Exhibit 10.4
FORM OF EXECUTIVE SEVERANCE AGREEMENT
This Agreement between [Name of Officer] (you) and Citizens National Bank
of Texas (Company) has been entered into as of November 3, 1997. This Agreement
promises you severance benefits if, following a Change of Control, you are
terminated without Cause or resign for Good Reason during the Term of this
Agreement. Capitalized terms are defined in the last Section of this Agreement.
1. Purpose
The Company considers a sound and vital management team to be essential.
Management personnel who become concerned about the possibility that the Company
may undergo a Change in Control may terminate employment or become distracted.
Accordingly, the Board has determined that appropriate steps should be taken to
minimize the distraction executives may suffer from the possibility of a Change
in Control. One step is to enter into this Agreement with you.
2. Your Promise
If one or more Potential Changes in Control occur during the Term of this
Agreement, you promise not to resign for at least six full calendar months after
a Potential Change in Control occurs, except as follows: (a) you may resign
after a Change in Control occurs; (b) you may resign if you are given Good
Reason to do so; and (c) you may terminate employment on account of retirement
on or after attaining age 65 or because you become unable to work due to serious
illness or injury. You also promise you will use your best judgment and efforts
to increase earnings and protect the goodwill of the Company for the benefit of
its employees and stockholders.
3. Events That Trigger Severance Benefits
(a) Termination After a Change in Control
You will receive Severance Benefits under this Agreement, if, during the
Term of this Agreement and after a Change in Control has occurred, your
employment is terminated by the Company without Cause (other than an account of
your Disability) or you resign for Good Reason.
(b) Termination After a Potential Change in Control
You also will receive Severance Benefits under this Agreement if, during
the Term of this Agreement and after a Potential Change in Control has occurred
but before a Change in Control actually occurs, your employment is terminated by
the Company without Cause or you resign for Good Reason, but only if either: (i)
you are terminated at the direction of a Person who has entered into an
agreement with the Company that will result in a Change in Control; or (ii) the
event constituting Good Reason occurs at the direction of such Person.
(c) Successor Fails to Assume This Agreement
You also will receive Severance Benefits under this Agreement if, during
the Term of this Agreement, a successor to the Company fails to assume this
Agreement, as provided in Section 13(a).
4. Events That Do Not Trigger Severance Benefits
You will not be entitled to Severance Benefits if your employment ends
because you are terminated for Cause or on account of Disability or because you
resign without Good Reason, retire, or die. Except as provided in Section 3(c),
you will not be entitled to Severance Benefits while you remain protected by
this Agreement and remain employed by the Company, its affiliates, or their
Successors.
5. Termination Procedures
If you are terminated by the Company after a Change in Control and during
the term of this Agreement, you will receive advance written notice of your
termination. This notice will be given to you at least 30 days in advance,
unless you are being terminated for Cause. The notice will indicate why you are
being terminated and will set forth in reasonable detail the facts and
circumstances claimed to provide a basis for your termination. If you are being
terminated for Cause, your notice of termination will include a copy of the
resolution duly adopted by the affirmative vote of not less than three-quarters
of the entire membership of the Board (at a meeting of the Board called and held
for the purpose of considering your termination (after reasonable notice to you
and an opportunity for you and your counsel to be heard before the Board))
finding that, in the good faith opinion of the Board, Cause for your termination
exists and specifying the basis for that opinion in detail. If you are
purportedly terminated without the notice required by this Section, your
termination shall not be effective.
6. Severance Benefits
(a) In General
If you become entitled to Severance Benefits under this Agreement, you will
receive all of the Severance Benefits described in this Section.
(b) Lump-Sum Payment in Lieu of Future Compensation
In lieu of any further cash compensation for periods after your employment
ends, you will be paid a cash lump sum equal to 2.99 times your annual base
salary in effect when your employment ends of, if higher, in effect immediately
prior to the Change in Control, Potential Change in Control, or Good Reason
event for which you terminate employment.
