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EXHIBIT 2.2
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of February 21, 2000, by and between
Mutual Savings Bank, a mutual savings bank chartered under Chapter 214 of
Wisconsin Statutes ("Mutual"), and First Northern Capital Corp., a Wisconsin
corporation (the "Company").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company, Mutual, and OV Corp., a Wisconsin corporation ("Merger
Corp."), are entering into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), which provides, among other things, for the
merger of the Company with and into Merger Corp. (the "Merger"), upon the terms
and subject to the conditions thereof.
WHEREAS, as a condition to Mutual's willingness to enter into the
Merger Agreement, Mutual has requested that the Company agree, and the Company
has so agreed, to grant to Mutual an option with respect to certain shares of
the Company's common stock, par value $1.00 ("Common Stock"), on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, to induce Mutual to enter into the Merger Agreement,
and in consideration of the mutual covenants and agreements set forth herein and
in the Merger Agreement, the parties hereto agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions set
forth herein, the Company hereby grants to Mutual an irrevocable option (the
"Option") to purchase up to 1,708,675 shares of Common Stock (subject to
adjustment as set forth in Section 9 of this Agreement) (the "Option Shares") at
a per share purchase price of $9.0375 (subject to adjustment as set forth in
Section 9 of this Agreement) (the "Exercise Price"); provided, however, that in
no event shall the number of shares for which the Option is exercisable exceed
19.9% of the issued and outstanding shares of Common Stock without giving effect
to any shares subject to or issued pursuant to the Option.
2. EXERCISE OF OPTION. (a) Conditions to Exercise. If the
Merger Agreement has not been terminated by the Company pursuant to Section
8.1(c) thereof, Mutual may exercise the Option, in whole or in part, at any time
and from time to time, if, but only if both a Triggering Event (as defined
below) and an Exercise Event (as defined below) shall have occurred prior to the
occurrence of an Exercise Termination Event (as defined below). Each of the
following shall be an "Exercise Termination Event": (i) the Effective Time of
the Merger, (ii) termination of the Merger Agreement in accordance with the
provisions thereof if such termination occurs prior to the occurrence of a
Triggering Event; or (iii) the passage of 12 months after termination of the
Merger Agreement if such termination follows the occurrence of a Triggering
Event, provided that if a Triggering Event continues or occurs beyond such
termination, the Exercise Termination Event shall be 12 months from the
occurrence of the Last Triggering Event but in no event more than 18 months
after the First Triggering Event. The "Last Triggering Event" shall mean the
latest Triggering Event to occur. The "First Triggering Event" shall mean the
first Triggering Event to occur. Mutual's rights under Section 6 shall not
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terminate upon expiration of the right to exercise the Option pursuant to this
Section 2, but shall continue until such rights may otherwise terminate in
accordance with the terms of Section 6. Any date Mutual exercises its rights
under Section 6 shall be referred to herein as an "Election Date."
Notwithstanding the expiration of the Option, Mutual shall be entitled to
purchase those Option Shares with respect to which it has exercised the Option
in accordance with the terms hereof prior to the occurrence of an Exercise
Termination Event. Any purchase of shares upon exercise of the Option shall be
subject to compliance with applicable law, including the Home Owners' Loan Act
of 1933 and the Regulations of the Office of Thrift Supervision ("OTS")
promulgated thereunder (together, "HOLA").
(b) Triggering Event. The term "Triggering
Event" shall mean any of the following events or transactions occurring after
the date hereof:
(i) The Company or its wholly-owned
subsidiary, First Northern Savings Bank, SA, a state chartered savings
and loan association ("Bank"), without having received Mutual's prior
written consent, shall have entered into an agreement to engage in an
Acquisition Transaction (as hereinafter defined) with any person (the
term "person" for purposes of this Agreement shall have the meaning
assigned thereto in Sections 3(a)(9) and 13(d)(3) of the Exchange Act,
and the rules and regulations thereunder) other than Mutual or any of
its affiliates, or the Board of Directors of the Company shall have
recommended that the shareholders of the Company approve or accept any
Acquisition Transaction other than as contemplated by the Merger
Agreement. For purposes of this Agreement, "Acquisition Transaction"
shall mean (x) a merger, consolidation, share exchange, or similar
business combination transaction, involving the Company or Bank, (y) a
purchase, lease or other acquisition of 10% or more of the assets of
the Company or Bank, or (z) a purchase or other acquisition (including
by way of merger, consolidation, share exchange or otherwise) of
securities representing 10% or more of the voting power of the Company
or Bank.
