EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and entered
into by and between Texas Capital Bancshares, Inc. (the "Company"), having a
business address at 0000 XxXxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 and
[_______________] ("Executive") having a mailing address at
[__________________________________________].
RECITALS
The Board of Directors of the Company (the "Board of Directors") has
determined that it is in the best interests of the Company to retain the
Executive's services and to reinforce and encourage the continued attention and
dedication of members of the Company's management, including the Executive, to
their assigned duties without distraction in potentially disturbing
circumstances arising from the possibility of a change in the control of the
Company or the assertion of claims and actions against employees.
The Company wishes to assure itself of the services of the Executive for
the period provided in this Agreement and the Executive wishes to serve in the
employ of the Company on the terms and conditions hereinafter provided.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Company and the Executive hereby agree as follows:
1. Employment. Upon the terms and subject to the conditions contained in
this Agreement, the Executive agrees to provide full-time services for the
Company during the Employment Term. The Executive agrees to devote his best
efforts to the business of the Company, and shall perform his duties in a
diligent, trustworthy, and business-like manner, all for the purpose of
advancing the business of the Company. The Executive agrees to devote his entire
business time, attention, skill and energy exclusively to the business of the
Company. The Executive is encouraged to engage in appropriate civic, charitable
or religious activities and devote a reasonable amount of time to private
investments or boards or other activities provided that such activities do not
interfere or conflict with the Executive's responsibilities and are not likely
to be contrary to the Company's interests.
2. Duties. The duties of the Executive shall be those duties which can
reasonably be expected to be performed by a person with the title of
[_______________] and such other duties as shall be set forth as Attachment A
hereto. The Executive will comply with the lawful policies and standards that
the Company may establish or modify from time to time.
3. Employment Term. Subject to the terms and conditions hereof, the
Company agrees to employ the Executive for a term commencing on August 1, 2002
(the "Effective Date") and continuing through August 1, 2004 (the "Employment
Term"), unless renewed with the written agreement of both parties hereto before
the expiration hereof.
4. Salary and Benefits.
(a) Base Salary. The Company shall, during the Employment Term, pay
the Executive a base salary of at least [$_____] per year, payable in
accordance with the Company's regular payroll practice in effect from time
to time, less applicable withholding and payroll deductions. The Company
agrees to consider increasing such base salary at least annually during the
Employment Term, but shall not be obligated to effectuate such an increase.
(b) Bonus. During the Employment Term, the Executive will be
included in the Executive Bonus Plan adopted and revised from time to time
by the Board of Directors.
(c) Equity Compensation. Concurrently with the execution of
this Agreement, the Executive shall receive a restricted stock award under
the Company's 1999 Omnibus Stock Plan upon the terms and conditions set
forth in Attachment B to this Agreement, which is hereby incorporated
herein by reference.
(d) Employee Benefits and Perquisites. The Executive shall be
entitled to participate in the employee benefit programs and receive other
perquisites generally available to employees of the Company holding
positions similar to the Executive.
5. Termination of Employment. The Board of Directors of the Company
or the Executive may terminate the employment of the Executive at any time
subject to the provisions of this Section 5.
(a) Voluntary Resignation or Termination for Cause. If the
Executive shall voluntarily terminate his employment for other than Good
Reason, or if the Company shall terminate the employment of the Executive
for Cause, the Employment Term shall terminate immediately and the Company
shall have no further obligation to make any payment under this Agreement
which has not already become payable, but has not yet been paid.
Notwithstanding the foregoing, with respect to any stock options or other
plans or programs in which the Executive is participating at the time of
termination of his employment, the Executive's rights and benefits under
each such plan shall be determined in accordance with the terms,
conditions, and limitations of the plan and any separate agreement executed
by the Executive which may then be in effect.
For the purposes of this Agreement, the Company shall have "Cause" to
terminate the Executive's employment hereunder upon (i) the continued
failure by the Executive after notice to perform his duties with the
Company (other than any such failure resulting from death or incapacity due
to physical or mental illness), (ii) a conviction of, or a plea of "guilty"
or "no contest" to, a felony or a crime involving dishonesty or a breach of
trust, (iii) an act or omission that constitutes gross misconduct or moral
turpitude, or (iv) a breach of any duty owed to the Company, including but
not limited to the duties of loyalty and confidentiality that is injurious
to the Company.
