INDEX
Areement and Plan of Merger
Promissory Note Exhibit A
Escrow Agreement Exhibit B
Employment Agreement Exhibit C
Employment Agreement Exhibit D
Noncompetition Agreement Exhibit E
Escrow Agreement Exhibit F
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of February
19, 1999, is entered into by and among BOK Financial Corporation, an Oklahoma
Corporation, ("BOKF"), BOKF Merger Corporation Number Nine, a Texas corporation
and a wholly-owned subsidiary of BOKF ("BOKSub"), and Chaparral Bancshares,
Inc., a Texas corporation ("Chaparral").
WHEREAS, BOKF is a registered bank holding company under the Bank
Holding Company Act of 1956, as amended (the "BHCA"), and BOKSub is a
wholly-owned subsidiary of BOKF; and
WHEREAS, Chaparral is a registered bank holding company under the BHCA,
which controls Canyon Creek National Bank, a national banking association
("CCNB"); and
WHEREAS, Chaparral owns all of the issued and outstanding capital stock
of Chaparral Bancshares of Delaware, a Delaware corporation ("Delaware"); and
WHEREAS, Delaware is a registered bank holding company under the BHCA,
which owns all of the issued and outstanding capital stock of CCNB; and
WHEREAS, the respective Boards of Directors of each of BOKF and
Chaparral deem it advisable for BOKSub to merge with and into Chaparral upon the
terms and subject to the conditions described herein;
NOW, THEREFORE, for and in consideration of the mutual benefits to be
derived from this Agreement and of the representations, warranties, conditions,
and promises hereinafter contained, the parties hereto covenant and agree as
follows:
ARTICLE I
THE MERGER
Section 1.1. The Merger. Pursuant to the terms and provisions of this
Agreement and the Texas Business Corporation Act (the "TBCA"), BOKSub shall
merge with and into Chaparral (the "Merger").
Section 1.2. Merging Corporation. BOKSub shall be the merging corporation
under the Merger and its corporate identity and existence, separate and apart
from Chaparral, shall cease on consummation of the Merger.
Section 1.3. Surviving Corporation. Chaparral shall be the surviving
corporation in the Merger. No changes in the articles of incorporation or bylaws
of Chaparral shall be effected by the Merger. The officers and directors of
Chaparral after the Merger shall be the same as the officers and directors of
Chaparral as of the Effective Time (as defined in Section 9.2); provided,
however, Xxxxxxx X. Xxxxxxxx, Xxx X. Xxxxxx and C. Xxxx Xxxx, Jr. shall, upon
consummation of the Merger, be additional members of the board of directors of
Chaparral. It is understood that some of the current directors of Chaparral may
elect to resign on or before the Effective Time.
Section 1.4. Effect of the Merger. The Merger shall have all of the
effects provided by the TBCA. Chaparral, as the surviving corporation, may, at
any time after the Effective Time, take any action (including executing and
delivering any documents) in the name and on behalf of either BOKSub or
Chaparral as are appropriate in order to carry out and effectuate the
transactions contemplated by this Agreement.
Section 1.5. Merger Consideration; Conversion of Shares.
(a) At the Effective Time, each share common stock of Chaparral, par
value $1.00 per share (the "Chaparral Common") then issued and outstanding,
other than shares the holders of which have duly exercised and perfected their
dissenters' rights under the TBCA, shall be automatically converted into the
right to receive an amount (the "Merger Consideration") equal to (i)
$29,900,000, plus (a) the difference (which may be a loss) between the amount
realized by CCNB (including principal and interest) upon collection or sale of
any of the CCFC Assets (as defined in Section 1.7) and the Book Value (as
defined in Section 1.7) thereof, between the date of this Agreement and the
Effective Time, minus (b) 134% of the amount of bonuses paid pursuant to Section
5.2(e) of this Agreement, and minus (c) the amount of any dividends paid by
Chaparral to its shareholders during the period from January 1, 1999 to the date
of consummation of the Merger, divided by (ii) the number of shares of Chaparral
Common issued and outstanding as of the Effective Time (and after exercise of
all of the Stock Options (as defined in Section 2.2)). The Merger Consideration
shall be paid to each holder of the Chaparral Common as of the Effective Time as
herein provided.
(b) Chaparral, BOKF and BOKSub acknowledge and understand that (i) all
Stock Options shall be exercised immediately prior to consummation of the
Merger, (ii) all shares of Chaparral Common issuable upon exercise of the Stock
Options shall be deemed issued and outstanding immediately prior to the
consummation of the Merger, and (iii) the Chaparral Common to be converted into
the right to receive the Merger Consideration shall include, without limitation,
the Chaparral Common to be issued upon the exercise of the Stock Options.
(c) At the Effective Time, BOKF shall deposit or cause to be deposited,
each into an interest-bearing account, (i) $400,000 of the Merger Consideration
to be governed by Section 11.2 (the "Representation Escrow Funds"), and (ii) an
amount, if any, equal to the aggregate Tax Basis (as defined in Section 1.7) of
the CCFC Assets owned by CCNB as of the Effective Time (the "CCFC Escrow
Funds"). The Merger Consideration less the Representation Escrow Funds and the
CCFC Escrow Funds is referred to herein as the "Closing Consideration"). Each
holder of the Chaparral Common may elect to receive the Closing Consideration in
any combination of (i) cash or (ii) a single Promissory Note payable to the
shareholder by BOKF ("BOKF Note"). Each BOKF Note shall (i) be substantially in
the form attached hereto as Exhibit A (the "BOKF Note" and collectively the
"BOKF Notes"); (ii) bear interest at the rate per annum equal to the "Applicable
Federal Rate" as defined under the Internal Revenue Code of 1986, as amended
(the "Code"), based upon the term of such BOKF Note, (iii) be due and payable in
full on January 2, 2000.
(d) Unless a Chaparral shareholder (including holders of the Stock
Options) shall deliver to Chaparral not later than the meeting of shareholders
of Chaparral at which the shareholders vote on the question of approval of this
Agreement a written election ("BOKF Note Election") in a form approved by
counsel to BOKF (which approval shall not be unreasonably withheld or delayed)
to receive the Closing Consideration or part thereof in the form of a BOKF Note,
the shareholder shall be irrevocably deemed to have elected to receive the
Closing Consideration in all cash. Any Chaparral shareholder who has timely
delivered the BOKF Note Election may withdraw such election, and receive the
Closing Consideration in all cash, by delivering written notice to Chaparral to
that effect not less than twenty (20) days prior to the Closing Date (as defined
in Section 9.2).
(e) At the Effective Time, all of the shares of Chaparral Common, by
virtue of the Merger and without any action on the part of the holders thereof,
shall no longer be outstanding and shall be canceled and retired and shall cease
to exist, and each holder of any certificate or certificates which immediately
prior to the Effective Time represented outstanding shares of Chaparral Common
(the "Certificates") or of any holder of Stock Options shall thereafter cease to
have any rights with respect to such shares, except the right of such holders to
receive the Closing Consideration upon the surrender of such Certificate or
Certificates or exercise of such Stock Options in accordance with Section 1.6.
(f) At the Effective Time, each share of Chaparral Common, if any, held
in the treasury of Chaparral immediately prior to the Effective Time shall be
canceled.
(g) At the Effective Time, each share of common stock, par value $ 1.00
per share, of BOKSub outstanding immediately prior to the Effective Time shall
be converted into one share of Chaparral Common.
(h) If any holder of Chaparral Common is entitled to dissent from the
Agreement and the Merger under the TBCA and such holder thereof perfects such
holder's rights under the TBCA in accordance with the provisions thereof, any
issued and outstanding shares of Chaparral Common held by such dissenting holder
("Dissenting Shares") shall not be converted as described in this Section 1.5
but from and after the Effective Time shall represent only the right to receive
such cash consideration as may be determined to be due to such dissenting holder
pursuant to the TBCA; provided, however, that each share of Chaparral Common
outstanding immediately prior to the Effective Time and held by a dissenting
holder who shall, after the Effective Time, withdraw his demand for appraisal or
lose his right of appraisal shall have only such rights as are provided under
the TBCA.
Section 1.6. Exchange Procedures; Surrender of Certificates.
(a) The Bank of New York, or other entity mutually satisfactory to
Chaparral and BOKF, shall act as paying agent in the Merger (the "Paying
Agent"). Immediately after the Effective Time, BOKF will cause Chaparral, as the
surviving corporation, to furnish the Paying Agent a corpus consisting of cash
and BOKF Notes sufficient in the aggregate for the Paying Agent to make full
payment of the Closing Consideration to the holders of all outstanding shares of
Chaparral Common (other than Dissenting Shares).
(b) At least twenty (20) days prior to the Effective Time, the Paying
Agent shall mail, without any further action on the part of BOKF or Chaparral,
to each record holder of the Certificates, addressed to the most current address
of such shareholders according to the records of Chaparral, a letter of
transmittal (and instructions) for use in effecting the surrender of the
Certificates in exchange for the Merger Consideration. Each such letter (the
"Merger Transmittal Letter") shall specify that delivery shall be effected, and
risk of loss and title to the Certificates shall pass, only upon proper delivery
of the Certificates to the Paying Agent and shall be in such form and have such
other provisions as BOKF may reasonably specify. If a holder of the Chaparral
Common surrenders the Certificates representing shares of such stock and a
properly executed Merger Transmittal Letter to the Paying Agent at least three
(3) business days prior to the Closing Date, then on the Closing Date, the
Paying Agent shall pay to such shareholder the Closing Consideration with
respect to such shares of Chaparral Common. If a holder of the Chaparral Common
surrenders the Certificates representing shares of such stock and a properly
executed Merger Transmittal Letter to the Paying Agent at any time after three
(3) business days prior to the Closing Date, then promptly, and in no event
later than three (3) business days after receipt of such Certificates and Merger
Transmittal Letter, the Paying Agent shall pay to such shareholder the Closing
Consideration with respect to such shares of Chaparral Common. No interest on
the Closing Consideration issuable upon the surrender of the Certificates shall
be paid or accrued for the benefit of holders of Certificates (other than any
interest on the BOKF Notes in accordance with their terms). If the Merger
Consideration is to be issued to a person other than a person in whose name a
surrendered Certificate is registered, it shall be a condition of issuance that
the surrendered Certificate shall be properly endorsed or otherwise executed in
proper form for transfer and that the person requesting such issuance shall pay
to the Paying Agent any required transfer or other taxes or establish to the
satisfaction of the Paying Agent that such tax has been paid or is not
applicable.
(c) With respect to any shares of Chaparral Common that are acquired as
a result of the exercise of the Stock Options, the purchase price for such
shares under the Stock Options shall be subtracted from or "netted-out" of the
Merger Consideration to be paid such shareholders in order to provide for a
cashless exercise of the Stock Options. That is, upon the exercise of the Stock
Options such option holder shall not be required to pay Chaparral the purchase
price specified in the Stock Options, but such amount shall be deducted from the
amount of Merger Consideration that would otherwise have been paid to such
option holder.
(d) After the Effective Time, there shall be no further registration or
transfers on the records of Chaparral of outstanding certificates formerly
representing shares of Chaparral Common and, if a certificate formerly
representing such shares is presented to Chaparral or BOKF, it shall be
forwarded to the Paying Agent for cancellation and exchange for the Merger
Consideration.
(e) All Merger Consideration paid upon the surrender of Chaparral
Common in accordance with the above terms and conditions shall be deemed to have
been paid in full satisfaction of all rights pertaining to such shares of
Chaparral Common.
(f) In the event any certificate for Chaparral Common shall have been
lost, stolen or destroyed, the Paying Agent shall issue in exchange for such
lost, stolen or destroyed certificate, such Merger Consideration as may be
required pursuant to this Agreement; provided, however, that BOKF may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate to deliver an affidavit of
lost certificate and indemnification agreement in form reasonably acceptable to
BOKF.
(g) At any time following six months after the Effective Time, BOKF
shall be entitled to terminate the Paying Agent relationship, and thereafter
holders of Certificates shall be entitled to look only to BOKF (subject to
abandoned property, escheat or other similar laws) with respect to the Closing
Consideration payable upon surrender of their Certificates.
Section 1.7. The CCFC Escrow and Sale of the CCFC Assets.
(a) Schedule 1.7 sets forth, as of February 16, 1999, a list of certain
assets of CCNB (the "CCFC Assets"), the value of such assets on the books and
records of CCNB as of such date (the "Book Value") and the tax basis of such
assets on the books and records of CCNB as of such date (the "Tax Basis"). From
and after the date of this Agreement, Chaparral shall cause CCNB to use
reasonable, good faith efforts to collect or sell all of the CCFC Assets prior
to the Closing Date for such amounts and at such times as Chaparral may
determine. With the consent of BOKF, which consent shall not be unreasonably
withheld, CCNB may sell certain fixed assets currently used by the Bank in
collecting or servicing the CCFC Assets, or enter into contracts to lease space
or provide data processing services to the purchaser of all or substantially all
of the CCFC Assets.
(b) If all of the CCFC Assets are not collected or sold by CCNB prior
to the Effective Time, prior to the Effective Time, Chaparral shall incorporate
Canyon Creek Financial Corporation ("CCFC") as a Texas corporation, with the
shares of stock of CCFC to be issued in trust for the benefit of the
shareholders of Chaparral as of the Effective Time in proportion to such
holder's ownership of the stock of Chaparral. The persons who are members of the
Board of Directors of Chaparral immediately prior to the Closing shall serve as
directors of CCFC.
(c) If all of the CCFC Assets are not collected or sold by CCNB prior
to the Effective Time, at the Effective Time, BOKF shall establish an escrow
account (the "CCFC Escrow") with Bank of Texas Trust Company, National
Association (the "Escrow Agent"). The CCFC Escrow shall be governed by an escrow
agreement, the form of which is attached hereto as Exhibit "B" (the "CCFC Escrow
Agreement", which shall provide as follows:
(i) At the Effective Time, BOKF shall deposit an amount
equal to the aggregate Tax Basis of the CCFC Assets owned by CCNB as of
the Effective Time into the CCFC Escrow (the "CCFC Escrow Funds").
(ii) At the Effective Time, CCFC will purchase the CCFC Assets
from CCNB and CCNB shall sell the CCFC Assets to CCFC at such place as
BOKF may determine for a price equal to the aggregate Tax Basis of the
CCFC Assets owned by CCNB as of the Effective Time (the "CCFC Assets
Purchase Price") out of the CCFC Escrow Funds. The CCFC Assets shall be
sold by CCNB to CCFC without recourse and in an "as is" condition
without any representations or warranties of any kind, other than title
to the CCFC Assets. The sale and purchase of the CCFC Assets will be
effected by appropriate documentation, which will be in form and
substance reasonably acceptable to counsel for CCFC and BOKF. After
consummation of the sale and purchase of the CCFC Assets and after
payment of the CCFC Assets Purchase Price to CCNB, the Escrow Agent,
the CCFC Escrow Agreement shall terminate.
(iii) BOKF shall pay the fees and costs of the Escrow Agent
with respect to the CCFC Escrow.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF CHAPARRAL
In order to induce BOKF and BOKSub to enter into, execute, deliver and
perform this Agreement, Chaparral represents and warrants to BOKF and BOKSub as
follows:
Section 2.1. Organization, Standing and Power.
(a) Chaparral is a corporation duly organized, validly existing and in
good standing under laws of the State of Texas. Chaparral (i) has all requisite
power and authority to own, lease and operate its properties and to carry on its
business as it is now being conducted; (ii) is subject to the supervision of the
Board of Governors of the Federal Reserve System (the "Fed"); and (iii) is a
bank holding company registered with the Fed under the BHCA.
(b) Delaware is a corporation duly organized, validly existing and in
good standing under laws of the State of Delaware. Delaware (i) has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as it is now being conducted; (ii) is subject to the
supervision of the Fed; and (iii) is a bank holding company registered with the
Fed under the BHCA.
(c) CCNB is a national banking association duly organized, validly
existing and in good standing under laws of the United States. CCNB (i) has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as it is now being conducted; (ii) is subject to the
supervision of the Federal Deposit Insurance Corporation ("FDIC") and the Office
of the Comptroller of the Currency ("OCC"); and (iii) is an insured bank as
defined in the Federal Deposit Insurance Act.
(d) Chaparral has delivered to BOKF and BOKSub complete and correct
copies, as of a date not more than 30 days prior to the date hereof, of (i) the
Articles of Association or Incorporation and all amendments thereto, and (ii)
the Bylaws and all amendments thereto, of each of Chaparral, Delaware and CCNB.
