EXHIBIT 10.2
CHANGE IN CONTROL AGREEMENT
AMENDED AND RESTATED AS OF JUNE 4, 2002
This CHANGE IN CONTROL AGREEMENT ("Agreement"), effective as of January
1, 2000 (the "Effective Date"), by and between Southwest Bancorporation of
Texas, Inc., a Texas corporation (the "Company"), and Xxxx X. Xxxxxx, Xx. (the
"Executive");
W I T N E S S E T H:
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WHEREAS, the Executive is a senior executive of the Company's
wholly-owned subsidiary, Southwest Bank of Texas National Association (the
"Bank") and has made and/or is expected to make or continue to make major
contributions to the profitability, growth and financial strength of the Company
and the Bank;
WHEREAS, references herein to the Executive's employment by the Company
shall also mean his or her employment by the Bank, and references herein to
payments of any nature to be made by the Company to the Executive shall mean
that either the Company will make such payments or it will cause the Bank to
make such payments to the Executive;
WHEREAS, the Company desires to assure itself of both present and
future continuity of management in the event of a Change in Control (as defined
hereafter) and desires to establish certain minimum compensation rights of its
key senior executives, including the Executive, applicable in the event of a
Change in Control;
WHEREAS, the Company wishes to ensure that its senior executives are
not practically disabled from discharging their duties upon a Change in Control;
WHEREAS, this Agreement is not intended to alter materially the
compensation and benefits which the Executive could reasonably expect to receive
from the Company or the Bank absent a Change in Control and, accordingly,
although effective and binding as of the date hereof, this Agreement shall
become operative only upon the occurrence of a Change of Control; and
WHEREAS, the Executive is willing to render services to the Company and
the Bank on the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, the Company and the Executive agree as follows:
1. OPERATION OF AGREEMENT.
a) This Agreement shall be effective and binding as of the
Effective Date, but, anything in this Agreement to the contrary
notwithstanding, this Agreement shall not be operative unless and until
there shall have occurred a Change in Control. For purposes of this
Agreement, a "Change in Control" shall have occurred if at any time
during the Term (as that term is hereafter defined) any of the
following events shall occur:
(i) The Company is merged, consolidated or
reorganized into or with or sells all or substantially all of
its assets to another corporation or other legal person, and
as a result of such merger, consolidation, reorganization or
sale (i) less than a majority of the combined voting power of
the then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate
by the holders of Voting Stock (as that term is hereinafter
defined) of the Company immediately prior to such transaction
and (ii) it is intended that persons serving as Directors of
the Company immediately prior to the transaction will
constitute none of or less than a majority of the Directors of
the other corporation or legal person after consummation of
the transaction; or
(ii) If during any one (1) year period, individuals
who at the beginning of any such period constitute the
Directors of the Company cease for any reason to constitute at
least a majority thereof, unless the election, or the
nomination for election by the Company's shareholders, of each
Director of the Company first elected during such period was
approved by a vote of at least two-thirds of the Directors of
the Company then still in office who were Directors of the
Company at the beginning of any such period.
(b) Upon occurrence of a Change in Control at any time during
the Term, this Agreement shall become immediately operative.
(c) The period during which this Agreement shall be in effect
(the "Term") shall commence as of the date hereof and shall expire as
of the later of (i) the close of business on December 31, 2002 and (ii)
the expiration of the Period of Employment (as that term is hereinafter
defined); provided, however, that (A) commencing on December 31, 2002
and the last day of each of the Company's Fiscal Years thereafter, the
Term of this Agreement shall automatically be extended for an
additional year unless, not later than the last day of the immediately
preceding September, the Company or the Executive shall have given
notice that it or he, as the case may be, does not wish to have the
Term extended and (B) subject to Section 9 hereof, if, prior to a
Change in Control, the Executive ceases for any reason to be an
employee of the Company, thereupon the Term shall be deemed to have
expired and this Agreement shall immediately terminate and be of no
further effect.
