EXHIBIT 10.11
SOUTHWEST BANCORPORATION OF TEXAS, INC.
0000 XXXX XXX XXXXXXX
XXXXXXX, XXXXX 00000
October 20, 0000
Xx. Xxxx Xxxx
Xxxxxxxxx
Xxxx Xxxx Holding Corp.
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 00000-0000
Re: Employment Agreement
Dear Xx. Xxxx:
On this date, Fort Bend Holding Corp., a Delaware corporation ("FBHC"),
and Southwest Bancorporation of Texas, Inc., a Texas corporation ("Southwest")
have entered into an Agreement and Plan of Merger (the "Merger Agreement"),
pursuant to which FBHC would merge with and into Southwest and Fort Bend Federal
Savings and Loan Association of Xxxxxxxxx (the "Association") would merge with
and into Southwest Bank of Texas National Association ("SW Bank") (the
"Mergers"), and the stockholders of FBHC would receive 1.45 shares of Southwest
Common Stock in exchange for each of their shares of FBHC Common Stock.
Upon consummation of the Mergers, SW Bank hereby assumes all liabilities
and obligations of the Association under the Employment Agreement dated as of
June 30, 1993, between the Association and you, as extended on March 19, 1998,
providing for a new term expiration date as of March 31, 2001 (the "Employment
Agreement"). In connection with SW Bank's assumption of the Employment
Agreement, SW Bank agrees to perform the Employment Agreement in the same manner
and to the same extent that the Association would be required to perform it,
except that Southwest, SW Bank and you hereby agree that the Employment
Agreement will be amended to effectuate the following changes:
1. Instead of being employed as President of the Association and FBHC, you
will be elected as a Director and will hold the office of Vice Chairman of the
Board of SW Bank, with responsibility for all mortgage banking and mortgage
servicing operations of SW Bank. You will also be responsible for (i)
coordinating all business development activities in all branch offices of SW
Bank located in Fort Bend County, Xxxxxxx County and Xxxxxxxxxx County, and (ii)
assisting line of business managers in the implementation of their strategic
business objectives in those offices. In addition, all loan approval procedures
in those offices will conform to the standard credit underwriting procedures of
SW Bank as they currently exist and as they may be amended from time to time. SW
Bank has reviewed FBHC's credit underwriting procedures and has determined that
no material differences exist between the current credit policies of the two
companies.
-1-
2. The date of expiration of the Employment Agreement will be extended to
December 31, 2001. Your annual salary will be increased to $150,000 (I.E.,
$12,500 per month), effective as of the consummation of the Mergers, and you
will have the opportunity to earn a bonus for the 1999 calendar year of up to
$60,000, the amount of which bonus shall be determined and paid in accordance
with SW Bank's current incentive plan for its executive officers. SW Bank will
also (i) pay to you a car allowance of $500 per month, and (ii) maintain your
existing country club membership. SW Bank will also permit you to continue your
position as a trustee of the Xxxxxx Foundation. In addition, Management of
Southwest shall recommend to Southwest's Compensation Committee that you be
granted an incentive option to purchase 12,000 shares of Southwest Common Stock
under Southwest's 1996 Stock Option Plan effective as of the date of
consummation of the Mergers at an exercise price per share equal to the fair
market value per share of Southwest Common Stock on such date of grant. The
terms of such option, including vesting, will be consistent with those granted
by the Compensation Committee to other executive officers of SW Bank.
3. At the first Board of Directors Meeting of Southwest following
consummation of the Mergers you will be elected a Director of Southwest.
4. The above changes in your job title, description and responsibilities
shall not be deemed to constitute an "involuntary termination" under the
Employment Agreement.
You hereby agree and acknowledge that the agreement by SW Bank hereunder
regarding assumption of the Association's obligations under the Employment
Agreement fully satisfies the requirements of Section 11 of the Employment
Agreement.
If FBHC and Southwest decide not to proceed with the consummation of the
Mergers, the agreement set forth in this Letter shall become null and void and
no party hereunder shall have any further responsibility or liability to any
other party hereunder with respect to the Employment Agreement.
