EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made by and between
SOUTHWEST BANCORPORATION OF TEXAS, INC. ("Company") and Xxxx X. Xxxxxx
("Executive").
W I T N E S E T H:
WHEREAS, Company is desirous of employing Executive as a senior
executive of the Company's wholly owned subsidiary, SOUTHWEST BANK OF TEXAS
NATIONAL ASSOCIATION (the "Bank"), on the terms and conditions, and for the
consideration, hereinafter set forth and Executive is desirous of being
employed by Company on such terms and conditions and for such consideration;
WHEREAS, references herein to Executive's employment by Company
shall also mean his employment by Bank, and references herein to payments of
any nature to be made by Company to Executive shall mean that either Company
will make such payments or it will cause Bank to make such payments to
Executive;
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, Company and Executive agree as
follows:
ARTICLE 1
EMPLOYMENT AND DUTIES
1.1 EMPLOYMENT; EFFECTIVE DATE. Company agrees to employ Executive
and Executive agrees to be employed by Company, beginning as of the Effective
Date (as hereinafter defined) and continuing for the period of time set forth
in Article 2 of this Agreement, subject to the terms and conditions of this
Agreement. For purposes of this Agreement, the "Effective Date" shall be the
"Effective Time" as defined in the Agreement and Plan of Merger dated October
16, 2000, between Company and Citizens Bankers, Inc. (the "Merger Agreement").
1.2 POSITION. From and after the Effective Date, Company shall
employ Executive in the capacity of Chief Executive Officer, Baytown Region
of Bank, or in such other positions as the parties mutually may agree.
1.3 DUTIES AND SERVICES. Executive agrees to serve as a full-time
employee of the Company in the capacities referred to in paragraph 1.2 and to
perform diligently and to the best of his abilities the duties and services
appertaining to such offices, as well as such additional duties and services
appropriate to such offices which the parties mutually may agree upon from
time to time. Executive's employment shall also be subject to the policies
maintained and established by Company, as the same may be amended from time
to time.
1.4 OTHER INTERESTS. Executive agrees, during the period of his
employment by Company, to devote substantially all of his time, energy and
best efforts during normal business hours (with allowances for vacation and
sick leave) to the business and affairs of Company and Bank and not to
engage, directly or indirectly, in any other business or businesses, whether
or not similar to that of Company, except with the consent of the Board of
Directors of Company (the "Board of Directors"). The foregoing
notwithstanding, the parties recognize and agree that Executive may engage in
passive personal investments and other passive business activities that do
not conflict with the business and affairs of Company or interfere with
Executive's performance of his duties hereunder.
1.5 DUTY OF LOYALTY. Executive acknowledges and agrees that
Executive owes a fiduciary duty of loyalty, fidelity and allegiance to act at
all times in the best interests of Company and to do no act which would
injure the business, interests, or reputation of Company or any of its
subsidiaries or affiliates. In keeping with these duties, Executive shall
make full disclosure to Company of all business opportunities pertaining to
Company's business and shall not appropriate for Executive's own benefit
business opportunities concerning the subject matter of the fiduciary
relationship.
ARTICLE 2
TERM AND TERMINATION OF EMPLOYMENT
2.1 TERM. Unless sooner terminated pursuant to other provisions
hereof, Company agrees to employ Executive for the period beginning on the
Effective Date and ending at the close of business on December 31, 2003.
2.2 COMPANY'S RIGHT TO TERMINATE. Notwithstanding the provisions of
paragraph 2.1, Company shall have the right to terminate Executive's
employment under this Agreement at any time for any of the following reasons:
(i) upon Executive's death;
(ii) if 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 executives or, if applicable, employees of
the Company at that time;
(iii) for cause, which for purposes of this Agreement shall
mean Executive (A) has engaged in gross negligence or willful
misconduct in the performance of the duties required of him hereunder,
(B) has been convicted of a misdemeanor involving moral turpitude or
convicted of a felony, (C) has willfully refused without proper legal
reason to perform the duties and responsibilities required of him
hereunder (continuing three business days after receipt of written
notice of need to cure), (D) has breached any material written
corporate policy or code of conduct established by Company, or (E) has
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willfully engaged in conduct that he knows or should know is materially
injurious to Company or any of its affiliates;
(iv) for Executive's breach of any provision of this Agreement
which, if correctable, remains uncorrected for 10 days following
written notice to Executive by Company of such breach; or
(v) for any other reason whatsoever, in the sole
discretion of the Board of Directors.
