<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 14, 1999
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)
-----------------
FORT BEND HOLDING CORP. 1993 STOCK OPTION AND INCENTIVE 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 OFFERING PRICE FEE
(1)(2)(3)(4)(5)(6)(7)
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 295,602 $ 3.45 (1) $2,083,025 $580
$1.00 par value $10.95 (2)
$10.60 (3)
$ 8.02 (4)
$ 6.42 (5)
$ 5.35 (6)
$11.72 (7)
- ----------------------------------------------------------------------------------------------
</TABLE>
(1) 125,324 shares under the Plan are valued at an exercise price of $3.45
under outstanding options.
(2) 59,449 shares under the Plan are valued at an exercise price of $10.95
under outstanding options.
(3) 51,381 shares under the Plan are valued at an exercise price of $10.60
under outstanding options.
(4) 44,948 shares under the Plan are valued at an exercise price of $8.02 under
outstanding options.
(5) 7,250 shares under the Plan are valued at an exercise price of $6.42 under
outstanding options.
(6) 5,800 shares under the Plan are valued at an exercise price of $5.35 under
outstanding options.
(7) 1,450 shares under the Plan are valued at an exercise price of $11.72 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, 1998.
(b) The Company's Current Report on Form 8-K dated April 1, 1999.
(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 misconduct or a knowing violation of the law, (iii) a transaction
from which a director received an improper benefit,
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<PAGE>
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 Fort Bend Holding Corp. 1993 Stock Option and Incentive
Plan.
**4.5 Form of Incentive Stock Option Agreement under Fort Bend
Holding Corp. 1993 Stock Option and Incentive Plan.
**4.6 Form of Non-Qualified Stock Option Agreement under Fort Bend
Holding Corp. 1993 Stock Option and Incentive Plan.
**5.1 Opinion of Vinson & Elkins L.L.P.
**23.1 Consent of PricewaterhouseCoopers LLP
**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.
-3-
<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 APRIL,
1999.
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 agent
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 April 13, 1999
- ---------------------------- Officer (Principal Executive Officer)
Walter E. Johnson
/s/ DAVID C. FARRIES Executive Vice President, Treasurer and April 13, 1999
- ---------------------------- Secretary (Principal Financial Officer)
David C. Farries
/s/ R. JOHN McWHORTER Senior Vice President and Controller April 13, 1999
- ---------------------------- (Principal Accounting Officer)
R. John McWhorter
/s/ JOHN W. JOHNSON Director April 13, 1999
- ----------------------------
John W. Johnson
/s/ PAUL B. MURPHY, JR. Director and President April 13, 1999
- ----------------------------
Paul B. Murphy, Jr.
- ---------------------------- Director April 13, 1999
John B. Brock III
/s/ ERNEST H. COCKRELL Director April 13, 1999
- ----------------------------
Ernest H. Cockrell
- ---------------------------- Director April 13, 1999
J. David Heaney
Director April 13, 1999
- ----------------------------
Wilhelmina R. Morian
/s/ ANDRES PALANDJOGLOU
- ---------------------------- Director April 13, 1999
Andres Palandjoglou
/s/ ADOLPH A. PFEFFER, JR.
- ---------------------------- Director April 13, 1999
Adolph A. Pfeffer, Jr.
- ---------------------------- Director April 13, 1999
Stanley D. Stearns, Jr.
/s/ MICHAEL T. WILLIS
- ---------------------------- Director April 13, 1999
Michael T. Willis
</TABLE>
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<PAGE>
EXHIBIT 4.4
FORT BEND HOLDING CORP.
Holding Company for
Fort Bend Federal Savings and Loan Association
of Rosenberg
AMENDED AND RESTATED 1993 STOCK OPTION AND INCENTIVE PLAN
1. PLAN PURPOSE. The purpose of the Plan is to promote the long-term
interests of the Corporation and its stockholders by providing a means for
attracting and retaining directors, officers and employees of the Corporation
and its Affiliates. It is intended that designated Options granted pursuant to
the provisions of this Plan to persons employed on a full-time basis will
qualify as Incentive Stock Options. Options granted to persons who are not
full-time employees will be Non-Qualified Stock Options.
2. DEFINITIONS. The following definitions are applicable to the Plan:
"Affiliate" - means any "parent corporation" or "subsidiary
corporation" of the Corporation, as such terms are defined in Section 424(e) and
(f), respectively, of the Code.
"Award" - means the grant of an Incentive Stock Option, a
Non-Qualified Stock Option, a Stock Appreciation Right, a Limited Stock
Appreciation Right, or of Restricted Stock, or any combination thereof, as
provided in the Plan.
"Association" - means Fort Bend Federal Savings and Loan Association
of Rosenberg and its successors.
"Code" - means the Internal Revenue Code of 1986, as amended.
"Committee" - means the Committee referred to in Section 3 hereof.
"Continuous Service" - means the absence of any interruption or
termination of service as a director, advisory director, officer or employee of
the Corporation or an Affiliate, except that when used with respect to persons
granted an Incentive Stock Option such term means the absence of any
interruption or termination of service as a full-time employee of the
Corporation or an Affiliate. Service shall not be considered interrupted in the
case of sick leave, military leave or any other leave of absence approved by the
Corporation or in the case of transfers between payroll locations of the
Corporation or between the Corporation, its parent, its subsidiaries or its
successor.
"Corporation" - means Fort Bend Holding Corp., a Delaware corporation.
"Employee" - means any person, including an officer or director, who
is employed by the Corporation or any Affiliate.
<PAGE>
"ERISA" - means the Employee Retirement Income Security Act of 1974,
as amended.
"Exercise Price" - means (i) in the case of an Option, the price per
Share at which the Shares subject to such Option may be purchased upon exercise
of such Option and (ii) in the case of a Right, the price per Share (other than
the Market Value per Share on the date of exercise and the Offer Price per Share
as defined in Section 10 hereof) which, upon grant, the Committee determines
shall be utilized in calculating the aggregate value which a Participant shall
be entitled to receive pursuant to Sections 9, 10 or 13 hereof upon exercise of
such Right.
"Incentive Stock Option" - means an option to purchase Shares granted
by the Committee pursuant to Section 6 hereof which is subject to the
limitations and restrictions of Section 8 hereof and is intended to qualify
under Section 422 of the Code.
"Limited Stock Appreciation Right" - means a stock appreciation right
with respect to Shares granted by the Committee pursuant to Sections 6 and 10
hereof.
"Market Value" - means the average of the high and low quoted sales
price on the date in question (or, if there is no reported sale on such date, on
the last preceding date on which any reported sale occurred) of a Share on the
Composite Tape for the New York Stock Exchange-Listed Stocks, or, if on such
date the Shares are not quoted on the Composite Tape, on the New York Stock
Exchange, or, if the Shares are not listed or admitted to trading on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which the Shares are listed or admitted
to trading, or, if the Shares are not listed or admitted to trading on any such
exchange, the mean between the closing high bid and low asked quotations with
respect to a Share on such date on the National Association of Securities
Dealers, Inc., Automated Quotations System, or any similar system then in use,
or, if no such quotations are available, the fair market value on such date of a
Share as the Committee shall determine.
"Non-Employee Director" - means a director who (a) is not currently an
officer or employee of the Corporation; (b) is not a former employee of the
Corporation who receives compensation for prior services (other than from a
tax-qualified retirement plan); (c) has not been an officer of the Corporation;
(d) does not receive remuneration from the Corporation in any capacity other
than as a director; and (e) does not possess an interest in any other
transactions or is not engaged in a business relationship for which disclosure
would be required under Item 404(a) or (b) of Regulation S-K.
