EXHIBIT 10.2
EXHIBIT E
SHELF REGISTRATION AGREEMENT
This Agreement is entered into as of this _____ day of
____________________, 1998, by and between BancFirst Corporation, an Oklahoma
corporation ("Company"), and the former shareholders of AmQuest Financial
Corporation ("AmQuest") listed on the signature page of this Agreement who may
be considered former affiliates of AmQuest or affiliates of BancFirst
("Stockholders") with reference to the following circumstances.
A. The Stockholders have acquired shares of common stock of the
Company as indicated on the signature page of this Agreement ("Shares")
from the Company in connection with the merger of AmQuest with and into the
Company on ________________________, 1998.
B. The merger agreement provides that the Company will enter into a
shelf registration agreement to register the Shares for the Stockholders.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein Stockholders and the Company agree as follows:
1. Filing of Registration Statement. The Company shall file a
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registration statement under the Securities Act of 1933, as amended ("Act") with
the Securities and Exchange Commission ("Commission") on Form S-3 to register
the Shares to permit sale of the Shares by the Stockholders or their Permitted
Transferees (as defined below) in non-underwritten transactions, including, but
not limited to, open market or private transactions which may be effected
through a broker-dealer or agent, hedging transactions or other transactions
from time to time ("Registration Statement"). The Registration Statement shall
be filed within 15 days after the date hereof.
2. Effectiveness of Registration Statement. The Company shall use
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reasonable best efforts to (a) cause the Registration Statement to become
effective under the Act as soon as practicable after the filing of the
Registration Statement; (b) maintain its eligibility to use Form S-3; and (c)
maintain the effectiveness of the Registration Statement under the Act for a
period of not less than two years following the date hereof or until the
intended distribution of Shares is completed, whichever occurs first.
3. State Registration or Qualification. The Company shall use reasonable
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best efforts to register or qualify the Shares covered by the Registration
Statement for public sale under the securities or blue sky laws of the state of
principal residence of each Stockholder, if such registration or qualification
is necessary; provided, however, that the Company shall not be required by this
Section 3 to qualify to do business as a foreign corporation or otherwise to
subject itself to taxation therein, or to file any general consent to service of
process in any state.
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4. Delivery of Prospectuses. The Company shall provide to each
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Stockholder the number of prospectuses relating to the Shares as the Stockholder
shall reasonably request to enable the Stockholder to comply with the applicable
prospectus delivery requirements. If at any time during the effectiveness of the
Registration Statement, the Company shall furnish to the Stockholders or Other
Holders a certificate stating either that (a) the Company has determined in the
good faith judgment of the Board of Directors that the sale of Shares pursuant
to the Registration Statement would require disclosure of material non-public
information the disclosure of which would have a material adverse effect on the
Company, or (b) that an intervening event has occurred (including any
notification contemplated by Section 6 hereof) which, in the reasonable opinion
of the Company's counsel, makes the prospectus included in the Registration
Statement no longer comply with the Act, such Stockholders or Other Holders
shall immediately suspend sales of Shares pursuant to such Registration
Statement until the earlier of (x) such holder's receipt of a supplemented or
amended prospectus complying with the Act, and (y) such time as the Company
notifies such Stockholders or Other Holders that sales pursuant to such
registration statement may be resumed (the number of days from such suspension
of sales by such Stockholders or Other Holders until the day when such sales may
be resumed hereunder is hereinafter called a "Sales Blackout Period"), and has
received copies of any additional or supplemental filings which are incorporated
by reference in the Prospectus. In the event the Company shall give any such
notice, the time periods mentioned in Section 2 hereof shall be extended by the
number of days during the period from and including the date of the giving of
such notice to and including the date when each seller of Shares covered by such
Registration Statement either receives the copies of the supplemented or amended
prospectus contemplated by clause (x) above or is advised in writing by the
Company that the use of the prospectus may be resumed. The Company shall take
such actions as are necessary to end the Sales Blackout Period as promptly as
practicable. The Company shall keep the Stockholders and Other Holders fully
informed as to the status of its efforts, which shall be prompt and diligent, to
cause new, amended or supplemented prospectuses to be available for use by the
Stockholders and Other Holders.
5. Expenses of Registration. The Company shall bear all of the expenses
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of registration or qualification of the Shares under the Act and under the state
securities or blue sky laws as provided in Section 3 hereof; provided, however,
that each Stockholder shall bear any selling expenses or commissions
attributable to the Shares being sold by such Stockholder and shall bear fees
and expenses of their own counsel, if any.
6. Information to be Furnished by Stockholder. The Stockholders and any
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then Permitted Transferee holding Shares included or to be included in the
Registration Statement ("Other Holders") shall furnish the Company all
information reasonably required by the Company in connection with the
Registration Statement and shall cooperate with the Company as reasonably
required to cause the Registration Statement or any amendment thereto to become
effective. Each holder of Shares agrees that it will immediately notify the
Company at any time when a prospectus relating to the registration of such
Shares is required to be delivered under the Act of the happening of an event as
a result of which information previously furnished by such holder to the Company
in writing for inclusion in such prospectus contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances in which they were made.
