EXHIBIT 2.2
MERGER AGREEMENT
MERGER AGREEMENT dated as of May 6, 1998 (hereinafter called the "Merger
Agreement"), between AmQuest Financial Corp. (hereinafter called "AMQUEST") and
BancFirst Corporation (hereinafter called "BANCFIRST").
WITNESSETH:
AMQUEST is a corporation duly organized under the laws of the State of Oklahoma.
As of March 31, 1998, AMQUEST had authorized capital stock consisting of
6,000,000 shares of common stock having a par value of $1.67 per share ("AMQUEST
Common"), of which a total of 3,160,751 shares were issued and outstanding and
154,902 of which were shares subject to purchase options. Except as set forth
in Exhibit A hereto, AMQUEST, or a subsidiary of AMQUEST, owns, beneficially and
of record, all of the issued and outstanding capital stock of the banks (the
"Banks") and of the corporations and/or limited liability companies (together,
the "Companies") listed in Exhibit A hereto. The Banks and the Companies are
hereinafter sometimes referred to collectively as "Subsidiaries" and each,
sometimes, as a "Subsidiary."
BANCFIRST is a corporation duly organized under the laws of the State of
Oklahoma. As of the date of this Agreement, BANCFIRST had capital stock of $22
million divided into $7.5 million shares of common stock having a par value of
$1.00 per share ("BANCFIRST Common"), of which 6,777,969 are issued and
outstanding and 900,000 shares of 10% cumulative Preferred Stock, $5.00 par
value, of which no shares are issued and outstanding and 10 million shares of 10
million Preferred Stock, $1.00 par value, of which no shares are issued and
outstanding.
The respective Boards of Directors of AMQUEST and BANCFIRST have each approved
this Merger Agreement and the consummation of the transactions contemplated
hereby and have approved the execution and delivery of this Merger Agreement.
This Merger Agreement provides for the merger of AMQUEST with and into BANCFIRST
upon the terms and conditions of this Merger Agreement (the "Merger").
BANCFIRST will be the surviving corporation of the Merger. From and after the
time the Merger shall become effective as set forth in Section 4 of this Merger
Agreement, and as and when required by this Merger Agreement, BANCFIRST will
issue shares of BANCFIRST Common and in exchange for all of the issued and
outstanding shares of AMQUEST
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Common. It is understood by each of the parties hereto that BANCFIRST seeks, as
a result of the Merger, to acquire AMQUEST, the Banks and the Companies and all
of their respective operating assets and liabilities.
Subject to the terms and conditions of this Merger Agreement, all parties will
exert their reasonable best efforts to obtain such regulatory approvals and to
effect such other actions as are necessary or appropriate to consummate the
Merger. In no event will BANCFIRST issue more than 2,625,000 Shares of
BANCFIRST Common in connection with the transactions contemplated by this Merger
Agreement.
BANCFIRST and AMQUEST intend that the Merger be a tax-free reorganization within
the meaning of Section 368(a) of the Internal Revenue Code and to be accounted
for as a pooling of interests pursuant to APB Opinion No.16.
In consideration of the premises, AMQUEST and BANCFIRST hereby make this Merger
Agreement and prescribe the terms and conditions of the Merger and the mode of
carrying the Merger into effect as follows:
1. Merger. Subject to the terms and conditions hereinafter set forth in this
Merger Agreement, AMQUEST shall be merged with and into BANCFIRST pursuant
to and in accordance with applicable provisions of the Oklahoma General
Corporation Act ("Oklahoma GCA").
2. Name. The name of the surviving corporation (hereinafter called the
"Surviving Corporation" whenever reference is made to it as of the
Effective Time or thereafter) shall be "BancFirst Corporation."
3. Business. The business of BANCFIRST as the Surviving Corporation shall be
that of a bank holding company. The Surviving Corporation shall exist by
virtue of, and be governed by, the laws of the State of Oklahoma and shall
have its principal office at 101 North Broadway, Oklahoma City, Oklahoma.
4. Effective Time of Merger; Certificate of Incorporation. The Merger shall
become effective in accordance with applicable provisions of Section 1081
of the Oklahoma GCA upon the later of (i) the time a certificate of merger,
certified copy of the Merger Agreement or other document or documents
effecting the Merger under the Oklahoma GCA are filed with the
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Secretary of State of the State of Oklahoma (the "Oklahoma State Filing")
and (ii) that time, if any, subsequent to the time of the Oklahoma State
Filing, designated in the Oklahoma State Filing as the time the merger
shall become effective (the "Effective Time").
The Certificate of Incorporation of BANCFIRST in effect as of the Effective
Time shall be the Certificate of Incorporation of the Surviving Corporation
and the By-laws of BANCFIRST in effect as of the Effective Time shall be
the By-laws of the Surviving Corporation.
5. Effect of Merger. At the Effective Time, the separate corporate existence
of AMQUEST and BANCFIRST, respectively, shall, as provided in applicable
provisions of the Oklahoma GCA be merged into and continued in BANCFIRST as
the Surviving Corporation, which shall be deemed to be the same corporation
as AMQUEST and BANCFIRST. All rights, franchises and interests of AMQUEST
and BANCFIRST, respectively, in and to every type of property, real,
personal and mixed, and chooses in action, shall be transferred to and
vested in BANCFIRST as the Surviving Corporation by virtue of the Merger
without any deed or other transfer in the same manner and to the same
extent as such rights, franchises and interests were held or enjoyed by
AMQUEST and BANCFIRST, respectively, at the Effective Time, as provided in
applicable provisions of the Oklahoma GCA.
6. Liabilities upon Merger. The Surviving Corporation shall be responsible
for all of the liabilities of every kind and description of AMQUEST and
BANCFIRST existing as of the Effective Time, except as may be specifically
provided otherwise in this Merger Agreement.
7. Conversion of Shares.
(a) At the Effective Time:
(i) Each of the not more than 3,315,653 shares of AMQUEST Common that
shall be issued and outstanding immediately prior to the Effective
Time, including shares issued as a result of the exercise of stock
options, except for shares of AMQUEST Common subject to the rights
of a dissenting shareholder, shall thereupon and without further
action be converted into .7917 shares of BANCFIRST Common, subject,
however, to the provisions set forth in Section 7(c) herein relative
to
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fractional shares and to possible adjustments as set forth in
Section 17(f) herein (the "Exchange Rate").
(ii) Any shares of AMQUEST Common held by AMQUEST as treasury stock
immediately prior to the Effective Time shall be canceled and shall
not represent capital stock of the Surviving Corporation and shall
not be exchanged for shares of BANCFIRST Common.
(b) AMQUEST's shareholders of record at the Effective Time, for the shares of
AMQUEST Common then held by them, respectively, shall be allocated and be
entitled to receive (upon surrender of certificates formerly representing
shares of AMQUEST Common for cancellation) certificates for shares of
BANCFIRST Common as shall be equal to (x) the number of shares of AMQUEST
Common outstanding immediately prior to the Effective Time multiplied by
(y) the Exchange Rate.
(c) No certificate for fractional shares of BANCFIRST Common will be issued
by BANCFIRST in connection with the exchange contemplated by the Merger,
but in lieu thereof, any holder of AMQUEST Common shall, upon surrender
of the certificate or certificates representing such AMQUEST Common, be
paid cash, without interest, by BANCFIRST for such fractional shares on
the basis of the average of the closing prices of BANCFIRST Common as
reported in The Wall Street Journal for each of the days included in the
Valuation Period. The term "Valuation Period" shall mean the ten
consecutive NASD trading days ending on the sixth NASD trading day
immediately prior to the proposed Effective Time, as designated by
BANCFIRST pursuant to Section 10(c) of this Merger Agreement.
(d) As soon as practicable after the Effective Time, holders of certificates
formerly representing shares of AMQUEST shall be instructed to tender
such certificates to BANCFIRST pursuant to a letter of transmittal which
shall be delivered to such shareholders by BANCFIRST and, subject to the
provisions set forth above relating to fractional shares, BANCFIRST, or
BancTrust, a division of BancFirst, as Exchange Agent for BANCFIRST, will
distribute to such holders of certificates formerly representing shares
of AMQUEST Common in exchange for and upon surrender for cancellation by
such holders of a certificate or certificates formerly representing
shares of AMQUEST Common the certificate(s) for shares of BANCFIRST
Common in accordance with the
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Exchange Rate. Each certificate formerly representing AMQUEST Common
(other than certificates representing shares of AMQUEST Common subject to
the rights of dissenting shareholders) shall be deemed for all purposes
to evidence the ownership of the number of shares of BANCFIRST Common and
cash for fractional shares into which such shares have been converted,
except, however, and notwithstanding the foregoing, that, until such
surrender of the certificate or certificates formerly representing shares
of AMQUEST Common, the holder thereof shall not be entitled to receive
any dividend or other payment or distribution payable to holders of
BANCFIRST Common. Upon such surrender (or, in lieu of surrender, other
provisions reasonably satisfactory to BANCFIRST as are made as set forth
in the next following paragraph), there shall be paid to the person
entitled thereto the aggregate amount of dividends or other payments or
distributions (in each case without interest) which became payable after
the Effective Time on the whole shares of BANCFIRST Common represented by
the certificates issued upon such surrender and exchange or in accordance
with such other provisions, as the case may be. After the Effective Time,
the holders of certificates formerly representing shares of AMQUEST
Common shall cease to have rights with respect to such shares (except
such rights, if any, as they may have as dissenting shareholders), and
except as aforesaid, their sole rights shall be to exchange said
certificates for shares of BANCFIRST Common and cash for fractional
shares in accordance with this Merger Agreement.
Certificates formerly representing shares of AMQUEST Common surrendered
for cancellation by each shareholder entitled to exchange shares of
AMQUEST Common for shares of BANCFIRST Common by reason of the Merger
shall be appropriately endorsed or accompanied by such appropriate
instruments of transfer as BANCFIRST may reasonably require; provided,
however, that if there be delivered to BANCFIRST by any person who is
unable to produce any such certificate formerly representing shares of
AMQUEST Common for transfer (i) evidence to the reasonable satisfaction
of BANCFIRST that any such certificate has been lost, wrongfully taken or
destroyed, and (ii) such security or indemnity as reasonably may be
requested by BANCFIRST to save it and BancTrust harmless, and (iii)
evidence to the reasonable satisfaction of BANC FIRST that such person is
the owner of the shares theretofore represented by each certificate
claimed by him to be lost, wrongfully taken or destroyed and that he is
the person who would be entitled to present each such certificate and to
receive shares of BANCFIRST Common pursuant to this Merger Agreement,
then BANCFIRST, in the absence of actual notice to it that any shares
theretofore represented by any such certificate
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have been acquired by a bona fide purchaser, shall deliver to such person
the certificate(s) representing shares of BANCFIRST Common which such
person would have been entitled to receive upon surrender of each such
lost, wrongfully taken or destroyed certificate formerly representing
shares of AMQUEST Common.
(e) Prior to the Effective Time neither BANCFIRST nor AMQUEST shall declare a
stock dividend or make distributions upon or subdivide, split up,
reclassify or combine its shares of common stock or declare a dividend or
make a distribution on its common stock in any security convertible into
or exchangeable for its common stock.
8. Board of Directors and Employees; Name Changes. The directors of BANCFIRST
immediately prior to the Effective Time shall serve as the directors of the
Surviving Corporation immediately following the Effective Time and until the
next annual meeting of shareholders at which their respective successors are
elected and qualified. The officers and employees of the Surviving
Corporation immediately following the Effective Time shall be the officers
and employees of BANCFIRST immediately before the Effective Time. The
directors, officers and employees of the Subsidiaries immediately following
the Effective Time shall be the directors, officers and employees of the
respective Subsidiaries immediately before the Effective Time.
AMQUEST will cooperate with BANCFIRST in the procurement of requisite
corporate and regulatory approvals and will use its reasonable best efforts
to take such other steps as are appropriate and necessary to effect, when and
if requested by BANCFIRST, changes in the name of each of the Subsidiaries to
include the words "BANCFIRST" so that such name changes will become effective
at the Effective Time or such later dates as may be designated by BANCFIRST.
9. Stock Options.
(a) As of the date of the Merger Agreement, there are outstanding and
unexercised stock options for shares of AMQUEST Common held by directors,
officers and employees of AMQUEST and its Subsidiaries. Immediately
following the Effective Time, all unexercised stock options for shares of
AMQUEST Common issued to and held by directors, officers and employees of
AMQUEST and its Subsidiaries immediately prior to the Effective Time
shall be assumed by BANCFIRST and converted into options to
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purchase that number of shares of BANCFIRST Common equal to the number
of shares of AMQUEST Common subject to such unexercised options
immediately prior to the Effective Time multiplied by the Exchange Rate.
The per share exercise price of such options for shares of BANCFIRST
Common shall be the exercise price applicable to the options for shares
of AMQUEST Common converted into options for BANCFIRST shares divided by
the Exchange Rate. Except as set forth herein, all terms and conditions
of the stock option agreements for options for AMQUEST Common shall
continue in full force and effect.
