EXHIBIT 2.4
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Reorganization Agreement")
is made and entered into the 26th day of September, 1996, by and between
BANCFIRST CORPORATION, an Oklahoma corporation ("BancFirst Corp"), and COMMERCE
BANCORPORATION, INC., an Oklahoma corporation ("Commerce"), which corporations
are also sometimes hereinafter referred to collectively as the "Constituent
Corporations."
W I T N E S S E T H:
WHEREAS, BancFirst Corp is a registered bank holding company duly organized
and existing under the laws of the State of Oklahoma, having an authorized
capital stock consisting of (i) 7,500,000 shares of common stock, par value
$1.00 per share, 6,215,624 of which are currently issued and outstanding, (ii)
900,000 shares of 10% preferred stock, par value $5.00 per share, none of which
are currently issued and outstanding, and (iii) 10,000,000 shares of senior
preferred stock, par value $1.00 per share, none of which are currently issued
and outstanding; and
WHEREAS, Commerce is a registered bank holding company duly organized and
existing under the laws of the State of Oklahoma, having an authorized capital
stock consisting of (i) 45,000 shares of common stock, par $1.00 per share,
22,532.66 of which are currently issued and outstanding; and (ii) 6,500 shares
of 10% cumulative preferred stock, par value $13.25 per share, none of which are
currently issued and outstanding; and
WHEREAS, it is deemed advisable and to the benefit of the Constituent
Corporations and their respective shareholders that the parties adopt a plan of
reorganization (the "Reorganization") in accordance with the provisions of
Section 368 (a)(1)(C) of the Internal Revenue Code of 1986, as amended; and
WHEREAS, pursuant to the Reorganization, BancFirst Corp (i) will issue
certain shares of its common stock to Commerce, (ii) will acquire in exchange
for those shares full right, title, and interest in all of the Company's assets,
including all of the shares of common stock of The Bank of XxXxxxx (the "Bank")
which are owned by Commerce, and (iii) will assume and become directly liable
for all of Commerce's liabilities (as defined in Section 1.02);
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, the parties hereto agree as follows:
1. Purchase and Sale of Commerce' Assets; Assumption of Liabilities.
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1.01 The Assets. In exchange for the consideration specified in
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Section 2, and
subject to the terms and conditions provided herein, at the Closing (as
defined in Section 3) Commerce agrees to sell to BancFirst Corp and
BancFirst Corp agrees to purchase all of Commerce' assets (the "Assets") as
they exist at the Closing Date.
1.02 Liabilities. Commerce agrees to assign to BancFirst Corp, and
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BancFirst Corp agrees to assume on the Closing Date and pay and discharge
in due course, all of Commerce' debts, liabilities, obligations and
contracts, matured or unmatured, whether accrued, absolute, contingent or
otherwise, and whether or not reflected or reserved against on the balance
sheets or records of Commerce (the "Liabilities").
2. Issuance of BancFirst Corp Stock.
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2.01 Stock Issuance. At the Closing, in consideration for
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acquisition of the Assets, BancFirst Corp, in addition to assuming the
Liabilities, shall issue to Commerce a total number of shares of BancFirst
Corp common stock which shall be determined by multiplying 6.9335 times the
number of outstanding shares of Commerce common stock).
2.02 No Fractional Shares. If the number of shares of BancFirst Corp
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common stock determined pursuant to Section 2.01 is a total that includes a
fractional share, then the total number of shares of BancFirst Corp common
stock issuable to Commerce shall be increased to the next full share.
3. Closing.
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3.01 Date of Closing. The parties intend that the closing of the
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transactions contemplated hereby (the "Closing") shall take place on the
latter to occur of: (a) the date as of which BancFirst Corp has obtained
all necessary prior written approval of the Federal Reserve Board ("Federal
Reserve") for both (i) the transactions contemplated by the Reorganization
Agreement and (ii) the separate merger of the Bank into BancFirst, and any
mandatory waiting period has expired (or if such date is not a business
day, then the next business day following); (b) the date as of which the
Oklahoma State Banking Board has approved the separate merger of the Bank
into BancFirst; (c) as soon as possible following the first month-end date
as of which Commerce's "Common Equity Capital" (as defined in Section
3.02) equals not less than $1,600,000, or (iv) such later date as the
Constituent Corporations may agree upon. The date of Closing is referred to
herein as the "Closing Date."
3.02 Common Equity Capital. "Common Equity Capital" shall be
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determined by taking the amount of Commerce's total equity capital
attributable to the holders of its common stock, determined in accordance
with generally accepted accounting principles, as further adjusted to carry
out each of the following adjustments:
(a) Any investment in McLoud Insurance Agency or its assets
shall be reduced to $0;
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(b) Any common stock dividend declared or paid by Commerce
between the month-end preceding the Effective Time and the
Effective Time shall be deducted;
(c) Any adjustment to loan loss reserve which otherwise might be
required by generally accepted accounting principles shall be
eliminated, provided that the requirements of Section 5.05
hereof are met; and
(d) Any entries to account for the future benefits payable under
that certain agreement effective January 11, 1995, by and
between Commerce and Xxxxxx Xxxxxxx shall be added back in
determining Common Equity Capital.
3.03 Actions of Commerce at Closing. At Closing, Commerce shall;
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(a) Deliver to BancFirst Corp certificates representing all
shares of Bank Common stock owned by Commerce, duly assigned to
BancFirst Corp or with duly executed assignments separate from
certificates;
(b) Execute, acknowledge and deliver to BancFirst Corp such
deeds, bills of sale, endorsements, assignments, and other
instruments of sale, conveyance, transfer and assignment, as
required or desirable in order to effectively vest in BancFirst
Corp title to any of the other Assets; and
(c) Deliver to BancFirst Corp all files, documents, papers,
agreements, books of account and other records pertaining to the
Assets purchased and liabilities assumed by BancFirst Corp other
than Commerce' corporate minute books.
3.04 Actions of BancFirst Corp at Closing. At Closing, BancFirst
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Corp shall execute and deliver to Commerce one or more undertakings or
other agreements whereby BancFirst Corp assumes and agrees to pay and
discharge in due course the Liabilities of Commerce which BancFirst Corp
has agreed pursuant to Section 1.02 of this Agreement to assume, pay,
discharge, perform and fulfill, in such form as may be reasonably required
by counsel to Commerce.
3.05 Further Assurances. Each of the parties hereto agrees to
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execute and deliver such further agreements, assurances, instruments and
documents at any time reasonably requested by the other party as are
necessary or desirable to consummate the transactions contemplated by this
Agreement.
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4. Restrictive Legend. The stock certificates evidencing shares of
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BancFirst Corp common stock issued in the Reorganization will bear the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR ANY APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD
OR TRANSFERRED FOR VALUE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION OF THEM UNDER THE SECURITIES ACT OF 1933,
AND/OR APPLICABLE STATE SECURITIES LAWS, OR AN OPINION
OF COUNSEL SATISFACTORY TO COUNSEL FOR THE CORPORATION
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR
ACTS.
5. Commerce's Covenants. Commerce agrees that, prior to the Effective
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Time:
5.01 Business Operations. Commerce and the Bank shall conduct their
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respective operations only in the ordinary and usual course of business
consistent with past and current practices. Exclusive of lending and
deposit contracts, neither Commerce nor the Bank will enter into any new
contract, or renew or extend any existing contract, without the prior
consent of BancFirst Corp. Neither Commerce nor the Bank will (a) sell any
assets (except as permitted by Section 5.04), or (b) purchase any fixed
assets at a price of more than $10,000 tn the aggregate.
5.02 Employee Compensation. Except with BancFirst Corp's prior
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written consent or pursuant to contracts in existence as of the date hereof
and except for normal annual salary increases consistent with past
practices, no increase will be made in the compensation or rate of
compensation payable or to become payable to the officers or employees of
Commerce or the Bank, and no bonus, profit sharing, retirement, insurance,
death, fringe benefit or other extraordinary or indirect compensation shall
accrue, be set aside or be paid to, for or on behalf of any of such
officers or employees other than as required by presently existing pension,
profit sharing, bonus and similar benefit plans as presently constituted,
and no agreement or plan other than those now in effect shall be adopted or
committed for; provided, however, this section shall not limit Commerce's
ability to commit to pay consulting fees for a term ending on or before the
Effective Time.
5.03 Retirement of Preferred Stock. On or prior to the Effective
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Time, Commerce will have retired all of its then outstanding 10% cumulative
preferred stock at a price not to exceed $80,000.
5.04 Duration of Securities. The Bank shall have eliminated from its
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securities portfolio any securities that, as of the date of the
Reorganization Agreement, have a duration beyond June 1, 1998. Further, the
Bank shall not purchase any securities after the date hereof which have a
duration beyond June 1, 1998.
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5.05 Adequacy of Bank's Reserve for Loan Losses. If the Bank's loan
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loss reserve equals or exceeds 1.5% of the Bank's total loans outstanding
as of the month-end immediately preceding the Effective Time, BancFirst
Corp shall deem the reserve to be adequate. Prior to the month-end
immediately preceding the Effective Time, the Bank may reduce its reserve
for loan losses to an amount not less than 1.5% of total loans outstanding,
crediting any amount in excess of that percentage to income.
6. Accountinq Matters. For accounting purposes the transaction shall
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be treated as a book value purchase transaction. The assets and liabilities
of Commerce at the Closing date shall be taken upon the books of BancFirst
Corp at their respective values as reflected on the books of Commerce.
7. Submission to Shareholders and the Federal Reserve. The
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Reorganization Agreement is subject to obtaining the approval of the
shareholders of Commerce, and shall be submitted to the shareholders of
Commerce at a meeting called for such purpose. Upon approval by the
requisite vote of the shareholders of Commerce and after obtaining all
necessary approval from the Federal Reserve, the Closing shall occur as
soon as practicable thereafter in the manner provided in Section 3.01
hereof.
8. Termination. This Reorganization Agreement may be terminated and
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abandoned at any time prior to the Closing, whether before or after action
thereon by the shareholders of Commerce;
(a) by the mutual consent in writing of the boards of directors
of BancFirst Corp and of Commerce; or
(b) by the board of directors of BancFirst Corp in writing at any
time prior to the Closing if BancFirst Corp determines, in its
sole discretion, that there has been a material adverse change in
the financial condition of Commerce or of the Bank; or
(c) by the board of directors of Commerce in writing at any time
prior to the Closing if Commerce determines, in its sole
discretion, that there has been a material adverse change in the
financial condition of BancFirst Corp or of BancFirst; or
(d) by the board of directors of either of the Constituent
Corporations in writing at any time prior to the Closing if (1) a
material breach shall exist with respect to any written
representation or warranty made by the other Constituent
Corporation in connection with the transactions, or (2) the other
Constituent Corporation, without prior written consent of such
Constituent Corporation, shall take any action prohibited by this
Reorganization Agreement, or (3) in the opinion of the board of
directors of such Constituent Corporation, any consent of any
third party is reasonably necessary to carry out the
transactions, or to prevent a default under any outstanding
obligation
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of either Constituent Corporation, and such consent is not
obtainable; or
(e) by the board of directors of BancFirst Corp in writing at any
time prior the Closing if any covenant contained in Section 5 has
been breached by Commerce; or
(f) by the board of directors of either BancFirst Corp or
Commerce in writing if the Closing has not occurred by December
31, 1996.
In any event of the termination and abandonment of this Reorganization
Agreement pursuant to the provisions of this Section 8, the same shall be
of no further force or effect.
9. Waiver, Extension and Amendment. Any of the terms or conditions of
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this Reorganization Agreement may be waived at any time, whether before or
after action thereon by the shareholders of BancFirst Corp or Commerce, by
the party which is entitled to the benefits thereof; and this
Reorganization Agreement may be modified or amended at any time, whether
before or after action thereon by the shareholders of BancFirst Corp or
Commerce, by the parties hereto. Any wavier, modification or amendment
shall be in writing.
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IN WITNESS WHEREOF BancFirst Corp and Commerce have caused this
Reorganization Agreement to be executed by their duly authorized officers and
their corporate seals to be affixed as of the date first above written.
"BANCFIRST CORP" BANCFIRST CORPORATION
Oklahoma City, Oklahoma
By /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, Chief Executive
Officer and President
ATTEST:
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, Secretary
(SEAL)
"COMMERCE" COMMERCE BANCORPORATION, INC.
XxXxxxx, Oklahoma
By /s/ H. E. Xxxxxxxx
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H. E. Xxxxxxxx, President
ATTEST:
/s/ Xxxxxx X. Xxxxxxxxxx, Secretary
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Xxxxxx X. Xxxxxxxxxx, Secretary
(SEAL)
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PLAN OF COMPLETE LIQUIDATION AND DISSOLUTION
1. This Plan is intended to accomplish the complete liquidation and
dissolution of Commerce Bancorporation, Inc. ("Commerce"), an Oklahoma
corporation, in the manner stated in this Plan.
2. This Plan shall be adopted when it shall have been approved by the
holders of a majority of the issued and outstanding shares of the common stock
of Commerce.
3. After this Plan has been adopted by the shareholders, and after the
Closing Date of the transactions contemplated by that certain "Agreement and
Plan of Reorganization" (the "Agreement") by and between BancFirst Corporation
and Commerce, Commerce shall cease doing business and shall thereupon distribute
all of its assets, consisting solely of BancFirst Corporation common stock, to
its shareholders, as more specifically provided below.
4. Each holder of shares of Commerce's common stock shall be entitled to
receive in the aggregate in liquidation of all of his shares of common stock
that number of the shares of BancFirst Corporation common stock owned by the
Corporation which shall be determined by multiplying 6.9335 times the number of
shares of Commerce's common stock owned by that holder.
5. If the total number of shares that any shareholder would be entitled to
receive pursuant to Section 4 hereof includes a fractional share, then the total
number of shares to be distributed to that shareholder (excluding R Banking Ltd.
Partnership) shall instead be rounded upward to the next full share. If the
number of shares of BancFirst Corporation common stock owned by Commerce is not
sufficient to satisfy the total required by this section because of the
rounding upward of fractional shares, then the aggregate number of full and
fractional shares required to round other shareholders' shares shall be deducted
from the total number of shares that R Banking Ltd. Partnership would otherwise
be entitled to receive in liquidation pursuant to Section 4 hereof.
6. By the terms of the Agreement, immediately following the Closing
Commerce will have no assets other than BancFirst Corporation common stock, and
will have no remaining liabilities. Accordingly, upon distribution of the
BancFirst Corporation common stock as provided above, Commerce shall be formally
dissolved in accordance with the Oklahoma General Corporation Act.
7. The officers of Commerce are authorized and directed to file a
Certificate of Dissolution with the Secretary of State of the State of Oklahoma
as required by the Oklahoma General Corporation Act.
8. Commerce shall file Form 966 with the Internal Revenue Service, together
with a certified copy of the resolution adopting this Plan by the shareholders
within thirty (30) days after this Plan shall have been adopted.
9. The officers of Commerce are hereby authorized and directed to perform
all acts necessary to effect the liquidation and dissolution of Commerce
including, without limitation, the execution of all documents, instruments and
records incident to such liquidation.
10. Notwithstanding the foregoing, the board of directors of Commerce may
abandon this Plan of Complete Liquidation and Dissolution without further action
by the shareholders, if the board in its discretion determines that such
abandonment is desirable under the circumstances that then exist.
