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Exhibit 99.3
Option Agreement
Option Agreement, dated as of October 20, 1997 (this "Agreement"), by and
between First Commerce Corporation, a corporation organized under the laws of
the State of Louisiana ("FCC") and BANC ONE CORPORATION, a corporation
organized under the laws of the State of Ohio ("BANC ONE").
W I T N E S S E T H :
WHEREAS, FCC and BANC ONE have executed an Agreement and Plan of Merger dated
as of October 20, 1997 (the "Merger Agreement") providing for the merger of FCC
with and into a subsidiary of BANC ONE, pursuant to which BANC ONE will acquire
FCC;
WHEREAS, Section 22 of the Merger Agreement provides that FCC will execute and
deliver an option agreement, substantially in the form of this Agreement, to
BANC ONE prior to the close of business October 20, 1997;
NOW THEREFORE, in consideration of said Merger Agreement and their mutual
promises and obligations, the parties hereto adopt and make this Agreement as
follows:
1. FCC hereby grants to BANC ONE an irrevocable option (the "Option") to
purchase in accordance with the terms of this Option Agreement for the
sum of $64.00 per share (the "Per Share Price") in cash up to
9,689,000 authorized but unissued shares of FCC Common (the "Optioned
Shares"). The Option shall expire (such event being referred to
herein as the "Option Termination Event") if not exercised as
permitted under this Agreement prior to the earlier of (i) at the time
the merger of FCC with a subsidiary of BANC ONE becomes effective as
set forth and defined in Section 4 of the Merger Agreement (the
"Effective Time"), (ii) BANC ONE or FCC receiving written notice from
the Board of Governors of the Federal Reserve System (the "Board") or
its staff to the effect that the exercise of the Option pursuant to
the terms of this Agreement is not consistent with Section 3 of the
Bank Holding Company Act of 1956, as amended, (iii) termination of the
Merger Agreement by BANC ONE in accordance with the provisions of
Section 26 of the Merger Agreement if such termination occurs (A)
prior to the occurrence of an Initial Triggering Event (as hereinafter
defined) or (B) following the occurrence of an Initial Triggering
Event if, at the time of such termination by BANC ONE, FCC was
entitled to terminate the Merger Agreement in accordance with the
provisions of Section 26 thereof , (iv) the first business day after
the five hundred and forty-eighth calendar day following termination
of the Merger Agreement by BANC ONE in accordance with the provisions
of Section 26 thereof, if such termination follows the occurrence of
an Initial Triggering Event, provided that the Option shall in all
events expire not later than 24 months after such Initial Triggering
Event, (v) termination of the Merger Agreement by FCC in accordance
with the provisions of Section 26 thereof, or (vi) termination of the
Merger Agreement by mutual consent of BANC ONE and FCC. If, in the
case of (iv), the Option is otherwise exercisable but cannot be
exercised
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on such day solely because of any injunction, order or similar
restraint issued by a court of competent jurisdiction, the Option
shall expire on the twentieth business day after such injunction,
order or restraint shall have been dissolved or when such injunction,
order or restraint shall have become permanent and no longer subject
to appeal, as the case may be.
2. Provided that (i) no preliminary or permanent injunction or other
order issued by any Federal or state court of competent jurisdiction
in the United States prohibiting the exercise of the Option or the
delivery of the Optioned Shares shall be in effect and (ii) any such
exercise shall otherwise be subject to compliance with applicable law
and (iii) BANC ONE is not then in material breach of the Merger
Agreement, BANC ONE may exercise the Option, subject to the
limitations herein set forth, in whole or in part at any time or from
time to time after the occurrence of both (and not merely one of) an
Initial Triggering Event and a Purchase Event (as defined in Section 4
of this Agreement) if, but only if, both the Initial Triggering Event
and the Purchase Event shall have occurred prior to the occurrence of
an Option Termination Event. In the event that BANC ONE wishes to
exercise the Option, BANC ONE shall give written notice of such
exercise (the date of such notice being herein called the "Notice
Date") within 30 days following such Purchase Event to FCC specifying
the number of Optioned Shares it will purchase pursuant to such
exercise and a place and date for the closing of such purchase which
date shall be within 45 days following the receipt of the last of any
required regulatory approvals, but in any event, within 365 days of
the Purchase Event, subject to reasonable extensions in order for BANC
ONE to obtain required regulatory approvals.
