Exhibit 10.1
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Option Agreement") is dated as
of September 22, 2002, between Acadiana Bancshares, Inc. (XXX")
and IBERIABANK Corporation ("IBKC").
WITNESSETH
Whereas, the Boards of Directors of XXX and IBKC have
approved an Agreement and Plan of Merger ("Merger Agreement")
dated as of the date hereof pursuant to which XXX would be merged
into IBKC;
Whereas, as a condition to IBKC's entry into the Merger
Agreement and to induce such entry, XXX has agreed to grant to
IBKC the option set forth herein to purchase shares of XXX Common
Stock;
Now, Therefore, in consideration of the premises herein
contained, the parties agree as follows:
1. Definitions.
Capitalized terms defined in the Merger Agreement and used
herein shall have the same meanings as in the Merger Agreement.
2. Grant of Option.
Subject to the terms and conditions set forth herein, XXX
hereby grants to IBKC an option ("Option") to purchase up to such
number of shares of XXX Common Stock, at a price of $23.76 per
share payable in cash as provided in Section 4 hereof, as shall
equal 4.9% of the outstanding shares of XXX Common Stock after
the exercise of the Option; provided, however, that if XXX issues
or agrees to issue any shares of XXX Common Stock (other than as
permitted under the Merger Agreement) at a price less than $23.76
per share (as adjusted pursuant to Section 6 hereof), the
exercise price shall be equal to such lesser price; in no event,
however, shall the number of shares for which the Option is
exercisable exceed 4.9% of ANA's issued and outstanding Common
Stock after the exercise of the Option.
3. Exercise of Option.
(a) Unless IBKC shall have breached in any material respect
any covenant or agreement contained in the Merger Agreement and
such breach shall not have been cured after notice from XXX, IBKC
may exercise the Option, in whole or part, at any time or from
time to time within six months (which period of time shall be
extended pursuant to
Section 10(a)) following the occurrence of a Purchase Event (as
defined below); provided that to the extent the Option shall not
have been exercised, it shall terminate and be of no further force
and effect (i) on the Effective Date of the Merger under the Merger
Agreement, or (ii) upon termination of the Merger Agreement in
accordance with the provisions thereof if such termination occurs
before the first Purchase Event to occur, or (iii) the date that is
one year following the termination of the Merger Agreement, if such
termination occurs after the first Purchase Event to occur.
Notwithstanding the foregoing, this Option Agreement shall terminate,
and all unexercised rights hereunder will simultaneously terminate,
whether or not a Purchase Event has occurred, upon any
termination of the Merger Agreement (i) under Section 9.1(a)
thereof, (ii) by XXX under Section 9.1(b) thereof, or (iii) by
either Party under Section 9.1(h) thereof.
(b) As used herein, a "Purchase Event" means any of the
following events or transactions occurring after the date hereof:
(i) any person (other than IBKC or any IBKC Subsidiary) shall
have commenced a bona fide tender or exchange offer to purchase
shares of XXX Common Stock such that upon consummation of such
offer such person would own or control 20% or more of the
outstanding shares of XXX Common Stock;
(ii) XXX or any XXX Subsidiary, without having received IBKC's
prior written consent, shall have entered into an agreement with
any person (other than IBKC or any IBKC Subsidiary), or any
person (other than IBKC or any IBKC Subsidiary), other than in
connection with a transaction to which IBKC has given its prior
written consent, shall have filed an application or notice with
the Federal Reserve Board or any other federal or state
regulatory agency for clearance or approval, and, in cases in
which XXX has not consented to and not cooperated in such filing,
such application or notice has been approved to (x) merge or
consolidate, or enter into any similar transaction, with XXX or
any XXX Subsidiary other than with respect to any requirement of
divestiture in connection with the Merger Agreement under the
federal banking or antitrust laws, (y) purchase, lease or
otherwise acquire all or substantially all of the assets of XXX
or any XXX Subsidiary other than in the ordinary course of
business of XXX or such XXX Subsidiary, or (z) purchase or
otherwise acquire (including by way of merger, consolidation,
share exchange or any similar transaction) securities
representing 20% or more of the voting power of XXX or any XXX
Subsidiary;
(iii) any person (other than IBKC, any IBKC Subsidiary or the
XXX Subsidiaries in a fiduciary capacity) shall have acquired
beneficial ownership or the right to acquire beneficial ownership
of 20% or more of the outstanding shares of XXX Common Stock or
the common stock of any XXX Subsidiary (the term "beneficial
ownership" for purposes of this Option Agreement having the
meaning assigned thereto
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in Section 13(d) of the 1934 Act and the regulations thereunder);
provided, however, that in calculating the number of shares owned
by any person, no shares which were beneficially owned before the
effective date of this Agreement shall be included;
(iv) (A) any person (other than IBKC or any IBKC Subsidiary)
shall have made prior to the Shareholder's Meeting a bona fide
proposal to XXX by public announcement or written communication
that is or becomes the subject of public disclosure to (x)
acquire XXX or any XXX Subsidiary by merger, consolidation, share
exchange, purchase of all or substantially all of its assets or
any other similar transaction, or (y) make an offer described in
clause (i) or (ii) above; and (B) either (1) the shareholders of
XXX fail to approve the Merger Agreement or (2) the Merger
Agreement is terminated pursuant to Section 9.1(l) thereof.