2.3 EXECUTIVE'S RIGHT TO TERMINATE. Notwithstanding the provisions
of paragraph 2.1, Executive shall have the right to terminate his employment
under this Agreement at any time for any of the following reasons:
(i) a breach by Company of any provision of this Agreement
which, if correctable, remains uncorrected for 10 days following
written notice of such breach by Executive to Company;
(ii) for any other reason whatsoever, in the sole
discretion of Executive.
(iii) following a Change in Control (as defined in the form of
Change in Control Agreement effective as of January 1, 2000, between
Company and certain of its executives in the form filed as Exhibit 10.2
to Company's Quarterly Report on Form 10-Q for the six months ended
June 30, 2000, as filed with the Securities and Exchange Commission), a
material adverse change in the nature or scope of the authorities,
powers, functions, responsibilities, or duties attached to the position
with Company that the Executive held immediately prior to the Change of
Control, a reduction in the aggregate of Executive's base salary and
bonus received from Company, termination of Executive's rights to any
other company benefit described in Section 3.3(ii), or a reduction in
the scope or value thereof (subject to the limitation set forth in the
second sentence of 3.3(ii)) without the prior written consent of
Executive, and which is not remedied within 10 calendar days after
receipt by Company of written notice from Executive of such change,
reduction, or termination, as the case may be;
(iv) following a Change in Control, the liquidation,
dissolution, merger, consolidation, or reorganization of 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 Company under this Agreement; or
(v) following a Change in Control, Company shall require
Executive to have his principal location of work changed to any
location that 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
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years) that was required of him prior to the Change of Control
without, in either case, his prior written consent.
2.4 NOTICE OF TERMINATION. If Company or Executive desires to
terminate Executive's employment hereunder at any time prior to expiration of
the term of employment as provided in paragraph 2.1, it or he shall do so by
giving written notice to the other party that it or he has elected to
terminate Executive's employment hereunder and stating the effective date and
reason for such termination, provided that no such action shall alter or
amend any other provisions hereof or rights arising hereunder, including,
without limitation, the provisions of Articles 4 and 5 hereof.
ARTICLE 3
COMPENSATION AND BENEFITS
3.1 BASE SALARY. Commencing January 1, 2001 until the earlier of (i)
120 days thereafter or (ii) the date on which Executive first sells any
Common Stock, $1.00 par value, of the Company ("Company Common Stock")
received by Executive pursuant to the Merger Agreement (the "Initial
Period"), Executive shall receive an annual base salary of $293,800
($24,483.33 per month). Following the Initial Period through December 31,
2003, Executive shall receive an annual base salary of $222,000 ($18,500 per
month). Executive's annual base salary shall be paid in equal installments in
accordance with Company's standard policy regarding payment of compensation
to executives but no less frequently than monthly.
3.2 BONUSES. At the end of each calendar year during the term of
this Agreement, Executive may be entitled to a bonus of up to $110,000. The
amount of such bonus, if any, shall be entirely discretionary with the
Compensation Committee of the Board of Directors. In making its determination
as to the amount of any such bonus, the Compensation Committee of the Board
of Directors shall consider the same criteria as that used for determining
bonuses for other senior executives of Company, from time to time. It is
contemplated that such criteria shall include Bank's financial performance as
well as the performance of the Company Common Stock as compared to other
members of its peer group.
