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AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
BOK FINANCIAL CORPORATION
TULSA, OKLAHOMA
AND
FIRST TEXCORP, INC.
DALLAS, TEXAS
Dated as of December 18, 1996
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TABLE OF CONTENTS
ARTICLE I. ACQUISITION OF FTC BY BOKF.......................... 2
SECTION 1.01 Merger of BOKSub with and into FTC............ 2
SECTION 1.02 Effects of the Merger......................... 2
SECTION 1.03 Articles of Incorporation and Bylaws.......... 2
SECTION 1.04 Directors and Officers........................ 2
SECTION 1.05 Conversion of the FTC Stock................... 2
SECTION 1.06 Shareholders' Meeting......................... 4
SECTION 1.07 Delivery of Consideration..................... 5
ARTICLE II. THE CLOSING AND THE CLOSING DATE.................... 5
SECTION 2.01 Time and Place of the Closing and Closing Date 5
SECTION 2.02 Actions to be Taken at the Closing by FTC..... 6
SECTION 2.03 Actions to be Taken at the Closing by BOKF.... 7
SECTION 2.04 Further Assurances............................ 8
SECTION 2.05 Effective Date................................ 9
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF FTC............... 9
SECTION 3.01 Organization and Qualification................ 9
SECTION 3.02 Execution and Delivery........................ 10
SECTION 3.03 Capitalization................................ 10
SECTION 3.04 Compliance with Laws, Permits and Instruments. 11
SECTION 3.05 Financial Statements.......................... 12
SECTION 3.06 Undisclosed Liabilities....................... 12
SECTION 3.07 Litigation.................................... 12
SECTION 3.08 Consents and Approvals........................ 12
SECTION 3.09 Title to Assets............................... 12
SECTION 3.10 Absence of Certain Changes or Events.......... 13
SECTION 3.11 Leases, Contracts and Agreements.............. 13
SECTION 3.12 Taxes......................................... 13
SECTION 3.13 Insurance..................................... 14
SECTION 3.14 Environmental Compliance...................... 14
SECTION 3.15 Regulatory Compliance......................... 14
SECTION 3.16 Absence of Certain Business Practices......... 14
SECTION 3.17 Dissenting Shareholders....................... 15
SECTION 3.18 Books and Records............................. 15
SECTION 3.19 Voting Trust or Buy-Sell Agreements........... 15
SECTION 3.20 Employee Benefit Plans........................ 15
SECTION 3.21 Representations Not Misleading................ 15
SECTION 3.22 Survival and Independence of Representations
and Warranties................................ 15
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF BOKF.............. 16
SECTION 4.01 Organization and Qualification................ 16
SECTION 4.02 Execution and Delivery........................ 16
SECTION 4.03 Material Liabilities.......................... 16
SECTION 4.04 Compliance with Laws, Permits and Instruments. 16
SECTION 4.05 Litigation.................................... 17
(i)
SECTION 4.06 Consents and Approvals....................... 17
SECTION 4.07 Representations Not Misleading............... 17
ARTICLE V. COVENANTS OF FTC................................... 17
SECTION 5.01 Best Efforts................................. 17
SECTION 5.02 Merger Agreement............................. 17
SECTION 5.03 Information for Applications and Statements.. 17
SECTION 5.04 Required Acts of FTC and the Bank............ 18
SECTION 5.05 Prohibited Acts of FTC and the Bank.......... 19
SECTION 5.06 Additional Financial Statements.............. 21
SECTION 5.07 Untrue Representations....................... 21
SECTION 5.08 Litigation and Claims........................ 21
SECTION 5.09 No Negotiation with Others................... 21
SECTION 5.10 Consents and Approvals....................... 22
ARTICLE VI. COVENANTS OF BOKF.................................. 22
SECTION 6.01 Best Efforts................................. 22
SECTION 6.02 Incorporation and Organization of BOKSub..... 22
SECTION 6.03 Merger Agreements............................ 22
SECTION 6.04 Information for Applications................. 22
SECTION 6.05 Acts of BOKSub............................... 23
SECTION 6.06 Untrue Representations....................... 23
SECTION 6.07 Litigation and Claims........................ 23
SECTION 6.08 Regulatory and Other Approvals............... 23
SECTION 6.09 Adverse Change............................... 23
ARTICLE VII. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF FTC..... 23
SECTION 7.01 Compliance with Representations, Warranties,
and Agreements............................... 23
SECTION 7.02 Shareholder Approvals........................ 24
SECTION 7.03 Government and Other Approvals............... 24
SECTION 7.04 No Litigation................................ 24
SECTION 7.05 Funds Availability........................... 24
SECTION 7.06 Certain Additional Conditions................ 25
ARTICLE VIII. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BOKF.... 25
SECTION 8.01 Compliance with Representations, Warranties
and Agreements............................... 25
SECTION 8.02 Shareholder Approvals........................ 26
SECTION 8.03 Government and Other Approvals............... 26
SECTION 8.04 No Litigation................................ 26
SECTION 8.05 No Material Adverse Change................... 26
SECTION 8.06 Certain Additional Conditions................ 26
SECTION 8.07 Payment of FTC Indebtedness.................. 27
ARTICLE IX. TERMINATION AND ABANDONMENT........................ 27
SECTION 9.01 Right of Termination......................... 27
SECTION 9.02 Notice of Termination........................ 28
SECTION 9.03 Effect of Termination........................ 28
(ii)
ARTICLE X. CONFIDENTIAL INFORMATION............................ 28
SECTION 10.01 Definition of "Recipient,"
"Disclosing Party" and "Representative"...... 28
SECTION 10.02 Definition of "Subject Information".......... 29
SECTION 10.03 Confidentiality.............................. 29
SECTION 10.04 Securities Law Concerns...................... 29
SECTION 10.05 Return of Subject Information................ 29
SECTION 10.06 Specific Performance/Injunctive Relief....... 30
ARTICLE XI. MISCELLANEOUS....................................... 30
SECTION 11.01 Survival of Representations and Warranties... 30
SECTION 11.02 Expenses..................................... 30
SECTION 11.03 Brokerage Fees and Commissions............... 30
SECTION 11.04 Entire Agreement............................. 31
SECTION 11.05 Further Cooperation.......................... 31
SECTION 11.06 Severability................................. 31
SECTION 11.07 Notices...................................... 31
SECTION 11.08 GOVERNING LAW................................ 32
SECTION 11.09 Multiple Counterparts........................ 33
SECTION 11.10 Certain Definitions.......................... 33
SECTION 11.11 Specific Performance......................... 34
SECTION 11.12 Attorneys' Fees and Costs.................... 34
SECTION 11.13 Rules of Construction........................ 34
SECTION 11.14 Binding Effect; Assignment................... 35
SECTION 11.15 Public Disclosure............................ 35
SECTION 11.16 Extension; Waiver............................ 35
SECTION 11.17 Amendments................................... 35
ARTICLE XII ESCROWS............................................. 36
SECTION 12.01 Representations Escrow....................... 36
SECTION 12.02 Deposits Escrow.............................. 37
SECTION 12.03 ESI/DDI Escrow............................... 39
(iii)
EXHIBITS
Exhibit "A" Form of Merger Agreement
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Exhibit "B" - Form of Employment Agreement
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Exhibit "C" - Form of Representations Escrow Agreement
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Exhibit "D" - Form of Deposits Escrow Agreement
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SCHEDULES
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Schedule 3.04 - Compliance with Laws, Permits and Instruments
Schedule 3.06 - Undisclosed Liabilities
Schedule 3.07 - Litigation
Schedule 3.08 - Consents and Approvals
Schedule 3.10 - Certain Changes or Events
Schedule 3.11 - Contracts
Schedule 3.13 - Insurance
Schedule 3.14 - Environmental Compliance
Schedule 3.15 - Regulatory Compliance
Schedule 3.19 - Voting Trust or Buy-Sell Agreements
Schedule 3.20 - Employee Benefit Plans
Schedule 4.06 - Consents and Approvals
Schedule 12.02 - Large Deposits
(iv)
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made and
entered into as of the 18th day of December, 1996, by and between BOK Financial
Corporation, an Oklahoma corporation and registered bank holding company with
its principal offices in Tulsa, Oklahoma ("BOKF"), and First TexCorp, Inc., a
Texas corporation and registered bank holding company with its principal offices
in Dallas, Texas ("FTC").
W I T N E S S E T H:
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WHEREAS, FTC owns all of the stock of First Texas Bank, Dallas, Texas, a
Texas banking association (the "Bank");
WHEREAS, BOKF desires to acquire all of the issued and outstanding stock
of FTC through the merger of BOKF Merger Corporation Number Six, a wholly-owned
subsidiary of BOKF ("BOKSub") with and into FTC (the "Merger");
WHEREAS, BOKF and FTC believe that the Merger, as provided for and subject
to the terms and conditions set forth in this Agreement and all exhibits,
schedules and supplements hereto, is in the best interests of BOKF, FTC and
their respective shareholders;
WHEREAS, BOKF and FTC desire to set forth certain representations,
warranties and covenants made by each to the other as an inducement to the
execution and delivery of this Agreement and certain additional agreements
related to the transactions contemplated hereby; and
WHEREAS, the respective boards of directors of BOKF and FTC have approved
this Agreement and the proposed transactions substantially on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual representations, warranties, covenants and agreements contained in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to the conditions set
forth below, BOKF and FTC undertake, promise, covenant and agree with each other
as follows:
ARTICLE I.
ACQUISITION OF FTC BY BOKF
SECTION 1.01 Merger of BOKSub with and into FTC. Subject to the terms
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and conditions of this Agreement and the Agreement and Plan of Merger to be
entered into between FTC and BOKSub (the "Merger Agreement"), attached hereto as
Exhibit "A", BOKF shall cause BOKSub to be merged with and into FTC pursuant to
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the provisions of Part Five of the Texas Business Corporation Act (the "TBCA")
and with the effect provided in Article 5.06 of the TBCA.
SECTION 1.02 Effects of the Merger. The Merger shall have the effects
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set forth in Article 5.06 of the TBCA. Following the Merger, FTC shall continue
as the corporation resulting from the Merger (the "Resulting Corporation"), and
the separate corporate existence of BOKSub shall cease. The name of the
Resulting Corporation shall be "First TexCorp, Inc." The existing offices and
facilities of FTC immediately preceding the Merger shall be the principal
offices and facilities of the Resulting Corporation following the Merger. At
the Effective Date (defined below in Section 2.05), all rights, title and
interests to all real estate and other property owned by each of BOKSub and FTC
shall be allocated to and vested in the Resulting Corporation without reversion
or impairment, without further act or deed, and without any transfer or
assignment having occurred, but subject to any existing liens or encumbrances
thereon. At the Effective Date, all liabilities and obligations of BOKSub and
FTC shall be allocated to the Resulting Corporation, and the Resulting
Corporation shall be the primary obligor therefor and no other party to the
Merger shall be liable therefor. At the Effective Date, a proceeding pending by
or against either BOKSub or FTC may be continued as if the Merger did not occur,
or the Resulting Corporation may be substituted in the proceedings.
SECTION 1.03 Articles of Incorporation and Bylaws. The Articles of
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Incorporation and Bylaws, respectively, of the Resulting Corporation shall be as
set forth in the Merger Agreement.
SECTION 1.04 Directors and Officers. The directors and officers,
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respectively, of the Resulting Corporation shall be as set forth in the Merger
Agreement.
SECTION 1.05 Conversion of the FTC Stock. At the Effective Date by
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virtue of this Agreement and without any further action on the part of any
holder,
A. The holders as of the Effective Date (the "FTC Shareholders") of
the common stock of FTC, par value $4.00 per share (the "FTC Stock"), shall
collectively be entitled to receive from BOKF the consideration described
in Sections 1.05B, 1.05C, 1.05D and 1.05E below (collectively, the "Merger
Consideration").
B. As of the Effective Date, the FTC Shareholders shall receive an
aggregate purchase price of $36,700,000 (the "Cash Consideration"),
provided that (i) if the Merger is not consummated by (a) March 4, 1997, if
the Board of Governors of the Federal Reserve System (the "Federal
Reserve") permits the consummation of the Merger on the fifteenth day
following approval of the Merger by the Federal Reserve or (b) March 19,
1997, if the Federal Reserve permits consummation of the Merger on the
thirtieth day following approval of the Merger, the Cash Consideration
will, unless the failure to consummate the Merger by such date results from
a failure of the FTC Stockholders to approve the Merger by such date,
increase by $10,000 per day between March 4, 1997 or March 19, 1997, as the
case may be, and the Effective Date and (ii) the Cash Consideration shall
decrease by an amount equal to the FTC Expenses (as such term is defined in
Section 11.02) plus the amount of the Excess Indebtedness (as defined in
Section 8.07). The Cash Consideration divided by the number of shares of
the FTC Stock outstanding on the Effective Date is referred to herein as
the "Per Share Cash Consideration." On the Effective Date, each holder of
the FTC Stock shall be entitled to receive the Per Share Cash Consideration
for each share of FTC Stock such holder owns on the Effective Date.
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C. As of the date of termination of the Representations Escrow
Agreement (as defined in Section 12.01), the FTC Shareholders shall receive
an aggregate amount equal to the Representations Escrow Funds (as defined
in Section 12.01). The Representations Escrow Funds divided by the number
of shares of FTC Stock outstanding on the Effective Date is referred to
herein as the "Per Share Representations Escrow Consideration". Upon the
termination of the Representations Escrow Agreement, each holder of the FTC
Stock as of the Effective Date shall be entitled to receive the Per Share
Representations Escrow Consideration for each share of FTC Stock such
holder owns on the Effective Date.
D. As of the date of termination of the Deposits Escrow Agreement
(as defined in Section 12.02), the FTC Shareholders shall receive an
aggregate amount equal to the Deposits Escrow Funds (as defined in Section
12.02). The Deposits Escrow Funds divided by the number of shares of FTC
Stock outstanding on the Effective Date is referred to herein as the "Per
Share Deposits Escrow Consideration". Upon the termination of the Deposits
Escrow Agreement, each holder of the FTC Stock as of the Effective Date
shall be entitled to receive the Per Share Deposits Escrow Consideration
for each share of FTC Stock such holder owns on the Effective Date.
E. As of the termination of the ESI/DDI Escrow Agreement (as defined
in Section 12.03), the FTC Shareholders shall receive an aggregate amount
equal to the ESI/DDI Escrow Funds (as defined in Section 12.03). The
ESI/DDI Escrow Funds divided by the number of shares of FTC Stock
outstanding on the Effective Date is referred to herein as the "Per Share
ESI/DDI Escrow Consideration". Upon the termination of the ESI/DDI Escrow
Agreement, each holder of the FTC Stock as of the Effective Date shall be
entitled to receive the Per Share ESI/DDI Escrow Consideration for each
share of FTC Stock such holder owns on the Effective Date.
F. The number of shares of common stock of BOKSub (the "BOKSub
Stock") outstanding at the Effective Date shall, at the Effective Date and
by virtue of the Merger and without any action on the part of BOKF or any
other party as holder thereof, be converted into a like number of shares of
common stock of the Resulting Corporation with a par value of $1.00 per
share, with the effect that the number of shares of the common stock of the
Resulting Corporation outstanding immediately after the Effective Date
shall be equal to the aggregate number of shares of BOKSub Stock
outstanding immediately before the Effective Date. The authorized number
of shares of common stock of the Resulting Corporation shall be the same as
the authorized number of shares of BOKSub Stock immediately prior to the
Effective Date.
G. The Per Share Cash Consideration, the Per Share Representations
Escrow Consideration, and the Per Share Deposits Escrow Consideration are
hereafter collectively referred to as the "Per Share Merger Consideration."
As of the Effective Date, each share of the FTC Stock issued and
outstanding at the Effective Date shall, by operation of law and without
any action on the part of the holder thereof, unless dissenters' rights
under applicable law are being perfected with respect thereto, be converted
into the right to receive the Per Share Merger Consideration.
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H. On or following the Effective Date, each holder of the FTC Stock
shall be required to surrender, in accordance with Section 1.07, its shares
of FTC Stock to FTC, which shall act as exchange agent (the "Exchange
Agent"), and upon such surrender, each such holder shall be entitled to
receive from BOKF within three (3) business days thereafter, an amount of
cash as determined pursuant to Section 1.05B. Until so surrendered, each
such outstanding certificate representing shares of FTC Stock shall be
deemed for all purposes, subject only to dissenters' rights under
applicable law, to evidence solely the right to receive from BOKF the Per
Share Merger Consideration multiplied by the number of shares represented
by such certificate.
SECTION 1.06 Shareholders' Meeting. FTC, acting through its Board of
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Directors, shall, in accordance with applicable law:
A. Duly call, give notice of, convene and hold a meeting of its
shareholders (the "Shareholders' Meeting") as soon as practicable for the
purpose of approving and adopting the Merger and the Merger Agreement and
the transactions contemplated hereby and thereby;
B. Require no greater than the minimum vote of the FTC Stock
required by applicable law in order to approve the Merger and the Merger
Agreement;
C. Subject to its fiduciary duties to the shareholders of FTC,
include in the Proxy Statement (defined in Section 1.06(D)) the
recommendation of its Board of Directors that the shareholders of FTC vote
in favor of the approval and adoption of the Merger and the Merger
Agreement and the transactions contemplated hereby and thereby; and
D. Cause the Proxy Statement to be mailed to the shareholders of FTC
as soon as practicable, and use its best efforts to obtain the approval and
adoption of the Merger and the Merger Agreement by shareholders holding at
least the minimum number of shares of FTC Stock entitled to vote at the
Shareholders' Meeting necessary to approve the Merger and the Merger
Agreement under applicable law. The letter to shareholders, notice of
meeting, proxy statement and form of proxy to be distributed to
shareholders in connection with the Merger and the Merger Agreement shall
be in form and substance reasonably satisfactory to BOKF and are
collectively referred to herein as the "Proxy Statement."
SECTION 1.07 Delivery of Consideration. The Exchange Agent shall send to
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each holder of the FTC Stock a letter of transmittal for use in exchanging such
holder's certificates for the Per Share Cash Consideration. FTC shall forward
letters of transmittal to each of its shareholders, addressed to the most
current address of such shareholders according to the records of FTC, at least
twenty (20) days prior to the Closing Date unless FTC and BOKF shall mutually
agree to send such letters at a later date. If a holder of the FTC Stock
surrenders the certificates representing shares of such stock and a properly
executed letter of transmittal to the Exchange Agent at least three (3) business
days prior to the Closing Date, then on the Closing Date, BOKF shall pay to such
shareholder the consideration set forth in Section 1.05B, with respect to shares
of the FTC Stock. If a holder of the FTC Stock surrenders the certificates
representing shares
4
of such stock and a properly executed letter of transmittal to the Exchange
Agent at any time after three (3) business days prior to the Closing Date, then
promptly, and in no event later than three (3) business days after receipt of
such certificates and letter of transmittal, BOKF shall pay to such shareholder
the consideration set forth in Section 1.05B with respect to such shares of the
FTC Stock. If any record shareholder of FTC is unable to locate any certificate
evidencing the FTC Stock, such shareholder shall submit to the Exchange Agent an
affidavit of lost certificate and indemnification agreement in form reasonably
acceptable to BOKF. Notwithstanding the foregoing, neither the Exchange Agent
nor any other party to this Agreement shall be liable to any holder of
certificates representing the FTC Stock for any amount paid to a public official
pursuant to any applicable abandoned property, escheat or similar law. No
interest shall be payable with respect to the payment of the Merger
Consideration.
ARTICLE II.