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(b) Termination Without Cause; Resignation for Good Reason. If during
the term of this Agreement, the Executive's employment is terminated by
by the Company without Cause or the Executive voluntarily terminates his
employment for Good Reason, and the Executive executes a Release of any and
all claims relating to or arising from his employment that he may have
against the Company Group (as defined in Section 7 below) or any officer,
director, agent, or employee of any entity that is part of the Company
Group based on any act or ommission through the date Executive's employment
terminates ("Date of Termination"):
(i) The Company shall increase the annual compensation of
the Executive to the "adjusted compensation" as defined herein through
the end of the Employment Term; provided, however, if at such time
there is less than one year remaining in the Employment Term, the
Company shall continue to pay Executive the adjusted compensation for
at least one year in such event.
(ii) The Company shall maintain in full force and effect for
the continued benefit of the Executive, for a one year period after the
Date of Termination, all health insurance benefits provided that his
continued participation is possible under the general terms and
provisions of such health insurance plans and programs.
For purposes of this Agreement, "Good Reason" shall mean:
(A) Without his express written consent, the assignment of
Executive to a position organizationally or functionally inferior to
his position with the Company on the date of this Agreement;
(B) A reduction by the Company in the Executive's base salary as
in effect on the date hereof, unless such reduction is a proportionate
reduction of the compensation of the Executive and all other senior
officers of the Company as a part of a Company-wide effort to enhance
the financial condition of the Company;
(C) The Company's requiring the Executive to be based anywhere
other than the Dallas/Fort Worth Metroplex, except for required travel
on the Company's business;
(D) The failure by the Company to continue to allow Executive
to be eligible to participate in any stock option plan in which the
Executive is participating (or plans providing substantially similar
benefits) without the Executive's consent.
For purposes of this Agreement, "adjusted compensation" shall mean the
annual base salary of Executive then in effect, plus the bonus paid to
Executive for the preceding calendar year, multiplied by 150%.
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(c) Death or Disability. The Company may terminate the Executive's
employment upon the death or Disability of the Executive. As used herein,
"Disability" means an illness or other disability which prevents the
Executive from discharging his responsibilities under this Agreement for a
period of 180 calendar days during any calendar year during the Employment
Term, as determined in good faith by the Board of Directors. If the Company
terminates the Executive's employment upon the death or Disability of the
Executive, the Company shall continue to pay the Executive the base salary
that would have been due through the first anniversary of the Date of
Termination.
(d) Notice of Termination. Any termination of this Agreement by the
Company for Cause, without Cause or as a result of the Executive's
Disability, or by the Executive for Good Reason, shall be communicated by
Notice of Termination to the other party hereto given in accordance with
this Agreement. For purposes of this Agreement, a "Notice of Termination"
means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated
and (iii) specifies the Date of Termination, if such date is other than the
date of receipt of such notice.
6. Change In Control.
(a) For purposes of this Agreement, a "Change in Control" of the
Company shall be deemed to have occurred at such time as:
(i) any "person" (as the term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of voting securities of the Company representing 25% or more of the
Company's outstanding voting securities or rights to acquire such
securities except for any voting securities issued or purchased under
any employee benefit plan of the Company or its Subsidiaries; or
(ii) individuals who constitute the Board of Directors on the
date hereof (the "Incumbent Board") cease for any reason to constitute
at least a majority thereof, provided that any person becoming a
director subsequent to the date hereof whose election was approved by
a vote of at least three-quarters of the directors comprising the
Incumbent Board, or whose nomination for election by the Company's
stockholders was approved by a Nominating Committee solely composed of
members which are Incumbent Board members, shall be, for purposes of
this clause (ii), considered as though he were a member of the
Incumbent Board; or
(iii) a plan of reorganization, merger, consolidation, sale of all
or substantially all of the assets of the Company or similar
transaction occurs or is effectuated in which the Company is not the
resulting entity; provided, however,
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that such an event listed above will be deemed to have occurred or to
have been effectuated upon receipt of all required regulatory
approvals not including the lapse of any required waiting periods; or
(iv) the Board of Directors determines in its sole discretion
that a Change in Control has occurred.