3. At any closing of the exercise of the Option, (i) BANC ONE will make
payment to FCC of the aggregate price for the Optioned Shares in
immediately available funds, in an amount equal to the product of the
Per Share Price multiplied by the number of Optioned Shares being
purchased at such closing and (ii) FCC will deliver to BANC ONE a duly
executed certificate or certificates representing the number of
Optioned Shares so purchased, registered in the name of BANC ONE or
its nominee in the denominations designated by BANC ONE in its notice
of exercise. Unless counsel for FCC and BANC ONE agree that such
shares are not "restricted shares" under federal and/or state
securities laws, certificates for such shares shall bear a legend to
that effect.
4. For purposes of this Agreement, an "Initial Triggering Event" shall
have occurred at such time as one of the following events shall have
occurred and BANC ONE shall have promptly determined in good faith
(and shall have promptly notified FCC in writing of such
determination) that there is a reasonable likelihood that, as a result
of the occurrence of any of the following events, consummation of the
Merger pursuant to the term of this Merger Agreement is jeopardized:
(i) any person as defined in Sections 3(a)(9) or 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "1934 Act") (other
than BANC ONE or any BANC ONE subsidiary or affiliate) shall have
commenced a bona fide offer to purchase shares of FCC Common such
that, upon consummation of said offer, such person would own or
control 10% or more of the outstanding shares of FCC Common, or shall
have entered into an agreement with FCC, or shall have filed an
application or notice with the Board or any other federal or state
regulatory agency for clearance or approval, to (A) merge or
consolidate or
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enter into any similar transaction, with FCC, (B) purchase, lease or
otherwise acquire all or substantially all of the assets of FCC or (C)
purchase or otherwise acquire (including by way of merger,
consolidation, share exchange or any similar transaction) securities
representing 10% or more of the voting power of FCC; (ii) any person
(other than BANC ONE, any BANC ONE subsidiary or affiliate, any
subsidiary of FCC ("FCC Subsidiary") in a fiduciary capacity) or any
current shareholder of FCC which has beneficial ownership of 10% or
more of the outstanding shares of FCC Common (a "Current 10%
Shareholder") shall have acquired beneficial ownership or the right to
acquire beneficial ownership of 10% or more of the outstanding shares
of FCC Common (the term "beneficial ownership" for purposes of this
Agreement having the meaning assigned thereto in Section 13(d) of the
0000 Xxx) or, in the case of a Current 10% Shareholder, said Current
10% Shareholder shall have acquired beneficial ownership or the right
to acquire beneficial ownership of 10% or more of the outstanding
shares of FCC Common in addition to those beneficially owned as of the
date hereof; (iii) any person (other than BANC ONE or any BANC ONE
subsidiary or affiliate) shall have made a bona fide proposal to FCC
after the date of the Merger Agreement by public announcement or
written communication that is the subject of public disclosure or
regulatory report or filing to (A) acquire FCC by merger,
consolidation, purchase of all or substantially all of its assets or
any other similar transaction, or (B) make an offer described in
clause (i), above; (iv) any person shall have solicited proxies in a
proxy solicitation subject to Regulation 14A under the 1934 Act in
opposition to approval of the Merger Agreement by FCC's shareholders;
or (v) FCC shall have willfully breached any provision of the Merger
Agreement, which breach would entitle BANC ONE to terminate the Merger
Agreement, such breach shall not have been cured pursuant to the terms
of the Merger Agreement and FCC shall not itself be entitled to
terminate the Merger Agreement by reason of a breach thereof by BANC
ONE. For purposes of this Agreement, a "Purchase Event" shall have
occurred at such time as (i) any person (other than BANC ONE or any
BANC ONE subsidiary or affiliate) acquires beneficial ownership of 50%
or more of the then-outstanding shares of FCC Common, or (ii) FCC
enters into an agreement with another person (other than BANC ONE or
any BANC ONE subsidiary) pursuant to which such person is entitled to
acquire 50% or more of the then-outstanding shares of FCC Common.
