EXHIBIT 10.9
CHANGE IN CONTROL AGREEMENT
This CHANGE IN CONTROL AGREEMENT ("Agreement), effective as of December
17, 1996 (the "Effective Date"), by and between Southwest Bancorporation of
Texas, Inc., a Texas corporation (the "Company"), and
_____________________________ (the "Executive");
W I T N E S S E T H:
WHEREAS, the Executive is a senior executive of the Company and its
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:
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i) The Company is merged, consolidated or reorganized into or
with another corporation or other legal person, and as a result of
such merger, consolidation or reorganization 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;
ii) The Company sells all or substantially all of its assets
to any other corporation or other legal person, less than a majority
of the combined voting power of the then-outstanding Voting Stock of
which are held in the aggregate by the holders of Voting Stock of
the Company immediately prior to such sale;
iii) There is a report filed on Schedule 13D or Schedule 14D-1
(or any successor schedule, form or report), each as promulgated
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), disclosing that any person (as the term "person" is
used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act)
has become the beneficial owner (as the term "beneficial owner" is
defined under Rule l3d-3 or any successor rule or regulation
promulgated under the Exchange Act) of securities representing 20%
or more of the combined voting power of the then-outstanding
securities entitled to vote generally in the election of directors
of the Company ("Voting Stock").
iv) The Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange Act
disclosing in response to Form 8-K or Schedule 14A (or any successor
schedule, form or report or item therein) that a change in control
of the Company has or may have occurred or will or may occur in the
future pursuant to any then-existing contract or transaction; or
v) 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.
Notwithstanding the foregoing provisions of Section 1(a)(iii) or
1(a)(iv) hereof, a "Change in Control" shall not be deemed to have
occurred for purposes of this Agreement solely because (i) the Company,
(ii) an entity in which the Company directly or indirectly beneficially
owns 50% or more of the voting securities of such entity, or (iii) any
Company-sponsored employee stock ownership plan or any other employee
benefit plan of the Company, either files or becomes obligated to file a
report or a proxy statement under or in response to Schedule 13D, Schedule
14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report
or item therein) under the Exchange Act, disclosing beneficial ownership
by it of shares of Voting Stock, whether in excess of 20% or otherwise, or
because
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the Company reports that a change in control of the Company has or may
have occurred or will or may occur in the future by reason of such
beneficial ownership.
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, 1999 and (ii) the
expiration of the Period of Employment (as that term is hereinafter
defined); provided, however, that (A) commencing on December 31, 1997 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 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, as the case may be, does not wish
to have the Term extended.
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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 amount equal to not less than the highest
aggregate annual bonus, incentive or other payments of cash compensation
in addition to the amounts referred to in clause (i) above made or to be
made to the Executive in or with respect to any calendar year during the
three calendar years immediately preceding the year in which the Change in
Control occurred pursuant to any 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 a 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 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
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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 lnternal 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 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;
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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 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) Failure to elect or reelect the Executive to the
office of the Company which the Executive held immediately
prior to a Change in Control, or 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;
B) A material adverse change in the nature or scope of
the authorities, powers, functions, responsibilities or duties
attached to the position with the Company which the Executive
held immediately prior to the Change in Control, a reduction
in the aggregate of the Executive's Base Pay and Incentive Pay
received from the Company, or the termination of the
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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;
C) 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;
D) The Company shall relocate its principal executive
offices, or require 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; or
E) Any material breach of this Agreement by the Company
or any successor thereto.
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 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
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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 Guarantee 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 each remaining year or fraction of the Period of
Employment which the Executive would have received had such
termination or breach not occurred, plus (B) the aggregate Incentive
Pay (based upon the greatest amount of Incentive Pay paid or payable
to the Executive for any year during the Term but prior to the year
in which the Termination Date occurs), which the Executive would
have received pursuant to this Agreement during the remainder of the
Period of Employment had his employment continued for the remainder
of the Period of Employment; provided, however, that in no event
will the "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, 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) and if the
amount otherwise payable hereunder would exceed the 299% Amount, the
Severance Payment shall be reduced to the extent necessary so that
the aggregate present value determined in the previous clause does
not exceed the 299% Amount.
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
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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 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:
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A) all Company stock options held by the Executive prior
to a Change in Control shall become fully exercisable,
regardless of whether or not the vesting conditions set forth
in the relevant stock option agreements have been satisfied in
full; and
B) all restrictions on any restricted Company stock
granted to the Executive prior to a Change in Control 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 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, 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
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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 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. 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 it should
appear to the Executive that the Company has failed 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 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.
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.
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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,
by agreement in form and substance satisfactory to the Executive,
expressly to assume and agree 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 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.
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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.
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: ____________________________________________
EXECUTIVE:
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