Section 2.2. Capital Structure.
(a) The authorized capital stock of Chaparral consists of 5,000,000
shares of Common Stock, par value $1.00 per share and 5,000,000 shares of
preferred stock, no par value per share. As of the date of this Agreement,
1,883,612 shares of Chaparral Common were outstanding (net of shares held by
Chaparral in treasury) and such issued and outstanding shares of Chaparral
Common are held of record by the shareholders in the amounts specified for each
such shareholder in Schedule 2.2(a). Chaparral does not have any outstanding
shares of preferred stock nor any commitment or obligation to repurchase,
reacquire or redeem any of the outstanding Chaparral Common. As of the date of
this Agreement, Chaparral had outstanding stock options granted, pursuant to the
Chaparral Employee Stock Option Plan and the Stock Option Plan for Directors,
representing the right to acquire an aggregate of 136,128 shares of Chaparral
Common (the "Stock Options"). Schedule 2.2 (b) sets forth the name of each
person that has been granted Stock Options, the number of shares that may be
acquired as of the date of this Agreement by each such person and the exercise
price of such Stock Options. The Chaparral Common is validly issued and
outstanding, fully paid and non-assessable. Except for the Stock Options, there
are no outstanding subscriptions, conversion privileges, calls, warrants,
options, commitments or agreements of any character obligating Chaparral to
issue, sell, or dispose of any shares of any of its capital stock.
(b) The authorized capital stock of Delaware consists solely of 300
shares of common stock, par value $1.00 per share (the "Delaware Common Stock").
As of the date of this Agreement, 300 shares of Delaware Common Stock were
issued and outstanding, and all of such outstanding shares are held of record by
Chaparral. There are no outstanding subscriptions, conversion privileges, calls,
warrants, option, commitments or agreements obligating Delaware to issue, sell,
or dispose of any shares of any of its capital stock.
(c) The authorized capital stock of CCNB consists of 15,000,000 shares
of common stock, par value $1.00 per share (the "CCNB Common Stock"), and
10,000,000 shares of preferred stock, par value $1.00 per share. As of the date
of this Agreement, 1,443,600 shares of CCNB Common Stock were issued and
outstanding, all of which are held of record by Delaware. There are no
outstanding shares of preferred stock, nor any subscriptions, conversion
privileges, calls, warrants, options, commitments or agreements obligating CCNB
to issue, sell, or dispose of any shares of any of its capital stock.
Section 2.3. Authority. Subject to the approval of this Agreement by
the shareholders of Chaparral as contemplated by Section 5.6 hereof, the
execution and delivery of this Agreement and the consummation of the Merger
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of Chaparral. Neither the execution and delivery of
this Agreement nor the consummation of the Merger contemplated hereby nor
compliance by Chaparral with any of the provisions hereof will (i) conflict with
or result in a breach of any material provision of its Articles of Incorporation
or Bylaws or constitute a default (or give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions or provisions
of any material note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which Chaparral is a party, or by which it or any of
its properties or assets may be bound, except for such conflict, breach or
default as to which requisite waivers or consents either shall have been
obtained by Chaparral by the Effective Time or the obtaining of which shall have
been waived by BOKF, or (ii) violate any material order, writ, injunction,
decree, statute, rule or regulation applicable to Chaparral or any of its
properties or assets. No other consent or approval by any governmental
authority, other than compliance with applicable federal and state securities
and banking laws and regulations of the Fed, is required in connection with the
execution and delivery by Chaparral of this Agreement or the consummation by
Chaparral of the Merger contemplated hereby.
Section 2.4. Financial Statements.
(a) Chaparral has previously delivered or made available to BOKF
complete copies of the (i) audited consolidated balance sheets of Chaparral,
Delaware and CCNB as of December 31, 1997 and related consolidated income
statements and statement of changes in shareholders' equity, together with the
notes thereto; (ii) unaudited consolidated balance sheet of Chaparral, Delaware
and CCNB as of December 31, 1998 and the related unaudited consolidated income
statement for the twelve months then ended; and (iii) the Reports of Condition
and Income of CCNB as filed with the OCC for each of the quarterly periods
during 1998 (collectively the "Financial Statements").
(b) The information set forth in the Financial Statements presents
fairly the financial position of Chaparral, Delaware and CCNB as of the dates
thereof and the results of their operations and the changes in their financial
position for the periods indicated in conformity with generally accepted
accounting principles applied on a consistent basis, except the interim
statements are subject to normal year-end adjustments. Such Financial Statements
do not, as of the dates thereof, include any material assets or omit to state
any material liabilities, absolute or contingent, or include or omit other
facts, 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; provided, however, the interim statements are subject to
normal year-end adjustments.
Section 2.5. Absence of Changes. Since December 31, 1998, there has not
been any material adverse change in the condition (financial or otherwise) of
the assets, liabilities, earnings or business of Chaparral, Delaware or CCNB.
Since such date, the business of Chaparral, Delaware and CCNB has been conducted
only in the ordinary course consistent with prior practices and such entities
have not incurred any additional material liabilities (not already reflected in
the Financial Statements) except: (i) those incurred in the ordinary course of
business consistent with past practices without negligence or willful
malfeasance, or (ii) expenses or liabilities incurred in connection with this
Agreement and the transactions contemplated hereby. Without limiting the
generality of the foregoing, since December 31, 1998, except as permitted by
this Agreement, none of Chaparral, Delaware, or CCNB have paid any dividends,
made any distributions of assets, made any material changes in compensation or
benefits of any employee (other than by reason of promotion to increased
responsibility), or entered into any contracts for services or materials except
such contracts and materials which either: (i) may be terminated without penalty
within 90 days or, (ii) provide for the payment or other consideration to be
furnished by Chaparral, Delaware or CCNB in an amount of not more than $25,000,
individually or $100,000 for all such contracts and materials. Notwithstanding
the foregoing, any changes in banking laws, generally accepted accounting
principles, prevailing interest rates or other developments which affect the
entire banking industry generally shall not be deemed to have a material adverse
effect in the financial condition, the results of operations or the business of
Chaparral, Delaware or CCNB.
Section 2.6. Tax Matters.
(a) Chaparral, Delaware and CCNB have timely filed all federal, state
and local (and, if applicable, foreign) income, franchise, bank, excise, real
property, personal property and other tax returns required by applicable laws to
be filed by them (including, without limitation, estimated tax returns, income
tax returns, information returns and withholding and employment tax returns) and
have paid, or where payment is not required to have been made, have set up an
adequate reserve or accrual for the payment of, all taxes required to be paid
with respect of the periods covered by such returns and, as of the Effective
Time, will have paid, or where payment is not required to have been made, will
have set up an adequate reserve or accrual for the payment of, all taxes for any
subsequent periods ending on or prior to the Effective Time. None of Chaparral,
Delaware nor CCNB will have any material liability for any such taxes in excess
of the amounts so paid or reserves or accruals so established. No payment of any
amount to any employee of any of Chaparral, Delaware, or CCNB is an excess
parachute payment within the meaning of Section 280G of the Code.
(b) All federal, state and local income, franchise, bank, excise, real
property, personal property and other tax returns filed by Chaparral, Delaware
and CCNB are complete and accurate in all material respects. None of Chaparral,
Delaware nor CCNB is delinquent in the payment of any tax, assessment or
governmental charge, and none of them has requested any extension of time within
which to file any tax returns in respect of any fiscal year or portion thereof
which have not since been filed. There are currently no agreements in effect
with respect to Chaparral, Delaware or CCNB to extend the period of limitations
for the assessment or collection of any tax. As of the date hereof, no audit,
examination or deficiency or refund litigation with respect to any such return
is pending or, to Chaparral's knowledge, threatened.
Section 2.7. Property. Chaparral, Delaware and CCNB own all property
reflected on the balance sheet dated December 31, 1998 included in the Financial
Statements (except personal property sold or otherwise disposed of since
December 31, 1998, in the ordinary course of business), free and clear of all
mortgages, liens, pledges, charges or encumbrances of any nature whatsoever,
except those reflected in the Financial Statements, liens for current taxes not
yet due and payable and such encumbrances and imperfections of title, if any, as
are not substantial in character or amount or do not otherwise materially impair
business operations.
Section 2.8. Legal Proceedings. There is no material legal,
administrative, arbitration or other proceeding or governmental investigation
pending or, to Chaparral's knowledge, threatened which might reasonably be
expected to result in material money damages payable by Chaparral, Delaware or
CCNB in excess of insurance coverage or in a permanent injunction against
Chaparral, Delaware or CCNB. To Chaparral's knowledge, each of Chaparral,
Delaware and CCNB have complied with, and are not in default in any material
respect under, any laws, ordinances, requirements, regulations or orders
applicable to their business. None of Chaparral, Delaware or CCNB is a party to
any agreement or instrument or subject to any charter or other corporate
restriction or any judgment, order, writ, injunction, or decree, which
materially and adversely affects, or might reasonably be expected materially and
adversely to affect, the business operations, properties, assets or condition,
financial or otherwise, of Chaparral, Delaware or CCNB.
Section 2.9. Brokers and Finders. None of Chaparral, its subsidiaries
or any of its officers, directors or employees has employed any broker or finder
or incurred any liability for any brokerage fees, commissions or finders' fees
in connection with the Merger contemplated herein.
Section 2.10. Loan Portfolio. Except as to any breach that would not
have a material adverse effect on the consolidated financial position of
Chaparral, Delaware and CCNB, (i) all loans and discounts shown on the Financial
Statements at December 31, 1998 or which were entered into after December 31,
1998, but before the Closing Date were and will be made in all material respects
for good, valuable and adequate consideration in the ordinary course of CCNB, in
accordance in all material respects with sound banking practices, and are not
subject to any material known defenses, setoffs or counterclaims, including
without limitation any such as are afforded by usury or truth in lending laws,
except as may be provided by bankruptcy, insolvency or similar laws or by
general principles of equity; (ii) the notes or other evidences of indebtedness
evidencing such loans and all forms of pledges, mortgages and other collateral
documents and security agreements are and will be, in all material respects,
enforceable, valid, true and genuine and what they purport to be; and (iii)
Chaparral, Delaware and CCNB have complied and will prior to the Closing Date
comply with all laws and regulations relating to such loans, or to the extent
there has not been such compliance, such failure to comply will not materially
interfere with the collection of any such loan. Notwithstanding the foregoing,
BOKF acknowledges and agrees that it has made its own determination as to the
collectibility of the loan portfolio of Chaparral and CCNB.
Section 2.11. Environmental. To Chaparral's knowledge, the ownership,
location, construction, use and operation of all real property owned or leased
by Chaparral or CCNB (fixed asset or OREO) is, and has at all times been, in
material compliance with applicable Environmental Law, as hereinafter defined.
Delaware does not own or lease any real property and has not since its
incorporation. To Chaparral's knowledge, there are no pending or threatened, and
there have been no administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law
relating to the real property owned by Chaparral or CCNB. To Chaparral's
knowledge, (i) no real property owned by Chaparral or CCNB has at any time been
used by Chaparral or CCNB, or by any person, as a landfill or for the storage or
disposal, or as a site of spilling, dumping, depositing or otherwise disposing
of, any hazardous or toxic substances or waste; and (ii) no real property owned
by Chaparral or CCNB is, or has been, an industrial site or landfill. For the
purposes hereof, "Environmental Law" means any federal, state or local statute,
law, rule, regulation, ordinance, code, policy or rule of common law now in
effect and in each case as amended and any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent,
decree or judgment, relating to the environment, health, safety or "hazardous
materials," "hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants," or words or terms of similar import (including under any
Environmental Law), including without limitation the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. 9601 et
seq., the Hazardous Materials Transportation Act, as amended, 49 U.S.C. 1801 et
seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et
seq., the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et
seq., the Toxic Substances Control Act, 15 U.S.C. 2601 et seq., the Clean Air
Act, 42 U.S.C. 7401 et seq., the Safe Drinking Water Act, 42 U.S.C. 3808 et
seq., the Texas Solid Waste Disposal Act, Tex. Health & Safety Code Xxx. Ch.
361, the Texas Clean Air Act, Tex. Health & Safety Code Xxx. Ch. 382, the Texas
Water Code, Tex. Water Code Xxx., and the Texas Hazardous Substances Spill
Prevention and Control Act, Tex. Water Code Xxx.
Section 2.12. Zoning and Related Laws. To Chaparral's knowledge, all
real property owned or leased by Chaparral or CCNB and the use thereof complies
with all applicable laws, ordinances, regulations, orders or requirements,
including without limitation, building, zoning and other laws, except as to any
violations which would not have a material adverse affect on the financial
condition of Chaparral or CCNB.
Section 2.13. Compliance with Law. Chaparral, Delaware and CCNB have
all licenses, franchises, permits and other governmental authorizations that are
legally required to enable them to conduct their respective businesses in all
material respects and are in compliance with all applicable laws and regulations
except to the extent that the failure to so comply could not have a material
adverse effect on Chaparral, Delaware or CCNB.
Section 2.14. Agreements with Regulatory Agencies. None of Chaparral,
Delaware nor CCNB is subject to any cease-and-desist or other order issued by,
or a party to any written agreement or memorandum of understanding with or is a
party to any commitment letter or similar undertaking to, or is subject to any
order or directive, or is a recipient of any extraordinary supervisory letter
from, or has adopted any board resolutions at the request of (each a "Regulatory
Agreement") any regulatory agency that materially restricts the conduct of its
business or that in any manner relates to its capital adequacy, its credit
policies, its management or its business, nor have Chaparral, Delaware or CCNB
been advised by any regulatory agency that it is considering issuing or
requesting any Regulatory Agreement.
Section 2.15. Employees. Except as set forth in Schedule 2.15 attached
hereto, (i) none of the employees of Chaparral, Delaware, or CCNB is employed
under any employment contract (oral or written) which will survive the Merger
and (ii) none of Chaparral, Delaware, or CCNB have any employee benefit plans.
Section 2.16. Contracts and Commitments. A list of all contracts and
commitments, other than deposit, safe deposit, credit and lending transactions
entered into in the ordinary course of CCNB's banking business, which are
material to the business, operations, or financial condition of Chaparral,
Delaware, or CCNB as of this date is set forth in Schedule 2.16. For the purpose
of Schedule 2.16, materiality shall mean those contracts and commitments for
which payment or other consideration to be furnished by Chaparral, Delaware, or
CCNB is more than $25,000. Chaparral, Delaware, and CCNB have performed in all
material respects and are performing all material contractual and other
obligations required to be performed by them.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BOKF
In order to induce Chaparral to enter into, execute, deliver and
perform this Agreement, BOKF represents and warrants to Chaparral as follows:
Section 3.1. Organization, Standing and Power. BOKF is a corporation
duly organized, validly existing and in good standing under the State of
Oklahoma. BOKF (i) has all requisite power and authority to execute and deliver
this Agreement and to perform its obligations hereunder, and to own, lease and
operate its properties and to carry on its business as now being conducted; and
(ii) is a bank holding company registered with the Fed under the BHCA.
Section 3.2. Authority. The execution and delivery of this Agreement,
the consummation of the Merger and payment of the Merger Consideration
(including issuance and delivery of the BOKF Notes) and the other transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of BOKF. This Agreement has been duly executed by
BOKF and constitutes the valid and binding obligation of BOKF, enforceable in
accordance with its terms and conditions, except as enforceability may be
limited by bankruptcy, conservatorship, insolvency, moratorium, reorganization,
receivership or similar laws and judicial decisions affecting the rights of
creditors generally and by general principles of equity (whether applied in a
proceeding at law or in equity). Neither the execution and delivery of this
Agreement nor the consummation of the Merger and payment of the Merger
Consideration (including issuance and delivery of the BOKF Notes) and the other
transactions contemplated hereby nor compliance by BOKF with any of the
provisions hereof will (i) conflict with or result in a breach of any provision
of its Articles of Incorporation or Bylaws or constitute a default (or give rise
to any right of termination, cancellation or acceleration) under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, license,
agreement or other instrument or obligation to which BOKF is a party, or by
which it or any of its properties or assets may be bound except for such
conflict, breach or default as to which requisite waivers or consents either
shall have been obtained by BOKF by the Effective Time, or the obtaining of
which shall have been waived by Chaparral, or (ii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to BOKF or any of its
properties or assets. No consent or approval by any governmental authority,
other than compliance with applicable federal and state securities and banking
laws and regulations of the Fed, is required in connection with the execution
and delivery by BOKF of this Agreement or the consummation by BOKF of the Merger
and payment of the Merger Consideration (including issuance and delivery of the
BOKF Notes) and the other transactions contemplated hereby.
