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EXHIBIT 2.1
AGREEMENT AND PLAN TO CONSOLIDATE
TEXAS CAPITAL BANK
WITH AND INTO
RESOURCE BANK, N.A.
UNDER THE CHARTER OF
RESOURCE BANK, N.A.
AND UNDER THE TITLE OF
"TEXAS CAPITAL BANK, N.A."
THIS AGREEMENT AND PLAN TO CONSOLIDATE (the "Consolidation Agreement"),
made this 21st day of July, 1998, between RESOURCE BANK, N.A., DALLAS, TEXAS
("Existing Bank") and TEXAS CAPITAL BANK, DALLAS, TEXAS ("Other Bank"), and
joined in by TEXAS CAPITAL BANCSHARES, INC., a Delaware corporation
("Corporation") provides as follows:
WITNESSETH:
A. Existing Bank is a national banking association duly organized and
existing under the laws of the United States, having its principal office in the
City of Dallas, County of Dallas, State of Texas;
B. Existing Bank has, and will have as of the Effective Time
(hereinafter defined), authorized capital stock of $4,000,000 divided into
2,000,000 shares of common stock, $2.00 par value per share ("Existing Bank
Common Stock"), of which 1,250,000 shares are issued and outstanding;
C. Existing Bank has granted options (the "Existing Bank Options") to
purchase 57,500 shares of Existing Bank Common Stock to its officers;
D. Other Bank is a uninsured state banking association duly organized
and existing under the laws of the State of Texas, having its principal office
in the City of Dallas, County of Dallas, State of Texas; Other Bank has been
formed solely for the purpose of facilitating the transactions described herein,
and prior to the consummation of the transactions described herein, it will
conduct no business except incident to its organization;
E. Other Bank has, or will have as of the Effective Time, authorized
capital stock of $5,000.00, divided into 2,500 shares of common stock, $2.00 par
value ("Other Bank Common Stock"), all of which are, or will be as of the
Effective Time, issued and outstanding and owned by the Corporation;
F. Corporation is a corporation duly organized and validly existing
under the laws of the State of Delaware, having its principal office in the City
of Dallas, County of Dallas, State of Texas, with authorized capital stock of
$200,000.00, divided into 20,000,000 shares of common stock, $0.01 par value
("Corporation Common Stock"), of which 888,888 shares are issued and
outstanding;
G. The majorities of the Boards of Directors of Existing Bank and of
Other Bank, pursuant to the authority given by and in accordance with the
provisions of the Act of November 7, 1918, as amended (12 U.S.C. 215), have
approved this Consolidation Agreement under which Other Bank shall be
consolidated with and into Existing Bank in a transaction having the effect of a
merger (the "Consolidation") and have authorized the execution and performance
hereof; and the Board of Directors of Corporation has approved this
Consolidation Agreement, authorized Corporation to join in and be bound by this
Consolidation Agreement, and authorized the undertakings herein made by
Corporation; and
H. As and when required by the provisions of this Consolidation
Agreement, all such action as may be necessary or appropriate shall be taken by
Existing Bank, Other Bank and Corporation in order to consummate the
Consolidation.
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NOW, THEREFORE, in consideration of the premises, Existing Bank and
Other Bank, joined by Corporation, hereby agree that Other Bank shall be
consolidated with and into Existing Bank pursuant to 12 U.S.C. 215 in a
transaction having the effect of a merger on the following terms and conditions:
1. Consolidation of Other Bank into Existing Bank. At the Effective
Time, Other Bank shall be consolidated with and into Existing Bank pursuant to
the provisions of and with the effect provided in the Act of November 7, 1918,
as amended (12 U.S.C. 215). Existing Bank shall be the bank surviving the
Consolidation (hereinafter referred to as the "Receiving Bank") and shall
continue its existence as a national banking association. The Articles of
Association and Bylaws of Existing Bank shall continue in effect as the Articles
of Association and Bylaws of the Receiving Bank until the same shall be amended
and changed as provided by law.
2. Receiving Bank. The name of the Receiving Bank shall be "Texas
Capital Bank, N.A." The established office and facilities of Existing Bank
immediately prior to the Consolidation shall continue as the established office
and facilities of the Receiving Bank.
3. Rights and Property of Receiving Bank. At the Effective Time, the
corporate existence of Existing Bank and Other Bank shall, as provided in the
Act of November 7, 1918, as amended (12 U.S.C. 215), be consolidated into and
continued in the Receiving Bank; and the Receiving Bank shall be deemed to be
the same corporation as Existing Bank and Other Bank. All rights, franchises and
interests of Existing Bank and Other Bank, respectively, in and to every type of
property (real, personal and mixed) and choses in action shall be transferred to
and vested in the Receiving Bank by virtue of the Consolidation without any deed
or other transfer. The Receiving Bank at the Effective Time and without any
order or other action on the part of any court or otherwise, shall hold and
enjoy all rights of property, franchises and interests, including appointments,
designations and nominations, and all other rights and interests as trustee,
executor, administrator, transfer agent and registrar of stocks and bonds,
guardian of estates, assignee, receiver, and in every other fiduciary capacity,
and in every agency capacity, in the same manner and to the same extent as such
rights, franchises and interests were held or enjoyed by Existing Bank and Other
Bank, respectively, at the Effective Time.
