.3.5 A statement of the claimant's right to bring a civil
action under ERISA Section 502(a) following an adverse benefit
determination on review.
If the notice of denial of your claim is not furnished in accordance
with the above within a reasonable period of time, the claim will be
deemed denied and the Director will then proceed to the review stage
described below.
6.2 Review Procedure. If the Company denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by the Company of
the denial (or deemed denial), as follows:
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6.2.1 Initiation - Written Request. To initiate the review, the
claimant, within 60 days after receiving the Company's notice of denial
(or deemed denial), must file with the Company a written request for
review.
6.2.2 Additional Submissions - Information Access. The claimant
shall then have the opportunity to submit written comments, documents,
records and other information relating to the claim. The Company 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.
6.2.3 Considerations on Review. In considering the review, the
Company 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.
6.2.4 Timing of Company Response. The Company shall respond in
writing to such claimant within 60 days after receiving the request for
review. If the Company determines that special circumstances require
additional time for processing the claim, the Company 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 Company expects to render its
decision.
6.2.5 Notice of Decision. The Company shall notify the claimant in
writing of its decision on review. The Company shall write the
notification in a manner calculated to be understood by the claimant. The
notification shall set forth:
6.2.5.1 The specific reasons for the denial,
6.2.5.2 A reference to the specific provisions of the
Agreement on which the denial is based,
6.2.5.3 A statement that the claimant is entitled to receive,
upon request and free of charge, reasonable access to, and copies
of, all documents, records and other information relevant (as
defined in applicable ERISA regulations) to the claimant's claim for
benefits, and
6.2.5.4 A statement of the claimant's right to bring a civil
action under ERISA Section 502(a).
If the notice of denial of your claim upon review is not furnished
in accordance with the above within a reasonable period of time, the claim
will be deemed denied again.
Article 7
Amendments and Termination
This Agreement may be amended or terminated only by a written agreement
signed by the Company (and approved by its Board of Directors) and the Director.
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Article 8
Miscellaneous
8.1 Binding Effect. This Agreement shall bind the Director and the
Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
8.2 No Guarantee of Service. This Agreement is not a contract for
services. It does not give the Director the right to remain in the service of
the Company, nor does it interfere with the shareholder's rights to discharge
the Director. It also does not require the Director to remain in the service of
the Company nor interfere with the Director's right to terminate services at any
time.
8.3 Non-Transferability. Neither the Director, his or her beneficiary, nor
his or her legal representative shall have any rights to commute, sell, assign,
transfer, place a lien or other encumbrance upon, or otherwise convey the right
to receive any payments hereunder, which payments and the rights thereto are
expressly declared to be nonassignable and nontransferable. Any attempt to
assign, transfer or otherwise encumber the right to payments under this
Agreement shall be void and have no effect.
8.4 Reorganization. The Company 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 Company
under this Agreement. Upon the occurrence of such event, the term "Company" as
used in this Agreement shall be deemed to refer to the successor or survivor
company.
8.5 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.6 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of Alabama, except to the extent preempted by
federal law.
8.7 General Assets/Unfunded Arrangement. The Director and beneficiary are
general unsecured creditors of the Company for the payment of benefits under
this Agreement. The benefits represent the mere promise by the Company to pay
such benefits. The assets from which Participant's benefits shall be paid shall
at all times be subject to the claims of the creditors of the Company; and the
Director shall have no right, claim or interest in any assets as to which
account is deemed to be invested or credited under the Agreement. The Company
shall not be obligated to fund its liabilities under the Agreement.
Notwithstanding the foregoing, the Company may establish a grantor trust or
purchase securities to assist it in meeting its obligations hereunder; provided,
however, that in no event shall any Director have any interest in such trust or
property other than as an unsecured general creditor. Further, the Company may
purchase a life insurance policy on the life of the Director, and such Director
shall cooperate with such purchase by undergoing a medical examination or taking
such other action as may be necessary to put such insurance into effect.
8.8 Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Director as to the subject matter hereof. No rights
are granted to the Director by virtue of this Agreement other than those
specifically set forth herein.