(v) 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 ANA's
shareholders and the shareholders fail to approve the Merger
Agreement; or
(vi) any transaction of the type referred to in clause (ii)
above shall have been consummated.
If more than one of the transactions giving rise to a Purchase
Event under this Section 3(b) is undertaken or effected, then all
such transactions shall give rise to successive Purchase Events,
but the successive nature of such Purchase Events shall not
increase the number of shares of XXX Common Stock as to which the
Option may be exercised. As used in this Option Agreement,
"person" shall have the meanings specified in Sections 3(a)(9)
and 13(d)(3) of the 1934 Act.
(c) If IBKC wishes to exercise the Option, it shall send to
XXX a written notice (the date of which being herein referred to
as "Notice Date") specifying (i) the total number of shares it
will purchase pursuant to such exercise, and (ii) a place and
date not earlier than three business days nor later than 60
business days from the Notice Date for the closing of such
purchase ("Closing Date"); provided that if prior notification to
or approval of the Federal Reserve Board or any other Regulatory
Authority is required in connection with such purchase, IBKC
shall promptly file the required notice or application for
approval and shall expeditiously process the same and the period
of time that otherwise would run pursuant to this sentence shall
run instead from the date on which any required notification
period has expired or been terminated or such approval has been
obtained and any requisite waiting period shall have passed.
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4. Payment and Delivery of Certificates.
(a) At the closing referred to in Section 3 hereof, IBKC
shall pay to XXX the aggregate purchase price for the shares of
XXX Common Stock purchased pursuant to the exercise of the Option
in immediately available funds by a wire transfer to a bank
account designated by XXX or by federal funds check if no account
has been designated.
(b) At such closing, simultaneously with the delivery of
cash as provided in subsection (a), XXX shall deliver to IBKC a
certificate or certificates representing the number of shares of
XXX Common Stock purchased by IBKC and IBKC shall deliver to XXX
a letter agreeing that IBKC will not offer to sell or otherwise
dispose of such shares in violation of applicable law or the
provisions of this Option Agreement.
(c) Certificates for XXX Common Stock delivered at a
closing hereunder may be endorsed with a restrictive legend which
shall read substantially as follows:
"The transfer of the shares represented by this
certificate is subject to certain provisions of an
agreement between the registered holder hereof and
Acadiana Bancshares, Inc. and to resale restrictions
arising under the Securities Act of 1933, as amended, a
copy of which agreement is on file at the principal
office of Acadiana Bancshares, Inc. A copy of such
agreement will be provided to the holder hereof without
charge upon receipt by Acadiana Bancshares, Inc. of a
written request."
It is understood and agreed that the above legend shall be
removed by delivery of substitute certificate(s) without such
legend on the earlier of one year from the date of exercise or
the date IBKC shall have delivered to XXX a copy of a letter from
the staff of the SEC, or an opinion of counsel, in form and
substance reasonably satisfactory to XXX, to the effect that such
legend is not required for purposes of the 1933 Act.
5. Representations.
XXX hereby represents, warrants and covenants to IBKC as
follows:
(a) XXX shall at all times maintain sufficient authorized
but unissued shares of XXX Common Stock so that the Option may be
exercised without authorization of additional shares of XXX
Common Stock.
(b) The shares to be issued upon due exercise, in whole or
in part, of the Option, when paid for as provided herein, will be
duly authorized, validly issued, fully paid and
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nonassessable and will be delivered free and clear of all claims,
liens, encumbrances and security interests and not subject to any
preemptive rights.
(c) XXX 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
it; and will promptly take all action as may from time to time be
required (including cooperating fully with IBKC in preparing
applications or notices and providing information with respect to
regulatory approval) in order to permit IBKC to exercise the Option
and XXX duly and effectively to issue shares of XXX Common Stock
pursuant hereto.
