Exhibit 10.2
SOUTHWEST BANCORP, INC AND AFFILIATES
AMENDED AND RESTATED SEVERANCE COMPENSATION PLAN
The Stillwater National Bank and Trust Company Severance Compensation
Plan originally was made and entered into by Stillwater National Bank and Trust
Company, for the benefit of certain officers, key management and highly
compensated employees effective June 24, 1993, and was amended and restated
effective July 24, 1997. It is hereby further amended and restated as of August
26, 2004. The purpose of the Plan as amended and restated is to protect and
retain certain officers, key management and highly compensated employees of
Southwest Bancorp, Inc. ("Southwest") and its affiliates in the event of a
Change in Control and to reward those employees for loyal service to Southwest
by providing for severance compensation to them upon their termination of
employment after a Change in Control as provided herein.
ARTICLE I
DEFINITIONS
The terms defined in this Article shall have the meanings given below:
1.1 AFFILIATE means any corporation, partnership, business trust,
or other business entity of which Southwest has or acquires
direct or indirect voting power over 50 percent or more of the
outstanding common shares or equivalent voting interests, and
shall include, without limitation, SNB-Stillwater and
SNB-Wichita.
1.2 ANNUAL EARNINGS means one-year's Earnings at the higher of the
rate in effect;
(a) upon the Change in Control; or
(b) immediately prior to the Participant's Qualified
Termination of Service.
1.3 BOARD means:
(a) the Board of Directors of Southwest; and
(b) the Board of Directors of the Southwest Company that
employs, or intends to employ, the Participant at the
date the Participant is selected for participation in
the Plan, unless that Southwest Company does not
execute the Plan.
1.4 CHANGE IN CONTROL means:
(a) the date any entity or person, including a group as
defined in Section l3(d)(iii) of the Securities
Exchange Act of 1934 shall become the beneficial
owner of, or shall have obtained voting control over,
50 percent or more of the outstanding common shares
of either Southwest or SNB-Stillwater;
(b) the date the shareholders of either Southwest or
SNB-Stillwater approve a definitive agreement (i) to
merge or consolidate either Southwest or
SNB-Stillwater with or into another corporation in
which either Southwest or SNB-Stillwater,
respectively, is not the continuing or surviving
corporation or pursuant to which any common shares of
either Southwest or SNB-Stillwater would be converted
into cash, securities, or other property of another
other than a merger of either Southwest or
SNB-Stillwater in which holders of common shares
immediately prior to the merger have the same
proportionate interest of common stock of the
surviving corporation immediately after the merger as
immediately before, or (ii) to sell or otherwise
dispose of substantially all of the assets of either
Southwest or SNB-Stillwater; or
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(c) the date there shall have been change in a majority
of the Board of either Southwest or SNB-Stillwater
within a 12 month period unless the nomination of
each new director was approved by the vote of
two-thirds (2/3) of directors then still in office
who were in office at the beginning of the 12 month
period.
1.5 CODE means the Internal Revenue Code of 1986, as amended.
1.6 COMMITTEE means the Committee appointed by the respective
Board to administer this Plan. Any function exercisable by
such Committee may also be exercised by the Board.
1.7 EARNINGS means only the annual rate of salary (base cash
compensation) payable to the Participant by Southwest and any
Affiliates of the Bank, and shall not include overtime, bonus,
commissions, or any non-cash amounts (including amounts
attributable to stock options). Earnings shall not be reduced
by amounts excluded from gross income under Sections 125,
402(a)(8) or 402(h) or limited as provided under Section
401(a)(17) of the Internal Revenue Code of 1986, as amended
("Code").
1.8 EFFECTIVE DATE means June 24, 1993.
1.9 GOOD REASON shall mean:
(a) a reduction in Participant's Earnings in effect
immediately prior to a Change in Control or as
increased thereafter;
(b) the assignment of Participant without Participant's
consent to (i) a location outside of the metropolitan
statistical area ("MSA") in which such Participant
was assigned at the date of the Change in Control, or
(ii) if Participant was not assigned in an MSA at
such date, a location more than 75 miles from the
location to which Participant was assigned at the
date of the Change in Control;
(c) a material reduction in the authority or
responsibility that Participant had immediately prior
to the Change in Control; or
(d) a material reduction in the level of incentive
compensation or benefits of a Participant from those
in effect immediately prior to a Change in Control
except such reductions as are applicable to all
employees or key executives generally and which do
not have a disproportionate effect on Participant.
1.10 PARTICIPANT means an employee of a Southwest Company selected
for participation in the Plan by the Board or Committee.
1.11 PLAN means this Amended and Restated Severance Compensation
Plan and amendments hereto.
1.12 PRINCIPAL EMPLOYER means the Southwest Company that provided
the majority of earnings to a Participant during the twelve
months prior to a Qualifying Termination of Service,
Termination for Cause, or request for arbitration, as the case
may be, and any successor thereto that is a Southwest Company.
1.13 QUALIFYING TERMINATION OF SERVICE means either:
(a) a Participant's involuntary termination of employment
with the Bank and its subsidiaries or their
successors; or
(b) a Participant's voluntary termination of employment
with the Bank and its subsidiaries for Good Reason,
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in either case within two (2) years following the first Change
in Control occurring after the Effective Date. Qualifying
Termination of Service does not include any change in the
Participant's employment status due to disability or death or
a Termination for Cause.
1.14 SNB-STILLWATER means Stillwater National Bank and Trust
Company and any successor corporation.
1.15 SNB-WICHITA means SNB Bank of Wichita and any successor
corporation.
1.16 SOUTHWEST means Southwest Bancorp, Inc., and any successor
corporation.
1.17 SOUTHWEST COMPANY means Southwest Bancorp, Inc. or any of its
Affiliates.
1.18 TERMINATION FOR CAUSE means a Participant's termination of
employment with any Southwest Company because of:
(a) the continued failure by the Participant to devote
reasonable time and effort to the performance of
Participant's duties (other than a failure resulting
from the Participant's incapacity due to physical or
mental illness) after written demand for improved
performance has been delivered to the employee by the
Participant's Principal Employer which specifically
identifies:
(i) how the Participant has not devoted
reasonable time and effort to the
performance of Participant's duties; or
(ii) the willful engaging by Participant in
misconduct that is materially injurious to
any Southwest Company, monetarily or
otherwise; or
(iii) the Participant's ineligibility for coverage
under a banker's blanket bond policy
maintained on or on behalf of any Southwest
Company that is a depository institution.
Unless such acts caused the Participant to be ineligible for
coverage under a banker's blanket bond policy, a Termination
for Cause shall not include a termination attributable to: (i)
bad judgment or negligence on the part of the Participant
other than habitual negligence; or (ii) an act or omission
believed by the Participant in good faith to have been in or
not opposed to the best interests of the Southwest Companies
and reasonably believed by the Participant to be lawful; or
(iii) the good faith conduct of a Participant in connection
with a Change in Control (including Participant's opposition
to or support of the Change in Control).
ARTICLE II
BENEFITS
2.1 DESIGNATION OR PARTICIPANTS. The Participants shall be those
employees of Southwest or its Affiliates listed on Exhibit A
and others designated by the Board or the Committee from time
to time as Participants in the Plan.
2.2 SEVERANCE COMPENSATION.
(a) Upon the Qualifying Termination of Service of any
Participant, the terminated Participant shall be
entitled to severance compensation equal to the
percentage of the Participant's Annual Earnings
designated on Exhibit A or by the Board or the
Committee at the time the employee is selected for
participation in the Plan, but in no event greater
than 150% of a Participant's Annual Earnings or the
amount which would be deductible by the Southwest
Companies under Code Section 280(G), after taking
into consideration all payments to such Participant
covered by such section. The Severance Compensation
shall be paid to the Participant by its Principal
Employer in a single, lump sum payment promptly after
Participant's Qualifying Termination of Service. All
payments of severance benefits shall be reduced by
the amount of applicable Federal, State, and local
withholding taxes, and FICA and FUTA taxes.
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(b) If the Principal Employer of a Participant designated
by the Board or the Committee has not executed this
Plan, any obligation to that Participant under this
Plan not paid by Affiliates of Southwest shall be
paid by Southwest.
2.3 NO FUNDING OR PAYMENTS. All compensation due a Participant
under this Plan is unfunded and unsecured and is payable out
of general funds of the respective Southwest Company or
Companies.
2.4 TIMING OF PAYMENTS. If severance compensation is not paid
within thirty (30) days of the Qualifying Termination of
Service, there shall be paid, in addition to such amount,
interest on the amount due at a rate of 5% in excess of the
prime rate as published in the Wall Street Journal-Southwest
Edition from time to time (or at the highest of such rates if
a range is published) from the date which is thirty (30) days
following the Qualifying Termination of Service to the date of
payment.
ARTICLE III
MISCELLANEOUS PROVISIONS
3.1 PLAN ADMINISTRATION. The general administration of this Plan
shall be the responsibility of the Committee. The good faith
determination of the Committee with respect to the
administration of this Plan shall be final and conclusive.
3.2 NO GUARANTEE OF EMPLOYMENT. Nothing contained herein shall be
construed as a contract of employment or be deemed to give any
Participant the right to be retained in the employ of any
Southwest Company, or to interfere with the rights of any such
employer to discharge any individual at any time, with or
without cause. No severance compensation shall be payable
hereunder as a result of any termination of employment
occurring prior to a Change in Control.