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7. Procedures. The Company shall (i) notify the Stockholders or Other
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Holders promptly after it shall receive notice thereof, of the time when the
Registration Statement has become effective or any supplement to any prospectus
forming a part of the Registration Statement has been filed; (ii) notify the
Stockholders or Other Holders promptly of any request by the Commission for the
amending or supplementing of the Registration Statement or prospectus or for
additional information; (iii) prepare and file with the Commission, promptly
upon the reasonable request of a Stockholder or Other Holder, any amendment or
supplement to such registration statement or prospectus which, in the opinion of
counsel for such Stockholder or other Holder may be necessary or advisable in
connection with the distribution of the Shares by such Stockholder or Other
Holder; (iv) prepare and promptly file with the Commission, and promptly notify
the Stockholder or Other Holder of the filing of, such amendment or supplement
to the Registration Statement or prospectus as may be necessary to correct any
statement or omission, if at any time when a prospectus relating to the Shares
is required to be delivered under the Act, any event shall have occurred as a
result of which any such prospectus would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading; (v) in case a Stockholder or Other Holder is
required to deliver a prospectus then in effect may no longer be used under the
Act, prepare promptly upon request such amendment or amendments to the
Registration Statement and such prospectus or prospectuses as may be necessary
to permit compliance with the requirements of Section 10 of the Act subject to
clause (ix) below; (vi) not file any amendment or supplement to the Registration
Statement or prospectus to which the Stockholders or Other Holders shall
reasonably object after having been furnished a copy at a reasonable time prior
to the filing thereof; (vii) advise the Stockholders or Other Holders promptly
after it shall receive notice or obtain knowledge thereof of the issuance of any
stop order by the Commission suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceeding for that purpose
and promptly use its reasonable best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued; (viii)
furnish to the Stockholders or Other Holders as soon as available copies of the
Registration Statement and each preliminary or final prospectus, or supplement
required to be prepared, pursuant to this Section 7, all in such quantities as
the Stockholders or Other Holders may from time to time reasonably request; (ix)
provided, however, that in no event shall the Company be obligated to keep the
Registration Statement effective for a period longer than two years from the
date hereof plus a number of days equal to the number of days, if any, during
which the Stockholders' right to offer and sell such Shares shall have been
suspended pursuant to the provisions of Section 4 hereof and the Company may
after such period deregister any of the Shares remaining unsold if the Company
elects to do so or if the Commission or its staff so requests; and (x) if any of
the Company's shares or common stock are then listed on any securities exchange,
the Company will cause all shares covered by the Registration Statement to be
listed on such exchange(s).
8. Market Stand-Off Agreement. If requested by the Company and an
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underwriter of Common Stock (or other securities) of the Company, a Stockholder
or Other Holder, who together with their affiliates as defined in the Securities
Act owns at least five percent (5%) of the Company's Common Stock, shall not
sell or otherwise transfer or dispose of any Shares (or other securities) of the
Company held by such Stockholder or Other Holder (other than those included in
the registration) during the one hundred eighty (180) day period following the
effective date of a registration statement of the Company filed under the Act,
provided that all officers and directors
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of the Company and holders of at least five percent (5%) of the Company's voting
securities are bound by and have entered into similar agreements other than
holders who have purchased shares in the public markets and are affiliates of
the Company based solely on the size of their holdings. In the event the Company
or an underwriter shall make such request, the time periods mentioned in Section
2 hereof shall be extended by the 180-day period.
The obligations described in this Section 8 shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-4 or similar
forms that may be promulgated in the future. The Company may impose stop-
transfer instructions with respect to the Shares (or other securities) subject
to the foregoing restriction until the end of said one hundred eighty (180) day
period.
9. Indemnification by Company. The Company will, to the maximum extent
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permitted by law, indemnify and hold harmless the Stockholders and Other Holders
and each person, if any, who controls such persons within the meaning of the
Act, against any losses, claims, damages or liabilities, joint or several, to
which such persons may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) are
caused by any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any prospectus contained therein, or
any amendment or supplement thereto, or arising out of or based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
will reimburse the Stockholders and Other Holders, and each such controlling
person for any legal or other expenses incurred by them in connection with
investigating or defending against any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage, expense or liability arises out
of, or is based upon, an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformance with written information
relating to the identity of any Stockholders or Other Holders and the method of
distribution of the Shares which is furnished or approved by such Stockholder or
Other Holder.
10. Indemnification by Stockholder. Each Stockholder and Other Holder
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shall, individually (and not jointly), to the maximum extent permitted by law,
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the Registration Statement, and each person, if any,
who controls the Company, within the meaning of the Act, against any loss,
claim, damage or liability of which the Company, or any such director, officer
or controlling person may be or become subject under the Act or otherwise,
insofar as such loss, claim, damage or liability (or action in respect thereof)
is caused by any untrue or alleged untrue statement of any material fact
contained in the Registration Statement, such prospectus, or amendment or
supplement thereto, or arises out of or is based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; in such case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission relates to the identity of such
Stockholder or Other Holder and the method of distribution of the Shares and has
been furnished or approved by such Stockholder or Other Holder; or arises out of
or is based upon an untrue statement or alleged untrue statement or
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omission or alleged omission made in any such preliminary prospectus and if, in
respect to such statement, alleged statement, omission or alleged omission, the
final prospectus corrected such statement, alleged statement, omission or
alleged omission and a copy of such final prospectus had not been sent or given
at or prior to the confirmation of the sale with respect to which such loss,
claim, damage, expense or liability relates.