6. Adjustment Upon Changes in Capitalization.
If XXX should split or combine the XXX Common Stock, or pay
a stock dividend or other stock distribution in XXX Common Stock,
or otherwise change the XXX Common Stock into any other
securities, or make any other dividend or distribution in respect
of the XXX Common Stock (other than normal cash dividends), then
the number of shares of XXX Common Stock subject to the Option
shall be adjusted so that, after such issuance, it equals 4.9% of
the number of shares of XXX Common Stock issued and outstanding
after giving effect to any shares subject or issued pursuant to
the Option. Nothing contained in this Section 6 shall be deemed
to authorize XXX to breach any provisions of the Merger
Agreement. Whenever the number of shares of XXX Common Stock
purchasable upon exercise hereof is adjusted as provided in this
Section 6, the option exercise price shall be adjusted by
multiplying the option exercise price by a fraction, the
numerator of which shall be equal to the number of shares of XXX
Common Stock purchasable prior to the adjustment and the
denominator of which shall be equal to the number of shares of
XXX Common Stock purchasable after the adjustment.
7. Registration Rights.
XXX shall, if requested by IBKC, as expeditiously as
possible file a registration statement on a form of general use
under the 1933 Act if necessary in order to permit the sale or
other disposition of this Option and/or the shares of XXX Common
Stock acquired upon exercise of the Option in accordance with the
intended method of sale or other disposition requested by IBKC.
IBKC shall provide all information reasonably requested by XXX
for inclusion in any registration statement to be filed
hereunder. XXX 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 270 days from
the day such registration statement first becomes effective as
may be reasonably necessary to effect such sales or other
dispositions. The first registration effected under this Section
7 shall be at ANA's expense except for underwriting commissions
and the fees and
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disbursements of IBKC's counsel attributable to the registration.
A second registration may be requested hereunder at IBKC's expense.
In no event shall XXX be required to effect more than two
registrations hereunder. If requested by XXX, in connection with
any such registration, IBKC 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 included
by a selling shareholder in such underwriting agreements.
8. Certain Puts.
(a) Upon the occurrence of a Purchase Event that occurs
prior to termination of the Option, (i) at the request of IBKC,
delivered while the Option (in whole or part) is exercisable,
XXX shall repurchase the Option from IBKC at a price equal to
(x) the amount by which (a) the market/offer price (as defined
below) exceeds (b) the Option exercise price, multiplied by (y)
the number of shares for which the Option may then be exercised;
and (ii) at the request from time to time of the owner of shares
purchased pursuant to the Option, delivered while the Option (in
whole or part) is exercisable (or, if it has been fully
exercised, would have been exercisable had such exercise not been
made), XXX shall repurchase such number of the shares issued pursuant
to the Option from the owner as the owner shall designate at a price
equal to (x) the market/offer price multiplied by the number of
such shares so designated. The term "market/offer price" shall
mean the highest of (i) the price per share of XXX Common Stock
at which a tender offer or exchange offer therefor has been made
after the date hereof, (ii) the price per share of XXX Common
Stock to be paid by any third party pursuant to any merger,
consolidation, share exchange or other agreement with XXX entered
into after the date hereof, (iii) the highest closing price for
shares of XXX Common Stock within the 30-day period immediately
preceding the date IBKC gives notice of the required repurchase
of this Option or the owner gives notice of the required
repurchase of shares, as the case may be, or (iv) in the event of
a sale of all or substantially all of ANA's assets, the sum of
the price paid in such sale for such assets and the current
market value of the remaining assets of XXX as determined by a
nationally recognized investment banking firm selected by the
parties (or by an arbitrator if they cannot agree) divided by the
number of shares of XXX Common Stock outstanding at the time of
such sale. In determining the market/offer price, the value of
consideration other than cash shall be determined by a nationally
recognized investment banking firm selected by the parties (or by
an arbitrator if they cannot agree), and such determination shall
be conclusive and binding on all parties.
(b) IBKC or the owner, as the case may be, may exercise its
right to require XXX to repurchase the Option and any shares
pursuant to this Section 8 by surrendering for such
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purpose to XXX, at its principal office, this Option Agreement
or certificates for the shares, as applicable, accompanied by a
written notice or notices stating that IBKC or the owner, as the
case may be, elects to require XXX to repurchase the Option
and/or the shares in accordance with the provisions of this
Section 8. As promptly as practicable, and in any event within
five business days after the surrender of the Option and/or
certificates representing shares and the receipt of such notice
or notices relating thereto, XXX shall deliver or cause to be
delivered to IBKC or the owner the applicable repurchase price
therefor or the portion thereof that XXX is not then prohibited
from so delivering under applicable law and regulation or as a
consequence of administrative policy.