3.3 OTHER PERQUISITES. During his employment hereunder, Executive
shall be afforded the following benefits as incidences of his employment:
(i) Business and Entertainment Expenses. Subject to Company's
standard policies and procedures with respect to expense reimbursement
as applied to its executive employees generally, Company shall
reimburse Executive for, or pay on behalf of Executive, reasonable and
appropriate expenses incurred by Executive for business related
purposes, including dues and fees to industry and professional
organizations and costs of entertainment and business development.
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(ii) Other Company Benefits. Executive and, to the extent
applicable, Executive's spouse, dependents and beneficiaries, shall be
allowed to participate in all benefits, plans and programs, including
improvements or modifications of the same, which are now, or may
hereafter be, available to all other executive employees of Company,
and Executive will be entitled to credit for prior service with
Citizens Bankers, Inc. and its subsidiaries ("Citizens") for all
purposes under such benefits, plans and programs. Such benefits, plans
and programs may include, without limitation, 401(k) plans, health
insurance or health care plan, disability insurance, supplemental
retirement plans, vacation and sick leave benefits, and the like.
Executive shall also be entitled to either the use of a Company
automobile or an automobile allowance of $500 per month, as determined
by the Company. Company shall not, however, by reason of this paragraph
be obligated to institute, maintain, or refrain from changing,
amending, or discontinuing, any such benefit plan or program, so long
as such changes are similarly applicable to executive employees
generally. This Section 3.3(ii) does not apply to cash bonuses, which
are addressed in Section 3.2.
(iii) Stock Options. Company's Management will request that
the Compensation Committee of the Board of Directors award an option to
Executive to purchase 10,000 shares of Company Common Stock under
Company's 1996 Stock Option Plan, within two weeks following the
Effective Date, such incentive option to be subject to the same terms
and provisions (including vesting) as those awarded to other executives
under such plan.
ARTICLE 4
CONFIDENTIAL INFORMATION
4.1 IN GENERAL. Company will disclose to Executive, or place
Executive in a position to have access to or develop, trade secrets or
confidential information of Company or its affiliates; and/or will entrust
Executive with business opportunities of Company or its affiliates; and/or
will place Executive in a position to develop business good will on behalf of
Company or its affiliates. Executive recognizes and acknowledges that
Executive will have access to certain information of Company and that such
information is confidential and constitutes valuable, special and unique
property of Company. Executive shall not at any time, either during or
subsequent to the term of employment with Company, disclose to others, use,
copy or permit to be copied, except in pursuance of Executive's duties for
and on behalf of Company, its successors, assigns or nominees, any
Confidential Information of Company (regardless of whether developed by
Executive) without the prior written consent of Company. The term
"Confidential Information" means any secret or confidential information or
know-how and shall include, but shall not be limited to, the plans,
customers, costs, prices, uses, corporate opportunities, research, financial
data, evaluations, prospects, and applications of products and services,
results of investigations or studies owned or used by Company, and all
apparatus, products, processes, compositions, samples, formulas, computer
programs, computer hardware designs, computer firmware designs, and
servicing, marketing or manufacturing methods and techniques at any time
used, developed, investigated, made or sold by Company, before or during the
term of employment with Company, that are not readily available to the public
or that
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are maintained as confidential by Company. Executive shall maintain in
confidence any Confidential Information of third parties received as a result
of Executive's employment with Company in accordance with Company's
obligations to such third parties and the policies established by Company.
4.2 REMEDIES. Executive acknowledges that money damages would not be
sufficient remedy for any breach of this Article by Executive, and Company
shall be entitled to enforce the provisions of this Article by terminating
payments then owing to Executive under this Agreement and/or to specific
performance and injunctive relief as remedies for such breach or any
threatened breach. Such remedies shall not be deemed the exclusive remedies
for a breach of this Article, but shall be in addition to all remedies
available at law or in equity to Company, including the recovery of damages
from Executive and his agents involved in such breach and remedies available
to Company pursuant to other agreements with Executive.
