EXHIBIT 99.3
FORM OF VOTING AGREEMENT
AND
IRREVOCABLE PROXY
This Voting Agreement and Irrevocable Proxy dated as of March 23, 1999
(this "Agreement"), is made and entered into by and among Bank United Corp.,
Inc., a Delaware corporation ("BUC"), BUC Acquisition Corp. II, a Texas
corporation and a subsidiary of BUC ("Merger Sub"), and __________________
("Shareholder"), as a shareholder of Texas Central Bancshares, Inc., a Texas
corporation (the "Company").
RECITALS
WHEREAS, concurrently herewith, BUC, Merger Sub and the Company are
entering into an Agreement and Plan of Reorganization (as such agreement may
hereafter be amended from time to time, the "Reorganization Agreement"),
pursuant to which, among other things, Merger Sub will be merged with and into
the Company (the "Merger"); and
WHEREAS, as an inducement and a condition to entering into the
Reorganization Agreement, BUC has required that the Shareholder agree, and the
Shareholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements contained herein and the benefits to be
received by the parties under the terms of the Reorganization Agreement, the
parties hereto, intending to be legally bound, hereby agree as follows:
AGREEMENTS
1. DEFINITIONS. Capitalized terms used but not defined herein and defined
in the Reorganization Agreement have the respective meanings ascribed to them in
the Reorganization Agreement. In addition, for purposes of this Agreement:
(a) "AFFILIATE" of a specified Person means another Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with, such specified Person.
(b) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons (who are
Affiliates of such Person excluding officers and directors of the Company) who
together with such Person would constitute
a "group" within the meaning of Section 13(d)(3) of the Exchange Act and in any
event with respect to the Shareholder shall include Shares held of record by the
Shareholder's spouse and children.
(c) "COMPANY ACQUISITION TRANSACTION" shall mean (i) any merger,
consolidation, statutory share exchange or similar transaction involving the
Company or any of its subsidiaries (other than transactions solely between the
Company's subsidiaries), (ii) the disposition, by sale, lease, exchange or
otherwise, of assets of the Company or any of its subsidiaries representing in
either case 10% or more of the consolidated assets of the Company and its
subsidiaries, or (iii) the issuance, sale or other disposition of (including by
way of merger, consolidation, share exchange or any similar transaction)
securities representing 20% or more of the voting power of the Company or any of
its subsidiaries.
(d) "CONTROL," as used within the definition of Affiliate, shall
mean the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise.
(e) "PERSON" shall mean an individual, corporation, limited
liability company, partnership, joint venture, association, trust,
unincorporated organization or other entity.
(f) "SHARES" shall mean shares of the common stock, $1.00 par value,
of the Company.
(g) "SHAREHOLDER'S SHARES" shall mean all Shares held of record or
Beneficially Owned by the Shareholder, whether currently issued or hereinafter
acquired, and for the purposes of Section 3 of this Agreement shall also
include, without duplication, any securities convertible into, or exercisable or
exchangeable for, Shares, including without limitation any options, warrants or
stock appreciation rights held of record or Beneficially Owned by the
Shareholder.
(h) "TERMINATION DATE" shall mean the date that the Reorganization
Agreement has been terminated.
2. PROVISIONS CONCERNING SHARES.
(a) From and after the date of this Agreement and ending as of the
first to occur of the Effective Time or the Termination Date, at any meeting of
the holders of Shares, however called, or in any other circumstance upon which
the vote, consent or other approval of holders of Shares is sought, the
Shareholder shall vote or cause to be voted (including by written consent, if
applicable) all of the issued and outstanding Shareholder's Shares entitled to
vote thereon, (i) in favor of the Reorganization, the execution and delivery by
the Company of the Reorganization Agreement and the approval of the terms
thereof and each of the other actions contemplated by the Reorganization
Agreement and this Agreement and any actions required in furtherance thereof and
hereof, (ii) against any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or any other
material obligation or agreement of the Company under the Reorganization
Agreement or this Agreement and (iii) against the following
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actions: (A) any Company Acquisition Transaction and (B) to the extent that such
are intended to, or could reasonably be expected to, (1) impede, interfere with,
delay, postpone or materially adversely affect the Merger or the transactions
contemplated by the Reorganization Agreement or this Agreement or (2) implement
or lead to any Company Acquisition Transaction: (w) any change in a majority of
the persons who constitute the board of directors of the Company; (x) any change
in the present capitalization of the Company or any amendment of the Company's
Articles of Incorporation or Bylaws; or (y) any other material change in the
Company's corporate structure or business. In addition to the other covenants
and agreements of the Shareholder provided for elsewhere in this Agreement,
during the above-described period the Shareholder shall not enter into any
agreement or understanding with any Person or entity the effect of which would
be inconsistent with or violate the provisions and agreements contained in this
Section 2.