Section 3.3. Subsidiaries. Each of BOKF's subsidiaries is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has the corporate power to own its
respective properties and assets, to incur its respective liabilities and to
carry on its respective business as now being conducted.
Section 3.4. Financial Information. The consolidated balance sheets of
BOKF and its subsidiaries as of December 31, 1997 and related consolidated
statements of income, changes in stockholders' equity and cash flows for the
three years ended December 31, 1997, together with the notes thereto, included
in BOKF's 10-K for the year ended 1997, as currently on file with the Securities
and Exchange Commission ("SEC") and the unaudited consolidated balance sheet of
BOKF and its subsidiaries as of September 30, 1998, and the related unaudited
consolidated income statement and statements of changes in stockholders' equity
and cash flows for the nine months then ended included in BOKF's Quarterly
Report on Form 10-Q for the quarter then ended, as currently on file with the
SEC (together the "BOKF Financial Statements"), have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
(except as disclosed therein) and fairly present the consolidated financial
position and the consolidated results of operations, changes in stockholders'
equity and cash flows of BOKF and its consolidated subsidiaries as of the dates
and for the periods indicated (subject, in the case of interim financial
statements, to normal recurring year-end adjustments, none of which will be
material).
Section 3.5. Absence of Changes. Since September 30, 1998, there has
not been any material adverse change in the financial condition, the results of
operations or the business of BOKF and its subsidiaries taken as a whole, nor
have there been any events or transactions having such a material adverse effect
which should be disclosed in order to make the BOKF Financial Statements not
misleading. Notwithstanding the foregoing, any changes in banking laws,
generally accepted accounting principles, prevailing interest rates or other
developments which affect the entire banking industry generally shall not be
deemed to be a material adverse change in the financial condition, the results
of operations or the business of BOKF and its subsidiaries taken as a whole.
Section 3.6. Litigation. There is no litigation, claim or other
proceeding pending or, to the knowledge of BOKF, threatened, against BOKF or any
of its subsidiaries, of which the property of BOKF or any of its subsidiaries is
or would be subject which if adversely determined would have a material adverse
effect on the business of BOKF and its subsidiaries taken as a whole.
Section 3.7. Reports. Since January 1, 1993 (in the case of
subsidiaries of BOKF, the date of acquisition thereof by BOKF, if later) BOKF
and each of its significant subsidiaries has filed all reports and statements,
together with any amendments required to be made with respect thereto, that it
was required to file with (i) the SEC, (ii) the Fed, (iii) the OCC, (iv) the
FDIC, (v) any applicably state securities or banking authorities, (vi) NASDAQ
and (vii) any other governmental authority with jurisdiction over BOKF or any of
its significant subsidiaries. As of their respective dates, each of such reports
and documents, as amended, including the financial statements, exhibits and
schedules thereto, complied in all material respects with the relevant statutes,
rules and regulations enforced or promulgated by the regulatory authority with
which they were filed, and did not contain any untrue statement of a material
fact or omit to state any 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.
Section 3.8. Compliance With Law. BOKF and its significant subsidiaries
have all licenses, franchises, permits and other governmental authorizations
that are legally required to enable them to conduct their respective businesses
in all material respects and are in compliance with all applicable laws and
regulations, except to the extent that the failure to so comply would not have a
material adverse effect on BOKF and its subsidiaries taken as a whole.
Section 3.9. Regulatory Approvals. BOKF is not aware of any matter
(including, but not limited to, compliance with capital adequacy guidelines
adopted by the Fed, the Community Reinvestment Act, and FFIEC Interagency
guidelines establishing year 2000 standards) that would delay or prevent BOKF
from obtaining all requisite regulatory approvals necessary to consummate the
Merger as set forth in this Agreement.
Section 3.10. BOKF Notes. The BOKF Notes when issued and delivered
pursuant to the terms of this Agreement, will constitute the valid and binding
obligations of BOKF enforceable in accordance with their terms, except as
enforcement may be limited by applicable bankruptcy, reorganization, insolvency,
moratorium, or similar laws affecting the enforcement of creditors' rights.
Section 3.11 Ability to Pay Merger Consideration. BOKF will have
available to it as of the Closing Date, as a result of dividends or
distributions from its subsidiaries or borrowings on its existing line of
credit, sufficient cash to pay the Merger Consideration as set forth in Section
1.5 to the shareholders of Chaparral.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BOKSUB
In order to induce Chaparral to enter into, execute, deliver and
perform this Agreement, BOKSub represents and warrants to Chaparral as follows:
Section 4.1. Organization, Standing and Power. BOKSub is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Texas, with all requisite power and authority to own, lease and operate
its properties and to carry on its business as now being conducted.
Section 4.2. Authority. The execution and delivery of this Agreement
and the consummation of the Merger contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of BOKSub.
Neither the execution and delivery of this Agreement, the consummation of the
Merger contemplated hereby nor the compliance by BOKSub with any of the
provisions hereof will (i) conflict with or result in a breach of any provision
of its Articles of Incorporation or Bylaws or constitute a default (or give rise
to any right of termination, cancellation or acceleration) under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, license,
agreement or other instrument or obligation to which BOKSub is a party, or by
which it or any of its properties or assets may be bound except for such
conflict, breach or default as to which requisite waivers or consents either
shall have been obtained by BOKSub by the Effective Time, or the obtaining of
which shall have been waived by BOKSub, or (ii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to BOKSub or any of
its properties or assets. No consent or approval by any governmental authority,
other than those required by applicable federal and state securities and banking
laws and regulations is required in connection with the execution and delivery
by BOKSub of this Agreement.
ARTICLE V
PRE-CLOSING COVENANTS
Section 5.1. Access to Records and Properties of Chaparral.
(a) Between the date of this Agreement and the Effective Time,
Chaparral agrees to give BOKF reasonable access to all of its and CCNB's
premises, books, records (including tax returns filed and those in preparation),
financial information and other information pertinent to its operations,
including, without limitation, access to independent auditors with respect to
the preparation of the financial statements and tax planning of Chaparral and
CCNB; provided, however, that any such investigation shall be conducted in such
manner as not to interfere unreasonably with the operation of the business of
Chaparral or CCNB. Chaparral will cooperate fully in permitting BOKF to make a
full investigation of the business, properties, financial condition and
investments of Chaparral and CCNB, in the preparation of all applications,
reports and other documents necessary or advisable for the successful
consummation of the Merger.
(b) BOKF will treat and hold confidential any information concerning
the business and affairs of Chaparral, Delaware or CCNB that is not generally
available to the public ("Confidential Information") it receives from any of
Chaparral, Delaware, CCNB, or their respective shareholders, officers, directors
or agents, in the course of its review of Chaparral, Delaware or CCNB. BOKF will
not use any of the Confidential Information except in connection with this
Agreement. If this Agreement is terminated for any reason whatsoever, BOKF and
BOKSub will promptly return to Chaparral, Delaware or CCNB, as the case may be,
all tangible embodiments (and all copies) of the Confidential Information which
are in its possession, and will not at any time use any Confidential Information
for any business purpose or disclose it to any third party. Any information
provided to BOKF by Chaparral, Delaware or CCNB shall not be deemed to be
Confidential Information if: (i) it was in BOKF's lawful possession or within
BOKF's knowledge at the time of disclosure; (ii) at the time of disclosure, it
was in the public domain; (iii) after Chaparral's disclosure, it becomes,
through no act or omission on BOKF's part, in the public domain; or (iv) it was
lawfully and independently obtained by BOKF from a third party who was not under
an obligation of confidentiality.
Section 5.2. Operation of the Business of Chaparral. Chaparral agrees
that from the date hereof to the Effective Time, except as contemplated by this
Agreement or to the extent that BOKF shall otherwise consent (which consent
shall not be unreasonably withheld),
(a) Chaparral will operate its business substantially as presently
operated and only in the ordinary course, and, consistent with such operation,
it will use its reasonable best efforts to preserve intact its present business
organization and its relationships with persons having business dealings with
it.
(b) Chaparral will maintain and keep its properties in as good repair
and condition as at present, except for depreciation due to ordinary wear and
tear and damage due to casualty, maintain in full force and effect insurance
comparable in amount and scope of coverage to that now maintained, perform all
its obligations under contracts, leases and documents relating to or affecting
its assets, properties and business, and fully comply with and perform all
material obligations and duties imposed upon it by applicable laws and
governmental rules, regulations and orders imposed by governmental authorities.
(c) Except as expressly permitted by subsections (e), (f) and (g)
below, Chaparral will not, other than in the ordinary course of business and
consistent with Chaparral's or CCNB's prior practices, (i) grant any material
salary increase to any officer or employee or enter into any new bonus,
incentive compensation, deferred compensation, profit sharing, retirement,
pension, group insurance or other benefit plan or any new employment or
consulting agreement; (ii) create or otherwise become liable with respect to any
indebtedness for money borrowed or purchase money indebtedness; (iii) make or
allow any amendment of its Articles of Association, Articles of Incorporation or
Bylaws; (iv) issue or contract to issue any shares of Chaparral Common or
securities exchangeable for or convertible into Chaparral Common, except in
connection with the exercise of the Stock Options; (v) purchase any shares of
Chaparral Common; (vi) enter into or assume any material contract or obligation;
(vii) incur a lien on any of its properties either real or personal; (viii) make
any substantial renovation of any of its properties or enter into any lease or
agreement involving any substantial obligation; or (ix) waive any right of
substantial value.
(d) From January 1, 1998, until the Closing Date, Chaparral will not
pay total dividends exceeding the amount of earnings at Chaparral, on a
consolidated basis, during such period, and Chaparral will not permit CCNB to
pay any dividend that would cause CCNB to no longer be "well capitalized" under
applicable federal capital adequacy guidelines.
(e) Notwithstanding anything in this Agreement to the contrary, (i) the
Stock Options may be exercised and Chaparral may issue Chaparral Common in
connection therewith and otherwise perform its obligations thereunder; (ii) the
Stock Option exercise dates may be extended in the discretion of Chaparral
subject to the provisions of this Agreement respecting the exercise of such
Stock Options in connection with the consummation of the Merger; and (iii) upon
the exercise of the Stock Options, Chaparral may make bonus payments in an
aggregate amount not to exceed $650,000 to option holders who have exercised
Stock Options within a period of one year prior to the Closing Date.
(f) Notwithstanding anything in this Agreement to the contrary,
Chaparral may pay bonuses (in addition to any bonuses paid pursuant to Sections
5.2(e) and 5.2(g)) in amounts not to exceed $175,000 for 1998 and not to exceed
$218,750 for 1999.
(g) Notwithstanding anything in this Agreement to the contrary,
Chaparral may commit to pay to certain key employees of Chaparral or CCNB (who
do not enter into employment or noncompetition agreements) an aggregate amount
of $32,500 in consideration of such employees entering into retention agreements
whereby such employees would continue their employment with Chaparral or CCNB at
least through the earlier of (i) June 30, 2000 or (ii) the date of the data
processing conversion of CCNB to the data processing system used by Bank of
Texas, National Association ("BOT").
Section 5.3. Regulatory Approvals and Cooperation.
(a) BOKF and BOKSub shall promptly, but in no event later than twenty
(20) days after the date of this Agreement, file or cause to be filed
applications to fulfill all governmental, regulatory and other requirements
(including, without limitation, obtaining the approval of the OCC, the FDIC, the
Fed, SEC and/or any other governmental entity having jurisdiction over
Chaparral, Delaware, CCNB or BOKF and pay all fees and expenses associated
therewith) required by BOKF or BOKSub for the completion of the transaction
contemplated by this Agreement; and promptly furnish Chaparral with copies of
all such regulatory filings.
(b) Chaparral shall take all action necessary and fully cooperate in
good faith with BOKF and BOKSub to bring about the Merger contemplated by this
Agreement as soon as practicable. Chaparral will give any notices to third
parties, and Chaparral will use its best efforts to obtain any third party
consents, that BOKF may reasonably request in connection with the consummation
of the Merger.
Section 5.4. Public Disclosure. None of BOKF, BOKSub, Chaparral, nor
any representative of said parties, will make any public disclosure concerning
this Agreement or the Merger contemplated herein without the mutual consent of
each of the other parties hereto to the timing and content of the disclosure;
provided, however, the parties hereto may make any disclosure (i) necessary to
maintain compliance with applicable federal or state laws or regulations, (ii)
required in connection with the making of any application necessary to effect
the Merger, or (iii) as contemplated by Section 5.6.
Section 5.6. Shareholder Approval. Chaparral, acting through its Board of
Directors, shall, in accordance with applicable law:
(a) Duly call, give notice of, convene and hold a meeting of its
shareholders on a date mutually selected by BOKF and Chaparral (the
"Shareholders's Meeting") for submission of this Agreement and the Merger for
approval of such shareholders as required by the TBCA, and
(b) Subject to its fiduciary duties to the shareholders of Chaparral,
include in the Proxy Statement (as defined below) the recommendation of its
Board of Directors that the shareholders of Chaparral vote in favor of the
approval and adoption of the Agreement and the Merger and
(c) Cause the Proxy Statement to be mailed to the shareholders of
Chaparral as soon as practicable, and take such other action as is reasonably
necessary to obtain approval of the Agreement and the Merger from its
shareholders. The letter to shareholders, notice of meeting, proxy statement and
form of proxy to be distributed to shareholders in connection with the Merger
and the Merger Agreement shall be in form and substance reasonably satisfactory
to BOKF and are collectively referred to herein as the "Proxy Statement."
Section 5.7. No Solicitation. Prior to the Effective Time, unless this
Agreement is sooner terminated, Chaparral shall not directly or indirectly (i)
solicit or encourage inquiries or proposals with respect to the merger of
Chaparral or the sale of any of the shares of Chaparral Common or other material
asset(s) of Chaparral from any party other than BOKF, or (ii) merge with any
party or sell any of the shares of Chaparral Common or material asset(s) of
Chaparral to any party except as set forth in this Agreement.
Section 5.8. Restrictions on Indebtedness. Chaparral agrees that from
the date hereof to the Effective Time, except as contemplated by this Agreement,
Chaparral shall not incur any indebtedness for borrowed money or incur any
noncurrent indebtedness for the purchase price of any fixed or capital asset, or
make any extension of credit or any loans to, guarantee the obligations of, or
make any additional investments in, any other person, corporation or joint
venture (whether an existing customer or a new customer) except:
(a) Extensions of credit, loans and guarantees (i) less than $300,000
per transaction or (ii) less than $100,000 with existing customers having
existing credit of $300,000 or more made by CCNB in the usual and ordinary
course of its banking business, consistent with prior practices and policies,
provided, however, that the consent of BOKF shall be deemed to have been given
unless earlier given or denied in writing (i) with respect to any loan presented
at a regularly scheduled meeting of CCNB's Executive Loan Committee, at the
later of 3:00 p.m. on the business day of such meeting or the adjournment of
such meeting, provided that all information provided to the members of CCNB's
Executive Loan Committee with respect to such loan is delivered to BOKF at the
same time it is delivered to such committee members, and (ii) with respect to
all other loans, at the close of business on the next business day after BOKF's
consent is requested and all information relating to the making, renewal or
alteration of such loan is furnished to BOKF.
(b) Legal investments by CCNB in the usual and ordinary course of its
banking business consistent with prior practices and policies.
(c) Borrowings from the Federal Home Loan Bank, the Federal Reserve
Bank, deposit liabilities, and federal funds transactions by CCNB in the
ordinary course of business consistent with past practices.
Section 5.9 Audited Financial Statements. Within five (5) business days
after receipt thereof from Chaparral's auditors, but in no event later than
March 31, 1999, Chaparral shall furnish BOKF with audited financial statements
of Chaparral as of December 31, 1998.
ARTICLE VI
CONDITIONS OF MERGER - BOKF AND BOKSUB
The obligations of BOKF and BOKSub to close the transactions
contemplated by this Agreement are subject to the satisfaction of the following
conditions, unless waived by BOKF and BOKSub.
Section 6.1. Representations and Warranties. The representations and
warranties of Chaparral set forth in Article II hereof shall be true and correct
in all material respects as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date, except as otherwise provided
or permitted by this Agreement, and BOKF shall have received a certificate,
executed by the President of Chaparral to that effect.
