Exhibit 10
UNITED BANKSHARES, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AGREEMENT is made and entered into this 1st day of
October, 2003, by and between UNITED BANKSHARES, INC., a West Virginia bank
holding company (the "Company"), and (the "Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the
Company, the Company is willing to provide supplemental retirement benefits to
the Executive. The Company will pay the benefits from its general assets.
AGREEMENT
The Company and the Executive agree as follows:
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the following words and
phrases shall have the meanings specified:
1.1 "Code" means the Internal Revenue Code of 1986, as amended.
1.2 "Disability" means the Executive's suffering a sickness,
accident or injury which has been determined by the carrier of any individual or
group disability insurance policy covering the Executive, or by the Social
Security Administration, to be a disability rendering the Executive totally and
permanently disabled. The Executive must submit proof to the Company of the
carrier's or Social Security Administration's determination upon the request of
the Company.
1.3 "Early Retirement" means the Executive's Termination of
Employment after attaining Early Retirement Age and completing 30 Years of
Service.
1.4 "Early Retirement Age" means the Executive's 60th birthday.
1.5 "Early Retirement Date" means the month, day and year in which
Early Retirement occurs.
1.6 "Early Termination" means the Termination of Employment before
Early Retirement Age for reasons other than death, Disability, or Termination
for Cause.
1.7 "Early Termination Date" means the month, day and year in
which Early Termination occurs.
1.8 "Effective Date" means August 1, 2003.
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1.9 "Final Pay" means the total annual base salary payable to the
Executive at the rate projected to be in effect at Normal Retirement Age as set
forth on Schedule A attached hereto and incorporated herein by reference, and
updated as of January 1 each year by the Company. Final Pay shall not be reduced
for any salary reduction contributions to: (i) cash or deferred arrangements
under Section 401(k) of the Code; (ii) a cafeteria plan under Section 125 of the
Code; or (iii) a deferred compensation plan that is not qualified under Section
401(a) of the Code.1.10 "Normal Retirement Age" means the Executive's 65th
birthday.
1.10 "Normal Retirement Age" means the Executive's 65th birthday.
1.11 "Normal Retirement Date" means the later of the Normal
Retirement Age or Termination of Employment.
1.12 "Plan Year" means a twelve-month period commencing on January
1 and ending on December 31 of each year. The initial Plan Year shall commence
on the Effective Date of this Agreement.
1.13 "Termination for Cause" See Article 5.
1.14 "Termination of Employment" means that the Executive ceases to
be employed by the Company for any reason, voluntary or involuntary, other than
by reason of a leave of absence approved by the Company.
1.15 "Years of Service" means the total number of calendar years
during which the Executive is employed on a full-time basis by the Company, with
a minimum of 1,000 hours, inclusive of any approved leaves of absence, beginning
on the Executive's date of hire.
ARTICLE 2
BENEFITS DURING LIFETIME
2.1 Normal Retirement Benefit. Upon Termination of Employment on
or after the Normal Retirement Age for reasons other than death, the Company
shall pay to the Executive the benefit described in this Section 2.1 in lieu of
any other benefit under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this
Section 2.1 is 70 percent of the Executive's Final Pay, as set forth on Schedule
A, attached hereto and incorporated by reference herein, and as revised and
updated by the Company as of January 1 each year, reduced by:
(a) the primary Social Security benefit payable
(before earnings reduction) to the Executive
or which would be payable if applied for by
the Executive upon his Normal Retirement Age;
(b) the annual amount of benefits payable to the
Executive upon his Normal Retirement Age
(whether or not actually paid) from the
Company's qualified pension plan (the "Pension
Plan") on a single life annuity basis; and
(c) the annual amount of benefits payable to the
Executive upon his Normal Retirement Age, on a
single life annuity basis, attributable to the
portion of the Executive's account balances
arising from employer contributions (but
excluding the portion of such balances arising
from employee salary reduction contributions)
from the Bank's Section 401(k) plan.