(ii) Any person other than Mutual or an
affiliate of Mutual shall have acquired beneficial ownership or the
right to acquire beneficial ownership of, or commenced a tender offer
or exchange offer for, 10% or more of the outstanding shares of Common
Stock (the term "beneficial ownership" for purposes of this Agreement
having the meaning assigned thereto in Section 13(d) of the Exchange
Act, and the rules and regulations thereunder);
(iii) Any person other than Mutual or an
affiliate of Mutual shall have made a bona fide proposal to the Company
or Bank by public announcement or written communication that is or
becomes the subject of public disclosure to engage in an Acquisition
Transaction;
(iv) After a proposal is made by a third
party to the Company or Bank to engage in an Acquisition Transaction,
the Company shall have breached any covenant or obligation contained in
the Merger Agreement and such breach (x) would
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entitle Mutual to terminate the Merger Agreement and (y) shall not have
been cured prior to the Notice Date (as defined below); or
(v) Any person other than Mutual or an
affiliate of Mutual, other than in connection with a transaction to
which Mutual has given its prior written consent, shall have filed an
application or notice with the OTS or the Federal Deposit Insurance
Corporation ("FDIC") or other federal or state bank regulatory
authority, which application or notice has been accepted for
processing, for approval to engage in an Acquisition Transaction.
(c) Exercise Event. The term "Exercise Event"
shall mean either of the following events or transactions occurring after the
date hereof:
(i) The acquisition by any person of
beneficial ownership of 20% or more of the then outstanding Common
Stock without giving effect to any shares subject to or issued pursuant
to the Option; or
(ii) The occurrence of the Triggering
Event described in clause (i) of subsection (b) of this Section 2,
except that the percentage referred to in clause (z) shall be 20%.
(d) Notice by Company of Triggering and Exercise
Events. The Company shall notify Mutual promptly in writing of the occurrence of
any Triggering Event or Exercise Event, it being understood that the giving of
such notice by the Company shall not be a condition to the right of Mutual to
exercise the Option.
(e) Exercise Procedures and Closing. In the
event Mutual wishes to exercise the Option, it shall send to the Company a
written notice (the date of which being herein referred to as the "Notice Date")
specifying (i) the total number of Option Shares it intends to purchase pursuant
to such exercise and (ii) a place and date not earlier than three business days
nor later than 30 business days from the Notice Date for the closing of such
purchase (the "Closing Date"); provided that, if the closing of the purchase and
sale pursuant to the Option (the "Closing") cannot be consummated by reason of
any applicable judgment, decree, order, law or regulation, the period of time
that otherwise would run pursuant to this sentence shall run instead from the
date on which such restriction or consummation has expired or been terminated;
and provided further, without limiting the foregoing, that if prior notification
to or approval of the OTS, the FDIC or any other regulatory authority is
required in connection with such purchase, Mutual shall promptly file the
required notice or application for approval and shall expeditiously process the
same (and the Company shall fully cooperate with Mutual in the filing of any
such notice or application and the obtaining of any such approval), and the
period of time that otherwise would run pursuant to this sentence shall run
instead from the date on which, as the case may be, (i) any required
notification period has expired or been terminated or (ii) such approval has
been obtained, and in either event, any requisite waiting period has passed.
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(f) Termination of Exercise Election.