(c) XXX hereby undertakes to use its best efforts to obtain
all required regulatory and legal consents and to file any
required notices in order to accomplish any repurchase
contemplated by this Section 8. Nonetheless, to the extent that
XXX is prohibited under applicable law or regulation, or as a
consequence of administrative policy, from repurchasing the
Option and/or the shares in full, XXX shall immediately so notify
IBKC and the owner and thereafter deliver or cause to be
delivered, from time to time, the portion of the repurchase price
that it is no longer prohibited from delivering. If XXX at any
time after delivery of a notice of repurchase pursuant to Section
8 is prohibited under applicable law or regulation, or as a
consequence of administrative policy, from delivering the
repurchase price in full (and XXX hereby undertakes to use its
best efforts to obtain all required regulatory and legal
approvals and to file any required notices as promptly as
practicable in order to accomplish such repurchase), IBKC and/or
the owner may revoke its notice of repurchase either in whole or
to the extent of the prohibition.
9. Severability.
If any term, provision, covenant or restriction contained in
this Option 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 Option Agreement
shall remain in full force and effect, and shall in no way be
affected, impaired or invalidated. If for any reason such court
or regulatory agency determines that the Option will not permit
the holder to acquire the full number of shares of XXX Common
Stock provided in Section 2 hereof (as adjusted pursuant to
Section 6 hereof), it is the express intention of XXX to allow
the holder to acquire or to require XXX to repurchase such lesser
number of shares as may be permissible, without any amendment or
modification hereof.
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10. Miscellaneous.
(a) Extension. The period for exercise by IBKC and its
assignees of any rights under this Option Agreement shall be
extended (i) to the extent necessary to obtain all regulatory
approvals for the exercise of such rights, and for the expiration
of all statutory waiting periods; and (ii) to the extent
necessary to avoid liability under Section 16(b) of the 1934 Act
by reason of such exercise.
(b) Consents. Each of IBKC and XXX will use its best
efforts to make all filings with, and to obtain consents of, all
third parties and Regulatory Authorities necessary to the
consummation of the transactions contemplated by this Option
Agreement, including without limitation applying to the Federal
Reserve Board under the Bank Holding Company Act for approval to
acquire the shares issuable hereunder.
(c) Expenses. Except as otherwise expressly provided herein
or in the Merger Agreement 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.
(d) Entire Agreement. Except as otherwise expressly provided
herein or in the Merger Agreement, this Option Agreement contains
the entire agreement between the parties with respect to the
transactions contemplated hereunder and supersedes all prior
agreements or understandings with respect thereto, written or
oral. The terms and conditions of this Option Agreement shall
inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns. Nothing in this
Option Agreement, expressed or implied, is intended to confer
upon any party, other than the parties hereof, and their
respective successors and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Option
Agreement, except as expressly provided herein.
(e) Assignment. Neither of the parties hereto may assign
any of its rights or obligations under this Option Agreement or
the Option created hereunder to any other person, without the
express written consent of the other party, except that if a
Purchase Event shall have occurred and be continuing IBKC may
assign in whole or in part its rights and obligations hereunder;
provided, however, that until the date 30 days following the date
on which the Federal Reserve Board approves an application by
IBKC under the Bank Holding Company Act to acquire the shares of
XXX Common Stock subject to the Option, IBKC may not assign its
rights under the Option except in (i) a widely dispersed public
distribution, (ii) a private placement in which no one party
acquires the rights to purchase in excess of 2% of the XXX Common
Stock, (iii) an assignment to a single
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party (e.g., a broker or investment banker) for the purpose of
conducting a widely dispersed public distribution on IBKC's behalf,
or (iv) any other manner approved by the Federal Reserve Board.
(f) Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and
sufficient if delivered personally or sent by overnight express
or by registered or certified mail, postage prepaid, addressed as
follows:
If to IBKC:
IBERIABANK Corporation
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxx
With a copy to:
Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx, L.L.P.
000 Xx. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, III
If to XXX:
Acadiana Bancshares, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
With a copy to:
Elias, Matz, Xxxxxxx & Xxxxxxx, L.L.P.
000 00xx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx Xxxxxxxxx
A party may change its address for notice purposes by written
notice to the other party hereto.
(g) Counterparts. This Option Agreement may be executed in
any number of counterparts, and each such counterpart shall be
deemed to be an original instrument, but all such counterparts
together shall constitute but one agreement.
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(h) Specific Performance. The parties agree that damages
would be an inadequate remedy for a breach of the provisions of
this Option Agreement by either party hereto and that this Option
Agreement may be enforced by either party hereto through
injunctive or other equitable relief.
(i) Governing Law. This Option Agreement shall be governed
by and construed in accordance with the laws of the State of
Louisiana applicable to agreements made and entirely to be
performed within such state, and such federal laws as may be
applicable.
In Witness Whereof, each of the parties hereto has executed
this Option Agreement as of the day and year first written above.
IBERIABANK Corporation
By /s/ Xxxxx X. Xxxx
----------------------------
Xxxxx X. Xxxx, President and
Chief Executive Officer
Acadiana Bancshares, Inc.
By /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------
Xxxxxx X. Xxxxx, Xx., President
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