AMENDED AND RESTATED CHANGE OF CONTROL AGREEMENT
EXHIBIT 10.9
AMENDED AND RESTATED CHANGE OF CONTROL AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT made as of the ___ day of , 2008, provided,
however, that all provisions applicable to compliance under Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”) shall be effective as of January 1, 2005, 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;
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; and;
WHEREAS, by this Agreement the Company and the Executive desire to amend and restate the
Change of Control Agreement dated August 15, 2000 [this
date will be August 15, 2000 for Xxxxx Xxxxxxxx, Xxxx Xxxxx and Xxxx Xxxxxx but will instead be March 15,
1994 for Xxxxxx Xxxxxx, Xxx Xxxxxx and Xxxxx Xxxxxxxx], and for the purpose of complying with the
requirements of Code Section 409A and the Company and the Executive intend this amendment to comply
with Transition Relief promulgated by the Internal Revenue Service pursuant to Code Section 409A,
and accordingly, notwithstanding any other provisions of this amended and restated Change of
Control Agreement, this amendment applies only to amounts that would not otherwise be payable in
2006, 2007 or 2008 and shall not cause (i) an amount to be paid in 2006 that would not otherwise be
payable in such year, (ii) an amount to be paid in 2007 that would not otherwise be payable in such
year, or (iii) an amount to be paid in 2008 that would not otherwise be payable in such year, and
to the extent necessary to qualify under Transition Relief issued under said Code Section 409A, to
not be treated as a change in the form and timing of a payment under section 409A(a)(4) or an
acceleration of a payment under section 409A(a)(3), Executive, by executing this amended and
restated Change of Control Agreement, shall be deemed to have elected, on or before December 31,
2007, the timing and form of distribution provisions of this Amended and Restated Change of Control
Agreement, and to have otherwise further revised this Agreement, all prior to December 31, 2008.
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:
Article 1. Definitions. The following definitions shall apply to designated phrases
used in this Agreement.
a. “Change in Control” means with respect to (i) the Company or any affiliate for whom
Executive is performing services at the time of the Change in Control Event; (ii) the Company or
such affiliate that is liable for the payment to Executive hereunder,) as the case may be, (or all
corporations liable for the payment if more than one corporation is liable) but only if either the
payment under this Agreement is attributable to the performance of service by Executive for the
Company or for any such Affiliate, as the case may be, that is liable for the payment to the
Executive hereunder, or there is a bona fide business purpose for the Company or for such
Affiliate, as the case may be, that is liable for the payment to Executive hereunder, to be liable
for such payment and, in either case, no significant purpose of making the Company or such
Affiliate, as the case may be, that is liable for the payment to Executive hereunder, liable for
such payment is the avoidance of Federal Income tax; or (iii) a corporation that is a majority
shareholder of a corporation identified in paragraph (i) or (ii) of this section, or any
corporation in a chain of corporations in which each corporation is a majority shareholder of
another corporation in the chain, ending in a corporation identified in paragraph (i) or (ii) of
this section, a Change in Ownership or Effective Control of the corporation, as defined in Section
409A of the Code, and the regulations or guidance issued by the Internal Revenue Service
thereunder, meeting the requirements of such Change in Ownership of the corporation or Change in
Effective Control of the corporation as a “Change in Control Event” thereunder.
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 (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 in 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 in 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) a Change in Control in the Company (as defined above)
and failure of Company to obtain assumption of this Agreement by its successor, or (iii) any
purported termination of the Executive’s employment by Company 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 two (2) years after consummation of the Change in Control.