2. EMPLOYMENT; PERIOD OF EMPLOYMENT.
(a) Subject to the terms and conditions of this Agreement,
upon the occurrence of a Change in Control, the Company shall continue
the Executive in its employ and the Executive shall remain in the
employ of the Company for the period set forth in Section 2(b) hereof
(the "Period of Employment"), in the position and with substantially
the same duties and responsibilities that he had immediately prior to
the Change in Control, or to which the Company and the Executive may
hereafter mutually agree in writing. Throughout the Period of
Employment, the Executive shall devote
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substantially all of his time during normal business hours (subject to
vacations, sick leave and other absences in accordance with the
policies of the Company as in effect for senior executives immediately
prior to the Change in Control) to the business and affairs of the
Company, but nothing in this Agreement shall preclude the Executive
from devoting reasonable periods of time during normal business hours
to (i) serving as a director, trustee or member of or participant in
any organization or business so long as such activity would not
constitute Competitive Activity (as that term is hereafter defined) if
conducted by the Executive after the Executive's Termination Date (as
that term is hereafter defined), (ii) engaging in charitable and
community activities, or (iii) managing his personal investments.
(b) The Period of Employment shall commence on the date of an
occurrence of a Change in Control and, subject only to the provisions
of Section 4 hereof, shall continue until the earlier of (i) the
expiration of the third anniversary of the occurrence of the Change in
Control or (ii) the Executive's death; provided, however, that
commencing on each anniversary of the Change of Control, the Period of
Employment shall automatically be extended for an additional year
unless, not later than 90 calendar days prior to such anniversary date,
the Company or the Executive shall have given notice that it or he or
she, as the case may be, does not wish to have the Term extended.
3. COMPENSATION DURING PERIOD OF EMPLOYMENT.
(a) Upon the occurrence of a Change in Control, the Executive
shall receive during the Period of Employment (i) annual base salary at
a rate not less than the Executive's annual fixed or base compensation
payable monthly or otherwise as in effect for senior executives of the
Company immediately prior to the occurrence of a Change in Control or
such higher rate as may be determined from time to time by the Board of
Directors of the Company (the "Board") or the Compensation Committee
thereof (the "Committee") (which base salary at such rate is herein
referred to as "Base Pay") and (ii) an annual cash bonus in an amount
determined for the Executive in accordance with the Company's incentive
compensation plan or plans in effect at the time of the Change in
Control or in accordance with an annual bonus, incentive,
profit-sharing, performance, discretionary pay or similar policy, plan,
program or arrangement of the Company or any successor thereto
providing benefits at least as great as the benefits payable thereunder
prior to the Change in Control ("Incentive Pay"); provided, however,
that nothing herein shall preclude a change in the mix between Base Pay
and Incentive Pay so long as the aggregate cash compensation received
by the Executive in any one calendar year is not reduced in connection
therewith or as a result thereof and, provided further, however, that
in no event shall any increase in the Executive's aggregate cash
compensation or any portion thereof in any way diminish any other
obligation of the Company under this Agreement.
(b) For his service pursuant to Section 2(a) hereof, during
the Period of Employment the Executive shall, if and on the same basis
as he participated therein immediately prior to the Change in Control,
be a full participant in, and shall be entitled to the perquisites,
benefits and service credit for benefits as provided under any and all
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employee retirement income and welfare benefit policies, plans,
programs or arrangements in which senior executives of the Company
participate, including without limitation any stock option, stock
purchase, stock appreciation, savings, pension, supplemental executive
retirement or other retirement income or welfare benefit, deferred
compensation, incentive compensation, group and/or executive life,
accident, health, dental, medical/hospital or other insurance (whether
funded by actual insurance or self-insured by the Company), disability,
salary continuation, expense reimbursement and other employee benefit
policies, plans, programs or arrangements that may now exist or any
equivalent successor policies, plans, programs or arrangements that may
be adopted hereafter by the Company providing perquisites, benefits and
service credit for benefits at least as great as are payable thereunder
prior to a Change in Control (collectively, "Employee Benefits");
provided, however, that the Executive's rights thereunder shall be
governed by the terms thereof and shall not be enlarged hereunder or
otherwise affected hereby. Subject to the proviso in the immediately
preceding sentence, if and to the extent such perquisites, benefits or
service credit for benefits are not payable or provided under any such
policy, plan, program or arrangement as a result of the amendment or
termination thereof, then the Company shall itself pay or provide
therefor. Nothing in this Agreement shall preclude improvement or
enhancement of any such Employee Benefits, provided that no such
improvement shall in any way diminish any other obligation of the
Company under this Agreement.
