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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(AMENDMENT NO. 1)
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDING DECEMBER 31, 1998
OR
[ ] TRANSACTION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
FOR THE TRANSITION PERIOD FROM________TO__________
COMMISSION FILE NO. 0-11916
FIRST UNITED BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
ARKANSAS 71-0538646
- -------------------------------- -------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
MAIN AND WASHINGTON STREETS, EL DORADO, ARKANSAS 71730
- ------------------------------------------------ ----------
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: (870) 863-3181
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NAME OF EACH EXCHANGE ON
TITLE OF CLASS WHICH REGISTERED
-------------- ------------------------
Common Stock, $1.00 par value NASDAQ-NMS
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [x] No [ ]
As of March 1, 1999, 25,294,296 shares of the Registrant's Common
Stock, $1.00 par value were issued and outstanding, and the approximate
aggregate market value of the voting stock held by non-affiliates of the
registrant was approximately $386,963,544. (For purposes of the above stated
amount only, all directors and officers of the registrant are presumed to be
affiliates.)
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the following documents are incorporated by reference
into the listed Parts and Items of Form 10-K:
Annual Report to Stockholders for the year ending December 31, 1998
to the extent indicated in the Form 10-K cross reference index - PARTS II, III,
and IV.
Definitive Proxy Statement to Stockholders to be filed with the
Securities and Exchange Commission not later than 120 days after the close of
the Registrant's fiscal year - PART III.
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FIRST UNITED BANCSHARES, INC.
ANNUAL REPORT ON FORM 10-K
December 31, 1998
This report on Form 10-K/A amends the report on Form 10-K of First
United Bancshares, Inc. filed with the Securities and Exchange Commission on
March 30, 1999. This amendment is filed solely to amend and supplement Part IV,
Item 14, sub-section C entitled "Exhibits" of Form 10-K as follows:
ITEM 14(C) EXHIBITS.
The separate section filed as part of the Annual Report on Form 10-K
under the caption "Exhibit Index" is hereby amended to add the following
exhibits which are filed herewith.
EXHIBIT NUMBER DESCRIPTION
10(g) Supplemental Executive Retirement Agreement
between First United Bancshares, Inc. and
Robert L. Jones dated December 31, 1993.
10(h) Supplemental Executive Retirement Agreement
between First United Bancshares, Inc. and
Jimmy N. Harwood dated December 31, 1993.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized, on this 5th day of
April, 1999.
FIRST UNITED BANCSHARES, INC.
By: /s/ JAMES V. KELLEY
------------------------------------
James V. Kelley
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ JAMES V. KELLEY Chairman of the Board, President, Chief April 5, 1999
- ----------------------- Executive Officer
James V. Kelley
/s/ JOHN G. COPELAND Chief Financial Officer and Principle April 5, 1999
- ----------------------- Accounting Officer
John G. Copeland
/s/ E. LARRY BURROW * Director April 5, 1999
- -----------------------
E. Larry Burrow
- -----------------------
Claiborne P. Deming Director April 5, 1999
/s/ AL GRAVES, JR. * Director April 5, 1999
- -----------------------
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ TOMMY HILLMAN * Director April 5, 1999
- -----------------------------
Tommy Hillman
/s/ ROY E. LEDBETTER * Director April 5, 1999
- -----------------------------
Roy E. Ledbetter
/s/ MICHAEL F. MAHONY * Director April 5, 1999
- -----------------------------
Michael F. Mahony
* Director April 5, 1999
- -----------------------------
Richard H. Mason
/s/ JACK W.MCNUTT * Director April 5, 1999
- -----------------------------
Jack W. McNutt
/s/ GEORGE MIDDLEBROOK, III * Director April 5, 1999
- -----------------------------
George Middlebrook, III
/s/ R. MADISON MURPHY * Director April 5, 1999
- -----------------------------
R. Madison Murphy
/s/ ROBERT C. NOLAN * Director April 5, 1999
- -----------------------------
Robert C. Nolan
/s/ CAL PARTEE, JR. * Director April 5, 1999
- -----------------------------
Cal Partee, Jr.
- ----------------------------- Director
Carolyn Tennyson
/s/ JOHN D. TRIMBLE, JR. * Director
- -----------------------------
John D. Trimble, Jr.
</TABLE>
* By: /s/ JAMES V. KELLEY
-----------------------
James V. Kelley
Attorney-in-Fact
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Index
Number Description
- ------ -----------
<S> <C>
10(g) Supplemental Executive Retirement Agreement between First
United Bancshares, Inc. and Robert L. Jones dated December 31,
1993.
10(h) Supplemental Executive Retirement Agreement between First
United Bancshares, Inc. and Jimmy N. Harwood dated December
31, 1993.
</TABLE>
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EXHIBIT 10(g)
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
BETWEEN
FIRST UNITED BANCSHARES, INC. AND ROBERT L. JONES
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EXHIBIT 10(g)
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SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
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This Agreement, made and entered into this 31st day of December ,
1993, by and between First United Bancshares, Inc., a bank holding company with
its principal office in the State of Arkansas, hereinafter referred to as
"Corporation" and Robert L. Jones, a key employee and executive hereinafter
referred to as "Executive."
W I T N E S S E T H:
WHEREAS, the Executive is employed by a subsidiary bank of the
Corporation;
WHEREAS, the banking organization has amended its defined benefit
pension plan to comply with the provisions of the Internal Revenue Code, and in
amending such plan, has reduced benefits to be provided the Executive under
such plan;
WHEREAS, the Corporation wishes to take steps to replace, through a
Supplemental Executive Retirement Agreement, all or a portion of the
Executive's benefits which were reduced under such plan;
WHEREAS, the Executive wishes to be assured that he will be entitled
to a certain amount of additional compensation for some definite period of time
from and after his retirement from active service with the banking
organization;
WHEREAS, the parties hereto wish to provide the terms and conditions
upon which the Corporation shall pay such additional compensation to Executive
after his retirement or other termination of his employment;
WHEREAS, the parties hereto intend that this Agreement be considered
an unfunded arrangement, maintained primarily to provide supplemental
retirement income for the Executive, who is a member of a select group of
management or highly compensated employees of the banking organization for
purposes of the Employee Retirement Income Security Act of 1974, as amended
(ERISA);
WHEREAS, the Corporation has adopted this Supplemental Executive
Retirement Agreement which controls all issues relating to the benefits as
described herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises herein contained, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
When used herein, the following words shall have the meanings below unless the
context clearly indicates otherwise.
1.1 "ACCRUED BENEFIT" means that portion of the Deferred Compensation Benefit
which is required to be expensed and accrued under generally accepted
accounting principles by any appropriate methodology which the Board of
Directors may require in the exercise of its sole discretion.
1.2 "ACT" means the Employee Retirement Income Security Act of 1974, as it may
be amended from time to time.
1.3 "AFFILIATED COMPANY" means any trade or business entity, or a predecessor
company of such entity, if any, which is a member of a controlled group of
corporations of which the Corporation is also a member.
1.4 "BENEFICIARY" means the person or persons designated as beneficiary in
writing to the Corporation to whom the share of a deceased Executive's
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account is payable. If no beneficiary is so designated, then the
Executive's Spouse, if living, will be deemed the beneficiary. If the
Executive's Spouse is not living, then the Children of the Executive will
be deemed beneficiary. If there are no living Children, then the personal
representative of the estate of the Executive will be deemed the
beneficiary.
1.5 "BOARD" means the board of directors of the Corporation.
