Exhibit 99.2
C O N F I D E N T I A L
TRANSACTION DOCUMENT
(All Cash Reverse Triangular Merger Transaction)
****
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MERGER AGREEMENT
AMONG
BOK FINANCIAL CORPORATION,
BOKF MERGER CORPORATION NUMBER TWELVE,
WORTH BANCORPORATION, INC.,
AND
WORTH NATIONAL BANK
* * * *
Agreement Date of March 9, 2007
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Agreement Date of March 9, 2007
INDEX
to
MERGER AGREEMENT
Section Page
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1. Purpose of this Merger Agreement........................................ 1
2. The Merger...............................................................3
3. Effect of the Merger.....................................................7
4. Representations and Warranties of WBI ...................................7
5. Representations and Warranties of BOKF and Merger Corp..................21
6. Covenants...............................................................24
7. Conditions Precedent to Closing by BOKF and Merger Corp.................40
8. Conditions Precedent to Closing by WBI and Bank ........................42
9. Closing.................................................................44
10. Exchange Procedures; Paying Agent.......................................46
11. Escrow .................................................................49
12. Break-Up Fee............................................................53
13. Miscellaneous Provisions................................................53
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List of Schedules
Schedule 4.3 Stock Option
Schedule 4.5 Financial Statements
Schedule 4.6 Material Liabilities
Schedule 4.7 Conduct of Business Exceptions
Schedule 4.9 Material Contracts and Commitments
Schedule 4.10 Litigation
Schedule 4.14 Encumbrances
Schedule 4.15 Employee Contract and Benefit Plans
Schedule 4.22 Exceptions to Ordinary Course since 12/31/06
Schedule 4.22.2 Changes in Compensation
Schedule 4.23 Stock Purchase Notes
Schedule 6.16 Stay Agreement Recipients
Schedule 6.3.7 Compensation
Schedule 6.3.7.2 Bonuses Payable Through Closing
Schedule 6.3.7.4 Change in Control Payments
Schedule 6.3.7.5 Payments Prior to Closing
Schedule 7.9 Key Employees
Exhibit Index
Exhibit 2.11 Option Termination Agreement
Exhibit 2.12 Promissory Note Repayment Agreement
Exhibit 6.4 Voting Agreement
Exhibit 6.16 Stay Agreement
Exhibit 7.9 Employment Agreements
Exhibit 11.2 Escrow Agreement
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MERGER AGREEMENT
This merger agreement ("Merger Agreement" or "Agreement") is made as of
March 9, 2007 (the "Agreement Date") among the following parties (the
"Parties"):
(i) BOK Financial Corporation, an Oklahoma corporation, ("BOKF");
(ii) BOKF Merger Corporation Number Twelve, an Oklahoma corporation
and a wholly-owned subsidiary of BOKF ("Merger Corp");
(iii) Worth National Bank ("Bank"); and,
(iv) Worth Bancorporation, Inc., a Texas corporation ("WBI").
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. WBI is a bank holding company organized under the laws of Texas with
offices in Fort Worth and Grapevine, Texas. WBI is subject to
regulation by the Board of Governors of the Federal Reserve System
("FRB"). WBI owns all of --- the issued and outstanding capital
stock of Bank (headquartered in Fort Worth, Texas). The issued and
outstanding capital stock of WBI consists solely of a single class
of one million (1,000,000) shares of common stock of a par value of
$1.00 per share of which 833,091 shares are issued and outstanding
at the Agreement Date (including shares issued pursuant to the
Officer Stock Purchase Plan). The common stock of WBI issued and
outstanding as of the Closing is hereafter called the "WBI Common
Stock".
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1.2. ▇.▇. ▇▇▇▇▇▇▇▇▇▇ Insurance Agency, a wholly owned subsidiary of Bank
("WBI Insurance Agency"), is a Texas corporation located in Fort
Worth, Texas with a General Lines Agency license type from the Texas
Department of Insurance to sell life, accident, health, HMO, and
property and casualty insurance.
1.3. Bank is a national bank organized in accordance with the laws of the
United States of America. The issued and outstanding capital stock
of Bank consists solely of a single class of one hundred four
thousand nine hundred ninety one (104,991) shares of common stock of
a par value of $10.00 per share ("Bank Common Stock").
1.4. BOKF is a financial 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 WBI 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.
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2. The Merger. On the terms and conditions hereafter stated, Merger Corp
shall be merged into WBI (the "Merger").
2.1. WBI 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 WBI Common Stock shall, subject
to dissenters rights pursuant to Article Five of the Texas Business
Corporations Act, 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, an amount of United States Dollars equal to (x)
the Cash Consideration (as hereafter defined) less the
Escrow Amount (as hereafter defined) less all Option
Consideration (as hereinafter defined) divided by (y) the
number of shares of
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issued and outstanding WBI Common Stock immediately prior to
the consummation of the Merger; and,
2.7.2. Upon termination of the Escrow Account, her, his or its
proportionate share of the remaining Escrow Amount, as
provided in Section 11 herein.
2.8. The Cash Consideration shall equal (i) One Hundred Twenty Seven
Million One Hundred Twenty Five Thousand Dollars ($127,125,000) less
(ii) the Transaction Costs (as hereafter defined); provided,
however, that in the event the Closing has not occurred on or prior
to ninety (90) days after the Agreement Date, the Cash Consideration
shall increase by One Million Two Hundred Seventy One Thousand Two
Hundred Fifty Dollars ($1,271,250) provided that (i) WBI is not in
default of any material obligation of WBI under this Agreement and
(ii) the action, omission or condition of WBI or Bank is not the
cause in fact of the failure of the Closing to occur on or prior to
ninety (90) days after the Agreement Date
2.9. For purposes of this Merger Agreement, "Transaction Costs" means all
accounting, brokerage, commission, legal, consulting and other
similar costs attributable to, or resulting from, the negotiation,
execution, delivery, and consummation of this Agreement incurred by
WBI and Bank in excess of One Hundred Fifty Thousand Dollars
($150,000);
2.10. For purposes of this Merger Agreement, the "Escrow Amount" shall be
Two Million Six Hundred Thousand Dollars ($2,600,000) of the Cash
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Consideration to be deposited in the escrow account established in
accordance with Section 11 (the "Escrow").
2.11. WBI, BOKF and Merger Corp agree that each outstanding Stock Option
(as defined in Section 4.3.1) that has not already become fully
vested and exercisable shall become fully vested and exercisable
immediately prior to the consummation of the Merger. Unless
exercised prior to the consummation of the Merger, each Stock Option
shall terminate immediately prior to the consummation of the Merger,
and each holder of such terminated Stock Option shall be entitled to
receive from WBI, in lieu of each share of WBI Common Stock that
would otherwise have been issuable upon exercise thereof, an amount
in cash (the "Option Consideration") equal to the excess, if any,
between (i) (A) the Cash Consideration divided by (B) the sum of (1)
the total number of issued and outstanding shares of WBI Common
Stock immediately prior to the consummation of the Merger and (2)
the total number of shares of WBI Common Stock subject to
outstanding Stock Options and (ii) the Exercise Price (as defined in
Section 4.3.2) of such Stock Option. WBI shall collect in cash (and
timely pay) all applicable withholding and payroll taxes with
respect to such Stock Options and shall comply with all payroll
reporting requirements with respect thereto. WBI, BOKF and Merger
Corp agree that WBI shall enter into a written agreement, in form
attached hereto as Exhibit 2.11, with each holder of an outstanding
Stock Option evidencing and acknowledging termination of the Stock
Options and cancellation of all unexercised Stock Options held by
such option holder as
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of immediately prior to the consummation of the Merger, providing
for payment of all unexercised Stock Options in the manner set forth
in this Section 2.11, and releasing WBI and its board of directors,
agents, attorneys, stockholders, successors and assigns (including
BOKF and Bank of Texas, NA ("BOT"), their respective boards of
directors, agents, attorneys and stockholders) from any and all
obligations to such holder under any grant agreement regarding Stock
Options.
2.12. WBI, BOKF and Merger Corp agree that WBI shall enter into written
agreements, in substantially the form attached hereto as Exhibit
2.12, with all persons who have entered into certain Stock
Restriction and Repurchase Agreements with WBI ("Stock Plan
Participants") and have, at the time of Closing, outstanding
promissory notes payable to WBI as a result of the purchase of WBI
stock ("Stock Purchase Notes") whereby each Stock Plan Participant
agrees that the outstanding principal and accrued but unpaid
interest on such Stock Plan Participant's Stock Purchase Note shall
deducted from the Closing Payment (as defined in Section 10.3
herein) due to each such Stock Plan Participants prior to delivery
of the Closing Payment to the Stock Plan Participant.