(c) Group Insurance Benefit Continuation
You and your dependents will be entitled to any COBRA rights at your own
expense.
7. Time for Payment
You will be paid your cash Severance Benefits within ten days following
your termination of employment. If the amount you are due cannot be finally
determined within that period, you will receive the minimum amount to which you
are clearly entitled, as estimated in good faith by the Company. The Company
will pay the balance you are due (together with interest at the rate provided in
Internal Revenue Code Section 1274(b)(2)(B)) as soon as the amount can be
determined, but in no event later than 30 days after you terminate employment.
If your estimated payment exceeds the amount you are due, the excess will be a
loan to you, which you must repay to the Company within ten business days after
demand by the Company (together with interest at the rate provided in Code
Section 1274(b)(2)(B)).
8. Payment Explanation
When payments are made to you, the Company will provide you with a written
statement explaining how your payments were calculated and the basis for the
calculations. This statement will include any opinions or other advice the
Company has received from auditors or consultants as to the calculation of your
benefits. If your benefit is affected by the golden parachute limitation in
Section 10, the Company will provide you with calculations relating to that
limitation and any supporting materials you reasonably need to permit you to
evaluate those calculations.
9. Relation to Other Severance Programs
Your Severance Benefits under this Agreement are in lieu of any severance
or similar benefits that may be payable to you under any other employment
agreement or other arrangement.
10. Golden Parachute Limitation
Your payments and benefits under this Agreement and all other contracts,
arrangements, or programs shall not, in the aggregate exceed the maximum amount
that may be paid to you without triggering golden parachute penalties under
Section 28OG and related provisions of the Internal Revenue Code, as determined
in good faith by the Company's independent auditors. The preceding sentence
shall not apply to the extent the small business corporation or shareholder
approval requirements of Code Section 28OG(b)(5) are satisfied. If your benefits
must be cut back to avoid triggering such penalties, your benefits will be cut
back in the priority order you designate or, if you fail promptly to designate
an order, in the priority order designated by the Company. If an amount in
excess of the limit set forth in this Section is paid to you, you must repay the
excess amount to the Company upon demand, with interest at the rate provided in
code Section 1274(b)(2)(B). You and the Company agree to cooperate with each
other reasonably in connection with any administrative or judicial proceedings
concerning the existence or amount of golden parachute penalties on payments or
benefits you receive. In addition, you further agree that, to the extent
payments or benefits under this Agreement would not be deductible under Code
Section 162(m) if made or provided when otherwise due under this Agreement, they
shall be made or provided later, immediately after Section 162(m) ceases to
preclude their deduction, with interest thereon at the rate provided in Code
Section 1274(b)(2)(B).
11. Disability
Following a Change in Control, while you are absent from work as a result
of physical or mental illness, the Company will continue to pay you your
compensation and provide benefits to you in accordance with and to the extent
required by the Company's compensation or benefit plans, programs, or
arrangements. These payments will stop if and when your employment is terminated
by the Company for Disability or at the end of the Term of this Agreement,
whichever is earlier. Severance Benefits under this Agreement are not payable if
you are terminated on account of your Disability.
12. Effect of Reemployment
Your Severance Benefits will not be reduced by any compensation you may
earn from another employer.
13. Successors
(a) Assumption Required
In addition to obligations imposed by law on a successor to the Company,
during the Term of this Agreement the Company will require any successor to all
or substantially all of the business or assets of the Company expressly to
assume and to agree to perform this Agreement in the same manner and to the
same extent that the Company was required to perform. If the Company fails to
obtain such an assumption and agreement prior to the effective date of a
succession, you will be entitled to Severance Benefits as if you were terminated
by the Company without Cause on the effective date of that succession.
(b) Heirs and Assigns
This Agreement will inure to the benefit of, and be enforceable by, your
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees. If you die while any amount is still
payable to you under this Agreement that amount will be paid to the executor,
personal representative, or administrator of your estate.