"Non-Qualified Stock Option" - means an option to purchase Shares
granted by the Committee pursuant to Section 6 hereof, which option is not
intended to qualify under Section 422 of the Code.
"Option" - means an Incentive Stock Option or a Non-Qualified Stock
Option.
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<PAGE>
"Participant" - means any officer or employee of the Corporation or
any Affiliate who is selected by the Committee to receive an Award and any
director of the Corporation who is granted an Award pursuant to Section 21
hereof.
"Plan" - means the Amended and Restated 1993 Stock Option and
Incentive Plan of the Corporation.
"Related" - means (i) in the case of a Right, a Right which is granted
in connection with, and, to the extent exercisable, in whole or in part, in lieu
of, an Option or another Right and (ii) in the case of an Option, an Option with
respect to which and to the extent a Right is exercisable, in whole or in part,
in lieu thereof has been granted.
"Restricted Period" - means the period of time selected by the
Committee for the purpose of determining when restrictions are in effect under
Section 11 hereof with respect to Restricted Stock awarded under the Plan.
"Restricted Stock" - means Shares which have been contingently awarded
to a Participant by the Committee subject to the restrictions referred to in
Section 11 hereof, so long as such restrictions are in effect.
"Right" - means a Limited Stock Appreciation Right or a Stock
Appreciation Right.
"Shares" - means the shares of common stock of the Corporation.
"Stock Appreciation Right" - means a stock appreciation right with
respect to Shares granted by the Committee pursuant to Sections 6 and 9 hereof.
"Ten Percent Beneficial Owner" - means the beneficial owner of more
than ten percent of any class of the Corporation's equity securities registered
pursuant to Section 12 of the Securities Exchange Act of 1934.
3. ADMINISTRATION. The Plan shall be administered by a Committee
consisting of two or more members, each of whom shall be a Non-Employee
Director. The members of the Committee shall be appointed by the Board of
Directors of the Corporation. Except as limited by the express provisions of
the Plan, the Committee shall have sole and complete authority and discretion to
(i) select Participants and grant Awards, (ii) determine the number of Shares to
be subject to types of Awards generally, as well as to individual Awards granted
under the Plan, (iii) determine the terms and conditions upon which Awards shall
be granted under the Plan, (iv) prescribe the form and terms of instruments
evidencing such grants, and (v) establish from time to time regulations for the
administration of the Plan, interpret the Plan, and make all determinations
deemed necessary or advisable for the administration of the Plan.
A majority of the Committee shall constitute a quorum, and the acts of a
majority of the members present at any meeting at which a quorum is present, or
acts approved in writing by a majority of the Committee without a meeting, shall
be acts of the Committee.
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<PAGE>
4. PARTICIPATION IN COMMITTEE AWARDS. The Committee may select from time
to time Participants in the Plan from those directors, officers and employees,
of the Corporation or its Affiliates who, in the opinion of the Committee, have
the capacity for contributing to the successful performance of the Corporation
or its Affiliates.
5. SHARES SUBJECT TO PLAN. Subject to adjustment by the operation of
Section 12 hereof, the maximum number of Shares with respect to which Awards may
be made under the Plan is 128,865 Shares. The Shares with respect to which
Awards may be made under the Plan may be either authorized and unissued shares
or issued shares heretofore or hereafter reacquired and held as treasury shares.
Shares which are subject to Related Rights and Related Options shall be counted
only once in determining whether the maximum number of Shares with respect to
which Awards may be granted under the Plan has been exceeded. An Award shall
not be considered to have been made under the Plan with respect to any Option or
Right which terminates or with respect to Restricted Stock which is forfeited,
and new Awards may be granted under the Plan with respect to the number of
Shares as to which such termination or forfeiture has occurred.
6. GENERAL TERMS AND CONDITIONS OF OPTIONS AND RIGHTS. The Committee
shall have full and complete authority and discretion, except as expressly
limited by the Plan, to grant Options and/or Rights and to provide the terms and
conditions (which need not be identical among Participants) thereof. In
particular, the Committee shall prescribe the following terms and conditions:
(i) the Exercise Price of any Option or Right, which shall not be less than the
Market Value per Share at the date of grant of such Option or Right, except as
set forth in Section 21 hereof, (ii) the number of Shares subject to, and the
expiration date of, any Option or Right, which expiration date shall not exceed
ten years from the date of grant, (iii) the manner, time and rate (cumulative or
otherwise) of exercise of such Option or Right, and (iv) the restrictions, if
any, to be placed upon such Option or Right or upon Shares which may be issued
upon exercise of such Option or Right. The Committee may, as a condition of
granting any Option or Right, require that a Participant agree not to thereafter
exercise one or more Options or Rights previously granted to such Participant.
7. EXERCISE OF OPTIONS OR RIGHTS.
(a) An Option or Right granted under the Plan shall be exercisable
during the lifetime of the Participant to whom such Option or Right was granted
only by such Participant and, except as provided in paragraphs (c) and (d) of
this Section 7, no such Option or Right may be exercised unless at the time such
Participant exercises such Option or Right, such Participant has maintained
Continuous Service since the date of grant of such Option or Right.
(b) To exercise an Option or Right under the Plan, the Participant to
whom such Option or Right was granted shall give written notice to the
Corporation in form satisfactory to the Committee (and, if partial exercises
have been permitted by the Committee, by specifying the number of Shares with
respect to which such Participant elects to exercise such Option or Right)
together with full payment of the Exercise Price, if any and to the extent
required. The date of exercise shall be the date on which such notice is
received by the Corporation. Payment, if any is required, shall be made either
(i) in cash (including check, bank draft or money order) or (ii) by delivering
(A) Shares already owned by the Participant and having a fair market value equal
to the
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<PAGE>
applicable exercise price, such fair market value to be determined in such
appropriate manner as may be provided by the Committee or as may be required
in order to comply with or to conform to requirements of any applicable laws
or regulations, or (B) a combination of cash and such Shares.
(c) If a Participant to whom an Option or Right was granted shall
cease to maintain Continuous Service for any reason (including total or partial
disability and normal or early retirement, but excluding death and termination
of employment by the Corporation or any Affiliate for cause), such Participant
may, but only within the period of three months immediately succeeding such
cessation of Continuous Service and in no event after the expiration date of
such Option or Right, exercise such Option or Right to the extent that such
Participant was entitled to exercise such Option or Right at the date of such
cessation, provided, however, that such right of exercise after cessation of
Continuous Service shall not be available to a Participant if the Committee
otherwise determines and so provides in the applicable instrument or instruments
evidencing the grant of such Option or Right. Notwithstanding the foregoing, if
a Participant to whom an Option or Right was granted shall cease to maintain
Continuous Service due to normal retirement, and such Participant has served the
Corporation or the Association for at least five years, such Option or Right
granted to such Participant shall become immediately exercisable, and the
Participant may, but only during the period of three years immediately
succeeding such cessation of Continuous Service and in no event after the
expiration of such Option or Right, exercise such Option or Right. If the
Continuous Service of a Participant to whom an Option or Right was granted by
the Corporation is terminated for cause, all rights under any Option or Right of
such Participant shall expire immediately upon the giving to the Participant of
notice of such termination.
