Exhibit 10.1
SECOND AMENDED EMPLOYMENT AGREEMENT
BETWEEN
UNITED BANKSHARES, INC.
AND
RICHARD M. ADAMS
79
TABLE OF CONTENTS
-----------------
PAGE
----
I. EMPLOYMENT ....................................................... 83
II. DUTIES AND RESPONSIBILITIES ...................................... 84
A. As Chairman and Chief Executive Officer
of United ................................................... 84
B. As Chairman and Chief Executive
Officer of Bank ............................................. 84
C. Full Time Employment - Best Efforts ......................... 84
III. TERM; EXTENSIONS ................................................. 85
IV. TERMINATION OF EMPLOYMENT BY EMPLOYER OR ADAMS ................... 85
A. Mutual Agreement ............................................ 85
B. Death ....................................................... 85
C. Disability .................................................. 85
D. For Cause ................................................... 86
E. Change in Control ........................................... 86
F. Breach by United ............................................ 86
G. Insolvency, etc ............................................. 86
V. COMPENSATION AND REIMBURSEMENTS .................................. 87
A. Base Salary ................................................. 87
B. Incentive Pay ............................................... 87
C. Fringe Benefits ............................................. 87
D. Club and Organization Membership and Dues ................... 87
E. Business Expenses ........................................... 88
F. Termination Expenses ........................................ 88
VI. ADDITIONAL PAYMENT BY UNITED ..................................... 89
A. Gross-Up Payment ............................................ 89
B. Determination of Gross-Up Payment ........................... 89
VII. MISCELLANEOUS PROVISIONS ......................................... 90
A. Notices ..................................................... 90
B. Prior Agreements ............................................ 90
80
C. Amendments ...................................................... 90
D. Governing Law ................................................... 90
E. Headings ........................................................ 90
F. Severability of Provisions ...................................... 91
G. Indemnification ................................................. 91
H. Authority to Execute Documents .................................. 91
I. Waiver of Breach ................................................ 91
J. Binding Effect and Assignability ................................ 91
81
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
BETWEEN
UNITED BANKSHARES, INC.
AND
RICHARD M. ADAMS
THIS SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Restated
Agreement"), made and entered into effective this 1st day of November, 2001, by
and among Richard M. Adams ("Adams") and United Bankshares, Inc., a West
Virginia corporation and bank holding company ("United").
W I T N E S S E T H:
-------------------
WHEREAS, Adams is Chairman, Chief Executive Officer, and a Director of
United and Chairman, Chief Executive Officer and a Director of United National
Bank, a national banking association ("Bank"), and
WHEREAS, United and Adams entered into an Employment Agreement dated
April 11, 1986 (the "Employment Agreement"), effective for a five (5) year term
from April 1, 1986, with the provision that the Employment Agreement could be
annually extended by one (1) year to maintain a rolling five (5) year contract,
and
WHEREAS, United and Adams entered into an Amended Employment Agreement
dated February 16, 1989 and an Amended Employment Agreement dated April 1, 1993
(the "Amended Employment Agreements"), to provide for the continued employment
of Adams, and
WHEREAS, United has extended either the Employment or Amended
Employment Agreements for additional one (1) year periods in each year
subsequent to 1986, and
82
WHEREAS, the Board of United has agreed to extend the Amended
Employment Agreement through March 31, 2007, with certain agreed upon
modifications, and
WHEREAS, by this Agreement United and Adams desire to amend and
restate the Amended Employment Agreement, such amended and restated agreement to
supersede the Employment Agreement and Amended Employment Agreement, and
WHEREAS, the Board of Directors of United desire to confirm that it is
in the best interests of United and the Bank to enter into this Agreement with
Adams to ensure continuity of leadership and to ensure that United and Bank will
have the benefit of his services as an employee of United and Bank and any of
their affiliated companies for a reasonable period of time in the future, and
WHEREAS, Adams is willing to provide the herein described services to
United, Bank and their affiliates.
NOW, THEREFORE, for and in consideration of the premises, their mutual
promises, and the other good and valuable consideration herein specified, the
receipt of which is hereby acknowledged by the parties hereto, the parties agree
as follows:
I. EMPLOYMENT
----------
United employs Adams and Adams accepts employment as the Chairman and
Chief Executive Officer of United. All employment shall be in accordance with
and subject to the terms and conditions of this Agreement and is sometimes
herein referred to as the "Employment."