10. Undertakings of the Parties. AMQUEST and BANCFIRST further agree as
follows:
(a) This Merger Agreement shall be submitted to the shareholders of AMQUEST
and BANCFIRST for approval at meetings to be called and held in
accordance with applicable law and the respective Certificates of
Incorporation and By-laws of AMQUEST and BANCFIRST. Such shareholders'
meetings will be scheduled to be held approximately 30 days following
the mailing by AMQUEST and BANCFIRST of their proxy statements to their
respective shareholders, which mailing will promptly follow the
effective date of the registration statement to be filed by BANCFIRST
with the Securities and Exchange Commission (the " SEC") as provided in
Section 10(d). AMQUEST and BANCFIRST will cooperate with each other in
order to facilitate the preparation, filing and clearance of the
registration statement and the proxy statement under federal and state
securities laws to be used with respect to such shareholders' meeting
and the exchange of shares as contemplated by this Merger Agreement.
(b) BANCFIRST will promptly prepare and file an application (believed in
good faith by BANCFIRST to be substantially complete in form and
substance) with the Board of Governors of the Federal Reserve System
(the "Board") under appropriate provisions of Section 3 of the Bank
Holding Company Act of 1956, as amended, and, if necessary, to the
Oklahoma State Banking Board (the "Oklahoma Board") for prior approval
of the Merger and/or the proposed acquisition of AMQUEST and/or one or
more of the Subsidiaries by BANCFIRST. AMQUEST will furnish BANCFIRST
such information, appropriate representations and documents as may be
reasonably requested by BANCFIRST in connection therewith and will
cooperate with BANCFIRST in the procurement of requisite corporate and
regulatory approvals to effect the Merger. BANCFIRST will provide
AMQUEST and its counsel with reasonable opportunity to
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comment on the applications which it proposes to file in connection with
such regulatory approvals and will give due consideration to any comments
of AMQUEST and its counsel before making such filings. BANCFIRST will use
its reasonable best efforts to cause such applications to be approved by
the Board and, if required, the Oklahoma Board and to obtain such other
regulatory consents and approvals as may be necessary to facilitate the
Merger, in each case as soon as possible, and will promptly provide
AMQUEST with copies of all such applications together with correspondence
to or from the Board and the Oklahoma Board related thereto.
(c) The Effective Time shall occur, subject to Section 24 of this Merger
Agreement, at such time as shall be designated by BANCFIRST which shall
be a date not later than thirty (30) days following the latter of (A)
receipt of all approvals of the Board and the Oklahoma Board and the
expiration of any required waiting periods with respect thereto; (B)
approval of the Merger by the shareholders of AMQUEST; and (C) approval
of the Merger by the shareholders of BANCFIRST; provided, however, the
Effective Time may be such other day as shall be agreed to by BANCFIRST
and AMQUEST. BANCFIRST and AMQUEST shall use their best efforts to cause
the Effective Time to occur on or before September 30, 1998.
(d) BANCFIRST will promptly prepare and file with the SEC and use its
reasonable best efforts to cause to become effective as soon as possible,
a registration statement, including the related prospectus and proxy
statement referred to in Section 10(a) above (the "Proxy Statement"), and
any required amendments thereto or supplements to any prospectus
contained therein, relating to the exchange of BANCFIRST Common
contemplated by this Merger Agreement. BANCFIRST will provide AMQUEST
and its counsel a reasonable opportunity to comment on such proposed
filings and will give due consideration to any comments of AMQUEST and
its counsel before making any such filings. Such registration statement
will not cover resales by any persons who may be considered
"underwriters" under Rule 145(c) of the Securities Act of 1933, as
amended (the "1933 Act"). BANCFIRST shall use its reasonable best
efforts to have the shares of BANCFIRST Common qualified or exempted from
qualification under all applicable state securities laws as soon as
possible. In the event that a stop order has been issued, or threatened,
by the SEC, that suspends or would suspend the effectiveness of the
registration statement, BANCFIRST shall use its reasonable best efforts
to promptly remove, or cause not to be issued, any such stop order.
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(e) BANCFIRST will assume and pay all expenses incident to the obtaining of
the requisite regulatory consents and approvals. Without limiting the
generality of the foregoing, the expenses to be assumed and paid by
BANCFIRST shall include (i) all legal and other expenses and taxes
incurred by BANCFIRST incident to the consummation of the Merger
contemplated by this Merger Agreement, (ii) all legal and other expenses
incurred by BANCFIRST incident to the preparation and filing of the
applications to the Board, the Oklahoma Board and other requests for
regulatory consents and approvals with the appropriate bank regulatory
agencies as set forth in or contemplated by this Merger Agreement and
(iii) all legal and other expenses, if any, incurred in connection with
the registration and qualification of BANCFIRST Common under federal and
state securities laws. The expenses to be assumed and paid by BANCFIRST
shall not include any legal, accounting or other expenses incurred by
AMQUEST in the negotiation of the Merger, associated with the Proxy
Statement, the examination or review of documents for its own benefit, in
connection with its own corporate proceedings or with respect to any
investment banker or advisor for services rendered on its behalf, all of
which will be assumed and paid by AMQUEST. BANCFIRST will pay the
expenses of reproducing the Proxy Statement.
(f) All information furnished by or on behalf of AMQUEST to BANCFIRST or any
of its representatives in connection with this Merger Agreement (whether
before or after the date of this Merger Agreement) will be kept
confidential by BANCFIRST in accordance with the terms of that certain
agreement dated March 6, 1998 (the "Confidentiality Agreement") between
BANCFIRST and AMQUEST.
(g) BANCFIRST will provide AMQUEST with copies of all filings made by
BANCFIRST with the SEC under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and the 1933 Act and the respective rules and
regulations of the SEC thereunder at the time such filings are made at
any time prior to the Effective Time.
(h) BANCFIRST will furnish to AMQUEST all information concerning BANCFIRST
reasonably required by AMQUEST in connection with the preparation of
proxy solicitation materials for use in soliciting proxies in connection
with the meeting of AMQUEST's shareholders called for the purpose of
voting on the Merger and will promptly advise AMQUEST if BANCFIRST
determines that any of such information is
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or becomes false or misleading in any material respect. AMQUEST will
furnish to BANCFIRST all information concerning AMQUEST and the
Subsidiaries reasonably required by BANCFIRST in connection with
BANCFIRST's preparation of the registration statement (including the
related prospectus) and any required amendments or supplements thereto,
or in connection with other filings by BANCFIRST relating to the
registration of its shares and will promptly advise BANCFIRST if AMQUEST
determines that any such information is or becomes false or misleading in
any material respect.
(i) No press release or other public disclosure of matters related to this
Merger Agreement or any of the transactions contemplated hereby shall be
made by AMQUEST or BANCFIRST unless the other party shall have provided
its prior consent to the form and substance thereof; provided, however,
that nothing herein shall be deemed to prohibit any party hereto from
making any disclosure which its counsel deems necessary or advisable in
order to fulfill such party's disclosure obligations imposed by law.
(j) For not less than the three-year period immediately following the
Effective Time, BANCFIRST shall make available adequate current public
information about itself as that terminology is used in and as required
by Rule 144(c) of the SEC under the 1933 Act.
(k) AMQUEST will use its reasonable best efforts to cause each person who, in
the joint opinion of counsel for BANCFIRST and AMQUEST, is at the
Effective Time or was, at the time of AMQUEST's shareholders' meeting
referred to in Section 10 hereof, an "affiliate" of AMQUEST (as that
term is used in Rules 144 and 145 promulgated by the SEC under the 1933
Act), to execute and deliver to BANCFIRST the written undertakings in the
form attached hereto as Exhibit B.
(l) AMQUEST shall provide BANCFIRST with adequate opportunity to conduct such
further reviews and examinations of the business, properties and
conditions (financial and otherwise) of AMQUEST, as BANCFIRST shall deem
prudent, provided that such investigations shall not interfere
unreasonably with the normal operations of AMQUEST.
(m) Prior to the Effective Time, BANCFIRST will file with the SEC and use its
reasonable best efforts to cause to become effective not later than the
Effective Time, a registration statement on Form S-8 or other appropriate
form to register with the SEC the shares of BANCFIRST Common which may be
issued to individuals upon the exercise of stock
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options and/or other stock-related benefits assumed by BANCFIRST pursuant
to this Merger Agreement and/or the Benefits Agreement and will use its
reasonable best efforts to cause such registration statement to remain in
effect until the exercise or expiration of all such options and/or other
stock-related benefits. BANCFIRST shall use its reasonable best efforts
to have the shares of BANCFIRST Common which may be issued upon the
exercise of such options qualified or exempted from qualification from
all applicable state securities laws.
(n) BANCFIRST shall cause the shares of BANCFIRST Common Stock to be issued
in the Merger and the shares of BANCFIRST Common Stock issuable upon
exercise of the AMQUEST options assumed by BANCFIRST in connection with
the Merger to be approved for listing on the NASDAQ NMS prior to the
Closing Date.
(o) As soon as reasonably practicable after the Effective Time, BANCFIRST
shall provide employee benefit plans and arrangements to active employees
of AMQUEST and its Subsidiaries that are the same as, or substantially
the equivalent of, the employee benefit plans and arrangements of
BANCFIRST as in effect immediately prior to the Effective Time or as may
be modified or terminated from time to time thereafter by BANCFIRST.
Pending such action, BANCFIRST shall maintain the effectiveness of the
AMQUEST benefit plans. From and after the Effective Time, BANCFIRST shall
also honor, and shall cause the AMQUEST Subsidiaries to honor, in
accordance with their terms, all employment and severance agreements and
arrangements which apply to employees of the AMQUEST as disclosed in the
AMQUEST Disclosure Schedule. BANCFIRST further agrees that the employees
of the AMQUEST shall be credited for their actual and credited service
with the AMQUEST for purposes of eligibility, vesting and benefit accrual
(except in the case of a defined benefit pension plan) in the employee
plans provided by BANCFIRST. Such employees' benefits under BANCFIRST's
medical benefit plan shall not be subject to any exclusions for any pre-
existing conditions, and credit shall be received for any deductibles or
out-of-pocket amounts previously paid. On or before the Effective Time,
if the Board of Directors of AMQUEST so determine, AMQUEST may pay cash
bonuses to its employees in an aggregate amount consistent with past
practice. BANCFIRST will pay one week of severance pay for each year of
service with a maximum of 26 weeks to any employee of AMQUEST terminated
as a result of a position elimination within the first year.
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(p) AMQUEST and BANCFIRST shall each use its best efforts to cause the
Merger to be treated as a reorganization within the meaning of Section
368(a) of the Code and to obtain the opinion of counsel referred to in
Section 12 to such effect. BANCFIRST and AMQUEST shall each use their
best efforts to cause the Merger to be accounted for as a pooling of
interests for financial accounting purposes pursuant to the provisions
of APB 16 and the rules and interpretations of the SEC relating thereto
and shall use their best efforts to cause their respective shareholders
not to take any action that would adversely affect the ability of
BANCFIRST to account for the Merger as a pooling of interests.
(q) At the Effective Time or as soon thereafter as BANCFIRST shall change
the name of the Banks, all rights to use the name "AmQuest Financial,"
including, but not limited to, any federal or state trademarks or
servicemarks related thereto, and any signage related thereto shall be
assigned and conveyed by BANCFIRST and/or AMQUEST to the designees of
AMQUEST without consideration, subject to the terms of a mutually
acceptable agreement between the designees and BANCFIRST pursuant to
which the designees agree that (i) "AmQuest Financial" will not be used
anywhere in Oklahoma within one year following the Effective Time; and
in any current AmQuest communication within two years following the
Effective Time; and (ii) "AmQuest Financial" will not be used in
commercial banking, savings bank or brokerage services in the state of
Oklahoma for a period of three years following the Effective Time.
(r) At the Effective Time, BANCFIRST shall enter into a registration rights
agreement in the form attached hereto as Exhibit E with all of those
shareholders of AMQUEST who, in the opinion of counsel to AMQUEST, may
be considered affiliates of AMQUEST and who elect to be included in such
agreement providing for the registration under the Securities Act of
1933 of the shares of BANCFIRST issued to them in connection with the
Merger on a Form S-3 shelf registration statement providing for sales
and other dispositions from time to time in nonunderwritten
transactions.
11. Dissenting Shareholders. Shareholders of AMQUEST Common who do not vote
their shares in favor of the Merger and otherwise perfect applicable
dissenters' rights will be entitled to applicable dissenters or appraisal
rights, if any, under applicable provisions of the Oklahoma GCA.
Consummation of the transactions contemplated by this Merger Agreement is
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specifically conditioned on the number of shares of AMQUEST Common as to
which shareholder of AMQUEST exercise dissenting or appraisal rights, plus
any "tainted" shares of AMQUEST Common held as treasury stock by AMQUEST,
within the meaning of APB Opinion No. 16 totaling less than 10% of the
number of shares of AMQUEST Common issued and outstanding at the Effective
Time.