(d) In the event of the death of a Participant while in the
Continuous Service of the Corporation or an Affiliate or within the three month
and three year periods referred to in paragraph (c) of this Section 7, the
person to whom any Option or Right held by the Participant at the time of his
death is transferred by will or the laws of descent and distribution may, but
only to the extent such Participant was entitled to exercise such Option or
Right immediately prior to his death, exercise such Option or Right at any time
within a period of one year succeeding the date of death of such Participant,
but in no event later than ten years from the date of grant of such Option or
Right. Following the death of any Participant to whom an Option was granted
under the Plan, irrespective of whether any Related Right shall have theretofore
been granted to the Participant or whether the person entitled to exercise such
Related Right, desires to do so, the Committee may, as an alternative means of
settlement of such Option, elect to pay to the person to whom such Option is
transferred by will or by the laws of descent and distribution or, with respect
to an Award other than an Incentive Stock Option, pursuant to a qualified
domestic relations order as defined in the Code or Title I of the ERISA or the
rules thereunder, the amount by which the Market Value per Share on the date of
exercise of such Option shall exceed the Exercise Price of such Option,
multiplied by the number of Shares with respect to which such Option is properly
exercised. Any such settlement of an Option shall be considered an exercise of
such Option for all purposes of the Plan.
8. INCENTIVE STOCK OPTIONS. Incentive Stock Options may be granted only
to Participants who are Employees. Any provision of the Plan to the contrary
notwithstanding, (i) no Incentive Stock Option shall be granted more than ten
years from the date the Plan is adopted by the Board of Directors of the
Corporation and no Incentive Stock Option shall be exercisable more than ten
years
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<PAGE>
from the date such Incentive Stock Option is granted, (ii) the Exercise Price
of any Incentive Stock Option shall not be less than the Market Value per
Share on the date such Incentive Stock Option is granted, (iii) any Incentive
Stock Option shall not be transferable by the Participant to whom such
Incentive Stock Option is granted other than by will or the laws of descent
and distribution and shall be exercisable during such Participant's lifetime
only by such Participant, (iv) no Incentive Stock Option shall be granted to
any individual who, at the time such Incentive Stock Option is granted, owns
stock possessing more than ten percent of the total combined voting power of
all classes of stock of the Corporation or any Affiliate unless the Exercise
Price of such Incentive Stock Option is at least 110 percent of the Market
Value per Share at the date of grant and such Incentive Stock Option is not
exercisable after the expiration of five years from the date such Incentive
Stock Option is granted, and (v) the aggregate Market Value (determined as of
the time any Incentive Stock Option is granted) of the Shares with respect to
which Incentive Stock Options are exercisable for the first time by a
Participant in any calendar year shall not exceed $100,000.
9. STOCK APPRECIATION RIGHTS. A Stock Appreciation Right shall, upon its
exercise, entitle the Participant to whom such Stock Appreciation Right was
granted to receive a number of Shares or cash or combination thereof, as the
Committee in its discretion shall determine, the aggregate value of which (i.e.,
the sum of the amount of cash and/or Market Value of such Shares on date of
exercise) shall equal (as nearly as possible, it being understood that the
Corporation shall not issue any fractional shares) the amount by which the
Market Value per Share on the date of such exercise shall exceed the Exercise
Price of such Stock Appreciation Right, multiplied by the number of Shares with
respect to which such Stock Appreciation Right shall have been exercised. A
Stock Appreciation Right may be Related to an Option or may be granted
independently of any Option as the Committee shall from time to time in each
case determine. At the time of grant of an Option the Committee shall determine
whether and to what extent a Related Stock Appreciation Right shall be granted
with respect thereto; provided, however, and notwithstanding any other provision
of the Plan, that if the Related Option is an Incentive Stock Option, the
Related Stock Appreciation Right shall satisfy all the restrictions and
limitations of Section 8 hereof as if such Related Stock Appreciation Right were
an Incentive Stock Option and as if other rights which are Related to Incentive
Stock Options were Incentive Stock Options. In the case of a Related Option,
such Related Option shall cease to be exercisable to the extent of the Shares
with respect to which the Related Stock Appreciation Right was exercised. Upon
the exercise or termination of a Related Option, any Related Stock Appreciation
Right shall terminate to the extent of the Shares with respect to which the
Related Option was exercised or terminated.
10. LIMITED STOCK APPRECIATION RIGHTS. At the time of grant of an Option
or Stock Appreciation Right to any Participant, the Committee shall have full
and complete authority and discretion to also grant to such Participant a
Limited Stock Appreciation Right which is Related to such Option or Stock
Appreciation Right; provided, however, and notwithstanding any other provision
of the Plan, that if the Related Option is an Incentive Stock Option, the
Related Limited Stock Appreciation Right shall satisfy all the restrictions and
limitations of Section 8 hereof as if such Related Limited Stock Appreciation
Right were an Incentive Stock Option and as if all other Rights which are
Related to Incentive Stock Options were Incentive Stock Options.
Notwithstanding any other provision of the Plan, a Limited Stock Appreciation
Right shall be exercisable only during the period beginning on the first day
following the date of expiration of any "offer" (as such term is hereinafter
defined) and ending on the forty-fifth day following such date.
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A Limited Stock Appreciation Right shall, upon its exercise, entitle the
Participant to whom such Limited Stock Appreciation Right was granted to receive
an amount of cash equal to the amount by which the "Offer Price per Share" (as
such term is hereinafter defined) or the Market Value on the date of such
exercise, as shall have been provided by the Committee in its discretion at the
time of grant, shall exceed the Exercise Price of such Limited Stock
Appreciation Right, multiplied by the number of Shares with respect to which
such Limited Stock Appreciation Right shall have been exercised. Upon the
exercise of a Limited Stock Appreciation Right, any Related Option and/or
Related Stock Appreciation Right shall cease to be exercisable to the extent of
the Shares with respect to which such Limited Stock Appreciation Right was
exercised. Upon the exercise or termination of a Related Option or Related
Stock Appreciation Right, any Related Limited Stock Appreciation Right shall
terminate to the extent of the Shares with respect to which such Related Option
or Related Stock Appreciation Right was exercised or terminated.
For the purposes of this Section 10, the term "Offer" shall mean any tender
offer or exchange offer for Shares other than one made by the Corporation,
provided that the corporation, person or other entity making the offer acquires
pursuant to such offer either (i) 25 % of the Shares outstanding immediately
prior to the commencement of such offer or (ii) a number of Shares which,
together with all other Shares acquired in any tender offer or exchange offer
(other than one made by the Corporation) which expired within sixty days of the
expiration date of the offer in question, equals 25 % of the Shares outstanding
immediately prior to the commencement of the offer in question. The term "Offer
Price per Share" as used in this Section 10 shall mean the highest price per
Share paid in any Offer which Offer is in effect any time during the period
beginning on the sixtieth day prior to the date on which a Limited Stock
Appreciation Right is exercised and ending on the date on which such Limited
Stock Appreciation Right is exercised. Any securities or property which are
part or all of the consideration paid for Shares in the Offer shall be valued in
determining the Offer Price per Share at the higher of (A) the valuation placed
on such securities or property by the corporation, person or other entity making
such Offer or (B) the valuation placed on such securities or property by the
Committee.
