EXHIBIT 2.3
STOCK OPTION AND TRIGGER PAYMENT AGREEMENT (the
"Agreement"), dated November 13, 1996, between OSB Financial
Corp., a Wisconsin corporation ("Issuer"), and FCB Financial
Corp., a Wisconsin corporation ("Grantee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Grantee and Issuer have entered into an
Agreement and Plan of Merger of even date herewith (the "Merger
Agreement"), which agreement has been executed by the parties
hereto immediately prior to this Stock Option and Trigger
Agreement; and
WHEREAS, as a condition to Grantee's entering into the
Merger Agreement and in consideration therefor, Issuer has agreed
to grant Grantee the Option (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing and
the mutual covenants and agreements set forth herein and in the
Merger Agreement, the parties hereto agree as follows:
1. (a) Issuer hereby grants to Grantee an unconditional,
irrevocable option (the "Option") to purchase, subject to the
terms hereof, up to 230,866 fully paid and nonassessable (except
as otherwise provided by Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law) shares (the "Option Shares") of
Issuer's Common Stock, par value $0.01 per share ("Issuer Common
Stock"), at a price of $24.375 per share (the "Option Price");
PROVIDED, HOWEVER, that in no event shall the number of shares of
Issuer Common Stock for which this Option is exercisable exceed
19.9% of the issued and outstanding shares of Issuer Common Stock
without giving effect to any shares subject to or issued pursuant
to the Option. The number of shares of Issuer Common Stock that
may be received upon the exercise of the Option and the Option
Price are subject to adjustment as herein set forth.
(b) In the event that any additional shares of Issuer
Common Stock are either (i) issued or otherwise become
outstanding after the date of this Agreement (other than pursuant
to this Agreement) or (ii) redeemed, repurchased, retired or
otherwise cease to be outstanding after the date of this
Agreement (such event a "Change in Shares Outstanding Event"),
the number of shares of Issuer Common Stock subject to the Option
shall be increased or decreased, as appropriate, so that, after
such Change in Shares Outstanding Event, such number equals 19.9%
of the number of shares of Issuer Common Stock then issued and
outstanding without giving effect to any shares subject or issued
pursuant to the Option. Nothing contained in this Section 1(b)
or elsewhere in this Agreement shall be deemed to authorize
Issuer to issue or redeem, repurchase, or retire shares of Issuer
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Common Stock or to authorize either the Issuer or the Grantee
otherwise to breach any provision of the Merger Agreement.
(c) The Option Price shall be payable, at the option
of the Grantee, as follows:
(i) in cash, or
(ii) subject to the receipt of all approvals of
any Governmental Entity required for the Issuer to acquire, and
Grantee to issue, the Grantee Shares (as defined below) from
Grantee, in shares of common stock, $0.01 par value, of Grantee
("Grantee Shares"),
in either case in accordance with Section 4 hereof.
(d) As used in this Agreement, the "Fair Market Value"
of any share shall be the average of the last sales price for
such share on The Nasdaq Stock Market during the ten trading days
prior to the fifth trading day preceding the date such Fair
Market Value is to be determined.
2. (a) The Option may be exercised by Grantee, in whole
or in part, at any time or from time to time after the Merger
Agreement becomes terminable by Grantee under circumstances which
could entitle Grantee to a termination fee (as opposed to the
reimbursement of expenses only) under Section 8.3(a) of the
Merger Agreement or Section 8.3(b) of the Merger Agreement
(regardless of whether the Merger Agreement is actually
terminated), any such event by which the Merger Agreement becomes
so terminable by Grantee being referred to herein as a " Trigger
Event."
(b) (i) Issuer shall notify Grantee promptly in
writing of the occurrence of any Trigger Event, it being
understood that the giving of such notice by Issuer shall not be
a condition to the right of Grantee to exercise the Option.
(ii) In the event Grantee wishes to exercise the
Option, Grantee shall deliver to Issuer written notice (an
"Exercise Notice") specifying the total number of Option Shares
it wishes to purchase.
