<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 13, 1997
Registration No. 333-
================================================================================
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_________________
SOUTHWEST BANCORPORATION OF TEXAS, INC.
(Exact name of registrant as specified in its charter)
TEXAS 76-0519693
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4400 POST OAK PARKWAY
Houston, Texas 77027
(Address of principal executive offices, including zip code)
_________________
PINEMONT BANK INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
(Full title of the plan)
DAVID C. FARRIES
EXECUTIVE VICE PRESIDENT
SOUTHWEST BANCORPORATION OF TEXAS, INC.
4400 POST OAK PARKWAY
HOUSTON, TEXAS 77027
(Name and address of agent for service)
(713) 235-8800
(Telephone number, including area code, of agent for service)
Copies to:
Michael P. Finch
Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin Street
Houston, Texas 77002-6760
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
TITLE OF AMOUNT PROPOSED PROPOSED AMOUNT OF
SECURITIES TO BE TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE REGISTRATION
REGISTERED REGISTERED PRICE PER SHARE (1) OFFERING PRICE (1)(2) FEE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $7.76 (1)
$1.00 par value 190,625 $9.71 (2) $1,724,219 $523
==============================================================================================================================
</TABLE>
(1) 65,000 shares under the Plan are valued at an exercise price of $7.76 under
outstanding options.
(2) 125,625 shares under the Plan are valued at an exercise price of $9.71
under outstanding options.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed with the Securities and
Exchange Commission (the "Commission") by Southwest Bancorporation of Texas,
Inc., a Texas corporation (the "Company"), are incorporated herein by reference
and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1996.
(b) The Company's Quarterly Reports on Form 10-Q for the three month
period ended March 31, 1997 and the six month period ended June 30,
1997.
(c) Description of the Common Stock contained in the Company's Prospectus
dated January 27, 1997, included in the Company's Registration
Statement on Form S-1 (Registration Statement No. 333-16509).
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the effective date of this Registration Statement, prior to
the filing of a post-effective amendment to this Registration Statement
indicating that all securities offered hereby have been sold or deregistering
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in any document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed to
constitute a part of this Registration Statement, except as so modified or
superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles of Incorporation of the Company provide that, subject to
certain limitations, its officers and directors (and certain other individuals
acting on behalf of the Company) will be indemnified by the Company against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by such persons, to the fullest extent permitted under the Texas
Business Corporation Act (the "TBCA"). Generally, Article 2.02-1 of the TBCA
permits a corporation to indemnify a person who was, is, or is threatened to be
made a named defendant or respondent in a proceeding because the person was or
is a director or officer if it is determined that such person (i) conducted
himself in good faith, (ii) reasonably believed (a) in the case of conduct in
his official capacity as a director or officer of the corporation, that his
conduct was in the corporation's best interest, or (b) in other cases, that his
conduct was at least not opposed to the corporation's best interests, and (iii)
in the case of any criminal proceeding, had no reasonable cause to believe that
his conduct was unlawful. In addition, the TBCA requires a corporation to
indemnify a director or officer for any action that such director or officer is
wholly successful in defending on the merits.
The Company's Articles of Incorporation provide that a director of the
Company will not be liable to the corporation for monetary damages for an act or
omission in the director's capacity as a director, except to the extent not
permitted by law. Texas law does not permit exculpation of liability in the
case of (i) a breach of the director's duty of loyalty to the corporation or the
shareholders, (ii) an act or omission not in good faith that involves
intentional
<PAGE>
misconduct or a knowing violation of the law, (iii) a transaction from which a
director received an improper benefit, whether or not the benefit resulted from
an action taken within the scope of the director's office, (iv) an action or
omission for which the liability of the director is expressly provided by
statute, or (v) an act related to an unlawful stock repurchase or dividend.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
*4.1 Articles of Incorporation of the Company (Exhibit 3.1).
*4.2 Bylaws of the Company, restated as of December 31, 1996
(Exhibit 3.2).
*4.3 Amendment dated December 18, 1996 to Articles of Incorporation
of the Company (Exhibit 3.3).
**4.4 Pinemont Bank Incentive and Nonqualified Stock Option Plan.
**4.5 Form of Stock Option Agreement under Pinemont Bank Incentive
and Nonqualified Stock Option Plan.
**5.1 Opinion of Vinson & Elkins L.L.P.
**23.1 Consent of Coopers & Lybrand L.L.P.
**23.2 Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).
**24.1 Powers of Attorney (included on signature page).
_____________________________
* Incorporated by reference to the Exhibit number shown in parentheses filed
with the Company's Form S-1 Registration Statement No. 333-16509.
** Filed with this Registration Statement.
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<PAGE>
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "1933 Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the 1933 Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 1933 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-8 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF HOUSTON, STATE OF TEXAS, ON THE 13TH DAY OF AUGUST,
1997.
SOUTHWEST BANCORPORATION OF TEXAS,
INC.
By:/s/ WALTER E. JOHNSON
----------------------
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Paul B. Murphy, Jr., David C. Farries and R. John
McWhorter, or any of them, his true and lawful attorney-in-fact and agent, with
full power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and ratifying and confirming all that said attorney-in-fact and gent
or his substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ WALTER E. JOHNSON Chairman of the Board and Chief Executive August 13, 1997
- ------------------------------------------ Officer (Principal Executive Officer)
Walter E. Johnson
/s/ DAVID C. FARRIES Executive Vice President, Treasurer and August 13, 1997
- ------------------------------------------ Secretary (Principal Financial Officer)
David C. Farries
/s/ R. JOHN McWHORTER Vice President and Controller August 13, 1997
- ------------------------------------------ (Principal Accounting Officer)
R. John McWhorter
/s/ JOHN W. JOHNSON Director August 13, 1997
- ------------------------------------------
John W. Johnson
/s/ PAUL B. MURPHY, JR. Director and President August 13, 1997
- ------------------------------------------
Paul B. Murphy, Jr.
