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Exhibit (d)(5)
July 30, 2001
International Bancshares Corporation
0000 Xxx Xxxxxxxx Xxx.
Xxxxxx, Xxxxx 00000
Re: Shareholder Agreement
Dear Sirs:
The undersigned (the "Shareholder") understands that,
concurrently with the execution of this letter agreement (the "Shareholder
Agreement"), International Bancshares Corporation, a Texas corporation ("IBC"),
NBC Acquisition Corp., a Texas corporation and a wholly-owned subsidiary of IBC
("Acquisition Sub"), and National Bancshares Corporation of Texas, a Texas
corporation (the "Company"), are entering into an Agreement and Plan of Merger,
dated the date hereof, as the same may be amended from time to time (the "Merger
Agreement"), providing for, among other things, the offer by Acquisition Sub to
purchase the shares of common stock of the Company (the "Offer") and the
subsequent merger of Acquisition Sub with and into the Company on the terms and
conditions set forth therein (the "Merger").
The Shareholder is a shareholder of the Company and is
entering into this Shareholder Agreement to induce you to enter into the Merger
Agreement and to consummate the transactions contemplated thereby. Capitalized
terms used but not defined herein shall have the same meanings as in the Merger
Agreement.
The Shareholder confirms its agreement with you and
Acquisition Sub as follows:
1. The Shareholder represents and warrants that the number of
Shares set forth opposite the Shareholder's name on Schedule I annexed hereto is
as of the date hereof the total number of Shares of which the Shareholder or its
affiliates (as defined under the Securities Exchange Act of 1934, as amended)
are the lawful record or beneficial owner. Except as set forth in Schedule I,
neither the Shareholder nor any of its affiliates, owns or holds any rights to
acquire any additional shares of the capital stock of the Company (by exercise
of stock options or otherwise) or any interest therein or any voting rights with
respect to any additional Shares. The Shareholder, together with other persons
who are signatories to this Shareholder Agreement, has sole voting power and
sole power to issue instructions with respect to the matters set forth in
paragraph 4 herein, sole power of disposition, sole power to demand appraisal
rights and sole power to engage in the actions set forth in paragraph 4 herein,
in each case with respect to the Shares set forth on Schedule I hereto beside
the name of the Shareholder.
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International Bancshares Corporation
July 30, 2001
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2. The Shareholder agrees that it will not, will not permit
any company, trust or other person or entity controlled by the Shareholder to,
and will not permit any person controlled by the Shareholder to, contract to
sell, sell or otherwise transfer or dispose of any Shares or any interest
therein or securities convertible therein to or any voting rights with respect
thereto, other than pursuant to the terms of the Merger Agreement until such
time as the Merger Agreement is terminated, except (i) as permitted pursuant to
the Merger Agreement, (ii) as required by law, (iii) consistent with the
Shareholder's fiduciary duty, if any, or (iv) in connection with a Superior
Proposal (as defined in the Merger Agreement), and the Shareholder agrees that
it shall not take any action which materially diminishes the benefits of this
Shareholder Agreement to IBC or Acquisition Sub.
3. Except (i) as permitted pursuant to the Merger Agreement,
(ii) as required by law, (iii) consistent with the Shareholder's fiduciary duty,
if any, or (iv) in connection with a Superior Proposal (as defined in the Merger
Agreement, the Shareholder agrees that it will not, and will not permit any
company, trust or other entity or person controlled by the Shareholder to, and
will not authorize any of its affiliates to, directly or indirectly (including
through its officers, directors, employees or other representatives) to solicit,
initiate, knowingly encourage or otherwise facilitate, or furnish or disclose
non-public information in furtherance of, an Acquisition Proposal (as defined in
the Merger Agreement) or negotiate or otherwise engage in discussions with any
person (other than IBC and its affiliates, or their respective directors,
officers, employees, agents and representatives) with respect to any Acquisition
Proposal or enter into any agreement, arrangement or understanding with respect
to any Acquisition Proposal or agree to or otherwise assist in the effectuation
of any Acquisition Proposal; provided, however, that nothing herein shall
restrict the Shareholder from taking any action in his capacity, if any, as a
director or officer of the Company to the extent a director or officer would be
permitted to take such action under the Merger Agreement.
