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EXHIBIT 99.02
Stock Option Agreement
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STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT ("Option Agreement"), dated as of May 28, 1999,
by and between FNB Financial Services Corporation, a North Carolina corporation
("FNB"), and Black Diamond Savings Bank, FSB, a federal savings bank ("Black
Diamond").
BACKGROUND
A. The Boards of Directors of FNB and Black Diamond have approved an
Agreement and Plan of Reorganization and Merger dated of even date herewith (the
"Merger Agreement") providing for certain transactions whereby Black Diamond
would become a wholly-owned subsidiary of FNB, and Black Diamond shareholders
would become shareholders of FNB.
B. To induce FNB to enter into the Merger Agreement, Black Diamond has
agreed to grant to FNB an option to purchase 166,179 shares of the common stock
of Black Diamond.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions.
(a) "Subsidiary" means, with respect to any person (the
"Owner"), any corporation or other person of which securities or other interests
having the power to elect a majority of that corporation's or other person's
board of directors or similar governing body, or otherwise having the power to
direct the business and policies of that corporation or other person (other than
securities or other interests having such power only in the event of a
contingency that has not occurred) are held by the Owner or one or more of its
Subsidiaries.
(b) Capitalized terms defined in the Merger Agreement and used
in this Option Agreement shall have the same meanings as in the Merger
Agreement.
2. Grant of Option.
(a) Subject to the terms and conditions set forth in this
Option Agreement, Black Diamond hereby grants to FNB an option ("Option") to
purchase up to 166,179 shares (the "Shares") of Black Diamond Common Stock, at a
price of $17.25 share (the "Purchase Price") payable in cash as provided in
Section 4 hereof.
(b) In the event of any change in Black Diamond Common Stock
by reason of a stock dividend, split-up, recapitalization, combination, exchange
of shares or similar transaction, the type and number of shares or securities
subject to the Option, and the Purchase
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Price therefor, shall be adjusted appropriately, and proper provision shall be
made in the agreements governing such transaction, so that FNB shall receive
upon exercise of the Option the number and class of shares or other securities
or property that FNB would have received in respect of Black Diamond Common
Stock if the Option had been exercised immediately prior to such event or the
record date therefor, as applicable. If any additional shares of Black Diamond
Common Stock are issued after the date of this Agreement, the number of shares
of Black Diamond Common Stock subject to the Option shall be adjusted so that,
after such issuance, it equals 19.9% of the number of shares of Black Diamond
Common Stock then issued and outstanding, without giving effect to any shares
subject to or issued pursuant to the Option.
(c) In the event that, prior to the termination of the Option
in accordance with Section 3(a) hereof, Black Diamond shall enter into an
agreement (i) to consolidate with or merge into any person, other than FNB or
one of its subsidiaries, and shall not be the continuing or surviving
corporation of such consolidation or merger, (ii) to permit any person, other
than FNB or one of its subsidiaries, to merge into Black Diamond and Black
Diamond shall be the continuing or surviving corporation, but, in connection
with such merger, the shares of Black Diamond Common Stock outstanding
immediately prior to the consummation of such merger shall be changed into or
exchanged for stock or other securities of Black Diamond or any other person or
cash or any other property, or the shares of Black Diamond Common Stock
outstanding immediately prior to the consummation of such merger shall after
such merger represent less than 50% of the outstanding voting securities of the
merged company, or (iii) to sell or otherwise transfer all or substantially all
of its assets to any person, other than FNB or one of its subsidiaries, then,
and in each such case, the agreement governing such transaction shall make
proper provisions so that the Option shall, upon the consummation of any such
transaction and upon the terms and conditions set forth herein, be converted
into, or exchanged for, an option (the "Substitute Option"), at the election of
FNB, of either (I) the Acquiring Corporation (as defined below) or (II) any
person that controls the Acquiring Corporation (any such person specified in
clause (I) or (II) being referred to as "Substitute Option Issuer").
