AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE
RETIREMENT AGREEMENT
THIS
AMENDED AND RESTATED AGREEMENT, made as of 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 Bank, a Virginia state
bank, successor by merger to The Marathon Bank (the
“Bank”), United Bankshares, Inc. (the
“Company”) and
(the “Eligible Employee”). The Company, the Bank and
the Eligible Employee shall be individually referred to as a
“Party” and collectively referred to as the
“Parties.”
WHEREAS,
the Eligible Employee is currently a valued employee of the Company
or Bank who is a member of a select group of management or a
highly-compensated employee of the Company or Bank; and
WHEREAS,
the Bank and the Company wish to induce the Eligible
Employee’s continued employment by supplementing the Eligible
Employee’s retirement income; and
WHEREAS,
the Bank by its predecessor by merger, The Marathon Bank, has
adopted and established, effective as of January 1, 2004, a
non-qualified unfunded supplemental executive retirement agreement
with the Eligible Employee with such agreement and certain other
agreements with other employees of the Bank which together
constituted The Marathon Bank, predecessor by merger to Bank,
Executive Retirement Plan; and
WHEREAS,
by this Agreement, the Company, Bank and Eligible Employee desire
to further amend and restate the supplemental executive retirement
agreement, with certain agreed upon modifications and for the
purpose of complying with the requirements of Section 409A of
the Code and the Company, Bank and Eligible Employee 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 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), Eligible Employee, by executing this Agreement, shall
be deemed to have elected the timing and distribution provisions of
this Amended and Restated Agreement, and to have elected the form
of distribution or distributions as set forth herein, all prior to
December 31, 2008.
NOW,
THEREFORE, the Company, Bank and the Eligible Employee do hereby
adopt and approve this Amended and Restated Agreement consisting of
the terms and provisions set forth below:
Section 1. Definitions . A number of terms are
defined throughout this Agreement when the term is first used. In
addition, unless the context clearly indicates otherwise, the
following terms shall have the following meanings:
(a)
“Cause” means: (1) the repeated failure of
Eligible Employee to perform the responsibilities and duties for
which he has been employed; (2) the commission of an act by
Eligible Employee constituting dishonesty or fraud against the
Company or the Bank; (3) the conviction for or the entering of
a guilty or no contest plea with respect to a felony; (4) habitual
absenteeism, chronic alcoholism or any other form of substance
abuse; or (5) the commission of an act by Eligible Employee
involving gross negligence or moral turpitude that brings the
Company or any of its affiliates into public disrepute or disgrace
or causes material harm to the customer relations, operations or
business prospects of the Company or any of its
affiliates.
(b)
“Designated Beneficiary” means any person or persons
(who may be designated contingently or successively) to whom
payments are to be made under Section 2 and which are so
designated by the Eligible Employee signing a form provided by the
Company or Bank for such purpose. A beneficiary designation form
will be effective only after the signed form is filed with the
Company or Bank while the Eligible Employee is alive and such form
will cancel all beneficiary designation forms signed and filed
earlier with the Company or Bank. If the Eligible Employee fails to
designate a beneficiary as provided herein, or if all the
designated beneficiaries of the Eligible Employee die before the
Eligible Employee or before complete payment of all amounts due
hereunder, the Company or Bank shall pay the unpaid amount to the
legal representative or representatives of the estate of the last
to die of the Eligible Employee and the Designated Beneficiary (or
beneficiaries).
(c)
“Disability” or “Disabled” means that
Eligible Employee (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 Company, Bank 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.
(d)
“Final Compensation” means the Eligible
Employee’s compensation fro the last complete calendar year
of employment with the Bank. Compensation shall mean the sum of
(i) the Eligible Employee’s base salary, before any
adjustments for deferrals made to a section 401(k) or 125 plan by
the Company, Bank or Eligible Employee on the Eligible
Employee’s behalf, or deferrals made to any non-qualified
deferred compensation plan, and (ii) any bonus paid with
respect to such year.
(e)
“Company” means United Bankshares, Inc., or such
successor corporation.
(f)
“Installment Payments” means all payments made under
this Agreement to the Eligible Employee or to a Designated
Beneficiary.
(g)
“Plan Year” means year ending, or partial year ending,
December 31 st .
(h)
“Year of Service” means a twelve-month period in which
the Eligible Employee provides services to the Company or Bank, as
the case may be, on a substantially full-time basis commencing on
the Eligible Employee’s date of hire by the Bank or the
Company or any of its affiliates and on each anniversary
thereof.
