Exhibit 10.3
AGREEMENT
This Agreement ("Agreement") was made as of this 7/th/ day of
December, by and among United Bankshares, Inc., a West Virginia corporation (the
"Corporation"), United Bank, a Virginia state-chartered bank (the "Bank") and
Xxxxxx X. Xxxxxxxxx (the "Executive"). Capitalized terms used and not otherwise
defined herein shall have the meaning set forth in either the Executive
Employment Agreement dated as of September 1, 1996, as amended (the "Employment
Agreement") or the Agreement and Plan of Reorganization by and between the
Corporation and Century Bancshares, Inc., a Delaware corporation ("Century"),
dated as of June 14, 2001, (the "Merger Agreement").
WITNESSETH:
WHEREAS, pursuant to the Merger Agreement, Corporation and Bank
recognize that (i) the Executive?s continued service to the Corporation and Bank
is needed and adds value to the operations of both Corporation and Bank after
the Effective Time of the Merger; and (ii) that the Executive?s continued
service to Corporation and Bank will maximize the potential of the strategic
business combination contemplated under the Merger Agreement; and
WHEREAS, the parties have agreed to enter into this Agreement to
provide for the termination by Executive of his Employment Agreement, such
termination to be conditioned upon consummation of the Merger; and
WHEREAS, Corporation and Bank agreed to assume the obligations of
Century under the Employment Agreement conditioned upon consummation of the
Merger; and
WHEREAS, Corporation and Bank consider the availability of Executive's
services to be important to the management and conduct of Corporation's and
Bank's business and desire to secure the continued availability of Executive's
services; and
WHEREAS, Executive is willing to make his services available to
Corporation and Bank on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. Assumption of Obligations under Employment Agreement by Corporation
and Bank. Upon consummation of the Merger, Corporation and Bank hereby
agree to assume the obligations and liabilities of Century under the
Employment Agreement in accordance with paragraph 7.2 thereof.
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2. Termination of Employment Agreement by Executive. After the
consummation of the Merger and in accordance with Paragraphs 5.3.2 and 5.5
of the Employment Agreement, Executive agrees to give notice of termination
to the Corporation to be effective as of 8 a.m. on January 1, 2002.
Notwithstanding the foregoing, the following rights will survive the
termination of the Employment Agreement: (a) the obligations of Executive
under Paragraphs 4 (which will survive until December 7, 2002), 18, 19 and
22 of the Employment Agreement and Paragraph 1 of Amendment No. 3 to the
Employment Agreement dated February 20, 2001 ("Amendment No. 3"); and (b)
the obligations of Corporation and Bank under Paragraphs 6, 18 and 19 of
the Employment Agreement and Paragraph 1 of Amendment No. 3.
3. Payments upon Termination. After the consummation of the Merger and
until the termination of the Employment Agreement, Corporation and Bank
agree to continue to provide Executive with the compensation set forth in
Paragraph 3 of the Employment Agreement and Paragraph 1.2 of Amendment No.
3. Within ten (10) business days after termination of the Employment
Agreement (i.e. between January 2, 2002 and January 15, 2002), Corporation
and Bank agree to pay Executive the amounts due to him pursuant to
Paragraphs 6.1(a) and 6.1(f) of the Employment Agreement. Corporation, Bank
and Executive each agree that Executive is entitled to receive the
following amounts pursuant to Paragraphs 6.1(f) and 6.4 of the Employment
Agreement and Paragraph 1.4 of Amendment No. 3:
(1) As provided in Paragraph 4 of the Employment Agreement,
Executive is subject to certain non-competition
and non-solicitation agreements with Employer and,
upon consummation of the Merger, with Corporation
and Bank. Executive, Corporation and Bank hereby
agree that $250,000, less applicable withholdings,
shall be paid to Executive, which constitutes
consideration for Executive's prior agreement to
such non-competition and non-solicitation
agreements; and
(b) $500,000, less applicable witholdings.
4. Services to be Provided by Executive. At the Effective Time of the
Merger, Executive shall be appointed to serve as Vice Chairman of the Board
of Bank. Executive shall have such duties and responsibilities as are
commensurate with such position, including promoting the products and
services of Corporation and Bank to the customer base of Century and its
subsidiaries, maintaining relationships and soliciting business with such
former customers, general customer and employee relations, public
relations, assisting in strategic planning and the full development of the
potential of the strategic combination contemplated in the Merger
Agreement, assisting in the smooth and orderly transition of management and
employees from Century and its subsidiaries to Corporation and Bank, and
such other services and duties
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consistent with the forgoing as maybe reasonably assigned to him from time
to time by the Board of Directors of Bank or Corporation. Executive hereby
accepts and agrees to the above-described services subject to the general
supervision and pursuant to the orders, advice and direction of the Board
of Directors of either Bank or Corporation. In addition to the foregoing,
Executive shall be elected to the Board of Directors of Corporation as
provided in Section 7.14 of the Merger Agreement.