2.13. Notwithstanding the provisions of Section 2.7, all holders of WBI
Common Stock electing to dissent to the Merger and perfecting their
dissenters rights pursuant to Article Five of the Texas Business
Corporations Act shall have only those rights set forth therein.
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2.14. 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 WBI Common
Stock.
3. Effect of the Merger. The Merger shall have the following effects:
3.1. The corporate franchise, existence, rights and liabilities of WBI
shall continue unaffected and unimpaired.
3.2. The corporate franchise, existence, rights and liabilities of Merger
Corp shall be merged into WBI and the separate existence of Merger
Corp shall cease.
3.3. WBI shall have and be vested with all of the rights, powers, assets,
property, liabilities and obligations of Merger Corp.
4. Representations and Warranties of WBI. WBI hereby represents and warrants
to BOKF that, now and at the time of Closing:
4.1. Incorporation and Corporate Power. WBI is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Texas. Bank is a bank duly organized, validly existing
and in good standing under the laws of the United States. Each of
WBI 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 WBI 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 Texas Business Organization Code, Title 12
of the Code of Federal
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Regulations (the "Federal Banking Code") and the filing of all
administrative reports and the payment of all material fees) in
effect as of the date of this Merger Agreement, and (B) shall be in
material compliance therewith at the time of Closing. ▇▇▇▇▇▇▇▇▇▇
Insurance Agency is duly organized and validly existing and
operating in accordance with all material requirements of law.
4.2. Capital.
4.2.1. The WBI Common Stock will, at Closing, consist only of eight
hundred thirty three thousand ninety one (833,091)shares plus
such shares as shall be duly issued upon the exercise of the
Stock Options.
4.2.2. WBI owns all of the issued and outstanding Bank Common Stock.
The Bank Common Stockis and at the Closing will be allof the
issued and outstanding capital stock of Bank.
4.3. Capitalization of WBI and Bank. The WBI Common Stock and Bank Common
Stock are validly issued and outstanding, fully paid and
non-assessable except as provided by 12 USC ss. 55 with respect to
Bank Common Stock.
4.3.1. Except as set forth in Schedule 4.3 (the "Stock Options"),
there are no outstanding subscriptions, conversion privileges,
calls, warrants, options or agreements obligating WBI and/or
Bank to issue, sell or dispose of, or to purchase, redeem or
otherwise acquire any shares of their capital stock
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(collectively, "options and rights"). At the Closing, there
will be no outstanding options or rights.
4.3.2. Schedule 4.3 sets forth a list of all Stock Options, the
number of shares of WBI Common Stock that may be acquired upon
the exercise of the Stock Options, and the exercise price of
such Stock Options (the "Exercise Price"). The Stock Options
consist of the right to acquire no more than seventy five
thousand six hundred (75,600) shares of WBI Common Stock.
4.3.3. None of the WBI 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
WBI or Bank was or is a party. WBI 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 WBI and (ii) ▇▇▇▇▇▇▇▇▇▇ Insurance
Agency is a subsidiary of Bank.
4.4. Non-Violation of Other Agreements. The execution and delivery of
this Merger Agreement, and the compliance with its terms and
provisions by WBI and Bank (including the execution and delivery of
any document required to be executed by WBI or Bank) will not breach
any material agreement, lease,
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or obligation, whether similar or dissimilar, by which WBI,
Bank, or the Trust is bound.
4.5. Financial Statements. Except as set forth on Schedule 4.5, WBI 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 WBI and
Subsidiaries, December 31, 2004, 2005 and 2006;
4.5.2. Reports of Condition and Income as filed with the Federal
Deposit Insurance Corporation (the "Call Reports"), December
31, 2004, 2005, and 2006;
4.5.3. Financial Statements (Unaudited) for WBI and Subsidiaries, as
of March 31, 2007 and the most recent monthly financial
statements available as of the Closing; and,
4.5.4. Reports of Condition and Income as filed with the Office of
the Comptroller of the Currency, as of March 31, 2007, 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 ("GAAP"), consistently
applied, unless otherwise provided by the Federal Deposit Insurance
Corporation Instructions to the Call Reports which
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instructions represent regulatory accounting principals ("RAP"), in
which instance such information is presented in conformity with RAP,
applied on a consistent basis throughout each period and with prior
periods (subject to the fact that such statements do not contain all
of the footnote disclosures required by GAAP) and (b) fairly reflect
the financial condition and results of operations for the indicated
periods (except as otherwise noted therein). 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 GAAP,
consistently applied, unless otherwise provided by RAP, in which
instance such information is presented in conformity with RAP,
applied on a consistent basis, through out the period and with prior
periods 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. Neither WBI 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)
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 with due care since December 31, 2006 in the
normal 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 Schedules to this Merger
Agreement.
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4.7. Conduct of Business Prior to Closing. Except as set forth in
Schedule 4.7, since December 31, 2006, (A) each of WBI and Bank has
carried on its business only in the ordinary and normal 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 $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
condition, assets, liabilities, business or property of WBI
and 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 closings,
and any material change in products offered to customers).
4.7.5. From the date of this Agreement to the date of Closing, WBI
and Bank will not voluntarily take any of the actions
described in the foregoing provisions of this Section 4.7.
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4.8. Tax Returns/Reports.
4.8.1. Each of WBI 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. WBI 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 WBI and 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 WBI or Bank which are
material to the business, operations or financial condition
of WBI or Bank as of this date, is set forth on Schedule 4.9.
For the purpose of Schedule 4.9 only, 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.
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4.9.2. Except as set forth on Schedule 4.9, each of WBI 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 Schedule 4.10, there is not
pending, or, to the knowledge of WBI and Bank threatened, any claim,
litigation, proceeding, order of any court or governmental agency,
or governmental investigation or inquiry to which WBI 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,, assets, properties or
operations of WBI and Bank taken as a whole; or,
4.10.2. May reasonably involve the expenditure of more than a total
of $25,000 in legal fees or costs;
4.11. Brokerage Fees. Neither WBI 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 other than payment
to SAMCO Capital Markets, Inc. for an opinion as to the fairness,
from a financial point of view, of the Merger Consideration to
shareholders of WBI, fees for which shall be deducted from the
Merger
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Consideration only to the extent the fees for such opinion, in
addition to any other Transaction Costs, exceeds $150,000.
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 WBI 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 WBI and
Bank in accordance with the requirements of federal banking law, the
Texas Business Corporations Act, and all other applicable law.
4.13. Authorized Execution. This Merger Agreement has been duly executed
and delivered by duly authorized officers of WBI and Bank. This
Merger Agreement constitutes the legal, valid and binding agreement
and obligation of WBI 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. WBI 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:
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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. Lessor's interests in leased tangible real and personal
property reflected on its 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;
4.14.5. Repossessed and foreclosed assets acquired in satisfaction
of debt previously contracted; and
4.14.6. As set forth on Schedule 4.14.6 hereto.
4.15. Employees. Except as set forth on Schedule 4.15 or as otherwise
provided for this Agreement, none of the employees of WBI 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 WBI 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 WBI or Bank are a party or by which either of them is
bound.
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4.16. Environmental Laws. The existence, use and operation of the assets
of WBI 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.
4.17. Loan Portfolio. Except as to any breach that would not have a
material adverse effect on the financial position of Bank, (A) 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; (B) 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 (C) 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; provided, however, that neither WBI nor the Bank makes any
representation or warranty with respect to the ability of the
obligor under any note or other evidence of indebtedness to
discharge its payment of obligations thereunder.
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4.18. Zoning and Related Laws. All real property owned or leased by WBI 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 WBI and Bank taken as a whole.
4.19. Compliance with Law. Bank and WBI have all licenses, franchises,
permits and other governmental authorizations that are legally
required to enable them to conduct their business as they are
currently doing so 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 WBI. Without limiting the generality of the foregoing, WBI
and Bank have at all times maintained their employee benefit plans
in 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 WBI and Bank employee benefit plans provided to BOKF are
complete and correct in all material respects.
4.20. Agreements with Regulatory Agencies. Neither Bank nor WBI 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
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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 WBI been advised by any regulatory agency that it is
considering issuing or requesting any Regulatory Agreement.
4.21. Parachute Payments and 409(A) Issuances. No payment to be made in
connection with this Merger Agreement and/or the Merger will be a
non-deductible excess parachute payment within the meaning of
Section 280G of the Internal Revenue Code ("Section 280G"). WBI did
not issue any options or stock in contemplation of the Merger which
may be combined with other change in control payments to create
non-deductible excess parachute payments under Section 280G. WBI has
not issued discounted stock options (i.e. options granted at an
exercise price which is less than the fair market value of the stock
at the date of grant) in violation of Internal Revenue Code Section
409(A) and the rules and regulations promulgated thereunder.
