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EXHIBIT 10(m)
SENIOR MANAGER EMPLOYMENT AGREEMENT
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This Agreement (the "Agreement") is made and entered into as of
December 22, 1993, between BancTEXAS Group Inc., a Delaware corporation
(the "Company"), and David F. Weaver (the "Manager").
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WHEREAS, the Manager is a key employee of the Company and has made
and is expected to continue to make major contributions to the
profitability, growth and financial strength of the Company; and
WHEREAS, the Company wishes to induce its key employees to remain
in the employment of the Company and to assure itself of both present
and future continuity of management in the event of any actual or
threatened change in control of the Company;
NOW, THEREFORE, the parties hereby accept that the Company shall employ
the Manager, and the Manager shall accept employment from the Company,
upon the terms and conditions hereinafter set forth.
ARTICLE I
OPERATION AND TERM
1.1 Operation of Agreement. This Agreement shall be effective as of
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the date first written above but, anything in this Agreement to the
contrary notwithstanding, neither this Agreement nor any of its
provisions shall be operative unless and until there has been a Change
of Control (as hereinafter defined) of the Company (the "Operative Date").
If the aforementioned Change of Control has not occurred by 12:01 A.M.
Dallas, Texas, time on December 31, 1994, this Agreement shall
automatically, without necessity of any further or additional act or deed
on the part of the parties hereto, or either of them, cease to be of any
continuing force or effect.
1.2 Term. Unless sooner terminated as permitted by Article IV of
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this Agreement, the Term (herein so called) of this Agreement shall commence
as of the Operative Date and shall expire at 12:01 A.M. Dallas, Texas,
time on January 1, 1995.
ARTICLE II
EMPLOYMENT
2.1 Position. The Company shall continue the Manager in the employ
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of the Company as the President South Texas Region for the Term. During
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such period, the Manager shall have the powers and duties hereinafter
set forth in this Article II below and such other powers and duties as
may be consistent with this Agreement.
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2.2 Duties. The Manager shall have such authority with respect to
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the business and affairs of the Company as may be specified by the Chief
Executive Officer of the Company, and shall perform such other duties
as are specified in the Bylaws of the Company or the Bank or as the
Board of Directors of the Company or the Bank (the "Board") may from
time to time direct consistent with this Agreement. The Manager shall
faithfully exercise all the powers and authority, and shall perform all
the duties, pertaining to the office set forth in Section 2.1 hereof
in a manner consistent with the direction of the Board and the Chief
Executive Officer.
2.3 Full Time. During the Term, the Manager shall devote his full working
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time, best efforts and undivided attention to the business and affairs
of the Company except for reasonable vacations and except for illness or
incapacity, but nothing in this Agreement shall preclude the Manager from
devoting reasonable periods required for engaging in charitable and community
activities, and managing his personal investments, in each case so long as
such activities do not interfere with the proper performance of his
duties hereunder.
ARTICLE III
COMPENSATION
3.1 Salary. For all services rendered by the Manager in any capacity
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during the Term, the Manager shall be paid as compensation a base salary
payable monthly at the rate of no less than $107,500 per year, with such
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merit increases in such rate as shall be awarded from time to time by
the Board.
3.2 Bonus. In addition to the salary to be paid as provided in
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Section 3.1 above, the Board shall annually agree upon the basis on
which the Manager may receive an annual performance incentive award.
3.3 Other Benefits. During the Term, the Manager shall be entitled to
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perquisites customarily enjoyed by a similarly situated officer of a
corporation such as the Company, including without limitation an office
and secretarial and clerical staff, and to like fringe benefits,
including without limitation all employee benefits offered by the
Company to its employees generally, as well as to reimbursement, upon
proper accounting, of reasonable expenses and disbursements incurred
by him in the course of his duties.
