Exhibit 9(a)
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 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇").
WITNESSETH:
1. Ownership of Stock. ▇▇▇▇▇▇▇ currently owns 1,461.79 shares of common
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capital stock in Gold Banc Corporation, Inc. (the "Corporation"). Except as set
forth below, such shares are referred to herein as "▇▇▇▇▇▇▇'▇ 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 "▇▇▇▇▇▇▇'▇ Shares of Stock" throughout this Agreement shall include
any and all shares issued to ▇▇▇▇▇▇▇ as a result of any such stock split or
stock dividend. Further, should ▇▇▇▇▇▇▇ acquire any additional shares of stock
in the Corporation in any other fashion after the date hereof, such shares will
be subject to the terms of this Agreement shall be deemed a part of "▇▇▇▇▇▇▇'▇
Shares of Stock" under the terms hereof. ▇▇▇▇▇▇▇ currently serves as President,
Chairman and Chief Executive Officer of the Corporation. Notwithstanding
anything herein contained to the contrary, as long as ▇▇▇▇▇▇▇ serves as a member
of the Board of Directors of the Corporation, he shall own shares of stock in
the Corporation sufficient to constitute directors' qualifying shares that will
not be subject to the terms and conditions of this Agreement.
2. Grant of Irrevocable Proxy. ▇▇▇▇▇▇▇ has deemed it to be in his best
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interest to grant to ▇▇▇▇▇▇▇ an irrevocable proxy to vote all of ▇▇▇▇▇▇▇'▇
Shares of Stock. Accordingly, ▇▇▇▇▇▇▇, being the owner of ▇▇▇▇▇▇▇'▇ Shares of
Stock, hereby constitutes and appoints ▇▇▇▇▇▇▇ as his true and lawful attorney,
for ▇▇▇▇▇▇▇ and in his name, place and ▇▇▇▇▇, with full power of substitution to
vote as ▇▇▇▇▇▇▇'▇ proxy all of ▇▇▇▇▇▇▇'▇ 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, ▇▇▇▇▇▇▇ shall have full, total and complete discretion as to the
voting of the stock. By execution hereof, ▇▇▇▇▇▇▇ revokes any and all proxies
heretofore made by him.
This Proxy shall be deemed an irrevocable proxy coupled with an interest as
provided hereinafter.
3. Right of First Refusal in Favor of ▇▇▇▇▇▇▇. If at any time during the
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term hereof, ▇▇▇▇▇▇▇ receives a bona fide offer from a third party for the
purchase of any of ▇▇▇▇▇▇▇'▇ Shares of Stock and he wishes to accept such offer,
he shall give written notice of same to ▇▇▇▇▇▇▇. Such notice shall include the
identity of the offeror and the purchase price for the shares to be acquired.
▇▇▇▇▇▇▇ shall be given one hundred eighty (180) days from the date of receipt of
such notice to exercise a right to purchase some or all of those shares which
▇▇▇▇▇▇▇ desires to sell. The price at which ▇▇▇▇▇▇▇ shall be permitted to
purchase such shares shall be as set forth in Section 4 hereinafter. If ▇▇▇▇▇▇▇
exercises such right, he shall deliver to ▇▇▇▇▇▇▇ an amount equal to one-third
(1/3) of the purchase price at the time of closing of such purchase. In
addition, ▇▇▇▇▇▇▇ shall deliver to ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ shall reserve the right
to prepay all or any portion of the amount due thereunder at any time without
penalty. ▇▇▇▇▇▇▇'▇ obligation under the promissory note shall be secured by a
pledge of two-thirds (2/3) of the shares of stock purchased by ▇▇▇▇▇▇▇ in such
transaction.
If ▇▇▇▇▇▇▇ exercises such right, he shall give written notice of same to
▇▇▇▇▇▇▇ within the aforementioned one hundred eighty (180) day period. Closing
shall then take place within thirty (30) days after the date ▇▇▇▇▇▇▇ has given
such notice. At the closing, ▇▇▇▇▇▇▇ shall deliver the payment due and the
promissory note required as set forth above. ▇▇▇▇▇▇▇ 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.
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If ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ shall 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 one hundred eighty
(180) day period. In the event the sale is completed within such time frame and
in accordance with the terms and conditions contained in such notice, then the
shares sold shall be free from the terms of this Agreement. If ▇▇▇▇▇▇▇ wishes to
transfer any of ▇▇▇▇▇▇▇'▇ Shares of Stock to a trust for the benefit of Wallman
or any of his children or grandchildren for estate planning purposes, then such
transfer shall be permitted without implementation of the right of first refusal
provision hereunder; provided, however, that the shares when transferred shall
continue to be subject to all terms and conditions of this Agreement including
the proxy right granted to ▇▇▇▇▇▇▇ under Section 2 and the right of first
refusal granted to ▇▇▇▇▇▇▇ under this Section 3. The trustee of any such trust
shall be bound hereby. Further, if ▇▇▇▇▇▇▇ wishes to make a gift of any of
▇▇▇▇▇▇▇'▇ Shares of Stock to any of his children, then such gift shall likewise
be permitted without implementation of the right of first refusal provision
hereunder; provided, however, that the shares will remain subject to all terms
and conditions of this Agreement including the proxy right granted to ▇▇▇▇▇▇▇ in
Section 2 above and the right of first refusal granted to ▇▇▇▇▇▇▇ under this
Section 3.
4. Purchase Price for Shares. As of the date of the execution hereof,
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the 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 ▇▇▇▇▇▇▇'▇
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
▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ which represents the bona fide offer he has received
from
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a third party. In the event of ▇▇▇▇▇▇▇'▇ death, the purchase price shall be the
price at which the stock was valued in the federal estate tax return filed on
behalf of ▇▇▇▇▇▇▇'▇ estate.
5. Death of ▇▇▇▇▇▇▇. If ▇▇▇▇▇▇▇ dies at any time during the term of this
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Agreement, the proxy granted by ▇▇▇▇▇▇▇ as set forth in Section 2 hereinabove
shall remain in full force and effect and the parties inheriting ▇▇▇▇▇▇▇'▇
Shares of Stock shall inherit same subject to such proxy. In addition, ▇▇▇▇▇▇▇
shall be afforded an option to purchase all or any portion of ▇▇▇▇▇▇▇'▇ Shares
of Stock as provided in Section 6 immediately hereinafter. The beneficiaries of
▇▇▇▇▇▇▇'▇ estate shall inherit ▇▇▇▇▇▇▇'▇ Shares of Stock subject to such option
rights as well.
6. Option to Purchase Shares. If this Agreement is still in effect as of
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the date of ▇▇▇▇▇▇▇'▇ death, then ▇▇▇▇▇▇▇ shall have an option which may be
exercised at any time within six (6) months of the date of ▇▇▇▇▇▇▇'▇ death to
purchase all or any portion of ▇▇▇▇▇▇▇'▇ Shares of Stock. The administrator or
executor of ▇▇▇▇▇▇▇'▇ estate or any trustee of any trust owning any of ▇▇▇▇▇▇▇'▇
Shares of Stock as of the date of ▇▇▇▇▇▇▇'▇ death shall hold such shares subject
to such option rights. ▇▇▇▇▇▇▇ may exercise the option at any time and from time
to time during such six (6) month period; provided, however, that if ▇▇▇▇▇▇▇
exercises such option as to less than all shares of ▇▇▇▇▇▇▇'▇ Shares of Stock,
then he must exercise on a prorata basis among all heirs and beneficiaries who
have received shares constituting ▇▇▇▇▇▇▇'▇ Shares of Stock as a result of
▇▇▇▇▇▇▇'▇ death if same have been distributed prior to the date of the exercise
of such option.
If ▇▇▇▇▇▇▇ desires to exercise the option granted hereunder, he shall give
written notice of same to the individuals or entities who then own ▇▇▇▇▇▇▇'▇
Shares of Stock with such notice to indicate the total number of shares to be
purchased by ▇▇▇▇▇▇▇ and the attendant number of shares to be purchased from
each individual or entity who then owns shares constituting ▇▇▇▇▇▇▇'▇ Shares of
Stock. The closing on the purchase of such shares shall take place within thirty
(30) days of the date of such notice. The purchase price for such shares shall
be determined in the same manner as set forth in Section 4 above and the method
of payment shall be the same as set forth in Section 4 with respect to the right
of first refusal granted to ▇▇▇▇▇▇▇ during ▇▇▇▇▇▇▇'▇ lifetime.
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At closing of such purchase, the selling individuals or entities shall
deliver the certificate or certificates representing the shares being purchased
by ▇▇▇▇▇▇▇ with such certificate or certificates being properly endorsed or
accompanied by properly executed stock powers. Such shares shall be delivered
free and clear of any liens or encumbrances.
As to any shares constituting ▇▇▇▇▇▇▇'▇ Shares of Stock which are not
purchased by ▇▇▇▇▇▇▇ pursuant to the option specified hereinabove, such shares
shall pass to the heirs and beneficiaries of ▇▇▇▇▇▇▇ free and clear of any of
the terms of this Agreement.
7. Term of Agreement. This Agreement shall commence as of the date and
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year first above written and shall continue until the earlier of (i) the date
▇▇▇▇▇▇▇ ceases to be President, Chairman and/or Chief Executive Officer of the
Corporation; or (ii) six (6) months after the date of ▇▇▇▇▇▇▇'▇ death (as to any
shares with respect to which ▇▇▇▇▇▇▇ has not exercised the option to acquire
shares constituting ▇▇▇▇▇▇▇'▇ Shares of Stock by such date, it being understood
that the Agreement will continue to apply with respect to those shares being
purchased by ▇▇▇▇▇▇▇ pursuant to such option even though closing of the purchase
of same occurs after such six (6) month period).
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.
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 ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ pertaining to ▇▇▇▇▇▇▇'▇ Shares of
Stock.
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
▇▇▇▇▇▇▇'▇ 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.
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IN WITNESS WHEREOF, the parties hereto set their hands as of the day and
year first above written.
___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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