EXHIBIT 10.11
EMPLOYMENT AGREEMENT
(AMENDED AND RESTATED AS OF FEBRUARY 17, 2001)
THIS EMPLOYMENT AGREEMENT ("Agreement") is made by and between SOUTHWEST
BANCORPORATION OF TEXAS, INC. ("Company") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Executive").
W I T N E S S E T H:
WHEREAS, Company is desirous of continuing Executive's employment as a
senior executive of Company and its wholly owned subsidiary, SOUTHWEST BANK OF
TEXAS NATIONAL ASSOCIATION (the "Bank"), on the terms and conditions, and for
the consideration, hereinafter set forth and Executive is desirous of continuing
his employment by Company on such terms and conditions and for such
consideration;
WHEREAS, references herein to Executive's employment by Company shall also
mean his employment by Bank, and references herein to payments of any nature to
be made by Company to Executive shall mean that either Company will make such
payments or it will cause Bank to make such payments to Executive;
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and obligations contained herein, Company and Executive agree as follows:
ARTICLE 1: EMPLOYMENT AND DUTIES
1.1 EMPLOYMENT; EFFECTIVE DATE. Company agrees to employ Executive and
Executive agrees to be employed by Company, beginning as of the Effective Date
(as hereinafter defined) and continuing for the period of time set forth in
Article 2 of this Agreement, subject to the terms and conditions of this
Agreement. For purposes of this Agreement, the "Effective Date" shall be January
1, 2000.
1.2 POSITION. From and after the Effective Date, Company shall employ
Executive in the capacity of Chairman of the Board of both Company and of Bank,
or in such other positions as the parties mutually may agree.
1.3 DUTIES AND SERVICES. Executive agrees to serve in the capacities
referred to in paragraph 1.2 and to perform diligently and to the best of his
abilities the duties and services appertaining to such offices, as well as such
additional duties and services appropriate to such offices which the parties
mutually may agree upon from time to time. Executive's employment shall also be
subject to the policies maintained and established by Company, as the same may
be amended from time to time.
1.4 OTHER INTERESTS. Executive agrees, during the period of his employment
by Company, to devote his primary business time, energy and best efforts to the
business and affairs of Company and Bank and not to engage, directly or
indirectly, in any other business or businesses, whether or not similar to that
of Company, except with the consent of the Board of
Directors of Company (the "Board of Directors"). The foregoing notwithstanding,
the parties recognize and agree that Executive may engage in passive personal
investments and other business activities that do not conflict with the business
and affairs of Company or interfere with Executive's performance of his duties
hereunder.
1.5 DUTY OF LOYALTY. Executive acknowledges and agrees that Executive owes
a fiduciary duty of loyalty, fidelity and allegiance to act at all times in the
best interests of Company and to do no act which would injure the business,
interests, or reputation of Company or any of its subsidiaries or affiliates. In
keeping with these duties, Executive shall make full disclosure to Company of
all business opportunities pertaining to Company's business and shall not
appropriate for Executive's own benefit business opportunities concerning the
subject matter of the fiduciary relationship.
ARTICLE 2: TERM AND TERMINATION OF EMPLOYMENT
2.1 TERM. Unless sooner terminated pursuant to other provisions hereof,
Company agrees to employ Executive for the period beginning on the Effective
Date and ending on February 17, 2006.
2.2 COMPANY'S RIGHT TO TERMINATE. Notwithstanding the provisions of
paragraph 2.1, Company shall have the right to terminate Executive's employment
under this Agreement at any time for any of the following reasons:
(i) upon Executive's death;
(ii) upon Executive's becoming incapacitated by accident, sickness
or other circumstance which renders him mentally or physically incapable
of performing the duties and services required of him hereunder on a
full-time basis for a period of at least 180 consecutive days;
(iii) for cause, which for purposes of this Agreement shall mean
Executive (A) has engaged in gross negligence or willful misconduct in the
performance of the duties required of him hereunder, (B) has been
convicted of a misdemeanor involving moral turpitude or convicted of a
felony, (C) has willfully refused without proper legal reason to perform
the duties and responsibilities required of him hereunder, (D) has
materially breached any corporate policy or code of conduct established by
Company, or (E) has willfully engaged in conduct that he knows or should
know is materially injurious to Company or any of its affiliates;
(iv) for Executive's material breach of any material provision of
this Agreement which, if correctable, remains uncorrected for 30 days
following written notice to Executive by Company of such breach; or
(v) for any other reason whatsoever, in the sole discretion of the
Board of Directors.
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2.3 EXECUTIVE'S RIGHT TO TERMINATE. Notwithstanding the provisions of
paragraph 2.1, Executive shall have the right to terminate his employment under
this Agreement at any time for any of the following reasons:
(i) a material breach by Company of any material provision of this
Agreement which, if correctable, remains uncorrected for 30 days following
written notice of such breach by Executive to Company; or
(ii) for any other reason whatsoever, in the sole discretion of
Executive.
2.4 NOTICE OF TERMINATION. If Company or Executive desires to terminate
Executive's employment hereunder at any time prior to expiration of the term of
employment as provided in paragraph 2.1, it or he shall do so by giving written
notice to the other party that it or he has elected to terminate Executive's
employment hereunder and stating the effective date and reason for such
termination, provided that no such action shall alter or amend any other
provisions hereof or rights arising hereunder, including, without limitation,
the provisions of Articles 4 and 5 hereof.
ARTICLE 3: COMPENSATION AND BENEFITS
3.1 BASE SALARY. For the period from the Effective Date until February 17,
2002, Executive shall receive an annual base salary of $400,000 ($33,333.33 per
month). For the period from February 18, 2002 until February 17, 2006, Executive
shall receive an annual base salary of $300,000 ($25,000 per month), unless
executive is notified by the Compensation Committee that his annual base salary
for all or any portion of such period shall be a greater amount, not to exceed
$400,000 ($33,333.33 per month). Executive's annual base salary shall be paid in
equal installments in accordance with Company's standard policy regarding
payment of compensation to executives but no less frequently than monthly.
3.2 BONUSES. At the end of each calendar year during the term of this
Agreement, Executive may be entitled to a bonus of up to 60% of his then current
annual base salary. The amount of such bonus, if any, shall be entirely
discretionary with the Compensation Committee of the Board of Directors (the
"Compensation Committee"). In making its determination as to the amount of any
such bonus, the Compensation Committee shall consider the same criteria as that
used for determining bonuses for other senior executives of Company, from time
to time. It is contemplated that such criteria shall include Bank's financial
performance as well as the performance of Company's stock as compared to other
members of its peer group.
3.3 LIFE INSURANCE. During the term of this Agreement, Company shall
maintain, at its sole cost, (i) a $3,031,481 face amount "second to die" whole
life insurance policy insuring the lives of Executive and his spouse, and (ii) a
$4,000,000 face amount "10-year" term life insurance policy insuring the life of
Executive. Executive (or his spouse) shall have the sole right to name the
beneficiaries under such insurance policies during the term of this Agreement.
Following the term of this Agreement, Executive (or his spouse) shall have the
right to (A) either terminate the whole life insurance policy in exchange for
its cash surrender value or continue coverage under such policy by paying the
future premiums due, and (B) continue coverage under
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the term life insurance policy by paying the future premiums due. The Company
shall cause coverage under such policies to be commenced as soon as practicable
after execution and delivery of this Agreement by Company and Executive.
3.4 OTHER PERQUISITES. During his employment hereunder, Executive shall be
afforded the following benefits as incidences of his employment:
(i) BUSINESS AND ENTERTAINMENT EXPENSES - Subject to Company's
standard policies and procedures with respect to expense reimbursement as
applied to its executive employees generally, Company shall reimburse
Executive for, or pay on behalf of Executive, reasonable and appropriate
expenses incurred by Executive for business related purposes, including
dues and fees to industry and professional organizations and costs of
entertainment and business development.
(ii) OTHER COMPANY BENEFITS - Executive and, to the extent
applicable, Executive's spouse, dependents and beneficiaries, shall be
allowed to participate in all benefits, plans and programs, including
improvements or modifications of the same, which are now, or may hereafter
be, available to other executive employees of Company. Such benefits,
plans and programs may include, without limitation, pension benefit plans,
health insurance or health care plan, disability insurance, supplemental
retirement plans, vacation and sick leave benefits, and the like. Company
shall not, however, by reason of this paragraph be obligated to institute,
maintain, or refrain from changing, amending, or discontinuing, any such
benefit plan or program, so long as such changes are similarly applicable
to executive employees generally.
ARTICLE 4: CONFIDENTIAL INFORMATION
4.1 IN GENERAL. Company shall disclose to Executive, or place Executive in
a position to have access to or develop, trade secrets or confidential
information of Company or its affiliates; and/or shall entrust Executive with
business opportunities of Company or its affiliates; and/or shall place
Executive in a position to develop business good will on behalf of Company or
its affiliates. Executive recognizes and acknowledges that Executive will have
access to certain information of Company and that such information is
confidential and constitutes valuable, special and unique property of Company.
Executive shall not at any time, either during or subsequent to the term of
employment with Company, disclose to others, use, copy or permit to be copied,
except in pursuance of Executive's duties for and on behalf of Company, its
successors, assigns or nominees, any 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;
(ii) render advice or services to, or otherwise assist, any other
person, association, or entity who is engaged, directly or indirectly, in
any business competitive with the business conducted by Company with
respect to such competitive business; or
(iii) induce any employee of Company or any of its affiliates to
terminate his or her employment with Company or such affiliates, or hire
or assist in the hiring of any such employee by any person, association,
or entity not affiliated with Company.
These non-competition obligations shall apply during the period that Executive
is employed by Company and shall extend two years after termination of the
employment relationship if such termination is by Company pursuant to Section
2.2(iii) or (iv) or by Executive pursuant to Section 2.3(ii).
5.2 ENFORCEMENT AND REMEDIES. Executive understands that the restrictions
set forth in paragraph 5.1 may limit Executive's ability to engage in certain
businesses anywhere in the world during the period provided for above, but
acknowledges that Executive will receive
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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.
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,
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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 February 17, 2006 and (B) the term "Continuation Benefits" shall
mean continued coverage under Company's medical and dental plans and life
insurance for Executive and his dependents (including his spouse) who were
covered under such plans and insurance on the day prior to Executive's
termination of employment with Company as if he had remained employed by Company
through February 17, 2006 (provided, however, that (1) such coverage shall
terminate if and to the extent Executive becomes eligible to receive medical,
dental and life insurance coverage from a subsequent employer (and any such
eligibility shall be promptly reported to Company by Executive), (2) if
Executive (and/or his spouse) would have been entitled to retiree medical,
dental, and/or life insurance coverage under Company's plans had he voluntarily
retired on the date of such termination, then such coverages shall be continued
as provided under such plans, and (3) in the event that continued participation
in any such Company plan is for whatever reason impermissible, Company shall
arrange upon comparable terms benefits substantially equivalent to those that
may not be so provided under the plan maintained by Company). Notwithstanding
the preceding provisions of this paragraph 7.2, as a condition to the receipt of
any Termination Payments and/or Continuation Benefits pursuant to this paragraph
7.2, Executive must first execute a release and agreement which shall release
Company, its affiliates and their officers, directors, employees and agents from
any and all claims and from any and all causes of action of any kind or
character, including but not limited to all claims or causes of action arising
out of Executive's employment with Company and the termination of such
employment.
7.3 BY EXECUTIVE. If Executive's employment hereunder shall be terminated
by Executive prior to expiration of the term provided in paragraph 2.1, then,
upon such termination, regardless of the reason therefor, all compensation and
benefits to Executive hereunder shall terminate contemporaneously with the
termination of such employment (except to the extent benefits continue pursuant
to the specific terms of any plan or program); provided, however, that if such
termination shall be pursuant to paragraph 2.3(i), then Company shall (i) pay
Executive, within 10 days after the last day of Executive's employment with
Company, a lump sum cash payment in an amount equal to the Termination Payment
and (ii) provide Executive with Continuation Benefits.
7.4 NO DUTY TO MITIGATE LOSSES. Executive shall have no duty to find new
employment following the termination of his employment under circumstances which
require Company to pay any amount to Executive pursuant to this Article 7. Any
salary or remuneration received by Executive from a third party for the
providing of personal services (whether by employment or by functioning as an
independent contractor) following the termination of his employment under
circumstances pursuant to which this Article 7 apply shall not reduce
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Company's obligation to make a payment to Executive (or the amount of such
payment) pursuant to the terms of this Article 7.
7.5 LIQUIDATED DAMAGES. In light of the difficulties in estimating the
damages for an early termination of this Agreement, Company and Executive hereby
agree that the payments, if any, to be received by Executive pursuant to this
Article 7 shall be received by Executive as liquidated damages.
7.6 INCENTIVE AND DEFERRED COMPENSATION. This Agreement governs the rights
and obligations of Executive and Company with respect to Executive's base
salary, bonus, life insurance and certain perquisites of employment. Executive's
rights and obligations both during the term of his employment and thereafter
with respect to stock options, restricted stock, and incentive and deferred
compensation shall be governed by the separate agreements, plans and other
documents and instruments governing such matters.
ARTICLE 8: MISCELLANEOUS
8.1 NOTICES. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
IF TO COMPANY TO: Compensation Committee
Southwest Bancorporation of Texas, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
IF TO EXECUTIVE TO: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Southwest Bank of Texas N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
8.2 APPLICABLE LAW. This Agreement is entered into under, and shall be
governed for all purposes by, the laws of the State of Texas.
8.3 NO WAIVER. No failure by either party hereto at any time to give
notice of any breach by the other party of, or to require compliance with, any
condition or provision of this Agreement shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.
8.4 SEVERABILITY. If a court of competent jurisdiction determines that any
provision of this Agreement is invalid or unenforceable, then the invalidity or
unenforceability of that
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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.
8.13 ENTIRE AGREEMENT. Except as provided in (i) the written benefit plans
and programs referenced in paragraph 3.4(ii) and (ii) any signed written
agreement contemporaneously or hereafter executed by Company and Executive, this
Agreement constitutes the entire agreement of the parties with regard to the
subject matter hereof, and contains all the covenants, promises,
representations, warranties and agreements between the parties with respect to
employment of Executive by Company. Without limiting the scope of the preceding
sentence, all prior understandings and agreements among the parties hereto
relating to the subject matter hereof are hereby null and void and of no further
force and effect. Specifically, upon the execution and delivery of this
Agreement by Company and Executive, the "Change in Control Agreement" entered
into between Company and Executive, as of
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December 17, 1996, shall be terminated and of no further force or effect. Any
modification of this Agreement shall be effective only if it is in writing and
signed by the party to be charged.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
amended and restated as of the 17th day of February, 2001, to be effective as of
the Effective Date.
SOUTHWEST BANCORPORATION OF TEXAS, INC.
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
President and Chief Operating Officer
"COMPANY"
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
"EXECUTIVE"
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