EXHIBIT 10.1
C O N F I D E N T I A L
TRANSACTION DOCUMENT
(All Cash Reverse Triangular Merger Transaction)
****
MERGER AGREEMENT
AMONG
BOK FINANCIAL CORPORATION,
BOKF MERGER CORPORATION NUMBER EIGHT,
VALLEY COMMERCE BANCORP LTD.
AND
VALLEY COMMERCE BANK
* * * *
Agreement Date of December 20, 2004
INDEX TO MERGER AGREEMENT
Section Page
------- ----
1. Purpose of this Merger Agreement.....................................1
2. The Merger...........................................................2
3. Effect of the Merger.................................................4
4. Representations and Warranties of VCB ...............................5
5. Representations and Warranties of BOKF and Merger Corp..............18
6. Covenants...........................................................21
7. Conditions Precedent to Closing by BOKF and Merger Corp.............35
8. Conditions Precedent to Closing by VCB and Bank ....................38
9. Closing.............................................................39
10. Exchange Procedures; Surrender of Certificates; Paying Agent........43
11. Escrow..............................................................46
12. Shareholder Representative..........................................48
13. ESI Escrow..........................................................51
14. Termination.........................................................55
15. Miscellaneous Provisions............................................58
Exhibit Caption Exhibit Number
--------------- --------------
Options and Rights 4.3
Agreements 4.4
Agreements 4.6
Conduct of Business Exceptions 4.7
Material Contracts and Commitments 4.9
Exception to Performance Representation 4.9.2
Litigation 4.10
Employee Contracts and Benefit Plans 4.15
Regulatory Commitment 4.20
Employee Payments, Agreements and Benefits 6.3.7
Form of Agreement to Vote Shares 6.4
VCB Opinion of Counsel 7.6
BOKF Opinion of Counsel 8.3
Employment Agreements and Claims 9.1.8
Form of Representation Escrow Agreement 11
Form of ESI Escrow Agreement 13
MERGER AGREEMENT
This merger agreement ("Merger Agreement" or "Agreement") is made as of
December 20, 2004 (the "Agreement Date") among the following parties (the
"Parties"): (i) BOK Financial Corporation, an Oklahoma corporation, ("BOKF");
(ii) BOKF Merger Corporation Number Eight, an Oklahoma corporation and a
wholly-owned subsidiary of BOKF ("Merger Corp");
(iii) Valley Commerce Bank ("Bank"); and
(iv) Valley Commerce Bancorp, Inc., a Delaware corporation ("VCB").
In consideration of the mutual covenants contained herein, the adequacy
of which is hereby expressly acknowledged, and intending to be legally bound
hereby, the Parties hereby agree as follows:
1. Purpose of this Merger Agreement. The purpose of this Merger Agreement is as
follows:
1.1. VCB is a bank holding company organized under the laws of Delaware
with offices in Phoenix and Scottsdale, Arizona. VCB is subject to
regulation by the Board of Governors of the Federal Reserve System ("FRB").
VCB owns all of the issued and outstanding capital stock of Bank
(headquartered in Phoenix, Arizona). The issued and outstanding capital
stock of VCB consists solely of a single class of 2,000,000 shares of
common stock of a par value of $0.01 per share of which 1,519,805 shares
are issued and outstanding at the Agreement Date. The common stock of VCB
issued and outstanding as of the Closing is hereafter called the "VCB
Common Stock".
1.2. Valley Commerce Capital Trust I (the "Trust") is a subsidiary of VCB
which was formed for the sole purpose of issuing trust preferred securities
(the "Trust Preferred Securities"). The Trust Preferred Securities consist
solely of $5,000,000 floating rate (3 month LIBOR + 2.8%) Cumulative Trust
Preferred Securities.
1.3. Bank is a bank organized in accordance with the laws of the State of
Arizona and subject to regulation by the Arizona State Banking Department.
The issued and outstanding capital stock of Bank consists solely of a
single class of twenty million (20,000,000) of no par value common stock
("Bank Common Stock").
1.4. BOKF is a bank holding company organized under the laws of the State
of Oklahoma. BOKF is subject to regulation by the FRB. BOKF owns all of the
capital stock of Merger Corp. Merger Corp is a bank holding company
organized under the laws of the State of Oklahoma. Merger Corp is subject
to regulation by the FRB. The issued and outstanding capital stock of
Merger Corp consists solely of 1,000 shares of common stock, par value of
$1.00 per share, of which 1,000 shares are issued and outstanding.
1.5. The purpose of this Merger Agreement is to set forth the terms and
conditions on which VCB and Merger Corp shall merge. This Merger Agreement
shall constitute a plan of merger for corporate law purposes and for
federal income tax purposes under Section 368(a)(2)(E) of the Internal
Revenue Code.
2. The Merger. On the terms and conditions hereafter stated, Merger Corp shall
be merged into VCB (the "Merger").
2.1. VCB shall be the surviving corporation ("Surviving Corporation").
2.2. The Articles of Incorporation of Merger Corp shall be the Articles of
Incorporation of the Surviving Corporation until changed as provided by
law.
2.3. The Bylaws of Merger Corp shall be the Bylaws of the Surviving
Corporation until changed as provided by law.
2.4. The officers of Merger Corp shall be the officers of the Surviving
Corporation, until changed as provided by law.
2.5. The directors of Merger Corp shall be the directors of the Surviving
Corporation until changed as provided by law.
2.6. The Merger shall be effective at the Closing (as hereafter provided in
Section 9).
2.7. Each share of issued and outstanding VCB Common Stock shall, subject
to appraisal rights pursuant to Section 262 of the Delaware General
Corporation Law, automatically and without any action on the part of the
holder thereof, be cancelled and converted solely into the right to receive
the following (the "Merger Consideration"):
2.7.1. At Closing, Twenty and 07/100ths dollars ($20.07) (the "Closing
Payment"); and,
2.7.2. At the first anniversary of the Closing, Thirty-three cents
($0.33), which BOKF shall deposit or cause to be deposited into an
interest bearing account with Bank of America, Phoenix, Arizona,
Private Banking Dept. (the "Escrow Agent") at Closing to be
distributed in accordance with the provisions of Section 11 (the
"Representation Escrow Funds").
2.7.3. On the third anniversary of the Closing, Thirty-four cents
($0.34), which BOKF shall deposit or cause to be deposited into an
interest-bearing account with the Escrow Agent at Closing to be
distributed in accordance with the provisions of Section 13 (the "ESI
Escrow Funds").
2.8. At the Closing, each outstanding option to acquire VCB Common Stock
(each a "Stock Option" and collectively the "Stock Options") shall be
automatically converted into the right to receive, in lieu of a share of
VCB Common Stock, the Merger Consideration, less the purchase price
specified in Stock Option as provided in Section 10.6.
2.9. Notwithstanding the provisions of Section 2.7, all holders of VCB
Common Stock perfecting their appraisal rights pursuant to Section 262 of
the Delaware General Corporation Law shall have only those rights set forth
therein.
2.10. Each share of common stock of Merger Corp shall, automatically and
without any action on the part of the holder thereof, be converted into one
share of fully paid and non-assessable share of VCB Common Stock.
3. Effect of the Merger. The Merger shall have the following effects:
3.1. The corporate franchise, existence, rights and liabilities of VCB
shall continue unaffected and unimpaired.
3.2. The corporate franchise, existence, rights and liabilities of Merger
Corp shall be merged into VCB and the separate existence of Merger Corp
shall cease.
3.3. VCB shall have and be vested with all of the rights, powers, assets,
property, liabilities and obligations of Merger Corp.
4. Representations and Warranties of VCB. VCB hereby represents and warrants to
BOKF that:
4.1. Incorporation and Corporate Power. VCB is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware. Bank is a bank duly organized, validly existing and in
good standing under the laws of the State of Arizona. Each of VCB and Bank
has all the corporate power and authority necessary and required to own its
properties and to conduct its business as such business is now being
conducted. Each of VCB and Bank (A) is in material compliance with all
applicable provisions of all applicable federal, state and local statutes,
laws, regulations, ordinances and other requirements of any governmental
authorities (including, but not limited to, whether similar or dissimilar,
the Bank Holding Company Act of 1956, the Delaware General Corporation Act,
the Arizona Revised Statutes Section 6-101 et seq (the "Arizona Banking
Code") and the filing of all administrative reports and the payment of all
fees) in effect as of the date of this Merger Agreement, and (B) shall be
in material compliance therewith at the time of Closing. The Trust is duly
organized and validly existing in accordance with all requirements of law.
4.2. Capital.
4.2.1. The VCB Common Stock will, at Closing, consist only of
1,519,805 shares plus only such shares as shall be duly issued upon
the exercise of the Stock Options.
4.2.2. VCB owns all of the issued and outstanding Bank Common Stock.
The Bank Common Stock is and at the Closing will be all of the issued
and outstanding capital stock of Bank.