THE CLOSING AND THE CLOSING DATE
SECTION 2.01 Time and Place of the Closing and Closing Date. On a date
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determined by BOKF (herein called the "Closing Date"), which date shall be
within thirty (30) days after the receipt of all necessary regulatory, corporate
and other approvals and the expiration of any mandatory waiting periods (unless
extended as provided below), a meeting (the "Closing") will take place at which
the parties to this Agreement will exchange certificates, letters and other
documents in order to determine whether all of the conditions set forth in
Articles VII and VIII of this Agreement have been satisfied or waived or whether
any condition exists permitting a party to this Agreement to terminate this
Agreement. If no such condition then exists or if no party elects to exercise
any right it may have to terminate this Agreement, then and thereupon the
appropriate parties shall execute such documents and instruments as may be
necessary or appropriate in order to effect the transactions contemplated by
this Agreement.
The Closing shall take place at the offices of Jenkens & Gilchrist, a
Professional Corporation, 1445 Ross Avenue, Suite 3200, Dallas, Texas 75202, on
the Closing Date, or at such other place to which the parties may agree.
SECTION 2.02 Actions to be Taken at the Closing by FTC. At the Closing,
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FTC shall execute and acknowledge (where appropriate) and deliver to BOKF, such
documents and certificates necessary to carry out the terms and provisions of
this Agreement, including without limitation, the following (all of such actions
constituting conditions precedent to BOKF's obligations to close hereunder):
A. True, correct and complete copies of the Articles of
Incorporation of FTC and all amendments thereto, duly certified as of a
recent date by the Secretary of State of the State of Texas;
B. True, correct and complete copies of the Articles of the Bank and
all amendments thereto, duly certified as of a recent date by the Texas
Department of Banking (the "TDB");
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C. Good standing and existence certificates of a recent date, issued
by the appropriate state officials, duly certifying as to the existence and
good standing of FTC in Texas;
D. A certificate to do business, dated as of a recent date, issued
by the TDB, duly certifying as to the authority of the Bank to transact the
business of banking under the laws of the United States;
E. A certificate of good standing, dated as of a recent date, issued
by the Texas Comptroller of Public Accounts, duly certifying as to the good
standing of the Bank in the State of Texas;
F. A certificate, dated as of a recent date, issued by the Federal
Deposit Insurance Corporation (the "FDIC"), duly certifying that the
deposits of the Bank are insured by the FDIC pursuant to the Federal
Deposit Insurance Act (the "FDIA");
G. A certificate, dated as of the Closing Date, duly executed by the
Secretary or an Assistant Secretary of FTC, acting solely in his capacity
as an officer of FTC, pursuant to which FTC shall certify (i) the due
adoption by the Board of Directors of FTC of corporate resolutions attached
to such certificate authorizing the execution and delivery of this
Agreement and the other agreements and documents contemplated hereby,
including, but not limited to, the Merger Agreement, and the taking of all
actions contemplated hereby and thereby; (ii) the due adoption by the
shareholders of FTC authorizing the transactions and the execution and
delivery of this Agreement and the other agreements and documents
contemplated hereby and the taking of all actions contemplated hereby and
thereby; (iii) the incumbency and true signatures of those officers of FTC
duly authorized to act on its behalf in connection with the transactions
contemplated by this Agreement and to execute and deliver this Agreement
and other agreements and documents contemplated hereby and the taking of
all actions contemplated hereby and thereby on behalf of FTC; and (iv) that
the copy of the Bylaws of FTC attached to such certificate is true and
correct and such Bylaws have not been amended except as reflected in such
copy;
H. A certificate duly executed by the Cashier or an Assistant
Cashier of the Bank, acting solely in his capacity as an officer of the
Bank, pursuant to which the Bank shall certify that the copy of the Bylaws
attached to such certificate is true and correct and such Bylaws have not
been amended except as reflected in such copy;
I. A certificate duly executed by a duly authorized officer of FTC,
acting solely in his capacity as an officer of FTC, dated as of the Closing
Date, pursuant to which FTC shall certify that all of the representations
and warranties made in Article III of this Agreement are true and correct
on and as of the date of such certificate as if made on such date and
except as expressly permitted by this Agreement there shall have been no
Material Adverse Change since September 30, 1996;
6
J. All consents required to be obtained by FTC from third parties to
consummate the transactions contemplated by this Agreement, including, but
not limited to, those listed on Schedule 3.08; and
K. All other documents required to be delivered to BOKF by FTC under
the provisions of this Agreement, and all other documents, certificates and
instruments as are reasonably requested by BOKF or its counsel.
SECTION 2.03 Actions to be Taken at the Closing by BOKF. At the Closing,
------------------------------------------
BOKF shall execute and acknowledge (where appropriate) and deliver to FTC, such
documents and certificates necessary to carry out the terms and provisions of
this Agreement, including without limitation, the following (all of such actions
constituting conditions precedent to FTC's obligations to close hereunder):
A. True, correct and complete copies of BOKF's Articles of
Incorporation and all amendments thereto, duly certified as of a recent
date by the Secretary of State of the State of Oklahoma;
B. True, correct and complete copies of BOKSub's Articles of
Incorporation and all amendments thereto, duly certified as of a recent
date by the Secretary of State of the State of Texas;
C. Good standing and existence certificates for BOKF, dated as of a
recent date, issued by the appropriate state officials, duly certifying as
to the existence and good standing of BOKF in the State of Oklahoma;
D. A certificate, dated as of the Closing Date, executed by the
Secretary or an Assistant Secretary of BOKF, acting solely in his capacity
as an officer of BOKF, pursuant to which BOKF shall certify (i) the due
adoption by the Board of Directors of BOKF of corporate resolutions
attached to such certificate authorizing the execution and delivery of this
Agreement and the other agreements and documents contemplated hereby and
the taking of all actions contemplated hereby and thereby; (ii) the
incumbency and true signatures of those officers of BOKF duly authorized to
act on its behalf in connection with the transactions contemplated by this
Agreement and to execute and deliver this Agreement and other agreements
and documents contemplated hereby and the taking of all actions
contemplated hereby and thereby on behalf of BOKF; and (iii) that the copy
of the Bylaws of BOKF attached to such certificate is true and correct and
such Bylaws have not been amended except as reflected in such copy;
E. A certificate duly executed by the Secretary or an Assistant
Secretary of BOKSub, acting solely in his capacity as an officer of BOKSub,
pursuant to which BOKSub shall certify (i) the due adoption by the Board of
Directors of BOKSub of corporate resolutions attached to such certificate
authorizing the execution and delivery of the Merger Agreement and the
taking of all actions contemplated thereby; (ii) the incumbency and true
signatures of those officers of BOKSub duly authorized to act on its behalf
in connection with the transactions contemplated by the Merger Agreement
and to execute and deliver the Merger Agreement and the taking of all
actions contemplated
7
thereby on behalf of BOKSub; and (iii) that the copy of the Bylaws of
BOKSub attached to such certificate is true and correct and such Bylaws
have not been amended except as reflected in such copy;
F. True, correct and complete copies of the Certificate of Merger of
BOKSub with and into FTC, duly certified as of a recent date by the
Secretary of State of the State of Texas;
G. A certificate, dated as of the Closing Date, executed by a duly
authorized officer of BOKF, acting solely in his capacity as an officer of
BOKF, pursuant to which BOKF shall certify that all of the representations
and warranties made in Article IV of this Agreement are true and correct on
and as of the date of such certificate as if made on such date;
H. All consents required to be obtained by BOKF or BOKSub from third
parties to consummate the transactions contemplated by this Agreement,
including, but not limited to, those listed on Schedule 4.06; and
I. All other documents required to be delivered to FTC by BOKF under
the provisions of this Agreement, and all other documents, certificates and
instruments as are reasonably requested by FTC or its counsel.
SECTION 2.04 Further Assurances. At any time and from time to time after
------------------
the Closing, at the request of any party to this Agreement and without further
consideration, any party so requested will execute and deliver such other
instruments and take such other action as the requesting party may reasonably
deem necessary or desirable in order to effectuate the transactions contemplated
hereby. In the event that, at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Agreement, each party
hereto shall take or cause to be taken all such action.
SECTION 2.05 Effective Date. The "Effective Date" as that term is used in
--------------
this Agreement means the effective date of the Merger under the Merger
Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF FTC
FTC hereby makes the representations and warranties set forth in this
Article III to BOKF. FTC shall at the Closing provide BOKF with supplemental
schedules reflecting any material changes thereto between the date of this
Agreement and the Closing Date. Except to the extent a change is reflected on
such a schedule delivered at the Closing, FTC shall be deemed to have
represented and warranted that no Material Adverse Change has occurred with
respect to the information reflected on such schedule from the date of this
Agreement to the Closing Date.
SECTION 3.01 Organization and Qualification.
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8
A. FTC is a bank holding company registered under the Bank Holding
Company Act of 1956, as amended. FTC is a corporation, duly organized,
validly existing and in good standing under all laws, rules and regulations
of the State of Texas. FTC has all requisite corporate power and authority
(including all licenses, franchises, permits and other governmental
authorizations as are legally required) to carry on its business as now
being conducted, to own, lease and operate its properties and assets,
including, but not limited to, the Bank, as now owned, leased or operated
and to enter into and carry out its obligations under this Agreement and
the Merger Agreement. FTC does not own or control any Affiliate (as
defined in Section 11.10) or Subsidiary (as defined in Section 11.10),
directly or indirectly, other than the Bank. The nature of the business of
FTC and its activities do not require it to be qualified to do business in
any jurisdiction other than the State of Texas. FTC has no equity
interest, direct or indirect, in any other bank or corporation or in any
partnership, joint venture or other business enterprise or entity, other
than the Bank or as acquired through settlement of indebtedness,
foreclosure, the exercise of creditors' remedies or in a fiduciary
capacity, and the business carried on by FTC has not been conducted through
any other direct or indirect Subsidiary or Affiliate of FTC other than the
Bank.
B. The Bank is a Texas banking association duly organized, validly
existing and in good standing under the laws of the State of Texas. The
Bank has all requisite corporate power and authority (including all
licenses, franchises, permits and other governmental authorizations as are
legally required) to carry on its business as now being conducted, to own,
lease and operate its properties and assets as now owned, leased or
operated and to enter into and carry out its obligations under this
Agreement. True and complete copies of the Articles and Bylaws of the
Bank, as amended to date, have been delivered to BOKF. The Bank is an
insured bank as defined in the FDIA and is not a member of the Federal
Reserve System. The Bank does not own or control any Affiliate (as defined
in Section 11.10) or Subsidiary (as defined in Section 11.10). The nature
of the business of the Bank does not require it to be qualified to do
business in any jurisdiction other than the State of Texas. The Bank has
no equity interest, direct or indirect, in any other bank or corporation or
in any partnership, joint venture or other business enterprise or entity,
except (i) shares of Minority Enterprise Small Business Investment
Corporation, and (ii) as acquired through settlement of indebtedness,
foreclosure, the exercise of creditors' remedies or in a fiduciary, and the
business carried on by the Bank has not been conducted through any other
direct or indirect Subsidiary or Affiliate of the Bank.
SECTION 3.02 Execution and Delivery. FTC has taken all corporate action
----------------------
necessary to authorize the execution, delivery and (provided the required
regulatory and shareholder approvals are obtained) performance of this
Agreement. This Agreement has been duly executed by FTC and constitutes the
legal, valid and binding obligation of FTC, enforceable in accordance with its
terms and conditions, except as enforceability may be limited by bankruptcy,
conservatorship, insolvency, moratorium, reorganization, receivership or similar
laws and judicial decisions affecting the rights of creditors of Texas banking
associations generally and by general principles of equity (whether applied in a
proceeding at law or in equity).
SECTION 3.03 Capitalization.
--------------
9
A. The entire authorized capital stock of FTC consists solely of
1,000,000 shares of the FTC Stock, par value $4.00 per share, of which
347,779 shares are issued and outstanding. There are no (i) other
outstanding equity securities of any kind or character, (ii) outstanding
subscriptions, stock appreciation rights (other than those expiring
December 31, 1996), options, convertible securities, rights, warrants,
calls or other agreements or commitments of any kind issued or granted by,
or binding upon, FTC to purchase or otherwise acquire any security of or
equity interest in FTC or (iii) outstanding subscriptions, options, rights,
warrants, calls, convertible securities, irrevocable proxies or other
agreements or commitments obligating FTC to issue any shares of,
restricting the transfer of or otherwise relating to shares of its capital
stock of any class. All of the issued and outstanding shares of the FTC
Stock have been duly authorized, validly issued and are fully paid and
nonassessable, and, to the best knowledge of FTC, have not been issued in
violation of the preemptive rights of any person. To the best knowledge of
FTC, such shares of the FTC Stock have been issued in full compliance with
the securities laws of the United States and other jurisdictions having
applicable securities laws. There are no restrictions applicable to the
payment of dividends on the shares of the FTC Stock except pursuant to
applicable laws and regulations, and all dividends declared prior to the
date of this Agreement have been paid.
B. The entire authorized capital stock of the Bank consists solely
of 312,500 shares of common stock, par value $4.00 per share (the "Bank
Stock"), all of which are issued and outstanding. There are no (i) other
outstanding equity securities of any kind or character, (ii) outstanding
subscriptions, options, convertible securities, rights, warrants, calls or
other agreements or commitments of any kind issued or granted by, or
binding upon, the Bank to purchase or otherwise acquire any security of or
equity interest in the Bank or (iii) outstanding subscriptions, options,
rights, warrants, calls, convertible securities, irrevocable proxies or
other agreements or commitments obligating the Bank to issue any shares of,
restricting the transfer of or otherwise relating to shares of its capital
stock of any class. All of the issued and outstanding shares of the Bank
Stock have been duly authorized, validly issued and are fully paid and
nonassessable, and, to the best knowledge of the Bank, have not been issued
in violation of the preemptive rights of any person. To the best knowledge
of the Bank, such shares of the Bank Stock have been issued in full
compliance with the securities laws of the United States and other
jurisdictions having applicable securities laws. There are no restrictions
applicable to the payment of dividends on the shares of the Bank Stock
except pursuant to applicable laws and regulations, and all dividends
declared prior to the date of this Agreement have been paid.
SECTION 3.04 Compliance with Laws, Permits and Instruments.
---------------------------------------------
A. Except as disclosed on Schedule 3.04, to the best knowledge of
FTC, FTC and the Bank have in all material respects performed and abided by
all obligations required to be performed by them to the date hereof, and
have complied with, and are in compliance with, and are not in default (or
with the giving of notice or the passage of time will be in default) under,
or in violation of, (i) any material provision of the Articles of
Incorporation or Bylaws of FTC or Articles or Bylaws of the Bank (ii) any
material provision of any mortgage, indenture, lease, contract, agreement
or other instrument
10
applicable to FTC or the Bank or their assets, operations, properties or
businesses now conducted or heretofore conducted or (iii) any material
provision of any permit, concession, grant, franchise, license,
authorization, judgment, writ, injunction, order, decree, award, statute,
federal, state or local law, ordinance, rule or regulation of any court,
arbitrator or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality applicable
to FTC or the Bank or their assets, operations, properties or businesses
now conducted or heretofore conducted.
B. Except as set forth on Schedule 3.04, to the best knowledge of
FTC, the execution, delivery and (provided the required regulatory and
shareholder approvals are obtained) performance of this Agreement and the
consummation of the transactions contemplated hereby will not conflict
with, or result, by itself or with the giving of notice or the passage of
time, in any violation of or default or loss of a benefit under, (i) any
material provision of the Articles of Incorporation or Bylaws of FTC or the
Articles or Bylaws of the Bank, (ii) any material provision of any
mortgage, indenture, lease, contract, agreement or other instrument
applicable to FTC or the Bank or their assets, operations, properties or
businesses or (iii) any material provision of any permit, concession,
grant, franchise, license, authorization, judgment, writ, injunction,
order, decree, statute, law, ordinance, rule or regulation applicable to
FTC or the Bank or their assets, operations, properties or businesses.
SECTION 3.05 Financial Statements. FTC has furnished to BOKF true and
--------------------
complete copies of the audited balance sheets of FTC as of December 31, 1993,
1994 and 1995, and the related audited statements of income, stockholders'
equity and cash flows for the years ended December 31, 1993, 1994 and 1995, and
the Report of Condition and Income of the Bank as of September 30, 1996 (such
financial statements are collectively referred to herein as the "Financial
Statements"). Except as described in the notes to the Financial Statements, the
Financial Statements fairly present, in all material respects, the financial
position of FTC and the Bank as of the respective dates thereof and the results
of operations and changes in financial position of FTC and the Bank for the
periods then ended, in conformity with generally accepted accounting principles
("GAAP"), unless otherwise instructed by regulatory accounting principles
("RAP"), in which instance such information is presented in conformity with RAP,
applied on a basis consistent with prior periods (subject, in the case of the
unaudited interim financial statements, to normal year-end adjustments and the
fact that they do not contain all of the footnote disclosures required by GAAP),
except as otherwise noted therein.
SECTION 3.06 Undisclosed Liabilities. FTC and the Bank do not have any
-----------------------
material liability or obligation, accrued, absolute, contingent or otherwise and
whether due or to become due (including, without limitation, unfunded
obligations under any Employee Benefit Plan (as defined in Section 3.20) or
liabilities for federal, state or local taxes or assessments or liabilities
under any agreement that are not reflected in or disclosed in the Financial
Statements, except (i) those liabilities and expenses incurred in the ordinary
course of business and consistent with prudent business practices since the date
of the Financial Statements or (ii) as disclosed on Schedule 3.06.
SECTION 3.07 Litigation. Except as set forth on Schedule 3.07, there are
----------
no actions, claims, suits, investigations, reviews or other legal, quasi-
judicial or administrative proceedings
11
of any kind or nature now pending or, to the best knowledge of FTC, since
September 30, 1996, threatened against or affecting FTC or the Bank at law or
in equity, or by or before any federal, state or municipal court or other
governmental or administrative department, commission, board, bureau, agency or
instrumentality, that in any manner involves FTC or the Bank or any of their
properties or capital stock that might reasonably be anticipated to result in a
Material Adverse Change. No legal action, suit or proceeding or judicial,
administrative or governmental investigation is pending or, to the best
knowledge of FTC, threatened against FTC questioning or that might question the
validity of this Agreement or the agreements contemplated hereby or any actions
taken or to be taken by pursuant hereto or thereto or seeks to enjoin or
otherwise restrain the transactions contemplated hereby or thereby.
SECTION 3.08 Consents and Approvals. Except as set forth on Schedule
----------------------
3.08, no other consents or approvals are required to be obtained by FTC prior to
consummation of the transactions contemplated by this Agreement.
SECTION 3.09 Title to Assets. True and complete copies of all existing
---------------
deeds, leases and title insurance policies for all real property owned or leased
by FTC and the Bank and all mortgages, deeds of trust, security agreements and
other documents describing encumbrances to which such property is subject have
been made available to BOKF. FTC and Bank have good and valid title (with
respect to fee real estate, good and valid title shall mean such title as may be
insured on standard title insurance forms with no exceptions materially and
adversely affecting the value or use of the fee real estate) to their assets,
and in each case subject to no mortgage, pledge, lien, security interest,
conditional sale agreement, or other encumbrance of any nature whether similar
or dissimilar, except (i) such encumbrances which are purchase money security
interests entered into in the ordinary course of business consistent with past
practice reflected on their books and records; (ii) Lessors' interests in leased
tangible real and personal property reflected on their books and records; (iii)
such encumbrances for taxes and assessments not yet due and payable; and, (iv)
encumbrances as do not materially detract from the value or interfere with the
use or operation of the asset subject thereto.