11. TERMS AND CONDITIONS OF RESTRICTED STOCK. The Committee shall have
full and complete authority, subject to the limitations of the Plan, to grant
awards of Restricted Stock and, in addition to the terms and conditions
contained in paragraphs (a) through (f) of this Section 11, to provide such
other terms and conditions (which need not be identical among Participants) in
respect of such Awards, and the vesting thereof, as the Committee shall
determine and provide in the agreement referred to in paragraph (d) of this
Section 11.
(a) At the time of an award of Restricted Stock, the Committee shall
establish for each Participant a Restricted Period during which or at the
expiration of which, as the Committee shall determine and provide in the
agreement referred to in paragraph (d) of this Section 11, the Shares awarded as
Restricted Stock shall vest. Subject to any such other terms and conditions as
the Committee shall provide, shares of Restricted Stock may not be sold,
assigned, transferred, pledged or otherwise encumbered by the Participant,
except as hereinafter provided, during the Restricted Period. Except for such
restrictions, and subject to paragraphs (c), (d) and (e) of this Section II and
Section 12 hereof, the Participant as owner of such shares shall have all the
rights of a stockholder, including but not limited to the right to receive all
dividends paid on such shares and the right to vote such shares. The Committee
shall have the authority, in its discretion, to accelerate the time at which
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any or all of the restrictions shall lapse with respect to any shares of
Restricted Stock prior to the expiration of the Restricted Period with
respect thereto, or to remove any or all of such restrictions, whenever it
may determine that such action is appropriate by reason of changes in
applicable tax or other laws or other changes in circumstances occurring
after the commencement of such Restricted Period.
(b) Except as provided in Section 14 hereof, if a Participant ceases
to maintain Continuous Service for any reason (other than death, total or
partial disability or normal or early retirement), unless the Committee shall
otherwise determine, all shares of Restricted Stock theretofore awarded to such
Participant and which at the time of such termination of Continuous Service are
subject to the restrictions imposed by paragraph (a) of this Section 11 shall
upon such termination of Continuous Service be forfeited and returned to the
Corporation. Unless the Committee shall have provided in the agreement referred
to in paragraph (d) of this Section 11 for a ratable lapse of restrictions with
respect to an award of shares of Restricted Stock during the Restricted Period,
if a Participant ceases to maintain Continuous Service by reason of death, total
or partial disability or normal or early retirement, such portion of such shares
of Restricted Stock awarded to such Participant which at the time of such
termination of Continuous Service are subject to the restrictions imposed by
paragraph (a) of this Section 11 as shall be equal to the portion of the
Restricted Period with respect to such shares which shall have elapsed at the
time of such termination of Continuous Service shall be free of restrictions and
shall not be forfeited.
(c) Each certificate in respect of shares of Restricted Stock awarded
under the Plan shall be registered in the name of the Participant and deposited
by the Participant, together with a stock power endorsed in blank, with the
Corporation and shall bear the following (or a similar) legend:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) contained in the Amended and Restated 1993 Stock Option and
Incentive Plan of Fort Bend Holding Corp. and an Agreement entered into
between the registered owner and Fort Bend Holding Corp. Copies of such
Plan and Agreement are on file in the offices of the Secretary of Fort Bend
Holding Corp., 3400 Avenue H, Rosenberg, Texas 77471.
(d) At the time of an award of shares of Restricted Stock, the
Participant may enter into an Agreement with the Corporation in a form specified
by the Committee, agreeing to the terms and conditions of the award and such
other matters as the Committee shall in its sole discretion determine.
(e) At the time of an award of shares of Restricted Stock, the
Committee may, in its discretion, determine that the payment to the Participant
of dividends declared or paid on such right, or specified portion thereof, by
the Corporation shall be deferred until the earlier to occur of (i) the lapsing
of the restrictions imposed under paragraph (a) of this Section 11 or (ii) the
forfeiture of such shares under paragraph (b) of this Section 11, and shall be
held by the Corporation for the account of the Participant until such time. In
the event of such deferral, there shall be credited at the end of each year (or
portion thereof) interest on the amount of the account at the beginning of the
year at a rate per annum as the Committee, in its discretion, may determine.
Payment of deferred
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dividends, together with interest accrued thereon as aforesaid, shall be made
upon the earlier to occur of the events specified in (i) and (ii) of the
immediately preceding sentence.
(f) At the expiration of the restrictions imposed by paragraph (a) of
this Section 11, the Corporation shall redeliver to the Participant (or where
the relevant provision of paragraph (b) of this Section 11 applies in the case
of a deceased Participant, to his legal representative, beneficiary or heir) the
certificate(s) and stock power deposited with it pursuant to paragraph (c) of
this Section 11 and the Shares represented by such certificate(s) shall be free
of the restrictions referred to in paragraph (a) of this Section 11.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of any
change in the outstanding Shares subsequent to the effective date of the Plan by
reason of any reorganization, recapitalization, stock split, stock dividend,
combination or exchange of shares, merger, consolidation or any change in the
corporate structure or Shares of the Corporation, the maximum aggregate number
and class of shares as to which Awards may be granted under the Plan and the
number and class of shares with respect to which Awards theretofore have been
granted under the Plan shall be appropriately adjusted by the Committee, whose
determination shall be conclusive. Any shares of stock or other securities
received, as a result of any of the foregoing, by a Participant with respect to
Restricted Stock shall be subject to the same restrictions and the
certificate(s) or other instruments representing or evidencing such shares or
securities shall be legended and deposited with the Corporation in the manner
provided in Section 11 hereof.
13. EFFECT OF MERGER ON OPTIONS OR RIGHTS. In the event of any merger or
consolidation of the Corporation (other than a merger or consolidation in which
the Corporation is the continuing entity and which does not result in the
outstanding Shares being converted into or exchanged for different securities,
cash or other property, or any combination thereof) pursuant to a plan or
agreement the terms of which are binding upon all stockholders of the
Corporation (except to the extent that dissenting stockholders may be entitled,
under statutory provisions or provisions contained in the certificate of
incorporation, to receive the appraised or fair value of their holdings), any
Participant to whom an Option or Right has been granted shall have the right
(subject to the provisions of the Plan and any limitation applicable to such
Option or Right), thereafter and during the term of each such Option or Right,
to receive upon exercise of any such Option or Right an amount equal to the
excess of the fair market value on the date of such exercise of the securities,
cash or other property, or combination thereof, receivable upon such merger,
consolidation or combination in respect of a Share over the Exercise Price of
such Right or Option, multiplied by the number of Shares with respect to which
such Option or Right shall have been exercised. Such amount may be payable
fully in cash, fully in one or more of the kind or kinds of property payable in
such merger, consolidation or combination, or partly in cash and partly in one
or more of such kind or kinds of property, all in the discretion of the
Committee.
