EXHIBIT 10.2
CHANGE OF CONTROL AGREEMENT
---------------------------
THIS AGREEMENT made as of August 15, 2000, by and between UNITED
BANKSHARES, INC., a West Virginia corporation and registered bank holding
company (the "Company"), and ____________________, an executive officer of the
Company (the "Executive").
WHEREAS, the Executive is currently employed by the Company or one of
its banking subsidiaries; and
WHEREAS, recent and anticipated changes in the banking industry have
caused uncertainty relative to future ownership and management of the Company
and other banking organizations; and
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that the Executive's contribution to the growth and success of the
Company has been substantial; and
WHEREAS, the Company believes it is in the best interest of the
Company to grant the Executive and certain other key management personnel a
level of security to preserve a nucleus of key management.
NOW THEREFORE, in consideration of the promises and the respective
covenants and agreements of the parties herein contained, the Company and
Executive contract and agree as follows:
1. Definitions. The following definitions shall apply to designated
phrases used in this Agreement.
a. "Change of Control" means (i) a change of ownership of the
Company which must be reported to the Securities and Exchange Commission as a
change of control, including but not limited to the acquisition by any "person"
(as such term is used in Sections 13(d) and 14(d) of the Securities and Exchange
Act of 1934 (the "Exchange Act")), of direct or indirect "beneficial ownership"
(as defined by Rule 13d-3 under the Exchange Act) of twenty-five percent (25%)
or more of the combined voting power of the Company's then outstanding
securities; or (ii) the failure during any period of two (2) consecutive years
of individuals who at the beginning of such period constitute the Board for any
reason to constitute at least a majority thereof, unless the election of each
director who was not a director at the beginning of such period has been
approved in advance by directors representing at least two- thirds (2/3) of the
directors at the beginning of the period.
b. "Good Cause" includes (i) termination for continued poor
work performance after reasonable opportunity to correct deficiencies; (ii)
termination for behavior outside or on the job which affects the ability of
management of the Company or co-workers to perform their jobs and which is not
corrected after reasonable warning; (iii) termination for failure to devote
reasonable time to the job which is not corrected after reasonable warning; and
124
(iv) any other reasonable deficiency in performance by the Executive which is
not corrected after reasonable warning.
c. "Disability" means total and permanent disability as defined
by Company's (or its successor's) Long-Term Disability Plan.
d. "Retirement" means termination of employment by an Executive
in accordance with Company's (or its successor's) retirement plan, including
early retirement, generally applicable to its salaried employees.
e. "Good Reason" means (i) a Change of Control in the Company
(as defined above), as well as and as a direct result thereof, (a) a decrease in
the total amount of the Executive's base salary below its level in effect on the
date of consummation of the Change of Control, without the Executive's consent;
or (b) a material reduction in the importance of the Executive's job
responsibilities without the Executive's consent; or (c) a geographical
relocation of the Executive to an office more than fifty (50) miles from the
Executive's location at the time of the Change of Control without the
Executive's consent; (ii) failure of Company to obtain assumption of this
Agreement by its successor, or (iii) any purported termination of the
Executive's employment which is not effected pursuant to a Notice of Termination
required in paragraph 2.
f. "Wrongful Termination" means termination of the Executive's
employment by the Company or its affiliates for any reason other than Good Cause
or the death, Disability or Retirement of Executive prior to the expiration of
thirty-six (36) months after consummation of the Change of Control.
2. Termination for Good Reason or for Cause; Notice of Termination.
---------------------------------------------------------------
The Executive may terminate his employment with the Company or its affiliates
for Good Reason. In the event of a Change of Control, the Company may terminate
Executive's employment only for Good Cause within thirty-six months after
consummation of Change in Control. Any termination of the Executive's employment
by the Company or by the Executive shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and which shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for the
termination of the Executive's employment under the provision so indicated.
3. Date of Termination. Date of Termination shall mean the date on
-------------------
which Notice of Termination is given.
4. Compensation of Executives Upon Termination for Good Reason or
--------------------------------------------------------------
Wrongful Termination.
--------------------
a. Except as hereinafter provided, if the Executive terminates
his employment with the Company for Good Reason or the Company terminates the
Executive's employment in a manner constituting Wrongful Termination, the
Company hereby agrees to pay the Executive a cash payment equal to the
Executive's monthly base salary in effect on either (i)
125
the Date of Termination; or (ii) the date immediately preceding the Change of
Control, whichever is higher, multiplied by the number of full months between
the Date of Termination and the date that is thirty-six (36) months after the
date of consummation of the Change of Control.
b. For the year in which termination occurs, the Executive will
be entitled to receive his reasonable share of the Company's cash incentive
award allocated in accordance with existing principles and authorized by the
Board of Directors. The amount of the Executive's cash incentive award shall not
be reduced due to the Executive not being actively employed for the full year.
c. The Executive will continue to participate, without
discrimination, for thirty-six (36) months following the Date of Termination in
benefit plans (such as retirement, disability and medical insurance) maintained
after any Change of Control for employees, in general, of the Company, or any
successor organization, provided the Executive's continued participation is
possible under the general terms and conditions of such plans. In the event the
Executive's participation in any such plan is barred, the Company shall arrange
to provide the Executive with benefits substantially similar to those which the
Executive would have been entitled had his participation not been barred.
However, in no event will the Executive receive from the Company the employee
benefits contemplated by this section if the Executive receives comparable
benefits from any other source.
5. Other Employment. The Executive shall not be required to mitigate
----------------
the amount of any payment provided for in this Agreement by seeking other
employment, nor shall the amount of any payment provided for in this Agreement
be reduced by any compensation earned or benefits provided as the result of
employment by another employer after the Date of Termination.
6. Rights of Company Prior to the Change of Control. This Agreement
------------------------------------------------
shall not effect the right of the Company to terminate the Executive, or change
the salary or benefits of the Executive, with or without Good Cause, prior to
any Change of Control; provided, however, any termination or change which takes
place after discussions have commenced which result in a Change of Control shall
be presumed to be a violation of this Agreement which entitled the Executive to
the benefits hereof, absent clear and convincing evidence to the contrary.
7. Successors; Binding Agreement.
-----------------------------
a. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Executive, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as he would be entitled to hereunder if he terminated his employment for
Good Reason. As used in this
126
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which executes and delivers
the agreement provided for in this paragraph or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law.
b. This Agreement and all rights of the Executive hereunder
shall inure to the benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees. If the Executive should die while any
amounts would still be payable to him hereunder if he had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
8. Notice. For the purposes of this Agreement, notices, demands and
------
other communication provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or (unless otherwise specified)
mailed by United States registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
_______________________________________
Name
_______________________________________
Street Address
_______________________________________
City, State, Zip
If to the Company:
Chief Executive Officer
United Bankshares, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxx Xxxxxxxx 00000
or such other address as any party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
9. Miscellaneous. No provisions of this Agreement may be modified,
-------------
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and the Company's Chief Executive Officer or
such other officer as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The validity, interpretation
127
construction and performance of this Agreement shall be governed by the laws of
the State West Virginia.
10. Validity. The invalidity or unenforceability of any provision or
--------
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
11. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
12. Legal Fees. Company shall pay all reasonable legal fees and
expense incurred by Executive in enforcing any right or benefit provided by this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed as of the day and year first above written.
UNITED BANKSHARES, INC.
By ___________________________________
Its _______________________________
Attest:
_______________________________
______________________________________
Executive
128