Director
- ------------------------------------------
John B. Brock III
Director
- ------------------------------------------
Ernest H. Cockrell
Director
- ------------------------------------------
J. David Heaney
/s/ WILHELMINA R. MORIAN Director August 13, 1997
- ------------------------------------------
Wilhelmina R. Morian
/s/ ANDRES PALANDJOGLOU Director August 13, 1997
- ------------------------------------------
Andres Palandjoglou
Director
- ------------------------------------------
Michael T. Willis
</TABLE>
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<PAGE>
EXHIBIT 4.4
PINEMONT BANK
INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
(AS ASSUMED BY SOUTHWEST BANCORPORATION OF TEXAS, INC., EFFECTIVE
AUGUST 1, 1997)
1. Objectives. The Pinemont Bank Incentive and Nonqualified Stock Option
Plan (the "Plan") is designed to retain selected employees of Pinemont Bank and
reward them for making significant contributions to the success of the Bank.
These objectives are to be accomplished by making awards under the Plan and
thereby providing Participants with a proprietary interest in the growth and
performance of the Bank. It is intended that the stock options awarded pursuant
to this Plan shall constitute either incentive stock options within the meaning
of Section 422 of the Code or nonqualified stock options within the meaning of
Section 83 of the Code.
2. Definitions. As used herein, the terms set forth below shall have the
following respective meanings:
"Affiliate" means any Parent or Subsidiary of the Bank.
"Award" means the grant of an Incentive Option or a Nonqualified Option to
a Participant subject to any applicable terms, conditions and limitations as the
Committee may establish in order to fulfill the objectives of the Plan.
"Award Agreement" means a written agreement between the Bank and a
Participant that sets forth the terms, conditions and limitations applicable to
an Award.
"Bank" means Pinemont Bank, a Texas banking corporation, and any successor
thereto.
"Board" means the Board of Directors of the Bank.
"Capital Stock" means shares of Capital Stock, of $0.667 each, of the Bank.
"Cause" means the Participant has engaged in fraudulent activity regarding
the Bank or has been convicted of a felony involving the Bank and such activity
or felony has caused a materially adverse economic impact on the Bank.
"Change of Control" means (a) the Bank (or a Parent, if any, of the Bank)
is a party to an acquisition transaction (including a merger) with another
corporation and, immediately following the acquisition transaction, less than
50% of the combined voting power of the then outstanding securities of the other
corporation (or the successor entity, if a merger) is beneficially owned
directly or indirectly by persons who owned Capital Stock (or securities of the
Parent, if applicable) immediately prior to the acquisition transaction
("Acquisition Transaction") or (b) for any reason other than an Acquisition
Transaction, any "person," including a "group" as determined in accordance with
Section 13(d)(3) of the Exchange Act (i) becomes the beneficial owner, directly
or indirectly, of securities representing 50% or more of the combined voting
power of the Bank's then outstanding securities (or securities of the Parent, if
any, of the Bank) or (ii) becomes, during any consecutive 12-month period, the
beneficial owner, directly or indirectly, of securities representing 30% or more
<PAGE>
of the combined voting power of the Bank's then outstanding securities (or
securities of such Parent), excluding the securities held at the commencement of
the 12-month period.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Committee" means such committee of the Board as is designated by the Board
to administer the Plan. At all times after the date, if any, on which the Bank
first registers the Capital Stock under Section 12 of the Exchange Act, the
membership of the Committee shall comply with the requirements of Rule 16b-3.
"Disability" means a disability that entitles the Participant to benefits
under any long-term disability plan sponsored by the Bank or its Affiliates.
"Effective Date" means the date this Plan was approved by the shareholders
of the Bank (i.e., September 20, 1994).
"Employment" means employment with the Bank or any Affiliate, and shall not
be interrupted by a Participant's transfer of employment from the Bank or a
Parent or Subsidiary of the Bank, from a Parent or Subsidiary of the Bank to the
Bank, or between a Parent or Subsidiary of the Bank.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Fair Market Value" means, as of a particular date, (a) if the shares of
Capital Stock are listed on a national securities exchange, the mean between the
highest and lowest sales price per share of Capital Stock on the consolidated
transaction reporting system for the principal such national securities exchange
on that date, or, if there shall have been no such sale so reported on that
date, on the last preceding date on which such a sale was so reported, (b) if
the shares of Capital Stock are not so listed but are quoted on the NASDAQ
National Market, the mean between the highest and lowest sales price per share
of Capital Stock on the NASDAQ National Market on that date, or, if there shall
have been no such sale so reported on that date, on the last preceding date on
which such a sale was so reported, (c) if the Capital Stock is not so listed or
quoted, the mean between the closing bid and asked price on that date, or, if
there was no quotations available for such date, on the last preceding date on
which such quotations shall be available, as reported by NASDAQ, or, if not
reported by NASDAQ, by the National Quotation Bureau, Inc. or (d) if none of the
above is applicable, such amount as may be determined by the Board, in good
faith, to be the fair market value per share of Capital Stock. Any good faith
determination of the fair market value of Capital Stock for purposes of
determining (i) the exercise price per share under an Award as described in
Section 11 and (ii) the $100,000 limit on Awards as described in Section 6 shall
be made without regard to any restriction other than a restriction which, by its
terms, will never lapse.
"Grant Date" means the date an Award is made to a Participant hereunder.
"Hire Date" means the date that a Participant commenced the period of
Employment during which an Award is granted.
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<PAGE>
"Incentive Option" means an incentive stock option within the meaning of
Section 422 of the Code.
"Initial Awards" means all Awards granted in 1994.
"Nonqualified Option" means a nonqualified stock option within the meaning
of Section 83 of the Code.
"Parent" means any parent corporation of the Bank within the meaning of
Section 424(e) of the Code or any successor provision thereto.
"Participant" means an employee of the Bank or any of its Affiliates to
whom an Award has been made under this Plan.
"Plan" means the Pinemont Bank Incentive and Nonqualified Stock Option
Plan, as set forth herein and as hereafter amended.
"Rule 16b-3" means Rule 16b-3 promulgated under the Exchange Act, or any
successor rule.
"Subsidiary" means any subsidiary corporation of the Bank within the
meaning of Section 424(f) of the Code or any successor provision thereto.
3. Eligibility. Only key executives of the Bank and its Affiliates are
eligible for Awards under this Plan, as determined in the sole discretion of the
Committee. The Committee shall select the Participants in the Plan from time to
time by the grant of Awards under the Plan.
4. Capital Stock Available for Awards. There shall be available for
Awards granted during the term of this Plan an aggregate of 305,000 shares of
Capital Stock [190,625 shares of Common Stock, $1.00 par value, of Southwest
Bancorporation of Texas, Inc.], subject to adjustment as provided in Section 15.