4.3. Capitalization of VCB and Bank. The VCB Common Stock and Bank Common
Stock are validly issued and outstanding, fully paid and non-assessable.
4.3.1. Except as set forth in Exhibit 4.3, there are no outstanding
subscriptions, conversion privileges, calls, warrants, options or
agreements obligating VCB and/or Bank to issue, sell or dispose of, or
to purchase, redeem or otherwise acquire any shares of their capital
stock (collectively, "options and rights"). At the Closing, there will
be no outstanding options and rights except the Stock Options.
4.3.2. The Stock Options consist of the right to acquire no more than
53, 810.7 shares of VCB Common Stock.
4.3.3. None of the VCB Common Stock and Bank Common Stock has been
issued or disposed of, or will as of the Closing have been issued or
disposed of, in violation of any preemptive rights of any shareholder
nor in violation of any agreement to which VCB or Bank was or is a
party. VCB and Bank have no subsidiaries and do not own, nor have the
right or obligation to acquire, any equity securities of any
corporation, limited liability company, partnership or other legal
entity except (i) Bank is a subsidiary of VCB and (ii) the Trust.
4.4. Non-Violation of Other Agreements. Except with respect to any notice
or consent requirements in the agreements set forth in Exhibit 4.4, the
execution and delivery of this Merger Agreement, and the compliance with
its terms and provisions by VCB and Bank (including the execution and
delivery of any document required to be executed by VCB or Bank) will not
breach any material agreement, lease, or obligation, whether similar or
dissimilar, by which VCB, Bank, or the Trust is bound.
4.5. Financial Statements. VCB has delivered to BOKF, or will have
delivered to BOKF prior to the Closing as soon as future financial
statements are available, copies of the following ("Financial Statements"):
4.5.1. Consolidated Financial Statements (Audited) for VCB and
Subsidiaries, December 31, 2001, 2002 and 2003;
4.5.2. Financial Statements (Unaudited) for Bank, December 31, 2001,
2002, and 2003;
4.5.3. Financial Statements (Unaudited) for VCB and Subsidiaries, June
30, 2004 and the most recent monthly financial statements available as
of the Closing; and,
4.5.4. Financial Statements (Unaudited) for Bank, June 30, 2004 and
the most recent monthly financial statements as are available as of
the Closing. The Financial Statements described in Sections 4.5.1 and
4.5.2, (a) have been prepared or will have been prepared in accordance
with generally accepted accounting principles, consistently applied
and (b) fairly reflect the financial condition and results of
operations for the indicated periods. The Financial Statements
described in Sections 4.5.3 and 4.5.4, (a) have been prepared or will
have been prepared in accordance with generally accepted accounting
principles, consistently applied and (b) fairly reflect the financial
condition and results of operations for the indicated periods, subject
to normal year-end adjustments and omission of footnotes.
4.6. Material Liabilities. Except as set forth in Exhibit 4.6, neither VCB
nor Bank has any liabilities (including, but not limited to, whether
similar or dissimilar, liabilities or obligations for taxes, whether due or
to become due) that may reasonably involve annual expenditures in excess of
$25,000 except:
4.6.1. Those fully reflected or reserved against, or otherwise
disclosed, in the Financial Statements;
4.6.2. Those incurred since June 30, 2004 in the ordinary course of
business consistent with past practices;
4.6.3. Those under the BOKF Employment Agreements; and,
4.6.4. Those specifically disclosed in the Exhibits to this Merger
Agreement.
4.7. Conduct of Business Prior to Closing. Except as set forth in Exhibit
4.7, since December 31, 2003, (A) each of VCB and Bank has carried on its
business only in the ordinary course consistent with past practices, and
(B) has not:
4.7.1. Incurred any material liabilities, commitments or obligations,
contingent or otherwise, or dispose of any of its assets, except in
the ordinary course of its business consistent with past practices and
for the purpose of carrying on the business as a going concern (for
the purpose of this Section 4.7.1, material means that it may
reasonably involve annual expenditures of $25,000 or more);
4.7.2. Incurred any bank or other institutional debt, or enter into
any agreement for the borrowing of money, except borrowing of federal
funds or borrowing from the Federal Home Loan Bank by Bank consistent
with past practices;
4.7.3. Suffered any material adverse change in the financial
conditions, assets, liabilities, business or property of VCB taken as
a whole or of Bank taken as a whole; and/or
4.7.4. Made any material change in the manner in which business is
conducted (including, without limitation, branch relations, branch
closings, and any material change in products offered to customers).
4.7.5. From the date of this Agreement to the date of Closing, VCB and
Bank will not voluntarily take any of the actions described in the
foregoing provisions of Section 4.7.
4.8. Tax Returns/Reports.
4.8.1. Each of VCB and Bank has duly filed all tax reports and returns
required to be filed by it and has duly paid all taxes and other
charges claimed to be due from it by federal, state and local taxing
authorities.
4.8.2. No waivers of the statute of limitation have been issued with
respect to unaudited years.
4.8.3. VCB and Bank have no knowledge of any facts which could
reasonably be expected to result in a material deficiency with respect
to unaudited tax returns which would result in a material adverse
effect on VCB taken as a whole or Bank taken as a whole.
4.9. Contracts and Commitments.
4.9.1. A list of all contracts and commitments, other than credit and
lending, deposit or borrowing transactions entered into in the
ordinary course of business by VCB or Bank which are material to the
business, operations or financial condition of VCB or Bank as of this
date, is set forth on Exhibit 4.9. For the purpose of Exhibit 4.9,
materiality shall mean those contracts and commitments (including a
series of related contracts or commitments) for which payment or other
consideration to be furnished by any party is more than $25,000 a year
or $100,000 over the remaining life of the contract.
4.9.2. Except as set forth on Exhibit 4.9.2, each of VCB and Bank has
in all material respects performed and is performing all contractual
and other obligations required to be performed by them.
4.10. Litigation. Except as set forth in Exhibit 4.10, there is no pending,
or, to the knowledge of VCB and Bank threatened, any claim, litigation,
proceeding, order of any court or governmental agency, or governmental
investigation or inquiry to which VCB or Bank is a party or which involves
their business operations, any of their property or any property leased by
them which, individually or in the aggregate:
4.10.1. May reasonably result in any material adverse change in the
financial condition, business, prospects, assets, properties or
operations of VCB taken as a whole or Bank taken as a whole; or,
4.10.2. May reasonably involve the expenditure of more than a total of
$37,500 in legal fees or costs;
4.11. Brokerage Fees. Except with regard to Sandler ▇'▇▇▇▇▇ and Partners,
neither VCB nor Bank has incurred or will incur, directly or indirectly,
any liability for brokerage, finder's, financial advisor's or agent's fees
or commissions by virtue of any commitment made by any of them in
connection with this Merger Agreement or any transaction contemplated
hereby.
4.12. Required Corporate Action. The execution, delivery and consummation
of this Merger Agreement has been duly and validly authorized by the board
of directors of VCB and will at the time of Closing have been duly and
validly authorized by the board of directors of Bank and, subject to
consummation of the Closing, the shareholders of VCB and Bank in accordance
with the requirements of the Arizona Bank Code, the Delaware General
Corporation Law, and all other applicable law.
4.13. Authorized Execution. This Merger Agreement has been duly executed
and delivered by duly authorized officers of VCB and Bank. This Merger
Agreement constitutes the legal, valid and binding agreement and obligation
of VCB and Bank, enforceable against each of them in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
moratorium, receivership, and other similar laws affecting the rights of
creditors generally.
4.14. Title to Assets; Encumbrances. VCB and Bank have good and valid title
(with respect to real estate, good and valid title shall mean such title as
may be insured on standard title insurance forms with no exceptions
materially and adversely affecting the value or use of the fee real estate)
to their assets, and in each case subject to no mortgage, pledge, lien,
security interest, conditional sale agreement, or other encumbrance of any
nature whether similar or dissimilar, except:
4.14.1. Such encumbrances which are purchase money security interests
entered into in the ordinary course of business consistent with past
practice reflected on their books and records;
4.14.2. Lessors' interests in leased tangible real and personal
property reflected on their books and records;
4.14.3. Such encumbrances for taxes and assessments not yet due and
payable;
4.14.4. Encumbrances as do not materially detract from the value or
interfere with the use or operation of the asset subject thereto as it
is currently used; and,
4.14.5. Repossessed and foreclosed assets acquired in satisfaction of
debt previously contracted.
4.15. Employees. Except as set forth on Exhibit 4.15, none of the employees
of VCB and Bank is employed under any employment contract (oral or written)
or is the beneficiary of any compensation plan (oral or written) or is
entitled to any payment from VCB and Bank by reason of this Merger
Agreement or the Merger and there are no employment contracts, management
contracts, consulting agreements, union contracts, labor agreements,
pension plans, profit sharing plans or employee benefit plans to which VCB
or Bank are a party or by which either of them is bound.
4.16. Environmental Laws. The existence, use and operation of the assets of
VCB and Bank are in material compliance with all applicable statutes, rules
and regulations including, without limiting the generality of the
foregoing, all environmental and zoning laws and the Americans With
Disabilities Act. Notwithstanding the foregoing, with respect to
repossessed and foreclosed assets acquired in satisfaction of debt, the
representation and warranty in this Section 4.16 is made to the knowledge
of VCB and Bank.
4.17. Loan Portfolio. Except as to any breach that would not have a
material adverse effect on the financial condition of Bank, (i) all loans
and discounts shown on the Financial Statements were and will be made in
all material respects for good, valuable and adequate consideration in the
ordinary course of Bank's business, 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) Bank has 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.
4.18. Zoning and Related Laws. All real property owned or leased by VCB or
Bank 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 VCB and/or
Bank.
4.19. Compliance with Law. Bank and VCB have all licenses, franchises,
permits and other governmental authorizations that are legally required to
enable them to conduct their business 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
Bank or VCB. Without limiting the generality of the foregoing, VCB and Bank
have at all times maintained their employee benefit plans in material
compliance with the Internal Revenue Code and the Employee Retirement
Income Security Act and all applicable rules and regulations promulgated
pursuant thereto. All data and reports respecting the VCB and Bank employee
benefit plans provided to BOKF are complete and materially correct.
4.20. Agreements with Regulatory Agencies. Except as described on Exhibit
4.20, neither Bank nor VCB 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 has Bank or VCB been advised by any
regulatory agency that it is considering issuing or requesting any
Regulatory Agreement.
4.21. Intentionally Omitted.
4.22. Actions From and After December 31, 2003. VCB and Bank have not taken
any of the following actions from and after December 31, 2003 until the
date of this Agreement that are prohibited to be taken from and after the
date of this Agreement by the provisions of Section 6.3 (except Section
6.3.1):
4.22.1. VCB has paid no dividends except: o Cash dividends of
$3,045,561.75 declared in December, 2003 and paid in January, 2004; o
Cash dividends of $40,607.49 declared in December, 2003 and paid in
February, 2004; o Cash dividends of $40,714.32 declared in April, 2004
and paid in May, 2004; o 5% stock dividend declared in April, 2004 and
paid in May, 2004 including cash of $1,524 in lieu of fractional
shares; o Cash dividends of $42,796.29 declared in July, 2004 and paid
in August 2004.
4.22.2. From and after June 30, 2004, except as otherwise disclosed in
the Exhibits to this Agreement, VCB has made no changes in the
compensation of any employees other than non-material cost of living
and merit adjustments consistent with past practices.
4.23. Survival and Independence of Representations and Warranties. The
representations and warranties of VCB and Bank made in this Merger
Agreement shall survive the Closing, except with respect to a claim of a
breach of any such representations and warranties where the events and
circumstances of such breach were clear from materials actually provided to
or obtained by BOKF or Merger Corp prior to Closing; provided BOKF shall
give notice to the Shareholders Representative (as hereafter defined) of
any claim of a breach of any such representations and warranties on or
before the first anniversary of the Closing Date (the "Claim Notice
Deadline"). Absent actual fraud, claims not asserted by BOKF prior to the
Claim Notice Deadline shall be deemed barred. Each of the representations
and warranties of VCB and Bank set forth in this Merger Agreement is a
separate and independent representation and warranty, shall be cumulative
of and in addition to all other warranties and representations, and shall
not limit or be interpreted to be in derogation of any other representation
or warranty made herein. Any disclosure made on any Exhibit hereto shall be
applicable to the entire Agreement and not just one representation or
warranty.
4.24. Knowledge. As used herein, the knowledge of VCB and/or the Bank shall
mean the knowledge which any one or more of the Chief Executive Officer,
Chief Financial Officer, Chief Operating Officer, Chief Credit Officer,
Chief Lending Officer or Chief Human Relations Officer has or, in the
reasonable exercise of their respective duties and responsibilities, should
have knowledge.
5. Representations and Warranties of BOKF and Merger Corp. BOKF and Merger Corp
represent and warrant, jointly and severally, to VCB that:
5.1. Incorporation and Corporate Power. BOKF and Merger Corp are
corporations duly organized, validly existing and in good standing under
the laws of their respective states of organization. BOKF and Merger Corp
have all the corporate power and authority necessary and required to
consummate the transactions contemplated by this Merger Agreement.
5.2. Non-Violation of Other Agreements. The execution and delivery of this
Merger Agreement, and compliance with its terms and provisions by BOKF and
Merger Corp and the execution of any document required to be executed by
BOKF or Merger Corp, will not:
5.2.1. Violate, conflict with or result in the breach of their
respective certificates of incorporation or bylaws or any of the
terms, conditions or provisions of any agreement or instrument to
which BOKF or Merger Corp is a party, or by which BOKF or Merger Corp
is bound;
5.2.2. Result in the creation or imposition of any lien, charge,
encumbrance or restriction of any nature whatever upon any of the
property, contracts or business of BOKF and Merger Corp; or,
5.2.3. Require the consent of any party to a contract with BOKF and
Merger Corp in order to keep the contract enforceable.
5.3. Required Corporate Action. The execution, delivery and consummation of
this Merger Agreement by BOKF and Merger Corp has been duly and validly
authorized by the boards of directors of BOKF and Merger Corp and, as of
the Closing, will have been approved by the shareholder of Merger Corp. The
approval of the shareholders of BOKF is not required. This Merger Agreement
has been duly executed and delivered by duly authorized officers of BOKF
and Merger Corp. This Merger Agreement constitutes a legal, valid and
binding agreement and obligation of BOKF and Merger Corp enforceable
against BOKF and Merger Corp in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, moratorium, receivership, and
other similar laws affecting the rights of creditors generally.
5.4. Brokerage Fees. Neither BOKF nor Merger Corp has incurred or will
incur, directly or indirectly, any liability for brokerage, finder's,
financial advisor's or agent's fees or commissions by virtue of any
commitment made by BOKF or Merger Corp in connection with this Merger
Agreement or any transaction contemplated hereby. Neither BOKF nor Merger
Corp has any knowledge that any party has asserted any claim of such nature
against BOKF or Merger Corp.
5.5. Regulatory Approvals. Neither BOKF nor Merger Corp is aware of any
reasons relating to BOKF, Merger Corp or their respective subsidiaries
(including CRA compliance) why all regulatory approvals necessary to
consummate the Merger Agreement will not be timely procured.
5.6. Legal Proceedings. There are no actions, suits, claims, governmental
investigations or proceedings instituted, pending or to the knowledge of
BOKF and Merger Corp threatened against BOKF or Merger Corp that are
reasonably likely to have a material adverse effect upon BOKF and Merger
Corp's ability to consummate this Merger Agreement.
5.7. Financing. BOKF has and as of the Closing will have, sufficient cash
to make the payment of Merger Consideration for each share of VCB Common
Stock.
5.8. Survival and Independence of Representations and Warranties. The
representations and warranties of BOKF and Merger Corp made in this Merger
Agreement shall survive until the first anniversary of the Closing hereof;
provided, however, the indemnification obligations of Section 5.9 hereof
shall survive the Closing indefinitely. Each of the representations and
warranties of BOKF and Merger Corp set forth in this Merger Agreement is a
separate and independent representation and warranty, shall be cumulative
of and in addition to all other warranties and representations; and shall
not be interpreted to be in derogation of any other representation or
warranty or limit any other representation or warranty made herein.
5.9. BOKF and Merger Corp Indemnification; Insurance.
5.9.1. BOKF and Merger Corp shall indemnify the present and future
directors, officers and employees of VCB and Bank (the "Indemnified
Parties") to the fullest extent to which such Indemnified Parties were
entitled under the Articles of Incorporation and Bylaws of VCB and/or
the Articles of Association and Bylaws of Bank as in effect as of the
date hereof.
5.9.2. Prior to Closing, BOKF shall obtain on a prepaid basis tail
insurance coverage for a period of not less than three years after the
Closing for the acts and omissions of the officers and directors of
VCB and Bank occurring prior to the Closing under VCB and Bank's
existing directors' and officers' liability insurance policy or tail
insurance comparable thereto.
6. Covenants.
6.1. Full Access. In order that BOKF shall have the full opportunity to
make such investigations as it shall reasonably desire concerning VCB and
Bank and their business affairs, VCB and Bank shall:
6.1.1. Give BOKF, its employees, counsel, accountants and other
authorized representatives, as necessary to conduct the investigation,
full access, upon reasonable notice to VCB and at reasonable times
without unduly interfering with the conduct of business by VCB and
Bank throughout the period up to the Closing, to all of the
facilities, properties, books, contracts and records of VCB and Bank.
6.1.2. Authorize its accountants to give BOKF full access to the
accountants' records, including work papers; and,
6.1.3. Furnish to BOKF throughout the period up to the Closing all
additional financial, operating and other information concerning VCB
and Bank and their business affairs, as BOKF may reasonably request.
All information provided pursuant to this Section 6.1 shall be subject
to the provisions of Section 6.6. Notwithstanding the foregoing, VCB
and Bank shall not be required to provide access which, in the
reasonable opinion of VCB or Bank, constitutes a waiver of the
attorney-client privilege.
6.2. Conduct of Business Prior to the Closing Date. From this date until
the Closing Date, each of VCB and Bank shall, except as may be first
approved in writing by BOKF (such approval not to be unreasonably withheld,
delayed or denied) or as is otherwise permitted or contemplated in this
Merger Agreement:
6.2.1. Maintain their corporate existence in good standing;
6.2.2. Maintain the general character of their business and conduct
their business in their ordinary and usual manner consistent with past
practices;
6.2.3. Maintain proper business and accounting records generally in
accordance with past practices;
6.2.4. Maintain their properties (except repossessed and foreclosed
assets acquired in satisfaction of debts previously contracted) in
normal repair and condition, normal wear and tear and damage due to
fire or other unavoidable casualty excepted;
6.2.5. Preserve their business organizations intact, use their
reasonable efforts to maintain satisfactory relationships with
suppliers, customers and others having business relations with them
whose relationships they believe are desirable to maintain, and use
their reasonable efforts to procure the willingness of all of the
personnel employed by them immediately prior to the execution of this
Merger Agreement who are material to the success of their business to
continue in their employ on substantially the same terms and
conditions as those on which such personnel were employed immediately
prior to the execution of this Merger Agreement;
6.2.6. Maintain in full force and effect insurance comparable in
amount and in scope of coverage to that now maintained by them on the
date hereof;
6.2.7. Except as otherwise disclosed in this Merger Agreement, perform
all of their obligations under all material contracts, leases and
agreements relating to or affecting their assets, properties and
businesses; and,
6.2.8. Comply in all material respects with and perform all
obligations and duties imposed upon them by federal, state and local
laws, and all rules, regulations and orders imposed by federal, state
or local governmental authorities, except as may be contested by them
in good faith by appropriate proceedings.
6.3. VCB and Bank Prohibited Actions Prior to the Closing Date. From this
date until the Closing Date, VCB and Bank shall not, except as otherwise
permitted by this Merger Agreement or approved by BOKF in writing (which
approval shall not be unreasonably withheld, delayed or denied):
6.3.1. 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:
6.3.1.1. Extensions of credit, loans and guarantees made by Bank
in the usual and ordinary course of its banking business,
consistent with prior practices and policies, provided, however,
that the Bank shall not make any new extensions of credit or
loans in excess of Six Hundred Thousand Dollars ($600,000)
without first offering BOKF twenty-four (24) hours advance notice
to review and consult with the Bank concerning its underwriting
of the loan.
6.3.1.2. Legal investments by Bank in the usual and ordinary
course of its banking business consistent with prior practices
and policies; and
6.3.1.3. Borrowings from the Federal Home Loan Bank, the Federal
Reserve Bank, deposit liabilities, and federal funds transactions
by Bank in the ordinary course of business consistent with past
practices.
6.3.2. Make any (a) material change, except in the ordinary and usual
course of business, in their assets (including, but not limited to,
any change in the composition of such assets so as to materially alter
the proportion of cash) or liabilities, (b) material commitment for
any capital expenditures, excluding expenditures for repairs in the
ordinary and usual course of business, or (c) sale or other
disposition of any material capital asset other than for fair value in
the ordinary course of business;
6.3.3. Make any change in their Certificate of Incorporation, Articles
of Incorporation or Bylaws;
6.3.4. Authorize any shares of their capital stock for issuance, issue
any shares of any previously authorized but unissued capital stock or
grant, issue or make any option or commitment relating to their
capital stock;
6.3.5. Enter into any letter of intent or agreement to sell any of
their material assets, except in the normal and ordinary course of
their business, or acquire, be acquired by, or merge, consolidate or
reorganize with any person, firm or corporation;
6.3.6. Declare or pay any dividend, make any other distribution or
payment or set aside any amount for payment with respect to any shares
of their capital stock or directly or indirectly, redeem, purchase or
otherwise acquire any shares of their capital stock or make any
commitment relating thereto;
6.3.7. Except as set forth in Exhibit 6.3.7, make any (a) increase in
the compensation payable or to become payable to any of their
directors, officers or employees (including, without limitation, any
bonus or incentive payment or agreement) other than normal annual
increases consistent with prior practice, (b) make or enter into any
written employment contract or any bonus, stock option, profit
sharing, pension, retirement or other similar payment or arrangement,
or (c) make any payment to any person, except in the usual and
ordinary course of business or except as required by an existing
agreement set forth in the Exhibits hereto; provided, however:
6.3.7.1. VCB may (i) match for calendar year 2004 employee
contributions to the VCB 401k plan and 401k profit sharing plan
and (ii) pay bonuses for 2004 consistent with prior practices, in
an amount not exceeding in the aggregate $250,000.
6.3.8. Make any material change in their banking, safe deposit or
power of attorney arrangements except to the extent necessary to
comply with applicable laws, regulations, rules or orders;
6.3.9. Enter into any trust, escrow, agency and similar trust company
agreements, purchase orders and contracts for goods and services,
except in the ordinary course of business consistent with past
practices;
6.3.10. Enter into any agreement resulting in the imposition of any
mortgage or pledge of their assets or the creation of any lien, charge
or encumbrance on any of their assets;
6.3.11. Incur any material obligation or liability, absolute or
contingent, except in the ordinary course of business or pursuant to
existing contracts described in this Merger Agreement;
6.3.12. Take any action which would prevent compliance with any of the
conditions of this Merger Agreement; or,
6.3.13. Pre-pay long term indebtedness.
6.4. Shareholder Meeting. VCB shall take all action necessary to consider
and vote upon the transactions contemplated by this Merger Agreement. The
Board of Directors of VCB shall recommend that the shareholders of VCB
approve this Merger Agreement and the transactions contemplated hereby,
provided, however, that nothing in this Agreement shall prevent the Board
of Directors of VCB from withholding, withdrawing, amending or modifying
its recommendation if the Board of Directors reasonably concludes, upon the
written opinion of its legal counsel, that such action is required in order
for the Board of Directors to comply with its fiduciary duties to the
shareholders of VCB. As soon as practicable after the execution of this
Agreement, Seller shall use its reasonable best efforts to cause each of
its directors to execute an agreement substantially in the form attached as
Exhibit 6.4 by which each of such directors shall covenant and agree to
vote the shares of VCB Common Stock owned by them in favor of this
Agreement at the shareholder meeting.
6.5. Regulatory Approval. BOKF shall (A) file within twenty (20) days of
the date hereof all regulatory applications required in order to consummate
the Merger, including but not limited to the necessary applications for
prior approval of the Board of Governors of the Federal Reserve System and
certification from the Arizona State Banking Department as to Arizona
Revised Statutes 6-101 et seq. and to convert the Bank to a national
association in accordance with the National Bank Act and (B) thereafter
diligently pursue and promptly file any required supplements or amendments
thereto. All applications, supplements, and amendments shall be
substantially complete when filed. BOKF shall promptly deliver to VCB and
its counsel a copy of all such filings, as filed. Although all such filings
shall be the responsibility of BOKF, BOKF shall nevertheless advise and
consult with VCB on an ongoing basis with respect to the filings and all
matters and events related thereto. BOKF shall inform and make available to
VCB from time to time all matters relating to the filings and the
regulatory approvals. BOKF shall diligently proceed with reasonable
deliberate speed to obtain all such approvals. If any regulatory
application required to be filed by BOKF should be finally denied or
disapproved by the respective regulatory authority, then BOKF shall
immediately give notice to VCB and this Merger Agreement shall thereupon
terminate. However, it is understood that a request for additional
information or undertaking by the applicant, as a condition for approval,
shall not be deemed to be a denial or disapproval so long as the applicant
can reasonably be expected to provide the requested information or
undertaking. In the event an application is denied pending an appeal,
petition for review, or similar such act on the part of the applicant, then
the application will be deemed denied unless the applicant promptly and
diligently prepares and files such appeal and continues the appellate
process for the purposes of getting the necessary approval.
6.6. Confidentiality. Prior to the Closing, BOKF shall keep all information
disclosed to BOKF and Merger Corp (their employees, counsel, accountants,
and other authorized representatives) by VCB or Bank (or their
representatives) respecting the business and financial condition of VCB and
Bank confidential and shall make no use of such information except to
conduct the investigation contemplated by Section 6.1, the application
contemplated by Section 6.5 and to consummate the transactions contemplated
hereby, and BOKF and Merger Corp shall not use such information to obtain a
competitive advantage in connection with any customer of Bank. In the event
this Merger Agreement is terminated for any reason BOKF and Merger Corp
(their agents, officers, directors, employees and counsel) shall (i) return
all copies of all information and documents obtained from VCB, Bank, and
their representatives, (ii) thereafter forever keep all such information
confidential and not make use of any such information to obtain a
competitive advantage in connection with any customer of Bank, and (iii)
shall not solicit for employment, whether directly or indirectly, any of
the employees, officers or directors of VCB or Bank for a period of two
years following such termination.
6.7. Disclosure. Neither BOKF nor VCB, nor any other party to this Merger
Agreement or their representative, shall make any public disclosure
concerning this Merger 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 required for
VCB to seek shareholder approval.
6.8. BOKF Prohibited Action Prior to Closing. From this date until the
Closing Date, BOKF shall not take any action which would prevent compliance
with any of the conditions of this Merger Agreement. BOKF shall not, and
shall cause its subsidiaries not to, make or agree to make any acquisition,
or take any other action, that adversely affects its ability to consummate
the transactions contemplated by this Merger Agreement and will otherwise
continue to conduct its business operations and shall cause the operations
of its subsidiaries to be conducted in a manner consistent with past
operating practices.
6.9. Employment Agreements. VCB and the Bank shall in good faith assist
BOKF in entering into employment agreements which such officers of the Bank
as BOKF shall request.
6.10. Employment Benefits and Contracts. Following the Closing Date, BOKF
shall provide generally to officers and employees of Bank, who at or after
the Closing Date become or remain employees of BOKF or one of its
subsidiaries ("Continuing Employees"), employee benefits under employee
benefit plans (other than stock option or other plans involving the
potential issuance of BOKF Common Stock except as set forth in this
section), on terms and conditions which when taken as a whole are
substantially similar to those provided by BOKF to its similarly situated
officers and employees. Following the Closing:
6.10.1. For purposes of participation, vesting and determination of
rates of contribution (but not accrual of benefits) under such
employee benefit plans, (i) qualifying service under any qualified
pension plan of Bank shall be treated as qualified service under
BOKF's qualified defined benefit plans, (ii) qualifying service under
any qualified defined contribution plans of Bank shall be treated as
qualified service under BOKF's qualified defined contribution plans,
and (iii) qualifying service under any other employee benefit plans of
Bank shall be treated as qualified service under any similar employee
benefit plans maintained by BOKF.
6.10.2. BOKF shall cause the BOKF welfare benefit plans that cover the
Continuing Employees after the Closing Date to (i) waive any waiting
period and restrictions and limitations for preexisting conditions or
insurability, and (ii) cause any deductible payments made by the
Continuing Employees under Bank's medical benefit plan to be credited
to such Continuing Employees under the BOKF self-funded medical
benefit plans, so as to reduce the amount of any deductible payable by
the Continuing Employees under the BOKF self-insured medical plans.
The continued coverage of the Continuing Employees under the employee
benefit plans maintained by Bank and/or any Bank subsidiary
immediately prior to the Closing Date during a transition period shall
be deemed to provide the Continuing Employees with benefits that are
no less favorable than those offered to other employees of BOKF and
its subsidiaries. Unless otherwise modified in writing and except as
otherwise provided herein, BOKF also shall cause Bank and its
subsidiaries to honor all employment, severance, consulting and other
compensation contracts disclosed in Exhibit 4.15 hereto between Bank
and any current or former director, officer or employee thereof, and
all provisions for vested benefits or other vested amounts earned or
accrued through the Closing Date under the Bank benefit plans.
6.10.3. VCB shall, by appropriate action of its board of directors and
otherwise, take all action necessary (i) to vest all Bank employees
fully in the Valley Commerce 401(k) Plan, contingent upon and
effective as of the Closing and (ii) to terminate the Plan.
6.11. No Solicitation.
6.11.1. Prior to the Closing Date, unless this Merger Agreement is
sooner terminated, neither Bank nor VCB shall directly or indirectly
(i) solicit or encourage inquiries or proposals with respect to the
merger of Bank or VCB or the sale of any of the shares of Bank or VCB
or other material asset(s) of VCB or Bank from any party other than
BOKF or (ii) merge with any party or sell any of the shares of VCB or
Bank or material asset(s) of VCB or Bank to any party except as set
forth in this Merger Agreement.
6.11.2. Notwithstanding the provisions of Section 6.11.1 above, VCB
may, in response to an unsolicited written proposal with respect to a
merger, or purchase of substantially all the outstanding stock or
assets of VCB ("Acquisition Proposal"), furnish (subject to the
execution of a confidentiality agreement containing provisions
substantially similar to the confidentiality provisions of Section 6.6
hereof) confidential or non-public information concerning its
business, properties or assets to a financially capable corporation,
partnership, person or other entity or group (a "Potential Acquiror")
and negotiate with such Potential Acquiror if (i) the Board of
Directors of VCB after consulting with one or more of its financial
advisers, concludes that such Acquisition Proposal (if consummated
pursuant to its terms) would result in a transaction more favorable to
VCB's shareholders than the Merger and (ii) based upon advice of its
legal counsel, its Board of Directors determines in good faith that
the failure to provide such confidential and non-public information to
such Potential Acquiror would constitute a breach of its fiduciary
duty to its shareholders (any such Acquisition Proposal meeting the
conditions of clauses (i) and (ii) being referred to as a "Superior
Proposal").
6.11.3. VCB shall immediately notify BOKF after receipt of any
Acquisition Proposal or any request for nonpublic information relating
to VCB or the Bank in connection with an Acquisition Proposal or for
access to the properties, books or records of VCB or the Bank by any
person or entity that informs the VCB board of directors that it is
considering making, or has made, an Acquisition Proposal. Such notice
to BOKF shall be made orally and in writing and shall indicate the
identity of the offeror and in reasonable detail the terms and
conditions of such proposal, inquiry or contact.
7. Conditions Precedent to Closing by BOKF and Merger Corp. The obligation of
BOKF and Merger Corp to consummate and close this transaction is conditioned
upon each and all of the following:
7.1. The representations, warranties and covenants of VCB and Bank shall be
materially true at the Closing as though such representations, warranties
and covenants were also made at the Closing.
7.2. The Federal Reserve Board shall have approved the Merger, or issued a
waiver of approval, in accordance with 12 U.S.C. Section 1842 and 12 C.F.R.
Section 225.
7.3. The Arizona State Banking Department shall have certified the
compliance of the Merger in accordance with the laws of the State of
Arizona.
7.4. The Office of the Comptroller of the Currency shall have approved the
conversion of the Bank to a national association in accordance with the
National Bank Act.
7.5. VCB and Bank shall have performed and complied with, in all material
respects, all of their obligations under this Merger Agreement which are to
be performed or complied with by them prior to or on the Closing Date.
7.6. VCB shall have delivered to BOKF an opinion of its counsel, ▇▇▇▇▇▇
LLP, or other counsel reasonably acceptable to BOKF, dated the Closing
Date, in substantially the form and content attached hereto as Exhibit 7.6.
7.7. The shareholders of VCB shall have approved this Merger Agreement in
accordance with the Delaware General Corporation Act.
7.8. Neither VCB taken as a whole nor the Bank taken as a whole shall have
suffered any Material Adverse Change (as hereinafter defined) in their
financial conditions, assets, liabilities, businesses or properties. For
purposes of this Section 7.8, "Material Adverse Change" shall mean any
event resulting in a one-time charge to Bank's loan loss reserve, or a
reduction of Bank's Tier 1 capital (exclusive of market losses in
investment securities portfolio), of Five Hundred Thousand Dollars
($500,000) or more; provided, however, that in determining whether a
Material Adverse Change has occurred there shall be excluded the effect of:
(i) any change in banking and similar laws or regulations of general
applicability or interpretations thereof by courts or governmental
authorities, (ii) change in GAAP or regulatory accounting requirements
applicable to banks or their holding companies generally, (iii) any general
social, political, economic, change, effect, event or occurrence the
effects of which are not specific or unique to VCB or Bank, including
changes in prevailing interest rates, currency exchange rates or general
economic or market conditions, (iv) any action or omission by VCB or Bank
pursuant to the terms of this Agreement including the public announcement
of the transactions contemplated by this Agreement, and (v) any expenses
incurred in connection with this Agreement or the transactions contemplated
hereby.
7.9. Holders of no more than ten percent (10%) of the VCB Common Stock
shall have perfected their appraisal rights pursuant to Section 262 of the
Delaware General Corporation Law. In the event any one or more of these
conditions shall not have been fulfilled prior to or at the Closing, BOKF
and Merger Corp may terminate this Merger Agreement by written notice to
VCB, in which event neither party shall have any further obligation or
liability to the other except (i) as otherwise provided in Section 14 and
(ii) the obligations of BOKF set forth in Sections 5.4 and 6.6 and the
obligations of VCB and Bank set forth in Section 4.11. BOKF shall be
entitled to waive compliance with any one or more of the conditions,
representations, warranties or covenants in whole or in part.
8. Conditions Precedent to Closing by VCB and Bank. The obligation of VCB and
Bank to consummate and close this transaction are conditioned upon each and all
of the following:
8.1. The representations, warranties and covenants of BOKF and Merger Corp
made in this Merger Agreement shall be true at the Closing as though such
representations, warranties and covenants were also made at the Closing.
8.2. BOKF and Merger Corp shall have performed and complied, in all
material respects, with all of their obligations under this Merger
Agreement which are to be performed or complied with by them prior to or at
the Closing.
8.3. BOKF shall have delivered to VCB an opinion of its counsel, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Tulsa, Oklahoma, or other counsel reasonably acceptable to VCB,
dated the Closing Date, in substantially the form and content attached
hereto as Exhibit 8.3
8.4. The Federal Reserve Board shall have approved the Merger, or issued a
waiver of approval, in accordance with 12 U.S.C. Section 1842 and 12 C.F.R.
Section 225.
8.5. The shareholders of VCB shall have approved this Merger Agreement and
the transactions contemplated hereby as required by the Delaware General
Corporation Act.
8.6. VCB shall have received from Sandler ▇'▇▇▇▇▇ and Partners, or such
other investment banking firm retained by VCB, an opinion letter dated as
of the date of the proxy statement to be delivered to the shareholders of
VCB in connection with the solicitation of their approval of this Merger
Agreement and the transactions contemplated hereby, to the effect that the
Merger Consideration is fair, from a financial point of view, to the
holders of the VCB Common Stock. VCB shall be entitled to waive compliance
with any one or more of the conditions, representations, warranties or
covenants in whole or in part. In the event any one or more of these
conditions shall not have been fulfilled prior to or at the Closing, VCB
may terminate this Merger Agreement by notice to BOKF, in which event no
party shall have any further obligation or liability to the other, except
(i) as otherwise provided in Section 14 and (ii) the obligations of BOKF
set forth in Section 6.6 and Section 5.4 and the obligations of VCB set
forth in Section 4.11.
9. Closing. The closing ("Closing" or "Closing Date") of the transactions
contemplated by this Merger Agreement shall take place not later than five (5)
business days following the first day on which (i) BOKF and Merger Corp can
lawfully consummate the Merger under 12 U.S.C. Section 1842, 12 C.F.R. Section
225 and other applicable laws, rules and regulations and (ii) all conditions
precedent to the obligations of the parties set forth in Section 7 and Section 8
have been satisfied or waived; provided, however, in the event such day is ten
(10) or fewer calendar days preceding the first day of the next calendar month,
the Closing shall take place or otherwise be effective at the opening of
business on the first day of the next calendar month. The Parties shall use
their best efforts to cause the Closing to occur on or before March 15, 2005. In
any event, if the Closing Date does not occur on or before April 15, 2005, then
VCB may by notice terminate this Merger Agreement. The Closing shall be held at
10:00 a.m. on the Closing Date at the offices of Bank or at such other time and
place as BOKF and VCB may agree. At the Closing, BOKF, Merger Corp, VCB, and
Bank shall execute and deliver all of the documents and take all other actions
which are contemplated by the terms hereof.
9.1. Without limiting the generality of Section 9 of this Merger Agreement,
the following actions shall be taken at the Closing concurrently. VCB
shall:
9.1.1. Engage the Paying Agent to perform the obligations of the
Paying Agent herein set forth;
9.1.2. Deliver the opinion of VCB's counsel pursuant to Section 7.4;
9.1.3. Deliver a certificate, signed by the Chief Executive Officer
and the Chief Financial Officer of VCB and of the Bank, acting solely
in his capacity as an officer of VCB and/ or the Bank, stating that
(A) each of the representations and warranties of VCB and the Bank set
forth herein 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 precedent to the obligation of BOKF and Merger Corp to
close set forth in this Agreement have, unless waived as herein
provided, been satisfied;
9.1.4. Deliver a certified copy of the resolutions of the Board of
Directors and shareholders of VCB, as required for valid approval of
the execution of this Agreement and the consummation of the Merger and
the other transactions contemplated hereby;
9.1.5. Deliver good standing and existence certificates, dated a
recent date, duly certifying the existence and good standing of VCB
and the Bank;
9.1.6. Intentionally omitted.
9.1.7. Deliver a resolution of the Board of Directors of VCB approving
the termination of the VCB 401k plan into the defined contribution
plan of BOKF;
9.1.8. Cause the employment agreements, plans and payments described
in Exhibit 4.15 to be terminated and discharged at no material cost to
VCB and Bank, excluding, however, the agreements and claims listed on
Exhibit 9.1.8, all of which shall survive the Closing.
9.1.9. Pay or cause the Bank to pay to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ the amounts specified in Section 17 of their respective
Employment Agreements.
9.1.10. Pay or cause the Bank to pay the director compensation
payments described on Exhibit 6.3.7.
9.2. Without limiting the generality of Section 9 of this Merger Agreement,
the following actions shall be taken at the Closing concurrently. BOKF
shall:
9.2.1. Invest sufficient capital in VCB to enable it to pay, and cause
VCB to pay, by funds immediately available in New York City, (i) to
the Paying Agent the funds required to be paid at the Closing to VCB
Shareholders as provided in Section 10.2, (ii) to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the amounts specified in Section 17 of their
respective Employment Agreements, and (iii) the director compensation
payments described on Exhibit 6.3.7 of this Agreement;
9.2.2. Deliver the opinion of BOKF's counsel pursuant to Section 8.3;
9.2.3. Cause appropriate evidences of the Merger to be filed in
accordance with applicable law; and
9.2.4. Deliver a certificate signed by the Chief Executive Officer and
the Chief Financial Officer of BOKF and Merger Corp, acting in their
sole capacity as officers of BOKF and Merger Corp, stating that (A)
each representations and warranties of BOKF and Merger Corp set forth
herein 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
precedent to the obligation of VCB and the Bank to close set forth in
this Agreement have, unless waived as herein provided, been satisfied.
10. Exchange Procedures; Surrender of Certificates; Paying Agent.
10.1. American Stock Transfer & Trust Company, or other entity mutually
satisfactory to VCB and BOKF, shall act as paying agent in the Merger (the
"Paying Agent").
10.2. At the Closing BOKF shall cause VCB, as the surviving corporation, to
furnish the Paying Agent cash sufficient in the aggregate for the Paying
Agent to make full payment of the Closing Payment to all VCB Shareholders
excluding, however, those shareholders who have perfected their appraisal
rights pursuant to Section 262 of the Delaware General Corporation Law.
10.3. Forthwith upon the Closing, the Paying Agent shall mail, without any
further action on the part of BOKF or VCB, to each record holder of
certificates representing VCB Common Stock (the "Certificates"), addressed
to the most current address of such shareholder according to the records of
VCB, 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 Letters") shall specify that
delivery shall be effected, and risk of loss and title to the Certificates
shall pass, only upon proper receipt of the Certificates by the Paying
Agent and shall be in such form and have such other provisions as BOKF may
reasonably specify.
10.4. No interest on the Merger Consideration issuable upon the surrender
of the Certificates shall be paid or accrued for the benefit of holders of
Certificates .
10.5. If the Closing Payment 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.
10.6. With respect to any shares of VCB Common Stock 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 Closing Payment 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 VCB 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.
10.6.1. After the Closing, there shall be no further registration or
transfers on the records of VCB of outstanding certificates formerly
representing shares of VCB Common Stock and, if a certificate formerly
representing such shares is presented to VCB or BOKF, it shall be
forwarded to the Paying Agent for cancellation and exchange for the
Merger Consideration.
10.6.2. All Merger Consideration paid upon the surrender of VCB Common
Stock 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 VCB Common Stock.
10.6.3. In the event any certificate for VCB Common Stock 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.
10.6.4. At any time following thirteen (13) months after the Closing,
provided no General Claims have been made which remain unresolved
under Article 11 of this Agreement, BOKF shall be entitled to cause
VCB to terminate the Paying Agent relationship and thereafter holders
of Certificates shall be entitled to look only to VCB (subject to
abandoned property, escheat, or other similar laws) with respect to
the Merger Consideration payable upon surrender of their Certificates
or in lieu of any Stock Options.
10.6.5. BOKF shall pay the fees and costs of the Paying Agent with
respect to the Exchange Procedure and the Closing Payment.
11. Representation Escrow.
11.1. At Closing, BOKF shall establish an escrow account with the Escrow
Agent and deposit the Representation Escrow Funds in the escrow account
pursuant to an escrow agreement (the "Representation Escrow Agreement") in
the form attached hereto as Exhibit 11. The escrow agent's fees shall be
borne by BOKF.
11.1.1. The Representation Escrow Funds shall be invested in a
certificate of deposit maturing one year from date, at the rate and on
the terms and conditions generally offered by Escrow Agent for
certificates of deposit of comparable size and duration, and upon
maturity as necessary, in three-month certificates of deposit at Bank
at the rates and on terms and conditions generally offered by the Bank
for certificates of comparable size and duration at each renewal date.
11.1.2. In the event BOKF claims a breach of the representations and
warranties of VCB and Bank arising under this Merger Agreement, BOKF
shall give written notice of the claim (a "General Claim") to the
Shareholders Representative (as hereafter appointed).
11.1.3. The notice shall identify the representations and warranties
which BOKF claims have been breached and describe in reasonable detail
the basis of the General Claim and set forth a good faith reasonable
estimate ("Good Faith Estimate") of the maximum amount of damages
claimed ("General Losses").
11.1.4. BOKF shall make no General Claim unless and until the
aggregate amount of all uninsured General Losses shall exceed $50,000
in which event BOKF may make General Claims against the General Escrow
for all uninsured General Losses.
11.1.5. Absent actual fraud by VCB, BOKF hereby waives all General
Claims in the aggregate in excess of the Representation Escrow Funds.
11.1.6. In the event BOKF makes no General Claim for any Losses on or
before Claim Notice Deadlines, the Representation Escrow Agreement
shall terminate and the Escrow Agent shall, within five (5) business
days thereafter, distribute the Representation Escrow Funds to the
Paying Agent for distribution in accordance with Section 11.3 of this
Agreement.
11.2. In the event BOKF makes one or more General Claim(s) prior to the
Claim Notice Deadline, the Escrow Agent shall (i) on or before five (5)
business days after the Claim Notice Deadline, distribute to the Paying
Agent the Representation Escrow Funds less the amount of all Losses claimed
by BOKF for distribution in accordance with Section 11.3 hereof, and (ii)
continue to hold and invest the remaining Representation Escrow Funds until
such claim is resolved by (1) the mutual agreement of the Shareholder
Representative (as defined below) and BOKF, or (2) 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 and the Escrow Agent shall
distribute any remaining Escrow Funds to the Paying Agent for distribution
in accordance with Section 11.3 hereof.
11.3. Upon receipt of any Representation Escrow Funds, the Paying Agent
shall pay all such funds to the holders of VCB Common Stock and Stock
Options, in each instance as of the Record Date, in accordance with their
respective interests (the "VCB Shareholders").
11.4. The rights of the VCB Shareholders to receive payments of
Representation Escrow Funds shall not be assignable or transferable except
by operation of law or by intestacy or with the approval of BOKF and will
not be evidenced by any certificate or other evidence of ownership.
11.5. BOKF shall pay the fees and costs of the Paying Agent with respect to
payment to the VCB Shareholders of the Representation Escrow Funds.
12. Shareholder Representative.
12.1. Effective as of, and automatically by virtue of, the Closing, there
shall be (and hereby is) appointed a representative of the VCB Shareholders
(the "Shareholder Representative"). The Shareholder Representative and a
successor thereto in the event of the death, disability or resignation of
the initial Shareholder Representative, shall be designated and retained by
VCB prior to Closing. The Shareholder Representative need not be a VCB
Shareholder, but shall be a licensed attorney or certified arbitrator,
mediator or dispute resolution facilitator.
12.2. With one and only one exception, following the Closing, the
Shareholder Representative shall have complete power and authority on
behalf and as agent of all VCB Shareholders to make such decisions and take
such actions as the Shareholder Representative may deem prudent, necessary
or advisable from time to time with respect to matters arising under or
related to the Representation Escrow Funds and the Representation Escrow
Agreement. By way of example only, the Shareholder Representative shall
have the right on behalf of all VCB shareholders to compromise any General
Claim. The one exception to the foregoing is that, absent a shareholder's
specific written consent to the contrary, the Shareholder Representative
shall have no power or authority to commit any VCB Shareholder to any
contract, payment, contribution, expense or liability beyond such
shareholder's then-current interest in the Representation Escrow Funds.
12.3. In connection with his or her role pursuant to Section 12.2, the
Shareholder Representative (and any successor thereto) shall have liability
to the VCB Shareholders only for his or her gross negligence or intentional
misconduct. For the avoidance of doubt, each Representative is hereby
exonerated and released from and against any liability for his ordinary
negligence. The Shareholder Representative (and any successor thereto)
shall be reimbursed and indemnified from the Representation Escrow Funds,
subordinate to BOKF's interests therein with respect to all claims,
liabilities and including, without limitation, legal fees and expenses
incurred in connection with his or her role as Shareholder Representative
for actions and omissions not in violation of the foregoing standard. The
Shareholder Representative shall receive an hourly fee for his or her
services at a rate not to exceed $300 per hour. To the extent the aggregate
amount of General Losses approved by the Shareholder Representative in the
compromise of any General Claim exceeds $500,000, the fees of the
Shareholder Representative shall be paid from the Representation Escrow
Fund prior to any payment on any General Claim approved by the Shareholder
Representative. In the event the aggregate amount of the General Losses
approved by the Shareholder Representative in the compromise of any General
Claim does not exceed $500,000, the fees of the Shareholder Representative
shall be paid by BOKF. By virtue of the Closing, each VCB Shareholder
hereby appoints the Shareholder Representative as his/her/its
attorney-in-fact, to execute and deliver on the shareholder's behalf such
documents as the Shareholder Representative may deem expedient to fulfill
his or her duties under this Section. Such appointment is coupled with an
interest and therefore shall be irrevocable.
12.4 VCB shall apprise BOKF of the identity of the initial and successor
Shareholder Representative prior to Closing. BOKF shall be entitled to rely
without further inquiry on any writing signed by the Shareholder
Representative with respect to any of the foregoing matters.
13. ESI Escrow.
13.1. At Closing, BOKF shall establish an escrow account with the Escrow
Agent and deposit the ESI Escrow Funds in the escrow account pursuant to an
escrow agreement (the "ESI Escrow Agreement") in the form attached hereto
as Exhibit 13. The escrow agent's fees shall be borne by BOKF.
13.1.1. The ESI Escrow Funds shall be invested in a certificate of
deposit maturing three years from date, at the rate and on the terms
and conditions generally offered by Escrow Agent for certificates of
deposit of comparable size and duration, and upon maturity as
necessary, in three-month certificates of deposit at the Escrow Agent
at the rates and on terms and conditions generally offered by the
Escrow Agent for certificates of comparable size and duration at each
renewal date.
13.1.2. In the event ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ does not commence litigation or
arbitration (collectively, "Litigation") against VCB, the Bank or BOKF
on or before the third anniversary of the closing (the "ESI Bar Date")
seeking to enforce or collect the payments described in Sections 1.C
and 2 of the Revised Executive Supplemental Income Agreement between
the Bank and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ dated September 10, 2001 (the "ESI
Benefit Agreement"), the ESI Escrow Agreement shall terminate and the
Escrow Agent shall, within five (5) business days thereafter,
distribute the ESI Escrow Funds to the Paying Agent for distribution
in accordance with Section 11.3 of this Agreement.
13.1.3. In the event ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ does commence Litigation against
VCB, the Bank or BOKF on or before the ESI Bar Date seeking to enforce
or collect the payments described in Section 1.C and 2 of the ESI
Benefit Agreement (the "ESI Payments"), then the ESI Escrow Agreement
shall continue until such Litigation (or all claims therein pertaining
to the ESI Payments) has been finally adjudicated. Upon final
adjudication, the ESI Escrow Agreement shall terminate and the ESI
Escrow Funds shall be distributed as provided in Section 13.1.4 or
13.1.5 as the case may be.
13.1.4. In the event the final adjudication of the Litigation
described in Section 13.1.3 of this Agreement results in a dismissal
of the claims of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or otherwise affirms that ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ has no right or entitlement to the ESI Payments, then the ESI
Escrow shall terminate and the Escrow Agent shall, as soon as
practicable after notice of such final adjudication, remit the ESI
Escrow Funds less the reasonable attorney fees, expert fees and other
costs of the Litigation (collectively, the "Homco Litigation Costs")
incurred by VCB, the Bank or BOKF in defending such Litigation as
determined under Section 13.1.6 hereof, to the Paying Agent for
distribution in accordance with Section 11.3 of this Agreement. The
amount of the reasonable Homco Litigation Costs determined under
Section 13.1.6 shall be remitted to BOKF.
13.1.5. In the event the final adjudication of the Litigation
described in Section 13.1.3 of this Agreement results in a judgment or
order finding that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is entitled to the ESI Payments,
then the ESI Escrow shall terminate and the Escrow Agent shall, as
soon as practicable after notice of such final adjudication, remit the
ESI Escrow Funds to BOKF or its designee; provided, however, that in
the event the amount awarded to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ for ESI Payments in
said final adjudication is less than the amount of the ESI Escrow
Funds, then the excess amount of the ESI Escrow Funds, less the
reasonable Homco Litigation Costs incurred by VCB, the Bank or BOKF in
defending the Litigation as determined under Section 13.1.6 hereof,
shall be remitted to the Paying Agent for distribution in accordance
with Section 11.3 of this Agreement. If any part of a judgment or
order described in this Section 13.1.5 is covered by insurance, then
the ESI Payments found to be due to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall be reduced
by the applicable insurance proceeds to determine whether the ESI
Escrow Funds exceed the net ESI Payments due. The amount of the
reasonable Homco Litigation Costs determined under Section 13.1.6
shall be remitted to BOKF.