(iii) Upon the giving by Grantee of Issuer of
the Exercise Notice and the tender of the applicable aggregate
Option Price, Grantee, to the extent permitted by law and
Issuer's organizational documents, and provided that the
conditions to Issuer's obligation to issue Option Shares to
Grantee hereunder set forth in Section 3 have been satisfied or
waived, shall be deemed to be the holder of record of the Option
Shares issuable upon such exercise, notwithstanding that the
stock transfer books of Issuer shall then be closed or that
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certificates representing such Option Shares shall not then be
actually delivered to Grantee.
(iv) Each closing of a purchase of Option Shares
(a "Closing") shall occur at a place, on a date, and at a time
designated by Grantee in an Exercise Notice delivered at least
two business days prior to the date of the Closing.
(c) The Option shall terminate upon the earliest to
occur of:
(i) the Effective Time of the Merger;
(ii) the termination of the Merger Agreement
pursuant to Section 8.1 thereof, other than under circumstances
which also constitute a Trigger Event under this Agreement;
(iii) 180 days following any termination of
the Merger Agreement upon or during the continuance of a Trigger
Event (or if, at the expiration of such 180-day period, the
Option cannot be exercised by reason of any applicable judgment,
decree, order, law or regulation, ten business days after such
impediment to exercise shall have been removed or shall have
become final and not subject to appeal, but in no event under
this clause (iii) later than September 30, 1997); and
(iv) payment by Issuer of the Trigger Payment set
forth in Section 5 of this Agreement to Grantee.
(d) Notwithstanding the foregoing, the Option may not
be exercised if (i) Grantee is in material breach of any of its
representations or warranties, or in material breach of any of
its covenants or agreements, contained in this Agreement or in
the Merger Agreement, or (ii) a Trigger Payment has been paid
pursuant to Section 5 of this Agreement or demand therefor has
been made and not withdrawn.
3. The obligation of Issuer to issue Option Shares to
Grantee hereunder is subject to the conditions that
(a) the Option Shares, and any Grantee Shares which
are issued in payment of the Option Price, shall have been
approved for listing on The Nasdaq Stock Market;
(b) all consents, approvals, orders or authorizations
of, or registrations, declarations or filings with, any federal,
state or local administrative agency or commission or other
federal, state or local Governmental Entity, if any, required in
connection with the issuance by Issuer and the acquisition by
Grantee of the Option Shares hereunder shall have been obtained
or made; and
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(c) no preliminary or permanent injunction or other
order by any court of competent jurisdiction prohibiting or
otherwise restraining such issuance shall be in effect.
The condition set forth in paragraph (a) above may be waived by
Issuer, in the case of Grantee Shares, and by Grantee, in the
case of Option Shares, in the sole discretion of the waiving
party.
4. At any Closing,
(a) Issuer shall deliver to Grantee or its designee a
single certificate in definitive form representing the number of
Option Shares designated by Grantee in its Exercise Notice, such
certificate to be registered in the name of Grantee and to bear
the legend set forth in Section 13; and
(b) Grantee shall deliver to issuer the aggregate
price for the Option Shares so designated and being purchased by
(i) wire transfer of immediately available funds
or certified check or bank check, or
(ii) subject to the condition in Section 1(c)(ii),
delivery of a certificate or certificates representing the number
of Grantee Shares being issued by Grantee in consideration
thereof, determined in accordance with Section 4(c).
(c) In the event that Grantee issues Grantee Shares to
Issuer in consideration of Option Shares pursuant to Section
4(b)(ii), the number of Grantee Shares to be so issued shall be
equal to the quotient obtained by dividing:
(i) the product of (x) the number of Option
Shares with respect to which the Option is being exercised and
(y) the Option Price, by
(ii) the Fair Market Value of the Grantee Shares
as of the date immediately preceding the date the Exercise Notice
is delivered to Issuer.
(d) Issuer shall pay all expenses, and any and all
federal, state and local taxes and other charges that may be
payable in connection with the preparation, issue and delivery of
stock certificates under this Section 4.