1.6 "CHANGE IN CONTROL" shall apply if the Corporation, or any subsidiary bank
at which the Executive is employed, is merged with or acquired by another
financial institution, or undergoes any other change in its corporate
structure as follows:
(i) any "person," including a "group" as determined in accordance with
the Section 13(d)(3) of the Securities Exchange Act of 1934 (the
"Exchange Act"), but excluding a retirement plan qualified under
Section 401 of the Internal Revenue Code (and excluding any person or
group which currently owns Corporation stock at the date of this
Agreement), is or becomes the beneficial owner, directly or
indirectly, of securities of the Corporation representing 51% or more
of the combined voting power of the Corporation's then outstanding
securities, or of the outstanding securities of the subsidiary bank
at which the Executive is employed;
(ii) as a result of, or in connection with, any tender offer or exchange
offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions
(a "Transaction"), the persons who were directors of the Corporation
before the Transaction shall cease to constitute a majority of the
Board of Directors of the Corporation or any successor to the
Corporation;
(iii) the Corporation (or the subsidiary bank at which the Executive is
employed) is merged or consolidated with another corporation and as a
result of the merger or consolidation less than 80% of the
outstanding voting securities of the surviving or resulting
corporation shall then be owned in the aggregate by the former
stockholders of the Corporation (or the subsidiary bank at which the
Executive is employed), excluding stockholders who are (a) a party to
the merger or consolidation within the meaning of the Exchange Act,
or (b) an affiliate of such party;
(iv) a tender offer or exchange offer is made and consummated for the
ownership of securities of the Corporation (or the subsidiary bank at
which the Executive is employed) representing 51% or more of the
combined voting power of the Corporation's (or the subsidiary bank at
which the Executive is employed) then outstanding voting securities;
or
(v) the Corporation (or the subsidiary bank at which the Executive is
employed) transfers substantially all of its assets to another
corporation which is not a wholly-owned subsidiary of the
Corporation.
1.7 "CHILDREN" means the Executive's children, both natural and adopted, then
living at the time payments are due the Children under this Agreement.
1.8 "CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
1.9 "DEFERRED COMPENSATION BENEFIT" means the benefit provided to the
Executive at his retirement or because of other events described under
Section IV of this Agreement which result in certain terminations from
employment.
1.10 "EARLY RETIREMENT DATE" means any date prior to the Executive reaching age
65.
1.11 "EFFECTIVE DATE" shall be the date of execution of this Agreement.
1.12 "ESTATE" means the Estate of the Executive.
1.13 "JUST CAUSE," only as this term relates to the Accrued Benefit or Deferred
Compensation Benefit, includes but is not limited to theft, fraud,
embezzlement, willful misconduct causing significant property damage to
the Corporation (or subsidiary bank at which the Executive is employed) or
personal injury to another employee, or
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willful malfeasance or gross negligence in a manner of material importance
to the Corporation (or subsidiary bank at which the Executive is
employed). For purposes of determining Just Cause, an action (or inaction)
need not constitute an actual violation of law. In addition, the
Corporation shall have sole discretion in making its determination that an
event constituting Just Cause has occurred, provided, however, that such
determination must be made in a reasonable and good faith manner. If the
Corporation is of the opinion that an event has occurred which constitutes
Just Cause, the Corporation shall provide the Executive written notice of
its decision that an event constituting Just Cause has occurred. The
Executive shall then be provided a period of 30 days (from the date of
such notice) within which to respond to such notice. After the lapse of
such 30-day period, if the Corporation still believes that an event
constituting Just Cause has occurred, then the benefit payments under this
Agreement may be terminated in accordance with the provisions of this
Agreement.
1.14 "NORMAL RETIREMENT DATE" means the first business day of the month
coincident with or next following the Executive's sixty-fifth (65th)
birthday.
1.15 "POSTPONED RETIREMENT DATE" means the first day of the month coincident
with or next following the Executive's termination of employment with the
Corporation after his Normal Retirement Date.
1.16 "SPOUSE" means the individual to whom the Executive is legally married at
the time of the Executive's death.
1.17 "SURVIVOR'S BENEFIT" means the benefit provided to Executive's
Beneficiary.
1.18 "VESTED" means the non-forfeitable portion of the Accrued Benefit that the
Executive is entitled to in accordance with the vesting schedule found in
Paragraph 4.4.
1.19 "YEAR OF SERVICE" means a twelve (12) consecutive month period, commencing
with the Executive's initial date of employment with the Corporation,
during which the Executive is considered a full-time employee of the
Corporation (including authorized leaves of absence). A fractional Year of
Service shall accrue at a rate of one-twelfth (1/12) of a Year of Service
for each full month of continuous employment, and benefits under this
Agreement shall be adjusted accordingly.
SECTION II
RETIREMENT DATE AND DISABILITY
2.1 Normal or Early Retirement Benefit. The Executive is eligible to retire
from employment and receive a benefit under this Agreement beginning on
the Normal Retirement Date, Early Retirement Date or Postponed Retirement
Date. The retirement benefit of Executive who attains his Normal
Retirement Date shall be the Deferred Compensation Benefit (see Section
4.1). The early retirement benefit of Executive who attains his Early
Retirement Date shall be either the Accrued Benefit or the Deferred
Compensation Benefit (see Section 4.2).
Board approval of early retirement is required as a condition for
entitlement to the Deferred Compensation Benefit. In the event of
voluntary early retirement of employment by Executive without Board
approval, then the Executive's benefit shall be the Vested Accrued
Benefit. The Executive's benefit, if any, in the event of involuntary
termination of employment shall be the benefit described in Section IX.
2.2 Postponed Retirement Benefit. The Postponed Retirement Benefit of the
Executive shall be the Deferred Compensation Benefit calculated as set
forth in Paragraph 4.3.
2.3 Long-Term Disability. In the event the Executive incurs a long-term
disability (as determined in the sole discretion of the Corporation), he
shall be entitled to the Deferred Compensation Benefit, commencing at his
Normal Retirement Date, as set forth in Section IV. If the Executive
recovers from his long-term disability (as determined in the sole
discretion of the Corporation) prior to his commencement of receipt of a
Deferred Compensation Benefit and he does not return to work for the
Corporation, or if his period of long-term disability ceases by reason of
his death prior to his commencement of a receipt of a Deferred
Compensation Benefit, his employment with
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the Corporation shall be deemed terminated as of the date of his recovery
or death. In such event, the Executive or his Beneficiary, as the case may
be, shall be entitled to such benefit as the Executive would be eligible
to receive under the applicable provisions of this Agreement which discuss
early retirement without Board approval (Paragraph 4.2).
SECTION III
PRE-RETIREMENT AND POST-RETIREMENT DEATH BENEFITS
3.1 Death Prior to Termination of Employment. If Executive dies prior to the
earlier of (1) Normal Retirement Date, or (2) termination of employment
with the Corporation, then no benefits shall be payable pursuant to this
Agreement.
3.2 Death During Receipt of Deferred Compensation or Accrued Benefit. In the
event of death of the Executive while receiving the Deferred Compensation
or Accrued Benefit under this Agreement, then the unpaid balance of such
monthly payments remaining to be paid at that time shall continue to be
paid monthly for the remainder of such period to the Executive's
Beneficiary. In the event of death of the Executive after having
terminated employment, but after qualifying for payment of the Deferred
Compensation or Accrued Benefit under this Agreement, then payments will
be made to the Executive's Beneficiary under the same terms and conditions
as if the Elective had survived and received payment.