14. EFFECT OF CHANGE IN CONTROL. Each of the events specified in the
following clauses (i) through (iii) of this Section 14 shall be deemed a "change
of control": (i) any third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, shall become the beneficial
owner of shares of the Corporation with respect to which 25 % or more of the
total number of votes for the election of the Board of Directors of the
Corporation may be cast, (ii) as a result of, or in connection with, any cash
tender offer, merger or other business combination,
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sale of assets or contested election, or combination of the foregoing, the
persons who were directors of the Corporation shall cease to constitute a
majority of the Board of Directors of the Corporation or (iii) the
shareholders of the Corporation shall approve an agreement providing either
for a transaction in which the Corporation will cease to be an independent
publicly owned entity or for a sale or other disposition of all or
substantially all the assets of the Corporation; provided, however, that the
occurrence of any such events shall not be deemed a ''change in control" if,
prior to such occurrence, a resolution specifically approving such occurrence
shall have been adopted by at least a majority of the Board of Directors of
the Corporation. If the Continuous Service of any Participant of the
Corporation or any Affiliate is involuntarily terminated for whatever reason,
at any time within eighteen months after a change in control, unless the
Committee shall have otherwise provided in the agreement referred to in
paragraph (d) of Section 11 hereof, any Restricted Period with respect to
Restricted Stock theretofore awarded to such Participant shall lapse upon
such termination and all Shares awarded as Restricted Stock shall become
fully vested in the Participant to whom such Shares were awarded. If a
tender offer or exchange offer for Shares (other than such an offer by the
Corporation) is commenced, or if the event specified in clause (iii) above
shall occur, unless the Committee shall have otherwise provided in the
instrument evidencing the grant of an Option or Stock Appreciation Right, all
Options and Stock Appreciation Rights theretofore granted and not fully
exercisable shall become exercisable in full upon the happening of such event
and shall remain so exercisable for a period of sixty days following such
date, after which they shall revert to being exercisable in accordance with
their terms; provided, however, that no Option or Stock Appreciation Right
which has previously been exercised or otherwise terminated shall become
exercisable.
15. ASSIGNMENTS AND TRANSFERS. No Award nor any right or interest of a
Participant under the Plan in any instrument evidencing any Award under the Plan
may be assigned, encumbered or transferred except, in the event of the death of
a Participant, by will or the laws of descent and distribution or in the case of
an Award other than an Incentive Stock Option, pursuant to a qualified domestic
relations order as defined in the Code or Title I of the ERISA or the rules
thereunder.
16. EMPLOYEE RIGHTS UNDER THE PLAN. No director, officer or employee
shall have a right to be selected as a Participant nor, having been so selected,
to be selected again as a Participant and no director, officer, employee or
other person shall have any claim or right to be granted an Award under the Plan
or under any other incentive or similar plan of the Corporation or any
Affiliate. Neither the Plan nor any action taken thereunder shall be construed
as giving any employee any right to be retained in the employ of the Corporation
or any Affiliate.
17. DELIVERY AND REGISTRATION OF STOCK. The Corporation's obligation to
deliver Shares with respect to an Award shall, if the Committee so requests, be
conditioned upon the receipt of a representation as to the investment intention
of the Participant to whom such Shares are to be delivered, in such form as the
Committee shall determine to be necessary or advisable to comply with the
provisions of the Securities Act of 1933 or any other Federal, state or local
securities legislation or regulation. It may be provided that any
representation requirement shall become inoperative upon a registration of the
Shares or other action eliminating the necessity of such representation under
such Securities Act or other securities legislation. The Corporation shall not
be required to deliver any Shares under the Plan prior to (i) the admission of
such shares to listing on any stock exchange on which Shares may then be listed,
and (ii) the completion of such
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registration or other qualification of such Shares under any state or Federal
law, rule or regulation, as the Committee shall determine to be necessary or
advisable.
18. WITHHOLDING TAX. Upon the termination of the Restricted Period with
respect to any shares of Restricted Stock (or at any such earlier time, if any,
that an election is made by the Participant under Section 83(b) of the Code, or
any successor provision thereto, to include the value of such shares in taxable
income), the Corporation shall have the right to require the Participant or
other person receiving such shares to pay the Corporation the amount of any
taxes which the Corporation is required to withhold with respect to such shares,
or, in lieu thereof, to retain or sell without notice, a sufficient number of
shares held by it to cover the amount required to be withheld. The Corporation
shall have the right to deduct from all dividends paid with respect to shares of
Restricted Stock the amount of any taxes which the Corporation is required to
withhold with respect to such dividend payments.
The Corporation shall have the right to deduct from all amounts paid in
cash with respect to the exercise of a Right under the Plan any taxes required
by law to be withheld with respect to such cash payments. Where a Participant
or other person is entitled to receive Shares pursuant to the exercise of an
Option or Right pursuant to the Plan, the Corporation shall have the right to
require the Participant or such other person to pay the Corporation the amount
of any taxes which the Corporation is required to withhold with respect to such
Shares, or, in lieu thereof, to retain, or sell without notice, a number of such
Shares sufficient to cover the amount required to be withheld.
19. AMENDMENT OR TERMINATION. The Board of Directors of the Corporation
may amend, suspend or terminate the Plan or any portion thereof at any time, but
(except as provided in Section 12 hereof) no amendment shall be made without
approval of the stockholders of the Corporation which shall (i) materially
increase the aggregate number of Shares with respect to which Awards may be made
under the Plan, (ii) materially increase the aggregate number of Shares which
may be subject to Awards to Participants who are not Employees or (iii) change
the class of persons eligible to participate in the Plan; provided, however,
that no such amendment, suspension or termination shall impair the rights of any
Participant, without his consent, in any Award theretofore made pursuant to the
Plan.
20. EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become effective upon
its adoption by the Board of Directors of the Corporation, subject to the
Association converting to a stock institution and approval of the Plan by vote
of the holders of a majority of the outstanding shares of the Corporation
entitled to vote on the adoption of the Plan. It shall continue in effect for a
term of ten years unless sooner terminated under Section 19 hereof.
21. INITIAL GRANT. By, and simultaneously with, the adoption of this
Plan, each member of the Board of Directors of the Corporation and/or the
Association at the time of the Association's conversion to stock form, and each
newly elected member as of the date of his election to the Board of Directors of
the Corporation and/or the Association, who is not a full-time Employee, is
hereby granted Options to purchase an amount of shares equal to 3,839 Shares and
100 Shares, respectively. Each such Option shall be evidenced by a
Non-Qualified Stock Option Agreement in a form approved by the Board of
Directors and shall be subject in all respects to the terms and conditions of
this Plan, which are controlling.
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EXHIBIT 4.5
FORT BEND HOLDING CORP.
1993 STOCK OPTION AND INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
ISO NO. __
This option is granted as of _________, 199_, by Fort Bend Holding Corp.
(the "Corporation") to _________________ (the "Optionee"), in accordance with
the following terms and conditions:
1. OPTION GRANT AND EXERCISE PERIOD. Pursuant to the Fort Bend Holding
Corp. 1993 Stock Option and Incentive Plan, as may be from time to time amended
(the "Plan"), the Corporation hereby grants to the Optionee an option (the
"Option") to purchase, pursuant to the Plan and upon the terms and conditions of
the Plan and of this Agreement, an aggregate of _____ shares (the "Option
Shares") of the common stock, par value $.01 per share (the "Common Stock"), of
the Corporation at the price (the "Exercise Price") of $______ per share. A
copy of the Plan, as currently in effect, is incorporated by reference and is
attached to this Agreement.
Subject to the vesting of the Option set forth herein, this Option shall be
exercisable only during the period (the "Exercise Period") commencing on
________, 199_ (the "Commencement Date"), and ending at 5:00 p.m., Rosenberg,
Texas time, on the date ten years after the Commencement Date, such later time
and date being hereinafter referred to as the "Expiration Date." This Option is
fully exercisable as of the date hereof, subject to the Continued Service (as
defined in the Plan) of the Optionee. This Option shall vest and become
exercisable according to the following schedule:
During the Exercise Period, only the vested portion of this Option shall be
exercisable in whole at any time or in part from time to time subject to the
provisions of this Agreement, and further subject to the aggregate Market Value
(as defined in the Plan and as determined as of the date of the grant of this
Option) of the Option Shares with respect to which Incentive Stock Options (as
defined in the Plan as in effect on the date of the grant of this Option) are
exercisable for the first time by the Optionee in any calendar year not
exceeding $ 100,000.