5. (a) Subject to the provisions of Section 8.3(d) of the
Merger Agreement, if a Trigger Event shall have occurred and any
regulatory approval or order required for the issuance by Issuer,
or the acquisition by Grantee, of the Option or the Option Shares
upon exercise of the Option shall not have been obtained, Grantee
shall have the right to receive, and Issuer shall pay to Grantee,
an amount (the "Trigger Payment") equal to the product of
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(i) the maximum number of Option Shares that
would have been subject to purchases by Grantee upon exercise of
the Option pursuant to Sections 1 and 2 hereof if all such
regulatory approvals or orders had been obtained, and
(ii) the difference between (A) the Market/Offer
Price (as defined herein), determined as of the date on which
notice of demand for the Trigger Payment is given by Grantee, and
(B) the Option Price (but only if such Market/Offer Price is
higher than such Option Price).
Demand for the Trigger Payment shall be given by notice in
accordance with the provisions of Section 17 hereof. The Trigger
Payment shall be paid to Grantee by Issuer on the Payment Date
(as defined herein), by wire transfer or immediately available
funds to an account to be designated in writing by Grantee not
less than two business days before the Payment Date.
(b) For purposes of this Section 5, "Payment Date"
means the date on which termination fees are required to be paid
by Issuer to Grantee under Sections 8.3(a) or 8.3(b), as the case
may be, of the Merger Agreement as a result of the occurrence of
the Trigger Event referred to in subsection (a) of this Section 5
or such later date as Grantee shall specify with two business
days prior written notice to Issuer.
(c) Issuer shall have no obligation to pay the Trigger
Payment if Grantee is in material breach of any of its
representations or warranties, or in material breach of any of
its covenants or agreements, contained in this Agreement or in
the Merger Agreement.
6. Issuer represents and warrants to Grantee that
(a) Issuer has the corporate power and authority to
enter into this Agreement and to carry out its obligations
hereunder, subject in the case of the repurchase of the Option
Shares pursuant to Section 8(a) to applicable law;
(b) this Agreement has been duly and validly executed
and delivered by Issuer, and, assuming the due authorization,
execution and delivery hereof by Grantee and the receipt of all
required regulatory approvals, constitutes a valid and binding
obligation of Issuer, enforceable against Issuer in accordance
with its terms;
(c) Issuer 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,
the number of authorized and unissued Option Shares, such amount
being subject to adjustment as provided in Sections 1 and 12, all
of which, upon their issuance and delivery in accordance with the
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terms of this Agreement, will be duly authorized, validly issued,
fully paid and nonassessable (except as otherwise provided by
Section 180.0622(2)(b) of the Wisconsin Business Corporation
Law);
(d) upon delivery of the Option Shares to Grantee upon
the exercise of the Option, Grantee will acquire the Option
Shares free and clear of all claims, liens, charges, encumbrances
and security interests of any nature whatsoever;
(e) except as described in Section 3.4 of the Merger
Agreement, the execution and delivery of this Agreement by Issuer
does not, and, subject to compliance with applicable law with
respect to the repurchase of the Option Shares pursuant to
Section 8(a), the consummation by Issuer 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 a 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, acceleration, loss or
creation, hereinafter a "Violation") of Issuer or any of its
Subsidiaries, pursuant to
(i) any provision of the Articles of
Incorporation or the Bylaws of Issuer,
(ii) any provisions of any material loan or credit
agreement, note, mortgage, indenture, lease, benefit plan or
other agreement, obligation, instrument, permit, concession,
franchise or license (any of the foregoing in effect on the date
hereof being referred to as a "Material Contract") of Issuer or
its Subsidiaries or to which any of them is a party, or
(iii) any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Issuer or its
properties or assets,
which Violation, in the case of each clauses (ii) and (iii),
could reasonably be expected to have a Material Adverse Effect on
Issuer (except that no representation or warranty is given
concerning any Violation of a Material Contract with respect to
the repurchase of Option Shares pursuant to Section 8(a));
(f) except as described in Section 3.4 of the Merger
Agreement, the execution and delivery of this Agreement by Issuer
does not, and the performance of this Agreement by Issuer will
not, require any consent, approval, authorization or permit of,
filing with or notification to, any Governmental Entity;
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(g) none of Issuer, any of its affiliates or anyone
acting on its or their behalf, has issued, sold or offered any
security of Issuer to any person under circumstances that would
cause the issuance and sale of the Option Shares, as contemplated
by this Agreement, to be subject to the registration requirements
of the Securities Act of 1933, as amended (the "Securities Act"),
as in effect on the date hereof, and, assuming the
representations and warranties of Grantee contained in Section
7(g) are true and correct, the issuance, sale and delivery of the
Option Shares hereunder would be exempt from the registration and
prospectus delivery requirements of the Securities Act, as in
effect on the date hereof (and Issuer shall not take any action
which would cause the issuance, sale, and delivery of the Option
Shares hereunder not to be exempt from such requirements); and
(h) any Grantee Shares acquired pursuant to this
Agreement will be acquired for Issuer's own account, for
investment purposes only, and will not be acquired by Issuer with
a view to the public distribution thereof in violation of any
applicable provision of the Securities Act.
