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EXHIBIT 99.3
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of December 15, 1999 (the "Agreement"),
by and between FIRST SAVINGS BANCORP, INC., a North Carolina corporation
("Issuer"), and FIRST BANCORP, a North Carolina corporation ("Grantee").
WHEREAS, Grantee and Issuer have entered into that certain Merger
Agreement, dated as of December 15, 1999 (the "Merger Agreement"), providing
for, among other things, the merger of Issuer with and into Grantee, with
Grantee as the surviving entity; and
WHEREAS, as a condition and inducement to Grantee's execution of the
Merger Agreement, Grantee has required that Issuer agree, and Issuer has
agreed, to grant Grantee the Option (as defined below);
NOW, THEREFORE, in consideration of the respective representations,
warranties, covenants, and agreements set forth herein and in the Merger
Agreement, and intending to be legally bound hereby, Issuer and Grantee agree
as follows:
1. DEFINED TERMS. Capitalized terms which are used but not defined
herein shall have the meanings ascribed to such terms in the Merger Agreement.
2. GRANT OF OPTION. Subject to the terms and conditions set forth
herein, Issuer hereby grants to Grantee an irrevocable option (the "Option") to
purchase a number of shares of common stock, no par value ("Issuer Common
Stock"), of Issuer up to 685,780 shares (as adjusted as set forth herein, the
"Option Shares"), but in no event shall the number of Option Shares for which
this Option is exercisable exceed 19.9% of the issued and outstanding shares of
Issuer Common Stock) at a purchase price per Option Share (the "Purchase
Price") equal to $18.125 (subject to adjustment as set forth herein).
3. EXERCISE OF OPTION.
(a) Provided that (i) Grantee or Holder (as hereinafter defined),
as applicable, shall not be in material breach of its agreements or covenants
contained in this Agreement or the Merger Agreement, and (ii) no preliminary or
permanent injunction or other order against the delivery of shares covered by
the Option issued by any court of competent jurisdiction in the United States
shall be in effect, Holder may exercise the Option, in whole or in part, at any
time and from time to time following the occurrence of a Purchase Event;
provided that the Option shall terminate and be of no further force and effect
upon the earliest to occur of (A) the Effective Time, (B) termination of the
Merger Agreement in accordance with the terms thereof prior to the occurrence
of a Purchase Event or a Preliminary Purchase Event (other than a termination
of the Merger Agreement by Grantee pursuant to SECTION 10.1(E) thereof if such
breach giving rise to such termination was willful (a "Default Termination")),
(C) 12 months after a Default Termination, (D) 12 months after termination of
the Merger Agreement (other than by a Default Termination) following the
occurrence of a Purchase Event or a Preliminary Purchase Event and (E) 18
months after the date hereof; provided, further, that any purchase of shares
upon exercise of the Option shall be subject to compliance with applicable law
(and the rules and regulations promulgated thereunder), including without
limitation the Bank Holding Company Act of 1956, as amended (the "BHC Act").
The term "Holder" shall mean Grantee and any permitted transferees of the
Options or Option Shares. The rights set forth in SECTION 8 shall terminate
when the right to exercise the Option terminates (other than as a result of a
complete exercise of the Option) as set forth herein.
