EXHIBIT 2.3
AGREEMENT
THIS AGREEMENT is made between United Bankshares, Inc. ("United")
and Xxxx X. Xxxxxxx (the "Executive") in connection with that certain
Agreement and Plan of Merger between United and Fed One Bancorp., Inc. (the
"Merger Agreement")
WITNESSETH:
WHEREAS, prior to the Effective Date, which term is defined in the
Merger Agreement and subsequently referred to herein, the Executive was
Chairman, President and Chief Executive Officer of Fed One Bancorp., Inc. and
Fed One Bank (collectively referred to as the "Employers"); and
WHEREAS, United is acquiring the business and assets of the
Employers pursuant to the Merger Agreement; and
WHEREAS, as of the Effective Date, the Executive shall no longer be
employed by Employers; and
WHEREAS, following the Effective Date, the Executive shall be a
member of the Board of Directors of United and United wishes to engage the
Executive to render consultive and advisory services with regard to the
business of Employers; and
WHEREAS, the Executive desires to accept such engagement, upon the
terms and conditions set forth herein.
NOW, THEREFORE, United and the Executive (collectively referred to
as the "Parties") agree as follows:
1. DUTIES AND TERM. United hereby retains the Executive as a general advisor
and consultant on all matters pertaining to the business and assets of
Employers being acquired by United, and to render all other services
relevant thereto, for the 18-month period immediately following the
Effective Date (the "Consulting Period"). During the Consultancy Period,
the Executive shall not be required to provide services pursuant to this
Agreement for more than 5 hours in any week or 20 hours in any monthly
period. Such services shall be provided in Wheeling, West Virginia or as
otherwise may be agreed to by the parties. United shall reimburse the
Executive for any travel or other expenses which may be incurred by the
Executive in providing services to United pursuant to this Agreement.
2. COMPENSATION AND BENEFITS. United shall compensate Executive for his
services pursuant to this Agreement, as follows:
2.1 United shall pay the Executive compensation in the amount of One
Thousand Dollars ($1,000) per month for 18 months beginning as of the
Effective Date and terminating with the eighteenth such monthly
payment.
2.2 On the Effective Date, United shall transfer to Executive all right,
title and interest in the automobile driven by Executive and owned by
Employers (the "Automobile"). As of the Effective Date, United shall
not be responsible for and shall not pay any costs of insurance
coverage, repairs, maintenance, or other incidental expenses including
license, fuel and oil, relating to the Automobile.
2.3 United shall permit for a period commencing on the date that United
and United National Bank are no longer required to provide benefits to
Xx. Xxxxxxx pursuant to Section 5(d)(B) of the Employment Agreements,
dated June 10, 1997 between Xx. Xxxxxxx and each of the Employers (the
"Employment Agreements") and ending on the earlier of (a) the
Executive's 65th birthday, or (b) the date of the Executive's
full-time employment by an employer (provided that the Executive is
entitled to and accepts, under the terms of such employment, benefits
substantially similar to those described in this paragraph 2.3), the
Executive and his spouse to participate in all group insurance, life
insurance, health and accident, and disability plans, programs and
arrangements offered by United to its executive employees and their
spouses. In the event that the Executive is not entitled to
participate in any of the foregoing plans, programs or arrangements,
United shall provide, or arrange to provide, at its sole expense,
substitute coverage on the same terms as provided by such plan,
program or arrangement.
3. RESTRICTIVE COVENANT. In recognition of the Executive's access to the
various protectable business interests of Employers and United and the
Executive's knowledge and expertise relating to the business of Employers
and United, the Executive agrees to the following terms and conditions:
Following the Effective Date, the Executive shall not disclose (other than
pursuant to a court order or pursuant to providing consulting services
hereunder) to any person or entity not associated with United any business,
financial or other confidential and/or proprietary information of United
and/or its customers which is not (i) available to the general public
and/or (ii) generally known outside of United and its subsidiaries.
4. DISABILITY OF THE EXECUTIVE. The Executive's inability to render services
to United because of temporary or permanent illness, disability or
incapacity shall not constitute a failure to perform his duties as set
forth in Paragraph 1 and shall not be deemed a breach or default by him.
5. DEATH OF THE EXECUTIVE. Should the Executive die during the term of this
Agreement, the Agreement shall terminate as of the last day of the month of
his death. United
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shall pay to the Executive's estate any remaining consulting payments set
forth in Paragraph 2.1.
6. INDEPENDENT CONTRACTOR STATUS. In furnishing the services hereunder, the
Executive shall be acting as an independent contractor in relation to
United.
7. NOTICES AND COMMUNICATIONS. Any notice, payment, request, instruction or
other document to be delivered pursuant to this Agreement shall be deemed
sufficiently given if in writing and delivered personally or mailed by
registered mail, return receipt requested, to United at 000 Xxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxx Xxxxxxxx 00000, or to the Executive at 00 Xxxxxxxx Xxxx,
Xxxxxxxx, Xxxx Xxxxxxxx 00000, or to any changed address that the Parties
may designate by like notice.
8. ARBITRATION. Any dispute between the parties arising out of or with
respect to this Agreement shall be resolved by the sole and exclusive
remedy of binding arbitration. The arbitration shall be conducted in
Parkersburg, West Virginia under the auspices of and in accordance with the
rules of the American Arbitration Association. Any decision issued by an
arbitrator in accordance with this provision shall be final and binding on
the parties thereto and not subject to appeal or civil litigation.
9. NO WAIVER. No delay or failure by either party in exercising any right
under this Agreement, and no partial or single exercise of that right,
shall constitute a waiver of that or any other right.
10. AMENDMENT. No amendment, modification or termination of, or addition to,
this Agreement shall be valid unless and until executed in writing by the
Parties.
11. BINDING AGREEMENT. This Agreement shall be binding on and inure to the
benefit of United and any of its successors, whether by merger,
consolidation, sale of assets or otherwise.
12. HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13. VALIDITY. If any provision hereof, or any portion of any provision hereof,
is held to be invalid, illegal or unenforceable, all other provisions shall
remain in force and effect as if such invalid, illegal or unenforceable
provision or portion thereof had not been included herein. If any
provision or portion of any provision of this Agreement is so broad as to
be unenforceable, such provision or a portion thereof shall be interpreted
to be only so broad as is enforceable.
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14. GOVERNING LAW. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the Untied States where
applicable and otherwise by the substantive laws of the State of West
Virginia.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
United and the Executive regarding the consulting services and related
matters set forth herein. Notwithstanding anything contained herein to be
contrary, nothing contained in this Agreement shall affect any obligation
of either of the Employers or their successors under the Employment
Agreements.
IN WITNESS WHEREOF, this Agreement has been executed as of the 18th
day of February, 1998.
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
UNITED BANKSHARES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
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