Exhibit 9(b)
PROXY AGREEMENT/SHAREHOLDER AGREEMENT
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THIS AGREEMENT is made and entered into as of the 15th day of September,
1996, by and among XXXXXXX X. XXXXXXX ("Xxxxxxx"), XXXXX X. XXXXXXXX
("Xxxxxxxx") and XXXXXXX X. XXXXXX ("Xxxxxx").
WITNESSETH:
In consideration of the mutual covenants and promises herein contained and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Ownership of Stock. Xxxxxxxx currently owns 1,223.17 shares of common
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capital stock in Gold Banc Corporation, Inc. (the "Corporation") and Xxxxxx
currently owns 1,223.16 shares of common capital stock in the Corporation. Such
shares are currently subject to the terms of a Voting Trust Agreement dated
_____________________ (the "Voting Trust Agreement"). The shares of stock in
the Corporation owned by Xxxxxxxx and by Xxxxxx are collectively referred to
herein as the "Subject Shares of Stock". The parties acknowledge and agree that
as of the date of the execution hereof, the Corporation is contemplating a stock
split or stock dividend and the reference to "Subject Shares of Stock"
throughout this Agreement shall include any and all shares issued to Xxxxxxxx
and/or Xxxxxx (or their respective assigns) as a result of any such stock split
or stock dividend. If Xxxxxxxx and/or Xxxxxx acquire additional shares in the
Corporation at any time after the date hereof, such additional shares shall
likewise be subject to the terms hereof and shall be deemed "Subject Shares of
Stock". Likewise, with respect to the rights of first refusal set forth herein
applicable to shares of stock in the Corporation owned by Xxxxxxx, such right
shall apply to all shares owned by Xxxxxxx as of the date of the execution
hereof, as well as any shares acquired by Xxxxxxx after the date hereof.
Xxxxxxx currently serves as President, Chairman and Chief Executive Officer of
the Corporation.
2. Termination of Voting Trust Agreement; Grant of Irrevocable Proxy.
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Xxxxxxx is the trustee of the Voting Trust pursuant to the Voting Trust
Agreement. By execution hereof, Xxxxxxx, Xxxxxxxx and Xxxxxx agree that the
Voting Trust Agreement shall be terminated. Xxxxxxx shall cause the Subject
Shares of Stock to be distributed from the Voting Trust to Xxxxxxxx and Xxxxxx
in accordance with their respective interests therein. Notwithstanding the
termination of the Voting Trust Agreement,
Xxxxxxxx and Xxxxxx have deemed it to be in their respective best interests to
grant to Xxxxxxx an irrevocable proxy to vote all of the Subject Shares of
Stock. Accordingly, by execution hereof (to be effective concurrent with the
reissuance of the Subject Shares of Stock from the Voting Trust to Xxxxxxxx),
Xxxxxxxx, then being the owner of 1,223.17 shares of stock in the Corporation,
hereby constitutes and appoints Xxxxxxx as his true and lawful attorney, for
Xxxxxxxx and in his name, place and xxxxx, with full power of substitution to
vote as Xxxxxxxx'x proxy all of Subject Shares of Stock, at any and all
meetings, regular or special, of the stockholders of the Corporation, or any
adjournments thereof, or to give written consents in lieu of voting such shares,
on all matters submitted to the shareholders of the Corporation for vote,
including, but not limited to, the election of directors of the Corporation. At
all times, Xxxxxxx shall have full, total and complete discretion as to the
voting of the stock. By execution hereof, Xxxxxxxx revokes any and all proxies
heretofore made by him.
Further (to be effective concurrent with the reissuance of the Subject
Shares of Stock from the Voting Trust to Xxxxxx), Xxxxxx, being the owner of
1,223.16 shares of stock in the Corporation, hereby constitutes and appoints
Xxxxxxx as his true and lawful attorney, for Xxxxxx and in his name, place and
xxxxx, with full power of substitution to vote as Xxxxxx'x proxy all of Subject
Shares of Stock, at any and all meetings, regular or special, of the
stockholders of the Corporation, or any adjournments thereof, or to give written
consents in lieu of voting such shares, on all matters submitted to the
shareholders of the Corporation for vote, including, but not limited to, the
election of directors of the Corporation. At all times, Xxxxxxx shall have
full, total and complete discretion as to the voting of the stock. By execution
hereof, Xxxxxx revokes any and all proxies heretofore made by him.
The Proxy granted by Xxxxxxxx to Xxxxxxx and the Proxy granted by Xxxxxx to
Xxxxxxx herein shall each be deemed to be an irrevocable proxy coupled with an
interest as provided hereinafter. The proxies referenced herein shall continue
until the earlier of (i) the death of Xxxxxxx or (ii) the termination of this
Agreement as provided hereinafter.
