BANCFIRST CORPORATION
EXHIBIT 10.8
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into
as of the 14th day of November, 2000, by and among BancFirst Corporation,
Oklahoma City, Oklahoma, an Oklahoma corporation ("BANCFIRST"), Xxxxxxx Limited
Partnership, an Oklahoma partnership ("XXXXXXX"), and Century Life Assurance
Company, an Oklahoma-chartered life insurance company (together with its wholly
owned subsidiary, "CENTURY").
W I T N E S S E T H:
WHEREAS, XXXXXXX owns all of the issued and outstanding shares of
CENTURY; and
WHEREAS, the Board of Directors of BANCFIRST and the general partners
of XXXXXXX have reached an agreement for the acquisition (the "Acquisition") by
BANCFIRST of seventy five percent (75%) of the issued and outstanding common
stock of CENTURY (the "Common Stock") from XXXXXXX in accordance with the terms
of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
and agreements herein contained, the parties agree as follows:
ARTICLE I
The Acquisition and Related Matters
1.01 The Acquisition. Subject to the terms and conditions of this
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Agreement, at the Closing (as such term is defined in Section 1.03 hereof),
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1,125,000 shares of Common Stock (the "Shares"), representing seventy five
percent (75%) of the shares of Common Stock which are outstanding immediately
prior to the Closing, shall be purchased by and become the property of BANCFIRST
upon payment of the purchase price (the "Purchase Price"), which shall be an
amount equal to 75% of the sum of (a) $6,592,000, and (b) statutory net income
from April 30, 2000 through December 31, 2000, not to exceed the net change in
stockholders' equity from April 30, 2000 through December 31, 2000, as
calculated under United States generally accepted accounting principles.
1.02 Effective Time. The Acquisition shall become effective at
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12:01 a.m. January 1 , 2001, provided that regulatory approvals have been
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received and all required waiting periods shall have expired by that date (the
"Effective Time"). If such conditions have not been met to allow a closing on
January 1, 2001, then the Acquisition shall become effective as of the 12:01
a.m. on the first day of the month following the completion of all the
conditions.
1.03 Closing. The closing of the transactions contemplated by this
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Agreement (the "Closing"), shall take place at such time and place as the
parties may mutually agree, but no later than the Effective Time (the "Closing
Date").
1.04 Deliveries by XXXXXXX. At the Closing, XXXXXXX shall deliver
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the following:
(a) Certificates representing the Shares, duly endorsed for transfer
to BANCFIRST (without reference to any encumbrance) necessary to vest BANCFIRST
with indefeasible title to the Shares;
(b) The certificate described in Section 7.01;
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(c) The consents and approvals required by Section 2.04;
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(d) The resolutions referred to in Section 2.01;
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(e) The resignations referred to in Section 5.04; and
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(f) All other documents, schedules, instruments and writings required
by this Agreement to be delivered by XXXXXXX at the Closing and any other
documents or records reasonably requested by BANCFIRST in connection with this
Agreement.
1.05 Deliveries by BANCFIRST. At the Closing, BANCFIRST shall
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deliver the following:
(a) Cash in immediately available funds for the Purchase Price
as set forth in Section 1.01;
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(b) The certificate described in Section 6.01;
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(c) The consents and approvals required by Section 3.04,if any;
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(d) The resolutions referred to in Section 3.02; and
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(e) All other documents, instruments and writings required by
this Agreement or reasonably requested by XXXXXXX or CENTURY in connection with
this Agreement.
ARTICLE II
Representations and Warranties of XXXXXXX AND CENTURY
Except as may be disclosed to BANCFIRST in the Schedules described
herein or otherwise described in a writing referred to herein which will be
delivered to BANCFIRST by XXXXXXX and CENTURY following the execution and
delivery of this Agreement, XXXXXXX and CENTURY hereby represent and warrant to
BANCFIRST as follows (all such representation and warranties shall also apply to
subsidiaries of CENTURY):
2.01 Corporate Organization, Authorization, etc. CENTURY is an
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Oklahoma corporation duly organized, validly existing and in good standing under
the laws of the State of Oklahoma and has full corporate power and authority to
conduct its business as it is now being conducted and to own or lease the
properties and assets it now owns or holds under lease; is duly qualified or
licensed to do business and is in good standing in every other state of the
United States and other jurisdictions where the character of its business or the
nature of its properties makes such qualification or licensing necessary.
XXXXXXX has full power and authority to enter into this Agreement, to consummate
the transactions contemplated herein. This Agreement has been duly executed and
delivered by XXXXXXX and, is a valid and binding agreement of XXXXXXX in
accordance with its terms, subject to laws relating to creditors' rights
generally. CENTURY will deliver to BANCFIRST true, accurate and complete copies
of the currently effective Certificate of Incorporation and Bylaws of CENTURY,
as well as certified resolutions approving the execution and delivery of the
Agreement.
2.02 Authorized and Outstanding Stock. The authorized capital stock
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of CENTURY consists of 1,500,000 shares of common stock. As of the date hereof,
1,500,000 shares of Century Common Stock are issued and outstanding. All of such
issued shares are validly issued, fully paid and nonassessable. CENTURY does not
have outstanding, and is not bound by, any subscriptions, options, warrants,
calls, commitments or agreements to issue any additional shares of its capital
stock, including any right of conversion or exchange under any outstanding
security or other instrument, and CENTURY is not obligated to issue any shares
of its capital stock for any purpose. There are no unsatisfied preemptive rights
in respect to the capital stock of CENTURY.
2.03 Subsidiaries, Affiliates, etc. There are no subsidiaries or
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affiliates of CENTURY, except for Century Property and Casualty Insurance
Company, of which CENTURY presently owns all of the 500,000 shares outstanding.