2.1.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments commencing with the
month following the Executive's Normal Retirement Date. The annual benefit
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shall be paid to the Executive for a period of 15 years.
2.2 Early Retirement Benefit. Upon Early Retirement, the Company
shall pay to the Executive the benefit described in this Section 2.2 in lieu of
any other benefit under this Agreement.
2.2.1 Amount of Benefit. The annual benefit under this
Section 2.2 is 60 percent of the Executive's Final Pay, as set forth on Schedule
A, attached hereto and incorporated by reference herein, and as revised and
updated by the Company as of January 1 each year, reduced by:
(a) the primary Social Security benefit payable
(before earnings reduction) to the Executive
or which would be payable if applied for by
the Executive upon his Normal Retirement
Age;
(b) the annual amount of benefits payable to the
Executive upon his Normal Retirement Age
(whether or not actually paid) from the
Company's qualified pension plan (the
"Pension Plan") on a single life annuity
basis; and
(c) the annual amount of benefits payable to the
Executive upon his Normal Retirement Age, on
a single life annuity basis, attributable to
the portion of the Executive's account
balances arising from employer contributions
(but excluding the portion of such balances
arising from employee salary reduction
contributions) from the Bank's Section
401(k) plan.
2.2.2 Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments commencing with the
month following the Executive's Early Retirement Date. The annual benefit shall
be paid to the Executive for a period of 15 years.
2.3 Early Termination Benefit. Upon Early Termination, the Company
shall pay to the Executive the benefit described in this Section 2.3 in lieu of
any other benefit under this Agreement.
2.3.1 Amount of Benefit. The benefit under this Section 2.3
is an amount equal to the "Accrual Balance" determined as of the Company's
fiscal year end immediately preceding the Executive's Early Termination Date, as
set forth on Schedule A, attached hereto and incorporated by reference herein,
and as revised and updated by the Company as of January 1 each year.
2.3.2 Payment of Benefit. The Company shall pay the benefit
to the Executive by calculating a fixed annuity payable in 180 equal monthly
installments, crediting interest on the unpaid balance at an annual rate of 6.0
percent, compounded monthly. The monthly installments shall be payable on the
first day of each month commencing with the month following Early Retirement
Age.
2.4 Disability Benefit. If the Executive terminates employment due
to Disability prior to Normal Retirement Age, the Company shall pay to the
Executive the benefit described in this Section 2.4 in lieu of any other benefit
under this Agreement.
2.4.1 Amount of Benefit. The annual benefit under this
Section 2.4 is an amount equal to the "Accrual Balance" determined as of the
Company's fiscal year end immediately preceding the Executive's Termination of
Employment, plus the prorated amount of accruals up to the month in which
Termination of Employment occurs, as set forth on Schedule A, attached hereto
and incorporated by reference herein, and as revised and updated by the Company
from time to time.
2.4.2 Payment of Benefit. The Company shall pay the benefit
to the Executive by calculating a fixed
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annuity payable in 180 equal monthly installments, crediting interest on the
unpaid balance at an annual rate of 6.0 percent, compounded monthly. The monthly
installments shall be payable on the first day of each month commencing with the
month following Normal Retirement Age.
ARTICLE 3
DEATH BENEFITS
3.1 Death During Active Service. If the Executive dies while in
the active service of the Company, no benefit shall be payable under this
Agreement.
3.2 Death During Payment of a Benefit. If the Executive dies after
any benefit payments have commenced under Article 2 of this Agreement but before
receiving all such payments, the Company shall pay the remaining benefits to the
Executive's beneficiary at the same time and in the same amounts they would have
been paid to the Executive had the Executive survived.
