EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made by and between
SOUTHWEST BANCORPORATION OF TEXAS, INC. ("Company") and XXXXXX X. XXXXXXX
("Executive").
W I T N E S S E T H:
WHEREAS, Company is desirous of continuing Executive's employment as
a senior executive of Company and its wholly owned subsidiary, SOUTHWEST BANK
OF TEXAS NATIONAL ASSOCIATION (the "Bank"), on the terms and conditions, and
for the consideration, hereinafter set forth and Executive is desirous of
continuing his employment by Company on such terms and conditions and for
such consideration;
WHEREAS, references herein to Executive's employment by Company
shall also mean his employment by Bank, and references herein to payments of
any nature to be made by Company to Executive shall mean that either Company
will make such payments or it will cause Bank to make such payments to
Executive;
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, Company and Executive agree as
follows:
ARTICLE 1: EMPLOYMENT AND DUTIES
1.1 EMPLOYMENT; EFFECTIVE DATE. Company agrees to employ Executive
and Executive agrees to be employed by Company, beginning as of the Effective
Date (as hereinafter defined) and continuing for the period of time set forth
in Article 2 of this Agreement, subject to the terms and conditions of this
Agreement. For purposes of this Agreement, the "Effective Date" shall be
January 1, 2000.
1.2 POSITION. From and after the Effective Date, Company shall employ
Executive in the capacity of Chairman of the Board of both Company and of
Bank, or in such other positions as the parties mutually may agree.
1.3 DUTIES AND SERVICES. Executive agrees to serve in the capacities
referred to in paragraph 1.2 and to perform diligently and to the best of his
abilities the duties and services appertaining to such offices, as well as
such additional duties and services appropriate to such offices which the
parties mutually may agree upon from time to time. Executive's employment
shall also be subject to the policies maintained and established by Company,
as the same may be amended from time to time.
1.4 OTHER INTERESTS. Executive agrees, during the period of his
employment by Company, to devote his primary business time, energy and best
efforts to the business and affairs of Company and Bank and not to engage,
directly or indirectly, in any other business or businesses, whether or not
similar to that of Company, except with the consent of the Board of Directors
of Company (the "Board of Directors"). The foregoing notwithstanding, the
parties recognize and agree that Executive may engage in passive personal
investments and other business activities that do not conflict with the
business and affairs of Company or interfere with Executive's performance of
his duties hereunder.
1.5 DUTY OF LOYALTY. Executive acknowledges and agrees that Executive
owes a fiduciary duty of loyalty, fidelity and allegiance to act at all times
in the best interests of Company and to do no act which would injure the
business, interests, or reputation of Company or any of its subsidiaries or
affiliates. In keeping with these duties, Executive shall make full
disclosure to Company of all business opportunities pertaining to Company's
business and shall not appropriate for Executive's own benefit business
opportunities concerning the subject matter of the fiduciary relationship.
ARTICLE 2: TERM AND TERMINATION OF EMPLOYMENT
2.1 TERM. Unless sooner terminated pursuant to other provisions
hereof, Company agrees to employ Executive for the period beginning on the
Effective Date and ending on February 17, 2006.
2.2 COMPANY'S RIGHT TO TERMINATE. Notwithstanding the provisions of
paragraph 2.1, Company shall have the right to terminate Executive's
employment under this Agreement at any time for any of the following reasons:
(i) upon Executive's death;
(ii) upon Executive's becoming incapacitated by accident,
sickness or other circumstance which renders him mentally or physically
incapable of performing the duties and services required of him
hereunder on a full-time basis for a period of at least 180 consecutive
days;
(iii) for cause, which for purposes of this Agreement shall
mean Executive (A) has engaged in gross negligence or willful
misconduct in the performance of the duties required of him hereunder,
(B) has been convicted of a misdemeanor involving moral turpitude or
convicted of a felony, (C) has willfully refused without proper legal
reason to perform the duties and responsibilities required of him
hereunder, (D) has materially breached any corporate policy or code of
conduct established by Company, or (E) has willfully engaged in conduct
that he knows or should know is materially injurious to Company or any
of its affiliates;
(iv) for Executive's material breach of any material provision
of this Agreement which, if correctable, remains uncorrected for 30
days following written notice to Executive by Company of such breach;
or
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(v) for any other reason whatsoever, in the sole discretion of
the Board of Directors.
2.3 EXECUTIVE'S RIGHT TO TERMINATE. Notwithstanding the provisions of
paragraph 2.1, Executive shall have the right to terminate his employment under
this Agreement at any time for any of the following reasons:
(i) a material breach by Company of any material provision of
this Agreement which, if correctable, remains uncorrected for 30 days
following written notice of such breach by Executive to Company; or
(ii) for any other reason whatsoever, in the sole discretion
of Executive.
