exv4w5









Exhibit 4.5








November ___, 2011




Mr. Patrick Howard

President and Chief Executive Officer

T Bancshares, Inc.

16000 Dallas Parkway, Suite 125

Dallas, TX 75248




Rights Offer Agreement



Dear Mr. Howard:




     This letter agreement (this “Agreement”) by and between D.F. King & Co., Inc., a
Delaware corporation (“King”), and T Bancshares, Inc., a Texas corporation (the
“Company”), sets forth the terms and conditions of the engagement of King by the Company,
in connection with the proposed offer (the “Rights Offer”) by the Company to issue shares
of the Company’s common stock (the “Shares”) to the holders thereof (the
“Holders”). This Agreement shall commence on the date hereof and shall terminate on the
completion, expiration or termination of the Rights Offering (the “Term”). Capitalized
terms used herein and not defined shall have the definitions ascribed to such terms in the
prospectus to be filed with the Commission (as defined below) in connection with the Rights Offer.



     1. Services.



     (a) The Company hereby retains King as information agent (the “Information Agent”) in
connection with the Rights Offer.



     (b) In its capacity as Information Agent, King shall provide advisory and consulting services
(“Information Agent Services”) and shall contact, and provide information with respect to
the Rights Offer to, Holders. In no event shall King make any recommendation to any Holder
regarding whether to participate in the Rights Offer.



     (c) King shall use, and shall be provided by the Company with as many copies as King may
reasonably request from time to time of, the following materials filed by the Company with the
Securities and Exchange Commission (the “Commission”): (i) the Rights Offer; (ii) a Letter
of Transmittal, (iii) press releases and newspaper advertisements, if applicable; (iv) letters to
brokers, dealers, banks and trust companies relating to the Rights Offer; and (v) any and all
amendments or supplements to the foregoing (collectively, the “Rights Offer Materials”).



     2. Fees and Expenses.



     (a) As consideration for the Services, the Company shall pay to King a non-refundable fee of
$7,500, payable in full upon the completion, expiration or termination of the Rights Offer (the
“Service Fee”).



 









 





     (b) In the event that the Company (i) extends the Term, the Company shall pay to King an
extension fee of $500 for such, and each subsequent, extension (the “Extension Fee”) and
(ii) requests that King provide additional services, the Company shall pay to King additional fees
for such services at King’s reasonable and customary rates, such fees to be mutually agreed to by
the parties hereto at such time (the “Additional Service Fee”; together with the Service
Fee and the Extension Fee, the “Fees”).



     (c) The Company shall reimburse King for all reasonable and documented expenses incurred by
King (including, without limitation, reasonable fees, and disbursements of counsel, charges for
documented incoming/outgoing telephone calls by King with retail Holders, incurred on a per unit
basis of $5.00 per incoming/outgoing telephone call, plus documented telecommunications charges) in
connection with the Services (the “Expenses”). The Company shall also reimburse King for
the charges of banks, brokers and depositories.



     3. Information. The Company acknowledges that it shall be solely responsible for the
information contained in the Rights Offer Materials (the “Information”). King shall be
entitled to use and rely upon the Information without responsibility for independent verification
thereof and does not assume responsibility for the accuracy or completeness of the Information.
The Company shall advise King reasonably promptly of any amendment or supplement to the Rights
Offer Materials and shall provide such amendment or supplement to King as soon as practicable. The
Company hereby agrees that none of the Rights Offer Materials shall make reference to King without
prior review and written or oral approval (such approval not to be unreasonably withheld, delayed
or conditioned) of King.



     4. Representations and Warranties.



     The Company represents and warrants that:



          (a) this Agreement is valid and binding on the Company in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors’ rights generally and may be subject to general
principles of equity (regardless of whether such enforceability is considered in a proceeding in
equity or at law);



          (b) the Company has taken, or will take, all necessary corporate action prior to the
commencement of the Rights Offer to authorize the Rights Offer;



          (c) all Rights Offer Materials will comply, in all material respects, with the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (the
“Exchange Act”), and none of the Rights Offer Materials, and no other report, filing,
document, release or communication published or filed by the Company in connection with the Rights
Offer, will contain any untrue or misleading statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements made therein, in
light of the circumstances under which they were made, not misleading;



