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EXHIBIT 2
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OPTION AGREEMENT
Option Agreement, dated as of December 28, 1996 (this "Agreement"), by and
between Liberty Bancorp, Inc., a corporation organized under the laws of the
State of Oklahoma ("LIBERTY") and BANC ONE CORPORATION, a corporation organized
under the laws of the State of Ohio ("BANC ONE").
W I T N E S S E T H :
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WHEREAS, LIBERTY and Banc One Oklahoma Corporation , an Ohio corporation and a
wholly owned subsidiary of BANC ONE ("BANC ONE OKLAHOMA"), together with BANC
ONE, have executed a Merger Agreement dated as of December 28, 1996 (the "Merger
Agreement") providing for the merger of LIBERTY with and into BANC ONE OKLAHOMA,
pursuant to which BANC ONE will acquire LIBERTY;
WHEREAS, Section 21 of the Merger Agreement provides that LIBERTY will execute
and deliver an option agreement, substantially in the form of this Agreement, to
BANC ONE prior to the close of business December 31, 1996;
NOW THEREFORE, in consideration of said Merger Agreement and their mutual
promises and obligations, the parties hereto adopt and make this Agreement as
follows:
1. LIBERTY hereby grants to BANC ONE an irrevocable option (the "Option") to
purchase in accordance with the terms of this Option Agreement at the
closing trade price of a share of the Common Stock, of LIBERTY ("LIBERTY
Common"), on December 30, 1996, as reported on the National Association of
Securities Dealers Automated Quotation System National Market System, per
share (the "Per Share Price") in cash up to 1,879,570 authorized but
unissued shares of LIBERTY Common (the "Optioned Shares"). The Option shall
expire (such event being referred to herein as the "Option Termination
Event") if not exercised as permitted under this Agreement prior to the
earlier of (i) at the time the merger of LIBERTY into BANC ONE OKLAHOMA
becomes effective as set forth and defined in Section 4 of the Merger
Agreement (the "Effective Time"), (ii) BANC ONE or LIBERTY receiving
written notice from the Board of Governors of the Federal Reserve System
(the "Board") or its staff to the effect that the exercise of the Option
pursuant to the terms of this Agreement is not consistent with Section 3 of
the Bank Holding Company Act of 1956, as amended, (iii) termination of the
Merger Agreement by BANC ONE in accordance with the provisions of Section
26 of the Merger Agreement if such termination occurs prior to the
occurrence of an Initial Triggering Event (as hereinafter defined), (iv)
the first business day after the five hundred and forty-eighth calendar day
following termination of the Merger Agreement by BANC ONE in accordance
with the provisions of Section 26 thereof, if such termination follows the
occurrence of an Initial Triggering Event, provided that the Option shall
in all events expire not later than 24 months after such Initial Triggering
Event, (v) termination of the Merger Agreement by LIBERTY in accordance
with the provisions of Section 26 thereof, or (vi) termination of the
Merger Agreement by mutual consent of BANC ONE and
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LIBERTY. If, in the case of (iv), the Option is otherwise exercisable but
cannot be exercised on such day solely because of any injunction, order or
similar restraint issued by a court of competent jurisdiction, the Option
shall expire on the twentieth business day after such injunction, order or
restraint shall have been dissolved or when such injunction, order or
restraint shall have become permanent and no longer subject to appeal, as
the case may be.
2. Provided that (i) no preliminary or permanent injunction or other order
issued by any Federal or state court of competent jurisdiction in the
United States prohibiting the exercise of the Option or the delivery of the
Optioned Shares shall be in effect and (ii) any such exercise shall
otherwise be subject to compliance with applicable law and (iii) BANC ONE
is not then in material breach of the Merger Agreement, BANC ONE may
exercise the Option in whole or in part at any time or from time to time
after the occurrence of both an Initial Triggering Event and a Purchase
Event (as defined in Section 4 of this Agreement) if, but only if, both the
Initial Triggering Event and the Purchase Event shall have occurred prior
to the occurrence of an Option Termination Event. In the event that BANC
ONE wishes to exercise the Option, BANC ONE shall give written notice of
such exercise (the date of such notice being herein called the "Notice
Date") within 30 days following such Purchase Event to LIBERTY specifying
the number of Optioned Shares it will purchase pursuant to such exercise
and a place and date for the closing of such purchase which date shall be
within 45 days following the receipt of the last of any required regulatory
approvals, but in any event, within 365 days of the Purchase Event, subject
to reasonable extensions in order for BANC ONE to obtain required
regulatory approvals.