(c) The Company has determined that the amounts payable
pursuant to this Section 3 constitute reasonable compensation.
Accordingly, notwithstanding any other provision hereof, unless such
action would be expressly prohibited by applicable law, if any amount
paid or payable pursuant to this Section 3 is subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code"), the Company will pay to the Executive an
additional amount in cash equal to the amount necessary to cause the
aggregate remuneration received by the Executive under this Section 3,
including such additional cash payment (net of all federal, state and
local income taxes and all taxes payable as the result of the
application of Sections 280G and 4999 of the Code) to be equal to the
aggregate remuneration the Executive would have received under this
Section 3, excluding such additional payment (net of all federal, state
and local income taxes), as if Sections 280G and 4999 of the Code (and
any successor provisions thereto) had not been enacted into law.
4. TERMINATION FOLLOWING A CHANGE IN CONTROL.
(a) In the event of the occurrence of a Change in Control,
this Agreement may be terminated by the Company during the Period of
Employment only upon the occurrence of one or more of the following
events:
(i) If the Executive is unable to perform the
essential functions of his job (with or without reasonable
accommodation) because he has become permanently disabled
within the meaning of, and actually begins to receive
disability benefits pursuant to, the long-term disability plan
in effect for senior
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executives or, if applicable, employees of the Company
immediately prior to the Change in Control; or
(ii) For "Cause", which for purposes of this
Agreement shall mean that, prior to any termination pursuant
to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct
in connection with his duties or in the course of his
employment with the Company;
(B) an act of fraud, embezzlement or theft
in connection with his duties or in the course of his
employment with the Company;
(C) intentional wrongful damage to property
of the Company;
(D) intentional wrongful disclosure of
secret processes or confidential information of the
Company;
(E) intentional wrongful engagement in any
Competitive Activity; or
(F) an act leading to a conviction of a
felony or a misdemeanor involving moral turpitude.
For purposes of this Agreement, no act, or failure to act, on
the part of the Executive shall be deemed "intentional" if it was due
primarily to an error in judgment or negligence, but shall be deemed
"intentional" only if done, or omitted to be done, by the Executive not
in good faith and without reasonable belief that his action or omission
was in the best interest of the Company. Notwithstanding the foregoing,
the Executive shall not be deemed to have been terminated for "Cause"
hereunder unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote
of not less than three-quarters of the Board then in office at a
meeting of the Board called and held for such purpose (after reasonable
notice to the Executive and an opportunity for the Executive, together
with his counsel, to be heard before the Board), finding that, in the
good faith opinion of the Board, the Executive had committed an act set
forth above in this Section 4(a)(ii) and specifying the particulars
thereof in detail. Nothing herein shall limit the right of the
Executive or his beneficiaries to contest the validity or propriety of
any such determination.