(d) The Substitute Option shall have the same terms as the
Option; provided that the exercise price therefor and number of shares subject
thereto shall be as set forth in Section 2(e); provided, further, that the
Substitute Option shall be exercisable immediately upon issuance without the
occurrence of a Purchase Event with respect to the Substitute Option; and
provided, further, that if the terms of the Substitute Option cannot, for legal
reasons, be the same as the Option (subject to the variations described in the
foregoing provisos), such terms shall be as similar as possible and in no event
less advantageous to FNB. Substitute Option Issuer shall also enter into an
agreement with FNB in substantially the same form as this Agreement (subject to
the variations described in the foregoing provisos), which shall be applicable
to the Substitute Option.
(e) The Substitute Option shall be exercisable for such number
of shares of Substitute Common Stock (as defined below) as is equal to the
Assigned Value (as defined below) multiplied by the number of shares of Black
Diamond Common Stock for which the Option was theretofore exercisable, divided
by the Average Price (as defined below), rounded
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up to the nearest whole share. The exercise price per share of Substitute
Common Stock of the Substitute Option (the "Substitute Option Price") shall then
be equal to the Purchase Price multiplied by a fraction in which the numerator
is the number of shares of Black Diamond Common Stock for which the Option was
theretofore exercisable and the denominator is the number of shares of
Substitute Common Stock for which the Substitute Option is exercisable.
(f) In no event, pursuant to any of the foregoing paragraphs,
shall the Substitute Option be exercisable for more than 19.9% of the aggregate
of the shares of Substitute Common Stock outstanding prior to exercise of the
Substitute Option. In the event that the Substitute Option would be exercisable
for more than 19.9% of the aggregate of the shares of outstanding Substitute
Common Stock but for the limitation in the first sentence of this Section 2(f),
Substitute Option Issuer shall make a cash payment to FNB equal to the excess of
(i) the value of the Substitute Option without giving effect to the limitation
in the first sentence of this Section 2(f) over (ii) the value of the Substitute
Option after giving effect to the limitation in the first sentence of this
Section 2(f). This difference in value shall be determined by a nationally
recognized investment banking firm selected by FNB.
(g) Black Diamond shall not enter into any transaction
described in Section 2(c) unless the Acquiring Corporation and any person that
controls the Acquiring Corporation assume in writing all the obligations of
Black Diamond hereunder and take all other actions that may be necessary so that
the provisions of this Agreement are given full force and effect (including,
without limitation, any action that may be necessary so that the holders of the
other shares of common stock issued by Substitute Option Issuer are not entitled
to exercise any rights comparable to the rights described herein by reason of
the issuance or exercise of the Substitute Option and the shares of Substitute
Common Stock are otherwise in no way distinguishable from or have lesser
economic value than other shares of common stock issued by Substitute Option
Issuer (other than any diminution in value resulting from the fact, if
applicable, that the shares of Substitute Common Stock are restricted
securities, as defined in Rule 144 under the Securities Act or any successor
provision)).
(h) For purposes of this Agreement, the following terms have
the following meanings:
(1) "Acquiring Corporation" means (i) the continuing
or surviving corporation of a consolidation or merger with Black Diamond (if
other than Black Diamond), (ii) Black Diamond in a merger in which Black Diamond
is the continuing or surviving corporation and (iii) the transferee of all or
substantially all of Black Diamond's assets.
(2) "Assigned Value" means the highest of (w) the
price per share of Black Diamond Common Stock at which a tender offer or
exchange offer for Black Diamond Common Stock has been made after the date
hereof and prior to the consummation of the consolidation, merger or sale
referred to in Section 2(c), (x) the price per share to be paid by any third
party or the consideration per share to received by holders of Black Diamond
Common Stock, in each case pursuant to the agreement with Black Diamond with
respect to the consolidation, merger or sale referred to in Section 2(c), (y)
the highest bid price per share for
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Black Diamond Common Stock quoted on the Nasdaq National Market (or if such
Black Diamond Common Stock is not quoted thereon, the highest bid price per
share as quoted on the principal trading market on which such shares are traded
as reported by a recognized source) during the 12-month period immediately
preceding the consolidation, merger or sale referred to in Section 2(c) and (z)
in the event the transaction referred to in Section 2(c) is a sale of all or
substantially all of Black Diamond's assets, an amount equal to (i) the sum of
the price paid in such sale for such assets (including assumed liabilities) and
the current market value of the remaining assets of Black Diamond, as determined
by a nationally recognized investment banking firm selected by FNB divided by
(ii) the number of shares of Black Diamond Common Stock outstanding at such
time. In the event that a tender offer or exchange offer is made for Black
Diamond Common Stock or an agreement is entered into for a merger or
consolidation involving consideration other than cash, the value of the
securities or other property issuable or deliverable in exchange for Black
Diamond Common Stock shall be determined by a nationally recognized investment
banking firm selected by FNB.