(i)
“Separation from Service” means the severance of
Eligible Employee’s employment with Company, Bank or an
Affiliate for any reason. Eligible Employee separates from service
with Company, Bank or an affiliate if he dies, retires, separates
from service because of Eligible Employee’s Disability, or
otherwise has a termination of employment with Company, Bank or an
Affiliate. However, the employment relationship is treated as
continuing intact while Eligible Employee 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 Eligible Employee’s right to reemployment with
Company, Bank or an Affiliate is provided either by statute or by
contract. If the period of leave exceeds six months and Eligible
Employee’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 such Eligible Employee 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 Eligible Employee shall only
be considered to meet the requirements of a Separation from Service
hereunder if such Eligible Employee 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 Eligible Employee is an employee and an independent
contractor of Company, Bank or any Affiliate or any combination
thereof, the Eligible Employee 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
an Eligible Employee provides services both as an employee and a
member of the Board of Directors of the Company, Bank or any
Affiliate or both or any combination thereof, the services provided
as a director are not taken into account in determining whether the
Eligible Employee has had a Separation from Service as an employee
under this Agreement, provided that no plan in which such Eligible
Employee 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.
(j)
“Specified Employee” means, in the case of any Eligible
Employee meeting 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 such Eligible Employee shall,
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.
Section 2. Payment of Benefits . (a) Upon
Retirement . Upon Eligible Employee’s Separation from
Service, including but not limited to Separation from Service by
death, on or after the attainment of age sixty-five (65), without
Eligible Employee having become Disabled prior to age 65, but
including Separation from Service after Disability if such
Disability occurs on or after age 65, the Company shall pay the
Eligible Employee (or the Eligible Employee’s Designated
Beneficiary, if the Eligible Employee dies prior to receipt of all
of the Installment Payments payable under this section)
180 monthly Installment Payments certain, equal to the
quotient of (1) the product of (a) Eligible
Employee’s Final Compensation, multiplied by (b) twenty-five
percent (25%); (2) divided by 12. Installment Payments will
commence not later than thirty days after (i) the Eligible
Employee reaches age sixty-five (65) or (ii) his actual
date of Separation from Service, whichever is later, provided,
however that (1) the Eligible Employee is not permitted,
directly or indirectly, to designate the taxable year of the
payment and (2) provided, however that notwithstanding the
foregoing, and notwithstanding any other provision of this
Agreement, if such payments are to commence on or before the date
which is six months after a Separation from Service of Eligible
Employee, other than by death, and if on the date of such
Separation from Service, Eligible Employee is a Specified Employee,
then such first payment shall be made on the date which is six
months after such Separation from Service of Eligible Employee
other than by death and such Installments Payments shall be made in
such installments thereafter.
(b)
In the Event of Disability Prior to Retirement . If the
Eligible Employee becomes Disabled prior to Separation from Service
and prior to reaching age sixty-five (65), the Company shall begin
Installment Payments on the date of Disability. In accordance with
Code Section 409A and to the extent permitted by regulations
and guidance issued thereunder, a payment shall be treated as
having been made on a date specified in this Section 2(b) if it is
made on a later date within the Eligible Employee’s same
taxable year as the designated date, or, if later, if made no later
than the fifteenth day of the third month after such designated
date, provided that, in any event, the Eligible Employee is not
permitted, directly or indirectly, to designate the taxable year of
any payment. The Company shall pay the Eligible Employee (or the
Eligible Employee’s Designated Beneficiary, if the Eligible
Employee dies prior to receipt of all of the Installment Payments
payable under this section) 180 monthly Installment Payments
equal to the quotient of (1) the product of (a) Eligible
Employee’s Final Compensation, multiplied by
(b) twenty-five percent (25%); (2) divided by
12.
(c)
After Termination of Employment . If the Eligible Employee
has a Separation from Service for any reason, other than death,
Disability or Cause, prior to the Eligible Employee’s
attainment of age sixty-five (65), and prior to Disability of the
Eligible Employee, the Company shall pay to the Eligible Employee
(or the Eligible Employee’s Designated Beneficiary, if the
Eligible
Employee dies
prior to receipt of all of the Installment Payments payable under
this section) 180 monthly Installment Payments equal to the
product of (1) an Installment Payment as calculated in Section
2(a) above, multiplied by (2) the Vesting Factor. This monthly
benefit will commence no later than thirty days after the Eligible
Employee attains the age of sixty-five (65), provided, however that
(1) the Eligible
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