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(b) As used herein, a "Purchase Event" means any of the following
events subsequent to the date of this Agreement:
(i) without Grantee's prior written consent, Issuer shall have
authorized, recommended, publicly 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 effect an Acquisition Transaction (as defined below). As used
herein, the term "Acquisition Transaction" shall mean (A) a merger,
consolidation, or similar transaction involving Issuer or any of its
subsidiaries (other than transactions solely between Issuer's
subsidiaries), (B) except as permitted pursuant to SECTION 7.1 of the
Merger Agreement, the disposition, by sale, lease, exchange, or
otherwise, of Assets of Issuer or any of its subsidiaries representing in
either case 25% or more of the consolidated Assets of Issuer and its
subsidiaries, or (C) the issuance, sale, or other disposition of
(including by way of merger, consolidation, share exchange, or any
similar transaction) securities representing 25% or more of the voting
power of Issuer or any of its subsidiaries (each of (A), (B) or (C), an
"Acquisition Transaction"); or
(ii) any person (other than Grantee or any subsidiary of Grantee)
shall have acquired beneficial ownership (as such term is defined in Rule
13d-3 promulgated under the Securities Exchange Act of 1934 (the
"Exchange Act") of or the right to acquire beneficial ownership of, or
any "group" (as such term is defined under the Exchange Act), other than
a group of which Grantee or any subsidiary of Grantee is a member, shall
have been formed which beneficially owns or has the right to acquire
beneficial ownership of, 25% or more of the then-outstanding shares of
Issuer Common Stock (not including acquisitions pursuant to which the
acquiror or acquiring group has successfully rebutted the presumption of
control pursuant to 12 C.F.R.ss.574.4(e) and has voted the securities so
acquired for the approval of the Mergers at any and all meetings of
shareholders of the Company called for that purpose or at which such
matter is considered (a "Rebuttal Acquisition")).
(c) As used herein, a "Preliminary 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 of 1933 (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 would own or
control 25% or more of the then-outstanding shares of Issuer Common Stock
(other than a Rebuttal Acquisition, such an offer being referred to
herein as a "Tender Offer" or an "Exchange Offer," respectively);
(ii) 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, such meeting shall not have been held
or shall have been canceled prior to termination of the Merger Agreement,
or Issuer's Board of Directors shall have withdrawn or modified in a
manner adverse to Grantee the recommendation of Issuer's Board of
Directors with respect to the Merger Agreement, in each case after it
shall have been publicly announced that any person (other than Grantee or
any subsidiary of Grantee) shall have (A) made, or disclosed an intention
to make, a proposal to engage in an Acquisition Transaction, (B)
commenced a Tender Offer or filed a registration statement under the
Securities Act with respect to an Exchange Offer, or (C) filed an
application (or given a notice), whether in draft or final form, under
the BHC Act, the Bank Merger Act, the Change in Bank Control Act of 1978
or other applicable law (and the
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rules and regulations promulgated thereunder), for approval to engage in
an Acquisition Transaction;
(iii) any person (other than Grantee or any subsidiary of Grantee)
shall have made, or disclosed an intention to make, a proposal to engage
in an Acquisition Transaction; or
(iv) any person (other than Grantee or any subsidiary of Grantee)
shall have filed an application (or given a notice), whether in draft or
final form, under the BHC Act, the Bank Merger Act, the Change in Bank
Control Act of 1978 or other applicable law (and the rules and
regulations promulgated thereunder), for approval to engage in an
Acquisition Transaction.
As used in this Agreement, "person" shall have the meaning specified in
Sections 3(a)(9) and 13(d)(3) of the Exchange Act.
(d) In the event Holder wishes to exercise the Option, it shall
send to Issuer a written notice (the date of which being herein referred to as
the "Notice Date") specifying (i) the total number of Option Shares it intends
to purchase pursuant to such exercise and (ii) a place and date not earlier
than three business days nor later than 15 business days from the Notice Date
for the closing (the "Closing") of such purchase (the "Closing Date"). If prior
notification to or approval of the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board"), the North Carolina Commissioner of Banks
(the "Commissioner") or any other regulatory authority is required in
connection with such purchase, Issuer shall cooperate with Holder in the filing
of the required notice or application for approval and the obtaining of such
approval and the Closing shall occur immediately following such regulatory
approvals (and any mandatory waiting periods). Any exercise of the Option shall
be deemed to occur on the Notice Date relating thereto.
(e) Notwithstanding any other provision of this Agreement to the
contrary, in no event shall Holder purchase under the terms of this Agreement
that number of Option Shares which have a Spread Value in excess of $2,500,000.