4. Except (i) as permitted pursuant to the Merger Agreement,
(ii) as required by law, (iii) consistent with the Shareholder's fiduciary duty,
if any, or (iv) in connection with a Superior Proposal (as defined in the Merger
Agreement, the Shareholder agrees that all of the Shares beneficially owned by
the Shareholder, or over which the Shareholder has voting power or control,
directly or indirectly (including any Shares beneficial ownership of which is
acquired by the Shareholder after the date hereof), (a) to the extent so
beneficially owned or controlled prior to the expiration of the Offer (including
any extension(s) thereof), shall be validly tendered pursuant thereto by the
fifth Business Day following commencement of the Offer (or, to the extent such
beneficial ownership or control is acquired subsequent to such fifth Business
Day, within three Business Days after such acquisition) and not withdrawn, and
(b) to the
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International Bancshares Corporation
July 30, 2001
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extent so beneficially owned or controlled at the record date for any meeting of
the Company's shareholders, however called, or in connection with any written
consent of the shareholders of the Company, shall be voted (or caused to be
voted) (i) in favor of the approval of Merger Agreement and each of the
transactions and other actions contemplated by the Merger Agreement, and any
actions required in furtherance thereof; (ii) against any action or agreement
that may be reasonably expected to result in a breach in any material respect of
any covenant, representation or warranty or any other obligation of the Company
under the Merger Agreement; and (iii) except as otherwise agreed to in writing
in advance by IBC, against the following actions (other than the Merger and the
transactions with you or your affiliates contemplated by the Merger Agreement):
(1) any extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company or any of its subsidiaries and
any party other than IBC or any subsidiary of IBC (including Acquisition Sub);
(2) any sale, lease or transfer of a material amount of assets of the Company or
any of its subsidiaries or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries; (3) (a) any change in the
majority of the Board of Directors of the Company; (b) any material change in
the present capitalization of the Company or any amendment of the Company's
articles of incorporation or bylaws or similar organizational documents; (c) any
other material change in the Company's corporate structure or business; or (d)
any other action, in each case, the consummation of which is intended, or would
reasonably be expected, to impede, interfere with, delay, postpone, discourage
or materially adversely affect the Merger or the transactions contemplated by
the Merger Agreement. The Shareholder shall not enter into any agreement or
understanding with any person or entity to vote or give instructions in any
manner inconsistent with clauses (i), (ii) or (iii) of the preceding sentence.
The Shareholder agrees and acknowledges that it consents to the transactions
contemplated by the Merger Agreement, this Shareholder Agreement and the other
Shareholder Agreements by and among IBC, Acquisition Sub and certain other
shareholders of the Company for purposes of any applicable anti-takeover statute
or regulation, including, without limitation, under the Texas Business
Corporation Act.
5. Nothing contained in this Shareholder Agreement shall be
deemed to vest in IBC or Acquisition Sub any direct or indirect ownership or
incidence of ownership of or with respect to any Shares. All rights, ownership
and economic benefits of and relating to the Shares shall remain vested in and
belong to the Shareholder, and neither IBC nor Acquisition Sub shall have any
authority to manage, direct, superintend, restrict, regulate govern or
administer any of the policies or operations of the Company or exercise any
power or authority to direct the Shareholder in the voting of the Shares, except
as otherwise provided herein, or in the performance of the Shareholder's duties
or responsibilities as a shareholder of the Company.