Any shares subject to the Plan that may remain unsold and that are not subject
to Awards at the termination of the Plan, shall cease to be reserved for the
purpose of the Plan but, until termination of the Plan, the Bank shall at all
times reserve a sufficient number of shares to meet the requirements of the
Plan. Capital Stock related to Awards that are forfeited or terminated, expire
unexercised, are settled in cash in lieu of Capital Stock or in a manner such
that all or some of the shares covered by an Award are not issued to a
Participant, shall immediately become available for Awards hereunder. The
Committee may from time to time adopt and observe such procedures concerning the
counting of shares against the Plan maximum as it may deed appropriate under
Rule 16b-3.
The Board and the appropriate officers of the Bank shall from time to time
take whatever actions are necessary to file required documents with governmental
authorities and stock exchanges and transaction reporting systems to make shares
of Capital Stock available for issuance pursuant to Awards.
-3-
<PAGE>
5. Administration. This Plan shall be administered by the Committee,
which shall have full and exclusive power to interpret this Plan and to adopt
such rules, regulations and guidelines for carrying out this Plan as it may deem
necessary or proper, all of which powers shall be exercised in the best interest
of the Bank and in keeping with the objectives of this Plan. The Committee may
correct any defect or supply any omission or reconcile any inconsistency in this
Plan or in any Award in the manner and to the extent the Committee deems
necessary or desirable to carry it into effect. Any decision of the Committee
in the interpretation and administration of this Plan shall lie within its sole
and absolute discretion and shall be final, conclusive and binding on all
parties concerned. No member of the Committee shall be liable for anything done
or omitted to be done by him or her, by any member of the Committee or by any
officer of the Bank in connection with the performance of any duties under this
Plan, except for his or her own willful misconduct or as expressly provided by
statute.
A majority of the members of the Committee shall constitute a quorum for
the transaction of business. All action taken by the Committee at a meeting
shall be by the vote of a majority of those present at such meeting, but any
action may be taken by the Committee without a meeting, but any action may be
taken by the Committee without a meeting upon written consent signed by all of
the members of the Committee. No member of the Committee shall have any right
to vote or decide upon any matter relating solely to himself under the Plan or
to vote in any case in which his individual right to claim any benefit under the
Plan is particularly involved. In any case in which a Committee member is so
disqualified to act, the remaining members shall decide the matter in which he
is disqualified.
6. Awards. The granting of Awards under this Plan shall be entirely
discretionary and nothing in this Plan shall be deemed to give any employee of
the Bank or its Affiliates any right to participate in this Plan or to be
granted an Award. Each Award made hereunder shall be embodied in an Award
Agreement, which shall grant the Participant an Incentive Option to purchase
Capital Stock on such terms, conditions and limitations as shall determined by
the Committee in its sole discretion, consistent with the provisions of the
Plan, and shall be signed by the Participant and by the Chairman, Vice Chairman
or Executive Vice President or Senior Vice President of the Bank for and on
behalf of the Bank.
Notwithstanding anything herein to the contrary, no Participant may be
granted an Incentive Option if, upon the grant of the Incentive Option the
aggregate Fair Market Value (determined as of the date the Incentive Option is
granted) of the Capital Stock with respect to which all incentive stock options
(including Incentive Options hereunder) are exercisable for the first time by
the Participant during the calendar year (under all plans of the Bank and any
Affiliate) would exceed $100,000; provided such limitation amount shall increase
to the maximum amount permitted by Section 422(d) of the Code if the limitation
pursuant to such section is increased.
No Award can be granted under the Plan on or after the tenth anniversary of
the Effective Date of the Plan.
7. [DELETED].
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<PAGE>
8. Termination of Awards. Each Award under the Plan shall terminate and
be of no force or effect with respect to any shares not previously purchased
upon the first to occur of (i) the tenth anniversary of the Grant Date, (ii)
with respect to the vested portion of an Award, the expiration of 90 days
following the Participant's termination of Employment for reasons other than
death or Disability or termination for Cause, (iii) with respect to the unvested
portion of an Award, the date of the Participant's termination of Employment for
reasons other than death or Disability, (iv) the first anniversary of the
Participant's termination of employment by reason of death or Disability or (v)
with respect to the vested portion of the Award, the date of the Participant's
termination of employment for Cause.
9. Vesting of Awards.
(a) Each Award granted pursuant to this Plan shall become vested and
exercisable in accordance with the following schedule ("Vesting Schedule") with
respect to a percentage of the shares of Capital Stock subject to the Award on
(i) each of the first through fifth anniversaries of a Participant's Hire Date
for Initial Awards and (ii) each of the first through fifth anniversaries of the
date specified by the Committee for all other Options (which may be the
Participant's Hire Date, the Grant Date, or such other date as the Committee
determines appropriate); provided, that the Committee may modify the Vesting
Schedule to take into account the limitation in Section 6 and other special
situations. The Participant must be in continuous Employment from the Grant
Date through the date of the applicable anniversary in order for the Award to
vest and become exercisable with respect to additional shares of Capital Stock
on such anniversary.
Anniversary Percentage to Vest
----------- -------------------
First 10%
Second 15%
Third 20%
Fourth 25%
Fifth 30%
The vesting and exercisability of an Award with respect to shares of Capital
Stock shall be cumulative so that when an Award has become vested and
exercisable with respect to the number of shares thereunder, such shares or any
part thereof may be purchased at any time thereafter until the expiration or
termination of the Award. In the event of termination of Employment for any
reason other than death or Disability, an Award may be exercised only with
respect to the number of shares as to which the Award was vested and exercisable
at the time of such termination.
(b) In the event of a Change of Control or the Participant's death or
Disability occurring after the Grant Date of an Award and while the Participant
is in Employment, the Award shall fully vest and become fully exercisable,
irrespective of the limitations set forth in subparagraph (a) above, effective
as of the date of the Change of Control (or, with respect to an Acquisition
Transaction, immediately prior to the Change of Control) or the Participant's
death or Disability, provided that the Participant has been in continuous
Employment since the Grant Date.