3. Right of First Refusal in Favor of Xxxxxxx. Except as set forth in the
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last paragraph of this Section 3, if at any time during the term hereof, either
Xxxxxxxx or Xxxxxx receives a bona fide offer from a third party for the
purchase of any of their
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respective shares of the Subject Shares of Stock, and the party receiving such
offer (the "Selling Party") wishes to accept such offer, he shall give written
notice of such offer to Xxxxxxx. Such notice shall include the identity of the
offeror and the purchase price for the shares to be acquired. Xxxxxxx shall be
given ninety (90) days from the date of receipt of such notice to exercise a
right to purchase some or all of those shares which the Selling Party desires to
sell. The price at which Xxxxxxx shall be permitted to purchase such shares
shall be as set forth in Section 5 hereinafter. If Xxxxxxx exercises such
right, he shall deliver to the Selling Party an amount equal to one-third (1/3)
of the purchase price at the time of closing of such purchase. In addition,
Xxxxxxx shall deliver to the Selling Party at closing his promissory note for
the remainder of the purchase price bearing interest at the prime rate of
interest then quoted by Exchange National Bank with such note calling for two
(2) equal annual installments of principal with the first such installment due
one (1) year from the date of the note and the second installment due two (2)
years from the date of the note. Accrued and unpaid interest shall be payable
at the time of each such principal installment and Xxxxxxx shall reserve the
right to prepay all or any portion of the amount due thereunder at any time
without penalty. Xxxxxxx'x obligation under the promissory note shall be
secured by a pledge of two-thirds (2/3) of the shares of stock purchased by
Xxxxxxx in such transaction.
If Xxxxxxx exercises such right, he shall give written notice of same to
the Selling Party within the aforementioned ninety (90) day period. Closing
shall then take place within thirty (30) days after the date Xxxxxxx has given
such notice. At the closing, Xxxxxxx shall deliver the payment due and the
promissory note required as set forth above. The Selling Party shall deliver the
certificate or certificates representing the shares being sold properly endorsed
or accompanied by properly executed stock powers. All shares sold shall be
delivered free and clear of any liens or encumbrances. The parties shall then
execute a Stock Pledge Agreement containing normal terms and conditions
typically found in such agreements. Such agreement shall specify a mutually
agreed upon escrow agent to hold the shares of stock pursuant to such Stock
Pledge Agreement.
If Xxxxxxx does not exercise the right of first refusal granted hereunder
as to all or any portion of the shares with respect to which the notice was
given, then the Selling Party shall
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be free to sell such shares to such third party as long as such sale is made in
strict accordance with the terms and conditions contained in such notice and,
further, as long as such sale is closed within thirty (30) days of the
expiration of the aforementioned ninety (90) day period. To the extent the
shares are sold to a third party in accordance with the preceding sentence, then
from and after such sale, such shares shall no longer be subject to the terms
and conditions of this Agreement. If there is a public market for the Subject
Shares of Stock, the notice from the Selling Party may designate a sale into the
public market rather than designating a specific proposed third party
transferee. In such event, however, the right of first refusal shall continue to
apply.
Notwithstanding anything herein contained to the contrary, if Xxxxxxxx
wishes to sell or otherwise transfer shares of stock in the Corporation to
Xxxxxx or if Xxxxxx wishes to sell or otherwise transfer shares of stock in the
Corporation to Xxxxxxxx, such transaction or transfer may be consummated without
Xxxxxxx having a right of first refusal with respect to such transfer. However,
any shares so transferred from Xxxxxx to Xxxxxxxx or from Xxxxxxxx to Xxxxxx
shall remain subject to all terms and conditions thereof including specifically
the irrevocable proxy set forth in Section 2 above and the right of first
refusal set forth in this Section 3.
4. Right of First Refusal in Favor of Xxxxxx and Xxxxxxxx. If at any time
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during the term hereof, Xxxxxxx receives a bona fide offer from a third party
for the purchase of any of his shares of stock in the Corporation and he wishes
to accept such offer, he shall give written notice of such offer to Xxxxxx and
to Xxxxxxxx. Such notice shall include the identity of the offeror and the
purchase price for the shares to be acquired. Xxxxxx and Xxxxxxxx shall each be
given ninety (90) days from the date of receipt of such notice to exercise a
right to purchase some or all of those shares which Xxxxxxx desires to sell. The
price at which Xxxxxxxx and Xxxxxx shall be permitted to purchase such shares
shall be as set forth in Section 5 hereinafter. Xxxxxx and Xxxxxxxx may each
exercise the rights granted hereunder as to one-half of the shares being offered
by Xxxxxxx; provided, however, that if either of such two parties does not wish
to purchase the entirety of the one-half of shares available under this
provision, the other party may do so. To the extent the purchase right is
exercised, the entire purchase price shall be payable in full at closing.
Closing shall take place within thirty (30) days after the date Xxxxxx and/or
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Xxxxxxxx have given notice of their intention to exercise the right of first
refusal.
