Exhibit 10.1
FIRST UNITED SECURITY BANK
SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is made this 20th day of September, 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
DAN BARLOW (the "Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to provide salary continuation benefits to the Executive. The
Company will pay the benefits from its general assets.
AGREEMENT
The Executive 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
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(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 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 Executive, if the
Executive is part of a purchasing group which consummates the Change
of Control transaction. The Executive shall be deemed "part of a
purchasing group" for purposes of the preceding sentence if the
Executive 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 the Executive's suffering a sickness, accident or
injury which has been determined by the carrier of any individual or group
disability insurance policy covering the Executive, or by the Social Security
Administration, to be a disability rendering the Executive totally and
permanently disabled. The Executive must submit proof to the Company of the
carrier's or Social Security Administration's determination upon the request of
the Company.
1.5 "Early Termination" means the Termination of Employment before Normal
Retirement Age for reasons other than death, Disability, Termination for Cause
or Termination of Employment 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.
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1.8 "Financial Hardship" shall mean (a) a severe financial hardship to the
Executive resulting from a sudden and unexpected illness or accident of the
Executive or of a dependent (as defined in Code Section 152(a)) of the
Executive, (b) loss of the Executive's property due to casualty, or (c) other
similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Executive, each as determined to exist by the
Board of Directors of the Company.
1.9 "Normal Retirement Age" means the Executive's Sixty-Fifth (65th)
birthday.
1.10 "Normal Retirement Date" means the later of the Normal Retirement Age
or Termination of Employment.
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 Employment" means that the Executive ceases to be
employed by the Company for any reason whatsoever other than by reason of a
leave of absence, which is approved by the Company.
Article 2
Lifetime Benefits
2.1 Normal Retirement Benefit. Subject to the limitations of Article 5,
upon Termination of Employment on or after the Normal Retirement Age for reasons
other than death, the Company shall pay to the Executive 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
Thirty Thousand Seven Hundred Seventy-three Dollars ($30,773). Commencing
at the end of the first Plan Year, and each Plan Year thereafter, the
annual benefit shall be increased four percent (4.0%) 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 Executive in twelve (12) equal
monthly installments payable on the first day of each month commencing with
the month following the Executive's Normal Retirement Date. Such annual
benefit shall be paid to the Executive for fifteen (15) consecutive years.
2.2 Early Termination Benefit. Subject to the limitations of Article 5,
upon Early Termination, the Company shall pay to the Executive 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
Employment. The Early Termination Benefit is calculated based on the vested
portion of the attained benefit level for the Plan Year as described in
Section 2.1.1. Vesting is 20% at the end of the first Plan Year and
increases an additional 20% per Plan Year until it reaches 100% at the end
of the fifth Plan Year.
2.2.2 Payment of Benefit. The Company shall pay the annual benefit
described in Section
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2.2.1 above to the Executive 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
Executive for fifteen (15) consecutive years.
2.3 Disability Benefit. Subject to the limitations of Article 5, if the
Executive terminates employment due to Disability prior to Normal Retirement
Age, the Company shall pay to the Executive 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
Employment occurs.
2.3.2 Payment of Benefit. The Company shall pay the annual benefit
described in Section 2.3.1 above to the Executive 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 Executive for fifteen (15) consecutive years.
2.4 Change of Control Benefit. Subject to the limitations of Article 5,
upon Termination of Employment following a Change of Control, the Company shall
pay to the Executive 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 Employment occurs.
2.4.2 Payment of Benefit. The Company shall pay the annual benefit
described in Section 2.4.1 above to the Executive 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 Executive for fifteen (15) consecutive years.
Article 3
Death Benefits
3.1 Death During Active Service. If the Executive dies while in the active
service of the Company, the Company shall pay to the Executive'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 Executive'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 Executive's beneficiary in twelve (12) equal
monthly installments payable on the first day of each month commencing with
the month following the Executive's death. Such annual benefit shall be
paid to the Executive's beneficiary for fifteen (15) consecutive years.
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3.2 Death During Benefit Period. If the Executive 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 Executive'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 Executive had the Executive
survived.
3.3 Death After Termination of Employment But Before Benefit Payments
Commence. If the Executive is entitled to benefit payments under this Agreement,
but dies prior to the commencement of said benefit payments, the Company shall
pay to the Executive's beneficiary designated in accordance with Section 4.1
below the benefit payments that the Executive 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 Executive's death.