2. METHOD OF EXERCISE OF THIS OPTION. This Option may be exercised
during the Exercise Period by giving written notice to the Corporation
specifying the number of Option Shares to be purchased. The notice must be in
the form prescribed by the committee referred to in Section 3 of the Plan or its
successor (the "Committee") and directed to the address set forth in Section 12
below. The date of exercise is the date on which such notice is received by
the Corporation. Such
<PAGE>
notice must be accompanied by payment in full of the Exercise Price for the
Option Shares to be purchased upon such exercise, Payment shall be made
either (i) in cash, which may be in the form of a check, bank draft, or money
order payable to the Corporation, or (ii) by delivering shares of Common
Stock already owned by the Optionee having a "Market Value" (as defined in
the Plan as in effect on the date of the grant of this Option) equal to the
applicable Exercise Price, or (iii) a combination of cash and such shares.
Promptly after such payment, subject to Section 3 below, the Corporation
shall issue and deliver to the Optionee or other person exercising this
Option a certificate or certificates representing the shares of Common Stock
so purchased, registered in the name of the Optionee (or such other person),
or, upon request in the name of the Optionee (or such other person) and in
the name of another jointly with right of survivorship.
3. DELIVERY AND REGISTRATION OF SHARES OF COMMON STOCK. The
Corporation's obligation to deliver shares of Common Stock hereunder shall, if
the Committee so requests, be conditioned upon the receipt of a representation
as to the investment intention of the Optionee or any other person to whom such
shares are to be delivered, in such form as the Committee shall determine to be
necessary or advisable to comply with the provisions of the Securities Act of
1933, as amended, or any other federal, state or local securities law or
regulation. In requesting any such representation, it may be provided that such
representation requirement shall become inoperative upon the registration of
such shares or other action eliminating the necessity of such representation
under such Securities Act or other securities law or regulation. The
Corporation shall not be required to deliver any shares upon exercise of this
Option prior to (i) the admission of such shares to listing on any stock
exchange or system on which the shares of Common Stock may then be listed, and
(ii) the completion of such registration or other qualification of such shares
under any state or federal law, rule or regulation, as the Committee shall
determine to be necessary or advisable.
4. NON-TRANSFERABILITY OF THIS OPTION. This Option may not be assigned,
encumbered, or transferred except, in the event of the death of the Optionee, by
will or the laws of descent and distribution to the extent provided in Section 5
below. Except as provided herein, this Option is exercisable during the
Optionee's lifetime only by the Optionee. The provisions of this Option shall
be binding upon, inure to the benefit of and be enforceable by the parties
hereto, the successors and assigns of the Corporation and any person to whom
this Option is transferred by will or by the laws of descent and distribution.
5. TERMINATION OF SERVICE OR DEATH OF THE OPTIONEE. Except as provided
in the second or third paragraphs of this Section 5 and notwithstanding any
other provision of this Option to the contrary, this Option shall not be
exercisable unless the Optionee, at the time he exercises this Option, has
maintained "Continuous Service" (as defined in the Plan) since the date of the
grant of this Option.
If the Optionee shall cease to maintain Continuous Service for any reason
(including total or partial disability and normal or early retirement but
excluding death and termination for cause), the Optionee may, but only within
the period of three months immediately succeeding such cessation of Continuous
Service and in no event after the Expiration Date, exercise this Option to the
extent the Optionee was entitled to exercise this Option at the date of
cessation. Notwithstanding the foregoing, if the Optionee ceases to maintain
Continuous Service due to normal retirement, and the Optionee has served the
Corporation or Fort Bend Federal Savings and Loan Association of
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Rosenberg (the "Association") for at least five years, the Optionee may, but
only during, the period of three years immediately succeeding such cessation
of Continuous Service and in no event after the expiration of this Option,
exercise this Option.
In the event of the death of the Optionee while in Continuous Service of
the Corporation or during the three month or three year periods referred to in
the immediately preceding paragraph, the person to whom the Option has been
transferred by will or by the laws of descent and distribution may, but only to
the extent the Optionee was entitled to exercise this Option immediately prior
to his death, exercise this Option at any time within one year following the
death of the Optionee, but in no event later than ten years from the date of the
grant of this Option. Following the death of the Optionee, the Committee may,
as an alternative means of settlement of this Option, elect to pay to the person
to whom this Option is transferred by will or by the laws of descent and
distribution the amount by which the Market Value (as defined in the Plan) per
share of Common Stock on the date of exercise of this Option shall exceed the
Exercise Price per Option Share, multiplied by the number of Option Shares with
respect to which this Option is properly exercised. Any such settlement of this
Option shall be considered an exercise of this Option for all purposes of this
Option and of the Plan.
6. NOTICE OF SALE. The Optionee or any person to whom the Option or the
Option Shares shall have been transferred by will or by the laws of descent and
distribution promptly shall give notice to the Corporation in the event of the
sale or other disposition of Option Shares within the later of (i) two years
from the date of grant of this Option or (ii) one year from the date of exercise
of this Option. Such notice shall specify the number of Option Shares sold or
otherwise disposed of and be directed to the address set forth in Section 12
below.
7. ADJUSTMENTS FOR CHANGES IN CAPITALIZATION OF THE CORPORATION. In the
event of any change in the outstanding shares of Common Stock by reason of any
reorganization, recapitalization, stock split, stock dividend, combination or
exchange of shares, merger, consolidation, or any change in the corporate
structure of the Corporation or in the shares of Common Stock, the number and
class of shares covered by this Option and the Exercise Price shall be
appropriately adjusted by the Committee, whose determination shall be
conclusive.
8. EFFECT OF MERGER. In the event of any merger, consolidation or
combination of the Corporation with or into another corporation (other than a
merger, consolidation, or combination in which the Corporation is the continuing
entity and which does not result in the outstanding shares of Common Stock being
converted into or exchanged for different securities, cash or other property, or
any combination thereof), the Optionee shall have the right (subject to the
provisions of the Plan and the limitations contained herein), thereafter and
during the Exercise Period, to receive upon exercise of this Option an amount
equal to the excess of the fair market value on the date of such exercise of the
securities, cash or other property, or combination thereof, receivable upon such
merger, consolidation or combination in respect of a share of Common Stock over
the Exercise Price, multiplied by the number of option Shares with respect to
which this Option shall have been exercised. Such amount may be payable fully
in cash, fully in one or more of the kind or kinds of property payable in such
merger, consolidation or combination, or partly in cash and partly in one or
more of such kind or kinds of property, all in the discretion of the Committee.
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9. EFFECT OF CHANGE IN CONTROL. If a tender offer or exchange offer for
shares of Common Stock (other than such an offer by the Corporation) is
commenced or if the stockholders of the Corporation shall approve an agreement
providing either for a transaction in which the Corporation will cease to be an
independent publicly owned entity or for a sale or other disposition of all or
substantially all the assets of the Corporation, this Option shall (to the
extent it is not then exercisable) become exercisable in full upon the happening
of such event and shall remain so exercisable for a period of sixty days
following such date after which this Option shall revert to being exercisable in
accordance with the other provisions of this Option; PROVIDED, that the
provisions of this Section 9 shall not be deemed to cause this Option to be
exercisable to the extent it has previously been exercised or otherwise
terminated.