If the foregoing correctly states our agreements and understanding, please
execute and return a copy of this Letter acknowledging your acceptance and
agreement to the terms hereof.
SOUTHWEST BANCORPORATION OF TEXAS, INC.
By:_________________________________________
Xxxx X. Xxxxxx, Xx.
President and Chief Operating Officer
SOUTHWEST BANK OF TEXAS
NATIONAL ASSOCIATION
By:_________________________________________
Xxxx X. Xxxxxx, Xx.
President and Chief Operating Officer
Xxxx Xxxx
[LETTERHEAD]
EMPLOYMENT AGREEMENT AMENDMENT
On March 19, 1998, the Board of Directors approved the extension of this
Employment Agreement for a period of one year giving a new term expiration date
of March 31, 2001, at a pay rate of $11,663.08 monthly.
FORT BEND FEDERAL SAVINGS AND
LOAN ASSOCIATION OF ROSENBERG
By: /s/ XXXXXXX X. LITTLE
Xxxxxxx X. Little
EMPLOYEE
/s/ XXXX XXXX
Xxxx Xxxx
3/19/98
Date
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
this 30th day of June, 1993, by and between FORT BEND FEDERAL SAVINGS AND LOAN
ASSOCIATION OF ROSENBERG, a federally chartered savings and loan association
whose address is 0000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx 00000-0000, (which,
together with any successor thereto which executes and delivers the assumption
agreement provided for in Section 11(a) hereof or which otherwise becomes bound
by the terms and provisions of this Agreement by operation of law, is
hereinafter referred to as the "Association"), and XXXX XXXX whose residence
address is 1117 Xxxxxxx, Rosenberg, Texas (the "Employee").
WHEREAS, the Employee is currently serving as President of the Association
and Fort Bend Holding Corp., (the "Holding Company"); and
WHEREAS, the Association adopted a plan of conversion whereby the
Association converted to capital stock savings and loan association form as the
subsidiary of the Holding Company, which plan was approved by the Association's
members and the Office of Thrift Supervision (the "Conversion"); and
WHEREAS, the Board of Directors of the Association recognizes that, as is
the case with publicly held corporations generally, the possibility of a change
in control of the Holding Company may exist and that such possibility, and the
uncertainty and questions which it may raise among management, may result in the
departure or distraction of key management personnel to the detriment of the
Association, the Holding Company and its stockholders; and
WHEREAS, the Board of Directors of the Association believes it is in the
best interests of the Association to enter into this Agreement with the Employee
in order to assure continuity of management of the Association and to reinforce
and encourage the continued attention and dedication of the Employee to his
assigned duties without distraction in the face of potentially disruptive
circumstances arising from the possibility of a change in control of the Holding
Company, although no such change is now contemplated; and
WHEREAS, the Board of Directors of the Association has approved and
authorized the execution of this Agreement with the Employee to take effect as
stated in Section 4 hereof:
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, it is AGREED as
follows:
1. EMPLOYMENT. The Employee will be employed as President of the
Association, or in such other more senior capacity as the Board of Directors may
subsequently determine. As President, Employee shall render administrative and
management services as are customarily performed by persons situated in similar
executive capacities, and shall have other powers and duties as may from time to
time be prescribed by the Board, provided that such duties are consistent with
the Employee's position. The Employee shall continue to devote his best efforts
and substantially all his business time and attention to the business and
affairs of the Association and its subsidiaries and affiliated companies.
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2. COMPENSATION.
(a) SALARY. The Association agrees to pay the Employee during the term
of this Agreement a salary established by the Board of Directors. The salary
hereunder as of the Commencement Date (as defined in Section 4 hereof) shall be
equal to the Employee's salary as in effect immediately prior to such date. The
salary provided for herein shall be payable in cash not less frequently than
bi-monthly in accordance with the practices of the Association; PROVIDED,
HOWEVER, that no such salary is required to be paid by the terms of this
Agreement in respect of any month or portion thereof subsequent to the
termination of this Agreement, and PROVIDED FURTHER, that the amount of such
salary shall be reviewed by the Association not less often than annually and may
be increased (but not decreased) from time to time in such amounts as the Board
of Directors in its discretion may decide, subject to the customary withholding
tax and other employee taxes as required with respect to compensation paid by a
corporation to an employee.