g. “Separation from Service” means the severance of Executive’s employment with the Company or
Affiliate for any reason. Executive separates from service with the Company or affiliate if he or
she dies, retires, separates from service because of the Executive’s Disability, or otherwise has a
termination of employment with the Company or Affiliate. However, the employment relationship is
treated as continuing intact while the Participant is on military leave, sick leave, or other bona
fide leave of absence if the period of such leave does not exceed six months, or if longer, so long
as the Executive’s right to reemployment with the Company or Affiliate is provided either by
statute or by contract. If the period of leave exceeds six months and the Executive’s right to
reemployment is not provided either by statute or by contract, the employment relationship is
deemed to terminate on the first date immediately following such six-month period. Notwithstanding
the foregoing, where a leave of absence is due to any medically determinable physical or mental
impairment that can be expected to result in death or can be expected to last for a continuous
period of not less than six months, where such impairment causes the employee to be unable to
perform the duties of his or her position of employment or any substantially similar position of
employment, a 29-month period of absence shall be substituted for such six-month period. In
addition, notwithstanding any of the foregoing, the term “Separation from Service” shall be
interpreted under this Agreement in a manner consistent with the requirements of Code Section 409A
including, but not limited to (i) an examination of the relevant facts and circumstances, as set
forth in Code Section 409A and the regulations and guidance thereunder, in the case of any
performance of services or availability to perform services after a purported termination or
Separation from Service, (ii) in any instance in which Executive is participating or has at any
time participated in any other plan which is, under the aggregation rules of Code Section 409A and
the regulations and guidance issued thereunder, aggregated with this Agreement and with respect to
which amounts deferred hereunder and under such other plan or plans are treated as deferred under a
single plan, (hereinafter sometimes referred to as an “Aggregated Plan” or together as the
“Aggregated Plans,”) then in such instance Executive shall only be considered to meet the
requirements of a Separation from Service hereunder if Executive meets (a) the requirements of a
Separation from Service under all such Aggregated Plans and (b) the requirements of a Separation
from Service under this Agreement which would otherwise apply (iii) in any instance in which
Executive is an employee and an independent contractor of the Company or any Affiliate or both,
Executive must have a Separation from Service in all such capacities to meet the requirements of a
Separation from Service hereunder, although, notwithstanding the foregoing, if Executive provides
services both as an employee and a member of the Board of Directors of the Company or any Affiliate
or both, the services provided as a director are not taken into account in determining whether the
Executive has had a Separation from Service as an employee under this Agreement, provided that no
plan in which such Executive participates or has participated in his capacity as a director is an
Aggregated Plan and (iv) a determination of whether a Separation from Service has occurred shall be
made in accordance with Treasury Regulations Section 1.409A-1(h)(4) or any similar or successor
law, regulation of guidance of like import, in the event of an asset purchase transaction as
described therein.
h. “Specified Employee” means, in the case of Executive, if Executive shall meet the
requirements of Code Section 416(i)(1)(A)(i), (ii) or (iii) (applied in accordance with the
regulations thereunder and disregarding section 416(i)(5)) at any time during the 12 month period
ending on any Specified Employee Identification Date, which shall be December 31 of each calendar
year, (or otherwise meeting the requirements applicable to qualification as a ‘Specified Employee’
under Code Section 409A and the regulations and guidance issued thereunder,) that Executive shall,
in such event, for purposes of this Agreement, thereafter be a Specified Employee under this
Agreement
for the period of time consisting of the entire 12-month period beginning on the Specified
Employee Effective Date, and said Specified Employee Effective Date shall be the first day of the
fourth month following the Specified Employee Identification Date.
Article 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.
Article 3. Date of Termination. Date of Termination shall mean the date on which
Notice of Termination is given.
Article 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, provided that if the Good Reason with respect to which Executive so terminates his
employment with Company is set forth in subsections (i) or (ii) of Article 1, Section (e), that
Executive has a Separation from Service within two (2) years after a Change in Control, or the
Company terminates the Executive’s employment in a manner constituting Wrongful Termination, all
provided that any such termination under this Article 4, Section (a) meets the definition of
Separation from Service under this Agreement, the Company hereby agrees to pay the Executive a cash
payment on the date on which such Separation from Service occurs, subject to the provisions of
Article 4, Section (d) if Executive is a ‘Specified Employee’ on the date of Separation from
Service, equal to the Executive’s monthly base salary in effect on either (i) the Date of
Termination; or (ii) the date immediately preceding the Change in 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 in Control and such payment is
hereinafter sometimes referred to as a “Separation Payment.”