Notwithstanding Section 2(e), in no event shall any Closing Date be more than 18
months after the related Notice Date, and if the Closing Date shall not have
occurred within 18 months after the related Notice Date due to the failure to
obtain any such required approval, the exercise of the Option effected on the
Notice Date shall be deemed to have expired. In the event (i) Mutual receives
official notice that an approval of the OTS, the FDIC or any other regulatory
authority required for the purchase of Option Shares would not be issued or
granted or (ii) a Closing Date shall not have occurred within 18 months after
the related Notice Date due to the failure to obtain any such required approval,
Mutual shall be entitled to exercise its rights as set forth in Section 6 or to
exercise the Option in connection with the resale of Common Stock or other
securities pursuant to a registration statement as provided in Section 7.
3. PAYMENT AND DELIVERY OF CERTIFICATES. (a) Payment of
Exercise Price. On each Closing Date, Mutual shall pay to the Company in
immediately available funds by wire transfer to a bank account designated by the
Company an amount equal to the Exercise Price multiplied by the number of Option
Shares to be purchased on such Closing Date.
(b) Issuance of Certificates. At each Closing,
simultaneously with the delivery of immediately available funds as provided in
Section 3(a), the Company shall deliver to Mutual a certificate or certificates
representing the Option Shares to be purchased at such Closing, which Option
Shares shall be free and clear of all liens, claims, charges and encumbrances of
any kind whatsoever, except as provided by Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law ("WBCL"), and Mutual shall deliver to the
Company a letter, in customary form, agreeing that Mutual shall not offer to
sell or otherwise dispose of such Option Shares in violation of applicable law
or the provisions of this Agreement.
(c) Certificate Legend. Certificates for the
Option Shares delivered at each Closing shall be endorsed with a restrictive
legend which shall read substantially as follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND PURSUANT TO THE TERMS OF A STOCK OPTION
AGREEMENT DATED AS OF FEBRUARY 21, 2000. A COPY OF SUCH
AGREEMENT WILL BE PROVIDED TO THE HOLDER HEREOF WITHOUT CHARGE
UPON RECEIPT BY SELLER OR A WRITTEN REQUEST THEREFOR.
It is understood and agreed that the above legend shall be removed by delivery
of substitute certificate(s) without such legend if Mutual shall have delivered
to the Company a copy of a letter from the staff of the SEC, or an opinion of
counsel in form and substance reasonably satisfactory to the Company and its
counsel, to the effect that such legend is not required for purposes of the
Securities Act.
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4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to Mutual that:
(a) Corporate Status and Authority. The Company
is a corporation duly organized, validly existing and in active status under the
laws of the State of Wisconsin and has the corporate power and authority to
enter into this Agreement, and subject to any regulatory approvals referred to
herein (and, with respect to Section 6 of this Agreement only, to the provisions
of Section 180.0640 of the WBCL, if applicable), to consummate the transactions
contemplated hereby.
(b) Due Authorization. The execution and
delivery of this Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company and no other corporate proceedings
on the part of the Company are necessary to authorize this Agreement or any of
the transactions contemplated hereby.
(c) Enforceability. This Agreement has been
duly executed and delivered by the Company, constitutes a valid and binding
obligation of the Company and, assuming this Agreement constitutes a valid and
binding obligation of Mutual, is enforceable against the Company in accordance
with its terms.
(d) Authority and Validity of Option Shares.
The Company has taken all necessary corporate action to authorize and reserve
for issuance and to permit it to issue, upon exercise of the Option, and at all
times from the date hereof through the expiration of the Option will have
reserved, authorized and unissued shares of Common Stock equal to the number of
outstanding Option Shares as adjusted pursuant to Section 9 hereof, all of
which, upon their issuance and delivery in accordance with the terms of this
Agreement, will be validly issued, fully paid and nonassessable, except as
provided in Section 180.0622(2)(b) of the WBCL.
(e) Absence of Liens on Option Shares. Upon
delivery of the Option Shares to Mutual upon the exercise of the Option, Mutual
will acquire the Option Shares free and clear of all claims, liens, charges,
encumbrances and security interests of any nature whatsoever.