SECTION IV
DEFERRED COMPENSATION BENEFITS
4.1 Normal Retirement. Provided the Executive remains employed by the
Corporation (or any subsidiary bank) until the later of Normal Retirement
Date or Postponed Retirement Date, if Executive at such time is still
covered by this Agreement, the Corporation shall commence payments of the
Deferred Compensation Benefit. Subject to the provisions and limitations
of this Agreement, the Corporation shall pay to the Executive an annual
amount, in equal monthly installments, as stated in the Addendum to this
Agreement. Such payments shall commence on the first business day of the
month next following the Executive's actual retirement date (on or after
Normal Retirement Date) and shall be payable monthly thereafter until one
hundred twenty (120) payments have been made.
4.2 Early Retirement. In the event of retirement or termination from service
prior to Normal Retirement Date (i.e., at an Early Retirement Date), the
Executive is entitled to the Deferred Compensation Benefit only if the
early retirement is approved by the Board. The amount of such early
retirement Deferred Compensation Benefit shall be determined by
multiplying the Deferred Compensation Benefit by the following fraction:
the numerator of which is the actual number of Years of Service the
Executive has been employed by the Corporation (or any subsidiary
bank) from the date of his initial employment until his early
retirement; and
the denominator of which is the total number of Years of Service the
Executive would have worked from the date of his initial employment
until his Normal Retirement Date.
Payment of the Deferred Compensation Benefit arising as a result of early
retirement in the amount computed using the above fraction shall commence
to the Executive at what would have been the Executive's Normal Retirement
Date.
The Corporation has the option to begin Deferred Compensation Benefit
payments on or after the Executive's early retirement termination from
service and before the Executive's Normal Retirement Date. If the payments
begin on or after the Early Retirement Date (and prior to Normal
Retirement Date), then the Executive's Deferred Compensation Benefit
(after having been reduced by applying the above fraction) shall be
further discounted from
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Normal Retirement Date by an interest factor equal to the Pension Benefit
Guaranty Corporation's interest rate used to value deferred and immediate
annuities in effect at the date payments are to commence.
If such early retirement is without Board approval, Executive will only be
entitled to his Vested Accrued Benefit at the date of such termination.
(See Paragraph 4.4 for any vesting schedule.) Payment of such Accrued
Benefit shall commence to the Executive at what would have been the
Executive's Normal Retirement Date. The Corporation has the option to
begin Accrued Benefit payments on or after Early Retirement Date and
before Normal Retirement Date. However, if payments begin prior to Normal
Retirement Date, the same interest rate reduction found in the second
sentence of the above paragraph shall also be applied to the Vested
Accrued Benefit payable.
In the event of any termination of employment resulting in the entitlement
of the Vested Accrued Benefit, the Vested Accrued Benefit will be paid to
the Executive in one hundred twenty (120) equal monthly installments. The
monthly benefit shall equal the amount of an annuity for a 120-month term
certain based on the Vested Accrued Benefit at the date payments commence
and an interest factor equal to the Pension Benefit Guaranty Corporation's
interest rate used to value deferred and immediate annuities in effect at
the date payments are to commence.
4.3 Postponed Retirement. The Board of Directors in the exercise of their sole
discretion may elect to increase any benefits payable to the Executive if
retirement is postponed past the Normal Retirement Date.
4.4 Vesting. Where applicable, the Accrued Benefit provided by the Corporation
to the Executive under this Agreement shall, at all times, be 100% vested.
SECTION V
EXECUTIVE'S RIGHT TO ASSETS
The rights of the Executive, any designated recipient of the Executive, or any
other person claiming through the Executive under this Agreement, shall be
solely those of an unsecured general creditor of the Corporation. The
Executive, the designated recipient of the Executive, or any other person
claiming through the Executive, shall only have the right to receive from the
Corporation those payments as specified under this Agreement. The Executive
agrees that he, his designated recipient, or any other person claiming through
him shall have no rights or interests whatsoever in any asset of the
Corporation, including any insurance policies or contracts which the
Corporation may possess or obtain to informally fund this Agreement. Any asset
used or acquired by the Corporation in connection with the liabilities it has
assumed under this Agreement, except as expressly provided, shall not be deemed
to be held under any trust for the benefit of the Executive or his recipients,
nor shall such assets be considered security for the performance of the
obligations of the Corporation. Such assets shall be, and remain, a general,
unpledged, and unrestricted asset of the Corporation.
SECTION VI
RESTRICTIONS UPON FUNDING
Corporation shall have no obligation to set aside, earmark or entrust any fund
or money with which to pay its obligations under this Agreement. The Executive,
his Beneficiaries or any successor in interest to him shall be and remain
simply a general creditor of the Corporation in the same manner as any other
creditor having a general claim for matured and unpaid compensation. The
Corporation reserves the absolute right at its sole discretion to either
informally fund the obligations undertaken by this Agreement or to refrain from
informally funding the same and to determine the extent, nature, and method of
such informal funding. Should the Corporation elect to informally fund this
Agreement in whole or in part through the purchase of assets including, but not
limited to, life insurance, mutual funds, disability policies or annuities, the
Corporation reserves the absolute right, in its sole discretion, to terminate
such informal funding at any time, in whole or in part, At no time shall
Executive be deemed to have any lien nor right title or interest in or to any
specific informal funding investment or to any assets of the Corporation. If
the Corporation elects to invest in a life insurance, disability or
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annuity policy upon the life of the Executive, then Executive shall assist the
Corporation by freely submitting to a physical examination and supplying such
additional information necessary to obtain such insurance or annuities.
SECTION VII
ACCELERATION OF PAYMENT
The Corporation reserves the right to accelerate the payment of any benefits
payable under this Agreement without the consent of the Executive, his estate,
his designated Beneficiary, or any other person claiming through the Elective.
In the event that the Corporation accelerates the payment, the benefit shall be
discounted by a rate equal to the Pension Benefit Guaranty Corporation's
interest rate used to value deferred and immediate annuities in effect at the
date payments are to commence.
SECTION VIII
ALIENABILITY AND ASSIGNMENT PROHIBITION
Neither Executive nor any other Beneficiary under this Agreement shall have any
power or right to transfer, assign, anticipate, hypothecate, mortgage, commute,
modify or otherwise encumber in advance any of the benefits payable hereunder,
nor shall any of said benefits be subject to seizure for the payment of any
debts, judgments, alimony or separate maintenance owned by the Executive or his
Beneficiary, nor be transferrable by operation of law in the event of
bankruptcy, insolvency or otherwise. In the event Executive or any Beneficiary
attempts assignment, communication, hypothecation, transfer or disposal of the
benefits hereunder, the Corporation's liabilities for payment to the Executive
or a Beneficiary under this Agreement shall forthwith cease and terminate.
SECTION IX
TERMINATION OF EMPLOYMENT
9.1 Termination of Employment Prior to Retirement Date. If the Executive
voluntarily terminates employment with the Corporation prior to Normal
Retirement Date, the Executive's benefits under this Agreement will be
determined in accordance with Paragraph 4.2.
If prior to the Executive's Normal Retirement Date, the Corporation
terminates the employment of the Executive without Just Cause, the
Corporation shall pay to the Executive the full amount of the Executive's
Deferred Compensation Benefit. Such payment shall commence in accordance
with the payment provisions found in Paragraph 4.1 of this Agreement.