11. Notice to Indemnitor. Promptly after receipt by an indemnified party
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of notice of the commencement of any action, such indemnified party will, if a
claim thereof is to be made against the indemnifying party pursuant thereto,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party. In case such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party, similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party.
12. Shares. For purposes of this Agreement, the Shares means and includes
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any securities issued or issuable with respect to the Shares by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
13. Permitted Transferee. For purposes of this Agreement, the term
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Permitted Transferee shall mean (a) spouses or family members of a Stockholder;
trusts created by a Stockholder for the benefit of such Stockholder or for the
benefit of family members of such Stockholder; or a corporation, partnership or
limited liability company, all of the capital stock or interests of which is
owned by a Stockholder, family members or their spouses; or (b) pledgees of the
Shares as security. For purposes of this Agreement, "family members" shall mean
lineal or adopted descendants of a Stockholder.
14. Legends. Upon the sale of Shares by any Stockholders or Other Holder
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pursuant to the Registration Statement, the Company shall instruct its transfer
agent to permit said transfer, and shall further cause any legend on the
certificates representing the Shares transferred to be removed.
15. Stockholder Representative. Each Stockholder shall be represented
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under this Agreement by Investors Trust Company ("Stockholder Representative").
In the event Stockholder Representative shall die or resign or otherwise
terminate its status as such, its successor shall be any of the undersigned
Stockholders appointed by Stockholder Representative or, in the case of the
death of the Stockholder Representative or where the Stockholder Representative
fails to appoint a successor after a vacancy has been created, elected by the
vote or written consent of a majority in interest of the Stockholders. All
decisions of the Stockholder Representative shall be binding upon the
Stockholders. The Stockholder Representative shall keep the Stockholders
reasonably informed of its decisions of a material nature. The Stockholder
Representative shall not be entitled to any compensation for services hereunder.
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(a) Duties of Stockholder Representative. The Stockholder
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Representative is authorized to take any action deemed by it appropriate or
necessary to carry out the provisions of, and to determine the rights of
the Stockholders under, this Agreement. Stockholder Representative is
designated as the agent of the Stockholders for all purposes related to
this Agreement, including without limitation service of process upon the
Stockholders. Each of the Stockholders agrees with the Company and each
other Stockholder that his or her authorization and designation of
Stockholder Representative under this Agreement shall be irrevocable and
shall be binding upon his or her successors and assigns. The Company shall
be fully protected in dealing with Stockholder Representative, and shall
have no duty to inquire into the authority of any person reasonably
believed by it to be Stockholder Representative.
(b) Liability of Stockholder Representative. Stockholder
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Representative (i) shall not be liable to any of the Stockholders for any
error of judgment, act done or omitted by him in good faith, or mistake of
fact or law unless caused by his own gross negligence or willful
misconduct; (ii) shall be entitled to treat as genuine any letter or other
document furnished to him by the Company or any Stockholder and believed by
him to be genuine and to have been signed and presented by the proper party
or parties; and (iii) shall be reimbursed by the Stockholders for counsel
fees and other out-of-pocket expenses incurred by Stockholder
Representative in connection with this Agreement. Such reimbursement shall
be made pro rata by the Stockholders based on their ownership of shares.
16. Notices. All notices required or permitted to be given pursuant to
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this Agreement shall be in writing and shall be given by either personal
delivery, facsimile, overnight courier or by registered or certified mail with
return receipt requested and shall be deemed given when received, at the
following addresses or those addresses set forth on the signature page or at
such other address as either party shall designate in writing to the other.
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To Company: BancFirst Corporation
000 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
ATTN:
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Phone: (000) 000-0000
Fax: (000) 000-0000
To: Stockholders Representative: Investors Trust Company
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Duncan, Oklahoma
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Phone: (580)
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Fax: (580)
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17. Governing Law. This Agreement shall in all respects be governed by
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and construed and enforced in accordance with the laws of the State of Oklahoma.
IN WITNESS WHEREOF, the Stockholders and the Company have executed this
Agreement as of the date first above written.
COMPANY
BANCFIRST CORPORATION
By
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Title:
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BANCFIRST SHELF REGISTRATION AGREEMENT
STOCKHOLDER SIGNATURE PAGE
The undersigned Stockholder does hereby acknowledges receipt of the Shelf
Registration Agreement to be dated on or about ________________________, 1998,
relating to shares of BancFirst Common Stock being issued to the undersigned in
connection with the merger of AmQuest Financial Corp into BancFirst and hereby
agrees to the terms thereof.
No. of Shares Name:
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Address:
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Signature
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Name and Title if signing on behalf of
corporation, partnership, trust or other
entity
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