STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT ("Option Agreement"), dated as of _________, 1999
by and between Anson Bancorp, Inc., Wadesboro, North Carolina, a North Carolina
corporation ("Anson") and Uwharrie Capital Corp, Albemarle, North Carolina, a
North Carolina corporation ("Uwharrie").
BACKGROUND
A. The Boards of Directors of Anson and Uwharrie have approved an
Agreement and Plan of Reorganization and Merger dated of even date
herewith (the "Agreement") providing for a transaction whereby all
of the outstanding shares of Anson's common stock would be acquired
for cash upon terms and conditions of the Agreement.
B. To induce Uwharrie to enter into the Agreement, Anson has agreed to
grant to Uwharrie an option to purchase 111,173 shares (the
"Shares") of the common stock of Anson ("Option").
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. Capitalized terms defined in the Agreement and used in this Option
Agreement shall have the same meanings as in the Agreement.
2. Grant of Option.
(a) Subject to the terms and conditions set forth in this Option
Agreement, Anson hereby grants to Uwharrie the Option at a
price of $18.50 per share of Anson Stock payable in cash as
provided in Section 4 hereof.
(b) If at any time the outstanding shares of Anson Stock are
changed into a different number of shares or a different class
by reason of any reclassification, capitalization, split-up,
combination, exchange of shares or readjustment or if a stock
dividend thereon is declared, then the number of shares of
Anson subject to the Option and the per share consideration to
be paid by Uwharrie upon exercise of the Option shall be
appropriately adjusted.
3. Exercise of Option.
(a) Uwharrie 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 Anson Heritage
Merger Effective Time or (ii) termination of the Agreement in
accordance with the provisions thereof prior to the occurrence
of a Purchase Event (other than a termination resulting from a
breach by Anson of any covenant contained therein) or (iii)
six months after termination of the Agreement if such
termination follows the occurrence of a Purchase Event or is
due to a breach by Anson of any covenant contained therein.
Any such exercise shall be subject to compliance with
applicable provisions of law.
(b) As used herein, a "Purchase Event" shall mean any of the
following events or transactions occurring after the date
hereof:
(i) Anson, without having received Uwharrie's prior written
consent, shall have entered into an agreement with any
person, whereby such person would (x) merger or
consolidate, or enter into any similar transaction, with
Anson, (y) purchase, lease or otherwise acquire all or
substantially all of the assets of Anson, 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 Anson.
(ii) any person shall have acquired beneficial ownership or
the right to acquire beneficial ownership of 20% or more
of the outstanding shares of Anson Stock (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) a "change of control" (as would be required to be
reported in response to Item 5(f) of Schedule 14A or
Regulation 14A promulgated under the Exchange Act) of
Anson occurs; or
(iv) any person (x) shall have made a bona fide proposal to
Anson by public announcement or written communication
that is or becomes the subject of public disclosure to
acquire Anson or any Anson 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 Anson Stock such that upon
consummation of such offer such person would own or
control 20% or more of the outstanding shares of Anson,
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 holders of
Anson Stock shall have not
approved the Agreement and 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
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 cotinuing 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 Uwharrie wishes to exercise this Option, it shall
send to Anson 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, Uwharrie
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 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, Uwharrie shall
pay to Anson 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 Anson.
(b) At such closing, simultaneously with the delivery of cash as
provided in Section 4(a), Anson shall deliver Uwharrie a
certificate representing the number of shares of Anson Stock
purchased by Uwharrie.
5. Regulatory Filings. Anson and Uwharrie agree to file with state and
federal governmental bodies and authorities (including without
limitation the North Carolina Banking Commission 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"). Anson agrees to
cooperate fully with Uwharrie in connection with the preparation of
any Regulatory Filing. All fees, expenses and charges of any kind or
nature whatsoever incurred in connection with any Regulatory Filing
shall be borne and
paid by Anson. Anson shall indemnify and hold harmless Uwharrie, 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 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 Uwharrie included in such Regulatory Filing.
6. Representations and Warranties.
Anson represents, warrants and covenants to Uwharrie as follows:
(a) Shares. The Shares, when delivered to Uwharrie upon exercise
of the Option, will be duly authorized, valid 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. Anson 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
Uwharrie 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 Anson. This Option Agreement
has been duly executed and delivered by Anson and constitutes
the legal, valid and binding obligation of Anson, enforceable
against Anson 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 Anson is a party or by which Anson may
be bound, or (ii) create a 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
Anson, threatened against Anson which could
adversely affect the Shares, nor does Anson know or have
reason to be aware of any basis for the same.
(g) Reservation of Shares. Anson has taken all necessary corporate
action to reserve from the authorized and unissued shares of
Anson Stock to issue, upon exercise of the Option, all of the
Shares. At all times from the date hereof until such time as
the Option is no longer exercisable, Anson will reserve for
issuance, upon exercise of the Option, the number of shares of
Anson 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 Anson Stock as provided in
Section 2 hereof, it is the express intention of Anson to allow the
holder to acquire such lesser number as may be permissible, without
any amendment or modification hereof.
8. Additional Documents. Anson will, upon request of Uwharrie, promptly
execute and deliver all additional documents reasonably deemed by
Uwharrie 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 Uwharrie good, valid and
marketable title to the Shares so transferred.
9. 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 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, provided, however,
that Uwharrie's rights and obligations under the Option
Agreement and the Option created hereunder shall be
automatically transferred to any corporation succeeding to the
rights and obligations of Uwharrie under the Agreement.
(d) 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 provided in the Agreement. A party may change its
address for notice purposes by written notice to the other
party hereto.
(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, except to the extent that federal
laws may be applicable.
IN WITNESS WHEREOF, the parties hereto have executed this Option Agreement
duly authorized by their respective Boards of Directors.
ANSON BANCORP, INC.
By: ____________________________
Xxxxxx X. Xxxx, President
ATTEST:
___________________________
Xxxxx X. Xxxxxxx, Secretary
UWHARRIE CAPITAL CORP
By: ____________________________
Xxxxx X. Xxxx, President
ATTEST:
___________________________
________________, Secretary