In the event the Executive is discharged for Just Cause at any time, this
Agreement shall be terminated and considered null and void with neither
the Executive nor the Executive's Beneficiary having any claim or right
against the Corporation.
9.2 Change in Control. If the Executive's termination of employment is related
to a Change in Control that has not been approved by the Board, payments
of the Executive's Deferred Compensation Benefit shall commence within 30
days after the date of termination of employment. If the Executive's
termination of employment is related to a Change in Control that has been
approved by the Board, payments of the Executive's Deferred Compensation
Benefit shall begin within 30 days after the Executive's Normal Retirement
Date. In the event of a termination following a Change in Control, the
amount of the Executive's Deferred Compensation Benefit shall be equal to
the amount found in the Addendum to this Agreement.
A termination of employment shall be considered related to a Change in
Control if at any time during the 12-month period prior to or 24-month
following any Change in Control, the employment of the Executive is
terminated by the Corporation (or the subsidiary bank at which the
Executive is employed) without Just Cause, or if at any time during such
period, the Executive terminates employment with the Corporation (or the
subsidiary bank at
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which the Executive is employed) following a demotion of the Executive or
a material change in his title, position, duties or responsibilities, or a
material reduction in his compensation (including fringe benefits).
SECTION X
ACT PROVISIONS
10.1 Named Fiduciary and Administrator. The "Named Fiduciary and Agreement
Administrator" (Administrator) of this Agreement shall be First United
Bancshares, Inc., until its resignation or removal by the Board of
Directors. As Administrator, First United Bancshares, Inc. shall be
responsible for the management, control and administration of the
Agreement as established herein. It 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.
10.2 Claims Procedure and Arbitration, In the event that benefits under this
Agreement are not paid to the Executive (or to his Beneficiary in the case
of the Executive's death) and such claimants feel that they are entitled
to receive such benefits, then a written claim must be made to the
Administrator named above within sixty (60) days from the date payments
are refused. The Administrator (and the Corporation if different from the
Administrator) shall review the written claim and if the claim is denied,
in whole or in part, they shall provide in writing within ninety (90) days
of receipt of such claim (i) their specific reasons for such denial, (ii)
any reference to the provisions of this Agreement upon which the denial is
based, and (iii) any additional material or information necessary to
perfect the claim. Such written response shall further indicate the
additional steps to be taken by claimants if a further review of the claim
denial is desired. A failure to respond within the aforesaid ninety-day
period shall in no way be construed to represent an acceptance or
affirmation of any written claim by Executive or Beneficiary.
If claimants desire a second review, they shall notify the Administrator
in writing within sixty (60) days of the first claim denial. If no written
claim denial was made within the ninety-day period discussed in the
paragraph above, the sixty-day period shall commence on the last day of
such ninety-day period. Claimants may review the Agreement or any
documents relating thereto and submit any written issues and comments they
may feel appropriate. In its sole discretion, the Administrator shall then
review the second claim and provide a written decision within sixty (60)
days of receipt of such claim. This decision shall likewise state the
specific reasons for the decision and shall include reference to specific
provisions of the Agreement upon which the decision is based.
If claimants continue to dispute the benefit denial based upon completed
performance of the Agreement or the meaning and effect of the terms and
conditions thereof, then claimants may submit the dispute to a Board of
Arbitration for final arbitration. The Arbitration Board shall consist of
one member selected by the claimant, one member selected by the
Corporation and the third member selected by the first two members. The
Arbitration Board shall operate under any generally recognized set of
arbitration rules. The parties hereto agree that they and their heirs,
personal representatives, successors and assigns shall be bound by the
decision of such Arbitration Board with respect to any controversy
properly submitted to it for determination.
Where a dispute arises as to the Corporation's discharge of Executive for
"Just Cause," such dispute shall likewise be submitted to arbitration as
above described and the parties hereto agree to be bound by the decision
thereunder.
SECTION XI
MISCELLANEOUS
11.1 No Effect on Employment Rights. Nothing contained herein will confer upon
the Executive the right to be retained in the service of the Corporation
or any subsidiary bank, nor shall it otherwise limit the right of the
Corporation or any subsidiary bank to discharge or otherwise deal with
Executive in any manner it deems appropriate.
11.2 Disclosure. The Executive shall receive a copy of the Agreement and the
Corporation will make available for inspection by the Executive any copy
of the rules and regulations used by the Corporation in administering the
Agreement.
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11.3 State Law. The Agreement is established under and will be construed
according to the laws of the State of Arkansas, to the extent that such
laws are not preempted by the Act and valid regulations published
thereunder.
11.4 Incapacity of Recipient. In the event Executive is declared incompetent
and a conservator or other person legally charged with the care of his
person or of his Estate is appointed, any benefits under the Agreement to
which such Executive is entitled shall be paid to such conservator or
other person legally charged with the care of his person or his Estate.
Notwithstanding the above, when the Corporation's Board of Directors, in
its sole discretion, determines that the Executive is unable to manage his
financial affairs, the Board may direct the Corporation to make
distributions to any person for the benefit of such Executive.
11.5 Unclaimed Benefit. The Executive shall keep the Corporation informed of
his current address and the current status of his Beneficiary. The
Corporation shall not be obligated to search for the whereabouts of any
person. If the location of the Executive is not made known to the
Corporation within three years after the date on which any payment of the
Executive's Deferred Compensation Benefit or Accrued Benefit is to be
made, payment may be made as though the Executive had died at the end of
the three-year period. If, within one additional year after such
three-year period has elapsed, or, within three years after the actual
death of the Executive, the Corporation is unable to locate any
Beneficiary of the Executive, then the Corporation's obligations under
this Agreement shall be considered fully discharged.
11.6 Limitations on Liability. Notwithstanding any of the preceding provisions
of the Agreement, neither the Corporation nor any individual acting as an
employee or agent of the Corporation or as a member of the Board of
Directors shall be liable to the Executive or any other person for any
claim, loss, liability or expense incurred in connection with the
Agreement.
11.7 Gender. Whenever in this Agreement words are used in the masculine or
neuter gender, they shall be read and construed as in the masculine,
feminine or neuter gender, whenever they should so apply.
11.8 Effect on Other Corporate Benefit Agreements. Nothing contained in this
Agreement shall affect the right of the Executive to participate in or be
covered by any qualified or non-qualified employee benefit plan or fringe
benefit agreement constituting a part of the Corporation's or any
subsidiary bank's existing or future compensation structure.
11.9 Headings. Headings and sub-headings in this Agreement are inserted for
reference and convenience only and shall not be deemed a part of this
Agreement.
SECTION XII
AMENDMENT AND TERMINATION
12.1 Amendment or Termination. The Corporation intends the Agreement to be
permanent but reserves the right to amend or terminate the Agreement when,
in the sole opinion of the Corporation, such amendment or termination is
advisable. Any such amendment or termination shall be made pursuant to a
resolution of the Board of Directors of the Corporation and shall be
effective as of the date of such resolution.
Notwithstanding the above, no amendment or termination of the Agreement
may reduce any post-retirement benefits payable to the Executive (under
Section IV) to an amount less than the Executive's current Vested Accrued
Benefit. Furthermore, no amendment or termination of the Agreement shall
directly or indirectly deprive any Executive of all or any portion of any
Deferred Compensation Benefit payment or Accrued Benefit payment which has
been earned (due to the Executive's termination of employment or
retirement) at the effective date of the resolution amending or
terminating the Agreement and which is currently in the process of being
paid (or is scheduled to be paid under the terms of this Agreement at some
future date).