2.04 Consents, Approvals, Filings, etc., of Governmental
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Authorities. Neither the business nor operations of CENTURY requires any
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consent, approval or authorization of, or declaration, filing or registration
with, any governmental or regulatory authority in connection with the execution
and delivery of this Agreement and the consummation of the transactions
contemplated herein, except for approval of the Oklahoma Insurance Commission.
2.05 Financial Statements. CENTURY has furnished BANCFIRST with the
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audited financial statements of CENTURY at December 31, 1999, and unaudited
financial statements of CENTURY for the six months ended June 30, 2000. Such
financial statements have been prepared in accordance with statutory accounting
principles ("SAP") consistently applied throughout the periods presented, and
except as otherwise indicated therein, they present fairly the financial
position, results of operations, and the related changes in financial position
for such periods in accordance with statutory accounting principles. The
financial statements of CENTURY at December 31, 1999 and June 30, 2000 are
referred to herein as the "CENTURY Financial Statements".
2.06 Absence of Undisclosed Liabilities. CENTURY has no liabilities
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of any nature, whether accrued, absolute, contingent or otherwise, and whether
due or to become due, which in the aggregate are material to CENTURY's
consolidated financial position, except those (i) reflected in the CENTURY
Financial Statements, or in the notes thereto as a liability or by adequate
reserves therefor, or (ii) incurred in the ordinary course of business of
CENTURY since June 30, 2000, all of which have been consistent with past
practices.
2.07 Absence of Changes. Since June 30, 2000, there has been no
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Material Adverse Effect to the business, results of operations, prospects,
financial condition or liabilities (accrued, absolute, contingent or otherwise),
of CENTURY taken as a whole. For purposes of this provision and all other
provisions of this Agreement which use the term "Material Adverse Effect," a
material adverse effect is hereby defined to be any event or series of events
which in the aggregate negatively impact or which have the potential to
negatively impact the equity capital of CENTURY by $40,000 or more.
There has not been any change in such business, results of operations,
prospects, financial condition or liabilities or occurrence of any events of the
type prohibited in Section 4.02 hereof (as if the restriction in Section 4.02
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commenced as of June 30, 2000). Since June 30, 2000, there has been no adverse
action taken by any federal or state regulatory agency relating to CENTURY.
2.08 No Violation. The execution and delivery of this Agreement and
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the performance of the obligations imposed upon XXXXXXX and CENTURY hereunder
and the consummation of the transactions contemplated herein will not constitute
or result in a material breach of any term, condition or provision of, or
constitute a default under, or result in the creation of any lien, charge or
encumbrance upon any property or assets of CENTURY pursuant to (i) any charter
or bylaw, or (ii) any material agreement or other instrument to which CENTURY is
a party or by which any part of its property is bound, nor will such execution,
delivery, performance or consummation violate any law, regulation, judgment,
order or decree binding upon CENTURY, nor will the same result in the loss of,
or by their terms materially adversely affect any material license, franchise,
certificate, legal privilege or legal right enjoyed or possessed by CENTURY,
give any party to any material agreement to which any of them is a party the
right of termination or give any lender or noteholder, or any trustee for any
lender or noteholder, any right to accelerate the maturity of, or increase the
rate of interest with respect to, any material indebtedness as to which CENTURY
is the direct or indirect obligor, or to claim any default or breach with
respect thereto.
2.09 Tax Matters. For tax periods ending on or prior to December
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31, 1999, and except as disclosed on Schedule 2.09:
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(a) The unpaid federal income Taxes (as hereafter defined) of
CENTURY do not exceed the reserves for federal income Tax liability (rather than
any reserve for deferred Taxes established to reflect timing differences between
book and tax income) set forth in the CENTURY Financial Statements.
(b) The unpaid Taxes (other than federal income Taxes) of
CENTURY do not exceed the reserves for those Taxes set forth on the CENTURY
Financial Statements.
(c) CENTURY has filed all Tax Returns (as hereafter defined)
that it was required to file. All such Tax Returns were correct and complete in
all material respects. CENTURY is not the beneficiary of any extension of time
within which to file any income Tax Return.
(d) There is no material dispute or claim concerning any Tax
liability of CENTURY either (i) claimed or raised by any authority in writing or
(ii) as to which CENTURY has knowledge based upon personal contact with any
agent of such authority.
(e) CENTURY has provided BANCFIRST access to correct and
complete copies of all federal income Tax Returns, examination reports, and
statements of deficiencies assessed against or agreed to by CENTURY since
December 31, 1993. All deficiencies asserted or assessments made as a result of
any examinations by the Internal Revenue Service and similar examinations by
state and local tax authorities have been fully paid at the date hereof, and
CENTURY has not waived any statute of limitations in respect of Taxes or agreed
to any extension of time with respect to an Tax assessment or deficiency.
(f) CENTURY is subject to federal income Tax as a "life
insurance company" within the meaning of Section 801 of the Internal Revenue
Code 1986, as amended (the "Code").
(g) To the knowledge of CENTURY, proper and accurate amounts
have been withheld by CENTURY in full and complete compliance with the Tax and
social security withholdings provisions of applicable Federal, state, local and
foreign law, and such withholdings have been timely paid to the respective
governmental authorities.
(h) To the knowledge of CENTURY, CENTURY has made all required
estimated tax payments sufficient to avoid any underpayment penalties.
For purposes of this Section 2.09, "Tax" means any Federal, state,
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local or foreign income, gross receipts, license, severance, occupation, capital
gains, premium, environmental (including Taxes under Section 59A of the Code),
customs, duties, profits, disability, registration, alternative or add-on
minimum, estimated, withholding, payroll, employment, unemployment, insurance,
social security (or similar), excise, production, sales, use, value-added,
occupancy, franchise, real property, personal property, business and occupation,
mercantile, windfall profits, capital stock, stamp, transfer, workmen's
compensation or other tax, fee, levy or imposition of any kind whatsoever,
including any interest, penalties, additions, assessments or deferred liability
with respect thereto, or with respect to any information reporting requirements
imposed by the Code or any similar provisions of state, local or foreign law,
and any interest in respect of such penalties, additions, assessments or
deferred liability, whether or not disputed.