For purposes of this Agreement, "Spread Value" shall mean the difference
between (i) the product of (1) the sum of the total number of Option Shares (x)
Holder intends to purchase at the Closing Date pursuant to the prior exercise
of the Option and (y) previously purchased pursuant to the prior exercise of
the Option, and (2) the higher of (I) the most recent trading price of Issuer
Common Stock as quoted in the NASDAQ National Market or as may be available
from the best reliable source of such information on the last trading day
immediately preceding the Closing Date and (II) the consideration per share of
Issuer Common Stock to be offered or paid to or received by holders of Issuer
Common Stock in connection with an Acquisition Transaction (provided, that if
the consideration to be offered, paid, or received shall be other than in cash,
the value of such consideration shall be determined in good faith by an
independent nationally recognized investment banking firm selected by Holder
and reasonably acceptable to Issuer, which determination shall be conclusive
for all purposes of this Agreement), and (ii) the product of (1) the total
number of Option Shares (x) Holder intends to purchase at the Closing Date
pursuant to the exercise of the Option and (y) previously purchased pursuant to
the prior exercise of the Option and (2) the applicable Purchase Price of such
Option Shares. In the event the Spread Value exceeds $2,500,000, the number of
Option Shares which Grantee is entitled to purchase at the Closing Date shall
be reduced to that number of shares necessary such that the Spread Value equals
or is less than $2,500,000.
(f) If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or a federal or state
regulatory agency to be invalid, void, or unenforceable, the remainder of the
terms, provisions, covenants, and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired, or
invalidated. Notwithstanding anything to the contrary contained herein, if for
any reason such court or regulatory agency determines
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that the Option does not permit Holder to acquire, or does not require Issuer
to repurchase, the full number of shares of Issuer Common Stock as provided in
SECTIONS 3 and 8 (as adjusted pursuant to SECTION 7), it is the express
intention of Issuer to allow Holder to have the option (A) to acquire or to
require Issuer to repurchase such lesser number of shares as may be permissible
without any amendment of modification hereof, or (b) have Issuer pay the Holder
in cash the amount of $2,500,000.
4. PAYMENT AND DELIVERY OF CERTIFICATES.
(a) On each Closing Date, Holder shall (i) pay to Issuer, in
immediately available funds by wire transfer to a bank account designated by
Issuer, an amount equal to the Purchase Price multiplied by the number of
Option Shares to be purchased on such Closing Date, and (ii) present and
surrender this Agreement to the Issuer at the address of the Issuer specified
in SECTION 12(F) hereof.
(b) At each Closing, simultaneously with the delivery of
immediately available funds and surrender of this Agreement as provided in
SECTION 4(A), (i) Issuer shall deliver to Holder (A) a certificate or
certificates representing the Option Shares to be purchased at such Closing,
which Option Shares shall be free and clear of all liens, claims, charges, and
encumbrances of any kind whatsoever and subject to no pre-emptive rights, and
(B) if the Option is exercised in part only, an executed new agreement with the
same terms as this Agreement evidencing the right to purchase the balance of
the shares of Issuer Common Stock purchasable hereunder, and (ii) Holder shall
deliver to Issuer a letter agreeing that Holder shall not offer to sell or
otherwise dispose of such Option Shares in violation of applicable federal and
state law or of the provisions of this Agreement.
(c) In addition to any other legend that is required by applicable
law, certificates for the Option Shares delivered at each Closing shall be
endorsed with a restrictive legend which shall read substantially as follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND PURSUANT TO THE TERMS OF A STOCK OPTION AGREEMENT
DATED AS OF DECEMBER 15, 1999. A COPY OF SUCH AGREEMENT WILL BE
PROVIDED TO THE HOLDER HEREOF WITHOUT CHARGE UPON RECEIPT BY THE
ISSUER OF A WRITTEN REQUEST THEREFOR.
It is understood and agreed that the above legend shall be removed by delivery
of substitute certificate(s) without such legend if Holder shall have delivered
to Issuer a copy of a letter from the staff of the SEC, or an opinion of
counsel in form and substance reasonably satisfactory to Issuer and its
counsel, to the effect that such legend is not required for purposes of the
Securities Act.