Section 6.2. Performance of Obligations of Chaparral. Chaparral shall
have performed all obligations and agreements required to be performed by it
under this Agreement in all material respects prior to or at the Closing.
Section 6.3. Authorization of Merger. All action necessary to authorize
the execution, delivery and performance of this Agreement by Chaparral and the
consummation of the transactions contemplated hereby shall have been duly and
validly taken by the Board of Directors of Chaparral, and Chaparral shall have
full power and right to merge on the terms provided herein. All action necessary
to authorize and consummate the Merger contemplated hereby shall have been duly
and validly taken by the shareholders of Chaparral and holders of not more than
10% of the Chaparral Common either (i) file with Chaparral prior to the
Shareholders' Meeting a notice of their intent to exercise their right to
dissent to the Merger or (ii) vote against the Merger at the Shareholders'
Meeting.
ARTICLE VII
CONDITIONS OF MERGER - CHAPARRAL
The obligation of Chaparral to close the transactions contemplated by
this Agreement is subject to the satisfaction of the following conditions,
unless waived by Chaparral:
Section 7.1. Representations and Warranties. The representations and
warranties of BOKF and BOKSub set forth in Article III and Article IV hereof,
respectively, shall be true and correct in all material respects as of the date
of this Agreement and as of the Closing Date as though made on and as of the
Closing Date, except as otherwise provided or permitted by this Agreement, and
Chaparral shall have received a certificate, executed by the Presidents of BOKF
and BOKSub to that effect.
Section 7.2. Performance of Obligations of BOKF. BOKF and BOKSub shall
have performed all obligations and agreements required to be performed by it
under this Agreement in all material respects prior to or at the Closing.
Section 7.3. Authorization of Merger by BOKF and BOKSub. All action
necessary to authorize the execution, delivery and performance of this Agreement
by BOKF and BOKSub and the consummation of the Merger contemplated hereby shall
have been duly and validly taken by the Boards of Directors and shareholders of
BOKF and BOKSub, respectively, and BOKSub and Chaparral shall have full power
and right to merge on the terms provided herein.
Section 7.4. Authorization of Merger by Chaparral. All action necessary
to authorize and consummate the Merger contemplated hereby shall have been duly
and validly taken by the shareholders of Chaparral and holders of not more than
one third of the Chaparral Common either (i) file with Chaparral prior to the
Shareholders' Meeting a notice of their intent to exercise their right to
dissent to the Merger or (ii) vote against the Merger at the Shareholders'
Meeting.
ARTICLE VIII
CONDITIONS TO RESPECTIVE OBLIGATIONS OF BOKF AND CHAPARRAL
The respective obligations of BOKF and Chaparral under this Agreement
are, at their respective options, subject to the further condition that:
Section 8.1. Governmental Approvals. The parties hereto shall have
received approval of the Merger and issuance of the BOKF Notes as contemplated
by this Agreement from all necessary governmental agencies and authorities,
including, to the extent required, the Fed, the OCC, the FDIC and the SEC, and
such approvals shall not have been contested by any Federal or state
governmental authority nor by any other third party by formal proceeding, and
none of such approvals or consents shall be subject to any terms or conditions
that are unreasonable or unduly burdensome in the opinion of the party hereto
which is obliged to discharge or comply with such term or condition, and all
applicable regulatory waiting periods have expired. It is understood that if any
contest as aforesaid is brought by formal proceedings, BOKF may, but shall not
be obligated to, answer and defend such contest.
Section 8.2. Documents. Each party hereto shall have received all
documents required to be received from the other party on or prior to the
Closing Date, including those set forth in Section 9.3 hereof, all in form and
substance reasonably satisfactory to the receiving party.
ARTICLE IX
CLOSING
Section 9.1. Closing. The closing (the "Closing") for the consummation
of the transactions contemplated by this Agreement shall take place at the
offices of Jenkens & Xxxxxxxxx, a Professional Corporation, 0000 Xxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000 at 10:00 a.m. Central Time on the Closing Date
described in Section 9.2, unless another date or place is agreed to in writing
by the parties hereto.
Section 9.2. Closing Date; Effective Time. The Closing shall take place
on a date (the "Closing Date") mutually agreeable to BOKF and Chaparral, which
date shall be within ten (10) days after the receipt of all necessary
regulatory, corporate and other approvals and the expiration of any mandatory
waiting periods, provided, however, that the Closing Date shall not occur prior
to April 2, 1999 or later than July 2, 1999. Subject to the terms and conditions
set forth herein, including receipt of all regulatory approvals, the Merger
shall be effective upon the later of the filing of, or the date and time
specified in, the Certificate of Merger relating to the Merger and filed with
the Secretary of State of the State of Texas (the "Effective Time"), and the
parties shall use their best efforts to cause the Effective Time to occur on the
Closing Date.
Section 9.3. Closing Deliveries.
(a) At the Closing, Chaparral shall deliver to BOKF and BOKSub:
(i) a certified copy of the Articles of Incorporation or
Association of Chaparral, Delaware and CCNB;
(ii) a certificate, signed by an appropriate officer of
Chaparral, acting solely in his capacity as an officer of Chaparral, stating
that (A) each of the representations and warranties contained in Article II is
true and correct in all material respects at the time of the Closing with the
same force and effect as if such representations and warranties had been made at
Closing, and (B) all of the conditions set forth in Article VII have been
satisfied or waived as provided therein;
(iii) a certified copy of the resolutions of Chaparral's Board
of Directors and shareholders, as required for valid approval of the execution
of this Agreement and the consummation of the Merger and the other transactions
contemplated hereby;
(iv) good standing and existence certificates, dated a recent
date, duly certifying the existence and good standing of Chaparral in Texas;
(v) executed employment agreements for Xxxxxxx X. Xxxxx, Xx.,
and Xxxx X. Xxxxxxxxx, in substantially the form as attached hereto as Exhibit
"C" and Exhibit "D", respectively;
(vi) an executed noncompetition agreement for Xxxxxxx X.
Xxxxxxxx in substantially the form as attached hereto as Exhibit "E"; and
(vii) an opinion of the accounting firm of Payne, Faulkner,
Xxxxx & Xxxxx, P.C., or another accounting firm mutually agreed to by Chaparral
and BOKF, in a form reasonably acceptable to BOKF, opining that no payment, of
which such accounting firm has knowledge, to any employee of Chaparral, Delaware
or CCNB is an excess parachute payment within the meaning of Section 280G of the
Code.
(b) At the Closing, BOKF shall deliver to Chaparral:
(i) certified copies of the Articles of Incorporation of
BOKF and BOKSub;
(ii) a certificate signed by an appropriate officer of BOKF
and BOKSub stating that (A) each of the representations and warranties contained
in Article III and IV is true and correct in all material respects at the time
of the Closing with the same force and effect as if such representations and
warranties have been made at Closing and (B) all of the conditions set forth in
Article VI have been satisfied;
(ii) a certified copy of the resolutions of BOKF's Board of
Directors authorizing the execution of this Agreement and the consummation of
the transactions contemplated hereby;
(iii) a certified copy of the resolutions of BOKSub's Board of
Directors and shareholder, as required for valid approval of the execution of
this Agreement and the consummation of the transactions contemplated hereby; and
(iv) good standing and existence certificates, dated a recent
date, duly certifying the existence and good standing of Chaparral in Texas;
(v) executed employment agreements for Xxxxxxx X. Xxxxx, Xx.,
and Xxxx X. Xxxxxxxxx, in substantially the form as attached hereto as Exhibit
"C" and Exhibit "D", respectively;
(vi) an executed noncompetition agreement for Xxxxxxx X.
Xxxxxxxx in substantially the form as attached hereto as Exhibit "E"; and
(vii) evidence of the approval of all regulatory authorities
required for the consummation of the Merger and the transactions contemplated by
this Agreement.
ARTICLE X
TERMINATION
Section 10.1. Termination. This Agreement may be terminated at any time
prior to the Effective Time by:
(a) The mutual consent of the respective Boards of Directors of BOKF
and Chaparral;
(b) BOKF if the conditions set forth in Article VI hereof shall not
have been met;
(c) Chaparral if the conditions set forth in Article VII hereof shall
not have been met;
(d) BOKF if the conditions set forth in Article VIII hereof shall not
have been met through no fault of, or reason attributable to, BOKF;
(e) Chaparral if the conditions set forth in Article VIII hereof shall
not have been met through no fault of, or reason attributable to, Chaparral,
Delaware, or CCNB; or
(f) Chaparral in the event the Closing has not occurred by July 2,
1999, or such other date as the parties hereto agree in writing.
Any party desiring to terminate this Agreement pursuant to any of the
foregoing provisions shall give notice of such termination to the other party in
accordance with Section 12.2 hereof.
Section 10.2. Effect of Termination. Without limiting any other relief
to which either party hereto may be entitled for breach of this Agreement, in
the event of the termination and abandonment of this Agreement pursuant to the
provisions of Section 10.1 hereof, no party to this Agreement shall have any
further liability or obligation in respect of this Agreement; provided, however,
that the confidentiality provisions of Section 5.1, above, shall survive
termination. Any such termination that occurs as a result of a breach of a
representation or warranty made in this Agreement that, at the time made, was
not known to the party making such representation to be untrue, or any such
termination that through no fault of any of the parties to this Agreement shall
be without liability to any of the parties hereto, but if such termination
results from the willful misrepresentation of a party or the wilful failure of a
party to fulfill a condition to the performance of the obligation of the other
party to this Agreement, such party shall be fully liable for any and all
damages, costs and expenses (including reasonable attorney's fees) sustained or
incurred by the other party or parties as a result of such failure or breach.
Section 10.3. Waiver and Amendment. Any term or provision of this
Agreement, except statutory requirements and requisite approvals of regulatory
authorities, may be waived at any time by the party which is entitled to the
benefits thereof and this Agreement may be amended or supplemented at any time
by the mutual agreement of BOKF, BOKSub and Chaparral through action taken by
their respective Boards of Directors.
ARTICLE XI
ADDITIONAL COVENANTS
Section 11.1. No Survival. None of the representations, covenants,
warranties and agreements contained in this Agreement shall survive the Closing
and the Effective Time except (i) in accordance with Section 11.2, and (ii) this
Agreement shall continue and remain in full force and effect regarding the
covenants of BOKF that by their terms are to be performed after the Effective
Time (including without limitation the provisions in Section 1.5 concerning
payment of the Merger Consideration and Sections 11.2, 11.3, 11.4 and 11.5) for
the period of the applicable statute of limitations.
Section 11.2. Escrow. At the Effective Time, BOKF shall establish an
escrow account (the "Representation Escrow") with the Escrow Agent. The
Representation Escrow shall be governed by an escrow agreement, the form of
which is attached hereto as AExhibit "F" (the ARepresentation Escrow
"Agreement"), which shall provide as follows:
(a) At the Effective Time, BOKF shall deposit the principal amount of
$400,000 into the Representation Escrow, which, together with (i) all interest
earned thereon, but reduced by (ii) any Representation Escrow Allowed Claim (as
hereafter defined) is referred to herein as the "Representation Escrow Funds."
(b) The Representation Escrow Funds shall be invested in a certificate
of deposit at CCNB maturing on March 31, 2000, at the rate and on the terms and
conditions generally offered by CCNB for certificates of deposit of comparable
size and duration, and upon maturity as necessary, in three-month certificates
of deposit at CCNB at the rates and on terms and conditions generally offered by
CCNB for certificates of comparable size and duration at each renewal date,
provided that any penalty for early withdrawal of such funds will either be
waived by CCNB or borne by BOKF.
(c) The representations, warranties, covenants and agreements of
Chaparral contained in this Agreement shall survive the Closing, and BOKF shall
be indemnified and held harmless from any and all losses, to be decreased at a
rate of thirty-five percent (35%) to account for all federal and state taxes,
arising from any material breach by Chaparral of any such representations,
warranties, covenants and agreements (collectively, "Losses"), provided that (i)
written notice of such Losses must be given to Chaparral on or before Xxxxx 00,
0000, (xx) the sole remedy available to BOKF for any Losses shall be limited
solely to a claim against the Representation Escrow Funds, (iii) all payments,
if any, to be made in respect of any Losses shall be made solely from the
Representation Escrow Funds, (iv) the Chaparral shareholders shall have no
obligations or liability for any such Losses except to the extent of the
Representation Escrow Funds, and (v) no claim shall be made for any Losses
unless and until the aggregate amount of all Losses exceeds $25,000.
(d) In the event BOKF makes no claim for any Losses on or before March
31, 2000, the Representation Escrow Agreement shall terminate and the Escrow
Agent shall, on or before April 15, 2000, distribute the Representation Escrow
Funds on a pro rata basis to the holders of the Chaparral Common as of the
Effective Time.
(e) In the event BOKF makes a claim for any Losses on or before March
31, 2000, the Escrow Agent shall (i) on or before April 15, 2000, distribute on
a pro rata basis to the holders of the Chaparral Common as of the Effective Time
an amount equal to the Representation Escrow Funds less the amount of all Losses
claimed by BOKF, and (ii) continue to hold and invest the remaining
Representation Escrow Funds until such claim is resolved by (i) the mutual
agreement of a majority of the Agents (as defined below) and BOKF, or (ii) a
final adjudication determining the merits of the BOKF claim, at which time the
Representation Escrow Agreement shall terminate, the Escrow Agent shall pay the
claim of BOKF as mutually agreed or finally adjudicated (an "Representation
Escrow Allowed Claim") and the Escrow Agent shall distribute any remaining
Representation Escrow Funds on a pro rata basis to the holders of the Chaparral
Common as of the Effective Time.
(f) The rights of the holders of the Chaparral Common in the
Representation Escrow and the Representation Escrow Funds shall not be
assignable or transferable except by operation of law or by intestacy and will
not be evidenced by any certificate or other interest.
(g) The persons who are members of the Board of Directors of Chaparral
immediately prior to the Closing shall collectively serve as agents, acting by a
majority vote in the same manner as a board of directors acting under the TBCA,
for the holders of the Chaparral Common as of the Effective Time and shall have
full authority to act for and on behalf thereof in the administration of the
provisions of this Section (the AAgents@). The actions of the Agents shall be
deemed actions taken by them as members of the Board of Directors of Chaparral
prior to the Closing.
(h) BOKF shall pay the fees and costs of the Escrow Agent with respect
to the Representation Escrow.
Section 11.3. Indemnification; Insurance.
(a) From and after the Effective Time, BOKF (the "Indemnifying Party")
shall indemnify and hold harmless each present and former director, officer and
employee of Chaparral and CCNB determined as of the Effective Time (the
"Indemnified Parties") against any costs or expenses (including reasonably
attorneys' fees), judgments, fines, losses, claims, damages or liabilities
(collectively, "Costs") incurred in connection with any claim, action, suit,
proceeding or investigation, whether civil or criminal, administrative or
investigative, arising out of matters existing or occurring at or prior to the
Effective Time, whether asserted or claimed prior to, at or after the Effective
Time to the fullest extent to which such Indemnified Parties were entitled under
the Articles of Incorporation, Certificate of Incorporation, Articles of
Association and Bylaws of Chaparral, Delaware and CCNB.
(b) Any Indemnified Party wishing to claim indemnification under this
section, upon learning of any such claim, action, suit, proceeding or
investigation, shall promptly notify the Indemnifying Party, but the failure to
so notify shall not relieve the indemnifying Party of any liability it may have
to such Indemnified Party if such failure does not materially prejudice the
Indemnifying Party. In the event of any such claim, action, suit, proceeding or
investigation (whether arising before or after the Effective Time), (i) the
Indemnifying Party shall have the right to assume the defense thereof and the
Indemnifying Party shall not be liable to such Indemnified Parties for any legal
expenses of other counsel or any other expenses subsequently incurred by such
Indemnified Parties in connection with the defense thereof, except that if the
Indemnifying Party elects not to assume such defense or counsel for the
Indemnified Party and the Indemnified Parties, the Indemnified Parties may
retain counsel which is reasonably satisfactory to the Indemnifying Party, and
the Indemnifying Party shall pay, promptly as statements therefor are received,
the reasonable fees and expenses of such counsel for the Indemnified Parties
(which may not exceed one firm in any jurisdiction unless the use of one counsel
for such Indemnified Parties would present such counsel with a conflict of
interest), (ii) the Indemnified Parties will cooperate in the defense of any
such matter and (iii) the Indemnifying Party shall not be liable for any
settlement effected without its prior written consent.
