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EXHIBIT 10.2
FIRST FINANCIAL CORPORATION
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of May 14, 1997, by and between
First Financial Corporation, a Wisconsin corporation (the "Issuer"), and
Associated Banc-Corp, a Wisconsin corporation ("Grantee").
WHEREAS, concurrently with the execution and delivery of this
Agreement, Issuer, Grantee, and Badger Merger Corp., a Wisconsin corporation and
a wholly owned subsidiary of Grantee, are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), which provides
for, among other things, upon the terms and subject to the conditions thereof,
the merger of Merger Sub with and into Issuer (the "Merger");
WHEREAS, as a condition to Grantee's willingness to enter into the
Merger Agreement, Grantee has requested that the Issuer agree, and in order to
induce Grantee to enter into the Merger Agreement, Issuer has so agreed, to
grant to Grantee an option with respect to certain shares of Issuer's common
stock on the terms and subject to the conditions set forth herein; and
WHEREAS, as a condition to Issuer's willingness to enter into the
Merger Agreement, the Issuer has requested that Grantee agree, and in order to
induce the Issuer to enter into the Merger Agreement, Grantee has so agreed, to
grant to Issuer an option with respect to certain shares of Grantee's common
stock on substantially the same terms as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants, representations, warranties and agreements contained herein and in
the Merger Agreement; and intending to be legally bound hereby, the parties
agree as follows:
1. Grant of Option. Issuer hereby grants Grantee an irrevocable
option (the "Stock Option") to purchase up to (a) 7,245,877 shares (the "Option
Shares") of common stock, $1.00 par value per share, of Issuer (the "Issuer
Common Stock") or (b) if, immediately prior to exercise, such number of shares
of Issuer Common Stock is less than 19.9% of the issued and outstanding shares
of Issuer Common Stock at the time of exercise of the Stock Option, such greater
number of shares of Issuer Common Stock as equals 19.9% of the issued and
outstanding shares of Issuer Common Stock at such time of exercise of the Stock
Option, in the manner set forth below, at a price of $23.25 per share (the
"Exercise Price"), payable in cash in accordance with Section 4 hereof.
Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in the Merger Agreement.
2. Exercise of Option. (a) Subject to the provisions of Sections
2(c) and (d), the Stock Option may be exercised by Grantee, in whole or in part,
at any time or from time to time following the occurrence of a Purchase Event
(as defined below), provided that, except as provided in the last sentence of
this Section 2(a), the Stock Option shall terminate and be of no further force
and effect upon the earliest to occur of (i) the Effective Time, (ii) 12 months
after the first occurrence of
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a Purchase Event and (iii) termination of the Merger Agreement in accordance
with its terms prior to the occurrence of a Purchase Event (provided that the
Stock Option shall not terminate for a period of 12 months following any
occurrence specified in Sections 2(b)(iv)(A) or 2(b)(v)(A); and provided further
that any purchase of shares upon exercise of the Stock Option shall be subject
to compliance with applicable law, including the Bank Holding Company Act of
1956, as amended (the "BHC Act"). Notwithstanding the termination of the Stock
Option, Grantee shall be entitled to purchase the Option Shares with respect to
which it has exercised the Stock Option in accordance with the terms hereof
prior to the termination of the Stock Option. The termination of the Stock
Option shall not affect any rights hereunder which by their terms extend beyond
the date of such termination.
(b) As used herein, a "Purchase Event" means any of the following
events:
(i) any person (other than Grantee or any subsidiary of Grantee)
shall have commenced (as such term is defined in Rule 14d-2 under the
Exchange Act), or shall have filed a registration statement under the
Securities Act with respect to, a tender offer or exchange offer to
purchase any shares of Issuer Common Stock such that, upon consummation of
such offer, such person or a "group" (as such term is defined under the
Exchange Act) of which such person is a member, would acquire beneficial
ownership (as such term is defined in Rule 13d-3 of the Exchange Act), or
the right to acquire beneficial ownership, of 15% or more of the then
outstanding Issuer Common Stock (any such offer, a "Tender Offer"), and
the Board of Directors shall not have recommended against such tender
offer or exchange offer within 10 business days of such commencement or
filing or at any time thereafter shall recommend acceptance thereof;
(ii) Issuer or any subsidiary of Issuer shall have authorized,
recommended, proposed or publicly announced an intention to authorize,
recommend or propose, or entered into, an agreement with any person (other
than Grantee or any subsidiary of Grantee) to (A) effect a merger,
consolidation or other business combination involving Issuer or any of its
subsidiaries (other than internal mergers, reorganizing actions or
consolidations involving only existing subsidiaries of Issuer), (B) sell,
lease or otherwise dispose of assets of Issuer or its subsidiaries
aggregating 15% or more of the consolidated assets, net revenues or net
income of Issuer and its subsidiaries or (C) issue, sell or otherwise
dispose of (including by way of merger, consolidation, share exchange or
any similar transaction) securities representing 15% or more of the voting
power of Issuer or any of its subsidiaries (any of the foregoing, an
"Acquisition Transaction");
(iii) any person (other than Grantee or any subsidiary of Grantee)
shall have acquired beneficial ownership (as such term is defined in Rule
13d-3 under the Exchange Act) or the right to acquire beneficial ownership
of, or any "group" (as such term is defined under the Exchange Act) shall
have been formed which beneficially owns or has the right to acquire
beneficial ownership of, shares of Issuer Common Stock (other than trust
account shares) aggregating 15% or more of the then outstanding Issuer
Common Stock;
(iv) (A) the holders of Issuer Common Stock shall not have approved
the Merger Agreement at the meeting of such shareholders held for the
purpose of voting on the Merger Agreement, (B) such meeting shall not have
been held or shall have been cancelled prior to termination of the Merger
Agreement or (C) Issuer's Board of Directors shall have withdrawn
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or modified in a manner adverse to Grantee or to Grantee's ability to
consummate the transactions contemplated by the Merger Agreement the
recommendation of Issuer's Board of Directors with respect to the Merger
Agreement, in each case after any person (other than Grantee or any
subsidiary of Grantee) shall have (X) publicly announced, or taken actions
which have resulted in public disclosure of, a proposal, or publicly
disclosed an intention to make a proposal, to engage in an Acquisition
Transaction and shall not have withdrawn such proposal at least 10
business days prior to the stockholders' meeting to consider the Merger
(provided that any public disclosures to the effect that such person
intends to or may make another proposal shall result in the original
proposal not being deemed to have been withdrawn) or (Y) filed an
application (or given a notice), whether in draft or final form, to the
Federal Reserve Board, the OCC, the FDIC or any other governmental or
regulatory authority for approval to engage in an Acquisition Transaction;
provided; that the Stock Option shall not be exercisable upon the
occurrence specified in Section 2(b)(iv)(A) above unless and until any of
the events specified in Section 2(b)(ii) or (iii) above shall have
occurred; or
(v) (A) there shall exist a willful or intentional breach under the
Merger Agreement by Issuer and such breach would entitle Grantee to
terminate the Merger Agreement; and (B) within 12 months from the date of
such breach, any of the events specified in Section 2(b)(ii) or (iii)
above shall have occurred.
As used in this Agreement, "person" shall have the meaning specified in Sections
3(a)(9) and 13(d)(3) of the Exchange Act.
(c) In the event Grantee wishes to exercise the Stock Option, it
shall send to Issuer a written notice (an "Exercise Notice" and the date of
which being herein referred to as a "Notice Date") specifying (i) the total
number of Option Shares that it intends to purchase pursuant to such exercise
and (ii) a place and date not earlier than three business days nor later than 20
business days from the Notice Date for the closing of such purchase (a "Closing
Date"); provided that if any closing of the purchase and sale pursuant to the
Stock Option (a "Closing") cannot be consummated by reason of any applicable
order, injunction, decree, judgment, law or regulation, the period of time that
otherwise would run pursuant to this sentence shall run instead from the date on
which such restriction on consummation has expired or been terminated; and
provided further, without limiting the foregoing, that if prior notification to
or approval of the Federal Reserve Board, the OCC, the FDIC or any other
governmental or regulatory authority is required in connection with such
purchase, Grantee shall promptly file the required notice or application for
approval and shall expeditiously process the same (and Issuer shall cooperate
with Grantee in the filing of any such notice or application and the obtaining
of any such approval), and the period of time that otherwise would run pursuant
to this sentence shall run instead from the date on which, as the case may be,
(A) any required notification period has expired or been terminated or (B) such
approval has been obtained, and in either event, any requisite waiting period
has passed.
(d) Notwithstanding Section 2(c), in no event shall any Closing Date
occur later than 18 months after the related Notice Date, and if such Closing
shall not have occurred within 18 months after such Notice Date due to the
failure to obtain any required approval of the Federal Reserve Board, the OCC,
the FDIC or any other governmental or regulatory authority, the exercise of the
Stock Option or Substitute Option effected on such date shall be deemed to have
expired. In
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the event (i) Grantee receives official notice that any such approval required
for the purchase of Option Shares will not be issued or granted or (ii) a
Closing Date shall not have occurred within 18 months after the related Notice
Date due to the failure to obtain any such approval, Grantee shall be entitled
to exercise its rights to exercise the Stock Option in connection with the
resale of Issuer Common Stock or other securities pursuant to a registration
statement as provided in Section 9. The provisions of this Section 2 and Section
4 shall apply with appropriate adjustments to any such exercise.
3. Conditions to Closing. The obligation of Issuer to issue Option
Shares to Grantee hereunder is subject to the conditions that (a) all consents,
approvals, orders or authorizations of, or registrations, declarations or
filings with, the Federal Reserve Board, the OCC, the FDIC or any other
governmental or regulatory authority, if any, required in connection with the
issuance of Option Shares hereunder shall have been obtained or made, as the
case may be, and (b) no order, injunction or decree issued by any court or
agency of competent jurisdiction or other legal restraint preventing such
issuance shall be in effect.
4. Closing. At any Closing, (a) Issuer will deliver to Grantee a
certificate or certificates in definitive form, such certificate or certificates
to be registered in the name of Grantee, Merger Sub or such other affiliate of
Grantee as Grantee shall designate in the Exercise Notice and shall bear the
legend set forth in Section 11, representing the number of Option Shares
designated by Grantee in its Exercise Notice, which Option Shares shall be free
and clear of all Liens, and (b) Grantee will deliver to Issuer the aggregate
Exercise Price for the Option Shares so designated and being purchased at such
Closing by wire transfer of immediately available funds to a bank account
designated by Issuer.
5. Representations and Warranties of Issuer. Issuer represents and
warrants to Grantee that (a) Issuer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Wisconsin and has
full corporate power and authority to execute and deliver this Agreement and,
subject to any approvals referred to herein, to consummate the transactions
contemplated hereunder, (b) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
approved by the Board of Directors of Issuer and no other corporate proceedings
on the part of Issuer are necessary to approve this Agreement and to consummate
the transactions contemplated hereby, (c) this Agreement has been duly and
validly executed and delivered by Issuer and (assuming due authorization,
execution and delivery by Grantee) this Agreement constitutes a valid and
binding obligation of Issuer, enforceable against Issuer in accordance with its
terms, except as enforcement may be limited by general principles of equity
whether applied in a court of law or equity and by bankruptcy, insolvency and
similar laws affecting creditors' rights and remedies generally, (d) Issuer has
taken all necessary corporate action to authorize and reserve for issuance and
to permit it to issue, upon exercise of the Stock Option, and at all times from
the date hereof through the expiration of the Stock Option will have so
reserved, the requisite number of unissued shares of Issuer Common Stock
necessary to permit exercise in full of the Stock Option, all of which, upon
their issuance and delivery in accordance with the terms of this Agreement, will
be validly issued, fully paid and nonassessable (except as provided in Section
180.0622(2)(b) of the Wisconsin Business Corporation Law), (e) upon delivery of
such shares of Issuer Common Stock to Grantee upon exercise of the Stock Option,
Grantee will acquire valid title to all of such shares, free and clear of any
and all Liens of any nature whatsoever, (f) the execution and delivery of this
Agreement by Issuer does not, and the performance
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of this Agreement by Issuer will not (1) violate the certificate of
incorporation or by-laws of Issuer, (2) conflict with or violate any statute,
rule, regulation, order, judgment or decree applicable to Issuer or by which it
or any of its assets or properties is bound or affected or (3) result in any
breach or violation of or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or give rise to any rights
of termination, amendment, acceleration or cancellation of, or result in the
creation of any Lien on any of the property or assets of Issuer pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, or other
instrument or obligation to which Issuer or any of its subsidiaries is a party
or by which Issuer or any of its assets or properties is bound or affected
(except, in the case of clauses (2) and (3) above, for violations, breaches or
defaults which would not, individually or in the aggregate, have a Material
Adverse Effect on Issuer) and (g) any provisions of the Wisconsin Business
Corporation Law or Issuer's Articles of Incorporation prohibiting certain
business combinations shall not apply to Grantee in respect of Grantee's
acquisition of some or all of the Option Shares and (h) Grantee will not as a
result of its exercise of the Stock Option, become subject to any anti-takeover
provisions, plans or arrangements in place at Issuer.
6. Representations and Warranties of Grantee. Grantee represents and
warrants to Issuer that (a) Grantee is a corporation duly organized, validly
existing and in good standing under the laws of the State of Wisconsin and has
full corporate power and authority to execute and deliver this Agreement and,
subject to any approvals referred to herein, to consummate the transactions
contemplated hereunder, (b) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
approved by the Board of Directors of Grantee and no other corporate proceedings
on the part of Grantee are necessary to approve this Agreement and to consummate
the transactions contemplated hereby, (c) this Agreement has been duly executed
and delivered by Grantee and (assuming due authorization, execution and delivery
by Issuer) this Agreement constitutes a valid and binding obligation of Grantee,
enforceable against Grantee in accordance with its terms, except as enforcement
may be limited by general principles of equity whether applied in a court of law
or equity and by bankruptcy, insolvency and similar laws affecting creditors'
rights and remedies generally, (d) the execution and delivery of this Agreement
by Grantee does not, and the performance of this Agreement by Grantee will not
(1) violate the certificate of incorporation or bylaws of Grantee, (2) conflict
with or violate any statute, rule, regulation, order, judgment or decree
applicable to Grantee or by which it or any of its properties or assets is bound
or affected or (3) result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give rise to any rights of termination, amendment, acceleration or cancellation
of, or result in the creation of a Lien on any of the property or assets of
Grantee pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, or other instrument or obligation to which Grantee is a party or
by which Grantee or any of its properties or assets is bound or affected
(except, in the case of clauses (2) and (3) above, for violations, breaches, or
defaults which would not, individually or in the aggregate, have a Material
Adverse Effect on Grantee) and (e) any Option Shares acquired upon exercise of
the Stock Option will be, and the Stock Option is being, acquired by Grantee for
its own account and not with a view to the public distribution or resale thereof
in any manner which would be in violation of applicable United States securities
laws.
7. Adjustment upon Changes in Capitalization; Substitute Option. (a)
In the event of any change in Issuer 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
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subject to the Stock Option, and the Exercise Price therefor, shall be adjusted
appropriately, and proper provision shall be made in the agreements governing
such transaction, so that Grantee shall receive upon exercise of the Stock
Option the number and class of shares or other securities or property that
Grantee would have received in respect of Issuer Common Stock if the Stock
Option had been exercised immediately prior to such event or the record date
therefor, as applicable.
(b) In the event that Issuer shall enter into an agreement (i) to
consolidate with or merge into any person, other than Grantee 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 Grantee or one of
its subsidiaries, to merge into Issuer and Issuer shall be the continuing or
surviving corporation, but, in connection with such merger, the shares of Issuer
Common Stock outstanding immediately prior to the consummation of such merger
shall be changed into or exchanged for stock or other securities of Issuer or
any other person or cash or any other property, or the shares of Issuer 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 Grantee or one of its
subsidiaries, then, and in each such case, the agreement governing such
transaction shall make proper provisions so that the Stock 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 Grantee, of either (A) the Acquiring Corporation
(as defined below) or (B) any person that controls the Acquiring Corporation
(any such person being referred to as "Substitute Option Issuer").
(c) The Substitute Option shall have the same terms as the Stock
Option; provided that the exercise price therefor and number of shares subject
thereto shall be as set forth in this Section 7; provided further that the
Substitute Option shall be exercisable immediately upon issuance without the
occurrence of a Purchase Event; and provided further that if the terms of the
Substitute Option cannot, for legal reasons, be the same as the Stock 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 Grantee.
Substitute Option Issuer shall also enter into an agreement with Grantee 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.
(d) 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 Issuer Common
Stock for which the Stock Option was theretofore exercisable, divided by the
Average Price (as defined below), rounded 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 Exercise Price
multiplied by a fraction in which the numerator is the number of shares of
Issuer Common Stock for which the Stock Option was theretofore exercisable and
the denominator is the number of shares of Substitute Common Stock for which the
Substitute Option is exercisable.
(e) 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
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Common Stock but for the limitation in the first sentence of this Section 7(e),
Substitute Option Issuer shall make a cash payment to Grantee 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 7(e) over (ii) the value of the
Substitute Option after giving effect to the limitation in the first sentence of
this Section 7(e). This difference in value shall be determined by a nationally
recognized investment banking firm selected by Grantee.
(f) Issuer shall not enter into any transaction described in Section
7(b) unless the Acquiring Corporation and any person that controls the Acquiring
Corporation assume in writing all the obligations of Issuer hereunder and take
all other actions that may be necessary so that the provisions of this Section 7
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 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 that the
shares of Substitute Common Stock are restricted securities, as defined in Rule
144 under the Securities Act or any successor provision)).
(g) For purposes hereof, the following terms have the following
meanings:
(1) "Acquiring Corporation" means (i) the continuing or surviving
corporation of a consolidation or merger with Issuer (if other than
Issuer), (ii) Issuer in a merger in which Issuer is the continuing or
surviving corporation and (iii) the transferee of all or substantially all
of Issuer's assets or deposits.
(2) "Assigned Value" means the highest of (A) the price per share of
Issuer Common Stock at which a Tender Offer has been made after the date
hereof and prior to the consummation of the consolidation, merger or sale
referred to in Section 7(b), (B) the price per share to be paid by any
third party or the consideration per share to be received by holders of
Issuer Common Stock, in each case pursuant to the agreement with Issuer
with respect to the consolidation, merger or sale referred to in Section
7(b), (C) the highest closing sales price per share for Issuer Common
Stock quoted on the National Association of Securities Dealers' Automated
Quotation System (the "NASDAQS") or, if the shares of Issuer Common Stock
are not quoted thereon, 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 7(b) and (D) in the event the transaction referred to in
Section 7(b) is a sale of all or substantially all of Issuer's assets
and/or deposits, an amount equal to (i) the sum of the price paid in such
sale for such assets and/or deposits and the current market value of the
remaining assets of Issuer, as determined by a nationally recognized
investment banking firm selected by Grantee, divided by (ii) the number of
shares of Issuer Common Stock outstanding at such time. In the event that
a Tender Offer is made for Issuer 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 Issuer Common Stock shall be determined by a
nationally recognized investment banking firm selected by Grantee.
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(3) "Average Price" means the average closing sales price per share
of a share of Substitute Common Stock quoted on the NASDAQS (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 one year immediately preceding 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 Issuer, the
Average Price shall be computed with respect to a share of common stock
issued by Issuer, the person merging into Issuer or by any company which
controls such person, as Grantee 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.
8. Cash-out Rights. If and to the extent the Stock Option is not
exercisable with respect to any of the Option Shares due to Article 9 of the
Articles of Incorporation of the Issuer, Grantee has the right to, and may with
respect to such Option Shares which are not exercisable, in its sole
determination, elect to receive a cash payment in an amount equal to (A) the
amount by which (1) the "Market/Tender Offer Price" for shares of Issuer Common
Stock as of the date Grantee gives notice of its intent to exercise its rights
under this Section 8 (defined as the higher of (x) the highest price per share
of Issuer Common Stock paid as of such date pursuant to any tender or exchange
offer or other Acquisition Proposal and (y) the average of the closing sale
prices of shares of Issuer Common Stock on the NASDAQS or, if not quoted
thereon, the principal trading market on which such shares are traded by a
recognized source for the 10 trading days immediately preceding such date)
exceeds (2) the Exercise Price, multiplied by the number of such Option Shares.
9. Registration Rights. (a) Issuer shall, if requested by Grantee at
any time and from time to time (a) within three years of the first exercise of
the Stock Option or (b) for 30 business days following the occurrence of either
of the events set forth in clauses (i) and (ii) of Section 2(d), as
expeditiously as possible prepare and file up to two registration statements
under the Securities Act if such registration is necessary in order to permit
the sale or other disposition of any or all shares of securities that have been
acquired by or are issuable to Grantee upon exercise of the Stock Option in
accordance with the intended method of sale or other disposition stated by
Grantee, including a "shelf' registration statement under Rule 415 under the
Securities Act or any successor provision, and Issuer shall use its best efforts
to qualify such shares or other securities under any applicable state securities
laws. Grantee agrees to use its best efforts to cause, and to cause any
underwriters of any sale or other disposition to cause, any sale or other
disposition pursuant to such registration statement to be effected on a widely
distributed basis so that upon consummation thereof no purchaser or transferee
shall own beneficially more than 4.9% of the then outstanding voting power of
Issuer. Issuer shall use all reasonable efforts to cause each such registration
statement to become effective, to obtain all consents or waivers of other
parties which are required therefor and to keep such registration statement
effective for such period not in excess of 180 days from the day such
registration statement first becomes effective as may be reasonably necessary to
effect such sale or other disposition. Any registration statement prepared and
filed under this Section 9, and any sale covered thereby, shall be at Issuer's
expense except for underwriting discounts or commissions, brokers' fees and the
fees and disbursements of Grantee's counsel related thereto.
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(b) In the event that Grantee requests Issuer to file a registration
statement following the failure to obtain a required approval for an exercise of
the Stock Option as described in Section 2(d), the closing of the sale or other
disposition of Issuer Common Stock or other securities pursuant to such
registration statement shall occur substantially simultaneously with the
exercise of the Stock Option.
(c) The obligations of Issuer under this Section 9 to file a
registration statement and to maintain its effectiveness may be suspended for
one or more periods of time not exceeding 60 days in the aggregate if the Board
of Directors of Issuer shall have determined that the filing of such
registration statement or the maintenance of its effectiveness would require
premature disclosure of nonpublic information that would materially and
adversely affect Issuer.
(d) If during the time periods referred to in the first sentence of
Section 9(a) Issuer effects a registration under the Securities Act of Issuer
Common Stock for its own account or for any other stockholders of Issuer (other
than on Form S-4 or Form S-8, or any successor form), Issuer shall allow Grantee
the right to participate in such registration, and such participation shall not
affect the obligation of Issuer to effect two registration statements for
Grantee under this Section 10; provided that, if the managing underwriters of
such offering advise Issuer in writing that in their opinion the number of
shares of Issuer Common Stock requested to be included in such registration
exceeds the number which can be sold in such offering, Issuer shall include the
shares requested to be included therein by Grantee pro rata with the shares
intended to be included therein by Issuer.
(e) Grantee shall provide all information reasonably requested by
Issuer for inclusion in any registration statement to be filed hereunder. In
connection with any registration pursuant to this Section 9, Issuer and Grantee
shall provide each other and any underwriter of the offering with customary
representations, warranties, covenants, indemnification and contribution in
connection with such registration.
10. Restrictive Legends. Each certificate representing Option Shares
issued to Grantee hereunder shall initially be endorsed with 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, AND MAY BE
REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
REGISTRATION AND APPLICABLE STATE SECURITIES LAWS IS AVAILABLE. SUCH
SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET
FORTH IN THE STOCK OPTION AGREEMENT, DATED MAY 14, 1997, A COPY OF WHICH
MAY BE OBTAINED FROM THE ISSUER HEREOF.
11. NASDAQS Listing. Upon any exercise of the Stock Option, Issuer
shall use its best efforts to cause the shares of Issuer Common Stock to be
acquired in connection with such exercise of the Stock Option to be approved for
listing on the NASDAQS and each other securities exchange on which such shares
are listed as soon as practicable after such exercise.
12. Assignment; Third Party Beneficiaries. (a) Neither this
Agreement nor any of the rights, interests or obligations of any party hereunder
shall be assigned by any of the parties
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hereto (whether by operation of law or otherwise) without prior written consent
of the other party; provided that Grantee may assign all or any part of its
rights hereunder to (i) any affiliate thereof or (ii) any person after the
occurrence of a Purchase Event. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns. This Agreement
(including the documents and instruments referred to herein) is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
(b) Any Option Shares sold by a party in compliance with the
provisions of Section 9 shall, upon consummation of such sale, be free of the
restrictions imposed with respect to such shares by this Agreement. In no event
will any transferee of any Option Shares be entitled to the rights of Grantee
hereunder.
(c) Certificates representing shares sold in a registered public
offering pursuant to Section 9 shall not be required to bear the legend set
forth in Section 10.
13. Enforcement of the Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
14. Entire Agreement. This Agreement and the Merger Agreement
(together with the other documents and instruments referred to in the Merger
Agreement) constitute the entire agreement and supersede all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
15. Further Assurances. Each party will execute and deliver all such
further documents and instruments and take all such further action as may be
necessary in order to consummate the transactions contemplated hereby.
16. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
17. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, mailed by
registered or certified mail (return
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receipt requested) or delivered by express courier (with confirmation) to the
parties at the following addresses (or such other address for a party as shall
be specified by like notice):
(a) If to Grantee, to:
Associated Banc-Corp
000 Xxxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, General Counsel
With a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx O'X. Xxxxxx
and
(b) If to Issuer, to:
First Financial Corporation
0000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, General Counsel
With a copy to:
Xxxxx & Xxxxxxx, L.L.P.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxx
18. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Wisconsin, without regard to any
applicable conflicts of law.
19. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
20. Counterparts. This Agreement may be executed in counterparts,
all of which shall be considered and shall become effective when counterparts
have been signed by each of the parties and delivered to the other parties, it
being understood that all parties need not sign the same counterpart.
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21. Expenses. Except as otherwise expressly provided herein or in
the Merger Agreement, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expense.
22. Amendments; Waiver. 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.
IN WITNESS WHEREOF, Issuer and Grantee have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
FIRST FINANCIAL CORPORATION
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
ASSOCIATED BANC-CORP
By: /s/ X.X. Xxxxxx
------------------------------------
Name: X.X. Xxxxxx
Title: Chief Executive Officer