12. Tax Opinion. BANCFIRST and AMQUEST shall use their respective reasonable
best efforts to obtain from Crowe and Dunlevy a written opinion addressed to
AMQUEST, its shareholders and BANCFIRST, that based upon the Internal
Revenue Code of 1986, as amended (the "Internal Revenue Code"), the
regulations thereunder and rulings issued by the Internal Revenue Service in
transactions similar to those contemplated by this Merger Agreement:
(a) The statutory Merger of AMQUEST with and into BANCFIRST will constitute
a reorganization within the meaning of Section 368(a)(1)(A) of the
Internal Revenue Code;
(b) No gain or loss will be recognized by BANCFIRST or AMQUEST as a
consequence of the transactions herein contemplated;
(c) No gain or loss will be recognized by the shareholders of AMQUEST on the
exchange of their shares of AMQUEST Common for shares of BANCFIRST
Common (disregarding for this purpose any cash consideration received by
such shareholders of AMQUEST Common, including any cash received
pursuant to the exercise of statutory dissenters' rights or for
fractional share interests to which they may be entitled);
(d) The Federal income tax basis of the BANCFIRST Common (including
fractional share interests to which they may be entitled) received by
the shareholders of AMQUEST Common for their shares of AMQUEST Common
will be the same as the Federal income tax basis of the AMQUEST Common
surrendered in exchange therefor; and
(e) The holding period of the BANCFIRST Common received by a shareholder of
AMQUEST Common will include the period for which the AMQUEST Common
exchanged therefor was held, provided the exchanged AMQUEST Common was
held as a capital asset by such shareholder on the date of the exchange.
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13. Representations and Warranties of BANCFIRST. BANCFIRST represents and
warrants to AMQUEST that, except as set forth in BANCFIRST's disclosure
letter to AMQUEST dated May 6, 1998, and any attachments or schedules
annexed thereto, and delivered to AMQUEST not later than the time of
AMQUEST's execution of this Merger Agreement (the "BANCFIRST Disclosure
Letter") and except as otherwise indicated below:
(a) BANCFIRST is a corporation duly organized and validly existing in good
standing under the laws of the State of Oklahoma, is a registered bank
holding company under the Bank Holding Company Act of 1956, as amended,
and is qualified to do business and is in good standing in the State of
Oklahoma, together with all other jurisdictions where it is both
required to so qualify and where the failure to so qualify would have a
BANCFIRST Material Adverse Effect, as hereinafter defined. A BANCFIRST
Material Adverse Effect is that which has or would have a material
adverse effect on the business, operations, financial condition or
results of operations of BANCFIRST and its subsidiaries, taken as a
whole, or on the ability of BANCFIRST to consummate the transactions
contemplated hereby. BANCFIRST has full power and authority (including
all licenses, franchises, permits and other governmental authorizations
which are legally required) to engage in the businesses and activities
now conducted by it and its subsidiaries. BANCFIRST is not subject to
any formal or informal agreement or understanding with, nor is it
subject to any order of, any bank regulatory authority restricting or
prohibiting or attempting to restrict or prohibit any activities or
conduct of BANCFIRST. Subject only to obtaining the required regulatory
and shareholder approvals, BANCFIRST is, and at all times after the date
of this Merger Agreement to and including the Effective Time will be,
authorized to effect the Merger under applicable law. As of March 31,
1998 BANCFIRST had authorized capital stock of $22 million, divided into
7.5 million shares of BANCFIRST Common, 6,362,699 of which shares of
BANCFIRST Common were issued and outstanding, 900,000 shares of 10%
Cumulative Preferred Stock par value $5.00 per share, of which no shares
were issued and outstanding and 10 million shares of Senior Preferred
Stock, $1.00 par value of which no shares are issued and outstanding.
All of the issued and outstanding shares of BANCFIRST's capital stock
are duly authorized, validly issued, fully paid, nonassessable and
subject to no pre-emptive rights.
(b) BANCFIRST has furnished to AMQUEST copies of the following financial
statements relating to BANCFIRST and its consolidated subsidiaries: (i)
the audited Consolidated Balance Sheets of BANCFIRST as of December 31,
1996 and 1997 and the Consolidated
-14-
Statements of Income, Shareholders' Equity and Cash Flows for the years
then ended, together with the notes thereto, as audited by Coopers &
Lybrand, L.L.P., independent auditors; and (ii) the unaudited
Consolidated Balance Sheet of BANCFIRST as at March 31, 1998 and the
unaudited Consolidated Statements of Income for the period then ended,
together with the notes thereto. Each of the aforementioned financial
statements present fairly, in accordance with generally accepted
accounting principles (applied on a consistent basis except as disclosed
in the footnotes thereto), the consolidated financial p osition and
results of operations of BANCFIRST as of the dates and for the periods
therein set forth. Such financial statements do not, as of the dates
thereof, include any material asset or omit any material liability,
absolute or contingent, or other fact, the inclusion or omission of
which renders such financial statements, in light of the circumstances
under which they were made, misleading in any material respect. Since
March 31, 1998, there has not been any change in the financial
condition, results of operations or business of BANCFIRST and its
subsidiaries that has had a BANCFIRST Material Adverse Effect.
(c) Since December 31, 1994, BANCFIRST and each of its subsidiaries has
filed all reports, registrations and statements, together with any
required amendments thereto, that any of them was required to file with
(i) the SEC, including, but not limited to, all Forms 10-K, Forms 10-Q,
Forms 8-K, annual reports and proxy statements, (ii) the Board, (iii)
the Federal Deposit Insurance Corporation (the "FDIC"), (iv) the
Oklahoma Banking Department (the "OBD") and (v) any applicable state
securities or banking authorities. All such reports and statements filed
with any such regulatory body or authority are collectively referred to
in this Merger Agreement as the BANCFIRST Reports. As of their
respective dates, the BANCFIRST Reports complied in all material
respects with the respective rules and regulations promulgated by the
SEC, the Board, the FDIC, the OBD and state securities or banking
authorities, and did not contain at the time filed any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(d) The Board of Directors of BANCFIRST has duly authorized (i) the
execution and delivery of this Merger Agreement and approved the Merger
as contemplated by said Merger Agreement and will recommend it to the
BANCFIRST shareholders for adoption; and (ii) the increase in authorized
common stock of BANCFIRST to 12 million shares and will
-15-
recommend such increase to the BANCFIRST shareholders. BANCFIRST has all
requisite power and authority to enter into this Merger Agreement and,
following the vote of its shareholders in favor of the Merger, and the
authorization of additional shares to be issued in the Merger, BANCFIRST
will have the authority to consummate the transactions contemplated
hereby. Subject to the approval by the shareholders of BANCFIRST, this
Merger Agreement constitutes the valid, legally binding and enforceable
obligation of BANCFIRST and this Merger Agreement and the consummation
of the Merger have been duly authorized and approved on behalf of
BANCFIRST by all requisite corporate action. Provided the required
approvals are obtained from the BANCFIRST shareholders, the Board and
the Oklahoma Board, neither the execution and delivery of this Merger
Agreement nor the consummation of the Merger will conflict with, result
in the breach of, constitute a default under or accelerate the
performance provided by the terms of any law, or any rule or regulation
of any governmental agency or authority or any judgment, order or decree
of any court, bank regulatory agency or other governmental agency to
which BANCFIRST is subject, any contract, agreement or instrument to
which BANCFIRST is a party or by which BANCFIRST is bound or committed,
or the Certificate of Incorporation or By-laws of BANCFIRST, or
constitute an event which with the lapse of time or action by a third
party, could, to the best of the knowledge of BANCFIRST and its
executive officers, after due inquiry, result in the default under any
of the foregoing or result in the creation of any lien, charge or
encumbrance upon any of the assets or properties of BANCFIRST or upon
any of the stock of BANCFIRST or adversely affect the ability of
BANCFIRST to consummate the transactions contemplated hereby, except, in
the case of contracts, agreements or instruments, such defaults,
conflicts or breaches which either (i) will be cured or waived prior to
the Effective Time or (ii) if not so cured or waived would not, in the
aggregate, have any BANCFIRST Material Adverse Effect.
(e) The reserve for possible loan and lease losses shown on the March 31,
1998 Consolidated Balance Sheet of BANCFIRST is adequate in all material
respects under the requirements of generally accepted accounting
principles to provide for possible losses, net of recoveries relating to
loans previously charged off, on loans outstanding (including, without
limitation, accrued interest receivable) as of March 31, 1998.
(f) Except as disclosed in the financial statements referred to in Section
13(b), there is no litigation, action, suit, investigation or proceeding
pending or, to the best of the knowledge of BANCFIRST and its executive
officers after due inquiry, overtly threatened against or
-16-
affecting BANCFIRST or its subsidiaries or involving any of their
respective properties or assets, at law or in equity, before any
federal, state, municipal, local or other governmental authority, which
is reasonably likely to be resolved adversely to the interest of
BANCFIRST or its subsidiaries and, if so resolved, would have a
BANCFIRST Material Adverse Effect or materially impair its ability to
perform under this Merger Agreement, and to the best of the knowledge
and belief of BANCFIRST and its executive officers after due inquiry, no
one has reasonable or valid g rounds on which it reasonably can be
expected that anyone will assert or initiate any such litigation,
action, suit, investigation or proceeding against BANCFIRST based upon
the wrongful action or inaction of BANCFIRST or its subsidiaries or any
of their respective officers, directors or employees.
(g) At the Effective Time and on such subsequent dates when the former
shareholders of AMQUEST surrender their certificates formerly
representing shares of AMQUEST Common for cancellation and exchange, the
shares of BANCFIRST Common to be exchanged with former shareholders of
AMQUEST will be duly authorized and validly issued by BANCFIRST and will
be fully paid and nonassessable and subject to no pre-emptive rights.
(h) BANCFIRST and each of its subsidiaries have good and marketable title to
all their respective assets and properties, whether real or personal,
tangible or intangible, including without limitation the capital stock
of its subsidiaries and all other assets and properties reflected in
BANCFIRST's Balance Sheet as of March 31, 1998 or acquired subsequent
thereto (except to the extent that such assets and properties have been
disposed of for fair value in the ordinary course of business since
March 31, 1998 ). Such assets and properties are subject to no liens,
mortgages, security interests, encumbrances, pledges or charges of any
kind, except (i) as noted in said Balance Sheet or the notes thereto;
(ii) statutory liens for taxes not yet delinquent; (iii) landlord's
liens; and (iv) minor defects and irregularities in title and
encumbrances which do not materially impair the use thereof for the
purposes for which they are held; and such liens, mortgages, security
interests, encumbrances and charges do not, in the aggregate, have a
BANCFIRST Material Adverse Effect. BANCFIRST and its subsidiaries as
lessees have the unqualified right under valid and subsisting leases to
occupy, use, possess and control all property leased by BANCFIRST and
its subsidiaries. At the Effective Time all limitations affecting such
properties will not, in the aggregate, have a BANCFIRST Material Adverse
Effect.
-17-
(i) To the best of the knowledge of BANCFIRST and its executive officers
after due inquiry, BANCFIRST and its subsidiaries have complied with all
laws, regulations and orders applicable to them and to the conduct of
their businesses, including without limitation all statutes, rules and
regulations pertaining to the conduct of banking activities except for
violations which, together with any penalty which results therefrom, have
not had and will not have a BANCFIRST Material Adverse Effect. Neither
BANCFIRST nor any of its subsidiaries is in default under, and no event
has occurred which, to the best of the knowledge of BANCFIRST and its
executive officers after due inquiry, is likely to result in a default
under the terms of any judgment, decree, order, writ, rule or regulation
of any governmental authority or court, whether federal, state or local
and whether at law or in equity, in each case where the default has had
or is likely to have a BANCFIRST Material Adverse Effect.
(j) BANCFIRST has not incurred and will not incur directly or indirectly any
liability for brokerage, finders', agents' or investment bankers' fees or
commissions in connection with this Merger Agreement or the transactions
contemplated hereby.
(k) Each pension, stock bonus or purchase, profit-sharing, retirement, health
and welfare plan maintained by or covering employees of BANCFIRST or any
subsidiary of BANCFIRST (hereinafter referred to collectively as the
"plans") which purports to be a qualified plan under Section 401(a) of
the Internal Revenue Code is so qualified. All of the plans which
constitute employee benefit or employee welfare benefit plans subject to
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), have been maintained in compliance in all material respects
with the applicable requirements of ERISA. All material notices, reports
and other filings required under applicable law to be given or made to or
with any governmental agency with respect to the plans have been timely
filed or delivered. BANCFIRST and its executive officers, after due
inquiry, have no knowledge either of any circumstances which would
adversely affect the qualification of the plans or their compliance with
the applicable requirements of ERISA, would result or have resulted in
liability under Title IV of ERISA or of any "reportable event" (as such
term is defined in Section 4043(b) of ERISA) or any "prohibited
transaction" (as such term is defined in Section 406 of ERISA and Section
4975(c) of the Internal Revenue Code) which has occurred during the past
five years and which could reasonably be expected to result in any
material liability of BANCFIRST or any subsidiary to the Pension Benefit
Guaranty Corporation (the "PBGC"), the Department of Treasury, the
-18-
Department of Labor or any multiemployer plan. Those plans which are
defined benefit plans within the meaning of ERISA meet the minimum
funding standards set forth in the Internal Revenue Code and ERISA and
the assets of such plans equal or exceed the actual present value of
accrued benefits under such plans determined on the basis of the
actuarial assumptions contained in the plan's most recent actuarial
valuation. There are no pending or threatened claims (other than claims
for benefits in the ordinary course), lawsuits or arbitrations which have
been asserted or instituted against the plans, any fiduciaries thereof
with respect to their duties to the plans or the assets of any of the
trusts under any of the plans which could reasonably be expected to
result in any material liability of BANCFIRST or any subsidiary to the
PBGC, Department of Treasury, Department of Labor or any multiemployer
plan.