83
II. DUTIES AND RESPONSIBILITIES
---------------------------
A. As Chairman and Chief Executive Officer of United. Adams, as
-------------------------------------------------
Chairman and Chief Executive Officer of United, shall be the sole Chief
Executive Officer of United. He shall report to and shall be responsible only to
the Board of Directors of United, and he shall have direction and control of the
duties and responsibilities of all other United officers and employees,
regardless of the title or position of any such other officer or employee,
except that the United Auditor shall report to and shall be responsible only to
the Board of Directors. As Chairman and Chief Executive Officer, Adams will
perform all the duties and shall have all the responsibilities normally imposed
upon and held by the Chief Executive Officer of a bank holding company, and he
shall have the duty and responsibility of carrying out and executing the
business policies of United as established from time to time by the Board of
Directors, and he shall have such other specific duties and responsibilities
relating to United and its affiliates as may be assigned to him from time to
time by the Board of Directors.
B. As Chairman and Chief Executive Officer of Bank. Adams shall
-----------------------------------------------
serve as the Chairman and Chief Executive Officer of Bank and shall report to
and shall be responsible only to the Board of Directors of Bank.
C. Full Time Employment - Best Efforts. Adams shall devote full time
--------------------
and his best efforts at all times to the performance of his duties for United,
the Bank, and other subsidiaries and affiliates of United and Bank. He shall not
be employed by, nor shall he devote any of his time and efforts to the
furtherance of interests of any other person, firm or corporation except United,
the Bank and other United subsidiaries and affiliates and such other entities as
may be approved by the Board of Directors of United. It is contemplated that
Adams shall serve in banking, business, civic and social activities that will
consume some part of his time and efforts, and such activities are encouraged
and expected by United as part of Adams' position with United and the Bank and
as part of the banking, business, civic and social communities of the State of
West Virginia, and nationally, and the provisions of this Agreement are not
intended to restrict such activities by Adams so long as such activities do not
interfere with his duties and responsibilities as defined in this Agreement.
84
III. TERM; EXTENSIONS
----------------
The term of employment of Adams by United shall be until March 31,
2007, and this Agreement shall remain in force and effect during such period
unless sooner terminated or extended as provided herein.
The Executive Committee of United shall review this Agreement at least
annually, and may, with the approval of Adams, extend the term of this Agreement
annually for additional one (1) year periods.
The term of this Agreement shall extend until all obligations under
this Agreement have been fully performed by United.
IV. TERMINATION OF EMPLOYMENT BY EMPLOYER OR ADAMS
----------------------------------------------
Employment of Adams may be terminated by any one of the following
prior to the expiration of its normal term, provided that unless otherwise
agreed to by the parties, all employment by both United and Bank shall be
terminated simultaneously and termination of employment by either United or Bank
shall automatically terminate employment with the other in which case Adams
shall be entitled to the benefits due and payable upon termination set forth
elsewhere herein:
A. Mutual Agreement. By mutual agreement of the parties upon such
----------------
terms and conditions as they may agree.
B. Death. By United upon the death of Adams.
-----
C. Disability. By United upon the legal disability of Adams, which
----------
shall mean that Adams shall be unable to perform his duties by reason of any
mental or physical disability for a period of six (6) months or more.
85
D. For Cause. By United for cause upon giving Adams thirty (30) days
---------
advance notice of such termination, specifying the cause of termination.
E. Change in Control. By Adams, at his discretion, within six (6)
-----------------
months of the effective date of a change in control. For the purpose of this
Agreement, a "change in control" shall be deemed to have occurred: (i) if any
"person"(as such term is used in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934 (the "Exchange Act")) or group of persons, together with
its affiliates excluding employee benefit plans of United, Bank or its
subsidiaries, shall become the beneficial owner (as such term is used in the
Exchange Act), directly or indirectly of common stock of United representing
twenty percent (20%) or more of the combined voting power of United"s then
outstanding securities eligible to be voted in an election of directors, unless
two-thirds of the Board, as constituted immediately prior to the date of the
change in control, decide in their discretion that no change in control has
occurred; (ii) if at any time individuals who at the date of this Agreement
constitute a majority of the Board of Directors cause for any reason other than
death or voluntary resignation (being a resignation not requested by any other
person or persons) to constitute at least a majority thereof; (iii) if there is
a change in control of a nature that, in the opinion of counsel for United,
would be required to be reported in response to Item 6(e) of Schedule 14A under
the Exchange Act, unless two-thirds of the Board, as constituted immediately
prior to the date of the change in control, decide in their discretion that no
change in control has occurred; (iv) the shareholders of United approve a plan
of complete liquidation or winding-up of United; or (v) any event which United's
Board of Directors determine constitutes a "change in control."