3.3 Death After Termination of Employment But Before Payment of a
Benefit Commences. If the Executive is entitled to a benefit under Article 2 of
this Agreement, but dies prior to the commencement of said benefit payments, the
Company shall pay the same benefit payments to the Executive's beneficiary that
the Executive was entitled to prior to death except that the benefit payments
shall commence on the first day of the month following the date of the
Executive's death.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with the Company. The Executive may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Executive and
received by the Company during the Executive's lifetime. The Executive's
beneficiary designation shall be deemed automatically revoked if the beneficiary
predeceases the Executive, or if the Executive names a spouse as beneficiary and
the marriage is subsequently dissolved. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incompetent person or incapable person. The Company may require proof of
incompetence, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement if the Company terminates the Executive's employment for:
(a) Gross negligence or gross neglect of duties;
(b) Commission of a felony or of a gross misdemeanor
involving moral turpitude; or
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(c) Fraud, disloyalty, dishonesty or willful violation of
any law or significant Company policy committed in
connection with the Executive's employment and
resulting in an adverse effect on the Company.
5.2 Suicide or Misstatement. The Company shall not pay any benefit
under this Agreement if the Executive commits suicide within three years after
the date of this Agreement. In addition, the Company shall not pay any benefit
under this Agreement if the Executive has made any material misstatement of fact
on an employment application or resume provided to the Company, or on any
application for any benefits provided by the Company to the Executive.
5.3 Competition After Termination of Employment. The Company shall
not pay any benefit under this Agreement if the Executive, at any time during
the 12 calendar months following Termination of Employment and without the prior
written consent of the Company (a) engages in or becomes associated with, in the
capacity of employee, director, officer, principal, agent, trustee or in any
other capacity whatsoever, any Competitive Enterprise; or (b) becomes interested
in, directly or indirectly, as a proprietor, partner, officer, director, member,
consultant or substantial stockholder, shareholder, or stakeholder, any
Competitive Enterprise; provided, however, that this Section 5.3 shall not apply
if the Executive's Termination of Employment is for Good Reason or if there is a
Wrongful Termination of Executive.
For purposes of this Section 5.3, the following definitions shall
apply:
(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")), or 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) "Competitive Enterprise" means any business, organization,
company, corporation, partnership or business entity or enterprise of any type
that (i) is or may be deemed to be competitive with any business carried on by
the Company as of the date of Termination of Employment, and (ii) is conducted
within a 50-mile radius of any Company location where Executive conducted or
supervised or otherwise engaged in business of the Company.
(c) "Good Reason" means a Change of Control in the Company and as
a direct result thereof prior to the expiration of thirty-six months after
consummation of a Change of Control, there is: (i) 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 (ii) a geographical relocation of the
Executive to an office more than 50 miles from the Executive's location at the
time of the Change of Control, without the Executive's consent.
(d) "Wrongful Termination" means Executive's Termination of
Employment by the Company for any reason other than Termination for Cause or the
death or Disability of Executive prior to the expiration of thirty-six (36)
months after consummation of the Change of Control.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. An Executive or beneficiary ("claimant") who
has not received benefits under the
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Agreement that he or she believes should be paid shall make a claim for such
benefits as follows:
6.1.1 Initiation - Written Claim. The claimant initiates a
claim by submitting to the Company a written claim for the benefits.
6.1.2 Timing of Company Response. The Company shall respond
to such claimant within 90 days after receiving the claim. If the Company
determines that special circumstances require additional time for processing the
claim, the Company can extend the response period by an additional 90 days by
notifying the claimant in writing, prior to the end of the initial 90-day
period, that an additional period is required. The notice of extension must set
forth the special circumstances and the date by which the Company expects to
render its decision.
In the case of a claim for benefits due to
Disability, the Company shall notify the claimant of the Plan's denial within a
reasonable period of time, but not later than 45 days after receipt of the claim
by the Company. This period may be extended by the Company for up to 30 days,
provided that the Company both determines that such an extension is necessary
due to matters beyond its control and notifies the claimant, prior to the
expiration of the initial 45-day period, of the circumstances requiring the
extension of time and the date by which the Company expects to render a
decision. If, prior to the end of the first 30-day extension period, the Company
determines that, due to matters beyond its control, a decision cannot be
rendered within that extension period, the period for making the determination
may be extended for up to an additional 30 days, provided that the Company
notifies the claimant, prior to the expiration of the first 30-day extension
period, of the circumstances requiring the extension and the date as of which
the Company expects to render a decision. In the case of any extension
hereunder, the notice of extension shall specifically explain the standards on
which entitlement to a benefit is based, the unresolved issues that prevent a
decision on the claim, and the additional information needed to resolve those
issues, and the claimant shall be afforded at least 45 days within which to
provide the specified information.