Article 4
Beneficiaries
4.1 Beneficiary Designations. The Executive shall designate a beneficiary
by filing a written designation with the Company. The Executive may revoke or
modify the designation at any time by filing a new designation. However,
designations will only be effective if signed by the Executive and accepted by
the Company during the Executive's lifetime. The Executive's beneficiary
designation shall be deemed automatically revoked if the beneficiary predeceases
the Executive, or if the Executive names a spouse as beneficiary and the
marriage is subsequently dissolved. If the Executive dies with no beneficiary
designation or without a valid beneficiary designation, all payments shall be
made to the Executive'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 Executive's employment 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 Executive's
employment 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 Executive commits suicide within two (2) years after the
date of this Agreement, or if the Executive has
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made any material misstatement of fact on any application for life insurance
purchased by the Company.
5.3 Competition after Termination of Employment. The Company shall not pay
any benefit, or shall cease paying benefits, under this Agreement if the
Executive, 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 Executive 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 Employment. In the event the Company
determines that the Executive has violated the conditions of this Section 5.3
after receiving benefits under this Agreement, the Executive 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 Executive by the Company,
as allowed by law. This Section 5.3 shall not be applicable in the case of
Termination of Employment following a Change of Control nor shall it apply in
the event the Executive is terminated by the Company without cause (as defined
in Section 5.1 above).
Article 6
Claims and Review Procedures
6.1 Claims Procedure. An Executive 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,
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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 Executive 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:
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
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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
Executive.
Article 8
Miscellaneous
8.1 Binding Effect. This Agreement shall bind the Executive and the
Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
8.2 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, nor does it interfere with the Company's right to discharge the
Executive. It also does not require the Executive to remain an employee nor
interfere with the Executive's right to terminate employment at any time.
8.3 Non-Transferability. Neither the Executive, 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 Executive 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
Executive 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
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in meeting its obligations hereunder; provided, however, that in no event shall
any Executive 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 Executive, and such Executive 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 Executive as to the subject matter hereof. No rights
are granted to the Executive 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:
(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
Executive, the Executive may apply to the Company for the early distribution of
all or any part of the benefits the Executive 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 Executive is entitled to under this
Agreement or the amount determined by the Board to be necessary to alleviate the
Executive'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
Executive.
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 Executive, any notice, consent or demand shall be addressed
to the Executive'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 the President and CEO. 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 Executive and a duly authorized Company officer
have signed this
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Agreement.
EXECUTIVE: COMPANY:
FIRST UNITED SECURITY BANK
/s/ Dan Barlow By /s/ R. Terry Phillips
DAN BARLOW
Title President / CEO
UNITED SECURITY BANCSHARES, INC.
By /s/ R. Terry Phillips
Title President / CEO
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EXHIBIT A
BENEFICIARY DESIGNATION
FIRST UNITED SECURITY BANK
SALARY CONTINUATION AGREEMENT
DAN BARLOW
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: ----------------------------------------------------------------------
- --------------------------------------------------------------------------------
Contingent: -------------------------------------------------------------------
- --------------------------------------------------------------------------------
Note: To name a trust as beneficiary, please provide the name of the trustee(s)
and the exact name and date of the trust agreement.
-----
I understand that I may change these beneficiary designations by filing a new
written designation with the 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
------------------------------
Date
----------------------------------
Accepted by the Company this _______ day of _______________, 200___.
By
------------------------------------
Title
---------------------------------
A-1
Clark/Bardes Consulting Plan Year Reporting
- -----------------------
First United Security Bank
Salary Continuation Plan - Schedule A
-----------------------------------------------------------
Dan R. Barlow
- ----------------------------------------------------------------------------------------------------
DOB: 8/18/1941 Early Retirement Disability Change of Control
Plan Anniv Date: 9/1/2003
Retirement Age: 65 Installment Installment Installment
Payments: Monthly Installments Payable at 65 Payable at 65 Payable at 65
- ----------------------------------------------------------------------------------------------------
Benefit Accrual Based On Based On Based On
Level/2/ Balance Vesting Benefit Vesting Benefit Vesting Benefit
Period ---------------------------------------------------------------------------------
Ending Age (1) (2) (3) (4) (5) (6) (7) (8)
- ----------------------------------------------------------------------------------------------------
Aug 2003/1/ 62 32,004 62,070 20% 6,401 100% 32,004 100% 36,000
Aug 2004 63 33,284 132,743 40% 13,314 100% 33,284 100% 36,000
Aug 2005 64 34,615 214,893 60% 20,769 100% 34,615 100% 36,000
Aug 2006 65 36,000 316,015 100% 36,000 100% 36,000 100% 36,000
August 2006 Retirement, 9/1/2006 First Payment Date
- ----------------------------------------------------------------------------------------------------
/1/ The first line reflects 12 months of data, September 2002 to August 2003.
/2/ Benefit amount based on a beginning compensation of $30,773 inflating at
4.00% each year to $36,000 at retirement. Annual Benefit payment of $36,000
is 100% of projected final compensation.
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