(3) "Average Price" means the average closing sales
price per share of a share of Substitute Common Stock quoted on the New York
Stock Exchange ("NYSE") (or if such Substitute Common Stock is not quoted on the
NYSE, the highest bid price per share as quoted on the Nasdaq National Market
or, if the shares of Substitute Common Stock are not quoted thereon, on the
principal trading market on which such shares are traded as reported by a
recognized source) for the twenty trading days immediately preceding the fifth
business day prior to the consolidation, merger or sale in question, but in no
event higher than the closing price of the shares of Substitute Common Stock on
the day preceding such consolidation, merger or sale; provided that if
Substitute Option Issuer is Black Diamond, the Average Price shall be computed
with respect to a share of common stock issued by Black Diamond, the person
merging into Black Diamond or by any company which controls such person, as FNB
may elect.
(4) "Substitute Common Stock" means the shares of
capital stock (or similar equity interest) with the greatest voting power in
respect of the election of directors (or persons similarly responsible for the
direction of the business and affairs) of the Substitute Option Issuer.
3. Exercise of Option.
(a) FNB may exercise the Option, in whole or in part, at any
time or from time to time if a Purchase Event (as defined below) shall have
occurred and be continuing; provided that to the extent the Option shall not
have been exercised, it shall terminate and be of no further force or effect
upon the earliest to occur of (i) the Effective Time of the Merger or (ii)
termination of the Merger Agreement in accordance with the provisions thereof
prior to the occurrence of a Purchase Event (other than a termination resulting
from a breach by Black Diamond of any covenant contained therein) or (iii) six
months after termination of the Merger Agreement if such termination follows the
occurrence of a Purchase Event or is due to a breach by Black Diamond of any
covenant contained therein. Any such exercise shall be subject to compliance
with applicable provisions of law.
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(b) As used herein, a "Purchase Event" shall mean any of the
following events or transactions occurring after the date hereof:
(i) Black Diamond or any Black Diamond Subsidiary,
without having received FNB's prior written consent, shall have entered into an
agreement with any person, whereby such person would (x) merge or consolidate,
or enter into any similar transaction, with Black Diamond or any Black Diamond
Subsidiary, (y) purchase, lease or otherwise acquire all or substantially all of
the assets of Black Diamond or any Black Diamond 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 Black Diamond or any Black Diamond Subsidiary;
(ii) any person shall have acquired beneficial
ownership or the right to acquire beneficial ownership of 20% or more of the
outstanding shares of the Common Stock of Black Diamond (the term "beneficial
ownership" for purposes of this Option Agreement having the meaning assigned
thereto in Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the regulations promulgated thereunder);
(iii) Black Diamond, acting through its Board of
Directors or duly authorized officers, deliberately breaches any of its
obligations under the Merger Agreement after any person (x) shall have made a
bona fide proposal to Black Diamond by public announcement or written
communication that is or becomes the subject of public disclosure to acquire
Black Diamond or any Black Diamond Subsidiary by merger, consolidation, purchase
of all or substantially all of its assets or any other similar transaction, (y)
shall have commenced a bona fide tender or exchange offer to purchase shares of
Black Diamond Common Stock such that upon consummation of such offer such person
would own or control 20% or more of the outstanding shares of Black Diamond
Common Stock, or (z) shall have filed an application or notice with any federal
or state regulatory agency for clearance or approval to engage in any
transaction described in clause (i) or (ii) above; or
(iv) any federally insured depository or registered
holding company thereof (not affiliated with FNB) or any person, corporation or
other legal entity with a net worth exceeding $20 million (x) shall have made a
bona fide proposal to Black Diamond by public announcement or written
communication that is or becomes the subject of public disclosure to acquire
Black Diamond or any Black Diamond Subsidiary by merger, consolidation, purchase
of all or substantially all of its assets or any other similar transaction, (y)
shall have commenced a bona fide tender or exchange offer to purchase shares of
Black Diamond Common Stock such that upon consummation of such offer such person
would own or control 20% or more of the outstanding shares of Black Diamond
Common Stock, or (z) shall have filed an application or notice with any federal
or state regulatory agency for clearance or approval to engage in any
transaction described in clause (i) or (ii) above, and thereafter the Board of
Directors of Black Diamond shall have failed to recommend, or shall have revoked
its recommendation of, the Merger Agreement and the transactions contemplated
thereby or the holders of Black Diamond Common Stock shall have not approved the
Merger Agreement and
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the transactions contemplated thereby at the meeting of such stockholders held
for such purpose or such meeting shall have not been held or shall have been
canceled prior to termination of the Merger Agreement.