6.1.3 Notice of Decision. If the Company denies part or all
of the claim, the Company shall notify the claimant in writing of such denial.
The Company shall write the notification in a manner calculated to be understood
by the claimant. The notification shall set forth:
(a) The specific reasons for the denial;
(b) A reference to the specific provisions of
the Agreement on which the denial is based;
(c) A description of any additional information
or material necessary for the claimant to
perfect the claim and an explanation of why
it is needed;
(d) An explanation of the Agreement's review
procedures and the time limits applicable to
such procedures;
(e) In the case of denial of a claim based upon
Disability, a copy of any internal rule,
guideline, protocol or similar criteria
relied upon or a statement that such was
relied upon and will be provided free of
charge upon request; and
(f) A statement of the claimant's right to bring
a civil action under ERISA Section 502(a)
following an adverse benefit determination
on review.
6.2 Review Procedure. If the Company denies part or all of the
claim, the claimant shall have the opportunity for a full and fair review by the
Company of the denial, as follows:
6.2.1 Initiation - Written Request. To initiate the review,
the claimant, within 60 days (180 days for a claim based on the Executive's
Disability) after receiving the Company's notice of denial, must file with the
Company a written request for review.
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6.2.2 Additional Submissions - Information Access. The
claimant shall then have the opportunity to submit written comments, documents,
records and other information relating to the claim. The Company shall also
provide the claimant, upon request and free of charge, reasonable access to, and
copies of, all documents, records and other information relevant (as defined in
applicable ERISA regulations) to the claimant's claim for benefits.
6.2.3 Considerations on Review. In considering the review,
the Company shall take into account all materials and information the claimant
submits relating to the claim, without regard to whether such information was
submitted or considered in the initial benefit determination.
For a claim involving Disability, the following rules
shall apply: (i) the review will not give Executive's deference to the initial
adverse benefit determination and will be conducted by the Company or its
designee, not including any individual who made the decision to deny benefits,
nor the subordinate of such individual who made the decision to deny benefits,
(ii) a health care professional with appropriate training and experience in the
field of medicine involved and who is neither an individual who was consulted in
connection with the denial nor the subordinate of such individual, will be
consulted, and (iii) the denial will identify the medical or vocational experts
whose advice was obtained in connection with the claim.
6.2.4 Timing of Company Response. The Company shall respond
in writing to such claimant within 60 days (45 days for a claim involving the
Executive's Disability) after receiving the request for review. If the Company
determines that special circumstances require additional time for processing the
claim, the Company can extend the response period by an additional 60 days by
notifying the claimant in writing, prior to the end of the initial 60-day
period, that an additional period is required. The notice of extension must set
forth the special circumstances and the date by which the Company expects to
render its decision.
In the case of a denial involving a claim for
benefits based upon the Executive's Disability, the claimant will be provided a
copy of any internal rule, guideline, protocol or similar criteria relied upon,
or a statement that such was relied upon and will be provided, free of charge
upon claimant's request. The written decision on review shall be given to the
claimant within the sixty (60) day (or, if applicable, the forty-five (45) day)
or extended time limit discussed above. All decisions on review shall be final
and binding with respect to all concerned parties.
