SECOND AMENDED AND
RESTATED
SUPPLEMENTAL RETIREMENT
AGREEMENT
THIS
SECOND AMENDED AND RESTATED AGREEMENT (“Agreement”), is
made and entered into this
day of
, 2008 by and among Richard M. Adams (“Adams”) and
United Bankshares, Inc., a West Virginia corporation and bank
holding company (“UBS”); 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.
WHEREAS,
Adams is Chairman, Chief Executive Officer, and a Director of UBS
and Chairman, Chief Executive Officer and a Director of United
National Bank, a national banking association (“Bank”),
a subsidiary of UBS;
WHEREAS,
UBS highly values the efforts, abilities and accomplishments of
Adams;
WHEREAS,
UBS, as an inducement to continued employment, wishes to assist
Adams with his retirement planning;
WHEREAS,
the Board of Directors of UBS desires to provide Adams with
retirement income considered reasonable and based upon actuarially
determined need; and
WHEREAS,
UBS and Adams entered into a Supplemental Retirement Agreement
dated July 27, 1990 (“Supplemental Retirement
Agreement”) to provide Adams such retirement income;
and
WHEREAS,
UBS and Adams first Amended and Restated said Supplemental
Retirement Agreement effective as of November 1, 2001;
and
WHEREAS,
by this Agreement UBS and Adams desire to further amend and restate
the Supplemental Retirement Agreement with certain agreed upon
modifications and for the purpose of complying with the
requirements of Code Section 409A and UBS and Adams 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), Adams, 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; and
WHEREAS,
Adams is willing to provide the services to UBS and its affiliates
as described in the AMENDED EMPLOYMENT AGREEMENT BETWEEN UNITED
BANKSHARES, INC. AND RICHARD M. ADAMS entered into on
November 1, 2001 as further amended and restated as the THIRD
AMENDED EMPLOYMENT AGREEMENT BETWEEN UNITED BANKSHARES, INC. AND
RICHARD M. ADAMS dated
, 2008 (hereinafter “Employment Agreement”);
NOW,
THEREFORE, for and in consideration of the premises contained
herein, the parties agree as follows:
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A.
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“Base Salary” means
Adams’ base salary as determined pursuant to the Employment
Agreement.
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B.
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“Benefit Commencement
Date” shall mean the date on which payment of Adams’
annual supplemental retirement benefit under Section II, if
any, is scheduled to commence under the terms and conditions of
this Agreement.
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C.
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“Change in Control” has
the same meaning as “change in control” in the
Employment Agreement.
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D.
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“Early Separation from
Service” means the Separation from Service before age 65 for
reasons other than death.
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E.
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“Early Separation from Service
Date” means the month, day and year in which Early Separation
from Service occurs.
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F.
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“Final Base Salary”
means the average of Adams three (3) highest base salaries
during his employment with UBS or an affiliated or successor entity
to UBS.
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G.
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“Spouse” is defined to
have the same meaning as the definition of “spouse” in
the UBS Pension Plan.
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H.
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“Separation from
Service” means that Adams ceases to be employed by UBS or an
affiliated or successor entity to UBS for any reason, voluntary or
involuntary. Adams Separates from Service with UBS or an affiliated
or successor entity to UBS if he dies, retires, separates from
service because of Adams’ disability, or otherwise has a
termination of employment with UBS or any affiliated or successor
entity to UBS. However, that the employment relationship is treated
as continuing intact while Adams 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 Adams’ right to
reemployment with UBS is provided either by statute or by contract
and provided further that if the period of leave exceeds six months
and Adams’ 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 Adams 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
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the foregoing,
the term “Separation from Service” 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 Separation from Service and
(ii) in any instance in which Adams 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 Adams shall only be considered to meet the
requirements of a Separation from Service hereunder if Adams 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 Adams is an employee and an
independent contractor of UBS or any Affiliate or both Adams 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 Adams provides services both as
an employee and a member of the Board of Directors of UBS or any
Affiliate or both or any combination thereof, the services provided
as a director are not taken into account in determining whether
Adams has had a Separation from Service as an employee under this
Agreement, provided that no plan in which Adams 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.
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I.
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“UBS Pension Plan”
refers to the UBS Pension Plan currently in effect as the same may
be amended from time to time, and includes any successor plan
established by UBS or established by a successor entity to
UBS.
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J.
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“UBS Savings and Stock
Investment Plan” refers to such UBS plan currently in effect
as the same may be amended from time to time, and includes any
successor plan established by UBS or established by a successor
entity to UBS. For the purposes of making the calculation required
under Section II of this Agreement it shall be assumed that
Adams has made or will make annual contributions to the UBS Savings
and Stock Investment equal to the applicable limit for exclusion of
elective deferrals (“Elective Deferral Limitation”) as
provided under Section 402(g) of the Internal Revenue Code or any
successor provision thereto. If Adams has not or does not make
contributions equal to the Elective Deferral Limitation for any
year, the calculation required under Section II nonetheless
shall be made as if as if each year he had made such contribution
in an amount equal to the Elective Deferral Limitation.
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A.
Separation from Service on or After Age 65 . Except as
otherwise pro
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