3. At any closing of the exercise of the Option, (i) BANC ONE will make
payment to LIBERTY of the aggregate price for the Optioned Shares in
immediately available funds, in an amount equal to the product of the Per
Share Price multiplied by the number of Optioned Shares being purchased at
such closing and (ii) LIBERTY will deliver to BANC ONE a duly executed
certificate or certificates representing the number of Optioned Shares so
purchased, registered in the name of BANC ONE or its nominee in the
denominations designated by BANC ONE in its notice of exercise. Unless
counsel for LIBERTY and BANC ONE agree that such shares are not "restricted
shares" under federal and/or state securities laws, certificates for such
shares shall bear a legend to that effect.
4. For purposes of this Agreement, an "Initial Triggering Event" shall have
occurred at such time as one of the following events shall have occurred
and BANC ONE shall have determined in good faith (and shall have notified
LIBERTY in writing of such determination) that there is a reasonable
likelihood that, as a result of the occurrence of any of the following
events, consummation of the Merger pursuant to the term of this Merger
Agreement is jeopardized: (i) any person as defined in secs. 3(a)(9) or
13(d)(3) of the Securities Exchange Act of 1934, as amended (the "1934
Act") (other than BANC ONE or any BANC ONE subsidiary or affiliate) shall
have commenced a bona fide offer to purchase shares of LIBERTY Common such
that, upon consummation of said offer, such person would own or control 10%
or more of the outstanding shares of LIBERTY Common, or shall have entered
into an agreement with LIBERTY, or shall have filed an application or
notice with the Board or any other federal or state regulatory agency for
clearance or approval, to (A) merge or consolidate or enter into any
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similar transaction, with LIBERTY, (B) purchase, lease or otherwise acquire
all or substantially all of the assets of LIBERTY or (C) purchase or
otherwise acquire (including by way of merger, consolidation, share
exchange or any similar transaction) securities representing 10% or more of
the voting power of LIBERTY; (ii) any person (other than BANC ONE, BANC ONE
OKLAHOMA, any BANC ONE subsidiary or affiliate, any subsidiary of LIBERTY
("LIBERTY Subsidiary") in a fiduciary capacity) or any current shareholder
of LIBERTY which has beneficial ownership of 10% or more of the outstanding
shares of LIBERTY Common (a "Current 10% Shareholder") shall have acquired
beneficial ownership or the right to acquire beneficial ownership of 10% or
more of the outstanding shares of LIBERTY Common (the term "beneficial
ownership" for purposes of this Agreement having the meaning assigned
thereto in Section 13(d) of the 0000 Xxx) or, in the case of a Current 10%
Shareholder, said Current 10% Shareholder shall have acquired beneficial
ownership or the right to acquire beneficial ownership of 10% or more of
the outstanding shares of LIBERTY Common in addition to those beneficially
owned as of the date hereof; (iii) any person (other than BANC ONE or any
BANC ONE subsidiary or affiliate) shall have made a bona fide proposal to
LIBERTY after the date of the Merger Agreement by public announcement or
written communication that is the subject of public disclosure or
regulatory report or filing to (A) acquire LIBERTY by merger,
consolidation, purchase of all or substantially all of its assets or any
other similar transaction, or (B) make an offer described in clause (i),
above; (iv) any person shall have solicited proxies in a proxy solicitation
subject to Regulation 14A under the 1934 Act in opposition to approval of
the Merger Agreement by LIBERTY's shareholders; or (v) or LIBERTY shall
have willfully breached any provision of the Merger Agreement, which breach
would entitle BANC ONE to terminate the Merger Agreement and such breach
shall not have been cured pursuant to the terms of the Merger Agreement.
For purposes of this Agreement, a "Purchase Event" shall have occurred at
such time as (i) any person (other than BANC ONE or any BANC ONE subsidiary
or affiliate) acquires beneficial ownership of 50% or more of the
then-outstanding shares of LIBERTY Common, or (ii) LIBERTY enters into an
agreement with another person (other than BANC ONE or any BANC ONE
subsidiary) pursuant to which such person is entitled to acquire 50% or
more of the then-outstanding shares of LIBERTY Common.