If Xxxxxx and Xxxxxxxx do not exercise the right of first refusal granted
hereunder as to all or any portion of the shares with respect to which the
notice was given, then Xxxxxxx will be free to sell such shares to such third
party as long as such sale is made in strict accordance with the terms and
conditions contained in such notice and further as long as such sale is closed
within thirty (30) days of the expiration of the aforementioned ninety (90) day
period. After any such sale by Xxxxxxx to such third party then the restrictions
applicable to such shares as provided hereunder shall lapse. If there is a
public market for the shares owned by Xxxxxxx, then the notice to be given by
Xxxxxxx may identify a sale in the public market without designating a specific
prospective third party purchaser. In such event, however, the right of first
refusal shall continue to apply.
5. Purchase Price for Shares. As of the date of the execution hereof, the
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Corporation intends to file a Registration Statement under the 1933 Act
registering shares of its stock in a public offering. In addition, the
Corporation is seeking to qualify or register all stock, including the Subject
Shares of Stock, under the securities or "Blue Sky" laws of each state. If such
registration is completed, then the purchase price for stock purchased by
Xxxxxxx hereunder shall be the average between the high and low trading prices
on the last business day before the closing date of such transaction.
If such registration is not consummated and the stock is not publicly
traded as of the date of any transaction described herein, then the purchase
price, in the case of the right of first refusal, shall be the price included in
the notice given by the Selling Party which represents the bona fide offer he
has received from a third party.
6. Death of Xxxxxxxx, Xxxxxx or Xxxxxxx. If either Xxxxxxxx or Xxxxxx
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dies at any time during the term of this Agreement, the proxy granted by such
deceased party as set forth in Section 2 hereinabove shall remain in full force
and effect and the Subject Shares of Stock owned by the deceased party hereto
shall inherit same subject to such proxy. In addition, the right of first
refusal in favor of Xxxxxxx shall continue with respect to the shares of stock
in the Corporation owned by the decedent and the
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decedent's estate, heirs and beneficiaries shall inherit the decedent's shares
constituting the Subject Shares of Stock subject to such right of first refusal,
as well as such proxy designation in favor of Xxxxxxx for the duration of the
term of this Agreement.
In the event of Xxxxxxx'x death, the proxy granted by Xxxxxxxx and the
proxy granted by Xxxxxx shall terminate concurrent with Xxxxxxx'x death.
However, the right of first refusal in favor of Xxxxxxxx and Xxxxxx as set forth
in Section 4 above shall continue to apply to all shares of stock owned by
Xxxxxxx at the time of his death and Xxxxxxx'x estate and his heirs and
beneficiaries shall inherit his shares of stock in the Corporation subject to
such rights of first refusal for the duration of the term of this Agreement.
7. Term of Agreement. This Agreement shall commence as of the day and
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year first above written (the "Effective Date") and shall continue for a period
of ten (10) years from the Effective Date; provided, however, that as set forth
above, if Xxxxxxx dies at any time during such ten (10) year period, then the
proxy right granted in Section 2 above shall terminate concurrent with his
death, but the rights of first refusal otherwise set forth herein shall continue
for the duration of the term of this Agreement. Likewise, if at any time during
the ten (10) year term from the Effective Date, Xxxxxxx for any reason ceases to
be President, Chairman and/or Chief Executive Officer of the Corporation, then
the proxy rights referenced in Section 2 above shall terminate concurrent with
the date he ceases to serve as either President, Chairman and/or Chief Executive
Officer of the Corporation, but the rights of first refusal set forth above
shall remain in full force and effect for the duration of the term of the
Agreement. Further, all parties acknowledge and agree that if shares are sold
to a third party as a result of the waiver by a party hereto of his right to
exercise a right of first refusal with respect to such shares, then the
transferee of such shares shall take same free and clear of any of the
restrictions or proxy rights set forth in this Agreement and this Agreement
shall not apply to such shares from and after the date of such transfer.
8. Binding Agreement. The terms of this Agreement shall be binding upon
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and inure to the benefit of the parties hereto, their respective heirs,
successors, administrators, executors, trustees and assigns.
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9. Governing State Law. The terms of this Agreement shall be governed by
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and interpreted in accordance with the laws of the State of Kansas.
10. Superseding Agreement. This Agreement shall supersede any and all
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prior agreements between Xxxxxxx, Xxxxxxxx and Xxxxxx pertaining to the Subject
Shares of Stock including specifically the Voting Trust Agreement.
11. Legend on Certificates. The parties acknowledge and agree that a
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legend will be affixed to each certificate representing shares constituting the
Subject Shares of Stock. Such legend shall establish that the shares
represented by such certificate are subject to this Proxy Agreement/Shareholder
Agreement and that any transfer of such shares can be made only subject to the
terms hereof.
IN WITNESS WHEREOF, the parties hereto set their hands as of the day and
year first above written.
___________________________
Xxxxxxx X. Xxxxxxx
___________________________
Xxxxx X. Xxxxxxxx
___________________________
Xxxxxxx X. Xxxxxx
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