For purposes of this Section 2.09, "Tax Return" means any return,
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report, notice, form, declaration, claim for refund, estimate, election, or
information statement or other document relating to any Tax, including any
schedule or attachment thereto, and any amendment thereof and any documentation
required to be retained by the CENTURY in respect of information reporting
requirements imposed by the Code or any similar provisions of foreign, state or
local law.
2.10 ERISA Compliance. CENTURY is in compliance in all material
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respects with the requirements of the Employee Retirement Income Security Act of
1974, as amended, as such Act may apply to any bonus, incentive compensation,
deferred compensation, profit sharing, retirement, pension, group insurance,
disability, death benefit, severance or other benefit plan, trust agreement or
arrangement of CENTURY in effect on the date hereof or to become effective after
the date hereof (the "CENTURY Benefit Plans"). All of the CENTURY Benefit Plans
are fully funded as to past service liabilities and all accrued payments
thereunder have been paid. As to any plan purporting to be a qualified plan
under Section 401 of the Internal Revenue Code of 1986, all necessary action has
been taken to effect and maintain the qualifications of such plan. Any trust
established in connection with any such plan has no accrued or contingent
liability known to CENTURY, other than obligations to its beneficiaries,
including without limitation liabilities for any taxes, and any such trust's
fiduciaries have no liabilities, accrued or contingent, known to CENTURY, for
breach of duty to such trust.
2.11 Property. CENTURY has marketable title to all real property
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and good and indefeasible title to all other assets of CENTURY (i) reflected on
the CENTURY Financial Statements (ii) thereafter acquired by CENTURY, free and
clear of all mortgages, liens, pledges or encumbrances of any nature whatsoever,
except for liens for taxes, assessments, governmental charges or levies on its
property, if such assessments, governmental charges or levies shall not at the
time be due and delinquent or the same thereafter can be paid without penalty,
and such encumbrances, purchase money liens and imperfections of title, if any,
which do not materially interfere with the present or proposed use of such
property or otherwise materially impair the business operations relating to such
property; provided, however, that this representation and warranty shall not
extend to those assets of CENTURY which in the aggregate are not material to the
business, results of operations, prospects or financial condition of CENTURY
taken as a whole. All real estate owned by CENTURY will be separately listed on
Schedule 2.11. All tangible property and assets of CENTURY, which are material
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to the business, results of operations, prospects of financial condition of
CENTURY taken as a whole, have been well maintained and are in good operating
condition and repair, in all material respects, except for ordinary wear and
tear.
2.12 Additional Schedules to be Furnished to BANCFIRST. In addition
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to the Schedules previously delivered to BANCFIRST pursuant to other provisions
of this Agreement, XXXXXXX and CENTURY will deliver to BANCFIRST the following
additional Schedules:
(a) Certain Contracts, Agreements, Licenses. Schedule 2.12-a
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will list as of the date hereof (i) each contract, including leases (other than
policies of insurance, reinsurance agreements and agent contracts), to which
CENTURY is a party which involves or may involve aggregate future payments
(whether in payment of debt, as a result of a guarantee or indemnification, for
goods or services, royalties or otherwise) by or to any of them of $50,000 or
more, other than contracts which may be cancelled without penalty on 30 days'
notice or less; (ii) franchises, licenses or other agreements of CENTURY; and
(iii) all license agreements to which CENTURY is a party by which
CENTURY grants, or is granted, any right to any trademark, trade name,
copyright, patent, know-how or other intangible property.
(b) Governmental Licenses, Permits. Schedule 2.12-b lists all
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licenses, certificates, permits and other evidences of authority of any
regulatory authority, which licenses, certificates, permits and other evidences
of authority singly or in the aggregate are material to the business, results of
operations, prospects or financial condition of CENTURY taken as a whole.
CENTURY has all necessary governmental authorizations to own its properties and
assets and to carry on its business, as now being conducted, the absence of
which might have a Material Adverse Effect, and there is no proceeding or
investigation pending or threatened which would reasonably be expected to lead
to the revocation, amendment, failure to renew, limitation, modification,
suspension or restriction of any such permit. CENTURY is not operating under any
formal or informal agreement or understanding with the regulatory authority of
any state which restricts its authority to do business or requires it to take,
or refrain from taking, any action otherwise permitted by law.
(c) Employee Arrangements. A current list of the names and
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current annual salaries of all present officers and employees of CENTURY will be
provided to BANCFIRST prior to closing.
(d) Pension, Bonus Plan, etc. Schedule 2.12-d will list as of
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the date hereof all of the CENTURY Benefit Plans.
(e) Insurance. Schedule 2.12-e will set forth as of the date
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thereof a list and description of all policies of fire, liability, casualty and
other forms of insurance held by with respect to the operation and assets of
CENTURY. CENTURY (i) has adequately insured, by financially sound and reputable
insurers, all property of a character usually insured by corporations engaged in
the same or similar business similarly situated, against loss or damage of the
kinds customarily insured against by such corporations, and (ii) carried, with
financially sound and reputable insurers, such other insurance (including,
without limitation, liability and blanket bond insurance) and in such amounts as
is usually carried by corporations engaged in the same or a similar business,
similarly situated.
(f) Trademarks, etc. Schedule 2.12-f will set forth as of the
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date hereof a list of all material trademarks, trade names, service marks,
patents and licenses in respect thereof registered in the name of CENTURY, or in
which it has any right, title or interest, or for which applications are
pending. The conduct by CENTURY of its business does not, to CENTURY's
knowledge, infringe upon or violate the patents, trademarks, service marks,
trade names, trade secrets, copyrights, licenses of right of anyone in any
material respect, except as set forth in Schedule 2.12-f.