(b) DISCRETIONARY BONUSES. The Employee shall be entitled to
participate in an equitable manner with all other executive officers of the
Association in discretionary bonuses as authorized and declared by the Board of
Directors of the Association to its executive employees. No other compensation
provided for in this Agreement shall be deemed a substitute for the Employee's
right to participate in such bonuses when and as declared by the Board of
Directors.
(c) EXPENSES. During the term of his employment hereunder, the
Employee shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by him (in
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accordance with policies and procedures at least as favorable to the Employee as
those presently applicable to the senior executive officers of the Association)
in performing services hereunder, provided that the Employee properly accounts
therefor in accordance with Association policy.
3. BENEFITS.
(a) PARTICIPATION IN RETIREMENT AND EMPLOYEE BENEFIT PLANS. The
Employee shall be entitled while employed hereunder to participate equitably in,
and receive benefits under, all plans relating to stock options, stock
purchases, pension, thrift, profit-sharing, group life insurance, medical
coverage, education, cash or stock bonuses, and other retirement or employee
benefits or combinations thereof, that are now or hereafter maintained for the
benefit of the Association's executive employee or for its employees generally.
(b) FRINGE BENEFITS. The Employee shall be eligible while employed
hereunder to participate in, and receive benefits under, any other fringe
benefits which are or may become applicable to the Association's executive
employees or to its employees generally, including a reasonable expense account.
4. TERM. The term of employment under this Agreement shall be a period of
36 months commencing on the date of completion of the Conversion (the
"Commencement Date"), subject to earlier termination as provided herein.
Beginning on the first anniversary of the Commencement Date, and on each
anniversary thereafter, the term of employment under this Agreement shall be
extended, subject to the next sentence of this paragraph, for a period of one
year unless either the Association or the Employee gives contrary
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written notice to the other not less than 90 days in advance of the date on
which the term of employment under this Agreement would otherwise be extended.
This Agreement will not be automatically extended unless such extension is
approved by the Board of Directors of the Association following the Board's
review of a formal performance evaluation of the Employee performed by the
disinterested members of the Board of Directors of the Association and reflected
in the minutes of the Board of Directors. Reference herein to the term of
employment under this Agreement shall refer to both such initial term and such
extended terms.
5. VACATIONS. The Employee shall be entitled, without loss of pay, to
absent himself voluntarily from the performance of his employment under this
Agreement, all such voluntary absences to count as vacation time, provided that:
(a) During the term of employment under this Agreement, the Employee
shall be entitled to an annual paid vacation of four weeks, or, if more
favorable to Employee, in accordance with the most favorable plans, policies,
programs or practices of the Association and its affiliated companies as in
effect for the Employer at any time during the six month period immediately
preceding the Commencement Date, or as in effect generally at any time
thereafter with respect to other senior executives of the Association and its
affiliated companies;
(b) The timing of vacations shall be scheduled in a reasonable manner
by the Employee;
(c) The Board of Directors shall, solely at the Employee's request, be
entitled to grant to the Employee a leave or leaves of absence with or without
pay at such time or times and
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upon such terms and conditions as the Board of Directors, in its discretion, may
determine; and
(d) The Board of Directors shall, in its sole discretion, have the
right to pay the Employee for any unused vacation time, such payment to be
calculated on a pro rata basis, based upon the Employee's then current salary.