b. In the event of a Separation from Service under Article 4, Section (a) with respect to
which the Company is required to pay a Separation Payment to Executive, then on the date of such
Separation from Service of Executive, subject to the provisions of Article 4, Section (d) if
Executive is a ‘Specified Employee’ on the date of Separation from Service, the Company shall also
pay to Executive, in addition to the Separation Payment, an amount, in cash, equal to the last
bonus paid to Executive prior to Separation from Service multiplied by a fraction, the numerator of
which is the number of days from January 1 to the date of Separation from Service, inclusive, in
the calendar year of such Separation from Service and the denominator of which is Three Hundred and
Sixty-Five.
c. In the event of a Separation from Service under Article 4, Section (a) with respect to
which the Company is required to pay a Separation Payment to Executive, the Executive will continue
to participate, without discrimination, for the period of time during which the
Executive would be entitled (or would, but for such plan, be entitled) to continuation coverage
under a group health plan of the service recipient under Code section 4980B (COBRA) if Executive
elected such coverage and paid the applicable premiums, but in no event shall such period exceed
thirty-six (36) months following the Date of Termination, in any plan of disability insurance and
any plan of 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, for
the period of time during which the Executive would be entitled (or would, but for such plan, be
entitled) to continuation coverage under a group health plan of the service recipient under Code
section 4980B (COBRA) if Executive elected such coverage and paid the applicable premiums, but in
no event shall such period exceed thirty-six (36) months following the Date of Termination, with
medical expense or reimbursement 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. In addition, the amount of expenses eligible
for reimbursement, or in-kind benefits provided hereunder, if any, during Executive’s taxable year
may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any
other taxable year, any reimbursement of an eligible expense hereunder must be made on or before
the last day of the Executive’s taxable year following the taxable year in which the expense was
incurred and the right to reimbursement or in-kind benefits is not subject to liquidation or
exchange for any other benefit, and if any such reimbursement of expenses or in-kind benefit
payment is deferred compensation within the meaning of Code Section 409A and the regulations
thereunder, then such reimbursement or such in-kind benefit payment shall be subject to the
provisions of Article 4, Section (d) if Executive is a ‘Specified Employee on the date of
Separation from Service.
d. Notwithstanding the provisions of Article 4, Sections (a), (b) and (c), or any other
provision of this Agreement, if any payment is to be made under this Agreement to Executive upon or
based upon Termination of Employment or Separation from Service other than by death, in the event
that Executive is a Specified Employee on the date of the Executive’s Termination of Employment or
Separation from Service, and such payment is to be made to Executive upon or within six months
after Executive’s Termination of Employment or Separation from Service, other than by death, then
such payment shall instead be made on the date which is six months after such Termination of
Employment or Separation from Service of Executive (other than by death.) Notwithstanding any of
the foregoing, or any other provision of this Agreement, no payment upon or based upon Separation
from Service or Termination of Employment may be made under this Agreement before the date that is
six months after the date of Separation from Service or Termination of Employment, or, if earlier,
the date of death, of Executive in the event that Executive is a Specified Employee on Executive’s
of Separation from Service or Termination of Employment.
Article 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.
Article 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, if such termination or
change takes place within two years after the Change in Control.
Article 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. The right of the Executive to
Separation Pay or other benefit under this Agreement for failure of the Company to obtain such
agreement is governed by the provisions of Article 1, Section (e), Subsection (ii) and Article 4 of
this Agreement. As used in this 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.
Article 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.
Article 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, interpretations, construction and performance of
this Agreement shall be governed by the laws of the State of West Virginia.
Article 10. Validity. The invalidity or unenforceability of any provision or
provisions 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.
Article 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.
Article 12. Legal Fees. Company shall pay all reasonable legal fees and expenses
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 |