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 only to one Purchase Event, which Purchase Event shall be deemed
continuing for all purposes under this Option Agreement until all such
transactions are abandoned. As used in this Option Agreement, "person" shall
have the meanings specified in Sections 3(a)(9) and 13(d)(3) of the Exchange
Act.
(c) In the event FNB wishes to exercise this Option, it shall
send to Black Diamond a written notice (the date of which shall be the "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 (the "Closing Date"); provided that if prior notification to or
approval of any federal or state regulatory agency is required in connection
with such purchase, FNB 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.
4. Payment and Delivery of Certificates.
(a) At the closing referred to in Section 3 hereof, FNB shall
pay to Black Diamond the aggregate purchase price for the Shares purchased
pursuant to the exercise of the Option in immediately available funds by a wire
transfer to a bank account designated by Black Diamond.
(b) At such closing, simultaneously with the delivery of cash
as provided in Section 4(a), Black Diamond shall deliver FNB a certificate
representing the number of shares of Black Diamond Common Stock purchased by
FNB.
5. Regulatory Filings. Black Diamond and FNB agree to file with state
and federal governmental bodies and authorities (including without limitation
the Office of Thrift Supervision and the Federal Reserve Board) all required
applications, notifications and report forms and other documents required to be
filed under any applicable law, rule or regulation, to permit the purchase
contemplated by this Agreement (collectively, "Regulatory Filings"). Black
Diamond agrees to cooperate fully with FNB in connection with the preparation of
any Regulatory Filing. Upon the happening of a Purchase Event, all additional
fees, expenses and charges of any kind or nature whatsoever incurred in
connection with any Regulatory Filing up to but not exceeding $25,000 shall be
borne and paid by Black Diamond. Without limitation, Black Diamond shall
indemnify and hold harmless FNB, its affiliates and its officers and directors
from and against any and all losses, claims, damages, liabilities and expenses
(including, without limitation, all out-of-pocket expenses, investigation
expenses, expenses
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incurred with respect to any judgment and fees and disbursements of counsel and
accountants) arising out of or based upon any statements contained in, omissions
or alleged omissions from, each Regulatory Filing, other than statements or
omissions made in reliance on and in conformity with information provided in
writing by FNB included in such Regulatory Filing.
6. Representations and Warranties.
Black Diamond represents, warrants and covenants to FNB as follows:
(a) Shares. The Shares, when delivered to FNB upon exercise of
the Option, will be duly authorized, validly issued, fully paid, nonassessable,
free of preemptive rights, and free and clear of all claims, liens, charges,
encumbrances and security interests of any nature whatsoever.
(b) Authority. Black Diamond has full right, power and
authority to execute and deliver this Option Agreement, to grant the Option and
to sell, assign, transfer and deliver the Shares to FNB upon exercise of the
Option.
(c) Binding Obligation. The execution and delivery of this
Option Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of Black
Diamond. This Option Agreement has been duly executed and delivered by Black
Diamond and constitutes the legal, valid and binding obligation of Black
Diamond, enforceable against Black Diamond in accordance with its terms.
