exv10w12



 






Exhibit 10.12




Cullen/Frost

Restoration Profit Sharing Plan



(Effective as of January 1, 2002)




 









 








Contents










	 	 	 	 	 	 	 
	

	 	Article 1. Establishment and Purpose
	 	 	1	 
	1.1

	 	Establishment of Plan
	 	 	1	 
	1.2

	 	Purpose
	 	 	1	 
	1.3

	 	Application of the Plan
	 	 	1	 
	 
	 	 	 	 	 	 
	

	 	Article 2. Definitions and Construction
	 	 	2	 
	2.1

	 	Definitions
	 	 	2	 
	2.2

	 	Gender and Number; Headings
	 	 	3	 
	2.3

	 	Incorporation of the Profit Sharing Plan
	 	 	3	 
	 
	 	 	 	 	 	 
	

	 	Article 3. Participation
	 	 	4	 
	3.1

	 	Eligible Participants
	 	 	4	 
	3.2

	 	Participation; Membership
	 	 	4	 
	 
	 	 	 	 	 	 
	

	 	Article 4. Contributions; Vesting; Distributions
	 	 	5	 
	4.1

	 	Restoration Contributions
	 	 	5	 
	4.2

	 	Vesting
	 	 	5	 
	4.3

	 	Time of Payments
	 	 	6	 
	4.4

	 	Withdrawals and Loans
	 	 	6	 
	4.5

	 	Form of Payment
	 	 	6	 
	4.6

	 	Accelerated Distribution
	 	 	6	 
	 
	 	 	 	 	 	 
	

	 	Article 5. Accounts; Credited Earnings
	 	 	8	 
	5.1

	 	Accounts
	 	 	8	 
	5.2

	 	Crediting Restoration Contributions
	 	 	8	 
	5.3

	 	Credited Earnings
	 	 	8	 
	5.4

	 	Adjustment of Accounts
	 	 	9	 
	5.5

	 	Account Balances
	 	 	10	 
	5.6

	 	Account Statements
	 	 	10	 
	 
	 	 	 	 	 	 
	

	 	Article 6. Administration
	 	 	11	 
	6.1

	 	Administration
	 	 	11	 
	6.2

	 	Finality of Determination
	 	 	11	 
	6.3

	 	Expenses
	 	 	11	 






 i





 









 








	 	 	 	 	 	 	 
	6.4

	 	Indemnification and Exculpation
	 	 	11	 
	 
	 	 	 	 	 	 
	

	 	Article 7. Funding of the Plan
	 	 	12	 
	7.1

	 	Funding
	 	 	12	 
	7.2

	 	Fund Account
	 	 	12	 
	 
	 	 	 	 	 	 
	

	 	Article 8. Merger, Amendment, and Termination
	 	 	13	 
	8.1

	 	Merger, Consolidation, or Acquisition
	 	 	13	 
	8.2

	 	Amendment and Termination
	 	 	13	 
	 
	 	 	 	 	 	 
	

	 	Article 9. Adoption Procedure
	 	 	14	 
	9.1

	 	Adoption Procedure
	 	 	14	 
	9.2

	 	Withdrawal of Participating Employer
	 	 	14	 
	 
	 	 	 	 	 	 
	

	 	Article 10. General Provisions
	 	 	15	 
	10.1

	 	 Beneficiary Designations
	 	 	15	 
	10.2

	 	 Nonalienation
	 	 	15	 
	10.3

	 	 Effect on Other Benefit Plans
	 	 	15	 
	10.4

	 	 Employer-Employee Relationship
	 	 	15	 
	10.5

	 	 Incompetence
	 	 	16	 
	10.6

	 	 Binding on Employer, Members and Their Successors
	 	 	16	 
	10.7

	 	 Tax Liability
	 	 	16	 
	10.8

	 	 Severability
	 	 	16	 
	10.9

	 	 Applicable Law
	 	 	16	 
	 
	 	 	 	 	 	 
	Appendix A: Participating Employers Under the Plan
	 	 	18	 
	Appendix B: Eligible Participants Under the Plan
	 	 	19	 






ii





 









 








Article 1. Establishment and Purpose




1.1 Establishment of Plan



Cullen/Frost Bankers, Inc. (“Company”) hereby establishes, effective as of January 1, 2002,
an unfunded supplemental executive retirement plan to be known as the “Cullen/Frost Restoration
Profit Sharing Plan” (“Plan”).