14. Amendments
This Agreement may be modified only by a written agreement executed by you
and the Chairman of the Board or the Chief Executive Officer of the Company. All
modifications must be approved by the Board.
15. Governing Law
This Agreement creates a "top hat" welfare benefit plan subject to the
Employee Retirement Income Security Act of 1974 and it shall be interpreted,
administered, and enforced in accordance with that law; the Company is the "plan
administrator." To the extent that state law is applicable, the statutes and
common law of the State of Texas (excluding its choice of laws statutes or
common law) shall apply.
16. Claims
(a) When Required
You do not need to present a formal claim to receive benefits payable under
this Agreement. However, if you believe that your rights under this Agreement
are being violated, you must file a formal claim with the Company in accordance
with the procedures set forth in this Section. If the claim cannot be resolved
under these administrative procedures, the Company will pay your reasonable
attorneys' fees and related costs in enforcing your rights under this Agreement
if you ultimately prevail.
(b) Initial Claims
Your claim must be presented to the Company in writing. Within 90 days
after receiving the claim, a claims official appointed by the Company will
consider your claim and issue his or her determination in writing. The claims
official may extend the determination period for up to an additional 90 days by
giving you written notice. With your consent, the initial claim determination
period can be extended further. If you can establish that the claims official
failed to respond to your claim in a timely manner, you may treat the claim as
having been denied by the claims official.
(c) Claims Decision
If your claim is granted, the benefits or relief you are seeking will be
provided. If your claim is wholly or partially denied, the claims official,
within 90 days (or a longer period, as described above), will provide you with
written notice of the denial, setting forth, in a manner calculated to be
understood by you: (i) the specific reason or reasons for the denial; (ii)
specific references to the provisions on which the denial is based; (iii) a
description of any additional material or information necessary for you to
perfect your claim, together with an explanation of why the material or
information is necessary; and (iv) an explanation of the procedures for
appealing denied claims.
(d) Appeal of Denied Claims
You may appeal the claims official's denial of your claim in writing to an
appeals official designated by the Company (which may be a person, committee, or
other entity) for a full and fair appeal. In connection with the appeals
proceeding, you (or your duly authorized representative) may review pertinent
documents and may submit issues and comments in writing.
(e) Appeal Decision
The decision by the appeals official will be made within 60 days after your
appeal request, unless special circumstances require an extension of time, in
which case the decision will be rendered as soon as possible, but not later than
120 days after your appeal request, unless you agree to a greater extension of
that deadline. The appeals decision will be in writing, set forth in a manner
calculated to be understood by you; it will include specific reasons for the
decision, as well as specific references to the pertinent provisions of this
Agreement on which the decision is based. If you do not receive the appeals
decision by the date it is due, you may deem your appeal to have been denied.
(f) Procedures
The Company will adopt procedures by which initial claims and appeals will
be considered and resolved; different procedures may be established for
different claims. All procedures will be designed to afford you full and fair
consideration of your claim.
17. Limitation on Employee Rights
This Agreement does not give you the right to be retained in the service of
the Company.
18. Validity
The invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provision of this
Agreement.
19. Counterparts
This Agreement may be executed in several counterparts, each of which will
be deemed an original, but all of which will constitute one and the same
instrument.
20. Giving Notice
(a) To the Company
All communications from you to the Company relating to this Agreement must
be sent to the Company in writing, by certified mail, addressed as follows (or
in any other manner the Company notifies you to use):
If Mailed Citizens National Bank of Texas
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▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
If Faxed Citizens National Bank of Texas
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Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
Phone Number: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
(b) To You
All communications from the Company to you relating to this Agreement must
be sent to you in writing, by certified mail, addressed as follows (or in any
other manner you notify the Company to use):
If Mailed [Address of Officer]
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21. Definitions
(a) Agreement
"Agreement" means this contract, as it may be amended.
(b) Beneficial Owner
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3 under the
Exchange Act.
(c) Board
"Board" shall mean the Board of Directors of the Company.
