Exhibit 10.8
THE STILLWATER NATIONAL BANK AND TRUST COMPANY
SUPPLEMENTAL PROFIT SHARING PLAN AND AGREEMENT
--------------------
PLAN AND AGREEMENT, made as of this 31st day of December 2004, by and
between Xxxxx X. Xxxxxx (the "Executive"), and Stillwater National Bank and
Trust Company (the "Stillwater National").
WHEREAS, Stillwater National previously has established the Employee's
Profit Sharing Plan and Trust as a qualified plan under the Internal Revenue
Code of 1986, as amended.
WHEREAS, the amounts of the annual profit sharing contributions made by
Stillwater National to the Executive's account in the Primary Plan as a
percentage of his compensation may be less than the percentages payable to other
employees' accounts under Primary Plan by reason of provisions of the Code
applicable to such qualified plans.
WHEREAS, Stillwater National has established this Stillwater National
Bank and Trust Company Supplemental Profit Sharing Plan and Agreement (the
"Plan"), in order that it may make tax-deferred contributions to a plan for the
benefit of the Executive.
NOW THEREFORE, it is mutually agreed as follows:
1. DEFINITIONS.
(a) "Affiliate" shall mean any "parent corporation" or "subsidiary
corporation" of Stillwater National, as such terms are defined
in Section 424(e) and (f), respectively, of the Code.
(b) "Beneficiary" means the person or persons selected by the
Participant on a form provided by the Company to receive the
benefits provided under this Plan in the event of the
Participant's death.
(c) "Board" shall mean the Board of Directors of Stillwater
National.
(d) "Change in Control" shall mean any one of the following events
occurring after the date hereof: (1) the acquisition of
ownership, holding or power to vote more than 51% of any class
if voting securities of Stillwater National or Southwest, (2)
the acquisition of the power to control the election of a
majority of Stillwater National's or Southwest's directors,
(3) the exercise of a controlling influence over the
management or policies of Stillwater National or Southwest by
any person or by persons acting as a "group" (within the
meaning of Section 13(d) of the Securities Exchange Act of
1934), or (4) the failure of Continuing Directors to
constitute at least two-thirds of the Board of Directors of
Southwest or Stillwater National (the "Southwest Board")
during any period of two consecutive years. For purposes of
this Plan, "Continuing Directors" shall include only those
individuals who were members of Southwest Board at the
Effective Date and those other individuals whose election or
nomination for election as a member of Southwest Board was
approved by a vote of at least two-thirds of the Continuing
Directors then in office. For purposes of this subparagraph
only, the term "person" refers to an individual or a
corporation, partnership, trust, association, joint venture,
pool, syndicate, sole proprietorship, unincorporated
organization or any other form of entity not specifically
listed herein. The decision of the Committee as to whether a
change in control has occurred shall be conclusive and
binding.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Committee" shall mean the Compensation Committee of the
Board.
(g) "Compensation" means salary, bonus, and other cash
compensation, including amounts deferred by the Participant
under any and all elective deferred compensation plans of
Stillwater National and its Subsidiaries.
(h) "Continuous Service" shall mean the absence of any
interruption or termination of service as an Employee of
Southwest or any present or future Affiliate. Continuous
Service shall not be considered interrupted in the case of
sick leave, military leave or any other leave of absence
approved by Southwest or Stillwater National or in the case of
transfers between payroll locations of Southwest or among
Southwest, Stillwater National or any other Affiliate.
1
(i) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
(j) "Non-Employee Director" means any member of the Board who, at
the time discretion under the Plan is exercised, would be a
"Non-Employee Director" within the meaning of Rule 16b-3 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended, if Stillwater National were
an issuer for purposes of that rule.
(k) "Parent" shall mean any present or future corporation that
would be a "parent corporation" as defined in Subsections
424(e) and (g) of the Code.
(l) "Permanent Disability means a physical or mental infirmity
that impairs the Executive's ability to substantially perform
his duties and that results in the Executive's becoming
eligible for long-term disability benefits under a long-term
disability plan maintained for Stillwater National employees
(or, if Stillwater National has no such plan in effect, that
impairs the Executive's ability to substantially perform his
duties for a period of one-hundred and eighty consecutive
days).
(m) "Plan" means this Plan.
(n) "Plan Account" means the account described in Section 2 of the
Plan.
(o) "Plan Year" means the calendar year.
(p) "Primary Market Area" means Xxxxx County, Oklahoma, the Tulsa,
Oklahoma MSA, the Oklahoma City Oklahoma MSA, the Wichita
Kansas MSA and the Dallas Texas MSA.