4. Liabilities and Obligations of Receiving Bank. At the Effective
Time, the Receiving Bank shall be liable for all liabilities of Existing Bank
and of Other Bank, respectively; and all deposits, debts, liabilities,
obligations and contracts of Existing Bank and of Other Bank, respectively,
matured or unmatured, whether accrued, absolute, contingent or otherwise, and
whether or not reflected or reserved against on balance sheets, books of account
or records of Existing Bank or Other Bank, as the case may be, including all
liabilities of Existing Bank and Other Bank for taxes, whether existing at the
Effective Time or arising as a result of or pursuant to the Consolidation, shall
be those of the Receiving Bank and shall not be released or impaired by the
Consolidation; and all rights of creditors and other obligees and all liens on
property of either Existing Bank or Other Bank shall be preserved unimpaired.
5. Exchange and Conversion of Shares. At the Effective Time:
a. Consideration to Existing Bank Shareholders. Shareholders
of the Existing Bank shall be entitled to receive, for each share of
Existing Bank Common Stock they own at the Effective Time, 0.391111
shares of Corporation Common Stock.
b. Conversion of Existing Bank Common Stock. The shares of
Existing Bank Common Stock issued and outstanding at the Effective Time
shall, by operation of law and without any action on the part of
holders thereof, be converted into the right to receive the
consideration set forth in subsection (a) of this Section 5.
c. Conversion of Other Bank Common Stock. The shares of Other
Bank Common Stock outstanding at the Effective Time shall, by virtue of
the Consolidation and without any action on the part of the Corporation
or any other party as holder thereof, be converted into and become
shares of capital stock of Receiving Bank. By virtue of this
Consolidation Agreement and without any action by any party, the number
of shares of capital stock of the Receiving Bank to be outstanding
after the Effective Time shall be 1,250,000 shares.
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6. Surrender of Existing Bank Common Stock and Delivery of
Consideration. At least twenty days prior to the Closing Date, Existing Bank
shall send to each holder of Existing Bank Common Stock a letter of transmittal
with instructions for surrendering certificates evidencing the Existing Bank
Common Stock pursuant to the Consolidation. If a holder of Existing Bank Common
Stock surrenders the certificates representing shares of Existing Bank Common
Stock and a fully completed and executed Letter of Transmittal to Existing Bank
at least two days prior to the Closing Date, then on the Closing Date, the
Corporation shall issue to such shareholder a certificate evidencing the shares
of Corporation Common Stock to which the shareholder is entitled pursuant to
Section 5(a). If a holder of Existing Bank Common Stock surrenders the
certificates representing shares of Existing Bank Common Stock and a fully
completed and executed Letter of Transmittal to Existing Bank at any time after
two days prior to the Closing Date, then promptly after the Closing Date, and in
no event later than five days after receipt of such certificates and Letter of
Transmittal, the Corporation shall issue to such shareholder a certificate
evidencing the shares of Corporation Common Stock to which the shareholder is
entitled pursuant to Section 5(a). Until so surrendered, each such outstanding
certificate which, prior to the Effective Time, represented shares of Existing
Bank Common Stock shall be deemed for all purposes, subject to the provisions of
Section 9 hereof, to evidence solely the right to receive the items described in
Section 5 hereof.
In the event any certificate evidencing Existing Bank Common Stock
shall have been lost, stolen or destroyed, upon the execution and delivery of an
Affidavit and Indemnity Agreement acceptable in form to the Corporation by the
person claiming such certificate to be lost, stolen or destroyed and, if
required by the Corporation, the posting by such person of a bond in such amount
as the Corporation may direct as indemnity against any claim that may be made
against it with respect to such certificate, the Corporation shall issue to such
shareholder a certificate evidencing the shares of Corporation Common Stock to
which the shareholder is entitled pursuant to Section 5(a). Upon the holder's
exchange of Existing Bank Common Stock for Corporation Common Stock, the holder
shall be paid the amount (without interest thereon) of all distributions that
have become payable since the Effective Time with respect to the number of
shares of Corporation Common Stock represented by the certificates issued upon
such exchange. The stock transfer books of Existing Bank shall be closed as of
the close of business on the Closing Date (hereinafter defined), and no transfer
of record of any of the shares of Existing Bank Common Stock shall take place
thereafter.
7. Directors, Officers and Committees. The directors, advisory
directors and officers of the Receiving Bank at the Effective Time shall be
those persons who are directors, advisory directors and officers, respectively,
of Existing Bank immediately before the Effective Time. The committees of the
Board of Directors of the Receiving Bank at the Effective Time shall be the same
as, and shall be composed of the same persons who are serving on, committees of
the Board of Directors of Existing Bank as they existed immediately before the
Effective Time.
8. Shareholder Approval. This Consolidation Agreement shall be
submitted to the shareholders of Existing Bank and Other Bank, at meetings
called to be held as promptly as practicable. Upon approval by the requisite
votes of the shareholders of Existing Bank and Other Bank, this Consolidation
Agreement shall be made effective as soon as practicable thereafter in the
manner provided in Section 13 hereof.
