SECOND AMENDMENT AND FIRST RESTATEMENT OF THE UNITED BANKSHARES, INC. SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
EXHIBIT 10.6
SECOND AMENDMENT AND FIRST RESTATEMENT
OF THE UNITED BANKSHARES, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
OF THE UNITED BANKSHARES, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS SECOND AMENDMENT AND FIRST RESTATEMENT of the United Bankshares, Inc. Supplemental
Executive Retirement Agreement is made this ___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 bank holding company
(the “Company”) and (the “Executive”).
WHEREAS, the Company and Executive entered into the United Bankshares, Inc. Supplemental
Executive Retirement Agreement as of
, 200___ (the “Agreement”); and
WHEREAS, effective November 1, 2007 the Company approved a First Amendment to the Agreement;
and
WHEREAS, the Company and Executive now desire to Amend and Restate said Agreement in its
entirety for the purpose of clarity and for the purpose of complying with the requirements of Code
§ 409A; and
WHEREAS, the Company intends 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 Plan, this amendment applies only to amounts that
would not otherwise be payable in 2006, 2007 and 2008 and shall not (i) cause an amount to be paid
in 2006 that would not otherwise be payable in such year, (ii) cause an amount to be paid in 2007
that would not otherwise be payable in such year, or (iii) cause an amount to be paid in 2008 that
would not otherwise be payable in such year, and to the extent necessary to qualify under such
Transition Relief 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), the Executive, by executing
this Amendment and Restatement, shall be deemed to have elected the timing and form of distribution
provisions of this Amended and Restated Plan, on or before December 31, 2008, (provided that this
applies only to amounts that would not otherwise be payable in 2006 and shall not cause an amount
to be paid in 2006 that would not otherwise be payable in such year, this applies only to amounts
that would not otherwise be payable in 2007 and shall not cause an amount to be paid in 2007 that
would not otherwise be payable in such year, and this applies only to amount that would not
otherwise be payable in 2008 and shall not cause an amount to be paid in 2008 that would not
otherwise be payable in such year.)
NOW, THEREFORE, the Company and Executive mutually agree to amend and restate the Agreement in
its entirety as follows:
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
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” — a Participant shall be considered disabled if the Participant (i) is
unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months, or (ii) is, by reason of
any medically determinable physical or mental impairment which can be expected to result in death
or has lasted or can be expected to last for a continuous period of not less than 12 months,
receiving income replacement benefits for a period of not less than 3 months under an accident and
health plan covering employees of the Company or an Affiliate. In addition, notwithstanding any of
the foregoing, the terms “Disability” and “Disabled” shall be interpreted under this Plan in a
manner consistent with the requirements of Code Section 409A.
1.3 “Early Termination” means the Termination of Employment before Normal Retirement Age and
before Disability, and for reasons other than death, Disability, or Termination for Cause.
1.4 “Early Termination Date” means the month, day and year in which Early Termination occurs.
1.5 “Effective Date” means , 2008, provided, however that all provisions
of this Agreement applicable to compliance with Code Section 409A and the regulations thereunder
shall be effective as of January 1, 2005.
1.6 “Normal Retirement Age” means the Executive’s 60th birthday.
1.7 “Normal Retirement Date” means the later of Normal Retirement Age or Termination of
Employment.
1.8 “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 October 1, 2003.
1.9 “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.
1.10 “Termination for Cause” shall be defined as set forth in Article 5.
1.11 “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, provided however, that the employment relationship is treated as continuing intact
while the Executive is on military leave, sick leave, or other bona fide leave of absence (such as
temporary employment by the government) if the period of such leave does not exceed six months, or
if longer, so long as the individual’s right to reemployment with the Company is provided either by
statute or by contract and provided further that 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 terms “Termination of Employment”
shall mean “Separation from Service” hereunder and such terms shall be interpreted under this
Agreement in a manner consistent with the requirements of Code Section 409A and applicable
regulations thereunder, 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 availablility to perform services after a purported
termination of services or availability to perform services after a purported Termination of
Employment or Separation from Service, (ii) in any instance in which such 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 Termination of Employment or Separation from Service
hereunder if such Executive meets (a) the requirements of a Separation from Service under all such
Aggregated Plans and (b) the requirements of a Termination of Employment or 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 Termination of
Employment or 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 or any combination thereof, the services provided as a director
are not taken into account in determining whether Executive has had a Termination or Employment or
Separation from Service as an employee under this Agreement, provided that no plan in which
Executive participates or has participated in his capacity as a director is an Aggregated Plan and
(iv) a determination of whether a Termination of Employment or 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.
Article 2
Benefits During Lifetime
Benefits During Lifetime
2.1 Normal Retirement Benefit. Subject to the provisions of Section 2.4, upon Termination of
Employment on or after 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 $100,000 (One
Hundred Thousand Dollars). Any amendment to this subparagraph 2.1.1, including but not
limited to any increase, in the sole discretion of the Company’s Board of Directors, in the
annual benefit under this Section 2.1.1 shall require a written amendment to this Agreement,
and shall be subject to the restrictions on amendment set forth in Article 7 of this
Agreement.
2.1.2 Payment of Benefit. Subject to the provisions of Section 2.4, the Company shall
pay the annual benefit to the Executive in 12 equal monthly installments commencing with the
first day of the month following the Executive’s Normal Retirement Date. The annual benefit
shall be paid to the Executive for a period of 15 years.
2.2 Early Termination Benefit. Subject to the provisions of Section 2.4, upon Early
Termination prior to Disability, 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 the dollar amount
equal to the Accrual Balance set forth on Schedule A for the Plan Year ending immediately
prior to the Early Termination Date, plus the prorated amount of accruals up to the month in
which Early Termination occurs, subject to the following vesting schedule:
| Plan Year | Vested Percentage | |||
| 1 | 10 | |||
| 2 | 20 | |||
3 |
30 | |||
4 |
40 | |||
5 |
50 | |||
6 |
60 | |||
7 |
70 | |||
8 |
80 | |||
9 |
90 | |||
10 or greater |
100 | |||
This benefit is determined by calculating a 15-year fixed annuity from the Accrual Balance plus
pro-rated accruals, crediting interest on the unpaid balance at an annual rate of 6.0 percent,
compounded monthly.
2.2.2 Payment of Benefit. Subject to the provisions of Section 2.4, the Company shall
pay the annual benefit to the Executive in 12 equal monthly installments commencing with first
day of the month following Normal Retirement Age. The annual benefit shall be paid to the
Executive for a period of 15 years.
2.3 Disability Benefit. If the Executive is Disabled prior to Normal Retirement Age and prior
to 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 annual benefit under this Section 2.3 is the dollar amount
equal to the Accrual Balance set forth on Schedule A for the Plan Year ending immediately
prior to the date on which Disability occurs, plus the prorated amount of accruals up to the
month during which Disability occurs, subject to the following vesting schedule:
| Plan Year | Vested Percentage | |||
1 |
10 | |||
2 |
20 | |||
3 |
30 | |||
4 |
40 | |||
5 |
50 | |||
6 |
60 | |||
7 |
70 | |||
8 |
80 | |||
9 |
90 | |||
10 or greater |
100 | |||
This benefit is determined by calculating a 15-year fixed annuity from the Accrual Balance plus
pro-rated accruals, crediting interest on the unpaid balance at an annual rate of 6.0 percent,
compounded monthly.
2.3.2 Payment of Benefit. The Company shall pay the annual benefit to the Executive in
12 equal monthly installments commencing with the first day of the month following Normal
Retirement Age. The annual benefit shall be paid to the Executive for a period of 15
years.
2.4 Six Month Delay for Payment After Termination of Employment or Separation from Service of
Any Specified Employee. Notwithstanding the provisions of Section 2.1, 2.2 or any other provision
of this Agreement, if any payment is to be made under Section 2.1, 2.2 any other provision of this
Agreement, to Executive upon or based upon Termination of Employment or Separation from Service
other 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,)
provided further, however, that in the case of any monthly installments to be paid upon or based
upon Termination of Employment or Separation from Service other than by death, if any such monthly
installments are to be paid on or before the date which is six months after Executive’s Termination
of Employment or Separation from Service, other than by death, (in the event that Executive is a
Specified Employee on the date of Executive’s Termination of Employment or Separation from Service
other than by death,) the first such installment shall be paid on the date which is six months
after such Separation from Service or Termination of Employment of Executive (other than by death,)
with the monthly installments to continue thereafter. 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 3
Death Benefits
Death Benefits
3.1 Death During Active Service. If the Executive dies while in the active service of the
Company, and is entitled to a benefit under Article 2 of this Agreement, the Company shall pay the
same benefit payments and for the same period of time as provided in the Agreement to the
Executive’s beneficiary in the amount that the Executive was entitled to as of the date of his
death under said Article 2, except that the benefit payments shall commence on the first day of the
month following the date of the Executive’s death.
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, except that the
provisions of Section 2.4 shall not apply.
3.3 Death After Disability or 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
after Disability or Termination of Employment but 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
earlier of (i) the same time they would have been paid to the Executive had the Executive survived,
or (ii) the first day of the month following the date of the Executive’s death, and the provisions of Section 2.4 shall not
apply.
Article 4
Beneficiaries
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
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
(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. For purposes of this
provision, the term “Competitive Enterprise” is defined as any business organization, company, corporation, partnership or
business entity or enterprise of any type that (a) 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 (b) is
conducted within a 50-mile radius of any Company location where Executive conducted or supervised
or otherwise engaged in business of the Company.
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
Claims and Review Procedures
6.1 Claims Procedure. An Executive or beneficiary (“claimant”) who has not received benefits
under the 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 this 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 this 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.
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 this 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; and
(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.
Article 7
Amendments and Termination
Amendments and Termination
This Agreement may be amended or terminated only by a written agreement signed by the Company
and the Executive, provided that with respect to a termination, no acceleration of any benefit
shall be permitted hereunder except where the acceleration of the benefit is made pursuant to a
termination and liquidation in a manner that would not constitute an impermissible acceleration
under Code Section 409A pursuant to Treas. Reg. 1.409A-3(j)(4)(ix) or any similar or successor law,
regulation or guidance thereunder of like import.
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.) In addition,
notwithstanding the foregoing, and all subject to Section 2.4, (i) no such amendment shall be
effective if it would, if effective, cause this Agreement to violate Code Section 409A and the
regulations and guidance thereunder or cause any amount of compensation or payment hereunder to be
subject to a penalty tax under Code Section 409A and the regulations and guidance issued
thereunder, which amount of compensation or payment would not have been subject to a penalty tax
under Code Section 409A and the regulations and guidance thereunder in the absence of such
amendment and (ii) the provisions of this Article 7 respecting amendment of this Agreement are
irrevocable.
Article 8
Miscellaneous
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:
| (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.
8.11 Counterparts. This Agreement may be executed in one or more counterparts, which taken
together shall constitute an original.
IN WITNESS WHEREOF, the Executive and the Company have signed this Amended and Restated
Agreement.
| EXECUTIVE: | COMPANY: UNITED BANKSHARES, INC. |
|||
| By | ||||
| Title | ||||
BENEFICIARY DESIGNATION
UNITED BANKSHARES, INC.
SALARY CONTINUATION AGREEMENT
SALARY CONTINUATION AGREEMENT
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 ____________, 200_.
By
Title
