EXHIBIT 3.2
DECLARATION OF TRUST
This DECLARATION OF TRUST is made this 12th day of November, 2002
(this "Declaration of Trust"), by and among (i) Texas Capital Bancshares, Inc.,
a Texas corporation (the "Sponsor"), (ii) State Street Bank and Trust Company of
Connecticut, National Association, a national banking association, as trustee
(the "Trustee"), and (iii) Gregory B. Hultgren, an individual, as administrative
trustee (the "Administrative Trustee"). The Sponsor, the Trustee and the
Administrative Trustee hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Texas
Capital Bancshares Statutory Trust I," in which name the Trustee, the
Administrative Trustee or the Sponsor, to the extent provided herein, may engage
in the transactions contemplated hereby, make and execute contracts, and sue and
be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trustee the sum of $10.00. The Trustee hereby acknowledges receipt of such
amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustee hereby declares that it will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitutes a statutory trust under Chapter 615 of Title 34 of
the Connecticut General Statutes, Section 500, et seq. (the "Statutory Trust
Act"), and that this document constitutes the governing instrument of the Trust.
The Trustee is hereby authorized and directed to execute and file a certificate
of trust (the "Certificate of Trust") with the Connecticut Secretary of the
State in accordance with the provisions of the Statutory Trust Act.
3. The Sponsor, the Trustee and the Administrative Trustees will
enter into an amended and restated Declaration of Trust, satisfactory to each
such party, to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, other than the filing of the Certificate of Trust
in accordance with Section 2 herein and as further contemplated in Section 4
herein, neither the Trustee nor the Administrative Trustees shall have any duty
or liability with respect to the administration of the trust estate, the
investment of the Trust's property or the payment of dividends or other
distributions of income or principal to the Trust's beneficiaries, and no
implied obligations shall be inferred from this Declaration of Trust on the part
of the Trustee or the Administrative Trustees.
(i) The Trustee and the Administrative Trustee accept the
trusts hereby created and agree to perform their duties hereunder with respect
to the same but only upon the terms of this Declaration of Trust. Neither the
Trustee nor the Administrative Trustee shall be personally liable under any
circumstances, except for their own willful misconduct or gross negligence. In
particular, but not by way of limitation:
(A) No provision of this Declaration of Trust shall
require the Trustee or the Administrative Trustees to expend or risk their
personal funds or otherwise incur any financial liability in the performance of
their rights or duties hereunder, if the Trustee or the Administrative Trustee
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured or
provided to it;
(B) Under no circumstance shall the Trustee or the
Administrative Trustees be personally liable for any representation, warranty,
covenant or indebtedness of the Trust;
(C) Neither the Trustee nor the Administrative
Trustees shall have liability for their action or inaction taken in good faith;
(D) All funds deposited with the Trustee hereunder
may be held in a non-interest bearing trust account and the Trustee shall not be
liable for any interest thereon; and
(E) To the extent that, at law or in equity, the
Trustee or the Administrative Trustees have duties and liabilities relating
thereto to the Trust, such duties and liabilities are replaced by the terms of
this Declaration of Trust.
(ii) Notwithstanding anything contained herein to the
contrary, the Trustee shall not be required to take any action in any
jurisdiction other than the State of Connecticut if the taking of such action
will (i) require the consent or approval or authorization or order of or the
giving of notice to, or the registration with or the taking of any other action
in respect of, any state or other governmental authority or agency of any
jurisdiction other than, in the case of the Trustee, the State of Connecticut,
(ii) result in any fee, tax or other governmental charge under the laws of any
jurisdiction or any political subdivision thereof in existence becoming payable
by State Street Bank and Trust Company of Connecticut, National Association, or
(iii) subject State Street Bank and Trust Company of Connecticut, National
Association to personal jurisdiction in any jurisdiction other than the State of
Connecticut, as the case may be, for causes of action arising from acts
unrelated to the consummation of the transactions by the Trustee, as the case
may be, contemplated hereby.
(iii) Except as expressly provided in this Section 3, in
accepting and performing the trusts hereby created, the Trustee acts solely as
Trustee hereunder and not in its individual capacity, the Administrative Trustee
acts solely as Administrative Trustee hereunder and not in his individual
capacity and all persons having any claim against the Trustee or any
Administrative Trustee by reason of the transactions contemplated by this
Declaration of Trust shall look only to the Trust's property for payment or
satisfaction thereof.
(iv) The Trustee may resign without cause at any time so long
as Trustee provides the Sponsor and the Administrative Trustee at least thirty
days' prior written notice of such resignation. If no successor has been
appointed within such thirty day period, the Trustee may, at the expense of the
Trust, petition a court of competent jurisdiction to appoint a successor
trustee.
4. This Declaration of Trust may be executed in one or more
counterparts.
5. The number of Administrative Trustees initially shall be one,
and thereafter the number of Administrative Trustees shall be such number as
shall be fixed from time to time by a written instrument signed by the Sponsor
which may increase or decrease the number of Administrative Trustees. Subject to
the foregoing, the Sponsor is entitled to appoint or remove without cause any
Administrative Trustee or the Trustee at any time. The Trustee or any
Administrative Trustee may resign upon 30 days' prior notice to the Sponsor.
6. This Declaration of Trust shall be governed by, and construed
in accordance with, the laws of the State of Connecticut (without regard to
conflict of laws principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration
of Trust to be duly executed as of the day and year first above written.
TEXAS CAPITAL BANCSHARES, INC., as Sponsor
By: /s/ RALEIGH HORTENSTINE III
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Name: Raleigh Hortenstine III
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Title: President
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STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Trustee
By: /s/ EARL W. DENNISON, JR.
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Print Name: Earl W. Dennison, Jr.
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Title: Vice President
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TEXAS CAPITAL BANCSHARES
STATUTORY TRUST I
By: /s/ GREGORY B. HULTGREN
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Name: Gregory B. Hultgren
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as Administrative Trustee