AMENDED AND RESTATED DEFERRED
COMPENSATION AGREEMENT
This
Amended and Restated Deferred Compensation Agreement, hereinafter
referred to as the “Agreement,” made and entered into
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, a Corporation
organized and existing under the laws of the State of Virginia,
hereinafter referred to as the “Bank”, United
Bankshares, Inc., hereinafter referred to as the
“Corporation,” and Donald Unger, a Key Employee and
Executive of the Bank or the Corporation, hereinafter referred to
as the “Executive.”
The
Bank, by its predecessor, The Marathon Bank, and the Executive
entered into an Agreement dated September 22, 1998.
By
this Agreement the Bank, the Corporation and the Executive desire
to amend and restate the Agreement, and for the purpose of
complying with the requirements of Code Section 409A and the
Bank, the Corporation 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
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), the Executive,
by executing this amended and restated Agreement, shall be deemed
to have elected, on or before December 31, 2008, 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.
The
Executive has been in the employ of the Bank or the Corporation for
many years, and has now and for years past faithfully served the
Bank or the Corporation. It is the consensus of the
Board of
Directors that the Executive’s services have been of
exceptional merit, in excess of the compensation paid and an
invaluable contribution to the profits and position of the Bank or
the Corporation in its field of activity.
It
is the mutual desire of the Bank, the Corporation and the Executive
that the Executive remain in the employ of the Corporation and, to
assist the Executive in establishing a program to provide
supplemental retirement benefits, disability and pre-retirement
death benefits, they mutually establish a Salary Reduction Deferred
Compensation Plan. Accordingly, it is the desire of the Bank, the
Corporation and the Executive to enter into this Agreement under
which the Corporation will agree to make certain payments to the
Executive upon his retirement or disability and, alternatively, to
his beneficiaries in the event of his premature death while
employed by Bank or the Corporation.
It
is the intent of the parties hereto that this Agreement be
considered an unfunded arrangement maintained primarily to provide
supplemental retirement benefits for the Executive, as a member of
a select group of management or highly compensated employees of the
Corporation for purposes of the Employee Retirement Security Act of
1974 (ERISA). Executive is fully advised of the Corporation’s
financial status and has had substantial input in the design and
operation of this benefit plan.
Therefore,
in consideration of the Executive’s services performed in the
past and those to be performed in the future and based upon the
mutual promises and covenants herein contained, the Bank, the
Corporation and the Executive agree as follows:
I. ARTICLE
ONE — DEFINITIONS
The
original effective date of this Agreement was September 22,
1998, and the effective date of this Agreement, as amended and
restated, is
, 2008, provided, however, that all provisions applicable to
compliance under Code Section 409A shall be effective as of
January 1, 2005.
B.
Termination of Service :
Termination
of Service shall mean Separation from Service, which means the
severance of Executive’s employment with the Bank, the
Corporation or Affiliate for any reason. The Executive
separates from
service with the Bank, the Corporation or affiliate if he dies,
retires, separates from service because of the Executive’s
Disability, or otherwise has a termination of employment with the
Bank, the Corporation or Affiliate. However, the employment
relationship is treated as continuing intact while the Executive 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 Corporation 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;
and (ii) in any instance in which the 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 the Executive shall only be
considered to meet the requirements of a Separation from Service
hereunder if the Executive 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; and (iii) in any
instance in which an Executive is an employee and an independent
contractor of the Bank, the Corporation or any Affiliate or any
combination thereof, the Executive 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 Executive provides services both as an employee
and a
member of the
Board of Directors of the Bank, the Corporation or any Affiliate or
any combination thereof, the services provided as a director are
not taken into account in determining whether the Executive has had
a Separation from Service as an employee under this Agreement,
provided that no plan in which the Executive 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.
Specified
Employee means, in the case of the Executive 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 the Executive
shall, for purposes of this Agreeement, 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.
D.
Disability or Disabled :
The
Executive shall be considered disabled if the Executive (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 Bank,
the Corporation or an Affiliate. In addition, notwithstanding any
of the foregoing, the terms “Disability” and
“Disabled” shall be interpreted under this Agreement in
a manner consistent with the requirements of Code
Section 409A.
Qualified
Plan shall mean the United Bankshares, Inc. Savings and Stock
Investment Plan, as it may be amended from time to time.
Non-Qualified
Plan shall mean the United Bankshares, Inc. Non-Qualified
Retirement and Savings Plan, as it may be amended from time to
time.
Board
shall mean the Board of Directors of United Bankshares,
Inc.
Committee
shall mean the Retirement Plan Committee as defined in the United
Bankshares, Inc. Savings and Stock Investment Plan.
Account
(or “account”) shall mean the balance posted to the
record of the Executive or his Beneficiary, consisting of the
Executive’s contributions and adjustments as of each
Valuation Date, less any payments therefrom.
Valuation
Date shall mean each business day of the Plan Year.
Plan Year shall
mean the calendar year.
II. ARTICLE
TWO — EMPLOYMENT
The
Corporation agrees to employ the Executive in such capacity as the
Bank or the Corporation may from time to time determine with such
duties, responsibilities and compensation as determined by the
Board of Directors.
The
Executive agrees to remain in the Bank’s or the
Corporation’s employment, to devote his full time and
attention exclusively to the business of the Bank or the
Corporation and to use his best efforts to provide faithful and
satisfactory service to Bank or the Corporation.
Employment
services shall include temporary disability, “leaves of
absence” and periods of “military reserve duty,”
all as more specifically set forth in Article I,
Section B, above.
B.
No Employment Agreement Created :
No
provisions of this Agreement shall be deemed to restrict or limit
any existing employment Agreement by and between the Bank or the
Corporation and the Executive, nor shall any conditions herein
create specific employment rights to the Executive nor limit the
right of the Employer to discharge the Executive with or without
cause. In a similar fashion, no provision shall limit the
Executive’s rights to voluntarily sever his employment at any
time.
III. ARTICLE THREE
— SALARY REDUCTION
The
Executive and the Bank or the Corporation agree that for calendar
years prior to 2009, the Executive’s compensation (which
would otherwise be receivable subsequent to the effective date of a
Salary Reduction Authorization Form executed by the Executive), may
be irrevocably reduced and that portion deferred as provided in
this Agreement. No salary reductions shall be permitted hereunder
for calendar years after 2008.
A. The
Executive shall have the privilege, exercisable within 30 days
prior to a new calendar year, to reduce irrevocably his/her
compensation not yet earned for the following calendar year by
executing a Salary Reduction Authorization form, as provided by the
Bank or the Corporation, but only for calendar years prior to 2009
and any Salary Reduction Authorization form executed by the
Executive for any calendar year after 2008, other than a Salary
Reduction Authorization form stating that no deferral shall be made
under this Agreement, shall be void and of no effect.
B. The
Executive’s failure to amend his original compensation
reduction, in writing, within 30 days prior to the first day of the
next ensuing calendar year (and those that follow) shall constitute
a waiver by the Executive to elect a different compensation
reduction sum an
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