5. REPRESENTATIONS AND WARRANTIES OF ISSUER. Issuer hereby represents
and warrants to Grantee as follows:
(a) Issuer has all requisite corporate power and authority to
enter into this Agreement and, subject to any required regulatory approvals, to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of the
Issuer. This Agreement has been duly executed and delivered by Issuer.
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(b) Issuer has taken all necessary corporate and other action to
authorize and reserve and to permit it to issue, and, at all times from the
date hereof until the obligation to deliver Issuer Common Stock upon the
exercise of the Option terminates, will have reserved for issuance, upon
exercise of the Option, the number of shares of Issuer Common Stock necessary
for Grantee to exercise the Option, and Issuer will take all necessary
corporate action to authorize and reserve for issuance all additional shares of
Issuer Common Stock or other securities that may be issued pursuant to SECTION
7 upon exercise of the Option. The shares of Issuer Common Stock to be issued
upon due exercise of the Option, including all additional shares of Issuer
Common Stock or other securities that may be issuable pursuant to SECTION 7,
upon issuance pursuant hereto, shall be duly and validly issued, fully paid,
and nonassessable, and shall be delivered free and clear of all liens, claims,
charges, and encumbrances of any kind or nature whatsoever, including any
preemptive rights of any stockholder of Issuer.
6. REPRESENTATIONS AND WARRANTY OF GRANTEE. Grantee hereby represents
and warrants to Issuer that:
(a) Grantee has all requisite corporate power and authority to
enter into this Agreement and, subject to any approvals or consents referred to
herein, to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Grantee. This Agreement has been duly executed and delivered by
Grantee.
(b) This Option is not being, and any Option Shares or other
securities acquired by Grantee upon exercise of the Option will not be,
transferred or otherwise disposed of except in a transaction registered or
exempt from registration under the Securities Laws.
7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC.
(a) In the event of any change in Issuer Common Stock by reason
of a stock dividend, stock split, 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 Price therefor, shall be
adjusted appropriately, and proper provision shall be made in the agreements
governing such transaction so that Holder shall receive, upon exercise of the
Option, the number and class of shares or other securities or property that
Holder would have received in respect of Issuer 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 Issuer Common Stock are issued after
the date of this Agreement (other than pursuant to an event described in the
first sentence of this SECTION 7(A)), the number of shares of Issuer Common
Stock subject to the Option shall be adjusted so that, after such issuance, it,
together with any shares of Issuer Common Stock previously issued pursuant
hereto, equals 19.9% of the number of shares of Issuer Common Stock then issued
and outstanding, without giving effect to any shares subject to or issued
pursuant to the Option.
(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
then-outstanding shares of Issuer Common Stock 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 outstanding shares of Issuer Common Stock
immediately prior to such merger shall after such merger represent less than
50% of the outstanding shares and share equivalents 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
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shall make proper provisions so that upon the consummation of any such
transaction and upon the terms and conditions set forth herein, Holder shall
receive for each Option Share with respect to which the Option has not been
exercised an amount of consideration ("Net Consideration") in the form of and
equal to the per share amount of consideration that would be received by the
holder of one share of Issuer Common Stock less the Purchase Price (and, in the
event of an election or similar arrangement with respect to the type of
consideration to be received by the holders of Issuer Common Stock, subject to
the foregoing, proper provision shall be made so that the holder of the Option
would have the same election or similar rights as would the holder of the
number of shares of Issuer Common Stock for which the Option is then
exercisable); provided, that if the sum of (A) the aggregate value of the Net
Consideration to be received by Holder pursuant to this SECTION 7(B) and (B)
the consideration to be received for Option Shares with respect to which the
Option shall have previously been exercised, less the aggregate Purchase Price
paid therefor (collectively, the "Total Consideration") shall exceed
$2,500,000, then the Net Consideration shall be reduced to the extent necessary
such that the Total Consideration equals or is less than $2,500,000. If the
consideration to be offered, paid, or received pursuant to this SECTION 7(B)
shall be other than in cash, the value of such consideration shall be
determined in good faith by an independent nationally recognized investment
banking firm selected by Holder and reasonably acceptable to Issuer, which
determination shall be conclusive for all purposes of this Agreement.