SECTION 3.10 Absence of Certain Changes or Events. Except as disclosed on
------------------------------------
Schedule 3.10, since September 30, 1996, FTC and the Bank have conducted their
business only in the ordinary course and consistent with past practices.
SECTION 3.11 Leases, Contracts and Agreements. Schedule 3.11 sets forth a
--------------------------------
description of all leases, subleases, licenses, contracts and agreements to
which FTC and the Bank are parties or by which FTC or the Bank are bound, each
of which obligate or may obligate FTC or the Bank in the aggregate for an amount
in excess of $50,000 over the entire term of any such agreement or related
contracts of a similar nature that in the aggregate obligate or may obligate
FTC or the Bank for an amount in excess of $50,000 over the entire term of such
related contracts (the "Contracts"). FTC has made available to BOKF true and
correct copies of all Contracts. For the purposes of this Agreement, the
Contracts shall be deemed not to include loans made by, repurchase agreements
made by, spot foreign exchange transactions of, bankers' acceptances of or
deposits by the Bank, but does include unfunded loan commitments and letters of
credit issued by the Bank where the borrowers' total direct and indirect
indebtedness to the Bank is in excess of $50,000. Except as set forth in
Schedule 3.11, no participations or loans have been sold that have buy-back,
recourse or guaranty provisions that create contingent or
12
direct liabilities of the Bank. To the best knowledge of FTC, all of the
Contracts are legal, valid and binding obligations of the parties to the
Contracts enforceable in accordance with their terms, subject to the effects of
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to creditors' rights generally and to general equitable principles, and
are in full force and effect. Except as described in Schedule 3.11, all rent
and other payments by FTC or the Bank under the Contracts are current, and to
the best knowledge of FTC, there are no existing defaults by FTC or the Bank
under the Contracts and no termination, condition or other event has occurred
that (whether with or without notice, lapse of time or the happening or
occurrence of any other event) would constitute a default.
SECTION 3.12 Taxes. FTC and the Bank have duly and timely filed with the
-----
appropriate Federal, state and local governmental agencies all tax returns and
reports required to be filed by FTC and the Bank, and have paid, or have
established adequate reserves for the payment of, all taxes and assessments that
are or are claimed to be due, payable or owed by FTC and the Bank. True and
complete copies of the consolidated Federal income tax returns of FTC, as filed
with the Internal Revenue Service for the years ended December 31, 1993, 1994
and 1995, have been delivered to BOKF. Within the last four (4) years, FTC's
consolidated Federal income tax return has not been audited or examined.
SECTION 3.13 Insurance. Schedule 3.13 contains an accurate and complete
---------
list and brief description of all policies of insurance, including fidelity and
bond insurance, currently in force and effect at FTC and the Bank. FTC and the
Bank are not in default with respect to the provisions of any such policy.
Except as set forth on Schedule 3.13, there has been no single claim in excess
of $10,000 under any such policy and there have been no claims in the aggregate
in excess of $50,000 under any such policy within the last two (2) years.
SECTION 3.14 Environmental Compliance. Except as disclosed on Schedule
------------------------
3.14:
A. To the best knowledge of FTC, FTC and all of the Properties and
FTC's and the Bank's operations are in material compliance with all
Environmental Laws (as defined in Section 11.10).
B. There is no action, suit, proceeding, investigation or inquiry
before any court, administrative agency or other governmental authority
pending, to the best knowledge of FTC, or threatened against FTC and the
Bank, relating in any way to any Environmental Law. FTC has not received
any request for information by any governmental authority with respect to
the condition, use or operation of any of the Properties nor has FTC
received any notice of any kind from any governmental authority or other
person with respect to any violation of or claimed or potential liability
of any kind under any Environmental Law (including, without limitation, any
letter, notice or inquiry from any person or governmental entity informing
FTC that FTC or the Bank is or may be liable in any way under any
Environmental Law (as defined in Section 11.10) or requesting information
to enable such a determination to be made).
SECTION 3.15 Regulatory Compliance. Schedule 3.15 sets forth any
---------------------
memorandum of understanding, cease and desist order, written agreement or other
formal or informal administrative action with any regulatory bodies to which FTC
or the Bank has been subject
13
during the last five (5) years, true and correct copies of which, and true and
correct copies of any correspondence amending or terminating the same, have been
delivered to BOKF.
SECTION 3.16 Absence of Certain Business Practices. To the best knowledge
-------------------------------------
of FTC, none of FTC or the Bank, nor any officer, employee or agent of FTC and
the Bank, nor any other person acting on their behalf, has, directly or
indirectly, within the past five (5) years, given or agreed to give any gift or
similar benefit to any customer, supplier, governmental employee or other
person who is or may be in a position to help or hinder the business of FTC or
the Bank (or assist FTC in connection with any actual or proposed transaction)
that (i) might subject FTC or the Bank to any damage or penalty in any civil,
criminal or governmental litigation or proceeding, (ii) if not given in the
past, might have resulted in a Material Adverse Change or (iii) if not continued
in the future might result in a Material Adverse Change or might subject FTC or
the Bank to suit or penalty in any private or governmental litigation or
proceeding.
SECTION 3.17 Dissenting Shareholders. FTC has no knowledge of any plan or
-----------------------
intention on the part of any of the shareholders of FTC to make written demand
for payment of the fair value of their shares of FTC Stock in the manner
provided by applicable law.
SECTION 3.18 Books and Records. The minute books, stock certificate books
-----------------
and stock transfer ledgers of FTC and the Bank (i) have been kept accurately in
the ordinary course of business, (ii) are complete and correct in all material
respects, (iii) the transactions entered therein represent bona fide
transactions, and (iv) there have been no transactions involving the business of
FTC or the Bank that properly should have been set forth therein and that have
not been accurately so set forth.
SECTION 3.19 Voting Trust or Buy-Sell Agreements. Except as set forth on
-----------------------------------
Schedule 3.19, FTC is not aware of any agreement between any of its shareholders
relating to a right of first refusal with respect to the purchase or sale by any
such shareholder of capital stock of FTC or any voting agreement or voting trust
with respect to shares of capital stock of FTC.
SECTION 3.20 Employee Benefit Plans. Set forth on Schedule 3.20 is a
----------------------
complete and correct list of all "employee benefit plans" (as defined in the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")), all
specified fringe benefit plans as defined in Section 6039D of the Internal
Revenue Code of 1986, as amended (the "Code"), and all other employment
agreements, bonus, incentive, compensation, deferred compensation, profit
sharing, stock option, stock appreciation right, stock bonus, stock purchase,
employee stock ownership, savings, severance, supplemental unemployment, layoff,
salary continuation, retirement, pension, health, life insurance, disability,
group insurance, vacation, holiday, sick leave, fringe benefit or welfare plan
or any other similar plan, agreement, policy or understanding (whether written
or oral, qualified or nonqualified, currently effective or terminated), and any
trust, escrow or other agreement related thereto, which (a) is maintained or
contributed to by FTC or the Bank or with respect to which FTC or the Bank has
any liability, and (b) provides benefits, or describes policies or procedures
applicable to any officer, employee, service provider, former officer or former
employee of FTC and the Bank or the dependents of any thereof, regardless of
whether funded (the "Employee Plans"). FTC has delivered or made available to
BOKF true, accurate
14
and complete copies of the documents comprising each Employee Plan, and such
other documents, records or other materials related thereto reasonably requested
by BOKF.
SECTION 3.21 Representations Not Misleading. No representation or
------------------------------
warranty by FTC contained in this Agreement, nor any statement, exhibit or
schedule furnished to BOKF by FTC under and pursuant to, or in anticipation of
this Agreement, contains or will contain on the Closing Date any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained herein or therein, in light of the
circumstances under which it was or will be made, not misleading.
SECTION 3.22 Survival and Independence of Representations and Warranties.
-----------------------------------------------------------
Each of the representations and warranties set forth in this Merger Agreement
(i) shall survive the Closing as hereinafter provided in Article 12
notwithstanding any knowledge or information of BOKF (whether such knowledge or
information is acquired in the exercise of a due diligence review or otherwise),
(ii) shall not merge with the delivery of any document delivered in connection
with the consummation of the transactions contemplated by this Merger Agreement,
(iii) shall be deemed material and relied upon by BOKF, (iv) shall be deemed a
separate and independent representation and warranty, (v) shall be cumulative
and in addition to all other representations and warranties made pursuant to
this Agreement, and (vi) shall not limit or be interpreted to be in derogation
of any other representation or warranty made pursuant to this Agreement. No
waiver of a representation or warranty as a condition precedent shall be deemed
a waiver for any other purpose (including, without limitation, the purposes of
Section 12.01)
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF BOKF
BOKF hereby makes the representations and warranties set forth in this
Article IV to FTC.
SECTION 4.01 Organization and Qualification. BOKF is a corporation, duly
------------------------------
organized, validly existing under the laws of the State of Oklahoma, and in good
standing under the laws of such state. BOKF has all requisite corporate power
and authority (including all licenses, franchises, permits and other
governmental authorizations as are legally required) to carry on its business as
now being conducted, to own, lease and operate its properties and assets as now
owned, leased or operated and to enter into and carry out its obligations under
this Agreement.
SECTION 4.02 Execution and Delivery. BOKF has taken all corporate action
----------------------
necessary to authorize the execution, delivery and (provided the required
regulatory approvals are obtained) performance of this Agreement. This
Agreement has been duly executed by BOKF and constitutes the valid and binding
obligation of BOKF, enforceable in accordance with its terms and conditions,
except as enforceability may be limited by bankruptcy, conservatorship,
insolvency, moratorium, reorganization, receivership or similar laws and
judicial decisions affecting the rights of creditors generally and by general
principles of equity (whether applied in a proceeding at law or in equity).
SECTION 4.03 Material Liabilities. BOKF has no material liability or
--------------------
obligation, accrued, absolute, contingent or otherwise and whether due or to
become due except those
15
liabilities and expenses incurred in connection with its organization and with
the execution and performance of this Agreement.
SECTION 4.04 Compliance with Laws, Permits and Instruments. The
---------------------------------------------
execution, delivery and (provided the required regulatory approvals are
obtained) performance of this Agreement and the consummation of the transactions
contemplated hereby, will not conflict with, or result, by itself or with the
giving of notice or the passage of time, in any violation of or default or loss
of a benefit under, (i) any provision of the Articles of Incorporation or Bylaws
of BOKF, (ii) any material provision of any mortgage, indenture, lease,
contract, agreement or other instrument applicable to BOKF or its assets,
operations, properties or businesses now conducted or heretofore conducted or
(iii) any statute, law, ordinance, rule or regulation applicable to BOKF.
SECTION 4.05 Litigation. No legal action, suit or proceeding or judicial,
----------
administrative or governmental investigation is pending or, to the best
knowledge of BOKF, threatened against or BOKF that questions or might question
the validity of this Agreement or the agreements contemplated hereby or any
actions taken or to be taken by BOKF pursuant hereto or thereto or seeks to
enjoin or otherwise restrain the transactions contemplated hereby or thereby.
SECTION 4.06 Consents and Approvals. BOKF's Board of Directors (at a
----------------------
meeting duly called and held) has resolved to approve and adopt the Merger
Agreement and the Merger as the sole shareholder of BOKSub. Except for
regulatory approvals as disclosed in Schedule 4.06, no approval, consent, order
or authorization of, or registration, declaration or filing with, any
governmental authority or other third party is required on the part of BOKF in
connection with the execution, delivery or performance of this Agreement or the
agreements contemplated hereby or the consummation by BOKF of the transactions
contemplated hereby or thereby. BOKF is not aware of any matters that would
prevent BOKF from obtaining all necessary approvals as set forth on Schedule
4.06, on a timely basis.
SECTION 4.07 Representations Not Misleading. No representation or
------------------------------
warranty by BOKF contained in this Agreement, nor any statement, exhibit or
schedule furnished to FTC by BOKF under and pursuant to, or in anticipation of
this Agreement, contains or will contain on the Closing Date any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained herein or therein, in light of the
circumstances under which it was or will be made, not misleading.
ARTICLE V.
COVENANTS OF FTC
FTC hereby makes the covenants set forth in this Article V to BOKF.
SECTION 5.01 Best Efforts. FTC will use its best efforts to cause the
------------
consummation of the transactions contemplated hereby in accordance with the
terms and conditions of this Agreement.
16
SECTION 5.02 Merger Agreement. FTC will, as soon as practicable after the
----------------
execution of this Agreement, duly authorize and enter into the Merger Agreement,
the form of which is attached hereto as Exhibit "A", and perform all of its
-----------
obligations thereunder.
SECTION 5.03 Information for Applications and Statements. FTC will, and
-------------------------------------------
will cause the Bank to, promptly furnish to BOKF all information concerning FTC
and the Bank, including, but not limited to, financial statements, required for
inclusion in any application or statement to be made by BOKF to or filed by BOKF
with any governmental body in connection with the transactions contemplated by
this Agreement, or in connection with any unrelated transactions during the
pendency of this Agreement, and FTC represents and warrants that all information
so furnished for such statements and applications shall be true and correct in
all material respects and shall not omit any material fact required to be stated
therein or necessary to make the statements made, in light of the circumstances
under which they were made, not misleading. FTC and the Bank shall otherwise
fully cooperate with BOKF in the filing of any applications or other documents
necessary to consummate the transactions contemplated by this Agreement.
SECTION 5.04 Required Acts of FTC and the Bank. Prior to the Closing, FTC
---------------------------------
and the Bank shall, unless otherwise permitted in writing by BOKF:
A. Operate only in the ordinary course of business and consistent
with prudent banking practices;
B. Except as required by normal business practices, use all
reasonable efforts to preserve its business organization intact and to
retain its present customers, depositors, suppliers, correspondent banks,
officers, directors, employees and agents;
C. Act in a manner intended to preserve or attempt to preserve its
goodwill;
D. Perform all of its obligations under contracts, leases and
documents relating to or affecting its assets, properties and business
except such obligations as FTC or the Bank may in good faith reasonably
dispute;
E. Except as required by normal business practices, maintain all
offices, machinery, equipment, materials, supplies, inventories, vehicles
and other properties owned, leased or used by it (whether under its control
or the control of others), in good operating condition and repair, ordinary
wear and tear excepted;
F. Maintain in full force and effect all insurance policies now in
effect or renewals thereof and, except as required by normal business
practices that do not jeopardize insurance coverage, give all notices and
present all claims under all insurance policies in due and timely fashion;
G. Timely file all reports required to be filed with governmental
authorities and observe and conform to all applicable laws, rules,
regulations, ordinances, codes, orders, licenses and permits, except those
being contested in good faith by appropriate proceedings;
17
H. Timely file all tax returns required to be filed by it and
promptly pay all taxes, assessments, governmental charges, duties,
penalties, interest and fines that become due and payable, except those
being contested in good faith by appropriate proceedings;
I. Withhold from each payment made to each of its employees the
amount of all taxes (including, but not limited to, federal income taxes,
FICA taxes and state and local income and wage taxes) required to be
withheld therefrom and pay the same to the proper tax receiving officers;
J. Continue to follow and implement policies, procedures and
practices regarding the identification, monitoring, classification and
treatment of all assets in substantially the same manner as it has in the
past; and
K. Account for all transactions in accordance with GAAP (unless
otherwise instructed by RAP, in which instance account for such transaction
in accordance with RAP).
SECTION 5.05 Prohibited Acts of FTC and the Bank. Since September 30,
-----------------------------------
1996, FTC and Bank have not and, after the date of this Agreement and prior to
the Closing, neither FTC nor the Bank shall, without the prior written consent
of BOKF (which consent shall be deemed to have been denied unless BOKF consents
in writing pursuant to Section 11.07):
A. Introduce any new material method of management or operation;
B. Take any action that could reasonably be anticipated to result in
a Material Adverse Change;
C. Take or fail to take any action that would reasonably cause or
permit the representations and warranties made in Article III hereof to be
inaccurate at the time of the Closing or preclude FTC from making such
representations and warranties at the time of the Closing;
D. Mortgage, pledge or subject to lien, charge, security interest or
any other encumbrance or restriction any of its property, business or
assets, tangible or intangible except in the ordinary course of business
and consistent with past practices;
E. Cause or allow the loss of insurance coverage, unless replaced
with coverage which is substantially similar (in amount and insurer) to
that now in effect;
F. Incur any obligation or liability, whether absolute or
contingent, except in the ordinary course of business and consistent with
past practices;
G. Discharge or satisfy any lien, charge or encumbrance or pay any
obligation or liability, whether absolute or contingent, due or to become
due, except in the ordinary course of business consistent with past
practices;
18
H. Issue, reserve for issuance, grant, sell or authorize the
issuance of any shares of its capital stock or other securities or
subscriptions, options, warrants, calls, rights or commitments of any kind
relating to the issuance thereto;
I. Purchase or redeem any of its stock or declare or pay any
distribution on its outstanding capital stock, except for:
(i) dividends by the Bank to FTC,
(ii) redemptions or repurchases of the FTC Stock required in
order to satisfy any litigation pending against FTC or the Bank or to
allow FTC to fulfill its obligations to the employee stock ownership
plan of FTC, provided that any amounts paid to redeem or repurchase
the FTC Stock shall reduce the Merger Consideration.
J. Change its articles or bylaws or its authorized capital stock;
K. Sell, transfer, lease to others or otherwise dispose of any of
its assets or cancel or compromise any debt or claim, or waive or release
any right or claim, which, individually or in the aggregate, would
constitute a Material Adverse Change, except (i) sales of other real estate
held by the Bank, (ii) a sale of approximately 0.8 acres owned by the Bank
and adjacent to the bank's main banking facility, or (iii) in the ordinary
course of business and consistent with past practices;
L. Enter into any transaction other than in the ordinary course of
business;
M. Sell or knowingly dispose of, or otherwise divest itself of the
ownership, possession, custody or control, of any corporate books or
records of any nature that, in accordance with past practice, normally are
retained for a period of time after their use, creation or receipt, except
at the end of the normal retention period;
N. Make any change in the rate of compensation, commission, bonus or
other direct or indirect remuneration payable, or pay or agree or orally
promise to pay, conditionally or otherwise, any bonus, extra compensation,
extra pension or extra severance or extra vacation pay, to or for the
benefit of any of its shareholders, directors, officers, employees or
agents, or enter into any employment or consulting contract (other than as
contemplated by this Agreement) or other agreement with any director,
officer or employee or adopt, amend in any material respect or terminate
any pension, employee welfare, retirement, stock purchase, stock option,
stock appreciation rights, termination, severance, income protection,
golden parachute, savings or profit-sharing plan (including trust
agreements and insurance contracts embodying such plans), any deferred
compensation, or collective bargaining agreement, any group insurance
contract or any other incentive, welfare or employee benefit plan or
agreement maintained by it for the benefit of its directors, employees or
former employees, except in the ordinary course of business and consistent
with past practices and safe and sound banking principles, and except
normal periodic increases in the compensation payable to officers or
salaried employees, consistent with past practices and made in the ordinary
course of business,
19
provided, however, that nothing in this Agreement shall be construed to
prohibit the Bank from (i) paying bonuses to officers and employees of the
Bank consistent with the Bank's past practices or (ii) taking any of the
actions described in Section 7.06;
P. Acquire any capital stock or other equity securities or acquire
any equity or ownership interest in any bank, corporation, partnership or
other entity, except (i) through settlement of indebtedness, foreclosure,
or the exercise of creditors' remedies or (ii) in a fiduciary capacity, the
ownership of which does not expose it to any liability from the business,
operations or liabilities of such person;
Q. Terminate, cancel or surrender any contract, lease or other
agreement or suffer any damage, destruction or loss that, in any case or in
the aggregate, would constitute a Material Adverse Change;
R. Dispose of, permit to lapse, transfer or grant any rights under,
or breach or infringe upon, any United States or foreign license or
proprietary right or modify any existing rights with respect thereto,
except in the ordinary course of business and consistent with past
practices and safe and sound banking principles;
S. Make any capital expenditures or capital additions or betterments
in excess of an aggregate of $50,000, other than those expenditures
contemplated by the proposed upgrade of the Bank's internal computer
network; or
T. Make any, or acquiesce with any, change in any accounting
methods, principles or material practices.