10. STOCKHOLDER RIGHTS NOT GRANTED BY THIS OPTION. The Optionee is not
entitled by virtue hereof to any rights of a stockholder of the Corporation or
to notice of meetings of stockholders or to notice of any other proceedings of
the Corporation.
11. WITHHOLDING TAX. Where the Optionee or another person is entitled to
receive Option Shares pursuant to the exercise of this Option, the Corporation
shall have the right to require the Optionee or such other person to pay to the
Corporation the amount of any taxes which the Corporation or any of its
Affiliates is required to withhold with respect to such Option Shares, or, in
lieu thereof, to retain, or sell without notice, a number of Option Shares
sufficient to cover the amount required to be withheld.
12. NOTICES. All notices hereunder to the Corporation shall be delivered
or mailed to it addressed to the Secretary of Fort Bend Holding Corp., 3400
Avenue H, Rosenberg, Texas 77471. Any notices hereunder to the Optionee shall
be delivered personally or mailed to the Optionee's address noted below. Such
addresses for the service of notices may be changed at any time provided written
notice of the change is furnished in advance to the Corporation or to the
Optionee, as the case may be.
13. PLAN AND PLAN INTERPRETATIONS AS CONTROLLING. This Option and the
terms and conditions herein set forth are subject in all respects to the terms
and conditions of the Plan, which are controlling. All determinations and
interpretations of the Committee shall be binding and conclusive upon the
Optionee or his legal representatives with regard to any question arising
hereunder or under the Plan.
14. OPTIONEE SERVICE. Nothing in this Option shall limit the right of the
Corporation or any of its Affiliates to terminate the Optionee's service as a
director, officer or employee, or otherwise impose upon the Corporation or any
of its Affiliates any obligation to employ or accept the services of the
Optionee.
15. OPTIONEE ACCEPTANCE. The Optionee shall signify his acceptance of the
terms and conditions of this Option by signing in the space provided below and
returning a signed copy hereof to the Corporation at the address set forth in
Section 12 above. In signing this Agreement, the Optionee acknowledges that the
Option was awarded pursuant to the Plan, which qualifies for an exemption from
the reporting requirements of Section 16 of the Securities Exchange Act of 1934.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this INCENTIVE STOCK
OPTION AGREEMENT to be executed as of the date first above written.
FORT BEND HOLDING CORP.
By:
-----------------------------------
Lane Ward
Vice Chairman, President and
Chief Executive Officer
ACCEPTED BY:
--------------------------------------
--------------------------------------
(Street Address)
--------------------------------------
(City, State and Zip Code)
-5-
<PAGE>
EXHIBIT 4.6
FORT BEND HOLDING CORP.
1993 STOCK OPTION AND INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
NQSO NO. _
This option is granted as of ______, 199_ by Fort Bend Holding Corp. (the
"Corporation") to _______________ (the "Optionee"), in accordance with the
following terms and conditions:
1. OPTION GRANT AND EXERCISE PERIOD. Pursuant to the Fort Bend Holding
Corp. 1993 Stock Option and Incentive Plan, as the same may from time to time be
amended (the "Plan"), the Corporation hereby grants to the Optionee an option
(the "Option") to purchase, pursuant to the Plan and upon the terms and
conditions of the Plan and this Agreement, an aggregate of _____ shares (the
"Option Shares") of the common stock, par value $.01 per share ("Common Stock"),
of the Corporation at the price (the "Exercise Price") of ______ per share. A
copy of the Plan, as currently in effect, is incorporated by reference and is
attached to this Agreement.
Subject to the vesting of the Option set forth herein, this Option shall be
exercisable only during the period (the "Exercise Period") commencing on ______,
199_ (the "Commencement Date") and ending at 5:00 p.m., Rosenberg, Texas time,
on the date ten years after the Commencement Date, such later time and date
being hereinafter referred to as the "Expiration Date." This Option is fully
exercisable as of the date hereof, subject to the Continued Service (as defined
in the Plan) of the Optionee. This Option shall vest and become exercisable
according to the following schedule:
During the Exercise Period, only the vested portion of this Option shall be
exercisable in whole at any time or in part from time to time subject to the
terms of this Agreement.
2. METHOD OF EXERCISE OF THIS OPTION. This Option may be exercised at
any time during the Exercise Period by giving written notice to the Corporation
specifying the number of Option Shares to be purchased. The notice must be in
the form prescribed by the committee referred to in Section 3 of the Plan or its
successor (the "Committee") and directed to the address set forth in Section 12
below. The date of exercise is the date on which such notice is received by the
Corporation. Such notice must be accompanied by payment in full for the Option
Shares to be purchased upon such exercise. Payment shall be made either (i) in
cash, which may be in the form of a check, bank draft, or money order payable to
the Corporation, or (ii) by delivering shares of Common Stock already owned by
the Optionee having a "Market Value" (as defined in the Plan as
<PAGE>
in effect on the date of the grant of this Option) equal to the applicable
Exercise Price, or (iii) a combination of cash and such shares. Promptly
after such payment, subject to Section 3 below, the Corporation shall issue
and deliver to the Optionee or other person exercising this Option a
certificate or certificates representing the shares of Common Stock so
purchased, registered in the name of the Optionee (or such other person), or,
upon request, in the name of the Optionee (or such other person) and in the
name of another jointly with right of survivorship.
3. DELIVERY AND REGISTRATION OF SHARES OF COMMON STOCK. The
Corporation's obligation to deliver shares of Common Stock hereunder shall, if
the Committee so requests, be conditioned upon the receipt of a representation
as to the investment intention of the Optionee or any other person to whom such
shares are to be delivered, in such form as the Committee shall determine to be
necessary or advisable to comply with the provisions of the Securities Act of
1933, as amended, or any other federal, state or local securities law or
regulation. In requesting any such representation, it may be provided that such
representation requirement shall become inoperative upon the registration of
such shares or other action eliminating the necessity of such representation
under such Securities Act or other securities law or regulation. The
Corporation shall not be required to deliver any shares upon exercise of this
Option prior to (i) the admission of such shares to listing on any stock
exchange or system on which the shares of Common Stock may then be listed, and
(ii) the completion of such registration or other qualification of such shares
under any state or Federal law, rule or regulation, as the Committee shall
determine to be necessary or advisable.
4. NON-TRANSFERABILITY OF THIS OPTION. This Option may not be assigned,
encumbered, or transferred except, in the event of the death of the Optionee, by
will or the laws of descent and distribution or pursuant to a qualified domestic
relations order, as described in the Plan, to the extent provided in Section 5
below. Except as provided herein, this Option is exercisable during the
Optionee's lifetime only by the Optionee. The provisions of this Option shall
be binding upon, inure to the benefit of and be enforceable by the parties
hereto, the successors and assigns of the Corporation and any person to whom
this Option is transferred by will or by the laws of descent and distribution or
pursuant to a qualified domestic relations order, as described in the Plan.
5. TERMINATION OF SERVICE OR DEATH OF THE OPTIONEE. Except as provided
in the second or third paragraphs of this Section 5 and notwithstanding any
other provision of this Option to the contrary, this Option shall not be
exercisable unless the Optionee, at the time he exercises this Option, has
maintained "Continuous Service" (as defined in the Plan) since the date of the
grant of this Option.