(b) in the event of the occurrence of a Change in Control,
this Agreement may be terminated by the Executive during the Period of
Employment with the right to benefits as provided in Section 5 hereof
upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment
of the Executive for any reason other than for Cause or as a
result of the death of the
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Executive or by reason of the Executive's disability and the
actual receipt of disability benefits in accordance with
Section 4(a)(i) hereof; or
(ii) Termination by the Executive of his employment
with the Company within three years after the Change in
Control upon the occurrence of any of the following events:
(A) A reduction in the aggregate of the
Executive's Base Pay and Incentive Pay received from
the Company, or the termination of the Executive's
rights to any Employee Benefits to which he was
entitled immediately prior to the Change in Control or
a reduction in scope or value thereof without the
prior written consent of the Executive, any of which
is not remedied within 10 calendar days after receipt
by the Company of written notice from the Executive of
such change, reduction or termination, as the case may
be;
(B) The liquidation, dissolution, merger,
consolidation or reorganization of the Company or
transfer of all or a significant portion of its
business and/or assets, unless the successor or
successors (by liquidation, merger, consolidation,
reorganization or otherwise) to which all or a
significant portion of its business and/or assets have
been transferred (directly or by operation of law)
shall have assumed all duties and obligations of the
Company under this Agreement pursuant to Section 11
hereof;
(C) The Company requires the Executive to
have his principal location of work changed to any
location which is in excess of 50 miles from the
location thereof immediately prior to the Change of
Control or to travel away from his office in the
course of discharging his responsibilities or duties
hereunder significantly more (in terms of either
consecutive days or aggregate days in any calendar
year) than was required of him prior to the Change of
Control without, in either case, his prior consent;
(D) Any material breach of this Agreement by
the Company or any successor thereto; or
(E) The removal of the Executive as a
Director of the Company (or any successor thereto), if
the Executive shall have been a Director of the
Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a)
hereof or by the Executive pursuant to Section 4(b) hereof shall not
affect any rights which the Executive may have pursuant to any
agreement, policy, plan, program or arrangement of the Company
providing Employee Benefits, which rights shall be governed by the
terms thereof. If this Agreement or the employment of the Executive is
terminated under circumstances in which the Executive is not entitled
to any payments under Sections 3 or
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5 hereof, the Executive shall have no further obligation or liability
to the Company hereunder with respect to his prior or any future
employment by the Company.
5. SEVERANCE COMPENSATION.
(a) If, following the occurrence of a Change in Control, the
Company shall terminate the Executive's employment during the Period of
Employment other than pursuant to Section 4(a) hereof, or if the
Executive shall terminate his employment pursuant to Section 4(b)
hereof, the Company shall pay to the Executive the amount specified in
Section 5(a)(i) hereof within ten business days after the date (the
"Termination Date") that the Executive's employment is terminated (the
effective date of which shall be the date of termination, or such other
date that may be specified by the Executive if the termination is
pursuant to Section 4(b) hereof):
(i) In lieu of any further payments to the Executive
for periods subsequent to the Termination Date, but without
affecting the rights of the Executive referred to in Section
5(b) hereof, a lump sum payment (the "Severance Payment") in
an amount equal to the present value (using a discount rate
required to be utilized for purposes of computations under
Section 280G of the Code or any successor provision thereto,
or if no such rate is so required to be used, a rate equal to
the then-applicable interest rate prescribed by the Pension
Benefit Guaranty Corporation for benefit valuations in
connection with non-multiemployer pension plan terminations
assuming the immediate commencement of benefit payments (the
"Discount Rate")) of the sum of (A) the aggregate Base Pay (at
the highest rate in effect during the Term prior to the
Termination Date) for three years, plus (B) the aggregate
Incentive Pay for three years (based upon the greatest amount
of Incentive Pay paid or payable to the Executive for any year
during the three calendar years preceding the year in which
the Termination Date occurs); provided, however, that the
Severance Payment shall be reduced so that the aggregate
"present value" (as determined under Section 280G of the Code
or any successor provision thereto) of the amount otherwise
payable hereunder, when added to the "present value" (as
determined under Section 280G of the Code or any successor
provision thereto) of any other "parachute payments" (as that
term is defined in Section 280G of the Code (without regard to
Section 280G(b)(2)(A)(ii) thereof) or any successor provision
thereto) from the Company shall not exceed an amount (the
"299% Amount") equal to 299% of the Executive's "base amount"
(as that term is defined in Section 280G of the Code or any
successor provision thereto) so that no portion of such
amounts received by the Executive shall be subject to the
excise tax imposed by Section 4999 of the Code if and only if
such reduction produces a better net after-tax position for
the Executive (taking into account any applicable excise tax
under Section 4999 of the Code and any other applicable taxes)
than the full payment of the Severance Payments and all other
payments and benefits provided for in this Agreement or
otherwise would have produced.
