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EXHIBIT 10.1
SHAREHOLDER AGREEMENT
This Shareholder Agreement (the "Agreement") is made as of June 15,
1998 by and among Joseph M. Grant; Theodore H. Strauss; The Makel Family
Partnership 1995, Ltd.; G&M Partners, Ltd.; Cargill Lakes Partners, Ltd.;
Cargill Capital Partners, Ltd.; JAKS Partners, Ltd.; Gregory B. Hultgren; Rose
Hultgren; and Raleigh Hortenstine III (each a "Shareholder" and, collectively,
the "Shareholders") and Texas Capital Bancshares, Inc., a Texas corporation (the
"Company").
W I T N E S S E T H:
WHEREAS, each Shareholder owns or controls the issued and outstanding
shares of capital stock of the Company set forth on Exhibit A hereto (the
"Stock"); and
WHEREAS, the Company and each Shareholder desire to enter into certain
agreements regarding the ownership of the Stock.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Shareholders and
the Company, intending to be legally bound, agree as follows:
ARTICLE I
CALL OPTION
1.1 Grant of Option. Each Shareholder hereby severally grants to the
Company an option to require such Shareholder to sell to the Company, and each
Shareholder is obligated to sell to the Company under this option (the "Call
Option"), the percentage of its total shares of Stock set forth in Section 1.2,
if, at any time on or before December 10, 2001, such Shareholder voluntarily
resigns as an officer, director, and/or consultant, whichever is applicable to
such Shareholder, of the Company and/or Texas Capital Bank, N.A., whichever is
applicable to such Shareholder (the "Termination Date"); provided, however, that
notwithstanding anything contained herein to the contrary, (i) it is expressly
agreed and understood that the occurrence of any of the following events shall
not constitute a voluntary resignation or the occurrence of a Termination Date:
(a) death of a Shareholder; (b) permanent disability of a Shareholder; or (c)
resignation by a Shareholder at any time following a Change of Control (as
defined below), and (ii) upon the occurrence of any of the events described in
(a)-(c) above, the Stock owned by such Shareholder, immediately prior to the
occurrence of such event, shall no longer be subject to the Call Option. As used
herein, "Change of Control" shall mean the change in beneficial ownership of an
aggregate of more than 50% of the outstanding shares of common stock of the
Company, in one or more transactions, compared to the ownership of outstanding
shares of common stock of the Company as of December 31, 1998.
The Company may exercise the Call Option with respect to a Shareholder any time
after a Termination Date regarding such Shareholder and before 90 days after
such Termination Date (the "Call Option Period").
1.2 Stock Covered by Call Option. The percentage of the total shares of
Stock held by a Shareholder that is subject to the Call Option is set forth
below:
Termination Date Percentage
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June 15, 1998 - December 10, 1998 100%
December 11, 1998- December 10, 1999 60%
December 11, 1999 - December 10, 2000 40%
December 11, 2000 - December 10, 2001 20%
December 11, 2001 and thereafter 0%
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1.3 Call Price. In the event that the Company exercises the Call
Option, the price to be paid in cash to each Shareholder for each share of Stock
purchased by the Company will be equal to the par value of such share of Stock.
1.4 Exercise of Call Option. The Call Option may be exercised during
the Call Option Period with respect to a percentage set forth in Section 1.2 of
the number of shares of Stock set forth on Exhibit A in respect of the
Shareholder that was subject to a Termination Date (the "Subject Shares"), by
the Company giving notice to such Shareholder during the Call Option Period of
the election of the Company to exercise the Call Option, and the date of the
Call Option Closing (as defined below), which will be within at least sixty (60)
days after the date of such notice.
1.5 Call Option Closing. The closing for the purchase and sale of all
the Subject Shares will take place at the office of the Company, on the date
specified in such notice of exercise (the "Call Option Closing"). At the Call
Option Closing, the Shareholder will deliver the certificate or certificates
representing the Subject Shares, duly endorsed in blank. In consideration
therefor, the Company will deliver to each Shareholder the purchase price, which
will be payable in immediately available funds.
ARTICLE II
MISCELLANEOUS
2.1 Default. It is agreed that a violation by any party of the terms of
this Agreement cannot be adequately measured or compensated in money damages,
and that any breach or threatened breach of this Agreement by a party to this
Agreement would do irreparable injury to the nonbreaching party. It is,
therefore, agreed that in the event of any breach or threatened breach by a
party to this Agreement of the terms and conditions set forth in this Agreement,
the nondefaulting party will be entitled, in addition to any and all other
rights and remedies that it may have in law or in equity, to apply for and
obtain injunctive relief requiring the defaulting party to be restrained from
any such breach, or threatened breach or to refrain from a continuation of any
actual breach.
2.2 Headings. The headings in this Agreement are for convenience and
reference only and are not part of the substance of this Agreement.
2.3 Severability. The parties to this Agreement expressly agree that it
is not their intention to violate any public policy, statutory or common law
rules, regulations, or decisions of any governmental or regulatory body. If any
provision of this Agreement is judicially or administratively interpreted or
construed as being in violation of any such policy, rule, regulation, or
decision, the provision, section, sentence, word, clause, or combination thereof
causing such violation will be inoperative (and in lieu thereof there will be
inserted such provision, sentence, word, clause, or combination thereof as may
be valid and consistent with the intent of the parties under this Agreement) and
the remainder of this Agreement, as amended, will remain binding upon the
parties to this Agreement, unless the inoperative provision would cause
enforcement of the remainder of this Agreement to be inequitable under the
circumstances.
2.4 Notices. Whenever it is provided herein that any notice, demand,
request, consent, approval, declaration, or other communication be given to or
served upon any of the parties by another, such notice, demand, request,
consent, approval, declaration, or other communication will be in writing and
will be deemed to have been validly served, given, or delivered (and "the date
of such notice" or words of similar effect will mean the date) five (5) days
after deposit in the United States mails, certified mail, return receipt
requested, with proper postage prepaid, or upon receipt thereof (whether by
non-certified mail, telecopy, telegram, express delivery, or otherwise),
whichever is earlier, and addressed to the party to be notified as follows:
If to the Company, at: Texas Capital Bancshares, Inc.
5910 N. Central Expressway
Suite 1000
Dallas, Texas 75206
Attn: Joseph M. Grant
Fax: (214) 890-5895
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with courtesy copies to: Patton Boggs LLP
2200 Ross Avenue, Suite 900
Dallas, Texas 75201
Attn: Charles P. Miller, Esq.
Fax: (214) 871-2688
If to a Shareholder, at: the address set forth with the name
of such Shareholder on the signature
page hereto
or to such other address as each party may designate for itself by like notice.
Failure or delay in delivering the courtesy copies of any notice, demand,
request, consent, approval, declaration, or other communication to the persons
designated above to receive copies of the actual notice will in no way adversely
affect the effectiveness of such notice, demand, request, consent, approval,
declaration, or other communication. No notice, demand, request, consent,
approval, declaration, or other communication will be deemed to have been given
or received unless and until it sets forth all items of information required to
be set forth therein pursuant to the terms of this Agreement.
2.5 Successors. This Agreement will be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns.
2.6 Remedies. The failure of any party to enforce any right or remedy
under this agreement, or to enforce any such right or remedy promptly, will not
constitute a waiver thereof, nor give rise to any estoppel against such party,
nor excuse any other party from its obligations under this Agreement. Any waiver
of any such right or remedy by any party must be in writing and signed by the
party against which such waiver is sought to be enforced.
2.7 Counterparts. This Agreement may be executed in any number of
counterparts, which will individually and collectively constitute one agreement.
2.8 CHOICE OF LAW. THIS AGREEMENT HAS BEEN EXECUTED, DELIVERED, AND
ACCEPTED BY THE PARTIES IN WILL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF
TEXAS AND WILL BE INTERPRETED AND THE RIGHTS OF THE PARTIES DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE UNITED STATES APPLICABLE THERETO AND THE
INTERNAL LAWS OF THE STATE OF TEXAS APPLICABLE TO AN AGREEMENT EXECUTED,
DELIVERED AND PERFORMED THEREIN WITHOUT GIVING EFFECT TO THE CHOICE-OF-LAW RULES
THEREOF OR ANY OTHER PRINCIPLE THAT COULD REQUIRE THE APPLICATION OF THE
SUBSTANTIVE LAW OF ANY OTHER JURISDICTION.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
THE COMPANY:
TEXAS CAPITAL BANCSHARES, INC.
By: /s/ JOSEPH M. GRANT
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Joseph M. Grant
Chairman and Chief Executive Officer
THE SHAREHOLDERS:
/s/ JOSEPH M. GRANT
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Joseph M. Grant
Address for Notice:
3510 Turtle Creek #6C
Dallas, TX 75219
/s/ THEODORE H. STRAUSS
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Theodore H. Strauss
Address for Notice:
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/s/ LARRY A. MAKEL
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Larry A. Makel, General Partner
The Makel Family Partnership 1995, Ltd.
Address for Notice:
3833 Centenary Ave.
Dallas, TX 75225
/s/ GEORGE F. JONES, JR.
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George F. Jones, Jr., General Partner
G& M Partners, Ltd.
Address for Notice:
3525 Turtle Creek Blvd. #12D
Dallas, TX 75219
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/s/ C. KEITH CARGILL
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C. Keith Cargill, President
Cargill Lakes, Inc., General Partner
Cargill Lakes Partners, Ltd.
Address for Notice:
1204 Bowie Ct.
Southlake, TX 76092
/s/ DAVID L. CARGILL
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David L. Cargill, General Partner
Cargill Capital Partners, Ltd.
Address for Notice:
5943 Lindenshire Lane
Dallas, TX 75230
/s/ VINCE A. ACKERSON
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Vince A. Ackerson, President
JAKS Company, Inc., General Partner
JAKS Partners, Ltd.
Address for Notice:
604 Bellmead Ct.
Allen, TX 75013
/s/ GREGORY B. HULTGREN
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Gregory B. Hultgren
/s/ ROSE HULTGREN
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Rose Hultgren
Address for Notice:
6512 Mercedes Ave.
Dallas, TX 75214
/s/ RALEIGH HORTENSTINE III
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Raleigh Hortenstine III
Address for Notice:
6316 Douglas Avenue
Dallas, TX 75205
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EXHIBIT "A"
FOUNDERS STOCK SUBJECT TO CALL OPTION
Amount
Beneficially
Name of Beneficial Owner Owned
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Joseph M. Grant 283,022
Theodore H. Strauss 43,378
Larry A. Makel (The Makel Family Partnership 1995, Ltd.) 64,000
George F. Jones, Jr. (G&M Partners, Ltd.) 64,000
C. Keith Cargill (Cargill Lakes Partners, Ltd.) 64,000
David L. Cargill (Cargill Capital Partners, Ltd.) 64,000
Gregory B. Hultgren & Rose Hultgren, tenants-in-common 29,155
Raleigh Hortenstine III 35,555
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711,110
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