(q) "Profit Sharing Plan" means the Stillwater National Bank and
Trust Company Profit Sharing Plan and Trust, as amended, or
any successor plan thereto.
(r) "Southwest" shall mean Southwest Bancorp, Inc.
(s) "Stillwater National" shall mean Stillwater National Bank and
Trust Company.
(t) "Subsidiary" shall mean any present or future corporation
which would be a "subsidiary corporation" as defined in
Subsections 424(f) and (g) of the Code.
(u) "Termination for Just Cause" means termination by Stillwater
National or Southwest of Executive's employment because of the
Executive's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties; willful
violation of any law, rule or regulation (other than minor
offenses) or any final cease-and-desist order); or committing
any other act that causes significant damage to the reputation
of the Bank or any of its Affiliates.
(v) "Termination for Good Reason" means termination by the
Executive of his employment with Stillwater National or
Southwest because of a material breach by Stillwater National
under a binding employment agreement with the Executive; a
material reduction in the Executive's responsibilities or
authority; assignment to the Executive of duties of a
nonexecutive nature or duties for which he is not reasonably
equipped by his skills and experience; any material reduction
in salary or material reduction in benefits below the amounts
to which he was entitled prior to a Change in Control; a
requirement that the Executive relocate his principal business
office or his principal place of residence outside the
Principal Market Area, or the assignment to the Executive of
duties that would reasonably require such a relocation; a
requirement that the Executive spend more than ninety normal
working days away from the Primary Market Area during any
consecutive twelve-month period; or failure to provide office
facilities, secretarial services, and other administrative
services to Executive that are substantially equivalent to the
facilities and services provided to the Executive immediately
prior to the Change in Control (excluding brief periods during
which office facilities may be temporarily unavailable due to
fire, natural disaster, or other calamity). Notwithstanding
the foregoing: a reduction or elimination of the Executive's
benefits under one or more benefit plans maintained by of
Stillwater National and Southwest as part of a good faith,
overall reduction or elimination of such plan or plans or
benefits thereunder applicable to all participants in a manner
that does not discriminate against the Executive (except as
such discrimination may be necessary to comply with law) shall
not constitute an event of Good Reason provided that benefits
of the type or to the general extent as those offered under
such plans prior to such reduction or elimination are not
available to other officers of Stillwater National or any
company that controls Stillwater National under a plan or
plans in or under which the Executive is not entitled to
participate, and receive benefits, on a fair and
nondiscriminatory basis. This provision shall not affect the
rights of the Executive to enforce this Plan.
2
(w) "Transaction" means (i) the liquidation or dissolution of
Southwest, (ii) a merger or consolidation in which Southwest
is not the surviving entity; or (iii) the sale or other
disposition of all or substantially all of the voting
securities or assets of Stillwater National.
(x) "Trust" means an irrevocable grantor trust established by
Stillwater National, or a successor thereto, in connection
with this Plan to provide the benefits described in the Plan,
the assets of which are subject to the claims of Stillwater
National's creditors in the event of bankruptcy or insolvency,
and the terms of which conform to the terms of the model trust
as descried in IRS Revenue Procedure 92-64 (and any successor
thereto) and otherwise meet the requirements for a "rabbi
trust" under ERISA and the Code and of the provisions of this
Plan.
(y) "Trustee" means the independent third-party corporation or
individual selected by Stillwater National to serve as Trustee
for the Trust.
2. PLAN ACCOUNT. Stillwater National shall establish and maintain the Plan
Account for the benefit of the Executive or for the benefit of his designated
beneficiary upon the death of the Executive, and shall credit the account with
contributions and earnings and debit the account for distributions, as described
in this Plan.
3. CONTRIBUTIONS. Stillwater National shall make contributions to the Plan
Account as follows:
(a) Supplemental Profit Sharing Contributions. Stillwater National
shall credit the Plan Account with the amount equal to the
difference between the aggregate amount of contributions which
would have been allocated with respect to the Executive under
the Profit Sharing Plan based on the Executive's Compensation
without regard to the limitations imposed by the Code on the
Profit Sharing Plan, or otherwise contained in the Plan, and
the aggregate amount of contributions actually made with
respect to the Executive, without regard to forfeitures. For
purposes of determining the amount which would have been
allocated to the Profit Sharing Plan, such amount shall be
deemed to be proportionate to the ratio of the actual
contribution made to such plan over the compensation taken
into account under such plan. Such contributions shall be
credited to the Plan Account at substantially the same time as
contributions are made to the Profit Sharing Plan. Stillwater
National is not required to make any Supplemental Profit
Sharing Contribution for any period in which it does not make
a contribution to the Profit Sharing Plan. No Supplemental
Profit Sharing Contributions shall be made following a
termination of the Executive's employment for Cause or
voluntary termination without Good Reason. The Supplemental
Profit Sharing Contribution for the calendar year in which the
Executive's or his Beneficiary's rights under the Plan vest
shall be prorated based upon the number of days in the
calendar year prior to the vesting date over 365.