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(ii) The determination of whether any amount
otherwise payable under Section 5(a)(i) causes the 299% Amount
to be exceeded shall be made, if requested by the Executive or
the Company, by tax counsel selected by the Company and
reasonably acceptable to the Executive. The costs of obtaining
such determination shall be borne by the Company. The fact
that the Executive shall have his right to the Severance
Payment reduced as a result of the existence of the
limitations contained in this Section 5(a) shall not limit or
otherwise affect any rights of the Executive to any Employee
Benefit, or other right arising other than pursuant to this
Agreement. Without limiting the generality of the foregoing,
upon the Executive's termination of employment as provided in
this Section 5, the Company shall pay over to him all vested
benefits to which he is entitled under and in accordance with
the terms of the Company's employee savings, stock ownership,
supplemental executive retirement and similar Plans in the
event such payments are not otherwise made in accordance with
the terms of such plans.
(iii) Except to the extent that the payments or
benefits pursuant to this Section 5(a)(iii) would result in a
reduction of the amount of the Severance Payment because they
would exceed the 299% Amount, (A) for the remainder of the
Period of Employment the Company shall arrange to provide the
Executive with Employee Benefits substantially similar to
those which the Executive was receiving or entitled to receive
immediately prior to the Termination Date (and if and to the
extent that such benefits shall not or cannot be paid or
provided under any policy, plan, program or arrangement of the
Company solely due to the fact that the Executive is no longer
an officer or employee of the Company, then the Company shall
itself pay or provide for the payment to the Executive, his
dependents and beneficiaries, such Employee Benefits) and (B)
without limiting the generality of the foregoing, the
remainder of the Period of Employment shall be considered
service with the Company for the purpose of service credits
under the Company's retirement income, supplemental executive
retirement and other benefit plans of the Company applicable
to the Executive or his beneficiaries immediately prior to the
Termination Date. Without otherwise limiting the purposes or
effect of Section 6 hereof, Employee Benefits payable to the
Executive pursuant to this Section 5(a)(iii) by reason of any
"welfare benefit plan" of the Company (as the term "welfare
benefit plan" is defined in Section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended) shall be
reduced to the extent comparable welfare benefits are actually
received by the Executive from another employer during such
period following the Executive's Termination Date until the
expiration of the Period of Employment.
(iv) Notwithstanding any provision of the Section
5(a) to the contrary, in the event the benefits intended to be
provided to the Executive pursuant to Section 5(a)(iii) hereof
are required to be reduced in whole or in part because the
value of such Employee Benefits, when added to the amount of
the Severance Payment under Section 5(a)(i), would exceed 299%
Amount, the Executive shall have the option to elect to
receive, in lieu of all or a portion of the Severance
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Payment provided in Section 5(a)(i) hereof, one or more
Employee Benefits, provided that (A) prior to the receipt of
any payment under Section 5(a)(i) hereof, the Executive
Benefit or Employee Benefits so elected to be received, and
(B) in no event shall the "aggregate present value of the
payments in the nature of "compensation" (as that phrase is
used in Section 280G of the Code) received by the Executive as
a result of the receipt of such Employee Benefits, when added
to the remaining portion of the Severance Payment, if any, to
be received by the Executive, exceed the 299% Amount.
(v) In addition to all other compensation due to the
Executive, the following shall occur immediately following the
occurrence of a Change in Control:
(A) all Company stock options held by the
Executive immediately prior to a Change in Control,
but excluding the Company stock option granted to the
Executive with respect to 50,000 shares pursuant to
the Southwest Bancorporation of Texas, Inc. 1996
Stock Option Plan on June 4, 2002, shall become fully
exercisable, regardless of whether the vesting
conditions set forth in the relevant stock option
agreements have been satisfied in full; and
(B) all restrictions on all restricted
Company stock grants to the Executive outstanding
immediately prior to a Change in Control, but
excluding the restricted Company stock grant to the
Executive with respect to 50,000 Restricted Shares
made pursuant to the Southwest Bancorporation of
Texas, Inc. Restricted Stock Plan on June 4, 2002,
shall be removed and the stock shall be freely
transferable, regardless of whether the conditions
set forth in the relevant restricted stock agreements
have been satisfied in full.