If the Optionee shall cease to maintain Continuous Service for any reason
(including total or partial disability and normal or early retirement, but
excluding death and termination for cause), the Optionee may, but only within
the period of three months immediately succeeding such cessation of Continuous
Service and in no event after the Expiration Date, exercise this Option to the
extent the Optionee was entitled to exercise this Option at the date of
cessation. Notwithstanding the foregoing, if the Optionee ceases to maintain
Continuous Service due to normal retirement and the Optionee has served the
Corporation or Fort Bend Federal Savings and Loan Association of Rosenberg (the
"Association") for at least five years, the Optionee may, but only during the
period of three years immediately succeeding such cessation of Continuous
Service, and in no event after the expiration of this Option, exercise this
Option.
-2-
<PAGE>
In the event of the death of the Optionee while in Continuous Service of
the Corporation or during the three month or three year periods referred to in
the immediately preceding paragraph, the person to whom the Option has been
transferred by will or by the laws of descent and distribution may, but only to
the extent the Optionee was entitled to exercise this Option immediately prior
to his death, exercise this Option at any time within one year following the
death of the Optionee, but in no event later than ten years from the date of the
grant of this Option. Following the death of the Optionee, the Committee may,
as an alternative means of settlement of this Option, elect to pay to the person
to whom this Option is transferred by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations order, as described
in the Plan, the amount by which the Market Value (as defined in the Plan) per
share of Common Stock on the date of exercise of this Option shall exceed the
Exercise Price per Option Share, multiplied by the number of Option Shares with
respect to which this Option is properly exercised. Any such settlement of this
Option shall be considered an exercise of this Option for all purposes of this
Option and of the Plan.
6. NOTICE OF SALE. The Optionee or any person to whom the Option or the
Option Shares shall have been transferred by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations order, as described
in the Plan, promptly shall give notice to the Corporation in the event of the
sale or other disposition of Option Shares within the later of (i) two years
from the date of grant of this Option or (ii) one year from the date of exercise
of this Option. Such notice shall specify the number of Option Shares sold or
otherwise disposed of and be directed to the address set forth in Section 12
below.
7. ADJUSTMENTS FOR CHANGES IN CAPITALIZATION OF THE CORPORATION. In the
event of any change in the outstanding shares of Common Stock by reason of any
reorganization, recapitalization, stock split, stock dividend, combination or
exchange of shares, merger, consolidation, or any change in the corporate
structure of the Corporation or in the shares of Common stock, the number and
class of shares covered by this Option and the Exercise Price shall be
appropriately adjusted by the Committee, whose determination shall be
conclusive.
8. EFFECT OF MERGER. In the event of any merger, consolidation or
combination of the Corporation with or into another corporation (other than a
merger, consolidation, or combination in which the Corporation is the continuing
entity and which does not result in the outstanding shares of Common Stock being
converted into or exchanged for different securities, cash or other property, or
any combination thereof), the Optionee shall have the right (subject to the
provisions of the Plan and the limitations contained herein), thereafter and
during the Exercise Period, to receive upon exercise of this Option an amount
equal to the excess of the fair market value on the date of such exercise of the
securities, cash or other property, or combination thereof, receivable upon such
merger, consolidation or combination in respect of a share of Common Stock over
the Exercise Price, multiplied by the number of Option Shares with respect to
which this Option shall have been exercised. Such amount may be payable fully
in cash, fully in one or more of the kind or kinds of property payable in such
merger, consolidation or combination, or partly in cash and partly in one or
more of such kind or kinds of property, all in the discretion of the Committee.
-3-
<PAGE>
9. EFFECT OF CHANGE IN CONTROL. If a tender offer or exchange offer for
shares of Common Stock (other than such an offer by the Corporation) is
commenced, or if the stockholders of the Corporation shall approve an agreement
providing either for a transaction in which the Corporation will cease to be an
independent publicly owned entity or for a sale or other disposition of all or
substantially all the assets of the Corporation, this Option shall (to the
extent it is not then exercisable) become exercisable in full upon the happening
of such event and shall remain so exercisable for a period of sixty days
following such date after which this Option shall revert to being exercisable in
accordance with the other provisions of this Option; PROVIDED, that the
provisions of this Section 9 shall not be deemed to cause this Option to be
exercisable to the extent it has previously been exercised or otherwise
terminated.
10. STOCKHOLDER RIGHTS NOT GRANTED BY THIS OPTION. The Optionee is not
entitled by virtue hereof to any rights of a stockholder of the Corporation or
to notice of meetings of stockholders or to notice of any other proceedings of
the Corporation.
11. WITHHOLDING TAX. Where the Optionee or another person is entitled to
receive Option Shares pursuant to the exercise of this Option, the Corporation
shall have the right to require the Optionee or such other person to pay to the
Corporation the amount of any taxes which the Corporation or any of its
Affiliates is required to withhold with respect to such Option Shares, or, in
lieu thereof, to retain, or sell without notice, a number of Option Shares
sufficient to cover the amount required to be withheld.
12. NOTICES. All notices hereunder to the Corporation shall be delivered
or mailed to it addressed to the Secretary of Fort Bend Holding Corp., 3400
Avenue H, Rosenberg, Texas 77471. Any notices hereunder to the Optionee shall
be delivered personally or mailed to the Optionee's address noted below. Such
addresses for the service of notices may be changed at any time provided written
notice of the change is furnished in advance to the Corporation or the Optionee,
as the case may be.
13. PLAN AND PLAN INTERPRETATIONS AS CONTROLLING. This Option and the
terms and conditions herein set forth are subject in all respects to the term
and conditions of the Plan, which are controlling. All determinations and
interpretations of the Committee shall be binding and conclusive upon the
Optionee or his legal representatives with regard to any question arising
hereunder or under the Plan.
14. OPTIONEE SERVICE. Nothing in this Option shall limit the rights of
the Corporation or any of its Affiliates to terminate the Optionee's service as
a director or otherwise impose upon the Corporation or any of its Affiliates any
obligation to employ or accept the services of the Optionee.
15. OPTIONEE ACCEPTANCE. The Optionee shall signify his acceptance of the
terms and conditions of this Option by signing in the space provided below and
returning a signed copy hereof to the Corporation at the address set forth in
Section 12 above. In signing this Agreement, the Optionee acknowledges that the
Option was awarded pursuant to the Plan, which qualifies for an exemption from
the reporting requirements of Section 16 of the Securities Exchange Act of 1934.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this NON-QUALIFIED STOCK
OPTION AGREEMENT to be executed as of the date first above written.
FORT BEND HOLDING CORP.
BY:
------------------------------------
Lane Ward
Vice Chairman, President and
Chief Executive Officer
ACCEPTED BY:
---------------------------------------
---------------------------------------
(Street Address)
---------------------------------------
(City, State and Zip Code)
-5-
<PAGE>
EXHIBIT 5.1
(713) 758-2128 (713) 615-5282
April 13, 1999
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
Fort Bend Holding Corp. of an aggregate of up to 295,602 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 Fort Bend Holding Corp.
1993 Stock Option and Incentive Plan, which Plan was assumed by the Company
effective as of the opening of business on April 1, 1999. 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.
<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, dated
February 12, 1999, on our audits of the consolidated financial statements and
financial statement schedule of Southwest Bancorporation of Texas, Inc. and
Subsidiary as of December 31, 1998 and 1997, and for the years ended December
31, 1998, 1997, and 1996, which reports are included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1998.
PricewaterhouseCoopers LLP
Houston, Texas
April 13, 1999