1.2 Purpose



The Company maintains a tax-qualified defined contribution plan known as the “Cullen/Frost
Profit Sharing Plan,” established effective as of January 1, 2002 and as amended thereafter
(“Profit Sharing Plan”). This Plan is hereby established and is maintained for the purpose of
providing Eligible Participants who are “Participants” under the Profit Sharing Plan with
supplemental retirement benefits which are designed to restore benefits which such Eligible
Participants would otherwise be eligible to receive under the Profit Sharing Plan absent the
application of the Applicable Code Restrictions (as defined herein). In this regard, it is the
intent that this Plan constitute a separate unfunded plan that meets the requirements of and that
is classified as a plan which is maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees within the meaning of
Section 201(2) of ERISA, and as such that the Plan be exempt from the relevant requirements of
Title I of ERISA. This Plan is not intended to satisfy the qualification requirements of Code
Section 401.




1.3 Application of the Plan



The terms of this Plan are applicable only to or with respect to those Eligible Participants
who become Eligible Participants under this Plan on or after January 1, 2002.





1


















 






Article 2. Definitions and Construction




2.1 Definitions



All terms used in this Plan shall have the same meanings assigned to them under the
provisions of the Profit Sharing Plan unless otherwise qualified by the context hereof.
Notwithstanding the prior sentence, the following terms shall have the meanings set forth below,
unless their context clearly indicates to the contrary:





	(a)  	“Account” means the recordkeeping account which is maintained in the name of a Member to
account for any Restoration Contributions and Credited Earnings which may be credited to his
Account from time to time.
	 
	(b)  	“Applicable Code Restrictions” means the compensation or contribution limitations and
restrictions that are applicable under Code Sections 401(a)(17) and 415.
	 
	(c)  	“Beneficiary” means the person or persons designated by a Member, as provided in Section
10.1. Where the context dictates, the term “Beneficiary” shall also mean “Beneficiaries.”
	 
	(d)  	“Company” means Cullen/Frost Bankers, Inc., or any successor thereto.
	 
	(e)  	“Compensation Committee” means the Compensation Committee of the Board of Directors.
	 
	(f)  	“Credited Earnings” means the earnings or loss amounts credited to a Member’s Account, as
provided in Section 5.3.
	 
	(g)  	“Eligible Participant” means an Employee of an Employer who (1) is a Participant under the
Profit Sharing Plan, and (2) who is designated as an “Eligible Participant” as provided in
Section 3.1.
	 
	(h)  	“Employer” means the Company and each other Employer who is a participating Employer under
the Profit Sharing Plan and who has elected to become a participating Employer under this Plan
as provided in Article 9.
	 
	(i)  	“Fund Account” means the “unfunded” trust arrangement as described in Section 7.2.
	 
	(j)  	“Investment Fund” means any investment fund that may be maintained in the Fund Account from
time to time.




2









 






	(k)  	“Member” means an Eligible Participant or former Eligible Participant as described in Section
3.2.
	 
	(l)  	“Plan” means the “Cullen/Frost Restoration Profit Sharing Plan” as set forth in this document
and as the same may be amended from time to time.
	 
	(m)  	“Restoration Contributions” means the contributions as described in Section 4.1.
	 
	(n)  	“Profit Sharing Plan” means the “Cullen/Frost Profit Sharing Plan,” effective as of January
1, 2002, and as the same may thereafter be amended from time to time.





2.2 Gender and Number; Headings



Except when otherwise indicated by the context, any masculine terminology when used in this
Plan shall also include the feminine gender, and the definition of any term in the singular shall
also include the plural. Headings of Articles and Sections herein are included solely for
convenience, and if there is any conflict between such headings and the text of the Plan, the text
shall control.