3.4 Indemnification. During the Term, the Company shall indemnify
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the Manager against all judgments, penalties, fines, amounts paid in
settlement and reasonable expenses actually incurred by the Manager in
connection with any threatened, pending or completed action, suit or
proceeding ("Proceeding") to which he was or is named defendant or
respondent by reason of his serving or having served as an officer or
director of the Company or, at the
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Company's request, as a director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, including but not limited to the Bank, if it is determined in
accordance with the Bylaws of the Company that the Manager (a) conducted
himself in good faith, (b) reasonably believed that his conduct was in
the Company's best interest and (c) had no reasonable cause to believe
that his conduct was unlawful. No indemnification shall be made under this
Section 3.4 in respect of any Proceeding in which the Manager shall have
been found liable on the basis that a personal benefit was improperly
received by him. The indemnification provided by this Section 3.4 shall
not be deemed exclusive of, or to preclude, any other rights to which
the Manager may at any time be entitled under the Company's or the Bank's
Bylaws, any law, agreement or vote of shareholders or directors, or
otherwise, or under any policy of insurance purchased and maintained by
the Company on behalf of the Manager.
3.5 Withholding. All payments made by the Company hereunder to the
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Manager or his estate or beneficiaries shall be subject to the
withholding of such amounts, if any, relating to tax and other payroll
deductions as the Company may reasonably determine are required to be
withheld pursuant to any applicable law or regulation. In lieu of
withholding such amounts, the Company may accept other provisions to the
end that it has sufficient funds to pay all taxes required by law to be
withheld in respect of any or all of such payments.
ARTICLE IV
TERMINATION
4.1 Termination.
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(a) As used in this Agreement, "Termination" shall mean:
(i) The death of the Manager;
(ii) The total mental or physical disability (the "Disability") of
the Manager which prevents the Manager from substantially performing
his duties under this Agreement (as determined by a majority of three
doctors of medicine, one each of whom shall be appointed by the
Manager or his representative and the Company, respectively, within
ten days after written notice by either party to the other, and the
third of whom shall be appointed jointly by the two previously
appointed physicians within ten days after the later of their two
appointments; provided that if any such appointment is not made within
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the applicable ten-day period, either party shall be entitled to have
such appointment made by the American Arbitration Association), and
the continuance of the Disability for a period of 180 consecutive
days. The Company
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shall pay the fees and expenses of each physician appointed pursuant
to the preceding sentence;
(iii) The voluntary resignation by the Manager from his
employment with the Company for a reason other than that described
in Section 4.1(a)(vi) below, which shall be made by written notice
to the Board specifying an effective date of such resignation;
(iv) The termination of the Manager by the Company for Cause (as
hereinafter defined) by written notice to the Manager specifying an
effective date of termination on or after the date of such notice;
(v) Termination of the Manager without Cause by the Company or
the Bank, which shall have occurred at any time prior to the first
anniversary of the date that the Change of Control (as herein defined)
was effective; or
(vi) A voluntary resignation by the Manager after a determination
by the Manager made in good faith that upon or after the occurrence
of a Change of Control a significant reduction or other adverse
change has occurred in the nature or scope of the responsibilities
and authorities or compensation of the Manager attached to the
Manager's position or, except for a move to or from Houston, Dallas,
Irving, or McKinney, Texas, a change of more than thirty-five (35) miles
has occurred in the location of the Manager's principal office, which
shall have occurred at any time prior to the first anniversary of the
date that the Change of Control (as herein defined) was effective.
(b) In the event of Termination, the Company shall pay the Manager
an amount computed as follows:
(i) if the Termination is pursuant to Section 4.1(a)(i), the
Company shall pay to the estate of the Manager, not later than thirty
(30) days following the date of such Termination, a cash sum equal
to the base salary then in effect for the Manager prorated up to and
including the date of Termination;
(ii) if the Termination is pursuant to Section 4.1(a)(ii), the
Company shall pay to the Manager or his representative not later than
thirty (30) days following the date of such Termination, a cash sum
equal to one year's salary;
(iii) if the Termination is pursuant to Section 4.1(a)(iii) or (iv),
the Company shall pay to the Manager or his representative the base
salary then in effect for the Manager prorated up to and including
the date of Termination; or
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(iv) if the Termination is pursuant to Section 4.1(a)(v) or (vi),
the Company shall pay to the Manager or his representative, not later
than the fifth day following the date of such Termination, a lump sum
payment (the "Payment") equivalent to one year's salary, paid by the
Company (or any corporation affiliated with the Company within the
meaning of Section 1504 of the Internal Revenue Code of 1986, as amended,
[the "Code"]). It is the intention of the parties hereto that no
portion of the Payment shall constitute a "parachute payment" within
the meaning of Section 280G(b)(2)(A) and (B) of the Code (without
regard to Section 280G(b)(2)(A)(ii) thereof).
In addition to all other amounts payable to the Manager under this Agreement,
the Manager shall be entitled to receive all benefits payable under the
Company's pension plan, and any other plan or agreement relating to
retirement benefits or to compensation previously earned and not yet paid,
in accordance with the respective terms of such plans or agreements.
(c) The parties acknowledge and agree that the compensation to be
paid by the Company to the Manager as a result of any Termination shall
be limited to the amount specified in Subsection (b) of Section 4.1 and the
Manager shall not be entitled to any further salary or benefits (other
than those accrued at the time of such Termination under Company
retirement or profit sharing plans) from the Company after such
Termination, and no payment hereunder shall be due and payable by the
Company to the Manager at such time to the extent that such payment, if
made, would be duplicative of any other payment receivable by the
Manager from the Company under another employment agreement or other
similar arrangement. In consideration for the payment provided in
Subsection 4.1(b) (or by any such other aforementioned employment
agreement or similar arrangement), the Manager hereby releases the
Company from any claims or liability for additional salary or benefits
(other than those accrued at the time of such Termination under Company
retirement or profit sharing plans) during the Term under this Agreement.
4.2 Definitions.
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(a) As used in this Agreement, "Cause" shall mean and include only:
(i) an Act of fraud, embezzlement or theft constituting a felony
and resulting or intended to result directly or indirectly in
substantial personal gain to the Manager at the expense of the
Company or the Bank;
(ii) if the Manager has failed to devote substantially all of his
business time (that is time after giving effect to illness, permitted
vacations and other customary absences) during normal business hours
to the business and affairs of
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the Company or the Bank and does not cure such failure within ten (10)
days after written notice thereof; or
(iii) a gross violation of Company policy.
(b) As used in this Agreement, a "Change of Control" of the Company
shall have occurred if (A) the Company is merged or consolidated with
another corporation and as a result of such merger or consolidation
less than seventy-five percent (75%) of the outstanding voting securities
of the surviving or resulting corporation are owned in the aggregate by
the former stockholders of the Company, or (B) the Company sells all or
substantially all of its assets to another corporation, which is not a
wholly-owned subsidiary of the Company, or (C) there is an acquisition of
twenty-five percent (25%) or more of the outstanding voting securities of
the Company (whether directly, indirectly, beneficially or of record)
pursuant to any transaction or combination of transactions by any person
or group within the meaning of the Securities Exchange Act of 1934, or (D)
there is a change of control of the Company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as
amended, whether or not the Company is then subject to such reporting
requirements, or (E) within any period of twelve consecutive months
individuals who at the beginning of such period constitute the Board of
Directors of the Company and new director(s) whose election by the Board
of Directors or nomination for election by the stockholders of the
Company was approved by a vote of at least two-thirds (2/3) of the directors
then still in office who either were directors at the beginning of such
period or whose election or nomination for election was previously so
approved, cease, for any reason, to constitute a majority of the Board
of Directors.
ARTICLE V
CONFIDENTIAL INFORMATION
5.1 Confidential Information. The Manager recognizes that the Manager's
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retention by the Company is one of the highest trust and confidence by
reason of the Manager's access to and contact with certain trade secrets
and confidential and proprietary information of the Company. The Manager
agrees and covenants to use his best efforts and exercise utmost diligence
to protect and safeguard the trade secrets, confidential business practices
and proprietary information of the Company. The Manager further agrees and
covenants that, except as may be required by the Company in connection with
this Agreement, or with the prior written consent of the Company, the
Manager shall not, either during the Term or thereafter, directly or
indirectly, use for the Manager's own benefit or for the benefit of another,
or disclose, disseminate or distribute to another, any trade secret,
confidential business practice or proprietary information (whether or not
acquired,
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learned, obtained or developed by the Manager alone or in conjunction with
another) of the Company or of any other person with whom the Company has a
business relationship. The Manager further agrees and covenants that the
Manager shall not, either during the Term or for a period of two years
thereafter, directly or indirectly, induce or attempt to induce any
employee of the Company to leave the employ of the Company. All memoranda,
notes, records, drawings, documents or other writings whatsoever made,
compiled, acquired or received by the Manager during the Term arising out of,
in connection with, or related to any activity or business of the Company
are and shall continue to be the sole and exclusive property of the Company,
and shall, together with all copies thereof, be returned and delivered to the
Company by the Manager immediately, upon demand, when the Manager ceases
to be employed by the Company, or at any other time upon Company's demand.
ARTICLE VI
ARBITRATION AND LEGAL EXPENSES
6.1 Arbitration.
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(a) All disputes, differences or questions arising out of or relating
to this Agreement (including, without limitation, those as to the validity,
interpretation, breach, violation or termination hereof) shall, at the
sole option of the Manager, be finally determined and settled pursuant to
arbitration at Dallas, Texas, by three arbitrators, one to be appointed
by the Company, one by the Manager, and a neutral arbitrator to be
appointed by such two party-appointed arbitrators. The neutral arbitrator
shall act as chairman. Any such arbitration may be initiated by the
Manager by written notice to the Company specifying the subject of the
requested arbitration and appointing such party's arbitrator for such
arbitration.
(b) Should (i) the Company fail to appoint an arbitrator by written
notice to the Manager within ten days after the receipt of the
Arbitration Notice, or (ii) the two arbitrators appointed by or on behalf
of the parties herein fail to appoint a neutral arbitrator within ten
days after the date of the appointment of the last arbitrator appointed
by or on behalf of the parties, then the American Arbitration Association,
upon application of the Manager, shall appoint an arbitrator to fill any
such position with the same force and effect as though such arbitrator
had been appointed.
(c) The arbitration proceeding shall be conducted in the English
language in Dallas, Texas, in accordance with the rules of the American
Arbitration Association. A determination, award or other action shall be
considered the valid action of the arbitrators if supported by the
affirmative vote of two or three of the three arbitrators. The costs of
arbitration (exclusive of the expense of a party in obtaining and presenting
evidence and
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attending the arbitration, and of the fees and expense of legal counsel to
such party, all of which shall be borne by such party) shall be shared
equally by the Company and the Manager. The arbitration award shall be
final and conclusive and shall receive recognition, and judgment upon
such award may be entered and enforced in any court of competent
jurisdiction.
6.2 Reimbursement of Legal Expenses. Notwithstanding any other provision
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hereof, if the Manager institutes any legal proceeding or arbitration
involving the Company because he believes that the Company has failed to
comply with any of its obligations under this Agreement, or in the
event that the Company institutes any legal proceeding to declare this
Agreement void or unenforceable, or institutes any legal proceeding designed
to deny or to recover from the Manager the benefits intended to be provided
to the Manager hereunder, and the Manager is successful on the merits of
such legal proceeding, the Company shall reimburse the Manager for
reasonable expenses incurred by the Manager in retaining counsel in
connection with the initiation or defense of any such legal proceeding or
arbitration.
ARTICLE VII
OTHER PROVISIONS
7.1 Notices. All notices, consents, requests, demands, approvals or other
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communications which are required or permitted to be given to the parties
hereto shall be in writing and shall be effective upon receipt by the party
entitled to such notice at the following addresses:
To the Company: BancTEXAS Group Inc.
Suite 300
13747 Montfort Drive
Dallas, Texas 75240
Attention: Richard H. Braucher
Senior Vice President and
General Counsel
To the Manager: Mr. David F. Weaver
14454 Twisted Oak
Houston, Texas 77079
The above addresses may be changed only by giving written notice of
such change of address to the parties hereto.
7.2 No Assignment. No right or interest to or in any payment shall be
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assignable by the Manager; provided, however, that this provision shall not
preclude him from designating one or more beneficiaries to receive any amount
that may be payable after his death and shall not preclude the legal
representative of his estate
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from assigning any right hereunder to the person or persons entitled thereto
under his will or, in the case of intestacy, to the person or persons
entitled thereto under the laws of intestacy applicable to his estate.
7.3 Beneficiaries. The term "beneficiaries" as used in this Agreement,
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shall, in the event of the death of the Manager, include his estate and
shall mean a beneficiary or beneficiaries designated on a form filed with
the Company by the Manager to receive any amount that may be payable after
his death, or, if no beneficiary has been so designated, the legal
representative of the Manager's estate. In the event of the Manager's
death or a judicial determination of his incompetence, reference in this
Agreement to the Manager shall be deemed, where appropriate, to refer to his
legal representative or, where appropriate, to his beneficiary or
beneficiaries.
7.4 Holidays. If any event provided for in this Agreement is scheduled
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to take place on a legal holiday, such event shall take place on the next
succeeding day that is not such a legal holiday.
7.5 Captions. The captions, headings and arrangements used in this
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Agreement are intended solely for convenience and do not in any way affect,
limit or amplify the provisions hereof.
7.6 Successors. This Agreement shall be binding upon and shall inure to
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the benefit of the Manager and his heirs and legal representatives, and
the Company and its successors, including without limitation any
corporation or corporations acquiring directly or indirectly all or
substantially all of the assets of the Company whether by merger,
consolidation, sale or otherwise (and such successor shall thereafter be
deemed "the Company" for the purposes of the Agreement), but shall not
otherwise be assignable by the Company.
7.7 Amendment and Waiver. No provision of this Agreement may be
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amended, modified or waived unless such amendment, modification or
waiver shall be authorized by the Board or any authorized committee of the
Board and shall be agreed to in writing, signed by the Manager and by an
officer of the Company thereunto duly authorized. Except as otherwise
specifically provided in this Agreement, no waiver by either party hereto
of any breach by the other party hereto of any condition or provision of
this Agreement to be performed by such other party shall be deemed a
waiver of a subsequent breach of such condition or provision or a waiver of
a similar or dissimilar provision or condition at the time or at any prior
or subsequent time.
7.8 Invalid Provisions. If any provision of this Agreement is held to
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be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable, and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part of
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this Agreement; the remaining provisions of the Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid
or unenforceable provision or by its severance from this Agreement. In lieu
of each such illegal, invalid or unenforceable provision, there shall be
added automatically as part of this Agreement a provision as similar in
terms to such illegal, invalid or unenforceable provision as may be
possible and be legal, valid and enforceable.
7.9 Governing Law. The validity, interpretation, construction,
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performance and enforcement of this Agreement shall be governed by the laws
of the State of Texas without giving effect to the principles of conflict
of laws thereof.
7.10 Counterparts. This Agreement may be executed in multiple counterparts,
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each of which shall constitute an original, and all of which together shall
constitute one and the same agreement.
7.11 Interest. If the Company fails to pay to the Manager or any of his
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beneficiaries any amount payable hereunder at the time such payment is due,
then in addition to such payment, the Manager or his beneficiaries shall
be entitled to be paid interest on the past due amount at the highest
rate allowed by applicable law from the date upon which such payment was due
to the date of actual payment thereof.
7.12 Venue. The parties hereto agree that venue for any action brought
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by either party hereto concerning the validity, interpretation, construction,
performance or enforcement of this Agreement or any provision hereof shall
lie in Dallas, Texas.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
C O M P A N Y: BANCTEXAS GROUP INC.
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By: /s/ Nathan C. Collins
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Nathan C. Collins, Chairman
of the Board, President and
Chief Executive Officer
M A N A G E R: /s/ David F. Weaver
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David F. Weaver
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