8.9 Administration. The Company shall have powers which are necessary to
administer this Agreement, including but not limited to:
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(a) Interpreting the provisions of the Agreement;
(b) Establishing and revising the method of accounting for the
Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
8.10 Named Fiduciary. The Company shall be the named fiduciary and plan
administrator under the Agreement. The named fiduciary may delegate to others
certain aspects of the management and operation responsibilities of the
agreement including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
8.11 Financial Hardship Payments. In the event of Financial Hardship of
the Director, the Director may apply to the Company for the early distribution
of all or any part of the benefits the Director is entitled to receive under
this Agreement. The Company shall present the circumstances of each such case to
the Board of Directors for consideration and the Board shall have the right, in
its sole discretion, if applicable, to allow such distribution, or, if
applicable, to direct a distribution of part of the amount requested or to
refuse to allow any distribution. In no event shall the aggregate amount of the
distribution exceed either the amount of benefits the Director is entitled to
under this Agreement or the amount determined by the Board to be necessary to
alleviate the Director's Financial Hardship (which Financial Hardship may be
considered to include any taxes due because of the distribution occurring
because of this Section), and that is not reasonably available from other
resources of the Director.
8.12 Notice. Any notice, consent or demand required or permitted to be
given under the provisions of this Agreement shall be in writing, and shall be
signed by the party giving or making the same. If such notice, consent or demand
is mailed, it shall be sent by United States certified mail, postage prepaid.
The date of such mailing shall be deemed the date of notice, consent or demand.
With respect to the Director, any notice, consent or demand shall be addressed
to the Director's last known address as shown on the records of the Company.
With respect to the Company or the Board, any notice, consent or demand shall be
addressed to _______________________________. Any party may change the address
to which notice is to be sent by giving notice of the change of address in the
manner aforesaid.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer
have signed this Agreement.
DIRECTOR: COMPANY:
FIRST UNITED SECURITY BANK
/s/ Hardie B. Kimbrough By /s/ R. Terry Phillips
Hardie B. Kimbrough
Title President / CEO
UNITED SECURITY BANCSHARES, INC.
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By /s/ R. Terry Phillips
Title President / CEO
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EXHIBIT A
BENEFICIARY DESIGNATION
FIRST UNITED SECURITY BANK
SALARY CONTINUATION AGREEMENT
Hardie B. Kimbrough
I designate the following as beneficiary of any death benefits under this Salary
Continuation Agreement: [If you name more than one primary or contingent
beneficiary, clearly state the percentage of the death benefit each beneficiary
is to receive.]
Primary:
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Contingent:
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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.
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I understand that I may change these beneficiary designations by filing a new
written designation with the Company. 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. I
also understand that this beneficiary designation revokes any prior beneficiary
designation(s) with respect to this Agreement.
Signature
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Date
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Accepted by the Company this day of , 200 .
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By
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Title
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A-1
Clark/Bardes Consulting Plan Year Reporting
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First United Security Bank
Director Retirement Plan - Schedule A
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Hardie B Kimbrough
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DOB: 1/4/1938 Early Voluntary Disability Change of Control
Termination
Plan Anniv Date: 10/1/2003
Retirement Age: 70 Installment Installment Installment
Payments: Monthly Installments Payable at 70 Payable at 70 Payable at 70
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Benefit Accrual Based on Based on Based on
Level/2/ Balance Vesting Accrual Vesting Benefit Vesting Benefit
Period -----------------------------------------------------------------------------------
Ending Age (1) (2) (3) (4) (5) (6) (7) (8)
- ----------------------------------------------------------------------------------------------------
Sep 2003/1/ 65 12,360 13,295 100% 2,735 100% 12,360 100% 14,329
Sep 2004 66 12,731 28,206 100% 5,357 100% 12,731 100% 14,329
Sep 2005 67 13,113 45,070 100% 7,904 100% 13,113 100% 14,329
Sep 2006 68 13,506 64,430 100% 10,433 100% 13,506 100% 14,329
Sep 2007 69 13,911 87,457 100% 13,076 100% 13,911 100% 14,329
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Jan 2008 70 14,329 98,416 100% 14,329 100% 14,329 100% 14,329
January 4, 2008 Retirement; February 29, 2008 First Payment Date
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/1/ The first line reflects 12 months of data, October 2002 to September 2003.
/2/ Benefit amount based on a beginning compensation of $12,000 inflating at
3.00% each year to $14,329 at retirement. Annual Benefit payment of $14,329
is 100% of projected final compensation.
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