(b) Discretionary Contributions. Stillwater National may make, but
is not required by this Plan to make, additional,
discretionary contributions to the Plan Account at such times
and in such amounts as it may deem appropriate.
(c) Earnings Until the Plan Account is fully distributed to the
Executive or his Beneficiary, the Plan Account shall be
credited as of the last day of each calendar quarter with
earnings as though the balance of the Plan Account at the
beginning of such calendar quarter were invested in an
uninsured, nondeposit fund account having an annual return for
each calendar quarter equal to the annualized average interest
rate earned (non-taxable equivalent) by Stillwater National on
average interest-earning assets for such calendar quarter, and
except as provided in Section 6 hereof, as calculated in good
faith by Stillwater National. (For example, the earnings rate
for the first calendar quarter of 2002 would have been 6.65%,
if the Plan were then in effect.)
(d) Unfunded Arrangement. The parties intend that this Plan be
unfunded for purposes of ERISA and the Code. The Executive and
his Beneficiary are general unsecured creditors of Stillwater
National for the payment of benefits under this Plan. The
benefits represent the mere promise by Stillwater National to
pay such benefits. The rights to benefits are not subject in
any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by
creditors of the Executive or his Beneficiary. Any
representation or assertion contrary to this section 3(d) is a
material breach of this Plan by the representing or asserting
party, which, if such party is the Executive or, following his
death, a Beneficiary, shall immediately result in the
cessation of any and all payments and the elimination of any
liability hereunder for any payment not made prior to such
assertion or representation, and, if such party is Stillwater
National or an Affiliate of Stillwater National, shall subject
Stillwater National to liability for actual damages for such
breach.
3
4. DISTRIBUTIONS.
(a) Vesting. The amounts deferred and any related accumulated
income on such deferrals shall be fully vested upon the
following occurs, provided the Executive has Continuously
Served from the date of this Plan to such date:
(1) The Executive's retirement on or after Age 62;
(2) The Executive's 72nd birthday;
(3) The Executive's Permanent Disability;
(4) Termination of Executive's employment by Stillwater
National Without Cause;
(5) Termination of Executive's employment by the
Executive With Good Reason;
(6) Termination of the Plan; or
(7) A Change in Control.
(b) When Payments Start. Distribution shall begin during the first
15 days of January in the calendar year immediately following
the year in which the earliest of the events listed in (1)
through (6) of subsection (a) occurs.
(c) Manner of Distributions. Distributions will occur in the
manner selected by the Executive below, provided that the
Executive may change the method of distribution as to future
contributions and earnings thereon, only, and only from the
choices offered below, by written notice to Stillwater
National. The Executive, pursuant to the Plan, hereby elects
to have the amount contributed and any related accumulated
earnings distributed as follows:
[Choose One]
( ) monthly over a five-year period
( ) monthly over a ten-year period
( ) monthly over a fifteen-year period
( ) in a lump sum
(d) Cash Distributions. All distributions made pursuant to the
Plan and this Agreement will be made in cash.
(e) Distributions after Death. If a Participant dies before the
entire amount credited to the Participant under the Plan has
been paid to the Participant, the amount remaining shall be
distributed to the Participant's Beneficiary in accordance
with the method selected by the Executive. If a Participant
has not designated a Beneficiary, or if no designated
Beneficiary is living on the date of distribution, such amount
shall be distributed to those persons or such trust entitled
to receive distributions of the Executive's benefits under the
Profit Sharing Plan.
(f) Emergency Distributions. In the event the Executive incurs an
unforeseeable emergency, the Executive may make a written
request to the Stillwater National for a hardship withdrawal
from his or her account. An unforeseeable emergency is a
severe financial hardship to the Executive resulting from a
sudden and unexpected illness or accident of the Executive or
of a dependent (as defined in Section 152(a) of the Code),
loss of the Executive's property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising
as a result of events beyond the control of the Executive.
Withdrawals of amounts because of an unforeseeable emergency
are only permitted to the extent reasonably needed to satisfy
the emergency need. This section shall be interpreted in a
manner consistent with Sections 1.457-2(h)(4) and
1.457-2(h)(5) of the Treasury Regulations.