4.22. Actions From and After December 31, 2006. Except as set forth on
Schedule 4.22, WBI and Bank have not taken any action from and after
December 31, 2006 until the date of this Agreement that is
prohibited to be taken from and after the date of this Agreement by
the provisions of Section 6.3. Without limiting the generality of
the foregoing:
4.22.1. WBI has paid no dividends;
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4.22.2. From and after December 31, 2006, except as otherwise
disclosed in the Schedules to this Agreement, WBI has made
no changes in the compensation of any employees other than
non-material cost of living and merit adjustments consistent
with past practices or as otherwise provided on Schedule
4.22.2.
4.23. Stock Purchase Notes. Other than as provided on Schedule 4.23, there
are no outstanding notes, loans or other forms of indebtedness
related to the purchase of WBI common stock from WBI.
4.24. Survival and Independence of Representations and Warranties. The
representations and warranties of WBI and Bank made in this Merger
Agreement shall survive the Closing notwithstanding any
investigation or knowledge of BOKF or Merger Corp; provided BOKF
shall give notice to the Agent (as herein after defined) of any
claim of a breach of any such representations and warranties on or
before the eighteen month 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 WBI 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
-20-
disclosure made on any Schedule hereto shall be applicable to the
entire Agreement and not just one representation or warranty.
4.25. Knowledge. As used herein and only from the Agreement Date until the
Closing, the knowledge of WBI and/or the Bank shall mean the actual
knowledge which any one or more of the Chief Executive Officer,
Chief Credit Officer, Chief Human Relations Officer or any member of
the Board of Directors of WBI or the Bank have. At, and subsequent
to the time of, Closing, as used herein, the knowledge of WBI and/or
the Bank shall mean the knowledge which any one or more of the Chief
Executive Officer, Chief Operating Officer, Chief Credit Officer,
Chief Human Relations Officer or any member of the Board of
Directors of WBI or the Bank have 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 WBI 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
-21-
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,
-22-
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. Compliance with Laws and Regulations. Neither BOKF nor Merger Corp
are aware of any violation of any laws, rules or regulations
applicable to them (or their subsidiaries), specifically including
but not limited to the Bank Secrecy Act, the Money Laundering
Control Act of 1966 and the Money Laundering Suppression Act of 1994
and the regulations promulgated there under, which BOKF or Merger
Corp reasonably believe would prevent or delay approval of the
Merger by the Office of the Comptroller of the Currency, the Board
of Governors of the Federal Reserve Systems or any other federal or
state agency for which approval of the Merger is required.
5.6. Survival and Independence of Representations and Warranties The
representations and warranties of BOKF and Merger Corp made in this
Merger Agreement shall not survive the Closing hereof; provided,
however, the indemnification obligations of Section 5.7 hereof shall
survive the Closing indefinitely. Each of the representations and
warranties of BOKF
-23-
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.
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
WBI and Bank and their business affairs, WBI 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 WBI and
at reasonable times without unduly interfering with the
conduct of business by WBI and Bank throughout the period up
to the Closing, to all of the facilities, properties, books,
contracts and records of WBI 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 WBI and Bank and their business affairs, as BOKF
may reasonably request.
-24-
All information provided pursuant to this Section 6.1 shall be
subject to the provisions of Section 6.6.
6.2. Conduct of Business Prior to the Closing Date. From this date until
the Closing Date, each of WBI 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
-25-
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
except as otherwise agreed upon by the parties;
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. WBI and Bank Prohibited Actions Prior to the Closing Date. From this
date until the Closing Date, WBI and Bank shall not, except as
otherwise permitted by this Merger Agreement or as requested or
approved by BOKF in writing (which approval shall not be
unreasonably withheld, delayed or
-26-
denied and shall be deemed given two (2) business days after WBI
provides BOKF a written approval request, such request to provide
reasonably sufficient information to evaluate the request):
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 (i) less
than one million dollars ($1,000,000) per transaction
or (ii) less than two million dollars ($2,000,000)
with existing WBI customers having existing credit of
one million dollars ($1,000,000) or more made by Bank
in the usual and ordinary course of its banking
business, consistent with prior practices and
policies;
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
-27-
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 Articles of Incorporation or
Association 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
-28-
their business and except in connection with a Superior
Proposal (as defined in Section 6.11.2).
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 Schedule 6.3.7 or as otherwise
permitted by this Agreement, 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 Schedules hereto;
provided, however:
6.3.7.1. WBI may match for calendar year 2007 employee
contributions to the WBI 401k
-29-
profit sharing plan in an amount that is consistent
with past practice; and,
6.3.7.2. The Bank may pay bonuses for January 1, 2007 through
the Closing as provided on Schedule 6.3.7.2.
6.3.7.3. [Intentionally left blank].
6.3.7.4. The Bank may make the change in control payments
prior to Closing as provided in Schedule 6.3.7.4.
Such payments shall be allocated among the employees
listed on Schedule 6.3.7.4 in the aggregate amount
set forth under "Grand Total" on such Schedule
6.3.7.4.
6.3.7.5. WBI or the Bank may make the payments prior to
Closing as provided on Schedule 6.3.7.5.
6.3.8. Make any material change in their banking, safe deposit or
power of attorney arrangements;
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;
-30-
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. Vote for Merger and Waiver of Right to Dissent. Simultaneously with
the signing of this Agreement, WBI shall cause each of the Principal
Shareholders as identified on Schedule 6.4 and the members of the
board of directors of both WBI and Bank (the "Directors") to enter
into a Voting Agreement a form of which is attached hereto as
Exhibit 6.4.
6.5. Regulatory Approval. BOKF shall (A) diligently file and pursue all
regulatory applications required in order to consummate the Merger
and the merger of Worth National Bank and BOT, including but not
limited to the necessary applications for prior approval of the
Board of Governors of the Federal Reserve System, the Office of the
Comptroller of the Currency and the Texas Department of Insurance
and (B) thereafter promptly file any required supplements or
amendments thereto. All applications, supplements, and amendments
shall be substantially complete when filed. BOKF shall
-31-
promptly deliver to WBI and its counsel a copy of all such filings,
as filed, except to the extent such filings attribute facts or
statements to WBI, in which case, such filings will be presented for
review and approval (which approval will not be unreasonably
withheld, delayed or denied) by WBI, Bank and counsel to WBI and
Bank. Although all such filings shall be the responsibility of BOKF,
BOKF shall nevertheless advise and consult with WBI on an ongoing
basis with respect to the filings and all matters and events related
thereto. BOKF shall inform and make available to WBI from time to
time all matters relating to the filings and the regulatory
approvals, including, without limitation, copies of all written
correspondence with regulatory authorities relating to such matters
within two business days of such correspondence. 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 WBI
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 and so long as the undertaking does not create a
material change to the nature of the transactions contemplated by
this Merger Agreement. In the event an application is denied pending
an appeal, petition for review, or similar such act on the part of
the applicant,
-32-
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 or provided to BOKF (its employees, counsel,
accountants, and other authorized representatives) by WBI or Bank
(or their representatives) respecting the business and financial
condition of WBI 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 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 (its agents, officers, directors,
employees and counsel) shall (A) return all copies of all
information and documents obtained from WBI, Bank, and their
representatives, (B) thereafter 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
(C) shall not solicit for employment, whether directly or
indirectly, any of the employees, officers or directors of WBI or
Bank for a period of one year following such termination; provided
however, general solicitations in the media shall not constitute a
solicitation prohibited by this section.
6.7. Disclosure. Neither BOKF nor WBI, nor any other party to this Merger
Agreement or their representative, shall make any public disclosure
-33-
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 (A) necessary to maintain
compliance with applicable federal or state laws or regulations
after providing such disclosure to the other party, (B) required in
connection with the making of any application necessary to effect
the Merger, or (C) as required for WBI 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. WBI 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
-34-
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
-35-
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 Schedule 4.15 hereto between Bank and
any current or former director, officer or employee thereof,
and all provisions for vested benefits or other vested
Amount earned or accrued through the Closing Date under the
Bank benefit plans.
6.10.3. WBI shall, by appropriate action of its board of directors
and otherwise, take all action necessary (i) to vest all
Bank employees fully in the WBI 401(k) Plan, contingent upon
and effective as of the Closing and (ii) to terminate and
roll over such Plan into BOKF's analogous defined
contribution plan
-36-
following the Closing. BOKF shall be responsible for the
fees related to the termination thereof.
6.10.4. BOKF agrees to pay severance to each Bank or WBI employee
who is employed by Bank or WBI in accordance with BOKF's
standard severance policy, giving credit on a one year for
one year basis to Bank and WBI employees for years employed
with either Bank or WBI (provided that any dual employees of
Bank and WBI shall only be able to count employment years
for one entity).