2.3 Incorporation of the Profit Sharing Plan



The Profit Sharing Plan is hereby incorporated by reference into and shall form a part of
this Plan as fully as if set forth herein verbatim. Any amendment made to the Profit Sharing Plan
shall also be incorporated by reference into and form a part of this Plan, effective as of the
effective date of such amendment. The Profit Sharing Plan, whenever referred to in this Plan, shall
mean the Profit Sharing Plan as amended, as such plan exists as of the date any determination is
made of benefits payable under this Plan.




3









 








Article 3. Participation




3.1 Eligible Participants



The Compensation Committee shall designate the key management Employees who are to be the
Eligible Participants under this Plan; provided, however, that any Employee so designated for
participation under this Plan must be a Participant under the Profit Sharing Plan. Such
designations may be based on participation criteria established by the Compensation Committee from
time to time. The Compensation Committee may terminate the “Eligible Participant” status of any
designated Participant at any time. Once an Eligible Participant has been designated in “Eligible
Participant” status, he shall thereafter remain an Eligible Participant under the Plan so long as
such status has not been terminated by the Compensation Committee. The Compensation Committee may
establish such procedures as it deems appropriate for notifying Participants of their status as
Eligible Participants under this Plan. The Participants who are designated as Eligible Participants
shall be listed in Appendix B attached to the end of the Plan document.




3.2 Participation; Membership



An Eligible Participant as described in Section 3.1 shall become a Member under the Plan on
the first date on which a Restoration Contribution is credited to his Account. An Eligible
Participant with an Account balance under the Plan shall be a “Member” under the Plan. In addition,
an Eligible Participant who ceases to be an Eligible Participant by reason of loss of Eligible
Participant status or by termination or transfer of employment shall continue as a Member of the
Plan so long as he has an Account balance credited to his account under the Plan.




4









 








Article 4. Contributions; Vesting; Distributions




4.1 Restoration Contributions





	(a)  	In General. For each Plan Year, each Employer shall determine the Restoration
Contribution (if any) on behalf of each Eligible Participant employed by the Employer during
the Plan Year. The Restoration Contribution for each Eligible Participant for each Plan Year
shall be determined on an annual basis as of the end of the Plan Year, and such a
determination shall be made at such time following the Plan Year when it is determined that a
Restoration Contribution can be calculated. For purposes of determining a Restoration
Contribution under this Section 4.1, an Eligible Participant shall only be eligible to receive
a Restoration Contribution if he meets the eligibility requirements for a Contribution under
the Contribution provisions of Section 4.2 of the Profit Sharing Plan.
	 
	(b)  	Amount of Restoration Contributions. For each Plan Year beginning with the 2002 Plan Year,
the amount of the Restoration Contribution for each Eligible Participant for the Plan Year
shall be the difference between (1) and (2) below where—






	 	(1)  	is the total amount of Contributions that the Eligible Participant would be
eligible to receive for the Plan Year under the provisions of Section 4.2 of the
Profit Sharing Plan, determined without regard to the Applicable Code Restrictions,
and
	 
	 	(2)  	is the total amount of Contributions that the Eligible Participant is
actually credited with under Section 4.2 of the Profit Sharing Plan for the Plan Year,
determined after the application of the Applicable Code Restrictions.





4.2 Vesting



The various amounts credited to a Member’s Account under this Plan shall become vested at
the same time, manner and rate as any such amounts would have become vested under the Profit
Sharing Plan. All Service recognized for vesting purposes under the Profit Sharing Plan shall be
recognized under this Plan for purposes of determining a Member’s vested interest in the benefits
provided hereunder. The determination of a Member’s vested interest with respect to his Account
shall be applied not only to the Restoration Contributions credited thereto but also with respect
to any attributable Credited Earnings to be credited to such Account. A Member’s nonvested interest
in his Account under this Plan shall be forfeited at the same time a forfeiture would occur under
the Profit Sharing Plan.