(l) Except where the failure to file would not have a BANCFIRST Material
Adverse Effect on BANCFIRST and its subsidiaries, BANCFIRST and/or its
subsidiaries have duly filed all federal, state, county and local income,
franchise, bank, excise, real and personal property and other tax returns
and reports (including, but not limited to, those relating to social
security, withholding, unemployment insurance, and occupation (sales) and
use taxes and those filed on a consolidated, combined or unitary basis)
required to have been filed by BANCFIRST or its subsidiaries up to the
date hereof. All of the foregoing returns are true and correct in all
material respects, and BANCFIRST and its subsidiaries have paid or, prior
to the Effective Time, will pay all taxes, interest and penalties shown
on such returns or reports as being due or (except to the extent the same
are contested in good faith and, if material, summarized in the BANCFIRST
Disclosure Letter) or claimed to be due to any federal, state, county,
local or other taxing authority, and there is, and at the Effective Time
will be, no basis for any additional claim or assessment which might have
a BANCFIRST Material Adverse Effect, except for those being contested in
good faith and summarized in the BANCFIRST Disclosure Letter. BANCFIRST
and its subsidiaries have paid or made adequate provision in its
financial statements or its books and records for all taxes payable in
respect of all periods ending on or before the date hereof. BANCFIRST
and its subsidiaries have, and at the Effective Time will have, no
liability for any taxes, interest or penalties of any nature whatsoever,
except for those taxes which may have arisen up to the Effective Time in
the ordinary course of business and are properly accrued on the books of
BANCFIRST as of the Effective Time or are being contested in good faith
and have, if material, been summarized in the BANCFIRST Disclosure
Letter.
-19-
(m) BANCFIRST has in effect insurance coverage with reputable insurers, which
in respect of amounts, premiums, types and risks insured, constitutes
reasonably adequate coverage against all risks customarily insured
against by bank holding companies comparable in size and operation to
BANCFIRST.
(n) Neither the Proxy Statement nor the related registration statement nor
any amendment or supplement thereto that is filed with the SEC in
connection with the transactions contemplated hereby (except for any
information which has been or shall be supplied by AMQUEST for inclusion
in the Proxy Statement and registration statement and is so included as
so supplied) shall contain (in the case of information relating to the
Proxy Statement, at the time it is mailed and in the case of information
relating to the registration statement at the time it becomes effective
and at the time of AMQUEST's shareholders' meeting) any untrue statement
of a material fact or shall omit to state a material fact necessary to
make the statements contained therein, in light of the circumstances in
which they are made, not misleading. The registration statement and any
amendments or supplements thereto that are filed with the SEC in
connection with the transactions contemplated hereby will comply as to
form in all material respects with the provisions of the 1933 Act and the
rules and regulations promulgated thereunder.
(o) No employee of BANCFIRST or any of its subsidiaries is represented, for
purposes of collective bargaining, by a labor organization of any type.
BANCFIRST is unaware of any efforts during the past five years to
unionize or organize any employees of BANCFIRST or any of its
subsidiaries, and no claim related to such employees under the Fair Labor
Standards Act, National Labor Relations Act, Civil Rights Act of 1964,
Walsh-Healy Act, Davis Bacon Act, Civil Rights Act of 1866, Age
Discrimination in Employment Act, Equal Pay Act of 1963, Executive Order
No. 11246, Federal Unemployment Tax Act, Vietnam Era Veterans
Readjustment Act, Occupational Safety and Health Act, or any state or
local employment related law, order, ordinance or regulation, no unfair
labor practice, discrimination or wage-and-hour claim is pending or, to
the best of knowledge of BANCFIRST and its executive officers after due
inquiry, threatened against BANCFIRST or any of its subsidiaries which
claim has had or is reasonably likely to have a BANCFIRST Material
Adverse Effect.
-20-
(p) To the actual knowledge of BANCFIRST and its executive officers: (i)
with respect to any contaminant, pollutant, hazardous substance,
hazardous waste, hazardous pollutant, toxic pollutant, toxic waste or
toxic substance ("Contaminant"), there are no material actions,
proceedings or investigations pending or threatened before any federal or
state environmental regulatory body, or before any federal or state
court, alleging non-compliance with or liability in connection with, by
BANCFIRST or any of its subsidiaries, the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. (S)(S)9601 et seq.
("CERCLA:), the Resource Conservation and Recovery Act, 42 U.S.C.
(S)(S)6901 et seq. ("RCRA:), the Clean Water Act, 33 U.S.C. (S)(S)1251 et
seq. ("CWA"), or the Clean Air Act, 42 U.S.C. (S)(S)7401 et seq. ("CAA"),
as each is amended from time to time, or any other federal, state, local
or municipal statute, ordinance or regulation, or order, ruling or other
decision of any court, administrative agency or other governmental
authority relating to health or safety or environmental protection (such
statutes, ordinances, regulations, orders, rulings and decisions,
together, "Environmental Laws"); (ii) neither BANCFIRST nor any of its
subsidiaries is responsible in any material respect under any
Environmental Law for any release by any person at or in the vicinity of
real property of any Contaminant, including without limitation by
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing of any such
Contaminant into the environment (collectively "Release"); (iii) neither
BANCFIRST nor any of its subsidiaries is responsible for any material
costs of any response action required by virtue of any Release of any
Contaminant into the environment including, without limitation, costs
arising from investigation, removal or remediation of Contaminants,
security fencing, alternative water supplies, temporary evacuation and
housing and other emergency assistance undertaken by any environmental
regulatory body or any other person; (iv) BANCFIRST and its subsidiaries
are, in all material respects, in compliance with all applicable
Environmental Laws; and (v) no real property owned or used by BANCFIRST
or any of its subsidiaries contains any Contaminant including, without
limitation, any asbestos, PCBs or petroleum products or byproducts in any
form, the presence, location or condition of which (a) is reasonably
likely to require remediation or other corrective action pursuant to any
Environmental Law in any material respect, or (b) otherwise would pose
any significant health or safety risk unless remedial measures were
taken.
-21-
(q) The statements made in the BANCFIRST Disclosure Letter and any
attachments thereto shall be deemed to constitute representations and
warranties of BANCFIRST under this Merger Agreement to the same extent
as if herein set forth in full. Anything disclosed in the BANCFIRST
Disclosure Letter or the attachments thereto shall be considered to have
been disclosed for purposes of all representations, warranties and
covenants under this Merger Agreement.
14. Representations and Warranties of AMQUEST. AMQUEST represents and warrants
to BANCFIRST that, except as shall be set forth in AMQUEST's disclosure
letter dated May 6, 1998, and any attachments or schedules annexed thereto,
and delivered to BANCFIRST not later than the time of BANCFIRST's execution
of this Merger Agreement (the "AMQUEST Disclosure Letter"), and except as
indicated below:
(a) AMQUEST is a corporation duly organized and validly existing in good
standing under the laws of the State of Oklahoma, is a registered bank
holding company under the Bank Holding Company Act of 1956, as amended,
and is qualified to do business and is in good standing in the State of
Oklahoma, together with all other jurisdictions where it is both
required to so qualify and where the failure to so qualify would have a
AMQUEST Material Adverse Effect, as hereinafter defined. An AMQUEST
Material Adverse Effect is that which has or would have a material
adverse effect on the business, operations, financial condition or
results of operations of AMQUEST and the Subsidiaries taken as a whole,
or on the ability of AMQUEST to consummate the transactions contemplated
hereby. AMQUEST and the Subsidiaries each have full power and authority
(including all licenses, franchises, permits and other governmental
authorizations which are legally required) to engage in the businesses
and activities now conducted by it. AMQUEST is not subject to any formal
or informal agreement or understanding with, nor is it subject to any
order of, any bank regulatory authority restricting or prohibiting or
attempting to restrict or prohibit any activities or conduct of AMQUEST.
Subject only to obtaining the required regulatory approvals and the
approval of AMQUEST shareholders, AMQUEST is, and at all times after the
date of this Merger Agreement to and including the Effective Time will
be, authorized to effect the Merger under applicable law. As of March
31, 1998, AMQUEST had authorized capital stock consisting of 6,000,000
shares of AMQUEST Common, of which a total of 3,604,196 shares were
issued and outstanding and 443,445 of which were shares of treasury
stock owned by AMQUEST. All of the issued and outstanding shares of
AMQUEST Common are duly authorized, validly issued, fully paid,
-22-
nonassessable and subject to no pre-emptive rights. There are no
outstanding options, warrants, stock appreciation rights or commitments
of any kind related to AMQUEST's capital stock or the exchange of
AMQUEST's capital stock except for outstanding stock options which have
been granted related to the purchase of not more than 154,902 shares of
AMQUEST Common.
(b) AMQUEST has furnished to BANCFIRST copies of the following financial
statements relating to AMQUEST and the Subsidiaries on a consolidated
basis: (i) the audited Consolidated Balance Sheet of AMQUEST as of
December 31, 1996 and 1997, and the Consolidated Statements of Income,
Stockholders' Equity and Cash Flows for the years then ended, together
with the notes thereto, as audited by Arthur Andersen, L.L.P., Certified
Public Accountants; and (ii) the unaudited Consolidated Balance Sheet of
AMQUEST as at March 31, 1998 and the unaudited Consolidated Statement of
Income for the period then ended. Each of the aforementioned financial
statements presents fairly, in accordance with generally accepted
accounting principles (applied on a consistent basis except as disclosed
in the footnotes thereto), the consolidated financial position and
results of operations of AMQUEST as of the dates and for the periods
therein set forth. Such financial statements do not, as of the dates
thereof, include any material asset or omit any material liability,
absolute or contingent, or other fact, the inclusion or omission of which
renders such financial statements, in light of the circumstances under
which they were made, misleading in any material respect. Since March
31, 1998, there has not been any change in the financial condition,
results of operations or business of AMQUEST and the Subsidiaries that
has had a AMQUEST Material Adverse Effect.
(c) Since December 31, 1994, AMQUEST and each of the Subsidiaries has filed
all reports, registrations and statements, together with any required
amendments thereto, that any of them was required to file with (i) the
Board, (ii) the FDIC, (iii) OCC and (iv) any applicable state securities
or banking authorities. All such reports and statements filed with any
such regulatory body or authority are collectively referred to in this
Merger Agreement as the "AMQUEST Reports." As of their respective dates,
the AMQUEST Reports complied in all material respects with the respective
rules and regulations promulgated by the Board, the FDIC, the OCC and
state securities or banking authorities, and did not contain at the time
filed any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
-23-
(d) The Board of Directors of AMQUEST has duly authorized the execution and
delivery of this Merger Agreement and approved the Merger as contemplated
by the Merger Agreement and, subject to the fiduciary duties of the Board
of Directors, will recommend it to the AMQUEST shareholders for adoption.
Subject to the approval by the shareholders of AMQUEST, this Merger
Agreement constitutes the valid, legally binding and enforceable
obligation of AMQUEST and AMQUEST has all requisite power and authority
to enter into this Merger Agreement and AMQUEST has the authority to
consummate the transactions contemplated hereby so that, provided all
such shareholder and regulatory approvals are obtained, neither the
execution and delivery of this Merger Agreement nor the consummation of
the Merger will conflict with, result in the breach of, constitute a
default under or accelerate the performance provided by the terms of any
law, or any rule or regulation of any governmental agency or authority or
any judgment, order or decree of any court, bank regulatory agency or
other governmental agency to which AMQUEST is subject, any contract,
agreement or instrument to which AMQUEST is a party or by which AMQUEST
is bound or committed, or the Certificate of Incorporation or By-Laws of
AMQUEST, or constitute an event which with the lapse of time or action by
a third party, could, to the best of the knowledge of AMQUEST and its
executive officers after due inquiry, result in the default under any of
the foregoing or result in the creation of any lien, charge or
encumbrance upon any of the assets or properties of AMQUEST or upon any
of AMQUEST's capital stock; except, in the case of contracts, agreements
or instruments, such defaults, conflicts or breaches which either (i)
will be cured or waived prior to the Effective Time or (ii) if not so
cured or waived would not, in the aggregate, have a AMQUEST Material
Adverse Effect.
(e) The reserve for possible loan and lease losses shown on the March 31,
1998 Consolidated Balance Sheet of AMQUEST is adequate in all material
respects under the requirements of generally accepted accounting
principles to provide for possible losses, net of recoveries relating to
loans previously charged off, on loans outstanding (including, without
limitation, accrued interest receivable) as of March 31, 1998.