5. Compensation. In exchange for the services described in Paragraph 4
above, Executive shall be entitled to receive cash compensation of $75,000
during the term of this Agreement. Such compensation shall be in addition
to, and not in lieu of, any compensation and/or benefits to which Executive
may be entitled pursuant to Paragraph 6 of the Employment Agreement. All
amounts payable to Executive under this Paragraph shall be subject to
deductions and withholding as required by law. The compensation provided
herein shall be paid in periodic monthly installments on the last day of
each month beginning January 31, 2002. Additionally, during the term of
this Agreement, Executive may continue his exclusive use of the office
currently provided by Century. Corporation and Bank acknowledge that the
contents of said office include some of Executive's personal property
(including, but not limited to, three framed paintings, an etched glass
panel from the Texas State Capitol, and an oak bookcase with leaded glass
doors) which Executive may remove at any time.
6. Term of Agreement. The term of this Agreement shall commence on
January 1, 2002 (the "Commencement Date") and shall terminate on December
31, 2002.
7. Confidential Information. Executive will not at any time disclose to
any other Person (except as required by applicable law or in connection
with the performance of his duties and responsibilities hereunder), or use
for his own benefit or gain, any confidential information of the
Corporation, Bank and/or their respective affiliates obtained by him
incident to his consultant relationship with the Corporation, Bank and/or
their respective affiliates. The term "confidential information" includes,
without limitation, financial information, business plans and opportunities
(such as lending relationships, financial product developments or possible
acquisitions or dispositions of businesses or facilities) which have been
discussed or considered by the management of the Corporation, Bank and/or
their respective affiliates but does not include any information which has
become part of the public domain by means other than the nonobservance of
his obligations hereunder.
8. Conflicting Agreements. Executive hereby represents and warrants that
the execution of this Agreement and the performance of his obligations
hereunder will not breach or be in conflict with any other agreement to
which he is a party or is bound, and that he is not now subject to any
covenants against competition or similar covenants which would affect the
performance of his obligations hereunder.
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9. Definition of "Person". For purposes of this Agreement, the term
"Person" shall mean an individual, a corporation, an association, a
partnership, an estate, a limited liability company, and any other entity
or organization.
10. Assignment; Successors and Assigns, etc. Neither the Corporation and
Bank nor the Executive may make an assignment of this Agreement or any
interest herein, by operation of law or otherwise, without the prior
written consent of the other party hereto, and without such consent, any
attempted transfer or assignment shall be null and of no effect; provided,
however, that the Corporation and Bank may assign their rights under this
Agreement without consent of the Executive in the event that the
Corporation and Bank shall hereafter effect a reorganization, consolidate
with or merge into any other Person, or transfer all or substantially all
of its properties or assets to any other Person and such other Person
assumes the obligations of the Corporation and Bank under this Agreement.
This Agreement shall inure to the benefit of and be binding upon the
Corporation and Bank and the Executive, their respective successors,
executors, administrators, heirs and permitted assigns.
11. Enforceability. If any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of
such portion or provision in circumstances other than those as to which it
is so declared illegal or enforceable, shall not be affected thereby, and
each portion and provisions of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
12. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party
to require the performance of any term or obligation of this Agreement, or
the waiver by any party or any breach of this Agreement, shall not prevent
any subsequent enforcement of such term or obligation or be deemed a waiver
of any subsequent breach.
13. Amendment. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by the duly authorized
representatives of the Corporation and Bank.
14. Governing Law. This Agreement shall be construed under and be governed
in all respects by the laws of the Commonwealth of Virginia, to the extent
not preempted by Federal law.
15. Complete Agreement. Except as otherwise provided in this Agreement, on
and after the Commencement Date, this Agreement shall supersede any other
agreement, written or oral, pertaining to the subject matter of this
Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by the
Corporation and Bank, by their respective duly authorized officers, and by the
Executive, as of the date first written above.
UNITED BANKSHARES, INC.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxx, Xx.
Title: Executive Vice President
UNITED BANK
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
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