SECTION 5.06 Additional Financial Statements. FTC shall promptly furnish,
-------------------------------
when available, BOKF with (A) unaudited statements of condition and income of
FTC as of September 30, 1996 and December 31, 1996 and (B) true and complete
copies of each additional Report of Condition and Income of the Bank.
SECTION 5.07 Untrue Representations. FTC shall promptly notify BOKF in
----------------------
writing if FTC becomes aware of any fact or condition making untrue, or shows to
have been untrue, in any material respect, any schedule or any other information
furnished to BOKF or any representation or warranty made in or pursuant to this
Agreement or resulting in FTC's failure to comply with any covenant, condition
or agreement contained in this Agreement.
SECTION 5.08 Litigation and Claims. FTC shall promptly notify BOKF in
---------------------
writing of any litigation, or of any claim, controversy or contingent liability
that might be expected to become the subject of litigation, against FTC or the
Bank or affecting any of their properties, if such litigation or potential
litigation might, in the event of an unfavorable outcome, result in a Material
Adverse Change, and FTC shall promptly notify BOKF of any legal action, suit or
proceeding or judicial, administrative or governmental investigation, pending
or, to the knowledge of FTC, threatened against FTC or the Bank that questions
or might question the validity of this Agreement or the agreements contemplated
hereby, including, but not limited to, the Merger Agreement, or any actions
taken or to be taken by FTC or the Bank pursuant hereto or thereto or seeks to
enjoin or otherwise restrain the transactions contemplated hereby or thereby.
20
SECTION 5.09 No Negotiation with Others. FTC shall not, directly or
--------------------------
indirectly, nor shall it permit the Bank or their officers, directors,
employees, representatives or agents to, directly or indirectly (A) encourage,
solicit or initiate discussions or negotiations with, or (B) except upon advice
of counsel to the extent required to fulfill the fiduciary duties owed to the
shareholders of FTC, entertain, discuss or negotiate with, or provide any
information to, or cooperate with, any corporation, partnership, person or other
entity or group (other than BOKF or its Affiliates or associates or officers,
partners, employees or other authorized representatives of BOKF or such
Affiliates or associates) concerning any merger, tender offer or other takeover
offer, sale of substantial assets, sale of shares of capital stock or similar
transaction involving FTC or the Bank. Immediately upon receipt of any
unsolicited offer, FTC will communicate to BOKF the terms of any proposal or
request for information and the identity of the parties involved.
SECTION 5.10 Consents and Approvals. FTC shall use its best efforts to
----------------------
obtain all consents and approvals from third parties, including those listed on
Schedule 3.08, at the earliest practicable time.
ARTICLE VI.
COVENANTS OF BOKF
BOKF hereby makes the covenants set forth in this Article VI to FTC.
SECTION 6.01 Best Efforts. BOKF agrees to use its best efforts to cause
------------
the consummation of the transactions contemplated hereby in accordance with the
terms and conditions of this Agreement.
SECTION 6.02 Incorporation and Organization of BOKSub. BOKF will
----------------------------------------
incorporate, charter and organize BOKSub as a Texas corporation.
SECTION 6.03 Merger Agreements. BOKF will, as soon as practicable after
-----------------
the execution of this Agreement, enter into the Merger Agreement, the form of
which is attached hereto as Exhibit "A", and shall perform all of its
-----------
obligations thereunder. BOKF will, as soon as practicable after the execution
of this Agreement, cause BOKSub to duly authorize and enter into the Merger
Agreement and shall cause BOKSub to perform all of its obligations thereunder.
BOKF shall vote all of the stock of BOKSub in favor of the Merger and the Merger
Agreement.
SECTION 6.04 Information for Applications and Statements. BOKF will
-------------------------------------------
promptly furnish to FTC all information concerning BOKF and BOKSub, including,
but not limited to, financial statements, required for inclusion in (A) any
proxy statement to be used by FTC in connection with the approval of the
shareholders of FTC of the transactions contemplated hereby and (B) any
application or statement to be made by FTC or filed by FTC with any governmental
body in connection with the transactions contemplated by this Agreement, or in
connection with any unrelated transactions during the pendency of this
Agreement, and BOKF represents and warrants that all information so furnished
for such statements and applications shall be true and correct in all material
respects and shall not omit any material fact required to be stated therein or
necessary to make the statements made, in light of the circumstances under which
they were
21
made, not misleading. BOKF shall otherwise fully cooperate with FTC and the
Bank in the filing of any applications or other documents necessary to
consummate the transactions contemplated by this Agreement, including the
Merger.
SECTION 6.05 Acts of BOKSub. Prior to the Closing, BOKF shall not cause
--------------
BOKSub to take any action or execute any agreement, document or certificate
except as contemplated by this Agreement and the other agreements contemplated
hereby, including, but not limited to, the Merger Agreement.
SECTION 6.06 Untrue Representations. BOKF shall promptly notify FTC in
----------------------
writing if BOKF becomes aware of any fact or condition that makes untrue, or
shows to have been untrue, in any material respect, any schedule or any other
information furnished to FTC or any representation or warranty made in or
pursuant to this Agreement or that results in BOKF's failure to comply with any
covenant, condition or agreement contained in this Agreement.
SECTION 6.07 Litigation and Claims. BOKF shall promptly notify FTC of any
---------------------
legal action, suit or proceeding or judicial, administrative or governmental
investigation, pending or, to the knowledge of BOKF, threatened against BOKF or
BOKSub that questions or might question the validity of this Agreement or the
agreements contemplated hereby, including, but not limited to, the Merger
Agreement, or any actions taken or to be taken by BOKF or BOKSub pursuant hereto
or thereto or seeks to enjoin or otherwise restrain the transactions
contemplated hereby or thereby.
SECTION 6.08 Regulatory and Other Approvals. BOKF shall promptly, but in
------------------------------
no event later than thirty (30) days after receipt by BOKF of all information
requested pursuant to Section 5.03, file or cause to be filed applications for
all regulatory approvals required to be obtained by BOKF or BOKSub in connection
with this Agreement and the other agreements contemplated hereby. BOKF shall
promptly furnish FTC with copies of all such regulatory filings and all
correspondence for which confidential treatment has not been requested. BOKF
shall use its best efforts to obtain all such regulatory approvals and any other
approvals from third parties, including those listed on Schedule 4.06, at the
earliest practicable time.
SECTION 6.09 Adverse Change. BOKF shall promptly notify FTC in writing if
--------------
any change shall have occurred or been threatened (or any development shall have
occurred or been threatened involving a prospective change) that would adversely
affect, prevent or delay consummation of the transactions contemplated by this
Agreement or the other agreements contemplated hereby.
ARTICLE VII.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF FTC
All obligations of FTC under this Agreement are subject to the fulfillment,
prior to or at the Closing, of each of the following conditions, any or all of
which may be waived in whole or in part by FTC.
22
SECTION 7.01 Compliance with Representations, Warranties, and Agreements.
-----------------------------------------------------------
All representations and warranties made by BOKF in this Agreement or in any
document or schedule delivered to FTC pursuant hereto shall have been true and
correct in all material respects when made and shall be true and correct in all
material respects as of the Closing with the same force and effect as if such
representations and warranties were made at and as of the Closing, except with
respect to those representations and warranties specifically made as of an
earlier date (in which case such representations and warranties shall be true as
of such earlier date). BOKF shall have performed or complied in all material
respects with all agreements, terms, covenants and conditions required by this
Agreement to be performed or complied with by BOKF prior to or at the Closing.
SECTION 7.02 Shareholder Approvals. The holders of at least two-thirds of
---------------------
the FTC Stock entitled to vote on the Merger and the Merger Agreement shall have
approved the Merger and the Merger Agreement.
SECTION 7.03 Government and Other Approvals. BOKF shall have received
------------------------------
approvals, acquiescence or consents of the transactions contemplated by this
Agreement and the Merger Agreement, from all necessary governmental agencies and
authorities and other third parties, including but not limited to the Federal
Reserve, and all applicable waiting periods shall have expired, and the
approvals and consents of all third parties required to consummate this
Agreement and the other agreements contemplated hereby, including, but not
limited to, the Merger Agreement and the transactions contemplated hereby and
thereby, including all consents described on Schedules 3.08 and 4.06. Such
approvals and the transactions contemplated hereby shall not have been contested
or threatened to be contested by any Federal or state governmental authority or
by any other third party (except shareholders asserting statutory dissenters'
appraisal rights) by formal proceedings.
SECTION 7.04 No Litigation. No action shall have been taken, and no
-------------
statute, rule, regulation or order shall have been promulgated, enacted,
entered, enforced or deemed applicable to the acquisition by any Federal, state
or foreign government or governmental authority or by any court, domestic or
foreign, including the entry of a preliminary or permanent injunction, that
would (A) make the Agreement or any other agreement contemplated hereby,
including, but not limited to, the Merger Agreement, or the transactions
contemplated hereby or thereby illegal, invalid or unenforceable, (B) impose
material limits in the ability of any party to this Agreement to consummate the
Agreement or any other agreement contemplated hereby, including, but not limited
to, the Merger Agreement, or the transactions contemplated hereby or thereby, or
(C) if the Agreement or any other agreement contemplated hereby, including, but
not limited to, the Merger Agreement, or the transactions contemplated hereby or
thereby are consummated, subject FTC or the Bank or subject any officer,
director, shareholder or employee thereof to criminal or civil liability. No
action or proceeding before any court or governmental authority, domestic or
foreign, by any government or governmental authority or by any other person,
domestic or foreign, shall be threatened, instituted or pending that would
reasonably be expected to result in any of the consequences referred to in
clauses (A) through (C) above.
SECTION 7.05 Funds Availability. BOKF shall have provided FTC with
------------------
verification in form and substance reasonably acceptable to FTC of the
availability of the funds to timely deliver, at the Closing, the Merger
Consideration, which verification may include a copy of a loan
23
commitment letter from a commercial bank doing business in Texas, in an amount
consistent with that set forth in the application to the Federal Reserve, and
approval by the Federal Reserve of such application.
SECTION 7.06 Certain Additional Conditions.
-----------------------------
A. Mr. William Stahnke and the Bank, have entered into a mutually
agreeable employment agreement for the employment of Mr. Stahnke as an
officer of the Bank in a form essentially the same as the form of
employment agreement attached hereto as Exhibit "B" completed to provide
-----------
approximately the same compensation and benefits as Mr. Stahnke is
currently receiving.
B. The Bank shall have adopted a severance policy providing for the
payment to any employee who is involuntarily dismissed within the first 180
days after the Closing Date, an amount equal to at least one week's pay for
each year of service or portion thereof by such employee, which policy will
be honored after the Closing with respect to the employees of the Bank as
of the date of the Closing.
C. Each of the persons who is a party to a currently effective
executive supplemental income agreement ("ESI") or director's deferred
income agreement ("DDI") shall have entered into an agreement that modifies
each ESI or DDI to (a) provide that the obligations of FTC and the Bank
under such agreements are limited to certain insurance policies and the
proceeds or funds received therefrom, and (b) create a trust arrangement to
hold such insurance policies for the benefit of the persons subject to such
agreements, with the remainder interests in such policies to be held for
the Bank.
ARTICLE VIII.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BOKF
All obligations of BOKF under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions,
any or all of which may be waived in whole or in part by BOKF.
SECTION 8.01 Compliance with Representations, Warranties and Agreements.
----------------------------------------------------------
All representations and warranties made by FTC in this Agreement or in any
schedule delivered to BOKF pursuant hereto shall have been true and correct when
made and shall be true and correct as of the Closing with the same force and
effect as if such representations and warranties were made at and as of the
Closing, except with respect to those representations and warranties
specifically made as of an earlier date (in which case such representations and
warranties shall be true as of such earlier date). FTC shall have performed or
complied in all material respects with all agreements, terms, covenants and
conditions required by this Agreement to be performed or complied with by FTC
prior to or at the Closing.
SECTION 8.02 Shareholder Approvals. The holders of at least two-thirds of
---------------------
the shares of the FTC Stock entitled to vote on the Merger and the Merger
Agreement shall have approved the Merger and the Merger Agreement.
24
SECTION 8.03 Government and Other Approvals. BOKF shall have received
------------------------------
approvals, acquiescence or consents of the transactions contemplated by this
Agreement and the Merger Agreement from all necessary governmental agencies and
authorities, including but not limited to the Federal Reserve, and all
applicable waiting periods shall have expired, and the approvals and consents of
all third parties required to consummate this Agreement and the other agreements
contemplated hereby, including, but not limited to, the Merger Agreement and the
transactions contemplated hereby and thereby, including all consents described
on Schedules 3.08 and 4.06. Such approvals and the transactions contemplated
hereby shall not have been contested or threatened to be contested by any
Federal or state governmental authority or by any other third party (except
shareholders asserting statutory dissenters' appraisal rights) by formal
proceedings. It is understood that, if such contest is brought by formal
proceedings, BOKF may, but shall not be obligated to, answer and defend such
contest or otherwise pursue this transaction over such objection.
SECTION 8.04 No Litigation. No action shall have been taken, and no
-------------
statute, rule, regulation or order shall have been promulgated, enacted,
entered, enforced or deemed applicable to this Agreement, the Merger, or the
transactions contemplated hereby or thereby by any Federal, state or foreign
government or governmental authority or by any court, domestic or foreign,
including the entry of a preliminary or permanent injunction, that would (A)
make this Agreement or any other agreement contemplated hereby, including, but
not limited to, the Merger Agreement, or the transactions contemplated hereby or
thereby illegal, invalid or unenforceable, (B) require the divestiture of a
material portion of the assets of FTC or the Bank, (C) impose material limits in
the ability of any party to this Agreement to consummate the Agreement or any
other agreement contemplated hereby, including, but not limited to, the Merger
Agreement, or the transactions contemplated hereby or thereby, (D) otherwise
result in a Material Adverse Change or (E) if this Agreement or any other
agreement contemplated hereby, including, but not limited to, the Merger
Agreement, or the transactions contemplated hereby or thereby are consummated,
subject BOKF or BOKSub or subject any officer, director, shareholder or employee
of BOKF or BOKSub to criminal or civil liability. No action or proceeding
before any court or governmental authority, domestic or foreign, by any
government or governmental authority or by any other person, domestic or
foreign, shall be threatened, instituted or pending that would reasonably be
expected to result in any of the consequences referred to in clauses (A) through
(E) above.
SECTION 8.05 No Material Adverse Change. There shall have been no
--------------------------
Material Adverse Change since September 30, 1996.
SECTION 8.06 Certain Additional Conditions.
-----------------------------
A. Mr. William Stahnke and the Bank, shall have entered into a
mutually agreeable employment agreement for the employment of Mr. Stahnke
as an officer of the Bank in a form essentially the same as the form of
employment agreement attached hereto as Exhibit "B", completed to provide
------------
approximately the same compensation and benefits as Mr. Stahnke is
currently receiving.
B. No more than three bank officers mutually agreed between FTC and
BOKF, other than Mr. Stahnke, shall have, entered into mutually agreeable
employment
25
agreements for their employment as officers of the Bank in a form
essentially the same as the form of employment agreement attached hereto as
Exhibit "B", completed to provide approximately the same compensation and
-----------
benefits as each is currently receiving.
C. Each of the persons who is a party to a currently effective ESI
or DDI shall have entered into an agreement that modifies each ESI or DDI
to (a) provide that the obligations of FTC and the Bank under such
agreements are limited to certain insurance policies and the proceeds or
funds received therefrom, and (b) create a trust arrangement to hold such
insurance policies for the benefit of the persons subject to such
agreements, with the remainder interests in such policies to be held for
the Bank.
SECTION 8.07 Payment of FTC Indebtedness. At the Effective Date, FTC
---------------------------
shall have paid in full all Excess Indebtedness, and the amount of the Excess
Indebtedness shall reduce the Cash Consideration in accordance with Section
1.05B. For purposes of this Agreement, the term "Excess Indebtedness" means any
and all indebtedness that would be reflected on a parent-only balance sheet of
FTC, prepared in accordance with GAAP, as of the Effective Date, other than (i)
indebtedness for current accounts payable incurred for services and materials in
the ordinary course of operations, (ii) FTC's Subordinated Debentures totaling
approximately $124,000 at September 30, 1996, and (iii) the mortgage payable to
the Bank in the approximate amount of $249,000 at September 30, 1996.
ARTICLE IX.
TERMINATION AND ABANDONMENT
SECTION 9.01 Right of Termination. This Agreement and the transactions
--------------------
contemplated hereby may be terminated and abandoned at any time prior to or at
the Closing (notwithstanding approval thereof by the shareholders of FTC), as
follows, and in no other manner:
A. By the mutual consent of FTC and BOKF, duly authorized by the
board of directors of each of FTC and BOKF.
B. By either FTC or BOKF if the conditions precedent to such
parties' obligations to close specified in Articles VII and VIII,
respectively, hereof have not been met or waived by May 31, 1997 or such
later date as has been approved by FTC and BOKF.
C. By either FTC or BOKF if any of the transactions contemplated by
this Agreement or the Merger Agreement are disapproved by any regulatory
authority whose approval is required to consummate such transactions or if
any court of competent jurisdiction in the United States or other United
States (federal or state) governmental body shall have issued an order,
decree or ruling or taken any other action restraining, enjoining,
invalidating or otherwise prohibiting the Agreement or the transactions
contemplated hereby and such order, decree, ruling or other action shall
have been final and nonappealable.
D. By BOKF if there shall have been any Material Adverse Change.
26
E. By BOKF if FTC shall fail to comply in any material respect with
any of its covenants or agreements contained in this Agreement or in any
other agreement contemplated hereby, including, but not limited to, the
Merger Agreement, and such failure shall not have been cured within a
period of thirty (30) calendar days after notice from BOKF, or if any of
the representations or warranties of FTC contained herein or therein shall
be inaccurate in any material respect.
F. By FTC if BOKF shall fail to comply in any material respect with
any of its covenants or agreements contained in this Agreement or in any
other agreement contemplated hereby and such failure shall not have been
cured within a period of thirty (30) calendar days after notice from FTC,
or if any of the representations or warranties of BOKF contained herein or
therein shall be inaccurate in any material respect.
SECTION 9.02 Notice of Termination. The power of termination provided for
---------------------
by Section 9.01 hereof may be exercised only by a notice given in writing, as
provided in Section 11.07 of this Agreement.
SECTION 9.03 Effect of Termination. Without limiting any other relief to
---------------------
which either party hereto may be entitled for breach of this Agreement, in the
event of the termination and abandonment of this Agreement pursuant to the
provisions of Section 9.01 hereof, no party to this Agreement shall have any
further liability or obligation in respect of this Agreement, except for (A)
liability of a party for expenses pursuant to Section 11.02 hereof, and (B) the
provisions of Article X hereof shall remain applicable.
ARTICLE X.