(b) The Shareholder, with respect to all of the issued and
outstanding Shareholder's Shares entitled to vote, does hereby make, constitute
and appoint BUC, or any nominee of BUC, each with full power of substitution and
resubstitution, from the date hereof to the earlier to occur of the Effective
Time or the Termination Date, as Shareholder's true and lawful attorney and
proxy (the "Proxy"), for and in Shareholder's name, place and stead, to demand
that the Secretary of the Company call a special meeting of the Shareholders of
the Company for the purpose of considering any action related to the
Reorganization Agreement or the Reorganization and to vote such Shareholder's
Shares as its Proxy, at every annual, special or adjourned meeting of the
Shareholders of the Company, including the right to sign its name (as
Shareholder) to any consent, certificate or other document relating to the
Company that the laws of the State of Texas may permit or require, with respect
to any matters as to which the Shareholder is required to vote in accordance
with Section 2(a). The Proxy may not exercise this proxy on any other matter.
The Shareholder may vote the Shareholder's Shares on all such other matters.
THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST.
The Shareholder represents that any proxies heretofore given in respect of the
Shareholder's Shares are not irrevocable, and that any such proxies are hereby
revoked.
(c) The Shareholder hereby permits BUC and Merger Sub to publish and
disclose in the Registration Statement (including all documents and schedules
filed with the SEC) and in the Proxy Statement its identity and ownership of the
Shareholder's Shares and the nature of its commitments, arrangements and
understandings under this Agreement; PROVIDED, HOWEVER, that the BUC and Merger
Sub shall afford to the Shareholder a reasonable opportunity to review and
comment upon the disclosure regarding the foregoing matters prior to the filing
thereof with the SEC.
3. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The
Shareholder hereby represents and warrants to, and covenants and agrees with,
BUC and Merger Sub as follows:
(a) OWNERSHIP. As of the date of this Agreement, the Shares set
forth on Schedule I hereto constitute all of the issued and outstanding Shares
owned of record or Beneficially Owned by the Shareholder. Except as otherwise
set forth in Schedule I, the Shareholder has sole power of disposition, sole
power to demand appraisal rights and sole power to vote upon and agree
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to all of the matters set forth in this Agreement, in each case with respect to
all of the Shares set forth on Schedule I hereto, with no material limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement and the Shareholders Agreement.
(b) POWER; BINDING AGREEMENT. The Shareholder has the legal
capacity, power and authority to enter into and perform all of the Shareholder's
obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by the Shareholder and constitutes a valid and binding
agreement of the Shareholder, enforceable against the Shareholder in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights and general principles of
equity. There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which the Shareholder is trustee whose consent is
required for the execution and delivery of this Agreement or the consummation by
the Shareholder of the transactions contemplated hereby. If the Shareholder is
married and the Shareholder's Shares constitute community property, this
Agreement has been duly authorized, executed and delivered by, and constitutes a
valid and binding agreement of, the Shareholder's spouse, enforceable against
such person in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights and
general principles of equity.
(c) NO CONFLICTS. No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by the Shareholder and the
consummation by the Shareholder of the transactions contemplated hereby, except
where the failure to obtain such consent, permit, authorization, approval or
filing would not interfere in any material respect with the Shareholder's
ability to perform his obligations hereunder, and none of the execution and
delivery of this Agreement by the Shareholder, the consummation by the
Shareholder of the transactions contemplated hereby or compliance by the
Shareholder with any of the provisions hereof shall (i) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which the Shareholder is a party or by which the
Shareholder or any of his properties or assets may be bound, or (ii) violate any
order, writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to the Shareholder or any of his properties or assets, in each such
case except to the extent that any conflict, breach, default or violation would
not interfere in any material respect with the ability of the Shareholder to
perform its obligations hereunder.