12.2 Corporate Successors. This Agreement shall not be automatically terminated
by a transfer or sale of assets of the Corporation or any subsidiary bank
or by the merger or consolidation of the Corporation or any subsidiary
bank into or with any other corporation or other entity. This Agreement
shall be continued after such sale, merger or consolidation and shall
apply to any successor of the Corporation or any subsidiary bank.
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12.3 Change in Control. In the event of amendment or termination of this
Agreement in anticipation of a Change in Control, the Change in Control
provision of this Agreement (Paragraph 9.2) shall continue to be effective
even after termination of other provisions of the Agreement. A termination
or amendment or this Agreement shall be conclusively presumed to have been
in anticipation of a Change in Control if the termination or amendment
occurs within 18 months before such Change in Control.
SECTION XIII
PRIOR AGREEMENTS
This Agreement sets forth the entire understanding of the parties hereto with
respect to the transactions contemplated hereby, and any previous agreements or
understandings between the parties hereto regarding the subject matter hereof
are merged into and superseded by this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
this 31st day of December , 1993.
/s/ Robert L. Jones
------------------------------
ROBERT L. JONES
FOR AND ON BEHALF OF
FIRST UNITED BANCSHARES, INC.
By: /s/ John E. Burns
---------------------------
Name, Title
John E. Burns
Vice President and Chief
Financial Officer
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FIRST UNITED BANCSHARES, INC.
ADDENDUM TO SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
This Addendum to the Supplemental Executive Retirement Agreement covering
Robert L. Jones enumerates the dollar amount of Post-Retirement Deferred
Compensation Benefits payable under the Supplemental Executive Retirement
Agreement ("Agreement"). All rights and payment provisions are controlled by
the Agreement executed on the 31st day of December , 1993. This Addendum
revokes any previously dated Addendum.
===============================================================================
POST-RETIREMENT DEFERRED COMPENSATION BENEFITS
$28,740 annually for 10-year period (payable in 120 equal monthly installments).
===============================================================================
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
this 31st day of December , 1993.
/s/ Robert L. Jones
-----------------------------
ROBERT L. JONES
FOR AND ON BEHALF OF
FIRST UNITED BANCSHARES, INC.
By: /s/ John E. Burns
--------------------------
Name, Title
John E. Burns
Vice President and Chief
Financial Officer
<PAGE> 1
EXHIBIT 10(h)
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
BETWEEN
FIRST UNITED BANCSHARES, INC. AND JIMMY N. HARWOOD
<PAGE> 2
EXHIBIT 10(h)
================================================================================
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
================================================================================
This Agreement, made and entered into this 31st day of December ,
1993, by and between First United Bancshares, Inc., a bank holding company with
its principal office in the State of Arkansas, hereinafter referred to as
"Corporation" and Jimmy N. Harwood, a key employee and executive hereinafter
referred to as "Executive."
W I T N E S S E T H:
WHEREAS, the Executive is employed by a subsidiary bank of the
Corporation;
WHEREAS, the banking organization has amended its defined benefit
pension plan to comply with the provisions of the Internal Revenue Code, and in
amending such plan, has reduced benefits to be provided the Executive under
such plan;
WHEREAS, the Corporation wishes to take steps to replace, through a
Supplemental Executive Retirement Agreement, all or a portion of the
Executive's benefits which were reduced under such plan;
WHEREAS, the Executive wishes to be assured that he will be entitled
to a certain amount of additional compensation for some definite period of time
from and after his retirement from active service with the banking
organization;
WHEREAS, the parties hereto wish to provide the terms and conditions
upon which the Corporation shall pay such additional compensation to Executive
after his retirement or other termination of his employment;
WHEREAS, the parties hereto intend that this Agreement be considered
an unfunded arrangement, maintained primarily to provide supplemental
retirement income for the Executive, who is a member of a select group of
management or highly compensated employees of the banking organization for
purposes of the Employee Retirement Income Security Act of 1974, as amended
(ERISA);
WHEREAS, the Corporation has adopted this Supplemental Executive
Retirement Agreement which controls all issues relating to the benefits as
described herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises herein contained, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
When used herein, the following words shall have the meanings below unless the
context clearly indicates otherwise.
1.1 "ACCRUED BENEFIT" means that portion of the Deferred Compensation Benefit
which is required to be expensed and accrued under generally accepted
accounting principles by any appropriate methodology which the Board of
Directors may require in the exercise of its sole discretion.
1.2 "ACT" means the Employee Retirement Income Security Act of 1974, as it may
be amended from time to time.
1.3 "AFFILIATED COMPANY" means any trade or business entity, or a predecessor
company of such entity, if any, which is a member of a controlled group of
corporations of which the Corporation is also a member.
1.4 "BENEFICIARY" means the person or persons designated as beneficiary in
writing to the Corporation to whom the share of a deceased Executive's
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account is payable. If no beneficiary is so designated, then the
Executive's Spouse, if living, will be deemed the beneficiary. If the
Executive's Spouse is not living, then the Children of the Executive will
be deemed beneficiary. If there are no living Children, then the personal
representative of the estate of the Executive will be deemed the
beneficiary.
1.5 "BOARD" means the board of directors of the Corporation.
1.6 "CHANGE IN CONTROL" shall apply if the Corporation, or any subsidiary bank
at which the Executive is employed, is merged with or acquired by another
financial institution, or undergoes any other change in its corporate
structure as follows:
(i) any "person," including a "group" as determined in accordance with
the Section 13(d)(3) of the Securities Exchange Act of 1934 (the
"Exchange Act"), but excluding a retirement plan qualified under
Section 401 of the Internal Revenue Code (and excluding any person or
group which currently owns Corporation stock at the date of this
Agreement), is or becomes the beneficial owner, directly or
indirectly, of securities of the Corporation representing 51% or more
of the combined voting power of the Corporation's then outstanding
securities, or of the outstanding securities of the subsidiary bank
at which the Executive is employed;
(ii) as a result of, or in connection with, any tender offer or exchange
offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions
(a "Transaction"), the persons who were directors of the Corporation
before the Transaction shall cease to constitute a majority of the
Board of Directors of the Corporation or any successor to the
Corporation;
(iii) the Corporation (or the subsidiary bank at which the Executive is
employed) is merged or consolidated with another corporation and as a
result of the merger or consolidation less than 80% of the
outstanding voting securities of the surviving or resulting
corporation shall then be owned in the aggregate by the former
stockholders of the Corporation (or the subsidiary bank at which the
Executive is employed), excluding stockholders who are (a) a party to
the merger or consolidation within the meaning of the Exchange Act,
or (b) an affiliate of such party;
(iv) a tender offer or exchange offer is made and consummated for the
ownership of securities of the Corporation (or the subsidiary bank at
which the Executive is employed) representing 51% or more of the
combined voting power of the Corporation's (or the subsidiary bank at
which the Executive is employed) then outstanding voting securities;
or
(v) the Corporation (or the subsidiary bank at which the Executive is
employed) transfers substantially all of its assets to another
corporation which is not a wholly-owned subsidiary of the
Corporation.
1.7 "CHILDREN" means the Executive's children, both natural and adopted, then
living at the time payments are due the Children under this Agreement.
1.8 "CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
1.9 "DEFERRED COMPENSATION BENEFIT" means the benefit provided to the
Executive at his retirement or because of other events described under
Section IV of this Agreement which result in certain terminations from
employment.
1.10 "EARLY RETIREMENT DATE" means any date prior to the Executive reaching age
65.