2.4 NOTICE OF TERMINATION. If Company or Executive desires to
terminate Executive's employment hereunder at any time prior to expiration of
the term of employment as provided in paragraph 2.1, it or he shall do so by
giving written notice to the other party that it or he has elected to
terminate Executive's employment hereunder and stating the effective date and
reason for such termination, provided that no such action shall alter or
amend any other provisions hereof or rights arising hereunder, including,
without limitation, the provisions of Articles 4 and 5 hereof.
ARTICLE 3: COMPENSATION AND BENEFITS
3.1 BASE SALARY. For the period from the Effective Date until
February 17, 2001, Executive shall receive an annual base salary of $400,000
($33,333.33 per month). For the period from February 18, 2001 until February
17, 2006, Executive shall receive an annual base salary of $300,000 ($25,000
per month). Executive's annual base salary shall be paid in equal
installments in accordance with Company's standard policy regarding payment
of compensation to executives but no less frequently than monthly.
3.2 BONUSES. At the end of each calendar year during the term of this
Agreement, Executive may be entitled to a bonus of up to 60% of his then
current annual base salary. The amount of such bonus, if any, shall be
entirely discretionary with the Compensation Committee of the Board of
Directors. In making its determination as to the amount of any such bonus,
the Compensation Committee of the Board of Directors shall consider the same
criteria as that used for determining bonuses for other senior executives of
Company, from time to time. It is contemplated that such criteria shall
include Bank's financial performance as well as the performance of Company's
stock as compared to other members of its peer group.
3.3 LIFE INSURANCE. During the term of this Agreement, Company shall
maintain, at its sole cost, (i) a $3,031,481 face amount "second to die"
whole life insurance policy insuring the lives of Executive and his spouse,
and (ii) a $4,000,000 face amount "10-year" term life insurance policy
insuring the life of Executive. Executive (or his spouse) shall have the sole
right to name the beneficiaries under such insurance policies during the term
of this Agreement. Following the term of this Agreement, Executive (or his
spouse) shall have the right to (A) either terminate the whole life insurance
policy in exchange for its cash surrender value or continue coverage under
such policy by paying the future premiums due, and (B) continue coverage
under the term life insurance policy
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by paying the future premiums due. The Company shall cause coverage under
such policies to be commenced as soon as practicable after execution and
delivery of this Agreement by Company and Executive.
3.4 OTHER PERQUISITES. During his employment hereunder, Executive
shall be afforded the following benefits as incidences of his employment:
(i) BUSINESS AND ENTERTAINMENT EXPENSES - Subject to Company's
standard policies and procedures with respect to expense reimbursement
as applied to its executive employees generally, Company shall
reimburse Executive for, or pay on behalf of Executive, reasonable and
appropriate expenses incurred by Executive for business related
purposes, including dues and fees to industry and professional
organizations and costs of entertainment and business development.
(ii) OTHER COMPANY BENEFITS - Executive and, to the extent
applicable, Executive's spouse, dependents and beneficiaries, shall be
allowed to participate in all benefits, plans and programs, including
improvements or modifications of the same, which are now, or may
hereafter be, available to other executive employees of Company. Such
benefits, plans and programs may include, without limitation, pension
benefit plans, health insurance or health care plan, disability
insurance, supplemental retirement plans, vacation and sick leave
benefits, and the like. Company shall not, however, by reason of this
paragraph be obligated to institute, maintain, or refrain from
changing, amending, or discontinuing, any such benefit plan or program,
so long as such changes are similarly applicable to executive employees
generally.
ARTICLE 4: CONFIDENTIAL INFORMATION
4.1 IN GENERAL. Company shall disclose to Executive, or place
Executive in a position to have access to or develop, trade secrets or
confidential information of Company or its affiliates; and/or shall entrust
Executive with business opportunities of Company or its affiliates; and/or
shall place Executive in a position to develop business good will on behalf
of Company or its affiliates. Executive recognizes and acknowledges that
Executive will have access to certain information of Company and that such
information is confidential and constitutes valuable, special and unique
property of Company. Executive shall not at any time, either during or
subsequent to the term of employment with Company, disclose to others, use,
copy or permit to be copied, except in pursuance of Executive's duties for
and on behalf of Company, its successors, assigns or nominees, any Confi
dential Information of Company (regardless of whether developed by Executive)
without the prior written consent of Company. The term "Confidential
Information" means any secret or confidential information or know-how and
shall include, but shall not be limited to, the plans, customers, costs,
prices, uses, corporate opportunities, research, financial data, evaluations,
prospects, and applications of products and services, results of
investigations or studies owned or used by Company, and all apparatus,
products, processes, compositions, samples, formulas, computer programs,
computer hardware designs, computer firmware designs, and servicing,
marketing or manufacturing methods and techniques at any time used,
developed, investigated, made or sold by Company, before or during the term
of employment with Company, that are not readily available to the public or
that are maintained as confidential by Company. Executive shall maintain in
confidence any Confidential
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Information of third parties received as a result of Executive's employment
with Company in accordance with Company's obligations to such third parties
and the policies established by Company.