(c) BOKF shall maintain its existing policy of directors and officers
liability insurance (or comparable coverage) for a period of not less than three
years after the Effective Time; which policy shall be amended, however, to
include the directors and officers of Chaparral, Delaware and CCNB, and which
shall be a "claims made" policy providing coverage for (among other things) acts
or omissions occurring prior to the Effective Time.
(d) In the event that BOKF or any of its respective 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 all or substantially all of its properties and assets
to any person, then, and in each such case, the successors and assigns of such
entity shall assume the obligations set forth in this Agreement, which
obligations are expressly intended to be for the irrevocable benefit of, and
shall be enforceable by, each director and officer covered hereby.
Section 11.4. BOT Director Position. As soon as practicable after the
Effective Time, BOKF shall cause (pursuant to a voting agreement with its
controlling shareholder or otherwise) the Chairman of the Board of Chaparral to
be elected as a member of the Board of Directors of BOT. BOKF shall continue to
cause such person to be nominated and elected as a director of BOT for a period
of two years after the Effective Time. If for any reason such person cannot or
will not serve as a director of BOKF, BOKF and the board of directors of
Chaparral shall mutually agree to designate another person who was on the Board
of Directors of Chaparral as of the Effective Time to fill such position for
such period of time.
Section 11.5. Severance Plan. Prior to the Closing Date, CCNB will
enter into a severance policy providing for the payment to any employee who is
involuntarily dismissed within the first 180 days after the Closing Date, an
amount equal to one week=s pay for each year of service or portion thereof by
such employee, and BOKF will honor such policy after the Closing with respect to
the employees of CCNB as of the Closing Date.
Section 11.6. Employee Benefits. BOKF presently intends that, after the
Merger, BOKF and Chaparral will not make additional contributions to the
employee benefit plans of Chaparral. Each employee of Chaparral or any direct or
indirect subsidiary of Chaparral who remains an employee of Chaparral or BOKF or
any direct or indirect subsidiary of Chaparral or BOKF immediately after the
Effective Time (the "Continuing Employees") will be entitled to participate in
the employee benefit plans and programs maintained for employees of BOKF and its
affiliates, in accordance with the respective terms of such plans and programs,
and BOKF shall take all actions necessary or appropriate to facilitate coverage
of the Continuing Employees in such plans and programs from and after the
Closing Date, subject to the following:
(a) Each Continuing Employee will be entitled to credit for prior
service with Chaparral for all purposes under the employee welfare benefit plans
and other employee benefit plans and programs (other than those described in
subsection B. below and any stock option plans) sponsored by BOKF or its
affiliates. Any preexisting condition exclusion applicable to such plans and
programs shall be waived with respect to any Continuing Employee. For purposes
of determining each Continuing Employee's benefit for the year in which the
Merger occurs under the BOKF vacation program, any vacation taken by a
Continuing Employee preceding the Closing Date for the year in which the Merger
occurs will be deducted from the total BOKF vacation benefit available to such
employee for such year. For purposes of determining the number of vacation days
available with respect to each Continuing Employee for the year in which the
Merger occurs, that the number of vacation days for such year shall be
determined under Chaparral's vacation policies in effect as of January 1, 1999.
(b) Each Continuing Employee shall be entitled to credit for past
service with Chaparral or any of its direct or indirect subsidiaries for the
purpose of satisfying any eligibility or vesting periods applicable to the BOKF
employee pension benefit plans that are subject to Section 401(a) and 501(a) of
the Code. Notwithstanding the foregoing, BOKF shall not grant any prior years of
service credit to employees of Chaparral, with respect to any defined benefit
plans sponsored (or contributed to) by BOKF; instead, Continuing Employees shall
be treated as newly hired employees of BOKF as of the date following the Closing
Date for purposes of determining eligibility, vesting and benefit accruals
thereunder.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Entire Agreement. This Agreement contains the entire
agreement among BOKF, BOKSub and Chaparral with respect to the Merger, and
supersedes all prior agreements and understandings relating to the subject
matter of this Agreement.
Section 12.2. Notices. All notices or other communications that are
required or permitted hereunder shall be in writing and shall be deemed to have
been given or made on the date of delivery, in the case of hand delivery, or
three (3) business days after deposit in the United States Registered Mail,
postage prepaid, or upon receipt if transmitted by facsimile telecopy or any
other means, addressed (in any case) as follows:
If to BOKF or BOKSub:
BOK Financial Corporation
X.X. Xxx 0000
Xxxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
and
Bank of Texas, N.A.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Mr. C. Xxxx Xxxx, Jr., President
Telecopy No.: (000) 000-0000
With a Copy To:
Xxxxxxxx Xxxxxxx, Lawyers
Old City Hall
000 Xxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to Chaparral:
Chaparral Bancshares, Inc.
000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
With a Copy To:
Jenkens & Xxxxxxxxx,
a Professional Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
and Xxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Section 12.3. Counterparts. This Agreement may be executed in any
number of counterparts, and each such counterpart hereof, including any
facsimile copy thereof, shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement.
Section 12.4. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF TEXAS.
Section 12.5. Venue. ALL ACTIONS OR PROCEEDINGS WITH RESPECT TO,
ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH, OUT OF, RELATED TO OR FROM
THIS AGREEMENT OR ANY OF THE OTHER DOCUMENTS SHALL BE LITIGATED IN COURTS HAVING
SITUS IN DALLAS, DALLAS COUNTY, TEXAS, AND EACH PARTY HERETO HEREBY SUBMITS TO
THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH ACTION AND HEREBY WAIVES ANY
RIGHTS IT MAY HAVE TO TRANSFER OR CHANGE THE JURISDICTION OR VENUE OF ANY
LITIGATION BROUGHT AGAINST IT IN ACCORDANCE WITH THIS SECTION.
Section 12.6. Additional Documentation. As soon as practicable after
the Effective Time, the parties hereto shall execute and file such documents and
take such other actions as may be necessary or appropriate to effect the
transactions contemplated by this Agreement.
Section 12.7. Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, and the application
of such provision to persons or circumstances other than those to which it is
held invalid and unenforceable, shall not be affected thereby and each provision
of this Agreement shall be valid and enforced to the fullest extent permitted by
law.
Section 12.8. Expenses. Each party shall bear and pay for all of its
own costs and expenses incurred in connection with this Agreement or the Merger,
including respective fees and expenses of financial consultants, accountants and
counsel.
Section 12.9. Exhibits. The exhibits and schedules attached to this
agreement, together with all documents incorporated by reference therein, form
an integral part of this Agreement and are hereby incorporated into this
Agreement wherever reference is made to them to the same extent as if they were
set out in full at the point in which the reference is made. Items disclosed on
any Exhibit or Schedule to this Agreement shall be deemed to be disclosed on all
Exhibits or Schedules hereto and the failure of Chaparral to list any item on
one or more Exhibits or Schedules shall not give rise to a claim by BOKF or
BOKSub.
Section 12.10. Costs of Litigation. In any action brought by a party
hereto to enforce the obligations of any other party hereto, the prevailing
party shall be entitled to collect from the opposing party to such action such
party's reasonable litigation costs and attorneys fees and expenses (including
court costs, reasonable fees of accountants and experts, and other expenses
incidental to the litigation).
FINIDAL:72777. 33131-00001
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date and year first above written.
BOK FINANCIAL CORPORATION
By: /S/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, Senior Vice President
BOKF MERGER CORPORATION NUMBER NINE
By: /s/ X.X. Xxxx
C. Xxxx Xxxx, Jr., President
CHAPARRAL BANCSHARES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx, Chairman of the Board
Schedule 1.7
CCFC Assets
as of February 16, 1999
All loans on the books of CCNB beginning with the numbers 20001 through
20018, 81329 through 82352 and 118193, 818740 and 4001695, totaling
approximately 660 loans.
Principal Balance: $4,793,834.07
Less unearned discount (618,949.49)
Book Value $3,965,688.58
As of this date, the Book Value of the CCFC Assets is equivalent to the
Tax Basis of such assets.
Schedule 2.2(a)
Shareholder List - Available Upon Request
Schedule 2.2(b)
List of Stock Options - Available Upon Request
Schedule 2.15
Employment Contracts and Employee Benefits
Employment Contracts. There are no existing employment contracts with
the employees of Chaparral, Delaware, or CCNB. CCNB will enter into employment
agreements with Xxxxxxx X. Xxxxx, Xx., and Xxxx X. Xxxxxxxxx, in substantially
the form as attached hereto as Exhibit "C" and Exhibit "D", respectively;
pursuant to Section 9.3 of this Agreement.
Employee Benefits. CCNB provides the following benefits to its employees:
Major Medical, Dental and Vision Insurance
Long-Term Disability Insurance
Accidental Death & Dismemberment Insurance
Life Insurance (up to two times salary, maximum of $200,000)
Vacation Benefits
Simplified Employee Pension Plan with Salary Reduction Option
Share Option Plan
Schedule 2.16
Contracts and Commitments
CCNB has entered into a construction contract with Xxxxx, Inc. for the
construction of CCNB's branch in McKinney, Texas. The balance owing under the
terms of such contract is $336,856. Draws are to be paid as work is completed.
At the request of BOKF, CCNB is currently negotiating an Agreement for
Information Technology Services with Electronic Data Systems Corporation
("EDS"), which agreement is expected to be executed and delivered prior to the
Closing Date.
EXHIBIT "A"
PROMISSORY NOTE
Amount Dallas, Texas Date
$___________ __________, 1999
FOR VALUE RECEIVED, the undersigned, BOK Financial Corporation, an
Oklahoma corporation ("Maker"), hereby promises to pay to the order
of___________________________ ("Holder"), at the address of Holder set forth on
the signature page hereof, or at such other address given to Maker by Holder,
the principal sum of _____________________________ ($______________), together
with interest, as hereinafter described.
This Note has been executed and delivered in connection with that
certain Agreement and Plan of Merger (the "Merger Agreement"), dated February
19, 1999, by and among Maker, BOKF Merger Corporation Number Nine, a Texas
corporation, and Chaparral Bancshares, Inc., a Texas corporation, and represents
all or a portion of the Merger Consideration (as defined in the Merger
Agreement) due to Holder. This Note is an unsecured general obligation of Maker.
Section 1. Interest and Payment.
(a) Prior to the occurrence of a default (hereinafter defined),
interest shall be payable on the outstanding principal balance of this Note at a
rate per annum equal to ____% [the Applicable Federal Rate as defined in the
Internal Revenue Code as in effect on the Closing Date]. Interest on this Note
shall be calculated at a daily rate equal to 1/360 of the annual percentage rate
which this Note bears, subject to the provisions hereof limiting interest to the
Maximum Lawful Rate (as herein defined).
(b) The entire outstanding principal balance of this Note and all
accrued but unpaid interest thereon shall be due and payable in full on January
2, 2000.
(c) After the occurrence of a default, for so long as such default
remains uncured or upon acceleration by Holder following a default, past due
principal, and past due interest, to the extent permitted by law, shall bear
interest at the lesser of (i) Maximum Lawful Rate or (ii) 18%.
(d) Maker shall not be entitled to prepay this Note in full or in part
prior to the maturity date hereof without the prior written consent of Holder.
Section 2. General Provisions.
Whenever any payment shall be due under this Note on a day which is not
a business day, the date on which such payment is due shall be extended to the
next succeeding business day, and such extension of time shall be included in
the computation of the amount of interest then payable.
4
FINIDAL:72935.1 33131-00001
All principal, interest and other sums payable under this Note shall be
paid, not later than two o'clock p.m. (Dallas, Texas time), on the day when due,
in immediately available funds in lawful money of the United States of America.
Any payment under this Note other than in the required amount and in good,
unrestricted U.S. funds immediately available to the holder hereof shall not,
regardless of any receipt or credit issued therefor, constitute payment until
the required amount is actually received by the holder hereof in such funds and
shall be made and accepted subject to the condition that any check or draft may
be handled for collection in accordance with the practice of the collection bank
or banks.
All payments made as scheduled on this Note shall be applied, to the
extent thereof, first to accrued but unpaid interest and the balance to unpaid
principal.
The occurrence of any one of the following shall be a default under
this Note (a "default"):
(a) Maker shall fail to pay when due any principal of or interest
on this Note; or
(b) Maker (1) (i) executes an assignment for the benefit of creditors,
or takes any action in furtherance thereof; or (ii) admits in writing its
inability to pay, or fails to pay, its debts generally as they become due; or
(iii) as a debtor, files a petition, case, proceeding or other action pursuant
to, or voluntarily seeks the benefit or benefits of any debtor relief law, or
takes any action in furtherance thereof; or (iv) seeks the appointment of a
receiver, trustee, custodian or liquidator of any significant portion of its
property; or (v) becomes subject to any cease-and-desist or other order issued
by, or a party to any written agreement or memorandum of understanding with, or
is a recipient of any extraordinary supervisory letter from, any regulatory
agency; or (2) suffers the filing of a petition, case, proceeding or other
action against it as a debtor under any debtor relief law or seeking appointment
of a receiver, trustee, custodian or liquidator of any significant portion of
its other property; or (3) conceals, removes, or permits to be concealed or
removed, any part of its property, with intent to hinder, delay or defraud its
creditors or any of them, or makes or suffers a transfer of any of its property
that may be fraudulent under any bankruptcy, fraudulent conveyance or similar
law; or makes any transfer of its property to or for the benefit of a creditor
at a time when other creditors similarly situated have not been paid; or
(c) There shall occur (i) a change in control of Maker, Chaparral
Bancshares, Inc., or Canyon Creek National Bank; (ii) a sale of all or
substantially all of the assets of any such entity; or (iii) the liquidation or
dissolution of any such entity. For the purpose of this Note, a change of
control shall be deemed to have occurred when and only when those persons and
entities who are presently in control of Maker (within the meaning of Rule 405
of the Securities and Exchange Commission) become no longer in control of Maker
(within the meaning of said Rule 405).
Upon the occurrence of a default, the holder hereof shall have the
right to declare the unpaid principal balance and accrued but unpaid interest on
this Note at once due and payable (and upon such declaration, the same shall be
at once due and payable), and to exercise any rights, powers and remedies
available to Holder under this Note, or at law or in equity.
Neither the failure by the holder hereof to exercise, nor delay by the
holder hereof in exercising, the right to accelerate the maturity of this Note
or any other right, power or remedy upon any default shall be construed as a
waiver of such default or as a waiver of the right to exercise any such right,
power or remedy at any time. No single or partial exercise by the holder hereof
of any right, power or remedy shall exhaust the same or shall preclude any other
or further exercise thereof, and every such right, power or remedy may be
exercised at any time and from time to time. All rights and remedies provided
for in this Note are cumulative of each other and of any and all other rights
and remedies existing at law or in equity, and the holder hereof shall, in
addition to the rights and remedies provided herein, be entitled to avail itself
of all such other rights and remedies as may now or hereafter exist at law or in
equity for the collection of the indebtedness owing hereunder, and the resort to
any right or remedy provided for hereunder or provided for by law or in equity
shall not prevent the concurrent or subsequent employment of any other
appropriate rights or remedies. Without limiting the generality of the foregoing
provisions, the acceptance by the holder hereof from time to time of any payment
under this Note which is past due or which is less than the payment in full of
all amounts due and payable at the time of such payment, shall not (i)
constitute a waiver of or impair or extinguish the rights of the holder hereof
to accelerate the maturity of this Note or to exercise any other right, power or
remedy at the time or at any subsequent time, or nullify any prior exercise of
any such right, power or remedy, or (ii) constitute a waiver of the requirement
of punctual payment and performance, or a novation in any respect.
If any holder of this Note retains an attorney in connection with any
default or at maturity or to collect, enforce or defend this Note in any lawsuit
or in any probate, reorganization, bankruptcy or other proceeding, or if any
holder of this Note sues Maker in connection with this Note, then Maker agrees
to pay to holder, all costs and expenses incurred by such prevailing party in
any such suit or proceeding, including attorneys' fees.