1.11 "EFFECTIVE DATE" shall be the date of execution of this Agreement.
1.12 "ESTATE" means the Estate of the Executive.
1.13 "JUST CAUSE," only as this term relates to the Accrued Benefit or Deferred
Compensation Benefit, includes but is not limited to theft, fraud,
embezzlement, willful misconduct causing significant property damage to
the Corporation (or subsidiary bank at which the Executive is employed) or
personal injury to another employee, or
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<PAGE> 4
willful malfeasance or gross negligence in a manner of material importance
to the Corporation (or subsidiary bank at which the Executive is
employed). For purposes of determining Just Cause, an action (or inaction)
need not constitute an actual violation of law. In addition, the
Corporation shall have sole discretion in making its determination that an
event constituting Just Cause has occurred, provided, however, that such
determination must be made in a reasonable and good faith manner. If the
Corporation is of the opinion that an event has occurred which constitutes
Just Cause, the Corporation shall provide the Executive written notice of
its decision that an event constituting Just Cause has occurred. The
Executive shall then be provided a period of 30 days (from the date of
such notice) within which to respond to such notice. After the lapse of
such 30-day period, if the Corporation still believes that an event
constituting Just Cause has occurred, then the benefit payments under this
Agreement may be terminated in accordance with the provisions of this
Agreement.
1.14 "NORMAL RETIREMENT DATE" means the first business day of the month
coincident with or next following the Executive's sixty-fifth (65th)
birthday.
1.15 "POSTPONED RETIREMENT DATE" means the first day of the month coincident
with or next following the Executive's termination of employment with the
Corporation after his Normal Retirement Date.
1.16 "SPOUSE" means the individual to whom the Executive is legally married at
the time of the Executive's death.
1.17 "SURVIVOR'S BENEFIT" means the benefit provided to Executive's
Beneficiary.
1.18 "VESTED" means the non-forfeitable portion of the Accrued Benefit that the
Executive is entitled to in accordance with the vesting schedule found in
Paragraph 4.4.
1.19 "YEAR OF SERVICE" means a twelve (12) consecutive month period, commencing
with the Executive's initial date of employment with the Corporation,
during which the Executive is considered a full-time employee of the
Corporation (including authorized leaves of absence). A fractional Year of
Service shall accrue at a rate of one-twelfth (1/12) of a Year of Service
for each full month of continuous employment, and benefits under this
Agreement shall be adjusted accordingly.
SECTION II
RETIREMENT DATE AND DISABILITY
2.1 Normal or Early Retirement Benefit. The Executive is eligible to retire
from employment and receive a benefit under this Agreement beginning on
the Normal Retirement Date, Early Retirement Date or Postponed Retirement
Date. The retirement benefit of Executive who attains his Normal
Retirement Date shall be the Deferred Compensation Benefit (see Section
4.1). The early retirement benefit of Executive who attains his Early
Retirement Date shall be either the Accrued Benefit or the Deferred
Compensation Benefit (see Section 4.2).
Board approval of early retirement is required as a condition for
entitlement to the Deferred Compensation Benefit. In the event of
voluntary early retirement of employment by Executive without Board
approval, then the Executive's benefit shall be the Vested Accrued
Benefit. The Executive's benefit, if any, in the event of involuntary
termination of employment shall be the benefit described in Section IX.
2.2 Postponed Retirement Benefit. The Postponed Retirement Benefit of the
Executive shall be the Deferred Compensation Benefit calculated as set
forth in Paragraph 4.3.
2.3 Long-Term Disability. In the event the Executive incurs a long-term
disability (as determined in the sole discretion of the Corporation), he
shall be entitled to the Deferred Compensation Benefit, commencing at his
Normal Retirement Date, as set forth in Section IV. If the Executive
recovers from his long-term disability (as determined in the sole
discretion of the Corporation) prior to his commencement of receipt of a
Deferred Compensation Benefit and he does not return to work for the
Corporation, or if his period of long-term disability ceases by reason of
his death prior to his commencement of a receipt of a Deferred
Compensation Benefit, his employment with
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<PAGE> 5
the Corporation shall be deemed terminated as of the date of his recovery
or death. In such event, the Executive or his Beneficiary, as the case may
be, shall be entitled to such benefit as the Executive would be eligible
to receive under the applicable provisions of this Agreement which discuss
early retirement without Board approval (Paragraph 4.2).
SECTION III
PRE-RETIREMENT AND POST-RETIREMENT DEATH BENEFITS
3.1 Death Prior to Termination of Employment. If Executive dies prior to the
earlier of (1) Normal Retirement Date, or (2) termination of employment
with the Corporation, then no benefits shall be payable pursuant to this
Agreement.
3.2 Death During Receipt of Deferred Compensation or Accrued Benefit. In the
event of death of the Executive while receiving the Deferred Compensation
or Accrued Benefit under this Agreement, then the unpaid balance of such
monthly payments remaining to be paid at that time shall continue to be
paid monthly for the remainder of such period to the Executive's
Beneficiary. In the event of death of the Executive after having
terminated employment, but after qualifying for payment of the Deferred
Compensation or Accrued Benefit under this Agreement, then payments will
be made to the Executive's Beneficiary under the same terms and conditions
as if the Elective had survived and received payment.
SECTION IV
DEFERRED COMPENSATION BENEFITS
4.1 Normal Retirement. Provided the Executive remains employed by the
Corporation (or any subsidiary bank) until the later of Normal Retirement
Date or Postponed Retirement Date, if Executive at such time is still
covered by this Agreement, the Corporation shall commence payments of the
Deferred Compensation Benefit. Subject to the provisions and limitations
of this Agreement, the Corporation shall pay to the Executive an annual
amount, in equal monthly installments, as stated in the Addendum to this
Agreement. Such payments shall commence on the first business day of the
month next following the Executive's actual retirement date (on or after
Normal Retirement Date) and shall be payable monthly thereafter until one
hundred twenty (120) payments have been made.
4.2 Early Retirement. In the event of retirement or termination from service
prior to Normal Retirement Date (i.e., at an Early Retirement Date), the
Executive is entitled to the Deferred Compensation Benefit only if the
early retirement is approved by the Board. The amount of such early
retirement Deferred Compensation Benefit shall be determined by
multiplying the Deferred Compensation Benefit by the following fraction:
the numerator of which is the actual number of Years of Service the
Executive has been employed by the Corporation (or any subsidiary
bank) from the date of his initial employment until his early
retirement; and
the denominator of which is the total number of Years of Service the
Executive would have worked from the date of his initial employment
until his Normal Retirement Date.
Payment of the Deferred Compensation Benefit arising as a result of early
retirement in the amount computed using the above fraction shall commence
to the Executive at what would have been the Executive's Normal Retirement
Date.
The Corporation has the option to begin Deferred Compensation Benefit
payments on or after the Executive's early retirement termination from
service and before the Executive's Normal Retirement Date. If the payments
begin on or after the Early Retirement Date (and prior to Normal
Retirement Date), then the Executive's Deferred Compensation Benefit
(after having been reduced by applying the above fraction) shall be
further discounted from
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<PAGE> 6
Normal Retirement Date by an interest factor equal to the Pension Benefit
Guaranty Corporation's interest rate used to value deferred and immediate
annuities in effect at the date payments are to commence.
If such early retirement is without Board approval, Executive will only be
entitled to his Vested Accrued Benefit at the date of such termination.
