Exhibit 10.1
SELLING SHAREHOLDER AGREEMENT
This Selling Shareholder Agreement (the "Agreement"), dated as of May
13, 2005, is by and among the shareholders identified on Schedule I ("Selling
Shareholders") including Betty B. Kerns, an Oklahoma resident ("BBK"), and
Southwest Bancorp, Inc., an Oklahoma corporation (the "Company").
RECITALS
A. The Selling Shareholders desire to sell shares described on Schedule
I (the "Subject Shares"), and the Company desires to purchase such shares as
soon as is practicable.
B. BBK and Company desire that all of BBK's outstanding options granted
under the Company's stock option plans (the "BBK Options") be cancelled.
SELLING AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing premises, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties to the Agreement agree as follows:
1. Actions to Effect the Sales. The Company, BBK, and each of the
Selling Shareholders agree to proceed in good faith to effect a sale of the
Subject Shares as provided in this Agreement.
2. Terms
(a) The Subject Shares shall be the shares specified on
Schedule I.
(b) The price per share for each subject share shall be $18.00.
(c) The total price for all shares shall be $12,416,328.
(d) The consideration for the cancellation of all options equals
$18.00 per share less the exercise price per share for
options that are exercisable as of May 13, 2005, and totals
$60,654.01.
(e) The total price for all shares and consideration for the
cancellation of all BBK Options is $12,476.982.01 (the
"Total Price").
3. Closing and Payment.
(a) Payment of the Total Price and delivery of certificates
for the Subject Shares shall be made at the offices of the Company at
4:00 p.m., Stillwater, Oklahoma time, on Monday May 16, 2005, or the
first business day thereafter when the conditions to closing set forth
below are satisfied (the "Closing Date"), provided that the shares held
by the Berry Charitable Remainder Trust may be sold at a separate,
later closing if necessary, to be held on the first business day that
such conditions are satisfied as to such shares. Such total payment
shall be made to an account designated by the Selling Shareholders, as
appropriate, by wire transfer or certified or bank cashier's check, in
same day funds, in the amount of the Purchase Price therefor, against
delivery by or on behalf of the Selling Shareholders to the Company.
(b) The purchase of the Subject Shares is contingent upon:
(i) Delivery of certificates for shares with
properly executed stock powers;
(ii) The approval of such transaction by the Board of
Directors of the Company.
(c) All BBK options shall be deemed cancelled, null and
void upon payment of the consideration therefor.
4. Expenses. Each party will pay the fees and expenses of their legal
counsel, accountants, and advisers.
5. Termination. This Agreement may be terminated as provided below:
(a) By mutual consent of the Company, BBK, and the Selling
Shareholders, evidenced by their written agreement;
(b) By the Company or the Selling Shareholders if the
Purchase is not effected on or before May 21, 2005.
6. Lockup Period.
(a) It is the intention that the Selling Shareholders will
sell under this Agreement, all of the shares that they own of record or
beneficially. However, if any Selling Shareholder inadvertently or
otherwise does not sell all such shares of Common Stock hereunder or
acquires shares of Common Stock after the date of this Agreement, it
shall be subject to the following Lockup provisions.
(i) During the Lockup Period, as defined below, none
of the Selling Shareholders shall, directly or
indirectly, offer for sale, sell or agree to
sell or otherwise dispose of any shares of
Common Stock, or any securities convertible
into, exercisable or exchangeable for, or that
are the economic or voting equivalent of, any
such shares of Common Stock, or announce the
offering of, or register with the Securities and
Exchange Commission any shares of Common Stock
or any such other securities without the prior
written consent of the Company.
(ii) Any purported transfer of any Subject Shares in
violation of the Agreement (an "Unauthorized
Transfer") will be null and void. The Company
will not be required to register, recognize or
give effect to any Unauthorized Transfer and the
purported transferee of any Common Stock or
other securities described in Section 7(a)
hereof or any interest therein pursuant to an
Unauthorized Transfer will not acquire any
rights in any such Subject Shares during the
term of this Agreement.