(b) If, during the Employment Term, a Change in Control occurs, the
Executive shall be entitled to the benefits provided in paragraphs (c) and
(d) of this Section 6 upon (i) the termination of the Executive's
employment by the Company without Cause after the occurrence of such Change
of Control, or (ii) the termination of the Executive's employment by the
Executive for Good Reason after the occurrence of such Change of Control.
(c) Upon the Executive's entitlement to benefits pursuant to Section
6(b), the Company shall pay Executive, as liquidated damages in place of
any amounts otherwise payable to the Executive under Section 5, a sum equal
to two times the Executive's Annual Compensation during the most recently
completed fiscal year. As used herein, "Annual Compensation" shall include
Base Salary and any bonuses paid to the Executive in any such year. Such
payment shall be made in a lump sum no later than 30 days after the Date of
Termination. Such payments shall not be reduced in the event Executive
obtains other employment following termination of employment.
(d) Upon the Executive's entitlement to benefits pursuant to Section
6(b), the Company will cause to be continued life, medical and dental
coverage substantially equivalent to the coverage maintained by the Company
for Executive prior to his severance at no premium cost to Executive. Such
coverage and payments shall cease upon the earliest of (i) the expiration
of 60 months following the Date of Termination, (ii) the date upon which
the Executive obtains other employment which provides similar coverage, or
(iii) the date upon which Executive qualifies for Medicare benefits under
federal law.
(e) Notwithstanding the other provisions of this Section 6, in the
event that:
(i) the aggregate payments or benefits to be made or afforded to
the Executive, which are deemed to be parachute payments as defined in
Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code") or any successor thereof, (the "Termination Benefits") would
be deemed to include an "excess parachute payment" under Section 280G
of the Code; and
(ii) if such Termination Benefits were reduced to an amount (the
"Non-Triggering Amount"), the value of which is one dollar ($1.00)
less than an amount equal to three (3) times Executive's "base
amount," as determined in accordance with Section 280G and the
Non-Triggering Amount less the product of the marginal rate of any
applicable state and federal income tax and the Non-
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Triggering Amount would be greater than the aggregate value of the
Termination Benefits (without such reduction) minus (a) the amount of
tax required to be paid by the Executive thereon by Section 4999 of
the Code and further minus (b) the product of the Termination Benefits
and the marginal rate of any applicable state and federal income tax,
then the Termination Benefits shall be reduced to the Non-Triggering
Amount. The allocation of the reduction required hereby among the
Termination Benefits shall be determined by the Executive.
7. Confidential Information. The Executive recognizes and acknowledges
that he will have access to certain information of members of the Company Group
(as defined below) and that such information is confidential and constitutes
valuable, special and unique property of such members of the Company Group. The
Executive shall not at any time, either during or subsequent to the Employment
Term, disclose to others, use, copy or permit to be copied, except in pursuance
of his duties for and on behalf of the Company, its successors, assigns or
nominees, any Confidential Information of any member of the Company Group
(regardless of whether developed by the Executive) without the prior written
consent of the Company or as required by law.
As used herein, "Company Group" means the Company and any entity that
directly or indirectly controls, is controlled by, or is under the common
control with, the Company, and for the purposes of this definition "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such entity, whether though the
ownership of voting securities, by contract or otherwise.
The term "Confidential Information" with respect to the Company means
any secret or confidential information or know-how and shall include, but shall
not be limited to, the plans, customers, costs, prices, uses, and application of
products and services, results of investigations, studies or experiments owned
or used by the Company, and all apparatus, products, processes, compositions,
samples, formulas, computer programs, computer hardware designs, computer
firmware designs, and servicing, marketing or manufacturing methods and
techniques at any time used, developed, investigated, made or sold by the
Company, before or during the Employment Term, that are not readily available to
the public or that are maintained as confidential by the Company. The Executive
shall maintain in confidence any Confidential Information of third parties
received as a result of his employment with the Company in accordance with the
Company's obligations to such third parties and the policies established by the
Company.