It is the intent of Holder and Maker to conform to and contract in
strict compliance with applicable usury law from time to time in effect. All
agreements between Holder or any other holder hereof and Maker are hereby
limited by the provisions of this paragraph which shall override and control all
such agreements, whether now existing or hereafter arising and whether written
or oral. In no way, nor in any event or contingency (including but not limited
to prepayment, default, demand for payment, or acceleration of the maturity of
any obligation), shall the rate of interest taken, reserved, contracted for,
charged or received under this Note or otherwise, exceed the maximum rate of
interest permitted by applicable law (the "Maximum Lawful Rate"). If, from any
possible construction of any document, interest would otherwise be payable in
excess of the Maximum Lawful Rate, any such construction shall be subject to the
provisions of this paragraph and such document shall be automatically reformed
and the interest payable shall be automatically reduced to the Maximum Lawful
Rate, without the necessity of execution of any amendment or new document. If
the holder hereof shall ever receive anything of value which is characterized as
interest under applicable law and which would apart from this provision be in
excess of the Maximum Lawful Rate, an amount equal to the amount which would
have been excessive interest shall, without penalty, be applied to the reduction
of the principal amount owing on the indebtedness evidenced hereby in the
inverse order of its maturity and not to the payment of interest, or refunded to
Maker or the other payor thereof if and to the extent such amount which would
have been excessive exceeds such unpaid principal. The right to accelerate the
maturity of this Note does not include the right to accelerate any interest that
has not otherwise accrued on the date of such acceleration, and the holder
hereof does not intend to charge or receive any unearned interest in the event
of acceleration. All interest paid or agreed to be paid to the holder hereof
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full stated term (including any renewal or
extension) of such indebtedness so that the amount of interest on account of
such indebtedness does not exceed the maximum nonusurious amount permitted by
applicable law. As used in this paragraph, the term "applicable law" shall mean
the laws of the State of Texas or the federal laws of the United States,
whichever laws allow the greater interest, as such laws now exist or may be
changed or amended or come into effect in the future.
Maker and all sureties, endorsers, guarantors and any other party now
or hereafter liable for the payment of this Note in whole or in part, hereby
severally waive demand, presentment for payment, notice of dishonor and of
nonpayment, protest, notice of protest, notice of intent to accelerate, notice
of acceleration and all other notices of any kind.
This Note may not be changed, amended or modified except in a writing
expressly intended for such purpose and executed by the party against whom
enforcement of the change, amendment or modification is sought.
All of the covenants, stipulations, promises, and agreements contained
in this Note by or on behalf of Maker shall bind its successors and assigns,
whether so expressed or not.
THIS NOTE, AND ITS VALIDITY, ENFORCEMENT AND INTERPRETATION, SHALL BE
GOVERNED BY TEXAS LAW (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND
APPLICABLE UNITED STATES FEDERAL LAW.
Time shall be of the essence in this Note with respect to all of
Maker's obligations hereunder.
THIS NOTE REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, Maker has duly executed this Note to be effective
as of the day and year first above written.
MAKER:
ADDRESS OF HOLDER: BOK FINANCIAL CORPORATION,
an Oklahoma corporation
-------------------------
_________________________ By: _______________________________
Name:
_________________________ Title:
EXHIBIT "B"
ESCROW AGREEMENT
This ESCROW AGREEMENT has been executed this ____ day of
_______________, 1999, by and between BOK Financial Corporation ("BOKF"), Canyon
Creek Financial Corporation ("CCFC"), and Bank of Texas Trust Company, National
Association (the "Escrow Agent").
BOKF has deposited in escrow with the Escrow Agent an amount equal to
the Aggregate Tax Basis of the CCFC Assets pursuant to that certain Agreement
and Plan of Merger dated as of February 19, 1999, among BOKF, BOKF Merger
Corporation Number Nine, and Chaparral Bancshares, Inc. (the "Merger
Agreement"). The parties agree that this escrow shall be administered in
accordance with Section 1.7 of the Merger Agreement, a true and correct copy of
which is attached hereto and incorporated herein by this reference. BOKF and
CCFC (as defined in Section 1.7 of the Merger Agreement) shall jointly provide
all notices to the Escrow Agent required by Section 1.7 of the Merger Agreement
to fulfil the terms and conditions of the Escrow Account, and the Escrow Agent
shall act only pursuant to the joint written instructions of BOKF and CCFC.
The parties to this Escrow Agreement agree that the following
provisions shall control with respect to the rights duties, liabilities,
privileges and immunities of the Escrow Agent.
(a) The Escrow Agent is not a party to, and is not bound by, or charged
with notice of, any agreement out of which this escrow may arise.
(b) The Escrow Agent acts hereunder as a depository only, and is not
responsible or liable in any manner whatever for the sufficiency, correctness,
genuineness or validity of the subject matter of the escrow, or any part
thereof, or for the form or execution thereof, or for the identity or authority
of any person executing or depositing it. The Escrow Agent will not render
investment advice with respect to the subject matter of this escrow.
(c) In the event the Escrow Agent becomes involved in litigation in
connection with this escrow, the undersigned jointly and severally agree to
indemnify and save the Escrow Agent harmless from all loss, cost, damages,
expenses and attorney's fees suffered or incurred by the Escrow Agent as a
result thereof.
(d) The Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, certificate, receipt, authorization, power of
attorney or other paper or document which the Escrow Agent in good faith
believes to be genuine and what it purports to be.
(e) The Escrow Agent shall not be liable for anything that it may do or
refrain from doing in connection herewith, except its own gross negligence or
willful misconduct.
(f) The Escrow Agent may consult with legal counsel in the event of any
dispute or question as to the construction of any of the provisions hereof or
its duties hereunder, and it shall incur no liability and shall be fully
protected in acting in accordance with the opinion and instructions of such
counsel.
(g) In the event of any disagreement between any of the parties to this
agreement, or between them or either of any of them and any other person,
resulting in adverse claims or demands being made in connection with the subject
matter of the escrow, or in the event that the Escrow Agent, in good faith, be
in doubt as to what action it should take hereunder, the Escrow Agent may, at
its option, refuse to comply with any claims or demands on it, or refuse to take
any other action hereunder, so long as such disagreement continues or such doubt
exists, and in any such event, the Escrow Agent shall not be or become liable in
any way or to any person for its failure or refusal to act, and the Escrow Agent
shall be entitled to continue so to refrain from acting until (i) the rights of
all parties shall have been fully and finally adjudicated by a court of
competent jurisdiction, or (ii) all differences shall have been adjusted and all
doubt resolved by agreement among all of the interested persons, and the Escrow
Agent shall have been notified thereof in writing signed by all such persons.
The rights of the Escrow Agent under this paragraph are cumulative of all other
rights which it may have by law or otherwise.
Executed in Dallas, Texas this ___ day of __________, 1999.
BOK FINANCIAL CORPORATION
By: ________________________________
Xxxxxxx X. Xxxxxxxx, Chief Executive Officer
CANYON CREEK FINANCIAL CORPORATION
By: ________________________________
Xxxxxxx X. Xxxxxxxx, Chairman of the Board
BANK OF TEXAS TRUST COMPANY,
NATIONAL ASSOCIATION
By: _______________________________
Name:
Title:
EXHIBIT "C"
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made, effective this ___ day
of ______________, 1999, between Canyon Creek National Bank, a national banking
association (the "Bank") and Xxxxxxx X. Xxxxx, Xx., an individual residing in
Richardson, Texas (the "Executive").
The Bank and Executive, in consideration of the promises and covenants
set forth herein (the receipt and adequacy of which is hereby acknowledged) and
intending to be legally bound hereby, agree as follows:
(1) Purpose of This Agreement. The purpose of this agreement is as follows:
(a) The Bank is a national banking association, engaged in the
banking business in Dallas County, Texas.
(b) The Executive is currently serving as President and Chief
Executive Officer of the Bank. The Executive currently has no
written agreement of employment with the Bank, but Executive
is currently receiving salary compensation and other benefits
from the Bank (collectively, the "Current Benefits"). BOK
Financial Corporation ("BOKF") is a bank holding company. BOKF
owns indirectly all of the issued and outstanding capital
stock of Bank of Texas, National Association ("BOT") and BOKF
Merger Corporation Number Nine, a Texas corporation.
(c) Pursuant to an Agreement and Plan of Merger, dated as of
February 19, 1999 (the "Merger Agreement"), among BOKF,
Chaparral Bancshares, Inc. ("Chaparral"), and BOK Merger
Corporation Number Nine, BOKF is acquiring indirect ownership
of the Bank (the "Merger"). Upon and subject to consummation
of the Merger, the Bank desires to retain the services of
Executive, and Executive desires to continue to render
services to the Bank. It is contemplated that in the near
future, the Bank will be merged into BOT (the "Bank Merger").
(d) The purpose of this Agreement is to set forth the terms and
conditions (i) on which the Bank shall, subject to
consummation of the Merger, employ Executive from and after
consummation of the Merger and (ii) on which Executive agrees
not to compete with the Bank.
(2) Employment. The Bank hereby employs Executive, and Executive hereby
agrees to work for the Bank, on the following terms and conditions:
(a) Until the Bank Merger, Executive shall serve as President and
Chief Executive Officer of the Bank, subject to the direction of
the Board of Directors of the Bank and of the Chief Executive
Officer of BOT; provided, that, in the event of a conflict
between the directions being given by the Board of Directors of
the Bank and the Chief Executive Officer of BOT, Executive shall
act in accordance with the directions of the Board of Directors
of the Bank. After consummation of the Bank Merger, the Executive
shall serve as President of Bank of Texas - Richardson (an
unincorporated banking division of the Bank).
(b) Executive shall devote all time and attention reasonably
necessary to the affairs of the Bank and shall serve the Bank
diligently, loyally, and to the best of his ability.
(c) Executive shall serve in such other or additional positions as
an officer and/or director of the Bank as Executive and the
Board of Directors of the Bank may mutually agree or any
affiliate of the Bank as Executive and the Chief Executive
Officer of BOT may mutually agree; provided, however,
Executive's residence and place of work shall remain in Dallas
County or Collin County, Texas.
(d) Notwithstanding anything herein to the contrary, Executive
shall not be precluded from engaging in any charitable, civic,
political or community activity or membership in any
professional organization.
(3) Compensation. As the sole, full and complete compensation to Executive
for the performance of all duties of Executive under this Agreement and
for all services rendered by Executive to the Bank or to any affiliate
of the Bank:
(a) The Bank shall pay to Executive the sum of $150,000 per year
payable in installments in arrears, less usual and customary
payroll deductions for FICA, federal and state withholding,
and the like, at the times and in the manner in effect in
accordance with the usual and customary payroll policies
generally in effect from time to time at the Bank ("Annual
Salary").
(b) The Bank shall pay and provide to Executive pension, thrift,
medical insurance, disability insurance plan benefits, and
other fringe benefits, generally in effect for senior
executive employees of BOKF and its affiliates (the
"Additional Benefits"). The pension benefits provided to BOKF
employees are fully described in the official plan document.
Executive shall be credited with his prior service at
Chaparral and its affiliates in BOKF's 401k plan and in
connection with the Additional Benefits, other than in
connection with BOKF's pension plan.
(c) The Bank may, from time to time in Bank's sole discretion
consistent with the practices generally in effect for senior
executive employees of BOKF and its affiliates, pay or
provide, or agree to pay or provide, Executive a bonus, stock
option, or other incentive or performance based compensation.
All such bonus, stock option or other incentive or performance
based compensation, regardless of its nature (hereinafter
called "Performance Compensation") shall not constitute Annual
Salary.
(d) The Bank shall reimburse Executive for reasonable and
necessary entertainment, travel and other expenses in
accordance with BOKF's standard policies in general effect for
senior executive employees of BOKF's affiliates (which
includes dues for lunch clubs, but does not include
reimbursement for country club memberships or dues).
(e) The Executive shall be allowed vacation, holidays, and other
employee benefits not described above in accordance with the
Bank's standard policy in general effect for Bank's senior
executive employees.
(f) The Executive shall be considered for the award of options
pursuant to BOKF's stock option plan on the same basis as
other senior executives of BOKF and its affiliates.
(g) Upon consummation of the Merger, the Bank shall transfer to
Executive ownership of that certain 1997 Cadillac Sedan De
Ville automobile currently being driven by Executive. In
addition, it is understood and agreed that Executive owns a
membership in the Canyon Creek Country Club, although the Bank
currently pays the dues owing on such membership.
(h) Executive hereby agrees to accept the foregoing compensation
from and after the date of consummation of the Merger in lieu
of all Current Benefits and as the sole, full and complete
compensation to Executive for the performance of all duties of
Executive under this Agreement and for all services rendered
by Executive to the Bank or any affiliate of the Bank.
(4) Term of this Agreement. The term of this Agreement (the "Term") shall
commence (the "Commencement") as of the commencement of the first
pay-roll period immediately preceding the effective date of the Merger
and shall terminate on the third anniversary date of the Commencement.
(5) Termination of This Agreement. Notwithstanding the provisions of paragraph
4 of this Agreement, this Agreement may be terminated on the following
terms and conditions:
(a) Termination by Bank for Cause. The Bank may terminate this
Agreement for cause on the following terms and conditions:
(i) The Bank shall be deemed to have cause to terminate
Executive's employment only in one of the following
events:
(A) The Executive shall, after one prior written
notice, willfully fail to substantially
perform his obligations under this Agreement
(it being understood that any such failure
resulting from Executive's incapacity due to
physical or mental illness shall not be
deemed willful);
(B) Any intentional act which is intended by
Executive to materially injure the Bank;
(C) Any criminal act involving moral turpitude;
(D) Any dishonest or fraudulent act; or,
(E) Any refusal to obey written orders or instructions of
the Board of Directors of the Bank, after one prior
written notice, unless such instructions would require
Executive to commit an illegal act, could subject
Executive to personal liability, would require
Executive to violate the terms of this Agreement, or
would otherwise be inconsistent with the duties of an
officer of a national banking association.
(ii) The Bank shall be deemed to have cause to terminate
Executive's employment only when a majority of the members
of the Board of Directors of the Bank finds that, in the
good faith opinion of such majority, Executive committed any
of the acts set forth in clauses (A) through (E) of the
preceding subparagraph, such finding to have been made after
at least ten (10) business days' notice to Executive and an
opportunity for Executive, together with his counsel, to be
heard before such majority. The determination of such
majority, made as set forth above, shall be binding upon the
Bank and Executive, absent bad faith or willful misconduct.
(iii)The effective date of a termination for cause shall be
the date of the action of such majority finding the
termination was with cause. In the event the Bank
terminates this Agreement for cause, (A) the Bank shall
pay Executive Executive's then Annual Salary through,
but not beyond, the effective date of the termination,
(B) Executive shall receive those benefits that are
accrued through but not beyond the effective date of
such termination which are thereafter payable under the
terms and provisions of benefit plans then in effect in
accordance with paragraph 3 above.
(b) Termination By Executive. The Executive may, at any time after
the first anniversary date of the consummation of the Merger,
terminate this Agreement on the following terms and
conditions:
(i) The Executive may give written notice of termination
to the Bank. The termination shall be effective on
the fifteenth (15th) business day following the
notice of termination.
(ii) Upon termination by Executive, the Bank shall have no
obligation to Executive under this Agreement beyond
the effective date of the termination; provided,
however, that Executive shall be entitled to receive
any benefits, insured or otherwise, that Executive
would otherwise be able to receive under any benefit
plan of the Bank of which Executive is a beneficiary
in accordance with paragraph 3.
(c) Termination after Bank Merger. Either party to this Agreement
may, at any time after the ninetieth (90th) day after the Bank
Merger, terminate this Agreement on the following terms and
conditions:
(i) The party terminating this Agreement shall give
written notice of termination to the other party
hereto. The termination shall be effective on the
fifteenth (15th) business day following the notice of
termination.
(ii) Upon termination pursuant to this paragraph 5(c), the
obligations of the Executive pursuant to paragraph
8(a) and the Bank pursuant to paragraph 8(b) shall
continue for the remaining period of non-competition
set forth in paragraph 8(a).
(6) Death of Executive. In the event of Executive's death during the term
of this Agreement, his estate, legal representatives, or named
beneficiaries (as set forth in a writing by Executive delivered to the
Bank prior to death) (i) shall be paid Executive's Annual Salary and
Additional Benefits for a period equal to the lesser of the remaining
term of this agreement or six (6) months following the date of
Executive's death and (ii) shall receive those benefits which are
accrued through the date six (6) months after the date of Executive's
death and which are thereafter payable under the terms and provisions
of the benefit plans then in effect in accordance with paragraph 3
above.
(7) Provisions Respecting Illness. In the event Executive is unable to
perform his duties under this Agreement on a full-time basis for a
period of six (6) consecutive months by reason of illness or other
physical or mental disability, and at or before the end of such period,
Executive does not return to work on a full-time basis, the Bank may
terminate this Agreement without further or additional compensation
being due Executive from the Bank except annual salary and benefits
accrued through the date of such termination under benefit plans then
in effect in accordance with paragraph 3 above.
