EXHIBIT 10.2
Change-In-Control Agreement with one Executive Officer
76
October 28, 1997
Xx. Xxxxxxx X. Xxxxx
Xxxxxx/Xxxxx Bankers, Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Dear Xxx:
Cullen/Frost Bankers, Inc., a Texas corporation (the "Company"), considers the
establishment and maintenance of a sound and vital management to be essential to
protecting and enhancing the best interest of the Company and its shareholders.
In this connection, the Company recognizes that, as is the case with many
publicly held corporations, the possibility of a "Change in Control" (as
hereinafter defined) may arise and that such possibility, and the uncertainty
and questions which it may raise among management, may result in the departure
or distraction of management personnel to the detriment of the Company and its
shareholders. Accordingly, the Board of Directors of the Company (the "Board")
has determined that appropriate steps should be taken to reinforce and encourage
the continued attention and dedication of members of the Company's management to
their assigned duties without distraction in circumstances arising from the
possibility of a Change in Control of the Company. In particular, the Board
believes it important, should the Company or its shareholders receive a proposal
for transfer of control of the Company, that you be able to assess and advise
the Board whether such proposal would be in the best interests of the Company
and its shareholders and to take such other action regarding such proposal as
the Board might determine to be appropriate, without being influenced by the
uncertainties of your own situation.
In order to induce you to remain in the employ of the Company, this letter
agreement, which has been approved by the Board, sets forth the severance
benefits which the Company agrees will be provided to you in the event your
employment with the Company is terminated subsequent to a Change in Control of
the Company under the circumstances described below.
1. AGREEMENT TO PROVIDE SERVICES; RIGHT TO TERMINATE.
(i) Except as otherwise provided in paragraph (ii) below, the
Company or you may terminate your employment at any time, subject to the
Company's providing the benefits hereinafter specified in accordance with the
terms hereof.
(ii) In the event a tender offer or exchange offer is made by a
Person (as hereinafter defined) for more than 20 percent of the combined voting
power of the Company's outstanding securities ordinarily having the right to
vote at elections of directors
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("Voting Securities"), including shares of Common Stock ($5 par value) of the
Company (the "Company Shares"), you agree that you will not leave the employ of
the Company (other than as a result of Disability or upon Retirement, as such
terms are hereinafter defined) and will render the services contemplated in the
recitals to this Agreement until such tender offer or exchange offer has been
abandoned or terminated or a Change in Control of the Company, as defined in
Section 3 hereof, has occurred and the Company agrees that it will not terminate
your employment with the Company for any reason other than "Cause" as
hereinafter defined during that period. For purposes of this Agreement, the term
Person shall mean and include any individual, corporation, partnership, group,
association or other person, as such term is used in Section 14(d) of the
Securities Exchange Act of 1934 (the Exchange Act), other than the Company, a
wholly owned subsidiary of the Company or any employee benefit plan(s) sponsored
by the Company.
2. TERM OF AGREEMENT. This Agreement shall commence on the date hereof and shall
continue in effect until December 31, 1997; provided, however, that commencing
on January 1, 1998 and each January thereafter, the term of this Agreement shall
automatically be extended for one additional year unless at least 90 days prior
to such January 1st date, the Company or you shall have given notice that this
Agreement shall not be extended; and provided, further, that this Agreement
shall continue in effect for a period of twenty-four (24) months beyond the term
provided herein if a Change in Control of the Company, as defined in Section 3
hereof, shall have occurred during such term. Notwithstanding anything in this
Section 2 to the contrary, this Agreement shall terminate if you or the Company
terminate your employment prior to a Change in Control of the Company, as
defined in Section 3 hereof.