(See Paragraph 4.4 for any vesting schedule.) Payment of such Accrued
Benefit shall commence to the Executive at what would have been the
Executive's Normal Retirement Date. The Corporation has the option to
begin Accrued Benefit payments on or after Early Retirement Date and
before Normal Retirement Date. However, if payments begin prior to Normal
Retirement Date, the same interest rate reduction found in the second
sentence of the above paragraph shall also be applied to the Vested
Accrued Benefit payable.
In the event of any termination of employment resulting in the entitlement
of the Vested Accrued Benefit, the Vested Accrued Benefit will be paid to
the Executive in one hundred twenty (120) equal monthly installments. The
monthly benefit shall equal the amount of an annuity for a 120-month term
certain based on the Vested Accrued Benefit at the date payments commence
and an interest factor equal to the Pension Benefit Guaranty Corporation's
interest rate used to value deferred and immediate annuities in effect at
the date payments are to commence.
4.3 Postponed Retirement. The Board of Directors in the exercise of their sole
discretion may elect to increase any benefits payable to the Executive if
retirement is postponed past the Normal Retirement Date.
4.4 Vesting. Where applicable, the Accrued Benefit provided by the Corporation
to the Executive under this Agreement shall, at all times, be 100% vested.
SECTION V
EXECUTIVE'S RIGHT TO ASSETS
The rights of the Executive, any designated recipient of the Executive, or any
other person claiming through the Executive under this Agreement, shall be
solely those of an unsecured general creditor of the Corporation. The
Executive, the designated recipient of the Executive, or any other person
claiming through the Executive, shall only have the right to receive from the
Corporation those payments as specified under this Agreement. The Executive
agrees that he, his designated recipient, or any other person claiming through
him shall have no rights or interests whatsoever in any asset of the
Corporation, including any insurance policies or contracts which the
Corporation may possess or obtain to informally fund this Agreement. Any asset
used or acquired by the Corporation in connection with the liabilities it has
assumed under this Agreement, except as expressly provided, shall not be deemed
to be held under any trust for the benefit of the Executive or his recipients,
nor shall such assets be considered security for the performance of the
obligations of the Corporation. Such assets shall be, and remain, a general,
unpledged, and unrestricted asset of the Corporation.
SECTION VI
RESTRICTIONS UPON FUNDING
Corporation shall have no obligation to set aside, earmark or entrust any fund
or money with which to pay its obligations under this Agreement. The Executive,
his Beneficiaries or any successor in interest to him shall be and remain
simply a general creditor of the Corporation in the same manner as any other
creditor having a general claim for matured and unpaid compensation. The
Corporation reserves the absolute right at its sole discretion to either
informally fund the obligations undertaken by this Agreement or to refrain from
informally funding the same and to determine the extent, nature, and method of
such informal funding. Should the Corporation elect to informally fund this
Agreement in whole or in part through the purchase of assets including, but not
limited to, life insurance, mutual funds, disability policies or annuities, the
Corporation reserves the absolute right, in its sole discretion, to terminate
such informal funding at any time, in whole or in part, At no time shall
Executive be deemed to have any lien nor right title or interest in or to any
specific informal funding investment or to any assets of the Corporation. If
the Corporation elects to invest in a life insurance, disability or
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annuity policy upon the life of the Executive, then Executive shall assist the
Corporation by freely submitting to a physical examination and supplying such
additional information necessary to obtain such insurance or annuities.
SECTION VII
ACCELERATION OF PAYMENT
The Corporation reserves the right to accelerate the payment of any benefits
payable under this Agreement without the consent of the Executive, his estate,
his designated Beneficiary, or any other person claiming through the Elective.
In the event that the Corporation accelerates the payment, the benefit shall be
discounted by a rate equal to the Pension Benefit Guaranty Corporation's
interest rate used to value deferred and immediate annuities in effect at the
date payments are to commence.
SECTION VIII
ALIENABILITY AND ASSIGNMENT PROHIBITION
Neither Executive nor any other Beneficiary under this Agreement shall have any
power or right to transfer, assign, anticipate, hypothecate, mortgage, commute,
modify or otherwise encumber in advance any of the benefits payable hereunder,
nor shall any of said benefits be subject to seizure for the payment of any
debts, judgments, alimony or separate maintenance owned by the Executive or his
Beneficiary, nor be transferrable by operation of law in the event of
bankruptcy, insolvency or otherwise. In the event Executive or any Beneficiary
attempts assignment, communication, hypothecation, transfer or disposal of the
benefits hereunder, the Corporation's liabilities for payment to the Executive
or a Beneficiary under this Agreement shall forthwith cease and terminate.
SECTION IX
TERMINATION OF EMPLOYMENT
9.1 Termination of Employment Prior to Retirement Date. If the Executive
voluntarily terminates employment with the Corporation prior to Normal
Retirement Date, the Executive's benefits under this Agreement will be
determined in accordance with Paragraph 4.2.
If prior to the Executive's Normal Retirement Date, the Corporation
terminates the employment of the Executive without Just Cause, the
Corporation shall pay to the Executive the full amount of the Executive's
Deferred Compensation Benefit. Such payment shall commence in accordance
with the payment provisions found in Paragraph 4.1 of this Agreement.
In the event the Executive is discharged for Just Cause at any time, this
Agreement shall be terminated and considered null and void with neither
the Executive nor the Executive's Beneficiary having any claim or right
against the Corporation.
9.2 Change in Control. If the Executive's termination of employment is related
to a Change in Control that has not been approved by the Board, payments
of the Executive's Deferred Compensation Benefit shall commence within 30
days after the date of termination of employment. If the Executive's
termination of employment is related to a Change in Control that has been
approved by the Board, payments of the Executive's Deferred Compensation
Benefit shall begin within 30 days after the Executive's Normal Retirement
Date. In the event of a termination following a Change in Control, the
amount of the Executive's Deferred Compensation Benefit shall be equal to
the amount found in the Addendum to this Agreement.
A termination of employment shall be considered related to a Change in
Control if at any time during the 12-month period prior to or 24-month
following any Change in Control, the employment of the Executive is
terminated by the Corporation (or the subsidiary bank at which the
Executive is employed) without Just Cause, or if at any time during such
period, the Executive terminates employment with the Corporation (or the
subsidiary bank at which
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the Executive is employed) following a demotion of the Executive or a
material change in his title, position, duties or responsibilities, or a
material reduction in his compensation (including fringe benefits).
SECTION X
ACT PROVISIONS
10.1 Named Fiduciary and Administrator. The "Named Fiduciary and Agreement
Administrator" (Administrator) of this Agreement shall be First United
Bancshares, Inc., until its resignation or removal by the Board of
Directors. As Administrator, First United Bancshares, Inc. shall be
responsible for the management, control and administration of the
Agreement as established herein. It 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.
10.2 Claims Procedure and Arbitration, In the event that benefits under this
Agreement are not paid to the Executive (or to his Beneficiary in the case
of the Executive's death) and such claimants feel that they are entitled
to receive such benefits, then a written claim must be made to the
Administrator named above within sixty (60) days from the date payments
are refused. The Administrator (and the Corporation if different from the
Administrator) shall review the written claim and if the claim is denied,
in whole or in part, they shall provide in writing within ninety (90) days
of receipt of such claim (i) their specific reasons for such denial, (ii)
any reference to the provisions of this Agreement upon which the denial is
based, and (iii) any additional material or information necessary to
perfect the claim. Such written response shall further indicate the
additional steps to be taken by claimants if a further review of the claim
denial is desired. A failure to respond within the aforesaid ninety-day
period shall in no way be construed to represent an acceptance or
affirmation of any written claim by Executive or Beneficiary.