6. TERMINATION OF EMPLOYMENT; DEATH.
(a) The Board of Directors may terminate the Employee's employment at
any time, but any termination by the Association's Board of Directors, other
than termination for cause, shall not prejudice the Employee's right to
compensation or other benefits under the Agreement. If the employment of the
Employee is involuntarily terminated, other than (i) for "cause" as provided in
this Section 6(a) or (ii) by reason of death or disability as provided in
Sections 6(c) or 7, or if there occurs a voluntary or involuntary termination of
the Employee's employment as defined in Section 8 in connection with or within
12 months after a change in control which occurs at any time during the term of
this Agreement as provided in Section 8, the Employee shall be entitled to
receive, (i) his then applicable salary for the remaining term of the Agreement
as calculated in accordance with Section 4 hereof, payable in such manner and at
the times as such the salary would have been payable to the Employee under
Section 2 had he remained in the employ of the Association, (ii) his then
applicable health insurance benefits for the remaining term of the Agreement as
calculated in accordance with Section 4 hereof, of termination and (iii) his
bonus determined on an annualized basis for the period commencing on the first
day of the fiscal year in which such
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termination occurs and ending as of the month and closest to date of termination
in such fiscal year, which bonus shall be payable at such time as it would have
been payable under Section 2(b) had he remained in the employ of the
Association.
The terms "termination" or "involuntarily terminated" in this Agreement
shall refer to the termination of the employment of Employee without his express
written consent. In addition, a material diminution of or interference with the
Employee's duties, responsibilities and benefits, including, but not limited to,
those events constituting a loss of status as defined in Section 8(a), shall be
deemed and shall constitute an involuntary termination of employment to the same
extend as express notice of such involuntary termination.
In case of termination of the Employee's employment for cause, the
Association shall pay the Employee his salary through the date of termination,
and the Association shall have no further obligation to the Employee under this
Agreement. The Employee shall have no right to receive compensation or other
benefits for any period after termination for cause. For purposes of this
Agreement, termination for "cause" shall include termination because of the
Employee's personal dishonesty, incompetence, willful misconduct, breach of a
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any material law, rule, or regulation (other than
traffic violations or similar offenses) or final cease-and-desist order, or
material breach of any provision of this Agreement. Notwithstanding the
foregoing, the Employee shall not be deemed to have been terminated for cause
unless and until there shall have
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been delivered to the Employee a copy of a resolution, duly adopted by the
affirmative vote of not less than a majority of the entire membership of the
Board of Directors of the Association at a meeting of the Board called and held
for such purpose (after reasonable notice to the Employee and an opportunity for
the Employee, together with the Employee's counsel, to be heard before the
Board), stating that in the good faith opinion of the Board the Employee was
guilty of conduct constituting "cause" as set forth above and specifying the
particulars thereof.
(b) The Employee's employment may be voluntarily terminated by the
Employee at any time upon 90 days written notice to the Association or upon such
shorter period as may be agreed upon between the Employee and the Board of
Directors of the Association. In the event of such voluntary termination, except
as provided in Section 8 below, the Association shall be obligated to continue
to pay the Employee his salary only through the date of termination together
with any accrued unpaid vacation pay as of said date, at the time such payments
are due, and the Association shall have no further obligation to the Employee
under this Agreement.
(c) Notwithstanding any other provision of this Agreement to the
contrary, Employee may voluntarily terminate his employment under this Agreement
by written notice to the Association upon the occurrence, or within thirty (30)
days thereafter, of any change in control if the Employee suffers a loss of
status, as defined in Section 8(a) hereof. Upon such termination Employee shall
be entitled to receive his salary, and such group medical insurance coverage or
reimbursement benefits
8
provided for (and on the same terms as set forth) in Section 3(a) hereof, during
the unexpired portion of the term of this Agreement (i.e., excluding any
automatic extensions of the term hereof that would otherwise occur pursuant to
Section 4 hereof subsequent to such termination), with such salary to be payable
in such manner and at such times as such salary would have been payable to
Employee under Section 4 had he remained in the employ of the Association.
Except as set forth in the preceding sentence, Employee shall have no right to
receive any other payments or benefits under this Agreement for any periods
after the date of such termination.
(d) In the event of the death of the Employee during the term of
employment under this Agreement and prior to any termination hereunder, the
Employee's estate, or such person as the Employee may have previously designated
in writing, shall be entitled to receive from the Association the salary of the
Employee through the last day of the calendar month in which his death shall
have occurred together with Employee's unused vacation and sick leave, and the
term of employment under this Agreement shall end on such last day of the month.