13.1.6. The reasonable Homco Litigation Costs incurred in defending
the Litigation of any claim to ESI Payments for purposes of Section
12.1.4 and 12.1.5 of this Agreement, shall be the amount set forth in
an Affidavit of either the Chief Financial Officer or Chief Legal
Officer of BOKF attesting to the amount of attorneys fees and costs
reasonably and necessarily incurred in defending to final adjudication
the Litigation of any claim of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ to the ESI Payments. If
any part of the Homco Litigation Costs are covered by insurance, then
the reasonable Homco Litigation Costs remitted to BOKF shall be
reduced by the amount of insurance payments received for the Homco
Litigation Costs.
13.1.7. BOKF covenants that it will diligently defend any Litigation
described in Section 13.1.3 of this Agreement in good faith and in the
same manner that it would in the event the ESI Escrow did not exist.
BOKF shall not settle any claim by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ for ESI Payments
without the consent of ▇▇▇ ▇. ▇▇▇▇▇▇▇, which consent shall not be
unreasonably withheld. ▇▇▇ ▇. ▇▇▇▇▇▇▇ is hereby designated as the
representative of the VCB Shareholders for the purpose of giving or
withholding such consent and is hereby released and held harmless from
any liability to the VCB Shareholders in connection therewith.
13.2. Upon receipt of any ESI Escrow Funds, the Paying Agent shall pay all
such funds to the holders of VCB Common Stock and Stock Options, in each
instance as of the Record Date, in accordance with their respective
interests (the "VCB Shareholders").
13.3. The rights of the VCB Shareholders to receive payments of ESI Escrow
Funds shall not be assignable or transferable except by operation of law or
by intestacy or with the approval of BOKF and will not be evidenced by any
certificate or other evidence of ownership.
13.4. BOKF shall pay the fees and costs of the Paying Agent with respect to
payment to the VCB Shareholders of the ESI Escrow Funds.
13.5. If at any time prior to the Closing, VCB or Bank obtains a release,
in a form reasonably satisfactory to BOKF, from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ of any
rights he may have to the ESI Payments, then the ESI Escrow Funds, less any
amounts paid to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ in consideration of such release, shall be
added to the Closing Payment under Section 2.7.1. of this Agreement and
Section 2.7.3. and this Section 13 of the Agreement shall become
inoperative.
14. Termination.
14.1. This Agreement may be terminated at any time prior to the Closing by:
(a) The mutual consent of the respective Boards of Directors of BOKF and
Merger Corp and VCB; (b) BOKF and Merger Corp if the conditions set forth
in Section 7 hereof shall not have been met; (c) VCB if the conditions set
forth in Section 8 hereof shall not have been met; (d) VCB if (i) VCB
receives an offer from a third party which the board of directors of VCB
determines, in good faith and after consultation with an independent
financial advisor, that such proposal constitutes a Superior Proposal and
resolves to accept such a Superior Proposal, and (ii) VCB shall have given
BOKF two (2) Phoenix business days' prior written notice of its intention
to terminate pursuant to this provision; (e) BOKF and Merger Corp if the
board of directors of VCB shall have resolved to accept a Superior
Proposal; (f) VCB in the event the Closing has not occurred by April 15,
2005, or such other date as the parties hereto agree in writing; or 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 15.1 hereof.
14.2. The exercise of a right of termination by a Party pursuant to Section
14.1 shall not limit any relief to which the terminating Party may be
entitled for a breach of this Agreement by the other Party. In the event
termination occurs as a result of a willful misrepresentation by a Party or
as a result of the willful failure of a party to fulfill a condition to the
performance of the obligation of the other party to this Agreement, the
breaching Party shall pay to the other United States funds immediately
available in the city at which the recipients' home office is located on or
before the fifth business day following such termination, Five Hundred
Thousand Dollars ($500,000). BOKF and VCB agree that (i) the damages
incurred by the non-breaching party would be substantial, but (ii) could be
difficult to quantify; and accordingly, (iii) such amount constitutes a
reasonable estimate of such damages.
14.3. In the event BOKF is not in default of any material obligation of
BOKF under this Agreement and VCB terminates this Agreement pursuant to
clause (d) of Section 14.1, BOKF terminates this Agreement pursuant to
clause (b) of Section 14.1 by reason of a failure of the condition
described in Section 7.7, and/or VCB terminates this Agreement pursuant to
clause (c) of Section 14.1 by reason of a failure described in Section 8.5,
VCB shall pay BOKF in United States funds immediately available in Tulsa,
Oklahoma, on or before the fifth Tulsa business day following the date on
which VCB terminates this Agreement, One Million Five Hundred Thousand
Dollars ($1,500,000).
14.4. VCB agrees that (i) the damages incurred by BOKF in the event of a
termination described in Section 14.3 would be substantial, but (ii) such
damages could be difficult to quantify; and accordingly, (iii) such amount
constitutes a reasonable estimate of such damages.
14.5. In the event the Closing has not occurred by April 15, 2005 and VCB
terminates this Agreement any time thereafter pursuant to clause (f) of
Section 14.1, BOKF shall pay VCB in United States funds immediately
available in Phoenix, Arizona, on or before the fifth Phoenix business day
following the date on which VCB terminates this Agreement, One Million Five
Hundred Thousand Dollars ($1,500,000) provided that (i) VCB is not in
default of any material obligation of VCB under this Agreement or (ii) the
action, omission or condition of VCB or Bank is not the cause in fact of
the failure of the Closing to timely occur.
15. Miscellaneous Provisions. The following miscellaneous provisions shall apply
to this Agreement:
15.1. 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
(iii) delivered by email (iv)delivered by U.S. Registered or Certified
Mail, Return Receipt Requested mail, or (v) 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, by facsimile or by
email, (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:
BOKF and Merger Corp:
▇▇▇▇▇▇ ▇▇▇▇▇, Senior Vice President
BOK FINANCIAL CORPORATION
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ - Facsimile
▇▇▇▇▇▇@▇▇▇▇.▇▇▇.▇▇▇
and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Secretary and General Counsel to
BOK Financial Corporation
Old City Hall
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ - Facsimile
▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
VCB and Bank:
▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the Board
Valley Commerce Bancorp, Ltd.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ - Facsimile
▇▇▇@▇▇▇-▇▇▇.▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Valley Commerce Bancorp, Ltd.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ - Facsimile
▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ - Facsimile
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
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.
15.2. This Agreement shall be subject to, and interpreted by and in
accordance with, the laws (excluding conflict of law provisions) of the
State of Oklahoma.
15.3. 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.
15.4. No course of prior dealings involving any of the parties hereto and
no usage of trade shall be relevant or advisable to interpret, supplement,
explain or vary any of the terms of this Agreement, except as expressly
provided herein.
15.5. This Agreement, and all the provisions of this Agreement, shall be
deemed drafted by all of the parties hereto.
15.6. 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.
15.7. 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.
15.8. 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.
15.9. 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.
15.10. 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).
15.11. This Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective successors and assigns.
15.12. This is not a third party beneficiary contract except as otherwise
expressly stated herein. No person or entity other than a party signing
this Agreement shall have any rights under this Agreement except as
otherwise expressly stated herein.
15.13. This Agreement may be amended or modified only in a writing which
specifically references this Agreement.
15.14. This Agreement may not be assigned by any party hereto.
15.15. 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.
15.16. The repudiation, breach, or failure to perform any obligation
arising under this Agreement by a party after reasonable notice thereof
shall be deemed a repudiation, breach, and failure to perform all of such
party's obligations arising under this Agreement.
15.17. Time is of the essence with respect to each obligation arising under
this Agreement. The failure to timely perform an obligation arising
hereunder shall be deemed a failure to perform the obligation.
15.18. All actions taken and documents delivered at the Closing shall be
deemed to have been taken and executed simultaneously and no action shall
be deemed taken nor any document delivered until all have been taken and
delivered.
15.19.Any information delivered by way of exhibit or schedule in connection
with this agreement shall be deemed delivered for the purpose of any other
exhibit or schedule which calls for such information.
15.20. In the event of a breach of an obligation to pay under this Merger
Agreement, the breaching party agrees to pay the non-breaching party
interest on the unpaid amount beginning on the date of default at a per
annum rate of U.S. National Prime plus two percent (2%), compounded
annually.
15.21. Except as otherwise provided in this Agreement, each of the parties
shall bear their own expenses associated with the transactions contemplated
by this Agreement including, without limitation, all costs of
investigations, regulatory applications and professional services. Dated
and effective the date first set forth above.
VALLEY COMMERCE BANCORP, LTD. VALLEY COMMERCE BANK
By: ____________________________ By: _____________________________
▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
President and CEO
BOK FINANCIAL CORPORATION BOK MERGER CORPORATION NUMBER EIGHT
By_____________________________ By: _____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President & CFO Executive Vice President & CFO