6.11. No Solicitation.
6.11.1 Prior to the Closing Date, unless this Merger Agreement is
sooner terminated, neither Bank nor WBI shall directly or
indirectly (i) solicit or encourage inquiries or proposals
with respect to the merger of Bank or WBI or the sale of any
of the shares of Bank or WBI or other material asset(s) of
WBI or Bank from any party other than BOKF or (ii) merge with
any party or sell all or substantially all of the shares of
WBI or Bank or all or substantially all the material asset(s)
of WBI or Bank to any party.
6.11.2 Notwithstanding the provisions of Section 6.11.1 above, WBI
may, in response to an unsolicited written proposal with
respect to a merger, or purchase of substantially all the
outstanding stock or assets of WBI ("Acquisition Proposal"),
-37-
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 WBI 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 WBI'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 WBI shall immediately notify BOKF after receipt of any
Acquisition Proposal or any request for nonpublic information
relating to WBI or the Bank in connection with an Acquisition
Proposal or for access to the properties, books or records of
WBI or the Bank by any person or entity that
-38-
informs the WBI 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.
6.12. Shareholder Meeting. WBI shall take all action necessary to consider
and vote upon the transactions contemplated by this Merger
Agreement. The Board of Directors of WBI shall recommend that the
shareholders of WBI approve this Merger Agreement and the
transactions contemplated hereby, provided, however, that nothing in
this Agreement shall prevent the Board of Directors of WBI from
withholding, withdrawing, amending or modifying its recommendation
in the event of a Superior Proposal.
6.13. BOKF and Merger Corp Indemnification. BOKF and Merger Corp shall
indemnify the present and future directors, officers and employees
of WBI and Bank (the "Indemnified Parties") to the fullest extent to
which such Indemnified Parties were entitled under the Articles of
Incorporation and Bylaws of WBI and/or the Articles of Association
and Bylaws of Bank as in effect as of the date hereof.
6.14. Officer and Director Insurance. Prior to Closing, BOKF shall obtain
on a prepaid basis tail insurance coverage for a period of not less
than three (3) years after the Closing for the acts and omissions of
the officers and directors of WBI and Bank occurring prior to the
Closing. Such tail insurance shall be
-39-
comparable WBI and Bank directors' and officers' liability insurance
in existence prior to Closing.
6.15. Indenture Obligations. BOKF agrees that it shall promptly undertake,
at its cost and expense, any and all actions as reasonably necessary
to comply with any covenants or requirements of that certain
Indenture, dated as of December 14, 2006 by and between WBI and
Wilmington Trust Company, as trustee resulting from, or required by,
the consummation Merger.
6.16. Stay Agreements. BOKF agrees it shall enter into Stay Agreements
with the employees identified on Schedule 6.16 ("Stay Employees"),
in the form attached hereto as Exhibit 6.16, which shall, subject to
the terms and conditions of the Agreement, entitle the Stay
Employees to receive a one time bonus equal to fifty percent (50%)
of their current annual salary as identified on Schedule 6.16.
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 WBI 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.
-40-
7.3. The Office of the Comptroller of the Currency shall have i) approved
the Merger in accordance with the National Bank Act and ii) approved
the merger of the Bank with and into BOT.
7.4. The Texas Department of Insurance shall have approved the change in
control of the WBI Insurance Agency.
7.5. WBI 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. The shareholders of WBI shall have approved this Merger Agreement in
accordance with the Texas Business Corporations Act.
7.7. Neither WBI and 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 7.7, "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, of One Million
Dollars ($1,000,000) or more; provided however, assuming that none
of the following impact WBI or Bank more than similarly situated
banks and bank holding companies, "Material Adverse Change" will not
result from (i) changes in banking and similar laws and regulations,
(ii) changes in interest rates or (iii) any decline in general
economic conditions nationally.
-41-
7.8. Holders of no more than five percent (5%) of the WBI Common Stock
shall have dissented pursuant to Article Five of the Texas Business
Corporations Act.
7.9. BOKF shall have entered into employment agreements attached hereto
as Exhibit 7.9 with those officers of the Bank designated by BOKF in
accordance with Section 6.9.
7.10. WBI shall have entered into agreements with each holder of an
outstanding Stock Option, as described in Section 2.11 of this
Agreement.
7.11. WBI shall have (i) entered into agreements with each Stock Plan
Participant as described in Section 2.12 of this Agreement or (ii)
cause such shareholder to repay the Stock Purchase Note prior to
Closing.
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 WBI, in which event neither
party shall have any further obligation or liability to the other except
the obligations of BOKF set forth in Sections 5.4 and 6.6 and the
obligations of WBI 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 WBI and Bank. The obligation of WBI 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.
-42-
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. 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.
8.4. The shareholders of WBI shall have approved this Merger Agreement
and the transactions contemplated hereby as required by the Texas
Business Corporations Act.
8.5. The shareholders of WBI shall have approved any excess parachute
payments within the meaning of Section 280G of the Internal Revenue
Code.
8.6. WBI shall have received an opinion as to the fairness, from a
financial point of view, of the Merger Consideration to shareholders
of WBI.
8.7. WBI shall have received evidence of insurance coverage as required
by Section 6.14 herein.
8.8. WBI 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, WBI 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
the obligations of BOKF set forth in Section 6.6 and Section 5.4 and
the obligations of WBI set forth in Section 4.11.
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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 June 1, 2007 but in no event
before May 20, 2007. In any event, if the Closing Date does not occur on
or before August 1, 2007, then either BOKF or WBI may by notice to the
other, 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 WBI may agree. At the Closing, BOKF, Merger Corp, WBI,
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. BOKF shall:
9.1.1. Engage the Paying Agent to perform the obligations of the
Paying Agent herein set forth;
9.1.2. Deliver a certificate, signed by the Chief Executive Officer
of WBI and of the Bank, acting solely in his capacity as an
officer of WBI and/ or the Bank, stating that (A) each of the
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representations and warranties of WBI 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, other than those conditions that are the
responsibility of BOKF (e.g., regulatory approval), to close
set forth in this Agreement have, unless waived as herein
provided, been satisfied;
9.1.3. Deliver a certified copy of the resolutions of the Board of
Directors and shareholders of WBI, as required for valid
approval of the execution of this Agreement and the
consummation of the Merger and the other transactions
contemplated hereby;
9.1.4. Deliver good standing and existence certificates, dated a
recent date, duly certifying the existence and good standing
of WBI and the Bank (recent date in the event of the Bank can
be prior to the date of the regulatory filings);
9.1.5. Deliver an opinion of McGladrey & ▇▇▇▇▇▇, LLP, or another
accounting firm mutually agreed to by WBI and BOKF, in a form
reasonably acceptable to BOKF, opining that either i) no
payment, of which such accounting firm has knowledge, to any
employee of WBI or the Bank is an excess parachute payment
within the meaning of Section 280G of the Code ("Parachute
Payments") or ii) that WBI shareholder approval of the
Parachute
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Payments caused the Parachute Payments to no longer be
subject to the excise tax under Section 280G of the Code;
and,
9.1.6. Deliver a resolution of the Board of Directors of Bank
approving the merger of the WBI 401k plan into the defined
contribution plan of BOKF.
9.1.7. Cause the employment agreements, plans and payments described
in Schedule 4.15 to be terminated and discharged at no cost
to WBI and Bank.
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. Pay, by funds immediately available in New York City, to the
Paying Agent the funds required to be paid at the Closing to
WBI Shareholders as provided in Section 10.2;
9.2.2. Cause appropriate evidences of the Merger to be filed in
accordance with applicable law.
10. Exchange Procedures; Surrender of Certificates; Paying Agent.
10.1. Computershare, or other entity mutually satisfactory to WBI and
BOKF, shall act as paying agent in the Merger (the "Paying Agent").
10.2. Promptly following the WBI shareholder's approval of the Merger, the
Paying Agent shall mail, without any further action on the part of
BOKF or
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WBI, to each record holder of certificates representing WBI Common
Stock (the "Certificates"), addressed to the most current address of
such shareholder according to the records of WBI, 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. The Paying
Agent shall hold all Certificates it receives prior to Closing in
escrow for the benefit of the WBI Shareholders until the Closing.
10.3. At the Closing BOKF shall cause WBI, as the surviving corporation,
to furnish the Paying Agent cash sufficient in the aggregate for the
Paying Agent to make full payment of the Merger Consideration to all
WBI Shareholders on a pro rata basis in accordance with each WBI
shareholder's respective common stock ownership in WBI (each, a
"Closing Payment"), excluding, however, those shareholders who have
perfected their right to dissent to the Merger. The Paying Agent
shall deliver Closing Payments to those WBI shareholders at Closing
who have properly tendered Certificates prior to Closing as directed
by the transmittal letter. Certificates transmitted after Closing
shall be promptly paid by the Paying Agent (subject to Section 10.9
below). Delivery of Closing Payments, both before and after Closing,
shall be made, at the discretion of WBI shareholders, either by
check, direct
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deposit into an account at the Bank or by other means made available
by Paying Agent or the Bank.