4.2 REMEDIES. Executive acknowledges that money damages would not be
sufficient remedy for any breach of this Article by Executive, and Company
shall be entitled to enforce the provisions of this Article by terminating
payments then owing to Executive under this Agreement and/or to specific
performance and injunctive relief as remedies for such breach or any
threatened breach. Such remedies shall not be deemed the exclusive remedies
for a breach of this Article, but shall be in addition to all remedies
available at law or in equity to Company, including the recovery of damages
from Executive and his agents involved in such breach and remedies available
to Company pursuant to other agreements with Executive.
ARTICLE 5: NON-COMPETITION OBLIGATIONS
5.1 IN GENERAL. As part of the consideration for the compensation and
benefits to be paid to Executive hereunder; to protect the Confidential
Information of Company and its affiliates that has been and will in the
future be disclosed or entrusted to Executive, the business good will of
Company and its affiliates that has been and will in the future be developed
in Executive, or the business opportunities that have been and will in the
future be disclosed or entrusted to Executive by Company and its affiliates;
and as an additional incentive for Company to enter into this Agreement,
Company and Executive agree to the non-competition obligations hereunder.
Executive shall not, directly or indirectly for Executive or for others, in
any geographic area or market where Company or any of its affiliates are
conducting any business as of the date of the termination of the employment
relationship or have during the previous twelve months conducted such
business:
(i) engage in any business competitive with the business
conducted by Company;
(ii) render advice or services to, or otherwise assist, any
other person, association, or entity who is engaged, directly or
indirectly, in any business competitive with the business conducted by
Company with respect to such competitive business; or
(iii) induce any employee of Company or any of its affiliates
to terminate his or her employment with Company or such affiliates,
or hire or assist in the hiring of any such employee by any person,
association, or entity not affiliated with Company.
These non-competition obligations shall apply during the period that
Executive is employed by Company and shall extend two years after termination
of the employment relationship if such termination is by Company pursuant to
Section 2.2(iii) or (iv) or by Executive pursuant to Section 2.3(ii).
5.2 ENFORCEMENT AND REMEDIES. Executive understands that the
restrictions set forth in paragraph 5.1 may limit Executive's ability to
engage in certain businesses anywhere in the world during the period provided
for above, but acknowledges that Executive will receive sufficiently high
remuneration and other benefits under this Agreement to justify such
restriction. Executive acknowledges that money damages would not be
sufficient remedy for any breach of this Article by
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Executive, and Company shall be entitled to enforce the provisions of this
Article by terminating any payments then owing to Executive under this
Agreement and/or to specific performance and injunctive relief as remedies
for such breach or any threatened breach. Such remedies shall not be deemed
the exclusive remedies for a breach of this Article, but shall be in addition
to all remedies available at law or in equity to Company, including without
limitation, the recovery of damages from Executive and Executive's agents
involved in such breach and remedies available to Company pursuant to other
agreements with Executive.
5.3 REFORMATION. It is expressly understood and agreed that Company
and Executive consider the restrictions contained in this Article to be
reasonable and necessary to protect the proprietary information of Company.
Nevertheless, if any of the aforesaid restrictions are found by a court
having jurisdiction to be unreasonable, or overly broad as to geographic area
or time, or otherwise unenforceable, the parties intend for the restrictions
therein set forth to be modified by such court so as to be reasonable and
enforceable and, as so modified by the court, to be fully enforced.