6.2.5 Notice of Decision. The Company shall notify the
claimant in writing of its decision on review. The Company shall write the
notification in a manner calculated to be understood by the claimant. The
notification shall set forth:
(a) The specific reasons for the denial;
(b) A reference to the specific provisions of
the Agreement on which the denial is based;
(c) A statement that the claimant is entitled to
receive, upon request and free of charge,
reasonable access to, and copies of, all
documents, records and other information
relevant (as defined in applicable ERISA
regulations) to the claimant's claim for
benefits;
(d) A statement of the claimant's right to bring
a civil action under ERISA Section 502(a);
and
(e) In the case of denial of a claim based upon
Disability, a copy of any internal rule,
guideline, protocol or similar criteria
relied upon or a statement that such was
relied upon and will be provided free of
charge upon request.
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ARTICLE 7
AMENDMENTS AND TERMINATION
This Agreement may be amended or terminated only by a written
agreement signed by the Company and the Executive.
Notwithstanding the previous paragraph in this Article 7, the
Company may amend or terminate this Agreement at any time if, pursuant to
legislative, judicial or regulatory action, continuation of the Agreement would
(i) cause benefits to be taxable to the Executive prior to actual receipt, or
(ii) result in significant financial penalties or other significantly
detrimental ramifications to the Company (other than the financial impact of
paying the benefits).
ARTICLE 8
MISCELLANEOUS
8.1 Binding Effect. This Agreement shall bind the Executive and
the Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
8.2 No Guarantee of Employment. This Agreement is not an
employment policy or contract. It does not give the Executive the right to
remain an employee of the Company, nor does it interfere with the Company's
right to discharge the Executive. It also does not require the Executive to
remain an employee nor interfere with the Executive's right to terminate
employment under state law or the terms of any applicable employment contract.
8.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any manner.
8.4 Reorganization. The Company shall not merge or consolidate
into or with another company, or reorganize, or sell substantially all of its
assets to another company, firm, or person unless such succeeding or continuing
company, firm, or person agrees to assume and discharge the obligations of the
Company under this Agreement. Upon the occurrence of such event, the term
"Company" as used in this Agreement shall be deemed to refer to the successor or
survivor company.
8.5 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.6 Applicable Law. The Agreement and all rights hereunder shall
be governed by the laws of the State of West Virginia, except to the extent
preempted by the laws of the United States of America.
8.7 Unfunded Arrangement. The Executive and beneficiary are
general unsecured creditors of the Company for the payment of benefits under
this Agreement. The benefits represent the mere promise by the Company to pay
such benefits. The rights to benefits are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors. Any insurance on the Executive's life
is a general asset of the Company to which the Executive and beneficiary have no
preferred or secured claim.
8.8 Entire Agreement. This Agreement constitutes the entire
agreement between the Company and the Executive as to the subject matter hereof.
No rights are granted to the Executive by virtue of this Agreement other than
those specifically set forth herein.
8.9 Administration. The Company shall have powers which are
necessary to administer this Agreement, including but not limited to:
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(a) Establishing and revising the method of accounting
for the Agreement;
(b) Maintaining a record of benefit payments;
(c) Establishing rules and prescribing any forms
necessary or desirable to administer the Agreement;
and
(d) Interpreting the provisions of the Agreement.
8.10 Named Fiduciary. The Company shall be the named fiduciary and
plan administrator under this Agreement. It may delegate to others certain
aspects of the management and operational responsibilities including the
employment of advisors and the delegation of ministerial duties to qualified
individuals.
IN WITNESS WHEREOF, the Executive and the Company have signed
this Agreement.
EXECUTIVE: COMPANY:
UNITED BANKSHARES, INC.
__________________________________ BY __________________________
[EXECUTIVE'S SIGNATURE]
TITLE ________________________
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BENEFICIARY DESIGNATION
UNITED BANKSHARES, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
[EXECUTIVE'S NAME]
I designate the following as beneficiary of any death benefits under this
Agreement:
Primary: _______________________________________________________________________
________________________________________________________________________________
Contingent: ____________________________________________________________________
________________________________________________________________________________
NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE
TRUSTEE(S) AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary and our marriage is subsequently dissolved.
Signature ____________________________
Date _________________________________
Received by the Company this ______ day of _________________, 2003.
By ____________________________________
Title _________________________________
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