7. Grantee represents and warrants to Issuer that
(a) Grantee has the corporate power and authority to
enter into this Agreement and to carry out its obligations
hereunder;
(b) this Agreement has been duly and validly executed
and delivered by Grantee and, assuming the due authorization,
execution and delivery hereof by Issuer and the receipt of all
required regulatory approvals, constitutes a valid and binding
obligation of Grantee, enforceable against Grantee in accordance
with its respective terms;
(c) prior to any delivery of Grantee Shares in
consideration of the purchase of Option Shares pursuant hereto,
Grantee will have taken all necessary corporate action to
authorize for issuance and to permit it to issue such Grantee
Shares, all of which, upon their issuance and delivery in
accordance with the terms of this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable (except
as otherwise provided in Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law);
(d) upon any delivery of such Grantee Shares to Issuer
in consideration of the purchase of the Option Shares pursuant
hereto, Issuer will acquire the Grantee Shares free and clear of
all claims, liens, charges, encumbrances and security interests
of any nature whatsoever;
(e) except as described in Section 3.4 of the Merger
Agreement, the execution and delivery of this Agreement by
Grantee does not, and the consummation by Grantee of the
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transactions contemplated hereby will not, violate, conflict
with, or result in the breach of any provision of, or constitute
a default (with or without notice or a lapse of time, or both)
under, or result in any Violation by Grantee or any of its
Subsidiaries, pursuant to
(i) any provision of the Articles of
Incorporation or Bylaws of Grantee,
(ii) any Material Contract of Grantee or any of
its Subsidiaries or to which any of them is a party, or
(iii) any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Grantee or its
properties or assets,
which Violation, in the case of each of clauses (ii) or (iii),
would have a Material Adverse Effect on Grantee;
(f) except as described in Section 3.4 of the Merger
Agreement, the execution and delivery of this Agreement by
Grantee does not, and the consummation by Grantee of the
transactions contemplated hereby will not, require any consent,
approval, authorization or permit of, filing with or notification
to, any Governmental Entity; and
(g) any Option Shares acquired upon exercise of the
Option will be acquired for Grantee's own account, for investment
purposes only and will not be, and the Option is not being,
acquired by Grantee with a view to the public distribution
thereof, in violation of any applicable provision of the
Securities Act.
8. (a) At the request of Grantee by written notice (x) at
any time during which the Option is exercisable pursuant to
Section 2 (the "Repurchase Period"), Issuer (or any successor
entity thereof) shall, if permitted by applicable law, the
Articles of Incorporation and Bylaws of the Issuer and Issuer's
Material Contracts, repurchase from Grantee all or any portion of
the Option, at the price set forth in subparagraph (i) below, or,
(y) at any time prior to September 30, 1997, Issuer (or any
successor entity thereof) shall, if permitted by applicable law,
the Articles of Incorporation and Bylaws of Issuer and Issuer's
Material Contracts, repurchase from Grantee all or any portion of
the Option Shares purchased by Grantee pursuant to the Option, at
the price set forth in subparagraph (ii) below:
(i) (A) The difference between the "Market/Offer
Price" (as defined below) for shares of Issuer Common Stock as of
the date Grantee gives notice of its intent to exercise its
rights under this Section 8 and the Option Price, multiplied by
the number of Option Shares purchasable pursuant to the Option
(or portion thereof with respect to which Grantee is exercising
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its rights under this Section 8), but only if the Market/Offer
Price is greater than the Option Price.
