AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 12, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SOUTHWEST BANCORPORATION OF TEXAS, INC.
(Exact name of registrant as specified in its charter)
TEXAS
(State or other jurisdiction of
incorporation or organization)
76-0519693
(I.R.S. Employer
Identification No.)
4400 POST OAK PARKWAY
HOUSTON, TEXAS 77027
(Address of principal executive offices, including zip code)
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SOUTHWEST BANCORPORATION OF TEXAS, INC. 1989 STOCK OPTION PLAN
SOUTHWEST BANCORPORATION OF TEXAS, INC. 1993 STOCK OPTION PLAN
SOUTHWEST BANCORPORATION OF TEXAS, INC. 1996 STOCK OPTION PLAN
SEVERANCE AGREEMENT BETWEEN
SOUTHWEST BANCORPORATION OF TEXAS, INC. AND W. DONALD BRUNSON
(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>
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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)(3) FEE
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<S> <C> <C> <C> <C>
Common Stock, $ 7.882 (2)
$1.00 par value 1,538,775 $18.3125 (3) $14,515,638 $4,399
====================================================================================================
</TABLE>
(1) Estimated, solely for purposes of calculating the registration fee, in
accordance with Rule 457(h).
(2) 1,310,000 shares under the plans are valued at a weighted average
exercise price of $7.882 under outstanding options.
(3) 228,775 shares under the Southwest Bancorporation of Texas, Inc. 1996
Stock Option Plan are valued on the basis of the price of securities of
the same class, as determined in accordance with Rule 457(c), using the
average of the high and low prices reported on the NASDAQ National
Market for the Common Stock on February 6, 1997 ($18.3125 per share).
<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 Prospectus dated January 27, 1997 (the
"Prospectus"), included in the Company's Registration Statement
on Form S-1 (Registration Statement No. 333-16509).
(b) Description of the Common Stock contained in the Prospectus.
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.
Vinson & Elkins L.L.P. owns 112,965 shares of Common Stock.
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 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.
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<PAGE>
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 1989 Stock Option Plan (Exhibit 10.1).
*4.5 1993 Stock Option Plan (Exhibit 10.2).
*4.6 Form of Stock Option Agreement under 1989 Stock Option
Plan and 1993 Stock Option Plan (Exhibit 10.3).
*4.7 1996 Stock Option Plan (Exhibit 10.4).
*4.8 Form of Incentive Stock Option Agreement under 1996 Stock
Option Plan (Exhibit 10.5).
*4.9 Form of Non-qualified Stock Option Agreement under 1996
Stock Option Plan (Exhibit 10.6).
*4.10 Directors Stock Option Plan, adopted October, 1993
(Exhibit 10.7).
*4.11 Form of Stock Option Agreement under Directors Stock
Option Plan (Exhibit 10.8).
**4.12 Severance Agreement dated December 30, 1993, between the
Company and W. Donald Brunson, containing provisions of
stock option granted to W. Donald Brunson.
**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).
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* 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 11TH DAY OF
FEBRUARY, 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
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<S> <C> <C>
/s/ WALTER E. JOHNSON Chairman of the Board and Chief Executive February 11, 1997
Walter E. Johnson Officer (Principal Executive Officer)
/s/ DAVID C. FARRIES Executive Vice President, Treasurer and February 11, 1997
David C. Farries Secretary (Principal Financial Officer)
/s/ R. JOHN MCWHORTER Vice President and Controller February 11, 1997
R. John McWhorter (Principal Accounting Officer)
/s/ JOHN W. JOHNSON Director February 11, 1997
John W. Johnson
/s/ PAUL B. MURPHY, JR. Director and President February 11, 1997
Paul B. Murphy, Jr.
/s/ JOHN B. BROCK III Director February 11, 1997
John B. Brock III
/s/ ERNEST H. COCKRELL Director February 11, 1997
Ernest H. Cockrell
/s/ WILHELMINA R. MORIAN Director February 11, 1997
Wilhelmina R. Morian
/s/ ANDRES PALANDJOGLOU Director February 11, 1997
Andres Palandjoglou
/s/ MICHAEL T. WILLIS Director February 11, 1997
Michael T. Willis
</TABLE>
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EXHIBIT 4.12
SEVERANCE AGREEMENT
This Agreement is entered into on December 30, 1993, by and between
Southwest Bank of Texas National Association (the "Bank") and W. Donald Brunson
("Mr. Brunson").
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises in this Agreement, the Bank and Mr. Brunson hereby agree as follows:
1. RESIGNATION. Effective as of the close of business on January 31,
1994, Mr. Brunson resigns from the offices of Director, Executive Vice President
and Chief Financial Officer of the Bank and from all employment with the Bank.
Mr. Brunson acknowledges and agrees that he has no authority to and will not act
for the Bank in any capacity on or after the effective date of the resignation.
2. SEVERANCE PAY. The Bank agrees to provide to Mr. Brunson severance
payments subsequent to March 31, 1994 in the total amount of $123,000 payable in
monthly installments of $10,250 each on the last day of each calendar month,
beginning April 30, 1994 and ending on March 31, 1995; provided, however, that
at any time after March 31, 1994, Mr. Brunson may elect to receive the unpaid
balance of such severance payments in a lump sum at such time as he may choose.
Such severance payment shall be subject to customary withholding for taxes and
Social Security.
3. MEDICAL INSURANCE. Mr. Brunson and the Bank agree that, for the
period of April 1, 1994 to March 31, 1995 the Bank, at its expense, will provide
Mr. Brunson and his eligible dependents with medical and dental insurance under
the Bank's employee group medical and dental benefit plans on the same basis as
such benefits are provided to all full-time employees of the Bank during that
period; provided, however, that such medical and dental insurance will not be
provided during any period when Mr. Brunson is eligible to participate in any
medical benefit coverage under another employer's plan. In the event Mr. Brunson
dies prior to March 31, 1995, and while medical and dental insurance provided
for herein is still in effect, his eligible dependents will continue to receive
such medical and dental insurance until March 31, 1995.
In the event changes in the Bank's medical or dental benefit plans
occur, then the benefits provided by the Bank to Mr. Brunson, his eligible
dependents and survivors will be adjusted in accordance with such changes on the
same terms and conditions applicable to other persons eligible for benefits
under such plans, including such changes that may effectuate the termination of
benefits.
4. STOCK OPTIONS.
(a) AMENDMENT OF NON-QUALIFIED OPTIONS. Mr. Brunson and the Bank agree
that each of the options held by Mr. Brunson for the purchase of 12,381 shares
and 5,000 shares of Common Stock of the Bank granted pursuant to option
agreements dated July 1, 1989, and July 20, 1993, respectively (the "Option
Agreements") are hereby amended by amending Section 3 of each Option Agreement
to read in its entirety as follows:
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"3. EXERCISE OF OPTION. This Option shall be fully exercisable on
the date hereof and may be exercised in whole or in part at any time
prior to December 31, 1999, on which date this Option shall expire,
terminate and be of no further force or effect. This Option may be
exercised by written notice to the Company at its principal executive
office addressed to the attention of its Chief Executive Officer. This
Option is not transferable by Employee otherwise than by will or the
laws of descent and distribution. If Employee dies prior to December 31,
1999, his estate or the person who acquires this Option by will or the
laws of descent or distribution or otherwise by reason of the death of
Employee, may exercise this Option only during the period of one year
following the date of Employee's death, but no later than December 31,
1999. The purchase price of shares as to which this Option is exercised
shall be paid in full at the time of exercise in cash (including check,
bank draft or money order payable to the order of the Company). No
fraction of a share of Stock shall be issued by the Company upon
exercise of an Option; rather, Employee shall provide a cash payment for
such amount as is necessary to effect the issuance and acceptance of
only whole shares of Stock. Unless and until a certificate or
certificates representing such shares shall have been issued by the
Company to Employee, Employee (or the person permitted to exercise this
Option in the event of Employee's death) shall not be or have any of the
rights or privileges of a shareholder of the Company with respect to
shares acquirable upon an exercise of this Option."
(b) TERMINATION OF INCENTIVE OPTION. Mr. Brunson and the Bank agree that
the incentive option held by Mr. Brunson for the purchase of the 20,000 shares
of common stock of the Bank for a price of $7.00 per share, issued pursuant to
the option agreement between Mr. Brunson and the Bank dated August 15, 1989, is
hereby canceled and terminated and such option agreement shall be void and of no
further force or effect.
(c) GRANT OF REPLACEMENT OPTION. (1) GRANT OF OPTION; PURCHASE PRICE. In
consideration of the cancellation and termination of the above incentive option,
the Bank hereby grants to Mr. Brunson an option (the "Replacement Option") to
purchase 20,000 shares of the Bank's common stock ("Stock"), at an exercise
price of $7.00 per share. The Replacement Option is not granted under any of the
Bank's Stock Option Plans and shall not be treated as an incentive stock option
within the meaning of section 422(b) of the Internal Revenue Code of 1986, as
amended.
(2) EXERCISE OF OPTION. The Replacement Option shall be fully
exercisable on the date hereof and may be exercised in whole or in part
at any time prior to December 31, 1999, on which date the Replacement
Option shall expire, terminate and be of no further force or effect. The
Replacement Option may be exercised by written notice to the Bank at its
principal executive office addressed to the attention of its Chief
Executive Officer. The Replacement Option is not transferable by Mr.
Brunson otherwise than by will or the laws of descent and distribution.
If Mr. Brunson dies prior to December 31, 1999, his estate, or the
person who acquires the Replacement Option by will or the laws of
descent and distribution or otherwise by reason of Mr. Brunson's death,
may exercise the Replacement Option only during the period of one year
following the date of Mr. Brunson's death, but no later than December
31, 1999.
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<PAGE>
The purchase price of shares as to which the Replacement Option
is exercised shall be paid in full at the time of exercise in cash
(including check, bank draft or money order payable to the order of the
Bank). No fraction of a share of Stock shall be issued by the Bank upon
exercise of the Replacement Option; rather, Mr. Brunson shall provide a
cash payment for such amount as is necessary to effect the issuance and
acceptance of only whole shares of Stock. Unless and until a certificate
or certificates representing such shares shall have been issued by the
Bank to Mr. Brunson, Mr. Brunson (or the person permitted to exercise
the Replacement Option in the event of his death) shall not be or have
any of the rights or privileges of a shareholder of the Bank with
respect to shares acquirable upon an exercise of the Replacement Option.
3. WITHHOLDING OF TAX. To the extent that the exercise of the
Replacement Option or the disposition of shares of Stock acquired by
exercise of the Replacement Option results in compensation income to Mr.
Brunson for federal or state income tax purposes, Mr. Brunson shall
deliver to the Bank at the time of such exercise of disposition such
amount of money or shares of Stock as the Bank may require to meet its
obligation under applicable tax laws or regulations, and, if Mr. Brunson
fails to do so, the Bank is authorized to withhold from any cash or
Stock remuneration then or thereafter payable to Mr. Brunson any tax
required to be withheld by reason of such resulting compensation income.
Upon an exercise of the Replacement Option, the Bank is further
authorized in its discretion to satisfy any such withholding requirement
out of any cash or shares of Stock distributable to Mr. Brunson upon
such exercise.
4. STATUS OF STOCK. Mr. Brunson understands that at the time of
the execution of this Agreement the shares of Stock to be issued upon
exercise of the Replacement Option have not been registered under the
Securities Act of 1933, as amended (the "Act") or any State securities
law, and that the Bank does not currently intend to effect any such
registration. Until the shares of Stock acquirable upon exercise of the
Replacement Option have been registered for issue under the Act, the
Company will not issue such shares unless Mr. Brunson provides the Bank
with a written opinion of legal counsel, who shall be satisfactory to
the Bank, addressed to the Bank and satisfactory in form and substance
to the Bank's counsel, to the effect that the proposed issuance of such
shares may be made without registration under the Act. In the event
exemption from registration under the Act is available upon an exercise
of the Replacement Option, Mr. Brunson (or the person permitted to
exercise the Replacement Option in the event of his death), if requested
by the Bank to do so, will execute and deliver to the Bank in writing an
agreement containing such provisions as the Bank may require to assure
compliance with applicable securities laws.
Mr. Brunson agrees that the shares of Stock which he may acquire
by exercising the Replacement Option shall be acquired for investment
without a view to distribution, within the meaning of the Act, and shall
not be sold transferred, assigned, pledged or hypothecated in the
absence of an effective registration statement for the shares under the
Act and applicable State securities laws or an applicable exemption from
the registration requirements of the Act and any applicable State
securities laws. Mr. Brunson also agrees that the shares of Stock which
he may acquire by exercising the Replacement Option will not
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<PAGE>
be sold or otherwise disposed of in any manner which would constitute a
violation of any applicable securities laws, whether federal or state.
In addition, Mr. Brunson agrees (i) that the certificates
representing the shares of Stock purchased under the Replacement Option
may bear such legend or legends as the Bank deems appropriate in order
to assure compliance with applicable securities laws, (ii) that the Bank
may refuse to register the transfer of the shares of Stock purchased
under the Replacement Option on the stock transfer records of the Bank
if such proposed transfer would in the opinion of counsel satisfactory
to the Bank constitute a violation of any applicable securities law and
(iii) that the Bank may give related instructions to its transfer agent,
if any, to stop registration of the transfer of the shares of Stock
purchased under the Replacement Option.
5. RECAPITALIZATION OR REORGANIZATION. Article VIII of the Bank's
1993 Stock Option Plan, relating to the treatment of options granted
under such Plan in the event of any recapitalization, reorganization or
other change in the Bank's capital structure, is hereby incorporated by
reference and the provisions of such Article VIII are hereby deemed to
be provisions of the Replacement Option (even though the Replacement
Option is not issued pursuant to such Plan).
5. CONFIDENTIAL AND PROPRIETARY INFORMATION. Mr. Brunson recognizes and
acknowledges that he has had access to certain information of the Bank that is
confidential and proprietary and constitutes valuable, special, and unique
property of the Bank. Mr. Brunson agrees that he will not at any time disclose
to others, use, copy or permit to be copied any secret or confidential
information (whether or not developed by Mr. Brunson) without the Bank's prior
written consent. The term "secret or confidential information" shall include,
without limitation, the Bank's plans, strategies, applications of services,
results of investigations, and all processes, computer programs and software,
financial information, methods of doing business, policy and/or procedure
manuals, training and recruiting procedures, accounting procedures, the status
and content of the Bank's contracts with its customers, the Bank's business
philosophy, and servicing methods and tech niques at any time used, developed or
investigated by the Bank, before or during Mr. Brunson's tenure of employment,
which are not generally available to the public or which are maintained as
confidential by the Bank. Mr. Brunson further agrees to maintain in confidence
any confidential information of third parties received as a result of his
employment with the Bank.
6. DOCUMENTS AND BANK ASSETS. Mr. Brunson agrees to leave in his office
or deliver to the Bank on or before March 31, 1994 all correspondence,
memoranda, notes, records, data or information, analysis, or other documents and
all copies thereof, made, composed or received by Mr. Brunson, solely or jointly
with others, and which are in Mr. Brunson's possession, custody or control and
which are related in any manner to the past, present or anticipated business of
the Bank. On or before March 31, 1994, Mr. Brunson shall deliver to the Bank any
property belonging to the Bank in his possession or control, including, without
limitation, any security, telephone or credit cards furnished by the Bank for
his use.
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<PAGE>
7. COOPERATION. Mr. Brunson agrees to cooperate fully and in good faith
with the Bank and its authorized representatives with respect to reasonable
requests for information or assistance in connection with business matters,
including litigation arising from such business matters, of which he had
knowledge while an employee or director of the Bank.
8. MR. BRUNSON'S REPRESENTATION. Mr. Brunson represents, warrants, and
agrees that he has not filed any claims, complaints, charges or lawsuits against
the Bank, its parent, subsidiaries, affiliates, owners, employees, officers,
directors, shareholders, agents, attorneys, insurers, successors, and
representatives with any governmental agency or court, and that he will not
file, or permit to be filed, or accept benefit from, any claim, complaint or
petition filed with any governmental agency or court by him or on his behalf at
any time hereafter; provided, however, this shall not limit Mr. Brunson from
filing an action for the sole purpose of enforcing his rights under this
Agreement.
9. RELEASE. In return for the promises made in paragraphs 2, 3 and 4
above, Mr. Brunson, on behalf of himself and his successors, heirs, assigns,
agents, and representatives, hereby releases, acquits, and discharges the Bank,
its parent, subsidiaries, and affiliates, and their respective former and
current officers, directors, shareholders, owners, employees, agents, attorneys,
insurers, successors, and representatives (collectively the "Bank and
Affiliates") from any and all claims, charges, rights, damages, demands, and
causes of action, whether based in tort, contract, statute or any other legal or
equitable theory of recovery, including but not limited to, any and all claims
or causes of action arising under the Texas Commission on Human Rights Act,
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act, and any other federal, state
or local statute, regulation or the common law, which Mr. Brunson now has or may
have, of any kind or character, whether now known or unknown. This release
includes, but is not limited to, any claim for salary, bonus, compensation,
benefits, expenses, damages, remuneration or wages arising from Mr. Brunson's
employment, resignation or termination of employment, and all other acts or
omissions related to any matter up to and including the date of execution of
this Agreement. Mr. Brunson expressly understands and agrees that the terms of
this Agreement are contractual and not merely recitals and that no statement or
consideration given shall be construed as an admission of liability by the Bank
and Affiliates, all such liability being expressly denied.
10. REMEDIES. Mr. Brunson and the Bank agree that, because damages at
law for any breach or nonperformance of this Agreement by Mr. Brunson, while
recoverable, will be inadequate, this Agreement may be enforced in equity by
specific performance, injunction, accounting or otherwise. However, if Mr.
Brunson violates this Agreement by suing the Bank, he agrees that he will pay
all costs and expense of defending the suit incurred by the Bank, will no longer
be entitled to receive any of the monies identified in paragraphs 2 and 3 of
this Agreement, will be required to repay to the Bank any monies already paid by
the Bank pursuant to this Agreement and will be deemed to have forfeited all of
his rights under all options held by him for the purchase of common stock of the
Bank under paragraph 4 of this Agreement.
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11. ENFORCEMENT OF AGREEMENT. No waiver or nonaction with respect to any
breach by the other party of any provision of this Agreement, nor the waiver or
nonaction with respect to any breach of the provisions of similar agreements
with other employees shall be construed to be a waiver of any succeeding breach
of such provision, or as a waiver of the provision itself. Should any provisions
hereof be held to be invalid or wholly or partially unenforceable, such holdings
shall not invalidate or void the remainder of this Agreement; provided, however,
that if paragraph 9 of this Agreement is subsequently found by a court to be
unenforceable or null and void, this entire Agreement shall be deemed null and
void and Mr. Brunson agrees to immediately reimburse the Bank for any payments
made pursuant to paragraphs 2 and 3 of this Agreement.
12. CHOICE OF LAW. This Agreement shall be interpreted and construed in
accordance with and shall be governed by the laws of the State of Texas.
13. MERGER. This Agreement supersedes, replaces, and merges all previous
agreements and discussions relating to the same or similar subject matters
between Mr. Brunson and the Bank and constitutes the entire agreement between
Mr. Brunson and the Bank with respect to the subject matter of this Agreement.
This Agreement may not be changed or terminated orally, and no change,
termination or waiver of this Agreement or any of the provisions herein
contained shall be binding unless made in writing and signed by all parties, and
in the case of the Bank, by an authorized officer.
14. NO DEROGATORY COMMENTS. Mr. Brunson shall refrain from making public
or private comments relating to the Bank and its directors, officers, employees
and agents which are derogatory or which may tend to injure any such party in
its business, public or private affairs.
15. CONFIDENTIALITY. Mr. Brunson agrees that he will not disclose the
terms of this Agreement or the consideration received from the Bank to any other
person, except his attorney or financial advisors and only on the condition that
they keep such information strictly confidential.
16. VOLUNTARY AGREEMENT. Mr. Brunson acknowledges and agrees that he has
carefully read this Agreement and understands it to be a release of all claims,
known and unknown, past or present, including any claims under the Age
Discrimination in Employment Act of 1967. He warrants that he is fully competent
to execute this Agreement which he understands to be contractual. He further
acknowledges that he executes this Agreement of his own free will, after having
been given at least 21 days in which to review, study, consider, and deliberate
regarding its meaning and effect; to consult with counsel for review if so
desired prior to executing same; and without reliance on any representation of
any kind or character not expressly set forth herein. Finally, he executes this
Agreement fully knowing its effect and voluntarily for the consideration stated
above.
17. TIMING OF AGREEMENT. Mr. Brunson acknowledges and agrees that if he
accepts the Severance Agreement, he has seven days following its execution to
revoke this Agreement; and that this Agreement shall not become effective or
enforceable until the expiration of this seven-day period. Mr. Brunson further
agrees that if he should revoke this Agreement, or if paragraph 9 of this
Agreement is subsequently found by a court to be unenforceable or null and void,
he shall
-6-
<PAGE>
immediately reimburse the Bank for any payments made pursuant to paragraphs 2
and 3 of this Agreement.
Executed this 30th day of December, 1993.
SOUTHWEST BANK OF TEXAS
NATIONAL ASSOCIATION
By /s/ JOHN W. JOHNSON
John W. Johnson
Chairman of the Board
/s/ W. DONALD BRUNSON
W. Donald Brunson
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EXHIBIT 5.1
[VINSON & ELKINS LETTERHEAD]
Telephone Fax
(713) 758-2128 (713) 615-5282
February 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 Company's employees
and directors of an aggregate of up to 1,538,775 shares of the Company's common
stock, $1.00 par value (the "Shares"), which are issuable upon exercise of
certain options (the "Options") granted by the Company pursuant to the Company's
1989 Stock Option Plan, 1993 Stock Option Plan and 1996 Stock Option Plan and a
Severance Agreement between the Company and W. Donald Brunson. 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,
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.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of Southwest Bancorporation of Texas, Inc. (formerly Southwest
Bancorporation, Inc.) (the "Company") on Form S-8 of our report, which includes
an explanatory paragraph for changes in accounting principles, dated February 9,
1996, except for the fourth paragraph of Note 1, as to which the date is
November 18, 1996, on our audits of the consolidated financial statements of
Southwest Bancorporation of Texas, Inc., which report is included in the
Company's registration statement on Form S-1 (File No. 333-16509).
Houston, Texas
February 11, 1997