9. Dissenting Stockholders. Any stockholder of Existing Bank who
objects to the Consolidation and follows the procedure for dissent set for in 12
U.S.C. Section 215, as amended, shall be entitled to the rights and benefits
afforded to dissenting shareholders by such statute.
10. Conditions to Consummation. The obligations of the parties to
consummate the Consolidation as provided herein shall be conditioned upon the
following:
(a) the parties shall have received all consents, orders, and
approvals and satisfaction of all other requirements prescribed by law
which are necessary for the consummation of the Consolidation,
including without limitation, the approval of the Board of Governors of
the Federal Reserve System, the Office of the Comptroller of the
Currency, the Federal Deposit Insurance Corporation, and the Texas
Banking Commissioner;
(b) the holders of at least two thirds of the outstanding
shares of Existing Bank Common Stock and the Other Bank Common Stock
shall have approved the Consolidation and ratified and adopted the
Consolidation Agreement;
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(c) there shall not be in effect any order, decree, or
judgment of any court or governmental agency prohibiting or materially
changing the terms of the transactions contemplated hereby; there shall
be no threatened or pending action, proceeding or investigation which
seeks to prohibit or materially change the terms of the transactions
contemplated hereby or impose criminal or civil liability upon Existing
Bank, Other Bank or the Corporation; provided, however, that no party
shall decline to proceed with the Closing pending final resolution
thereof without exercising reasonable efforts promptly to determine,
jointly with the other parties, the merits thereof and the likelihood
of an adverse determination in such proceeding;
(d) no change shall have occurred or been threatened (or any
development shall have occurred or been threatened involving a
prospective change) in the business, financial condition, operations or
prospects of the Existing Bank that has or may reasonably be expected
to have a Material Adverse Effect on the operations of Existing Bank;
(e) the Corporation shall have issued at least 6,000,000
shares of Corporation Common Stock at $12.50 per share pursuant to its
private offering;
(f) the Existing Bank shall have received an opinion from The
Bank Advisory Group, Inc., or another investment banking firm engaged
in the business of giving such opinions, that the consideration to be
received by the holders of the Existing Bank Common Stock in connection
with the consolidation is fair, from a financial point of view, and
such opinion shall remain outstanding as of the Closing Date; and
(g) the holders of the Existing Bank Options shall have
exchanged such options for shares of Corporation Common Stock and
terminated any right to acquire shares of Existing Bank Common Stock.
11. Representations and Warranties of Existing Bank. Existing Bank
represents and warrants the following to Other Bank and the Corporation:
(a) Organization. Existing Bank is a national banking
association, duly organized and validly existing under the laws of the
United States and is in good standing under the laws of the State of
Texas. The deposits are, and at Closing will be, "insured deposits"
insured under the Bank Insurance Fund of the Federal Deposit Insurance
Corporation pursuant to the Federal Deposit Insurance Act. The Bank
does not own or control any subsidiary. The Bank has the requisite
corporate power to own, lease and operate its properties and to carry
on its business as now being conducted.
(b) Authority. Existing Bank has the requisite power and
authority to execute and deliver this Consolidation Agreement and,
subject to receipt of regulatory and shareholder approvals, to
consummate the transactions contemplated hereby; all corporate action
necessary to be taken by or on the part of Existing Bank (other than
the requisite shareholder approval) to execute, deliver and perform
this Consolidation Agreement and to consummate the transactions
contemplated hereby has been duly and validly taken; and this
Consolidation Agreement has been duly executed and delivered by, and
constitutes the valid and binding agreement of, Existing Bank,
enforceable in accordance with its terms.
(c) No Violations. Subject to the receipt of regulatory and
shareholder approval, the execution, delivery and performance by
Existing Bank of this Consolidation Agreement do not, and the
consummation by Existing Bank of the transactions contemplated hereby
will not, violate or conflict with the articles of association or
bylaws of Existing Bank, or any law or regulation currently applicable
to Existing Bank, or any material agreement or instrument, or currently
applicable award, order, judgment or decree to which Existing Bank is a
party or by which it is bound, or result in the creation of any lien,
claim, pledge, security interest, change or encumbrance upon the
properties or assets of Existing Bank;
(d) Consents. Except as referred to herein or in connection or
in compliance with the provisions of 12 USC Section 215, as amended,
the rules and regulations of the Office of the Comptroller of
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the Currency, the Federal Deposit Insurance Corporation, the Board of
Governors of the Federal Reserve System and the Texas Department of
Banking, and the environmental, corporation, securities or blue sky
laws or regulations of the various states, no filing or registration
with, or authorization, consent or approval of, any public body or
authority is necessary for the consummation by Existing Bank of the
Consolidation or the other transactions contemplated by this
Consolidation Agreement.
(e) Financial Statements and Reports. The financial statements
of the Existing Bank as of December 31, 1997, and as of March 31, 1998
for the three month period then ending which have been delivered to the
Corporation (the "Financial Statements"), fairly present the results of
operation and the financial position of the Existing Bank for the
fiscal periods and as of the dates thereof. Each of such statements has
been prepared in accordance with generally accepted accounting
principles, consistently applied during the periods involved.