CONFIDENTIAL INFORMATION
SECTION 10.01 Definition of "Recipient," "Disclosing Party" and
-------------------------------------------------
"Representative". For purposes of this Article X, the term "Recipient" shall
- ----------------
mean the party receiving the Subject Information (as defined in Section 10.02)
and the term "Disclosing Party" shall mean the party furnishing the Subject
Information. The terms "Recipient" or "Disclosing Party", as used herein,
include: (1) all persons and entities related to or affiliated in any way with
the Recipient or the Disclosing Party, as the case may be, and (2) any person or
entity controlling, controlled by or under common control with the Recipient or
the Disclosing Party, as the case may be. The term "Representative" as used
herein, shall include all directors, officers, shareholders, employees,
representatives, advisors, attorneys, accountants and agents of any of the
foregoing. The term "person" as used in this Article X shall be broadly
interpreted to include, without limitation, any corporation, company, group,
partnership, governmental agency or individual.
SECTION 10.02 Definition of "Subject Information". For purposes of this
-----------------------------------
Article X, the term "Subject Information" shall mean all information furnished
to the Recipient or its Representatives (whether prepared by the Disclosing
Party, its Representatives or otherwise and whether or not identified as being
nonpublic, confidential or proprietary) by or on behalf of the Disclosing Party
or its Representatives relating to or involving the business, operations or
affairs of the Disclosing Party or otherwise in possession of the Disclosing
Party. The term "Subject Information" shall not include information that (A)
was already in the Recipient's possession at
27
the time it was first furnished to Recipient by or on behalf of Disclosing
Party, provided that such information is not known by the Recipient to be
subject to another confidentiality agreement with or other obligation of secrecy
to the Disclosing Party, its Subsidiaries or another party, or (B) becomes
generally available to the public other than as a result of a disclosure by the
Recipient or its Representatives, or (C) becomes available to the Recipient on a
non-confidential basis from a source other than the Disclosing Party, its
Representative or otherwise, provided that such source is not known by the
Recipient to be bound by a confidentiality agreement with or other obligation of
secrecy to the Disclosing Party, its Representative or another party.
SECTION 10.03 Confidentiality. Each Recipient hereby agrees that the
---------------
Subject Information will be used solely for the purpose of reviewing and
evaluating the transactions contemplated by this Agreement and the other
agreements contemplated hereby, including the Merger Agreement, and that the
Subject Information will be kept confidential by the Recipient and the
Recipient's Representatives; provided, however, that (A) any of such Subject
Information may be disclosed to the Recipient's Representatives (including, but
not limited to, the Recipient's accountants, attorneys and investment bankers)
who need to know such information for the purpose of evaluating any such
possible transaction between the Disclosing Party and the Recipient (it being
understood that such Representatives shall be informed by the Recipient of the
confidential nature of such information and that the Recipient shall direct and
cause such persons to treat such information confidentially); and (B) any
disclosure of such Subject Information may be made to which the Disclosing Party
consents in writing prior to any such disclosure by Recipient.
SECTION 10.04 Securities Law Concerns. Each Recipient hereby acknowledges
-----------------------
that the Recipient is aware, and the Recipient will advise the Recipient's
Representatives who are informed as to the matters that are the subject of this
Agreement, that the United States securities laws prohibit any person who has
received material, non-public information from an issuer of securities from
purchasing or selling securities of such issuer or from communicating such
information to any other person under circumstances in which it is reasonably
foreseeable that such person is likely to purchase or sell such securities.
SECTION 10.05 Return of Subject Information. In the event of termination
-----------------------------
of this Agreement or the Merger Agreement, for any reason, the Recipient shall
promptly return to the Disclosing Party all written material containing or
reflecting any of the Subject Information other than information contained in
any application, notice or other document filed with any governmental agency and
not returned to the Recipient by such governmental agency. In making any such
filing, the Recipient will request confidential treatment of such Subject
Information included in any application, notice or other document filed with any
governmental agency.
SECTION 10.06 Specific Performance/Injunctive Relief. Each Recipient
--------------------------------------
acknowledges that the Subject Information constitutes valuable, special and
unique property of the Disclosing Party critical to its business and that any
breach of Article X of this Agreement by it will give rise to irreparable injury
to the Disclosing Party that is not compensable in damages. Accordingly, each
Recipient agrees that the Disclosing Party shall be entitled to obtain specific
performance and/or injunctive relief against the breach or threatened breach of
Article X of this Agreement by the Recipient or its Representatives. Each
Recipient further agrees to waive, and use its reasonable efforts to cause its
Representatives to waive, any requirement for the securing
28
or posting of any bond in connection with such remedies. Such remedies shall
not be deemed the exclusive remedies for a breach of Article X of this
Agreement, but shall be in addition to all other remedies available at law or in
equity to the Disclosing Party.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.01 Survival of Representations and Warranties. The parties
------------------------------------------
hereto agree that all of their respective representations and warranties
contained in this Agreement shall not survive the Closing Date except as
provided in Article XII.
SECTION 11.02 Expenses. BOKF shall pay all of its expenses and costs
--------
(including, without limitation, all counsel fees and expenses) incurred in
connection with this Agreement and the consummation of the transactions
contemplated hereby. The FTC Shareholders shall pay (i) all expenses and costs
(including, without limitation, all counsel fees and expenses, investment
advisory and consulting fees, and the costs of any fairness opinion) incurred by
FTC in connection with the transactions contemplated hereby and (ii) all costs
of discharging any stock appreciation rights that may exist as of the Closing
(collectively, the "FTC Expenses").
SECTION 11.03 Brokerage Fees and Commissions. BOKF hereby represents to
------------------------------
FTC that no agent, representative or broker has represented BOKF in connection
with the transactions described in this Agreement. FTC shall not have any
responsibility or liability for any fees, expenses or commissions payable to any
agent, representative or broker of BOKF, and BOKF hereby agrees to indemnify and
hold FTC harmless for any amounts owed to any agent, representative or broker of
BOKF. FTC hereby represents to BOKF that other than Service Asset Management
Company ("SAMCO"), no other agent, representative or broker has represented FTC,
the Bank or any or all of the shareholders in connection with the transactions
described in this Agreement. BOKF shall have no responsibility or liability for
any fees, expenses or commissions payable to any agent, representative or broker
of FTC, the Bank or any shareholder of FTC, and FTC hereby agrees to indemnify
and hold BOKF harmless for any amounts owed to any agent, representative or
broker of FTC, the Bank or any shareholder of FTC, including SAMCO.
SECTION 11.04 Entire Agreement. This Agreement and the other agreements,
----------------
documents, schedules and instruments executed and delivered by the parties to
each other at the Closing constitute the full understanding of the parties, a
complete allocation of risks between them and a complete and exclusive statement
of the terms and conditions of their agreement relating to the subject matter
hereof and supersede any and all prior agreements, whether written or oral, that
may exist between the parties with respect thereto. Except as otherwise
specifically provided in this Agreement, no conditions, usage of trade, course
of dealing or performance, understanding or agreement purporting to modify,
vary, explain or supplement the terms or conditions of this Agreement shall be
binding unless hereafter or contemporaneously herewith made in writing and
signed by the party to be bound, and no modification shall be effected by the
acknowledgment or acceptance of documents containing terms or conditions at
variance with or in addition to those set forth in this Agreement.
29
SECTION 11.05 Further Cooperation. The parties agree that they will, at
-------------------
any time and from time to time after the Closing, upon request by the other and
without further consideration, do, perform, execute, acknowledge and deliver all
such further acts, deeds, assignments, assumptions, transfers, conveyances,
powers of attorney, certificates and assurances as may be reasonably required in
order to fully consummate the transactions contemplated hereby in accordance
with this Agreement or to carry out and perform any undertaking made by the
parties hereunder.
SECTION 11.06 Severability. In the event that any provision of this
------------
Agreement is held to be illegal, invalid or unenforceable under present or
future laws, then (A) such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision were not a part hereof; (B) the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by such illegal,
invalid or unenforceable provision or by its severance from this Agreement; and
(C) there shall be added automatically as a part of this Agreement a provision
as similar in terms to such illegal, invalid or unenforceable provision as may
be possible and still be legal, valid and enforceable.
SECTION 11.07 Notices. Any and all payments (other than payments at the
-------
Closing), notices, requests, instructions and other communications required or
permitted to be given under this Agreement after the date hereof by any party
hereto to any other party shall be delivered personally or by nationally
recognized overnight courier service or sent by mail or (except in the case of
payments) by telex or facsimile transmission, at the respective addresses or
transmission numbers set forth below and shall be effective (A) in the case of
personal delivery, telex or facsimile transmission, when received; (B) in the
case of mail, upon the earlier of actual receipt or five (5) business days after
deposit in the United States Postal Service, first class certified or registered
mail, postage prepaid, return receipt requested; and (C) in the case of
nationally-recognized overnight courier service, one (1) business day after
delivery to such courier service together with all appropriate fees or charges
and instructions for such overnight delivery. The parties may change their
respective addresses and transmission numbers by written notice to all other
parties, sent as provided in this Section 11.07. All communications must be in
writing and addressed as follows:
IF TO FTC:
Jerry Lastelick
Chairman of the Board
First TexCorp, Inc.
2650 Royal Lane, Suite 208
P.O. Box 59105
Dallas, Texas 75229-1105
Telecopy: (972) 241-6430
WITH A COPY TO:
Messrs. Charles E. Greef and
Brian R. Marek
Jenkens & Gilchrist,
30
a Professional Corporation
1445 Ross Avenue, Suite 3200
Dallas, Texas 75202-2799
Telecopy: (214) 855-4300
IF TO BOKF:
Mr. Stanley A. Lybarger
President and Chief Executive Officer
BOK Financial Corporation
Bank of Oklahoma Tower
Tulsa, Oklahoma 74103
Telecopy: (918) 588-6853
WITH A COPY TO:
Frederic Dorwart
Frederic Dorwart, Lawyers
Old City Hall
124 East Fourth Street
Tulsa, Oklahoma 74103
Telecopy: (918) 583-8251
SECTION 11.08 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS (INCLUDING THOSE
LAWS RELATING TO CHOICE OF LAW) APPLYING TO CONTRACTS ENTERED INTO AND TO BE
PERFORMED WITHIN THE STATE OF TEXAS, WITHOUT REGARD FOR THE PROVISIONS THEREOF
REGARDING CHOICE OF LAW. VENUE FOR ANY CAUSE OF ACTION ARISING FROM THIS
AGREEMENT SHALL LIE IN DALLAS, TEXAS.
SECTION 11.09 Multiple Counterparts. For the convenience of the parties
---------------------
hereto, this Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, and all counterparts hereof so executed by the
parties hereto, whether or not such counterpart shall bear the execution of each
of the parties hereto, shall be deemed to be, and shall be construed as, one and
the same Agreement. A telecopy or facsimile transmission of a signed
counterpart of this Agreement shall be sufficient to bind the party or parties
whose signature(s) appear thereon.
SECTION 11.10 Certain Definitions.
-------------------
A. "Affiliate" means, with respect to any person, any person that,
directly or indirectly, controls, is controlled by, or is under common
control with, such person in question. For the purposes of this
definition, "control" (including, with correlative meaning, the terms
"controlled by" and "under common control with") as used with respect to
any person, shall mean the possession, directly or indirectly, of the power
to
31
direct or cause the direction of the management and policies of such
person, whether through the ownership of voting securities or by contract
or otherwise.
B. "Environmental Laws" mean all federal, state and local laws,
regulations, statutes, ordinances, codes, rules, decisions, orders or
decrees relating or pertaining to the public health and safety or the
environment, or otherwise governing the generation, use, handling,
collection, treatment, storage, transportation, recovery, recycling,
removal, discharge or disposal of Hazardous Materials, including, without
limitation, (i) the Solid Waste Disposal Act, 42 U.S.C. 6901 et seq., as
-------
amended ("SWDA," also known as "RCRA" for a subsequent amending act), (ii)
the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. (S)9601 et seq., as amended ("CERCLA"), (iii) the Clean Water
-------
Act, 33 U.S.C. (S)1251 et seq., as amended ("CWA"), (iv) the Clean Air Act,
-------
42 U.S.C. (S)7401 et seq., as amended ("CAA"), (v) the Toxic Substances
-------
Control Act, 15 U.S.C. (S)2601 et seq., as amended ("TSCA"), (vi) the
-------
Emergency Planning and Community Right to Know Act, 15 U.S.C. (S)2601 et
--
seq., as amended ("EPCRKA"), and (vii) the Occupational Safety and Health
----
Act, 29 U.S.C. (S) 651 et seq., as amended.
------
C. "Hazardous Material" means, without limitation, (i) any
"hazardous wastes" as defined under RCRA, (ii) any "hazardous substances"
as defined under CERCLA, (iii) any toxic pollutants as defined under CWA,
(iv) any hazardous air pollutants as defined under CAA, (v) any hazardous
chemicals as defined under TSCA, (vi) any hazardous substances or extremely
hazardous substances as defined under EPCRKA, (vii) asbestos, (viii)
polychlorinated biphenyls, (ix) underground storage tanks, whether empty,
filled or partially filled with any substance, (x) any substance the
presence of which on the property in question is prohibited under any
Environmental Law, and (xi) any other substance which under any
Environmental Law requires special handling or notification of or reporting
to any federal, state or local governmental entity in its generation, use,
handling, collection, treatment, storage, re-cycling, treatment,
transportation, recovery, removal, discharge or disposal.
D. The term "Property" or "Properties" shall include all real
property owned or leased by FTC or the Bank, including, but not limited to
properties that the Bank has foreclosed on as well as their respective
premises and all improvements and fixtures thereon.
E. "Material Adverse Change" means any material adverse change in
the financial condition, assets, properties, liabilities (absolute,
accrued, contingent or otherwise), reserves, business or results of
operations of FTC or the Bank.
F. "Subsidiary" or "Subsidiaries" means, when used with reference to
an entity, any corporation, a majority of the outstanding voting securities
of which are owned directly or indirectly by such entity or any
partnership, joint venture or other enterprise in which any entity has,
directly or indirectly, any equity interest.
SECTION 11.11 Specific Performance. Each of the parties hereto
--------------------
acknowledges that the other parties would be irreparably damaged and would not
have an adequate remedy at law for money damages in the event that any of the
covenants contained in this Agreement were not
32
performed in accordance with its terms or otherwise were materially breached.
Each of the parties hereto therefore agrees that, without the necessity of
proving actual damages or posting bond or other security, the other party shall
be entitled to temporary and/or permanent injunction or injunctions to prevent
breaches of such performance and to specific enforcement of such covenants in
addition to any other remedy to which they may be entitled, at law or in equity.
SECTION 11.12 Attorneys' Fees and Costs. In the event attorneys' fees or
-------------------------
other costs are incurred to secure performance of any of the obligations herein
provided for, or to establish damages for the breach thereof, or to obtain any
other appropriate relief, whether by way of prosecution or defense, the
prevailing party shall be entitled to recover reasonable attorneys' fees and
costs incurred therein.
SECTION 11.13 Rules of Construction. Each use herein of the masculine,
---------------------
neuter or feminine gender shall be deemed to include the other genders. Each
use herein of the plural shall include the singular and vice versa, in each case
as the context requires or as it is otherwise appropriate. The word "or" is
used in the inclusive sense. All articles and sections referred to herein are
articles and sections, respectively, of this Agreement and all exhibits and
schedules referred to herein are exhibits and schedules, respectively, attached
to this Agreement. Descriptive headings as to the contents of particular
sections are for convenience only and shall not control or affect the meaning,
construction or interpretation of any provision of this Agreement. Any and all
schedules, exhibits, annexes, statements, reports, certificates or other
documents or instruments referred to herein or attached hereto are and shall be
incorporated herein by reference hereto as though fully set forth herein
verbatim.
SECTION 11.14 Binding Effect; Assignment. All of the terms, covenants,
--------------------------
representations, warranties and conditions of this Agreement shall be binding
upon, and inure to the benefit of and be enforceable by, the parties hereto and
their respective successors, representatives and permitted assigns. Nothing
expressed or referred to herein is intended or shall be construed to give any
person other than the parties hereto any legal or equitable right, remedy or
claim under or in respect of this Agreement, or any provision herein contained,
it being the intention of the parties hereto that this Agreement, the assumption
of obligations and statements of responsibilities hereunder, and all other
conditions and provisions hereof are for the sole benefit of the parties to this
Agreement and for the benefit of no other person. Nothing in this Agreement
shall act to relieve or discharge the obligation or liability of any third party
to any party to this Agreement, nor shall any provision give any third party any
right of subrogation or action over or against any party to this Agreement. No
party to this Agreement shall assign this Agreement, by operation of law or
otherwise, in whole or in part, without the prior written consent of the other
parties. Any assignment made or attempted in violation of this Section 11.14
shall be void and of no effect.
SECTION 11.15 Public Disclosure. Neither FTC nor BOKF will make, issue or
-----------------
release any announcement, statement, press release, acknowledgment or other
public disclosure of the existence of, or reveal the terms, conditions or the
status of, this Agreement or the transactions contemplated hereby without the
prior written consent of the other parties to this Agreement; provided, however,
that notwithstanding the foregoing, FTC and BOKF will be permitted after prior
telephone notice to the other, to make any public disclosures or governmental
filings as legal counsel may deem necessary to maintain compliance with or to
prevent violations of
33
applicable federal or state laws or regulations or that may be necessary to
obtain regulatory approval for the transactions contemplated hereby.
SECTION 11.16 Extension; Waiver. At any time prior to the Closing Date,
-----------------
the parties may (A) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (B) waive any
inaccuracies in the representations and warranties contained herein or in any
document, certificate or writing delivered pursuant hereto, or (C) waive
compliance with any of the agreements or conditions contained herein. Such
action shall be evidenced by a signed written notice given in the manner
provided in Section 11.07 hereof. No party to this Agreement shall by any act
(except by a written instrument given pursuant to Section 11.07 hereof) be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising any right, power or privilege hereunder by any party
hereto shall operate as a waiver thereof. No single or partial exercise of any
right, power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver of any
party of any right or remedy on any one occasion shall not be construed as a bar
to any right or remedy that such party would otherwise have on any future
occasion or to any right or remedy that any other party may have hereunder.
SECTION 11.17 Amendments. To the extent permitted by applicable law, this
----------
Agreement may be amended by action taken by or on behalf of the Board of
Directors of BOKF and FTC at any time before or after adoption of this Agreement
by the shareholders of FTC but, after any submission of this Agreement to such
shareholders for approval, no amendment shall be made that decreases the
consideration to be paid for the FTC Stock as set forth in Section 1.05 or that
materially and adversely affects the rights of FTC's shareholders hereunder
without the requisite approval of such shareholders. This Agreement may be
amended, modified or supplemented only by an instrument in writing executed by
the party against which enforcement of the amendment, modification or supplement
is sought.
ARTICLE XII
ESCROWS
SECTION 12.01 Representations Escrow. On the Effective Date, BOKF shall
----------------------
establish an escrow account (the "Representations Escrow") with Alliance Trust
Company, National Association (the "Escrow Agent"). The Representations Escrow
shall be governed by an escrow agreement, the form of which is attached hereto
as "Exhibit "C" (the "Representations Escrow Agreement"), which shall provide as
------------
follows:
A. At the Effective Date, BOKF shall deposit the principal amount of
$500,000 into the Representations Escrow, which, together with (i) all
-------------
interest earned thereon, but reduced by (ii) any Representations Escrow
----------
Allowed Claim (as hereafter defined) is referred to herein as the
"Representations Escrow Funds."