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International Bancshares Corporation
July 30, 2001
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6. The Shareholder has the legal capacity, power and authority
to enter into and perform all of such Shareholder's obligations under this
Shareholder Agreement. The execution, delivery and performance of this
Shareholder Agreement by such Shareholder will not violate any other agreement
to which such Shareholder is a party including, without limitation, any trust
agreement, voting agreement, shareholders agreement or voting trust. This
Shareholder Agreement has been duly and validly executed and delivered by the
Shareholder and is enforceable against the Shareholder in accordance with its
terms except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or affecting creditors
generally or by general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law). There is no
beneficiary or holder of any interest of the Shareholder or any trust of which
the Shareholder is a trustee whose consent is required for the execution and
delivery of this Shareholder Agreement or the consummation of the transactions
contemplated hereby. If the Shareholder is married and the Shareholder's Shares
constitute community property, this letter agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement of, the
Shareholder's spouse, enforceable against such spouse in accordance with its
terms.
7. Except as described on Schedule I, the Shareholder's Shares
(as listed on Schedule I) and the certificates representing such Shares are now
and at all times during the term hereof will be held by the Shareholder, or by a
nominee or custodian for the benefit of the Shareholder, free and clear of all
liens, claims, security interests, rights of first refusal or offer, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances or proxies arising
hereunder.
8. The Shareholder agrees that damages are an inadequate
remedy for the breach by the Shareholder of any term or condition of this
Shareholder Agreement and that IBC and Acquisition Sub shall each be entitled,
without limitation of other available rights or remedies, to specific
performance, a temporary restraining order and preliminary and permanent
injunctive relief in order to enforce the Shareholder's agreements herein.
9. This Shareholder Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
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10. This Shareholder Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, regardless of the
laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
11. Whenever possible, each provision or portion of any
provision of this Shareholder Agreement will be interpreted in such manner as to
be effective and valid under applicable law but if any provision or portion of
any provision of this Shareholder Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Shareholder Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or portion
of any provision had never been contained herein. Each party hereto irrevocably
and unconditionally consents and submits to the exclusive jurisdiction of the
courts of the United States of America located in the State of Texas for any
actions, suits or proceedings arising out of or relating to this agreement and
the transactions contemplated hereby, and further agrees that service of any
process, summons, notice or document by U.S. registered or certified mail to the
Shareholder at the Shareholder's address set forth on Schedule I or to IBC or
Acquisition Sub at the address set forth above, Attention: Xxxxxx X. Xxxxx,
President, shall be effective service of process for any action, suit or
proceeding brought against such party in such court (and such address shall be
also used for notices under this Shareholder Agreement). Each party hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Shareholder
Agreement or the transactions contemplated hereby, in the courts of the United
States of America located in Bexar County, Texas, and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
12. This Shareholder Agreement shall terminate at the earlier
of (i) the Effective Time or (ii) the termination of the Merger Agreement in
accordance with its terms; provided, however, that no termination of this
Shareholder Agreement shall affect any rights or remedies of IBC or Acquisition
Sub with respect to any breach of this Shareholder Agreement on the part of the
Shareholder occurring prior to the termination hereof. Please confirm that the
foregoing correctly states the understanding between us by signing and returning
to me a counterpart hereof, whereupon this will become a legal and binding
obligation.
Very truly yours,
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International Bancshares Corporation
July 30, 2001
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/s/ XXXX X. XXXXXXXXX
________________________
Xxxx X. Xxxxxxxxx
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International Bancshares Corporation
July 30, 2001
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Confirmed as of the date
first above written.
INTERNATIONAL BANCSHARES CORPORATION
By: /s/ XXXXXX X. XXXXX
---------------------------------
Xxxxxx X. Xxxxx, President
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SCHEDULE I
NAME AND ADDRESS
OF SHAREHOLDER NUMBER OF SHARES NUMBER OF VESTED OPTIONS
Xxxxx Xxxxxx 305,400 0
c/o National Bancshares Corporation
00000 Xxxxxxx 000 Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
Xxxxxx X. Xxxxxx 136,631 10,400
c/o National Bancshares Corporation
00000 Xxxxxxx 000 Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
Xxxx X. Xxxxxxxxx 61,836 12,400
c/o National Bancshares Corporation
00000 Xxxxxxx 000 Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxx 5,000 40,600
c/o National Bancshares Corporation
00000 Xxxxxxx 000 Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