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2.13 Agreements in Force and Effect. All material contracts,
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agreements, plans, leases, licenses, certificates, insurance policies, permits,
and franchise and license agreements of CENTURY relating to its business
operations and finances are valid and in full force and effect in accordance
with their terms, except to the extent in the aggregate not material to the
business, results of operations, prospects or financial condition of CENTURY
taken as a whole. Except as set forth in Schedule 2.13, CENTURY has not
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breached any provision of, or is in default in any material respect under the
terms of, any such contract, agreement, plan, lease, license, certificate,
insurance policy, permit, franchise or license agreement, except in such
respects as in the aggregate are not material to the business, results of
operations, prospects or financial condition of CENTURY taken as a whole.
CENTURY has not taken or omitted to take any action within its control, which
would cause the representations and warranties in this paragraph to be incorrect
as of any date subsequent to the Effective Time.
2.14 Litigation, Default. CENTURY has complied with, any laws,
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rules, regulations, ordinances, orders, writ, injunctions or court decrees
applicable to it, the failure to comply with which in the aggregate might have a
Material Adverse Effect. CENTURY is not subject to any order, ruling, decree or
judgment, having continuing effect, of any court, arbitrator or other
governmental agency or instrumentality. There are no claims, actions, suits,
arbitrations, investigations, disputes or other proceedings pending or, to the
knowledge of CENTURY, threatened, which claim, action, suit, arbitration,
investigation, dispute or other proceeding might have a Material Adverse Effect;
and CENTURY has no knowledge of any reasonable basis for any such claim, action,
suit, arbitration, investigation, dispute or other proceeding.
2.15 Labor Matters. There are no labor disputes between CENTURY and
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any of its employees or representatives of such employees which in the aggregate
might materially adversely affect the business, results of operations, prospects
or financial condition of CENTURY taken as a whole.
2.16 Hazardous Substances, Materials, Wastes, etc. (i) No hazardous
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or toxic materials, including, without limitation, any asbestos or asbestos
containing materials, polychlorinated biphenyls, solid, liquid, gaseous or
thermal irritant or contaminant or any substances defined as or included in the
definition of "hazardous substances," "hazardous waste," or "toxic substances"
under any applicable federal or state laws or regulations and including
materials to be recycled, reconditioned or reclaimed (collectively hereinafter
referred to as "Hazardous Material") are or have been or will be manufactured,
used, located on, installed in, transported to or from, generated, stored,
buried, released, allowed to escape, discovered upon, or disposed of on, or in a
location that has or will adversely affect CENTURY; and (ii) no notice,
requests, investigation, administrative order, consent order, agreement,
litigation or settlement is proposed, threatened, anticipated or in existence
with respect to the presence, suspected presence or potential presence of any
Hazardous Material on or about the assets of CENTURY from any source.
2.17 Additional Representations and Warranties Relating to Insurance
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Business and Related Matters.
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(a) Reserves. The aggregate reserves and other amounts held in
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respect of liabilities with respect to Insurance Contracts (as hereinafter
defined) of CENTURY, as established or reflected in each of the CENTURY
Financial Statements referred to in Section 2.05 hereof (i) were computed in
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accordance with then accepted actuarial standards consistently applied and are
fairly stated in accordance with sound actuarial principles, (ii) are based on
actuarial assumptions which produce reserves at least as great as those called
for in any policy or contract provision as to reserve basis and method, and are
in accordance with all other policy or contract provisions, (iii) meet all
requirements of applicable law and exceed the minimum aggregate amounts required
thereby, (iv) include provisions for all actuarial reserves and related
actuarial statement items which ought to be established; and (v) are adequate on
a SAP basis. For purposes of this Section 2.17, "Insurance Contract" shall mean
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any contract or agreement of insurance, together with any riders or endorsements
thereto, including, but not limited to, life insurance policies, annuity
contracts, variable contracts and reinsurance contracts.
(b) Absence of Certain Changes. Except as disclosed in a
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writing to BANCFIRST, specifically identifying the subject matter of the writing
as an exception to the matters covered by this Section 2.17(b), or as expressly
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contemplated by this Agreement, since June 30, 2000, there has not been:
(i) any acquisition of assets or incurrence of
liabilities by CENTURY which is not primarily related to the life insurance
business of CENTURY;
(ii) any change in any material way by CENTURY in
underwriting, actuarial or reserving policies or standards;
(iii) any material change in the basis for establishing
reserves or rates and depreciation or amortization policies of CENTURY, except
for any such change as a result of a concurrent change in SAP;
(iv) (A) any entering into of any facultative reinsurance
contract, other than in the ordinary course of business consistent with past
practice, or (B) any commutation of any facultative reinsurance contract, or (C)
any entering into or any commutation of any reinsurance treaty, by CENTURY;
(v) in the case of CENTURY, any increase or decrease in
the percentage of its reinsured business, or any decrease in the amount of its
in-force business which has had or would reasonably be expected to have a
Material Adverse Effect;
(vi) any material insurance transaction by CENTURY other
than in the ordinary course of business consistent with past practice;
(vii) any significant change by CENTURY in the
compensation structure of, or benefits available to, any significant agent or
with respect to agents generally;
(viii) any agreement or commitment (contingent or
otherwise) to do any of the foregoing.
(c) Regulatory Filings.
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(i) To the knowledge of XXXXXXX and CENTURY, the business
of CENTURY is being conducted in compliance in all material respects with all
applicable laws, including, without
limitation, all insurance laws, ordinances, rules, regulations, decrees and
orders of any governmental entity, and all material notices, reports, documents
and other information required to be filed thereunder within the last three
years were properly filed in all material respects and were in compliance in all
material respects with such laws.