B. The Representations Escrow Funds shall be initially invested in a
one-year certificate of deposit at the Bank at the rate and on the terms
and conditions generally offered by the Bank for certificates of deposit of
comparable size and duration, and upon
34
maturity as necessary, in three-month certificates of deposit at the Bank
at the rates and on terms and conditions generally offered by the Bank for
certificates of comparable size and duration at each renewal date, provided
that any penalty for early withdrawal of such funds will either be waived
by the Bank or borne by BOKF.
C. The representations, warranties, covenants and agreements of FTC
contained in this Agreement (other than those contained in Section 12.02)
shall survive the Closing, and BOKF shall be indemnified and held harmless
from any and all losses, to be decreased a rate of thirty-five percent
(35%) to account for all federal and state taxes, arising from any breach
by FTC of any such representations, warranties, covenants and agreements
(collectively, "Representations Losses"), provided that (i) written notice
of such Representations Losses must be given to FTC on or before March 31,
1998, (ii) the sole remedy available to BOKF for any Representations Losses
shall be limited solely to a claim against the Representations Escrow
Funds, (iii) all payments, if any, to be made in respect of any
Representations Losses shall be made solely from the Representations Escrow
Funds, (iv) the FTC shareholders shall have no obligations or liability for
any such Representations Losses except to the extent of the Representations
Escrow Funds, and (v) no claim shall be made for any Representations Losses
unless and until the aggregate amount of all Representations Losses exceeds
$25,000.
D. In the event BOKF makes no claim for any Representations Losses
on or before March 31, 1998, the Representations Escrow Agreement shall
terminate and the Escrow Agent shall, on or before April 15, 1998,
distribute the Representations Escrow Funds to the FTC Shareholders in
accordance with Section 1.05C.
E. In the event BOKF makes a claim for any Representations Losses on
or before March 31, 1998, the Escrow Agent shall continue to hold and
invest the Representations Escrow Funds until such claim is resolved by (i)
the mutual agreement of the FTC Shareholders or (ii) a final adjudication
determining the merits of the BOKF claim, at which time the Representations
Escrow Agreement shall terminate, the Escrow Agent shall pay the claim of
BOKF as mutually agreed or finally adjudicated (a "Representations Escrow
Allowed Claim") and the Escrow Agent shall distribute the Representations
Escrow Funds to the FTC Shareholders in accordance with Section 1.05C.
F. The rights of the FTC Shareholders in the Representations Escrow
and the Representations Escrow Funds shall not be assignable or
transferable except by operation of law or by intestacy and will not be
evidenced by any certificate or other interest.
G. The persons who are members of the Board of Directors of FTC
immediately prior to the Closing shall collectively serve as agent, acting
by a majority vote in the same manner as a board of directors acting under
the TBCA, for the FTC Shareholders and shall have full authority to act for
and on behalf thereof in the administration of the provision of this
Section (the "Agent"). The actions of the persons acting as Agent for the
FTC Shareholders shall be deemed actions taken by them as members of the
Board of Directors of FTC prior to the Closing.
35
H. BOKF shall pay the fees and costs of the Escrow Agent with
respect to the Representations Escrow.
SECTION 12.02 Deposits Escrow. On the Effective Date, BOKF shall
---------------
establish an escrow account (the "Deposits Escrow") with the Escrow Agent. The
Deposits Escrow shall be governed by an escrow agreement, the form of which is
attached hereto as "Exhibit "D" (the "Deposits Escrow Agreement"), which shall
------------
provide as follows:
A. At the Effective Date, BOKF shall deposit the principal amount of
$750,000 into the Deposits Escrow, which, together with (i) all interest
-------------
earned thereon, but reduced by (ii) any Deposits Escrow Allowed Claim (as
----------
hereafter defined) is referred to herein as the "Deposits Escrow Funds."
B. The Deposits Escrow Funds shall be initially invested in a two-
year certificate of deposit at the Bank at the rate and on the terms and
conditions generally offered by the Bank for certificates of deposit of
comparable size and duration, and upon maturity as necessary, in three-
month certificates of deposit at the Bank at the rates and on terms and
conditions generally offered by the Bank for certificates of comparable
size and duration at each renewal date, provided that any penalty for early
withdrawal of such funds will either be waived by the Bank or borne by
BOKF.
C. FTC represents and warrants that the customers of the Bank and
their related CIF and deposit accounts listed on Schedule 12.02 had the
average ledger balances reflected on Schedule 12.02 during the period
commencing November 1, 1995, and ending October 31, 1996 (except where
adjusted as noted on Schedule 12.02), which average ledger balances were
$750,000 or more (the "Large Deposits"). If the Economic Value of the
average ledger balances of all Large Deposits (excluding any increase in
Economic Value attributed to any shareholder of FTC) for the period
commencing with the date hereof and ending on the second anniversary of the
Closing (the "Determination Date") does not equal or exceed the Economic
Value of the average ledger balances of all Large Deposits for the period
commencing November 1, 1995, and ending on October 31, 1996, then BOKF
shall be indemnified and held harmless from any and all losses arising from
any such decrease in Economic Value (collectively "Economic Value Losses"),
provided that (i) written notice of such Economic Value Losses must be
given to FTC on or before the thirtieth (30th) day following the
Determination Date (the "Notice Date"), (ii) the sole remedy available to
BOKF for any Economic Value Losses shall be limited solely to a claim
against the Deposits Escrow Funds, (iii) all payments, if any, to be made
in respect of any Economic Value Losses shall be made solely from the
Deposits Escrow Funds, and (iv) the FTC Shareholders shall have no
obligations or liability for any such Economic Value Losses except to the
extent of the Deposits Escrow Funds. As used herein, the term "Economic
Value" means (i) ten (10) times (ii) the sum of the products of (A) the
average ledger balance of each Large Deposit account multiplied by (B) the
Interest Spread. As used herein, the term "Interest Spread" means (i) six
percent (6%) for demand deposit accounts, (ii) four percent (4%) for NOW
accounts (iii) three and one-quarter percent (3.25%) for money market
accounts, (iv) one and one-half percent (1.5%) for savings accounts, and
(v) one and one-quarter percent (1.25%) for certificates of deposit, each
to be decreased a rate of thirty-five percent (35%) to account for all
federal
36
and state taxes. In addition, in the event a new category of interest-
bearing account becomes generally offered in the Dallas-Fort Worth SMSA as
a result of the adoption of new, or the amendment of existing, federal law
or regulations, the Economic Value Losses shall be decreased by any amount
attributable to a transfer of funds from demand deposit accounts to such
new interest-bearing accounts.
D. In the event BOKF makes no claim for any Economic Value Losses on
or before the Notice Date, the Deposits Escrow Agreement shall terminate
and the Escrow Agent shall, on or before the fifteenth day after the Notice
Date, distribute the Deposits Escrow Funds to the FTC Shareholders in
accordance with Section 1.05D.
E. In the event BOKF makes a claim for any Economic Value Losses on
or before the Notice Date, the Escrow Agent shall continue to hold and
invest the Deposits Escrow Funds until such claim is resolved by (i) the
mutual agreement of the FTC Shareholders or (ii) a final adjudication
determining the merits of the BOKF claim, at which time the Deposits Escrow
Agreement shall terminate, the Escrow Agent shall pay the claim of BOKF as
mutually agreed or finally adjudicated (a "Deposits Escrow Allowed Claim")
and the Escrow Agent shall distribute the Deposits Escrow Funds to the FTC
Shareholders in accordance with Section 1.05D.
F. The rights of the FTC Shareholders in the Deposits Escrow and the
Deposits Escrow Funds shall not be assignable or transferable except by
operation of law or by intestacy and will not be evidenced by any
certificate or other interest.
G. The persons who are members of the Board of Directors of FTC
immediately prior to the Closing shall collectively serve as the Agent,
acting by a majority vote in the same manner as a board of directors acting
under the TBCA, for the FTC Shareholders and shall have full authority to
act for and on behalf thereof in the administration of the provision of
this Section. The actions of the Agent shall be deemed actions taken by
such persons as members of the Board of Directors of FTC prior to the
Closing.
H. BOKF shall pay the fees and costs of the Escrow Agent with
respect to the Deposits Escrow.
SECTION 12.03 ESI/DDI Escrow. On the Effective Date, BOKF shall establish
--------------
an escrow account (the "ESI/DDI Escrow") with the Escrow Agent. The ESI/DDI
Escrow shall be governed by an escrow agreement, the form of which is attached
hereto as "Exhibit "E" (the "ESI/DDI Escrow Agreement"), which shall provide as
follows:
A. At the Effective Date, BOKF shall deposit the principal amount of
$1,300,000 into the ESI/DDI Escrow, which, together with (i) all interest
earned thereon, but reduced by (ii) any ESI/DDI Escrow Allowed Claim (as
----------
hereafter defined) is referred to herein as the "ESI/DDI Escrow Funds,"
B. The ESI/DDI Escrow Funds shall be initially invested in a one-
year certificate of deposit at the Bank at the rate and on the terms and
conditions generally
37
offered by the Bank for certificates of deposit of comparable size and
duration, and upon maturity as necessary, in three-month certificates of
deposit at the Bank at the rates and on terms and conditions generally
offered by the Bank for certificates of comparable size and duration at
each renewal date, provided that any penalty for early withdrawal of such
funds will either be waived by the Bank or borne by BOKF.
C. The ESI/DDI Escrow Agreement shall terminate and the ESI/DDI
Escrow Funds shall be distributed to the FTC Shareholders in accordance
with Section 1.05E immediately upon written confirmation addressed to BOKF
or the Bank from Pacific Mutual Life Insurance Company, or such other
insurance company as may be reasonably acceptable to both BOKF and the
Agent (which insurance company is acting as underwriter of the insurance
policies currently held by the Bank to fund performance of the Bank's
obligations under the ESI and DDI agreements), that such policies are in
force and stating the cash surrender value of such policies, which shall
not be less than the value reflected on the Bank's general ledger at
September 30, 1996.
D. If the ESI/DDI Escrow is not terminated in accordance with
Section 12.03C on or before February 28, 1999, then on March 1, 1999, the
ESI/DDI Escrow Funds shall be distributed to BOKF and the ESI/DDI Escrow
shall terminate, provided, however, that if the ESI/DDI Escrow is not
terminated in accordance with Section 12.03C by November 30, 1998, at the
request of the Agent, BOKF shall cause the Bank to sell to a third party by
February 27, 1999, all rights of the Bank in the remainder interest of the
ESI and DDI policies, so long as the amount to be paid by such third party
shall not be less than $1,300,000, and upon consummation of such sale, the
ESI/DDI Escrow Funds shall be distributed to the FTC Shareholders and the
ESI/DDI Escrow shall terminate. In the event the condition of distribution
to the FTC Shareholders described in Section 12.03C is fulfilled prior to
the Closing Date, then at the Closing Date, the ESI/DDI Escrow Funds shall
be distributed to the FTC Shareholders on the Closing Date.
E. The rights of the FTC Shareholders in the ESI/DDI Escrow and the
ESI/DDI Escrow Funds shall not be assignable or transferable except by
operation of law or by intestacy and will not be evidenced by an
certificate or other interest.
F. The persons who are members of the Board of Directors of FTC
immediately prior to the Closing shall collectively serve as agent, acting
by a majority vote in the same manner as a board of director acting under
the TBCA, for the FTC Shareholders and shall have full authority to act for
and on behalf thereof in the administration of the provision of this
Section (the "Agent"). The actions of the persons acting as Agent for the
FTC Shareholders shall be deemed actions taken by them as members of the
Board of Directors of FTC prior to the Closing.
G. BOKF shall pay the fees and cost of the Escrow Agent with respect
to the ESI/DDI Escrow.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
38
BOK FINANCIAL CORPORATION
By:
--------------------------------------------------
Stanley A. Lybarger
President and Chief Executive Officer
FIRST TEXCORP, INC.
By:
--------------------------------------------------
Jerry Lastelick
Chairman of the Board of Directors
39
EXHIBIT "A"
-----------
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Merger Agreement"), is made as of
the ___ DAY OF DECEMBER, 1996 by and among FIRST TEXCORP, INC., a Texas
corporation, ("FTC") and BOKF MERGER CORPORATION NUMBER SIX, a Texas corporation
("BOKSub"), and joined in by BOK FINANCIAL CORPORATION, an Oklahoma corporation
("BOKF").
W I T N E S S E T H:
-------------------
A. FTC is a corporation duly organized and existing under the laws of the
State of Texas, having its principal office in the City of Dallas, Dallas
County, State of Texas, with authorized capital stock consisting of (i)
1,000,000 shares of common stock, par value $4.00 per share ("FTC Stock"), of
which 347,779 shares are validly issued and outstanding and none of which are
held in treasury;
B. BOKSub is a corporation duly organized and existing under the laws of
the State of Texas, with authorized capital stock consisting of 1,000 shares of
common stock, $1.00 par value ("BOKSub Stock"), of which 1,000 shares are issued
and outstanding;
C. The majorities of the Boards of Directors of FTC and BOKSub, pursuant
to the authority given by and in accordance with the provisions of the Texas
Business Corporation Act, as amended (the "TBCA"), have approved this Merger
Agreement under which BOKSub shall be merged with and into FTC (the "Merger")
and have authorized the execution hereof; and
D. As and when required by the provisions of this Merger Agreement, all
such action as may be necessary or appropriate shall be taken by BOKSub and FTC
in order to consummate the Merger.
NOW, THEREFORE, BOKSub and FTC, joined by BOKF, hereby agree that BOKSub
shall be merged with and into FTC on the following terms and conditions:
1. Merger of BOKSub and FTC. At the Effective Date (as defined in
------------------------
Section 14), BOKSub shall be merged with and into FTC pursuant to the provisions
of Part Five of the TBCA and with the effect provided in Article 5.06 of the
TBCA.
2. Effects of the Merger. The Merger shall have the effects set forth in
---------------------
Article 5.06 of the TBCA. Following the Merger, FTC shall continue as the
corporation resulting from the Merger (the "Resulting Corporation"), and the
separate corporate existence of BOKSub shall cease. The name of the Resulting
Corporation shall be "First Texcorp, Inc." The existing offices and facilities
of FTC immediately preceding the Merger shall be the principal offices and
facilities of the Resulting Corporation following the Merger. At the Effective
Date, all rights, title and interests to all real estate and other property
owned by each of BOKSub and FTC shall be allocated to and vested in the
Resulting Corporation without reversion or impairment, without further act or
deed, and without any transfer or assignment having occurred, but subject to any
existing liens or encumbrances thereon. At the Effective Date, all liabilities
and obligations of BOKSub and FTC shall be allocated to the Resulting
Corporation, and the Resulting Corporation
40
shall be the primary obligor therefor and no other party to the Merger shall be
liable therefor. At the Effective Date, a proceeding pending by or against
either BOKSub or FTC may be continued as if the Merger did not occur, or the
Resulting Corporation may be substituted in the proceedings.
3. Articles of Incorporation and Bylaws. As a result of the Merger, the
------------------------------------
Articles of Incorporation and Bylaws of FTC shall continue in effect as the
Articles of Incorporation and Bylaws of the Resulting Corporation until the same
shall be amended and changed as provided by law.
4. Directors and Officers. The directors, advisory directors and
----------------------
officers of FTC at the Effective Date shall be the directors, advisory directors
and officers of the Resulting Corporation and shall hold office from the
Effective Date until their respective successors are duly elected or appointed
and qualified in the manner provided in the Articles of Incorporation and Bylaws
of the Resulting Corporation or as otherwise provided by law, except that, in
addition to such FTC directors, Stanley A. Lybarger and James A. White shall be
directors of the Resulting Corporation.
5. Conversion of the FTC Stock. At the Effective Date by virtue of this
---------------------------
Agreement and without any further action on the part of any holder,
A. The holders as of the Effective Date (the "FTC Shareholders") of
the FTC Stock shall collectively be entitled to receive from BOKF the
consideration described in Sections 5B, 5C, 5D and 5E below (collectively,
the "Merger Consideration").
B. As of the Effective Date, the FTC Shareholders shall receive an
aggregate purchase price of $36,700,000 (the "Cash Consideration"),
provided that (i) if the Merger is not consummated by (a) March 4, 1997, if
the Board of Governors of the Federal Reserve System (the "Federal
Reserve") permits the consummation of the Merger on the fifteenth day
following approval of the Merger by the Federal Reserve or (b) March 19,
1997, if the Federal Reserve permits consummation of the Merger on the
thirtieth day following approval of the Merger, the Cash Consideration
will, unless the failure to consummate the Merger by such date results from
a failure of the FTC Stockholders to approve the Merger by such date,
increase by $10,000 per day between March 4, 1997 or March 19, 1997, as the
case may be, and the Effective Date and (ii) the Cash Consideration shall
decrease by an amount equal to the FTC Expenses (as such term is defined in
Section 11.02 of the Agreement and Plan of Reorganization, dated as of
December 18, 1996, by and between FTC and BOKF (the "Reorganization
Agreement")), plus the amount of the Excess Indebtedness (as defined in
Section 8.07 of the Reorganization Agreement). The Cash Consideration
divided by the number of shares of the FTC Stock outstanding on the
Effective Date is referred to herein as the "Per Share Cash Consideration."
On the Effective Date, each holder of the FTC Stock shall be entitled to
receive the Per Share Cash Consideration for each share of FTC Stock such
holder owns on the Effective Date.
C. As of the date of termination of the Representations Escrow
Agreement (as defined in Section 12.01 of the Reorganization Agreement),
the FTC Shareholders shall receive an aggregate amount equal to the
Representations Escrow Funds (as defined in
41
Section 12.01 of the Reorganization Agreement). The Representations Escrow
Funds divided by the number of shares of FTC Stock outstanding on the
Effective Date is referred to herein as the "Per Share Representations
Escrow Consideration". Upon the termination of the Representations Escrow
Agreement, each holder of the FTC Stock as of the Effective Date shall be
entitled to receive the Per Share Representations Escrow Consideration for
each share of FTC Stock such holder owns on the Effective Date.
D. As of the date of termination of the Deposits Escrow Agreement
(as defined in Section 12.02 of the Reorganization Agreement), the FTC
Shareholders shall receive an aggregate amount equal to the Deposits Escrow
Funds (as defined in Section 12.02 of the Reorganization Agreement). The
Deposits Escrow Funds divided by the number of shares of FTC Stock
outstanding on the Effective Date is referred to herein as the "Per Share
Deposits Escrow Consideration". Upon the termination of the Deposits Escrow
Agreement, each holder of the FTC Stock as of the Effective Date shall be
entitled to receive the Per Share Deposits Escrow Consideration for each
share of FTC Stock such holder owns on the Effective Date.
E. As of the termination of the ESI/DDI Escrow Agreement (as defined
in Section 12.03 of the Reorganization Agreement), the FTC Shareholders
shall receive an aggregate amount equal to the ESI/DDI Escrow Funds (as
defined in Section 12.03 of the Reorganization Agreement). The ESI/DDI
Escrow Funds divided by the number of shares of FTC Stock outstanding on
the Effective Date is referred to herein as the "Per Share ESI/DDI Escrow
Consideration". Upon the termination of the ESI/DDI Escrow Agreement, each
holder of the FTC Stock as of the Effective Date shall be entitled to
receive the Per Share ESI/DDI Escrow Consideration for each share of FTC
Stock such holder owns on the Effective Date.