(b) Upon written notice given by the Executive to the Company prior to
the receipt of any payment pursuant to Section 5(a) hereof, the Executive, at
his sole option, without reduction to reflect the present value of such amounts
as aforesaid, may elect to have all or any of the Severance Payment payable
pursuant to Section 5(a)(i) hereof paid to him on a quarterly or monthly basis
during the remainder of the Period of Employment.
(c) There shall be no right of set-off or counterclaim in respect of
any claim, debt or obligation against any payment to or benefit for the
Executive provided for in this Agreement.
(d) Without limiting the rights of the Executive at law or in equity,
if the Company fails to make any payment required to be made hereunder on a
timely basis, the Company shall pay interest on the amount thereof at an
annualized rate of interest equal to the then-applicable Discount Rate or, if
lesser, the highest rate allowed by applicable usury laws.
6. NO MITIGATION OBLIGATION. The Company hereby acknowledges that it
will be difficult, and may be impossible, for the Executive to find reasonably
comparable employment
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following the Termination Date and that the noncompetition covenant contained in
Section 7 hereof will further limit the employment opportunities for the
Executive. Accordingly, the parties hereto expressly agree that the payment of
the severance compensation by the Company to the Executive in accordance with
the terms of this Agreement will be liquidated damages, and that the Executive
shall not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise, nor shall any profits,
income, earnings or other benefits from any source whatsoever create any
mitigation, offset, reduction or any other obligation on the part of the
Executive hereunder or otherwise, except as expressly provided in Section
5(a)(iii) hereof.
7. COMPETITIVE ACTIVITY. During a period ending one year following the
Termination Date, if the Executive shall have received or shall be receiving
benefits under Section 5(a) hereof, the Executive shall not, without the prior
written consent by the Company, directly or indirectly engage in the business of
commercial banking in competition with the business of the Company within Xxxxxx
County, Fort Bend County and Xxxxxxxxxx County, Texas and any other geographical
area served by the Company during the twelve (12) month period immediately
preceding termination of employment nor will the Executive engage, within this
geographical area, in the design, development, distribution, or sale of a
product or service in competition with any product or service being marketed or
planned by the Company at such time, the plans, designs or specifications of
which have been revealed to the Executive. The Executive acknowledges that these
limited prohibitions are reasonable as to time, geographical area and scope of
activities to be restrained and that the limited prohibitions do not impose a
greater restraint than is necessary to protect the Company's goodwill,
proprietary information and other business interests. "Competitive Activity"
shall mean the prohibitions set forth above in this Section 7, but shall not
include (i) the mere ownership of securities in any such enterprise and exercise
of rights appurtenant thereto or (ii) participation in management of any such
enterprise or business operation thereof other than in connection with the
competitive operation of such enterprise.
8. LEGAL FEES AND EXPENSES. In the event of a breach of this Agreement
by the Company, it is the intent of the Company that the Executive not be
required to incur the expenses associated with the enforcement of his rights
under this Agreement by litigation or other legal action because the cost and
expense thereof would substantially detract from the benefits intended to be
extended to the Executive hereunder. Accordingly, if the Company fails to comply
with any of its obligations under this Agreement or in the event that the
Company or any other person takes any action to declare this Agreement void or
unenforceable, or institutes any litigation designed to deny, or to recover
from, the Executive the benefits intended to be provided to the Executive
hereunder, the Company irrevocably authorizes the Executive from time to time to
retain counsel of his choice, at the expense of the Company as hereafter
provided, to represent the Executive in connection with the initiation or
defense of any litigation or other legal action, whether by or against the
Company or any Director, officer, shareholder or other person affiliated with
the Company, in any jurisdiction. Notwithstanding any existing or prior
attorney-client relationship between the Company and such counsel, the Company
irrevocably consents to the Executive's entering into an attorney-client
relationship with such counsel (other than Xxxxxx & Xxxxxx L.L.P.), and in that
connection the Company and the Executive agree that a confidential relationship
shall exist between the Executive and such counsel. The Company
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shall pay or cause to be paid and shall be solely responsible for any and all
attorneys' and related fees and expenses incurred by the Executive as a result
of the Company's failure to perform this Agreement or any provision thereof or
as a result of the Company or any person contesting the validity or
enforceability of this Agreement or any provision thereof as aforesaid. If the
Company should prevail in any litigation regarding this Agreement, however, the
Company shall not be responsible for any attorneys and related fees and expenses
incurred by Employee in connection with such litigation.