(ii) CENTURY has made available for inspection by
BANCFIRST complete copies of all material registrations, filings and submissions
made since January 1, 1997 by CENTURY with any governmental entity and any
material reports of examinations, including financial, market conduct and any
other exams of any kind, issued since January 1, 1997 by any such governmental
entity that relate to CENTURY.
(iii) To the knowledge of XXXXXXX and CENTURY, (A) all
policy forms issued, reinsured or underwritten by CENTURY that represent at
least 5% of its 1999 annualized life insurance premium (i) are, to the extent
required under applicable laws in all material respects, approved by the
insurance regulatory authority of the jurisdiction where issued or have been
filed with and not objected to by such authority within the period provided for
objection; and (B) have been filed or registered as required with all other
applicable governmental authorities.
(iv) To the knowledge of XXXXXXX and CENTURY, CENTURY has
not received information which would reasonably cause it to believe that the
financial condition of any other party to any material reinsurance or
coinsurance agreements, swap agreements, other derivative instruments or
contracts, or any other material agreement is so impaired as to result in a
default thereunder.
(d) Reinsurance Agreements. Copies of all reinsurance
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agreements to which CENTURY is a party have previously been provided to
BANCFIRST. Each reinsurance agreement to which CENTURY is a party is in full
force and effect (except where any such agreement has terminated as to new
business pursuant to its terms) and CENTURY is not in material breach of any
provision thereof and, to the knowledge of CENTURY, no other party to such
reinsurance agreements is in breach or has threatened breach of any provision
thereof.
(e) Threats of Cancellation. Except as disclosed in a writing
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to BANCFIRST, specifically identifying the subject matter of the writing as an
exception to the matters covered by this Section 2.17(e), since June 30, 2000,
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no group of policyholders or persons writing, selling, or producing, either
directly or through reinsurance assumed, insurance business, that individually
or in the aggregate for each such group or person, respectively, accounted for
5% or more of the premium income of CENTURY for the year ended December 31,
1999, has terminated or, to the knowledge of CENTURY, threatened to terminate
its relationship with CENTURY.
ARTICLE III
Representations and Warranties of BANCFIRST
BANCFIRST hereby represents and warrants to XXXXXXX that:
3.01 Organization, Authority. BANCFIRST is a duly organized
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corporation, validly existing and in good standing under the laws of the State
of Oklahoma, has all requisite corporate power and authority to own and lease
its properties, to carry on its business as presently conducted and to carry out
the transactions contemplated hereby.
3.02 Corporate Action. BANCFIRST has full corporate power and
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authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
BANCFIRST, and is the respective valid and binding agreement of BANCFIRST
enforceable in accordance with its terms, subject to laws relating to creditor's
rights generally. BANCFIRST will deliver to XXXXXXX certified resolutions
approving the execution and delivery of the Agreement.
3.03 Litigation. There are no claims, actions, suits, arbitrations,
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investigations, disputes or other proceedings pending or, to the knowledge of
BANCFIRST, threatened, which claim, action, suit, arbitration, investigation,
dispute or other proceeding, might adversely affect BANCFIRST's ability to
complete the Acquisition.
3.04 Consents, Approvals, Filings, etc. of Governmental Authorities.
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No characteristic of BANCFIRST or the nature of its business or operations,
requires any consent, approval or authorization of, or declaration, filing or
registration with, any governmental or regulatory authority in connection with
the execution and
delivery of this Agreement and the consummation of the transactions contemplated
herein, except for approval by the Federal Reserve Board and the Oklahoma
Insurance Commission.
ARTICLE IV
Conduct of Business of CENTURY
Prior to Effective Date of the Acquisition
CENTURY and XXXXXXX agree that, except as otherwise consented to in
writing by BANCFIRST prior to the Effective Time:
4.01 Regular Course of Business of CENTURY. CENTURY will carry on
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its business diligently and substantially in the same manner as heretofore, and
will use all reasonable efforts to preserve their present business organizations
intact, keep available the services of its present officers, agents and
employees and preserve their present relationship with persons having business
dealings with it.
4.02 Restricted Activities and Transactions of CENTURY. From and
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after the date of this Agreement, CENTURY will not engage in, or permit to
happen, any one or more of the following without the prior written consent of
BANCFIRST:
(a) issue, sell or deliver, split, reclassify, combine or otherwise adjust,
or agree to issue, sell or deliver, split, reclassify, combine or otherwise
adjust, any stocks, bonds or other corporate securities of which CENTURY is the
issuer (whether authorized and unissued or held in treasury), or, grant or
issue, or agree to grant or issue, any options, warrants or other rights
(including convertible securities) calling for the issue thereof;
(b) borrow, or agree to borrow, any funds or voluntarily incur, assume
or become subject to, whether directly or by way of guarantee or otherwise, any
obligation or liability (absolute or contingent), except in the ordinary course
of business or under existing short term lines of credit;
(c) mortgage or pledge any of its assets, tangible or intangible,
other than securities pledged in the ordinary course of business;
(d) sell, lease, exchange or otherwise transfer, or agree to sell,
lease, exchange or otherwise transfer, any of its other assets, property or
rights to cancel any debts or claims;
(e) enter, or agree to enter, into any agreement or arrangement
granting any rights or option to purchase any of the assets, property or rights
of CENTURY or requiring the consent of any party to the transfer or assignment
of any such assets, property or rights;
(f) sell or otherwise dispose of (including the granting of any
license with respect to), or make or permit any amendment extension, renewal or
termination of, or waive any rights under, any agreement listed in Schedule
--------
2.12(a);
------
(g) make any material change in, or adopt, any profit-sharing, bonus,
deferred compensation, insurance, pension, retirement, severance or other
employee benefit plan, payment or arrangement or enter into any employment,
consulting or management contract, or make any increase in base salaries;
(h) enter into any collective bargaining agreement not heretofore in
force;
(i) except as contemplated by this Agreement, merge or consolidate
with any other corporation, acquire control of any other corporation or business
entity, or take any steps incident to, or in furtherance of, any of such
actions, whether by entering into an agreement providing therefor or otherwise;
(j) enter into or extend any contract, agreement, or course of action
which may require payments in excess of $5,000 per year;
(k) except as required by law or generally accepted accounting
principles, make any material alteration in the manner of keeping its books,
accounts or records, or in the accounting practices therein reflected;
(l) declare, set aside or pay any dividends;
(m) directly or indirectly redeem, purchase or otherwise acquire any
of its own stock, or make any other distributions of its assets to its
shareholders, or reclassify, recapitalize, split up or otherwise adjust any of
its capital stock; or
(n) amend or alter the Certificate of Incorporation or Bylaws of
CENTURY.