If claimants desire a second review, they shall notify the Administrator
in writing within sixty (60) days of the first claim denial. If no written
claim denial was made within the ninety-day period discussed in the
paragraph above, the sixty-day period shall commence on the last day of
such ninety-day period. Claimants may review the Agreement or any
documents relating thereto and submit any written issues and comments they
may feel appropriate. In its sole discretion, the Administrator shall then
review the second claim and provide a written decision within sixty (60)
days of receipt of such claim. This decision shall likewise state the
specific reasons for the decision and shall include reference to specific
provisions of the Agreement upon which the decision is based.
If claimants continue to dispute the benefit denial based upon completed
performance of the Agreement or the meaning and effect of the terms and
conditions thereof, then claimants may submit the dispute to a Board of
Arbitration for final arbitration. The Arbitration Board shall consist of
one member selected by the claimant, one member selected by the
Corporation and the third member selected by the first two members. The
Arbitration Board shall operate under any generally recognized set of
arbitration rules. The parties hereto agree that they and their heirs,
personal representatives, successors and assigns shall be bound by the
decision of such Arbitration Board with respect to any controversy
properly submitted to it for determination.
Where a dispute arises as to the Corporation's discharge of Executive for
"Just Cause," such dispute shall likewise be submitted to arbitration as
above described and the parties hereto agree to be bound by the decision
thereunder.
SECTION XI
MISCELLANEOUS
11.1 No Effect on Employment Rights. Nothing contained herein will confer upon
the Executive the right to be retained in the service of the Corporation
or any subsidiary bank, nor shall it otherwise limit the right of the
Corporation or any subsidiary bank to discharge or otherwise deal with
Executive in any manner it deems appropriate.
11.2 Disclosure. The Executive shall receive a copy of the Agreement and the
Corporation will make available for inspection by the Executive any copy
of the rules and regulations used by the Corporation in administering the
Agreement.
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11.3 State Law. The Agreement is established under and will be construed
according to the laws of the State of Arkansas, to the extent that such
laws are not preempted by the Act and valid regulations published
thereunder.
11.4 Incapacity of Recipient. In the event Executive is declared incompetent
and a conservator or other person legally charged with the care of his
person or of his Estate is appointed, any benefits under the Agreement to
which such Executive is entitled shall be paid to such conservator or
other person legally charged with the care of his person or his Estate.
Notwithstanding the above, when the Corporation's Board of Directors, in
its sole discretion, determines that the Executive is unable to manage his
financial affairs, the Board may direct the Corporation to make
distributions to any person for the benefit of such Executive.
11.5 Unclaimed Benefit. The Executive shall keep the Corporation informed of
his current address and the current status of his Beneficiary. The
Corporation shall not be obligated to search for the whereabouts of any
person. If the location of the Executive is not made known to the
Corporation within three years after the date on which any payment of the
Executive's Deferred Compensation Benefit or Accrued Benefit is to be
made, payment may be made as though the Executive had died at the end of
the three-year period. If, within one additional year after such
three-year period has elapsed, or, within three years after the actual
death of the Executive, the Corporation is unable to locate any
Beneficiary of the Executive, then the Corporation's obligations under
this Agreement shall be considered fully discharged.
11.6 Limitations on Liability. Notwithstanding any of the preceding provisions
of the Agreement, neither the Corporation nor any individual acting as an
employee or agent of the Corporation or as a member of the Board of
Directors shall be liable to the Executive or any other person for any
claim, loss, liability or expense incurred in connection with the
Agreement.
11.7 Gender. Whenever in this Agreement words are used in the masculine or
neuter gender, they shall be read and construed as in the masculine,
feminine or neuter gender, whenever they should so apply.
11.8 Effect on Other Corporate Benefit Agreements. Nothing contained in this
Agreement shall affect the right of the Executive to participate in or be
covered by any qualified or non-qualified employee benefit plan or fringe
benefit agreement constituting a part of the Corporation's or any
subsidiary bank's existing or future compensation structure.
11.9 Headings. Headings and sub-headings in this Agreement are inserted for
reference and convenience only and shall not be deemed a part of this
Agreement.
SECTION XII
AMENDMENT AND TERMINATION
12.1 Amendment or Termination. The Corporation intends the Agreement to be
permanent but reserves the right to amend or terminate the Agreement when,
in the sole opinion of the Corporation, such amendment or termination is
advisable. Any such amendment or termination shall be made pursuant to a
resolution of the Board of Directors of the Corporation and shall be
effective as of the date of such resolution.
Notwithstanding the above, no amendment or termination of the Agreement
may reduce any post-retirement benefits payable to the Executive (under
Section IV) to an amount less than the Executive's current Vested Accrued
Benefit. Furthermore, no amendment or termination of the Agreement shall
directly or indirectly deprive any Executive of all or any portion of any
Deferred Compensation Benefit payment or Accrued Benefit payment which has
been earned (due to the Executive's termination of employment or
retirement) at the effective date of the resolution amending or
terminating the Agreement and which is currently in the process of being
paid (or is scheduled to be paid under the terms of this Agreement at some
future date).
12.2 Corporate Successors. This Agreement shall not be automatically terminated
by a transfer or sale of assets of the Corporation or any subsidiary bank
or by the merger or consolidation of the Corporation or any subsidiary
bank into or with any other corporation or other entity. This Agreement
shall be continued after such sale, merger or consolidation and shall
apply to any successor of the Corporation or any subsidiary bank.
8
<PAGE> 10
12.3 Change in Control. In the event of amendment or termination of this
Agreement in anticipation of a Change in Control, the Change in Control
provision of this Agreement (Paragraph 9.2) shall continue to be effective
even after termination of other provisions of the Agreement. A termination
or amendment or this Agreement shall be conclusively presumed to have been
in anticipation of a Change in Control if the termination or amendment
occurs within 18 months before such Change in Control.
SECTION XIII
PRIOR AGREEMENTS
This Agreement sets forth the entire understanding of the parties hereto with
respect to the transactions contemplated hereby, and any previous agreements or
understandings between the parties hereto regarding the subject matter hereof
are merged into and superseded by this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
this 31st day of December , 1993.
/s/ Jimmy N. Harwood
----------------------------------
JIMMY N. HARWOOD
FOR AND ON BEHALF OF
FIRST UNITED BANCSHARES, INC.
By: /s/ James V. Kelley
-------------------------------
Name, Title
9
<PAGE> 11
FIRST UNITED BANCSHARES, INC.
ADDENDUM TO SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
This Addendum to the Supplemental Executive Retirement Agreement covering Jim
N. Harwood enumerates the dollar amount of Post-Retirement Deferred
Compensation Benefits payable under the Supplemental Executive Retirement
Agreement ("Agreement"). All rights and payment provisions are controlled by
the Agreement executed on the 31st day of December , 1993. This Addendum
revokes any previously dated Addendum.
===============================================================================
POST-RETIREMENT DEFERRED COMPENSATION BENEFITS
$21,756 annually for 10-year period (payable in 120 equal monthly installments).
===============================================================================
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
this 31st day of December , 1993.
/s/ Jimmy N. Harwood
------------------------------------
JIMMY N. HARWOOD
FOR AND ON BEHALF OF
FIRST UNITED BANCSHARES, INC.
By: /s/ James V. Kelley
--------------------------------
Name, Title