(d) NO ENCUMBRANCES. At all times hereafter during the term hereof,
all of the Shareholder's Shares (excluding Shares identified in Schedule I
hereto as Shares with respect to which Shareholder does not possess sole power
to dispose or direct the disposition) will be held by the Shareholder, or by a
nominee or custodian for the benefit of such Shareholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except for
any liens, claims, understandings or arrangements that do not limit or impair in
any material respect Shareholder's ability to perform
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his obligations under this Agreement, and subject to applicable securities laws
and the terms of this Agreement and the Shareholders Agreement.
(e) NO SOLICITATION. The Shareholder shall not take any action which
is described in Section 5.6 of the Reorganization Agreement as an action which
the Company is prohibited from authorizing or permitting its officers, directors
or employees to take or which the TCBI Shareholders are prohibited from taking.
(f) RESTRICTION ON TRANSFER AND PROXIES; NON-INTERFERENCE. From and
after the date of this Agreement and ending as of the first to occur of the
Effective Time or the Termination Date, the Shareholder shall not, and shall
cause each of his Affiliates who Beneficially Own any of the Shareholder's
Shares not to, directly or indirectly, without the consent of BUC: (i) offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of the Shareholder's
Shares, or any interest therein, (ii) except as provided in this Agreement,
grant any proxies or powers of attorney, deposit any Shareholder's Shares into a
voting trust or enter into a voting agreement with respect to any Shareholder's
Shares, (iii) enter into any agreement or arrangement providing for any of the
actions described in clause (i) or (ii) above or (iv) take any action that could
reasonably be expected to have the effect of preventing or disabling the
Shareholder from performing the Shareholder's obligations under this Agreement.
(g) WAIVER OF AND AGREEMENT NOT TO ASSERT APPRAISAL RIGHTS. The
Shareholder hereby waives and agrees not to assert, and shall cause any of its
Affiliates who hold of record any of the Shareholder's Shares to waive and not
to assert, any appraisal rights with respect to the Acquisition Merger that the
Shareholder or such Affiliate may now or hereafter have with respect to any
Shares (or any other shares of capital stock of the Company that the Shareholder
shall hold of record at the time that Shareholder may be entitled to assert
appraisal rights with respect to the Merger) whether pursuant to Article 5.11 of
the TBCA or otherwise.
(h) FURTHER ASSURANCES. From time to time, at BUC's request and
without further consideration, the Shareholder shall execute and deliver such
additional documents reasonably requested by BUC as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
(i) RIGHTS OF FIRST REFUSAL. Neither the Shareholder nor any of its
Affiliates have any rights of first refusal, preemptive rights or similar rights
to purchase Shares issuable by the Company pursuant to the Texas Central Stock
Option.
4. COVENANTS, REPRESENTATIONS AND WARRANTIES OF BUC AND MERGER SUB. BUC
and Merger Sub hereby represent, warrant and covenant to the Shareholder that:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Each of BUC, Merger
Sub is a corporation duly organized, validly existing and in good standing under
the laws of the state of
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their respective jurisdiction of incorporation, with adequate corporate power
and authority to own its properties and carry on its business as presently
conducted. Each of BUC and Merger Sub has the corporate power and authority to
enter into and perform all of its obligations under this Agreement and to
consummate the transactions contemplated hereby.
(b) EXECUTION, DELIVERY AND PERFORMANCE BY BUC AND MERGER SUB. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by the Boards of
Directors of BUC and Merger Sub, and each of BUC and Merger Sub has taken all
other actions required by law, its certificate or articles of incorporation and
its bylaws (except as described in the Reorganization Agreement) to consummate
the transactions contemplated by this Agreement. This Agreement constitutes the
valid and binding obligations of BUC and Merger Sub and is enforceable against
BUC and Merger Sub in accordance with its terms, except as enforceability may be
subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally.
5. STOP TRANSFER. From and after the date of this Agreement and ending as
of the first to occur of the Effective Time or the Termination Date, Shareholder
will not request that the Company register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any of the
Shareholder's Shares (excluding shares identified in Schedule I as Shares with
respect to which Shareholder does not possess sole power to dispose or direct
the disposition), or as otherwise contemplated hereby.