ARTICLE 6: STATEMENTS CONCERNING COMPANY
6.1 IN GENERAL. Executive shall refrain, both during the employment
relationship and after the employment relationship terminates, from
publishing any oral or written statements about Company, any of its
affiliates, or any of such entities' officers, employees, agents or
representatives that are slanderous, libelous, or defamatory; or that
disclose private or CONFIDENTIAL information about Company, any of its
affiliates, or any of such entities' business affairs, officers, employees,
agents, or representatives; or that constitute an intrusion into the
seclusion or private lives of Company, any of its affiliates, or any of such
entities' officers, employees, agents, or representatives; or that give rise
to unreasonable publicity about the private lives of Company, any of its
affiliates, or any of such entities' officers, employees, agents, or
representatives; or that place Company, any of its affiliates, or any of such
entities' officers, employees, agents, or representatives in a false light
before the public; or that constitute a misappropriation of the name or
likeness of Company, any of its affiliates, or any of such entities'
officers, employees, agents, or representatives. A violation or threatened
violation of this prohibition may be enjoined by the courts. The rights
afforded Company and its affiliates under this provision are in addition to
any and all rights and remedies otherwise afforded by law.
ARTICLE 7: EFFECT OF TERMINATION ON COMPENSATION
7.1 BY EXPIRATION. If Executive's employment hereunder shall
terminate upon expiration of the term provided in paragraph 2.1 hereof, then
all compensation and all benefits to Executive hereunder shall terminate
contemporaneously with termination of his employment (except to the extent
benefits continue pursuant to the specific terms of any plan or program).
7.2 BY COMPANY. If Executive's employment hereunder shall be
terminated by Company prior to expiration of the term provided in paragraph
2.1, then, upon such termination, regardless of the reason therefor, all
compensation and benefits to Executive hereunder shall terminate
contemporaneously with the termination of such employment (except to the
extent benefits continue pursuant to the specific terms of any plan or
program); provided, however, that if such
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termination shall be for any reason other than those encompassed by
paragraphs 2.2(i), (ii), (iii), or (iv), then Company shall (i) pay Executive
the Termination Payments and (ii) provide Executive with Continuation
Benefits. For purposes of this Agreement, (A) the term "Termination Payments"
shall mean continuation of Executive's annual base salary as provided in
paragraph 3.1 and continuation of Executive's bonuses as provided in
paragraph 3.2 at the average percentage of annual base salary paid to
Executive within the two-year period preceding his termination of employment
with Company, as if he had remained employed by Company through February 17,
2006 and (B) the term "Continuation Benefits" shall mean continued coverage
under Company's medical and dental plans and life insurance for Executive and
his dependents (including his spouse) who were covered under such plans and
insurance on the day prior to Executive's termination of employment with
Company as if he had remained employed by Company through February 17, 2006
(provided, however, that (1) such coverage shall terminate if and to the
extent Executive becomes eligible to receive medical, dental and life
insurance coverage from a subsequent employer (and any such eligibility shall
be promptly reported to Company by Executive), (2) if Executive (and/or his
spouse) would have been entitled to retiree medical, dental, and/or life
insurance coverage under Company's plans had he voluntarily retired on the
date of such termination, then such coverages shall be continued as provided
under such plans, and (3) in the event that continued participation in any
such Company plan is for whatever reason impermissible, Company shall arrange
upon comparable terms benefits substantially equivalent to those that may not
be so provided under the plan maintained by Company). Notwithstanding the
preceding provisions of this paragraph 7.2, as a condition to the receipt of
any Termination Payments and/or Continuation Benefits pursuant to this
paragraph 7.2, Executive must first execute a release and agreement which
shall release Company, its affiliates and their officers, directors,
employees and agents from any and all claims and from any and all causes of
action of any kind or character, including but not limited to all claims or
causes of action arising out of Executive's employment with Company and the
termination of such employment.
7.3 BY EXECUTIVE. If Executive's employment hereunder shall be
terminated by Executive prior to expiration of the term provided in paragraph
2.1, then, upon such termination, regardless of the reason therefor, all
compensation and benefits to Executive hereunder shall terminate
contemporaneously with the termination of such employment (except to the
extent benefits continue pursuant to the specific terms of any plan or
program); provided, however, that if such termination shall be pursuant to
paragraph 2.3(i), then Company shall (i) pay Executive, within 10 days after
the last day of Executive's employment with Company, a lump sum cash payment
in an amount equal to the Termination Payment and (ii) provide Executive with
Continuation Benefits.
7.4 NO DUTY TO MITIGATE LOSSES. Executive shall have no duty to find
new employment following the termination of his employment under
circumstances which require Company to pay any amount to Executive pursuant
to this Article 7. Any salary or remuneration received by Executive from a
third party for the providing of personal services (whether by employment or
by functioning as an independent contractor) following the termination of his
employment under circumstances pursuant to which this Article 7 apply shall
not reduce Company's obligation to make a payment to Executive (or the amount
of such payment) pursuant to the terms of this Article 7.