(f) Except as disclosed in the financial statements referred to in Section
14(b), there is no litigation, action, suit, investigation or proceeding
pending or, to the best of the knowledge AMQUEST and its executive
officers after due inquiry, overtly threatened, against or affecting
AMQUEST or any of its Subsidiaries or involving any of their respective
properties or assets, at law or in equity, before any federal, state,
municipal, local or other
-24-
governmental authority which is reasonably likely to be resolved
adversely to the interest of AMQUEST or its Subsidiaries and, if so
resolved, would have a AMQUEST Material Adverse Effect, and to the best
of the knowledge and belief of AMQUEST and its executive officers after
due inquiry, no one has reasonable or valid grounds on which it
reasonably can be expected that anyone will assert or initiate any such
litigation, action, suit, investigation or proceeding against AMQUEST
based upon the wrongful action or inaction of AMQUEST or any of its
Subsidiaries or any of their respective officers, directors or employees.
(g) AMQUEST and its Subsidiaries have good and marketable title to all their
respective assets and properties, whether real or personal, tangible or
intangible, including without limitation the capital stock of its
Subsidiaries and all other assets and properties reflected in AMQUEST's
Balance Sheet as of March 31, 1998 or acquired subsequent thereto (except
to the extent that such assets and properties have been disposed of for
fair value in the ordinary course of business since March 31, 1998). Such
assets and properties are subject to no liens, mortgages, security
interests, encumbrances, pledges or charges of any kind, except (i) as
reflected in said Balance Sheet or the notes thereto; (ii) statutory
liens for taxes not yet delinquent; (iii) landlord's liens; and (iv)
minor defects and irregularities in title and encumbrances which do not
materially impair the use thereof for the purposes for which they are
held; and such liens, mortgages, security interests, encumbrances and
charges do not, in the aggregate, have a AMQUEST Material Adverse Effect.
AMQUEST and its Subsidiaries as lessee have the unqualified right under
valid and subsisting leases to occupy, use, possess and control all
property leased by AMQUEST and its Subsidiaries. At the Effective Time
all limitations affecting such properties will not, in the aggregate,
have a AMQUEST Material Adverse Effect.
(h) To the best of the knowledge of AMQUEST and its executive officers after
due inquiry, AMQUEST and its Subsidiaries have complied with all laws,
regulations and orders applicable to them and to the conduct of their
businesses, including without limitation, all statutes, rules and
regulations pertaining to the conduct of banking activities except for
violations which together with any penalty which results therefrom have
not had and will not have a AMQUEST Material Adverse Effect. Neither
AMQUEST nor any of its Subsidiaries is in default under, and no event has
occurred which, to the best of the knowledge of AMQUEST and its executive
officers after due inquiry, is likely to result in the default under the
terms of any judgment, decree, order, writ, rule or regulation of
-25-
any governmental authority or court, whether federal, state or local and
whether at law or in equity, in each case when the default has had or is
likely to have a AMQUEST Material Adverse Effect.
(i) AMQUEST has not incurred and will not incur any liability for brokerage,
finders', agents', or investment bankers' fees or commissions in
connection with this Merger Agreement or the transactions contemplated
hereby except for fees to Howe Barnes Investments, Inc. to be determined
in accordance with the terms of that certain engagement letter dated
January 27, 1998, which is annexed as an exhibit to the AMQUEST
Disclosure Letter, which fees will be accrued as a liability of AMQUEST
not later than the end of the month prior to the Effective Time.
(j) Except as set forth in the AMQUEST Document List (the "AMQUEST Document
List") attached to the AMQUEST Disclosure Letter, neither AMQUEST nor any
of its Subsidiaries is a party to or bound by any written or oral (i)
employment or consulting contract which is not terminable by AMQUEST or
its Subsidiaries on 60 days or less notice, (ii) employee bonus, deferred
compensation, pension, stock bonus or purchase, profit-sharing,
retirement or stock option plan, (iii) other employee benefit or welfare
plan, or (iv) other executory material agreements as defined by the
instructions to Exhibit 10 under Item 601 of SEC Regulation S-K. All
such pension, stock bonus, profit-sharing, retirement, health and welfare
plans set forth in the AMQUEST Document List are hereinafter referred to
collectively as the "Plans." Each of those Plans which purports to be a
qualified plan under Section 401(a) of the Internal Revenue Code is so
qualified and nothing has occurred, to the knowledge of AMQUEST and its
executive officers, whether by action or the failure to act, which could
reasonably be expected to result in the loss of such qualification. All
of the plans which constitute employee pension benefit plans or employee
welfare plans subject to ERISA have been maintained in compliance in all
material respects with ERISA. All material notices, reports and other
filings required under applicable law to be given or made to or with any
governmental agency with respect to the plans have been timely filed or
delivered. AMQUEST and its executive officers, after due inquiry, have
no knowledge either of any circumstances which would adversely affect the
qualification of the plans or their compliance with ERISA, would result
or have resulted in liability under Title IV of ERISA or of any
unreported "reportable event" (as such term is defined in Section 4043(b)
of ERISA) or "prohibited transaction" (as such term is defined in Section
406 of ERISA and Section 4975(c) of the Internal Revenue
-26-
Code) which has occurred during the past five years and which could
reasonably be expected to result in any material liability of AMQUEST or
any Subsidiary to the PBGC, the Department of Treasury, the Department of
Labor or any multiemployer plan. Those plans which are defined benefit
plans within the meaning of ERISA meet the minimum funding standards set
forth in the Internal Revenue Code and ERISA and the assets of such plans
equal or exceed the actual present value of accrued benefits under such
plans as determined on the basis of the actuarial assumptions contained
in the plan's most recent actuarial valuation. There are no pending or
threatened claims (other than claims for benefits in the ordinary course
and pursuant to domestic relations orders), lawsuits or arbitrations
which have been asserted or instituted against the plans, any fiduciaries
thereof with respect to their duties to the plans or the assets of any of
the trusts under any of the plans which could reasonably be expected to
result in any material liability of AMQUEST or any of its Subsidiaries to
the PBGC, the Department of Treasury, the Department of Labor or any
multiemployer plan.
(k) Except where the failure to file would not have a AMQUEST Material
Adverse Effect on AMQUEST and its Subsidiaries, AMQUEST and/or its
Subsidiaries have duly filed all federal, state, county and local income,
franchise, bank, excise, real and personal property and other tax returns
and reports (including, but not limited to, those relating to social
security, withholding, unemployment insurance, and occupation (sales) and
use taxes and those filed on a consolidated, combined or unitary basis)
required to have been filed by AMQUEST or its Subsidiaries up to the date
hereof. AMQUEST has made available to BANCFIRST a copy of its Federal
income tax return for the years 1995 and 1996 and agrees to provide a
copy of its Federal income tax return for the year 1997 when the same
becomes available. All of the foregoing returns are true and correct in
all material respects, and AMQUEST and its Subsidiaries have paid or,
prior to the Effective Time, will pay all taxes, interest and penalties
shown on such returns or reports as being due or (except to the extent
the same are contested in good faith and, if material, summarized in the
AMQUEST Disclosure Letter) claimed to be due to any federal, state,
county, local or other taxing authority, and there is, and at the
Effective Time will be, no basis for any additional claim or assessment
which might have a AMQUEST Material Adverse Effect, except for those
being contested in good faith and summarized in the AMQUEST Disclosure
Letter. AMQUEST and its Subsidiaries have paid or made adequate
provision in its financial statements or its books and records for all
taxes payable in respect of all periods ending on or before the date
hereof. AMQUEST and its Subsidiaries have, and
-27-
at the Effective Time will have, no liability for any taxes, interest or
penalties of any nature whatsoever, except for those taxes which may have
arisen up to the Effective Time in the ordinary course of business and
are properly accrued on the books of AMQUEST as of the Effective Time or
are being contested in good faith and have, if material, been summarized
in the AMQUEST Disclosure Letter.
(l) AMQUEST has in effect insurance coverage with reputable insurers which in
respect of amounts, premiums, types and risks insured, constitutes
reasonably adequate coverage against all risks customarily insured
against by bank holding companies comparable in size and operation to
AMQUEST.
(m) AMQUEST has not, since March 31, 1998 to the date hereof, (i) sold or
issued any corporate debt securities or sold, issued, reissued or
increased its shares of its capital stock; (ii) granted any option for
the purchase of capital stock other than with respect to existing stock
option plans; (iii) declared or set aside or paid any dividend or other
distribution in respect of its capital stock, except as permitted
pursuant to Section 15(a) hereof or directly or indirectly, purchased,
redeemed or otherwise acquired any shares of such stock; (iv) incurred
any obligation or liability (absolute or contingent) except obligations
or liabilities incurred in the ordinary course of business, or mortgaged,
pledged or subjected to lien or encumbrance (other than landlord's liens
and statutory liens for taxes not yet delinquent and banking transactions
conducted in the ordinary course of business) on any of its material
assets or properties; (v) discharged or satisfied any material lien or
encumbrance or paid any material obligation or liability (absolute or
contingent), other than liabilities included in AMQUEST's financial
statements as of March 31, 1998, liabilities incurred since the date
thereof in the ordinary course of business and liabilities incurred in
carrying out the transactions contemplated by this Merger Agreement; (vi)
sold, exchanged or otherwise disposed of any material capital assets;
(vii) made any extraordinary officers' salary increase or wage increase,
entered into any employment contract with any officer or salaried
employee or instituted any employee welfare, bonus, stock option,
profit-sharing, retirement or similar plan or arrangement; (viii)
suffered any damage, destruction or loss, whether or not covered by
insurance, that has had a AMQUEST Material Adverse Effect or waived any
rights of value which, in the aggregate, have had a AMQUEST Material
Adverse Effect; (ix) entered or agreed to enter into any agreement or
arrangement granting any preferential right to purchase any of its
material assets, properties or rights or requiring the consent of any
party to the transfer and
-28-
assignment of any such material assets, properties or rights; or (x)
entered into any other material transaction (other than in the ordinary
course of business) except as expressly contemplated by this Merger
Agreement.
(n) AMQUEST has annexed to the AMQUEST Disclosure Letter a loan schedule
identifying certain loan agreements, notes and borrowing arrangements
(the "AMQUEST Loan Schedule") between its Subsidiaries and borrowers of
its Subsidiaries. Except as specifically noted on the AMQUEST Loan
Schedule, no Subsidiary was, as of March 31, 1998, a party to any written
or oral (i) loan agreement, note or borrowing arrangement, other than
credit card loans and other loans the unpaid balance of which does not
exceed $250,000 per loan, under the terms of which the obligor is over 60
days delinquent in payment of principal or interest or, to the best of
AMQUEST's knowledge, in default of any other provision as of the dates
shown thereon; (ii) loan agreement, note or borrowing arrangement which
has been classified as "substandard," "doubtful," "loss," "other loans
especially mentioned" or any comparable classifications by AMQUEST, a
Subsidiary or banking regulator; (iii) loan agreement, note, or borrowing
arrangement, including any loan guaranty, with any director, executive
officer or ten percent shareholder of AMQUEST or, to the actual knowledge
of AMQUEST and its executive officers after due inquiry, any person,
corporation or enterprise controlling, controlled by or under common
control with any of the foregoing; or, (iv) to the best of the knowledge
of AMQUEST and its executive officers after due inquiry, loan agreement,
note or borrowing arrangement in violation of any law, regulation or
rule of any governmental authority and which violation could, to the best
of the knowledge of AMQUEST and its executive officers after due inquiry,
have a AMQUEST Material Adverse Effect.
(o) None of the information provided by AMQUEST to BANCFIRST for inclusion in
the Proxy Statement or related registration statement or any amendment or
supplement thereto (to the extent so included as so provided) shall
contain (in the case of information relating to the Proxy Statement, at
the time it is mailed and in the case of information relating to the
registration statement, at the time it becomes effective) any untrue
statement of a material fact or shall omit to state a material fact
necessary to make the statements contained therein, in light of the
circumstances in which they are made, not misleading.
-29-
(p) Neither AMQUEST nor any Subsidiary is, as of the date hereof, a party to
any material contract and/or any material credit agreement as obligor,
maker, issuer or guarantor and which contract or agreement contains
covenants which make the acquisition of AMQUEST or any Subsidiary by or
merger with another entity a condition of default or acceleration.
(q) Attached hereto as Exhibit A is AMQUEST's Subsidiaries List which sets
forth the complete legal name of each Subsidiary, a designation of the
laws under which each Subsidiary is incorporated and the activities
conducted by each Subsidiary. Except as set forth in Exhibit A, AMQUEST
has no subsidiaries. Each of the Subsidiaries is a corporation, limited
liability company or similar entity duly organized and validly existing
in good standing under the laws of the United States or the state of its
incorporation or organization and has full power and authority (including
all licenses, franchises, permits and other governmental authorizations
which are legally required) to engage in the businesses and activities
now conducted by it and is duly qualified to do business and is in good
standing in all jurisdictions where the failure to so qualify (together
with all such failures) would have a AMQUEST Material Adverse Effect.
Except as may be set forth in Exhibit A, AMQUEST and/or one or more of
its Subsidiaries owns beneficially and of record all the outstanding
shares of capital stock of each Subsidiary, which stock is fully paid and
non-assessable (except as provided in 12 U.S.C. (S)55 and similar state
laws). Neither AMQUEST nor any of its Subsidiaries is a party to any
partnership or joint venture or owns more than 5% of the equity or voting
interest in any entity or enterprise.
(r) No employee of AMQUEST or any of its Subsidiaries is represented, for
purposes of collective bargaining, by a labor organization of any type.
AMQUEST is unaware of any efforts during the past five years to unionize
or organize any employees of AMQUEST or any of its Subsidiaries, and no
claim related to such employees under the Fair Labor Standards Act,
National Labor Relations Act, Civil Rights Act of 1964, Walsh-Healy Act,
Davis Bacon Act, Civil Rights Act of 1866, Age Discrimination in
Employment Act, Equal Pay Act of 1963, Executive Order No. 11246, Federal
Unemployment Tax Act, Vietnam Era Veterans Readjustment Act, Occupational
Safety and Health Act, or any state or local employment related law,
order, ordinance or regulation, no unfair labor practice, discrimination
or wage-and-hour claim is pending or, to the best of the knowledge of
AMQUEST and its executive officers after due inquiry, threatened against
AMQUEST
-30-
or its Subsidiaries, which claim has had or is reasonably likely to have
a AMQUEST Material Adverse Effect.
(s) To the actual knowledge of AMQUEST and its executive officers: (i) with
respect to any Contaminant, there are no material actions, proceedings or
investigations pending or threatened before any federal or state
environmental regulatory body, or before any federal or state court,
alleging non-compliance with or liability in connection with, by AMQUEST
or any Subsidiary, CERCLA or any other Environmental Laws; (ii) neither
AMQUEST nor any Subsidiary is responsible in any material respect under
any Environmental Law for any Release by any person at or in the vicinity
of any real property of any Contaminant, including without limitation by
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing of any such
Contaminant into the environment; (iii) neither AMQUEST nor any
Subsidiary is responsible for any material costs of any response action
required by virtue of any Release of any Contaminant into the environment
including, without limitation, costs arising from investigation, removal
or remediation of Contaminants, security fencing, alternative water
supplies, temporary evacuation and housing and other emergency assistance
undertaken by any environmental regulatory body or any other person; (iv)
AMQUEST and each Subsidiary is, in all material respects, in compliance
with all applicable Environmental Laws; and (v) no real property owned or
used by AMQUEST or any Subsidiary contains any Contaminant including,
without limitation, any asbestos, PCBs or petroleum products or
byproducts in any form, the presence, location or condition of which (a)
is reasonably likely to require remediation or other corrective action
pursuant to any Environmental Law in any material respect, or (b)
otherwise would pose any significant health or safety risk unless
remedial measures were taken.
(t) The statements made in the AMQUEST Disclosure Letter and any attachments
thereto shall be deemed to constitute representations and warranties of
AMQUEST under this Merger Agreement to the same extent as if herein set
forth in full. Anything disclosed in the AMQUEST Disclosure Letter or
the attachments thereto shall be considered to have been disclosed for
purposes of all representations, warranties and covenants under this
Merger Agreement.
-31-
15. Action by AMQUEST Pending Effective Time. AMQUEST agrees that from the date
of this Merger Agreement until the earlier of the Effective Time or the time
that this Merger Agreement is terminated, except as stated in AMQUEST's
Disclosure Letter or except with prior written permission of BANCFIRST,
which, in any case covered by Section 15(d) hereof, shall not be
unreasonably withheld:
(a) Beginning with the second quarter of 1998 and for each succeeding
calendar quarter thereafter prior to the calendar quarter in which the
Effective Time shall occur, AMQUEST
(i) will not declare or pay any dividends or make any distributions on
shares of AMQUEST Common, except cash dividends of (A) $.04 per
share for the second quarter of 1998 and (B) of not more than $.04
per share for each quarter subsequent to the second quarter of
1998; and
(ii) except as hereinbelow provided, will not declare or pay any
dividends or make any distributions in any amount on AMQUEST
Common in the quarter in which the Effective Time shall occur and
in which the shareholders of AMQUEST Common are entitled to
receive regular quarterly dividends on the shares of BANCFIRST
Common into which the shares of AMQUEST Common have been
converted. It is the intent of this part (ii) to provide that the
holders of AMQUEST Common will receive either the payment of cash
dividends on their shares of AMQUEST Common or the payment of cash
dividends as the holders of shares of BANCFIRST Common received in
exchange for the shares of AMQUEST Common for the calendar quarter
during which the Effective Time shall occur, but will not receive
and will not become entitled to receive for the same calendar
quarter both the payment of a cash dividend as shareholders of
AMQUEST and the payment of a cash dividend as the holders of the
shares of BANCFIRST Common received in exchange for the shares of
AMQUEST Common. In the event that AMQUEST does not declare and pay
cash dividends on its AMQUEST Common in a particular calendar
quarter because of AMQUEST's reasonable expectation that the
Effective Time would occur in said calendar quarter and the
Effective Time does not in fact occur effective in said calendar
quarter, then, as a result thereof, AMQUEST shall be entitled to
declare and pay a cash dividend
-32-
(within the limitations of this Section 15) on said shares of
AMQUEST Common for said calendar quarter as soon as reasonably
practicable.
The declaration of any dividends within the limitations of this paragraph
shall remain within the discretion of the Board of Directors of AMQUEST.
(b) AMQUEST will not issue, sell or grant any warrant, option, phantom stock
option, stock appreciation right or commitment of any kind for or related
to or acquire for value any shares of its capital stock or otherwise
effect any change in connection with its equity capitalization except as
related to the outstanding stock options which have been granted related
to the purchase of not more than 154,902 shares of AMQUEST Common.
(c) Except as otherwise set forth in or contemplated by this Merger
Agreement, AMQUEST will carry on its businesses in substantially the same
manner as heretofore, keep in full force and effect insurance comparable
in amount and scope of coverage to that now maintained by it and use its
reasonable best efforts to maintain and preserve its business
organization intact.
(d) Neither AMQUEST nor any Subsidiary will (i) enter into any new line of
business or incur or agree to incur any obligation or liability except
liabilities and obligations (including corporate debt issuances) incurred
in the ordinary course of business, except as may be directed by any
regulatory agency; (ii) except as may be directed by any regulatory
agency, change its or its Subsidiaries' lending, investment, liability
management and other material banking policies in any material respect;
(iii) except in the ordinary course of business and consistent with prior
practice, grant any general or uniform increase in the rates of pay of
employees; (iv) establish any new employee benefit plan or amend any
existing plan (except as required by law) so as to increase by any
significant amount the benefits payable thereunder; (v) sell any assets
except in the ordinary course of business and in an aggregate amount not
exceeding $50,000; (vi) incur or commit to any capital expenditures other
than in the ordinary course of business (which will in no event include
the establishment of new branches or any other facilities or any capital
expenditures in excess of $100,000 for any individual project for any
purpose); or (vii) merge into, consolidate with or permit any other
corporation to be merged or consolidated with it or any Subsidiary or
acquire outside of the ordinary course of business part of or all the
assets or stock of any other corporation or person.
-33-
(e) AMQUEST will not change its or its Subsidiaries' methods of accounting
in effect at December 31, 1997, except as required by changes in
generally accepted accounting principles as concurred in by Arthur
Andersen, L.L.P. or change any of its methods of reporting income and
deductions for Federal income tax purposes from those employed in the
preparation of AMQUEST's Federal income tax returns for the taxable
years ending December 31, 1996 and 1997, except as required by changes
in law or regulation.
(f) To the extent permitted by law, AMQUEST will afford BANCFIRST, its
officers and other authorized representatives, such access to all books,
records, bank examination reports, tax returns, leases, contracts and
documents of AMQUEST and its Subsidiaries and will furnish to BANCFIRST
such information with respect to the assets and business of AMQUEST and
its Subsidiaries as BANCFIRST may from time to time reasonably request
in connection with this Merger Agreement and the transactions
contemplated hereby.
(g) AMQUEST will promptly advise BANCFIRST in writing of all material
corporate actions taken by the directors and shareholders of AMQUEST,
furnish BANCFIRST with copies of all monthly and other interim financial
statements of AMQUEST as they become available, and keep BANCFIRST fully
informed concerning all trends and developments which in the opinion of
AMQUEST may have a AMQUEST Material Adverse Effect.
(h) AMQUEST will notify BANCFIRST prior to the origination of any new loan
or an advance on an existing loan of $1,000,000 or greater.
16. Action by BANCFIRST Pending Effective Time. BANCFIRST agrees that from the
date of this Agreement until the earlier of the Effective Time, or the time
that this Merger Agreement is terminated, except as stated in BANCFIRST's
Disclosure Letter or except with prior written permission of AMQUEST, which,
in any case covered by Section 16(d) hereof shall not be unreasonably
withheld:
(a) BANCFIRST will not adopt or implement any amendment to its Certificate
of Incorporation, except for the purpose of increasing authorized shares
of BANCFIRST Common, or any plan of consolidation, merger or
reorganization which would affect in
-34-
any manner the terms and provisions of the shares of BANCFIRST Common or
the rights of the holders of such shares or reclassify any of the
BANCFIRST Common.
(b) Except as otherwise set forth in or contemplated by this Merger
Agreement, BANCFIRST will carry on its businesses in substantially the
same manner as heretofore, keep in full force and effect insurance
comparable in amount and scope of coverage to that now maintained by it
and use its reasonable best efforts to maintain and preserve its
business organization intact.
(c) BANCFIRST will not change its methods of accounting in effect at
December 31, 1997, except as required by changes in generally accepted
accounting principles as concurred in with Coopers & Lybrand, L.L.P.,
its independent auditors, or change any of its methods of reporting
income and deductions for Federal income tax purposes from those
employed in the preparation of the Federal income tax returns of
BANCFIRST for the taxable years ending December 31, 1996 and 1997,
except as required by changes in law or regulation.
(d) BANCFIRST will not, and will cause its subsidiaries not to, make or
agree to make any acquisition, or take any other action, that adversely
affects its ability to consummate the transactions contemplated by this
Merger Agreement and will otherwise continue to conduct its business
operations and will cause the operations of its subsidiaries to be
conducted in a manner consistent with past operating practices. For
purposes of this provision, it is understood and agreed that any
acquisition, merger, consolidation or reorganization which involves the
creation of not more than $3 million in intangible assets on the books
of BANCFIRST and which involves the acquisition of not more than $100
million in total assets shall be deemed to be consistent with past
operating practices.
(e) To the extent permitted by law, BANCFIRST will afford AMQUEST, its
officers and other authorized representatives, such access to all books,
records, bank examination reports, tax returns, leases, contracts and
documents of BANCFIRST and its Subsidiaries and will furnish to AMQUEST
such information with respect to the assets and business of BANCFIRST
and its Subsidiaries as AMQUEST may from time to time reasonably request
in connection with this Merger Agreement and the transactions
contemplated hereby.
-35-
(f) BANCFIRST will promptly advise AMQUEST in writing of all material
corporate actions taken by the directors and shareholders of BANCFIRST,
furnish AMQUEST with copies of all monthly and other interim financial
statements of BANCFIRST as they become available, and keep AMQUEST fully
informed concerning all trends and developments which in the opinion of
BANCFIRST may have a BANCFIRST Material Adverse Effect.
17. Conditions to Obligations of BANCFIRST. The obligations of BANCFIRST to
effect the Merger are subject, unless waived by BANCFIRST, to the
satisfaction of the following conditions on or prior to the Effective Time:
(a) There shall not have been any change in the consolidated financial
condition, aggregate net assets, shareholders' equity, business or
operating results of AMQUEST and its Subsidiaries, taken as a whole,
from March 31, 1998 to the Effective Time that has had a AMQUEST
Material Adverse Effect.
(b) AMQUEST shall not have paid cash dividends from March 31, 1998 to the
Effective Time except as permitted under this Merger Agreement.
(c) All representations by AMQUEST contained in this Merger Agreement shall
be true at, or as of, the Effective Time as though such representations
were made at and as of said date, except for (i) changes contemplated by
the Merger Agreement, (ii) representations as of a specified time other
than the Effective Time, which shall be true at such specified time
(provided, however, that the representation of AMQUEST contained in
Section 14(e) shall be true in all material respects as applied to the
Balance Sheet of AMQUEST included in the most recently available
quarterly or annual report to AMQUEST shareholders and/or AMQUEST's most
recent publicly filed report to the Board prior to the Effective Time
and the allowance for possible loan losses included therein, as though
each reference to "March 31, 1998" in such Section were a reference to
the last day of the calendar quarter of such report or form), and (iii)
inaccuracies or breaches which do not, individually or in the aggregate,
have a AMQUEST Material Adverse Effect.