-5-
<PAGE>
10. Parachute Payment Limitation. Notwithstanding the provisions of
Section 9(b) or Section 15 of this Plan, the aggregate present value of all
parachute payments payable to or for the benefit of a Participant in the Plan,
whether payable pursuant to this Plan or otherwise, shall be limited to three
times the Participant's base amount less one dollar and, to the extent
necessary, the vesting and exercisability of an unmatured Award shall be reduced
by the Committee in order that this limitation not be exceeded. For purposes of
this Section 10, the terms parachute payment, base amount and present value
shall have the meanings assigned thereto under Section 280G of the Code. It is
the intention of this Section 10 to avoid excise taxes on the Participant under
Section 4999 of the Code or the disallowance of a deduction to the Bank pursuant
to Section 280G of the Code.
11. Stock Option Exercise. The purchase price of each share of Capital
stock subject to an Award shall be (i) 100% of the Fair Market Value of such
share on the Grant Date of an Incentive Option and (ii) the price set by the
Committee as of the Grant Date of a Nonqualified Option. The price at which
shares of Capital Stock may be purchased under an Incentive Option or a
Nonqualified Option shall be paid in full at the time of exercise in cash or
Capital Stock.
12. Tax Withholding. The Committee may make such provisions as it may
deem appropriate for the withholding of any taxes which it determines is
required in connection with any Awards granted under the Plan.
13. Assignability. Unless otherwise determined by the Committee and
provided in the Award Agreement, no Award or any other benefit under this Plan
shall be assignable or otherwise transferable except by will or the laws of
descent and distribution and an Award shall be exercisable during the
Participant's lifetime only by the Participant. The Committee may prescribe and
include in applicable Award Agreements other restrictions on transfer. Any
attempted assignment of an Award or any other benefit under this Plan in
violation of this Section 13 shall be null and void.
14. Plan have been registered under the Securities Act of 1933, as
amended, or the Bank has determined that such registration is unnecessary, each
person exercising an Award under the Plan may be required by the Bank to give a
representation in writing that he is acquiring such shares for his own account
for investment and not with a view to, or for sale in connection with, the
distribution of any part thereof.
15. Adjustments.
(a) The existence of outstanding Awards shall not affect in any
manner the right or power of the Bank or its shareholders to make or authorize
any or all adjustments, recapitalizations, reorganizations or other changes in
the capital stock of the Bank or its business or any merger or consolidation of
the Bank, or any issue of bonds, debentures, preferred or prior preference stock
(whether or not such issue is prior to, on a parity with or junior to the
Capital Stock) or the dissolution or liquidation of the Bank, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding of any kind, whether or not of a character similar to that of
the acts or proceedings enumerated above.
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<PAGE>
(b) In the event of any subdivision or consolidation of outstanding
shares of Capital Stock or declaration of a dividend payable in shares of
Capital Stock or capital reorganization or reclassification or other transaction
involving an increase or reduction in the number of outstanding shares of
Capital Stock, the Committee may adjust proportionately (a) the number of shares
of Capital Stock reserved under this Plan and covered by outstanding Awards; (b)
the exercise or other price in respect of such Awards; and (c) the appropriate
Fair Market Value and other price determinations for such Awards. In the event
of any consolidation or merger of the Bank with another corporation or entity or
the adoption by the Bank of a plan of exchange affecting the Capital Stock or
any distribution to holders of Capital Stock of securities or property (other
than normal cash dividends), the Committee shall make such adjustments or other
provisions as it may deem equitable, including adjustments to avoid fractional
shares, to give proper effect to such event. Except as otherwise provided in
Section 15(c), in the event of a corporate merger, consolidation, acquisition of
property or stock, separation, reorganization or liquidation, the Committee
shall be authorized, in its discretion, (i) to issue or assume Awards,
regardless of whether in a transaction to which Section 424(a) of the Code
applies, by means of substitution of new Awards for previously issued and
outstanding Awards or an assumption of previously issued and outstanding Awards,
(ii) to make provision, prior to the transaction, for the acceleration of the
vesting and exercisability of, or lapse of restrictions with respect to, Awards
and the termination of Awards that remain unexercised at the time of such
transaction or (iii) to provide for the acceleration of the vesting and
exercisability of the Awards and the cancellation thereof in exchange for such
payment as shall be mutually agreeable to the Participant and the Committee;
provided, however, that the foregoing shall not give the Committee any authority
to affect the acceleration of vesting and exercisability of an Award under
Section 9(b).
(c) In the event a holding company is formed to hold the Capital Stock,
a new Award Agreement shall be substituted for each Award Agreement then
outstanding under the Plan. Each new Award Agreement shall provide for the
option to buy a number of shares of stock of the holding company representing
the number and type of shares of holding company stock that would have been
offered to the Participant in exchange for the shares of Capital Stock then
covered by the original Award Agreement had those shares previously been
purchased by the Participant, provided that the new Award shall be adjusted in a
manner that complies with Section 424 of the Code and the Treasury Regulations
thereunder.
16. Restrictions. No Capital Stock or other form of payment shall be
issued with respect to any Award unless the Bank shall be satisfied based on the
advice of its counsel that such issuance will be in compliance with applicable
federal and state securities laws. It is the intent of the Bank (a) that this
Plan comply with Rule 16b-3 at all times after the date, if any, on which the
Bank first registers the Capital Stock under Section 12 of the Exchange Act,
with respect to persons subject to Section 16 of the Exchange Act unless
otherwise provided herein or in an Award Agreement, (b) that any ambiguities or
inconsistencies in the construction of this plan be interpreted to give effect
to such intention and (c) that, if any provision of this Plan is thereafter
found not to be in compliance with Rule 16b-3, such provision shall be null and
void to the extent required to permit this Plan to comply with Rule 16b-3.
Certificates evidencing shares of Capital Stock delivered under this Plan may be
subject to such stop transfer orders and other restrictions as the Committee may
deem advisable under the rules, regulations and other requirements of the
Securities and Exchange Commission, any securities or transaction reporting
system upon which the Capital Stock is then listed and any
-7-
<PAGE>
applicable federal and state securities law. The committee may cause a legend or
legends to be placed upon any such certificates to make appropriate reference to
such restrictions.
17. Unfunded Plan. Insofar as it provides for Awards of Capital Stock or
rights thereto, this Plan shall be unfunded. Although bookkeeping accounts may
be established with respect to Participants who are entitled to Capital Stock or
rights thereto under this Plan, any such accounts shall be used merely as a
bookkeeping convenience. The Bank shall not be required to segregate any assets
that may at any time be represented by Capital Stock or rights thereto, nor
shall this Plan be construed as providing for such segregation, nor shall the
Bank, the Board or the Committee be deemed to be a trustee of any Capital Stock
or rights thereto to be granted under this Plan. Any liability or obligation of
the Bank to any Participant with respect to a grant of Capital Stock or rights
thereto under this Plan shall be based solely upon any contractual obligations
that may be created by this Plan and any Award Agreement, and no such liability
or obligation of the Bank shall be deemed to be secured by any pledge or other
encumbrance on any property of the Bank. None of the Bank, the Board or the
Committee shall be required to give any security or bond for the performance of
any obligation that may be created by this Plan.
18. Amendment, Modification, Suspension or Termination. The Board may
amend, modify, suspend or terminate this Plan for the purpose of meeting or
addressing any changes in legal requirements or for any other purpose permitted
by law except that (a) no amendment or alteration that would impair the rights
of any Participant under any Award previously granted to such Participant shall
be made without such Participant's consent and (b) no amendment or alteration
shall be effective prior to approval by the Bank's shareholders to the extent
such approval is then required pursuant to Rule 16b-3 in order to preserve the
applicability of any exemption provided by such rule to any Award then
outstanding (unless the holder of such Award consents) or to the extent
shareholder approval is otherwise required by applicable legal requirements.
Notwithstanding the foregoing, no amendment or modification shall be made,
without the approval of the shareholders of the Bank, which would:
(i) Increase the total number of shares reserved for the purposes of
the Plan under Section 4 or decrease the Award exercise price provided
for in Section 11, except as provided in Section 15;
(ii) Extend the duration of an Award provided for in Section 8;
(iii) Materially increase the benefits accruing to participants under
the Plan; or
(iv) Materially modify the requirements as to eligibility for
participation in the Plan.
19. No Employment Guaranteed. No provision of this Plan or any Award
Agreement hereunder shall confer any right upon any employee to continued
employment with the Bank.
20. Rights as Shareholder. A Participant shall have no rights as a
holder of Capital Stock of the Bank with respect to Awards granted hereunder,
unless and until certificates for shares of Capital Stock are issued to such
Participant.
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<PAGE>
21. Governing Law. This Plan and all determinations made and actions
taken pursuant hereto, to the extent not otherwise governed by mandatory
provisions of the Code or the securities laws of the United States, shall be
governed by and construed in accordance with the laws of the State of Texas.
22. Effective Date of Plan. This Plan as amended and restated shall be
effective as of the date it is approved by the holders of two-thirds of the
Capital Stock of the Bank at a meeting of the Bank's shareholders.
-9-
<PAGE>
EXHIBIT 4.5
NEITHER THIS OPTION NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND NEITHER THIS OPTION NOR THE
SHARES OF CAPITAL STOCK ISSUABLE UPON EXERCISE OF THIS OPTION MAY BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT AS EXPRESSLY PERMITTED UNDER THE
TERMS OF THIS OPTION.
THIS OPTION IS FURTHER SUBJECT TO THE TERMS AND CONDITIONS OF THE PINEMONT BANK
INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN PURSUANT TO WHICH THIS OPTION IS
GRANTED.
Effective ___________, 1995 Void after ___________, 2005
FORM OF AWARD AGREEMENT TO PURCHASE SHARES
OF CAPITAL STOCK
OF
PINEMONT BANK
(A Texas Banking Corporation)
THIS CERTIFIES THAT, for value received, _____________ or his permitted
registered assigns ("Holder") is entitled, subject to the terms and conditions
set forth herein, to purchase from Pinemont Bank, a Texas banking corporation
("Bank"), an aggregate of _____________________ (______) fully paid and
nonassessable shares of the Capital Stock, $0.66 2/3 par value, of the Bank
(such shares of the Bank's capital stock being herein called the "Option Shares"
and all shares of Bank's capital stock being herein called the "Capital Stock"),
upon payment of the purchase price of ______________________ ($____) per Option
Share (the "Purchase Price"), at any time after the date hereof and on or before
5:00 P.M. (Houston time) ___________, 2005 subject to the provisions of this
Award Agreement ("Option"). The number and character of the Option Shares
covered hereby and the Purchase Price thereof are subject to restrictions and
adjustments as provided herein. This Option is granted to the Holder pursuant
to the Pinemont Bank Incentive and Nonqualified Stock Option Plan ("Plan").
This Option is subject to all the terms of the Plan and this Option.
1. EXERCISE OF OPTION. Upon delivery of written notice to the Bank
setting forth the number of Option Shares with respect to which this Option is
being exercised at the principal office of the Bank located at 12130 Hempstead
Highway, Houston, Texas 77092, or at such other office that the Bank may
designate by written notice to the Holder, accompanied by payment, by cash or
certified check, in form and substance satisfactory to the Bank, or by shares of
Capital Stock valued at the Fair Market Value of the Capital Stock on the date
of exercise as determined in accordance with the Plan, to the Bank of the
Purchase Price for the Option Shares to be purchased. The Bank shall
immediately issue one or more certificates evidencing the number of Option
Shares being purchased. Notice shall be delivered in person or by registered
mail, return receipt requested, and shall be deemed received on actual delivery
or within three days after the date such notice is deposited in the mail. This
Option may be exercised either in whole or in part and, if in part, from time to
time in part; provided, that this Option may not be exercised for less than 500
Option Shares (or such lesser number of Option Shares as is covered by this
Option). Further, that this Option may
<PAGE>
only be exercised by the Holder for the purchase of whole Option Shares and not
fractions thereof unless the Bank otherwise agrees.
The Bank agrees that the Option Shares so purchased shall be and are deemed
to be issued to the Holder hereof as the record owner of such Option Shares as
of the close of business on the date on which this Option shall have been
exercised and payment made for such Option Shares as provided above.
2. RESERVATION OF STOCK. The Bank covenants and agrees that (a) it has or
will at all appropriate times, so long as this Option is outstanding, reserve
and keep available out of its treasury Capital Stock or authorized but unissued
Capital Stock, solely for the purpose of issuing Option Shares, from time to
time, upon the exercise of this Option, an adequate number of shares of Capital
Stock for delivery at the times and in the manner provided herein upon exercise
of this Option; (b) the Option Shares delivered upon exercise of this Option
shall be validly issued and outstanding and fully paid and nonassessable shares
of Capital Stock; and (c) it will pay when due any and all federal and state
original issue or similar taxes, if any, which may be payable in respect of the
issuance of this Option or of any shares of Capital Stock upon exercise of this
Option. The Company shall not be required to pay any transfer tax which may be
payable with respect to any transfer of this Option, the issuance of
certificates of Capital Stock in a name other than that of the registered Holder
of this Option or any transfer of Option Shares. All such tax being payable by
the Holder.
3. RESTRICTIONS ON TRANSFER. Unless this Option or the Option Shares, as
applicable, have been registered, this Option and the certificates representing
the Option Shares shall be stamped or otherwise imprinted with a legend
substantially in the following form:
Neither this Option nor the Option Shares have been registered under the
Securities Act of 1933, and neither this Option nor the Option Shares
issuable upon exercise of this Option may be sold, transferred or otherwise
disposed of except as expressly permitted under the terms of this Option.
In connection with the Securities act of 1933, as amended ("1933 Act"), and
other applicable federal and state security laws ("Acts"), upon exercise of this
Option, unless a registration statement or similar filing under such Acts is
effective with respect to the Option Shares, the Bank shall not be required to
issue such Option Shares unless the Bank has received evidence satisfactory to
it to the effect that the Holder is acquiring such Option Shares for investment
and not with a view to the distribution thereof and that such Option Shares may
otherwise be issued without registration under such Acts. Further, no sale,
transfer or other disposition of any of the Option Shares shall be made by the
holder thereof unless (i) such sale, transfer or other disposition of the Option
Shares is covered by an effective registration statement (on the then
appropriate form) under the Acts or (ii) if requested by the Bank, the holder
shall have furnished an opinion of holder's counsel (which opinion and counsel
shall be satisfactory to the Bank in its reasonable discretion) with respect to
the sale, transfer or other disposition of such Option Shares as not requiring
registration under the Acts.
-2-
<PAGE>
This Option is also subject to transfer restrictions set forth in the Plan
and Section 422 of the Internal Revenue Code of 1986, as amended ("Code"), for
incentive stock options. Specifically, without limitation, this Option is not
transferable except by will or the laws of descent and distribution.
4. CHANGES IN THE BANK'S CAPITAL STRUCTURE. The existence of this Option
shall not affect in any way the right or power of the Bank or its stockholders
to make or authorize any or all adjustments, recapitalization, reorganizations
or other changes in the Bank's capital structure or its business, or any merger
or consolidation of the Bank, or any issue of bonds, debentures, Capital Stock,
preferred or prior preference stock ahead of or affecting the Capital Stock or
the rights thereof, or the dissolution or liquidation of the Bank, or any sale
or transfer of all or any part of the Bank's assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise.
If the Bank shall effect a subdivision or consolidation of shares or other
capital readjustment, the payment of a stock dividend or other increase or
reduction of the number of shares of Capital Stock outstanding without receiving
compensation therefor in money, services or property, then (a) the number, class
and per share price of shares of stock subject to this Option shall be
appropriately adjusted (as determined by the Committee) in such a manner as to
entitle the Holder to receive upon exercise of this Option, for the same or
similar consideration, the same or a similar total number and class of shares or
other securities as he would have received had he exercised this Option in full
immediately prior to the event requiring the adjustment; and (b) the number and
class of shares reserved for issuance pursuant to this Option shall be adjusted
by substituting for the total number and class of shares of stock then reserved
so that the number and class of shares of stock and other securities that would
have been received by the Holder of an equal number of outstanding shares of
stock and other securities as a result of the event requiring the adjustment.
After a merger or consolidation of one or more corporations into the Bank,
the Holder shall be entitled upon exercise of this Option to receive (subject to
any required action by stockholders) in lieu of the Option Shares, the number
and class of shares of stock or other securities to which the Holder would have
been entitled pursuant to the terms of the agreement of merger or consolidation
as if the Holder had been the holder of record of the Option Shares.
If the Bank is merged into or consolidated with another corporation under
circumstances in which the Bank is not the surviving corporation, or if the Bank
is liquidated, or sells or otherwise disposes of substantially all of its assets
to another corporation while this Option is outstanding, (i) subject to the
provisions of clause (ii) below, after the effective date of such merger,
consolidation or sale, as the case may be, the Holder shall be entitled, upon
exercise of this Option, to receive, in lieu of the Option Shares, shares of
such stock or other securities as the holders of shares of Capital Stock
received pursuant to the terms of the merger, consolidation or sale, or (ii)
this Option may be canceled by the Committee as of the effective date of any
such merger, consolidation, liquidation or sale provided (x) notice of such
cancellation shall be given to the Holder and (y) the Holder shall have the
right to exercise this Option in full amount during the 60-day period preceding
the effective date of such merger, consolidation, liquidation, sale or
acquisition.
-3-
<PAGE>
In the event a holding company is formed to hold the Capital Stock, a new
Award Agreement shall be substituted for this Option. The new Award Agreement
shall provide for the option to buy a number of shares of stock of the holding
company equivalent to the number and type of shares of holding Company stock
that would have been received by Holder as if the Holder had been the holder of
record of the Option Shares.
Except as hereinbefore expressly provided, the issuance by the Bank of
shares of any class, or securities convertible into shares of stock of any
class, for cash or property, or for labor or services either upon direct sale or
upon the exercise of stock rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Bank convertible into such shares or
other securities, shall not affect, and no adjustment by reason thereof shall be
made with respect to, this Option.
5. VESTING. The HOLDER's rights and interest pursuant to this Option
shall vest and be exercisable in the following percentages as of the indicated
dates; provided, that on each such date the Holder hereof is in the Employment
of the Bank, its affiliates or subsidiaries:
SERVICE DATES: PERCENTAGE OF OPTION SHARES
-------------- VESTED:
----------------------------
December 21, 1996 10%
December 21, 1997 15%
December 21, 1998 20%
December 21, 1999 25%
December 21, 2000 30%
In the event of a Change of Control or the Holder's death or Disability,
the Option shall fully vest effective as of the date of the Change of Control or
the Holder's death or Disability; provided, the Holder has been in continuous
Employment since the grant date of this Option. Further, as to accelerated
vesting relating to a Change of Control, the above provision is subject to the
parachute payment limitation contained in Section 10 of the Plan.
Vesting of the rights to exercise options is cumulative and the Holder's
rights to vested options shall continue until the termination of all options
granted hereunder. Under no circumstance shall the Option Shares be sold or
otherwise transferred for at least a period of six months and one day from the
date of grant hereof.
6. TERMINATION OF AWARD. Except as provided in Section 5, this Option
shall terminate as to any amount not vested at the time such Holder's Employment
is terminated, whether by dismissal, Cause or otherwise. This Option shall
terminate with respect to the Option Shares not previously purchased upon the
earlier to occur of (i) ___________, 2005, (ii) the expiration of 90 days
following the Holder's termination of Employment for reasons other than death,
Disability or Cause, (iii) the expiration of one year following the Holder's
termination of Employment by reason of death or Disability or (iv) the date of
the Holder's termination of Employment for Cause.
-4-
<PAGE>
7. NOTICES OF RECORD DATE. In the event of (a) any taking by the Bank of
a record of the holders of Capital Stock for the purpose of determining the
holders thereof who are entitled to receive any dividend (other than a cash
dividend payable out of earned surplus of the Bank) or other distribution, or
any right to subscribe for, purchase or otherwise acquire any shares of stock of
any class or any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Bank, any reclassification or
recapitalization of the capital stock of the Bank or any transfer of all or
substantially all the assets of the Bank to or consolidation or merger of the
Bank with or into any other person, or (c) any voluntary or involuntary
dissolution, liquidation or winding-up of the Bank, then and in each such event
the Bank will mail or cause to be mailed to each Holder a notice specifying (i)
the date on which any such record is to be taken for the purpose of such
dividend, distribution or right, and stating the amount and character of such
dividend, distribution or right, and (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up is to take place, and the time,
if any, as of which the holders of record of Capital Stock shall be entitled to
exchange their shares of Capital Stock for securities or other property
deliverable upon such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up. Such
notice shall be mailed at least 15 days prior to the date therein specified.
8. FRACTIONAL SHARES. This Option is only exercisable with respect to
whole Option Shares and not fractions thereof unless the Bank otherwise agrees.
Accordingly, the Company shall not be required to issue certificates
representing fractions of Option Shares upon any exercise of this Option;
provided, in respect of any final fraction of a share it may, at its sole
option, in lieu of delivering a fractional shares, make a payment in cash based
on the then Fair Market Value of such fraction of the underlying Capital Stock,
as determined in accordance with the Plan.
9. VIOLATION OF LAW. No Option Shares or other form of payment shall be
issued or made with respect to this Option unless the Bank shall be satisfied
based on the advice of its counsel that such issuance or payment will be in
compliance with applicable federal and state securities laws including, without
limitation, the 1933 Act and Rule 16b-3. The Bank shall use its best efforts to
cure such violation or potential violation so as to permit exercise of this
Option.
10. REPLACEMENT OF SECURITIES. Upon receipt of evidence reasonably
satisfactory to the Bank of the loss, theft, destruction or mutilation of any
certificates evidencing ownership of this Option and in the case of any such
loss, theft or destruction upon delivery of an indemnity agreement or, if the
Holder so elects, a surety bond reasonably satisfactory to the Bank or, in the
case of any such mutilation, upon surrender and cancellation of any such
certificate, the Bank shall forthwith execute and deliver, in lieu thereof, a
new Option of like tenor.
11. [DELETED].
12. NO RIGHTS AS STOCKHOLDER. No Holder shall, based on his being a
Holder, be entitled to vote or receive dividends or be deemed the holder of
Capital Stock or any other security of the Bank which may at any time be
issuable on the exercise hereof for any purpose, nor shall anything contained
herein be construed to confer upon the Holder of this Option, as such, any of
the rights of a stockholder of the Bank or any right to vote for the election of
directors or upon any matter
-5-
<PAGE>
submitted to stockholders at any meeting thereof, or to give or withhold consent
to any corporate action (whether upon any recapitalization, issue of stock,
reclassification of stock, change to or of par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until this Option shall have been
exercised and the Option Shares purchasable upon the exercise hereof shall have
become deliverable as provided herein, unless specifically set out otherwise in
this Option.
13. NONNEGOTIABILITY. The Holder of this Option, by accepting the same,
consents and agrees with the Company that (a) this Option is not transferable,
in whole or in part, except by will or the laws of descent and distribution, and
(b) the Bank may deem and treat the person in whose name this Option is
registered as the absolute, true and lawful owner for all purposes whatsoever,
and the Bank shall not be affected by any notice to the contrary.
14. ISO AND PLAN. This Option is intended to be an incentive stock option
pursuant to Section 422 of the Code and the Option shall be interpreted and
construed consist with such intent. Further, this Option shall be interpreted
and construed by the Committee and if there is a conflict between the provisions
in this Option and the Plan, the provisions in the Plan shall prevail.
Capitalized terms used in this Option and not defined herein shall have the
definition pursuant to the Plan. Terms used herein and defined in the Plan
include Fair Market Value, Employment, Change of Control, Disability, Cause and
Rule 16b-3.
15. MODIFICATIONS. This Option and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought.
16. NOTICES. Any notice to be given to the Bank under the terms hereof
shall be addressed to the Bank in care of its Secretary at 12130 Hempstead
Highway, Houston, Texas 77092 and any notice to the Holder shall be addressed
to the Holder's address as reflected on the records of the Bank, or at such
other address as the Bank, the Holder, and their successors or assigns may
hereafter designate in writing to the other. Any such notice shall have been
deemed given when actually received or on the third day after it is enclosed in
a properly sealed envelope or wrapper addressed as aforesaid, registered or
certified and deposited (postage and registry or certification fee prepaid) in a
post office regularly maintained by the United States Government.
17. FORMS OF ELECTION TO EXERCISE OPTION. Any notice of exercise shall be
in a form substantially similar to the form attached hereto as Exhibit "A".
18. ARBITRATION. Any controversy or claim arising out of or relating to
the issuance of this Option, or the issuance or any other matter relating to the
Option Shares hereunder, or the actual or alleged breach of this Option, or the
rights or duties or obligations of the Bank or the Holder hereunder, shall be
settled by binding arbitration administered by the American Arbitration
Association ("AAA") in the City of Houston in accordance with the arbitration
program adopted by the Board of Directors of the Bank ("Arbitration Program") to
the extent applicable and consistent with the terms of this Section 18. If the
Arbitration Program is found to be invalid or unenforceable as to this Option,
then arbitration shall be in accordance with and by an arbitrator appointed
pursuant to the rules of AAA in effect at the time. Judgment upon the
arbitration award rendered may be
-6-
<PAGE>
entered in any court having jurisdiction thereof, and all rights or remedies of
the Bank, the Holder and their successors to the contrary are hereby expressly
waived. The costs in connection with any arbitration proceeding under this
Section 18 shall be assessed against the parties in the manner decided by the
arbitrator(s).
19. TAX WITHHOLDING. The Holder further agrees that the Bank may withhold
other cash compensation due to the Holder in an amount equal to any required
withholding amount under federal or state income tax laws owing as a result of
this Option and that he Holder will pay to the Bank any additional cash, if
necessary, to satisfy such withholding requirement. The Bank, at its option,
may also retain and withhold Capital Stock issued upon the exercise of this
Option in an amount necessary to satisfy such withholding requirement.
20. SUCCESSORS AND ASSIGNS. This Option and each provision herein shall
be binding upon and applicable to, and shall inure to the benefit of the Bank
and the Holder, their successors, assigns, heirs and representatives, except as
otherwise provided in this Option.
21. GENDER, SECTION REFERENCES. Pronouns, wherever used herein, and of
whatever gender, shall include natural persons, corporations and entities of
every kind, the singular shall include the plural wherever and as often as may
be appropriate and the plural shall include the singular wherever and as often
as may be appropriate. The section titles and subtitles ("Titles") used in this
Option are solely for convenience of references and shall not affect, modify nor
limit the provisions of this Option. Any reference to a particular Title in
this Option shall be construed as referring to the provisions in the indicated
Title within this Option.
20. SEVERABILITY. If any provision of this Option, or the application of
such provision to any person or circumstance, shall be held invalid or
unenforceable for any reason, the remainder of this Option, or the application
of such provision to persons or circumstances other than those to which it is
held invalid or unenforceable, shall not be affected thereby.
21. GOVERNING LAWS. This Option shall be interpreted, construed, and
enforced in accordance with the laws of the State of Texas to the extent not
otherwise governed by mandatory provisions of the Code or securities laws of the
United States.
22. EMPLOYMENT. Nothing within this Option shall be construed to impose
upon the Bank or any affiliate any obligation to employ or to continue to employ
or maintain any other affiliation with the Holder.
-7-
<PAGE>
WITNESS the seal of the Company and the signature of a duly authorized
officer of the Company.
DATED effective as of the _____ day of ________, 1997.
PINEMONT BANK
By:
----------------------------
Name:
--------------------------
Title
--------------------------
AGREED AND ACCEPTED:
--------------------------------
_____________, Holder
Holder's Address:
- ------------------------
- ------------------------
-8-
<PAGE>
EXHIBIT "A"
SUBSCRIPTION
FOR
SOUTHWEST BANCORPORATION OF TEXAS, INC. COMMON STOCK
PURSUANT TO THE
PINEMONT BANK INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
Southwest Bancorporation of Texas, Inc. ("Company")
The undersigned, _________________________, pursuant to the provisions of
the Option described herein, hereby elects to purchase ___________ (__________)
shares of Common Stock of the Company covered by the Option dated
_____________________, 1995.
Dated: _____________________ __________________________________
Address:
__________________________
__________________________
Social Security No._______________
-9-
<PAGE>
EXHIBIT 5.1
[VINSON & ELKINS LETTERHEAD APPEARS HERE]
August 11, 1997
Southwest Bancorporation of Texas, Inc.
4400 Post Oak Parkway
Houston, Texas 77027
Ladies and Gentlemen:
We have acted as counsel to Southwest Bancorporation of Texas, Inc., a Texas
corporation (the "Company"), in connection with the preparation of the Company's
Registration Statement on Form S-8 as filed by the Company with the Securities
and Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Registration Statement"), which Registration Statement relates to the proposed
offer and sale by the Company to certain of the former employees of Pinemont
Bank of an aggregate of up to 190,625 shares of the Company's common stock,
$1.00 par value (the "Shares"), which are issuable upon exercise of certain
options (the "Options") granted under the Pinemont Bank Incentive and
Nonqualified Stock Option Plan, which Plan was assumed by the Company effective
as of the opening of business on August 1, 1997. In such connection, we are
passing on certain legal matters in connection with the sale of the Shares. At
your request, this opinion is being furnished to you for filing as an exhibit to
the Registration Statement.
In connection with rendering this opinion, we have examined such
certificates, instruments and documents and reviewed such questions of law as we
have considered necessary or appropriate for the purposes of this opinion. In
addition, we have relied as to factual matters on certificates of certain public
officials and officers of the Company.
Based upon the foregoing examination and review, we are of the opinion that
the Shares have been duly authorized for issuance and, when the Registration
Statement has been declared effective and the Shares are issued in accordance
with the provisions of the option agreements relating to the Options (as
amended, effective August 1, 1997), such Shares will be validly issued, fully
paid and non-assessable.
This opinion is rendered as of the effective date of the Registration
Statement. We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our name in the Registration
Statement. In giving this consent, however, we do not hereby admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 and the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
VINSON & ELKINS L.L.P.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
of Southwest Bancorporation of Texas, Inc. on Form S-8 of our reports, which
include an explanatory paragraph regarding the Company's change as of January 1,
1994 in accounting for securities, dated January 31, 1997, on our audits of the
consolidated financial statements and financial statement schedule of Southwest
Bancorporation of Texas, Inc. and Subsidiaries as of December 31, 1996 and 1995,
and for the years ended December 31, 1996, 1995, and 1994, which reports are
included in the Company's Annual Report on Form 10-K for the year ended December
31, 1996.
COOPERS & LYBRAND L.L.P.
Houston, Texas
August 13, 1997