4
5. PLAN ADMINISTRATION.
(a) Committee. The Plan shall be administered by the Committee. In
the absence at any time of a duly appointed Committee, the
Plan shall be administered by the Board. Except as limited by
the express provisions of the Plan or by resolutions adopted
by the Board, the Committee shall have sole and complete
authority and to prescribe, amend and rescind rules and
regulations relating to the Plan, and to make other
determinations necessary or advisable for the administration
of the Plan. The Committee shall have and may exercise such
other power and authority as may be delegated to it by the
Board from time to time.
(b) Indemnification and Limitation of Liability. In addition to
such other rights of indemnification as they may have, the
members of the Committee shall be indemnified by Stillwater
National in connection with any claim, action, suit or
proceeding relating to any action taken or failure to act
under or in connection with the Plan to the maximum extent
provided for under Stillwater National's Certificate of
Incorporation or Bylaws with respect to the indemnification of
Directors. Stillwater National nor any of its officers,
directors, Affiliates, or agents shall be liable to the
Executive, his Beneficiary or any other person for any claim,
loss, liability or expense incurred in connection with the
Plan, unless attributable to fraud or willful misconduct on
the part of such person.
(c) Costs and Statements. Stillwater National shall pay the
expenses of administration and the costs of employing
employment counsel and accountants with respect to the Plan or
its administration, including without limitation, the
administrative and other costs of the Trust. Stillwater
National shall furnish individual annual statements of accrued
benefits to the Executive or current Beneficiary, in such form
as determined by Stillwater National or as required by law.
(d) Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of
handling the disposition of his or her property, Stillwater
National may pay such benefit to the guardian, legal
representative, or person having the care or custody of such
minor, incompetent person, or incapable person. Stillwater
National may require proof of incompetency, minority, or
guardianship as it may deem appropriate prior to the
distribution of the benefit. Such distribution shall
completely discharge Stillwater National from all liability
with respect to such benefit.
6. TRUST. Prior to or simultaneously with any Transaction and within ten
calendar days of any other Change in Control, unless and to the extent the
Executive has previously provided a written release of any claims under this
Plan, Stillwater National shall establish a valid trust under the law of the
State of Oklahoma with an independent trustee that has or may be granted
corporate trust powers under Oklahoma law, deposit in such trust an amount equal
to 200% of the Plan Account balance immediately prior to the establishment of
the Trust, and provide the Trustee of the Trust with a written direction to
invest such amount in securities supported by the full faith and credit of the
United States except for amounts held in one or more deposit accounts as needed
on a short-term basis to pay amounts due to the Executive or his Beneficiary as
provided below, to hold said amount and any investment return thereon in a
segregated account, and to pay such amounts due to the Executive (or upon his
death, his Beneficiary) under this Plan. Upon the final payment of all amounts
due to the Executive or his Beneficiary under this Plan, the Trustee of the
Trust shall pay to Stillwater National the entire balance, if any, remaining in
the Trust. Payments from the Trust to the Executive shall be considered payments
made by Stillwater National for purposes of this Agreement. Payment of such
amounts to the Executive from the Trust, however, shall not relieve Stillwater
National from any obligation to pay amounts in excess of those paid from the
Trust, or from any obligation to take actions or refrain from taking actions
otherwise required by this Plan. In no event may the Trust invest in securities
or obligations issued by Stillwater National or any of its Affiliates or
successors. Stillwater National shall have no right or power to direct the
Trustee to return or divert any of the Trust assets before all payments of
benefits have been made. Stillwater National shall pay all fees and expenses of
the Trust, including, without limitation, Trustee fees, and all income taxes on
earnings of the Trust from its assets outside of the Trust. In the event that
Stillwater National shall not provide the earnings rate referred to under
Section 3(c) hereof, the Trustee shall calculate such rate based upon reports of
condition furnished by Stillwater National to its primary federal banking
regulator or upon other publicly available reports. The Executive's and his
Beneficiary's rights under this Plan shall be those of a general, unsecured
creditor, he shall have no claim against the assets of the Trust, and the assets
of the Trust shall be considered general assets of Stillwater National subject
to the claims of creditors of Stillwater National in the event of its bankruptcy
or insolvency.
7. NO EFFECT ON PROFIT SHARING PLAN. This Plan has no effect upon benefits
under or the terms of the Profit Sharing Plan.
5
8. FORFEITURE OR SUSPENSION OF PLAN BENEFITS.
(a) In General. The Executive shall completely forfeit any and all
rights to any and all benefits under this Plan upon his
termination for Cause or his voluntary termination without
Good Reason.
(b) Competition. Regardless of anything herein to the contrary,
except in the case of a termination of employment by
Stillwater National without Just Cause, a termination of
employment by the Executive with Good Reason, or with the
permission of Stillwater National, if the Executive shall,
during the two years immediately following the Executive's
termination of employment, serve as an officer or director or
employee of any bank holding company, bank, savings
association, savings and loan holding company, or mortgage
company (any of which, a "Financial Institution") which
Financial Institution offers products or services competing
with those offered by the Bank from offices in any county in
the Primary Market Area, or shall interfere with the
relationship of Stillwater National and any of its employees,
agents, or representatives, then the Committee shall direct
that any unpaid balance of any payments to the Executive under
this Agreement be suspended, and shall thereupon notify the
Executive of such suspension, in writing. Thereupon, if the
Committee shall determine that such behavior by the executive
exists at any time after a period of one month following
notification of such suspension, all rights of the Executive
and his Beneficiary under this Plan, including rights to any
and all further payments hereunder, shall thereupon terminate.
(c) Certain Regulatory Events. If the Executive is removed and/or
permanently prohibited from participating in the conduct of
Stillwater National's affairs by an order issued under
Sections 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance
Act ("FDIA") (12 U.S.C. xx.xx. 1818(e)(4) and (g)(1)), all
obligations of Stillwater National under this Agreement shall
terminate as of the effective date of the order, but vested
rights of the parties shall not be affected. If Stillwater
National is in default (as defined in Section 3(x)(1) of
FDIA), all obligations of Stillwater National under this
Agreement shall terminate as of the date of default, but
vested rights of the parties shall not be affected. If a
notice served under Sections 8(e)(3) or (g)(1) of the FDIA (12
U.S.C. xx.xx. 1818(e)(3) and (g)(1)) suspends and/or
temporarily prohibits the Executive from participating in the
conduct of Stillwater National's affairs, Stillwater
National's obligations under this Agreement shall be suspended
as of the date of such service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed,
Stillwater National may, in its discretion, (i) pay the
Executive all or part of the contributions or payments
withheld while its contract obligations were suspended, and
(ii) reinstate (in whole or in part) any of its obligations
which were suspended.
9. TERMINATION. Stillwater National may terminate this Plan only upon
termination of the Profit Sharing Plan or with the Agreement of the Executive.
No termination of the Plan shall directly or indirectly reduce the balance of
the Plan Account as of the effective date of such termination. Upon termination
of the Plan, distribution of the Plan Account in accordance with Section amounts
credited to such account shall be made to the Executive or his or her
Beneficiary in accordance with Section 4. No contributions will be credited to
the Plan Account after termination of the Plan, but earnings will continue to be
credited to the Plan Account until all amounts are distributed to the Executive
or his Beneficiary.
10. GOVERNING LAW. The Plan shall be governed by and construed in
accordance with the laws of the State of Oklahoma, except to the extent that
federal law shall be deemed to apply.
11. SUCCESSORS AND ASSIGNS. The Plan shall be binding upon Stillwater
National's successors
12. AMENDMENTS. No amendments or additions to this Plan shall be binding
unless made in writing and signed by all of the parties, except as herein
otherwise specifically provided.
13. 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.
14. HEADINGS. Headings contained herein are for convenience of reference
only.
15. AMERICAN JOBS CREATION ACT COMPLIANCE. The parties hereto intend that
this Plan shall comply in all respects with Section 409A of the Internal Revenue
Code as added by the American Jobs Creation Act of 2004 and related Internal
Revenue Service regulations and procedures (together ss.409A"). Accordingly, any
term of this Plan that conflicts with ss.409A shall be amended to the extent
necessary to remove such conflict (or shall be removed if necessary to comply
with ss.409A) and any provision required by ss.409A shall be added, effective as
of the date of this Agreement. It is the intent of the parties hereto that this
Plan will be restated to reflect any such amendments or additions within a
reasonable period following the publication of applicable final regulations and
procedures by the Internal Revenue Service. This section shall not be deemed to
amend Plans entered prior to the date hereof.
6
16. ENTIRE AGREEMENT. This Agreement, together with any understanding or
modifications thereof as agreed to in writing by the parties, shall constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof, other than written agreements with respect to specific plans, programs
or arrangements described in Sections 5 and 6.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands the day and
year first above-written.
XXXXX X. XXXXXX, EXECUTIVE
/s/ Xxxxx X. Xxxxxx
-----------------------------------
STILLWATER NATIONAL BANK
AND TRUST COMPANY
By /s/ Xxxx Xxxxx
--------------------------------
President and CEO
7