(e) If the Employee is suspended from office and/or temporarily
prohibited from participating in the conduct of the Association's affairs by a
notice served under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance
Act ("FDIA"), 12 U.S.C. ss 1818(e)(4); (g)(1), the Association's obligations
under this Agreement shall be suspended as of the date of service, unless stayed
by appropriate proceedings. If the charges in the notice are dismissed, the
Association may in its discretion (i) pay the
9
Employee all or part of the compensation withheld while its obligations under
this Agreement were suspended and (ii) reinstate in whole or in part any of the
obligations which were suspended.
(f) If the Employee is removed from office and/or permanently
prohibited from participating in the conduct of the Association's affairs by an
order issued under Section 8(e)(4) or (g)(1) of the FDIA, 12 U.S.C. ss
1818(e)(4); (g)(1), all obligations of the Association under this Agreement
shall terminate, as of the effective date of the order, but vested rights of the
parties shall not be affected.
(g) If the Association becomes in default (as defined in Section
3(x)(1) of the FDIA, 12 U.S.C. ss 1813(x)(1)), all obligations under this
Agreement shall terminate as of the date of default, but this provision shall
not affect any vested rights of the parties.
(h) All obligations under this Agreement shall be terminated, except
to the extent determined that continuation of this Agreement is necessary for
the continued operation of the Association: (i) by the Director of the OTS or
his or her designee at the time the Federal Deposit Insurance Corporation
("FDIC") or the Resolution Trust Corporation ("RTC") enters into an agreement to
provide assistance to or on behalf of the Association under the authority
contained in Section 13(c) of the FDIA, 12 U.S.C. ss 1823(c); or (ii) by the
Director of the OTS or his or her designee at the time the Director of the OTS
or his or her designee approves a supervisory merger to resolve problems related
to operation of the Association or when the Association is determined by the
Director of the OTS to be in an unsafe or unsound condition.
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Any rights of the parties that have already vested, however, shall not be
affected by any such action.
(i) In the event the Association purports to terminate the Employee
for cause, but it is determined by a court of competent jurisdiction that cause
did not exist for such termination, or if in any event it is determined by any
such court that the Association has failed to make timely payment of any amounts
owed to the Employee under this Agreement, the Employee shall be entitled to
reimbursement for all reasonable costs, including attorneys' fees, incurred in
challenging such termination or collecting such amounts. Such reimbursement
shall be in addition to all rights to which the Employee is otherwise entitled
under this Agreement.
7. DISABILITY. If during the term of employment hereunder Employee shall
become disabled or incapacitated to the extent that he is unable to perform the
duties of President, he shall be entitled to receive disability benefits of the
type provided for other executive employees of the Association. In such event,
the rights of the Employee to receive the salary stated in Section 2 hereof
shall be suspended after a period of six months until such time as the Employee
is able to resume his duties.
8. CHANGE IN CONTROL.
(a) INVOLUNTARY TERMINATION. If the Employee's employment is
involuntarily terminated (other than for cause or pursuant to any of Sections
6(c) through 6(g) or Section 7 of this Agreement) in connection with or within
12 months after a change in control which occurs at any time during the term of
employment under this Agreement, the Association shall pay to the Employee in
11
a lump sum in cash within 25 business days after the Date of Termination (as
hereinafter defined) of employment an amount equal to 100 percent of the
Employee's then current annual compensation.
An involuntary termination shall include a loss of status in
connection with the change in control. A loss of status shall include, but not
be limited to: (1) a change in the principal workplace of the Employee to a
location outside of Rosenberg, Texas; (2) a material reduction in the
secretarial or other administrative support of the Employee other than as part
of a Association or Holding Company-wide reduction in staff; (3) a reduction or
adverse change in the Employee's title or decision-making responsibilities; (4)
a reduction in the number or seniority of other Association personnel reporting
to the Employee, other than as part of an Association or Holding Company-wide
reorganization or reduction in staff, or a reduction in the frequency with
which, or in the nature of the matters with respect to which, such personnel are
to report to the Employee; (5) an increase in the number of, or a decrease in
the seniority of, the persons (other than the Board of Directors) to whom the
Employee must report, other than is normal and customary for a President, or
such other, more senior, capacity as the Employee may be subsequently employed
by the Association, of a similarly situated financial institution or financial
institution holding company; or an increase in the frequency of, or in the
nature of matters with respect to which, such reports by the Employee shall be
required; (6) a reduction or adverse change in the salary, perquisites,
benefits, contingent benefits or vacation time which had theretofore been
provided to the Employee, other than as part of an
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overall program applied uniformly and with equitable effect to all members of
the senior management of the Association or Holding Company; and (7) a material
increase in the required hours of work, or the workload of the Employee.