(d) Cause
"Cause" shall mean any of the following:
(1) Willful Failure to Perform Duties. You continue willfully to fail to
perform your duties for the Company after a written demand for
performance has been delivered to you by the Board that specifically
identifies how you have failed to perform. Your conduct will not be
considered "willful" if you reasonably believed that you were acting
in the best interests of the Company or if your failure to perform
was caused by your physical or mental illness. You may not be
terminated for Cause under this paragraph after you have properly
notified the Company that you are resigning for Good Reason.
(2) Willful Adverse Conduct. You willfully engage in conduct that is
demonstrably and materially injurious to the Company or its
affiliates, monetarily or otherwise. Your conduct will not be
considered "willful" if you reasonably believed that you were acting
in the best interests of the Company.
(3) Conviction of a Felony. You are convicted of a felony which
substantially impairs your ability to perform your duties for the
Company.
(e) Change in Control
A "Change in Control" shall mean the first of the following to occur after
the date of this Agreement, excluding any event that is Management Action:
(1) Acquisition of Controlling Interest. Any Person becomes the Beneficial
Owner, directly or indirectly, of securities of the, Company
representing 50.1 percent or more of the combined voting power of the
Company's then outstanding securities. In applying the preceding
sentence, securities acquired directly from the Company or its
affiliates by or for the Person shall not be taken into account.
(2) Change in Board Control. During a consecutive two-year period
commencing after the date of this Agreement, individuals who
constituted the Board at the beginning of the period (or their
approved replacements, as defined in the next sentence) cease for any
reason to constitute a majority of the Board. A new director shall be
considered an "approved replacement" director if his or her election
or nomination for election was approved by a vote of at least two-
thirds of the directors then still in office who either were directors
at the beginning of the period or were themselves approved replacement
directors.
(3) Merger Approved. The shareholders of the Company approve a merger or
consolidation of the Company with any other corporation unless: (a)
the voting securities of the Company outstanding immediately prior to
the merger of consolidation would continue to represent (either by
remaining outstanding or by being converted into voting securities of
the surviving entity) at least 75 percent of the combined voting power
of the, voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation; and (b) no
Person acquires more than 30 percent of the combined voting power of
the Company's then outstanding securities.
(4) Sale of Assets. The shareholders of the Company approve an agreement
for the sale or disposition by the Company of all or substantially all
of the Company's assets.
(f) Code
"Code" shall mean the, Internal Revenue Code of 1986, as amended
periodically.
(g) Company
"Company" shall mean Citizens National Bank of Texas and any successor to
its business or assets that (by operation of law, or otherwise) assumes and
agrees to perform this Agreement. However, for purposes of determining whether a
Change in Control has occurred in connection with such a succession, the
successor shall not be considered to be the Company.
(h) Disability
"Disability" shall mean that, due to physical or mental illness: (i) you
have been absent from the full-time performance of your duties with the Company
for substantially all of a period of six consecutive months, (ii) the Company
has notified you that it intends to terminate you on account of Disability, and
(iii) you
do not resume the full-rime performance of your duties within 30 days after
receiving notice of your intended termination on account of Disability.
(i) Exchange Act
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
periodically.
(j) Good Reason
"Good Reason" shall mean the occurrence of any of the following, without
your express written consent:
(1) Demotion. Your duties and responsibilities are substantially and
adversely altered from those in effect immediately prior to the Change
in Control (or, with respect to Section 3(b), the Potential Change in
Control), other than merely as a result of the Company ceasing to be a
public company.
(2) Pay Cut. Your annual base salary is reduced.
(3) Relocation. Your principal office is transferred to another location,
which increases your one-way commute to work by more than 30 minutes,
based on your residence when the transfer was announced or, if you
consent to the transfer, the Company fails to pay (or reimburse you)
for all reasonable moving expenses you incur in changing your
principal residence in connection with the relocation and to indemnify
you against any loss you may realize when you sell your principal
residence in connection with the relocation in an arm's-length sale
for adequate consideration. For purposes of the preceding sentence,
your "loss" will be the difference between the actual sales price of
your residence and the higher of (a) your aggregate investment in the
residence; or (b) the fair market value of the residence, as
determined by a real estate appraiser designated by you and
satisfactory to the Company.