8. Delivery of Documents Upon Termination. The Executive shall deliver to
the Company or its designee at the termination of his employment all
correspondence, memoranda, notes, records, drawings, sketches, plans, customer
lists, product compositions, and other documents and all copies thereof, made,
composed or received by the Executive, solely or jointly with others, that are
in the Executive's possession, custody, or control at termination and that are
related in any manner to the past, present, or anticipated business of any
member of the Company Group. In this regard, the Executive hereby grants and
conveys to the Company all right, title and interest in and to, including
without limitation, the right to possess, print, copy, and sell or otherwise
dispose of, any reports, records, papers, summaries, photographs, drawings or
other documents, and writings, and copies, abstracts or summaries thereof, that
may be prepared by the
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Executive or under his direction or that may come into his possession in any way
during the term of his employment with the Company that relate in any manner to
the past, present or anticipate business of any member of the Company Group.
9. Disclosure and Receipt of Confidential Information. The Executive
shall not, at any time during his employment, knowingly receive from persons not
employed by the Company, any Confidential Information, as described above, not
belonging to the Company, unless a valid agreement is authorized by the Company
and is signed by both the Company and by the disclosing party. The Executive
shall not use or disclose to other employees of the Company, during his
employment with Company, Confidential Information belonging to his former
employers, former business associates, or any other third parties unless written
permission has been given by such third parties to the Company and accepted by
the Company to allow the Company to use and/or disclose such information. The
Executive shall defend and indemnify the Company Group for any breach of the
covenant contained in the preceding sentence.
10. Intellectual Property. The Executive shall hold in trust for the
benefit of the Company, and shall disclose promptly and fully to the Company in
writing, and hereby assigns, and binds his heirs, executors, and administrators
to assign, to the Company any and all inventions, discoveries, ideas, concepts,
improvements, copyrightable works, and other developments (the "Developments")
conceived, made, discovered or developed by him, solely or jointly with others,
during the term of his employment by the Company, whether during or outside of
usual working hours and whether on the Company's premises or not, that relate in
any manner to the past, present or anticipated business of any member of the
Company Group. All works of authorship created by the Executive during the
Employment Term and any extension hereof, solely or jointly with others, shall
be considered works made for hire under the Copyright Act of 1976, as amended,
and shall be owned entirely by the Company. Any and all such Developments shall
be the sole and exclusive property of the Company, whether patentable,
copyrightable, or neither, and the Executive shall assist and fully cooperate in
every way, at the Company's expense, in securing, maintaining, and enforcing,
for the benefit of the Company or its designee, patents, copyrights or other
types of proprietary or intellectual property protection for such Developments
in any and all countries.
11. Further Acts. At the request of the Company (but without additional
compensation from the Company during his employment by the Company) the
Executive shall execute any and all papers and perform all lawful acts that the
Company may deem necessary or appropriate to further evidence or carry out the
transactions contemplated by this Agreement including, without limitation, such
acts as may be necessary for the preparation, filing, prosecution, and
maintenance of applications for United States letters patent and foreign letters
patent, or for United States and foreign copyright, on the Developments.
12. No Competition. Until August 1, 2004, or until 15 months following the
consummation of an initial public offering of the Company's common stock,
whichever first occurs, the Executive shall not directly or indirectly engage in
the business of operating a state or national bank or company providing similar
services, or any other business in which any member of the Company Group
directly or indirectly engages during the Employment Term; provided, however,
that the restriction in this Section 12 shall apply only to the reasonable and
limited
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geographic area consisting of any state where any member of the Company Group
has an office, bank location or place of business, and Texas and any state that
has a contiguous border with the State of Texas. For purposes of this Section
12, the Executive shall be deemed to engage in such a business if he directly or
indirectly, engages or invests in, owns, manages, operates, controls or
participates in the ownership, management, operation or control of, is employed
by, associated or in any manner connected with, or renders services or advice
to, any business engaged in operating a state or national bank or other company
providing similar services to those provided by the any member of the Company
Group during the Employment Term; provided, however, that the Executive may
invest in the securities of any enterprise (but without otherwise participating
in the activities of such enterprise) if (x) such securities are listed on any
national or regional securities exchange or have been registered under Section
12 of the Securities Exchange Act of 1934 and (y) the Executive does not
beneficially own (as defined Rule 13d-3 promulgated under the Securities
Exchange Act of 1934) in excess of 5% of the outstanding capital of such
enterprise;
The Executive agrees that if a court of competent jurisdiction
determines that the length of time or any other restriction, or portion thereof,
set forth in this Section 12 is overly restrictive and unenforceable, the court
may reduce or modify such restrictions to those which it deems reasonable and
enforceable under the circumstances, and as so reduced or modified, the parties
hereto agree that the restrictions of this Section 12 shall remain in full force
and effect. The Executive further agrees that if a court of competent
jurisdiction determines that any provision of this Section 12 is invalid or
against public policy, the remaining provisions of this Section 12 and the
remainder of this Agreement shall not be affected thereby, and shall remain in
full force and effect.