          (d) the Rights Offer will comply, in all material respects, with all applicable requirements
of law including the applicable rules or regulations of any governmental or regulatory authority or
body, and no material consent or approval of, or filing with, any governmental or regulatory
authority or body, (other than required filings under the Exchange Act) is required in connection
with the making or consummation of the Rights Offer (or, if any such material consent, approval or
filing is required it will be duly obtained or made prior to the commencement of the Rights Offer);
and



          (e) the Rights Offer and the execution, delivery and performance of this Agreement, will not
conflict with or result in a breach of or constitute a default under the Company’s certificate of
formation and by-laws, or any material agreement, indenture, mortgage, note or another instrument
by



2









 







which the Company is bound, except as would not reasonably be expected to have a material
adverse effect on the Company or the transactions contemplated under the Rights Offer.



     5. Confidentiality.



     (a) King shall preserve the confidentiality of all material non-public information provided by
the Company or its agents for King’s use in fulfilling the Services (the “Confidential
Information”), and shall not publish, disclose or otherwise divulge, such Confidential
Information without the Company’s prior written consent, except to its officers, directors, agents,
or employees on a confidential and need-to-know basis.



     (b) Nothing herein shall prevent King from disclosing any such Confidential Information (i)
pursuant to the order of any court or administrative agency or in any pending legal, judicial or
administrative proceeding, or otherwise as required by applicable law or compulsory legal process
based on the advice of counsel (in which case King agrees, to the extent practicable and not
prohibited by applicable law, to inform the Company promptly thereof prior to disclosure), (ii)
upon the request or demand of any regulatory authority having jurisdiction over King (in which case
King agrees, to the extent practicable and not prohibited by applicable law, to inform the Company
promptly thereof prior to disclosure), (iii) to the extent that such Confidential Information
becomes publicly available other than by reason of improper disclosure by King in violation of any
confidentiality obligations owing to the Company or any of its respective affiliates, (iv) to the
extent that such information is received by King from a third party that is not, to King’s best
knowledge, subject to contractual or fiduciary confidentiality obligations owing to the Company or
its respective affiliates or related parties, and (v) to the extent such information was
independently and lawfully developed by King without the use of any Confidential Information.
Promptly upon the Company’s written request, King will deliver to the Company or destroy all
Confidential Information.



3









 





     6. Indemnity.



     (a) The Company hereby agrees to indemnify and hold harmless King and its affiliates and its
and their officers, directors, employees, advisors, agents, other representatives and controlling
persons (King and each such other person being an “Indemnified Person”; and such
affiliates, officers, directors, employees, advisors, agents, other representatives and controlling
persons of any such Indemnified Person are referred to herein as its “related parties”),
from and against any and all losses, claims, damages, liabilities and expenses, joint or several,
to which any such Indemnified Person may become subject to arising out of or in connection with
this Agreement and the Services or any claim, litigation, investigation or proceeding (any of the
foregoing, a “Proceeding”) relating to any of the foregoing, regardless of whether any such
Indemnified Person is a party thereto or whether a Proceeding is brought by a third party or by the
Company or any of its affiliates, and to reimburse each such Indemnified Person upon demand for any
reasonable, documented legal or other out-of-pocket expenses incurred in connection with
investigating or defending any of the foregoing by one counsel to the Indemnified Persons taken as
a whole and, in the case of a conflict of interest, one additional counsel to the affected
Indemnified Persons taken as a whole; provided that the foregoing indemnity shall not, as
to any Indemnified Person or related parties, apply to losses, claims, damages, liabilities or
related expenses (i) to the extent they have resulted from the willful misconduct or gross
negligence of such Indemnified Person or any of the related parties (as determined by a court of
competent jurisdiction in a final and non-appealable decision), (ii) arising from a material breach
of the obligations of such Indemnified Person under this Agreement or (iii) arising out of, or in
connection with, any Proceeding that does not involve an act or omission by the Company or any of
its affiliates and that is brought by an Indemnified Person
against any other Indemnified Person. The foregoing indemnity and the Company’s reimbursement
obligations hereunder will be in addition to any liability which the Company may otherwise have and
will be binding upon and inure to the benefit of any of the Company’s successors and assigns and
the Indemnified Persons.



     (b) No party hereto shall be liable to any other party on any theory of liability for any
special, indirect, consequential or punitive damages (including, without limitation, any loss of
profits, business or anticipated savings); provided that nothing contained in this sentence
shall limit the Company’s indemnification and reimbursement obligations set forth herein.



     (c) In the event that an Indemnified Person is requested or required to appear as a witness or
is deposed in any action brought by or on behalf of or against the Company or any of its
subsidiaries or affiliates in which such Indemnified Person is not named as a defendant, the
Company agrees to reimburse such Indemnified Person for all reasonable expenses incurred by it in
connection with such Indemnified Person’s appearing and preparing to appear as such a witness,
including, without limitation, the reasonable fees and expenses of its legal counsel.



     7. Notices. Any notice, report or payment required or permitted to be given or made
under this Agreement by one party to the other shall be in writing and addressed to the other party
at the following address (or at such other address as shall be given in writing by one party to the
other):


If to the Company, at the address above, with a copy to:



Hunton & Williams LLP

1445 Ross Avenue, Suite 3700

Dallas, Texas 75202

Attention: Michael G. Keeley, Esq.

Fax: (214) 740-7138

Email: mkeeley@hunton.com



If to King:




4









 







D.F. King & Co., Inc.

48 Wall Street, 22nd Floor

New York, NY 10005

Attention: M. Asher F. Richelli, General Counsel

Fax: 212-709-3296

Email: arichelli@king-worldwide.com




     8. Miscellaneous.



     (a) The Company acknowledges and agrees that (i) no fiduciary or advisory relationship between
the Company and King is intended to be or has been created in respect of any of the transactions
contemplated by this Agreement and (ii) the Company waives, to the fullest extent permitted by law,
any claims that it may have against King for breach of fiduciary duty or alleged breach of
fiduciary duty and agrees that King shall have no liability (whether direct or indirect) to the
Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim
on behalf of or in right of the Company, including its Holders, employees or creditors.



     (b) This Agreement shall be construed and enforced in accordance with the laws of the State of
New York, without reference to its conflicts of law rules. It is agreed that any action, suit or
proceeding arising out of or based upon this Agreement shall be brought in the United States
District
Court for the Southern District of New York or any court of the State of New York of competent
jurisdiction located in such District. Service of any process by registered mail addressed to each
party at the respective address above shall be effective service of process against such party for
any suit, action or proceeding brought in any such court. The parties hereto (i) waive, to the
fullest extent it may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement or the Services in any New York State court or in any such Federal court, (ii) waive, to
the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of
such suit, action or proceeding in any such court, and (iii) agree that a final judgment in any
such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. EACH PARTY HERETO IRREVOCABLY WAIVES
THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF
OF ANY PARTY RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE OF ANY SERVICES
HEREUNDER.



     (c) The compensation, confidentiality, reimbursement, indemnification, jurisdiction, governing
law and waiver of jury trial provisions contained herein shall remain in full force and effect
regardless of the termination of the Agreement. No amendment or waiver of any provision hereof
shall be effective unless in writing and signed by the parties hereto and then only in the specific
instance and for the specific purpose for which given. This Agreement is the only agreement
between the parties hereto with respect to the matters contemplated hereby and sets forth the
entire understanding of the parties with respect thereto. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page of this Agreement
by facsimile transmission (or in “.pdf” or “.tif” form) shall be effective as
delivery of a manually executed counterpart of this Agreement. If any provision of this Agreement
shall be held illegal or invalid by any court, this Agreement shall be construed and enforced as if
such provision had not been contained herein and shall be deemed an agreement between the parties
hereto to the fullest extent permitted by law.



5









 





     If the foregoing correctly sets forth the understanding between the Company and King, please
indicate acceptance thereof in the space provided below for that purpose, whereupon this Agreement
and the Company’s acceptance shall constitute a binding agreement between the parties hereto.




	 	 	 	 	 
	 	D.F. KING & CO., INC.

 	 
	 	By:  	 	 
	 	 	Name:  	Richard H. Grubaugh 	 
	 	 	Title:  	Senior Vice President 	 
	 







Accepted as of the date first above written:




	 	 	 	 	 
	 	T BANCSHARES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	Patrick Howard 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 




6