5. If between the date of the Merger Agreement and the Effective Time, the
shares of LIBERTY Common shall be changed into a different number of shares
by reason of any reclassification, recapitalization, split-up, combination
or exchange of shares, or if a stock dividend thereon shall be declared
with a record date within said period (an "Event"), the number of Optioned
Shares and the Per Share Price shall be adjusted appropriately so as to
restore BANC ONE to its rights hereunder, including, without limitation,
its right to purchase that number of additional shares (the "Additional
Optioned Shares") representing ownership of the voting power of the capital
stock of LIBERTY (in addition to shares of LIBERTY Common acquired other
than pursuant to any exercise of the Option) so that the ratio of (x) the
sum of (A) the Optioned Shares (including such Additional Optioned Shares,
if any, calculated as a result of one or more earlier Events) plus (B) the
Additional Optioned Shares, over the total number of shares of LIBERTY
Common issued and outstanding after each such Event, shall be equal to the
ratio of (y) the sum of (C) 1,879,570 plus (D) such Additional Optioned
Shares, if any, calculated as a result of one or more earlier Events, over
the total number of shares of
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LIBERTY Common issued and outstanding immediately prior to each such Event,
at an adjusted per share purchase price equal to the Per Share Price
multiplied by a fraction, the numerator of which shall be equal to the
number of shares of LIBERTY Common purchasable prior to the adjustment and
the denominator of which shall be equal to the number of shares of LIBERTY
Common purchasable after the adjustment; provided, however, that nothing in
this Option shall be construed as permitting LIBERTY to take any action or
enter into any transaction prohibited by this Agreement.
6. LIBERTY shall, if requested by BANC ONE, as expeditiously as possible file
a registration statement on a form of general use under the Securities Act
of 1933, as amended, if necessary in order to permit the sale or other
disposition of the shares of LIBERTY Common that have been acquired upon
exercise of the Option in accordance with the intended method of sale or
other disposition requested by BANC ONE. BANC ONE shall provide all
information reasonably requested by LIBERTY for inclusion in any
registration statement to be filed hereunder. LIBERTY will use its best
efforts to cause such registration statement first to become effective and
then to remain effective for such period not in excess of two hundred and
seventy calendar days from the day such registration statement first
becomes effective as may be reasonably necessary to effect such sales or
other dispositions. The registration effected under this Section 6 shall be
at LIBERTY's expense except for all filing and agency fees and commissions
and underwriting discounts and commissions attributable to the sale of such
securities and fees and disbursements of BANC ONE's counsel related
thereto, which amounts shall be borne by BANC ONE. In no event shall
LIBERTY be required to effect more than one registration hereunder. The
filing of any registration statement hereunder may be delayed for such
period of time as may reasonably be required if LIBERTY determines that any
such filing or the offering of any such shares of LIBERTY Common would (i)
impede, delay or otherwise interfere with any financing, offer or sale of
LIBERTY Common or any other securities of LIBERTY, or (ii) require
disclosure of material information which, if disclosed at that time, would
be materially harmful to the interests of LIBERTY and its shareholders. If
requested by BANC ONE in connection with any such registration, LIBERTY
will become a party to any underwriting agreement relating to the sale of
such shares, but only to the extent of obligating itself in respect of
representations, warranties, indemnities and other agreements customarily
required of issuers. Neither this Option Agreement nor the Option are
assignable by BANC ONE. BANC ONE and LIBERTY agree to use their respective
reasonable efforts to cause, and to cause any underwriters of any sale or
other disposition to cause, any sale or other disposition of the Optioned
Shares and any Additional Optioned Shares to be effected on a widely
distributed basis.
7. Notices. All notices and other communications hereunder may be made by
mail, hand-delivery or by courier service. If notices and other
communications are made by nationally recognized overnight courier service
for overnight delivery, such notice shall be deemed to have been given one
business day after being forwarded to such a nationally recognized
overnight courier service for overnight delivery. All notices and other
communications hereunder given to any party shall be communicated to the
remaining party to this Agreement by mail or by hand-delivery in the same
manner as herein provided.
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(a) If to BANC ONE, to:
BANC ONE CORPORATION
Attention of: Chief Executive Officer
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
With a copy to:
BANC ONE CORPORATION
Attention of: Xxxxxx X. Xxxxxxx
General Counsel
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
(b) If to LIBERTY, to:
Liberty Bancorp, Inc.
Attention of: Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
000 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
With a copies to:
Wachtell, Lipton, Xxxxx & Xxxx
Attention of: Xxxxxx X. Xxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
and
Xxxxx & Xxxxxxx
Attention of: Xxxxxxx X. Xxxxxxx
1800 Mid-America Tower
00 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
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IN WITNESS WHEREOF, this Agreement has been executed the day and year first
above written.
BANC ONE CORPORATION
ATTEST:
By:
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Xxxxxxx X. Xxxxxxxx
its Senior Executive Vice President
Liberty Bancorp, Inc.
ATTEST:
By:
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Xxxxxxx X. Xxxxxx
its Chairman of the Board and
Chief Executive Officer