The Executive acknowledges that the business of the Company and its
Affiliates is national in scope and that the restrictions imposed by this
Agreement are legitimate, reasonable and necessary to protect the Company's and
its affiliates' investment in their businesses and the goodwill thereof. The
Executive acknowledges that the scope and duration of the restrictions contained
herein are reasonable in light of the time that the Executive has been engaged
in the business of the Company and its affiliates, the Executive's reputation in
the markets for the Company's and its affiliates' businesses and the Executive's
relationship with the suppliers, customers and clients of the Company and its
affiliates. The Executive further acknowledges that the restrictions contained
herein are not burdensome to the Executive in light of the consideration paid
therefor.
13. No Tampering. Until August 1, 2004, or until 15 months following the
consummation of an initial public offering of the Company's common stock,
whichever first occurs (and for any period following the Employment Term during
which Executive is receiving base salary pursuant to Section 5(b)(i) hereof) the
Executive shall not (a) request, induce or attempt to influence any distributor
or supplier of goods or services to any member of the Company Group to curtail
or cancel any business they may transact with any member of the Company Group;
(b) request, induce or attempt to influence any customer of any member of the
Company Group that have done business with or potential customers which have
been in contact with any member of the Company Group to curtail or cancel any
business they may transact with any member of the Company Group; (c) request,
induce or attempt to influence any employee of
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any member of the Company Group to terminate his or her employment with such
member of the Company Group; or (d) hire or employ or attempt to hire or employ
any employee of any member of the Company Group.
Should Executive voluntarily terminate his employment with the Company
for other than Good Cause prior to August 1, 2008, the Company may at its
option, elect to extend the duration of the prohibitions against Executive
contained in (c) and (d) of this Section 13 for a period of an additional 12
months following the date of such termination. To exercise such option that
Company must provide written notice of such election to Executive within 30 days
after such termination and pay to Executive an amount equal to the base pay and
bonus, if any, earned by Executive during his last 12 months of employment with
the Company (less any required withholding or other taxes). In such event such
amount shall be paid in equal monthly installments over such 12 month period.
14. Nondisparagement. The Executive and the Company agree that neither
party shall at any time disparage, make negative comments or express negative
opinions regarding the other party, either publicaly or privately, in any
communications with third-parties, verbal, written or otherwise.
15. Publicity and Advertising. The Executive agrees that the Company
may use his name, picture, or likeness for any advertising, publicity or other
business purpose at any time, during the term of this Agreement and may continue
to use materials generated during the term of this Agreement for a period of six
months thereafter. Such use of the Executive's name, picture, or likeness shall
not be deemed to result in any invasion of the Executive's privacy or in
violation of any property right the Executive may have; and the Executive shall
receive no additional consideration if his name, picture or likeness is so used.
The Executive further agrees that any negatives, prints or other material for
printing or reproduction purposes prepared in connection with the use of his
name, picture or likeness by the Company shall be and are the sole property of
the Company.