3. CHANGE IN CONTROL. For purposes of this Agreement, a Change in Control of the
Company shall mean a change in control of a nature that would be required to be
reported (assuming such event has not been previously reported) in response to
Item 1(a) of the Current Report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Exchange Act; provided that, without
limitation, such a Change in Control shall be deemed to have occurred at such
time as (a) any Person is or becomes the beneficial owner (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of 20 percent or more of
the combined voting power of the Company's Voting Securities; or (b) individuals
who constitute the Board on the date hereof (the Incumbent Board) cease for any
reason to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Company's shareholders, was approved by a vote of at least
three quarters of the directors comprising the Incumbent Board (either by a Mr.
specific vote or by approval of the proxy statement of the Company in which such
person is named as a nominee for director, without objection to such nomination)
shall be, for purposes of
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this clause (b), considered as though such person were a member of the Incumbent
Board. Notwithstanding anything in the foregoing to the contrary, no Change in
Control shall be deemed to have occurred for purposes of this Agreement by
virtue of any transaction which results in you, or a group of Persons which
includes you, acquiring, directly or indirectly, 20 percent or more of the
combined voting power of the Company's Voting Securities.
4. TERMINATION FOLLOWING CHANGE IN CONTROL. If any of the events described in
Section 3 hereof constituting a Change in Control of the Company shall have
occurred, you shall be entitled to the benefits provided in paragraphs (iii) and
(iv) of Section 5 hereof upon the termination of your employment within
twenty-four (24) months after such event, unless such termination is (a) because
of your death or Retirement, (b) by the Company for Cause or Disability or (c)
by you other than for Good Reason (as all such capitalized terms are hereinafter
defined).
(i) DISABILITY. Termination by the Company of your employment based
on Disability shall mean termination because of your absence from your duties
with the Company on a full time basis for one hundred eighty (180) consecutive
days as a result of your incapacity due to physical or mental illness, unless
within thirty (30) days after Notice of Termination (as hereinafter defined) is
given to you following such absence you shall have returned to the full time
performance of your duties.
(ii) RETIREMENT. Termination by you or by the Company of your
employment based on Retirement shall mean termination on or after your normal
retirement date under the terms of the Retirement Plan for Employees of
Cullen/Frost Bankers, Inc. and its Affiliates (or any successor or substitute
defined benefit pension plan or plans of the Company put into effect prior to a
Change in Control) or The 401(k) Stock Purchase Plan for Employees of
Cullen/Frost Bankers, Inc. and Its Affiliates (or any successor or substitute
defined contribution pension plan or plans of the Company put into effect prior
to a Change in Control), if there is no defined benefit pension plan in effect
prior to a Change in Control (the Retirement Plan).
(iii) CAUSE. Termination by the Company of your employment for Cause
shall mean termination upon (a) the willful and continued failure by you to
perform substantially your duties with the Company (other than any such failure
resulting from your incapacity due to physical or mental illness) after a demand
for substantial performance is delivered to you by the Chairman of the Board or
President of the Company which specifically identifies the manner in which such
executive believes that you have not substantially performed you duties, or (b)
the willful engaging by you in illegal conduct which is materially and
demonstrably injurious to the
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October 28, 1997
Company. For purposes of this paragraph (iii), no act, or failure to act, on
your part shall be considered willful unless done, or omitted to be done, by you
in bad faith and without reasonable belief that your action or omission was in,
or not opposed to, the best interests of the Company. Any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted by the
Board or based upon the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by you in good faith and in the best
interests of the Company. Notwithstanding the foregoing, you shall not be deemed
to have been terminated for Cause unless and until there shall have been
delivered to you a copy of a 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 (after reasonable notice to you and
an opportunity for you, together with your counsel, to be heard before the
Board), finding that in the good faith opinion of the Board you were guilty of
the conduct set forth above in (a) or (b) of this paragraph (iii) and specifying
the particulars thereof in detail.
(iv) GOOD REASON. For purposes of this Agreement, termination by you
of your employment for "Good Reason" shall mean, during the ninety (90) day
period following a Change in Control of the Company, termination based on a good
faith determination by you that, as a result of such Change in Control, you are
not able to discharge your duties effectively. Also, for purposes of this
Agreement, termination by you of your employment for "Good Reason" shall mean
termination based on:
(A) an adverse change in your status or position(s) as
an executive officer of the Company as in effect immediately prior to the Change
in Control, including, without limitation, any adverse change in your status or
position as a result of a material diminution in your duties or responsibilities
(other than, if applicable, any such change directly attributable to the fact
that the Company is no longer publicly owned) or the assignment to you of any
duties or responsibilities which, in any of such cases is inconsistent with such
status or position(s) in your reasonable judgment, or any removal of you from or
any failure to reappoint or reelect you to such position(s) (except in
connection with the termination of your employment for Cause, Disability or
Retirement or as a result of your death or by you other than for Good Reason);
(B) a reduction by the Company in your base salary as in
effect immediately prior to the Change in Control;
(C) the failure by the Company to continue in effect any
Plan (as hereinafter defined) in which you are participating at the time of the
Change in Control of the Company (or Plans providing you with at least
substantially similar benefits) other than as
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October 28, 1997
a result of the normal expiration of any such Plan in accordance with its terms
as in effect at the time of the Change in Control, or the taking of any action,
or the failure to act, by the Company which would adversely affect your
continued participation in any of such Plans on at least as favorable a basis to
you as is the case on the date of the Change in Control or which would
materially reduce your benefits in the future under any of such Plans or deprive
you of any material benefit enjoyed by you at the time of the Change in Control;
(D) the failure by the Company to provide and credit you
with the number of paid vacation days to which you are then entitled in
accordance with the Company's normal vacation policy as in effect immediately
prior to the Change in Control;
(E) the Company's requiring you to be based anywhere
other than where your office is located immediately prior to the Change in
Control except for required travel on the Company's business to an extent
substantially consistent with the business travel obligations which you
undertook on behalf of the Company prior to the Change in Control;
(F) the failure by the Company to obtain from any
Successor (as hereinafter defined) the assent to this Agreement contemplated by
Section 6 hereof; or
(G) any purported termination by the Company of your
employment which is not effected pursuant to a Notice of Termination satisfying
the requirements of paragraph (v) below (and, if applicable, paragraph (iii)
above); and for purposes of this Agreement, no such purported termination shall
be effective.
For purposes of this Agreement, Plan shall mean any compensation plan such as an
incentive, stock option or restricted stock plan or any employee benefit plan
such as a thrift, pension, profit sharing, medical, disability, accident, life
insurance plan or a relocation plan or policy or any other plan, program or
policy of the Company intended to benefit employees.
(v) NOTICE OF TERMINATION. Any purported termination by the Company
or by you following a Change in Control shall be communicated by written Notice
of Termination to the other party hereto. For purposes of this Agreement, a
Notice of Termination shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
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(vi) DATE OF TERMINATION. Date of Termination following a Change in
Control shall mean (a) if your employment is to be terminated for Disability,
thirty (30) days after Notice of Termination is given (provided that you shall
not have returned to the performance of your duties on a full-time basis during
such thirty (30) day period), (b) if your employment is to be terminated by the
Company for Cause or by you pursuant to Sections 4(iv)(F) and 6 hereof or for
any other Good Reason, the date specified in the Notice of Termination, which in
no event shall be a date earlier than the date on which a Notice of Termination
is given, or (c) if your employment is to be terminated by the Company for any
reason other than Cause, the date specified in the Notice of Termination, which
in no event shall be a date earlier than ninety (90) days after the date on
which a Notice of Termination is given, unless an earlier date has been
expressly agreed to by you in writing either in advance of, or after, receiving
such Notice of Termination. In the case of termination by the Company of your
employment for Cause, if you have not previously expressly agreed in writing to
the termination, then within thirty (30) days after receipt by you of the Notice
of Termination with respect thereto, you may notify the Company that a dispute
exists concerning the termination, in which event the Date of Termination shall
be the date set either by mutual written agreement of the parties or by the
arbitrators in a proceeding as provided in Section 13 hereof. During the
pendency of any such dispute, the Company will continue to pay you your full
compensation in effect just prior to the time the Notice of Termination is given
and until the dispute is resolved in accordance with Section 13.
5. COMPENSATION UPON TERMINATION OR DURING DISABILITY; OTHER AGREEMENTS.
(i) During any period following a Change in Control that you fail to
perform your duties as a result of incapacity due to physical or mental illness,
you shall continue to receive your salary at the rate then in effect and any
benefits or awards under any Plans shall continue to accrue during such period,
to the extent not inconsistent with such Plans, until your employment is
terminated pursuant to and in accordance with paragraphs 4(i) and 4(vi) hereof.
Thereafter, your benefits shall be determined in accordance with the Plans then
in effect.
(ii) If your employment shall be terminated for Cause following a
Change in Control of the Company, the Company shall pay you your salary through
the Date of Termination at the rate in effect just prior to the time a Notice of
Termination is given plus any benefits or awards (including both the cash and
stock components) which pursuant to the terms of any Plans have been paid to
you. Thereupon the Company shall have no further obligations to you under this
Agreement.
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(iii) Subject to Section 8 hereof, if, within twenty-four (24)
months after a Change in Control of the Company shall have occurred, as defined
in Section 3 above, your employment by the Company shall be terminated (a) by
the Company other than for Cause, Disability or Retirement, or (b) by you for
Good Reason then, by no later than the fifth day following the Date of
Termination (except as otherwise provided), you shall be entitled, without
regard to any contrary provisions of any Plan, to the benefits as provided
below:
(A) the Company shall pay your salary through the Date
of Termination at the rate in effect just prior to the time a Notice of
Termination is given plus any benefits or awards (including both the cash and
stock components) which pursuant to the terms of any Plans have been earned or
become payable, but which have not yet been paid to you (including amounts which
previously had been deferred at your request); and
(B) as severance pay and in lieu of any further salary
for periods subsequent to the Date of Termination, the Company shall pay to you
an amount in cash equal to two and 99/100 (2.99) times your annualized
includible compensation for the base period (as defined in Section 280G(d)(1) of
the Internal Revenue Code of 1986 (the Code) and any regulations issued
thereunder).
(iv) Following a Change in Control of the Company, unless you are
terminated for Cause, Disability or Retirement or you terminate your employment
other than for Good Reason, the Company shall maintain in full force and effect,
for the continued benefit of you, your spouse, and your dependents for a period
terminating on the earliest of (a) the commencement date of equivalent benefits
from a new employer or (b) your normal retirement date under the terms of the
Retirement Plan, all insured and self-insured employee welfare benefit Plans in
which you were entitled to participate immediately prior to the Date of
Termination, provided that your continued participation is possible under the
general terms and provisions of such Plans (and any applicable funding media)
and you continue to pay an amount equal to your regular contribution under such
Plans for such participation as adjusted for any increases in contributions or
premiums in the same manner as other participants in the Plans. If you reach
your normal retirement date as defined in the Retirement Plan and you have not
previously received or are not then receiving equivalent benefits from a new
employer, the Company shall arrange, at its sole cost and expense, to enable you
to convert your, your spouse's, and your dependents' coverage under such Plans
to individual policies or programs upon the same terms as employees of the
Company may apply for such conversions. In the event that your participation in
any such Plan is barred, the Company, at its sole cost and expense, shall
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arrange to have issued for the benefit of you, your spouse, and your dependents
individual policies of insurance providing benefits substantially similar (on an
after-tax basis) to those which you otherwise would have been entitled to
receive under such Plans pursuant to this paragraph (iv) or, if such insurance
is not available at a reasonable cost to the Company, the Company shall
otherwise provide you and your dependents equivalent benefits (on an after-tax
basis). You shall not be required to pay any premiums or other charges in an
amount greater than that which you would have paid in order to participate in
such Plans as adjusted to reflect increased charges in the same manner as
adjusted for other participants in the Plans.
(v) Except as specifically provided in paragraph (iv) above, the
amount of any payment provided for in this Section 5 shall not be reduced,
offset or subject to recovery by the Company by reason of any compensation
earned by you as the result of employment by another employer after the Date of
Termination, or otherwise.
6. SUCCESSORS; BINDING AGREEMENT.
(i) Upon your written request, the Company will seek to have any
Successor (as hereinafter defined), by agreement in form and substance
satisfactory to you, assent to the fulfillment by the Company of its obligations
under this Agreement. Failure of such Person to furnish such assent by the later
of (A) three business days prior to the time such Person becomes a Successor or
(B) two business days after such Person receives a written request to so assent
shall constitute Good Reason for termination by you of your employment and, if a
Change in Control of the Company occurs or has occurred, shall entitle you
immediately to the benefits provided in paragraphs (iii) and (iv) of Section 5
hereof upon delivery by you of a Notice of Termination. For purposes of this
Agreement, Successor shall mean any Person that succeeds to, or has the
practical ability to control (either immediately or with the passage of time),
the Company's business directly, by merger or consolidation, or indirectly, by
purchase of the Company's Voting Securities, all or substantially all of its
assets, or otherwise.
(ii) This Agreement shall inure to the benefit of and be enforceable
by your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If you should die while
any amount would still be payable to you hereunder if you had continued to live,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to your devisee, legatee or other designee or,
if there be no such designee, to your estate.
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(iii) For purposes of this Agreement, the Company shall include any
corporation or other entity which is the surviving or continuing entity in
respect of any merger, consolidation or form of business combination in which
the Company ceases to exist.
7. FEES AND EXPENSES; MITIGATION.
(i) The Company shall pay all reasonable legal fees and related
expenses incurred by you in connection with the Agreement following a Change in
Control of the Company, including, without limitation, (a) all such fees and
expenses, if any, incurred in contesting or disputing any such termination or
incurred by you in seeking advice with respect to the matters set forth in
Section 8 hereof or (b) your seeking to obtain or enforce any right or benefit
provided by this Agreement; provided, however, you shall be required to repay
any such amounts to the Company to the extent that a court issues a final and
non-appealable order setting forth the determination that the position taken by
you was frivolous or advanced by you in bad faith.
(ii) You shall not be required to mitigate the amount of any payment
the Company becomes obligated to make to you in connection with this Agreement,
by seeking other employment or otherwise.
8. TAXES.
(i) All payments to be made to you under this Agreement will be
subject to required withholding of federal, state and local income and
employment taxes.
(ii) Notwithstanding anything in the foregoing to the contrary, if
any of the payments provided for in this Agreement, together with any other
payments which you have the right to receive from the Company or any corporation
which is a member of an affiliated group (as defined in Section 1504(a) of the
Code without regard to Section 1504(b) of the Code) of which the Company is a
member, would constitute a parachute payment (as defined in Section 280G(b)(2)
of the Code), the payments pursuant to this Agreement shall be reduced (reducing
first the payments under Section 5(iii)(B)) to the largest amount as will result
in no portion of such payments being subject to the excise tax imposed by
Section 4999 of the Code; provided, however, that the determination as to
whether any reduction in the payments under this Agreement pursuant to this
proviso is necessary shall be made by you in good faith, and such determination
shall be conclusive and binding on the Company with respect to its treatment of
the payment for tax reporting purposes.
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9. SURVIVAL. The respective obligations of, and benefits afforded to, the
Company and you as provided in Sections 5, 6(ii), 7, 8, 13 and 14 of this
Agreement shall survive any termination of this Agreement following a Change in
Control.
10. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid and addressed, in the
case of the Company, to the address set forth on the first page of this
Agreement or, in the case of the undersigned employee, to the address set forth
below his signature, provided that all notices to the Company shall be directed
to the attention of the Chairman of the Board or President of the Company, with
a copy to the Secretary of the Company, or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon receipt.
11. MISCELLANEOUS. No provision of this Agreement may be modified, waived or
discharged unless such modification, waiver or discharge is agreed to in writing
signed by you and the Chairman of the Board or President of the Company. No
waiver by either party hereto at any time of any breach by the other party
hereto of, or of 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, express or implied,
with respect to the subject matter hereof have been made by either party which
are not expressly set forth in this Agreement. Notwithstanding any provisions to
the contrary, the Board reserves the right to provide you with additional
benefits, including, but not limited to, providing benefits hereunder in excess
of the limitations described in Section 8, which the Board determines are
appropriate in its sole discretion. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
Texas.
12. GOVERNING LAW; VALIDITY. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Texas. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
13. ARBITRATION. Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration in the nearest local
office of the American Arbitration Association (AAA) in accordance with the
rules of the AAA then in effect or by
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three arbitrators who have been selected by mutual agreement of the parties who
proceed in accordance with the rules of the AAA then in effect. Judgment may be
entered on the arbitrators' award in any court having jurisdiction; provided,
however, that you shall be entitled to seek specific performance of your right
to be paid until the Date of Termination during the pendency of any dispute or
controversy arising under or in connection with this Agreement. The Company
shall bear all costs and expenses arising in connection with any arbitration
proceeding pursuant to this Section 13.
14. EMPLOYEE'S COMMITMENT. You agree that subsequent to your period of
employment with the Company, you will not at any time communicate or disclose to
any unauthorized person without the written consent of the Company, any
proprietary processes of the Company or any subsidiary or other confidential
information concerning their business, affairs, products, suppliers or customers
which, if disclosed, would have a material adverse effect upon the business or
operations of the Company and its subsidiaries, taken as a whole; it being
understood, however, that the obligations of this Section 14 shall not apply to
the extent that the aforesaid matters (a) are disclosed in circumstances where
you are legally required to do so or (b) become generally known to and available
for use by the public otherwise than by your wrongful act or omission. The
intent of this Section 14 is not to create a non-competition agreement but to
protect the rights of the Company as provided above.
15. RELATED AGREEMENTS. To the extent that any provision of any other agreement
between the Company or any of its subsidiaries and you shall limit, qualify or
be inconsistent with any provision of this Agreement, then for purposes of this
Agreement, while the same shall remain in force, the provision of this Agreement
shall control and such provision of such other agreement shall be deemed to have
been superseded, and to be of no force or effect, as if such other agreement had
been formally amended to the extent necessary to accomplish such purpose.
16. COUNTERPARTS. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
17. TERMINATION OF PRIOR LETTER AGREEMENT. THIS AGREEMENT IS INTENDED TO REPLACE
IN ITS ENTIRETY THE LETTER AGREEMENT DATED MARCH 13, 1994 ("PRIOR AGREEMENT")
REGARDING A CHANGE IN CONTROL OF THE COMPANY. BY MUTUAL AGREEMENT, THE PRIOR
AGREEMENT IS HEREBY DECLARED NULL AND VOID. THE RESPECTIVE OBLIGATIONS AND THE
BENEFITS PROVIDED IN THE PRIOR AGREEMENT ARE TERMINATED.
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If this letter correctly sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter which
will then constitute our agreement on this subject.
Sincerely,
Cullen/Frost Bankers, Inc.
By: /s/Xxxxxxx X. Xxxxx, Xx.
----------------------------------
Xxxxxxx X. Xxxxx, Xx.
Chairman
Agreed to this 17th day
of November.
/s/ Xxx Xxxxx
-------------------------------------
Employee Signature
Printed Name: Xxx Xxxxx
Address: X.X. Xxx 0000
Xxx Xxxxxxx, Xxxxx
00000
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