(b) DEFINITIONS. For purposes of Sections 8, 9 and 11 of this
Agreement, "Date of Termination" means the earlier of (i) the date upon which
the Association gives notice to the Employee of the Termination of his
employment with the Association or (ii) the date upon which the Employee ceases
to serve as an Employee of the Association, and "change in control" is defined
solely as any acquisition of control (other than pursuant to the Conversion or
by a trustee or other fiduciary holding securities under an employee benefit
plan of the Holding Company or a subsidiary of the Holding Company), as defined
in 12 C.F.R. ss 574.4, or any successor regulation, of the Association or
Holding Company which would require the filing of an application for acquisition
of control or notice of change in control in a manner as set forth in 12 C.F.R.
ss 574.3, or any successor regulation.
(c) COMPLIANCE WITH CAPITAL REQUIREMENTS. Notwithstanding anything in
this Agreement to the contrary, no payments may be made pursuant to Section 8
hereof without the prior approval of the OTS if following such payment the
Association would not be in compliance with its fully phased-in capital
requirements as defined in OTS regulations.
9. CERTAIN REDUCTION OF PAYMENTS BY THE ASSOCIATION. (a) Anything in this
Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment or distribution by the Association to or for the benefit of the
Employee (whether paid
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or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise) (a "Payment") would be nondeductible (in whole or part)
by the Association for Federal income tax purposes because of Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code"), then the aggregate
present value of amounts payable or distributable to or for the benefit of the
employee pursuant to this Agreement (such amounts payable or distributable
pursuant to this Agreement are hereinafter referred to as "Agreement Payments")
shall be reduced to the Reduced Amount. The "Reduced Amount" shall be an amount,
not less than zero, expressed in present value which maximizes the aggregate
present value of Agreement Payments without causing any Payment to be
nondeductible by the Association because of Section 280G of the Code. For
purposes of this Section 9, present value shall be determined in accordance with
Section 280G(d)(4) of the Code.
(b) All determinations required to be made under this Section 9 shall
be made by the Association's independent auditors, or at the election of such
auditors by such other firm or individuals of recognized expertise as such
auditors may select (such auditors or, if applicable, such other firm or
individual, are hereinafter referred to as the "Advisory Firm"). The Advisory
Firm shall within ten business days of the Date of Termination, or at such
earlier time as is requested by the Association, provide to both the Association
and the Employee an opinion (and detailed supporting calculations) that the
Association has substantial authority to deduct for federal income tax purposes
the full amount of the Agreement Payments and that the Employee has substantial
authority not to report on his federal income tax return any excise
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tax imposed by Section 4999 of the Code with respect to the Agreement Payments.
Any such determination and opinion by the Advisory Firm shall be binding upon
the Association and the Employee. The Employee shall determine which and how
much, if any, of the Agreement Payments shall be eliminated or reduced
consistent with the requirements of this Section 9, provided that, if the
Employee does not make such determination within ten business days of the
receipt of the calculations made by the Advisory Firm, the Association shall
elect which and how much, if any, of the Agreement Payments shall be eliminated
or reduced consistent with the requirements of this Section 9 and shall notify
the Employee promptly of such election. Within five business days of the earlier
of (i) the Association's receipt of the Employee's determination pursuant to the
immediately preceding sentence of this Agreement or (ii) the Association's
election in lieu of such determination, the Association shall pay to or
distribute to or for the benefit of the Employee such amounts as are then due
the Employee under this Agreement. The Association and the Employee shall
cooperate fully with the Advisory Firm, including without limitation providing
to the Advisory Firm all information and materials reasonably requested by it,
in connection with the making of the determinations required under this Section
9.