(f) Absence of Certain Changes or Events. From December 31,
1997 to the date hereof, (i) the Existing Bank has not incurred any
material liability, other than in the ordinary course of its business
consistent with past practice, and (ii) there has not been any
condition, event, change or occurrence that, individually or in the
aggregate, has had or is reasonably likely to have a Material Adverse
Effect on the Existing Bank. "Material Adverse Effect" means a material
adverse change in the financial condition, results of operations,
assets or business (including its future prospects) of an entity,
including its subsidiaries.
(g) Business of Existing Bank. Since December 31, 1997,
Existing Bank has conducted its business only in the ordinary course.
For purposes of the foregoing, Existing Bank has not, since December
31, 1997, controlled expenses through (i) elimination of employee
benefits, (ii) deferral of routine maintenance of real property or
leased premises, (iii) elimination of reserves where the liability
related to such reserve has remained, (iv) reduction of capital
improvements from previous levels, (v) failure to depreciate capital
assets in accordance with past practice or to eliminate capital assets
which are no longer used in the business of Existing Bank, (vi)
capitalized production expenses other than in accordance with Statement
of Financial Accounting Standard No. 91, or (vii) extraordinary
reduction or deferral of ordinary or necessary expenses.
(h) Taxes. All federal, state, local and foreign tax returns,
as defined below, required to be filed by or on behalf of Existing Bank
have been duly and timely filed or requests for extensions have been
timely filed (and any such extension shall have been granted and have
not expired). All taxes, as defined below, shown on such returns, and
all taxes required to be shown on returns for which extensions have
been granted, have been paid in full or adequate provision has been
made for any such taxes on the Existing Bank's balance sheet (in
accordance with GAAP). Existing Bank has not been audited by the
applicable taxing authority of the State of Texas or the Internal
Revenue Service. As of the date of this Consolidation Agreement, there
is no audit examination, deficiency, claim or assessment, or refund
litigation with respect to any taxes of Existing Bank that could
reasonably be expected to result in a Material Adverse Effect on
Existing Bank, and no claim or assessment that could reasonably be
expected to result in a Material Adverse Effect on Existing Bank has
been made by any authority in a jurisdiction where Existing Bank does
not file tax returns and Existing Bank is subject to taxation. All
taxes, interest, additions, and penalties due with respect to completed
and settled examinations or concluded litigation relating to Existing
Bank have been paid in full or adequate provision has been made for any
such taxes on the Existing Bank's balance sheet (in accordance with
GAAP). The Existing Bank has not executed an extension or waiver of any
statute of limitations on the assessment or collection of any material
tax due that is currently in effect. The Existing Bank has withheld and
paid all taxes required to have been withheld and paid in connection
with amounts paid or owing to any employee, independent contractor,
creditor, shareholder or other third party, and has timely complied
with all applicable information reporting requirements under Part III,
Subchapter A of Chapter 61 of the Internal Revenue Code and similar
applicable state and local information reporting requirements, except
in each case for such failure to withhold, pay or comply that would
not, individually or in the aggregate, result in a Material Adverse
Effect on the Existing Bank.
"Taxes" shall mean all taxes, charges, fees, levies, penalties
or other assessments imposed by any United States federal, state, local
or foreign taxing authority, including, but not limited to income,
excise, property, sales, transfer, franchise, payroll, withholding,
social security or other taxes, including
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any interest, penalties or additions attributable thereto. "Tax Return"
shall mean any return, report, information return or other documents
(including any related or supporting information) with respect to
Taxes.
(i) Absence of Claims. There are no legal, quasi-judicial or
administrative proceedings of any kind or nature now pending or, to the
best knowledge of the Existing Bank, threatened before any court or
administrative body involving the Existing Bank or any of its
properties. Existing Bank is not in default with respect to any
judgment, order, writ, injunction, decree, award, rule or regulation of
any court, arbitrator or governmental agency or instrumentality.
(j) Absence of Regulatory Actions. Existing Bank is not a
party to any cease and desist order, written agreement or memorandum of
understanding with, or a party to any commitment letter or similar
written undertaking to, or is subject to any order or directive by, or
is a recipient of any extraordinary supervisory letter from a
regulatory agency, which is currently in effect, nor has it been
advised by any regulatory agency that it is contemplating issuing or
requesting (or is considering the appropriateness of issuing or
requesting) any such order, directive, written agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or
similar written undertaking. In connection with the most recent
examination of the Existing Bank, Existing Bank has not been informed
or ordered by any regulatory agency, whether by written communication
or otherwise, to amend or change in any material way its reports,
accounting methods, methods of operations, or business practices, or to
classify any loans not previously classified or to charge-off any loans
or increase Existing Bank's allowance for loan losses, or to take or
discontinue any activity or action.
(k) Title to Assets. Existing Bank has insurable title
(subject only to standard title insurance policy exceptions as
determined by customary practices in the area in which such properties
are located) to its owned real properties, except for liens, or such
other defects arising by operation of law. Existing Bank, as lessee,
has the right under valid and existing leases of properties used by
Existing Bank in the conduct of its business to occupy and use all such
properties that are leased by it as are now occupied and used by it.