3.3 AMENDMENT AND TERMINATION. The Board may at any time, or from
time to time, amend this Plan in any respect or terminate this
Plan without restriction and without consent of any
Participant or beneficiary, provided, that any such amendment
or termination shall not impair the rights of any Participant
hereunder without the consent of such Participant. Once a
Participant has been selected by the Board, this Plan shall
constitute a contract between the Participant and the
Southwest Company or Companies that employed participant at
the later of the date of such selection or the Participant's
first day of employment thereafter by a Southwest Company.
3.4 NON-ALIENATION OF BENEFITS. No benefit payable hereunder may
be assigned, pledged, mortgaged or hypothecated and, except to
the extent required by applicable law, no such benefit shall
be subject to legal process or attachment for the payment of
any claims of a creditor of a Participant.
3.5 PAYMENT TO REPRESENTATIVES. If any Participant dies after a
Qualifying Termination of Service and before receipt of
payment hereunder, the severance compensation otherwise due to
such Participant shall be payable to Participant's estate. If
any individual entitled to receive any benefits hereunder is
determined by the Committee or is adjudged to be legally
incapable of giving valid receipt and discharge for such
benefits, they shall be paid to the duly appointed and acting
guardian, if any, and if no such guardian is appointed and
acting, to such persons as the Committee may designate. Such
payment shall, to the extent made, be deemed a complete
discharge for such payments under this Plan.
3.6 GOVERNING LAW. The provisions of this Plan shall be construed
under the laws of the State of Oklahoma except as preempted by
federal law.
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3.7 TITLES AND HEADINGS. The titles to articles and headings of
sections of this Plan are for convenience of reference and, in
case of any conflict, the text of the Plan, rather than such
titles and headings, shall control.
3.8 LEGALITY. No Southwest Company shall have any obligation to
make any payments under this plan to the extent such payments
would be in violation of Section 18(k)(j) of the Federal
Deposit Insurance Act or any other law or regulation directly
applicable to the Southwest Company.
3.9 RESOLUTION OR DISPUTES. Any dispute between a Participant or a
Southwest Company or any successor, shall be first submitted
to mediation under the Commercial Mediation Rules of the
American Arbitration Association, which may be initiated by a
written request by Participant or the Participant's Principal
Employer. If such dispute is not resolved within sixty days of
the written request for mediation, it shall be submitted to
arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association and judgment
upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. In connection with such
mediation and arbitration, the following rules shall apply:
(a) Any mediation shall be held in the city in which the
Participant resides at the time of Submission to
mediation;
(b) Any mediation or arbitration shall be conducted by a
single person who shall serve as both mediator and
arbitrator; and
(c) The costs of any mediation and arbitration shall be
borne by the Principal Employer or, if the Principal
Employer of a Participant designated by the Board or
the Committee has not executed this Plan, any
obligation to that Participant under this Plan for
such costs not paid by Affiliates of Southwest shall
be paid by Southwest.
IN WITNESS WHEREOF, the undersigned have executed this Agreement this
26th day of August, 2004.
Attest: [seal] SOUTHWEST BANCORP, INC.
By: /s/ Kerby E. Crowell By: /s/Rick Green
-------------------------------- --------------------------------
Secretary President and Chief Executive
Officer
STILLWATER NATIONAL BANK AND
Attest: [seal] AND TRUST COMPANY
By: /s/Kerby E. Crowell By: /s/ Rick Green
-------------------------------- --------------------------------
Secretary President and Chief Executive
Officer
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EXHIBIT A
Severance Compensation Expressed
Participants as a Percentage of Annual Earnings
- ------------ ----------------------------------
Kerby E. Crowell 200%
Rick J. Green 300%
Steven N. Hadley 100%
Rex Horning 100%
Jerry Lanier 200%
Leonard M. McLaughlin 100%
Steve M. Peterson 100%
Joseph P. Root 100%
Kimberly G. Sinclair 100%
Gary Teel 100%
Charles Westerheide 100%
David L. York 100%
Scott B. Jones 50%
Sharon L. Knight 50%
Elaine E. Skillman 50%
Kay W. Smith 50%
* * *
Pursuant to Resolution of the Board of Directors
Date: February 24, 2005
--------------------------
Attest: [seal] SOUTHWEST BANCORP, INC.
By: /s/ Kerby E. Crowell By: /s/ Rick Green
-------------------------------- ------------------------------
Secretary President and Chief Executive
Officer
STILLWATER NATIONAL BANK AND
Attest: [seal] AND TRUST COMPANY
By: /s/ Kerby E. Crowell By: /s/ Rick Green
-------------------------------- ------------------------------
Secretary President and Chief Executive
Officer
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