8. REPURCHASE AT THE OPTION OF HOLDER.
(a) Subject to the last sentence of SECTION 3(A), at the request
of Holder at any time commencing upon the first occurrence of a Repurchase
Event (as defined in SECTION 8(D)) that occurs prior to the termination of this
Option pursuant to SECTION 3(A) hereof, Issuer shall repurchase from Holder the
Option and all shares of Issuer Common Stock purchased by Holder pursuant
hereto with respect to which Holder then has beneficial ownership. The date on
which Holder exercises its rights under this SECTION 8 is referred to as the
"Request Date." Such repurchase shall be at an aggregate price (the "Repurchase
Consideration") equal to the sum of:
(i) the aggregate Purchase Price paid by Holder for any shares of
Issuer Common Stock acquired pursuant to the Option with respect to which
Holder then has beneficial ownership;
(ii) the excess, if any, of (x) the Applicable Price (as defined
below) for each share of Issuer Common Stock over (y) the Purchase Price
(subject to adjustment pursuant to SECTION 7), multiplied by the number
of shares of Issuer Common Stock with respect to which the Option has not
been exercised; and
(iii) the excess, of any, of the Applicable Price over the Purchase
Price (subject to adjustment pursuant to SECTION 7) paid (or, in the case
of Option Shares with respect to which the Option has been exercised but
the Closing Date has not occurred, payable) by Holder for each share of
Issuer Common Stock with respect to which the Option has been exercised
and with respect to which Holder then has beneficial ownership,
multiplied by the number of such shares;
provided, that the amounts to be paid pursuant to clauses (ii) and (iii) above
shall not exceed $2,500,000.
(b) If Holder exercises its rights under this SECTION 8, Issuer
shall, within ten business days after the Request Date (the "Repurchase
Closing"), pay the Repurchase Consideration to Holder in immediately available
funds, and contemporaneously with such payment Holder shall surrender to Issuer
the Option and the certificates evidencing the shares of Issuer Common Stock
purchased thereunder with respect to which Holder then has beneficial
ownership, and Holder shall warrant that it
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has sole record and beneficial ownership of such shares and that the same are
then free and clear of all liens, claims, charges, and encumbrances of any kind
whatsoever.
Notwithstanding the foregoing, to the extent that prior notification to
or approval of any regulatory authority is required in connection with the
payment of all or any portion of the Repurchase Consideration, Holder shall
have the ongoing option to revoke its request for repurchase pursuant to
SECTION 8, in whole or in part, or to require that Issuer deliver from time to
time that portion of the Repurchase Consideration that it is not then so
prohibited from paying and promptly file the required notice or application for
approval and expeditiously process the same (and each party shall cooperate
with the other in the filing of any such notice or application and the
obtaining of any such approval). If any regulatory authority disapproves of any
part of Issuer's proposed repurchase pursuant to this SECTION 8, Issuer shall
promptly give notice of such fact to Holder. If any regulatory authority or
other agency prohibits the repurchase in part but not in whole, then Holder
shall have the right (i) to revoke the repurchase request or (ii) to the extent
permitted by such regulatory authority or other agency, determine whether the
repurchase should apply to the Option and/or Option Shares and to what extent
to each, and Holder shall thereupon have the right to exercise the Option as to
the number of Option Shares for which the Option was exercisable at the Request
Date less the sum of (A) the number of shares covered by the Option in respect
of which payment has been made pursuant to SECTION 8(A)(II) and (B) the number
of shares covered by the portion of the Option (if any) that has been
repurchased. Holder shall then notify Issuer of its determination under the
preceding sentence within five business days of receipt of notice of
disapproval of the repurchase.
Notwithstanding anything herein to the contrary, all of Holder's rights
under this SECTION 8 shall terminate on the date of termination of this Option
pursuant to SECTION 3(A).
(c) For purposes of this Agreement, the "Applicable Price" means
the highest of (i) the highest price per share of Issuer Common Stock paid for
any such share by the person or groups described in SECTION 8(D)(I), (ii) the
price per share of Issuer Common Stock received by holders of Issuer Common
Stock in connection with any merger or other business combination transaction
described in SECTION 7(B), or (iii) the highest closing sales price per share
of Issuer Common Stock quoted on the NASDAQ National Market (or if Issuer
Common Stock is not quoted on the NASDAQ National Market, the highest price per
share as quoted on the principal trading market or securities exchange on which
such shares are traded or as reported by a recognized source chosen by Holder)
during the 60 business days preceding the Request Date; provided, however, that
in the event of a sale of less than all of Issuer's Assets, the Applicable
Price shall be the sum of (A) the price paid in such sale for such Assets and
(B) the current market value of the remaining Assets of Issuer as determined by
an independent nationally recognized investment banking firm selected by Holder
and reasonably acceptable to Issuer (which determination shall be conclusive
for all purposes of this Agreement), divided by the number of shares of the
Issuer Common Stock outstanding at the time of such sale. If the consideration
to be offered, paid, or received pursuant to either of the foregoing clauses
(i) or (ii) shall be other than in cash, the value of such consideration shall
be determined in good faith by an independent nationally recognized investment
banking firm selected by Holder and reasonably acceptable to Issuer, which
determination shall be conclusive for all purposes of this Agreement.
(d) As used herein, "Repurchase Event" shall occur if (i) any
person (other than Grantee or any subsidiary of Grantee) shall have acquired
beneficial ownership (as such term is defined in Rule 13d-3 promulgated under
the Exchange Act) or any "group" (as such term is defined under the Exchange
Act) shall have been formed that beneficially owns 50% or more of the
then-outstanding shares of Issuer Common Stock, or (ii) any of the transactions
described in SECTION 7(B) shall be consummated (provided that entering into an
agreement to consummate any of such transactions shall not be deemed for the
purpose of this paragraph to be the consummation of any such transaction).
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9. REGISTRATION RIGHTS. Issuer shall, upon request by any Holder at
any time and from time to time within 2 years of the first exercise of the
Option, as expeditiously as is practicable, prepare and file a registration
statement under the Securities Laws, if such registration is necessary in order
to permit the sale or other disposition of any or all shares of Issuer Common
Stock or other securities that have been acquired by or are issuable to Holder
upon exercise of the Option in accordance with the intended method of sale or
other disposition, including a "shelf" registration statement under Rule 415
under the Securities Act or any successor provision. Issuer shall use its
reasonable best efforts to qualify such shares or other securities, or the
offering thereof, for sale under any applicable state securities laws, to cause
any such registration statement to become effective, to obtain all consents or
waivers of other parties that are required for such registration statement and
to keep any such registration statement updated and effective for a period not
to exceed 270 days from the day such registration statement becomes effective
as may be reasonably necessary to effect such sale or other disposition. The
first registration statement prepared under this SECTION 9 and any sale covered
thereby, shall be at Issuer's expense except for underwriting discounts or
commissions, brokers fees and fees and disbursements of the Holder's counsel
related thereto. Any subsequent registration, other than a Piggyback
Registration (as defined below) shall be at Holder's expense. Holder shall
provide all information reasonably requested by Issuer for inclusion in any
registration statement to be prepared hereunder. If during the time periods
referred to in the first sentence of this SECTION 9, Issuer proposes to
register any shares of the Issuer's Common Stock under the Securities Act for
its own account or for any other shareholders of Issuer (other than on Form S-4
or Form S-8, or any successor form), it shall first allow Holder the right to
participate in such offering (a "Piggyback Registration"), and such
participation shall not affect the obligation of Issuer to effect registration
statements for Holder under this SECTION 9; provided that, if the managing
underwriters of such offering advise Issuer in writing that in their opinion
the number of shares of Issuer securities requested to be included in such
registration statement exceeds the number that can be sold in such offering,
Issuer shall include the shares requested to be included therein by Holder only
to the maximum extent such managing underwriters determine to be feasible. In
connection with any registration statement pursuant to this SECTION 9, Issuer
and Holder shall provide each other and any underwriter of the offering with
customary representations, warranties, covenants, indemnification and
contribution in connection therewith.
10. QUOTATION; LISTING. If Issuer Common Stock or any other securities
to be acquired upon exercise of the Option are then authorized for quotation or
trading or listing on the Nasdaq National Market or any national securities
exchange or any other automated quotations system maintained by a
self-regulatory organization, Issuer, upon the request of Holder, will promptly
file an application, if required, to authorize for quotation or trading or
listing the shares of Issuer Common Stock or other securities to be acquired
upon exercise of the Option on the Nasdaq National Market or any national
securities exchange or any other automated quotations system maintained by a
self-regulatory organization and will use its best efforts to obtain approval,
if required, of such quotation or listing as soon as practicable.
11. DIVISION OF OPTION. This Agreement (and the Option granted hereby)
are exchangeable, without expense, at the option of Holder, upon presentation
and surrender of this Agreement at the principal office of Issuer for other
Agreements providing for Options of different denominations entitling the
holder thereof to purchase in the aggregate the same number of shares of Issuer
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
Issuer 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, Issuer 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
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Issuer, whether or not the Agreement so lost, stolen, destroyed, or
mutilated shall at any time be enforceable by anyone.
12. 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) Waiver and Amendment. Any provision of this Agreement may be
waived in writing at any time by the party that is entitled to the benefits of
such provision. This Agreement may not be modified, amended, altered, or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
(c) Entire Agreement; No Third-Party Beneficiary; Severability.
This Agreement, together with the Merger Agreement and the other documents and
instruments referred to herein and therein, (a) constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof and (b)
is not intended to confer upon any person other than the parties hereto any
rights or remedies hereunder.
(d) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of North Carolina without regard to any
applicable conflicts of law rules.
(e) Descriptive Headings. The descriptive headings contained
herein are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
(f) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, telecopied
(with confirmation), or mailed by registered or certified mail (return receipt
requested) to the parties at the addresses set forth in the Merger Agreement
(or at such other address for a party as shall be specified by like notice).
(g) Counterparts. This Agreement and any amendments hereto may be
executed in two counterparts, each of which shall be considered one and the
same agreement and shall become effective when both counterparts have been
signed, it being understood that both parties need not sign the same
counterpart.
(h) Assignment. Neither this Agreement nor any of the rights,
interests, or obligations hereunder or under the Option shall be assigned by
any of the parties hereto (whether by operation of law or otherwise) without
the prior written consent of the other party, except that Grantee may assign
this Agreement to a wholly owned subsidiary of Grantee. Subject to the
preceding sentence, this Agreement shall be binding upon, inure to the benefit
of, and be enforceable by the parties and their respective successors and
assigns.
(i) Further Assurances. In the event of any exercise of the
Option by Holder, Issuer and Holder shall execute and deliver all other
documents and instruments and take all other action that may be reasonably
necessary in order to consummate the transactions provided for by such
exercise.
(j) Specific Performance. The parties hereto agree that this
Agreement may be enforced by either party through specific performance,
injunctive relief, and other equitable relief. Both
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parties further agree to waive any requirement for the securing or posting of
any bond in connection with the obtaining of any such equitable relief and that
this provision is without prejudice to any other rights that the parties hereto
may have for any failure to perform this Agreement.
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IN WITNESS WHEREOF, Issuer and Grantee have caused this Stock Option
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the day and year first written above.
ISSUER:
FIRST SAVINGS BANCORP, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: President
GRANTEE:
FIRST BANCORP
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President and CEO