ARTICLE V
Other Obligations
5.01 Full Access. CENTURY shall, during normal business hours,
-----------
afford to the officers and authorized representatives of BANCFIRST full access
to its properties, books and records in order that they may have full
opportunity to make such investigations as they shall desire of the affairs of
CENTURY; and CENTURY will furnish BANCFIRST with such additional financial and
operating data and other information as to its business and properties as
BANCFIRST shall from time to time reasonably request. In the event of the
termination and abandonment of the Acquisition all such non-public information
shall be held in strict confidence by BANCFIRST and its officers, employees and
legal representatives except as may be required in any legal proceeding.
5.02 Consents. BANCFIRST shall use its best efforts to obtain the
--------
consents set forth in Section 3.04. XXXXXXX and CENTURY shall provide all
------------
assistance reasonably requested by BANCFIRST in connection with all necessary
regulatory filings and obtaining all required consents.
5.03 Supplements to Information. From time to time prior to the
--------------------------
Effective Time, XXXXXXX and CENTURY will deliver to BANCFIRST in writing
information concerning events subsequent to the date hereof in order to keep the
information in the Schedules timely, complete and accurate.
5.04 Resignations. At the Closing, all of the directors of CENTURY
------------
other than Xxxxxx Xxxxxx shall resign as such as of the Effective Time.
5.05 Further Assurances. Each party hereto agrees to execute and
------------------
deliver such instruments and take such other actions as the other parties may
reasonably require in order to carry out the intent of this Agreement. Each
party shall use its best efforts to perform and fulfill all conditions and
obligations on its part to be performed or fulfilled under this Agreement and to
effect the Acquisition in accordance with the terms and conditions of this
Agreement.
ARTICLE VI
Conditions to XXXXXXX'x Obligations
Each and every obligation of XXXXXXX under this Agreement to be
performed on or before the Effective Time shall be subject to the satisfaction,
on or before the Closing, of the following conditions:
6.01 Representations and Warranties True. The representations and
-----------------------------------
warranties contained in Article III hereof shall be in all material respects
true and accurate as of the date when made and as of the Closing (except for
changes contemplated by this Agreement). BANCFIRST shall have performed and
complied in all material respects with each and every covenant, agreement and
condition required by this Agreement to be performed or complied with by them
prior to or on the Closing. BANCFIRST shall have furnished XXXXXXX with a
certificate of BANCFIRST signed by its President to the foregoing effect.
6.02 No Governmental or Other Proceeding or Litigation. No order of
-------------------------------------------------
any court or administrative agency shall be in effect which restrains or
prohibits the transactions contemplated hereby or which restricts the right of
BANCFIRST to own or operate any part of the business of CENTURY, and no suit,
action, investigation, inquiry or proceeding by any governmental body shall have
been instituted or threatened which questions the validity or legality of the
transactions contemplated hereby or which challenges the right of BANCFIRST to
own or operate any part of the business of CENTURY.
6.03 Approvals and Consents. All approvals of applications to
----------------------
public authorities, federal, state, or local, and any private persons, the
granting of which is necessary for the consummation of the Acquisition, shall
have been obtained, and all statutory waiting periods with respect thereto shall
have expired.
ARTICLE VII
Conditions to Obligations of BANCFIRST
Each and every obligation of BANCFIRST under this Agreement to be
performed on or before the Effective Time shall be subject to the satisfaction,
on or before the Closing, of the following conditions:
7.01 Representations and Warranties True. The representations and
-----------------------------------
warranties contained in Article II hereof shall be in all material respects true
and accurate as of the date when made and as of the Closing Date (except for
changes contemplated by this Agreement). XXXXXXX and CENTURY shall have
performed and complied in all material respects with each and every covenant,
agreement and condition required to be performed or complied with by them prior
to or on the Closing. BANCFIRST shall have received a certificate signed by the
President of CENTURY and by XXXXXXX to the foregoing effect.
7.02 No Governmental or Other Proceeding or Litigation. No order of
-------------------------------------------------
any court or administrative agency shall be in effect which restrains or
prohibits the transactions contemplated hereby or which restricts the right of
BANCFIRST to own or operate any part of the business of CENTURY and no suit,
action, investigation, inquiry or proceeding by any governmental body shall have
been instituted or threatened which questions the validity or legality of the
transactions contemplated hereby or which challenges the right of BANCFIRST to
own or operate any part of the business of CENTURY.
7.03 Approvals and Consents. All approvals of applications to
----------------------
public authorities, federal, state or local, and any private persons, the
granting of which is necessary for the consummation of the Acquisition, for
preventing the termination of any material right, privilege, license or
agreement of, or any material loss or disadvantage to, or the withholding of
which might have a Material Adverse Effect on the business, results of
operations, prospects or financial condition of CENTURY taken as a whole, upon
the consummation of the Acquisition, shall have been obtained, and all statutory
waiting periods with respect thereto shall have expired. With respect to the
approval of state and federal bank holding company or other regulatory agency,
as described in Section 3.04 hereof, the form and substance of such approvals
------------
shall be satisfactory to BANCFIRST in its sole discretion.
7.04 Secretary's Certificate. BANCFIRST shall have received a
-----------------------
certificate, dated the Closing, from the Secretary of CENTURY which certifies to
the number of shares of Century Common Stock which were issued and outstanding
as of the close of business on the business day immediately preceding the date
of such certificate.
7.05 No Material Adverse Change. There shall not have occurred
--------------------------
since the date of the CENTURY Financial Statements, any change in the business,
properties, operations, assets or condition (jurisdictionally or otherwise) of
CENTURY taken as a whole that would result in a Material Adverse Effect.
ARTICLE VIII
Survival and Indemnification
8.01 Survival.
--------
(a) All representations, warranties, covenants and agreements
made in this Agreement shall survive the Closing and shall not be extinguished
by the Closing or any investigation made by or on behalf of any party hereto,
for a period of one (1) year after the Closing Date.
(b) All claims by XXXXXXX for indemnification pursuant to
Section 8.03, and all claims by BANCFIRST for indemnification pursuant to
------------
Section 8.02, must be made within one (1) year of the Closing Date (the
------------
"Indemnification Termination Date") or shall be forever barred.
Provided, however, that claims first made in good faith and in
writing in reasonable detail prior to the Indemnification Termination Date may
be pursued until they are finally resolved.
8.02 BANCFIRST's Losses. XXXXXXX hereby agrees, subject to Sections
------------------ --------
8.01 and 8.04, to indemnify BANCFIRST, and, effective at Closing and without
---- ----
duplication, CENTURY, and save and hold them harmless from, against, for and in
respect of any and all damages (including, without limitation, amounts paid in
settlement with XXXXXXX'x consent), losses, obligations, liabilities, liens,
deficiencies, costs and expenses, including, without limitation, reasonable
attorneys' fees and other costs and expenses incident to any suit, action,
investigation, claim or proceeding (hereinafter referred to collectively as
"BANCFIRST's Losses"), to the extent BANCFIRST's Losses are related to or
arise by reason of: (i) the breach by XXXXXXX or CENTURY of any provisions of
this Agreement, including any representation or warranty made by XXXXXXX or
CENTURY in or pursuant to this Agreement being untrue or incorrect in any
material respect; (ii) any material failure by XXXXXXX or CENTURY to observe or
perform its covenants and agreements set forth in this Agreement; or (iii) any
claim relating to the conduct of the business of CENTURY before the Closing Date
that has not previously been disclosed to BANCFIRST in writing.
8.03 XXXXXXX'x Losses. BANCFIRST agrees, subject to Sections 8.01
---------------- -------------
and 8.04, to indemnify XXXXXXX and save and hold XXXXXXX harmless from, against,
----
for and in respect of any and all damages (including, without limitation,
amounts paid in settlement with BANCFIRST's consent), losses, obligations,
liabilities, claims, deficiencies, cost and expenses, including, without
limitation, reasonable attorneys' fees and other costs and expenses incident to
any suit, action, investigation, claim or proceeding (hereinafter referred to
collectively as "XXXXXXX'x Losses"), to the extent XXXXXXX'x Losses are related
to or arise by reason of: (i) the breach by BANCFIRST of any provision of this
Agreement, including any representation or warranty made by BANCFIRST in or
pursuant to this Agreement being untrue or incorrect in any material respect;
(ii) any material failure by BANCFIRST to observe or perform its covenants and
agreements set forth in this Agreement.
8.04 Notice of Loss. Notwithstanding anything herein contained,
--------------
neither BANCFIRST nor XXXXXXX shall have any liability under the indemnity
provisions of this Agreement with respect to a particular matter unless a notice
setting forth in reasonable detail the claim which is asserted has been given to
the Indemnifying Party (hereafter defined) within five (5) days after the
Indemnified Party becomes aware of such claim and, in addition, if such matter
arises out of a suit, action, investigation or proceeding, such notice is given
within five (5) days after the Indemnified Party (hereafter defined) shall have
been given notice of the commencement of a suit, action, investigation or
proceeding. With respect to BANCFIRST's Losses pursuant to Section 8.02 hereof,
------------
XXXXXXX shall be the Indemnifying Party and BANCFIRST and/or CENTURY shall be
the Indemnified Party. With respect to XXXXXXX Losses pursuant to Section 8.03
------------
hereof, BANCFIRST shall be the Indemnifying Party and XXXXXXX shall be the
Indemnified Party. The Indemnifying Party shall have 20 days from the date the
notice is given in accordance with this Section (the "Notice Period") to notify
the Indemnified Party whether it disputes the liability of the Indemnifying
Party to the Indemnified Party hereunder with respect to such claims and whether
it desires, at the sole cost and expense of the Indemnifying Party, to defend
the Indemnified Party against such claims. Notwithstanding the foregoing, any
Indemnified Party is hereby authorized prior to and during the Notice Period to
file any motion, answer or other pleading that it shall deem necessary or
appropriate to protect its interests or those of the Indemnifying Party (and of
which it shall have given notice and opportunity to comment to the Indemnifying
Party) and that is not prejudicial to the Indemnifying Party.