16. Remedies. The Executive acknowledges that a remedy at law for any
breach or attempted breach of the Executive's obligations under Sections 7
through 15 may be inadequate, agrees that the Company is entitled to specific
performance and injunctive and other equitable remedies in case of any such
breach or attempted breach. The Company shall have the right to offset against
amounts to be paid to the Executive pursuant to the terms hereof any amounts
from time to time owing by the Executive to the Company. The termination of
Executive's employment shall not be deemed to be a waiver by the Company of any
breach by the Executive of this Agreement or any other obligation owed the
Company, and notwithstanding such a termination the Executive shall be liable
for all damages attributable to such breach. The Executive acknowledges that the
scope and duration of the restrictions contained herein are reasonable in light
of the time that the Executive has been engaged in the business of the Company
and its affiliates, the Executive's reputation in the markets for the Company's
and its affiliates' businesses and the Executive's relationship with the
suppliers, customers and clients of the Company and its affiliates. The
Executive further acknowledges that the restrictions contained herein are not
burdensome to the Executive in light of the consideration paid therefor.
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17. Indemnification.
(a) In the event that the Executive is made a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, other
than an action by or in the right of the Company, by reason of the fact
that the Executive is or was a director, officer, employee, trustee or
agent of the Company, or is or was serving at the request of the Company as
a director, officer, employee trustee or agent of another corporation,
partnership, joint venture, trust or other enterprise, expressly including
service as a director, officer or in a similar position with any exchange,
board of trade, clearing corporation or similar institution on which the
Company or any other corporation a majority of the stock of which is owned
directly or indirectly by the Company had membership privileges at the
relevant time during which any such position was held, shall be indemnified
by the Company against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by
the Executive in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful; provided, that funds paid or required to be paid to
the Executive as a result of the provisions of this Section 17 shall be
returned to the Company or reduced, as the case may be, to the extent that
the Executive receives funds pursuant to an indemnification from any other
corporation or organization. If the Executive could be indemnified pursuant
to the preceding sentence except for the fact that the subject action or
suit is or was by or in the right of the Company, he shall be indemnified
by the Company against expenses including attorneys' fees actually or
reasonably incurred by him in connection with the defense or settlement of
such action or suit, except that no indemnification shall be made in
respect of any claim, issue or matter as to which the Executive shall have
been adjudged to be liable for negligence or misconduct in the performance
of his duty to the Company unless and only to the extent that the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, the Executive is fairly and reasonably entitled
to indemnity for such expenses which such court shall deem proper.
(b) To the extent that the Executive has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Section 17(a), or in defense of any claim, issue or matter therein, he
shall be indemnified by the Company against expenses, including attorneys'
fees, actually and reasonably incurred by him in connection therewith
without the necessity of any action being taken by the Company other than
the determination, in good faith, that such defense has been successful. In
all other cases wherein such indemnification is provided by this Section
17, unless ordered by a court, indemnification shall be made by the Company
only as authorized in the specific case upon a determination that
indemnification of the Executive is proper in the circumstances because he
has met the applicable standard of conduct specified in this Section 17.
Such determination shall be made (i) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to
such action, suit or
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proceeding, or (ii) if such quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the holders of a majority
of the shares of capital stock of the Company entitled to vote thereon.
(c) The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Executive
did not act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful. Entry of a judgment by consent as
part of a settlement shall not be deemed a final adjudication of liability
for negligence or misconduct in the performance of duty, nor of any other
issue or matter.
(d) Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Company in advance of the final disposition
of such action, suit or proceeding as authorized by the Board of Directors
in the specific case upon receipt of an undertaking by the Executive to
repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the Company.
(e) The indemnification hereby provided shall not be deemed exclusive
of any other rights to which the Executive may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in an official capacity and as to action in another
capacity while holding such office, and shall continue as to the Executive
once he has ceased to provide services to the Company.
18. Miscellaneous Provisions.
(a) Executive's Heirs, etc. The Executive may not assign his rights
or delegate his duties or obligations hereunder without the written consent
of the Company. This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees.
(b) Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notices to the Company shall be directed to
the attention of the Chief Executive Officer of the Company with a copy to
the Secretary of the Company, or to such other address as is specified in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
(c) Amendment; Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in
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writing signed by the Executive and such officer as may be specifically
designated by the Board of Directors of the Company. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with any condition or provision of this Agreement to be
performed by such other party, shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been
made by either party which are not set forth expressly in this Agreement.