F. Breach by United. By Adams in the event of a material breach by
----------------
United of any of the terms or conditions of this Agreement.
G. Insolvency, etc. By Adams, at his sole option, in the event of
---------------
the business failure, insolvency, bankruptcy, or assignment for the benefit of
creditors of or by United or Bank.
86
V. COMPENSATION AND REIMBURSEMENTS
-------------------------------
A. Base Salary. United shall pay Adams for his service to both
-----------
United and Bank, a base salary at an annual rate not less than $536,000.00,
payable in equal semi-monthly installments. Adams' base salary for calendar year
2002 has been set at $536,000.00. Adams' performance shall be evaluated by the
Executive Committee of United at least once each twelve month period, and such
evaluation shall be the basis of determining whether the compensation payable to
Adams shall be increased in the judgment of such committee directors. No
decreases in the base salary shall be permitted during the term. In addition,
for service as a member of the Boards of Directors of United or any of United's
subsidiaries or affiliates, or their respective committees, Adams shall receive
such sums as may be paid to members and officers of such boards for their
services.
B. Incentive Pay. In addition to the base salary herein
-------------
provided for, Adams shall be entitled to receive incentive compensation from
United or Bank in accordance with plans adopted by their Boards of Directors.
C. Fringe Benefits. United shall afford to Adams and his
---------------
family the benefit of all fringe benefits afforded to other United or bank
officers, such as pension, life insurance, health and accident insurance
benefits.
D. Club and Organization Membership and Dues. United shall
-----------------------------------------
maintain the cost of stock or membership certificate and the cost of the
initiation fee for memberships for a family (general membership) in one or more
country clubs in the trade areas of the Bank, which Adams shall select, plus
dues, assessments and other costs of maintaining such memberships. United shall
also pay Adams' membership fees and dues in banking, business, civic, and social
organizations in which Adams is a participating member.
87
E. Business Expenses. United shall reimburse Adams for all
-----------------
reasonable expenses incurred by Adams in carrying out his duties and
responsibilities, including furnishing an automobile for use by Adams, with the
costs of purchase, maintenance and operation to be borne by United.
F. Termination Payments. In the event of termination of
--------------------
Adams' employment prior to expiration of the term of this Agreement, Adams or
his family shall be compensated as follows:
(1) If terminated under Article IV, Section A of this
Agreement, then such amount as the parties shall agree.
(2) If terminated under Article IV, Sections B, C, D
(excepting under Section D terminations based solely upon (i) excessive
absenteeism without approval of United or the Bank, not caused by disability,
(ii) gross or willful neglect of duty resulting in some substantial loss to
United or the Bank after Adams has been given written direction and reasonable
time to perform such duties, (iii) any acts or omissions on the part of Adams
which when proven constitute fraud or commission of any criminal act involving
the person or property of others or the public generally, (iv) or any
combination of (i), (ii) or (iii) above), E or F of this Agreement, then United
shall pay Adams (or his family or estate) in either monthly installments or in a
lump sum, at the option of United, an amount equal to his base salary for a
sixty (60) month period.
(3) If terminated under Article IV, Section D, based
solely upon (i) excessive absenteeism without approval of United or the Bank,
not caused by disability, (ii) or gross or willful neglect of duty resulting in
some substantial loss to United or the Bank after Adams has been given written
direction and reasonable time to perform such duties, (iii) any acts or
omissions on the part of Adams which when proven constitute fraud or commission
of any criminal act involving the person or property of others or the public
generally, (iv) or any combination of (i), (ii), or (iii) above, United shall
pay Adams' base salary only for such period of his active full-time employment
to the date of the termination.
(4) The payments provided for in the event of Adams'
termination are in the nature of additional compensation and liquidated damages
and upon termination, Adams shall have no
88
obligation to mitigate damages incurred by him in connection with such
termination and he shall be absolutely entitled to receive said payments, and
upon termination, United shall not be liable to Adams for any further payments
to Adams for other damages or compensation, except liabilities to Adams incurred
prior to termination under the other provisions of this Agreement.
VI. ADDITIONAL PAYMENT BY UNITED.
-----------------------------
A. Gross-Up Payment. Notwithstanding anything in this Agreement
----------------
to the contrary, in the event it shall be determined that any payment or
distribution by United, Bank and any other subsidiaries and affiliates of United
and Bank to or for the benefit of Adams (whether paid or payable or distributed
or distributable pursuant to this Agreement, the Supplemental Retirement
Agreement between United and Adams or any other agreement, contract, plan or
arrangement, but determined without regard to any additional payments required
under this Article VI) (any such payments and distributions collectively
referred to as "Payments"), would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended, or any similar
tax that may hereinafter be imposed or any interest and penalties with respect
to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
United shall pay to Adams an additional payment (the "Gross-Up Payment") equal
to one hundred percent (100%) of the Excise Tax and one hundred percent (100%)
of the amount of any federal, state and local income taxes and Excise Tax
imposed on the Gross-Up Payment.
B. Determination of Gross-Up Payment. All determinations
---------------------------------
required to be made under this Article VI, including whether a Gross-Up Payment
is required and the amount of such Gross-Up Payment, shall be made by the firm
of independent accountants selected by United to audit its financial statements
(the "Accounting Firm") which shall provide detailed supporting calculations
both to United and Adams. In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting a "change in
control," Adams shall appoint another nationally recognized accounting firm to
make the determinations required hereunder (which accounting firm shall then be
referred to the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by United.
89
Any Gross Up Payment, as determined pursuant to this Article VI, shall be paid
to Adams within 30 days of the receipt of the Accounting Firm's determination.
VII. MISCELLANEOUS PROVISIONS
------------------------
A. Notices. Whenever notices are given pursuant to this
-------
Agreement, or with relation to any matter arising hereunder, such notices shall
be given to such parties at the address set opposite their name below, and shall
be given in writing, by registered mail, return receipt requested:
United Bankshares, Inc. United Center
500 Virginia Street, East
Charleston, WV 25301
United National Bank 514 Market Street
Parkersburg, WV 26101
Richard M. Adams 514 Market Street
Parkersburg, WV 26101
B. Prior Agreements. This Agreement represents the entire
----------------
agreement between the parties, and all prior representations, promises or
statements are merged with and into this document.
C. Amendments. Any amendments to this Agreement must be in
----------
writing and signed by all parties hereto except that extensions of the term of
this Agreement under Article III may be evidenced by Executive Committee
minutes.
D. Governing Law. The laws of West Virginia shall govern the
-------------
interpretation and enforcement of this Agreement.
E. Headings. The headings used in this Agreement are used solely
--------
for the convenience of the parties and are not to be used in construing or
interpreting the Agreement.
90
F. Severability of Provisions. The effect of a determination by
--------------------------
a court of competent jurisdiction that one or more of the contract clauses is or
are found to be unenforceable, illegal, contrary to public policy, or otherwise
unenforceable, then this Agreement shall remain in full force and effect except
for such clauses.
G. Indemnification. United agrees that they will indemnify and
---------------
hold harmless Adams from and against all costs and expenses, including without
limitation, all court costs and attorneys' fees, incurred by him in defending
any and all claims, demands, proceedings, suits or actions, actually instituted
or threatened, by third parties, involving this Agreement, its validity or
enforceability or with respect to any payments to be made pursuant thereto. In
the event of claims, suits or actions between Adams and United or Bank involving
this Agreement, Adams shall be indemnified pursuant to this paragraph if he
ultimately prevails in such claim, suit or action.
H. Authority to Execute Documents. The undersigned
------------------------------
representative of United certifies and represents that he is authorized to enter
into its binding agreement with Adams.
I. Waiver of Breach. A waiver of a breach of any provision of
----------------
the Agreement by any party shall not be construed as a waiver of subsequent
breaches of that provision. No requirement of this Agreement may be waived
except in writing by the party adversely affected.
J. Binding Effect and Assignability. This Agreement shall insure
--------------------------------
to the benefit of, and shall be binding upon, the parties hereto and their
respective successors, assigns, heirs and legal representatives, including any
entity with which United or Bank may merge or consolidate or to which either of
them may transfer all or substantially all of their assets. Insofar as Adams is
concerned, this Agreement, being personal, cannot be assigned as to performance
or for any other purpose.
91
WITNESS the following signatures:
UNITED BANKSHARES, INC.
By /s/ Russell L. Isaacs
-----------------------------
Its Chairman of the Compensation Committee
--------------------------------------
/s/ Richard M. Adams
-------------------------------------------
RICHARD M. ADAMS
92