5. If between the date of the Merger Agreement and the Effective Time,
the shares of FCC Common shall be changed into a different number of
shares by reason of any reclassification, recapitalization, split-up,
combination or exchange of shares, or if a stock dividend thereon
shall be declared with a record date within said period (an "Event"),
the number of Optioned Shares and the Per Share Price shall be
adjusted appropriately so as to restore BANC ONE to its rights
hereunder, including, without limitation, its right to purchase that
number of additional shares (the "Additional Optioned Shares")
representing ownership of the voting power of the capital stock of FCC
(in addition to shares of FCC Common acquired other than pursuant to
any exercise of the Option) so that the ratio of (x) the sum of (A)
the Optioned Shares (including such Additional Optioned Shares, if
any, calculated as a result of one or more earlier Events) plus (B)
the Additional Optioned Shares, over the total number of shares of FCC
Common issued and outstanding after each such Event, shall be equal to
the ratio of (y) the sum of (C) 9,689,000 plus (D) such Additional
Optioned Shares, if any, calculated as a result of one or more earlier
Events, over the total number of shares of FCC Common issued
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and outstanding immediately prior to each such Event, at an adjusted
per share purchase price equal to the Per Share Price multiplied by a
fraction, the numerator of which shall be equal to the number of
shares of FCC Common purchasable prior to the adjustment and the
denominator of which shall be equal to the number of shares of FCC
Common purchasable after the adjustment; provided, however, that
nothing in this Option shall be construed as permitting FCC to take
any action or enter into any transaction prohibited by this Agreement.
6. FCC shall, if requested by BANC ONE, as expeditiously as possible file
a registration statement on a form of general use under the Securities
Act of 1933, as amended, if necessary in order to permit the sale or
other disposition of the shares of FCC Common that have been acquired
upon exercise of the Option in accordance with the intended method of
sale or other disposition requested by BANC ONE. BANC ONE shall
provide all information reasonably requested by FCC for inclusion in
any registration statement to be filed hereunder. FCC will use its
reasonable best efforts to cause such registration statement first to
become effective and then to remain effective for such period not in
excess of two hundred and seventy calendar days from the day such
registration statement first becomes effective as may be reasonably
necessary to effect such sales or other dispositions. The registration
effected under this Section 6 shall be at FCC's expense except for all
filing and agency fees and commissions and underwriting discounts and
commissions attributable to the sale of such securities and fees and
disbursements of BANC ONE's counsel related thereto, which amounts
shall be borne by BANC ONE. In no event shall FCC be required to
effect more than one registration hereunder. The filing of any
registration statement hereunder may be delayed for such period of
time as may reasonably be required if FCC determines that any such
filing or the offering of any such shares of FCC Common would (i)
impede, delay or otherwise interfere with any financing, offer or sale
of FCC Common or any other securities of FCC, or (ii) require
disclosure of material information which, if disclosed at that time,
would be materially harmful to the interests of FCC and its
shareholders. If requested by BANC ONE in connection with any such
registration, FCC will become a party to any underwriting agreement
relating to the sale of such shares, but only to the extent of
obligating itself in respect of representations, warranties,
indemnities and other agreements customarily required of issuers.
Neither this Option Agreement nor the Option are assignable by BANC
ONE. BANC ONE and FCC agree to use their respective reasonable efforts
to cause, and to cause any underwriters of any sale or other
disposition to cause, any sale or other disposition of the Optioned
Shares and any Additional Optioned Shares to be effected on a widely
distributed basis.
7. Notices. All notices and other communications hereunder may be made by
mail, hand-delivery or by courier service. If notices and other
communications are made by nationally recognized overnight courier
service for overnight delivery, such notice shall be deemed to have
been given one business day after being forwarded to such a nationally
recognized overnight courier service for overnight delivery. All
notices and other communications hereunder given to any party shall be
communicated to the remaining party to this Agreement by mail or by
hand-delivery in the same manner as herein provided.
(a) If to BANC ONE, to:
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BANC ONE CORPORATION
Attention of: Chief Executive Officer
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
With a copy to:
BANC ONE CORPORATION
Attention of: Xxxxxx X. Xxxxxxx
General Counsel
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
(b) First Commerce Corporation.
Attention of: Chief Executive Officer
000 Xx. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
With a copy to:
Xxxxxxx X. Xxxxxxx, III
Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxx
Walmsley & Casteix, L.L.P.
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
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IN WITNESS WHEREOF, this Agreement has been executed the day and year first
above written.
BANC ONE CORPORATION
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
its Senior Executive Vice President
First Commerce Corporation.
ATTEST:
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxx Xxxxx
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Xxx Xxxxx
its President and Chief
Executive Officer