ARTICLE 5
NON-COMPETITION OBLIGATIONS
5.1 IN GENERAL. As part of the consideration for the compensation
and benefits to be paid to Executive hereunder; to protect the Confidential
Information of Company and its affiliates that has been and will in the
future be disclosed or entrusted to Executive, the business good will of
Company and its affiliates that has been and will in the future be developed
in Executive, or the business opportunities that have been and will in the
future be disclosed or entrusted to Executive by Company and its affiliates;
and as an additional incentive for Company to enter into this Agreement,
Company and Executive agree to the non-competition obligations hereunder.
Executive shall not, directly or indirectly for Executive or for others, in
any geographic area or market where Company or any of its affiliates are
conducting any business as of the date of the termination of the employment
relationship or have during the previous twelve months conducted such
business:
(i) engage in any business competitive with the business
conducted by Company in any county in which the Company maintains an
office;
(ii) render advice or services to, or otherwise assist, any
other person, association, or entity who is engaged, directly or
indirectly, in any business competitive with the business conducted by
Company with respect to such competitive business; or
(iii) induce any employee of Company or any of its affiliates
to terminate his or her employment with Company or such affiliates, or
hire or assist in the hiring of any such employee by any person,
association, or entity not affiliated with Company.
These non-competition obligations shall apply during the period that
Executive is receiving benefits pursuant to Article 3 hereunder and shall
extend one year after termination of the employment relationship if such
termination is by Company pursuant to Section 2.2(iii) or (iv) or by
Executive pursuant to Section 2.3(ii).
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5.2 ENFORCEMENT AND REMEDIES. Executive understands that the
restrictions set forth in paragraph 5.1 may limit Executive's ability to
engage in certain businesses anywhere in the world during the period provided
for above, but acknowledges that Executive will receive sufficiently high
remuneration and other benefits under this Agreement to justify such
restriction. Executive acknowledges that money damages would not be
sufficient remedy for any breach of this Article by Executive, and Company
shall be entitled to enforce the provisions of this Article by terminating
any payments then owing to Executive under this Agreement and/or to specific
performance and injunctive relief as remedies for such breach or any
threatened breach. Such remedies shall not be deemed the exclusive remedies
for a breach of this Article, but shall be in addition to all remedies
available at law or in equity to Company, including without limitation, the
recovery of damages from Executive and Executive's agents involved in such
breach and remedies available to Company pursuant to other agreements with
Executive.
5.3 REFORMATION. It is expressly understood and agreed that Company
and Executive consider the restrictions contained in this Article to be
reasonable and necessary to protect the proprietary information of Company.
Nevertheless, if any of the aforesaid restrictions are found by a court
having jurisdiction to be unreasonable, or overly broad as to geographic area
or time, or otherwise unenforceable, the parties intend for the restrictions
therein set forth to be modified by such court so as to be reasonable and
enforceable and, as so modified by the court, to be fully enforced.
ARTICLE 6
STATEMENTS CONCERNING COMPANY
6.1 IN GENERAL. Executive shall refrain, both during the employment
relationship and after the employment relationship terminates, from
publishing any oral or written statements about Company, any of its
affiliates, or any of such entities' officers, employees, agents or
representatives that are slanderous, libelous, or defamatory; or that
disclose private or CONFIDENTIAL information about Company, any of its
affiliates, or any of such entities' business affairs, officers, employees,
agents, or representatives; or that constitute an intrusion into the
seclusion or private lives of Company, any of its affiliates, or any of such
entities' officers, employees, agents, or representatives; or that give rise
to unreasonable publicity about the private lives of Company, any of its
affiliates, or any of such entities' officers, employees, agents, or
representatives; or that place Company, any of its affiliates, or any of such
entities' officers, employees, agents, or representatives in a false light
before the public; or that constitute a misappropriation of the name or
likeness of Company, any of its affiliates, or any of such entities'
officers, employees, agents, or representatives. A violation or threatened
violation of this prohibition may be enjoined by the courts. The rights
afforded Company and its affiliates under this provision are in addition to
any and all rights and remedies otherwise afforded by law.
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ARTICLE 7
EFFECT OF TERMINATION ON COMPENSATION
7.1 BY EXPIRATION. If Executive's employment hereunder shall
terminate upon expiration of the term provided in paragraph 2.1 hereof, then
all compensation and all benefits to Executive hereunder shall terminate
contemporaneously with termination of his employment (except to the extent
benefits continue pursuant to the specific terms of any plan or program).
7.2 BY COMPANY. If Executive's employment hereunder shall be
terminated by Company prior to expiration of the term provided in paragraph
2.1, then, upon such termination, regardless of the reason therefor, all
compensation and benefits to Executive hereunder shall terminate
contemporaneously with the termination of such employment (except to the
extent benefits continue pursuant to the specific terms of any plan or
program); provided, however, that if such termination shall be for any reason
other than those encompassed by paragraphs 2.2(i), (ii), (iii), or (iv), then
Company shall (i) pay Executive the Termination Payments and (ii) provide
Executive with Continuation Benefits. For purposes of this Agreement, (A) the
term "Termination Payments" shall mean continuation of Executive's annual
base salary as provided in paragraph 3.1 and continuation of Executive's
bonuses as provided in paragraph 3.2 at the average percentage of annual base
salary paid to Executive within the two-year period preceding his termination
of employment with Company, as if he had remained employed by Company through
the third anniversary of the Effective Date and (B) the term "Continuation
Benefits" shall mean continued coverage under Company's medical and dental
plans and life insurance for Executive and his dependents (including his
spouse) who were covered under such plans and insurance on the day prior to
Executive's termination of employment with Company as if he had remained
employed by Company through the third anniversary date of the Effective Date
(provided, however, that (1) such coverage shall terminate if and to the
extent Executive becomes eligible to receive medical, dental and life
insurance coverage from a subsequent employer (and any such eligibility shall
be promptly reported to Company by Executive), (2) if Executive (and/or his
spouse) would have been entitled to retiree medical, dental, and/or life
insurance coverage under Company's plans had he voluntarily retired on the
date of such termination, then such coverages shall be continued as provided
under such plans, and (3) in the event that continued participation in any
such Company plan is for whatever reason impermissible, Company shall arrange
upon comparable terms benefits substantially equivalent to those that may not
be so provided under the plan maintained by Company). Notwithstanding the
preceding provisions of this paragraph 7.2, as a condition to the receipt of
any Termination Payments and/or Continuation Benefits pursuant to this
paragraph 7.2, Executive must first execute a release and agreement which
shall release Company, its affiliates and their officers, directors,
employees and agents from any and all claims and from any and all causes of
action of any kind or character, including but not limited to all claims or
causes of action arising out of Executive's employment with Company and the
termination of such employment.
7.3 BY EXECUTIVE. If Executive's employment hereunder shall be
terminated by Executive prior to expiration of the term provided in paragraph
2.1, then, upon such termination, regardless of the reason therefor, all
compensation and benefits to Executive hereunder shall terminate
contemporaneously with the termination of such employment (except to the
extent
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benefits continue pursuant to the specific terms of any plan or program);
provided, however, that if such termination shall be pursuant to paragraph
2.3(i), (iii), (iv) or (v), then Company shall (i) pay Executive the
Termination Payments and (ii) provide Executive with Continuation Benefits,
subject to Executive's execution of a release and agreement as described in
the last sentence of Section 7.2.
7.4 LIQUIDATED DAMAGES. In light of the difficulties in estimating
the damages for an early termination of this Agreement, Company and Executive
hereby agree that the payments, if any, to be received by Executive pursuant
to this Article 7 shall be received by Executive as liquidated damages.
7.5 INCENTIVE AND DEFERRED COMPENSATION. This Agreement governs the
rights and obligations of Executive and Company with respect to Executive's
base salary, bonus, life insurance and certain perquisites of employment.
Executive's rights and obligations both during the term of his employment and
thereafter with respect to stock options, restricted stock, and incentive and
deferred compensation shall be governed by the separate agreements, plans and
other documents and instruments governing such matters.
ARTICLE 8
MISCELLANEOUS
8.1 NOTICES. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United
States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
IF TO COMPANY TO: Compensation Committee
c/o Xxxx X. Xxxxxx, Xx.
Southwest Bancorporation of Texas, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
IF TO EXECUTIVE TO: Xxxx X. Xxxxxx
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000
or to such other address as either party may furnish to the other in writing
in accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
8.2 APPLICABLE LAW. This Agreement is entered into under, and shall
be governed for all purposes by, the laws of the State of Texas.
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8.3 NO WAIVER. No failure by either party hereto at any time to give
notice of any breach by the other party of, or to require compliance with,
any condition or provision of this Agreement shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
8.4 SEVERABILITY. If a court of competent jurisdiction determines
that any provision of this Agreement is invalid or unenforceable, then the
invalidity or unenforceability of that provision shall not affect the
validity or enforceability of any other provision of this Agreement, and all
other provisions shall remain in full force and effect.
8.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which together will constitute one and the same Agreement.
8.6 WITHHOLDING OF TAXES AND OTHER EMPLOYEE DEDUCTIONS. Company may
withhold from any benefits and payments made pursuant to this Agreement all
federal, state, city and other taxes as may be required pursuant to any law
or governmental regulation or ruling and all other normal employee deductions
made with respect to Company's employees generally.
8.7 HEADINGS. The paragraph headings have been inserted for purposes
of convenience and shall not be used for interpretive purposes.
8.8 GENDER AND PLURALS. Wherever the context so requires, the
masculine gender includes the feminine or neuter, and the singular number
includes the plural and conversely.
8.9 AFFILIATE. As used in this Agreement, the term "affiliate" shall
mean any entity which owns or controls, is owned or controlled by, or is
under common ownership or control with, Company.
8.10 SUCCESSOR OBLIGATIONS. This Agreement shall be binding upon and
inure to the benefit of Company and any successor of Company, by merger or
otherwise.
8.11 ASSIGNMENT. Except as provided in paragraph 8.10, this
Agreement, and the rights and obligations of the parties hereunder, are
personal and neither this Agreement, nor any right, benefit, or obligation of
either party hereto, shall be subject to voluntary or involuntary assignment,
alienation or transfer, whether by operation of law or otherwise, without the
prior written consent of the other party.
8.12 TERM. This Agreement has a term co-extensive with the term of
employment provided in paragraph 2.1. Termination shall not affect any right
or obligation of any party which is accrued or vested prior to such
termination. Without limiting the scope of the preceding sentence, the
provisions of Articles 4, 5, and 6 shall survive any termination of the
employment relationship and/or of this Agreement.
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8.13 ENTIRE AGREEMENT. Except as provided in (i) the written benefit
plans and programs referenced in paragraph 3.3(ii) and (ii) any signed
written agreement contemporaneously or hereafter executed by Company and
Executive, this Agreement constitutes the entire agreement of the parties
with regard to the subject matter hereof, and contains all the covenants,
promises, representations, warranties and agreements between the parties with
respect to employment of Executive by Company. Without limiting the scope of
the preceding sentence, all prior understandings and agreements among the
parties hereto relating to the subject matter hereof are hereby null and void
and of no further force and effect. Any modification of this Agreement shall
be effective only if it is in writing and signed by the party to be charged.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
to be effective as of the Effective Date.
SOUTHWEST BANCORPORATION OF TEXAS, INC.
By: /s/ XXXX X. XXXXXX, XX.
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Xxxx X. Xxxxxx, Xx.
President and Chief Executive Officer
"COMPANY"
/s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
"EXECUTIVE"
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