Exhibit 10.2
FIRST AMENDMENT TO EMPLOYMENT
AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT
AGREEMENT (this “ Amendment ”) is made and
entered into as of March 2, 2009, by and among FIRST SOUTHWEST
HOLDINGS, LLC, a Delaware limited liability company, on behalf of
itself and all of its subsidiaries (collectively, “
Employer ”), PLAINS CAPITAL CORPORATION, a Texas
corporation (the “ Company ”), and W. ALLEN
CUSTARD III (“ Executive ”) for purposes of
amending that certain Employment Agreement dated as of
December 18, 2008, by and among Employer, the Company, and
Executive (the “ Agreement ”). Terms used in
this Amendment with initial capital letters that are not otherwise
defined herein shall have the meanings ascribed to such terms in
the Agreement.
WHEREAS, effective December 31,
2008, the Company became subject to the requirement to register its
securities pursuant to Section 12(g) of the Securities
Exchange Act of 1934 (the “ Exchange Act ”);
and
WHEREAS, the parties desire to amend
the Agreement to comply with the provisions of Section 409A of
the Internal Revenue Code of 1986, as amended (the “
Code ”), and the regulations and other guidance issued
thereunder (“ Section 409A ”) that apply to
Executive now that Employer is subject to the Exchange Act;
and
WHEREAS, the parties desire to
further amend the Agreement in order to ensure compliance with the
interim final rules issued by the Department of Treasury on
October 20, 2008 and January 16, 2009, which provide
further guidance on the executive compensation provisions
applicable to participants in the Troubled Asset Relief Program
Capital Purchase Program;
NOW, THEREFORE, in consideration of
the mutual promises, conditions and covenants contained herein and
in the Agreement, and other good and valuable consideration, the
adequacy of which is hereby acknowledged, the parties agree as
follows:
1. Section 2 of the Agreement
is amended by adding the following new sentence to the end of said
Section:
Executive has received and is
familiar with Employer’s ethics and insider trading policies
and procedures, and understands and agrees his duties include
compliance with such policies and procedures, as amended from time
to time.
2. Section 3(b) of the
Agreement is amended by deleting said Section in its entirety and
substituting in lieu thereof the following:
Bonus
. Subject to Section 17 below and
beginning with year 2009, Executive shall be eligible to receive an
annual bonus for each year ending during the term of this Agreement
as shall be determined by the Board of Directors of Employer (the
“ Board ”). Notwithstanding the immediately
preceding sentence and subject to Section 17 below, the
annual bonus for any given year shall not be less than the average
annual bonus paid to Executive, by Employer or its predecessor
entity, in respect of the three (3) calendar years immediately
preceding the year of such bonus (the “ Guaranteed
Bonus ”). The Guaranteed Bonus shall not be considered to
be a bonus or incentive compensation arrangement for purposes of
Section 111(b) of the Emergency Economic Stabilization Act of
2008 (“ EESA ”). Any portion of the bonus
provided in this Section 3(b) permitted by
Section 17 that exceeds the Guaranteed Bonus shall be
the “ Incentive Bonus .” The Incentive Bonus
shall not be based upon performance criteria that would encourage
Executive to take any unnecessary and excessive risks that threaten
the value of the Company, and the Company expressly discourages
Executive from taking such risks. Notwithstanding the
foregoing, during any period that
Employer is subject to Section 111(b) of EESA: (1) in the
event Employer (or the Compensation Committee of the Company)
determines, in its sole discretion, that Executive has taken any
unnecessary and excessive risks, Employer may reduce all or any
portion of the Incentive Bonus to which Executive has obtained a
legally binding right pursuant to this Section 3(b) ;
and (2) in the event Employer (or the Compensation Committee
of the Company) determines, in its sole discretion, that Executive
has been paid or has obtained a legally binding right to an
Incentive Bonus pursuant to this Section 3(b) that is
based on materially inaccurate financial statements and any other
materially inaccurate performance metric criteria, Executive must
pay Employer an amount equal to such Incentive Bonus immediately
after Executive receives notice of such misstatement (or forfeit
receipt of such Incentive Bonus if the Incentive Bonus has not been
paid). Any bonus payable under this Section 3(b) shall
be paid on or before March 15 of the year following the year
for which the bonus is payable.
3. Section 3(e) of the
Agreement is amended by inserting in the first sentence the words
“Subject to the provisions of Section 17
below,” immediately before the words “Executive shall
be entitled to”.
4. Section 6(a) of the
Agreement is amended by inserting the words “(except as
otherwise provided by Section 17
hereof)&rd