(B) For purposes of this Agreement,
"Market/Offer Price" shall mean, as of any date, the higher of
(I) the price per share offered as of such date pursuant to any
tender or exchange offer or other offer with respect to a
Business Combination involving Issuer as the Target Party which
was made prior to such date and not terminated or withdrawn as of
such date and (II) the Fair Market Value per share of Issuer
Common Stock as of such date.
(ii) (A) The product of (I) the sum of (a) the
Option Price paid by Grantee per Option Share acquired pursuant
to the Option, and (b) the difference between the "Offer Price"
(as defined below) and the Option Price, but only if the Offer
Price is greater than the Option Price, and (II) the number of
Option Shares so to be repurchased pursuant to this Section 8.
(B) For purposes of this clause (ii), the
"Offer Price" shall be the highest price per share offered
pursuant to a tender or exchange offer or other Business
Combination offer involving Issuer as the Target Party during the
Repurchase Period prior to the delivery by Grantee of a notice of
repurchase.
(b) If Grantee shall have previously elected to
purchase Option Shares pursuant to the exercise of the Option by
the issuance and delivery of Grantee Shares, then Issuer shall,
if so requested by Grantee, in fulfillment of its obligation
pursuant to Section 8(a)(y) (that is, with respect to the Option
Price only and without limitation to its obligation to pay
additional consideration under clause (b) of Section
8(a)(ii)(A)(I)), redeliver the certificates for such Grantee
Shares to Grantee, free and clear of all liens, claims, charges
and encumbrances of any kind or nature whatsoever; PROVIDED,
HOWEVER, that if at any time less than all of the Option Shares
so purchased by Grantee pursuant to the Option are to be
repurchased by Issuer pursuant to Section 8(a)(y), then (i)
Issuer shall be obligated to redeliver to Grantee the same
proportion of such Grantee Shares as the number of Option Shares
that Issuer is then obligated to repurchase bears to the number
of Option Shares acquired by Grantee upon exercise of the Option
and (ii) Grantee shall issue to Issuer new certificates
representing those Grantee Shares which are not due to be
redelivered to Grantee pursuant to this Section 8(b) to the
extent that excess Grantee Shares are included in the
certificates redelivered to Grantee by Issuer.
(c) In the event Grantee exercises its rights under
this Section 8, Issuer shall, within ten business days
thereafter, pay the required amount to Grantee in immediately
available funds and Grantee shall surrender to Issuer the Option
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or the certificate or certificates evidencing the Option Shares
purchased by Grantee pursuant hereto, and Grantee shall warrant
that it owns the Option or such shares and that the Option or
such shares are then free and clear of all liens, claims,
damages, charges and encumbrances of any kind or nature
whatsoever.
(d) If Grantee has elected to purchase Option shares
pursuant to the exercise of the Option by the issuance and
delivery of Grantee Shares, notwithstanding that Grantee may no
longer hold any such Option Shares or that Grantee elects not to
exercise its other rights under this Section 8, Grantee may
require, at any time or from time to time prior to September 30,
1997, Issuer to sell to Grantee any such Grantee Shares at the
price attributed to such Grantee Shares pursuant to Section 4
plus interest at the publicly announced prime rate as published
in the Wall Street Journal (Midwest Edition) on such amount from
the Closing Date relating to the exchange of such Grantee shares
pursuant to Section 4 to the Closing Date under this Section 8(d)
less any dividends on such Grantee Shares paid during such period
or declared and payable to shareholders of record on a date
during such period.