(c) As a result of uncertainty in application of Section 280G of the
Code at the time of the initial determination by the Advisory Firm hereunder, it
is possible that Agreement Payments will have been made by the Association which
should not have been made ("Overpayment") or that additional Agreement Payments
will not have been made by the Association which should have been made
("Underpayment"), in each case, consistent with the calculations required to be
made
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hereunder. In the event that the Advisory Firm, based upon the assertion by the
Internal Revenue Service against the Employee of a deficiency which the Advisory
Firm believes has a high probability of success determines that an Overpayment
has been made, any such Overpayment paid or distributed by the Association to or
for the benefit of Employee shall be treated for all purposes as a loan ab
initio which the Employee shall repay to the Association together with interest
at the applicable federal rate provided for in Section 7872(f)(2) of the Code;
provided, however, that no such loan shall be deemed to have been made and no
amount shall be payable by the Employee to the Association if and to the extent
such deemed loan and payment would not either reduce the amount on which the
Employee is subject to tax under Section 1 and Section 4999 of the Code or
generate a refund of such taxes. In the event that the Advisory Firm, based upon
controlling preceding or other substantial authority, determines that an
Underpayment has occurred, any such Underpayment shall be promptly paid by the
Association to or for the benefit of the Employee together with interest at the
applicable federal rate provided for in Section 7872(F)(2) of the Code.
(d) PAYMENTS NOT TO EXCEED THREE TIMES ANNUALIZED SALARY.
Notwithstanding anything in this Agreement to the contrary, in no event shall
the sum of any payment to the Employee under Section 8 of this Agreement and any
payments of salary and bonus under Section 6 of this Agreement exceed an amount
that is three times the Employee's salary (annualized) as of the date of
termination of employment. For this purpose, the amount of
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payments of salary and bonus to be made in the future under Section 6 shall be
determined on a present value basis, and present value shall be determined as
provided for in Section 9 of this Agreement.
10. NO MITIGATION. The amount of any salary or other payment or benefit
provided for in this Agreement shall not be reduced by any compensation earned
by the Employee as the result of employment by another employer, by retirement
benefits after the date of termination, or otherwise.
11. NO ASSIGNMENTS. (a) This Agreement is personal to each of the
parties hereto, and neither party may assign or delegate any of its rights or
obligations hereunder without first obtaining the written consent of the other
party; provided, however, that the Association will require any successor or
assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Association, by an assumption agreement in form and substance satisfactory to
the Employee, to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Association would be required to
perform it if no such succession or assignment had taken place. Failure of the
Association to obtain such an assumption agreement prior to the effectiveness of
any such succession or assignment shall be a breach of this Agreement and shall
entitle the Employee to compensation from the Association in the same amount and
on the same terms as the compensation pursuant to Section 8(a) hereof. For
purposes of implementing the provisions of this Section 11(a), the date on which
any such succession becomes effective shall be deemed the Date of Termination.
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(b) This Agreement and all rights of the Employee hereunder shall
inure to the benefit of and be enforceable by the Employee's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Employee should die while any amounts would still
be payable to the Employee hereunder if the Employee had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Employee's devisee, legatee or other designee
or if there is no such designee, to the Employee's estate.
12. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the first page of this Agreement (provided that all
notices to the Association shall be directed to the attention of the Board of
Directors of the Association with a copy to the Secretary of the Association),
or to such other address as either party may have furnished to the other in
writing in accordance herewith.
13. AMENDMENTS. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
14. PARAGRAPH HEADINGS. The paragraph headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection
with, the interpretation of this Agreement.
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15. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
16. GOVERNING LAW. This Agreement shall be governed by the laws of the
United States to the extent applicable and otherwise by the laws of the State of
Texas.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
FORT BEND FEDERAL SAVINGS AND LOAN
ASSOCIATION OF XXXXXXXXX
By: /s/ X. X. XXXXXXX
EMPLOYEE
/s/ XXXX XXXX
Xxxx Xxxx
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