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7.5 LIQUIDATED DAMAGES. In light of the difficulties in estimating
the damages for an early termination of this Agreement, Company and Executive
hereby agree that the payments, if any, to be received by Executive pursuant
to this Article 7 shall be received by Executive as liquidated damages.
7.6 INCENTIVE AND DEFERRED COMPENSATION. This Agreement governs the
rights and obligations of Executive and Company with respect to Executive's
base salary, bonus, life insurance and certain perquisites of employment.
Executive's rights and obligations both during the term of his employment and
thereafter with respect to stock options, restricted stock, and incentive and
deferred compensation shall be governed by the separate agreements, plans and
other documents and instruments governing such matters.
ARTICLE 8: MISCELLANEOUS
8.1 NOTICES. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United
States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
IF TO COMPANY TO: Compensation Committee
Southwest Bancorporation of Texas, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
IF TO EXECUTIVE TO: Xxxxxx X. Xxxxxxx
Southwest Bank of Texas N.A.
0000 Xxxx Xxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
or to such other address as either party may furnish to the other in writing
in accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
8.2 APPLICABLE LAW. This Agreement is entered into under, and shall
be governed for all purposes by, the laws of the State of Texas.
8.3 NO WAIVER. No failure by either party hereto at any time to give
notice of any breach by the other party of, or to require compliance with,
any condition or provision of this Agreement shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
8.4 SEVERABILITY. If a court of competent jurisdiction determines
that any provision of this Agreement is invalid or unenforceable, then the
invalidity or unenforceability of that provision shall not affect the
validity or enforceability of any other provision of this Agreement, and all
other provisions shall remain in full force and effect.
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8.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which together will constitute one and the same Agreement.
8.6 WITHHOLDING OF TAXES AND OTHER EMPLOYEE DEDUCTIONS. Company may
withhold from any benefits and payments made pursuant to this Agreement all
federal, state, city and other taxes as may be required pursuant to any law
or governmental regulation or ruling and all other normal employee deductions
made with respect to Company's employees generally.
8.7 HEADINGS. The paragraph headings have been inserted for purposes
of convenience and shall not be used for interpretive purposes.
8.8 GENDER AND PLURALS. Wherever the context so requires, the
masculine gender includes the feminine or neuter, and the singular number
includes the plural and conversely.
8.9 AFFILIATE. As used in this Agreement, the term "affiliate" shall
mean any entity which owns or controls, is owned or controlled by, or is
under common ownership or control with, Company.
8.10 SUCCESSOR OBLIGATIONS. This Agreement shall be binding upon and
inure to the benefit of Company and any successor of Company, by merger or
otherwise.
8.11 ASSIGNMENT. Except as provided in paragraph 8.10, this Agreement,
and the rights and obligations of the parties hereunder, are personal and
neither this Agreement, nor any right, benefit, or obligation of either party
hereto, shall be subject to voluntary or involuntary assignment, alienation
or transfer, whether by operation of law or otherwise, without the prior
written consent of the other party.
8.12 TERM. This Agreement has a term co-extensive with the term of
employment provided in paragraph 2.1. Termination shall not affect any right
or obligation of any party which is accrued or vested prior to such
termination. Without limiting the scope of the preceding sentence, the
provisions of Articles 4, 5, and 6 shall survive any termination of the
employment relationship and/or of this Agreement.
8.13 ENTIRE AGREEMENT. Except as provided in (i) the written benefit
plans and programs referenced in paragraph 3.4(ii) and (ii) any signed
written agreement contemporaneously or hereafter executed by Company and
Executive, this Agreement constitutes the entire agreement of the parties
with regard to the subject matter hereof, and contains all the covenants,
promises, representations, warranties and agreements between the parties with
respect to employment of Executive by Company. Without limiting the scope of
the preceding sentence, all prior understandings and agreements among the
parties hereto relating to the subject matter hereof are hereby null and void
and of no further force and effect. Specifically, upon the execution and
delivery of this Agreement by Company and Executive, the "Change in Control
Agreement" entered into between Company and Executive, as of December 17,
1996, shall be terminated and of no further force or effect. Any modification
of this Agreement shall be effective only if it is in writing and signed by
the party to be charged.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the 28th day of October, 1999, to be effective as of the Effective Date.
SOUTHWEST BANCORPORATION OF TEXAS, INC.
BY: /s/ Xxxx X. Xxxxxx, XX.
----------------------------------------------
Xxxx X. Xxxxxx, Xx.
President and Chief Operating Officer
"COMPANY"
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
XXXXXX X. XXXXXXX
"EXECUTIVE"
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