(e) In the event the repurchase price specified in
Section 8(a) would subject the purchase of the Option or the
Option Shares purchased by Grantee pursuant to the Option to a
vote of the shareholders of Issuer pursuant to applicable law or
the Articles of Incorporation of Issuer, then Grantee may, at its
election, reduce the repurchase price to an amount which would
permit such repurchase without the necessity for such a
shareholder vote.
9. Following the date hereof and prior to the fifth
anniversary of the date hereof (the "Expiration Date"), each
party shall vote any shares of capital stock of the other party
acquired by such party pursuant to this Agreement ("Restricted
Shares"), including any Grantee Shares issued pursuant to Section
1(c), or otherwise beneficially owned (within the meaning of Rule
13d-3 promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), by such party on each matter
submitted to a vote of shareholders of such other party for and
against such matter in the same proportion as the vote of all
other shareholders of such other party are voted (whether by
proxy or otherwise) for and against such matter.
10. (a) Prior to the Expiration Date, neither party shall,
directly or indirectly, sell, assign, pledge, or otherwise
dispose of or transfer any Restricted Shares beneficially owned
by such party, other than (i) pursuant to Section 8, or (ii) in
accordance with Section 10(b) or Section 11.
(b) Following the termination of the Merger Agreement,
a party shall be permitted to sell any Restricted Shares
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beneficially owned by it if such sale is made pursuant to a
tender or exchange offer that has been approved or recommended,
or otherwise determined to be fair to and in the best interests
of the shareholders of the other party, by a majority of the
members of the Board of Directors of such other party, which
majority shall include a majority of directors who were directors
prior to the announcement of such tender or exchange offer.
11. (a) Following the termination of the Merger Agreement,
either party hereto that owns Restricted Shares (a "Designated
Holder") may by written notice (the "Registration Notice") to the
other party (the "Registrant") request the Registrant to register
under the Securities Act all or any part of the Restricted Shares
beneficially owned by such Designated Holder (the "Registrable
Securities") pursuant to a bona fide firm commitment underwritten
public offering, in which the Designated Holder and the
underwriters shall effect as wide a distribution of such
Registrable Securities as is reasonably practicable and shall use
their best efforts to prevent any person (including any Group (as
used in Rule 13d-5 under the Exchange Act)) and its affiliates
from purchasing through such offering Restricted Shares
representing more than 1% of the outstanding shares of common
stock of the Registrant on a fully diluted basis (a "Permitted
Offering").
(b) The Registration Notice shall include a
certificate executed by the Designated Holder and its proposed
managing underwriter, which underwriter shall be an investment
banking firm of recognized standing on a national or regional
basis (the "Manager"), stating that
(i) they have a good faith intention to commence
promptly a Permitted Offering, and
(ii) Manager in good faith believes that, based on
the then-prevailing market conditions, it will be able to sell
the Registrable Securities at a per share price equal to at least
80% of the then Fair Market Value of such shares.
(c) The Registrant (and/or any person designed by the
Registrant) shall thereupon have the option exercisable by
written notice delivered to the Designated Holder within ten
business days after the receipt of the Registration Notice,
irrevocably to agree to purchase all or any part of the
Registrable Securities proposed to be so sold for cash at a price
equal to the product of (i) the number of Registrable Securities
to be so purchased by the Registrant and (ii) the then Fair
Market Value of such shares.
(d) Any purchase of Registrable Securities by the
Registrant (or its designee) under Section 11(c) shall take place
at a closing to be held at the principal executive offices of the
Registrant or at the offices of its counsel at any reasonable
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date and time designated by the Registrant and/or such designee
in such notice within twenty business days after delivery of such
notice, and any payment for the shares to be so purchased shall
be made by delivery at the time of such closing in immediately
available funds.