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. After the Closing, there shall be no further registration or
transfers on the records of WBI of outstanding certificates formerly
representing shares of WBI Common Stock and, if a certificate
formerly representing such shares is presented to WBI or BOKF, it
shall be forwarded to the Paying Agent for cancellation and exchange
for the Merger Consideration.
10.7. All Merger Consideration paid upon the surrender of WBI 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 WBI Common.
10.8. In the event any certificate for WBI Common shall have been lost,
stolen, or destroyed, the Paying Agent shall issue in exchange for
such lost, stolen, or destroyed certificate, such Merger
Consideration as may be required pursuant
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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.
10.9. At any time following thirteen (13) months after the Closing, BOKF
shall be entitled to terminate the Paying Agent relationship and
thereafter holders of Certificates shall be entitled to look only to
BOKF (subject to abandoned property, escheat, or other similar laws)
with respect to the Merger Consideration payable upon surrender of
their Certificates or upon due exercise of any Stock Options.
11. The Escrow. The Escrow shall be established on the following terms and
conditions:
11.1. The escrow agent shall be Bank of Oklahoma, National Association
("Escrow Agent" or "BOk").
11.2. The Escrow shall be governed by the Escrow Agreement (the "Escrow
Agreement") a copy of which is set forth as Exhibit 11.2.
11.3. BOKF shall deliver the Escrow Amount to the Escrow Agent at the
Closing. The Escrow Agent shall invest the Escrow Amount in an
interest bearing account that bears interest equal to that of an
eighteen month certificate of deposit issued by BOk on the terms and
conditions being offered by BOk to the public at the time of such
investment. Interest on the certificates shall be added to the
Escrow and paid to WBI Shareholders on a quarterly basis on a pro
rata basis in accordance with their former ownership interest in
WBI.
-49-
11.4. In the event BOKF claims a breach of the representations and
warranties of WBI and Bank arising under this Merger Agreement, BOKF
shall give notice of the claim (a "Claim") to ▇▇▇ ▇▇▇▇▇▇ (the
"Agent"). The notice shall identify the representations and
warranties which BOKF claims have been breached and describe in
reasonable detail the basis of the Claim and set forth a good faith
reasonable estimate ("Good Faith Estimate") of the maximum amount of
damages claimed ("Losses"). Losses shall not include damages for
which BOKF receives reimbursement under any existing insurance
policy. BOKF shall be under no obligation to insure against Losses.
An indemnity payment to be made by the Escrow Agent from the Escrow
Account for a Loss shall be reduced by any Tax Benefit realized on
or prior to the date of such payment is due as a result of the
adjustment or event giving rise to such Loss; provided, however,
that if a Tax Benefit is realized after a Claim has already been
paid ("Prior Payments") pursuant to this Agreement, BOKF shall first
pay to the Escrow Agent for deposit into the Escrow Account the
amount of the Tax Benefit (up to the amount of such Prior Payments)
no later than fifteen (15) days after such Tax Benefit is realized,
and any excess of the Tax Benefit over the Prior Payments shall be
applied to reduce any future payments to be made by the Escrow Agent
from the Escrow Account pursuant to this Agreement. For purposes of
this Agreement, a "Tax Benefit" means the reduction of tax
liabilities (calculated on the basis of the actual reduction in cash
payments for taxes) resulting from an increase in deductions, losses
or tax credits or decrease in the income, gain
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or recapture of tax credits that WBI, the Bank or any Subsidiary of
the Bank but only to the extent that the benefit directly or
indirectly reduces BOKF's taxes payable or is otherwise utilized by
BOKF to increase a net operating loss carry forward or other tax
attribute. For purposes of this Agreement, the "Tax Benefit
Realized" date shall be the earlier of March 15 of the year
following the tax year in which the increase in deduction, loss, or
tax credits is claimed or the decrease in income, gain or recapture
of tax credits occurs or the date such Tax Benefit reduces the
actual estimated tax liability of BOKF.
11.5. BOKF shall make no Claim unless and until the aggregate amount of
all uninsured Losses shall exceed two hundred fifty thousand dollars
($250,000), in which event BOKF may make Claims against the Escrow
for all uninsured Losses. Absent actual fraud by WBI or Bank, BOKF
and Merger Corp hereby waive all Claims in excess of the Escrow
Amount.
11.6. In the event BOKF makes no Claim for any Losses on or before the
Claim Notice Deadline, the Escrow Agreement shall terminate and the
Escrow Agent shall, within five (5) business days thereafter,
distribute the Escrow Amount to the Paying Agent for distribution in
accordance with Section 11.8 hereof.
11.7. In the event BOKF makes one or more 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 Escrow Amount less the amount of all Losses claimed
by BOKF for distribution in
-51-
accordance with Section 11.8 hereof, and (ii) continue to hold and
invest the remaining Escrow Amount until such claim is resolved by
(1) mutual agreement of the Agent and BOKF, or (2) a final
adjudication determining the merits of the BOKF Claim, at which time
the 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 Amount to the
Paying Agent for distribution in accordance with Section 11.8
hereof.
11.8. Upon termination of the Escrow, the Escrow Amount remaining in the
Escrow shall be delivered to the former holders of WBI Common Stock
in accordance with their respective interests (the "WBI
Shareholders").
11.9. The rights of the WBI Shareholders to receive payments from the
Escrow shall not be assignable or transferable except by operation
of law or by intestacy or with the approval of BOKF (which approval
shall not be unreasonably withheld, delayed, or denied) and will not
be evidenced by any certificate or other evidence of ownership.
11.10. BOKF shall pay the fees and costs of the Escrow Agent with respect
to the Escrow.
11.11. The WBI Shareholders may by the vote of a majority in interest and
upon notice to BOKF to change the Agent. The Agent shall not be
deemed a fiduciary of the holders of WBI Common Stock and shall be
liable to such holders only for gross negligence or intentional
wrongdoing.
-52-
11.12. BOKF agrees it shall diligently defend any litigation in good faith
in the same manner it would in the event the Escrow Amount did not
exist. BOKF will not settle any claim without the prior written
consent of the Agent, which consent shall not be unreasonably
withheld. BOKF shall consult with Agent and his counsel at
reasonable intervals regarding all litigation matters.
12. Break-Up Fee. WBI shall pay BOKF a break-up fee as follows:
12.1. In the event BOKF is not in default of any material obligation of
BOKF under this Agreement and the Merger is not consummated because
the Board of Directors of WBI and/or shareholders of WBI approve an
alternative transaction (whether or not submitted by the Board of
Directors to the WBI shareholders for approval and whether or not
such alternative transaction is consummated) then, WBI 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 the Board of Directors and/or shareholders of WBI
approve such an alternative proposal, Four Million Dollars
($4,000,000) and upon such payment, this Agreement, and all
agreements contemplated by this Agreement, shall terminate.
12.2. WBI agrees that (A) the damages incurred by BOKF in any such event
would be substantial, but (B) such damages could be difficult to
quantify; and accordingly, (C) such amount constitutes a reasonable
estimate of such damages.
13. Miscellaneous Provisions. The following miscellaneous provisions shall
apply to this Agreement:
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13.1. 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:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Financial Officer
BOK FINANCIAL CORPORATION
▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (918) 588-6853 -
Facsimile ▇▇▇▇▇@▇▇▇▇.▇▇▇
and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Secretary and General Counsel to
BOK Financial Corporation
Old City Hall
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ - Facsimile
▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
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WBI and Bank:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman of the Board
Worth Bancorporation, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ - Facsimile
▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Jenkens and ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ fax
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.
13.2. This Agreement shall be subject to, and interpreted by and in
accordance with, the laws (excluding conflict of law provisions) of
the State of Texas.
13.3. 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.
13.4. 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.
-55-
13.5. This Agreement, and all the provisions of this Agreement, shall be
deemed drafted by all of the parties hereto.
13.6. 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.
13.7. 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.
13.8. 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.
13.9. 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.
13.10. 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
-56-
attorneys fees and expenses (including court costs, reasonable fees
of accountants and experts, and other expenses incidental to the
litigation).
13.11. This Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective successors and assigns.
13.12. This is not a third party beneficiary contract except as otherwise
expressly stated herein or other than the WBI shareholders' rights
under Section II 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.
13.13. This Agreement may be amended or modified only in a writing which
specifically references this Agreement.
13.14. This Agreement may not be assigned by any party hereto.
13.15. 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.
