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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of August 18,
2000, is entered into by and among BOK Financial Corporation, an Oklahoma
corporation, ("BOKF"), BOKF Merger Corporation Number Ten, a Texas corporation
and a wholly-owned subsidiary of BOKF ("BOKSub"), and CNBT Bancshares, Inc., a
Texas corporation ("CNBT").
WHEREAS, BOKF is a registered bank holding company under the Bank Holding
Company Act of 1956, as amended (the "BHCA"), and BOKSub is a wholly-owned
subsidiary of BOKF; and
WHEREAS, CNBT is a registered bank holding company under the BHCA, which
controls Citizens National Bank of Texas, a national banking association (the
"Bank"); and
WHEREAS, CNBT owns all of the issued and outstanding capital stock of CNBT
Bancshares (Delaware), Inc., a Delaware corporation ("Delaware"); and
WHEREAS, Delaware is a registered bank holding company under the BHCA,
which owns all of the issued and outstanding capital stock of the Bank; and
WHEREAS, the respective Boards of Directors of each of BOKF and CNBT deem
it advisable for BOKSub to merge with and into CNBT upon the terms and subject
to the conditions described herein;
NOW, THEREFORE, for and in consideration of the mutual benefits to be
derived from this Agreement and of the representations, warranties, conditions,
and promises hereinafter contained, the parties hereto covenant and agree as
follows:
ARTICLE I
THE MERGER
Section 1.1. The Merger. Pursuant to the terms and provisions of this
Agreement and the Texas Business Corporation Act (the "TBCA"), BOKSub shall
merge with and into CNBT (the "Merger").
Section 1.2. Merging Corporation. BOKSub shall be the merging corporation
under the Merger and its corporate identity and existence, separate and apart
from CNBT, shall cease on consummation of the Merger.
Section 1.3. Surviving Corporation. CNBT shall be the surviving
corporation in the Merger. No changes in the articles of incorporation or bylaws
of CNBT shall be effected by the Merger. The officers and directors of CNBT
after the Merger shall be the same as the officers and directors of BOKSub as of
the Effective Time (as defined in Section 9.2).
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Section 1.4. Effect of the Merger. The Merger shall have all of the
effects provided by the TBCA. CNBT, as the surviving corporation, may, at any
time after the Effective Time, take any action (including executing and
delivering any documents) in the name and on behalf of either BOKSub or CNBT as
are appropriate in order to carry out and effectuate the transactions
contemplated by this Agreement.
Section 1.5. Merger Consideration; Conversion of Shares.
(a) At the Effective Time, each share of common stock of CNBT, par value
$1.00 per share (the "CNBT Common") then issued and outstanding, other than
shares the holders of which have duly exercised and perfected their dissenters'
rights under the TBCA, shall be automatically converted into the right to
receive an amount (the "Merger Consideration") equal to (i) Ninety-Two Million
Dollars ($92,000,000), minus the amount of any dividends paid by CNBT to its
shareholders during the period from August 1, 2000, to the date of consummation
of the Merger in excess of the sum of $0.12 per share per calendar quarter for
each of two calendar quarters and one special dividend not exceeding seven cents
($0.07), minus the payments contemplated by Section 12.2. divided by (ii) the
number of shares of CNBT Common issued and outstanding as of the Effective Time
(and after exercise of all of the Stock Options (as defined in Section 2.2)) The
Merger Consideration shall be paid to each holder of the CNBT Common as of the
Effective Time as herein provided.
(b) CNBT, BOKF, and BOKSub acknowledge and understand that (i) all Stock
Options shall be exercised immediately prior to consummation of the Merger, (ii)
all shares of CNBT Common issuable upon exercise of the Stock Options shall be
deemed issued and outstanding immediately prior to the consummation of the
Merger, and (iii) the CNBT Common to be converted into the right to receive the
Merger Consideration shall include, without limitation, the CNBT Common to be
issued upon the exercise of the Stock Options.
(c) At the Effective Time, BOKF shall deposit or cause to be deposited
into an interest bearing account at the Bank of Texas, National Association One
Million Dollars ($1,000,000) of the Merger Consideration to be governed by
Section 11.2 (the "Representation Escrow Funds"). The Merger Consideration less
the Representation Escrow Funds is referred to herein as the "Closing
Consideration".
(d) At the Effective Time, all of the shares of CNBT Common, by virtue of
the Merger and without any action on the part of the holders thereof, shall no
longer be outstanding and shall be canceled and retired and shall cease to
exist, and each holder of any certificate or certificates that immediately prior
to the Effective Time represented outstanding shares of CNBT Common (the
"Certificates") or of any holder of Stock Options shall thereafter cease to have
any rights with respect to such shares, except the right of such holders to
receive the Merger Consideration upon the surrender of such Certificate or
Certificates or exercise of such Stock Options in accordance with Section 1.6.
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(e) At the Effective Time, each share of CNBT Common, if any, held in the
treasury of CNBT immediately prior to the Effective Time shall be canceled.
(f) At the Effective Time, each share of common stock, par value $1.00 per
share, of BOKSub outstanding immediately prior to the Effective Time shall be
converted into one share of CNBT Common.
(g) If any holder of CNBT Common is entitled to dissent from the Agreement
and the Merger under the TBCA and such holder thereof perfects such holder's
rights under the TBCA in accordance with the provisions thereof, any issued and
outstanding shares of CNBT Common held by such dissenting holder ("Dissenting
Shares") shall not be converted as described in this Section 1.5, but from and
after the Effective Time shall represent only the right to receive such cash
consideration as may be determined to be due to such dissenting holder pursuant
to the TBCA; provided, however, that each share of CNBT Common outstanding
immediately prior to the Effective Time and held by a dissenting holder who
shall, after the Effective Time, withdraw his demand for appraisal or lose his
right of appraisal shall have only such rights as are provided under the TBCA.
Section 1.6. Exchange Procedures; Surrender of Certificates.
(a) Bank of New York , or other entity mutually satisfactory to CNBT and
BOKF, shall act as paying agent in the Merger (the "Paying Agent"). Immediately
after the Effective Time, BOKF will cause CNBT, 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 the holders of all
outstanding shares of CNBT Common (other than Dissenting Shares).
(b) At least twenty (20) days prior to the Effective Time, the Paying
Agent shall mail, without any further action on the part of BOKF or CNBT, to
each record holder of the Certificates, addressed to the most current address of
such shareholder according to the records of CNBT, a letter of transmittal (and
instructions) for use in effecting the surrender of the Certificates in exchange
for the Merger Consideration. Each such letter (the "Merger Transmittal Letter")
shall specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon proper receipt of the Certificates by the
Paying Agent and shall be in such form and have such other provisions as BOKF
may reasonably specify. If a holder of the CNBT Common surrenders the
Certificates representing shares of such stock and a properly executed Merger
Transmittal Letter to the Paying Agent at least three (3) business days prior to
the Closing Date, then on the Closing Date, the Paying Agent shall pay to such
shareholder the Closing Consideration with respect to such shares of CNBT
Common. If a holder of the CNBT Common surrenders the Certificates representing
shares of such stock and a properly executed Merger Transmittal Letter to the
Paying Agent at any time after three (3) business days prior to the Closing
Date, then promptly, and in no event later than three (3) business days after
receipt of such Certificates and Merger Transmittal Letter, the Paying Agent
shall pay to such shareholder the Closing Consideration with respect to such
shares of CNBT Common. No interest on the Closing Consideration issuable upon
the surrender of the Certificates shall be paid or accrued for the benefit of
holders of Certificates. If the Closing Consideration is to be issued to a
person other than a person in whose name a surrendered Certificate is
registered, it shall be a condition of issuance that the surrendered Certificate
shall be properly endorsed or
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otherwise executed in proper form for transfer and that the person requesting
such issuance shall pay to the Paying Agent any required transfer or other taxes
or establish to the satisfaction of the Paying Agent that such tax has been paid
or is not applicable.
(c) With respect to any shares of CNBT Common that are acquired as a
result of the exercise of the Stock Options, the purchase price for such shares
under the Stock Options shall be subtracted from or "netted-out" of the Closing
Merger Consideration to be paid such shareholders in order to provide for a
cashless exercise of the Stock Options. That is, upon the exercise of the Stock
Options such option holder shall not be required to pay CNBT the purchase price
specified in the Stock Options, but such amount shall be deducted from the
amount of Closing Consideration that would otherwise have been paid to such
option holder.
(d) After the Effective Time, there shall be no further registration or
transfers on the records of CNBT of outstanding certificates formerly
representing shares of CNBT Common and, if a certificate formerly representing
such shares is presented to CNBT or BOKF, it shall be forwarded to the Paying
Agent for cancellation and exchange for the Closing Consideration.
(e) All Merger Consideration paid upon the surrender of CNBT Common in
accordance with the above terms and conditions shall be deemed to have been paid
in full satisfaction of all rights pertaining to such shares of CNBT Common.
(f) In the event any certificate for CNBT Common shall have been lost,
stolen, or destroyed, the Paying Agent shall issue in exchange for such lost,
stolen, or destroyed certificate, such Merger Consideration as may be required
pursuant to this Agreement; provided, however, that BOKF may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen, or destroyed certificate to deliver an affidavit of lost
certificate and indemnification agreement in form reasonably acceptable to BOKF.
(g) At any time following six months after the Effective Time, BOKF shall
be entitled to terminate the Paying Agent relationship, and thereafter holders
of Certificates shall be entitled to look only to BOKF (subject to abandoned
property, escheat, or other similar laws) with respect to the Merger
Consideration payable upon surrender of their Certificates.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF CNBT
In order to induce BOKF and BOKSub to enter into, execute, deliver and
perform this Agreement, CNBT represents and warrants to BOKF and BOKSub as
follows:
Section 2.1. Organization, Standing and Power.
(a) CNBT is a corporation duly organized, validly existing, and in good
standing under laws of the State of Texas. CNBT (i) has all requisite power and
authority to own, lease, and operate its properties and to carry on its business
as it is now being conducted; (ii) is subject to the supervision of the Board of
Governors of the Federal Reserve System (the "Fed"); and (iii) is a bank holding
company registered with the Fed under the BHCA.
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(b) Delaware is a corporation duly organized, validly existing, and in
good standing under laws of the State of Delaware. Delaware (i) has all
requisite power and authority to own, lease, and operate its properties and to
carry on its business as it is now being conducted; (ii) is subject to the
supervision of the Fed; and (iii) is a bank holding company registered with the
Fed under the BHCA.
(c) The Bank is a national banking association duly organized, validly
existing, and in good standing under laws of the United States. The Bank (i) has
all requisite power and authority to own, lease, and operate its properties and
to carry on its business as it is now being conducted; (ii) is subject to the
supervision of the Federal Deposit Insurance Corporation ("FDIC") and the Office
of the Comptroller of the Currency ("OCC"); and (iii) is an insured bank as
defined in the Federal Deposit Insurance Act.
(d) CNBT has delivered to BOKF and BOKSub complete and correct copies, as
of a date not more than 30 days prior to the date hereof, of (i) the Articles of
Association or Incorporation or Certificate of Incorporation and all amendments
thereto, and (ii) the Bylaws and all amendments thereto, of each of CNBT,
Delaware, the Bank and CNB Mortgage Company, a Texas corporation..
Section 2.2. Capital Structure.
(a) The authorized capital stock of CNBT consists of 30,000,000 shares of
Common Stock, par value $1.00 per share. As of the date of this Agreement,
4,941,361 shares of CNBT Common were outstanding (net of shares held by CNBT in
treasury). CNBT does not have any commitment or obligation to repurchase,
reacquire, or redeem any of the outstanding CNBT Common. As of the date of this
Agreement, CNBT had outstanding stock options granted, pursuant to the CNBT
Employee Stock Option Plans, representing the right to acquire an aggregate of
139,670 shares of CNBT Common (the "Stock Options"). Schedule 2.2 (a) sets forth
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the name of each person that has been granted Stock Options, the number of
shares that may be acquired as of the date of this Agreement by each such
person, and the exercise price of such Stock Options. The outstanding shares of
the CNBT Common are validly issued and outstanding, fully paid, and non-
assessable. Except for the Stock Options, there are no outstanding
subscriptions, conversion privileges, calls, warrants, options, commitments, or
agreements of any character obligating CNBT to issue, sell, or dispose of any
shares of any of its capital stock.
(b) The authorized capital stock of Delaware consists solely of 10,000
shares of common stock, par value $1.00 per share (the "Delaware Common Stock").
As of the date of this Agreement, 1,000 shares of Delaware Common Stock were
issued and outstanding, and all of such outstanding shares are held of record by
CNBT. There are no outstanding subscriptions, conversion privileges, calls,
warrants, option, commitments, or agreements obligating Delaware to issue, sell,
or dispose of any shares of any of its capital stock.
(c) The authorized capital stock of the Bank consists of 30,000,000 shares
of common stock, par value $1.00 per share (the "the Bank Common Stock"). As of
the date of this Agreement, 200,000 shares of the Bank Common Stock were issued
and outstanding, all of which are held of record by Delaware. There are no
outstanding shares of preferred stock, nor any subscriptions,
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conversion privileges, calls, warrants, options, commitments, or agreements
obligating the Bank to issue, sell, or dispose of any shares of any of its
capital stock.
(d) CNBT has no subsidiaries except Delaware, the Bank and CNB Mortgage
Company, a Texas corporation.
Section 2.3. Authority. Subject to the approval of this Agreement by the
shareholders of CNBT as contemplated by Section 5.6 hereof, the execution and
delivery of this Agreement and the consummation of the Merger contemplated
hereby have been duly and validly authorized by all necessary corporate action
on the part of CNBT. Neither the execution and delivery of this Agreement, the
consummation of the Merger contemplated hereby, nor compliance by CNBT with any
of the provisions hereof will (i) conflict with or result in a breach of any
material provision of its Articles of Incorporation or Bylaws or constitute a
default (or give rise to any right of termination, cancellation, or
acceleration) under any of the terms, conditions, or provisions of any material
note, bond, mortgage, indenture, license, agreement, or other instrument or
obligation to which CNBT is a party, or by which it or any of its properties or
assets may be bound, except for such conflict, breach, or default as to which
requisite waivers or consents either shall have been obtained by CNBT by the
Effective Time or the obtaining of which shall have been waived by BOKF, or (ii)
violate any material order, writ, injunction, decree, statute, rule, or
regulation applicable to CNBT or any of its properties or assets. No other
consent or approval by any governmental authority, other than compliance with
applicable federal and state securities and banking laws and regulations of the
Fed, is required in connection with the execution and delivery by CNBT of this
Agreement or the consummation by CNBT of the Merger contemplated hereby.
Section 2.4. Financial Statements.
(a) CNBT has previously delivered or made available to BOKF complete
copies of the (i) the consolidated balance sheets of CNBT and its subsidiaries
as of December 31, 1999, and related consolidated statements of income, changes
in stockholders' equity, and cash flows for the three years ended December 31,
1999, together with the notes thereto, included in CNBT's Annual Report on Form
10-K for the year ended 1999, as currently on file with the Securities and
Exchange Commission ("SEC") and the unaudited consolidated balance sheet of CNBT
and its subsidiaries as of June 30, 2000, and the related unaudited consolidated
income statement and statements of changes in stockholders' equity and cash
flows for the six months then ended included in CNBT's Quarterly Report on Form
10-Q for the quarter then ended, as currently on file with the SEC and (ii) the
Reports of Condition and Income of the Bank as filed with the OCC for each of
the quarterly periods during 1999 and 2000 (collectively the "CNBT Financial
Statements").
(b) The CNBT Financial Statements set forth in clause (a)(i) have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis (except as disclosed therein) and fairly present the
consolidated financial position and the consolidated results of operations,
changes in stockholders' equity, and cash flows of CNBT and its consolidated
subsidiaries as of the dates and for the periods indicated (subject, in the case
of interim financial statements, to normal recurring year-end adjustments, none
of which will be material). As of the respective date of each of the CNBT
Financial Statements, neither CNBT, nor Delaware, nor Bank has any material
liabilities (including, but not limited to, whether similar or dissimilar,
liabilities or
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obligations for taxes, whether due or to be come due) except those fully
reflected or reserved against, or otherwise disclosed in the Financial
Statements.
Section 2.5. Absence of Changes. Except as set forth in Schedule 2.5, since
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June 30, 2000, there has not been any material adverse change in the condition
(financial or otherwise) of the assets, liabilities, earnings, or business of
CNBT, Delaware, or the Bank. Since such date, the business of CNBT, Delaware,
and the Bank has been conducted only in the ordinary course consistent with
prior practices and such entities have not incurred any additional material
liabilities (not already reflected in the CNBT Financial Statements) except: (i)
those incurred in the ordinary course of business consistent with past practices
without negligence or willful malfeasance, or (ii) expenses or liabilities
incurred in connection with this Agreement and the transactions contemplated
hereby in an amount not exceeding $175,000. Without limiting the generality of
the foregoing, since June 30, 2000, except as set forth on Schedule 2.5 or as
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permitted by this Agreement, none of CNBT, Delaware, or the Bank have paid any
dividends, made any distributions of assets, made any material changes in
compensation or benefits of any employee (other than by reason of promotion to
increased responsibility), or entered into any contracts for services or
materials except such contracts and materials which either: (i) may be
terminated without penalty within 90 days or, (ii) provide for the payment or
other consideration to be furnished by CNBT, Delaware, or the Bank in an amount
of not more than $25,000, individually or $100,000 for all such contracts and
materials. Notwithstanding the foregoing, any changes in banking laws, generally
accepted accounting principles, prevailing interest rates or other developments
that affect the entire banking industry generally shall not be deemed to have a
material adverse effect in the financial condition, the results of operations or
the business of CNBT, Delaware, or the Bank.
Section 2.6. Tax Matters.
(a) CNBT, Delaware, and the Bank have timely filed all federal, state, and
local (and, if applicable, foreign) income, franchise, bank, excise, real
property, personal property, and other tax returns required by applicable laws
to be filed by them (including, without limitation, estimated tax returns,
income tax returns, information returns, and withholding and employment tax
returns) and have paid, or where payment is not required to have been made, have
set up an adequate reserve or accrual for the payment of, all taxes required to
be paid with respect of the periods covered by such returns and, as of the
Effective Time, will have paid, or where payment is not required to have been
made, will have set up an adequate reserve or accrual for the payment of, all
taxes for any subsequent periods ending on or prior to the Effective Time. None
of CNBT, Delaware, or the Bank will have any material liability for any such
taxes in excess of the amounts so paid or reserves or accruals so established.
No payment of any amount to any employee of any of CNBT, Delaware, or the Bank
is an excess parachute payment within the meaning of Section 280G of the Code.
(b) All federal, state and local income, franchise, bank, excise, real
property, personal property, and other tax returns filed by CNBT, Delaware and
the Bank are complete and accurate in all material respects. None of CNBT,
Delaware, or the Bank is delinquent in the payment of any tax, assessment, or
governmental charge, and none of them has requested any extension of time within
which to file any tax returns in respect of any fiscal year or portion thereof
which have not since been filed. There are currently no agreements in effect
with respect to CNBT, Delaware, or the Bank to extend the period of limitations
for the assessment or collection of any tax. As of the date
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hereof, no audit, examination or deficiency or refund litigation with respect to
any such return is pending or, to CNBT's knowledge, threatened.
Section 2.7. Property. CNBT, Delaware, and the Bank own all property
reflected on the balance sheet dated June 30, 2000, included in the CNBT
Financial Statements (except personal property sold or otherwise disposed of
since June 30, 2000, in the ordinary course of business), free and clear of all
mortgages, liens, pledges, charges, or encumbrances of any nature whatsoever,
except those reflected in the CNBT Financial Statements, liens for current taxes
not yet due and payable and such encumbrances and imperfections of title, if
any, as are not substantial in character or amount or do not otherwise
materially impair business operations.
Section 2.8. Legal Proceedings. There is no material legal, administrative,
arbitration, or other proceeding or governmental investigation pending or, to
CNBT's knowledge, threatened which might reasonably be expected to result in
material money damages payable by CNBT, Delaware, or the Bank in excess of
insurance coverage or in a permanent injunction against CNBT, Delaware, or the
Bank. To CNBT's knowledge, each of CNBT, Delaware and the Bank have complied
with, and are not in default in any material respect under, any laws,
ordinances, requirements, regulations, or orders applicable to their business.
None of CNBT, Delaware, or the Bank is a party to any agreement or instrument or
subject to any charter or other corporate restriction or any judgment, order,
writ, injunction, or decree, which materially and adversely affects, or might
reasonably be expected materially and adversely to affect, the business
operations, properties, assets, or condition, financial, or otherwise, of CNBT,
Delaware, or the Bank.
Section 2.9. Brokers and Finders. Except as set forth in Section 12.2, none
of CNBT, its subsidiaries, or any of its officers, directors, or employees has
employed any broker or finder or incurred any liability for any brokerage fees,
commissions or finders' fees in connection with the Merger contemplated herein.
Section 2.10. Loan Portfolio. Except as to any breach that would reasonably
be expected to have an adverse effect of less than $20,000 in respect of any
single credit (related credits shall be aggregated for this purpose) and $60,000
when aggregated with all such breaches, , (i) all loans and discounts shown on
the CNBT Financial Statements at June 30, 2000, or which were entered into after
June 30, 2000, but before the Closing Date were and will be made in all material
respects for good, valuable, and adequate consideration in the ordinary course
of the Bank, in accordance in all material respects with sound banking
practices, and are not subject to any material known defenses, setoffs, or
counterclaims, including without limitation any such as are afforded by usury or
truth in lending laws, except as may be provided by bankruptcy, insolvency, or
similar laws or by general principles of equity; (ii) the notes or other
evidences of indebtedness evidencing such loans and all forms of pledges,
mortgages, and other collateral documents and security agreements are and will
be, in all material respects, enforceable, valid, true, and genuine and what
they purport to be; and (iii) CNBT, Delaware and the Bank have complied and will
prior to the Closing Date comply with all laws and regulations relating to such
loans, or to the extent there has not been such compliance, such failure to
comply will not materially interfere with the collection of any such loan.
Notwithstanding the foregoing, BOKF acknowledges and agrees that it has made its
own determination as to the collectibility of the loan portfolio of CNBT and the
Bank.
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Section 2.11. Environmental. To CNBT's knowledge, the ownership, location,
construction, use, and operation of all real property owned or leased by CNBT or
the Bank (fixed asset or OREO) is, and has at all times been, in material
compliance with applicable Environmental Law, as hereinafter defined. Delaware
does not own or lease any real property and has not since its incorporation. To
CNBT's knowledge, there are no pending or threatened, and there have been no
administrative, regulatory, or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigations, or
proceedings relating in any way to any Environmental Law relating to the real
property owned by CNBT or the Bank. To CNBT's knowledge, (i) no real property
owned by CNBT or the Bank has at any time been used by CNBT or the Bank, or by
any person, as a landfill or for the storage or disposal, or as a site of
spilling, dumping, depositing, or otherwise disposing of, any hazardous or toxic
substances or waste; and (ii) no real property owned by CNBT or the Bank is, or
has been, an industrial site or landfill. For the purposes hereof,
"Environmental Law" means any federal, state, or local statute, law, rule,
regulation, ordinance, code, policy, or rule of common law now in effect and in
each case as amended and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree, or judgment,
relating to the environment, health, safety or "hazardous materials," "hazardous
wastes," "toxic substances," "toxic pollutants," "contaminants," or words or
terms of similar import (including under any Environmental Law), including
without limitation the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. 9601 et seq., the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. 1801 et seq., the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et seq., the Federal
Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., the Toxic
Substances Control Act, 15 U.S.C. 2601 et seq., the Clean Air Act, 42 U.S.C.
7401 et seq., the Safe Drinking Water Act, 42 U.S.C. 3808 et seq., the Texas
Solid Waste Disposal Act, Tex. Health & Safety Code Ann. Ch. 361, the Texas
Clean Air Act, Tex. Health & Safety Code Ann. Ch. 382, the Texas Water Code,
Tex. Water Code Ann., and the Texas Hazardous Substances Spill Prevention and
Control Act, Tex. Water Code Ann. Section 2.12. Zoning and Related Laws. To
CNBT's knowledge, all real property owned or leased by CNBT or the 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 CNBT or the Bank.
Section 2.13. Compliance with Law. CNBT, Delaware, and the Bank have all
licenses, franchises, permits, and other governmental authorizations that are
legally required to enable them to conduct their respective businesses in all
material respects and are in compliance with all applicable laws and regulations
(including the Employee Retirement Income Security Act and regulations
promulgated pursuant thereto) except to the extent that the failure to so comply
could not have a material adverse effect on CNBT, Delaware or, the Bank.
Section 2.14. Agreements with Regulatory Agencies. None of CNBT, Delaware,
or the Bank is subject to any cease-and-desist or other order issued by, or a
party to any written agreement or memorandum of understanding with or is a party
to any commitment letter or similar undertaking to, or is subject to any order
or directive, or is a recipient of any extraordinary supervisory letter from, or
has adopted any board resolutions at the request of (each a "Regulatory
Agreement") any regulatory agency that materially restricts the conduct of its
business or that in any manner relates to its capital adequacy, its credit
policies, its management or its business, nor have CNBT, Delaware,
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or the Bank been advised by any regulatory agency that it is considering issuing
or requesting any Regulatory Agreement.
Section 2.15. Employees. Except as set forth in Schedule 2.15 attached
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hereto, (i) none of the employees of CNBT, Delaware, or the Bank is employed
under any employment contract (oral or written) that will survive the Merger and
(ii) none of CNBT, Delaware, or the Bank have any employee benefit plans.
Section 2.16. Contracts and Commitments. A list of all contracts, leases,
and commitments, other than deposit, safe deposit, credit, and lending
transactions entered into in the ordinary course of the Bank's banking business,
which are material to the business, operations, or financial condition of CNBT,
Delaware, or the Bank as of this date is set forth in Schedule 2.16. For the
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purpose of Schedule 2.16, materiality shall mean those contracts and commitments
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for which payment or other consideration to be furnished by CNBT, Delaware, or
the Bank is more than $25,000. CNBT, Delaware, and the Bank have performed in
all material respects and are performing all material contractual and other
obligations required to be performed by them.
Section 2.17. Sale of Credit Card Portfolio - Sponsored Accounts. Without
limiting any other representation made herein, CNBT, Delaware, and Bank will
suffer no loss by reason of the guarantee by CNBT and/or Bank of the
collectibility of those accounts known as the Sponsored Accounts, which
guarantee was given in connection with the sale of the Bank's Credit Card
Portfolio.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BOKF
In order to induce CNBT to enter into, execute, deliver and perform this
Agreement, BOKF represents and warrants to CNBT as follows:
Section 3.1. Organization, Standing and Power. BOKF is a corporation duly
organized, validly existing, and in good standing under the State of Oklahoma.
BOKF (i) has all requisite power and authority to execute and deliver this
Agreement and to perform its obligations hereunder, and to own, lease, and
operate its properties and to carry on its business as now being conducted; and
(ii) is a bank holding company registered with the Fed under the BHCA.
Section 3.2. Authority. The execution and delivery of this Agreement, the
consummation of the Merger and payment of the Merger Consideration, and the
other transactions contemplated hereby have been duly and validly authorized by
all necessary corporate action on the part of BOKF. This Agreement has been duly
executed by BOKF and constitutes the valid and binding obligation of BOKF,
enforceable in accordance with its terms and conditions, except as
enforceability may be limited by bankruptcy, conservatorship, insolvency,
moratorium, reorganization, receivership, or similar laws and judicial decisions
affecting the rights of creditors generally and by general principles of equity
(whether applied in a proceeding at law or in equity). Neither the execution and
delivery of this Agreement, the consummation of the Merger and payment of the
Merger Consideration )and the other transactions contemplated hereby, nor
compliance by BOKF with any of the provisions hereof will (i) conflict with or
result in a breach of any provision of its Articles of
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Incorporation or Bylaws or constitute a default (or give rise to any right of
termination, cancellation, or acceleration) under any of the terms, conditions,
or provisions of any note, bond, mortgage, indenture, license, agreement, or
other instrument or obligation to which BOKF is a party, or by which it or any
of its properties or assets may be bound except for such conflict, breach, or
default as to which requisite waivers or consents either shall have been
obtained by BOKF by the Effective Time, or the obtaining of which shall have
been waived by CNBT, or (ii) violate any order, writ, injunction, decree,
statute, rule, or regulation applicable to BOKF or any of its properties or
assets. No consent or approval by any governmental authority, other than
compliance with applicable federal and state securities and banking laws and
regulations of the Fed, is required in connection with the execution and
delivery by BOKF of this Agreement or the consummation by BOKF of the Merger and
payment of the Merger Consideration and the other transactions contemplated
hereby.
Section 3.3. Subsidiaries. Each of BOKF's subsidiaries is duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power to own its respective properties and
assets, to incur its respective liabilities and to carry on its respective
business as now being conducted.
Section 3.4. Financial Information. The consolidated balance sheets of BOKF
and its subsidiaries as of December 31, 1999 and related consolidated statements
of income, changes in stockholders' equity and cash flows for the three years
ended December 31, 1999, together with the notes thereto, included in BOKF's
Annual Report on Form 10-K for the year ended 1999, as currently on file with
the SEC and the unaudited consolidated balance sheet of BOKF and its
subsidiaries as of June 30, 2000, and the related unaudited consolidated income
statement and statements of changes in stockholders' equity and cash flows for
the six months then ended included in BOKF's Quarterly Report on Form 10-Q for
the quarter then ended, as currently on file with the SEC (together the "BOKF
Financial Statements"), have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as disclosed
therein) and fairly present the consolidated financial position and the
consolidated results of operations, changes in stockholders' equity and cash
flows of BOKF and its consolidated subsidiaries as of the dates and for the
periods indicated (subject, in the case of interim financial statements, to
normal recurring year-end adjustments, none of which will be material).
Section 3.5. Absence of Changes. Since June 30, 2000, there has not been
any material adverse change in the financial condition, the results of
operations, or the business of BOKF and its subsidiaries taken as a whole, nor
have there been any events or transactions having such a material adverse effect
which should be disclosed in order to make the BOKF Financial Statements not
misleading. Notwithstanding the foregoing, any changes in banking laws,
generally accepted accounting principles, prevailing interest rates or other
developments which affect the entire banking industry generally shall not be
deemed to be a material adverse change in the financial condition, the results
of operations or the business of BOKF and its subsidiaries taken as a whole.
Section 3.6. Litigation. There is no litigation, claim, or other proceeding
pending or, to the knowledge of BOKF, threatened, against BOKF or any of its
subsidiaries, of which the property of BOKF or any of its subsidiaries is or
would be subject which if adversely determined would have a material adverse
effect on the business of BOKF and its subsidiaries taken as a whole.
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Section 3.7. Reports. Since January 1, 1993 (in the case of subsidiaries of
BOKF, the date of acquisition thereof by BOKF, if later) BOKF and each of its
significant subsidiaries has filed all reports and statements, together with any
amendments required to be made with respect thereto, that it was required to
file with (i) the SEC, (ii) the Fed, (iii) the OCC, (iv) the FDIC, (v) any
applicably state securities or banking authorities, (vi) the Nasdaq Stock
Market, and (vii) any other governmental authority with jurisdiction over BOKF
or any of its significant subsidiaries. As of their respective dates, each of
such reports and documents, as amended, including the financial statements,
exhibits, and schedules thereto, complied in all material respects with the
relevant statutes, rules, and regulations enforced or promulgated by the
regulatory authority with which they were filed, and did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
Section 3.8. Compliance With Law. BOKF and its significant subsidiaries
have all licenses, franchises, permits, and other governmental authorizations
that are legally required to enable them to conduct their respective businesses
in all material respects and are in compliance with all applicable laws and
regulations, except to the extent that the failure to so comply would not have a
material adverse effect on BOKF and its subsidiaries taken as a whole.
Section 3.9. Regulatory Approvals. BOKF is not aware of any matter
(including, but not limited to, compliance with capital adequacy guidelines
adopted by the Fed and the Community Reinvestment Act) that would delay or
prevent BOKF from obtaining all requisite regulatory approvals necessary to
consummate the Merger as set forth in this Agreement.
Section 3.10 Ability to Pay Merger Consideration. BOKF will have available
to it as of the Closing Date, as a result of dividends or distributions from its
subsidiaries, borrowings on its existing line of credit, or capital
contribution, sufficient cash to pay the Merger Consideration as set forth in
Section 1.5 to the shareholders of CNBT.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BOKSUB
In order to induce CNBT to enter into, execute, deliver and perform this
Agreement, BOKSub represents and warrants to CNBT as follows:
Section 4.1. Organization, Standing and Power. BOKSub is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Texas, with all requisite power and authority to own, lease, and operate its
properties and to carry on its business as now being conducted.
Section 4.2. Authority. The execution and delivery of this Agreement and
the consummation of the Merger contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of BOKSub. Neither the
execution and delivery of this Agreement, the consummation of the Merger
contemplated hereby, nor the compliance by BOKSub with any of the provisions
hereof will (i) conflict with or result in a breach of any provision of its
Articles of Incorporation or Bylaws or constitute a default (or give rise to any
right of termination, cancellation,
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or acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, agreement, or other instrument or obligation
to which BOKSub is a party, or by which it or any of its properties or assets
may be bound except for such conflict, breach, or default as to which requisite
waivers or consents either shall have been obtained by BOKSub by the Effective
Time, or the obtaining of which shall have been waived by BOKSub, or (ii)
violate any order, writ, injunction, decree, statute, rule, or regulation
applicable to BOKSub or any of its properties or assets. No consent or approval
by any governmental authority, other than those required by applicable federal
and state securities and banking laws and regulations is required in connection
with the execution and delivery by BOKSub of this Agreement.
ARTICLE V
PRE-CLOSING COVENANTS
Section 5.1. Access to Records and Properties of CNBT.
(a) Between the date of this Agreement and the Effective Time, CNBT agrees
to give BOKF reasonable access to all of its and the Bank's premises, books,
records (including tax returns filed and those in preparation), financial
information, and other information pertinent to its operations, including,
without limitation, access to independent auditors with respect to the
preparation of the financial statements and tax planning of CNBT and the Bank;
provided, however, that any such investigation shall be conducted in such manner
as not to interfere unreasonably with the operation of the business of CNBT or
the Bank. CNBT will cooperate fully in permitting BOKF to make a full
investigation of the business, properties, financial condition and investments
of CNBT and the Bank, in the preparation of all applications, reports, and other
documents necessary or advisable for the successful consummation of the Merger.
(b) BOKF will treat and hold confidential any information concerning the
business and affairs of CNBT, Delaware or the Bank that is not generally
available to the public ("Confidential Information") it receives from any of
CNBT, Delaware, the Bank, or their respective shareholders, officers, directors,
or agents, in the course of its review of CNBT, Delaware or the Bank. BOKF will
not use any of the Confidential Information except in connection with this
Agreement. If this Agreement is terminated for any reason whatsoever, BOKF and
BOKSub will promptly return to CNBT, Delaware, or the Bank, as the case may be,
all tangible embodiments (and all copies) of the Confidential Information which
are in its possession, and will not at any time use any Confidential Information
for any business purpose or disclose it to any third party. Any information
provided to BOKF by CNBT, Delaware or the Bank shall not be deemed to be
Confidential Information if: (i) it was in BOKF's lawful possession or within
BOKF's knowledge at the time of disclosure; (ii) at the time of disclosure, it
was in the public domain; (iii) after CNBT's disclosure, it becomes, through no
act or omission on BOKF's part, in the public domain; or (iv) it was lawfully
and independently obtained by BOKF from a third party who was not under an
obligation of confidentiality.
Section 5.2. Operation of the Business of CNBT. CNBT agrees that from the
date hereof to the Effective Time, except as contemplated by this Agreement or
to the extent that BOKF shall otherwise consent (which consent shall not be
unreasonably withheld),
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(a) CNBT will operate its business substantially as presently operated and
only in the ordinary course, and, consistent with such operation, it will use
its reasonable best efforts to preserve intact its present business organization
and its relationships with persons having business dealings with it.
(b) CNBT will maintain and keep its properties in as good repair and
condition as at present, except for depreciation due to ordinary wear and tear
and damage due to casualty, maintain in full force and effect insurance
comparable in amount and scope of coverage to that now maintained, perform all
its obligations under contracts, leases and documents relating to or affecting
its assets, properties and business, and fully comply with and perform all
material obligations and duties imposed upon it by applicable laws and
governmental rules, regulations and orders imposed by governmental authorities.
(c) Except as expressly permitted by subsections (e), (f), and (g) below,
CNBT will not, other than in the ordinary course of business and consistent with
CNBT's or the Bank's prior practices, (i) grant any material salary increase to
any officer or employee or enter into any new bonus, incentive compensation,
deferred compensation, profit sharing, retirement, severance, pension, group
insurance, or other benefit plan, or any new employment or consulting agreement;
(ii) create or otherwise become liable with respect to any indebtedness for
money borrowed or purchase money indebtedness; (iii) make or allow any amendment
of its Articles of Association, Articles of Incorporation, or Bylaws; (iv) issue
or contract to issue any shares of CNBT Common or securities exchangeable for or
convertible into CNBT Common, except in connection with the exercise of the
Stock Options; (v) purchase any shares of CNBT Common; (vi) enter into or assume
any material contract or obligation; (vii) incur a lien on any of its properties
either real or personal; (viii) make any substantial renovation of any of its
properties or enter into any lease or agreement involving any substantial
obligation; or (ix) waive any right of substantial value.
(d) From August 1, 2000, until the Closing Date, CNBT will not pay total
dividends exceeding the amount of earnings at CNBT, on a consolidated basis,
during such period, CNBT will not pay dividends in excess of $0.12 (twelve
cents) per calendar quarter for each of two calendar quarters plus one special
dividend not exceeding $0.07 (seven cents), and CNBT will not permit the Bank to
pay any dividend that would cause the Bank to no longer be "well capitalized"
under applicable federal capital adequacy guidelines.
(e) Notwithstanding anything in this Agreement to the contrary, (i) the
Stock Options may be exercised and CNBT may issue CNBT Common in connection
therewith and otherwise perform its obligations thereunder; and (ii) the Stock
Option exercise dates may be accelerated or extended in the discretion of CNBT
subject to the provisions of this Agreement respecting the exercise of such
Stock Options in connection with the consummation of the Merger.
(f) Notwithstanding anything in this Agreement to the contrary, CNBT may
pay usual and customary bonuses (consistent with prior practice.
(g) Notwithstanding anything in this Agreement to the contrary, CNBT may
(subject to the approval of BOKF which approval shall not be unreasonably
denied, withheld, or delayed) commit to pay to certain key employees of CNBT or
the Bank (who do not enter into employment
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or noncompetition agreements) an aggregate amount of $75,000 in consideration of
such employees entering into retention agreements whereby such employees would
continue their employment with CNBT or the Bank at least through the earlier of
(i) February 28, 2002 or (ii) the date of the data processing conversion of the
Bank to the data processing system used by Bank of Texas, National Association
("BOT").
Section 5.3. Regulatory Approvals and Cooperation.
(a) BOKF and BOKSub shall promptly, but in no event later than twenty (20)
days after the date of this Agreement, file or cause to be filed applications to
fulfill all governmental, regulatory and other requirements (including, without
limitation, obtaining the approval of the OCC, the FDIC, the Fed, SEC, and/or
any other governmental entity having jurisdiction over CNBT, Delaware, the Bank,
or BOKF and pay all fees and expenses associated therewith) required by BOKF, or
BOKSub for the completion of the transaction contemplated by this Agreement; and
promptly furnish CNBT with copies of all such regulatory filings.
(b) CNBT shall take all action necessary and fully cooperate in good faith
with BOKF and BOKSub to bring about the Merger contemplated by this Agreement as
soon as practicable. CNBT will give any notices to third parties, and CNBT will
use its best efforts to obtain any third party consents, that BOKF may
reasonably request in connection with the consummation of the Merger.
Section 5.4. Public Disclosure. None of BOKF, BOKSub, CNBT, or any
representative of said parties, will make any public disclosure concerning this
Agreement or the Merger contemplated herein without the mutual consent of each
of the other parties hereto to the timing and content of the disclosure;
provided, however, the parties hereto may make any disclosure (i) necessary to
maintain compliance with applicable federal or state laws or regulations, (ii)
required in connection with the making of any application necessary to effect
the Merger, or (iii) as contemplated by Section 5.6.
Section 5.6. Shareholder Approval. CNBT, acting through its Board of
Directors, shall, in accordance with applicable law:
(a) Duly call, give notice of, convene, and hold a meeting of its
shareholders on a date mutually selected by BOKF and CNBT (the "Shareholders's
Meeting") for submission of this Agreement and the Merger for approval of such
shareholders as required by the TBCA,
(b) Subject to its fiduciary duties to the shareholders of CNBT, include
in the Proxy Statement (as defined below) the recommendation of its Board of
Directors that the shareholders of CNBT vote in favor of the approval and
adoption of the Agreement and the Merger,
(c) Shall file with the SEC as soon as reasonably practicable after the
date hereof the Proxy Statement and shall use all reasonable efforts to have the
Proxy Statement approved by the SEC as promptly as practicable, and
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(d) Cause the Proxy Statement to be mailed to the shareholders of CNBT as
soon as practicable, and take such other action as is reasonably necessary to
obtain approval of the Agreement and the Merger from its shareholders.
The letter to shareholders, notice of meeting, proxy statement, and form of
proxy to be distributed to shareholders of CNBT in connection with the Merger
and the Merger Agreement shall be in form and substance reasonably satisfactory
to BOKF and are collectively referred to herein as the "Proxy Statement."
Section 5.7. No Solicitation.
(a) Prior to the Effective Time, unless this Agreement is sooner
terminated, CNBT shall not, nor shall CNBT permit any officer, director,
employee, agent or representative of CNBT or the Bank to, directly or indirectly
(i) solicit, initiate or encourage inquiries or proposals with respect to the
merger of CNBT or the sale of any of the shares of CNBT Common or other material
asset(s) of CNBT (any such transaction being referred to as an "Acquisition
Transaction") from any party other than BOKF, or (ii) enter into any Acquisition
Transaction with any party except as set forth in this Agreement.
(b) Notwithstanding the provisions of paragraph (a) above, CNBT may, in
response to an unsolicited written proposal with respect to an Acquisition
Transaction ("Acquisition Proposal"), furnish (subject to the execution of a
confidentiality agreement and standstill agreement containing provisions
substantially similar to the confidentiality and standstill provisions of
Section 5.1(b) 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 CNBT
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 CNBT's shareholders than the Merger and (ii) based
upon advice of its legal counsel, its board or 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").
(c) CNBT shall immediately notify BOKF after receipt of any Acquisition
Proposal or any request for nonpublic information relating to CNBT or the Bank
in connection with an Acquisition Proposal or for access to the properties,
books, or records of CNBT or the Bank by any person or entity that informs the
CNBT 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 in reasonable detail the identity of the offeror and the
terms and conditions of such proposal, inquiry, or contact.
Section 5.8. Restrictions on Indebtedness. CNBT agrees that from the date
hereof to the Effective Time, except as contemplated by this Agreement, CNBT
shall not incur any indebtedness for borrowed money or incur any noncurrent
indebtedness for the purchase price of any fixed or capital asset, or make any
extension of credit or any loans to, guarantee the obligations of, or make
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any additional investments in, any other person, corporation, or joint venture
(whether an existing customer or a new customer) except:
(a) Extensions of credit, loans and guarantees (i) less than $500,000per
transaction or (ii) less than $1,000,000 with existing customers (related
credits being aggregated for this purpose) made by the Bank in the usual and
ordinary course of its banking business, consistent with prior practices and
policies; provided, however, that the consent of BOKF shall be deemed to have
been given unless earlier given or denied in writing (i) with respect to any
loan presented at a regularly scheduled meeting of the Bank's Loan Committee, at
the later of 3:00 p.m. on the business day of such meeting or the adjournment of
such meeting, provided that all information provided to the members of the
Bank's Loan Committee with respect to such loan is delivered to BOKF at the same
time it is delivered to such committee members, and (ii) with respect to all
other loans, at the close of business on the next business day after BOKF's
consent is requested and all information relating to the making, renewal or
alteration of such loan is furnished to BOKF.
(b) Legal investments by the Bank in the usual and ordinary course of its
banking business consistent with prior practices and policies.
(c) Borrowings from the Federal Home Loan Bank, the Federal Reserve Bank,
deposit liabilities, and federal funds transactions by the Bank in the ordinary
course of business consistent with past practices.
Section 5.9. Information for Proxy Statement and Applications. BOKF will
promptly furnish to CNBT all information concerning BOKF and BOKSub required for
inclusion in (a) the Proxy Statement and (b) any application or statement to be
made by CNBT or filed by CNBT with any body in connection with the transactions
contemplated by this Agreement, and BOKF represents and warrants that all
information so furnished for such Proxy Statement and applications shall be true
and correct in all material respects and shall not omit any material fact
required to be stated therein or necessary to make the statements made, in light
of the circumstances under which they were made, not misleading. BOKF shall
otherwise fully cooperate with CNBT and the Bank in the filing of any
applications or other documents necessary to consummate the transactions
contemplated by this Agreement, including the Merger. BOKF shall promptly
notify CNBT in writing if BOKF becomes aware of any fact or condition that makes
untrue, or shows to have been untrue, in any material respect, and schedule or
any other information furnished to CNBT or any representation or warranty made
in or pursuant to this Agreement.
Section 5.10 Repositioning of Securities Portfolio. From and after the
date of this Agreement, CNBT shall cause the Bank to consult with BOKF
concerning the advisability of repositioning the Bank's securities portfolio,
including consideration of moving to overall shorter maturities; provided,
however, without limiting the generality of the foregoing the Bank shall not be
obligated in any event to sell any security at a loss.
Section 5.11 BOKF Guest Attendance at CNBT and Bank Board, Asset and
Liability Committee, and Loan Committee Meetings. From and after the date of
this Agreement, CNBT and the Bank shall extend an invitation to two
representatives of BOKF designated by BOKF to attend as guests all meetings of
the boards of directors and all meetings of the Asset and Liability
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Committee and Loan Committee of CNBT and the Bank; provided, however, such
representatives shall excuse themselves, if requested, from such meetings while
any confidential matters respecting the rights and obligations of the parties
pursuant to this Agreement are being discussed. The representatives may differ
from meeting to meeting.
ARTICLE VI
CONDITIONS OF MERGER - BOKF AND BOKSUB
The obligations of BOKF and BOKSub to close the transactions contemplated
by this Agreement are subject to the satisfaction of the following conditions,
unless waived by BOKF and BOKSub.
Section 6.1. Representations and Warranties. The representations and
warranties of CNBT set forth in Article II hereof shall be true and correct in
all material respects as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date, except as otherwise provided
or permitted by this Agreement, and BOKF shall have received a certificate,
executed by the President of CNBT to that effect.
Section 6.2. Performance of Obligations of CNBT. CNBT shall have performed
all obligations and agreements required to be performed by it under this
Agreement in all material respects prior to or at the Closing.
Section 6.3. Authorization of Merger. All action necessary to authorize the
execution, delivery, and performance of this Agreement by CNBT and the
consummation of the transactions contemplated hereby shall have been duly and
validly taken by the Board of Directors of CNBT, and CNBT shall have full power
and right to merge on the terms provided herein. All action necessary to
authorize and consummate the Merger contemplated hereby shall have been duly and
validly taken by the shareholders of CNBT and holders of not more than 10% of
the CNBT Common shall either (i) file with CNBT prior to the Shareholders'
Meeting a notice of their intent to exercise their right to dissent to the
Merger or (ii) vote against the Merger at the Shareholders' Meeting.
ARTICLE VII
CONDITIONS OF MERGER - CNBT
The obligation of CNBT to close the transactions contemplated by this
Agreement is subject to the satisfaction of the following conditions, unless
waived by CNBT:
Section 7.1. Representations and Warranties. The representations and
warranties of BOKF and BOKSub set forth in Article III and Article IV hereof,
respectively, shall be true and correct in all material respects as of the date
of this Agreement and as of the Closing Date as though made on and as of the
Closing Date, except as otherwise provided or permitted by this Agreement, and
CNBT shall have received a certificate, executed by the Presidents of BOKF and
BOKSub to that effect.
Section 7.2. Performance of Obligations of BOKF. BOKF and BOKSub shall have
performed all obligations and agreements required to be performed by it under
this Agreement in all material respects prior to or at the Closing.
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Section 7.3. Authorization of Merger by BOKF and BOKSub. All action
necessary to authorize the execution, delivery, and performance of this
Agreement by BOKF and BOKSub and the consummation of the Merger contemplated
hereby shall have been duly and validly taken by the Boards of Directors and
shareholders of BOKF and BOKSub, respectively, and BOKSub and CNBT shall have
full power and right to merge on the terms provided herein.
Section 7.4. Authorization of Merger by CNBT. All action necessary to
authorize and consummate the Merger contemplated hereby shall have been duly and
validly taken by the shareholders of CNBT and holders of not more than one third
of the CNBT Common either (i) file with CNBT prior to the Shareholders' Meeting
a notice of their intent to exercise their right to dissent to the Merger or
(ii) vote against the Merger at the Shareholders' Meeting.
Section 7.5. Fairness Opinion. Provided CNBT shall have diligently sought
such an opinion, CNBT shall have received from a recognized investment banking
firm an opinion, dated as of the date on which the Proxy Statement is first
distributed to the shareholders of CNBT, to the effect that the Merger
Consideration is fair, from a financial point of view, to the holders of CNBT
Common.
ARTICLE VIII
CONDITIONS TO RESPECTIVE OBLIGATIONS OF BOKF AND CNBT
The respective obligations of BOKF and CNBT under this Agreement are, at
their respective options, subject to the further condition that:
Section 8.1. Governmental Approvals. The parties hereto shall have received
approval of the Merger as contemplated by this Agreement from all necessary
governmental agencies and authorities, including, to the extent required, the
Fed, the OCC, the FDIC, the SEC, and such approvals shall not have been
contested by any Federal or state governmental authority nor by any other third
party by formal proceeding, and none of such approvals or consents shall be
subject to any terms or conditions that are unreasonable or unduly burdensome in
the opinion of the party hereto which is obliged to discharge or comply with
such term or condition, and all applicable regulatory waiting periods have
expired. It is understood that if any contest as aforesaid is brought by formal
proceedings, BOKF may, but shall not be obligated to, answer and defend such
contest.
Section 8.2. Documents. Each party hereto shall have received all documents
required to be received from the other party on or prior to the Closing Date,
including those set forth in Section 9.3 hereof, all in form and substance
reasonably satisfactory to the receiving party.
Section 8.3. Litigation. No action or proceeding shall have been taken,
threatened, or instituted or be pending, and no statute, rule, regulation, or
order shall have been promulgated, enacted, entered, enforced, or deemed
applicable to the acquisition by any governmental authority or by any court,
including the entry of a preliminary or permanent injunction, that would (a)
make the Agreement or any other agreement contemplated hereby, or the
transactions contemplated hereby, illegal, invalid, or unenforceable, (b) impose
material limits in the ability of any party to this Agreement to consummate the
Agreement or the transactions contemplated hereby, or (c) subject CNBT or the
Bank or any officer, director, shareholder, or employee thereof to criminal or
civil liability.
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Section 8.4. Employee Severance Agreements. All Employee Severance
Agreements between employees and CNBT, Delaware, and/or Bank shall have been
amended (which amendment CNBT shall use reasonable efforts to obtain) in a
manner approved by BOKF (provided such approval is not unreasonably denied,
withheld, or delayed), including the subparagraph (1) of the definition of Good
Reason.
ARTICLE IX
CLOSING
Section 9.1. Closing. The closing (the "Closing") for the consummation of
the transactions contemplated by this Agreement shall take place at the main
offices of Bank at 10:00 a.m. Houston time on the Closing Date described in
Section 9.2, unless another date or place is agreed to in writing by the parties
hereto.
Section 9.2. Closing Date; Effective Time. The Closing shall take place on
a date (the "Closing Date") mutually agreeable to BOKF and CNBT, which date
shall be the later of ten (10) days after the receipt of all necessary
regulatory, corporate, and other approvals and the expiration of any mandatory
waiting periods and a mutually agreeable date on or after January 3, 2001 and
on or prior to January 11, 2001, provided, however, that the Closing Date shall
not occur later than January 30, 2001 Subject to the terms and conditions set
forth herein, including receipt of all regulatory approvals, the Merger shall be
effective upon the later of the filing of, or the date and time specified in,
the Certificate of Merger relating to the Merger and filed with the Secretary of
State of the State of Texas (the "Effective Time"), and the parties shall use
their best efforts to cause the Effective Time to occur on the Closing Date.
Section 9.3. Closing Deliveries.
(a) At the Closing, CNBT shall deliver to BOKF and BOKSub:
(i) a certified copy of the Articles of Incorporation, Certificate
of Incorporation, or Articles of Association of CNBT, Delaware, and the
Bank;
(ii) a certificate, signed by an appropriate officer of CNBT, acting
solely in his capacity as an officer of CNBT, stating that (A) each of the
representations and warranties contained in Article II is true and correct
in all material respects at the time of the Closing with the same force and
effect as if such representations and warranties had been made at Closing,
and (B) all of the conditions set forth in Article VII have been satisfied
or waived as provided therein;
(iii) a certified copy of the resolutions of CNBT's Board of
Directors and shareholders, as required for valid approval of the execution
of this Agreement and the consummation of the Merger and the other
transactions contemplated hereby;
(iv) good standing and existence certificates, dated a recent date,
duly certifying the existence and good standing of CNBT in Texas Delaware
in Delaware, and Bank with the OCC;
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(v) executed employment agreements for B. Ralph Williams in
substantially the form as attached hereto as Exhibit "A";
(vii) an opinion of the accounting firm of Mann, Frankfort, Stein &
Lipp P.C., or another accounting firm mutually agreed to by CNBT and BOKF,
in a form reasonably acceptable to BOKF, opining that no payment, of which
such accounting firm has knowledge, to any employee of CNBT, Delaware, or
the Bank is an excess parachute payment within the meaning of Section 280G
of the Code; and,
(viii) a resolution of the Board of Directors of CNBT approving the
merger of CNBT's profit sharing plan into the defined contribution plan of
BOKF.
(b) At the Closing, BOKF shall deliver to CNBT:
(i) certified copies of the Articles of Incorporation of BOKF and
BOKSub;
(ii) a certificate signed by an appropriate officer of BOKF and
BOKSub stating that (A) each of the representations and warranties
contained in Article III and IV is true and correct in all material
respects at the time of the Closing with the same force and effect as if
such representations and warranties have been made at Closing and (B) all
of the conditions set forth in Article VI have been satisfied;
(iii) a certified copy of the resolutions of BOKF's Board of
Directors authorizing the execution of this Agreement and the consummation
of the transactions contemplated hereby;
(iv) a certified copy of the resolutions of BOKSub's Board of
Directors and shareholder, as required for valid approval of the execution
of this Agreement and the consummation of the transactions contemplated
hereby;
(v) good standing and existence certificates, dated a recent date,
duly certifying the existence and good standing of BOKSub in Texas;
(vi) executed employment agreements for B. Ralph Williams in
substantially the form as attached hereto as Exhibit "A"; and
(viii) evidence of the approval of all regulatory authorities
required for the consummation of the Merger and the transactions
contemplated by this Agreement.
ARTICLE X
TERMINATION
Section 10.1. Termination. This Agreement may be terminated at any time
prior to the Effective Time by:
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(a) The mutual consent of the respective Boards of Directors of BOKF and
CNBT;
(b) BOKF if the conditions set forth in Article VI hereof shall not have
been met;
(c) CNBT if the conditions set forth in Article VII hereof shall not have
been met;
(d) BOKF if the conditions set forth in Article VIII hereof shall not have
been met through no fault of, or reason attributable to, BOKF;
(e) CNBT if the conditions set forth in Article VIII hereof shall not have
been met through no fault of, or reason attributable to, CNBT, Delaware, or the
Bank;
(f) CNBT if (i) CNBT receives an offer from a third party (excluding any
affiliate of CNBT or any group of which any affiliate of CNBT is a member) with
respect to an Acquisition Proposal, and (ii) the board of directors of CNBT
determines, in good faith and after consultation with an independent financial
advisor, that such proposal constitutes a Superior Proposal and resolves to
accept such a Superior Proposal, and (iii) CNBT shall have given BOKF two (2)
days' prior written notice of its intention to terminate pursuant to this
provision;
(g) BOKF if the board of directors of CNBT shall have resolved to accept a
Superior Proposal; or
(h) CNBT in the event the Closing has not occurred by January 30, 2001 ,
or such other date as the parties hereto agree in writing.
Any party desiring to terminate this Agreement pursuant to any of the foregoing
provisions shall give notice of such termination to the other party in
accordance with Section 12.2 hereof.
Section 10.2. Effect of Termination. Without limiting any other relief to
which either party hereto may be entitled for breach of this Agreement, in the
event of the termination and abandonment of this Agreement pursuant to the
provisions of Section 10.1 hereof, no party to this Agreement shall have any
further liability or obligation in respect of this Agreement; provided, however,
that the confidentiality provisions of Section 5.1, above, shall survive
termination. Any such termination that occurs as a result of a breach of a
representation or warranty made in this Agreement that, at the time made, was
not known to the party making such representation to be untrue, or any such
termination that through no fault of any of the parties to this Agreement shall
be without liability to any of the parties hereto, but if such termination
results from the willful misrepresentation of a party or the wilful failure of a
party to fulfill a condition to the performance of the obligation of the other
party to this Agreement, such party shall be fully liable for any and all
damages, costs and expenses (including reasonable attorney's fees) sustained or
incurred by the other party or parties as a result of such failure or breach.
Section 10.3. Waiver and Amendment. Any term or provision of this
Agreement, except statutory requirements and requisite approvals of regulatory
authorities, may be waived at any time by the party which is entitled to the
benefits thereof and this Agreement may be amended or
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supplemented at any time by the mutual agreement of BOKF, BOKSub, and CNBT
through action taken by their respective Boards of Directors.
ARTICLE XI
ADDITIONAL COVENANTS
Section 11.1. No Survival. None of the representations, covenants,
warranties, and agreements contained in this Agreement shall survive the Closing
and the Effective Time except (i) in accordance with Section 11.2 and (ii) this
Agreement shall continue and remain in full force and effect regarding the
covenants of BOKF that by their terms are to be performed after the Effective
Time (including without limitation the provisions in Section 1.5 concerning
payment of the Merger Consideration and Sections 11.2, 11.3, 11.4, and 11.5) for
the period of the applicable statute of limitations.
Section 11.2 Escrow. At the Effective Time, BOKF shall establish an escrow
account ( the "Representation Escrow") with the Escrow Agent. The
Representation Escrow shall be governed by an escrow agreement, the form of
which is attached hereto as "Exhibit B" (the 'Representation Escrow Agreement:),
which shall provide as follows:
(a) At the Effective Time, BOKF shall deposit the principal amount of
$1,000,000 into the Representation Escrow, which, together with (i) all interest
earned thereon, but reduced by (ii) any Representation Allowed Escrow Claim (as
hereafter defined) is referred to herein as the Representation Escrow Funds".
(b) The Representation Escrow Funds shall be invested in a certificate of
deposit at the Bank maturing one year from date, at the rate and on the terms
and conditions generally offered by Bank for certificates of deposit of
comparable size and duration, and upon maturity as necessary, in three-month
certificates of deposit at Bank at the rates and on terms and conditions
generally offered by the Bank for certificates of comparable size and duration
at each renewal date, provided that any penalty for early withdrawal of such
funds will either be waived by Bank or borne by BOKF.
(c) The representations, warranties, covenants and agreements of CNBT
contained in this Agreement shall survive the Closing, and BOKF shall be
indemnified and held harmless from any and all losses, arising from any breach
by CNBT of any such representations, warranties, covenants, and agreements
(collectively, "Losses"), provided that (i) written notice of such Losses must
be given to CNBT on or before March 31, 2002, (ii) the sole remedy available to
BOKF for Losses shall be limited solely to a claim against the Representation
Escrow Funds, (iii) all payments, if any, to be made in respect of any Losses
shall be made solely from the Representation Escrow Funds, (iv) the CNBT
shareholders shall have no obligations or liability for any such losses except
to the extent of the Representation Escrow Funds, and (v) no claim shall be made
for any Losses unless and until the aggregate amount of all Losses shall exceed
$25,000.
(d) In the event BOKF makes no claim for any Losses on or before March 31,
2002, the Representation Escrow Agreement shall terminate and the Escrow Agent
shall, on or before April 15, 2002, distribute the Representation Escrow Funds
on a pro rata basis to the holders of the CNBT Common as of the Effective Time.
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(e) In the event BOKF makes a claim for Losses on or before March 31,
2002, the Escrow Agent shall (i) on or before April 15, 2002, distribute on a
pro rata basis to the holders of the CNBT Common as of the Effective Time an
amount equal to the Representation Escrow Funds less the amount of all Losses
claimed by BOKF, and (ii) continue to hold and invest the remaining
Representation Escrow Funds until such claim is resolved by (i) the mutual
agreement of a majority of the Agents (as defined below) and BOKF, or (ii) a
final adjudication determining the merits of the BOKF claim, at which time the
Representation Escrow Agreement shall terminate, the Escrow Agent shall pay the
claim of BOKF as mutually agreed or finally adjudicated (an "Representation
Escrow Allowed Claim"), and the Escrow Agent shall distribute any remaining
Escrow Funds on a pro rata basis to the holders of the CNBT Common as of the
Effective Time.
(f) The rights of the holders of the CNBT Common in the Representation
Escrow and the Representation Escrow Funds shall not be assignable or
transferable except by operation of law or by intestacy and will not be
evidenced by any certificate or other interest.
(g) The persons who are members of the Board of Directors of CNBT
immediately prior to the Closing shall collectively serve as agents, acting by
majority vote in the same manner as a board of directors acting under the TCBA,
for the holders of the CNBT Common as of the Effective Time and shall have full
authority to act for and on behalf thereof in the administration of the
provisions of this Section (the "Agents"). The actions of the Agents shall be
deemed actions taken by them as members of the Board of Directors of CNBT prior
to the Closing.
(h) BOKF shall pay the fees and costs of the Escrow Agent with respect to
the Representation Escrow.
Section 11.3. Indemnification; Insurance.
(a) From and after the Effective Time, BOKF (the "Indemnifying Party")
shall indemnify and hold harmless each present and former director, officer, and
employee of CNBT and the Bank determined as of the Effective Time (the
"Indemnified Parties") against any costs or expenses (including reasonably
attorneys' fees), judgments, fines, losses, claims, damages, or liabilities
(collectively, "Costs") incurred in connection with any claim, action, suit,
proceeding, or investigation, whether civil or criminal, administrative, or
investigative, arising out of matters existing or occurring at or prior to the
Effective Time, whether asserted or claimed prior to, at or after the Effective
Time to the fullest extent to which such Indemnified Parties were entitled under
the Articles of Incorporation, Certificate of Incorporation, Articles of
Association and Bylaws of CNBT, Delaware, and the Bank.
(b) Any Indemnified Party wishing to claim indemnification under this
section, upon learning of any such claim, action, suit, proceeding or
investigation, shall promptly notify the Indemnifying Party, but the failure to
so notify shall not relieve the indemnifying Party of any liability it may have
to such Indemnified Party if such failure does not materially prejudice the
Indemnifying Party. In the event of any such claim, action, suit, proceeding, or
investigation (whether arising before or after the Effective Time), (i) the
Indemnifying Party shall have the right to assume the defense thereof and the
Indemnifying Party shall not be liable to such Indemnified Parties for any legal
expenses of other counsel or any other expenses subsequently incurred by such
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Indemnified Parties in connection with the defense thereof, except that if the
Indemnifying Party elects not to assume such defense or counsel for the
Indemnified Party and the Indemnified Parties, the Indemnified Parties may
retain counsel which is reasonably satisfactory to the Indemnifying Party, and
the Indemnifying Party shall pay, promptly as statements therefor are received,
the reasonable fees and expenses of such counsel for the Indemnified Parties
(which may not exceed one firm in any jurisdiction unless the use of one counsel
for such Indemnified Parties would present such counsel with a conflict of
interest), (ii) the Indemnified Parties will cooperate in the defense of any
such matter, and (iii) the Indemnifying Party shall not be liable for any
settlement effected without its prior written consent.
(c) BOKF shall maintain its existing policy of directors and officers
liability insurance (or comparable coverage) for a period of not less than three
years after the Effective Time; which policy shall be amended, however, to
include the directors and officers of CNBT, Delaware, and the Bank, and which
shall be a "claims made" policy providing coverage for (among other things) acts
or omissions occurring prior to the Effective Time.
(d) In the event that BOKF or any of its respective successors or assigns
(i) consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger or
(ii) transfers all or substantially all of its properties and assets to any
person, then, and in each such case, the successors and assigns of such entity
shall assume the obligations set forth in this Agreement, which obligations are
expressly intended to be for the irrevocable benefit of, and shall be
enforceable by, each director and officer covered hereby.
Section 11.4. BOT Director Position. As soon as practicable after the
Effective Time, BOKF shall cause (pursuant to a voting agreement with its
controlling shareholder or otherwise) the Chief Executive Officer of the Bank
to be elected as a member of the Board of Directors of BOT. BOKF shall continue
to cause such person to be nominated and elected as a director of BOT for a
period of two years after the Effective Time. If for any reason such person
cannot or will not serve as a director of BOKF, BOKF and the board of directors
of CNBT shall mutually agree to designate another person who was on the Board of
Directors of CNBT as of the Effective Time to fill such position for such period
of time.
Section 11.5. Severance Plan. Prior to the Closing Date, the Bank will
enter into a severance policy providing for the payment to any employee who is
involuntarily dismissed within the first 180 days after the Closing Date, an
amount equal to the greater of (a) one week's pay for each year of service or
portion thereof by such employee or (b) two weeks' pay, and BOKF will honor such
policy after the Closing with respect to the employees of the Bank as of the
Closing Date.
Section 11.6. Employee Benefits. BOKF presently intends that, after the
Merger, BOKF and CNBT will not make additional contributions to the employee
benefit plans of CNBT. Each employee of CNBT or any direct or indirect
subsidiary of CNBT who remains an employee of CNBT or BOKF or any direct or
indirect subsidiary of CNBT or BOKF immediately after the Effective Time (the
"Continuing Employees") will be entitled to participate in the employee benefit
plans and programs maintained for employees of BOKF and its affiliates, in
accordance with the respective terms of such plans and programs, and BOKF shall
take all actions necessary or
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appropriate to facilitate coverage of the Continuing Employees in such plans and
programs from and after the Closing Date, subject to the following:
(a) Each Continuing Employee will be entitled to credit for prior service
with CNBT for all purposes under the employee welfare benefit plans and other
employee benefit plans and programs (other than those described in subsection(b)
below and any stock option plans) sponsored by BOKF or its affiliates. Any
preexisting condition exclusion applicable to such plans and programs shall be
waived with respect to any Continuing Employee. For purposes of determining each
Continuing Employee's benefit for the year in which the Merger occurs under the
BOKF vacation program, any vacation taken by a Continuing Employee preceding the
Closing Date for the year in which the Merger occurs will be deducted from the
total BOKF vacation benefit available to such employee for such year.
(b) Each Continuing Employee shall be entitled to credit for past service
with CNBT or any of its direct or indirect subsidiaries for the purpose of
satisfying any eligibility or vesting periods applicable to the BOKF employee
pension benefit plans that are subject to Section 401(a) and 501(a) of the Code.
Notwithstanding the foregoing, BOKF shall not grant any prior years of service
credit to employees of CNBT, with respect to any defined benefit plans sponsored
(or contributed to) by BOKF; instead, Continuing Employees shall be treated as
newly hired employees of BOKF as of the date following the Closing Date for
purposes of determining eligibility, vesting and benefit accruals thereunder.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Entire Agreement. This Agreement contains the entire
agreement among BOKF, BOKSub, and CNBT with respect to the Merger, and
supersedes all prior agreements and understandings relating to the subject
matter of this Agreement.
Section 12.2. Brokers. CNBT represents and warrants that except for Alex
Shesunoff & Co. Investment Banking, no broker, finder, or investment banker is
entitled to any brokerage, finder's, or other fee or commission in connection
with the Merger or the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of CNBT and that the total of the compensation
payable to Alex Shesunoff & Co. not reflected in the Financial Statements and to
the entity providing the fairness opinion described in Section 7.5 shall not
exceed $600,000.
Section 12.3. Notices. All notices or other communications that are
required or permitted hereunder shall be in writing and shall be deemed to have
been given or made on the date of delivery, in the case of hand delivery, or
three (3) business days after deposit in the United States Registered Mail,
postage prepaid, or upon receipt if transmitted by facsimile telecopy or any
other means, addressed (in any case) as follows:
If to BOKF or BOKSub:
BOK Financial Corporation
P.O. Box 2300
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Tulsa, OK 79192
Attention: Mr. James F. Ulrich
Telecopy No.: (918) 588-6853
and
Bank of Texas, N.A.
5956 Sherry Lane, Suite 1800
Dallas, Texas 75225
Attention: Mr. C. Fred Ball, Jr., President
Telecopy No.: (214) 987-8891
With a Copy To:
Frederic Dorwart, Lawyers
Old City Hall
124 East Fourth Street
Tulsa, OK 74103-5010
Attention: Frederic Dorwart, Esq.
Telecopy No.: (918) 583-8251
If to CNBT:
CNBT Bancshares, Inc.
5320 Bellaire Boulevard
Bellaire, TX 77401
Attention B. Ralph Williams, President
Telecopy No.: (713) 661-5539
With a Copy To:
Thompson Knight Brown Parker & Leahy LLP
1200 Smith Street, Suite 3600
Houston, Texas 77002
Attention: John T. Unger
Telecopy No.: 713-654-1871
Section 12.4. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof, including any facsimile copy
thereof, shall be deemed to be an original instrument, but all such counterparts
together shall constitute but one agreement.
Section 12.5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF TEXAS.
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Section 12.6. Venue. ALL ACTIONS OR PROCEEDINGS WITH RESPECT TO, ARISING
DIRECTLY OR INDIRECTLY IN CONNECTION WITH, OUT OF, RELATED TO OR FROM THIS
AGREEMENT OR ANY OF THE OTHER DOCUMENTS SHALL BE LITIGATED IN COURTS HAVING
SITUS IN HOUSTON, HARRIS COUNTY, TEXAS, AND EACH PARTY HERETO HEREBY SUBMITS TO
THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH ACTION AND HEREBY WAIVES ANY
RIGHTS IT MAY HAVE TO TRANSFER OR CHANGE THE JURISDICTION OR VENUE OF ANY
LITIGATION BROUGHT AGAINST IT IN ACCORDANCE WITH THIS SECTION.
Section 12.7. Additional Documentation. As soon as practicable after the
Effective Time, the parties hereto shall execute and file such documents and
take such other actions as may be necessary or appropriate to effect the
transactions contemplated by this Agreement.
Section 12.8. Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, and the application
of such provision to persons or circumstances other than those to which it is
held invalid and unenforceable, shall not be affected thereby and each provision
of this Agreement shall be valid and enforced to the fullest extent permitted by
law.
Section 12.9. Expenses.
(a) Each party shall bear and pay for all of its own costs and expenses
incurred in connection with this Agreement or the Merger, including respective
fees and expenses of financial consultants, accountants and counsel.
(b) CNBT hereby agrees to, and shall, pay to BOKF $5,000,000 in funds
immediately available in Dallas, Texas not later than the second Business Day
following termination of this Agreement, (i) if CNBT terminates this Agreement
pursuant to clause (f) of Section 10.1, (ii) if BOKF terminates this Agreement
pursuant to clause (d) of Section 10.1 due to CNBT's breach of Section 6.2, or
(iii) BOKF terminates this Agreement pursuant to clause (g) of Section 10.1.
(c) BOKF hereby agrees to, and shall, pay to CNBT $5,000,000 in funds
immediately available in Houston, Texas not later than the second Business Day
following termination of this Agreement if CNBT terminates this Agreement
pursuant to clause (e) of Section 10.1 solely due to BOKF's breach of Section
7.2.
Section 12.10. Exhibits. The exhibits and schedules attached to this
agreement, together with all documents incorporated by reference therein, form
an integral part of this Agreement and are hereby incorporated into this
Agreement wherever reference is made to them to the same extent as if they were
set out in full at the point in which the reference is made. Items disclosed on
any Exhibit or Schedule to this Agreement shall be deemed to be disclosed on all
Exhibits or Schedules hereto and the failure of CNBT to list any item on one or
more Exhibits or Schedules shall not give rise to a claim by BOKF or BOKSub.
Section 12.11. Costs of Litigation. In any action brought by a party hereto
to enforce the obligations of any other party hereto, the prevailing party shall
be entitled to collect from the
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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).
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date and year first above written.
BOK FINANCIAL CORPORATION
/s/ JAMES ULRICH
By:______________________________________
James Ulrich, Senior Vice President
BOKF MERGER CORPORATION NUMBER TEN
/s/ JAMES ULRICH
By:______________________________________
James Ulrich, Senior Vice President
CNBT BANCSHARES, INC.
/s/ B. RALPH WILLIAMS
By:______________________________________
B. Ralph Williams, President
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