F. The number of shares of the BOKSub Stock outstanding at the
Effective Date shall, at the Effective Date and by virtue of the Merger and
without any action on the part of BOKF or any other party as holder
thereof, be converted into a like number of shares of common stock of the
Resulting Corporation with a par value of $1.00 per share, with the effect
that the number of shares of the common stock of the Resulting Corporation
outstanding immediately after the Effective Date shall be equal to the
aggregate number of shares of BOKSub Stock outstanding immediately before
the Effective Date. The authorized number of shares of common stock of the
Resulting Corporation shall be the same as the authorized number of shares
of BOKSub Stock immediately prior to the Effective Date.
G. The Per Share Cash Consideration, the Per Share Representations
Escrow Consideration, and the Per Share Deposits Escrow Consideration are
hereafter collectively referred to as the "Per Share Merger Consideration."
As of the Effective Date, each share of the FTC Stock issued and
outstanding at the Effective Date shall, by operation of law and without
any action on the part of the holder thereof, unless dissenters' rights
under applicable law are being perfected with respect thereto, be converted
into the right to receive the Per Share Merger Consideration.
H. On or following the Effective Date, each holder of the FTC Stock
shall be required to surrender, in accordance with Section 14, its shares
of FTC Stock to FTC,
42
which shall act as exchange agent (the "Exchange Agent"), and upon such
surrender, each such holder shall be entitled to receive from BOKF within
three (3) business days thereafter, an amount of cash as determined
pursuant to Section 5B. Until so surrendered, each such outstanding
certificate representing shares of FTC Stock shall be deemed for all
purposes, subject only to dissenters' rights under applicable law, to
evidence solely the right to receive from BOKF the Per Share Merger
Consideration multiplied by the number of shares represented by such
certificate.
6. Stock Transfer Books. The stock transfer books of BOKSub shall be
--------------------
closed as of the close of business at the Effective Date, and no transfer of
record of any of the shares of BOKSub Stock shall take place thereafter.
7. FTC Shareholders' Meeting. This Merger Agreement shall be submitted
-------------------------
to the shareholders of FTC at a meeting called to be held as promptly as
practicable and to the sole shareholder of BOKSub by written consent of the sole
shareholder. Upon approval by the requisite votes of each class of the
shareholders of FTC and the approval of the sole shareholder of BOKSub, this
Merger Agreement shall be made effective as soon as practicable thereafter in
the manner provided in Section 14 hereof.
8. Dissenters' Rights. Any shareholder of FTC who has not voted in favor
------------------
of the Merger at the meeting of shareholders of FTC and who has given notice in
writing at or prior to such meeting of his intent to exercise his dissenters'
rights with respect to the Merger, all in accordance with Articles 5.11, 5.12
and 5.13 of the TBCA, shall be governed by such provisions of the TBCA.
9. Conditions to Consummation of the Merger. Consummation of the Merger
----------------------------------------
as provided herein shall be conditioned upon the satisfaction of the conditions
set forth in the Reorganization Agreement, any or all of which may be waived in
accordance with the terms and provisions of the Reorganization Agreement.
10. Termination. This Merger Agreement may be terminated and abandoned at
-----------
any time prior to or on the Closing Date, whether before or after action thereon
by the shareholders of FTC pursuant to the terms and provisions of the
Reorganization Agreement.
11. Effect of Termination. In the event of the termination and
---------------------
abandonment of this Merger Agreement pursuant to the provisions of Section 10,
the liability by reason of this Merger Agreement or the termination thereof on
the part of either FTC, BOKF or the directors, officers, employees, agents or
shareholders of either of them shall be determined pursuant to the terms and
provisions of the Reorganization Agreement. Such terms and provisions are
hereby incorporated herein by reference for all purposes.
12. Representations and Warranties of BOKSub. BOKSub is a corporation,
----------------------------------------
duly organized, validly existing and in good standing under the laws of the
State of Texas. BOKSub has all requisite corporate power and authority
(including all licenses, franchises, permits and other governmental
authorizations as are legally required) to carry on its business as now being
conducted, to own, lease and operate its properties and assets as now owned,
leased or operated and to enter into and carry out its obligations under this
Merger Agreement.
43
13. Waiver, Amendment and Modification. Any of the terms or conditions
----------------------------------
of this Merger Agreement may be waived at any time, whether before or after
action thereon by the shareholders of FTC by the party that is entitled to the
benefits thereof. This Merger Agreement may be modified or amended at any time,
whether before or after action thereon by the shareholders of FTC, by BOKF and
FTC; provided, however, that in no event may any amendment hereto be made after
action by the shareholders of FTC that affects the value of the consideration to
be received by the shareholders of FTC specified in Section 5 of this Merger
Agreement or that materially and adversely affects the rights of FTC's
shareholders hereunder without the requisite approval of such shareholders. Any
waiver, modification or amendment of this Merger Agreement shall be in writing.
14. Closing Date and Effective Date. On a mutually acceptable date (the
-------------------------------
"Closing Date") as soon as practicable following the expiration of the mandatory
waiting period following the date of the order of the Board of Governors of the
Federal Reserve System approving the acquisition of FTC by BOKF, a meeting will
take place at which the parties to this Merger Agreement will exchange
certificates, opinions, letters and other documents in order to determine
whether any condition exists that would permit the parties to this Merger
Agreement to terminate this Merger Agreement. If no such condition then exists
or if no party elects to exercise any right it may have to terminate this Merger
Agreement, then and thereupon the appropriate parties shall execute such
documents and instruments as may be necessary or appropriate in order to effect
the transactions contemplated by this Merger Agreement and the Reorganization
Agreement.
The Merger shall become effective on the date specified in the Certificate
of Merger to be issued by the Secretary of State of the State of Texas under the
seal of his office, such time being referred to herein as the "Effective Date."
The Exchange Agent shall send to each holder of the FTC Stock a letter of
transmittal for use in exchanging such holder's certificates for the Per Share
Cash Consideration. FTC shall forward letters of transmittal to each of its
shareholders, addressed to the most current address of such shareholders
according to the records of FTC, at least twenty (20) days prior to the Closing
Date unless FTC and BOKF shall mutually agree to send such letters at a later
date. If a holder of the FTC Stock surrenders the certificates representing
shares of such stock and a properly executed letter of transmittal to the
Exchange Agent at least three (3) business days prior to the Closing Date, then
on the Closing Date, BOKF shall pay to such shareholder the consideration set
forth in Section 5B, with respect to shares of the FTC Stock. If a holder of
the FTC Stock surrenders the certificates representing shares of such stock and
a properly executed letter of transmittal to the Exchange Agent at any time
after three (3) business days prior to the Closing Date, then promptly, and in
no event later than three (3) business days after receipt of such certificates
and letter of transmittal, BOKF shall pay to such shareholder the consideration
set forth in Section 5B with respect to such shares of the FTC Stock. If any
record shareholder of FTC is unable to locate any certificate evidencing the FTC
Stock, such shareholder shall submit to the Exchange Agent an affidavit of lost
certificate and indemnification agreement in form reasonably acceptable to BOKF.
Notwithstanding the foregoing, neither the Exchange Agent nor any other party to
this Agreement shall be liable to any holder of certificates representing the
FTC Stock for any amount paid to a public official pursuant to any applicable
abandoned property, escheat or similar law. No interest shall be payable with
respect to the payment of the Merger Consideration.
44
15. Multiple Counterparts. For the convenience of the parties hereto,
---------------------
this Merger Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, and all counterparts hereof so executed by the
parties hereto, whether or not such counterpart shall bear the execution of each
of the parties hereto, shall be deemed to be, and shall be construed as, one and
the same Merger Agreement. A telecopy or facsimile transmission of a signed
counterpart of this Merger Agreement shall be sufficient to bind the party or
parties whose signature(s) appear thereon.
16. Governing Law. THIS MERGER AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
-------------
WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS (INCLUDING THOSE LAWS
RELATING TO CHOICE OF LAW) APPLYING TO CONTRACTS ENTERED INTO AND TO BE
PERFORMED WITHIN THE STATE OF TEXAS, WITHOUT REGARD FOR THE PROVISIONS THEREOF
REGARDING CHOICE OF LAW.
17. Further Assurances. Each party hereto agrees from time to time, as
------------------
and when requested by the other party hereto, or by its successors or assigns,
to execute and deliver, or cause to be executed and delivered, all such deeds
and instruments and to take or cause to be taken such further or other acts,
either before or after the Effective Date, as may be deemed necessary or
desirable in order to vest in and confirm to the resulting Corporation title to
and possession of any assets of BOKSub or FTC acquired or to be acquired by
reason of or as a result of the Merger and otherwise to carry out the intent and
purposes hereof, and the officers and directors of the parties hereto are fully
authorized in the name of their respective corporate names to take any and all
such actions.
18. Severability. In the event that any provision of this Merger
------------
Agreement is held to be illegal, invalid or unenforceable under present or
future laws, then (a) such provision shall be fully severable and this Merger
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision were not a part hereof; (b) the remaining provisions of
this Merger Agreement shall remain in full force and effect and shall not be
affected by such illegal, invalid or unenforceable provision or by its severance
from this Merger Agreement; and (c) there shall be added automatically as a part
of this Merger Agreement a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and still be legal, valid
and enforceable.
19. Specific Performance. Each of the parties hereto acknowledges that
--------------------
the other parties would be irreparably damaged and would not have an adequate
remedy at law for money damages in the event that any of the covenants contained
in this Merger Agreement were not performed in accordance with its terms or
otherwise were materially breached. Each of the parties hereto therefore agrees
that, without the necessity of proving actual damages or posting bond or other
security, the other party shall be entitled to temporary and/or permanent
injunction or injunctions to prevent breaches of such performance and to
specific enforcement of such covenants in addition to any other remedy to which
they may be entitled, at law or in equity.
20. Rules of Construction. Descriptive headings as to the contents of
---------------------
particular sections are for convenience only and shall not control or affect the
meaning, construction or interpretation of any provision of this Merger
Agreement. All articles and sections referred to herein are articles and
sections, respectively, of this Merger Agreement. Each use herein of the
45
masculine, neuter or feminine gender shall be deemed to include the other
genders. Each use herein of the plural shall include the singular and vice
versa, in each case as the context requires or as it is otherwise appropriate.
The word "or" is used in the inclusive sense.
21. Binding Effect; Assignment. All of the terms, covenants,
--------------------------
representations, warranties and conditions of this Merger Agreement shall be
binding upon, and inure to the benefit of and be enforceable by, the parties
hereto and their respective successors, representatives and permitted assigns.
Nothing expressed or referred to herein is intended or shall be construed to
give any person other than the parties hereto any legal or equitable right,
remedy or claim under or in respect of this Merger Agreement, or any provision
herein contained, it being the intention of the parties hereto that this Merger
Agreement, the assumption of obligations and statements of responsibilities
hereunder, and all other conditions and provisions hereof are for the sole
benefit of the parties to this Merger Agreement and for the benefit of no other
person. Nothing in this Merger Agreement shall act to relieve or discharge the
obligation or liability of any third party to any party to this Merger
Agreement, nor shall any provision give any third party any right of subrogation
or action over or against any party to this Merger Agreement. No party to this
Merger Agreement shall assign this Merger Agreement, by operation of law or
otherwise, in whole or in part, without the prior written consent of the other
parties. Any assignment made or attempted in violation of this Section 21 shall
be void and of no effect.
IN WITNESS WHEREOF, the parties hereto have caused this Merger Agreement to
be executed by their duly authorized officers as of the date first above
written.
FIRST TEXCORP, INC.
By:
------------------------------------------------
Jerry Lastelick,
Chairman of the Board of Directors
BOKF MERGER CORPORATION
NUMBER SIX
By:
------------------------------------------------
Stanley Lybarger, President
BOK FINANCIAL CORPORATION
By:
------------------------------------------------
Stanley Lybarger, President
and Chief Executive Officer
46
EXHIBIT "B"
-----------
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement ("Agreement") is made, effective this ___ day of
______________, 1997 between First Texas Bank, a Texas-chartered banking
association (the "Bank") and //_____________, an individual residing in
//____________, Texas (the "Executive").
The Bank and Executive, in consideration of the promises and covenants set
forth herein (the receipt and adequacy of which is hereby acknowledged) and
intending to be legally bound hereby, agree as follows:
(1) PURPOSE OF THIS AGREEMENT. The purpose of this agreement is as follows:
-------------------------
(a) The Bank is a Texas-chartered banking association, engaged in the
banking business in Dallas County, Texas.
(b) The Executive is currently serving as
//____________________________. The Executive currently has no written
agreement of employment with the Bank, but the Executive is currently
receiving salary compensation and other benefits from the Bank
(collectively, the "Current Benefits").
(c) Pursuant to an Agreement and Plan of Reorganization, dated as of
December 18, 1996 (the "Merger Agreement"), between BOK Financial
Corporation ("BOKF") and First TexCorp, Inc. ("Acquiree"), BOKF is
acquiring indirect ownership of the Bank (the "Merger"). Upon and
subject to consummation of the Merger, the Bank desires to retain the
services of Executive and the Executive desires to continue to render
services to the Bank.
(d) The purpose of this Agreement is to set forth the terms and
conditions (i) on which the Bank shall, subject to consummation of the
Merger,
employ the Executive from and after consummation of the Merger and
(ii) on which the Executive agrees not to compete with the Bank.
(2) EMPLOYMENT. The Bank hereby employs the Executive, and the Executive
----------
hereby agrees to work for the Bank, on the following terms and conditions:
(a) Executive shall serve as //_______________________ of the Bank,
subject to the direction of the Board of Directors of the Bank and of
the Chief Executive Officer of BOKF; provided, that, in the event of a
conflict between the directions being given by the Board of Directors
of the Bank and the Chief Executive Officer of BOKF, the Executive
shall act in accordance with the directions of the Board of Directors
of the Bank.
(b) Executive shall devote his full time, attention and efforts,
exclusively on behalf of the Bank.
(c) Executive shall devote all time and attention reasonably necessary
to the affairs of the Bank and shall serve the Bank diligently,
loyally, and to the best of his ability.
(d) Executive shall serve in such other or additional positions as an
officer and/or director of BOKF as the Chief Executive Officer of BOKF
may request; provided, however, Executive's residence and place of
work shall remain in Dallas County, Texas.
(e) Notwithstanding anything herein to the contrary, Executive shall not
be precluded from engaging in any charitable, civic, political or
community activity or membership in any professional organization.
2
(3) COMPENSATION. As the sole, full and complete compensation to the Executive
------------
for the performance of all duties of Executive under this Agreement and for
all services rendered by Executive to the Bank or to any affiliate of the
Bank:
(a) The Bank shall pay to Executive the sum of
//_______________________ per year payable in installments in arrears,
less usual and customary payroll deductions for FICA, federal and
state withholding, and the like, at the times and in the manner in
effect in accordance with the usual and customary payroll policies
generally in effect from time to time at the Bank ("Annual Salary").
(b) The Bank shall pay and provide to Executive pension, thrift,
medical insurance, disability insurance plan benefits, and other
fringe benefits, generally in effect for senior executive employees of
BOKF and its affiliates (the "Additional Benefits"). The pension
benefits provided to BOKF employees are fully described in the
official plan document but include a contribution initially equal to
//____% of pay. Executive shall be credited with his prior service at
Acquiree and its affiliates in BOKF's 401k plan and in connection with
the Additional Benefits, other than in connection with BOKF's pension
plan. Executive shall not be credited with prior service in BOKF's
pension plan.
(c) The Bank may, from time to time in Bank's sole discretion
consistent with the practices generally in effect for senior executive
employees of BOKF and its affiliates, pay or provide, or agree to pay
or provide, Executive a bonus, stock option, or other incentive or
performance based compensation. All such bonus, stock option or other
incentive or performance based
3
compensation, regardless of its nature (hereinafter called
"Performance Compensation") shall not constitute Annual Salary.
(d) The Bank shall reimburse Executive for reasonable and necessary
entertainment, travel and other expenses in accordance with BOKF's
standard policies in general effect for senior executive employees of
BOKF's affiliates (which includes dues for lunch clubs, but does not
include reimbursement for country club memberships or dues).
(e) The Executive shall be allowed vacation, holidays, and other
employee benefits not described above in accordance with the Bank's
standard policy in general effect for Bank's senior executive
employees.
(f) The Executive shall be considered for the award of options pursuant
to BOKF's 1997 stock option plan (not yet adopted) on the same basis
as other senior executives of BOKF and its affiliates.
(g) Executive hereby agrees to accept the foregoing compensation in
lieu of all Current Benefits and as the sole, full and complete
compensation to Executive for the performance of all duties of
Executive under this Agreement and for all services rendered by
Executive to the Bank or any affiliate of the Bank.
(4) TERM OF THIS AGREEMENT. The term of this Agreement (the "Term") shall
----------------------
commence (the "Commencement") as of the commencement of the first pay-roll
period immediately preceding the effective date of the Merger and shall
terminate on the third anniversary date of the Commencement.
(5) TERMINATION OF THIS AGREEMENT. Notwithstanding the provisions of paragraph
-----------------------------
4 of this Agreement, this Agreement may be terminated on the following
terms and conditions:
4
(a) Termination by Bank for Cause. The Bank may terminate this
-----------------------------
Agreement for cause on the following terms and conditions:
(i) The Bank shall be deemed to have cause to terminate
Executive's employment only in one of the following events:
(A) The Executive shall willfully fail to substantially
perform his obligations under this Agreement (it being
understood that any such failure resulting from Executive's
incapacity due to physical or mental illness shall not be
deemed willful);
(B) Any act which is intended by Executive to materially
injure the Bank;
(C) Any criminal act involving moral turpitude;
(D) Any dishonest or fraudulent act; or,
(E) Any refusal to obey written orders or instructions of the
Board of Directors of the Bank unless such instructions
would require Executive to commit an illegal act, could
subject Executive to personal liability, would require
Executive to violate the terms of this Agreement, or would
otherwise be inconsistent with the duties of an officer of a
Texas-chartered banking association.
5
(ii) The Bank shall be deemed to have cause to terminate Executive's
employment only when a majority of the members of the Board of
Directors of the Bank finds that, in the good faith opinion of
such majority, the Executive committed any of the acts set forth
in clauses (A) through (E) of the preceding subparagraph, such
finding to have been made after at least ten (10) business days'
notice to the Executive and an opportunity for the Executive,
together with his counsel, to be heard before such majority. The
determination of such majority, made as set forth above, shall
be binding upon the Bank and the Executive, absent bad faith or
willful misconduct.
(iii) The effective date of a termination for cause shall be the date
of the action of such majority finding the termination was with
cause. In the event the Bank terminates this Agreement for
cause, (A) the Bank shall pay Executive the Executive's then
Annual Salary through, but not beyond, the effective date of the
termination, (B) the Executive shall receive those benefits that
are accrued through but not beyond the effective date of such
termination which are thereafter payable under the terms and
provisions of benefit plans then in effect in accordance with
paragraph 3 above.
6
(b) Termination By the Executive. The Executive may, at anytime after
----------------------------
the first anniversary date of the consummation of the Merger,
terminate this Agreement on the following terms and conditions:
(i) The Executive may give written notice of termination to the
Bank. The termination shall be effective on the fifteenth (15th)
business day following the notice of termination.
(ii) Upon termination by the Executive, the Bank shall have no
obligation to Executive under this Agreement beyond the effective
date of the termination; provided, however, that the Executive
shall be entitled to receive any benefits, insured or otherwise,
that Executive would otherwise be able to receive under any
benefit plan of the Bank of which Executive is a beneficiary in
accordance with paragraph 3.
(6) DEATH OF EXECUTIVE. In the event of Executive's death during the term of
------------------
this Agreement, his estate, legal representatives, or named beneficiaries
(as set forth in a writing by Executive delivered to the Bank prior to
death) (i) shall be paid Executive's Annual Salary for a period of six (6)
months following the date of Executive's death and (ii) shall receive those
benefits which are accrued through the date six (6) months after the date
of Executive's death and which are thereafter payable under the terms and
provisions of the benefit plans then in effect in accordance with paragraph
3 above.
(7) PROVISIONS RESPECTING ILLNESS. In the event Executive is unable to perform
-----------------------------
his duties under this Agreement on a full-time basis for a period of six
(6) consecutive months by reason of illness or other physical or mental
disability, and at or before the end of such period, Executive does not
return to work on a full-time basis, the Bank may terminate
7
this Agreement without further or additional compensation being due the
Executive from the Bank except annual salary and benefits accrued through
the date of such termination under benefit plans then in effect in
accordance with paragraph 3 above.
(8) AGREEMENT NOT TO COMPETE. The provisions of this paragraph 8 are hereafter
------------------------
called the "Non-Competition Agreement".
(a) Executive agrees that for a period of 24 months after the
termination of Executive's employment by Bank, for whatever reason
such employment may cease and whether by reason of the expiration of
the term of this Agreement and whether for cause or without cause,
Executive shall not directly or indirectly (whether as an officer,
director, employee, partner, stockholder, creditor or agent, or
representative of other persons or entities) (i) engage in the banking
business generally or in any business in which the Bank has, as of the
date of such termination engaged, in Dallas, Texas, or (ii) solicit
clients of Bank or Bank's affiliates or solicit employees of Bank or
Bank's affiliates to seek employment with any person or entity except
the Bank and its affiliates, whether, in either case, such
solicitation is made within or without the area described in this
paragraph 8.
(b) Except in the event of the termination of Executive's employment
with the Bank pursuant to the provisions of paragraph 5(a) or
paragraph 5(b) of this Agreement, the Bank shall pay Executive during
such period of non-competition the sum of //______________________ for
each full calendar month payable on the first day of each calendar
commencing with the first calendar month of the period of non-
competition.
8
(c) Executive agrees that (i) this Non-Competition Agreement is entered
into in connection with the sale to BOKF of the goodwill of the
business of the Bank, (ii) Executive is receiving valuable
consideration in the Merger for this Non-Competition Agreement, (iii)
the restrictions imposed upon Executive by this Non-Competition
Agreement are essential and necessary to ensure BOKF acquires the
goodwill of the Bank, and (iv) all the restrictions (including
particularly the time and geographical limitations) set forth in this
Non-Competition Agreement are fair and reasonable.
(d) Executive agrees that any remedy at law for any breach of this Non-
Competition Agreement would be inadequate and, in the event of any
such breach, the Bank shall be entitled to both immediate and
permanent injunctive relief without the necessity of posting any bond
therefor to preclude any such breach (in addition to any remedies of
law which the Bank may be entitled).
(9) MISCELLANEOUS PROVISIONS. The following miscellaneous provisions shall
------------------------
apply to this Agreement:
(a) All notices or advices required or permitted to be given by or
pursuant to this Agreement, shall be given in writing. All such
notices and advices shall be (i) delivered personally, (ii) delivered
by facsimile or delivered by U.S. Registered or Certified Mail, Return
Receipt Requested mail, or (iii) delivered for overnight delivery by a
nationally recognized overnight courier service. Such notices and
advices shall be deemed to have been given (i) the first business day
following the date of delivery if delivered personally or by
facsimile, (ii) on the third business day following the date
9
of mailing if mailed by U.S. Registered or Certified Mail, Return
Receipt Requested, or (iii) on the date of receipt if delivered for
overnight delivery by a nationally recognized overnight courier
service. All such notices and advices and all other communications
related to this Agreement shall be given as follows:
If to the Bank:
BOK Financial Corporation
P.O. Box 2300
Tulsa, OK 74192
Attention: Stanley A. Lybarger
Telecopy No.: (918) 588-6888
and
//______________________________
________________________________
________________________________
Telecopy No.: __________________
With a Copy to:
Frederic Dorwart
Old City Hall
124 East Fourth Street
Tulsa, OK 74103-5010
Telecopy No.: (918) 583-8251
If to Executive:
//______________________________
________________________________
________________________________
Telecopy No.: __________________
With Copy To:
//______________________________
//______________________________
//______________________________
Attention: _____________________
Telecopy No.: __________________
10
or to such other address as the party may have furnished to the other
parties in accordance herewith, except that notice of change of
addresses shall be effective only upon receipt.
(b) This Agreement is made and executed in Dallas County, Texas, and
all actions or proceedings with respect to, arising directly or
indirectly in connection with, out of, related to or from this
Agreement, shall be litigated in courts having situs in Dallas County,
Texas.
(c) This Agreement shall be subject to, and interpreted by and in
accordance with, the laws (excluding conflict of law provisions) of
the State of Texas.
(d) This Agreement is the entire Agreement of the parties respecting
the subject matter hereof. There are no other agreements,
representations or warranties, whether oral or written, respecting the
subject matter hereof, except as stated in this Agreement.
(e) This Agreement, and all the provisions of this Agreement, shall be
deemed drafted by all of the parties hereto.
(f) This Agreement shall not be interpreted strictly for or against any
party, but solely in accordance with the fair meaning of the
provisions hereof to effectuate the purposes and interest of this
Agreement.
(g) Each party hereto has entered into this Agreement based solely upon
the agreements, representations and warranties expressly set forth
herein and upon his own knowledge and investigation. Neither party has
relied upon any representation or warranty of any other party hereto
except any such representations or warranties as are expressly set
forth herein.
11
(h) Each of the persons signing below on behalf of a party hereto
represents and warrants that he or she has full requisite power and
authority to execute and deliver this Agreement on behalf of the
parties for whom he or she is signing and to bind such party to the
terms and conditions of this Agreement.
(i) This Agreement may be executed in counterparts, each of which shall
be deemed an original. This Agreement shall become effective only
when all of the parties hereto shall have executed the original or
counterpart hereof. This Agreement may be executed and delivered by a
facsimile transmission of a counterpart signature page hereof.
(j) In any action brought by a party hereto to enforce the obligations
of any other party hereto, the prevailing party shall be entitled to
collect from the opposing party to such action such party's reasonable
litigation costs and attorneys fees and expenses (including court
costs, reasonable fees of accountants and experts, and other expenses
incidental to the litigation).
(k) This Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective successors and assigns.
(l) This is not a third party beneficiary contract, except BOKF
(including each affiliate thereof) shall be a third party beneficiary
of this Agreement. No person or entity other than a party signing this
Agreement and those designated as a third party beneficiary herein
shall have any rights under this Agreement.
(m) This Agreement may be amended or modified only in a writing which
specifically references this Agreement.
12
(n) A party to this Agreement may decide or fail to require full or
timely performance of any obligation arising under this Agreement. The
decision or failure of a party hereto to require full or timely
performance of any obligation arising under this Agreement (whether on
a single occasion or on multiple occasions) shall not be deemed a
waiver of any such obligation. No such decisions or failures shall
give rise to any claim of estoppel, laches, course of dealing,
amendment of this Agreement by course of dealing, or other defense of
any nature to any obligation arising hereunder.
(o) In the event any provision of this Agreement, or the application of
such provision to any person or set of circumstances, shall be
determined to be invalid, unlawful, or unenforceable to any extent for
any reason, the remainder of this Agreement, and the application of
such provision to persons or circumstances other than those as to
which it is determined to be invalid, unlawful, or unenforceable,
shall not be affected and shall continue to be enforceable to the
fullest extent permitted by law.
Dated and effective the date first set forth above.
FIRST TEXAS BANK
By:
------------------------------------------
------------------------------------------
//
----------------------------------------
13
EXHIBIT "C"
-----------
ESCROW AGREEMENT
----------------
(Representations Escrow)
This ESCROW AGREEMENT has been executed this ____ day of _______________,
199__ by and between BOK Financial Corporation ("BOKF"), the Shareholders of
First TexCorp, Inc. ("Shareholders"), and Alliance Trust Company, National
Association, as Escrow Agent (hereinafter called Escrow Agent).
BOKF has deposited in escrow with the Escrow Agent $500,000 pursuant to
that certain Agreement and Plan of Reorganization dated December 18, 1996, among
BOKF, BOKF Merger Corporation Number Six, and First TexCorp, Inc. ("Merger
Agreement"). The parties agree that this escrow shall be administered in
accordance with Section 12.01 of the Merger Agreement, a true and correct copy
of which is attached hereto and incorporated herein by this reference. BOKF and
the Agent (as defined in Section 12.01 of the Merger Agreement) shall jointly
provide all notices to the Escrow Agent required by Section 12.01 of the Merger
Agreement to fulfil the terms and conditions of the Escrow Account and the
Escrow Agent shall act only pursuant to the joint written instructions of BOKF
and the Agent.
The parties to this Escrow Agreement agree that the following provisions
shall control with respect to the rights duties, liabilities, privileges and
immunities of the Escrow Agent.
(a) The Escrow Agent is not a party to, and is not bound by, or charged
with notice of, any agreement out of which this escrow may arise
(b) The Escrow Agent acts hereunder as a depository only, and is not
responsible or liable in any manner whatever for the sufficiency, correctness,
genuineness or validity of the subject matter of the escrow, or any part
thereof, or for the form or execution thereof, or for the identity or authority
of any person executing or depositing it. The Escrow Agent will not render
investment advice with respect to the subject matter of this escrow.
(c) In the event the Escrow Agent becomes involved in litigation in
connection with this escrow, the undersigned jointly and severally agree to
indemnify and save the Escrow Agent harmless from all loss, cost, damages,
expenses and attorney's fees suffered or incurred by the Escrow Agent as a
result thereof.
(d) The Escrow Agent shall be protected in acting upon any written notice,
request, waiver, consent, certificate, receipt, authorization, power of attorney
or other paper or document which the Escrow Agent in good faith believes to be
genuine and what it purports to be.
(e) The Escrow Agent shall not be liable for anything which it may do or
refrain from doing in connection herewith, except its own gross negligence or
willful misconduct.
(f) The Escrow Agent may consult with legal counsel in the event of any
dispute or question as to the construction of any of the provisions hereof or
its duties hereunder, and it shall incur no liability and shall be fully
protected in acting in accordance with the opinion and instructions of such
counsel.
(g) In the event of any disagreement between any of the parties to this
agreement, or between them or either of any of them and any other person,
resulting in adverse claims or
demands being made in connection with the subject matter of the escrow, or in
the event that the Escrow Agent, in good faith, be in doubt as to what action it
should take hereunder, the Escrow Agent may, at its option, refuse to comply
with any claims or demands on it, or refuse to take any other action hereunder,
so long as such disagreement continues or such doubt exists, and in any such
event, the Escrow Agent shall not be or become liable in any way or to any
person for its failure or refusal to act, and the Escrow Agent shall be entitled
to continue so to refrain from acting until (i) the rights of all parties shall
have been fully and finally adjudicated by a court of competent jurisdiction, or
(ii) all differences shall have been adjusted and all doubt resolved by
agreement among all of the interested persons, and the Escrow Agent shall have
been notified thereof in writing signed by all such persons. The rights of the
Escrow Agent under this paragraph are cumulative of all other rights which it
may have by law or otherwise.
Executed in Dallas, Texas this ___ day of __________, 199__.
BOK Financial Corporation
By
------------------------------------------
Stanley A. Lybarger, President and Chief
Executive Officer
SHAREHOLDERS
By
------------------------------------------
Jerry Lastelick
As Chairman of the Board of Directors of
First TexCorp, Inc.
Alliance Trust Company, National
Association
By
------------------------------------------
James Dickson, President
-2-
EXHIBIT "D"
-----------
ESCROW AGREEMENT
----------------
(Deposits Escrow)
This ESCROW AGREEMENT has been executed this ____ day of _______________,
199__ by and between BOK Financial Corporation ("BOKF"), the Shareholders of
First TexCorp, Inc. ("Shareholders"), and Alliance Trust Company, National
Association, as Escrow Agent (hereinafter called Escrow Agent).
BOKF has deposited in escrow with the Escrow Agent $750,000 pursuant to
that certain Agreement and Plan of Reorganization dated December 18, 1996, among
BOKF, BOKF Merger Corporation Number Six, and First TexCorp, Inc. ("Merger
Agreement"). The parties agree that this escrow shall be administered in
accordance with Section 12.02 of the Merger Agreement, a true and correct copy
of which is attached hereto and incorporated herein by this reference. BOKF and
the Agent (as defined in Section 12.02 of the Merger Agreement) shall jointly
provide all notices to the Escrow Agent required by Section 12.02 of the Merger
Agreement to fulfil the terms and conditions of the Escrow Account and the
Escrow Agent shall act only pursuant to the joint written instructions of BOKF
and the Agent.
The parties to this Escrow Agreement agree that the following provisions
shall control with respect to the rights duties, liabilities, privileges and
immunities of the Escrow Agent.
(a) The Escrow Agent is not a party to, and is not bound by, or charged
with notice of, any agreement out of which this escrow may arise
(b) The Escrow Agent acts hereunder as a depository only, and is not
responsible or liable in any manner whatever for the sufficiency, correctness,
genuineness or validity of the subject matter of the escrow, or any part
thereof, or for the form or execution thereof, or for the identity or authority
of any person executing or depositing it. The Escrow Agent will not render
investment advice with respect to the subject matter of this escrow.
(c) In the event the Escrow Agent becomes involved in litigation in
connection with this escrow, the undersigned jointly and severally agree to
indemnify and save the Escrow Agent harmless from all loss, cost, damages,
expenses and attorney's fees suffered or incurred by the Escrow Agent as a
result thereof.
(d) The Escrow Agent shall be protected in acting upon any written notice,
request, waiver, consent, certificate, receipt, authorization, power of attorney
or other paper or document which the Escrow Agent in good faith believes to be
genuine and what it purports to be.
(e) The Escrow Agent shall not be liable for anything which it may do or
refrain from doing in connection herewith, except its own gross negligence or
willful misconduct.
(f) The Escrow Agent may consult with legal counsel in the event of any
dispute or question as to the construction of any of the provisions hereof or
its duties hereunder, and it shall incur no liability and shall be fully
protected in acting in accordance with the opinion and instructions of such
counsel.
(g) In the event of any disagreement between any of the parties to this
agreement, or between them or either of any of them and any other person,
resulting in adverse claims or demands being made in connection with the subject
matter of the escrow, or in the event that
the Escrow Agent, in good faith, be in doubt as to what action it should take
hereunder, the Escrow Agent may, at its option, refuse to comply with any claims
or demands on it, or refuse to take any other action hereunder, so long as such
disagreement continues or such doubt exists, and in any such event, the Escrow
Agent shall not be or become liable in any way or to any person for its failure
or refusal to act, and the Escrow Agent shall be entitled to continue so to
refrain from acting until (i) the rights of all parties shall have been fully
and finally adjudicated by a court of competent jurisdiction, or (ii) all
differences shall have been adjusted and all doubt resolved by agreement among
all of the interested persons, and the Escrow Agent shall have been notified
thereof in writing signed by all such persons. The rights of the Escrow Agent
under this paragraph are cumulative of all other rights which it may have by law
or otherwise.
Executed in Dallas, Texas this ___ day of __________, 199__.
BOK Financial Corporation
By
------------------------------------------
Stanley A. Lybarger, President and Chief
Executive Officer
SHAREHOLDERS
By
------------------------------------------
Jerry Lastelick
As Chairman of the Board of Directors of
First TexCorp, Inc.
Alliance Trust Company, National
Association
By
------------------------------------------
James Dickson, President
-2-
EXHIBIT "E"
-----------
ESCROW AGREEMENT
----------------
(ESI/DDI Escrow)
This ESCROW AGREEMENT has been executed this ____ day of _______________,
199__ by and between BOK Financial Corporation ("BOKF"), the Shareholders of
First TexCorp, Inc. ("Shareholders"), and Alliance Trust Company, National
Association, as Escrow Agent (hereinafter called Escrow Agent).
BOKF has deposited in escrow with the Escrow Agent $1,300,000 pursuant to
that certain Agreement and Plan of Reorganization dated December 18, 1996, among
BOKF, BOKF Merger Corporation Number Six, and First TexCorp, Inc. ("Merger
Agreement"). The parties agree that this escrow shall be administered in
accordance with Section 12.01 of the Merger Agreement, a true and correct copy
of which is attached hereto and incorporated herein by this reference. BOKF and
the Agent (as defined in Section 12.01 of the Merger Agreement) shall jointly
provide all notices to the Escrow Agent required by Section 12.01 of the Merger
Agreement to fulfil the terms and conditions of the Escrow Account and the
Escrow Agent shall act only pursuant to the joint written instructions of BOKF
and the Agent.
The parties to this Escrow Agreement agree that the following provisions
shall control with respect to the rights duties, liabilities, privileges and
immunities of the Escrow Agent.
(a) The Escrow Agent is not a party to, and is not bound by, or charged
with notice of, any agreement out of which this escrow may arise
(b) The Escrow Agent acts hereunder as a depository only, and is not
responsible or liable in any manner whatever for the sufficiency, correctness,
genuineness or validity of the subject matter of the escrow, or any part
thereof, or for the form or execution thereof, or for the identity or authority
of any person executing or depositing it. The Escrow Agent will not render
investment advice with respect to the subject matter of this escrow.
(c) In the event the Escrow Agent becomes involved in litigation in
connection with this escrow, the undersigned jointly and severally agree to
indemnify and save the Escrow Agent harmless from all loss, cost, damages,
expenses and attorney's fees suffered or incurred by the Escrow Agent as a
result thereof.
(d) The Escrow Agent shall be protected in acting upon any written notice,
request, waiver, consent, certificate, receipt, authorization, power of attorney
or other paper or document which the Escrow Agent in good faith believes to be
genuine and what it purports to be.
(e) The Escrow Agent shall not be liable for anything which it may do or
refrain from doing in connection herewith, except its own gross negligence or
willful misconduct.
(f) The Escrow Agent may consult with legal counsel in the event of any
dispute or question as to the construction of any of the provisions hereof or
its duties hereunder, and it shall incur no liability and shall be fully
protected in acting in accordance with the opinion and instructions of such
counsel.
(g) In the event of any disagreement between any of the parties to this
agreement, or between them or either of any of them and any other person,
resulting in adverse claims or demands being made in connection with the subject
matter of the escrow, or in the event that
the Escrow Agent, in good faith, be in doubt as to what action it should take
hereunder, the Escrow Agent may, at its option, refuse to comply with any claims
or demands on it, or refuse to take any other action hereunder, so long as such
disagreement continues or such doubt exists, and in any such event, the Escrow
Agent shall not be or become liable in any way or to any person for its failure
or refusal to act, and the Escrow Agent shall be entitled to continue so to
refrain from acting until (i) the rights of all parties shall have been fully
and finally adjudicated by a court of competent jurisdiction, or (ii) all
differences shall have been adjusted and all doubt resolved by agreement among
all of the interested persons, and the Escrow Agent shall have been notified
thereof in writing signed by all such persons. The rights of the Escrow Agent
under this paragraph are cumulative of all other rights which it may have by law
or otherwise.
Executed in Dallas, Texas this ___ day of __________, 199__.
BOK Financial Corporation
By
------------------------------------------
Stanley A. Lybarger, President and Chief
Executive Officer
SHAREHOLDERS
By
------------------------------------------
Jerry Lastelick
As Chairman of the Board of Directors of
First TexCorp, Inc.
Alliance Trust Company, National
Association
By
------------------------------------------
James Dickson, President
-2-