5









 








4.3 Time of Payments



Except as otherwise provided in this Article 4 or elsewhere in the Plan, a Member shall
become eligible to receive (or have paid in the case of his death) a distribution of his vested
interest in his Account under the Plan upon the occurrence of one of the events giving rise to a
distribution under the Profit Sharing Plan, such as death or other termination of employment. All
amounts in the Member’s Account which have not been paid as of the Member’s death shall be paid to
his Beneficiary. All benefit payments shall be made on or as soon as administratively practicable
after the earliest date that distributions are available under the Profit Sharing Plan. The value
of the Member’s Account for which a distribution is being made shall be determined as of the
valuation on the relevant date as provided in Section 5.5 on which the distribution payment is
being made.




4.4 Withdrawals and Loans



A Member shall not be permitted to make any withdrawals or loans from his Account under this
Plan. No in-service distributions shall be allowed under the Plan.




4.5 Form of Payment



All distributions with respect to a Member’s Account shall be in the form of cash or cash
equivalents, and shall be made in a single lump sum payment form.




4.6 Accelerated Distribution



Notwithstanding the foregoing provisions of this Article 4, a Member may elect to receive an
accelerated Plan distribution in accordance with this Section 4.6 in the event of a “Change in
Control” as defined in this Section 4.6. Such election shall be made on a form as prescribed by the
Committee, and the election must be made by no later than one hundred and twenty (120) days
following the date on which the Committee determines there has been a Change in Control. A Member
so electing to receive an accelerated distribution under this Section 4.6 shall receive a
distribution that is equal to 80 percent of the distribution the Member would otherwise receive
determined as if he was terminating employment, and determined by reference to an Account valuation
as in the case of a termination distribution. The accelerated distribution shall be paid in a
single lump sum payment form, and shall be made as soon as administratively practicable following
the relevant election. The remaining 20 percent portion of the Member’s Account shall be
permanently forfeited at the time he receives an accelerated distribution under this Section 4.6.
For purposes of this Section 4.6, a “Change of Control” shall occur if—





	(a)  	A “person” (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended,
including a “group” as defined in Section 13(d)(3) of such Act) becomes the beneficial owner
of shares of the Company having 50 percent or more of the Company’s total voting power without
the approval, recommendation or support of the members of the Board of Directors seated prior
thereto; or




6









 






	(b)  	As a result of, or in connection with, any cash tender or exchange offer, merger or any other
business combination, sale of assets, or contested election, or any combination thereof, the
persons who were members of the Board of Directors before such event(s) shall cease to
constitute a majority of the members of such Board (of the Company or any successor
corporation) thereafter.






7










 







Article 5. Accounts; Credited Earnings




5.1 Accounts



The Committee shall maintain, or cause to be maintained, a bookkeeping Account for each
Member for the purpose of accounting for the Member’s beneficial interest under the Plan, which
interest is attributable to Restoration Contributions and any Credited Earnings credited to such
Member under the Plan, as adjusted to reflect charges against such Account. In addition to the
foregoing bookkeeping Accounts, the Committee shall maintain, or cause to be maintained, such other
accounts, subaccounts, records or books as it deems necessary to properly provide for the
maintenance of Accounts under the Plan, and to carry out the intent and purposes of the Plan. The
Member’s Account and any other subaccounts maintained in the name of a Member shall comprise the
Member’s Account under the Plan.




5.2 Crediting Restoration Contributions



Each time a Restoration Contribution is determined with respect to an Eligible Participant
as provided in Section 4.1, such Restoration Contribution shall be credited to the Eligible
Participant’s Account as of the date of such determination, and such Restoration Contribution shall
also be credited to any applicable subaccount maintained to account for the nature and type of such
Restoration Contribution. Each Employer determining any such Restoration Contribution may also
deposit such Restoration Contribution in the Fund Account on any date it may decide after such
Restoration Contribution has been determined under the Plan.




5.3 Credited Earnings



A Member shall be entitled to Credited Earnings on the balance to the credit of his Account
in accordance with the provisions of this Section 5.3. To the extent a Member’s Restoration
Contributions (including prior Credited Earnings credited with respect thereto) are on deposit in
the Fund Account, the provisions of Section 5.3(a) below describe the crediting of Credited
Earnings. To the extent a Member’s Restoration Contributions (including prior Credited Earnings
credited with respect thereto) are not deposited in the Fund Account, the provisions of Section
5.3(b) below describe the crediting of Credited Earnings.