13.16. The repudiation, breach, or failure to perform any obligation
arising under this Agreement by a party after reasonable notice
thereof shall be deemed a
-57-
repudiation, breach, and failure to perform all of such party's
obligations arising under this Agreement.
13.17. 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.
13.18. 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.
13.19. Any information delivered by way of Schedule or schedule in
connection with this agreement shall be deemed delivered for the
purpose of any other Schedule or schedule which calls for such
information.
13.20. 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.
Dated and effective the date first set forth above.
WORTH NATIONAL BANK WORTH BANCORPORATION, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------- ---------------------
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chairman of the Board Chairman of the Board
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BOK FINANCIAL CORPORATION BOK MERGER CORPORATION
NUMBER TWELVE
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------- -------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
Executive Vice President and Executive Vice President and
Chief Financial Officer Chief Financial Officer
-59-
Exhibit 2.11
OPTION HOLDER AGREEMENT
________, 2007
Worth Bancorporation, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
BOK Financial Corporation
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Reference is hereby made to that certain Merger Agreement, dated as of
March 8, 2007 ("Merger Agreement"), among BOK Financial Corporation ("BOKF");
BOKF Merger Corporation Number Twelve, a wholly-owned subsidiary of BOKF; Worth
Bancorporation, Inc., a Texas corporation ("WBI"); and Worth National Bank
wholly-owned subsidiary of WBI. Terms with their initial letter capitalized and
not otherwise defined herein have the meanings given them in the Merger
Agreement.
I have previously been granted options to acquire shares of WBI common
stock, par value $1.00 per share (the "WBI Stock"), pursuant to one or more
stock option agreements (the "Option Agreements") between me and WBI. With
respect to the number of shares of WBI Stock that I have unexercised options to
purchase (the "Covered Options"), I acknowledge that due to actions taken by the
Board of Directors of WBI, I will be entitled to receive, in lieu of each share
of WBI Stock that would otherwise have been issuable upon exercise of my Covered
Options, an amount in cash equal to the excess, if any, between (i) the per
share Cash Consideration, as calculated pursuant to the Merger Agreement and
(ii) the exercise price of each Covered Option (the "Option Consideration"). I
acknowledge that the Option Consideration to be received by me is adequate
consideration for my agreement to the terms and conditions of this Agreement,
including, without limitation, the release set forth below.
I understand and acknowledge that (i) my Covered Options that are not
already fully vested and exercisable shall become fully vested and exercisable
immediately prior to the Effective Time, (ii) my Covered Options may not be
exercised on or after the tenth (10th) business day prior to the Closing Date of
the Merger Agreement (the "Determination Date"), and (iii) unless exercised
prior to the Determination Date, my Covered Options shall terminate immediately
prior to the effective time of the Merger (the "Effective Time") and that I will
be entitled to receive, in lieu of shares of WBI Stock that would otherwise have
been issuable upon exercise thereof, the Option Consideration. I agree (iv) to
accept the Option Consideration for my Covered Options in full satisfaction of
all my rights under the Covered Options and (v) that, without limitation, upon
receipt of such Option Consideration, such Covered Options shall be cancelled
and shall terminate at the Effective Time. I understand that until the
Determination Date, I shall continue to have the right to exercise any Covered
Options in accordance with their terms.
Upon receipt of the Option Consideration, I hereby release WBI and its
board of directors, agents, attorneys, stockholders, successors and assigns
(including BOKF and Merger Corp), their respective boards of directors, agents,
attorneys and stockholders) from any and all obligations to me relating to the
Covered Options. I further agree to take such additional actions and deliver
such additional documents and certificates as may be reasonably requested by WBI
or BOKF to effect the transactions described in this Agreement.
I understand and agree that the Option Consideration will be subject to
usual and customary payroll deductions for FICA, federal and state withholding,
and the like.
Very truly yours,
--------------------------------------
Printed Name:
-------------------------
Agreed and Acknowledged:
Worth Bancorporation, Inc.
a Texas corporation
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and CEO
Exhibit 2.12
PROMISSORY NOTE PAYMENT AGREEMENT
________, 2007
Worth Bancorporation, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
BOK Financial Corporation
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Reference is hereby made to that certain Merger Agreement, dated as of
March 8, 2007 ("Merger Agreement"), among BOK Financial Corporation ("BOKF");
BOKF Merger Corporation Number Twelve, a wholly-owned subsidiary of BOKF; Worth
Bancorporation, Inc., ("WBI"); and Worth National Bank, a wholly-owned
subsidiary of WBI. Terms with their initial letter capitalized and not otherwise
defined herein have the meanings given them in the Merger Agreement.
I previously purchased __________ shares of WBI common stock ("WBI Common
Stock"), par value $1.00, pursuant to a Stock Restriction and Repurchase
Agreement between myself and WBI whereby WBI financed eighty percent (80%) of my
purchase price. In return, I signed a promissory note, payable to WBI, in the
principal amount of $____________________ dated ___________________, 200___ (the
"Promissory Note"). Pursuant to a Pledge (Security) Agreement between myself and
WBI (the "Pledge Agreement"), my WBI Common Stock is pledged as collateral for
my Promissory Note.
I understand that pursuant to the Merger Agreement, I will be entitled to
receive at Closing, a cash payment in exchange for my WBI Common Stock (the
"Merger Payment"). Rather than have my Merger Payment retained as collateral for
my Promissory Note pursuant to the Pledge Agreement, I hereby authorize and
direct BOKF to apply my Merger Payment to pay any and all outstanding principal
and accrued, but unpaid interest on the Promissory Note though the Closing Date
("Final Note Payment"). After effecting the above, any remaining Merger Payment
amounts shall be paid to me at Closing as provided in the Merger Agreement.
I further agree to take such additional actions and deliver such
additional documents and certificates as may be reasonably requested by WBI or
BOKF to effect the transactions described in this Agreement. Upon Final Note
Payment, WBI agrees to release me from any and all obligations under the
Promissory Note.
Very truly yours,
--------------------------------------
Printed Name:
-------------------------
Agreed and Acknowledged:
Worth Bancorporation, Inc.
a Texas corporation
By:
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and CEO
Exhibit 6.4
VOTING AGREEMENT AND IRREVOCABLE PROXY
This VOTING AGREEMENT AND IRREVOCABLE PROXY (this "Agreement") dated as of
March 8, 2007 is executed by and among BOK Financial Corporation ("BOKF"), Worth
Bancorporation, Inc. ("WBI"), ▇▇▇▇▇▇ ▇▇▇▇▇▇ as a proxy ("▇▇▇▇▇▇"), _________, as
a substitute proxy, ("____") and other persons who are signatories hereto
(referred to herein individually as a "Shareholder" and collectively as the
"Shareholders").
WHEREAS, BOKF, WBI, WNB and others have executed or soon will execute that
certain Merger Agreement, dated as of March 8, 2007 (the "Merger Agreement"),
providing for WBI and BOKF ▇▇▇▇▇ Corporation Number Twelve to merger ("Merger").
WHEREAS, BOKF and WBI are relying on the irrevocable proxies of the
Shareholders and incurring expenses in reviewing WBI's business and in
proceeding with the filing of applications for regulatory approvals and
undertaking other actions necessary for the consummation of the Merger;
NOW, THEREFORE, for and in consideration of the foregoing and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, BOKF, WBI and the Shareholders undertake, promise, covenant and
agree with each other as follows;
1. The Shareholders, being the holders of the shares of the shares of
common stock, $1.00 per value, of WBI ("Common Stock") set forth beside their
names on the signature pages hereto, hereby agree to vote at the shareholders'
meeting to be called for purposes of voting on the Merger (the "Meeting") all
shares of Common Stock the Shareholders own of record as of the date of the
Meeting and to direct the vote of all shares of Common Stock that the
Shareholders own beneficially and have the power and authority to direct the
voting thereof as of the date of the Meeting (the "Shares") in favor of approval
of the Merger and Merger Agreement and all of the agreements and transactions
contemplated by the Merger Agreement.
2. In order to better effect the provisions of Section 1, each Shareholder
hereby revokes any previously executed proxies and hereby constitutes and
appoints ▇▇▇▇▇▇, with full power of substitution, his or her true and lawful
proxy and attorney-in-fact (the "Proxy Holder") to vote at the Meeting all of
such Shareholder's Shares in favor of the approval of the Merger and the Merger
Agreement and the transactions contemplated by the Merger Agreement, with such
modifications to the Merger and the Merger Agreement as the parties thereto may
make; provided, however, that this proxy shall not apply with respect to any
vote on the Merger or the Merger Agreement if the Merger Agreement is modified
so as to reduce the amount of consideration to be received by the Shareholders
under the Merger Agreement in its present form.