6. RECAPITALIZATION. In the event of a stock dividend or distribution, or
any change in the Shares (or any class thereof) by reason of any split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall include, without limitation, all such stock dividends and distributions
and any shares into which or for which any or all of the Shares (or any class
thereof) may be changed or exchanged as may be appropriate to reflect such
event.
7. SHAREHOLDER CAPACITY. The Shareholder does not make any agreement or
understanding herein, in his capacity as a director or officer of the Company,
and nothing herein shall limit or affect any action taken by the Shareholder in
such capacity.
8. COMPANY STOCK OPTIONS. To the extent required to effectuate the
provisions of Article II of the Reorganization Agreement, the Shareholder hereby
consents and agrees to the treatment of each option to purchase shares of Texas
Central Stock that is Beneficially Owned by the Shareholder or its Affiliates as
set forth in Article 5.16 of the Reorganization Agreement.
9. ASSIGNMENT. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by operation of law or otherwise, except
that Merger Sub may, without the approval of the Company or the Shareholder,
assign any or all of its rights, interests and obligations hereunder to BUC or
to any wholly-owned subsidiary of BUC. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns. Shareholder agrees that
this Agreement, and the obligations of the Shareholder hereunder, shall attach
to the Shareholder's Shares and shall be
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binding upon any Person to which legal or beneficial ownership of such Shares
shall pass, whether by operation of Law or otherwise, including without
limitation the Shareholder's heirs, guardians, administrators or successors.
10. TERMINATION. This Agreement shall terminate without any further action
on the part of any party hereto upon (a) the termination of the Reorganization
Agreement pursuant to the terms thereof, or (b) the Effective Time. Upon such
termination, this Agreement shall forthwith become void and of no further force
or effect.
11. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(c) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses or the addresses set forth on the
signature pages hereto:
If to Shareholder:
___________________________________
___________________________________
___________________________________
If to BUC or Merger Sub:
Bank United Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(d) SEVERABILITY. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable
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law, but if any provision or portion of any provision of this Agreement is held
to be invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, then such invalidity, illegality or
unenforceability will not affect any other provision or portion of any provision
in such jurisdiction, and this 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.
(e) SPECIFIC PERFORMANCE. Each of the parties hereto recognizes and
acknowledges that a breach by the Shareholder of any covenants or agreements
contained in this Agreement will cause BUC and Merger Sub to sustain damages for
which they would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that, in the event of any such
breach, BUC or Merger Sub shall be entitled to seek the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief, without the necessity of posting bond or proving actual damages, in
addition to any other remedy to which they may be entitled, at law or in equity.
(f) REMEDIES CUMULATIVE. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any such
right, power or remedy by any party shall not preclude the simultaneous or later
exercise of any other such right, power or remedy by such party.
(g) NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(h) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto; provided that, in the event of the Shareholder's
death, the obligations of the Shareholder hereunder shall attach to the
Shareholder's Shares and shall be binding upon any Person to which legal or
beneficial ownership of such Shares shall pass, whether by operation of Law or
otherwise, including without limitation the Shareholder's heirs, guardians,
administrators or successors.
(i) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas, without giving effect to the
principles of conflicts of law thereof.
(j) JURISDICTION. Each party hereby irrevocably submits to the
exclusive jurisdiction of any court of the State of Texas located in the City of
Houston in any action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding shall be brought
only in such court (and waives any objection based on forum non conveniens or
any other objection to venue therein); PROVIDED, HOWEVER, that such consent to
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jurisdiction is solely for the purpose referred to in this paragraph and shall
not be deemed to be a general submission to the jurisdiction of said Court other
than for such purposes. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN CONNECTION WITH ANY SUCH ACTION, SUIT OR PROCEEDING.
(k) DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(l) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement. This Agreement shall not
be effective as to any party hereto until such time as this Agreement or a
counterpart thereof has been executed and delivered by each party hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
SPOUSE SHAREHOLDER
__________________________________
Name:
BANK UNITED CORP.
By:_______________________________
Name:
Title:
BUC ACQUISITION CORP. II
By:_______________________________
Name:
Title:
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