(iii) The Lockup Period is the period beginning the
date of this Agreement and ending the earlier of
(i) the date which is 180 days after the date of
this Agreement or (ii) the termination of this
Agreement In the event that this Agreement is
signed by some, but not all, of the
Shareholders, this Agreement shall be effective
as to such signing Shareholders.
(b) If requested by the Company, each Selling Shareholder
and BBK also shall promptly enter into and be subject to a lockup
agreement with the underwriters for the Offering in the form entered by
officers and directors of the Company.
7. Representations. Each Selling Shareholder hereby represents to and
agrees with the Company that:
(a) The Subject Shares listed on Schedule I comprise all of
the shares owned of record or beneficially by the Selling Shareholder.
(b) Such Selling Shareholder has full legal right, power,
and authority to execute this Agreement, which is a valid and legally
binding agreement enforceable against such Selling Shareholder in
accordance with its terms except as the enforcement thereof may be
limited by general principles of equity and by bankruptcy or other laws
relating to or affecting creditors' rights generally and except insofar
as indemnification and contribution provisions may be limited by
applicable law or equitable principles.
(c) Such Selling Shareholder has, and on the Closing Date
will have, good and marketable title to the Subject Shares to be sold
by such Selling Shareholder and full right, power and authority to
sell, assign, transfer and deliver such Shares pursuant to this
Agreement, free and clear of all voting trust arrangements, security
interests, liens, mortgages, pledges, encumbrances, taxes,
restrictions, preemptive rights, claims, equities and other defects;
and upon delivery of and payment for such shares, good and marketable
title thereto, free and clear of all voting trust arrangements,
security interests, liens, mortgages, pledges, encumbrances, taxes,
restrictions, claims, equities and defects, will pass to the Company,
provided that certain tax liens or interests may exist on such shares.
Such Selling Shareholder represents and warrants that it shall maintain
sufficient proceeds of this sale to satisfy any and all such liens or
interests, and indemnifies the Company with respect to any loss,
damage, liability, or expense, including reasonable legal fees and
expenses, with respect to such liens or interests.
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(d) Neither the execution, delivery or performance by such
Selling Shareholder of this Agreement, nor the consummation of the
transactions contemplated hereby or thereby, (i) will require the
consent, approval, authorization, registration or qualification of or
with any governmental authority, except such as have been obtained, or
(ii) will conflict with or result in a breach or violation by such
Selling Shareholder of any of the terms or provisions of, or constitute
a default by such Selling Shareholder under, any voting trust
agreement, shareholders agreement, mortgage, deed of trust, trust
(constructive or other), security agreement, loan agreement, lease,
franchise, license, indenture, permit or other agreement or instrument
to which such Selling Shareholder is a party or by which such Selling
Shareholder or any of its properties is bound or any statute, or any
judgment, decree, order, rule or regulation of any court or
governmental agency or body applicable to such Selling Shareholder.
(e) Such Selling Shareholder has not, since the filing of
the date of the first public announcement of the Offering, (i) sold,
bid for, purchased, attempted to induce any person to purchase, or paid
anyone any consideration for soliciting purchases of, Common Stock (or
securities convertible into or exchangeable for Common Stock) or (ii)
paid or agreed to pay any person any consideration for soliciting
another to purchase any securities of the Company.
(f) The representations and warranties made by a Selling
Shareholder in this Section (with respect to such Selling Shareholder)
shall survive the consummation of the transactions contemplated by this
Agreement.
8. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered by hand,
mailed by registered or certified mail, return receipt requested, or transmitted
by any standard form of telecommunication and confirmed. Notices to a Selling
Shareholder shall be sent to Betty Berry Kerns, 4111 Dear Crossing Drive,
Stillwater, Oklahoma 74074 (with a copy to Ellis & Drummond, LLC , 711 South
Husband, Stillwater, Oklahoma 74074, Attention: Hal Wm. Ellis, Esq.; notices to
the Company shall be sent to 608 South Main Street, Stillwater, Oklahoma 74074,
Attention: Rick J. Green (with a copies to James I. Lundy III, Esq., 1700
Pennsylvania Avenue, NW, Suite 400, Washington, D.C. 20006 and Kennedy & Baris,
L.L.P., 4701 Sangamore Road, Bethesda, Maryland 20816, Attention: Noel Gruber,
Esq.).