(e) If the Registrant does not elect to exercise its
option pursuant to this Section 11 with respect to all
Registrable Securities, it shall use its best efforts to effect,
as promptly as practicable, the registration under the Securities
Act of the unpurchased Registrable Securities proposed to be so
sold; PROVIDED, HOWEVER, that
(i) neither party shall be entitled to demand
more than an aggregate of two effective registration statements
hereunder, and
(ii) the Registrant will not be required to file
any such registration statement during any period of time (not to
exceed 40 days after such request in the case of clause (A) below
or 90 days in the case of clauses (B) and (C) below) when
(A) the Registrant is in possession of
material non-public information which it reasonably believes
would be detrimental to be disclosed at such time and, in the
opinion of counsel to the Registrant, such information would be
required to be disclosed if a registration statement were filed
at that time;
(B) the Registrant is required under the
Securities Act to include audited financial statements for any
period in such registration statement and such financial
statements are not yet available for inclusion in such
registration statement; or
(C) the Registrant determines, in its
reasonable judgment, that such registration would interfere with
any financing, acquisition or other material transaction
involving the Registrant or any of its affiliates.
(f) The Registrant shall use its reasonable best
efforts to cause any Registrable Securities registered pursuant
to this Section 11 to be qualified for sale under the securities
or Blue Sky laws of such jurisdictions as the Designated Holder
may reasonably request and shall continue such registration or
qualification in effect in such jurisdiction; PROVIDED, HOWEVER,
that the Registrant shall not be required to qualify to do
business in, or consent to general service of process in, any
jurisdiction by reason of this provision.
(g) The registration rights set forth in this Section
11 are subject to the condition that the Designated Holder shall
provide the Registrant with such information with respect to such
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holder's Registrable Securities, the plans for the distribution
thereof, and such other information with respect to such holder
as, in the reasonable judgment of counsel for the Registrant, is
necessary to enable the Registrant to include in such
registration statement all material facts required to be
disclosed with respect to a registration thereunder.
(h) A registration effected under this Section 11
shall be effected at the Registrant's expense, except for
underwriting discounts and commissions and the fees and the
expenses of counsel to the Designated Holder, and the Registrant
shall provide to the underwriters such documentation (including
certificates, opinions of counsel and "comfort" letters from
auditors) as is customary in connection with underwritten public
offerings as such underwriters may reasonably require.
(i) In connection with any registration effected under
this Section 11, the parties agree
(i) to indemnify each other and the underwriters
in the customary manner,
(ii) to enter into an underwriting agreement in
form and substance customary for transactions of such type with
the Manager and the other underwriters participating in such
offering, and
(iii) to take all further actions which shall
be reasonably necessary to effect such registration and sale
(including if the Manager deems it necessary, participating in
road show presentations).
(j) The Registrant shall be entitled to include (at
its expense) additional shares of its common stock in a
registration effected pursuant to this Section 11 only if and to
the extent the Manager determines that such inclusion will not
adversely affect the prospects for success of such offering.
12. Without limitation to any restriction on Issuer
contained in this Agreement or in the Merger Agreement, in the
event of any change in Issuer Common Stock by reason of stock
dividends, splitups, mergers (other than the Merger),
recapitalizations, combinations, exchange of shares or the like,
the type and number of shares or securities subject to the
Option, and the Option Price provided in Section 1, shall be
adjusted appropriately to restore to Grantee its rights
hereunder, including the right to purchase from Issuer (or its
successors) shares of Issuer Common Stock (or such other shares
or securities into which Issuer Common Stock has been so changed)
for the aggregate Option Price as provided in Section 1.
13. Each certificate representing Option Shares issued to
Grantee hereunder, and Grantee Shares, if any, delivered to
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Issuer at a Closing, shall include a legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND
MAY BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. SUCH
SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS
ON TRANSFER AS SET FORTH IN A STOCK OPTION AND TRIGGER
PAYMENT AGREEMENT, DATED AS OF NOVEMBER 13, 1996, A
COPY OF WHICH MAY BE OBTAINED FROM THE ISSUER UPON
REQUEST.