(5) Breach of Promise. The Company fails to pay you any present or
deferred compensation within seven days after it is due.
(6) Discontinuance of Compensation Plan Participation. The Company fails
to continue your participation in any compensation plan provided by
the Company to its employees.
(7) Discontinuance of Benefits. The Company stops providing you with
benefits provided by the Company to its employees under the Company's
pension, life insurance, medical, health, disability, accident,
vacation, and/or fringe benefit plans, programs, and arrangements.
(8) Improper Termination. You are purportedly terminated, other than
pursuant to a notice of termination satisfying the requirements of
Section 5.
(9) Notice of Prospective Action. You are officially notified or it is
officially announced that the Company will take any of the actions
listed above during the Term of this Agreement.
However, an event that is or would constitute Good Reason shall cease to be Good
Reason if: (a) you do not terminate employment within 45 days after the event
occurs; or (b) the Company reverses the action or cures the default that
constitutes Good Reason before you terminate employment. If you have Good
Reason to terminate employment, you may do so even if you are on a leave of
absence due to physical or mental illness or any other reason.
(k) Management Action
"Management Action" means any event, circumstance, or transaction
occurring during the six-month period following a Potential Change in Control
that results from the action of a Management Group.
(l) Management Group
"Management Group" means any entity or group that includes, is affiliated
with, or is wholly or partly controlled by one or more executive officers of the
Company in office prior to the Potential Change in Control.
(m) Person
"Person" shall have the meaning given in Section 3(a)(9) of the Exchange
Act, as modified and used in Section 13(d) of that Act, and shall include a
"group", as defined in Rule 13d-5 promulgated thereunder. However, a Person
shall not include: (i) the Company or any of its subsidiaries; (ii) a trustee
or other fiduciary holding securities under an employee benefit plan of the
Company or any of its subsidiaries; (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities; or (iv) a corporation
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company.
(n) Potential Change in Control
"Potential Change in Control" shall mean that any of the following has
occurred during the term of this Agreement, excluding any event that is
Management Action:
(1) Agreement Signed. The Company enters into an agreement that will
result in a Change in Control.
(2) Notice of Intent to Seek Change in Control. The Company or any Person
publicly announces an intention to take or to consider taking actions
that will result in a Change in Control.
(3) Board Declaration. With respect to this Agreement, the Board adopts a
resolution declaring that a Potential Change in Control has occurred.
(o) Severance Benefits
"Severance Benefits" means your benefits under Section 6 of this Agreement.
(p) Term of this Agreement
"Term of this Agreement" means the period that commences on the date of
this Agreement and ends on:
(1) Expiration. The date specified by you or the Board for expiration of
this Agreement (at least 15 months' advance written notice must be
given of this date); or
(2) Change in Control. The last day of the 24th calendar month beginning
after the calendar month in which a Change in Control occurred
during the Term of this Agreement. After a Change in Control occurs,
the end of the Term of this Agreement shall solely be determined under
this Section 21(p)(2).
Date:___________________ ________________________________
[Signature of Officer]
Date:___________________ ________________________________
▇▇▇▇▇ ▇. ▇▇▇▇
Chairman, Board of Directors
Citizens National Bank of Texas
Citizens National Bank of Texas, wholly-owned subsidiary of CNBT Bancshares,
Inc. has entered into Severance Agreements with the following officers: B. ▇▇▇▇▇
▇▇▇▇▇▇▇▇, President and Chief Executive Officer; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive
Vice President; ▇▇▇▇▇▇ ▇. ▇▇▇▇, Executive Vice President; ▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior
Vice President; ▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President; ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
President of ▇▇▇▇▇▇▇▇▇ Office; ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President of the Northwest
Office, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President of the Westheimer office. Each of the
Severance Agreements is identical.