Liens shall mean any claim, encumbrance, or charge on property for
payment of a debt, obligation or duty.
(l) Allowance for Loan Losses. In the Existing Bank's
reasonable judgment, the allowance for loan losses reflected in the
Existing Bank's financial statements of December 31, 1997 was, and the
allowance for loan losses shown on its Reports of Condition and Income
for periods ending after December 31, 1997 have been and will be,
adequate, as of the dates thereof, under GAAP applicable to national
banking associations and no regulatory agency has required or requested
Existing Bank to increase the allowance for loan losses since December
31, 1997. Existing Bank has disclosed to the Corporation in writing
prior to the date hereof the amounts of all loans, leases, advances,
credit enhancements, other extensions of credit, commitments and
interest-bearing assets of the Existing Bank that have been classified
as of March 31, 1998 as "Other Loans Specially Mentioned", "Special
Mention", "Substandard", "Doubtful", "Loss", "Classified",
"Criticized", "Credit Risk Assets", "Concerned Loans" (in the latter
two cases, to the extent available) or words of similar import. From
and after the date hereof, Existing Bank promptly will provide the
Corporation with a copy of each monthly classified asset report it
provides to its Board of Directors. The REO included in any
non-performing assets of the Existing Bank is carried net of reserves
at the lower of cost or fair value.
(m) Compliance with Laws. Existing Bank has maintained in full
force and effect all permits, licenses, certificates of authority,
orders and approvals of, and has made all filings, applications and
registrations with, federal, state, local and foreign governmental or
regulatory bodies (each, a "Government Entity") that are in each case
required in order to permit it to carry on its business as it is
presently conducted. To the knowledge of Existing Bank, no suspension
or cancellation of any of such permits, licenses, certificates of
authority, orders or approvals is threatened. To the knowledge of
Existing Bank, the business of Existing Bank is not being conducted in
violation of any law, ordinance, regulation, order, writ, rule, decree
or approval of any Governmental Entity.
(n) Insurance. Existing Bank is presently insured for
reasonable amounts with financially sound and reputable insurance
companies, against such risks as companies engaged in a similar
business located in the State of Texas would, in accordance with good
business practice, customarily
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be insured. Existing Bank has not received notice from any insurance
carrier that any such insurance will be cancelled or that coverage
thereunder will be reduced or eliminated, or premium costs with respect
to such insurance will be increased.
(o) Books and Records. The books and records of the Existing
Bank have been, and are being, maintained in accordance with applicable
legal and accounting requirements and reflect in all material respects
the substance of material events and transactions that should be
included therein.
(p) Community Reinvestment Act and other Consumer Law
Compliance. At its most recent regulatory evaluation of Existing Bank's
performance under the Community Reinvestment Act (the "CRA"), Existing
Bank's record of performance was deemed to be "outstanding" or
"satisfactory," and no proceedings are pending or, to the knowledge of
Existing Bank, threatened, that would result in a change in such
evaluation. Existing Bank has not received any adverse public comments
with respect to its compliance under the CRA since the date of its most
recent regulatory evaluation of its performance under the CRA. Existing
Bank reasonably believes that it is in substantial compliance with all
fair lending laws or other laws relating to discrimination, including
without limitation, the Equal Credit Opportunity Act, the Fair Housing
Act, the Home Mortgage Disclosure Act, the Real Estate Settlement
Procedures Act of 1974 and the Truth in Lending Act.
(q) Knowledge as to Conditions. Existing Bank knows of no
reason why the requisite regulatory approvals of the transaction
contemplated by the Consolidation Agreement should not be obtained.
12. Representations and Warranties of the Corporation. The Corporation
represents and warrants the following to Existing Bank:
(a) Organization. Corporation is a Delaware corporation, duly
organized and validly existing and in good standing under the laws of
the State of Delaware. The Corporation has the requisite corporate
power to own, lease and operate its properties and to carry on its
business as now being conducted.
(b) Authority. The Corporation has the requisite power and
authority to execute and deliver this Consolidation Agreement and,
subject to receipt of regulatory approvals, to consummate the
transactions contemplated hereby; all corporate action necessary to be
taken by or on the part of the Corporation to execute, deliver and
perform this Consolidation Agreement and to consummate the transactions
contemplated hereby has been duly and validly taken; and this
Consolidation Agreement has been duly executed and delivered by, and
constitutes the valid and binding agreement of, the Corporation,
enforceable in accordance with its terms.
(c) No Violations. Subject to the receipt of regulatory, the
execution, delivery and performance by the Corporation of this
Consolidation Agreement do not, and the consummation by the Corporation
of the transactions contemplated hereby will not, violate or conflict
with the articles of incorporation or bylaws of the Corporation, or any
law or regulation currently applicable to the Corporation, or any
material agreement or instrument, or currently applicable award, order,
judgment or decree to which the Corporation is a party or by which it
is bound, or result in the creation of any lien, claim, pledge,
security interest, change or encumbrance upon the properties or assets
of the Corporation;
(d) Consents. Except as referred to herein or in connection or
in compliance with the rules and regulations of the Office of the
Comptroller of the Currency, the Federal Deposit Insurance Corporation,
the Board of Governors of the Federal Reserve System and the Texas
Department of Banking, and the environmental, corporation, securities
or blue sky laws or regulations of the various states, no filing or
registration with, or authorization, consent or approval of, any public
body or authority is necessary for the consummation by the Corporation
of the Consolidation or the other transactions contemplated by this
Consolidation Agreement.