8.05 Right to Defend. Upon receipt of notice of any suit, action,
---------------
investigation, claim or proceeding for which indemnification might be claimed by
an Indemnified Party, the Indemnifying Party shall be entitled promptly to
defend, contest or otherwise protect against such suit, action, investigation,
claim or proceeding at its own cost and expense, including the right to invoke
any arbitration proceeding available in the dispute. The Indemnified Party shall
give the Indemnifying Party access to all records relating to such claim and
will cooperate fully with the Indemnifying Party in the defense of such claim
and will assign to the Indemnifying Party rights against third parties which
might have responsibility to the Indemnified Party for such claim. The
Indemnified Party shall have the right, but not the obligation, to participate
at its own expense in a defense thereof by counsel of its own choosing, but the
Indemnifying Party shall be entitled to control the defense unless the
Indemnified Party has relieved the Indemnifying Party from liability with
respect to the particular matter. If the Indemnifying Party fails to assume
defense of the matter by the end of the Notice Period after receiving the
notice, as set forth in Section 8.04, relating to any such suit, action,
------------
investigation, claim or proceeding, the Indemnified Party shall have the right,
but not the obligation, to defend, contest or otherwise protect against the same
and make any compromise or settlement thereof, with counsel of its choosing, and
recover the entire cost thereof from the Indemnifying Party including reasonable
attorneys' fees, disbursements and all amounts paid as a result of such suit,
action, investigation, claim or proceeding or the compromise or settlement
thereof. However, if the Indemnifying Party undertakes the defense of such
matters after the Indemnified Party has began the defense, the Indemnified Party
shall be entitled to recover from the Indemnifying Party any legal or other
expenses incurred by the Indemnified Party in connection with the defense
thereof.
ARTICLE IX
Termination and Abandonment
9.01 Methods of Termination. Anything herein to the contrary
----------------------
notwithstanding, this Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time, as follows:
(a) by mutual consent of the Board of Directors of BANCFIRST
and the General Partners of XXXXXXX;
(b) prior to the Effective Time by (i) the General Partners of
XXXXXXX; or (ii) the Board of Directors of BANCFIRST, if there has been a
material misrepresentation or a breach of warranty or of a covenant on the part
of the other party in the representations, warranties and covenants set forth
herein or in any schedule or certificate delivered pursuant hereto; or
(c) by either Party, if the Acquisition has not become
effective by February 1, 2001.
9.02 Requirements and Effect of Termination. In the event of
--------------------------------------
termination and abandonment by the General Partners of XXXXXXX or by the Board
of Directors of BANCFIRST, or both, pursuant to Section 9.01, written notice
------------
thereof shall forthwith be given to the other party, and no party hereto shall
have any liability or further obligation to the other party to this Agreement,
except as provided in the last sentence of Section 5.01, unless such termination
------------
results from a material breach of this Agreement or misrepresentation when made
of a material fact represented herein or any schedule or certificate delivered
pursuant thereto.
9.03 Expenses. In the event this Agreement is terminated in the
--------
absence of a misrepresentation of a material part or a material breach on the
part of either party, each party shall bear its own costs related to the
transactions contemplated hereby.
ARTICLE X
Miscellaneous Provisions
10.01 Waiver of Compliance. Any failure of XXXXXXX, CENTURY or
--------------------
BANCFIRST to comply with any obligation, covenant, agreement or condition herein
may be expressly waived (to the extent permitted under applicable law) in
writing by the Chief Financial Officer of BANCFIRST or the General Partners of
XXXXXXX, as the case may be; provided, however, such waiver or failure to insist
upon strict compliance with such obligation, covenant, agreement or condition
shall not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure.
10.02 Notices. Any notice or communication required or permitted to
-------
be made hereunder shall be in writing, and shall be deemed to have been made if
delivered personally or by facsimile, receipt confirmed, or if mailed, by
registered or certified mail, return receipt requested, to the parties at the
addresses shown below. The date of personal delivery shall be the date of giving
notice, or if mailed in the manner prescribed above, notice shall be deemed to
have been given three (3) business days after the mailing.
To XXXXXXX:
Xx. Xxxxx X. Xxxxxxxx, Managing Partner
000 X. Xxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
To BANCFIRST:
Xx. Xxx X. Xxxxxxxx, Xx., Executive Vice President and Chief Financial
Officer
000 X. Xxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
To CENTURY:
Xx. Xxxxxx Xxxxxx, President
000 X. Xxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
10.03 Publicity. BANCFIRST and XXXXXXX shall cooperate with each
---------
other in the development and distribution of all news releases and other public
disclosures concerning this Agreement and shall not issue any news release or
make any other public disclosure without the prior consent of the other party,
unless such is required by law upon the written advice of counsel or is in
response to published newspaper or other mass reports
regarding the transaction contemplated hereby, in which such latter events the
parties shall consult with each other regarding such responsive public
disclosure (before issuing any written press release or other written response).
10.04 Return of Documents. Upon termination of this Agreement
-------------------
without the Acquisition becoming effective, each party shall deliver to the
other originals and all copies of all information made available to such party
by the other and will not retain any copies, extracts or other reproductions in
whole or in part of such information.
10.05 Assignment. This Agreement and all of the provisions hereof
----------
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by either of
the parties hereto without the prior written consent of the other party.
10.06 Governing Law. This Agreement and the legal relations between
-------------
the parties hereto shall be governed by and construed in accordance with the
laws of the State of Oklahoma, except insofar as the internal law of any other
political entity or jurisdiction shall specifically and mandatorily apply to any
of the transactions contemplated hereby.
10.07 Counterparts. This Agreement may be executed simultaneously in
------------
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
10.08 Headings. The headings of the Sections of this Agreement are
--------
inserted for convenience only and shall not constitute a part hereof.
10.09 Entire Agreement. This Agreement, the Schedules, other
----------------
documents, writings or deliverables referred to herein which form a part hereof,
contains the entire understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered all as of the day and year first above written.
BANCFIRST: BANCFIRST CORPORATION
By: /s/ Xxx X. Xxxxxxxx, Xx.
--------------------------------------------
Xxx X. Xxxxxxxx, Xx.,
Executive Vice President and Chief Financial
Officer
XXXXXXX: XXXXXXX LIMITED PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxxx, Managing Partner
CENTURY: CENTURY LIFE ASSURANCE COMPANY
By: /s/ Xxxxxx Xxxxxx
--------------------------------------------
Xxxxxx Xxxxxx, President