Notices or communications so given shall be deemed to have been given
on the date so delivered or mailed. Any address set forth above may be changed
by notice pursuant to this Section 8.
Board Matters.
(a) BBK hereby resigns from the Boards of Directors of the
Company and all of its subsidiaries, and represents that such
resignation was not due to any disagreement with the Company or any
matter relating to the Company's operations, policies, or practices.
(b) BBK hereby waives notice of the special meetings of the
Boards of Directors of the Company and Stillwater National Bank and
Trust Company held on May 13, 2005.
9. Miscellaneous.
(a) This Agreement is for the express benefit of the
Company, and the Selling Shareholders. The obligations and
authorization of the Selling Shareholders hereunder are irrevocable and
shall not be terminated by any act of a Selling Shareholder or by
operation of law, whether by the death, disability, incapacity or
liquidation of a Selling Shareholder or by the occurrence of any other
event or events (including without limitation the termination of any
trust or estate for which a Selling Shareholder is acting as a
fiduciary or fiduciaries), and if after the execution hereof a Selling
Shareholder shall die or become disabled or incapacitated or is
liquidated, or if any other event or events shall occur before the
delivery of such Selling Shareholder's Subject Shares hereunder to the
Company, such Subject Shares shall be delivered to the Company in
accordance with the terms and conditions of this Agreement, as if such
event had not occurred, regardless of whether or not the Company shall
have received notice of such event.
(b) The Company shall be entitled to all legal and equitable
remedies in enforcing this Agreement, including without limitation, an
injunction against any sale in contravention of this Agreement.
(c) Any provision of this Agreement which may be determined
by a final judgment to be prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. It is expressly
understood, however, that the parties hereto intend each and every
provision of this Agreement to be valid and enforceable and, to the
extent permitted by law, thereby waive all rights to object to any
provision of this Agreement.
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(d) This Agreement shall be binding upon and inure solely to
the benefit of the parties hereto and their respective representatives,
heirs, successors and assigns. Except as expressly permitted hereunder,
no party may assign any of its rights or obligations under this
Agreement without the written consent of the other parties. This
Agreement shall be construed in accordance with and governed by the
laws of the State of Oklahoma.
(e) This Agreement may be modified or terminated only by a
writing signed by all of the parties hereto, and no waiver hereunder
shall be effective unless in a writing signed by the party or parties
to be charged.
(f) This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have been duly executed this
Custody Agreement as of the day and year first above written.
The Selling Shareholder listed on Schedule I:
Joyce C. Berry Revocable Trust
By: /s/ Betty Berry Kerns
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Name: Betty Berry Kerns
By: /s/Mary Randle Parrish
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Name: Mary Randle Parrish
Joe N. Berry Trust
By: /s/Betty Berry Kerns
----------------------------------------
Name: Betty Berry Kerns
By: /s/Mary Randle Parrish
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Name: Mary Randle Parrish
BKP, L.L.C.
By: /s/Betty Berry Kerns
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Name: Betty Berry Kerns
By: /s/Mary Randle Parrish
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Name: Mary Randle Parrish
Berry Charitable Remainder Trust
By: /s/Betty Berry Kerns
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Name: Betty Berry Kerns
Betty B. Kerns
/s/Betty Berry Kerns
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Southwest Bancorp, Inc.
By: /s/ Rick J. Green
----------------------------------------
Rick J. Green
Chief Executive Officer
Witness: /s/ Hal Ellis 5/13/05
SCHEDULE I.
Subject
Shares Certificate Number(s)
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Joyce C. Berry Revocable Trust 562,702
Joe M. Berry Trust (1)
BKP, L.L.C 100,000
Berry Charitable Remainder Trust 17,840
Betty Berry Kerns: Individually 9,254
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Total 689,796
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(1) Included in Joyce C. Berry Revocable Trust