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 James Consagra, Rick
Adams and John Neuner but will instead be March 15, 1994 for
Steven Wilson, Joe Wilson and James Hayhurst], 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 re
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