It is understood and agreed that:
(i) the reference to the resale restrictions of
the Securities Act and state securities or Blue Sky laws in the
above legend shall be removed by delivery of substitute
certificate(s) without such reference if Grantee or Issuer, as
the case may be, shall have delivered to the other party a copy
of a letter from the staff of the Securities and Exchange
Commission, or an opinion of counsel, in form and substance
reasonably satisfactory to the other party, to the effect that
such legend is not required for purposes of the Securities Act or
such laws;
(ii) the reference to the provisions to this
Agreement in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if the shares
have been sold or transferred in compliance with the provisions
of this Agreement and under circumstances that do not require the
retention of such reference; and
(iii) the legend shall be removed in its
entirety if the conditions in the preceding clauses (i) and (ii)
are both satisfied.
In addition, such certificates shall bear any other legend as may
be required by law. Certificates representing shares sold in a
registered public offering pursuant to Section 11 shall not be
required to bear the legend set forth in this Section 13.
14. (a) This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and permitted assigns.
(b) Except as expressly provided for in this
Agreement, neither this Agreement nor the rights or obligations
of either party hereto are assignable, except by operation of
law, or with the written consent of the other party.
225
(c) Nothing contained in this Agreement, express or
implied, is intended to confer upon any person other than the
parties hereto and their respective successors and permitted
assigns any rights or remedies of any nature whatsoever by reason
of this Agreement.
(d) Any Restricted Shares sold by a party in
compliance with the provisions of Section 11 shall, upon
consummation of such sale, be free of the restrictions imposed
with respect to such shares by this Agreement, unless and until
such party shall repurchase or otherwise become the beneficial
owner of such shares, and any transferee of such shares shall not
be entitled to the registration rights of such party.
15. The parties hereto acknowledge that damages would
be an inadequate remedy for a breach of this Agreement by either
party hereto and that the obligations of the parties hereto shall
be enforceable by either party hereto through injunctive or other
equitable relief.
16. If any term, provision, covenant or restriction
contained in this Agreement is held by a court or a federal or
state regulatory agency of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions and
covenants and restrictions contained in this Agreement shall
remain in full force and effect, and shall in no way be affected,
impaired or invalidated. Subject to Section 5, if for any reason
any such court or regulatory agency determines that Grantee is
not permitted to acquire, or Issuer is not permitted to
repurchase pursuant to Section 8, the full number of Option
Shares provided in Section 1 hereof (as the same may be
adjusted), it is the express intention of Issuer to allow Grantee
to acquire or to require Issuer to repurchase such lesser number
of shares as may be permissible without any amendment or
modification hereof.
17. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered
personally, telecopied (with confirmation), mailed by registered
or certified mail (return receipt requested) or delivered by an
express courier (with confirmation) at the respective addresses
of the parties set forth in the Merger Agreement (or at such
other address for a party as shall be specified by like notice).
18. This Agreement shall be governed by and construed
in accordance with the laws of the State of Wisconsin, regardless
of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof.
19. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original,
but all of which shall constitute one and the same agreement.
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20. Except as otherwise expressly provided herein,
each of the parties hereto shall bear and pay all costs and
expenses incurred by it or on its behalf in connection with the
transactions contemplated hereunder, including fees and expenses
of its own financial consultants, investment bankers, accountants
and counsel.
21. Except as otherwise expressly provided herein or
in the Merger Agreement, this Agreement contains the entire
agreement between the parties with respect to the transactions
contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereof, written or oral.
22. This Agreement may be amended by the parties
hereto and the terms and conditions hereof may be waived only by
an instrument in writing signed on behalf of each of the parties
hereto, or, in the case of a waiver, by an instrument signed on
behalf of the party waiving compliance.
23. The time periods for exercises of certain rights
under Sections 2, 5 and 8 shall be extended (but in no event by
more than six months):
(a) to the extent necessary to obtain all regulatory
approvals for the exercise of such rights; and
(b) to the extent necessary to avoid any liability
under Section 16(b) of the Exchange Act by reason of such
exercise.
24. Capitalized terms used in this Agreement and not
defined herein shall have the meanings assigned thereto in the
Merger Agreement.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed on its behalf by its officers thereunto
duly authorized, all as of the date first above written.
FCB FINANCIAL CORP.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
OSB FINANCIAL CORP.
By:/s/ Xxxxx X. Xxxxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxxxx
President and Chief Executive Officer