3. ▇▇▇▇▇▇, by his execution below,, hereby appoints ______ as substitute
proxy to act as the Proxy Holder under this Agreement; provided, however, that
such appointment of
_____ as his execution below as substitute Proxy Holder, agrees to vote all of
the Shareholders' Shares at the Meeting in favor of the approval of the Merger
and the Merger Agreement and the transactions contemplated by the Merger
Agreement, with such modifications to the Merger and the Merger Agreement as the
parties may make; provided, however, that this proxy shall not apply with
respect to any vote on the Merger or the Merger Agreement if the Merger
Agreement is modified so as to reduce the amount of consideration to be received
by the shareholders under the Merger Agreement in its present form.
4. Each Shareholder hereby covenants and agrees that until this Agreement
is terminated in accordance with its terms, each Shareholder will not, and will
not agree to, without the consent of BOKF, directly or indirectly, sell,
transfer, assign, pledge, hypothecate, cause to be redeemed or otherwise dispose
of any of the Shares or grant any proxy or interest in or with respect to any
such Shares or deposit such shares into a voting trust or enter into another
voting agreement or arrangement with respect to such Shares except as
contemplated by this Agreement, unless the Shareholder causes the transferee of
such Shares, or another holder of Common Stock in the amount of such Shares, to
deliver to BOKF an amendment to this Agreement whereby such transferee becomes
bound by the terms of this Agreement.
5. This proxy shall be limited strictly to the power to vote the Shares in
the manner set forth in Section 2 and shall not extend to any other matters.
6. The Shareholders acknowledge that WBI and BOKF are relying on this
Agreement in incurring expenses in reviewing business, in preparing a proxy
statement, in proceeding with the filing of applications for regulatory
approvals, and in undertaking other actions necessary for the consummation of
the Merger and that THE PROXY GRANTED HEREBY IS COUPLED WITH AN INTEREST AND IS
IRREVOCABLE TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING ARTICLE
2.29C OF THE TEXAS BUSINESS CORPORATION ACT. The Shareholders and WBI
acknowledge that the performance of this Agreement is intended to benefit BOKF.
7. The irrevocable proxy granted pursuant hereto shall continue in effect
until the earlier to occur of (i) the termination of the Merger Agreement, as it
may be amended or extended from time to time, or (ii) the consummation of the
transactions contemplated by the Merger Agreement.
8. The vote of the Proxy Holder shall control in any conflict between his
vote of the Shares and a vote by the Shareholders of the Shares, and WBI agrees
to recognize the vote of the Proxy Holder instead of the vote of the
Shareholders in the event the Shareholders do not vote in favor of the approval
of the Merger and the Merger Agreement as set forth in Section 1 hereof.
9. This Agreement may not be modified, amended, altered or supplemented
with respect to a particular Shareholder except upon the execution and delivery
of a written agreement executed by WBI, BOKF and such Shareholder.
10. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same
2
instrument. A telecopy or facsimile transmission of a signed counterpart of this
Agreement shall be sufficient to bind the party or parties whose signature(s)
appear thereon.
11. This Agreement, together with the Merger Agreement and the agreements
contemplated thereby, embody the entire agreement and understanding of the
parties hereto in respect to the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings among the parties with
respect to such subject matter contained herein.
12. All notices, requests, demands and other communications required or
permitted hereby shall be in writing and shall be deemed to have been duly given
if delivered by hand or mail, certified or registered mail (return receipt
requested) with postage prepaid to the addresses of the parties hereto set forth
on below their signature on the signature pages hereof or to such other address
as any party may have furnished to the others in wiring in accordance herewith.
13. This Agreement and the relations among the parties hereto arising from
this Agreement shall be governed by and construed in accordance with the laws of
the State of Texas.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date above written.
WORTH BANCORPORATION, INC.
By:
-----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
President and Chief Executive Officer
BOK FINANCIAL CORPORATION
By:
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, Executive Vice President
and Chief Financial Officer
PROXY HOLDER:
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
SUBSTITUTE PROXY HOLDER:
-------------------------------
3
SHAREHOLDER NUMBER OF SHARES
5
Exhibit 6.16
STAY AGREEMENT
This Stay Agreement (the "Stay Agreement") dated as of _________, 2007
(the "Effective Date") by and between Worth Bancorporation, Inc, a Texas
corporation (the "WBI") and _____________________ (the "Key Employee").
WITNESSETH
WHEREAS, WBI has entered into a certain Merger Agreement, dated March 9,
2007 (the "Merger Agreement") whereby BOKF Merger Corporation Number Twelve, an
Oklahoma corporation and wholly-owned subsidiary of BOK Financial Corporation
("BOKF"), shall merge into WBI (the "Merger"); and
WHEREAS, WBI seeks to retain and motivate key personnel to effectively
manage Worth National Bank, a national banking association (the "Bank") after
the Merger.
NOW THEREFORE, the parties hereto hereby agree to follows:
1. Stay Bonus. If Key Employee has continued in the employment of Bank from
the Effective Date and until the earlier of i) 365 days after the Closing
(as defined in the Merger Agreement) or ii) 30 days after Successful
Systems Conversion Date (as defined herein) (the earlier of which is the
"Bonus Date"), then Bank shall pay the Key Employee fifty percent (50%) of
Key Employee's current annual salary less usual and customary payroll
deductions not later than ten (10) business days following the Bonus Date.
2. Successful Systems Conversion Date. For purposes of this Stay Agreement,
"Successful Systems Conversion Date" means the day upon which the Chief
Information Officer of BOKF determines, in his reasonable discretion, that
the information services and data processing systems have successfully
been converted from the Bank's system prior to the Merger to those of BOKF
(the "Conversion Date"). The Chief Information Officer of BOKF shall
provide written notice to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ within two (2) business days of
the Conversion Date.
3. Termination of Employment. Notwithstanding any other provision of this
Agreement, the Bank may terminate the Employee at any time in accordance
with the Bank's existing employment policies. In such event, the Bank
shall be under no further obligation to make any payments or provide any
benefits to the Employee except for: (i) base salary earned but unpaid at
the time of such termination, (ii) any other accrued benefit, such as
accrued vacation, (iii) group health coverage that is required to be
continued by applicable law, and (iv) the Stay Pay Amount as provided
above, provided such termination of employment is not for "cause," as that
concept is defined or described in the Bank's existing employment and/or
conduct policies.
-1-
4. Not an Employment Agreement. This Agreement shall not constitute a
guarantee of continuing employment of the Key Employee.
5. Miscellaneous Provisions. The following miscellaneous provisions shall
apply to this Agreement:
a) All notices or advices required or permitted to be given by or pursuant to
this Agreement, shall be given in writing. All such notices and advices
shall be (i) delivered personally, (ii) delivered by facsimile or
delivered by U.S. Registered or Certified Mail, Return Receipt Requested
mail, or (iii) delivered for overnight delivery by a nationally recognized
overnight courier service. Such notices and advices shall be deemed to
have been given (i) the first business day following the date of delivery
if delivered personally or by facsimile, (ii) on the third business day
following the date of mailing if mailed by U.S. Registered or Certified
Mail, Return Receipt Requested, or (iii) on the date of receipt if
delivered for overnight delivery by a nationally recognized overnight
courier service. All such notices and advices and all other communications
related to this Agreement shall be given as follows:
If to WBI and Bank:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (817) 923-9581
(facsimile) ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
If to BOKF or Merger Corp:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Financial Officer
BOK Financial Corporation
▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (918)
588-6853 (facsimile) ▇▇▇▇▇@▇▇▇▇.▇▇▇
With Copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Old City Hall
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ - Telephone
(▇▇▇) ▇▇▇-▇▇▇▇ - Facsimile
If to Key Employee:
------------------------------
------------------------------
------------------------------
------------------------------
------------------------------
-2-
or to such other address as the party may have furnished to the other
parties in accordance herewith, except that notice of change of addresses
shall be effective only upon receipt.
b) This Agreement is made and executed in Tarrant County, Texas. This
Agreement shall be subject to, and interpreted by and in accordance with,
the laws (excluding conflict of law provisions) of the State of Texas.
c) 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.
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.
d) This Agreement, and all the provisions of this Agreement, shall be deemed
drafted by all of the parties hereto. 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 intent of this Agreement.
e) 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.
f) 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).
g) This Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective successors and assigns, including, but not
limited to, Bank of Texas NA. This is not a third party beneficiary
contract. No person or entity other than a party signing this Agreement
shall have any rights under this Agreement.
h) This Agreement may be amended or modified only in a writing which
specifically references this Agreement.
i) This Agreement may not be assigned (including performance by subcontract)
by any party hereto.
j) 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
-3-
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.
k) 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.
l) 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.
m) In the event any provision of this Agreement, or the application of such
provision to any person or set of circumstances, shall be determined to be
invalid, unlawful, or unenforceable to any extent for any reason, the
remainder of this Agreement, and the application of such provision to
persons or circumstances other than those as to which it is determined to
be invalid, unlawful, or unenforceable, shall not be affected and shall
continue to be enforceable to the fullest extent permitted by law.
s) Any cause of action for a breach or enforcement of, or a declaratory
judgment respecting, this Agreement shall be commenced and maintained only
in the United States District Court for the U.S. District Court of the
Northern District of Texas, Forth Worth Division, or the applicable Texas
state trial court sitting in Fort Worth, Texas and having subject matter
jurisdiction.