(f) No Conflict. The execution and delivery of
this Agreement by the Company does not, and the consummation by the Company of
the transactions contemplated hereby will not, violate, conflict with, or result
in a breach of any provision of, or constitute a default (with or without notice
or lapse of time, or both) under, or result in the termination of, or accelerate
the performance required by, or result in a right of termination, cancellation,
or acceleration of any obligation or the loss of a material benefit under or the
creation of a lien, pledge, security interest or other encumbrance on assets
(any such conflict, violation, default, right of termination, cancellation or
acceleration, loss or creation, a "Violation") of the Company or any of its
Subsidiaries, which Violation would have a Material Adverse Effect on the
Company or Mutual.
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5. REPRESENTATIONS AND WARRANTIES OF MUTUAL. Mutual represents
and warrants to the Company that:
(a) Corporate Status and Authority. Mutual is a
mutual savings bank duly organized, validly existing and in good standing under
Chapter 214 of the Wisconsin Statutes and has the corporate power and authority
to enter into this Agreement and to carry out its obligations hereunder.
(b) Due Authorization. The execution and
delivery of this Agreement by Mutual and the consummation by Mutual of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Mutual and no other corporate proceedings on the
part of Mutual are necessary to authorize this Agreement or any of the
transactions contemplated hereby.
(c) Enforceability. This Agreement has been
duly executed and delivered by Mutual and constitutes a valid and binding
obligation of Mutual, and, assuming this Agreement constitutes a valid and
binding obligation of the Company, is enforceable against Mutual in accordance
with its terms.
6. TERMINATION ELECTION BY MUTUAL.
(a) Termination Fee. At the request of Mutual
at any time (i) commencing upon the first occurrence of an Exercise Event and
ending upon the occurrence of an Exercise Termination Event or (ii) prior to or
on the 30th business day following the occurrence of either of the events set
forth in clauses (i) and (ii) of Section 2(f), the right to exercise the Option
pursuant to Section 2 hereof, to the extent not exercised, shall terminate and
the Company (or any successor entity thereof) shall pay to Mutual the
Termination Fee. The Termination Fee (the "Termination Fee") shall be equal to
the excess, if any, of (x) the Applicable Price (as defined below) for each
share of Common Stock over (y) the Exercise Price, multiplied by the number of
Option Shares with respect to which the Option has not been exercised and, where
the Option has been exercised, in whole or in part, but the Closing Date has not
occurred, the number of Option Shares which would have been distributed at the
Closing Date. However, in no event shall the Termination Fee exceed $12.0
million.
(b) Payment of Termination Fee. If Mutual
exercises its rights under this Section 6, the Company shall, within 20 business
days after such Election Date, pay the Termination Fee to Mutual in immediately
available funds, and, as of the date of and upon such payment, the right to
exercise the Option pursuant to Section 2 hereof shall terminate.
Notwithstanding the foregoing, to the extent that prior notification to or
approval of the OTS, the FDIC or other regulatory authority is required in
connection with the payment of all or any portion of the Termination Fee, the
Company shall deliver from time to time that portion of the Termination Fee that
it is not then so prohibited from paying and shall promptly file the required
notice or application for approval and shall expeditiously process the same (and
Mutual shall cooperate with the Company in the filing of any such notice or
application and the obtaining of
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any such approval), and the period of time that otherwise would run pursuant to
the preceding sentence for the payment of the portion of the Termination Fee
requiring such notification or approval shall run instead from the date on
which, as the case may be, (i) any required notification period has expired or
been terminated or (ii) such approval has been obtained and, in either event,
any requisite waiting period shall have expired. If the OTS, the FDIC or any
other regulatory authority prohibits payment of any part of the Terminate Fee,
the Company shall promptly give notice of such fact to Mutual and Mutual shall
thereafter have the right to exercise the Option as to the number of Option
Shares for which the Option was exercisable at such Election Date less the
number of shares as to which a Termination Fee has been delivered pursuant to
Section 6(a); provided that, if the Option shall have expired pursuant to
Section 2 hereof prior to the date of such notice or shall be scheduled to
expire at any time before the expiration of a period ending on the thirtieth
(30th) business day after such date, Mutual shall nonetheless have the right so
to exercise the Option pursuant to Section 2 hereof until the expiration of such
period of 30 business days.
(c) Applicable Price. For purposes of this
Agreement, the "Applicable Price" means the highest of (i) the highest price per
share at which a tender or exchange offer has been made for shares of Common
Stock after the date of this Agreement and on or prior to such Election Date,
(ii) the price per share to be paid by any third party for shares of Common
Stock or the consideration per share to be received by holders of Common Stock,
in each case pursuant to an agreement for a merger or other business combination
transaction with the Company entered into on or prior to such Election Date or
(iii) the highest bid price per share as quoted on the NASDAQ/NMS (or, if the
shares of Common Stock are no longer quoted thereon, on the principal trading
market on which such shares are traded as reported by a recognized source)
during the 30 business days preceding such Election Date. If the consideration
to be offered, paid or received pursuant to either of the foregoing clauses (i)
or (ii) shall be other than in cash, the value of such consideration shall be
determined in good faith by an investment banking firm selected by Mutual and
reasonably acceptable to the Company, which determination shall be conclusive
for all purposes of this Agreement.
7. REGISTRATION RIGHTS. The Company shall, if requested by
Mutual at any time and from time to time (a) within three years of the first
exercise of the Option or (b) for 30 business days following the occurrence of
either of the events set forth in clauses (i) and (ii) of Section 2(f) or
receipt by Mutual of official notice that an approval of the OTS, the FDIC or
any other regulatory authority required to complete the transactions
contemplated by Section 6 hereof would not be issued or granted, as
expeditiously as possible prepare and file up to two registration statements
under the Securities Act if such registration is necessary in order to permit
the sale or other disposition of any or all shares of Common Stock or other
securities that have been acquired by or are issuable to Mutual upon exercise of
the Option in accordance with the intended method of sale or other disposition
stated by Mutual, including a "shelf" registration statement under Rule 415
under the Securities Act or any successor provision, and the Company shall use
its best efforts to qualify such shares or other securities under any applicable
state securities laws. Mutual agrees to use all reasonable efforts to cause, and
to cause any underwriters of any sale or other disposition to cause, any sale or
other disposition pursuant to
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such registration statement to be effected on a widely distributed basis so that
upon consummation thereof no purchaser or transferee shall own beneficially 5%
or more of the then outstanding voting power of the Company. The Company shall
use all reasonable efforts to cause each such registration statement to become
effective, to obtain all consents or waivers of other parties which are required
therefor and to keep such registration statement effective for such period not
in excess of 120 days from the day such registration statement first becomes
effective as may be reasonably necessary to effect such sale or other
disposition. In the event that Mutual requests the Company to file a
registration statement following the failure to obtain a required approval for
an exercise of the Option as described in Section 2(f), the closing of the sale
or other disposition of Common Stock or other securities pursuant to such
registration statement shall occur substantially simultaneously with the
exercise of the Option. The obligations of the Company hereunder to file a
registration statement and to maintain its effectiveness may be suspended for
one or more periods of time not exceeding 90 days in the aggregate if the Board
of Directors of the Company shall have determined that the filing of such
registration statement or the maintenance of its effectiveness would require
disclosure of nonpublic information that would materially and adversely affect
the Company, provided that the option/exercise period shall be extended during
any such period. Any registration statement prepared and filed under this
Section 7, and any sale covered thereby, shall be at the Company's expense
except for underwriting discounts or commissions, brokers' fees and the fees and
disbursement of Mutual's counsel related thereto. Mutual shall provide all
information reasonably requested by the Company for inclusion in any
registration statement to be filed hereunder. If, during the time periods
referred to in the first sentence of this Section 7, the Company effects a
registration under the Securities Act of Common Stock for its own account or for
any other shareholders of the Company (other than on Form S-4 or Form S-8, or
any successor form), it shall allow Mutual the right to participate in such
registration, and such participation shall not affect the obligation of the
Company to effect two registration statements for Mutual under this Section 7;
provided that, if the managing underwriters of such offering advise the Company
in writing that in their opinion the number of shares of Common Stock requested
to be included in such registration exceeds the number which can be sold in such
offering, the Company shall include the shares requested to be included therein
by Mutual only to the extent permitted by the managing underwriters consistent
with the financing requirements of the Company. In connection with any
registration pursuant to this Section 7, the Company and Mutual shall provide
each other and any underwriter of the offering with customary representations,
warranties, covenants, indemnification and contribution in connection with such
registration.
8. VOTING OF OPTION SHARES. Subject to restrictions imposed
under the WBCL, if any, Mutual shall have the right to vote any Option Shares
acquired by it pursuant to this Agreement in any manner it deems appropriate, as
determined in its sole discretion. Prior to exercise of the Option, Mutual shall
have no rights to vote any shares or have any other rights as a shareholder of
First Northern.
9. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. Without
limitation to any restriction on the Company contained in this Agreement or in
the Merger Agreement, in the
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event of any change in Common Stock by reason of stock dividends, splitups,
mergers (other than the Merger), recapitalizations, combinations, exchange of
shares or the like, or the sale of Common Stock or the grant of any option for
the purchase of Common Stock to anyone other than Mutual, the type and number of
shares or securities subject to the Option, and the Exercise Price provided in
Section 1, shall be adjusted appropriately to restore to Mutual its rights
hereunder, including the right to purchase from the Company (or its successors)
shares of Common Stock representing 19.9% of the outstanding Common Stock,
without giving effect to any shares subject to or issued pursuant to the Option,
for the aggregate price calculated as of the date of this Agreement by
multiplying the number of Option Shares set forth in Section 1 by the per share
Exercise Price set forth in Section 1.
10. OTHER AGREEMENTS OF THE COMPANY. (a) The Company agrees:
(i) that it shall at all times until the termination of this Agreement have
reserved for issuance upon the exercise of the Option that number of authorized
and reserved shares of Common Stock equal to the maximum number of shares of
Common Stock at any time and from time to time issuable hereunder; (ii) that it
will not, by amendment of its articles of incorporation or through
reorganization, consolidation, merger, dissolution or sale of assets, or by any
other voluntary act, avoid or seek to avoid the observance or performance of any
of the covenants, stipulations or conditions to be observed or performed
hereunder by the Company; (iii) promptly to take all action as may from time to
time be required (including complying with all applications, premerger
notification, reporting and waiting period requirements specified in federal or
state law or regulations necessary before the Option may be exercised,
cooperating with Mutual in preparing such applications or notices and providing
such information to each such governmental authority as it may require) in order
to permit Mutual to exercise the Option and the Company duly and effectively to
issue shares of Common Stock pursuant to this Agreement; and (iv) to promptly
take all action provided in this Agreement to protect the rights of Mutual
against dilution.
(b) This Agreement (and the Option granted
hereby) is exchangeable, without expense, at the option of Mutual, upon
presentation and surrender of this Agreement at the principal office of the
Company, for other agreements providing for Options of different denominations
entitling the holder thereof to purchase, on the same terms and subject to the
same conditions as are set forth in this Agreement, in the aggregate the same
number of shares of Common Stock purchasable under this Agreement. The terms
"Agreement" and "Option" as used in this Agreement include any agreements and
related options for which this Agreement (and the Option granted hereby) may be
exchanged. Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this Agreement, and (in the
case of loss, theft or destruction) of reasonably satisfactory indemnification,
and upon surrender and cancellation of this Agreement, if mutilated, the Company
will execute and deliver a new Agreement of like tenor and date. Any such new
Agreement executed and delivered shall constitute a contractual obligation on
the part of the Company which is no greater than the contractual obligations
provided in this Agreement; provided, however, that such obligation shall be
offset by any rights enforceable by anyone with respect to the Agreement so
lost, stolen, destroyed or mutilated.
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11. BINDING EFFECT; ASSIGNMENT; NO THIRD PARTY BENEFICIARIES.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Except as
expressly provided for in this Agreement or the Merger Agreement, neither this
Agreement nor the rights or the obligations of either party hereto are
assignable, except by operation of law, or with the written consent of the other
party. However, upon a Triggering Event, Mutual may freely assign the Option,
and freely assign its rights and obligations under this Agreement. Nothing
contained in this Agreement, express or implied, is intended to confer upon any
person other than the parties hereto and their respective permitted assigns any
rights or remedies of any nature whatsoever by reason of this Agreement. Any
Option Shares sold by Mutual in compliance with the provisions of Section 7
shall, upon consummation of such sale, be free of the restrictions imposed with
respect to such shares by this Agreement.
12. SPECIFIC PERFORMANCE. The parties recognize and agree that
if for any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate or
irreparable harm or injury would be caused for which money damages would not be
an adequate remedy. Accordingly, each party agrees that, in addition to other
remedies, the other party shall be entitled to an injunction restraining any
violation or threatened violation of the provisions of this Agreement. In the
event that any action should be brought in equity to enforce the provisions of
the Agreement, neither party will allege, and each party hereby waives the
defense, that there is adequate remedy at law.
13. ENTIRE AGREEMENT. This Agreement and the Merger Agreement
(including the exhibits and schedules thereto) constitute the entire agreement
among the parties with respect to the subject matter hereof and thereof and
supersede all other prior agreements and understandings, both written and oral,
among the parties or any of them with respect to the subject matter hereof and
thereof.
14. FURTHER ASSURANCES. Each party will execute and deliver
all such further documents and instruments and take all such further action as
may be necessary or in order to consummate the transactions contemplated hereby.
15. VALIDITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
the other provisions of this Agreement, which shall remain in full force and
effect. In the event any court or other competent authority holds any provisions
of this Agreement to be null, void or unenforceable, the parties hereto shall
negotiate in good faith the execution and delivery of an amendment to this
Agreement in order, as nearly as possible, to effectuate, to the extent
permitted by law, the intent of the parties hereto with respect to such
provision and the economic effects thereof. If for any reason such court or
regulatory agency determines that the Option does not permit Mutual to acquire,
or does not require the Company to comply with Section 6 hereof with respect to
the full number of shares of Common Stock as provided in Sections 2 and 6 (as
adjusted pursuant to Section 9), it is the express intention of the Company to
allow Mutual to acquire or require the Company to comply with Section 6 hereof
with respect to such lessor number of shares as may
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be permissible without any amendment or modification hereof. Each party agrees
that, should any court or other competent authority hold any provision of this
Agreement or part hereof to be null, void or unenforceable, or order any party
to take any action inconsistent herewith, or not take any action required
herein, the other party shall not be entitled to specific performance of such
provision or part hereof or to any other remedy, including but not limited to
money damages, for breach hereof or of any other provision of this Agreement or
part hereof as the result of such holding or order.
16. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if (i) delivered personally, or
(ii) sent by reputable overnight courier service, or (iii) telecopied (receipt
electronically confirmed), or (iv) five days after being mailed by registered or
certified mail (return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
A. If to Mutual, to:
Mutual Savings Bank
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
President and Chief Executive Officer
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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B. If to the Company, to:
First Northern Capital Corp.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
17. GOVERNING LAW; CHOICE OF FORUM. This Agreement shall be
governed by and construed in accordance with the laws of the State of Wisconsin
applicable to agreements made and to be performed within such State.
18. INTERPRETATION. When a reference is made in this Agreement
to a Section such reference shall be to a Section of this Agreement unless
otherwise indicated. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation". The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement. Capitalized terms used in this
Agreement which are not specifically defined herein shall have the meanings
ascribed to them in the Merger Agreement.
19. EXPENSES. Except as otherwise expressly provided herein or
in the Merger Agreement or herein, all costs and expenses incurred in connection
with the transactions contemplated by this Agreement shall be paid by the party
incurring such expenses.
20. EXTENSION OF TIME PERIODS. The time periods for exercise
of certain rights under the Agreement shall be extended to the extent necessary
to avoid any liability under Section 16(b) of the Exchange Act by reason of such
exercise.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
MUTUAL SAVINGS BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
President and Chief Executive Officer
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Secretary
FIRST NORTHERN CAPITAL CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
Attest:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, Secretary
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