(d) BANCFIRST shall have received the opinion of legal counsel for AMQUEST,
dated as of the Effective Time, substantially to the effect set forth in
Exhibit C hereto, together with a copy of the Certificate of
Incorporation, as amended, of AMQUEST certified by the Secretary of
State of Oklahoma and Certificates of Good Standing dated as of a date
not
-36-
more than 20 days prior to the Effective Time from the Secretary of State
of the State of Oklahoma or the OCC, as appropriate, for each Bank.
(e) AMQUEST shall have fulfilled and satisfied, in all material respects, all
agreements and conditions required by this Merger Agreement to be
fulfilled and satisfied by it at or prior to the Effective Time.
(f) As of the close of the month immediately preceding the Effective Time,
and at the Effective Time, AMQUEST will have a minimum stockholders'
equity determined in accordance with generally accepted accounting
principles as shown on the following table:
August 31, 1998 $54,160,882
September 30, 1998 $54,650,741
October 31, 1998 $55,140,600
November 30, 1998 $55,630,459
The above amounts are exclusive of:
(i) any increase in stockholders' equity as a result of exercise of
stock options;
(ii) additional compensation, if any, offered by BANCFIRST prior to
closing to employees of AMQUEST in order to induce them to remain
with BANCFIRST, subsequent to the Effective Time;
(iii) any other expenses or adjustments otherwise mutually agreed by the
parties, including expenses relating to premises;
(iv) the change in unrealized gains or losses subsequent to March 31,
1998, with respect to available for sale securities or any
realized gains on sales of securities. Realized losses on sales of
securities shall be excluded for transactions approved by
BANCFIRST;and
(v) any loss not exceeding $150,000 incurred by AmQuest in the sale of
its Cache, Oklahoma, branch.
-37-
In the event that the minimum stockholders' equity is below the specified
amount on the respective date, the total number of BANCFIRST shares to be
issued of 2,625,000 shall be reduced by an amount equal to the deficiency
divided by $40, and the exchange ratio shall be adjusted accordingly.
(g) The reserve for loan losses of AMQUEST shall be not less than .90% of
gross loans.
(h) The total number of shares of AMQUEST Common issued and outstanding
(not including treasury shares held by AMQUEST), including the total
number of shares of AMQUEST Common related to outstanding and
unexercised options related to AMQUEST Common, shall not be more than
3,315,653 shares.
(i) AMQUEST shall have furnished BANCFIRST certificates, signed on its
behalf by its Chairman or President and its Secretary or an Assistant
Secretary and dated as of the Effective Time, certifying as to the form
of and adoption of resolutions of its Board and shareholders approving
the Merger Agreement and the Merger, respectively, and to the effect
that the conditions described in Paragraphs (a), (b), (c), (f), (g),
and (h) of this Section 17 have been fully satisfied.
18. Conditions to Obligations of AMQUEST. The obligations of AMQUEST to effect
the Merger are subject, unless waived by AMQUEST, to the satisfaction on or
prior to the Effective Time of the following conditions:
(a) There shall not have been any change in the consolidated financial
condition, aggregate net assets, shareholders' equity, business, or
operating results of BANCFIRST and its subsidiaries, taken as a whole,
from March 31, 1998 to the Effective Time that has had a BANCFIRST
Material Adverse Effect.
(b) All representations by BANCFIRST contained in this Merger Agreement
shall be true at, or as of, the Effective Time as though such
representations were made at and as of said date, except for changes
(i) contemplated by this Merger Agreement, (ii) representations as of a
specified time other than the Effective Time, which shall be true in
all material respects at such specified time (provided, however, that
the representation of BANCFIRST contained in Section 13(e) shall be
true in all material respects as applied to the Balance Sheet of
BANCFIRST included in the most recently available quarterly or
-38-
annual report to BANCFIRST's shareholders and/or BANCFIRST's most
recently filed report to the SEC on Form 10-Q or Form 10-K prior to the
Effective Time and the reserve for possible loan and lease losses
included therein, as though each reference to "March 31, 1998" in such
Section were a reference to the last day of the calendar quarter of
such report or form), and (iii) inaccuracies or breaches which do not,
individually or in the aggregate, have a BANCFIRST Material Adverse
Effect.
(c) AMQUEST shall have received the opinion of counsel for BANCFIRST, (i)
on and dated the date on which the registration statement described in
Section 10(d) of this Merger Agreement shall have become effective as
described in Section 20(b) of this Merger Agreement substantially to
the effect of paragraphs numbered 5, 6 and 7 of Exhibit D hereto and
(ii) on and dated as of the Effective Time substantially to the effect
set forth in Exhibit D hereto, together with a copy of the Certificate
of Incorporation of BANCFIRST certified by the Secretary of State of
the State of Oklahoma and, as AMQUEST shall reasonably require,
Certificate of Good Standing of BANCFIRST dated as of a date not more
than 20 days prior to the day of the Effective Time from the Secretary
of State of the State of Oklahoma, and copies of the By-laws of
BANCFIRST.
(d) BANCFIRST shall have fulfilled and satisfied, in all material respects,
all agreements and conditions required by this Merger Agreement to be
fulfilled and satisfied by it at or prior to the Effective Time.
(e) BANCFIRST shall have furnished AMQUEST a certificate, signed on its
behalf by its Chairman, President, Senior Executive Vice President or
an Executive Vice President and by its Secretary or Assistant Secretary
and dated as of the Effective Time certifying as to the form of and
adoption of the resolution of its Board and shareholders approving the
Merger Agreement and the Merger, and to the effect that the conditions
described in Paragraphs (a), (b), (d), and (e) of this Section 18 have
been fully satisfied as to it.
(f) As of the close of the most recent calendar quarter (or if the
Effective Time shall occur within 20 days following the close of a
calendar quarter, then as of the close of the next preceding calendar
quarter) cumulative earnings per share of BANCFIRST Common reported by
BANCFIRST for calendar quarters beginning with the second quarter of
1998 through the most recent calendar quarter as defined above, shall
be greater than or equal to the amount calculated by multiplying (x)
$.62 by (y) the number of full calendar
-39-
quarters which have passed since March 31, 1998 and for which earnings
per share of BANCFIRST Common have been reported as of such date, times
(z) 0.9. As used in this Section, "reported" means reported on
BANCFIRST's quarterly financial statements prepared in accordance with
generally accepted accounting principles applied on a basis consistent
with BANCFIRST's financial statements for the year ended December 31,
1997, as included in BANCFIRST's report to the SEC on Form 10-K.
19. Conditions to Obligations of All Parties. In addition to the provisions of
Sections 17 and 18 hereof, the obligations of BANCFIRST and AMQUEST to
effect the Merger shall be subject to the satisfaction of the following
conditions on or prior to the Effective Time:
(a) The parties hereto shall have received all necessary approvals of
governmental agencies and authorities of the transactions contemplated
by this Merger Agreement and each of such approvals shall remain in
full force and effect at the Effective Time. BANCFIRST shall notify
AMQUEST promptly upon receipt of all necessary governmental approvals.
At the Effective Time, (i) no party hereto shall be subject to any
order, decree or injunction of a court or governmental agency of
competent jurisdiction which enjoins or prohibits the consummation of
the Merger; and (ii) no statute, rule, regulation, order, injunction or
decree shall have been enacted, entered, promulgated or enforced by any
governmental authority which prohibits or makes illegal consummation of
the Merger.
(b) The registration statement required to be filed by BANCFIRST pursuant
to Section 10(d) of this Merger Agreement shall have become effective
by an order of the SEC, the shares of BANCFIRST Common to be exchanged
in the Merger shall have been qualified or exempted under all
applicable state securities laws, and there shall have been no stop
order issued and in effect or threatened by the SEC that suspends or
would suspend the effectiveness of the registration statement, and no
proceeding by the SEC shall have been commenced, pending or overtly
threatened for such purpose and the BANCFIRST Common to be issued in
the Merger will be authorized for trading.
(c) This Merger Agreement shall have been duly approved and adopted by the
requisite affirmative vote of the shareholders of AMQUEST and
BANCFIRST.
(d) Crowe and Dunlevy shall have issued its written opinion, dated as of
the date of the Effective Time, satisfactory to AMQUEST and BANCFIRST,
respectively, substantially
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to the effect set forth in clauses (a) through (e) of Section 12 of
this Merger Agreement and there shall exist as of, at or immediately
prior to the Effective Time, no facts or circumstances which would
render such opinion inapplicable in any respect to the transactions to
be consummated hereunder.
(e) The aggregate of (i) the fractional share interests of BANCFIRST Common
to be paid in cash pursuant to Section 7(c), and (ii) the shares of
BANCFIRST Common to which holders of AMQUEST Common would have been
entitled as of the Effective Time but who, as of the Effective Time,
have taken steps to perfect their rights as dissenting shareholders
pursuant to the provisions of applicable law, shall not be more than
10% of the maximum aggregate number of shares of BANCFIRST Common which
could be issued as a result of the Merger, provided, however, that
"tainted" shares held as treasury stock by AMQUEST shall be regarded as
dissenting shares for purposes of such computation.
(f) The registration statement filed by BANCFIRST with the SEC registering
the shares of BANCFIRST Common reserved for issuance pursuant to the
exercise of options on BANCFIRST Common pursuant to the AMQUEST Options
shall have become effective pursuant to rules and regulations of the
SEC and shall have been qualified or exempted under all applicable
state securities laws, and there shall have been no stop order issued
and in effect or threatened by the SEC that suspends or would suspend
the effectiveness of such registration and no proceeding by the SEC
shall have been commenced, pending or overtly threatened for such
purpose.
(g) The Merger shall qualify as a pooling of interests in accordance with
APB 16 and all rules, regulations and policies of the SEC.
20. Indemnification.
(a) In the event of any threatened or actual claim, action, suit,
proceeding or investigation, whether formal or informal and whether
civil, administrative or criminal, including, without limitation, any
such claim, action, suit, proceeding or investigation pursuant to which
any person who is now, or has been at any time prior to the date
hereof, or who becomes prior to the Effective Time, a director,
officer, employee, fiduciary or agent of AMQUEST or any of its
Subsidiaries (the "Indemnified Parties") is, or is threatened to be,
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made a party or a witness, based in whole or in part on, or arising in
whole or in part out of, or pertaining to, this Merger Agreement or any
of the transactions contemplated hereby (a "Merger Related Event"),
whether in any case asserted or arising before or after the Effective
Time, the parties hereto agree to cooperate and use their reasonable
best efforts to defend against and respond to such claim, action, suit,
proceedings or investigation. With respect to any Merger Related Event,
and conditioned upon the Merger becoming effective, BANCFIRST shall
indemnify, defend and hold harmless, as and to the fullest extent
permitted by applicable law, each Indemnified Party against any and all
losses, claims, damages, liabilities, costs, expenses (including
attorneys' fees and expenses), judgments and fines, and amounts paid in
settlement, in connection with any such threatened or actual claim,
action, suit, proceedings or investigation; provided, however, that
BANCFIRST shall not be liable for any settlement effected without its
prior written consent (which consent shall not be unreasonably
withheld). In the event of any such threatened or actual claim, action,
suit, proceedings or investigation (whether asserted or arising before
or after the Effective Time), (i) BANCFIRST shall pay expenses
(including attorney's fees and expenses) in advance of the final
disposition of any claim, suit, proceedings or investigation to each
Indemnified Party to the fullest extent permitted by applicable law,
and (ii) BANCFIRST shall use its reasonable best efforts to vigorously
defend any such matter; provided, however, that BANCFIRST's obligations
as herein set forth shall not apply to any losses, claims, damages,
liabilities, costs, expenses, judgments, fines and amounts paid in
settlement by any Indemnified Party involving the fraud, bad faith
and/or reckless disregard of such Indemnified Party or related to any
threatened or actual claim, action, suit, proceedings or investigation
brought by BANCFIRST against any Indemnified Party. Any Indemnified
Party wishing to claim indemnification and defense under this Section
20(a) shall, upon the earlier to occur of (A) receiving actual notice
of any such claim, action, suit, proceeding or investigation, (B)
otherwise learning of such claim, action, suit, proceeding or
investigation or (C) receiving other information which would give a
reasonably prudent person reason to believe that such a claim, action,
suit, proceeding or investigation had or might be brought, notify
BANCFIRST thereof as soon as reasonably practicable thereafter.
BANCFIRST's obligations pursuant to this Section 20(a) are conditioned
upon (A) BANCFIRST being given the right to control and direct the
investigation, defense and/or settlement of each such matter; provided,
however, that BANCFIRST will endeavor to consult with the Indemnified
Party and to take the views of such Indemnified Party into
consideration in effecting any settlement and BANCFIRST will not enter
into any such settlement without the consent of the
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Indemnified Party (which consent shall not be unreasonably withheld)
unless the settlement results in the complete release of the
Indemnified Party from any further liability with respect to the Merger
Related Event aspects of any such claim, (B) the Indemnified Party
having reasonably cooperated with BANCFIRST in connection therewith,
and (C) the BANCFIRST being given prompt written notice of any such
claim, action, suit, proceeding or investigation; provided, however,
that the failure to so notify shall not affect the obligations of
BANCFIRST unless BANCFIRST is prejudiced thereby.
(b) To the extent not prohibited by applicable law, BANCFIRST shall insure
that all rights to indemnification and defense and all limitations of
liability existing in favor of the Indemnified Parties as provided in
AMQUEST's Certificate of Incorporation and By-laws or similar governing
documents of any of its Subsidiaries or indemnification agreements, as
in effect as of December 31, 1997, or as otherwise provided for or
allowed under applicable law as in effect as of the date hereof or as
such law is amended at a time prior to the Effective Time, with respect
to claims or liabilities arising from facts or events existing or
occurring prior to the Effective Time, shall survive the Merger and
shall continue in full force and effect, without any amendment thereto,
for a period of six (6) years from the Effective Time; provided,
however, that all rights to indemnification in respect of any claim
asserted or made within such period shall continue until the final
disposition of such claim.
(c) In connection with any obligation of BANCFIRST to indemnify any
Indemnified Party pursuant to Section 20(a) or (b), any determination
required to be made with respect to whether an Indemnified Party's
conduct complies with the standards set forth in Section 20(a), above,
or under Oklahoma law and the Certificate of Incorporation or By-Laws
of AMQUEST shall be made by independent counsel (which shall not be
counsel that provides material services to BANCFIRST) selected by
BANCFIRST and reasonably acceptable to the Indemnified Party; and
provided, further, that, in making such determination, BANCFIRST shall
have the burden to demonstrate that the Indemnified Party's conduct
failed to comply with such standard.
(d) From and after the Effective Time, persons who, immediately prior to
the Effective Time, served as the directors, officers and employees of
AMQUEST and its Subsidiaries, who, following the Effective Time,
continue as directors, officers and/or employees of the Surviving
Corporation or one of its subsidiaries, shall have indemnification and
defense
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rights having prospective application only, except, however, for the
indemnification and defense rights set forth in paragraphs (a), (b) and
(c) of this Section 20. These prospective indemnification and defense
rights shall consist of (i) such rights to which directors, officers
and employees are entitled under the provisions of the Certificate of
Incorporation, By-laws or similar governing documents of the Surviving
Corporation and its subsidiaries, as applicable, as in effect from time
to time after the Effective Time, as applicable, and provisions of
applicable law as in effect from time to time after the Effective Time
and (ii) those indemnification and defense rights set forth in
agreements, if any, between BANCFIRST and the directors and executive
officers of the Surviving Corporation and its Subsidiaries. Such
agreements, if any, which shall be executed as soon as practicable
following the Effective Time, shall provide certain indemnification and
defense rights that are comparable to those provided to directors,
officers and employees of BANCFIRST and its subsidiaries generally, but
which rights may be greater or lesser than the indemnification and
defense rights available in clause (i) above.
(e) The obligations of BANCFIRST provided under paragraphs (a), (b) and (c)
of this Section 20 are intended to benefit, and be enforceable against
BANCFIRST directly by the Indemnified Parties, and shall be binding on
all respective successors and permitted assigns of BANCFIRST.
(f) In the event BANCFIRST or any of its successors or assigns (i)
consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity of such consolidation or
merger, or (ii) transfers or conveys all or substantially all of its
properties and assets to any person, then, and in each such case,
proper provision shall be made so that the successors and assigns of
BANCFIRST as the case may be, assume the obligations set forth in this
Section 20.
(g) The provisions of this Section 20 are intended for the benefit of, and
shall be enforceable by, each Indemnified Party and his or her heirs
and representatives. BANCFIRST shall pay all reasonable costs,
including attorneys fees, that may be incurred by any Indemnified Party
in successfully enforcing the indemnity and other obligations provided
for in this Section 20. The rights of each Indemnified Party hereunder
shall be in addition to any other rights such Indemnified Party may
have under applicable law.
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21. Non-Survival of Representations and Warranties. The respective
representations and warranties of AMQUEST and BANCFIRST contained in this
Merger Agreement shall not survive the Effective Time.
22. Governing Law. This Merger Agreement shall be construed and interpreted
according to the applicable laws of the State of Oklahoma.
23. Assignment. This Merger Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Merger
Agreement nor any of the rights, interests, or obligations hereunder shall
be assigned by any of the parties hereto without the prior written consent
of the other parties.
24. Satisfaction of Conditions; Termination.
(a) BANCFIRST agrees to use its reasonable best efforts to obtain
satisfaction of the conditions of this Merger Agreement insofar as they
relate to BANCFIRST, and AMQUEST agrees to use its reasonable best
efforts, subject to the fiduciary duties of the Board of Directors of
AMQUEST, to obtain the satisfaction of the conditions of this Merger
Agreement insofar as they relate to AMQUEST, in each case, as soon as
possible.
(b) This Merger Agreement may be terminated at any time prior to the
Effective Time, whether before or after approval of the Merger by the
shareholders of BANCFIRST or by AMQUEST's shareholders, upon the
occurrence of any of the following by written notice from BANCFIRST to
AMQUEST (authorized by the Board of Directors or executive officers of
BANCFIRST), or by written notice from AMQUEST to BANCFIRST (authorized
by the Board of Directors of AMQUEST), as the case may be:
(i) If any material condition to the obligations of BANCFIRST set
forth in Section 17 or 19 is not substantially satisfied at the
time or times contemplated thereby and such condition is not
waived by BANCFIRST or if any material condition to the
obligations of AMQUEST as set forth in Section 18 or 19 is not
substantially satisfied at the time or times contemplated thereby
and such condition is not waived by AMQUEST. Each party's right
to terminate under this Section 24 (b)(i) shall relate only to
conditions to that party's obligations;
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(ii) In the event of a material breach by the other of any
representation, warranty, condition or agreement contained in
this Merger Agreement that is not cured within 30 days of the
time that written notice of such breach is received by such other
party from the party giving notice; or
(iii) If the Merger shall not have been consummated on or before
November 30, 1998.
(c) In the event that BANCFIRST's investigation and review of AMQUEST
discloses matters which BANCFIRST in good faith believes to be either
(i) inconsistent in any material respect with any of the
representations and warranties of AMQUEST contained in this Merger
Agreement or (ii), in the reasonable judgment of the Board of Directors
of BANCFIRST, to be either (x) of such significance as to materially
and adversely affect the financial condition or the results of
operations of AMQUEST and its Subsidiaries on a consolidated basis or
(y) deviate materially and adversely from AMQUEST's financial
statements for the three months ended March 31, 1998, BANCFIRST may
elect to terminate this Merger Agreement by giving written notice of
termination to AMQUEST within twenty days following the date of this
Merger Agreement.
(d) In the event that AMQUEST's investigation and review of BANCFIRST
discloses matters which AMQUEST in good faith believes to be either (i)
inconsistent in any material respect with any of the representations
and warranties of BANCFIRST contained in this Merger Agreement or (ii),
in the reasonable judgment of the Board of Directors of AMQUEST, to be
either (x) of such significance as to materially and adversely affect
the financial condition or the results of operations of BANCFIRST and
its Subsidiaries on a consolidated basis or (y) deviate materially and
adversely from BANCFIRST's financial statements for the three months
ended March 31, 1998, AMQUEST may elect to terminate this Merger
Agreement by giving written notice of termination to BANCFIRST within
twenty days following the date of this Merger Agreement.
(e) This Merger Agreement may be terminated and abandoned (whether before
or after approval of the Merger by the shareholders of BANCFIRST or by
AMQUEST's shareholders) by mutual written consent of AMQUEST and
BANCFIRST authorized by the respective Boards of Directors of AMQUEST
and BANCFIRST.
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(f) AMQUEST shall have the right to terminate this Merger Agreement in the
event that the shareholders' equity of AMQUEST as specified in Section
17(f) as of the end of the month immediately preceding the Effective
Time is lower than the specified shareholders' equity figure for such
date by an amount in excess of 10% of such figure.
(g) In the event of termination of this Merger Agreement (i) caused
otherwise than by a willful breach of this Merger Agreement by any of
the parties hereto or (ii) pursuant to Section 24(c), Section 24(d), or
Section 24(e), (A) this Merger Agreement shall cease and terminate, the
acquisition of AMQUEST as provided herein shall not be consummated, and
neither BANCFIRST, nor AMQUEST shall have any liability to any other
party under this Merger Agreement of any nature whatever, except for
BANCFIRST's obligations related to the printing of the proxy
solicitation materials, including any liability for damages, and (B)
BANCFIRST and AMQUEST each shall pay its own fees and expenses incident
to the negotiation, preparation and execution of this Merger Agreement,
the respective shareholders' meetings and actions of the parties and
all other acts incidental to, contemplated by or in pursuance of the
transactions contemplated by this Merger Agreement, including fees and
expenses of their respective counsel, accountants and other experts and
advisors. The duties of the parties with respect to confidential
information as set forth in Section 10(f) shall survive any termination
of this Merger Agreement.
(h) If termination of this Merger Agreement shall be judicially determined
to have been caused by willful breach of this Merger Agreement, then,
in addition to other remedies at law or equity for breach of this
Merger Agreement, the party so found to have willfully breached this
Merger Agreement shall indemnify the other parties for their respective
costs, fees and expenses of their counsel, accountants and other
experts and advisors as well as fees and expenses incident to
negotiation, preparation and execution of this Merger Agreement and
related documentation and their shareholders' meetings and consents.
25. Expenses. Except as provide in Section 24, each party hereto will bear all
its own costs, charges and expenses in connection with the negotiation and
preparation of, and transactions contemplated by, this Agreement, including,
but not limited to, fees of their respective attorneys, investment advisers
and accountants. With respect to AMQUEST all such fees and costs shall be
paid in full or accrued as a liability on AMQUEST's books not later than the
end of the month immediately preceding the Effective Time.
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26. Waivers; Amendments. Any of the provisions of this Merger Agreement may be
waived in writing at any time by the party which is, or the shareholders of
which are, entitled to the benefit thereof, provided, however, such waiver,
if material to AMQUEST or its shareholders, may be made only following due
authorization by the Board of Directors of AMQUEST. This Merger Agreement
may be amended or modified in whole or in part by an agreement in writing
executed in the same manner (but not necessarily by the same persons) as
this Merger Agreement and which makes reference to this Merger Agreement;
provided, however, such amendment or modification may be made only following
due authorization by the respective Boards of Directors of AMQUEST and
BANCFIRST; provided, further, however, that after a favorable vote by the
shareholders of AMQUEST any such action shall be taken by AMQUEST only if,
in the opinion of its Board of Directors, such amendment or modification
will not have any material adverse effect on the benefits intended under
this Merger Agreement for the shareholders of AMQUEST, and will not require
resolicitation of any proxies from such shareholders.
27. Entire Agreement. Subject to the exceptions noted in the next following
sentence, this Merger Agreement supersedes any other agreement, whether
written or oral, that may have been made or entered into by AMQUEST and
BANCFIRST or by any officer or officers of such parties relating to the
acquisition of the business or the capital stock of AMQUEST and/or its
Subsidiaries by BANCFIRST. Except for the BANCFIRST Disclosure Letter and
any attachments thereto, the AMQUEST Disclosure Letter and any attachments
thereto, and the Confidentiality Agreement, this Merger Agreement and the
exhibits hereto constitute the entire agreement by the parties, and there
are no agreements or commitments except as set forth herein and therein.
28. Captions; Counterparts. The captions in this Merger Agreement are for
convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Merger Agreement.
This Merger Agreement may be executed in several counterparts, each of which
shall constitute one and the same instrument.
29. Notices. All notices and other communications hereunder may be made by
mail, hand-delivery or by courier service. If notices and other
communications are made by nationally recognized overnight courier service
for overnight delivery, such notice shall be deemed to have been given one
business day after being forwarded to such a nationally recognized overnight
courier service for overnight delivery. All notices and other communications
hereunder given to any
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party shall be communicated to the remaining party to this Merger Agreement
by mail or by hand-delivery in the same manner as herein provided.
(a) If to BANCFIRST, to: BancFirst Corporation
P.O. Box 26788
Oklahoma City, Oklahoma 73126
Attn: David Rainbolt
Phone: (405) 270-1010
Fax: (405) 270-1089
With a copy to: Craig Ledgerwood & Bauman
401 West Main St., Suite 400
Norman, Oklahoma 73069
Attn: Marion C. Bauman
Phone: (405) 329-1001
Fax: (405) 329-5520
(b) If to AMQUEST, to: AmQuest Financial Corp.
P.O. Box 2139
Duncan, OK 73534
Attn: John Hugon
Phone: (580) 255-4100
Fax: (580) 255-5610
With a copy to: Crowe and Dunlevy
1800 Mid America Tower
Oklahoma City, OK 73102
Attn: Michael M. Stuart
Phone: (405) 235-7747
Fax: (405) 272-5231
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IN WITNESS WHEREOF, this Merger Agreement has been executed the day and year
first above written.
BANCFIRST CORPORATION
ATTEST:
/s/ Sam D. Ott By: /s/ David E. Rainbolt
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Secretary President
AMQUEST FINANCIAL CORPORATION
ATTEST:
/s/ Penny Morales By: /s/ John Hugon
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Secretary Vice Chairman
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