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(e) Knowledge as to Conditions. The Corporation knows of no
reason why the requisite regulatory approvals of the transaction
contemplated by the Consolidation Agreement should not be obtained.
(f) No Other Negotiations. The Corporation is not currently
engaged in negotiations to acquire any other financial institution, or
substantially all of the assets of any financial institution.
(g) Offering. The Corporation knows of no reason why it should
not be successful in raising at least $75,000,000 in its private
offering.
(h) Capital Stock. The authorized capital stock of the
Corporation consists of 20,000,000 shares of Corporation Common Stock,
$0.01 per share, of which 888,888 shares are validly issued and
outstanding. The shares of Corporation Common Stock to be issued in the
Consolidation are duly authorized, and when so issued, will be validly
issued and outstanding, fully paid and nonassessable, not subject to
preemptive rights, and issued pursuant to applicable exemptions under
federal and state securities laws.
(i) Financial Statements and Reports. The financial statements
of the Corporation as of December 31, 1997, and as of March 31, 1998
for the three month period then ending which have been delivered to the
Existing Bank (the "Financial Statements"), fairly present the results
of operation and the financial position of the Corporation for the
fiscal periods and as of the dates thereof. Each of such statements has
been prepared in accordance with generally accepted accounting
principles, consistently applied during the periods involved.
(j) Absence of Certain Changes or Events. From December 31,
1997 to the date hereof, (i) the Corporation has not incurred any
material liability, other than in the ordinary course of its business
consistent with past practice, and (ii) there has not been any
condition, event, change or occurrence that, individually or in the
aggregate, has had or is reasonably likely to have a Material Adverse
Effect on the Corporation.
(k) Taxes. All federal, state, local and foreign tax returns,
as defined below, required to be filed by or on behalf of the
Corporation have been duly and timely filed or requests for extensions
have been timely filed (and any such extension shall have been granted
and have not expired). All taxes, as defined below, shown on such
returns, and all taxes required to be shown on returns for which
extensions have been granted, have been paid in full or adequate
provision has been made for any such taxes on the Corporation's balance
sheet (in accordance with GAAP). The Corporation has not been audited
by the applicable taxing authority of the State of Texas or the
Internal Revenue Service. As of the date of this Consolidation
Agreement, there is no audit examination, deficiency, claim or
assessment, or refund litigation with respect to any taxes of the
Corporation that could reasonably be expected to result in a Material
Adverse Effect on the Corporation, and no claim or assessment that
could reasonably be expected to result in a Material Adverse Effect on
the Corporation has been made by any authority in a jurisdiction where
the Corporation does not file tax returns and the Corporation is
subject to taxation. All taxes, interest, additions, and penalties due
with respect to completed and settled examinations or concluded
litigation relating to the Corporation have been paid in full or
adequate provision has been made for any such taxes on the
Corporation's balance sheet (in accordance with GAAP). The Corporation
has not executed an extension or waiver of any statute of limitations
on the assessment or collection of any material tax due that is
currently in effect. The Corporation has withheld and paid all taxes
required to have been withheld and paid in connection with amounts paid
or owing to any employee, independent contractor, creditor, shareholder
or other third party, and has timely complied with all applicable
information reporting requirements under Part III, Subchapter A of
Chapter 61 of the Internal Revenue Code and similar applicable state
and local information reporting requirements, except in each case for
such failure to withhold, pay or comply that would not, individually or
in the aggregate, result in a Material Adverse Effect on the
Corporation.
"Taxes" shall mean all taxes, charges, fees, levies, penalties
or other assessments imposed by any United States federal, state, local
or foreign taxing authority, including, but not limited to income,
excise, property, sales, transfer, franchise, payroll, withholding,
social security or other taxes, including any interest, penalties or
additions attributable thereto. "Tax Return" shall mean any return,
report,
9
information return or other documents (including any related or
supporting information) with respect to Taxes.
(l) Absence of Claims. There are no legal, quasi-judicial or
administrative proceedings of any kind or nature now pending or, to the
best knowledge of the Corporation, threatened before any court or
administrative body involving the Corporation or any of its properties.
The Corporation is not in default with respect to any judgment, order,
writ, injunction, decree, award, rule or regulation of any court,
arbitrator or governmental agency or instrumentality.
(m) Books and Records. The books and records of the
Corporation have been, and are being, maintained in accordance with
applicable legal and accounting requirements and reflect in all
material respects the substance of material events and transactions
that should be included therein.
13. Termination.
(a) This Consolidation Agreement may be terminated by the
mutual written consent of the Corporation, Other Bank and Existing
Bank. If upon the written mutual consent of the Corporation, Other Bank
and Existing Bank to terminate pursuant to this Section 13, this
Consolidation Agreement shall terminate and be of no further force or
effect, and the Corporation, the Other Bank and Existing Bank shall
have no further rights or obligations under this Consolidation
Agreement.
(b) Termination by the Corporation. The Corporation may elect
to terminate its obligation to consummate the Consolidation pursuant to
this Consolidation Agreement in the event that (i) the conditions to
the consummation of the Consolidation set forth in Section 10 hereof
are not satisfied in full or waived, (ii) Existing Bank is in breach of
this Consolidation Agreement or otherwise fails or refuses to
consummate the Consolidation pursuant to this Consolidation Agreement,
or (iii) the transaction is not consummated on or before December 31,
1998 unless extended in a writing signed by all parties hereto. Upon
the occurrence of any such event and the Corporation's election to
terminate, the Corporation shall notify Existing Bank in writing of its
election to terminate its obligation to consummate the Consolidation
and the Corporation shall have no obligation to consummate the
transactions contemplated hereby. The Corporation's election to
terminate its obligation to consummate the Consolidation shall not
limit any other relief to which the Corporation may be entitled for
breach of this Consolidation Agreement by Existing Bank.
10
(c) Termination by Existing Bank. Existing Bank may elect to
terminate its obligation to consummate the Consolidation pursuant to
this Consolidation Agreement in the event that (i) the conditions to
the consummation of the Consolidation set forth in Section 10 hereof
are not satisfied in full or waived, (ii) the Corporation is in breach
of this Consolidation Agreement or otherwise fails or refuses to
consummate the Consolidation pursuant to this Consolidation Agreement,
or (iii) the transaction is not consummated on or before December 31,
1998 unless extended in a writing signed by all parties hereto. Upon
the occurrence of any such event and Existing Bank's election to
terminate, Existing Bank shall notify the Corporation in writing of its
election to terminate its obligation to consummate the Consolidation
and Existing Bank shall have no obligation to consummate the
transactions contemplated hereby. Existing Bank's election to terminate
its obligation to consummate the Consolidation shall not limit any
other relief to which Existing Bank may be entitled for breach of this
Consolidation Agreement by the Corporation.
14. Waiver and Amendment. Any of the terms or conditions of this
Consolidation Agreement may be waived at any time, whether before or after
action thereon by the stockholders of Existing Bank or Other Bank, by the party
that is entitled to the benefits thereof; and this Consolidation Agreement may
be modified or amended at any time, whether before or after action thereon by
the stockholders of Existing Bank or Other Bank; provided, however, that after
action hereon by the stockholders of Existing Bank, no amendment or modification
may be made which would reduce the consideration to be paid to stockholders of
Existing Bank under Section 5 hereof. Any waiver, modification or amendment
shall be in writing.
15. Closing Date and Effective Time. The closing date (the "Closing
Date") shall be within 30 days of the expiration of the mandatory waiting period
associated with the last required regulatory approval of the Consolidation.
Subject to the terms, and upon satisfaction on or before the Closing Date of all
requirements of law and the conditions specified in this Consolidation
Agreement, the Consolidation shall become effective at the opening of business
on the date specified in the Certificate of Authority to be issued by the
Comptroller of the Currency under the seal of his office authorizing the
Receiving Bank to conduct the business of banking, such time being herein called
the "Effective Time." If a time other than the opening of business is specified
in said Certificate, the Effective Time shall be the time so specified.
16. Confidentiality. Except as may be required by applicable law or
regulation or as may be necessary to obtain regulatory approval of the
transactions contemplated hereby, the Corporation will treat as confidential any
information (the "Information") related to the transactions described herein
obtained from Existing Bank. The Corporation will not disclose the Information
to others, except its employees, advisors, directors and agents, and will use
the Information expressly and exclusively for the purpose of evaluating the
potential of consummating the transactions contemplated hereby. The term
"Information" does not include any information that (i) at the time of
disclosure or thereafter is generally available to and known by the public, (ii)
was available on a nonconfidential basis from a source other than Existing Bank
or (iii) was independently acquired or developed without violating any laws or
obligations of this Consolidation Agreement. The Corporation shall promptly
return to Existing Bank or destroy all documents containing Information
following the parties' determination not to proceed with the transaction
contemplated herein. The Corporation's obligations under this Section 14 shall
survive termination of this Consolidation Agreement.
17. Covenants of the Corporation. The Corporation shall (a) use all
reasonable efforts to consummate the transactions contemplated hereby, (b)
promptly file and process any and all applications for approval of any banking
regulatory agency having jurisdiction over the contemplated transactions, (c)
promptly conduct a private offering of up to 10,000,000 shares of Corporation
Common Stock at a subscription price of $12.50 per share and use its best
efforts to successfully complete such offering, (d) vote all shares of Other
Bank Common Stock in favor of the Consolidation, and (e) not amend its Articles
of Incorporation without the express written consent of Existing Bank.
18. Miscellaneous.
(a) Governing Law. The Consolidation Agreement shall be
governed by, and interpreted in accordance with, the laws of the State
of Texas to the extent not preempted by or required to be governed by
the federal laws of the United States. VENUE FOR DISPUTES ARISING UNDER
THIS CONSOLIDATION AGREEMENT SHALL BE DALLAS, DALLAS COUNTY, TEXAS.
11
(b) Expenses. Each party hereto will bear all expenses
incurred by it in connection with the Consolidation Agreement and the
transactions contemplated hereby.
(c) Notices. All notices, requests, acknowledgments and other
communications hereunder to a party shall be in writing and shall be
deemed to have been duly given when deliver by hand, telecopy or
registered mail (upon receipt) to such party at its address set forth
below or such other address as such party may specify by notice to the
other party hereto.
If to Corporation, to:
Texas Capital Bancshares, Inc.
2200 Ross Avenue
Suite 900
Dallas, Texas 75207
Attention: Jody Grant
Fax: (214) 871-2688
With copies to:
Charles P. Miller
Patton Boggs, LLP
2200 Ross Avenue
Suite 900
Dallas, Texas 75201
Fax: (214) 871-2688
If to Existing Bank to:
Resource Bank, N.A.
4230 LBJ Freeway, Suite 100
Dallas, Texas 75244
Attn: George F. Jones
Fax: (972) 726-0044
With copies to:
Mark Haynie
Haynie Rake & Repass, P.C.
14651 Dallas Parkway, Suite 136
Dallas, Texas 75240
Fax: (972) 716-1850
(c) Entire Agreement; Etc. This Consolidation Agreement
represents the entire understanding of the parties hereto with
reference to the transactions contemplated hereby and supersedes any
and all other oral or written agreements heretofore made. All terms and
provisions of the Consolidation Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns. Nothing in this Consolidation Agreement is
intended to confer upon any other person any rights or remedies of any
nature whatsoever under or by reason of this Consolidation Agreement.
(d) Severability. If any provisions of this Consolidation
Agreement, or the application thereof to any person, place or
circumstance, shall be held by a court of competent jurisdiction to be
invalid, unenforceable, or void, the remainder of this Consolidation
Agreement and such provisions as applied to other persons, places, and
circumstances shall remain in full force and effect, unless if, after
12
excluding the portion deemed to be unenforceable, the remaining terms
shall not provide for the consummation of the transactions contemplated
hereby as subsequently modified by amendment.
(e) Assignment. This Consolidation Agreement may not be
assigned by any party hereto without the prior written consent of the
other parties.
(f) Multiple Counterparts. For the convenience of the parties
hereto and to facilitate the filing and recording of this Consolidation
Agreement, any number of counterparts thereof may be executed, each of
which shall for all purposes be deemed to be an original and all of
which shall constitute the same instrument, but only one of which need
be produced.
(g) Captions. The captions contained in the Consolidation
Agreement are solely for convenience of reference and shall not be
deemed to affect the meaning or interpretation of any provision
contained herein.
IN WITNESS WHEREOF, Existing Bank and Other Bank have caused this
Consolidation Agreement to be executed in counterparts by their duly authorized
officers and their corporate seals to be hereunto affixed as of the date first
above written, and the directors constituting a majority of the Board of
Directors of each such Bank have hereunto subscribed their names.
RESOURCE BANK, N.A
[SEAL]
By: /s/ GEORGE F. JONES, JR.
--------------------------------
Chairman of the Board
ATTEST:
/s/ GARY F. LEMMONS
- -------------------------------
Cashier
13
A MAJORITY OF THE DIRECTORS OF
RESOURCE BANK, N.A.
/s/ VINCE A. ACKERSON /s/ C. KEITH CARGILL
- ------------------------------- ---------------------------------
Vince A. Ackerson C. Keith Cargill
/s/ DAVID L. CARGILL /s/ VALERIE M. FREEMAN
- ------------------------------- ---------------------------------
David L. Cargill Valerie M. Freeman
/s/ GEORGE F. JONES, JR. /s/ LARRY A. MAKEL
- ------------------------------- ---------------------------------
George F. Jones, Jr. Larry A. Makel
- -------------------------------
David S. Nafziger
TEXAS CAPITAL BANK
[SEAL]
By: /s/ GEORGE F. JONES, JR.
------------------------------
President
ATTEST:
/s/ DAVID L. CARGILL
- -------------------------------
Secretary
A MAJORITY OF THE DIRECTORS OF
TEXAS CAPITAL BANK
/s/ DAVID L. CARGILL /s/ C. KEITH CARGILL
- ------------------------------- ---------------------------------
/s/ VINCE ACKERSON /s/ GREGORY B. HULTGREN
- ------------------------------- ---------------------------------
- ------------------------------
The Corporation hereby joins in the foregoing Consolidation Agreement,
and undertakes that it will be bound thereby and will do and perform all acts
and things therein referred to or provided to be done by it.
IN WITNESS WHEREOF, Corporation has caused this undertaking to be made
in counterparts by its duly authorized officers and its corporate seal to be
hereunto affixed as of the date first above written.
TEXAS CAPITAL BANCSHARES, INC.
[SEAL] By: /s/ JOSEPH M. GRANT
--------------------------------
President
ATTEST:
/s/ JOSEPH M. GRANT
- ------------------------------
Secretary