	(a)  	Fund Account Credited Earnings. At any time when a Member has any Restoration Contribution
amount credited to his Account and also on deposit in the Fund Account, such Member shall be
entitled to have credited to his Account any share of the Credited Earnings which are
allocable to him based on the total of all his Restoration Contributions credited to his
Account that are on deposit in the Fund Account (including any prior Credited Earnings so
credited to him that are also on deposit in the Fund Account with respect to his Account). The
Fund Account, including all of the Investment Funds comprising the Fund Account, shall
periodically be valued as of such valuation dates as the Committee shall determine as are to
be applicable to the various Investment Funds in the Fund Account. Any such




8









 






	   	valuation date shall be no less frequent than annually, and shall normally be on a monthly
basis unless the Committee determines another valuation date to be applicable. As of each
relevant valuation date with respect to the Fund Account or any investment portion thereof,
the Account of each Member who has an Account balance credited to and also on deposit in
the Fund Account shall have his Account adjusted to reflect Credited Earnings based on his
pro rata share of the investment results of the Fund Account and the Investment Funds
within the Fund Account in which he is credited with an investment interest. Each Member
with an Account balance credited to and on deposit in the Fund Account shall have his Fund
Account funds invested in and among the Investment Funds comprising the Fund Account. The
investment, allocation and transfer of each such Member’s funds among such Investment Funds
is to be determined under an investment method as determined by the Committee, which method
may include the self-direction of investments among Investment Funds by the Member. Each
Member is entitled to receive his Credited Earnings with respect to each Investment Fund in
which he has an investment interest based on his Account’s pro rata interest therein as of
the periodic valuation and adjustment dates provided for herein.
	   	 
	 
	(b)  	Assumed Credited Earnings. At any time when a Member has any Restoration Contribution amount
credited to his Account and such amount is not on deposit in the Fund Account, such Member
shall be entitled to have credited to his Account Credited Earnings based on the assumed
investment results of such Restoration Contributions (including prior Credited Earnings
credited with respect thereto) as if such amounts had been invested in Investment Funds
maintained under the Profit Sharing Plan during the period for measuring Credited Earnings for
crediting under this Plan. The crediting of such Credited Earnings shall be at the times and
valuation dates as are used for crediting Investment Fund results under the Profit Sharing
Plan, and shall be by the method used therein. Additionally, the investment, allocation and
transfer of each such Member’s funds based on the assumed investments in the Investment Funds
under the Profit Sharing Plan shall be by such procedures and methods as determined by the
Committee. In this regard, the Committee may provide for Member assumed self-direction of
investments among the Investment Funds under the Profit Sharing Plan based on the Member’s
investment directions under such Plan, or may allow for specific separate assumed
self-directions under this Plan.
	 
	   	 
	 
	(c)  	Committee Determinations. The Committee shall make all determinations with respect to the
applicable Credited Earnings and with respect to the crediting of such Credited Earnings to
Accounts, and such determinations shall be final and binding on all interested parties.





5.4 Adjustment of Accounts



Restoration Contributions shall be credited to the Accounts of Eligible Participants as
provided in Section 5.2. Credited Earnings (if any) on the balances in the Accounts of each


9









 






Member shall be credited to such Accounts as provided in Section 5.3. Charges to a Member’s Account
to reflect any distribution payments with respect to such Member under the Plan shall be as of the
date of any such payment. The Member Accounts under the Plan shall also be adjusted and charged for
any administrative expenses or applicable taxes as are applicable to Accounts and the Fund Account,
to the extent such expenses and taxes are not separately paid for by the Employers.