Dated and effective as of the Effective Date.
BOK Financial Corporation
By:
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, Executive Vice President
And Chief Financial Officer
"Key Employee"
----------------------------------------
Printed Name:
---------------------------
-4-
Exhibit 11.2
ESCROW AGREEMENT
This Escrow Agreement (this "Escrow Agreement") dated as of March _____,
2007 (the "Effective Date") by and between BOK Financial Corporation, an
Oklahoma corporation ("BOKF"), Worth Bancorporation, Inc., a Texas corporation
("WBI"), the shareholders of WBI (the "WBI Shareholders") and Bank of Oklahoma,
NA, a national banking association and wholly owned subsidiary of BOKF ("Escrow
Agent").
WITNESSETH:
WHEREAS, BOKF, WBI, BOKF Merger Corporation Number Twelve, an Oklahoma
corporation and wholly owned subsidiary of BOKF, and Worth National Bank, a
national bank and wholly owned subsidiary of WBI have entered into a certain
Merger Agreement dated March 8, 2007 (the "Merger Agreement"); and
WHEREAS, BOKF and WBI seek to establish an escrow account as provided by
the Merger Agreement.
NOW, THEREFORE, 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 hereto agree as follows:
(a) BOKF and WBI hereby appoint the Escrow Agent as the escrow agent to
hold the Escrowed Amount (as defined herein) in accordance with the terms,
conditions and provisions of this Agreement. The Escrow Agent hereby accepts
appointment as the Escrow Agent and agrees to accept all funds deposited in the
escrow account (the "Escrow Account") and to distribute and release such funds,
with any interest earned thereon, only in accordance with the terms, conditions
and provisions of this Agreement.
(b) On the Closing Date, BOKF shall deposit with the Escrow Agent, by wire
transfer of immediately available funds to the escrow account established by the
Escrow Agent pursuant to the instructions of BOKF and WBI, that property
specifically described in Exhibit "A" attached hereto and made a part hereof
(referred to below as the subject matter of the Escrow or the "Escrow Amount").
(c) The Escrow Agent is hereby authorized and directed to deliver the
subject matter of the escrow only (i) to the undersigned against their joint
receipt, or (ii) to any of the undersigned upon written direction of each other
of the undersigned, or (iii) in accordance with the written instructions of all
of the undersigned.
(d) Where directions or instructions from more than one of the undersigned
are required, such directions or instructions may be given by separate
instruments of similar tenor.
Any of the undersigned may act hereunder through an agent or attorney-in-fact,
provided satisfactory written evidence of authority is first furnished to the
Escrow Agent.
(e) Section 11 of the Merger Agreement is incorporated herein by this
reference ("Section 11"). The Escrow Agent is not a party to, and is not bound
by, or charged with notice of, any other portions of such Merger Agreement or
any other agreement out of which this escrow may arise other than the terms,
conditions and provisions relating to the Escrowed Funds contained in the Merger
Agreement.
(f) The Escrow Agent acts hereunder as a depository only, and is not
responsible or liable in any manner whatever for the sufficiency, correctness,
genuineness or validity of the subject matter of the escrow, or any part
thereof, or for the identity or authority of any person executing or depositing
it.
(g) In the event the Escrow Agent becomes involved in litigation in
connection with the escrow, the undersigned jointly and severally agree to
indemnify and save the Escrow Agent harmless from all loss, cost damage,
expenses and attorney's fees suffered or incurred by the Escrow Agent as a
result thereof; provided however that the WBI's indemnity obligation and
liability to the Escrow Agent shall be limited to the Escrow Amount. In
addition, Escrow Agent is hereby authorized to deposit with the clerk of the
court in which the litigation is pending, any and all securities, funds or other
property held by it pursuant hereto, less its fees, expenses and advances, and
thereupon shall stand fully relieved and discharged of any further duties. Also,
in the event the Escrow Agent is threatened with litigation by reason of this
Agreement, it is hereby authorized to file an interpleader action in any court
of competent jurisdiction and to deposit with the clerk of such court, any
funds, securities, or other property held by it, less its fees, expenses and
advances and thereupon shall stand fully relieved and discharged of any further
duties. The obligations of the undersigned under this paragraph shall be
performable at the Office of the Escrow Agent in Tulsa, Oklahoma.
(f) The Escrow Agent shall be protected in acting upon any written notice,
request, waiver, consent, certificate, receipt, authorization, power of attorney
or other paper or document which the Escrow Agent in good faith believes to be
genuine and what it purports to be.
(g) The Escrow Agent shall not be liable for anything which it may do or
refrain from doing in connection herewith, except its own gross negligence or
willful misconduct.
(h) The Escrow Agent may advise with legal counsel in the event of any
dispute or question as to the construction of any of the provisions hereof or
its duties hereunder, and it shall incur no liability and shall be fully
protected in acting in accordance with the opinion and instructions of such
counsel.
(i) In the event any disagreement between any of the parties to this
agreement, or between them or either or any of them and any other person,
resulting in adverse claims or demands being made in connection with the subject
matter of the escrow, or in the event that the Escrow Agent, in good faith, be
in doubt as to what action it should take hereunder, the Escrow Agent may, at
its option, refuse to comply with any claims or demands on it, or refuse to take
any other action hereunder, so long as such disagreement continue or such doubt
exist, and in any such event, the Escrow Agent shall not be or become liable in
any way or to any person for its failure or refusal to act, and the Escrow Agent
shall be entitled to continue so to refrain from acting until (a) the rights of
all parties shall have been fully and finally adjudicated by a court of
competent jurisdiction, or (b) all differences shall have been adjusted and all
doubt resolved by agreement among all of the interested persons, and the Escrow
Agent shall have been notified thereof in writing signed by all such persons.
The rights of the Escrow Agent under this paragraph are cumulative of all other
rights which it may have by law or otherwise.
(j) The Escrow Agent may, in its sole discretion, resign and terminate its
position hereunder at any time following 60 days written notice to the parties
subject to the Escrow Agreement herein. Any such resignation shall terminate all
obligations and duties of the Escrow Agent hereunder. On the effective date of
such resignation, the Escrow Agent shall deliver this Escrow Agreement together
with any and all related instruments or documents to any successor Escrow Agent
agreeable to the parties, subject to this Escrow Agreement herein.
(k) During the entire term of this Agreement, unless otherwise directed by
the parties hereto, all funds held by the Escrow Agent shall be invested as
provided in Section 11. All interest derived from investing funds held in escrow
shall accrue to the Escrow Account and/or be distributed as set forth in Section
11.
(l) This Agreement may be executed in one or more counterparts, any one of
which may be considered an original.
(m) Fees for the normal services of the Escrow Agent shall be paid by BOKF
upon delivery of the Escrow Amount to the Escrow Agent.
(n) All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given or made (and shall be deemed to
have been duly given or made upon receipt) by delivery in person, by courier
service, by cable, by telecopy, by telegram, by telex or by registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this section).
to Agent:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman of the Board
Worth Bancorporation, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
817-923-9581- Facsimile
Bsemple1@ ▇▇▇▇▇.▇▇▇
to BOK Financial Corporation:
BOK Financial Corporation
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ - #▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ -Tel
(▇▇▇) ▇▇▇-▇▇▇▇ - Fax
▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇.▇▇▇
copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Old City Hall
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
to Escrow Agent:
Bank of Oklahoma, N.A.
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Telephone: (918)
588-6043 Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Dated and effective the date first set forth above.
Ex-Shareholders of Worth Bancorporation, Inc.
By:
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Agent
Taxpayer I.D. No.
BOK Financial Corporation
By:
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, Executive Vice President
And Chief Executive Officer
Bank of Oklahoma, N.A., as Escrow Agent, hereby acknowledges receipt of the
subject matter of the escrow as described in the foregoing escrow agreement and
hereby accepts same and agrees to perform its duties subject to the terms and
conditions described therein.
Bank of Oklahoma, N.A.
as Escrow Agent
---------------------------------------
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President & Trust Officer
ESCROW AGREEMENT
EXHIBIT A
Description of escrow subject matter:
Two Million Six Hundred Thousand Dollars ($2,600,000)
ESCROW AGREEMENT
EXHIBIT B
[Names, addresses, and taxpayer identification numbers of Shareholders]: