Ex-10.4



 


Exhibit 10.4


AGREEMENT



          This Agreement (“Agreement”) was made as of this 4th day of April, 2003,
by and among United Bankshares, Inc., a West Virginia corporation (the
“Corporation”), United Bank, a Virginia state-chartered bank (the “Bank”) and
James G. Tardiff (the “Executive”). Capitalized terms used and not otherwise
defined herein shall have the meaning set forth in either the Executive
Employment Agreement dated as of January 2, 2002, as amended (the “Employment
Agreement”) or the Agreement and Plan of Reorganization by and between the
Corporation and Sequoia Bancshares, Inc., a Delaware corporation (“Sequoia”),
dated as of April 4, 2003, (the “Merger Agreement”).



WITNESSETH:



          WHEREAS, pursuant to the Merger Agreement, Corporation and Bank recognize
that (i) the Executive’s continued service to the Corporation and Bank is
needed and adds value to the operations of both Corporation and Bank after the
Effective Time of the Merger; and (ii) that the Executive’s continued service
to Corporation and Bank will maximize the potential of the strategic business
combination contemplated under the Merger Agreement; and



          WHEREAS, the parties have agreed to enter into this Agreement to provide
for the termination by Executive of his Employment Agreement, such termination
to be conditioned upon consummation of the Merger; and



          WHEREAS, Corporation and Bank agreed to assume the obligations of Sequoia
under the Employment Agreement conditioned upon consummation of the Merger; and



          WHEREAS, Corporation and Bank consider the availability of Executive’s
services to be important to the management and conduct of Corporation’s and
Bank’s business and desire to secure the continued availability of Executive’s
services; and



          WHEREAS, Executive is willing to make his services available to
Corporation and Bank on the terms and conditions set forth herein.



          NOW THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:



          1.     Consulting Arrangement. Upon commencement of the term of this
Agreement, Executive shall serve as a consultant to the Corporation and the
Bank under the terms of this Agreement.



          2.     Status of Executive. Executive shall, for all purposes under this
Agreement, be treated as an independent contractor.









 





          3.     Services to be Provided by Executive. During the term of this
Agreement, Executive shall provide services on a mutually agreeable schedule
which are consistent with his role as a consultant, including promoting the
products and services of Corporation and Bank to the customer base of Sequoia and its subsidiaries, maintaining
relationships and soliciting business with such former customers, general
customer and employee relations, public relations, assisting in strategic
planning and the full development of the potential of the strategic combination
contemplated in the Merger Agreement, assisting in the smooth and orderly
transition of management and employees from Sequoia and its subsidiaries to
Corporation and Bank, and such other services and duties consistent with the
forgoing as maybe reasonably assigned to him from time to time by the Board of
Directors of Bank or Corporation. Executive hereby accepts and agrees to the
above-described services subject to the general supervision and pursuant to the
orders, advice and direction of the Board of Directors of either Bank or
Corporation. In addition to the foregoing, Executive shall be elected to the
Board of Directors of Corporation as provided in Section 7.14 of the Merger
Agreement.



          4.     Compensation. In exchange for the services described in Paragraph 4
above, Executive shall be entitled to receive cash compensation of $250,000
during the term of this Agreement. The cash compensation provided herein shall
be paid in quarterly installments beginning on the Commencement Date.
Additionally, during the term of this Agreement, Executive may continue his
exclusive use of the office currently provided by Sequoia.



          During the term of this Agreement, Executive shall (i) be entitled to
participate in the Bank’s welfare benefit plans (health, life and disability)
on the same terms as if he were employed as a senior executive of the Bank or
be provided with comparable coverage on an individual basis in the event that
the Bank cannot provide such coverage directly by reason of Executive’s status
as an independent contractor, (ii) be provided with the use of a company-owned
or leased vehicle similar to the vehicle used by Executive prior to the Merger
and on the same terms as such vehicle was made available to the Executive, and
(iii) with respect to the period of the Executive’s service as a consultant to
the Bank under this Agreement, receive full credit for a “Year of Service” for
purposes of determining the Executive’s benefit under the Amended and Restated
Salary Continuation Agreement between Executive and Sequoia Bank, as amended,
which agreement has been assumed as an obligation of the Bank.



          5.     Term of Agreement. The term of this Agreement shall commence on the
last to occur of January 2, 2004 or the Effective Date (as such term if defined
in the Merger Agreement) (the “Commencement Date”) and shall terminate 12
months thereafter.



          6.     Non-Compete; Confidentiality; Non-Solicitation.



               (a)     The Executive agrees that during this Agreement and during the
two-year period after termination of this Agreement, the Executive will not,
directly or indirectly, (i) become a director, officer, employee, principal,
agent, consultant or independent contractor of any insured depository
institution, trust company or parent holding company of any such institution or
company (or any other entity offering products or services competing with such
institution or company) which has an office in Virginia, Maryland or the
District of Columbia. (a “Competing Business”), provided, however, that this
provision shall not prohibit









 





the Executive from owning bonds, non-voting
preferred stock or up to five percent (5%) of the outstanding common stock of
any such entity if such common stock is publicly traded, or (ii) solicit
(whether by mail, telephone, personal meeting or any other means) any customer
of United or any of its subsidiaries to transact business with any other
entity, whether or not a Competing Business, or to reduce or refrain from doing
any business with United or its subsidiaries, or interfere with or damage (or attempt to interfere with or
damage) any relationship between United or its subsidiaries and any such
customers.


               (b)     Except as required by law or regulation (including without limitation
in connection with any judicial or administrative process or proceeding), the
Executive shall keep secret and confidential and shall not disclose to any
third party (other than the Company, United or any of their respective
subsidiaries) in any fashion or for any purpose whatsoever any information
regarding the Company, United or any of their respective subsidiaries which is
not available to the general public to which the Executive had access at any
time during the course of the Executive’s employment by the Company or any of
its subsidiaries, including, without limitation, any such information relating
to: business or operations; plans, strategies, prospects or objectives;
products, technology, processes or specifications; research and development
operations or plans; customers and customer lists; distribution, sales,
service, support and marketing practices and operations; financial condition,
results of operations and prospects; operational strengths and weaknesses; and
personnel and compensation policies and procedures.



               (c)     Executive agrees that during this Agreement and the two-year period
after termination of this Agreement, Executive shall not, on his own behalf or
on behalf of any other person, corporation or entity, either directly or
indirectly, solicit, induce, recruit or cause another person in the employ of
United or its affiliates to terminate his or her employment for the purpose of
joining, associating or becoming an employee with any business which is in
competition with any business or activity engaged in by United or its
affiliates.



               (d)     The Executive agrees that damages at law will be an insufficient
remedy to United in the event that the Executive violates any of the provisions
of paragraph (a), (b) or (c) of this Section 6, and that United may apply for
and, upon the requisite showing, have injunctive relief in any court of
competent jurisdiction to restrain the breach or threatened or attempted breach
of or otherwise to specifically enforce any of the covenants contained in
paragraph (a), (b) or (c) of this Section 6. The Executive hereby consents to
any injunction (temporary or otherwise) which may be issued against the
Executive and to any other court order which may be issued against the
Executive from violating, or directing the Executive to comply with, any of the
covenants in paragraph (a), (b) or (c) of this Section 6. The Executive also
agrees that such remedies shall be in addition to any and all remedies,
including damages, available to United against the Executive for such breaches
or threatened or attempted breaches.



               (e)     In addition to United’s rights set forth in paragraph (d) of this
Section 6, in the event that the Executive shall violate the terms and
conditions of paragraphs (a), (b) or (c) of this Section 6, United and its
subsidiaries may terminate any payments or benefits of any type and regardless
of source payable by United or its subsidiaries, if applicable, to the
Executive, other than with respect to payments or benefits to the Executive
under plans or








 





arrangements that are covered by the Employee Retirement Income
Security Act of 1974, as amended.


          7.     Conflicting Agreements. Executive hereby represents and warrants that
the execution of this Agreement and the performance of his obligations
hereunder will not breach or be in conflict with any other agreement to which
he is a party or is bound, and that he is not now subject to any covenants against competition or similar covenants
which would affect the performance of his obligations hereunder.



          8.     Definition of “Person”. For purposes of this Agreement, the term
“Person” shall mean an individual, a corporation, an association, a
partnership, an estate, a limited liability company, and any other entity or
organization.



          9.     Assignment; Successors and Assigns, etc. Neither the Corporation and
Bank nor the Executive may make an assignment of this Agreement or any interest
herein, by operation of law or otherwise, without the prior written consent of
the other party hereto, and without such consent, any attempted transfer or
assignment shall be null and of no effect; provided, however, that the
Corporation and Bank may assign their rights under this Agreement without
consent of the Executive in the event that the Corporation and Bank shall
hereafter effect a reorganization, consolidate with or merge into any other
Person, or transfer all or substantially all of its properties or assets to any
other Person and such other Person assumes the obligations of the Corporation
and Bank under this Agreement. This Agreement shall inure to the benefit of
and be binding upon the Corporation and Bank and the Executive, their
respective successors, executors, administrators, heirs and permitted assigns.



          10.     Enforceability. If any portion or provision of this Agreement shall
to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or enforceable, shall not be affected thereby, and each
portion and provisions of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.



          11.     Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party or any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.



          12.     Amendment. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by the duly authorized
representatives of the Corporation and Bank.



          13.     Governing Law. This Agreement shall be construed under and be
governed in all respects by the laws of the Commonwealth of Virginia, to the
extent not preempted by Federal law.








 





          14.     Complete Agreement. Except as otherwise provided in this Agreement,
on and after the Commencement Date, this Agreement shall supersede any other
agreement, written or oral, pertaining to the subject matter of this Agreement,
other than that certain Executive Agreement of even date herewith which the
Executive is a party.



          IN WITNESS WHEREOF, this Agreement has been executed by the Corporation
and Bank, by their respective duly authorized officers, and by the Executive,
as of the date first written above.




	 	 	 	 	 
	 	 	UNITED BANKSHARES, INC.
	 	 	 	 	 
	 	 	
By:
	     /s/ Richard M. Adams     
	 	 	 	

	 	 	Name: Richard M. Adams

Title: Chairman and Chief Executive Officer
	 	 	 	 	 
	 	 	UNITED BANK
	 	 	 	 	 
	 	 	
By:
	     /s/ James J. Consagra, Jr.     
	 	 	 	

	 	 	Name:  James J. Consagra, Jr.

Title: Chief Financial Officer and Chief Operating Officer
	 	 	 	 	 
	 	 	EMPLOYEE:
	 	 	 	 	 
	 	 	 	     /s/ James G. Tardiff     
	 	 	

	 	 	JAMES G. TARDIFF