5.5 Account Balances



As of any relevant date, a Member’s balance credited to his Account shall be the value of
the balance standing to the credit of his Account upon the completion of the valuation (i) as of
the last preceding or coincident relevant valuation as regards any portion of his Account which is
not invested in the Fund Account, and (ii) as of the close of the last preceding or coincident
applicable valuation date with respect to any portion of his Account which is invested in a Fund
Account fund, adjusted to reflect any credits or charges made to such Account since such date or
dates, including, without limitation, those adjustments to reflect Restoration Contributions to and
payments from such Account. For purposes of making distributions or other payments with respect to
a Member under the Plan, the Member’s balance credited to his Account as of any relevant date shall
also include any Restoration Contributions to be credited under the Plan on his behalf which have
not been credited to his Account as of such date. Where applicable, a Member’s Account balance
shall include both the amount credited to his Account with respect to Restoration Contributions
which were not deposited in the Fund Account, and the amount credited to his Account with respect
to Restoration Contributions which were deposited in the Fund Account (which amounts also reflect
the Credited Earnings adjustments which are applicable with respect to such portions of his
Account).




5.6 Account Statements



The Committee shall provide each Member with a statement of the status of his Account under
the Plan. The Committee shall provide such statement annually or at such other times as the
Committee may determine from time to time, and such statement shall be in the format as prescribed
by the Committee.




10









 








Article 6. Administration




6.1 Administration



This Plan shall be administered by the Committee appointed pursuant to the terms of the
Profit Sharing Plan. The Committee shall administer this Plan in a manner consistent with the
administration of the Profit Sharing Plan, except that this Plan shall be administered based on its
terms and as an unfunded plan which is not intended to meet the qualification requirements of Code
Section 401. The Committee shall have the same rights and authority granted to it under the Profit
Sharing Plan, which shall include the full power, discretion and authority to interpret, construe
and administer this Plan. The Committee shall establish and maintain such accounts or records as
the Committee may from time to time consider necessary. The processing of claims for benefits, and
the appeal and review of such claims, shall be administered in accordance with claims and review
procedures like those applied under the Profit Sharing Plan, and in accordance with the
requirements of ERISA Section 503.




6.2 Finality of Determination



The determination of the Committee as to any disputed questions arising under this Plan,
including questions of construction and interpretation, shall be final, binding, and conclusive
upon all persons.




6.3 Expenses



The expenses of administering this Plan shall be borne by the Employers in the proportions
determined by the Committee.




6.4 Indemnification and Exculpation



The members of the Committee, its agents, and officers, directors, and employees of the
Company or any other Employer shall be indemnified and held harmless by the Employer against and
from any and all loss, cost, liability, or expense that may be imposed upon or reasonably incurred
by them in connection with or resulting from any claim, action, suit, or proceeding to which they
may be a party or in which they may be involved by reason of any action taken or failure to act
under this Plan and against and from any and all amounts paid by them in settlement (with the
Company’s written approval) or paid by them in satisfaction of a judgment in any such action, suit,
or proceeding. The foregoing provision shall not be applicable to any person if the loss, cost,
liability, or expense is due to such person’s gross negligence or willful misconduct.




11









 








Article 7. Funding of the Plan




7.1 Funding



All amounts paid under this Plan shall be paid from the general assets of the participating
Employers. Benefits shall be reflected on the accounting records of the Employers, but neither this
Plan nor the maintenance of such accounting records shall be construed to create, or require the
creation of, a trust, custodial account, or escrow account with respect to any Member. No Member
shall have any right, title, or interest whatsoever in or to any investment reserves, accounts, or
funds that the Employers may purchase, establish, or accumulate to aid in providing the unfunded
benefit payments described in the Plan. Nothing contained in this Plan, and no action taken
pursuant to its provisions, shall create, or be construed to create, a trust or fiduciary
relationship of any kind between an Employer or the Committee and a Member or any other person.
Members shall not acquire any interest under the Plan greater than that of an unsecured general
creditor of an Employer. The Trust Fund of the Profit Sharing Plan shall not be liable for any
benefits accrued under this Plan.




7.2 Fund Account



In accordance with and consistent with Section 7.1, the Employers may from time to time
establish a grantor trust arrangement to create a fund of assets to be available to pay benefits
when they become due under this Plan. Any such arrangement shall be known as a “Fund Account” for
purposes of this Plan, and any funds deposited in such Fund Account shall be invested in such
“Investment Funds” as may be determined with respect to such Fund Account. Such Investment Funds
may include Investment Funds like those that are maintained under the Profit Sharing Plan. A
purpose for establishing any such Fund Account is to provide for the depositing of any Restoration
Contributions that may be credited with respect to Eligible Participants under the Plan, and to
allow Members to receive Credited Earnings adjustments on their Account balances based on the
investment results of the investments of the Fund Account. The creation of the Fund Account shall
not create any greater rights with respect to Members than as provided in such Section 7.1 and the
Fund Account arrangement. Also, the creation of such Fund Account shall in no way be applied or be
construed so that this Plan is anything other than an unfunded plan as described in Section 1.2.




12









 








Article 8. Merger, Amendment, and Termination




8.1 Merger, Consolidation, or Acquisition



In the event of a merger, consolidation, or acquisition where an Employer is not the
surviving organization, unless the successor or acquiring organization shall elect to continue and
carry on the Plan, this Plan shall terminate with respect to such Employer, and no additional
benefits shall accrue for the Eligible Participants of such organization. Unpaid benefits shall be
paid upon the termination of the Plan, unless the successor or acquiring organization elects to
accelerate payment.




8.2 Amendment and Termination



The Board of Directors, or any committee of the Board duly appointed and authorized by the
Board, may amend, modify, or terminate this Plan at any time and in any manner. Such actions shall
be binding upon all other Employers. In addition, this Plan shall automatically terminate at the
time of the termination of the Profit Sharing Plan. In the event of a termination of the Plan
pursuant to this Section 8.2, no further benefits shall accrue under this Plan, and amounts which
are then payable shall continue to be an obligation of the Employer and shall be paid as scheduled;
provided, however, that the Company reserves the right, in its sole discretion, to accelerate
payments to the affected Members in the event of a complete or partial termination of the Plan.





13










 






Article 9. Adoption Procedure




9.1 Adoption Procedure



With the consent of the Company, any other organization which satisfies the definition of
Employer under the Profit Sharing Plan and this Plan and which is eligible by the law to do so may
adopt this Plan for the benefit of its Employees who are designated as Eligible Participants under
this Plan, on express condition that the Company assumes no liability as a result of any such
adoption of this Plan by any other organization. Such other organization may adopt this Plan by—





	(a)  	executing an adoption instrument adopting the Plan, and agreeing to be bound as a
participating Employer by all the terms, provisions, conditions, and limitations of the Plan;
and
	 
	(b)  	compiling and submitting all information required by the Company with reference to persons in
its employment eligible for membership in the Plan.




The adoption instrument shall specify the effective date of such adoption of the Plan and shall
become, as to such organization and persons in its employment, a part of this Plan. Any such
adoption instrument may be in any form as recognized by the Company, including resolutions as may
be adopted by the governing body of such adopting Employer. The participating Employers under the
Plan shall be listed in Appendix A attached to the end of the Plan document.




9.2 Withdrawal of Participating Employer



Any participating Employer may withdraw from the Plan by giving 30 days’ notice in writing
of its intention to withdraw to the Company, unless a shorter notice shall be agreed to by the
Company.




14









 








Article 10. General Provisions




10.1 Beneficiary Designations



A Member may designate a Beneficiary who upon his death is to receive the benefits that
otherwise would have been paid to him under the Plan. Such designation must be made and delivered
to the Committee during the Member’s lifetime, and must be made in writing on a form prescribed for
that purpose by the Committee. Absent a specific Beneficiary designation with respect to this Plan,
the Member’s Beneficiary shall be his Beneficiary as designated and determined with respect to and
pursuant to the terms of the Profit Sharing Plan.




10.2 Nonalienation



No benefit payable at any time under the Plan shall be subject in any manner to
alienation, sale, transfer, assignment, pledge, attachment, garnishment, or encumbrance of any
kind, and shall not be subject to or reached by any legal or equitable process (including
execution, garnishment, attachment, pledge, or bankruptcy) in satisfaction of any debt, liability,
or obligation, prior to receipt. Any attempt to alienate, sell, transfer, assign, pledge, or
otherwise encumber any such benefit, whether presently or thereafter payable, shall be void.
Notwithstanding the foregoing provisions of this Section 10.2, (i) no benefit amount payable under
the Plan shall be payable until and unless any and all amounts representing debts or other
obligations owed to the Company or other Employer by the Member with respect to whom such amount
would otherwise be payable shall have been fully paid, and (ii) the Committee shall establish
procedures to determine whether domestic relations orders are “qualified domestic relations orders”
(as described in ERISA Section 206(d)(3)(B)) and to administer distributions under such qualified
domestic relations orders.




10.3 Effect on Other Benefit Plans



Amounts credited or paid under this Plan shall not be considered to be compensation for the
purposes of the Profit Sharing Plan or any other retirement plans maintained by an Employer. The
treatment of such amounts under other employee benefit plans shall be determined pursuant to the
provisions of such plans.




10.4 Employer-Employee Relationship



The establishment of this Plan shall not be construed as conferring any legal or other
rights upon any Employee or any person for a continuation of employment, nor shall it interfere
with the rights of an Employer to discharge any Employee or otherwise act with relation to the
Employee. An Employer may take any action (including discharge) with respect to any Employee or
other person and may treat such person without regard to the effect which such action or treatment
might have upon such person as a Member under this Plan.




15









 








10.5 Incompetence



Every person receiving or claiming benefits under the Plan shall be conclusively presumed to
be mentally competent until the date on which the Committee receives a written notice, in a form
and manner acceptable to the Committee, that such person is incompetent, and that a guardian,
conservator, or other person legally vested with the care of such person’s person or estate has
been appointed; provided, however, that if the Committee shall find that any person to whom a
benefit is payable under the Plan is unable to care for such person’s affairs because of
incompetency, any payment due (unless a prior claim therefor shall have been made by a duly
appointed legal representative) may be paid as provided in the Profit Sharing Plan. Any such
payment so made shall be a complete discharge of liability therefor under the Plan.




10.6 Binding on Employer, Members and Their Successors



This Plan shall be binding upon and inure to the benefit of the Employers, their successors
and assigns and the Members, their heirs, executors, administrators and legal representatives. The
provisions of this Plan shall be applicable with respect to each Employer separately, and amounts
payable hereunder shall be paid by the Employer of the particular Member. In the event any Member
becomes entitled to a benefit under this Plan based on service with more than one Employer, the
benefit obligations under this Plan shall be apportioned among such Employers as determined by the
Committee.




10.7 Tax Liability



An Employer may withhold from any payment of benefits hereunder any taxes required to be
withheld and such sum as the Employer may reasonably estimate to be necessary to cover any taxes
for which the Employer may be liable and which may be assessed with regard to such payment.




10.8 Severability



In the event any provision of this Plan shall be held invalid or illegal for any reason, any
illegality or invalidity shall not affect the remaining parts of this Plan, but this Plan shall be
construed and enforced as if the illegal or invalid provision had never been inserted, and the
Company shall have the privilege and opportunity to correct and remedy such questions of illegality
or invalidity by amendment as provided in this Plan.




10.9 Applicable Law



This Plan shall be governed and construed in accordance with the laws of the State of Texas.




***********************




16









 







In Witness Whereof, the Company has caused this instrument to be executed by its duly authorized
officers to become effective as of January 1, 2002, the effective date of this Plan.




	 	 	 
	

	 	Cullen/Frost Bankers, Inc.
	 
	 	 
	 
	 	 
	Attest:
	 	 
	

	 	By: /s/ Richard W. Evans, Jr.
	 
	 	 
	

	 	          
Its: Chairman
	 
	 	 
	By: /s/ James A. Eckel
	 	 
	 
	 	 
	Its: Executive Vice President

	 	Date: 12/19/02






17









 






Appendix A to the Cullen/Frost Restoration Profit Sharing Plan




Participating Employers Under the Plan



The following employers are participating Employers under the Cullen/Frost Restoration
Profit Sharing Plan as of January 1, 2002, unless a later participation date is designated:




Cullen/Frost Bankers, Inc.




18









 








Appendix B to the Cullen/Frost Restoration Profit Sharing Plan




Eligible Participants Under the Plan



The following individuals are designated as “Eligible Participants” in accordance with and
under the Cullen/Frost Restoration Profit Sharing Plan:





19