9. EMPLOYMENT RIGHTS. Nothing expressed or implied in this Agreement
shall create any right or duty on the part of the Company or the Executive to
have the Executive remain in the employment of the Company prior to any Change
in Control; provided, however, that any termination of employment of the
Executive or removal of the Executive as an Officer of the Company following the
commencement of any discussion with a third person that ultimately results in a
Change in Control shall be deemed to be a termination or removal of the
Executive after a Change in Control for purposes of this Agreement.
10. WITHHOLDING OF TAXES. The Company may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or government regulation or ruling.
11. SUCCESSORS AND BINDING AGREEMENT.
(a) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganization or
otherwise) to all or substantially all of the business and/or assets of
the Company to execute an agreement pursuant to which the successor
expressly assumes all of the liabilities and obligations of the Company
hereunder and agrees to perform this Agreement in the same manner and
to the same extent the Company would be required to perform if no such
succession had taken place. This Agreement shall be binding upon and
inure to the benefit of the Company and any successor to the Company,
including without limitation any persons acquiring directly or
indirectly all or substantially all of the business and/or assets of
the Company whether by purchase, merger, consolidation, reorganization
or otherwise (and such successor shall thereafter be deemed the
"company" for the purposes of this Agreement), but shall not otherwise
be assignable, transferable or delegable by the Company.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees and/or
legatees.
(c) This Agreement is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign,
transfer or delegate this Agreement or any rights or obligations
hereunder except as expressly provided in Section 11(a) hereof. Without
limiting the generality of the foregoing, the Executive's right to
receive payments hereunder shall not be assignable, transferable or
delegable, whether by pledge, creation of a security interest or
otherwise, other than by a transfer by the Executive's will or by the
laws of descent and distribution and, in the event of any attempted
assignment
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or transfer contrary to this Section 11(c), the Company shall have no
liability to pay any amount so attempted to be assigned, transferred or
delegated.
(d) The Company and the Executive recognize that each party
will have no adequate remedy at law for breach by the other of any of
the agreements contained herein and, in the event of any such breach,
the Company and the Executive hereby agree and consent that the other
shall be entitled to a decree of specific performance, mandamus or
other appropriate remedy to enforce performance of this Agreement.
12. NOTICE. For all purposes of this Agreement, all communications
provided for herein shall be in writing and shall be deemed to have been duly
given when delivered or three business days after having been mailed by United
States registered or certified mail, return receipt requested, postage prepaid,
addressed to the Company (to the attention of the Secretary of the Company) at
its principal executive office and to the Executive at his principal residence,
or to such other address as any party may have furnished to the other in writing
and in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
13. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Texas, without giving effect to the principles of conflict of laws of such
State.
14. VALIDITY. If any provision of this Agreement or the application of
any provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or circumstances shall not be
affected, and the provision so held to be invalid, unenforceable or otherwise
illegal shall be reformed to the extent (and only to the extent) necessary to
make it enforceable, valid and legal.
15. MISCELLANEOUS. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto or compliance with
any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, expressed or implied with respect to the subject matter
hereof have been made by either party which are not set forth expressly in this
Agreement.
16. PRIOR AGREEMENTS. This Agreement is voluntarily entered into and
supersedes and takes the place of any prior change in control, severance or
employment agreements between the parties hereto. The parties hereto expressly
agree and hereby declare that any and all prior change in control, severance or
employment agreements between the parties are terminated and of no force or
effect.
17. 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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
SOUTHWEST BANCORPORATION OF TEXAS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Chairman of the Board
EXECUTIVE:
/s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------------
Xxxx X. Xxxxxx, Xx.
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