(d) Absence of Conflicting Agreements. The execution, delivery
and performance of this Option Agreement will not (i) conflict with, result in a
breach of, or constitute a default under, any applicable law, judgment,
ordinance, regulation or ruling of any court or governmental authority, or under
any contract or agreement to which Black Diamond is a party or by which Black
Diamond may be bound, or (ii) create any lien, charge, claim or encumbrance upon
the Shares.
(e) Consents. No consent, approval, permit or authorization
of, or filing with any governmental authority or any third party is required to
consummate this Option Agreement and the transactions contemplated hereby.
(f) Claims and Legal Actions. There is no claim, liability,
legal action, governmental investigation or other legal, administrative or tax
proceeding, nor any order, decree or judgment, in progress or pending, or to the
knowledge of Black Diamond, threatened against Black Diamond which could
adversely affect the Shares, nor does Black Diamond know or have reason to be
aware of any basis for the same.
(g) Reservation of Shares. Black Diamond has taken all
necessary corporate action to reserve from the authorized and unissued shares of
Black Diamond Common Stock to issue, upon exercise of the Option, all of the
Shares. At all times from the date hereof until
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such time as the Option is no longer exercisable, Black Diamond will reserve for
issuance, upon exercise of the Option, the number of shares of Black Diamond
Common Stock equal to the number of Shares for which the Option is then
exercisable.
7. 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 Black Diamond Common
Stock as provided in Section 2 hereof, it is the express intention of Black
Diamond to allow the holder to acquire such lesser number as may be permissible,
without any amendment or modification hereof.
8. Additional Documents. Black Diamond will, upon request of FNB,
promptly execute and deliver all additional documents reasonably deemed by FNB
to be necessary, appropriate or desirable to complete and evidence any sale,
assignment or transfer of the Shares pursuant to this Option Agreement and to
vest in FNB good, valid and marketable title to the Shares so transferred.
9. Limitation of Profit.
(a) Notwithstanding any other provision herein, in no event
shall FNB's Total Profit (as defined below) exceed $3,000,000, and, if it
otherwise would exceed such amount, FNB, at its sole discretion, shall either
(i) reduce the number of shares subject to the Option, (ii) deliver to Black
Diamond for cancellation shares of Black Diamond Common Stock (or other
securities into which such Option Shares are converted or exchanged), (iii) pay
cash to Black Diamond, or (iv) any combination of the foregoing, so that FNB's
actually realized Total Profit shall not exceed $3,000,000 after taking into
account the foregoing actions.
(b) For purposes of this Agreement, "Total Profit" shall mean:
(i) the aggregate amount of (A) Net Proceeds, plus (B) all amounts received by
FNB on the transfer of the Option, plus (C) all equivalent amounts with respect
to the Substitute Option, plus (D) all amounts received by FNB pursuant to
Section 7.4C of the Merger Agreement, minus (ii) the aggregate of (A) all
amounts of cash previously paid to Black Diamond pursuant to this Section 9 and
(B) the value of the Option Shares (or other securities) previously delivered to
Black Diamond for cancellation pursuant to this Section 9. "Net Proceeds" shall
mean the aggregate proceeds of such sale or disposition in excess of the product
of the Purchase Price multiplied by the number of such Option Shares (or
securities into which such shares are converted or exchanged) included in such
sale or disposition.
(c) Notwithstanding any other provision of this Agreement,
nothing in this Agreement shall affect the ability of FNB to receive, nor
relieve Black Diamond's obligation to pay, any payment provided for in Section
7.4C of the Merger Agreement; provided that if and to the extent the Total
Profit received by FNB would exceed $3,000,000, following receipt of
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such payment, FNB shall be obligated to comply with the terms of Section 9(a)
within 30 days of the latest of (i) the date of receipt of such payment, (ii)
the date of receipt of the Net Proceeds, (iii) the date of receipt of net cash
from disposition of the Option and (iv) the date of receipt of equivalent
amounts pursuant to the sale of the Substitute Option or shares of Substitute
Common Stock (or other securities into which such Substitute Common Stock is
converted or exchanged).