(8) Agreement Not to Compete. The provisions of this paragraph 8 are hereafter
called the "Non-Competition Agreement".
(a) Executive agrees that for a period of 3 years after the commencement
of this Agreement, Executive shall not directly or indirectly (whether
as an officer, director, employee, partner, 5% stockholder or agent)
(i) engage in the banking business generally or in any business in
which the Bank has, as of the date of such termination engaged, in
Dallas County or Collin County, Texas, or (ii) solicit the banking
business of any clients of Bank or Bank's affiliates or solicit
employees of Bank or Bank's affiliates to seek employment with any
person or entity engaged in the financial services business except the
Bank and its affiliates, whether, in either case, such solicitation is
made within or without the area described in this paragraph 8, except
that this Non-Competition Agreement shall not be binding on Executive
if the Bank shall have breached its obligations under this Agreement.
(b) Except in the event of the termination of Executive's employment with
the Bank pursuant to the provisions of paragraph 5(a) or paragraph
5(b) of this Agreement, the Bank shall pay Executive during such
period of non-competition (i) 100% of his Annual Salary at the time of
termination, for each full calendar month payable on the first day of
each calendar month commencing with the first calendar month of the
period of non-competition and (ii) the Bank shall continue in effect,
and provide to Executive, the same or similar medical insurance and
disability insurance as provided to Executive immediately prior to
such termination.
(c) Executive agrees that (i) this Non-Competition Agreement is entered
into in connection with the sale to BOKF of the goodwill of the
business of the Bank, (ii) Executive is receiving valuable
consideration in the Merger for this Non-Competition Agreement, (iii)
the restrictions imposed upon Executive by this Non-Competition
Agreement are essential and necessary to ensure BOKF acquires the
goodwill of the Bank, and (iv) all the restrictions (including
particularly the time and geographical limitations) set forth in this
Non-Competition Agreement are fair and reasonable.
(d) Executive agrees that any remedy at law for any breach of this
Non-Competition Agreement would be inadequate and, in the event of any
such breach, the Bank shall be entitled to both immediate and
permanent injunctive relief without the necessity of posting any bond
therefor to preclude any such breach (in addition to any remedies of
law which the Bank may be entitled).
(9) Miscellaneous Provisions. The following miscellaneous provisions shall apply
to this Agreement:
(a) All notices or advices required or permitted to be given by or
pursuant to this Agreement, shall be given in writing. All such
notices and advices shall be (i) delivered personally, (ii) delivered
by facsimile or delivered by U.S. Registered or Certified Mail, Return
Receipt Requested mail, or (iii) delivered for overnight delivery by a
nationally recognized overnight courier service. Such notices and
advices shall be deemed to have been given (i) the first business day
following the date of delivery if delivered personally or by
facsimile, (ii) on the third business day following the date of
mailing if mailed by U.S. Registered or Certified Mail, Return Receipt
Requested, or (iii) on the date of receipt if delivered for overnight
delivery by a nationally recognized overnight courier service. All
such notices and advices and all other communications related to this
Agreement shall be given as follows:
If to the Bank:
BOK Financial Corporation
X.X. Xxx 0000
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
and
Canyon Creek National Bank
000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Chairman of the Board
Telecopy No.: (000) 000-0000
With a Copy to:
Bank of Texas, N. A.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Mr. C. Xxxx Xxxx, Jr., President
Telecopy No.: (000) 000-0000
and
Xxxxxxxx Xxxxxxx
Old City Hall
000 Xxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
If to Executive:
Xx. Xxxxxxx X. Xxxxx, Xx.
================================
--------------------------------
Telecopy No.: ___________________
or to such other address as the party may have furnished to
the other parties in accordance herewith, except that notice
of change of addresses shall be effective only upon receipt.
(b) This Agreement is made and executed in Dallas County, Texas,
and all actions or proceedings with respect to, arising
directly or indirectly in connection with, out of, related to
or from this Agreement, shall be litigated in courts having
situs in Dallas County, Texas.
(c) This Agreement shall be subject to, and interpreted by and in
accordance with, the laws (excluding conflict of law
provisions) of the State of Texas.
(d) This Agreement is the entire Agreement of the parties
respecting the subject matter hereof. There are no other
agreements, representations or warranties, whether oral or
written, respecting the subject matter hereof, except as
stated in this Agreement.
(e) This Agreement, and all the provisions of this Agreement,
shall be deemed drafted by all of the parties hereto.
(f) This Agreement shall not be interpreted strictly for or
against any party, but solely in accordance with the fair
meaning of the provisions hereof to effectuate the purposes
and interest of this Agreement.
(g) Each party hereto has entered into this Agreement based solely
upon the agreements, representations and warranties expressly
set forth herein and upon his own knowledge and investigation.
Neither party has relied upon any representation or warranty
of any other party hereto except any such representations or
warranties as are expressly set forth herein.
(h) Each of the persons signing below on behalf of a party hereto
represents and warrants that he or she has full requisite
power and authority to execute and deliver this Agreement on
behalf of the parties for whom he or she is signing and to
bind such party to the terms and conditions of this Agreement.
(i) This Agreement may be executed in counterparts, each of which
shall be deemed an original. This Agreement shall become
effective only when all of the parties hereto shall have
executed the original or counterpart hereof. This Agreement
may be executed and delivered by a facsimile transmission of a
counterpart signature page hereof.
(j) In any action brought by a party hereto to enforce the
obligations of any other party hereto, the prevailing party
shall be entitled to collect from the opposing party to such
action such party's reasonable litigation costs and attorneys
fees and expenses (including court costs, reasonable fees of
accountants and experts, and other expenses incidental to the
litigation).
(k) This Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective successors and
assigns. The Bank agrees that if it merges, consolidates or
combines with any other business entity, it shall cause the
succeeding or continuing corporation or business entity to
expressly assume and confirm in writing the obligations of the
Bank under this Agreement.
(l) This is not a third party beneficiary contract, except BOKF
(including each affiliate thereof) shall be a third party
beneficiary of this Agreement. No person or entity other than
a party signing this Agreement and those designated as a third
party beneficiary herein shall have any rights under this
Agreement.
(m) This Agreement may be amended or modified only in a writing
which specifically references this Agreement.
(n) A party to this Agreement may decide or fail to require full
or timely performance of any obligation arising under this
Agreement. The decision or failure of a party hereto to
require full or timely performance of any obligation arising
under this Agreement (whether on a single occasion or on
multiple occasions) shall not be deemed a waiver of any such
obligation. No such decisions or failures shall give rise to
any claim of estoppel, laches, course of dealing, amendment of
this Agreement by course of dealing, or other defense of any
nature to any obligation arising hereunder.
(o) In the event any provision of this Agreement, or the
application of such provision to any person or set of
circumstances, shall be determined to be invalid, unlawful, or
unenforceable to any extent for any reason, the remainder of
this Agreement, and the application of such provision to
persons or circumstances other than those as to which it is
determined to be invalid, unlawful, or unenforceable, shall
not be affected and shall continue to be enforceable to the
fullest extent permitted by law.
Dated and effective the date first set forth above.
CANYON CREEK NATIONAL BANK
By: _____________________
Xxxxxxx X. Xxxxxxxx,
Chairman of the Board
______________________
Xxxxxxx X. Xxxxx, Xx.
EXHIBIT "D"
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made, effective this ___ day
of ______________, 1999, between Canyon Creek National Bank, a national banking
association (the "Bank") and Xxxx X. Xxxxxxxxx, an individual residing in
McKinney, Texas (the "Executive").
The Bank and Executive, in consideration of the promises and covenants
set forth herein (the receipt and adequacy of which is hereby acknowledged) and
intending to be legally bound hereby, agree as follows:
(1) Purpose of This Agreement. The purpose of this agreement is as follows:
(a) The Bank is a national banking association, engaged in the
banking business in Dallas County, Texas.
(b) The Executive is currently serving as President of the
McKinney Branch of the Bank. The Executive currently has no
written agreement of employment with the Bank, but Executive
is currently receiving salary compensation and other benefits
from the Bank (collectively, the "Current Benefits"). BOK
Financial Corporation ("BOKF") is a bank holding company. BOKF
owns indirectly all of the issued and outstanding capital
stock of Bank of Texas, National Association ("BOT") and BOKF
Merger Corporation Number Nine, a Texas corporation.
(c) Pursuant to an Agreement and Plan of Merger, dated as of
February 19, 1999 (the "Merger Agreement"), among BOKF,
Chaparral Bancshares, Inc. ("Chaparral"), and BOK Merger
Corporation Number Nine, BOKF is acquiring indirect ownership
of the Bank (the "Merger"). Upon and subject to consummation
of the Merger, the Bank desires to retain the services of
Executive, and Executive desires to continue to render
services to the Bank. It is contemplated that in the near
future, the Bank will be merged into BOT (the "Bank Merger").
(d) The purpose of this Agreement is to set forth the terms and
conditions (i) on which the Bank shall, subject to
consummation of the Merger, employ Executive from and after
consummation of the Merger and (ii) on which Executive agrees
not to compete with the Bank.
(2) Employment. The Bank hereby employs Executive, and Executive hereby
agrees to work for the Bank, on the following terms and conditions:
(a) Until the Bank Merger, Executive shall serve as President of the
McKinney Branch of the Bank, subject to the direction of the
Board of Directors of the Bank and of the Chief Executive Officer
of BOT; provided, that, in the event of a conflict between the
directions being given by the Board of Directors of the Bank and
the Chief Executive Officer of BOT, Executive shall act in
accordance with the directions of the Board of Directors of the
Bank. After consummation of the Bank Merger, the Executive shall
serve as President of Bank of Texas - McKinney (an unincorporated
banking division of the Bank).
(b) Executive shall devote all time and attention reasonably
necessary to the affairs of the Bank and shall serve the Bank
diligently, loyally, and to the best of his ability.
(c) Executive shall serve in such other or additional positions as
an officer and/or director of the Bank as Executive and the
Board of Directors of the Bank may mutually agree or any
affiliate of the Bank as Executive and the Chief Executive
Officer of BOT may mutually agree; provided, however,
Executive's residence and place of work shall remain in Collin
County, Texas.
(d) Notwithstanding anything herein to the contrary, Executive
shall not be precluded from engaging in any charitable, civic,
political or community activity or membership in any
professional organization.
(3) Compensation. As the sole, full and complete compensation to Executive
for the performance of all duties of Executive under this Agreement and
for all services rendered by Executive to the Bank or to any affiliate
of the Bank:
(a) The Bank shall pay to Executive the sum of $120,000 per year
payable in installments in arrears, less usual and customary
payroll deductions for FICA, federal and state withholding,
and the like, at the times and in the manner in effect in
accordance with the usual and customary payroll policies
generally in effect from time to time at the Bank ("Annual
Salary").
(b) The Bank shall pay and provide to Executive pension, thrift,
medical insurance, disability insurance plan benefits, and other
fringe benefits, generally in effect for senior executive
employees of BOKF and its affiliates (the "Additional Benefits").
The pension benefits provided to BOKF employees are fully
described in the official plan document. Executive shall be
credited with his prior service at Chaparral and its affiliates
in BOKF's 401k plan and in connection with the Additional
Benefits, other than in connection with BOKF's pension plan.
(c) The Bank may, from time to time in Bank's sole discretion
consistent with the practices generally in effect for senior
executive employees of BOKF and its affiliates, pay or
provide, or agree to pay or provide, Executive a bonus, stock
option, or other incentive or performance based compensation.
All such bonus, stock option or other incentive or performance
based compensation, regardless of its nature (hereinafter
called "Performance Compensation") shall not constitute Annual
Salary.
(d) The Bank shall reimburse Executive for reasonable and
necessary entertainment, travel and other expenses in
accordance with BOKF's standard policies in general effect for
senior executive employees of BOKF's affiliates (which
includes dues for lunch clubs, but does not include
reimbursement for country club memberships or dues).
(e) The Executive shall be allowed vacation, holidays, and other
employee benefits not described above in accordance with the
Bank's standard policy in general effect for Bank's senior
executive employees.
(f) The Executive shall be considered for the award of options
pursuant to BOKF's stock option plan on the same basis as
other senior executives of BOKF and its affiliates.
(g) Executive hereby agrees to accept the foregoing compensation
from and after the date of consummation of the Merger in lieu
of all Current Benefits and as the sole, full and complete
compensation to Executive for the performance of all duties of
Executive under this Agreement and for all services rendered
by Executive to the Bank or any affiliate of the Bank.
(4) Term of this Agreement. The term of this Agreement (the "Term") shall
commence (the "Commencement") as of the commencement of the first
pay-roll period immediately preceding the effective date of the Merger
and shall terminate on the second anniversary date of the Commencement.
(5) Termination of This Agreement. Notwithstanding the provisions of paragraph
4 of this Agreement, this Agreement may be terminated on the following
terms and conditions:
(a) Termination by Bank for Cause. The Bank may terminate this Agreement
for cause on the following terms and conditions:
(i) The Bank shall be deemed to have cause to terminate Executive's
employment only in one of the following events:
(A) The Executive shall, after one prior written notice,
willfully fail to substantially perform his obligations
under this Agreement (it being understood that any such
failure resulting from Executive's incapacity due to
physical or mental illness shall not be deemed willful);
(B) Any intentional act which is intended by Executive to
materially injure the Bank;
(C) Any criminal act involving moral turpitude;
(D) Any dishonest or fraudulent act; or,
(E) Any refusal to obey written orders or instructions of the
Board of Directors of the Bank, after one prior written
notice, unless such instructions would require Executive to
commit an illegal act, could subject Executive to personal
liability, would require Executive to violate the terms of
this Agreement, or would otherwise be inconsistent with the
duties of an officer of a national banking association.
(ii) The Bank shall be deemed to have cause to terminate
Executive's employment only when a majority of the
members of the Board of Directors of the Bank finds
that, in the good faith opinion of such majority,
Executive committed any of the acts set forth in
clauses (A) through (E) of the preceding subparagraph,
such finding to have been made after at least ten (10)
business days' notice to Executive and an opportunity
for Executive, together with his counsel, to be heard
before such majority. The determination of such
majority, made as set forth above, shall be binding
upon the Bank and Executive, absent bad faith or
willful misconduct.
(iii)The effective date of a termination for cause shall be
the date of the action of such majority finding the
termination was with cause. In the event the Bank
terminates this Agreement for cause, (A) the Bank shall
pay Executive Executive's then Annual Salary through,
but not beyond, the effective date of the termination,
(B) Executive shall receive those benefits that are
accrued through but not beyond the effective date of
such termination which are thereafter payable under the
terms and provisions of benefit plans then in effect in
accordance with paragraph 3 above.
(b) Termination By Executive. The Executive may, at anytime after the
first anniversary date of the consummation of the Merger, terminate
this Agreement on the following terms and conditions:
(i) The Executive may give written notice of termination to the Bank.
The termination shall be effective on the fifteenth (15th)
business day following the notice of termination.
(ii) Upon termination by Executive, the Executive shall be entitled to
receive any benefits, insured or otherwise, that Executive would
otherwise be able to receive under any benefit plan of the Bank
of which Executive is a beneficiary in accordance with paragraph
3.
(6) Death of Executive. In the event of Executive's death during the term
of this Agreement, his estate, legal representatives, or named
beneficiaries (as set forth in a writing by Executive delivered to the
Bank prior to death) (i) shall be paid Executive's Annual Salary and
Additional Benefits for a period equal to the lesser of the remaining
term of this agreement or six (6) months following the date of
Executive's death and (ii) shall receive those benefits which are
accrued through the date six (6) months after the date of Executive's
death and which are thereafter payable under the terms and provisions
of the benefit plans then in effect in accordance with paragraph 3
above.
(7) Provisions Respecting Illness. In the event Executive is unable to
perform his duties under this Agreement on a full-time basis for a
period of six (6) consecutive months by reason of illness or other
physical or mental disability, and at or before the end of such period,
Executive does not return to work on a full-time basis, the Bank may
terminate this Agreement without further or additional compensation
being due Executive from the Bank except annual salary and benefits
accrued through the date of such termination under benefit plans then
in effect in accordance with paragraph 3 above.
(8) Agreement Not to Compete. The provisions of this paragraph 8 are hereafter
called the "Non-Competition Agreement".