(d) Dispute Resolution. The Executive and the Company agree that any
dispute between the Executive and the Company will be finally resolved by
binding arbitration in accordance with the Federal Arbitration Act ("FAA").
The Executive and the Company agree to follow the Dispute Resolution
Procedures set forth in Attachment C to this Agreement.
(e) Invalid Provisions. Should any portion of this Agreement be
adjudged or held to be invalid, unenforceable or void, such holding shall
not have the effect of invalidating or voiding the remainder of this
Agreement and the parties hereto agree that the portion so held invalid,
unenforceable or void shall, if possible, be deemed amended or reduced in
scope, or otherwise be stricken from this Agreement to the extent required
for the purposes of validity and enforcement thereof.
(f) Survival of the Executive's Obligations. The Executive's
obligations under this Agreement shall survive regardless of whether the
Executive's employment by the Company is terminated, voluntarily or
involuntarily, by the Company or the Executive, with or without Cause.
(g) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together with constitute one and the same instrument.
(h) Governing. This Agreement shall be governed by and construed
under the laws of the State of Texas.
(i) Captions and Gender. The use of captions and Section headings
herein is for purposes of convenience only and shall not affect the
interpretation or substance of any provisions contained herein. Similarly,
the use of the masculine gender with respect to pronouns in this Agreement
is for purposes of convenience and includes either sex who may be a
signatory.
12
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the ____ day of __________, 2002.
EXECUTIVE
_________________________________________
[Name]
TEXAS CAPITAL BANCSHARES, INC.
By: _____________________________________
Name: ___________________________________
Title: __________________________________
13
Attachment A
DESCRIPTION OF DUTIES
[TO COME]
A-1
Attachment B
TERMS AND CONDITIONS OF RESTRICTIVE STOCK UNITS
[TO COME]
B-1
Attachment C
DISPUTE RESOLUTION PROCEDURES
The parties agree to make a good faith effort to informally resolve any dispute
before submitting the dispute to arbitration in accordance with the following
procedures:
A. The party claiming to be aggrieved shall furnish to the other a written
statement of the grievance, all persons whose testimony would support
the grievance, and the relief requested or proposed. The written
statements must be delivered to the other party within the time limits
for bringing an administrative or court action based on that claim.
B. If the other party does not agree to furnish the relief requested or
proposed, or otherwise does not satisfy the demand of the party
claiming to be aggrieved within 30 days and the aggrieved party wishes
to pursue the issue, the aggrieved party shall by written notice demand
that the dispute be submitted to non-binding mediation before a
mediator jointly selected by the parties.
C. If mediation does not produce a resolution of the dispute and either
party wishes to pursue the issue, that party shall be entitled to
request binding arbitration of the dispute by giving written notice to
the other party within 30 days after mediation. The parties will
attempt to agree on a mutually acceptable arbitrator and, if no
agreement is reached, the parties will request a list of nine
arbitrators from the American Arbitration Association and select by
alternately striking names. The arbitration will be conducted
consistent with the American Arbitration Association's National Rules
for Resolution of Employment Disputes ("Rules") that are in effect at
the time of the arbitration. If there is any conflict between those
Rules and the terms of this Agreement, including all attachments
thereto, this Agreement will govern. The arbitrator shall have
authority to decide whether the conduct complained of under Subsection
(a) above violates the legal rights of the parties. In any such
arbitration proceeding, any hearing must be transcribed by a certified
court reporter and any decision must be supported by written findings
of fact and conclusions of law. The arbitrator's findings of fact must
be supported by substantial evidence on the record as a whole and the
conclusions of law and any remedy must be provided for by and
consistent with the laws of Texas and federal law. The arbitrator
shall have no authority to add to, modify, change or disregard any
lawful term of this Agreement. The Company will pay the arbitrator's
fee.
D. Arbitration shall be the exclusive means for final resolution of any
dispute between the parties, except 1) for workers' compensation and
unemployment claims and 2) when injunctive relief is necessary to
preserve the status quo or to prevent irreparable injury, including but
not limited to an alleged or threatened breach of Sections 7-14 of this
Agreement. Injunctive relief may be sought from any court of competent
jurisdiction located in Texas.
C-1