(d) For purposes of Section 9(a) and clause (ii) of Section
9(b), the value of any Option Shares delivered to Black Diamond shall be the
Assigned Value of such Option Shares and the value of any Substitute Common
Stock delivered to Black Diamond shall be the Highest Closing Price of such
Substitute Common Stock. "Highest Closing Price" means the highest closing sales
price for shares of Substitute Common Stock quoted on the NYSE (or if the
Substitute Common Stock is not quoted on the NYSE, the highest bid price per
share as quoted on the National Association of Securities Dealers Automated
Quotations System or, if the shares of Substitute Common Stock are not quoted
thereon, on the principal trading market on which such shares are traded as
reported by a recognized) during the six-month period preceding the issuance of
the Substitute Option.
(e) Notwithstanding anything in this Agreement or the Merger
Agreement to the contrary, if a court shall finally adjudicate that FNB's Total
Profit is unenforceable, then Net Proceeds shall be limited to the largest
amount enforceable, whether such amount is $3,000,000, $2,500,000, $2,000,000,
$1,750,000, $1,500,000, $1,250,000, $1,000,000, $900,000, $800,000, $700,000,
$600,000, $500,000 or some lesser amount. All Net Proceeds in excess of such
limitation shall be remitted to Black Diamond upon receipt.
10. Loss, Theft, Etc. of Agreement. This Agreement (and the Option
granted hereby) are exchangeable, without expense, at the option of FNB, upon
presentation and surrender of this Agreement at the principal office of Black
Diamond for other Agreements providing for Options of different denominations
entitling the holder thereof to purchase in the aggregate the same number of
shares of Black Diamond Common Stock purchasable hereunder. The terms
"Agreement" and "Option" as used herein include any other Agreements and related
Options for which this Agreement (and the Option granted hereby) may be
exchanged. Upon receipt by Black Diamond 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, Black
Diamond will execute and deliver a new Agreement of like tenor and date. Any
such new Agreement executed and delivered shall constitute an additional
contractual obligation on the part of Black Diamond, whether or not the
Agreement so lost, stolen, destroyed or mutilated shall at any time be
enforceable by anyone.
11. Miscellaneous.
(a) Expenses. Except as otherwise provided herein, each of the
parties hereto shall bear and pay all costs and expenses incurred by it or on
its behalf in connection
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with the transactions contemplated hereunder, including fees and expenses of its
own financial consultants, investment bankers, accountants and counsel.
(b) Entire Agreement. Except as otherwise expressly provided
herein, this Option Agreement contains the entire agreement among the parties
with respect to the transactions contemplated hereunder and supersedes all prior
arrangements 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 responsible heirs, successors and
assigns. Nothing in this Option Agreement, expressed or implied, is intended to
confer upon any party, other than the parties hereto, 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.
(c) 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.
(d) Notices. All notices under this Agreement shall be deemed
to have been duly given when delivered in person, by recognized overnight
courier, or by confirmed facsimile to the parties as set forth below.
If to FNB:
Xx. Xxxxxx X. Xxxxxx
President and Chief Executive Officer
FNB Financial Services Corporation
000 X. Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile No. (000) 000-0000
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with a copy to:
Xxxxxx X. Xxxxx, Esq.
Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P.
0000 Xxxxx Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile No. (000) 000-0000
If to Black Diamond:
Xx. Xxx X. Xxxxx
President and Chief Executive Officer
Black Diamond Savings Bank, FSB
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile No. (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Williams, Mullen, Christian & Xxxxxxx
Two Xxxxx Center
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Facsimile No. (000) 000-0000
(e) 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.
(f) Specific Performance. The parties agree that damages would
be an inadequate remedy for 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.
(g) Governing Law. This Option Agreement shall be governed by
and construed in accordance with the laws of the State of North Carolina
applicable to agreements made and entirely to be performed within such state and
such federal laws as may be applicable.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Option
Agreement as of the day and year first written above.
FNB FINANCIAL SERVICES CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
President and Chief Executive Officer
BLACK DIAMOND SAVINGS BANK, FSB
By: /s/ Xxx X. Xxxxx
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Xx. Xxx X. Xxxxx
President and Chief Executive Officer
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