(a) Executive agrees that for a period of 12 months after the termination
of Executive's employment with Bank, for whatever reason such
employment may cease and whether for cause or without cause, Executive
shall not directly or indirectly (whether as an officer, director,
employee, partner, 5% stockholder or agent) (i) engage in the banking
business generally or in any business in which the Bank has, as of the
date of such termination engaged, in Collin County, Texas, or (ii)
solicit the banking business of any clients of Bank or Bank's
affiliates or solicit employees of Bank or Bank's affiliates to seek
employment with any person or entity engaged in the financial services
business except the Bank and its affiliates, whether, in either case,
such solicitation is made within or without the area described in this
paragraph 8, except that this Non-Competition Agreement shall not be
binding on Executive if the Bank shall have breached its obligations
under this Agreement.
(b) The Bank shall pay Executive during such period of non-competition (i)
50% of his Annual Salary at the time of termination, for each full
calendar month payable on the first day of each calendar month
commencing with the first calendar month of the period of
non-competition and (ii) the Bank shall continue in effect, and
provide to Executive, the same or similar medical insurance and
disability insurance as provided to Executive immediately prior to
such termination.
(c) Executive agrees that (i) this Non-Competition Agreement is entered
into in connection with the sale to BOKF of the goodwill of the
business of the Bank, (ii) Executive is receiving valuable
consideration in the Merger for this Non-Competition Agreement, (iii)
the restrictions imposed upon Executive by this Non-Competition
Agreement are essential and necessary to ensure BOKF acquires the
goodwill of the Bank, and (iv) all the restrictions (including
particularly the time and geographical limitations) set forth in this
Non-Competition Agreement are fair and reasonable.
(d) Executive agrees that any remedy at law for any breach of this
Non-Competition Agreement would be inadequate and, in the event of any
such breach, the Bank shall be entitled to both immediate and
permanent injunctive relief without the necessity of posting any bond
therefor to preclude any such breach (in addition to any remedies of
law which the Bank may be entitled).
(9) Miscellaneous Provisions. The following miscellaneous provisions shall
apply to this Agreement:
(a) All notices or advices required or permitted to be given by or
pursuant to this Agreement, shall be given in writing. All such
notices and advices shall be (i) delivered personally, (ii) delivered
by facsimile or delivered by U.S. Registered or Certified Mail, Return
Receipt Requested mail, or (iii) delivered for overnight delivery by a
nationally recognized overnight courier service. Such notices and
advices shall be deemed to have been given (i) the first business day
following the date of delivery if delivered personally or by
facsimile, (ii) on the third business day following the date of
mailing if mailed by U.S. Registered or Certified Mail, Return Receipt
Requested, or (iii) on the date of receipt if delivered for overnight
delivery by a nationally recognized overnight courier service. All
such notices and advices and all other communications related to this
Agreement shall be given as follows:
If to the Bank:
BOK Financial Corporation
X.X. Xxx 0000
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
and
Canyon Creek National Bank
000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Chairman of the Board
Telecopy No.: (000) 000-0000
With a Copy to:
Bank of Texas, N.A.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Mr. C. Xxxx Xxxx, Jr., President
Telecopy No.: (000) 000-0000
and
Xxxxxxxx Xxxxxxx
Old City Hall
000 Xxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
If to Executive:
Xxxx X. Xxxxxxxxx
--------------------------------
--------------------------------
Telecopy No.: ___________________
or to such other address as the party may have furnished to
the other parties in accordance herewith, except that notice
of change of addresses shall be effective only upon receipt.
(b) This Agreement is made and executed in Dallas County, Texas,
and all actions or proceedings with respect to, arising
directly or indirectly in connection with, out of, related to
or from this Agreement, shall be litigated in courts having
situs in Dallas County, Texas.
(c) This Agreement shall be subject to, and interpreted by and in
accordance with, the laws (excluding conflict of law
provisions) of the State of Texas.
(d) This Agreement is the entire Agreement of the parties
respecting the subject matter hereof. There are no other
agreements, representations or warranties, whether oral or
written, respecting the subject matter hereof, except as
stated in this Agreement.
(e) This Agreement, and all the provisions of this Agreement,
shall be deemed drafted by all of the parties hereto.
(f) This Agreement shall not be interpreted strictly for or
against any party, but solely in accordance with the fair
meaning of the provisions hereof to effectuate the purposes
and interest of this Agreement.
(g) Each party hereto has entered into this Agreement based solely
upon the agreements, representations and warranties expressly
set forth herein and upon his own knowledge and investigation.
Neither party has relied upon any representation or warranty
of any other party hereto except any such representations or
warranties as are expressly set forth herein.
(h) Each of the persons signing below on behalf of a party hereto
represents and warrants that he or she has full requisite
power and authority to execute and deliver this Agreement on
behalf of the parties for whom he or she is signing and to
bind such party to the terms and conditions of this Agreement.
(i) This Agreement may be executed in counterparts, each of which
shall be deemed an original. This Agreement shall become
effective only when all of the parties hereto shall have
executed the original or counterpart hereof. This Agreement
may be executed and delivered by a facsimile transmission of a
counterpart signature page hereof.
(j) In any action brought by a party hereto to enforce the
obligations of any other party hereto, the prevailing party
shall be entitled to collect from the opposing party to such
action such party's reasonable litigation costs and attorneys
fees and expenses (including court costs, reasonable fees of
accountants and experts, and other expenses incidental to the
litigation).
(k) This Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective successors and
assigns. The Bank agrees that if it merges, consolidates or
combines with any other business entity, it shall cause the
succeeding or continuing corporation or business entity to
expressly assume and confirm in writing the obligations of the
Bank under this Agreement.
(l) This is not a third party beneficiary contract, except BOKF
(including each affiliate thereof) shall be a third party
beneficiary of this Agreement. No person or entity other than
a party signing this Agreement and those designated as a third
party beneficiary herein shall have any rights under this
Agreement.
(m) This Agreement may be amended or modified only in a writing
which specifically references this Agreement.
(n) A party to this Agreement may decide or fail to require full
or timely performance of any obligation arising under this
Agreement. The decision or failure of a party hereto to
require full or timely performance of any obligation arising
under this Agreement (whether on a single occasion or on
multiple occasions) shall not be deemed a waiver of any such
obligation. No such decisions or failures shall give rise to
any claim of estoppel, laches, course of dealing, amendment of
this Agreement by course of dealing, or other defense of any
nature to any obligation arising hereunder.
(o) In the event any provision of this Agreement, or the
application of such provision to any person or set of
circumstances, shall be determined to be invalid, unlawful, or
unenforceable to any extent for any reason, the remainder of
this Agreement, and the application of such provision to
persons or circumstances other than those as to which it is
determined to be invalid, unlawful, or unenforceable, shall
not be affected and shall continue to be enforceable to the
fullest extent permitted by law.
Dated and effective the date first set forth above.
CANYON CREEK NATIONAL BANK
By: __________________________
Xxxxxxx X. Xxxxxxxx,
Chairman of the Board
__________________________
Xxxx X. Xxxxxxxxx
EXHIBIT "E"
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (the "Agreement") is made and entered
into as of the ______ day of ___________, 1999, by and between Canyon Creek
National Bank, a national banking association (the "Bank") and Xxxxxxx X.
Xxxxxxxx, an individual resident of the State of Texas ("Xxxxxxxx").
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
February 19, 1999 (the "Merger Agreement"), among BOK Financial Corporation
("BOKF"), Chaparral Bancshares, Inc., and BOK Merger Corporation Number Nine,
BOKF is acquiring indirect ownership of the Bank (the "Merger"); and
WHEREAS, in connection with consummation of the transactions
contemplated by the Merger Agreement, the Bank and Xxxxxxxx have agreed to enter
into this Noncompetition Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and intending to be legally bound hereby, the Bank and Xxxxxxxx
agree as follows:
1. Noncompete Covenants.
(a) Xxxxxxxx agrees that for a period of 24 months after the
date of consummation of the Merger, Xxxxxxxx shall not directly or indirectly
(whether as an officer, director, employee, partner, 5% stockholder or agent)
(i) engage in the banking business generally or in any business in which the
Bank has, as of the date of the Merger engaged, in Dallas County, Texas, or (ii)
solicit the banking business of any clients of Bank or Bank's affiliates or
solicit employees of Bank or Bank's affiliates to seek employment with any
person or entity engaged in the financial services business except the Bank and
its affiliates, whether, in either case, such solicitation is made within or
without the area described in this paragraph, except that this Agreement shall
not be binding on Xxxxxxxx if the Bank shall have breached its obligations under
this Agreement.
(b) For and in consideration of his obligations hereunder, the
Bank shall pay Xxxxxxxx $1,000 in a lump sum payment to be made as of the time
the Merger is effective.
(c) Xxxxxxxx agrees that (i) this Noncompetition Agreement is
entered into in connection with the sale to BOKF of the goodwill of the business
of the Bank, (ii) Xxxxxxxx is receiving valuable consideration in the Merger for
this Noncompetition Agreement, (iii) the restrictions imposed upon Xxxxxxxx by
this Noncompetition Agreement are essential and necessary to ensure BOKF
acquires the goodwill of the Bank, and (iv) all the restrictions (including
particularly the time and geographical limitations) set forth in this
Noncompetition Agreement are fair and reasonable.
2. Injunctive Relief. Xxxxxxxx agrees that any remedy at law for any
breach of this Noncompetition Agreement would be inadequate and, in the event of
any such breach, the Bank shall be entitled to both immediate and permanent
injunctive relief without the necessity of posting any bond therefor to preclude
any such breach (in addition to any remedies of law which the Bank may be
entitled).
3. Assignability. This Agreement shall not be assigned by either party
without the prior written consent of the other party.
4. Parties Bound. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives,
successors and assigns, except as otherwise expressly provided herein.
5. Texas Law to Apply. This Agreement shall be subject to, and
interpreted by and in accordance with, the laws (excluding conflict of law
provisions) of the State of Texas. This Agreement is made and executed in Dallas
County, Texas, and all actions or proceedings with respect to, arising directly
or indirectly in connection with, out of, related to or from this Agreement,
shall be litigated in courts having situs in Dallas County, Texas.
6. Legal Construction. In the event any provision of this Agreement, or
the application of such provision to any person or set of circumstances, shall
be determined to be invalid, unlawful, or unenforceable to any extent for any
reason, the remainder of this Agreement, and the application of such provision
to persons or circumstances other than those as to which it is determined to be
invalid, unlawful, or unenforceable, shall not be affected and shall continue to
be enforceable to the fullest extent permitted by law.
7. Notice. All notices or advices required or permitted to be given by
or pursuant to this Agreement, shall be given in writing. All such notices and
advices shall be (i) delivered personally, (ii) delivered by facsimile or
delivered by U.S. Registered or Certified Mail, Return Receipt Requested mail,
or (iii) delivered for overnight delivery by a nationally recognized overnight
courier service. Such notices and advices shall be deemed to have been given (i)
the first business day following the date of delivery if delivered personally or
by facsimile, (ii) on the third business day following the date of mailing if
mailed by U.S. Registered or Certified Mail, Return Receipt Requested, or (iii)
on the date of receipt if delivered for overnight delivery by a nationally
recognized overnight courier service. All such notices and advices and all other
communications related to this Agreement shall be given as follows:
If to the Bank:
BOK Financial Corporation
X.X. Xxx 0000
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
and
Bank of Texas, N.A.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Mr. C. Xxxx Xxxx, Jr., President
Telecopy No.: (000) 000-0000
and
Canyon Creek National Bank
000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Chairman of the Board
Telecopy No.: (000) 000-0000
With a Copy to:
Xxxxxxxx Xxxxxxx
Old City Hall
000 Xxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
If to Xxxxxxxx:
------------------------------
================================
--------------------------------
Telecopy No.: __________________
or to such other address as the party may have furnished to the other parties in
accordance herewith, except that notice of change of addresses shall be
effective only upon receipt.
8. Entire Agreement. This Agreement is the entire Agreement of the
parties respecting the subject matter hereof. There are no other agreements,
representations or warranties, whether oral or written, respecting the subject
matter hereof, except as stated in this Agreement.
9. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original. This Agreement shall become effective only
when all of the parties hereto shall have executed the original or counterpart
hereof. This Agreement may be executed and delivered by a facsimile transmission
of a counterpart signature page hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
_________________________________
Xxxxxxx X. Xxxxxxxx
CANYON CREEK NATIONAL BANK
By:________________________________
Xxxxxxx X. Xxxxx, Xx., President
EXHIBIT "F"
ESCROW AGREEMENT
This ESCROW AGREEMENT has been executed this ____ day of
_______________, 1999, by and between BOK Financial Corporation ("BOKF"), the
shareholders of Chaparral Bancshares, Inc. (the "Shareholders"), and Bank of
Texas Trust Company, National Association (the "Escrow Agent").
BOKF has deposited in escrow with the Escrow Agent $400,000 pursuant to
that certain Agreement and Plan of Merger dated as of February 19, 1999, among
BOKF, BOKF Merger Corporation Number Nine, and Chaparral Bancshares, Inc. (the
"Merger Agreement"). The parties agree that this escrow shall be administered in
accordance with Section 11.2 of the Merger Agreement, a true and correct copy of
which is attached hereto and incorporated herein by this reference. BOKF and the
Agents (as defined in Section 11.2 of the Merger Agreement) shall jointly
provide all notices to the Escrow Agent required by Section 11.2 of the Merger
Agreement to fulfil the terms and conditions of the Escrow Account, and the
Escrow Agent shall act only pursuant to the joint written instructions of BOKF
and the Agents.
The parties to this Escrow Agreement agree that the following
provisions shall control with respect to the rights duties, liabilities,
privileges and immunities of the Escrow Agent.
(a) The Escrow Agent is not a party to, and is not bound by, or charged
with notice of, any agreement out of which this escrow may arise.
(b) The Escrow Agent acts hereunder as a depository only, and is not
responsible or liable in any manner whatever for the sufficiency, correctness,
genuineness or validity of the subject matter of the escrow, or any part
thereof, or for the form or execution thereof, or for the identity or authority
of any person executing or depositing it. The Escrow Agent will not render
investment advice with respect to the subject matter of this escrow.
(c) In the event the Escrow Agent becomes involved in litigation in
connection with this escrow, the undersigned jointly and severally agree to
indemnify and save the Escrow Agent harmless from all loss, cost, damages,
expenses and attorney's fees suffered or incurred by the Escrow Agent as a
result thereof.
(d) The Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, certificate, receipt, authorization, power of
attorney or other paper or document which the Escrow Agent in good faith
believes to be genuine and what it purports to be.
(e) The Escrow Agent shall not be liable for anything that it may do or
refrain from doing in connection herewith, except its own gross negligence or
willful misconduct.
(f) The Escrow Agent may consult with legal counsel in the event of any
dispute or question as to the construction of any of the provisions hereof or
its duties hereunder, and it shall incur no liability and shall be fully
protected in acting in accordance with the opinion and instructions of such
counsel.
(g) In the event of any disagreement between any of the parties to this
agreement, or between them or either of any of them and any other person,
resulting in adverse claims or demands being made in connection with the subject
matter of the escrow, or in the event that the Escrow Agent, in good faith, be
in doubt as to what action it should take hereunder, the Escrow Agent may, at
its option, refuse to comply with any claims or demands on it, or refuse to take
any other action hereunder, so long as such disagreement continues or such doubt
exists, and in any such event, the Escrow Agent shall not be or become liable in
any way or to any person for its failure or refusal to act, and the Escrow Agent
shall be entitled to continue so to refrain from acting until (i) the rights of
all parties shall have been fully and finally adjudicated by a court of
competent jurisdiction, or (ii) all differences shall have been adjusted and all
doubt resolved by agreement among all of the interested persons, and the Escrow
Agent shall have been notified thereof in writing signed by all such persons.
The rights of the Escrow Agent under this paragraph are cumulative of all other
rights which it may have by law or otherwise.
Executed in Dallas, Texas this ___ day of __________, 1999.
BOK FINANCIAL CORPORATION
By: ____________________________________________
Xxxxxxx X. Xxxxxxxx, Chief Executive Officer
SHAREHOLDERS
By: ____________________________________________
Xxxxxxx X. Xxxxxxxx, as Chairman of the Board
of Directors of Chaparral Bancshares, Inc.
BANK OF TEXAS TRUST COMPANY,
NATIONAL ASSOCIATION
By: ___________________________
Name:
Title:
