Execution Copy
AGREEMENT AND PLAN OF MERGER
BETWEEN
FCB FINANCIAL CORP.
AND
OSB FINANCIAL CORP.
November 13, 1996
TABLE OF CONTENTS
Page
ARTICLE I THE MERGER . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 The Merger . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Effective Time . . . . . . . . . . . . . . . . . . . . . 2
1.3 Effects of the Merger . . . . . . . . . . . . . . . . . 2
1.4 Conversion of OSB Common Stock; Treatment of FCB Common
Stock . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Stock Options . . . . . . . . . . . . . . . . . . . . . 3
1.6 Articles of Incorporation . . . . . . . . . . . . . . . 3
1.7 By-Laws . . . . . . . . . . . . . . . . . . . . . . . . 3
1.8 Tax Consequences . . . . . . . . . . . . . . . . . . . . 4
1.9 Plans for Management Succession . . . . . . . . . . . . 4
1.10 Board of Directors of the Surviving Corporation . . . . 4
1.11 Headquarters of the Surviving Corporation . . . . . . . 5
1.12 Closing . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II CONVERSION OF SHARES . . . . . . . . . . . . . . . 5
2.1 FCB to Make Shares Available . . . . . . . . . . . . . . 5
2.2 Exchange of Certificates . . . . . . . . . . . . . . . . 5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF OSB . . . . . . . 7
3.1 Corporate Organization . . . . . . . . . . . . . . . . . 7
3.2 Capitalization . . . . . . . . . . . . . . . . . . . . . 8
3.3 Authority; No Violation . . . . . . . . . . . . . . . . 9
3.4 Consents and Approvals . . . . . . . . . . . . . . . . . 9
3.5 Reports . . . . . . . . . . . . . . . . . . . . . . . . 10
3.6 Financial Statements . . . . . . . . . . . . . . . . . . 10
3.7 Broker's Fees . . . . . . . . . . . . . . . . . . . . . 11
3.8 Absence of Certain Changes or Events . . . . . . . . . . 11
3.9 Legal Proceedings . . . . . . . . . . . . . . . . . . . 11
3.10 Taxes and Tax Returns . . . . . . . . . . . . . . . . . 11
3.11 Employees . . . . . . . . . . . . . . . . . . . . . . . 12
3.12 SEC Reports . . . . . . . . . . . . . . . . . . . . . . 13
3.13 Compliance with Applicable Law . . . . . . . . . . . . . 13
3.14 Certain Contracts . . . . . . . . . . . . . . . . . . . 14
3.15 Agreements with Regulatory Agencies . . . . . . . . . . 15
3.16 Other Activities of OSB and its OSB Subsidiaries . . . . 15
3.17 Investment Securities . . . . . . . . . . . . . . . . . 15
3.18 Undisclosed Liabilities . . . . . . . . . . . . . . . . 15
3.19 Insurance . . . . . . . . . . . . . . . . . . . . . . . 15
3.20 Loan Loss Reserves . . . . . . . . . . . . . . . . . . . 16
3.21 Environmental Liability . . . . . . . . . . . . . . . . 16
3.22 Approval Delays . . . . . . . . . . . . . . . . . . . . 16
3.23 Vote Required . . . . . . . . . . . . . . . . . . . . . 16
3.24 Applicability of Certain Provisions of Wisconsin Law,
Etc . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.25 Ownership of FCB Common Stock . . . . . . . . . . . . . 16
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF FCB . . . . . . . 17
4.1 Corporate Organization . . . . . . . . . . . . . . . . . 17
4.2 Capitalization . . . . . . . . . . . . . . . . . . . . . 17
4.3 Authority; No Violation . . . . . . . . . . . . . . . . 18
4.4 Consents and Approvals . . . . . . . . . . . . . . . . . 19
4.5 Reports . . . . . . . . . . . . . . . . . . . . . . . . 19
4.6 Financial Statements . . . . . . . . . . . . . . . . . . 19
4.7 Broker's Fees . . . . . . . . . . . . . . . . . . . . . 20
4.8 Absence of Certain Changes or Events . . . . . . . . . . 20
4.9 Legal Proceedings . . . . . . . . . . . . . . . . . . . 20
4.10 Taxes and Tax Returns . . . . . . . . . . . . . . . . . 20
4.11 Employees . . . . . . . . . . . . . . . . . . . . . . . 21
4.12 SEC Reports . . . . . . . . . . . . . . . . . . . . . . 22
4.13 Compliance with Applicable Law . . . . . . . . . . . . . 22
4.14 Certain Contracts . . . . . . . . . . . . . . . . . . . 24
4.15 Agreements with Regulatory Agencies . . . . . . . . . . 25
4.16 Other Activities of FCB and its FCB Subsidiaries . . . . 25
4.17 Investment Securities . . . . . . . . . . . . . . . . . 25
4.18 Undisclosed Liabilities . . . . . . . . . . . . . . . . 25
4.19 Insurance . . . . . . . . . . . . . . . . . . . . . . . 25
4.20 Loan Loss Reserves . . . . . . . . . . . . . . . . . . . 25
4.21 Environmental Liability . . . . . . . . . . . . . . . . 26
4.22 Approval Delays . . . . . . . . . . . . . . . . . . . . 26
4.23 Vote Required . . . . . . . . . . . . . . . . . . . . . 26
4.24 Applicability of Certain Provisions of Wisconsin Law,
Etc . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.25 Ownership of OSB Common Stock . . . . . . . . . . . . . 26
ARTICLE V COVENANTS RELATING TO CONDUCT OF BUSINESS . . . . . . . 27
5.1 Conduct of Businesses Prior to the Effective Time . . . 27
5.2 Forbearances . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE VI ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . 29
6.1 Regulatory Matters; Cooperation with Respect to Filing . 29
6.2 Access to Information; Due Diligence . . . . . . . . . . 31
6.3 Shareholders' Approvals . . . . . . . . . . . . . . . . 32
6.4 Legal Conditions to Merger . . . . . . . . . . . . . . . 32
6.5 Listing of Shares . . . . . . . . . . . . . . . . . . . 32
6.6 Indemnification; Directors' and Officers' Insurance . . 32
6.7 Additional Agreements . . . . . . . . . . . . . . . . . 34
6.8 Advice of Changes . . . . . . . . . . . . . . . . . . . 34
6.9 No Conduct Inconsistent with this Agreement . . . . . . 34
6.10 Employee Benefit Plans . . . . . . . . . . . . . . . . . 35
6.11 Severance for Certain Employees . . . . . . . . . . . . 36
6.12 Dividends . . . . . . . . . . . . . . . . . . . . . . . 37
6.13 Post-Closing Stock Options . . . . . . . . . . . . . . . 37
6.14 Subsidiary Bank Merger . . . . . . . . . . . . . . . . . 37
6.15 Rule 145 Affiliates . . . . . . . . . . . . . . . . . . 38
6.16 Disclosure Schedules . . . . . . . . . . . . . . . . . . 38
6.17 Filing and Other Fees . . . . . . . . . . . . . . . . . 38
ARTICLE VII CONDITIONS PRECEDENT . . . . . . . . . . . . . . . 38
7.1 Conditions to Each Party's Obligation To Effect the
Merger . . . . . . . . . . . . . . . . . . . . . . . . . 38
(a) Shareholder Approval . . . . . . . . . . . . . . . 38
(b) Other Approvals . . . . . . . . . . . . . . . . . . 38
(c) Registration Statements . . . . . . . . . . . . . . 39
(d) No Injunctions or Restraints; Illegality . . . . . 39
(e) Federal Tax Opinion . . . . . . . . . . . . . . . . 39
(f) Post-Closing Employment Agreements . . . . . . . . 39
7.2 Conditions to Obligations of OSB . . . . . . . . . . . . 39
(a) Representations and Warranties . . . . . . . . . . 39
(b) Performance of Obligations of FCB . . . . . . . . . 40
(c) No Material Adverse Change . . . . . . . . . . . . 40
(d) Opinion of Counsel to FCB . . . . . . . . . . . . . 40
(e) Comfort Letters . . . . . . . . . . . . . . . . . . 40
(f) Fairness Opinion . . . . . . . . . . . . . . . . . 40
7.3 Conditions to Obligations of FCB . . . . . . . . . . . . 40
(a) Representations and Warranties . . . . . . . . . . 40
(b) Performance of Obligations of OSB . . . . . . . . . 40
(c) No Material Adverse Change . . . . . . . . . . . . 41
(d) Opinion of Counsel to OSB . . . . . . . . . . . . . 41
(e) Comfort Letters . . . . . . . . . . . . . . . . . . 41
(f) Fairness Opinion . . . . . . . . . . . . . . . . . 41
(g) Affiliate Agreements . . . . . . . . . . . . . . . 41
ARTICLE VIII TERMINATION, EXPENSES AND AMENDMENT . . . . . . . . 41
8.1 Termination . . . . . . . . . . . . . . . . . . . . . . 41
8.2 Effect of Termination . . . . . . . . . . . . . . . . . 45
8.3 Termination Fee; Expenses . . . . . . . . . . . . . . . 45
8.4 Amendment . . . . . . . . . . . . . . . . . . . . . . . 46
8.5 Extension; Waiver . . . . . . . . . . . . . . . . . . . 47
ARTICLE IX GENERAL PROVISIONS . . . . . . . . . . . . . . . . 47
9.1 Non-survival of Representations, Warranties and
Agreements . . . . . . . . . . . . . . . . . . . . . . . 47
9.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . 47
9.3 Interpretation . . . . . . . . . . . . . . . . . . . . . 48
9.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . 48
9.5 Entire Agreement . . . . . . . . . . . . . . . . . . . . 48
9.6 Governing Law . . . . . . . . . . . . . . . . . . . . . 49
9.7 Severability . . . . . . . . . . . . . . . . . . . . . . 49
9.8 Publicity . . . . . . . . . . . . . . . . . . . . . . . 49
9.9 Assignment; Third Party Beneficiaries . . . . . . . . . 49
9.10 Enforcement . . . . . . . . . . . . . . . . . . . . . . 49
Exhibit A - Form of FCB Stock Option and Trigger Payment Agreement
Exhibit B - Form of OSB Stock Option and Trigger Payment
Agreement
Exhibit C - Plan of Merger
Exhibit D - Directors of the Surviving Corporation
Exhibit E - List of Directors and Executive Officers of Surviving
Bank
Exhibit F - Form of Affiliate Agreement
Exhibit G - Employment Agreement with Donald D. Parker
Exhibit H - Employment Agreement with Phillip J. Schoofs
Exhibit I - Employment Agreement with Harold L. Hermansen
Exhibit J - Employment Agreement with James J. Rothenbach
Exhibit K - Employment Agreement with Theodore W. Hoff
Exhibit L - Form of Opinion of Foley & Lardner
Exhibit M - Form of Opinion of Schiff Hardin & Waite
Schedule 3.1(b) - OSB Ownership of Outside Entities
Schedule 3.1(c) - OSB Subsidiaries Ownership of Outside
Entities
Schedule 3.2(a) - OSB Obligations to Purchase or Issue Shares
of OSB Common Stock or Other Equity
Securities
Schedule 3.8(a) - Absence of Certain Changes or Events
Schedule 3.9 - OSB Legal Proceedings
Schedule 3.10(a) - Income Adjustments Pursuant to Section 481
of the Code
Schedule 3.11(a) - OSB Benefit Plans and Agreements
Schedule 3.14(a) - OSB Contract Exceptions
Schedule 3.18 - Undisclosed Liabilities
Schedule 3.19 - OSB Insurance Policies
Schedule 3.21 - Environmental Contingencies
Schedule 3.25 - OSB Ownership of FCB Common Stock
Schedule 4.1(b) - FCB Ownership of Outside Entities
Schedule 4.1(c) - FCB Subsidiaries Ownership of Outside
Entities
Schedule 4.2(a) - FCB Obligations to Purchase or Issue Shares
of FCB Common Stock or Other Equity
Securities
Schedule 4.8(a) - Absence of Certain Changes or Events
Schedule 4.9 - FCB Legal Proceedings
Schedule 4.10(a) - Income Adjustments Pursuant to Section 481
of the Code
Schedule 4.11 - FCB Benefit Plans
Schedule 4.14(a) - FCB Contract Exceptions
Schedule 4.18 - Undisclosed Liabilities
Schedule 4.19 - FCB Insurance Policies
Schedule 4.21 - Environmental Contingencies
Schedule 4.25 - FCB Ownership of OSB Common Stock
Schedule 6.11 - Officers for Purposes of Severance Payments
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
November 13, 1996, by and between FCB Financial Corp., a Wisconsin
corporation ("FCB"), and OSB Financial Corp., a Wisconsin corporation
("OSB").
WHEREAS, the Boards of Directors of FCB and OSB have determined
that it is in the best interests of their respective corporations and
their shareholders to consummate a merger in which OSB will merge with and
into FCB (the "Merger"), so that FCB is the resulting corporation
(hereinafter sometimes called the "Surviving Corporation") in the Merger;
WHEREAS, concurrently with or as soon as is practicable after
the Merger, the Surviving Corporation shall cause OSB's wholly-owned
depository institution subsidiary, Oshkosh Savings Bank, FSB ("OSB Bank"),
to be merged with and into FCB's wholly-owned depository institution
subsidiary, Fox Cities Bank, F.S.B. ("FCB Bank") (the "Bank Merger"), so
that FCB Bank is the resulting wholly-owned depository institution
subsidiary of the Surviving Corporation (hereinafter sometimes called the
"Surviving Bank") in the Bank Merger;
WHEREAS, as a condition to, and immediately after the execution
of this Agreement, FCB and OSB are entering into a FCB Stock Option and
Trigger Payment Agreement (the "FCB Stock Option Agreement"), attached
hereto as Exhibit A;
WHEREAS, as a condition to, and immediately after the execution
of this Agreement, FCB and OSB are entering into an OSB Stock Option and
Trigger Payment Agreement (the "OSB Stock Option Agreement"), attached
hereto as Exhibit B (and together with the FCB Stock Option and Trigger
Payment Agreement, the "Option Agreements"); and
WHEREAS, the parties desire to make certain representations,
warranties and agreements in connection with, and to prescribe certain
conditions, to the Merger.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Subject to the terms and conditions of this
Agreement and the Plan of Merger, a copy of which is attached hereto as
Exhibit C (the "Plan of Merger"), in accordance with the Wisconsin
Business Corporation Law (the "WBCL"), at the Effective Time (as defined
in Section 1.2), OSB shall merge with and into FCB, and FCB shall survive
the Merger and shall continue its corporate existence under the laws of
the State of Wisconsin. Upon consummation of the Merger, the separate
corporate existence of OSB shall terminate and the name of the Surviving
Corporation shall be "FCB Financial Corp."
The parties agree that OSB and FCB will execute a Plan of Merger
substantially in the form attached hereto as Exhibit C which provides for
the terms of the Merger and the mode of carrying same into effect.
1.2 Effective Time. The Merger shall become effective upon the
later of (a) the time of filing of Articles of Merger with the Department
of Financial Institutions of the State of Wisconsin (the "Wisconsin
Department") and (b) the effective date and time of the Merger as set
forth in such Articles of Merger. The parties shall each use reasonable
efforts to cause Articles of Merger to be filed on the Closing Date (as
defined in Section 1.12). The term "Effective Time" shall be the date and
time when the Merger becomes effective, in accordance with this Section
1.2.
1.3 Effects of the Merger. At and after the Effective Time,
the Merger shall have the effects set forth in Section 180.1106 of the
WBCL.
1.4 Conversion of OSB Common Stock; Treatment of FCB Common
Stock.
(a) At the Effective Time, subject to Section 2.2, by
virtue of the Merger and without any action on the part of OSB, or
the holder of any securities of OSB, each share of the common stock,
$.01 par value, of OSB (the "OSB Common Stock") issued and
outstanding immediately prior to the Effective Time (other than
shares canceled pursuant to Section 1.4(c)) shall be converted into
the right to receive 1.46 shares (the "OSB Exchange Ratio") of the
common stock, par value $.01 per share, of FCB (the "FCB Common
Stock").
(b) All of the shares of OSB Common Stock converted into
FCB Common Stock pursuant to this Article I shall no longer be
outstanding and shall automatically be canceled and shall cease to
exist as of the Effective Time, and each certificate (each an "OSB
Common Stock Certificate") previously representing any such shares of
OSB Common Stock shall thereafter represent only the right to receive
(i) a certificate representing the number of whole shares of FCB
Common Stock (each a "FCB Common Stock Certificate") and (ii) cash in
lieu of fractional shares into which the shares of OSB Common Stock
previously represented by such OSB Common Stock Certificate have been
converted pursuant to this Section 1.4, Section 2.2 and the Plan of
Merger. OSB Common Stock Certificates previously representing shares
of OSB Common Stock shall be exchanged for FCB Common Stock
Certificates representing whole shares of FCB Common Stock and cash
in lieu of fractional shares issued in consideration therefor upon
the surrender of such OSB Common Stock Certificates in accordance
with Section 2.2, without any interest thereon.
(c) At the Effective Time, all shares of OSB Common Stock
that are owned by OSB as treasury stock, owned by the OSB MRP (as
defined herein) and not allocated to participants thereunder or owned
by FCB, if any, shall be canceled and shall cease to exist, and no
stock of FCB or other consideration shall be delivered in exchange
therefor.
(d) At and after the Effective Time, each share of FCB
Common Stock issued and outstanding immediately prior to the
Effective Time shall remain an issued and outstanding share of common
stock of the Surviving Corporation and shall not be affected by the
Merger.
1.5 Stock Options.
(a) At the Effective Time, each option granted by OSB
under the terms of the OSB Financial Corp. 1992 Stock Option and
Incentive Plan (the "OSB Option Plan") to purchase shares of OSB
Common Stock which is outstanding and unexercised immediately prior
thereto shall cease to represent a right to acquire shares of OSB
Common Stock and shall be converted automatically into an option to
purchase shares of FCB Common Stock in an amount and at an exercise
price determined pursuant to paragraph (c) of this Section 1.5 (the
"Converted Option"), subject to the terms of the OSB Option Plan and
the agreements evidencing grants of such options thereunder.
(b) From and after the Effective Time, FCB shall assume
any and all obligations of OSB under the OSB Option Plan, and the OSB
Option Plan shall remain in effect.
(c) (i) The number of shares of FCB Common Stock to be
subject to each Converted Option shall be equal to the product of the
number of shares of OSB Common Stock subject to the original option
and the OSB Exchange Ratio, provided that any fractional shares of
FCB Common Stock resulting from such multiplication shall be rounded
up to the nearest whole share; and (ii) the exercise price per share
of FCB Common Stock under the Converted Option shall be equal to the
exercise price per share of OSB Common Stock under the original
option divided by the OSB Exchange Ratio, provided that such exercise
price shall be rounded down to the nearest whole cent.
(d) The Committee of the OSB Board of Directors which
administers the OSB Option Plan has approved the foregoing
adjustments pursuant to Section 12(c) of the OSB Option Plan and has
not and will not authorize cash payments to be made for options under
the OSB Option Plan pursuant to Section 12(b) thereof.
(e) Promptly after the execution of this Agreement, OSB
shall take such action, which shall be reasonably satisfactory to
FCB, as OSB may deem necessary in order that each Converted Option
shall be, at the Effective Time, assumed by FCB and shall from and
after the Effective Time no longer entitle the holder thereof to
purchase shares of OSB Common Stock but shall be converted into and
shall become by virtue of the Merger, automatically and without any
action on the part of the holder thereof, a stock option to purchase
such number of shares of FCB Common Stock at such exercise price as
determined pursuant to paragraph (c) of this Section 1.5.
1.6 Articles of Incorporation. The Articles of Incorporation
of FCB in effect as of the Effective Time shall be the Articles of
Incorporation of the Surviving Corporation after the Merger until
thereafter amended in accordance with applicable law.
1.7 By-Laws. The By-Laws of FCB in effect as of the Effective
Time, shall be the By-Laws of the Surviving Corporation after the Merger
until thereafter amended in accordance with applicable law.
1.8 Tax Consequences. It is intended that the Merger shall
constitute a reorganization within the meaning of Section 368(a)(1)(A) of
the Internal Revenue Code of 1986, as amended (the "Code"), and that this
Agreement and the Plan of Merger shall constitute a "plan of
reorganization" for the purposes of Section 368 of the Code.
1.9 Plans for Management Succession. At the Effective Time,
pursuant to the terms hereof and the employment agreements referred to in
Section 7.1(f), (a) Donald D. Parker shall be the Chairman of the Board of
the Surviving Corporation and the Surviving Bank, (b) James J. Rothenbach
shall be the President and Chief Executive Officer of the Surviving
Corporation and the Surviving Bank, and (c) Phillip J. Schoofs shall be
the Vice President, Treasurer and Chief Financial Officer of the Surviving
Corporation and the Surviving Bank. Nothing in this Section 1.9 shall
preclude the Board of Directors of the Surviving Corporation or the
Surviving Bank from subsequently removing any person appointed as an
officer of the Surviving Corporation or the Surviving Bank pursuant to
this Section 1.9.
1.10 Board of Directors of the Surviving Corporation.
(a) From and after the Effective Time, the Board of
Directors of the Surviving Corporation shall consist of fourteen (14)
persons, including Donald D. Parker and James J. Rothenbach. Six (6)
directors, in addition to Donald D. Parker, shall have been selected
by FCB ("FCB Representatives"), and six (6) directors, in addition to
James J. Rothenbach, shall have been selected by OSB (the "OSB
Representatives"). The FCB Representatives and the OSB
Representatives, respectively, shall be divided as equally as
practicable among the three classes of directors of the Surviving
Corporation in accordance with Exhibit D, and shall serve in such
capacities until their successors shall have been elected or
appointed and shall have qualified in accordance with the Articles of
Incorporation and By-laws of the Surviving Corporation and the WBCL.
Directors chosen from among the FCB Representatives and the OSB
Representatives shall be equally represented on the personnel
committee (which shall have four members) and the executive
committee, if any, of the Board of Directors of the Surviving
Corporation.
(b) Prior to the third annual meeting of the shareholders
of the Surviving Corporation following the Effective Time, the OSB
Representatives and the FCB Representatives, respectively, shall have
the right to designate (i) the person or persons to be nominated in
place of each of the OSB Representatives and FCB Representatives,
respectively, whose terms of office expire at each of the first three
annual meetings of the shareholders of the Surviving Corporation
following the Effective Time, and (ii) the person or persons to serve
on the executive committee, if any, in place of any OSB
Representatives or FCB Representatives, respectively, previously
appointed to the executive committee. For purposes of this Section
1.10(b), the terms "OSB Representatives" and "FCB Representatives"
shall include any person or persons subsequently appointed or elected
directors of the Surviving Corporation following their designation as
nominees for director by the OSB Representatives or FCB
Representatives, respectively, in accordance with the preceding
sentence.
(c) It is the intention of OSB and FCB that the number of
directors of the Surviving Corporation shall be reduced to ten (10)
through attrition. To that end and until the Board of Directors shall
consist of ten (10) directors (composed of five (5) OSB
Representatives and five (5) FCB Representatives) any vacancy
occurring on the Board of Directors of the Surviving Corporation
created by the death, resignation or removal of any director will not
be filled and, instead, within 30 days thereof, an additional vacancy
shall be created by the voluntary resignation of an FCB
Representative or OSB Representative, as the case may be, in order
that the number of OSB Representatives and FCB Representatives on the
Board of Directors of the Surviving Corporation shall remain equal,
and thereafter, the two vacancies shall be eliminated by resolution
of the Board of Directors of the Surviving Corporation, provided,
however, that if an FCB Representative or OSB Representative, as the
case may be, does not resign within this 30 day period, the OSB
Representatives or the FCB Representatives, as the case may be, shall
have the right to designate the person or persons to fill such
vacancy in order that the number of OSB Representatives and FCB
Representatives shall remain equal. The parties hereto agree that
the terms of this Section 1.10(c) shall bind the Board of Directors
of the Surviving Company for three years after the Closing Date.
1.11 Headquarters of the Surviving Corporation. At the
Effective Time, the headquarters and principal executive offices of the
Surviving Corporation shall be at 420 South Koeller Street, Oshkosh,
Wisconsin. At the Effective Time, the commercial loan department of the
Surviving Bank shall be located at 110 Fox River Drive, Appleton,
Wisconsin.
1.12 Closing. Subject to the terms and conditions of this
Agreement and the Plan of Merger, including but not limited to the
provisions of Article VII of this Agreement, the closing of the Merger
(the "Closing") will take place at 10:00 a.m. on a date and at a place to
be specified by the parties, which shall be no later than the first
business day in the calendar month immediately following the month in
which the last of the conditions precedent to the Merger set forth in
Article VII hereof is satisfied or waived, or at such other time, date and
place as OSB and FCB shall mutually agree (the "Closing Date").
ARTICLE II
CONVERSION OF SHARES
2.1 FCB to Make Shares Available. At or prior to the Effective
Time, FCB shall deposit, or shall cause to be deposited, with a bank,
trust company or other entity reasonably acceptable to OSB (the "Exchange
Agent"), for the benefit of the holders of OSB Common Stock Certificates,
for exchange in accordance with this Article II, FCB Common Stock
Certificates and cash in lieu of any fractional shares of FCB Common Stock
(such cash and FCB Common Stock Certificates, together with any dividends
or distributions with respect thereto paid after the Effective Time, being
hereinafter referred to as the "Conversion Fund") to be issued pursuant to
Section 1.4 and paid pursuant to Section 2.2(a) in exchange for
outstanding shares of OSB Common Stock.
2.2 Exchange of Certificates.
(a) As soon as practicable after the Effective Time, and
in no event later than ten (10) business days thereafter, the
Surviving Corporation shall cause the Exchange Agent to mail to each
holder of record of one or more OSB Common Stock Certificates a
letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the OSB Common Stock
Certificates shall pass, only upon delivery of the OSB Common Stock
Certificates to the Exchange Agent) and instructions for use in
effecting the surrender of the OSB Common Stock Certificates in
exchange for FCB Common Stock Certificates and any cash in lieu of
fractional shares into which the shares of OSB Common Stock
represented by such OSB Common Stock Certificate or Certificates
shall have been converted pursuant to this Agreement and the Plan of
Merger. Upon proper surrender of an OSB Common Stock Certificate for
exchange and cancellation to the Exchange Agent, together with such
properly completed letter of transmittal, duly executed, the holder
of such OSB Common Stock Certificate shall be entitled to receive in
exchange therefor, as applicable, (i) a FCB Common Stock Certificate
representing that number of whole shares of FCB Common Stock to which
such holder of OSB Common Stock shall have become entitled pursuant
to the provisions of Section 1.4 hereof, and (ii) a check
representing the amount of any cash in lieu of fractional shares that
such holder has the right to receive in respect of such OSB Common
Stock Certificate, and the OSB Common Stock Certificate so
surrendered shall forthwith be canceled. No interest will be paid or
accrued on any cash in lieu of fractional shares payable to holders
of OSB Common Stock Certificates.
(b) If any FCB Common Stock Certificate is to be issued in
a name other than that in which the OSB Common Stock Certificate
surrendered in exchange therefor is registered, it shall be a
condition of the issuance thereof that the OSB Common Stock
Certificate so surrendered shall be properly endorsed (or accompanied
by an appropriate instrument of transfer) and otherwise in proper
form for transfer, and that the person requesting such exchange shall
pay to the Exchange Agent in advance any transfer or other taxes
required by reason of the issuance of an FCB Common Stock Certificate
in any name other than that of the registered holder of the OSB
Common Stock Certificate surrendered, or required for any other
reason, or shall establish to the satisfaction of the Exchange Agent
that such tax has been paid or is not payable.
(c) After the Effective Time, there shall be no transfers
on the stock transfer books of OSB of the shares of OSB Common Stock
which were issued and outstanding immediately prior to the Effective
Time. If, after the Effective Time, OSB Common Stock Certificates
are presented for transfer to the Exchange Agent, they shall be
canceled and exchanged for FCB Common Stock Certificates representing
shares of FCB Common Stock as provided in this Article II.
(d) Notwithstanding anything to the contrary contained
herein, no certificates or scrip representing fractional shares of
FCB Common Stock shall be issued upon the surrender for exchange of
OSB Common Stock Certificates, no dividend or distribution with
respect to FCB Common Stock shall be payable on or with respect to
any fractional share, and such fractional share interests shall not
entitle the owner thereof to vote or to any other rights of a
shareholder of the Surviving Corporation. In lieu of the issuance of
any such fractional share, the Surviving Corporation shall pay to
each former shareholder of OSB who otherwise would be entitled to
receive such fractional share an amount in cash determined by
multiplying (i) the average of the last sales price for FCB Common
Stock as reported on The Nasdaq Stock Market for the twenty (20)
trading days immediately preceding the fifth trading day prior to the
Closing Date by (ii) the fraction of a share (rounded to the nearest
tenth when expressed as an Arabic number) of FCB Common Stock to
which such holder would otherwise be entitled to receive pursuant to
Section 1.4.
(e) Any portion of the Conversion Fund that remains
unclaimed by the shareholders of OSB for twelve (12) months after the
Effective Time shall be paid to the Surviving Corporation. Any
shareholders of OSB who have not theretofore complied with this
Article II shall thereafter look only to the Surviving Corporation
for the issuance of certificates representing shares of FCB Common
Stock and the payment of cash in lieu of any fractional shares and
any unpaid dividends and distributions on the FCB Common Stock
deliverable in respect of each share of OSB Common Stock such
shareholder holds as determined pursuant to this Agreement and the
Plan of Merger, in each case, without any interest thereon.
Notwithstanding the foregoing, none of FCB, OSB, the Exchange Agent
or any other person shall be liable to any former holder of shares of
OSB Common Stock, for any amount delivered in good faith to a public
official pursuant to applicable abandoned property, escheat or
similar laws.
(f) In the event any OSB Common Stock Certificate shall
have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming such OSB Common Stock Certificate
to be lost, stolen or destroyed and, if reasonably required by the
Surviving Corporation, the posting by such person of a bond in such
amount as the Exchange Agent may determine is reasonably necessary as
indemnity against any claim that may be made against it with respect
to such OSB Common Stock Certificate, the Exchange Agent will issue
in exchange for such lost, stolen or destroyed OSB Common Stock
Certificate an FCB Common Stock Certificate representing the shares
of FCB Common Stock and any cash in lieu of fractional shares
deliverable in respect thereof pursuant to this Agreement and the
Plan of Merger.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF OSB
OSB hereby represents and warrants to FCB as follows:
3.1 Corporate Organization.
(a) OSB is a corporation duly organized and validly
existing under the laws of the State of Wisconsin. OSB has the
corporate power and authority to own or lease all of its properties
and assets and to carry on its business as it is now being conducted,
and is duly licensed or qualified to do business in each jurisdiction
in which the nature of the business conducted by it or the character
or location of the properties and assets owned or leased by it makes
such licensing or qualification necessary, except where the failure
to be so licensed or qualified would not have a Material Adverse
Effect (as defined below) on OSB. OSB is duly registered as a
savings and loan holding company under the Home Owners' Loan Act
("HOLA"). True and complete copies of the Articles of Incorporation
and By-Laws of OSB, as in effect as of the date of this Agreement,
have previously been made available by OSB to FCB. As used in this
Agreement, the term "Material Adverse Effect" means, with respect to
OSB or FCB, as the case may be, a material adverse effect (i) on the
business, assets, properties, results of operations, financial
condition, or (insofar as they can reasonably be foreseen) prospects
of such party and its Subsidiaries, taken as a whole or (ii) on the
consummation of the Merger; provided, however, that in no event shall
the one-time-Savings-Association-Insurance-Fund special assessment
previously imposed by the Federal Deposit Insurance Corporation be
deemed to constitute a Material Adverse Effect on either OSB or FCB.
The word "Subsidiary" when used with respect to any party means any
bank, corporation, partnership, limited liability company, or other
organization, whether incorporated or unincorporated, which is
consolidated with such party for financial reporting purposes.
(b) As of the date of this Agreement, OSB has, as its sole
direct or indirect Subsidiaries, Oshkosh Savings Bank, FSB ("OSB
Bank"), a federally-chartered savings association, Oshkosh Financial,
Inc., RWFV, Inc. and OSB Investments, Inc. (collectively, the "OSB
Subsidiaries"). Except as set forth on Schedule 3.1(b) of the
disclosure schedules to this Agreement prepared and delivered by OSB
(the "OSB Disclosure Schedules"), OSB does not own any voting stock
or equity securities of any bank, corporation, partnership, limited
liability company, or other organization, whether incorporated or
unincorporated, other than the OSB Subsidiaries.
(c) Except as set forth in Schedule 3.1(c), each OSB
Subsidiary (i) is duly organized and validly existing as a
corporation under the laws of its jurisdiction of organization, (ii)
is duly qualified to do business and in good standing in all
jurisdictions (whether federal, state, local or foreign) where its
ownership or leasing of property or the conduct of its business
requires it to be so qualified and in which the failure to be so
qualified would have a Material Adverse Effect on OSB, and (iii) has
all requisite corporate power and authority to own or lease its
properties and assets and to carry on its business as now conducted.
Except as set forth in Schedule 3.1(c) of the OSB Disclosure
Schedules, none of the OSB Subsidiaries owns any voting stock or
equity securities of any bank, corporation, partnership, limited
liability company, or other organization, whether incorporated or
unincorporated.
(d) The minute books of OSB and of each of the OSB
Subsidiaries have been made available to FCB and accurately reflect
in all material respects all corporate meetings held or actions taken
since January 1, 1992 by the shareholders and Boards of Directors of
OSB and each OSB Subsidiary, respectively (including committees of
the Boards of Directors of OSB and the OSB Subsidiaries).
3.2 Capitalization.
(a) The authorized capital stock of OSB consists of
7,000,000 shares of OSB Common Stock, $0.01 par value per share, of
which, as of September 30, 1996, 1,111,484 shares were issued and
outstanding (which number excludes 48,650 shares of OSB Common Stock
held by the OSB MRP (as hereinafter defined) which have not been
awarded to participants thereunder) and 1,000,000 shares of Preferred
Stock, $0.01 par value per share, of which, as of September 30, 1996,
none were issued and outstanding. As of September 30, 1996, 369,866
shares of OSB Common Stock were held in treasury. All of the issued
and outstanding shares of OSB Common Stock have been duly authorized
and validly issued and are fully paid, nonassessable (except as
otherwise provided by Section 180.0622(2)(b) of the WBCL) and free of
preemptive rights. Except for the OSB Option Agreement and as set
forth on Schedule 3.2(a) of the OSB Disclosure Schedules, OSB does
not have and is not bound by any outstanding subscriptions, options,
warrants, calls, commitments or agreements of any character calling
for the purchase or issuance of any shares of OSB Common Stock or any
other equity securities of OSB or any securities representing the
right to purchase or otherwise receive any shares of the capital
stock of OSB. No shares of OSB Common Stock have been reserved for
issuance, other than the shares of OSB Common Stock reserved for
issuance under the OSB Option Agreement and OSB Option Plan. Since
September 30, 1996, OSB has not issued any shares of its capital
stock or any securities convertible into or exercisable for any
shares of its capital stock except upon exercise of stock options
pursuant to the OSB Option Plan outstanding as of September 30, 1996
and except with respect to the OSB Stock Option Agreement.
(b) OSB owns, directly or indirectly, all of the issued
and outstanding shares of capital stock of each of the OSB
Subsidiaries, free and clear of any liens, pledges, charges,
encumbrances and security interests whatsoever ("Liens"). All of the
shares of capital stock of each OSB Subsidiary are duly authorized
and validly issued and are fully paid, nonassessable (except as
otherwise provided by Section 180.0622(2)(b) of the WBCL) and free of
preemptive rights. No OSB Subsidiary has or is bound by any
outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the purchase or issuance of
any shares of capital stock or any other equity security of such OSB
Subsidiary or any securities representing the right to purchase or
otherwise receive any shares of capital stock or any other equity
security of such OSB Subsidiary.
3.3 Authority; No Violation. OSB has full corporate power and
authority to execute and deliver each of this Agreement, the Plan of
Merger and the Option Agreements and, subject to shareholder and
regulatory approvals, to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement, the Plan of
Merger and the Option Agreements and the consummation of the transactions
contemplated hereby and thereby have been duly and validly approved by the
Board of Directors of OSB. The Board of Directors of OSB has directed
that this Agreement and the Plan of Merger and the transactions
contemplated hereby and thereby be submitted to OSB's shareholders for
approval at a meeting of such shareholders and, except for the adoption of
this Agreement and the Plan of Merger by the affirmative vote of the
holders of a majority of the outstanding shares of OSB Common Stock, no
other corporate proceedings on the part of OSB are necessary to approve
this Agreement, the Plan of Merger and the Option Agreements and to
consummate the transactions contemplated hereby and thereby. This
Agreement and the Option Agreements have been duly and validly executed
and delivered by OSB and (assuming due authorization, execution and
delivery by FCB) constitute valid and binding obligations of OSB,
enforceable against OSB in accordance with their respective terms.
Furthermore, the Plan of Merger, when executed and delivered by OSB and
(assuming due authorization, execution and delivery by FCB), shall
constitute a valid and binding obligation of OSB, enforceable against OSB
in accordance with its terms.
3.4 Consents and Approvals. No consents or approvals of or
filings or registrations with any court, administrative agency or
commission or other governmental authority or instrumentality (each a
"Governmental Entity") or with any third party are necessary in connection
with the execution and delivery by OSB of this Agreement, the Plan of
Merger and the Option Agreements and the consummation by OSB of the Merger
and the other transactions contemplated hereby and thereby except for (a)
the filing by FCB and FCB Bank of an application with the Office of Thrift
Supervision (the "OTS") under HOLA and the approval of such application
(the "OTS Application"), (b) the filing with the Securities and Exchange
Commission (the "SEC") of a joint proxy statement in definitive form
relating to the meetings of OSB's and FCB's shareholders to be held in
connection with this Agreement and the Plan of Merger and the transactions
contemplated hereby and thereby (the "Joint Proxy Statement") and the
registration statement on Form S-4 (the "S-4") in which such Joint Proxy
Statement will be included as a prospectus, (c) the filing of Articles of
Merger with the Wisconsin Department under the WBCL, (d) such filings and
approvals as are required to be made or obtained under the securities or
"Blue Sky" laws of various states in connection with the issuance of the
shares of FCB Common Stock pursuant to this Agreement and the Plan of
Merger, and (e) the approval of this Agreement and the Plan of Merger by
the requisite vote of the shareholders of OSB and FCB.
3.5 Reports. OSB and each of the OSB Subsidiaries have timely
filed all reports, registrations and statements, together with any
amendments required to be made with respect thereto, that they were
required to file since July 1, 1992 with (i) the OTS, (ii) the Federal
Deposit Insurance Corporation (the "FDIC"), (iii) any state regulatory
authority (each a "State Regulator"), (iv) the SEC, and (v) any self-
regulatory organization ("SRO") with jurisdiction over any of the
activities of OSB or any of the OSB Subsidiaries (collectively "Regulatory
Agencies"), and all other reports and statements required to be filed by
them since July 1, 1992, including, without limitation, any report or
statement required to be filed pursuant to the laws, rules or regulations
of the United States, any state, or any Regulatory Agency, and have paid
all fees and assessments due and payable in connection therewith, except
where the failure to file such report, registration or statement or to pay
such fees and assessments, either individually or in the aggregate, will
not have a Material Adverse Effect on OSB. Except for normal examinations
conducted by a Regulatory Agency in the regular course of the business of
OSB and the OSB Subsidiaries, no Regulatory Agency has initiated any
proceeding or, to the best knowledge of OSB, investigation into the
business or operations of OSB or any of the OSB Subsidiaries since July 1,
1992. There is no unresolved written violation, written criticism, or
written exception by any Regulatory Agency with respect to any report or
statement relating to any examinations of OSB or any of the OSB
Subsidiaries, which is likely, either individually or in the aggregate, to
have a Material Adverse Effect on OSB.
3.6 Financial Statements. OSB has previously made available to
FCB copies of (a) the consolidated statements of financial condition of
OSB and the OSB Subsidiaries as of December 31, 1994 and 1995, and the
related consolidated statements of income, stockholders' equity and cash
flows for the fiscal years ended December 31, 1993, 1994 and 1995,
inclusive, as reported in OSB's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995 (the "OSB Form 10-K") filed with the SEC
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), in each case accompanied by the audit report of Wipfli Ullrich
Bertelson LLP, independent public accountants with respect to OSB, and (b)
the unaudited consolidated statements of financial condition of OSB and
the OSB Subsidiaries as of June 30, 1996, and the related unaudited
consolidated statements of income, stockholders' equity and cash flows for
the three- and six-month periods then ended as reported in OSB's Quarterly
Report on Form 10-Q for the period ended June 30, 1996 filed with the SEC
under the Exchange Act (the "OSB Second Quarter 10-Q"). The December 31,
1995 consolidated statements of financial condition of OSB (including the
related notes, where applicable) fairly present the consolidated financial
position of OSB and the OSB Subsidiaries as of the dates thereof, and the
other financial statements referred to in this Section 3.6 or included in
the OSB Reports (including the related notes, where applicable) fairly
present the results of the consolidated operations and stockholders'
equity and consolidated financial position of OSB and the OSB Subsidiaries
for the respective fiscal periods or as of the respective dates therein
set forth, subject, in the case of the unaudited statements, to recurring
audit adjustments normal in nature and amount; each of such statements
(including the related notes, where applicable) comply in all material
respects with applicable accounting requirements and with the published
rules and regulations of the SEC with respect thereto; and each of such
statements (including the related notes, where applicable) has been
prepared in all material respects in accordance with generally accepted
accounting principles ("GAAP") consistently applied during the periods
involved, except, in each case, as indicated in such statements or in the
notes thereto or, in the case of unaudited statements, as permitted by
Form 10-Q.
3.7 Broker's Fees. Other than OSB's arrangement with Edelman &
Co., Ltd. to serve as a financial advisor to OSB in connection with the
Merger and related transactions contemplated by this Agreement and the
Plan of Merger, neither OSB nor any OSB Subsidiary nor any of their
respective officers or directors has employed any financial advisor,
broker or finder or incurred any liability for any financial advisory
fees, broker's fees, commissions or finder's fees in connection with the
Merger or related transactions contemplated by this Agreement and the Plan
of Merger.
3.8 Absence of Certain Changes or Events.
(a) Except as publicly disclosed in the OSB Reports (as
defined in Section 3.12) filed prior to the date hereof or as set
forth in Schedule 3.8(a), since December 31, 1995, (i) OSB and the
OSB Subsidiaries taken as a whole have not incurred any material
liability, except in the ordinary course of their respective
businesses, and (ii) no event has occurred which has had,
individually or in the aggregate, a Material Adverse Effect on OSB or
will have a Material Adverse Effect on OSB.
(b) Except as publicly disclosed in the OSB Reports filed
prior to the date hereof, since December 31, 1995, OSB and the OSB
Subsidiaries have conducted their respective businesses in all
material respects in the ordinary and usual course.
3.9 Legal Proceedings.
(a) Except as set forth in Schedule 3.9, there are no
pending or, to the best of OSB's knowledge, threatened, legal,
administrative, arbitration or other proceedings, claims, actions or
governmental or regulatory investigations of any nature against OSB
or any of the OSB Subsidiaries or challenging the validity or
propriety of the transactions contemplated by this Agreement, the
Plan of Merger or the Option Agreements.
(b) There is no injunction, order, judgment, decree, or
regulatory restriction (other than regulatory restrictions that apply
to similarly situated savings and loan holding companies or savings
associations) imposed upon OSB, any of the OSB Subsidiaries or the
assets of OSB or any of the OSB Subsidiaries.
3.10 Taxes and Tax Returns.
(a) Each of OSB and the OSB Subsidiaries has duly filed
all federal, state, county, foreign and, to the best of OSB's
knowledge, local information returns and tax returns required to be
filed by it (all such returns being accurate and complete in all
material respects) and has duly paid or made provisions for the
payment of all Taxes (as defined in Section 3.10(b)) and other
governmental charges which have been incurred or are due or claimed
to be due from it by federal, state, county, foreign or local taxing
authorities on or prior to the date of this Agreement (including,
without limitation, if and to the extent applicable, those due in
respect of its properties, income, business, capital stock, deposits,
franchises, licenses, sales and payrolls) other than Taxes or other
charges which are not yet delinquent or are being contested in good
faith and have not been finally determined. The income tax returns
of OSB and the OSB Subsidiaries remain open for the applicable
statutory time periods and any deficiencies, penalties or assessments
have been paid or provided for in OSB's consolidated financial
statements. There are no material disputes pending with respect to,
or claims asserted for, Taxes or assessments upon OSB or any of the
OSB Subsidiaries for which OSB does not have adequate reserves, nor
has OSB or any of the OSB Subsidiaries given any currently effective
waivers extending the statutory period of limitation applicable to
any federal, state, county, foreign or local income tax return for
any period. In addition, (i) proper and accurate amounts have been
withheld by OSB and each of the OSB Subsidiaries from their employees
for all prior periods in compliance in all material respects with the
tax withholding provisions of applicable federal, state, foreign and
local laws, except where failure to do so would not have a Material
Adverse Effect on OSB, (ii) federal, state, foreign, county and local
returns which are accurate and complete in all material respects have
been filed by OSB and each of the OSB Subsidiaries for all periods
for which returns were due with respect to income tax withholding,
Social Security and unemployment taxes, (iii) the amounts shown on
such federal, state, foreign, local or county returns to be due and
payable have been paid in full or adequate provision therefor has
been included by OSB in its consolidated financial statements as of
December 31, 1995, and (iv) there are no Tax liens upon any property
or assets of OSB or any of the OSB Subsidiaries except liens for
current taxes not yet due. Except as set forth in Schedule 3.10(a),
neither OSB nor any of the OSB Subsidiaries has been required to
include in income any adjustment pursuant to Section 481 of the Code
by reason of a voluntary change in accounting method initiated by OSB
or any of the OSB Subsidiaries, and the Internal Revenue Service (the
"IRS") has not initiated or proposed any such adjustment or change in
accounting method. Except as set forth in the financial statements
described in Section 3.6, neither OSB nor any of the OSB Subsidiaries
has entered into a transaction which is being accounted for as an
installment obligation under Section 453 of the Code.
(b) As used in this Agreement, the term "Tax" or "Taxes"
means all federal, state, county, local, and foreign income, excise,
gross receipts, gross income, ad valorem, profits, gains, property,
capital, sales, transfer, use, payroll, employment, severance,
withholding, duties, intangibles, franchise, backup withholding, and
other taxes, charges, levies or like assessments together with all
penalties and additions to tax and interest thereon.
3.11 Employees.
(a) Schedule 3.11(a) of the OSB Disclosure Schedules sets
forth a true and complete list of each employee benefit plan,
arrangement, commitment, agreement or understanding that is
maintained as of the date of this Agreement (the "OSB Benefit Plans")
(i) by OSB or any of the OSB Subsidiaries or (ii) by any trade or
business, whether or not incorporated which (A) is under "common
control," as described in Section 414(c) of the Code, with OSB, (B)
is a member of a "controlled group," as defined in Section 414(b) of
the Code, or (C) is a member of an "affiliated service group," as
defined in Section 414(m) of the Code, which includes OSB (an "OSB
ERISA Affiliate"), all of which together with OSB would be deemed a
"single employer" within the meaning of Section 4001 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
(b) OSB has heretofore delivered to FCB true and complete
copies of each of the OSB Benefit Plans and certain related
documents, including, but not limited to, (i) the Annual Report Form
5500 for such OSB Benefit Plan (if applicable) for each of the last
two years, and (ii) the most recent determination letter from the IRS
(if applicable) for such OSB Benefit Plan.
(c) (i) Each of the OSB Benefit Plans has been operated
and administered in all material respects with applicable laws,
including, but not limited to, ERISA and the Code, (ii) each of the
OSB Benefit Plans intended to be "qualified" within the meaning of
Section 401(a) of the Code is so qualified, (iii) no OSB Benefit Plan
provides benefits, including, without limitation, death or medical
benefits (whether or not insured), with respect to current or former
employees of OSB, the OSB Subsidiaries or any OSB ERISA Affiliate
beyond their retirement or other termination of service, other than
(A) coverage mandated by applicable law, (B) death benefits,
disability benefits or retirement benefits under any "employee
pension plan" (as such term is defined in Section 3(2) of ERISA), (C)
deferred compensation benefits accrued as liabilities on the books of
OSB, the OSB Subsidiaries or the OSB ERISA Affiliates, or (D)
benefits the full cost of which is borne by the current or former
employee (or his beneficiary), (iv) neither OSB, the OSB Subsidiaries
nor any OSB ERISA Affiliate maintains or has ever maintained a plan
subject to Title IV of ERISA, (v) neither OSB, the OSB Subsidiaries
nor any OSB ERISA Affiliate contributes to or has ever contributed to
a "Multiemployer" pension plan (as such term is defined in Section
3(37) of ERISA, (vi) all contributions or other amounts payable by
OSB or the OSB Subsidiaries as of the Effective Time with respect to
each OSB Benefit Plan in respect of current or prior plan years have
been paid or accrued in accordance with GAAP and Section 412 of the
Code, (vii) neither OSB, the OSB Subsidiaries nor any OSB ERISA
Affiliate has engaged in a transaction in connection with which OSB,
the OSB Subsidiaries or any OSB ERISA Affiliate reasonably could be
subject to either a material civil penalty assessed pursuant to
Section 409 or 502(i) of ERISA or a material tax imposed pursuant to
Sections 4975 or 4976 of the Code, and (viii) to the best knowledge
of OSB, there are no pending, threatened or anticipated claims (other
than routine claims for benefits) by, on behalf of or against any of
the OSB Benefit Plans or any trusts related thereto which are, in the
reasonable judgment of OSB, likely, either individually or in the
aggregate, to have a Material Adverse Effect on OSB.
3.12 SEC Reports. OSB and each of the OSB Subsidiaries has made
available to FCB an accurate and complete copy of each (a) final
registration statement, prospectus, report, schedule and definitive proxy
statement filed since December 31, 1991 by OSB with the SEC pursuant to
the Securities Act of 1933, as amended (the "Securities Act"), or the
Exchange Act (collectively, "OSB Reports"), and (b) communication mailed
by OSB to its shareholders since December 31, 1991. None of the OSB
Reports or such communications to shareholders, as of their respective
dates, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances in
which they were made, not misleading. Since December 31, 1991, OSB has
timely filed all OSB Reports and other documents required to be filed by
it under the Securities Act and the Exchange Act, and, as of their
respective dates, all OSB Reports complied in all material respects with
the published rules and regulations of the SEC with respect thereto.
3.13 Compliance with Applicable Law. OSB and each of the OSB
Subsidiaries hold all licenses, franchises, permits and authorizations
necessary for the lawful conduct of their respective businesses under and
pursuant to all, and have complied with and are not in default under any,
applicable laws, statutes, orders, rules, regulations, policies and/or
guidelines of any Governmental Entity relating to OSB or any of the OSB
Subsidiaries, except where the failure to hold such license, franchise,
permit or authorization or such noncompliance or default would not,
individually or in the aggregate, have a Material Adverse Effect on OSB.
3.14 Certain Contracts.
(a) Except as set forth in Schedule 3.14(a) of the OSB
Disclosure Schedules, neither OSB nor any of the OSB Subsidiaries is
a party to or bound by:
(i) any contract, arrangement, commitment or
understanding (whether written or oral) with respect to the
employment or compensation of any directors, officers or
employees;
(ii) any contract, arrangement, commitment or
understanding (whether written or oral) which, upon the
consummation of the transactions contemplated by this Agreement
or the Plan of Merger will (either alone or upon the occurrence
of any additional acts or events) result in any payment
(including, without limitation, severance, unemployment
compensation, golden parachute or otherwise) becoming due from
OSB, FCB, the Surviving Corporation, or any of their respective
Subsidiaries to any officer, director or employee thereof or to
the trustee under any "rabbi trust" or similar arrangement;
(iii) any contract, arrangement, commitment or
understanding (whether written or oral) which materially
restricts the conduct of any line of business by OSB; or
(iv) any contract, arrangement, commitment or
understanding (whether written or oral), including any stock
option plan, stock appreciation rights plan, restricted stock
plan or stock purchase plan, any of the benefits of which will
be increased or be required to be paid, or the vesting of the
benefits of which will be accelerated, by the occurrence of any
of the transactions contemplated by this Agreement or the Plan
of Merger, or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated
by this Agreement or the Plan of Merger.
OSB has previously made available to FCB true and correct copies of
all employment and deferred compensation arrangements which are in
writing and to which OSB or an OSB Subsidiary is a party. Each
contract, arrangement, commitment or understanding of the type
described in this Section 3.14(a), is referred to herein as an "OSB
Contract," and neither OSB nor any of the OSB Subsidiaries knows of,
or has received notice of, any violation of any OSB Contract by any
of the other parties thereto, which, individually or in the
aggregate, would have a Material Adverse Effect on OSB.
(b) (i) Each OSB Contract is valid and binding on OSB or
the applicable OSB Subsidiary, as the case may be, and is in full
force and effect, (ii) OSB and each of the OSB Subsidiaries has
performed all obligations required to be performed by it to date
under each OSB Contract to which it is a party, except where such
noncompliance, individually or in the aggregate, would not have a
Material Adverse Effect on OSB, and (iii) no event or condition
exists which constitutes or, after notice or lapse of time or both,
would constitute, a default on the part of OSB or any of the OSB
Subsidiaries under any such OSB Contract, except where any such
default, individually or in the aggregate, would not have a Material
Adverse Effect on OSB.
3.15 Agreements with Regulatory Agencies. Neither OSB nor any
of the OSB Subsidiaries is subject to any cease-and-desist or other order
issued by, or is a party to any written agreement, consent agreement or
memorandum of understanding with, or is a party to any commitment letter
or similar undertaking to, or is subject to any order or directive by, or
has been since December 31, 1991, a recipient of any supervisory letter
from, or since December 31, 1991, has adopted any board resolutions at the
request of any Regulatory Agency or other Governmental Entity that
currently restricts the conduct of its business or that relates to its
capital adequacy, compliance with laws, its credit policies, its
management or its business (each, whether or not set forth in the OSB
Disclosure Schedules, an "OSB Regulatory Agreement"), nor has OSB or any
of the OSB Subsidiaries been advised since December 31, 1991 by any
Regulatory Agency or other Governmental Entity that it is considering
issuing or requesting any such OSB Regulatory Agreement.
3.16 Other Activities of OSB and its OSB Subsidiaries. Neither
OSB nor any of the OSB Subsidiaries that is neither a savings association,
a savings association operating subsidiary or a savings association
service corporation directly or indirectly engages in any activity
prohibited by the OTS. Without limiting the generality of the foregoing,
no equity investment of OSB or any OSB Subsidiary that is neither a
savings association, a savings association operating subsidiary nor a
savings association service corporation is prohibited by the OTS.
3.17 Investment Securities. Each of OSB and the OSB
Subsidiaries has good and marketable title to all securities held by it
(except securities sold under repurchase agreements or held in any
fiduciary or agency capacity), free and clear of any Lien, except to the
extent such securities are pledged in the ordinary course of business
consistent with prudent banking practices to secure obligations of OSB or
any of the OSB Subsidiaries. Such securities are valued on the books of
OSB and the OSB Subsidiaries in accordance with GAAP.
3.18 Undisclosed Liabilities. Except for those liabilities that
are fully reflected or reserved against on the consolidated statement of
financial condition of OSB included in the OSB Second Quarter 10-Q,
liabilities disclosed in Schedule 3.18 of the OSB Disclosure Schedules,
and liabilities incurred in the ordinary course of business consistent
with past practice since June 30, 1996, neither OSB nor any of the OSB
Subsidiaries has incurred any liability of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether due or to become
due) that, either alone or when combined with all similar liabilities, has
had, or could reasonably be expected to have, a Material Adverse Effect on
OSB.
3.19 Insurance. Schedule 3.19 of the OSB Disclosure Schedules
describes all policies of insurance in which OSB or any of the OSB
Subsidiaries is named as an insured party or which otherwise relate to or
cover any assets or properties of OSB or any of the OSB Subsidiaries.
Each of such policies is in full force and effect, and the coverage
provided under such properties complies with the requirements of any
contracts binding on OSB or any of the OSB Subsidiaries relating to such
assets or properties. Except as set forth in Schedule 3.19 of the OSB
Disclosure Schedules, neither OSB nor any of the OSB Subsidiaries has
received any notice of cancellation or termination with respect to any
material insurance policy of OSB or any of the OSB Subsidiaries.
3.20 Loan Loss Reserves. The reserve for possible loan losses
shown on the June 30, 1996 call report filed for OSB Bank is adequate in
all material respects under the requirements of GAAP to provide for
possible losses, net of recoveries relating to loans previously charged
off, on loans outstanding (including accrued interest receivable) as of
June 30, 1996. The aggregate loan balances of OSB Bank at such date in
excess of such reserves are, to the best knowledge and belief of OSB,
collectible in accordance with their terms.
3.21 Environmental Liability. Except as set forth in Schedule
3.21, there are no legal, administrative, arbitration or other
proceedings, claims, actions, causes of action, private environmental
investigations or remediation activities or governmental investigations of
any nature pending or, to the best of OSB's knowledge, threatened against
OSB seeking to impose, or that could reasonably result in the imposition,
on OSB of any liability or obligation arising under common law or under
any local, state, federal or foreign environmental statute, regulation or
ordinance including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA")
which, insofar as reasonably can be foreseen, could have a Material
Adverse Effect on OSB.
Except as set forth in Schedule 3.21, to the best of OSB's
knowledge, there is no reasonable basis for any proceeding, claim, action
or governmental investigation that would impose any such liability or
obligation which, insofar as reasonably can be foreseen, could have a
Material Adverse Effect on OSB. OSB is not subject to any agreement,
order, judgment, decree, letter or memorandum by or with any court,
governmental authority, regulatory agency or third party imposing any such
liability or obligation which, insofar as reasonably can be foreseen,
could have a Material Adverse Effect on OSB.
3.22 Approval Delays. OSB knows of no reason why any of the
Requisite Regulatory Approvals (as defined in Section 7.1(b)) should be
denied or unduly delayed.
3.23 Vote Required. The approval by the holders of a majority
of the votes entitled to be cast by all holders of OSB Common Stock to
approve the Merger is the only vote of the holders of any class or series
of the capital stock of OSB required for any of the transactions
contemplated by this Agreement, the Plan of Merger and the Option
Agreements; provided, however, that the approval of shareholders of OSB
may be required for the repurchase of shares of OSB Common Stock pursuant
to Section 8 of the OSB Stock Option Agreement under circumstances where
Section 180.1134 of the WBCL would be applicable.
3.24 Applicability of Certain Provisions of Wisconsin Law, Etc.
Assuming the representations and warranties of FCB made in Section 4.25
are correct, none of the "control share voting" provisions of Section
180.1150 of the WBCL, the "business combination" provisions of Sections
180.1140 to 180.1144 of the WBCL, the "fair price" provisions of Section
180.1130 to 180.1133 of the WBCL, or any other takeover related provisions
of the WBCL (or, to the knowledge of OSB, any other similar state statute)
or the Articles of Incorporation or By-Laws of OSB, are applicable to the
transactions contemplated by this Agreement and the Plan of Merger,
including the granting or exercise of the OSB Stock Option Agreement,
except for the limitations set forth in Article XIII(B) of the Articles of
Incorporation of OSB.
3.25 Ownership of FCB Common Stock. Except as set forth in
Schedule 3.25 of the OSB Disclosure Schedules and except pursuant to the
terms of the FCB Stock Option Agreement, OSB does not "beneficially own"
(as such term is defined for purposes of Section 13(d) of the Exchange
Act) any shares of FCB Common Stock.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF FCB
FCB hereby represents and warrants to OSB as follows:
4.1 Corporate Organization.
(a) FCB is a corporation duly organized and validly
existing under the laws of the State of Wisconsin. FCB has the
corporate power and authority to own or lease all of its properties
and assets and to carry on its business as it is now being conducted,
and is duly licensed or qualified to do business in each jurisdiction
in which the nature of the business conducted by it or the character
or location of the properties and assets owned or leased by it makes
such licensing or qualification necessary, except where the failure
to be so licensed or qualified would not have a Material Adverse
Effect on FCB. FCB is duly registered as a savings and loan holding
company under HOLA. True and complete copies of the Articles of
Incorporation and By-Laws of FCB, as in effect as of the date of this
Agreement, have previously been made available by FCB to OSB.
(b) As of the date of this Agreement, FCB has, as its sole
direct or indirect subsidiaries, FCB Bank, a federally-chartered
savings association, Fox Cities Financial Services, Inc. and Fox
Cities Investments, Inc. (the "FCB Subsidiaries"). Except as set
forth on Schedule 4.1(b) of the disclosure schedules to this
Agreement prepared and delivered by FCB (the "FCB Disclosure
Schedules"), FCB does not own any voting stock or equity securities
of any bank, corporation, partnership, limited liability company, or
other organization, whether incorporated or unincorporated, other
than the FCB Subsidiaries.
(c) Each FCB Subsidiary (i) is duly organized and validly
existing as a corporation under the laws of its jurisdiction of
organization, (ii) is duly qualified to do business and in good
standing in all jurisdictions (whether federal, state, local or
foreign) where its ownership or leasing of property or the conduct of
its business requires it to be so qualified and in which the failure
to be so qualified would have a Material Adverse Effect on FCB, and
(iii) has all requisite corporate power and authority to own or lease
its properties and assets and to carry on its business as now
conducted. Except as set forth in Schedule 4.1(c) of the FCB
Disclosure Schedules, none of the FCB Subsidiaries owns any voting
stock or equity securities of any bank, corporation, partnership,
limited liability company, or other organization, whether
incorporated or unincorporated.
(d) The minute books of FCB and of each of the FCB
Subsidiaries have been made available to OSB and accurately reflect
in all material respects all corporate meetings held or actions taken
since January 1, 1992 by the shareholders and Boards of Directors of
FCB and each FCB Subsidiary, respectively (including committees of
the Boards of Directors of FCB and the FCB Subsidiaries).
4.2 Capitalization.
(a) The authorized capital stock of FCB consists of
15,000,000 shares of common stock, $0.01 par value per share, of
which, as of September 30, 1996, 2,459,614 shares were issued and
outstanding and 5,000,000 shares of Preferred Stock, $0.01 par value
per share, of which, as of September 30, 1996, none were issued and
outstanding. As of September 30, 1996, 449,886 shares of FCB Common
Stock were held in treasury. All of the issued and outstanding
shares of FCB Common Stock have been duly authorized and validly
issued and are fully paid, nonassessable (except as otherwise
provided by Section 180.0622(2)(b) of the WBCL) and free of
preemptive rights. Except for the FCB Option Agreement and as set
forth on Schedule 4.2(a) of the FCB Disclosure Schedules, FCB does
not have and is not bound by any outstanding subscriptions, options,
warrants, calls, commitments or agreements of any character calling
for the purchase or issuance of any shares of FCB Common Stock or any
other equity securities of FCB or any securities representing the
right to purchase or otherwise receive any shares of the capital
stock of FCB. No shares of FCB Common Stock have been reserved for
issuance, other than the shares of FCB Common Stock reserved for
issuance under the FCB Option Agreement and the FCB Financial Corp.
1993 Stock Option and Incentive Plan (the "FCB Option Plan"). Since
September 30, 1996, FCB has not issued any shares of its capital
stock or any securities convertible into or exercisable for any
shares of its capital stock except upon exercise of stock options
pursuant to the FCB Option Plan outstanding as of September 30, 1996
and except with respect to the FCB Stock Option Agreement.
(b) FCB owns, directly or indirectly, all of the issued
and outstanding shares of capital stock of each of the FCB
Subsidiaries, free and clear of any Liens. All of the shares of
capital stock of each FCB Subsidiary are duly authorized and validly
issued and are fully paid, nonassessable (except as otherwise
provided by Section 180.0622(2)(b) of the WBCL) and free of
preemptive rights. No FCB Subsidiary has or is bound by any
outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the purchase or issuance of
any shares of capital stock or any other equity security of such FCB
Subsidiary or any securities representing the right to purchase or
otherwise receive any shares of capital stock or any other equity
security of such FCB Subsidiary.
4.3 Authority; No Violation. FCB has full corporate power and
authority to execute and deliver each of this Agreement, the Plan of
Merger and the Option Agreements, subject to shareholder and regulatory
approvals, and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement, the Plan of Merger
and the Option Agreements and the consummation of the transactions
contemplated hereby and thereby have been duly and validly approved by the
Board of Directors of FCB. The Board of Directors of FCB has directed
that this Agreement and the Plan of Merger and the transactions
contemplated hereby and thereby be submitted to FCB's shareholders for
approval at a meeting of such shareholders and, except for the adoption of
this Agreement and the Plan of Merger and the transactions contemplated
hereby and thereby by the affirmative vote of the holders of a majority of
the outstanding shares of FCB Common Stock, no other corporate proceedings
on the part of FCB are necessary to approve this Agreement, the Plan of
Merger and the Option Agreements and to consummate the transactions
contemplated hereby and thereby. This Agreement and the Option Agreements
have been duly and validly executed and delivered by FCB and (assuming due
authorization, execution and delivery by OSB) constitute valid and binding
obligations of FCB, enforceable against FCB in accordance with their
respective terms. Furthermore, the Plan of Merger, when executed and
delivered by FCB and (assuming due authorization, execution and delivery
by OSB), shall constitute a valid and binding obligation of FCB,
enforceable against FCB in accordance with its terms.
4.4 Consents and Approvals. No consents or approvals of or
filings or registrations with any Governmental Entity or with any third
party are necessary in connection with the execution and delivery by FCB
of this Agreement, the Plan of Merger and the Option Agreements and the
consummation by FCB of the Merger and the other transactions contemplated
hereby and thereby except for (a) the filing by FCB and FCB Bank of an
application with the OTS under HOLA and the approval of the OTS
Application, (b) the filing with the SEC of the Joint Proxy Statement in
definitive form relating to the meetings of OSB's and FCB's shareholders
to be held in connection with this Agreement and the Plan of Merger and
the transactions contemplated hereby and thereby in which such Joint Proxy
Statement will be included as a prospectus, (c) the filing of Articles of
Merger with the Wisconsin Department under the WBCL, (d) such filings and
approvals as are required to be made or obtained under the securities or
"Blue Sky" laws of various states in connection with the issuance of the
shares of FCB Common Stock pursuant to this Agreement and the Plan of
Merger, and (e) the approval of this Agreement and Plan of Merger by the
requisite vote of the shareholders of FCB and OSB.
4.5 Reports. FCB and each of the FCB Subsidiaries have timely
filed all reports, registrations and statements, together with any
amendments required to be made with respect thereto, that they were
required to file since October 1, 1993 with the Regulatory Agencies, and
all other reports and statements required to be filed by them since
October 1, 1993, including, without limitation, any report or statement
required to be filed pursuant to the laws, rules or regulations of the
United States, any state, or any Regulatory Agency, and have paid all fees
and assessments due and payable in connection therewith, except where the
failure to file such report, registration or statement or to pay such fees
and assessments, either individually or in the aggregate, will not have a
Material Adverse Effect on FCB. Except for normal examinations conducted
by a Regulatory Agency in the regular course of the business of FCB or the
FCB Subsidiaries, no Regulatory Agency has initiated any proceeding or, to
the best knowledge of FCB, investigation into the business or operations
of FCB or any of the FCB Subsidiaries since October 1, 1993. There is no
unresolved written violation, written criticism, or written exception by
any Regulatory Agency with respect to any report or statement relating to
any examinations of FCB or any of the FCB Subsidiaries, which is likely,
either individually or in the aggregate, to have a Material Adverse Effect
on FCB.
4.6 Financial Statements. FCB has previously made available to
OSB copies of (a) the consolidated statements of financial condition of
FCB and the FCB Subsidiaries as of March 31, 1995 and 1996, and the
related consolidated statements of income, shareholders' equity and cash
flows for the fiscal years ended March 31, 1994, 1995 and 1996, inclusive,
as reported in FCB's Annual Report on Form 10-K for the fiscal year ended
March 31, 1996 (the "FCB Form 10-K") filed with the SEC under the Exchange
Act, in each case accompanied by the audit report of Wipfli Ullrich
Bertelson LLP, independent public accountants with respect to FCB, and (b)
the unaudited consolidated statements of financial condition of FCB and
the FCB Subsidiaries as of June 30, 1996, and the related unaudited
consolidated statements of income, shareholders' equity and cash flows for
the three-month period then ended as reported in FCB's Quarterly Report on
Form 10-Q for the period ended June 30, 1996 filed with the SEC under the
Exchange Act (the "FCB First Quarter 10-Q"). The March 31, 1996
consolidated statements of financial condition of FCB (including the
related notes, where applicable) fairly present the consolidated financial
position of FCB and the FCB Subsidiaries as of the dates thereof, and the
other financial statements referred to in this Section 4.6 or included in
the FCB Reports (including the related notes, where applicable) fairly
present the results of the consolidated operations and shareholders'
equity and consolidated financial position of FCB and the FCB Subsidiaries
for the respective fiscal periods or as of the respective dates therein
set forth, subject, in the case of the unaudited statements, to recurring
audit adjustments normal in nature and amount; each of such statements
(including the related notes, where applicable) comply in all material
respects with applicable accounting requirements and with the published
rules and regulations of the SEC with respect thereto; and each of such
statements (including the related notes, where applicable) has been
prepared in all material respects in accordance with GAAP consistently
applied during the periods involved, except, in each case, as indicated in
such statements or in the notes thereto or, in the case of unaudited
statements, as permitted by Form 10-Q.
4.7 Broker's Fees. Other than FCB's arrangement with RP
Financial, LC. to serve as a financial advisor to FCB in connection with
the Merger and related transactions contemplated by this Agreement and the
Plan of Merger, neither FCB nor any FCB Subsidiary nor any of their
respective officers or directors has employed any financial advisor,
broker or finder or incurred any liability for any financial advisory
fees, broker's fees, commissions or finder's fees in connection with the
Merger or related transactions contemplated by this Agreement and the Plan
of Merger.
4.8 Absence of Certain Changes or Events.
(a) Except as publicly disclosed in the FCB Reports (as
defined in Section 4.12) filed prior to the date hereof or as set
forth in Schedule 4.8(a), since December 31, 1995, (i) FCB and the
FCB Subsidiaries taken as a whole have not incurred any material
liability, except in the ordinary course of their business, and (ii)
no event has occurred which has had, individually or in the
aggregate, a Material Adverse Effect on FCB or will have a Material
Adverse Effect on FCB.
(b) Except as publicly disclosed in the FCB Reports filed
prior to the date hereof, since December 31, 1995, FCB and each FCB
Subsidiary have carried on their respective businesses in all
material respects in the ordinary and usual course.
4.9 Legal Proceedings.
(a) Except as set forth in Schedule 4.9, there are no
pending or, to the best of FCB's knowledge, threatened, legal,
administrative, arbitration or other proceedings, claims, actions or
governmental or regulatory investigations of any nature against FCB
or any of the FCB Subsidiaries or challenging the validity or
propriety of the transactions contemplated by this Agreement, the
Plan of Merger or the Option Agreements.
(b) There is no injunction, order, judgment, decree, or
regulatory restriction (other than regulatory restrictions that apply
to similarly situated savings and loan holding companies or savings
associations) imposed upon FCB, any of the FCB Subsidiaries or the
assets of FCB or any of the FCB Subsidiaries.
4.10 Taxes and Tax Returns. Each of FCB and the FCB
Subsidiaries has duly filed all federal, state, county, foreign and, to
the best of FCB's knowledge, local information returns and tax returns
required to be filed by it on or prior to the date hereof (all such
returns being accurate and complete in all material respects) and has duly
paid or made provisions for the payment of all Taxes and other
governmental charges which have been incurred or are due or claimed to be
due from it by federal, state, county, foreign or local taxing authorities
on or prior to the date of this Agreement (including, without limitation,
if and to the extent applicable, those due in respect of its properties,
income, business, capital stock, deposits, franchises, licenses, sales and
payrolls) other than Taxes or other charges which are not yet delinquent
or are being contested in good faith and have not been finally determined.
The income tax returns of FCB and the FCB Subsidiaries remain open for the
applicable statutory time periods and any deficiencies, penalties or
assessments have been paid or provided for in FCB's consolidated financial
statements. There are no material disputes pending with respect to, or
claims asserted for, Taxes or assessments upon FCB or any of the FCB
Subsidiaries for which FCB does not have adequate reserves, nor has FCB or
any of the FCB Subsidiaries given any currently effective waivers
extending the statutory period of limitation applicable to any federal,
state, county, foreign or local income tax return for any period. In
addition, (i) proper and accurate amounts have been withheld by FCB and
each of the FCB Subsidiaries from their employees for all prior periods in
compliance in all material respects with the tax withholding provisions of
applicable federal, state, foreign and local laws, except where failure to
do so would not have a Material Adverse Effect on FCB, (ii) federal,
state, foreign, county and local returns which are accurate and complete
in all material respects have been filed by FCB and each of the FCB
Subsidiaries for all periods for which returns were due with respect to
income tax withholding, Social Security and unemployment taxes, (iii) the
amounts shown on such federal, state, foreign, local or county returns to
be due and payable have been paid in full or adequate provision therefor
has been included by FCB in its consolidated financial statements as of
March 31, 1996, and (iv) there are no Tax liens upon any property or
assets of FCB or any of the FCB Subsidiaries except liens for current
taxes not yet due. Except as set forth in Schedule 4.10(a), neither FCB
nor any of the FCB Subsidiaries has been required to include in income any
adjustment pursuant to Section 481 of the Code by reason of a voluntary
change in accounting method initiated by FCB or any of the FCB
Subsidiaries, and the IRS has not initiated or proposed any such
adjustment or change in accounting method. Except as set forth in the
financial statements described in Section 4.6, neither FCB nor any of the
FCB Subsidiaries has entered into a transaction which is being accounted
for as an installment obligation under Section 453 of the Code.
4.11 Employees.
(a) Schedule 4.11 of the FCB Disclosure Schedules sets
forth a true and complete list of each employee benefit plan,
arrangement, commitment, agreement or understanding that is
maintained as of the date of this Agreement (the "FCB Benefit Plans")
(i) by FCB or any of the FCB Subsidiaries or (ii) by any trade or
business, whether or not incorporated, which (A) is under "common
control," as described in Section 414(c) of the Code, with FCB, (B)
is a member of a "controlled group," as defined in Section 414(b) of
the Code, or (C) is a member of an "affiliated service group," as
defined in Section 414(m) of the Code which includes FCB (an "FCB
ERISA Affiliate"), all of which together with FCB would be deemed a
"single employer" within the meaning of Section 4001 of ERISA.
(b) FCB has heretofore delivered to OSB true and complete
copies of the FCB Benefit Plans and certain related documents,
including, but not limited to, (i) the Annual Report Form 5500 for
such FCB Benefit Plan (if applicable) for each of the last two years,
and (ii) the most recent determination letter from the IRS (if
applicable) for such FCB Benefit Plan.
(c) (i) Each of the FCB Benefit Plans has been operated
and administered in all material respects with applicable laws,
including, but not limited to, ERISA and the Code, (ii) each of the
FCB Benefit Plans intended to be "qualified" within the meaning of
Section 401(a) of the Code is so qualified, (iii) no FCB Benefit Plan
provides benefits, including, without limitation, death or medical
benefits (whether or not insured), with respect to current or former
employees of FCB, the FCB Subsidiaries or any FCB ERISA Affiliate
beyond their retirement or other termination of service, other than
(A) coverage mandated by applicable law, (B) death benefits,
disability benefits or retirement benefits under any "employee
pension plan" (as such term is defined in Section 3(2) of ERISA), (C)
deferred compensation benefits accrued as liabilities on the books of
FCB, the FCB Subsidiaries or the FCB ERISA Affiliates, or (D)
benefits the full cost of which is borne by the current or former
employee (or his beneficiary), (iv) neither FCB, the FCB Subsidiaries
nor any FCB ERISA Affiliate maintains or has ever maintained a plan
subject to Title IV of ERISA, (v) neither FCB, the FCB Subsidiaries
nor any FCB ERISA Affiliate contributes to or has ever contributed to
a "Multiemployer" pension plan (as such term is defined in Section
3(37) of ERISA, (vi) all contributions or other amounts payable by
FCB or the FCB Subsidiaries as of the Effective Time with respect to
each FCB Benefit Plan in respect of current or prior plan years have
been paid or accrued in accordance with GAAP and Section 412 of the
Code, (vii) neither FCB, the FCB Subsidiaries nor any FCB ERISA
Affiliate has engaged in a transaction in connection with which FCB,
the FCB Subsidiaries or any ERISA Affiliate reasonably could be
subject to either a material civil penalty assessed pursuant to
Section 409 or 502(i) of ERISA or a material tax imposed pursuant to
Sections 4975 or 4976 of the Code, and (viii) to the best knowledge
of FCB, there are no pending, threatened or anticipated claims (other
than routine claims for benefits) by, on behalf of or against any of
the FCB Benefit Plans or any trusts related thereto which are, in the
reasonable judgment of FCB, likely, either individually or in the
aggregate, to have a Material Adverse Effect on FCB.
4.12 SEC Reports. FCB and each of the FCB Subsidiaries has made
available to OSB an accurate and complete copy of each (a) final
registration statement, prospectus, report, schedule and definitive proxy
statement filed since March 31, 1993 by FCB with the SEC pursuant to the
Securities Act or the Exchange Act (collectively, the "FCB Reports"), and
(b) communication mailed by FCB to its shareholders since March 31, 1993.
None of the FCB Reports or such communications to shareholders, as of
their respective dates, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading. Since March 31,
1993, FCB has timely filed all FCB Reports and other documents required to
be filed by it under the Securities Act and the Exchange Act, and, as of
their respective dates, all FCB Reports complied in all material respects
with the published rules and regulations of the SEC with respect thereto.
4.13 Compliance with Applicable Law. FCB and each of the FCB
Subsidiaries hold all licenses, franchises, permits and authorizations
necessary for the lawful conduct of their respective businesses under and
pursuant to all, and have complied with and are not in default under any,
applicable laws, statutes, orders, rules, regulations, policies and/or
guidelines of any Governmental Entity relating to FCB or any of the FCB
Subsidiaries, except where the failure to hold such license, franchise,
permit or authorization or such noncompliance or default would not,
individually or in the aggregate, have a Material Adverse Effect on FCB.
4.14 Certain Contracts.
(a) Except as set forth in Schedule 4.14(a) of the FCB
Disclosure Schedules, neither FCB nor any of the FCB Subsidiaries is
a party to or bound by:
(i) any contract, arrangement, commitment or
understanding (whether written or oral) with respect to the
employment or compensation of any directors, officers or
employees;
(ii) any contract, arrangement, commitment or
understanding (whether written or oral) which, upon the
consummation of the transactions contemplated by this Agreement
or the Plan of Merger will (either alone or upon the occurrence
of any additional acts or events) result in any payment
(including, without limitation, severance, unemployment
compensation, golden parachute or otherwise) becoming due from
OSB, FCB, the Surviving Corporation, or any of their respective
Subsidiaries to any officer, director or employee thereof or to
the trustee under any "rabbi trust" or similar arrangement;
(iii) any contract, arrangement, commitment or
understanding (whether written or oral) which materially
restricts the conduct of any line of business by FCB; or
(iv) any contract, arrangement, commitment or
understanding (whether written or oral), including any stock
option plan, stock appreciation rights plan, restricted stock
plan or stock purchase plan, any of the benefits of which will
be increased or be required to be paid, or the vesting of the
benefits of which will be accelerated, by the occurrence of any
of the transactions contemplated by this Agreement or the Plan
of Merger, or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated
by this Agreement or the Plan of Merger.
FCB has previously made available to OSB true and correct copies of
all employment and deferred compensation arrangements which are in
writing and to which FCB or an FCB Subsidiary is a party. Each
contract, arrangement, commitment or understanding of the type
described in this Section 4.14(a), is referred to herein as an "FCB
Contract," and neither FCB nor any of the FCB Subsidiaries knows of,
or has received notice of, any violation of any FCB Contract by any
of the other parties thereto, which, individually or in the
aggregate, would have a Material Adverse Effect on FCB.
(b) (i) each FCB Contract is valid and binding on FCB or
the applicable FCB Subsidiary, as the case may be, and is in full
force and effect, (ii) FCB and each of the FCB Subsidiaries has
performed all obligations required to be performed by it to date
under each FCB Contract to which it is a party, except where such
noncompliance, individually or in the aggregate, would not have a
Material Adverse Effect on FCB, and (iii) no event or condition
exists which constitutes or, after notice or lapse of time or both,
would constitute, a default on the part of FCB or any of the FCB
Subsidiaries under any such FCB Contract, except where any such
default, individually or in the aggregate, would not have a Material
Adverse Effect on FCB.
4.15 Agreements with Regulatory Agencies. Neither FCB nor any
of the FCB Subsidiaries is subject to any cease-and-desist or other order
issued by, or is a party to any written agreement, consent agreement or
memorandum of understanding with, or is a party to any commitment letter
or similar undertaking to, or is subject to any order or directive by, or
has been since March 31, 1993, a recipient of any supervisory letter from,
or since March 31, 1993, has adopted any board resolutions at the request
of any Regulatory Agency or other Governmental Entity that currently
restricts the conduct of its business or that relates to its capital
adequacy, compliance with laws, its credit policies, its management or its
business (each, whether or not set forth in the FCB Disclosure Schedules,
a "FCB Regulatory Agreement") nor has FCB or any of the FCB Subsidiaries
been advised since March 31, 1993 by any Regulatory Agency or other
Governmental Entity that it is considering issuing or requesting any such
FCB Regulatory Agreement.
4.16 Other Activities of FCB and its FCB Subsidiaries. Neither
FCB nor any of the FCB Subsidiaries that is neither a savings association,
a savings association operating subsidiary or a savings association
service corporation directly or indirectly engages in any activity
prohibited by the OTS. Without limiting the generality of the foregoing,
no equity investment of FCB or any FCB Subsidiary that is neither a
savings association, a savings association operating subsidiary nor a
savings association service corporation is prohibited by the OTS.
4.17 Investment Securities. Each of FCB and the FCB
Subsidiaries has good and marketable title to all securities held by it
(except securities sold under repurchase agreements or held in any
fiduciary or agency capacity), free and clear of any Lien, except to the
extent such securities are pledged in the ordinary course of business
consistent with prudent banking practices to secure obligations of FCB or
any of the FCB Subsidiaries. Such securities are valued on the books of
FCB and the FCB Subsidiaries in accordance with GAAP.
4.18 Undisclosed Liabilities. Except for those liabilities that
are fully reflected or reserved against on the consolidated statement of
financial condition of FCB included in the FCB First Quarter 10-Q,
liabilities disclosed in Schedule 4.18 of the FCB Disclosure Schedules,
and liabilities incurred in the ordinary course of business consistent
with past practice since June 30, 1996, neither FCB nor any of the FCB
Subsidiaries has incurred any liability of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether due or to become
due) that, either alone or when combined with all similar liabilities, has
had, or could reasonably be expected to have, a Material Adverse Effect on
FCB.
4.19 Insurance. Schedule 4.19 of the FCB Disclosure Schedules
describes all policies of insurance in which FCB or any of the FCB
Subsidiaries is named as an insured party or which otherwise relate to or
cover any assets or properties of FCB or any of the FCB Subsidiaries.
Each of such policies is in full force and effect, and the coverage
provided under such properties complies with the requirements of any
contracts binding on FCB or any of the FCB Subsidiaries relating to such
assets or properties. Except as set forth in Schedule 4.19 of the FCB
Disclosure Schedules, neither FCB nor any of the FCB Subsidiaries has
received any notice of cancellation or termination with respect to any
material insurance policy of FCB or any of the FCB Subsidiaries.
4.20 Loan Loss Reserves. The reserve for possible loan losses
shown on the June 30, 1996 call report filed for FCB Bank is adequate in
all material respects under the requirements of GAAP to provide for
possible losses, net of recoveries relating to loans previously charged
off, on loans outstanding (including accrued interest receivable) as of
June 30, 1996. The aggregate loan balances of FCB Bank at such date in
excess of such reserves of each of FCB Bank are, to the best knowledge and
belief of FCB, collectible in accordance with their terms.
4.21 Environmental Liability. Except as set forth in Schedule
4.21, there are no legal, administrative, arbitration or other
proceedings, claims, actions, causes of action, private environmental
investigations or remediation activities or governmental investigations of
any nature pending or, to the best of FCB's knowledge, threatened against
FCB seeking to impose, or that could reasonably result in the imposition,
on FCB of any liability or obligation arising under common law or under
any local, state, federal or foreign environmental statute, regulation or
ordinance including, without limitation, CERCLA which, insofar as
reasonably can be foreseen, could have a Material Adverse Effect on FCB.
Except as set forth in Schedule 4.21, to the best of FCB's knowledge,
there is no reasonable basis for any such proceeding, claim, action or
governmental investigation that would impose any such liability or
obligation which, insofar as reasonably can be foreseen, could have a
Material Adverse Effect on FCB. FCB is not subject to any agreement,
order, judgment, decree, letter or memorandum by or with any court,
governmental authority, regulatory agency or third party imposing any such
liability or obligation which, insofar as reasonably can be foreseen,
could have a Material Adverse Effect on FCB.
4.22 Approval Delays. FCB knows of no reason why any of the
Requisite Regulatory Approvals (as defined in Section 7.1(b)) should be
denied or unduly delayed.
4.23 Vote Required. The approval by the holders of a majority
of the votes entitled to be cast by all holders of FCB Common Stock to
approve the Merger (including the issuance of shares of FCB Common Stock
in connection therewith) is the only vote of the holders of any class or
series of the capital stock of FCB required for any of the transactions
contemplated by this Agreement, the Plan of Merger and the Option
Agreements; provided, however, that the approval of shareholders of FCB
may be required for the repurchase of shares of FCB Common Stock pursuant
to Section 8 of the FCB Stock Option Agreement under circumstances where
Section 180.1134 of the WBCL would be applicable.
4.24 Applicability of Certain Provisions of Wisconsin Law, Etc.
Assuming the representations and warranties of OSB made in Section 3.25
are correct, none of the "control share voting" provisions of Section
180.1150 of the WBCL, the "business combination" provisions of Sections
180.1140 to 180.1144 of the WBCL, the "fair price" provisions of Section
180.1130 to 180.1133 of the WBCL, or any other takeover related provisions
of the WBCL (or, to the knowledge of FCB, any other similar state statute)
or the Articles of Incorporation or By-Laws of FCB, are applicable to the
transactions contemplated by this Agreement and the Plan of Merger,
including the granting or exercise of the FCB Stock Option Agreement,
except for the limitations set forth in subparagraph B(4) of Article II of
the Articles of Incorporation of FCB.
4.25 Ownership of OSB Common Stock. Except as set forth in
Schedule 4.25 of the FCB Disclosure Schedules and except pursuant to the
terms of the OSB Stock Option Agreement, FCB does not "beneficially own"
(as such term is defined for purposes of Section 13(d) of the Exchange
Act) any shares of OSB Common Stock.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 Conduct of Businesses Prior to the Effective Time. During
the period from the date of this Agreement to the Effective Time, except
as expressly contemplated or permitted by this Agreement and the Plan of
Merger (including the OSB Disclosure Schedules and the FCB Disclosure
Schedules), each of FCB and OSB shall, and shall cause the FCB
Subsidiaries and the OSB Subsidiaries, respectively, to (a) conduct its
business in good faith in the usual, regular and ordinary course
consistent with past practice, (b) use reasonable efforts to maintain and
preserve intact its business organization, employees and advantageous
business relationships and retain the services of its key officers and key
employees, and (c) take no action which would adversely affect or delay
the ability of either FCB or OSB to obtain any necessary approvals of any
Regulatory Agency or other governmental authority required for the
transactions contemplated hereby or to perform its covenants and
agreements under this Agreement, the Plan of Merger or the Option
Agreements.
5.2 Forbearances. During the period from the date of this
Agreement to the Effective Time, except as set forth in the OSB Disclosure
Schedules or the FCB Disclosure Schedules, as the case may be, and, except
as expressly contemplated or permitted by this Agreement, the Plan of
Merger or the Option Agreements, neither FCB nor OSB shall, nor shall FCB
or OSB permit the FCB Subsidiaries or OSB Subsidiaries, respectively to,
without the prior written consent of the other:
(a) other than in the ordinary course of business
consistent with past practice, (i) incur any indebtedness for
borrowed money (other than pursuant to existing lines of credit or
short-term indebtedness incurred in the ordinary course of business
consistent with past practice, indebtedness of OSB to any of the OSB
Subsidiaries or of any of the OSB Subsidiaries to OSB, or
indebtedness of FCB to any of the FCB Subsidiaries or of any of the
FCB Subsidiaries to FCB, it being understood and agreed that
incurrence of indebtedness in the ordinary course of business shall
include, without limitation, the creation of deposit liabilities,
purchases of Federal funds, sales of certificates of deposit and
entering into repurchase agreements), (ii) assume, guarantee, endorse
or otherwise as an accommodation become responsible for the
obligations of any other individual, corporation or other entity; or
(iii) make any loan or advance;
(b) (i) adjust, split, combine or reclassify any capital
stock, (ii) make, declare or pay any dividend or make any other
distribution on, any shares of its capital stock or any securities or
obligations convertible into or exchangeable for any shares of its
capital stock (except (A) in the case of FCB, for regular quarterly
cash dividends at a rate not in excess of $0.18 per share of FCB
Common Stock, and (B) in the case of OSB, for regular quarterly cash
dividends at a rate not in excess of $0.16 per share of OSB Common
Stock); (iii) directly or indirectly redeem, purchase or otherwise
acquire any shares of capital stock or any securities or obligations
convertible into or exchangeable for any shares of its capital stock
(except (A) in the case of FCB, repurchases of FCB Common Stock in
the open market or in privately negotiated transactions, provided
that written notice of any such repurchase is given to OSB as soon as
is practicable thereafter, and (B) in the case of OSB, repurchases of
OSB Common Stock in the open market or in privately negotiated
transactions, provided that written notice of any such repurchase is
given to FCB as soon as practicable thereafter); (iv) grant any stock
appreciation rights or grant any individual, corporation or other
entity any right to acquire any shares of its capital stock, or (iv)
issue any additional shares of capital stock (except pursuant to (A)
the exercise of stock options outstanding as of the date of this
Agreement, or (B) the Option Agreements);
(c) sell, transfer, mortgage, encumber or otherwise
dispose of any of its properties or assets to any individual,
corporation or other entity other than a Subsidiary, or cancel,
release or assign any indebtedness to any such person or any claims
held by any such person, except in the ordinary course of business
consistent with past practice or pursuant to contracts or agreements
in force at the date of this Agreement;
(d) except for transactions in the ordinary course of
business consistent with past practice or pursuant to contracts or
agreements in force at the date of this Agreement, make any material
investment either by purchase of stock or securities, contributions
to capital, property transfers, or purchase of any property or assets
of any other individual, corporation or other entity other than a
Subsidiary thereof or any existing joint venture to which OSB or FCB
is a party;
(e) except for transactions in the ordinary course of
business consistent with past practice, enter into or terminate any
material contract or agreement, or make any change in any of its
material leases or contracts, other than renewals of contracts and
leases without material adverse changes of terms;
(f) other than in the ordinary course of business
consistent with past practice, increase in any manner the
compensation or fringe benefits of any of its employees (it being
understood and agreed that an increase in any manner the compensation
of any employee in the ordinary course of business consistent with
past practice shall include, without limitation, an increase in Mr.
Rothenbach's base salary to an amount not to exceed $125,000
annually), or pay any pension or retirement allowance not required by
any existing plan or agreement to any such employees or become a
party to, amend or commit itself to any pension, retirement, profit-
sharing or welfare benefit plan or agreement or employment agreement
with or for the benefit of any employee; provided, however, that (i)
any bonus paid any officer of FCB or the FCB Subsidiaries shall not
exceed 115% of such bonus paid to such individual for the immediately
preceding fiscal year and (ii) any bonus paid by OSB or the OSB
Subsidiaries to (a) James J. Rothenbach shall not exceed 30% of his
1996 base salary, (b) any Vice President of OSB or the OSB
Subsidiaries shall not exceed 15% of each individual's 1996 base
salary, and (c) all other employees of OSB or the OSB Subsidiaries
shall not exceed $30,000 in the aggregate for any fiscal year;
(g) grant, amend or modify in any material respect any
stock option, stock awards or other stock based compensation, except
that OSB and FCB may modify their respective stock options and OSB
may modify stock awards previously granted under the OSB MRP which
are outstanding as of the date of this Agreement in each case solely
to provide full vesting conditioned upon and effective as of the
Closing Date.
(h) pay, discharge or satisfy any material claims,
liabilities or obligations (whether absolute, accrued, asserted or
unasserted, contingent or otherwise), other than the payment,
discharge or satisfaction, in the ordinary course of business
consistent with past practice (which includes the payment of final
and unappealable judgments) or in accordance with their terms, of
liabilities reflected or reserved against in, or contemplated by, the
most recent consolidated financial statements (or the notes thereto)
of such party included in such party's reports filed with the SEC, or
incurred in the ordinary course of business consistent with past
practice;
(i) take any action that would prevent or impede the
Merger from qualifying as a reorganization within the meaning of
Section 368 of the Code; provided, however, that nothing contained
herein shall limit the ability of OSB or FCB to exercise its rights
under the OSB Option Agreement or the FCB Option Agreement, as the
case may be;
(j) amend its articles of incorporation or its bylaws;
(k) other than in prior consultation with the other party
to this Agreement, restructure or materially change its investment
securities portfolio or its gap position, through purchases, sales,
or otherwise, or the manner in which the portfolio is classified or
reported;
(l) take any action that is intended or may reasonably be
expected to result in any of its representations and warranties set
forth in this Agreement being or becoming untrue in any material
respect at any time prior to the Effective Time, or in any of the
conditions to the Merger set forth in Article VII not being satisfied
or in a violation of any provision of this Agreement, the Plan of
Merger or the Option Agreements, except, in every case, as may be
required by applicable law; or
(m) agree to, or make any commitment to, take any of the
actions prohibited by this Section 5.2.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Regulatory Matters; Cooperation with Respect to Filing.
(a) (i) FCB shall promptly prepare and file with the SEC
the Joint Proxy Statement in preliminary form; (ii) FCB shall
promptly prepare and file an application with the OTS, for approval
to consummate the transactions contemplated by this Agreement, the
Plan of Merger and, to the extent required, the Option Agreements.
Each of FCB and OSB shall use all reasonable efforts to have the S-4,
in which the Joint Proxy Statement will be included as a prospectus,
declared effective under the Securities Act as promptly as
practicable after such filing and to mail or deliver the Joint Proxy
Statement to their respective shareholders. FCB shall also use all
reasonable efforts to obtain all necessary state securities law or
"Blue Sky" permits and approvals required to carry out the
transactions contemplated by this Agreement and the Plan of Merger,
and OSB shall furnish all information concerning OSB and the holders
of the OSB Common Stock as may be reasonably requested by FCB in
connection with any such action.
(b) The parties hereto shall cooperate with each other and
shall each use reasonable efforts to promptly prepare and file all
necessary documentation, to effect all applications, notices,
petitions and filings, to obtain as promptly as practicable all
permits, consents, approvals and authorizations of all third parties
and Governmental Entities which are necessary or advisable to
consummate the transactions contemplated by this Agreement and the
Plan of Merger (including, without limitation, the Merger), and to
comply with the terms and conditions of all such permits, consents,
approvals and authorizations of all such Governmental Entities. FCB
and OSB shall have the right to review in advance, and, to the extent
practicable, each will consult the other on, in each case subject to
applicable laws relating to the exchange of information, all the
information relating to FCB or OSB, as the case may be, and the FCB
Subsidiaries and OSB Subsidiaries, respectively, which appears in any
filing made with, or written materials submitted to, any third party
or any Governmental Entity in connection with the transactions
contemplated by this Agreement and the Plan of Merger. In exercising
the foregoing right, each of the parties hereto shall act reasonably
and as promptly as practicable. The parties hereto agree that they
will consult with each other with respect to the obtaining of all
permits, consents, approvals and authorizations of all third parties
and Governmental Entities necessary or advisable to consummate the
transactions contemplated by this Agreement and the Plan of Merger,
and each party will keep the other apprised of the status of matters
relating to completion of the transactions contemplated herein.
(c) FCB and OSB shall, upon request, furnish each other
with all information concerning themselves, and the FCB Subsidiaries
and the OSB Subsidiaries, respectively, directors, officers and
shareholders and such other matters as may be reasonably necessary or
advisable in connection with the Joint Proxy Statement, the S-4 or
any other statement, filing, notice or application made by or on
behalf of FCB or OSB or the FCB Subsidiaries and OSB Subsidiaries, as
the case may be, to any Governmental Entity in connection with the
Merger and the other transactions contemplated by this Agreement and
the Plan of Merger. FCB covenants and agrees that none of the
information which is furnished by FCB for inclusion, or which is
included, in the S-4, the Joint Proxy Statement or any other
statement, filing, notice or application made by or on behalf of FCB
or OSB or the FCB Subsidiaries or the OSB Subsidiaries, as the case
may be, to any Governmental Entity in connection with the Merger and
the other transactions contemplated by this Agreement and the Plan of
Merger will, at the respective times such documents are filed and, in
the case of the S-4, when it becomes effective and, with respect to
the Joint Proxy Statement, when mailed or at the time of the meetings
of the shareholders of FCB and OSB, be false or misleading with
respect to any material fact or shall omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading. OSB covenants
and agrees that none of the information which is furnished by OSB for
inclusion, or which is included, in the S-4, the Joint Proxy
Statement or any other statement, filing, notice or application made
by or on behalf of FCB or OSB or the FCB Subsidiaries or the OSB
Subsidiaries, as the case may be, to any Governmental Entity in
connection with the Merger and the other transactions contemplated by
this Agreement and the Plan of Merger will, at the respective times
such documents are filed and, in the case of the S-4, when it becomes
effective and, with respective to the Joint Proxy Statement, when
mailed or at the time of the meetings of the shareholders of FCB and
OSB, be false or misleading with respect to any material fact or
shall omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances in which they were
made, not misleading. Notwithstanding the foregoing, FCB shall have
no responsibility for the truth or accuracy of any information with
respect to OSB or the OSB Subsidiaries included in the S-4, the Joint
Proxy Statement, or any other statement, filing, notice or
application filed with any Governmental Entity in connection with the
Merger and the other transactions contemplated by this Agreement and
the Plan of Merger, and OSB shall have no responsibility for the
truth or accuracy of any information with respect to FCB or the FCB
Subsidiaries included in the S-4, the Joint Proxy Statement, or any
other statement, filing, notice or application filed with any
Governmental Entity in connection with the Merger and the other
transactions contemplated by this Agreement and the Plan of Merger.
(d) FCB and OSB shall promptly advise one another upon
receiving any communication from any Governmental Entity whose
consent or approval is required for consummation of the transactions
contemplated by this Agreement and the Plan of Merger which causes
such party to believe that there is a reasonable likelihood that any
Requisite Regulatory Approval will not be obtained or that the
receipt of any such approval will be materially delayed.
6.2 Access to Information; Due Diligence.
(a) Upon reasonable notice and subject to applicable laws
relating to the exchange of information, each of FCB and OSB shall,
and shall cause the FCB Subsidiaries and the OSB Subsidiaries,
respectively, to, afford to the officers, employees, accountants,
counsel and other representatives of the other party, access, during
normal business hours during the period prior to the Effective Time,
to all its properties, books, contracts, commitments and records and,
during such period, each of FCB and OSB shall, and shall cause the
FCB Subsidiaries and the OSB Subsidiaries, respectively, to, make
available to the other party (i) a copy of each report, schedule,
registration statement and other document filed or received by it
during such period pursuant to the requirements of federal securities
laws or federal or state banking laws, and (ii) all other information
concerning its business, properties and personnel as such party may
reasonably request. Neither FCB, OSB, the FCB Subsidiaries nor the
OSB Subsidiaries shall be required to provide access to or to
disclose information where such access or disclosure would (A)
violate or prejudice the rights of FCB's or OSB's, as the case may
be, customers or contravene any law, rule, regulation, order,
judgment, decree, fiduciary duty or binding agreement entered into
prior to the date of this Agreement, or (B) impair any attorney-
client privilege of the disclosing party. The parties hereto will
make appropriate substitute disclosure arrangements under
circumstances in which the restrictions of the preceding sentence
apply.
(b) Each of FCB and OSB shall hold all information
furnished by or on behalf of the other party or the FCB Subsidiaries
or the OSB Subsidiaries, as the case may be, or their representatives
pursuant to Section 6.2(a) in confidence and shall return all
documents containing any information concerning the properties,
business and assets of each other party that may have been obtained
in the course of negotiations or examination of the affairs of each
other party either prior or subsequent to the execution of this
Agreement (other than such information as shall be in the public
domain or otherwise ascertainable from public or outside sources) and
shall destroy any information, analyses or the like derived from such
confidential information. Each of FCB and OSB shall use such
information solely for the purpose of conducting business, legal and
financial reviews of the other party and for such other purposes as
may be related to this Agreement and the Plan of Merger.
(c) No investigation by either of the parties or their
respective representatives shall affect the representations and
warranties of the other set forth herein. Without limitation of the
foregoing, each party shall promptly notify the other party of any
information obtained by such party during the course of any due
diligence conducted by such party or its representatives in
accordance with this Section 6.2 which is materially inconsistent
with any representation or warranty made by the other party under
this Agreement; provided, however, that either party's failure to
provide such notice to the other party shall not, in turn, be deemed
to constitute a material breach of such party's obligations under
this Agreement and the Plan of Merger.
6.3 Shareholders' Approvals. Each of FCB and OSB shall call a
meeting of its shareholders to be held as soon as reasonably practicable
for the purpose of voting upon this Agreement and the Plan of Merger (and,
in the case of FCB, the issuance of shares of FCB Common Stock in the
Merger), and, subject to the terms and conditions of this Agreement and
the Plan of Merger, each of FCB and OSB shall use reasonable efforts to
cause such meetings to occur on the same date and each shall use all
reasonable efforts to obtain shareholder approval of this Agreement, the
Plan of Merger and the Merger.
6.4 Legal Conditions to Merger. Each of FCB and OSB shall, and
shall cause the FCB Subsidiaries and the OSB Subsidiaries, respectively,
to use reasonable efforts (a) to take, or cause to be taken, all actions
necessary, proper or advisable to comply promptly with all legal
requirements which may be imposed on such party with respect to the Merger
and, subject to the conditions set forth in Article VII hereof, to
consummate the transactions contemplated by this Agreement and the Plan
of Merger and (b) to obtain (and to cooperate with the other party to
obtain) any consent, authorization, order or approval of, or any exemption
by, any Governmental Entity and any other third party which is required to
be obtained by FCB, the FCB Subsidiaries, OSB or the OSB Subsidiaries in
connection with the Merger and the other transactions contemplated by this
Agreement, the Plan of Merger and the Option Agreements.
6.5 Listing of Shares. FCB shall use all reasonable efforts to
cause the shares of FCB Common Stock issuable in the Merger to be approved
for listing on The Nasdaq Stock Market.
6.6 Indemnification; Directors' and Officers' Insurance.
(a) In the event of any threatened or actual claim,
action, suit, proceeding or investigation, whether civil, criminal or
administrative, including, without limitation, any such claim,
action, suit, proceeding or investigation in which any individual who
is now, or has been at any time prior to the date of this Agreement,
or who becomes prior to the Effective Time, a director or officer or
employee of FCB, the FCB Subsidiaries, OSB or the OSB Subsidiaries
(the "Indemnified Parties"), is, or is threatened to be, made a party
based in whole or in part on, or arising in whole or in part out of,
or pertaining to (i) the fact that he or she is or was a director,
officer or employee of FCB, the FCB Subsidiaries, OSB or the OSB
Subsidiaries or any of their respective predecessors, or (ii) this
Agreement, the Plan of Merger or the Option Agreements or any of the
transactions contemplated hereby or thereby, whether in any case
asserted or arising before or after the Effective Time, the parties
hereto agree to cooperate and use reasonable efforts to defend
against and respond thereto. It is understood and agreed that after
the Effective Time, the Surviving Corporation shall indemnify and
hold harmless, as and to the fullest extent permitted by law, each
such Indemnified Party against any losses, claims, damages,
liabilities, costs, expenses (including reasonable attorney's fees
and expenses in advance of the final disposition of any claim, suit,
proceeding or investigation incurred by each Indemnified Party to the
fullest extent permitted by law upon receipt of any undertaking
required by applicable law), judgments, fines and amounts paid in
settlement in connection with any such threatened or actual claim,
action, suit, proceeding or investigation, and in the event of any
such threatened or actual claim, action, suit, proceeding or
investigation (whether asserted or arising before or after the
Effective Time), the Indemnified Parties may retain counsel
reasonably satisfactory to them after consultation with the Surviving
Corporation; provided, however, that (A) the Surviving Corporation
shall have the right to assume the defense thereof and upon such
assumption the Surviving Corporation shall not be liable to any
Indemnified Party for any legal expenses of other counsel or any
other expenses subsequently incurred by any Indemnified Party in
connection with the defense thereof, except that if the Surviving
Corporation elects not to assume such defense or counsel for the
Indemnified Parties reasonably advises the Indemnified Parties that
there are issues which raise conflicts of interest between the
Surviving Corporation and the Indemnified Parties, the Indemnified
Parties may retain counsel reasonably satisfactory to them after
consultation with the Surviving Corporation, and the Surviving
Corporation shall pay the reasonable fees and expenses of such
counsel for the Indemnified Parties, (B) the Surviving Corporation
shall be obligated pursuant to this paragraph to pay for only one
firm of counsel for all Indemnified Parties, unless an Indemnified
Party shall have reasonably concluded, based on the advice of
counsel, that there is a material conflict of interest between the
interests of such Indemnified Party and the interests of one or more
other Indemnified Parties and that the interests of such Indemnified
Party will not be adequately represented unless separate counsel is
retained, in which case, the Surviving Corporation shall be obligated
to pay such separate counsel, (C) the Surviving Corporation shall not
be liable for any settlement effected without its prior written
consent (which consent shall not be unreasonably withheld) and (D)
the Surviving Corporation shall have no obligation hereunder to any
Indemnified Party when and if a court of competent jurisdiction shall
ultimately determine, and such determination shall have become final
and nonappealable, that indemnification of such Indemnified Party in
the manner contemplated hereby is prohibited by applicable law. Any
Indemnified Party wishing to claim Indemnification under this Section
6.6, upon learning of any such claim, action, suit, proceeding or
investigation, shall notify the Surviving Corporation thereof,
provided that the failure to so notify shall not affect the
obligations of the Surviving Corporation under this Section 6.6
except to the extent such failure to notify materially prejudices the
Surviving Corporation. The Surviving Corporation's obligations under
this Section 6.6 shall continue in full force and effect for a period
of five years from the Effective Time (or the period of the
applicable statute of limitations, if longer); provided, however,
that all rights to indemnification in respect of any claim (a
"Claim") asserted or made within such period shall continue until the
final disposition of such Claim.
(b) The Surviving Corporation shall use reasonable efforts
(i) to obtain, after the Effective Time, directors' and officers'
liability insurance coverage for the officers and directors of the
Surviving Corporation, to the extent that the same is economically
practicable, and (ii) either (A) to cause the individuals serving as
officers and directors of FCB, the FCB Subsidiaries, OSB or the OSB
Subsidiaries immediately prior to the Effective Time to be covered
for a period of three years from the Effective Time by the directors'
and officers' liability insurance policies maintained by the
Surviving Corporation, or to (B) substitute therefor policies of at
least the same coverage and amounts containing terms and conditions
which are not less advantageous than the policies previously
maintained by FCB and OSB, respectively, with respect to acts or
omissions occurring prior to the Effective Time which were committed
by such officers and directors in their capacity as such; provided,
however, that in no event shall the Surviving Corporation be required
to expend per year an amount in excess of 120% of the premium for
such insurance paid by FCB during its 1997 fiscal year (the
"Insurance Amount") to maintain or procure insurance coverage
pursuant to clause (ii) of this sentence, and provided further that
if the Surviving Corporation is unable to maintain or obtain the
insurance called for by clause (ii) of this sentence, the Surviving
Corporation shall use reasonable efforts to obtain as much comparable
insurance as available for the Insurance Amount.
(c) In the event the Surviving Corporation or any of its
successors or assigns (i) consolidates with or merges into any other
person and shall not be the continuing or surviving corporation or
entity of such consolidation or merger, or (ii) transfers or conveys
all or substantially all of its properties and assets to any person,
then, and in each such case, to the extent necessary, proper
provision shall be made so that the successors and assigns of the
Surviving Corporation assume the obligations set forth in this
Section 6.6.
(d) The provisions of this Section 6.6 are intended to be
for the benefit of, and shall be enforceable by, each Indemnified
Party and his or her heirs and representatives.
6.7 Additional Agreements. In case at any time after the
Effective Time any further action is necessary or desirable to carry out
the purposes of this Agreement, the Plan of Merger or the Option
Agreements or to vest FCB with full title to all properties, assets,
rights, approvals, immunities and franchises of any of the parties to the
Merger, the proper officers and directors of each party to this Agreement
shall take, or cause the proper officers and directors of the FCB
Subsidiaries or OSB Subsidiaries to take, as the case may be, all such
necessary action as may be reasonably requested by FCB.
6.8 Advice of Changes. Between the date hereof and the
Effective Time, FCB and OSB shall promptly provide notice to the other
party of any change or event having a Material Adverse Effect on it or
which it believes would or would be reasonably likely to cause or
constitute a material breach of any of its representations, warranties or
covenants contained herein.
6.9 No Conduct Inconsistent with this Agreement.
(a) Neither FCB nor OSB shall:
(i) solicit, encourage or authorize any individual,
corporation or other entity to solicit from any third party any
inquires or proposals relating to the disposition of its
business or assets, or the acquisition of its capital stock, or
the merger of it or any of the FCB Subsidiaries or the OSB
Subsidiaries, respectively, with any corporation or other entity
other than as provided by this Agreement except pursuant to a
written direction from a regulatory authority; or
(ii) negotiate with or entertain any proposals from
any other person for any such transaction wherein the business,
assets or capital stock of it or the FCB Subsidiaries or the OSB
Subsidiaries, respectively, would be acquired, directly or
indirectly, by any party other than as provided by this
Agreement, except pursuant to a written direction from any
regulatory authority or upon the receipt of an unsolicited offer
from a third party where the Board of Directors of the party
receiving such offer reasonably believes, upon the written
opinion of counsel, that its fiduciary duties require it to
enter into discussions with such party. Each party shall
promptly notify the other of all of the relevant details
relating to all inquiries and proposals which it may receive
relating to any proposed disposition of its business or assets,
or the acquisition of its capital stock, or the merger of it or
the FCB Subsidiaries or the OSB Subsidiaries, respectively, with
any corporation or other entity other than as provided by this
Agreement and shall keep the other party informed of the status
and details of any such inquiry or proposal, and shall give the
other party five days' advance notice of any agreement to be
entered into with, or any information to be supplied to, any
person making such inquiry or proposal; or
(b) Nothing contained herein shall prohibit a party from
disclosing to its shareholders a position contemplated by Rule 14e-
2(a) under the Exchange Act with respect to a tender offer for that
party's common stock.
6.10 Employee Benefit Plans.
(a) At the Effective Time, the Oshkosh Savings Bank, FSB
Employee Stock Ownership Plan (the "OSB ESOP") shall be merged with
and into the FCB Financial Corp. Employee Stock Ownership Plan (the
"FCB ESOP"), with all participants in the OSB ESOP at the time of
such merger of the OSB ESOP and the FCB ESOP to become participants
in the FCB ESOP. The shares of OSB Common Stock currently held by
the OSB ESOP which are allocated to the accounts of such participants
shall be converted into shares of FCB Common Stock in accordance with
Section 1.4 hereof. The unallocated shares of OSB Common Stock
currently held by the OSB ESOP shall be converted into shares of FCB
Common Stock in accordance with Section 1.4 hereof, and thereafter
shall be held in the Suspense Account under the FCB ESOP and
allocated to the participants in the FCB ESOP (including, without
limitation, such employees of OSB Bank who become employees of FCB
Bank following the Effective Date) according to the terms and
provisions of the FCB ESOP. FCB shall assume the loan between OSB
and the OSB ESOP. Each OSB Bank employee's period of employment with
OSB Bank shall be counted for all purposes under the FCB ESOP,
including, without limitation, for purposes of service credit,
eligibility and vesting. Each OSB Bank employee's compensation
attributable to employment with OSB Bank shall be counted for all
purposes under the FCB ESOP, including, without limitation, for
purposes of contribution allocations. Each active participant in the
OSB ESOP or the FCB ESOP as of the day immediately prior to the
Closing Date who is not employed by FCB Bank as of the Closing Date
or who is terminated by FCB Bank (other than for cause) within one
year after the Closing Date shall be fully vested in their account
balance under the OSB ESOP or the FCB ESOP, as the case may be, as of
the Closing Date or the date of termination of employment,
respectively.
(b) Effective as of the Effective Time, the Oshkosh
Savings Bank, FSB 401(k) Profit Sharing Plan (the "OSB PSP") shall be
merged with and into the Fox Cities Bank, FSB Employees Savings and
Investment (the "FCB PSP"), with all participants in the OSB PSP at
the time of such merger of the OSB PSP and the FCB PSP to become
participants in the FCB PSP. Benefits under the FCB PSP shall
thereafter be available to participants in the FCB PSP (including,
without limitation, such employees of OSB Bank who become employees
of FCB Bank after the Effective Time and are eligible to participate
in the FCB PSP) according to the terms and provisions of the FCB PSP.
Each OSB Bank employee's period of employment with OSB Bank shall be
counted for all purposes under the FCB PSP, including, without
limitation, for purposes of service credit, eligibility and vesting.
Each OSB Bank employee's compensation attributable to employment with
OSB Bank shall be counted for all purposes under the FCB PSP,
including, without limitation, for purposes of contribution
allocations. Each active participant in the OSB PSP or the FCB PSP
as of the day immediately prior to the Closing Date who is not
employed by FCB Bank as of the Closing Date or who is terminated by
FCB Bank (other than for cause) within one year after the Closing
Date shall be fully vested in their account balance under the FCB PSP
or the OSB PSP, as the case may be, as of the Closing Date or the
date of termination of employment, respectively.
(c) At the Effective Time, each OSB Bank employee shall
immediately become eligible to participate in all employee welfare
benefit plans and other fringe benefits programs offered or
maintained by the Surviving Corporation and the Surviving Bank on the
same terms and conditions that the Surviving Corporation and the
Surviving Bank may make available to their officers and employees,
including, without limitation, any health, life, long-term
disability, short-term disability, severance, vacation or paid time
off programs (the "FCB Welfare Plans"). Each OSB Bank employee's
period of employment and compensation with OSB Bank shall be counted
for all purposes under the FCB Welfare Plans, including, without
limitation, for purposes of service credit, eligibility and benefit
accrual. Any expenses incurred by an OSB Bank employee under the OSB
Bank's employee welfare benefit plans (such as deductibles or co-
payments), shall be counted for all purposes under the FCB Welfare
Plans. FCB Bank shall provide insurance coverage (for which FCB or
FCB Bank may act as the self-insurer) for pre-existing medical
conditions (to the extent such condition is currently covered under
the OSB Bank plan, and such condition would be covered under FCB
Bank's plan if it were not pre-existing), subject to deductibles
and/or copayment provisions generally applicable to such coverage.
(d) Subject to applicable law, OSB and FCB acknowledge and
agree that the other shall be permitted to take whatever action it
deems reasonably necessary to accelerate any deferred bonuses and to
provide that all account balances, benefits accrued and options or
awards previously granted under the Oshkosh Savings Bank Management
Development and Recognition Plan ("OSB MRP"), OSB Option Plan, and
FCB Option Plan shall be fully vested and nonforfeitable as of the
Closing Date.
(e) At the Effective Time, FCB shall assume all of the
obligations under the OSB MRP and OSB Option Plan, and all shares of
OSB Common Stock owned by the OSB MRP, which have not been awarded,
shall be canceled at or prior to the Effective Time.
6.11 Severance for Certain Employees. The Surviving Corporation
will provide severance payments to employees of OSB and FCB and their
respective Subsidiaries (other than employees whose severance benefits are
provided for in written employment or severance agreements) whose
employment is terminated within twelve (12) months after the Effective
Date due to job reductions, in the amount set forth below. The severance
payments which would be provided would be computed as follows:
Non-Officer -- one (1) week for each full year of service;
maximum twelve (12) weeks and minimum three (3) weeks current
salary; and
Officer -- (as set forth in Schedule 6.11) two (2) weeks for
each full year of service; maximum 26 weeks and minimum six (6)
weeks current salary.
In computing such severance payments for each regular part-
time employee, such employee's per week compensation shall be based
on 1/52 of the actual number of hours worked by such employee in
1996.
6.12 Dividends. After the date of this Agreement, each of FCB
and OSB shall coordinate with the other the declaration of any dividends
in respect of FCB Common Stock and OSB Common Stock and the record dates
and payment dates relating thereto, it being the intention of the parties
hereto that holders of FCB Common Stock or OSB Common Stock shall not
receive two dividends, or fail to receive one dividend, for any quarter
with respect to their shares of FCB Common Stock and/or OSB Common Stock
and any shares of common stock of the Surviving Corporation any holder of
OSB Common Stock receives in exchange therefor in the Merger.
Furthermore, after the Closing Date, the Board of Directors of the
Surviving Corporation intends to declare and pay regular quarterly cash
dividends at least equal to the rate of $0.18 per share of the Surviving
Corporation common stock, subject to applicable laws and the business
judgment of the Board of Directors.
6.13 Post-Closing Stock Options. It is the intention of the
parties hereto that the Surviving Corporation shall, within 30 days after
the Closing Date, cause non-tax-qualified stock options (exercisable for
shares of the Surviving Corporation's common stock) to be granted to the
following executive officers of the Surviving Corporation in the following
amounts: Donald D. Parker, 10,000; James J. Rothenbach, 20,000; Phillip J.
Schoofs, 7,500; Harold L. Hermansen, 6,000; and Theodore W. Hoff, 6,000.
The stock options provided for in this Section 6.13 shall be granted by
the personnel committee of the Surviving Corporation under the terms of
FCB's 1993 Stock Option and Incentive Plan.
6.14 Subsidiary Bank Merger. FCB and OSB agree to cooperate and
to take such steps as may be necessary to obtain all requisite regulatory,
corporate and other approvals for the Bank Merger, subject to consummation
of the Merger, to be effective concurrently with the Merger or as soon as
practicable thereafter. The Surviving Bank shall be FCB Bank, and shall
be known as "Fox Cities Bank, FSB." In furtherance of such agreement,
each of FCB and OSB agrees:
(a) to cause the board of directors of FCB Bank and OSB
Bank, respectively, to approve the Bank Merger and to submit it to
the sole stockholder of each bank for its approval;
(b) to vote the shares of stock of FCB Bank and OSB Bank
owned by them in favor of the Bank Merger; and
(c) to take, or cause to be taken, all steps necessary to
consummate the Bank Merger concurrently with or as soon as is
practicable after consummation of the Merger.
The Bank Merger shall be accomplished pursuant to a merger agreement
containing such terms and conditions as are ordinary and customary for
affiliated bank merger transactions of such type. Immediately after the
Effective Time, the officers of the Surviving Corporation shall take, or
cause to be taken, whatever additional steps may be necessary to
effectuate the Bank Merger. The directors and officers of the Surviving
Bank shall be as set forth in the list attached as Exhibit E.
6.15 Rule 145 Affiliates. Within 30 days before the Closing
Date, OSB shall identify in a letter to FCB all persons who are, and to
OSB's knowledge who will be at the Closing Date, "affiliates" of OSB as
such term is used in Rule 145 under the Securities Act. OSB shall use all
reasonable efforts to cause its affiliates (including any person who may
be deemed to have become an affiliate after the date of the letter
referred to in the prior sentence) to deliver to FCB on or prior to the
Closing Date a written agreement substantially in the form attached hereto
as Exhibit F.
6.16 Disclosure Schedules. On the date hereof,
(a) FCB has delivered to OSB the FCB Disclosure Schedules,
accompanied by a certificate signed by the Chief Financial officer of
FCB stating the FCB Disclosure Schedules are being delivered pursuant
to this Section 6.16.
(b) OSB has delivered to FCB the OSB Disclosure Schedules,
accompanied by a certificate signed by the Chief Financial Officer of
OSB stating the OSB Disclosure Schedules are being delivered pursuant
to this Section 6.16.
6.17 Filing and Other Fees. All filing and other fees paid to
the SEC, the OTS or any State Regulatory Agency in connection with the
Merger, the Bank Merger and the transactions contemplated by this
Agreement and the costs and expenses of printing and mailing the Joint
Proxy Statement shall be borne equally by FCB and OSB.
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions to Each Party's Obligation To Effect the Merger.
The respective obligation of each party to effect the Merger shall be
subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) Shareholder Approval. This Agreement, the Plan of
Merger and the transactions contemplated hereby and thereby shall
have been approved and adopted by the respective requisite
affirmative votes of the holders of OSB Common Stock and FCB Common
Stock entitled to vote thereon.
(b) Other Approvals. All regulatory approvals required to
consummate the transactions contemplated hereby shall have been
obtained, on terms and conditions reasonably satisfactory to each of
OSB and FCB, and shall remain in full force and effect and all
statutory waiting periods in respect thereof shall have expired (all
such approvals and the expiration of all such waiting periods being
referred to herein as the "Requisite Regulatory Approvals").
(c) Registration Statements. The S-4 shall have become
effective under the Securities Act and no stop order suspending the
effectiveness of the S-4 shall have been issued and no proceedings
for that purpose shall have been initiated or, to the knowledge of
FCB or OSB, threatened by the SEC.
(d) No Injunctions or Restraints; Illegality. No order,
injunction or decree issued by any court or agency of competent
jurisdiction or other legal restraint or prohibition (an
"Injunction") preventing the consummation of the Merger or any of the
other transactions contemplated by this Agreement or the Plan of
Merger shall be in effect. No statute, rule, regulation, order,
injunction or decree shall have been enacted, entered, promulgated or
enforced by any Governmental Entity which prohibits, materially
restricts or makes illegal consummation of the Merger.
(e) Federal Tax Opinion. OSB and FCB shall each have
received an opinion of their respective counsel, in form and
substance reasonably satisfactory to each, dated as of the Effective
Time, substantially to the effect that the Merger will constitute a
tax free reorganization under Section 368(a)(1)(A) of the Internal
Revenue Code and related sections of the Code.
(f) Post-Closing Employment Agreements. Donald D. Parker,
Phillip J. Schoofs and Harold L. Hermansen shall each have canceled
(without the payment of any benefits thereunder) their existing
severance agreement with FCB and entered into new employment
agreements with the Surviving Corporation and the Surviving Bank in
the form attached hereto as Exhibits G, H and I, respectively.
James J. Rothenbach and Theodore W. Hoff shall each have canceled
(without the payment of any benefits thereunder) their existing
employment and severance agreement, respectively, with OSB and
entered into new employment agreements with the Surviving Corporation
and the Surviving Bank in the form attached hereto as Exhibits J, and
K, respectively.
7.2 Conditions to Obligations of OSB. The obligation of OSB to
effect the Merger is also subject to the satisfaction, or waiver by OSB,
at or prior to the Effective Time of the following conditions:
(a) Representations and Warranties. The representations
and warranties of FCB set forth in this Agreement shall be true and
correct (i) on and as of the date hereof and (ii) on and as of the
Closing Date with the same effect as though such representations and
warranties had been made on and as of the Closing Date (except for
representations and warranties that expressly speak only as of a
specific date or time other than the date hereof or the Closing Date
which need only be true and correct as of such date or time) except
in each of cases (i) and (ii) for such failures of representations or
warranties to be true and correct (without regard to any materiality
qualifications contained therein) which, individually or in the
aggregate do not, and insofar as reasonably can be foreseen, would
not, result in an FCB Material Adverse Effect. OSB shall have
received a certificate signed on behalf of FCB by the Chief Executive
Officer and Chief Financial Officer of FCB to the foregoing effect.
(b) Performance of Obligations of FCB. FCB shall have
performed in all material respects all obligations required to be
performed by it under this Agreement, the Plan of Merger and the
Option Agreements at or prior to the Closing Date, and OSB shall have
received a certificate signed on behalf of FCB by the Chief Executive
Officer and Chief Financial Officer of FCB to such effect.
(c) No Material Adverse Change. Since the date of this
Agreement, (i) no event shall have occurred which has had a Material
Adverse Effect on FCB, and (ii) no condition (other than general
economic or competitive conditions generally affecting savings and
loan holding companies and savings associations of a size or in
locations comparable to those of FCB or the FCB Subsidiaries), event,
circumstances, fact or other occurrence shall have occurred that may
reasonably be expected to have or result in such a Material Adverse
Effect on FCB.
(d) Opinion of Counsel to FCB. OSB shall have received
from Foley & Lardner, counsel to FCB, an opinion, dated the Closing
Date, in substantially the form of Exhibit L.
(e) Comfort Letters. OSB shall have received from Wipfli
Ullrich Bertelson LLP "comfort letters" dated the date of mailing of
the Joint Proxy Statement and the Closing Date, covering matters
customary to transactions such as the Merger and in form and
substance reasonably satisfactory to OSB.
(f) Fairness Opinion. OSB shall have received from
Edelman & Co., Ltd., a fairness opinion, dated the date of mailing of
the Joint Proxy Statement and in form and substance reasonably
satisfactory to OSB, to the effect that the consideration to be
received in the Merger by the shareholders of OSB is fair, from a
financial point of view, to the shareholders of OSB.
7.3 Conditions to Obligations of FCB. The obligation of FCB to
effect the Merger is also subject to the satisfaction, or waiver by FCB,
at or prior to the Effective Time of the following conditions:
(a) Representations and Warranties. The representations
and warranties of OSB set forth in this Agreement shall be true and
correct (i) on and as of the date hereof and (ii) on and as of the
Closing Date with the same effect as though such representations and
warranties had been made on and as of the Closing Date (except for
representations and warranties that expressly speak only as of a
specific date or time other than the date hereof or the Closing Date
which need only be true and correct as of such date or time) except
in each of cases (i) and (ii) for such failures of representations or
warranties to be true and correct (without regard to any materiality
qualifications contained therein) which, individually or in the
aggregate do not, and insofar as reasonably can be foreseen, would
not, result in an OSB Material Adverse Effect. FCB shall have
received a certificate signed on behalf of OSB by the Chief Executive
Officer and Chief Financial Officer of OSB to the foregoing effect.
(b) Performance of Obligations of OSB. OSB shall have
performed in all material respects all obligations required to be
performed by it under this Agreement, the Plan of Merger and the
Option Agreements at or prior to the Closing Date, and FCB shall have
received a certificate signed on behalf of OSB by the Chief Executive
Officer and Chief Financial Officer of OSB to such effect.
(c) No Material Adverse Change. Since the date of this
Agreement, (i) no event shall have occurred which has had a Material
Adverse Effect on OSB, and (ii) no condition (other than general
economic or competitive conditions generally affecting savings and
loan holding companies and savings associations of a size or in
locations comparable to those of OSB or the OSB Subsidiaries), event,
circumstances, fact or other occurrence shall have occurred that may
reasonably be expected to have or result in such a Material Adverse
Effect on OSB.
(d) Opinion of Counsel to OSB. FCB shall have received
from Schiff Hardin & Waite, counsel to OSB, an opinion, dated the
Closing Date, in substantially the form of Exhibit M.
(e) Comfort Letters. FCB shall have received from Wipfli
Ullrich Bertelson LLP "comfort letters" dated the date of mailing of
the Joint Proxy Statement and the Closing Date, covering matters
customary to transactions such as the Merger and in form and
substance reasonably satisfactory to FCB.
(f) Fairness Opinion. FCB shall have received from RP
Financial, LC., a fairness opinion, dated the date of mailing of the
Joint Proxy Statement and in form and substance reasonably
satisfactory to FCB, to the effect that the consideration received by
FCB shareholders pursuant to the Merger is fair, from a financial
point of view, to the shareholders of FCB.
(g) Affiliate Agreements. FCB shall have received
Affiliate Agreements, duly executed by each affiliate of OSB,
substantially in the form of Exhibit F.
ARTICLE VIII
TERMINATION, EXPENSES AND AMENDMENT
8.1 Termination. This Agreement may be terminated prior to the
Effective Time:
(a) at any time, whether before or after approval of the
matters presented in connection with the Merger by the shareholders
of FCB or OSB, by written agreement between FCB or OSB, if the Board
of Directors of each so determines;
(b) by FCB, by written notice to OSB, within twenty (20)
days of the date of this Agreement, if, based on the information
discovered in the course of its due diligence investigation of OSB
and the OSB Subsidiaries, FCB reasonably determines in good faith
that the consummation of the transactions contemplated by this
Agreement would not be in the best interests of FCB; provided,
however, that FCB shall have ten (10) days in addition to the initial
20-day period to terminate this Agreement pursuant to this Section
8.1(b) if FCB determines, in good faith, based on the information
discovered in its review of "Phase I" environmental audits of the
real property owned by OSB and the OSB Subsidiaries, that the
transactions contemplated by this Agreement would not be in the best
interests of FCB; provided that such additional 10-day period shall
not begin to run (following the initial twenty-day period) until such
time as OSB has caused such Phase I audits to be delivered to FCB;
(c) By OSB, by written notice to FCB, within twenty (20)
days of the date of this Agreement, if, based on the information
discovered in the course of its due diligence investigation of FCB
and the FCB Subsidiaries, OSB reasonably determines in good faith
that the consummation of the transactions contemplated by this
Agreement would not be in the best interests of OSB; provided,
however, that OSB shall have ten (10) days in addition to the initial
20-day period to terminate this Agreement pursuant to this Section
8.1(c) if OSB determines, in good faith, based on the information
discovered in its review of "Phase I" environmental audits of the
real property owned by FCB and the FCB Subsidiaries, that the
transactions contemplated by this Agreement would not be in the best
interests of OSB; provided that such additional 10-day period shall
not begin to run (following the initial twenty-day period) until such
time as FCB has caused such Phase I audits to be delivered to OSB;
(d) at any time, whether before or after approval of the
matters presented in connection with the Merger by the shareholders
of FCB or OSB, by either the Board of Directors of FCB or the Board
of Directors of OSB if (i) any Governmental Entity which must grant a
Requisite Regulatory Approval (A) has denied approval of the Merger
and such denial has become final and nonappealable or (B) has advised
the parties of its unwillingness to grant such a Requisite Regulatory
Approval on terms and conditions reasonably acceptable to the
parties, notwithstanding the parties' fulfillment of their
obligations to take reasonable efforts to obtain such Requisite
Regulatory Approval, or (ii) any Governmental Entity of competent
jurisdiction shall have issued a final nonappealable order
permanently enjoining or otherwise prohibiting the consummation of
the transactions contemplated by this Agreement;
(e) by either the Board of Directors of FCB or the Board
of Directors of OSB if the Merger shall not have been consummated on
or before September 30, 1997, unless the failure of the Closing to
occur by such date shall be due to the failure of the party seeking
to terminate this Agreement to perform or observe the covenants and
agreements of such party set forth herein;
(f) by either FCB or OSB if any approval of the
shareholders of FCB or OSB required for the consummation of the
Merger shall not have been obtained by reason of the failure to
obtain the required vote at a duly held meeting of shareholders or at
any adjournment or postponement thereof;
(g) by OSB, upon two (2) days' prior notice to FCB, if, as
a result of a tender offer by a party other than FCB or its
affiliates or any written offer or proposal with respect to a merger,
share exchange, sale of a material portion of its assets or other
business combination (each, a "Business Combination") by a party
other than FCB or its affiliates, the Board of Directors of OSB
determines in good faith that its fiduciary obligations under
applicable law require that such tender offer or other written offer
or proposal be accepted; provided, however, that
(i) the Board of Directors of OSB shall have been
advised in a written opinion of outside counsel that
notwithstanding a binding commitment to consummate an agreement
of the nature of this Agreement entered into in the proper
exercise of its applicable fiduciary duties, and notwithstanding
all concessions which may be offered by FCB in negotiations
entered into pursuant to clause (ii) below, such fiduciary
duties would require the directors to reconsider such commitment
as a result of such tender offer or other written offer or
proposal; and
(ii) prior to any such termination, OSB shall, and
shall cause its financial and legal advisors to, negotiate with
FCB to make such adjustments in the terms and conditions of this
Agreement as would enable OSB to proceed with the transactions
contemplated herein on such adjusted terms;
(h) by FCB, upon two (2) days' prior notice to OSB, if, as
a result of a tender offer by a party other than OSB or its
affiliates or any written offer or proposal with respect to a
Business Combination by a party other than OSB or its affiliates, the
Board of Directors of FCB determines in good faith that its fiduciary
obligations under applicable law require that such tender offer or
other written offer or proposal be accepted; provided, however, that
(i) the Board of Directors of FCB shall have been
advised in a written opinion of outside counsel that
notwithstanding a binding commitment to consummate an agreement
of the nature of this Agreement entered into in the proper
exercise of its applicable fiduciary duties, and notwithstanding
all concessions which may be offered by OSB in negotiations
entered into pursuant to clause (ii) below, such fiduciary
duties would require the directors to reconsider such commitment
as a result of such tender offer or other written offer or
proposal; and
(ii) prior to any such termination, FCB shall, and
shall cause its financial and legal advisors to, negotiate with
OSB to make such adjustments in the terms and conditions of this
Agreement as would enable FCB to proceed with the transactions
contemplated herein on such adjusted terms;
(i) by OSB, by written notice to FCB, if
(i) there exists any breach or breaches of the
representations and warranties of FCB made herein or in the FCB
Stock Option Agreement, which breaches, individually or in the
aggregate have or, insofar as reasonably can be foreseen, would
have, a FCB Material Adverse Effect, and such breaches shall not
have been remedied within thirty (30) days after receipt by FCB
of notice in writing from OSB, specifying the nature of such
breaches and requesting that they be remedied;
(ii) FCB shall have failed to perform and comply with,
in all material respects, its agreements and covenants hereunder
or under the FCB Stock Option Agreement and such failure to
perform or comply shall not have been remedied within thirty
(30) days after receipt by FCB of notice in writing from OSB,
specifying the nature of such failure and requesting that it be
remedied; or
(iii) the Board of Directors of FCB or any
committee thereof:
(A) shall withdraw or modify in any manner
adverse to OSB its approval or recommendation of this
Agreement or the Merger,
(B) shall fail to reaffirm such approval or
recommendation upon OSB's request,
(C) shall approve or recommend any Business
Combination involving FCB other than the Merger or any
tender offer or share exchange for shares of capital stock
of FCB, in each case, by or involving a party other than
OSB or any of its affiliates or
(D) shall resolve to take any of the actions
specified in clause (A), (B) or (C); or
(j) by FCB, by written notice to OSB, if
(i) there exists any breach or breaches of the
representations and warranties of OSB made herein or in the OSB
Stock Option Agreement which breaches, individually or in the
aggregate have, or insofar as reasonably can be foreseen, would
have, an OSB Material Adverse Effect and such breaches shall not
have been remedied within thirty (30) days after receipt by OSB
of notice in writing from FCB, specifying the nature of such
breaches and requesting that they be remedied;
(ii) OSB shall have failed to perform and comply with,
in all material respects, its agreements and covenants hereunder
or under the OSB Stock Option Agreement and such failure to
perform or comply shall not have been remedied within thirty
(30) days after receipt by OSB of notice in writing from FCB,
specifying the nature of such failure and requesting that it be
remedied; or
(iii) the Board of Directors of OSB or any
committee thereof:
(A) shall withdraw or modify in any manner
adverse to FCB its approval or recommendation of this
Agreement or the Merger,
(B) shall fail to reaffirm such approval or
recommendation upon FCB's request,
(C) shall approve or recommend any Business
Combination involving OSB other than the Merger involving
OSB or any tender offer or share exchange for shares of
capital stock of OSB, in each case, by or involving a party
other than FCB or any of its affiliates or
(D) shall resolve to take any of the actions
specified in clause (A), (B) or (C).
8.2 Effect of Termination. Subject to Section 8.3, in the
event of termination of this Agreement by OSB or FCB pursuant to Section
8.1 there shall be no liability on the part of either OSB or FCB or their
respective officers or directors hereunder, except that Section 6.2(b),
Section 6.17, Section 8.2 and Section 8.3 shall survive the termination.
8.3 Termination Fee; Expenses.
(a) Termination Fee Upon Breach or Willful Breach. If
this Agreement is terminated at such time that this Agreement is
terminable pursuant to one (but not both) of (A) Section 8.1(i)(i) or
(ii), or (B) Section 8.1(j)(i) or (ii) then:
(i) the breaching party shall promptly (but no later
than five (5) business days after receipt of notice from the
non-breaching party) pay to the non-breaching party in cash an
amount equal to all documented out-of-pocket expenses and fees
incurred by the non-breaching party (including, without
limitation, fees and expenses payable to all legal, accounting,
financial, public relations and other professional advisors
arising out of, in connection with or related to the Merger or
the transactions contemplated by this Agreement) not in excess
of $200,000; provided, however, that, if this Agreement is
terminated by a party as a result of a willful breach by other
party, the non-breaching party may pursue any remedies available
to it at law or in equity and shall, in addition to its
documented out-of-pocket expenses and fees (which shall be paid
as specified above and shall not be limited to $200,000), be
entitled to recover such additional amounts as such non-
breaching party may be entitled to receive at law or in equity;
and
(ii) if at the time of the breaching party's willful
breach of this Agreement, there shall have been a third party
tender offer for shares of, or a third party offer or proposal
with respect to a Business Combination involving, such party, or
any of its affiliates which at the time of such termination
shall not have been rejected by such party and its board of
directors or withdrawn by the third party,
then such breaching party (jointly and severally with its
affiliates), at the time of the termination of this Agreement, will
pay to the non-breaching party an additional aggregate fee equal to
$1 million.
(b) Alternative Termination Fee. If
(i) this Agreement
(A) is terminated by any party pursuant to
Section 8.1(g) or (h),
(B) is terminated as a result of any party's
material breach of Section 6.3,
(C) is terminated pursuant to Section 8.1(f)
following a failure of shareholders of OSB or FCB to grant
the necessary approvals described in Section 3.23 or
Section 4.23, as the case may be (a "Shareholder
Disapproval"), or
(D) is terminated pursuant to one (but not both)
of Section 8.1(i)(iii) or Section 8.1(j)(iii), and
(ii) with respect to any termination referred to in
clause (i)(A), (B) or (C) above, at the time of such termination
(or prior to the meeting at which such Shareholder Disapproval
occurred), there shall have been a third-party tender offer for
shares of, or a third-party offer or proposal with respect to a
Business Combination involving, OSB or FCB (as the case may be,
the "Target Party") or any affiliates thereof which at the time
of such termination or of the meeting of the Target Party's
shareholders, as the case may be, shall not have been withdrawn
by the third-party,
then such Target Party (jointly and severally with its affiliates),
at the time of the termination of this Agreement, will pay to the
other party in cash an aggregate termination fee equal to $1 million,
plus, in each case, the documented out-of-pocket fees and expenses
incurred by the other party (including, without limitation, fees and
expenses payable to all legal, accounting, financial, public
relations and other professional advisors arising out of, in
connection with or related to the Merger or the transactions
contemplated by this Agreement).
(c) Expenses. The parties agree that the agreements
contained in this Section 8.3 are an integral part of the
transactions contemplated by this Agreement and constitute liquidated
damages and not a penalty. If one party fails to promptly pay to any
other party any fee due hereunder, the defaulting party shall pay the
costs and expenses (including legal fees and expenses) in connection
with any action, including the filing of any lawsuit or other legal
action, taken to collect payment, together with interest on the
amount of any unpaid fee at the publicly announced prime rate as
published in the Wall Street Journal (Midwest Edition) from the date
such fee was required to be paid.
(d) Limitation on Termination Fees. Notwithstanding
anything herein to the contrary:
(i) the aggregate amount payable by OSB and its
affiliates to FCB pursuant to Section 8.3(a), Section 8.3(b) and
the terms of the OSB Stock Option Agreement shall not exceed
$1.5 million, and
(ii) the aggregate amount payable by FCB and its
affiliates to OSB pursuant to Section 8.3(a), Section 8.3(b) and
the terms of the FCB Stock Option Agreement shall not exceed
$1.5 million.
(exclusive, in each case, of reimbursement for fees and expenses
payable pursuant to this Section 8.3). For purposes of this Section
8.3(d), the amount payable pursuant to the terms of the Option
Agreements shall be the amount paid pursuant to Section 5 and/or
Section 8(a)(i) and Section 8(1)(ii) thereof.
8.4 Amendment. Subject to compliance with applicable law, this
Agreement may be amended by the parties hereto, by action taken or
authorized by their respective Boards of Directors, at any time before or
after approval of the matters presented in connection with the Merger by
the shareholders of FCB or OSB; provided, however, that after any approval
of the transactions contemplated by this Agreement by the respective
shareholders of FCB or OSB, there may not be, without further approval of
such shareholders, any amendment of this Agreement which changes the
amount or the form of the consideration to be delivered to the holders of
FCB Common Stock or OSB Common Stock hereunder other than as contemplated
by this Agreement. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
8.5 Extension; Waiver. At any time prior to the Effective Time,
the parties hereto, by action taken or authorized by their respective
Board of Directors, may, to the extent legally allowed, (a) extend the
time for the performance of any of the obligations or other acts of the
other parties hereto, (b) waive any inaccuracies in the representations
and warranties contained herein or in any document delivered pursuant
hereto, and (c) waive compliance with any of the agreements or conditions
contained herein; provided, however, that after any approval of the
transactions contemplated by this Agreement by the respective shareholders
of FCB or OSB, there may not be, without further approval of such
shareholders, any extension or waiver of this Agreement or any portion
thereof which reduces the amount or changes the form of the consideration
to be delivered to the holders of FCB Common Stock or OSB Common Stock
hereunder other than as contemplated by this Agreement. Any agreement on
the part of a party hereto to any such extension or waiver shall be valid
only if set forth in a written instrument signed on behalf of such party,
but such extension or waiver or failure to insist on strict compliance
with an obligation, covenant, agreement or condition shall not operate as
a waiver of, or estoppel with respect to, any subsequent or other failure.
ARTICLE IX
GENERAL PROVISIONS
9.1 Non-survival of Representations, Warranties and Agreements.
None of the representations, warranties, covenants and agreements in this
Agreement or the Plan of Merger (or in any instrument delivered pursuant
to this Agreement, which shall terminate in accordance with its terms)
shall survive the Effective Time, except for those covenants and
agreements contained herein and therein which by their terms apply in
whole or in part after the Effective Time. Without by implication
limiting the foregoing, none of the directors or officers of the parties
hereto shall have any liability for any of the representations,
warranties, covenants and agreements contained herein.
9.2 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (with confirmation), mailed by registered or certified mail
(return receipt requested) or delivered by an express courier (with
confirmation) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) if to OSB, to:
OSB Financial Corp.
420 South Koeller Street
Oshkosh, Wisconsin 54902
Attention: James J. Rothenbach
President and Chief Executive Officer
Telephone: (414) 236-3680
Telecopier: (414) 236-3706
with a copy to:
Schiff Hardin & Waite
7200 Sears Tower
Chicago, Illinois 60606
Attention: Christopher J. Zinski, Esq.
Telephone: (312) 258-5548
Telecopier: (312) 258-5600
and
(b) if to FCB, to:
FCB Financial Corp.
108 East Wisconsin Avenue
Neenah, Wisconsin 54956
Attention: Donald D. Parker
President and Chief Executive Officer
Telephone: (414) 727-3400
Telecopier: (414) 727-3419
with a copy to:
Foley & Lardner
Firstar Center
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-5367
Attention: Michael D. Regenfuss, Esq.
Telephone: (414) 297-5618
Telecopier: (414) 297-4900
9.3 Interpretation. When a reference is made in this Agreement
to Sections, Exhibits or Schedules, such reference shall be to a section
of or exhibit or schedule to this Agreement unless otherwise indicated.
The table of contents and headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed
to be followed by the words "without limitation." No provision of this
Agreement shall be construed to require OSB, the OSB Subsidiaries, FCB or
the FCB Subsidiaries or affiliates to take any action which would violate
any applicable law, rule or regulation.
9.4 Counterparts. This Agreement may be executed in
counterparts, all of which shall be considered one and the same agreement
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.
9.5 Entire Agreement. This Agreement (including the documents
and the instruments referred to herein) constitutes the entire agreement
and supersedes all prior agreements and understandings, both written and
oral, among the parties hereto with respect to the subject matter hereof.
9.6 Governing Law. This Agreement and the exhibits attached
hereto shall be governed and construed in accordance with the laws of the
State of Wisconsin, without regard to any applicable conflicts of law.
9.7 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.
9.8 Publicity. Except as otherwise required by applicable law
or the rules of The Nasdaq Stock Market, neither OSB nor FCB shall, nor
shall OSB or FCB permit the OSB Subsidiaries or the FCB Subsidiaries,
respectively, to issue or cause the publication of any press release or
other public announcement with respect to, or otherwise make any public
statement concerning, the transactions contemplated by this Agreement
without the consent of the other party, which consent shall not be
unreasonably withheld.
9.9 Assignment; Third Party Beneficiaries. Neither this
Agreement nor any of the rights, interests or obligations of the parties
under this Agreement shall be assigned by any of the parties hereto
(whether by operation of law or otherwise) without the prior written
consent of the other parties. 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. A majority of
the FCB Representatives (or their successors) serving on the Board of
Directors of the Surviving Corporation shall be entitled to enforce the
provisions of Section 1.10 as such provisions relate to the rights of FCB
Representatives. A majority of the OSB Representatives (or their
successors) serving on the Board of Directors of the Surviving Corporation
shall be entitled to enforce the provisions of Section 1.10 as such
provisions relate to the rights of OSB Representatives. Except as
otherwise specifically provided in this Section 9.9 and in Section 6.6,
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.
9.10 Enforcement. The parties 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, this being in
addition to any other remedy to which they are entitled at law or in
equity.
IN WITNESS WHEREOF, FCB and OSB have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the
date first above written.
FCB FINANCIAL CORP. OSB FINANCIAL CORP.
By:/s/ Donald D. Parker By:/s/ James J. Rothenbach
Name: Donald D. Parker Name: James J. Rothenbach
Title: President and Title: President and
Chief Executive Officer Chief Executive
Officer
Exhibit A
Execution Copy
STOCK OPTION AND TRIGGER PAYMENT AGREEMENT (the "Agreement"),
dated November 13, 1996, between FCB Financial Corp., a Wisconsin
corporation ("Issuer"), and OSB Financial Corp., a Wisconsin corporation
("Grantee").
W I T N E S S E T H:
WHEREAS, Grantee and Issuer have entered into an Agreement and
Plan of Merger of even date herewith (the "Merger Agreement"), which
agreement has been executed by the parties hereto immediately prior to
this Stock Option and Trigger Agreement; and
WHEREAS, as a condition to Grantee's entering into the Merger
Agreement and in consideration therefor, Issuer has agreed to grant
Grantee the Option (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
1. (a) Issuer hereby grants to Grantee an unconditional,
irrevocable option (the "Option") to purchase, subject to the terms
hereof, up to 489,463 fully paid and nonassessable (except as otherwise
provided by Section 180.0622(2)(b) of the Wisconsin Business Corporation
Law) shares (the "Option Shares") of Issuer's Common Stock, par value
$0.01 per share ("Issuer Common Stock"), at a price of $18.875 per share
(the "Option Price"); provided, however, that in no event shall the number
of shares of Issuer Common Stock for which this Option is exercisable
exceed 19.9% of the issued and outstanding shares of Issuer Common Stock
without giving effect to any shares subject to or issued pursuant to the
Option. The number of shares of Issuer Common Stock that may be received
upon the exercise of the Option and the Option Price are subject to
adjustment as herein set forth.
(b) In the event that any additional shares of Issuer Common
Stock are either (i) issued or otherwise become outstanding after the date
of this Agreement (other than pursuant to this Agreement) or (ii)
redeemed, repurchased, retired or otherwise cease to be outstanding after
the date of this Agreement (such event a "Change in Shares Outstanding
Event"), the number of shares of Issuer Common Stock subject to the Option
shall be increased or decreased, as appropriate, so that, after such
Change in Shares Outstanding Event, such number equals 19.9% of the number
of shares of Issuer Common Stock then issued and outstanding without
giving effect to any shares subject or issued pursuant to the Option.
Nothing contained in this Section 1(b) or elsewhere in this Agreement
shall be deemed to authorize Issuer to issue or redeem, repurchase, or
retire shares of Issuer Common Stock or to authorize either the Issuer or
the Grantee otherwise to breach any provision of the Merger Agreement.
(c) The Option Price shall be payable, at the option of the
Grantee, as follows:
(i) in cash, or
(ii) subject to the receipt of all approvals of any
Governmental Entity required for the Issuer to acquire, and Grantee to
issue, the Grantee Shares (as defined below) from Grantee, in shares of
common stock, $0.01 par value, of Grantee ("Grantee Shares"),
in either case in accordance with Section 4 hereof.
(d) As used in this Agreement, the "Fair Market Value" of any
share shall be the average of the last sales price for such share on The
Nasdaq Stock Market during the ten trading days prior to the fifth trading
day preceding the date such Fair Market Value is to be determined.
2. (a) The Option may be exercised by Grantee, in whole or in
part, at any time or from time to time after the Merger Agreement becomes
terminable by Grantee under circumstances which could entitle Grantee to a
termination fee (as opposed to the reimbursement of expenses only) under
Section 8.3(a) of the Merger Agreement or Section 8.3(b) of the Merger
Agreement (regardless of whether the Merger Agreement is actually
terminated), any such event by which the Merger Agreement becomes so
terminable by Grantee being referred to herein as a " Trigger Event."
(b) (i) Issuer shall notify Grantee promptly in writing of the
occurrence of any Trigger Event, it being understood that the giving of
such notice by Issuer shall not be a condition to the right of Grantee to
exercise the Option.
(ii) In the event Grantee wishes to exercise the Option,
Grantee shall deliver to Issuer written notice (an "Exercise Notice")
specifying the total number of Option Shares it wishes to purchase.
(iii) Upon the giving by Grantee of Issuer of the
Exercise Notice and the tender of the applicable aggregate Option Price,
Grantee, to the extent permitted by law and Issuer's organizational
documents, and provided that the conditions to Issuer's obligation to
issue Option Shares to Grantee hereunder set forth in Section 3 have been
satisfied or waived, shall be deemed to be the holder of record of the
Option Shares issuable upon such exercise, notwithstanding that the stock
transfer books of Issuer shall then be closed or that certificates
representing such Option Shares shall not then be actually delivered to
Grantee.
(iv) Each closing of a purchase of Option Shares (a
"Closing") shall occur at a place, on a date, and at a time designated by
Grantee in an Exercise Notice delivered at least two business days prior
to the date of the Closing.
(c) The Option shall terminate upon the earliest to occur of:
(i) the Effective Time of the Merger;
(ii) the termination of the Merger Agreement pursuant to
Section 8.1 thereof, other than under circumstances which also constitute
a Trigger Event under this Agreement;
(iii) 180 days following any termination of the Merger
Agreement upon or during the continuance of a Trigger Event (or if, at the
expiration of such 180-day period, the Option cannot be exercised by
reason of any applicable judgment, decree, order, law or regulation, ten
business days after such impediment to exercise shall have been removed or
shall have become final and not subject to appeal, but in no event under
this clause (iii) later than September 30, 1997); and
(iv) payment by Issuer of the Trigger Payment set forth in
Section 5 of this Agreement to Grantee.
(d) Notwithstanding the foregoing, the Option may not be
exercised if (i) Grantee is in material breach of any of its
representations or warranties, or in material breach of any of its
covenants or agreements, contained in this Agreement or in the Merger
Agreement, or (ii) a Trigger Payment has been paid pursuant to Section 5
of this Agreement or demand therefor has been made and not withdrawn.
3. The obligation of Issuer to issue Option Shares to Grantee
hereunder is subject to the conditions that
(a) the Option Shares, and any Grantee Shares which are issued
in payment of the Option Price, shall have been approved for listing on
The Nasdaq Stock Market;
(b) all consents, approvals, orders or authorizations of, or
registrations, declarations or filings with, any federal, state or local
administrative agency or commission or other federal, state or local
Governmental Entity, if any, required in connection with the issuance by
Issuer and the acquisition by Grantee of the Option Shares hereunder shall
have been obtained or made; and
(c) no preliminary or permanent injunction or other order by
any court of competent jurisdiction prohibiting or otherwise restraining
such issuance shall be in effect.
The condition set forth in paragraph (a) above may be waived by Issuer, in
the case of Grantee Shares, and by Grantee, in the case of Option Shares,
in the sole discretion of the waiving party.
4. At any Closing,
(a) Issuer shall deliver to Grantee or its designee a single
certificate in definitive form representing the number of Option Shares
designated by Grantee in its Exercise Notice, such certificate to be
registered in the name of Grantee and to bear the legend set forth in
Section 13; and
(b) Grantee shall deliver to issuer the aggregate price for the
Option Shares so designated and being purchased by
(i) wire transfer of immediately available funds or
certified check or bank check, or
(ii) subject to the condition in Section 1(c)(ii), delivery
of a certificate or certificates representing the number of Grantee Shares
being issued by Grantee in consideration thereof, determined in accordance
with Section 4(c).
(c) In the event that Grantee issues Grantee Shares to Issuer
in consideration of Option Shares pursuant to Section 4(b)(ii), the number
of Grantee Shares to be so issued shall be equal to the quotient obtained
by dividing:
(i) the product of (x) the number of Option Shares with
respect to which the Option is being exercised and (y) the Option Price,
by
(ii) the Fair Market Value of the Grantee Shares as of the
date immediately preceding the date the Exercise Notice is delivered to
Issuer.
(d) Issuer shall pay all expenses, and any and all federal,
state and local taxes and other charges that may be payable in connection
with the preparation, issue and delivery of stock certificates under this
Section 4.
5. (a) Subject to the provisions of Section 8.3(d) of the Merger
Agreement, if a Trigger Event shall have occurred and any regulatory
approval or order required for the issuance by Issuer, or the acquisition
by Grantee, of the Option or the Option Shares upon exercise of the Option
shall not have been obtained, Grantee shall have the right to receive, and
Issuer shall pay to Grantee, an amount (the "Trigger Payment") equal to
the product of
(i) the maximum number of Option Shares that would have
been subject to purchases by Grantee upon exercise of the Option pursuant
to Sections 1 and 2 hereof if all such regulatory approvals or orders had
been obtained, and
(ii) the difference between (A) the Market/Offer Price (as
defined herein), determined as of the date on which notice of demand for
the Trigger Payment is given by Grantee, and (B) the Option Price (but
only if such Market/Offer Price is higher than such Option Price).
Demand for the Trigger Payment shall be given by notice in accordance with
the provisions of Section 17 hereof. The Trigger Payment shall be paid to
Grantee by Issuer on the Payment Date (as defined herein), by wire
transfer or immediately available funds to an account to be designated in
writing by Grantee not less than two business days before the Payment
Date.
(b) For purposes of this Section 5, "Payment Date" means the
date on which termination fees are required to be paid by Issuer to
Grantee under Sections 8.3(a) or 8.3(b), as the case may be, of the Merger
Agreement as a result of the occurrence of the Trigger Event referred to
in subsection (a) of this Section 5 or such later date as Grantee shall
specify with two business days prior written notice to Issuer.
(c) Issuer shall have no obligation to pay the Trigger Payment
if Grantee is in material breach of any of its representations or
warranties, or in material breach of any of its covenants or agreements,
contained in this Agreement or in the Merger Agreement.
6. Issuer represents and warrants to Grantee that
(a) Issuer has the corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder, subject in the
case of the repurchase of the Option Shares pursuant to Section 8(a) to
applicable law;
(b) this Agreement has been duly and validly executed and
delivered by Issuer, and, assuming the due authorization, execution and
delivery hereof by Grantee and the receipt of all required regulatory
approvals, constitutes a valid and binding obligation of Issuer,
enforceable against Issuer in accordance with its terms;
(c) Issuer has taken all necessary corporate action to
authorize and reserve for issuance and to permit it to issue, upon
exercise of the Option, and at all times from the date hereof through the
expiration of the Option will have reserved, the number of authorized and
unissued Option Shares, such amount being subject to adjustment as
provided in Sections 1 and 12, all of which, upon their issuance and
delivery in accordance with the terms of this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable (except as
otherwise provided by Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law);
(d) upon delivery of the Option Shares to Grantee upon the
exercise of the Option, Grantee will acquire the Option Shares free and
clear of all claims, liens, charges, encumbrances and security interests
of any nature whatsoever;
(e) except as described in Section 4.4 of the Merger Agreement,
the execution and delivery of this Agreement by Issuer does not, and,
subject to compliance with applicable law with respect to the repurchase
of the Option Shares pursuant to Section 8(a), the consummation by Issuer
of the transactions contemplated hereby will not, violate, conflict with,
or result in a breach of any provision of, or constitute a default (with
or without notice or a lapse of time, or both) under, or result in the
termination of, or accelerate the performance required by, or result in a
right of termination, cancellation, or acceleration of any obligation or
the loss of a material benefit under, or the creation of a lien, pledge,
security interest or other encumbrance on assets (any such conflict,
violation, default, right of termination, cancellation, acceleration, loss
or creation, hereinafter a "Violation") of Issuer or any of its
Subsidiaries, pursuant to
(i) any provision of the Articles of Incorporation or the
Bylaws of Issuer,
(ii) any provisions of any material loan or credit
agreement, note, mortgage, indenture, lease, benefit plan or other
agreement, obligation, instrument, permit, concession, franchise or
license (any of the foregoing in effect on the date hereof being referred
to as a "Material Contract") of Issuer or its Subsidiaries or to which any
of them is a party, or
(iii) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Issuer or its properties or
assets,
which Violation, in the case of each clauses (ii) and (iii), could
reasonably be expected to have a Material Adverse Effect on Issuer (except
that no representation or warranty is given concerning any Violation of a
Material Contract with respect to the repurchase of Option Shares pursuant
to Section 8(a));
(f) except as described in Section 4.4 of the Merger Agreement,
the execution and delivery of this Agreement by Issuer does not, and the
performance of this Agreement by Issuer will not, require any consent,
approval, authorization or permit of, filing with or notification to, any
Governmental Entity;
(g) none of Issuer, any of its affiliates or anyone acting on
its or their behalf, has issued, sold or offered any security of Issuer to
any person under circumstances that would cause the issuance and sale of
the Option Shares, as contemplated by this Agreement, to be subject to the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), as in effect on the date hereof, and, assuming the
representations and warranties of Grantee contained in Section 7(g) are
true and correct, the issuance, sale and delivery of the Option Shares
hereunder would be exempt from the registration and prospectus delivery
requirements of the Securities Act, as in effect on the date hereof (and
Issuer shall not take any action which would cause the issuance, sale, and
delivery of the Option Shares hereunder not to be exempt from such
requirements); and
(h) any Grantee Shares acquired pursuant to this Agreement will
be acquired for Issuer's own account, for investment purposes only, and
will not be acquired by Issuer with a view to the public distribution
thereof in violation of any applicable provision of the Securities Act.
7. Grantee represents and warrants to Issuer that
(a) Grantee has the corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder;
(b) this Agreement has been duly and validly executed and
delivered by Grantee and, assuming the due authorization, execution and
delivery hereof by Issuer and the receipt of all required regulatory
approvals, constitutes a valid and binding obligation of Grantee,
enforceable against Grantee in accordance with its respective terms;
(c) prior to any delivery of Grantee Shares in consideration of
the purchase of Option Shares pursuant hereto, Grantee will have taken all
necessary corporate action to authorize for issuance and to permit it to
issue such Grantee Shares, all of which, upon their issuance and delivery
in accordance with the terms of this Agreement, will be duly authorized,
validly issued, fully paid and nonassessable (except as otherwise provided
in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law);
(d) upon any delivery of such Grantee Shares to Issuer in
consideration of the purchase of the Option Shares pursuant hereto, Issuer
will acquire the Grantee Shares free and clear of all claims, liens,
charges, encumbrances and security interests of any nature whatsoever;
(e) except as described in Section 3.4 of the Merger Agreement,
the execution and delivery of this Agreement by Grantee does not, and the
consummation by Grantee of the transactions contemplated hereby will not,
violate, conflict with, or result in the breach of any provision of, or
constitute a default (with or without notice or a lapse of time, or both)
under, or result in any Violation by Grantee or any of its Subsidiaries,
pursuant to
(i) any provision of the Articles of Incorporation or
Bylaws of Grantee,
(ii) any Material Contract of Grantee or any of its
Subsidiaries or to which any of them is a party, or
(iii) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Grantee or its properties or
assets,
which Violation, in the case of each of clauses (ii) or (iii), would have
a Material Adverse Effect on Grantee;
(f) except as described in Section 3.4 of the Merger Agreement,
the execution and delivery of this Agreement by Grantee does not, and the
consummation by Grantee of the transactions contemplated hereby will not,
require any consent, approval, authorization or permit of, filing with or
notification to, any Governmental Entity; and
(g) any Option Shares acquired upon exercise of the Option will
be acquired for Grantee's own account, for investment purposes only and
will not be, and the Option is not being, acquired by Grantee with a view
to the public distribution thereof, in violation of any applicable
provision of the Securities Act.
8. (a) At the request of Grantee by written notice (x) at any time
during which the Option is exercisable pursuant to Section 2 (the
"Repurchase Period"), Issuer (or any successor entity thereof) shall, if
permitted by applicable law, the Articles of Incorporation and Bylaws of
the Issuer and Issuer's Material Contracts, repurchase from Grantee all or
any portion of the Option, at the price set forth in subparagraph (i)
below, or, (y) at any time prior to September 30, 1997, Issuer (or any
successor entity thereof) shall, if permitted by applicable law, the
Articles of Incorporation and Bylaws of Issuer and Issuer's Material
Contracts, repurchase from Grantee all or any portion of the Option Shares
purchased by Grantee pursuant to the Option, at the price set forth in
subparagraph (ii) below:
(i) (A) The difference between the "Market/Offer Price"
(as defined below) for shares of Issuer Common Stock as of the date
Grantee gives notice of its intent to exercise its rights under this
Section 8 and the Option Price, multiplied by the number of Option Shares
purchasable pursuant to the Option (or portion thereof with respect to
which Grantee is exercising its rights under this Section 8), but only if
the Market/Offer Price is greater than the Option Price.
(B) For purposes of this Agreement, "Market/Offer
Price" shall mean, as of any date, the higher of (I) the price per share
offered as of such date pursuant to any tender or exchange offer or other
offer with respect to a Business Combination involving Issuer as the
Target Party which was made prior to such date and not terminated or
withdrawn as of such date and (II) the Fair Market Value per share of
Issuer Common Stock as of such date.
(ii) (A) The product of (I) the sum of (a) the Option
Price paid by Grantee per Option Share acquired pursuant to the Option,
and (b) the difference between the "Offer Price" (as defined below) and
the Option Price, but only if the Offer Price is greater than the Option
Price, and (II) the number of Option Shares so to be repurchased pursuant
to this Section 8.
(B) For purposes of this clause (ii), the "Offer
Price" shall be the highest price per share offered pursuant to a tender
or exchange offer or other Business Combination offer involving Issuer as
the Target Party during the Repurchase Period prior to the delivery by
Grantee of a notice of repurchase.
(b) If Grantee shall have previously elected to purchase Option
Shares pursuant to the exercise of the Option by the issuance and delivery
of Grantee Shares, then Issuer shall, if so requested by Grantee, in
fulfillment of its obligation pursuant to Section 8(a)(y) (that is, with
respect to the Option Price only and without limitation to its obligation
to pay additional consideration under clause (b) of Section
8(a)(ii)(A)(I)), redeliver the certificates for such Grantee Shares to
Grantee, free and clear of all liens, claims, charges and encumbrances of
any kind or nature whatsoever; provided, however, that if at any time less
than all of the Option Shares so purchased by Grantee pursuant to the
Option are to be repurchased by Issuer pursuant to Section 8(a)(y), then
(i) Issuer shall be obligated to redeliver to Grantee the same proportion
of such Grantee Shares as the number of Option Shares that Issuer is then
obligated to repurchase bears to the number of Option Shares acquired by
Grantee upon exercise of the Option and (ii) Grantee shall issue to Issuer
new certificates representing those Grantee Shares which are not due to be
redelivered to Grantee pursuant to this Section 8(b) to the extent that
excess Grantee Shares are included in the certificates redelivered to
Grantee by Issuer.
(c) In the event Grantee exercises its rights under this
Section 8, Issuer shall, within ten business days thereafter, pay the
required amount to Grantee in immediately available funds and Grantee
shall surrender to Issuer the Option or the certificate or certificates
evidencing the Option Shares purchased by Grantee pursuant hereto, and
Grantee shall warrant that it owns the Option or such shares and that the
Option or such shares are then free and clear of all liens, claims,
damages, charges and encumbrances of any kind or nature whatsoever.
(d) If Grantee has elected to purchase Option shares pursuant
to the exercise of the Option by the issuance and delivery of Grantee
Shares, notwithstanding that Grantee may no longer hold any such Option
Shares or that Grantee elects not to exercise its other rights under this
Section 8, Grantee may require, at any time or from time to time prior to
September 30, 1997, Issuer to sell to Grantee any such Grantee Shares at
the price attributed to such Grantee Shares pursuant to Section 4 plus
interest at the publicly announced prime rate as published in the Wall
Street Journal (Midwest Edition) on such amount from the Closing Date
relating to the exchange of such Grantee shares pursuant to Section 4 to
the Closing Date under this Section 8(d) less any dividends on such
Grantee Shares paid during such period or declared and payable to
shareholders of record on a date during such period.
(e) In the event the repurchase price specified in Section 8(a)
would subject the purchase of the Option or the Option Shares purchased by
Grantee pursuant to the Option to a vote of the shareholders of Issuer
pursuant to applicable law or the Articles of Incorporation of Issuer,
then Grantee may, at its election, reduce the repurchase price to an
amount which would permit such repurchase without the necessity for such a
shareholder vote.
9. Following the date hereof and prior to the fifth anniversary of
the date hereof (the "Expiration Date"), each party shall vote any shares
of capital stock of the other party acquired by such party pursuant to
this Agreement ("Restricted Shares"), including any Grantee Shares issued
pursuant to Section 1(c), or otherwise beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act")), by such party on each matter
submitted to a vote of shareholders of such other party for and against
such matter in the same proportion as the vote of all other shareholders
of such other party are voted (whether by proxy or otherwise) for and
against such matter.
10. (a) Prior to the Expiration Date, neither party shall, directly
or indirectly, sell, assign, pledge, or otherwise dispose of or transfer
any Restricted Shares beneficially owned by such party, other than (i)
pursuant to Section 8, or (ii) in accordance with Section 10(b) or
Section 11.
(b) Following the termination of the Merger Agreement, a party
shall be permitted to sell any Restricted Shares beneficially owned by it
if such sale is made pursuant to a tender or exchange offer that has been
approved or recommended, or otherwise determined to be fair to and in the
best interests of the shareholders of the other party, by a majority of
the members of the Board of Directors of such other party, which majority
shall include a majority of directors who were directors prior to the
announcement of such tender or exchange offer.
11. (a) Following the termination of the Merger Agreement, either
party hereto that owns Restricted Shares (a "Designated Holder") may by
written notice (the "Registration Notice") to the other party (the
"Registrant") request the Registrant to register under the Securities Act
all or any part of the Restricted Shares beneficially owned by such
Designated Holder (the "Registrable Securities") pursuant to a bona fide
firm commitment underwritten public offering, in which the Designated
Holder and the underwriters shall effect as wide a distribution of such
Registrable Securities as is reasonably practicable and shall use their
best efforts to prevent any person (including any Group (as used in Rule
13d-5 under the Exchange Act)) and its affiliates from purchasing through
such offering Restricted Shares representing more than 1% of the
outstanding shares of common stock of the Registrant on a fully diluted
basis (a "Permitted Offering").
(b) The Registration Notice shall include a certificate
executed by the Designated Holder and its proposed managing underwriter,
which underwriter shall be an investment banking firm of recognized
standing on a national or regional basis (the "Manager"), stating that
(i) they have a good faith intention to commence promptly
a Permitted Offering, and
(ii) Manager in good faith believes that, based on the
then-prevailing market conditions, it will be able to sell the Registrable
Securities at a per share price equal to at least 80% of the then Fair
Market Value of such shares.
(c) The Registrant (and/or any person designed by the
Registrant) shall thereupon have the option exercisable by written notice
delivered to the Designated Holder within ten business days after the
receipt of the Registration Notice, irrevocably to agree to purchase all
or any part of the Registrable Securities proposed to be so sold for cash
at a price equal to the product of (i) the number of Registrable
Securities to be so purchased by the Registrant and (ii) the then Fair
Market Value of such shares.
(d) Any purchase of Registrable Securities by the Registrant
(or its designee) under Section 11(c) shall take place at a closing to be
held at the principal executive offices of the Registrant or at the
offices of its counsel at any reasonable date and time designated by the
Registrant and/or such designee in such notice within twenty business days
after delivery of such notice, and any payment for the shares to be so
purchased shall be made by delivery at the time of such closing in
immediately available funds.
(e) If the Registrant does not elect to exercise its option
pursuant to this Section 11 with respect to all Registrable Securities, it
shall use its best efforts to effect, as promptly as practicable, the
registration under the Securities Act of the unpurchased Registrable
Securities proposed to be so sold; provided, however, that
(i) neither party shall be entitled to demand more than an
aggregate of two effective registration statements hereunder, and
(ii) the Registrant will not be required to file any such
registration statement during any period of time (not to exceed 40 days
after such request in the case of clause (A) below or 90 days in the case
of clauses (B) and (C) below) when
(A) the Registrant is in possession of material non-
public information which it reasonably believes would be detrimental to be
disclosed at such time and, in the opinion of counsel to the Registrant,
such information would be required to be disclosed if a registration
statement were filed at that time;
(B) the Registrant is required under the Securities
Act to include audited financial statements for any period in such
registration statement and such financial statements are not yet available
for inclusion in such registration statement; or
(C) the Registrant determines, in its reasonable
judgment, that such registration would interfere with any financing,
acquisition or other material transaction involving the Registrant or any
of its affiliates.
(f) The Registrant shall use its reasonable best efforts to
cause any Registrable Securities registered pursuant to this Section 11 to
be qualified for sale under the securities or Blue Sky laws of such
jurisdictions as the Designated Holder may reasonably request and shall
continue such registration or qualification in effect in such
jurisdiction; provided, however, that the Registrant shall not be required
to qualify to do business in, or consent to general service of process in,
any jurisdiction by reason of this provision.
(g) The registration rights set forth in this Section 11 are
subject to the condition that the Designated Holder shall provide the
Registrant with such information with respect to such holder's Registrable
Securities, the plans for the distribution thereof, and such other
information with respect to such holder as, in the reasonable judgment of
counsel for the Registrant, is necessary to enable the Registrant to
include in such registration statement all material facts required to be
disclosed with respect to a registration thereunder.
(h) A registration effected under this Section 11 shall be
effected at the Registrant's expense, except for underwriting discounts
and commissions and the fees and the expenses of counsel to the Designated
Holder, and the Registrant shall provide to the underwriters such
documentation (including certificates, opinions of counsel and "comfort"
letters from auditors) as is customary in connection with underwritten
public offerings as such underwriters may reasonably require.
(i) In connection with any registration effected under this
Section 11, the parties agree
(i) to indemnify each other and the underwriters in the
customary manner,
(ii) to enter into an underwriting agreement in form and
substance customary for transactions of such type with the Manager and the
other underwriters participating in such offering, and
(iii) to take all further actions which shall be
reasonably necessary to effect such registration and sale (including if
the Manager deems it necessary, participating in road show presentations).
(j) The Registrant shall be entitled to include (at its
expense) additional shares of its common stock in a registration effected
pursuant to this Section 11 only if and to the extent the Manager
determines that such inclusion will not adversely affect the prospects for
success of such offering.
12. Without limitation to any restriction on Issuer contained in
this Agreement or in the Merger Agreement, in the event of any change in
Issuer Common Stock by reason of stock dividends, splitups, mergers (other
than the Merger), recapitalizations, combinations, exchange of shares or
the like, the type and number of shares or securities subject to the
Option, and the Option Price provided in Section 1, shall be adjusted
appropriately to restore to Grantee its rights hereunder, including the
right to purchase from Issuer (or its successors) shares of Issuer Common
Stock (or such other shares or securities into which Issuer Common Stock
has been so changed) for the aggregate Option Price as provided in Section
1.
13. Each certificate representing Option Shares issued to Grantee
hereunder, and Grantee Shares, if any, delivered to Issuer at a Closing,
shall include 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, OR ANY
STATE SECURITIES OR BLUE SKY LAWS, AND MAY BE REOFFERED OR SOLD
ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION
IS AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AS SET FORTH IN A STOCK OPTION AND
TRIGGER PAYMENT AGREEMENT, DATED AS OF NOVEMBER 13, 1996, A COPY
OF WHICH MAY BE OBTAINED FROM THE ISSUER UPON REQUEST.
It is understood and agreed that:
(i) the reference to the resale restrictions of the
Securities Act and state securities or Blue Sky laws in the above legend
shall be removed by delivery of substitute certificate(s) without such
reference if Grantee or Issuer, as the case may be, shall have delivered
to the other party a copy of a letter from the staff of the Securities and
Exchange Commission, or an opinion of counsel, in form and substance
reasonably satisfactory to the other party, to the effect that such legend
is not required for purposes of the Securities Act or such laws;
(ii) the reference to the provisions to this Agreement in
the above legend shall be removed by delivery of substitute certificate(s)
without such reference if the shares have been sold or transferred in
compliance with the provisions of this Agreement and under circumstances
that do not require the retention of such reference; and
(iii) the legend shall be removed in its entirety if
the conditions in the preceding clauses (i) and (ii) are both satisfied.
In addition, such certificates shall bear any other legend as may be
required by law. Certificates representing shares sold in a registered
public offering pursuant to Section 11 shall not be required to bear the
legend set forth in this Section 13.
14. (a) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns.
(b) Except as expressly provided for in this Agreement, neither
this Agreement nor the rights or obligations of either party hereto are
assignable, except by operation of law, or with the written consent of the
other party.
(c) Nothing contained in this Agreement, express or implied, is
intended to confer upon any person other than the parties hereto and their
respective successors and permitted assigns any rights or remedies of any
nature whatsoever by reason of this Agreement.
(d) Any Restricted Shares sold by a party in compliance with
the provisions of Section 11 shall, upon consummation of such sale, be
free of the restrictions imposed with respect to such shares by this
Agreement, unless and until such party shall repurchase or otherwise
become the beneficial owner of such shares, and any transferee of such
shares shall not be entitled to the registration rights of such party.
15. The parties hereto acknowledge that damages would be an
inadequate remedy for a breach of this Agreement by either party hereto
and that the obligations of the parties hereto shall be enforceable by
either party hereto through injunctive or other equitable relief.
16. If any term, provision, covenant or restriction contained
in this Agreement is held by a court or a federal or state regulatory
agency of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions and covenants and restrictions
contained in this Agreement shall remain in full force and effect, and
shall in no way be affected, impaired or invalidated. Subject to Section
5, if for any reason any such court or regulatory agency determines that
Grantee is not permitted to acquire, or Issuer is not permitted to
repurchase pursuant to Section 8, the full number of Option Shares
provided in Section 1 hereof (as the same may be adjusted), it is the
express intention of Issuer to allow Grantee to acquire or to require
Issuer to repurchase such lesser number of shares as may be permissible
without any amendment or modification hereof.
17. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied
(with confirmation), mailed by registered or certified mail (return
receipt requested) or delivered by an express courier (with confirmation)
at the respective addresses of the parties set forth in the Merger
Agreement (or at such other address for a party as shall be specified by
like notice).
18. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin, regardless of the laws
that might otherwise govern under applicable principles of conflicts of
laws thereof.
19. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same agreement.
20. Except as otherwise expressly 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.
21. Except as otherwise expressly provided herein or in the
Merger Agreement, this Agreement contains the entire agreement between the
parties with respect to the transactions contemplated hereunder and
supersedes all prior arrangements or understandings with respect thereof,
written or oral.
22. 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.
23. The time periods for exercises of certain rights under
Sections 2, 5 and 8 shall be extended (but in no event by more than six
months):
(a) to the extent necessary to obtain all regulatory approvals
for the exercise of such rights; and
(b) to the extent necessary to avoid any liability under
Section 16(b) of the Exchange Act by reason of such exercise.
24. Capitalized terms used in this Agreement and not defined
herein shall have the meanings assigned thereto in the Merger Agreement.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the date first above written.
FCB FINANCIAL CORP.
By:
Donald D. Parker
President and Chief Executive
Officer
OSB FINANCIAL CORP.
By:
James J. Rothenbach
President and Chief Executive
Officer
Exhibit B
Execution Copy
STOCK OPTION AND TRIGGER PAYMENT AGREEMENT (the "Agreement"),
dated November 13, 1996, between OSB Financial Corp., a Wisconsin
corporation ("Issuer"), and FCB Financial Corp., a Wisconsin corporation
("Grantee").
W I T N E S S E T H:
WHEREAS, Grantee and Issuer have entered into an Agreement and
Plan of Merger of even date herewith (the "Merger Agreement"), which
agreement has been executed by the parties hereto immediately prior to
this Stock Option and Trigger Agreement; and
WHEREAS, as a condition to Grantee's entering into the Merger
Agreement and in consideration therefor, Issuer has agreed to grant
Grantee the Option (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
1. (a) Issuer hereby grants to Grantee an unconditional,
irrevocable option (the "Option") to purchase, subject to the terms
hereof, up to 230,866 fully paid and nonassessable (except as otherwise
provided by Section 180.0622(2)(b) of the Wisconsin Business Corporation
Law) shares (the "Option Shares") of Issuer's Common Stock, par value
$0.01 per share ("Issuer Common Stock"), at a price of $24.375 per share
(the "Option Price"); provided, however, that in no event shall the number
of shares of Issuer Common Stock for which this Option is exercisable
exceed 19.9% of the issued and outstanding shares of Issuer Common Stock
without giving effect to any shares subject to or issued pursuant to the
Option. The number of shares of Issuer Common Stock that may be received
upon the exercise of the Option and the Option Price are subject to
adjustment as herein set forth.
(b) In the event that any additional shares of Issuer Common
Stock are either (i) issued or otherwise become outstanding after the date
of this Agreement (other than pursuant to this Agreement) or (ii)
redeemed, repurchased, retired or otherwise cease to be outstanding after
the date of this Agreement (such event a "Change in Shares Outstanding
Event"), the number of shares of Issuer Common Stock subject to the Option
shall be increased or decreased, as appropriate, so that, after such
Change in Shares Outstanding Event, such number equals 19.9% of the number
of shares of Issuer Common Stock then issued and outstanding without
giving effect to any shares subject or issued pursuant to the Option.
Nothing contained in this Section 1(b) or elsewhere in this Agreement
shall be deemed to authorize Issuer to issue or redeem, repurchase, or
retire shares of Issuer Common Stock or to authorize either the Issuer or
the Grantee otherwise to breach any provision of the Merger Agreement.
(c) The Option Price shall be payable, at the option of the
Grantee, as follows:
(i) in cash, or
(ii) subject to the receipt of all approvals of any
Governmental Entity required for the Issuer to acquire, and Grantee to
issue, the Grantee Shares (as defined below) from Grantee, in shares of
common stock, $0.01 par value, of Grantee ("Grantee Shares"),
in either case in accordance with Section 4 hereof.
(d) As used in this Agreement, the "Fair Market Value" of any
share shall be the average of the last sales price for such share on The
Nasdaq Stock Market during the ten trading days prior to the fifth trading
day preceding the date such Fair Market Value is to be determined.
2. (a) The Option may be exercised by Grantee, in whole or in
part, at any time or from time to time after the Merger Agreement becomes
terminable by Grantee under circumstances which could entitle Grantee to a
termination fee (as opposed to the reimbursement of expenses only) under
Section 8.3(a) of the Merger Agreement or Section 8.3(b) of the Merger
Agreement (regardless of whether the Merger Agreement is actually
terminated), any such event by which the Merger Agreement becomes so
terminable by Grantee being referred to herein as a " Trigger Event."
(b) (i) Issuer shall notify Grantee promptly in writing of the
occurrence of any Trigger Event, it being understood that the giving of
such notice by Issuer shall not be a condition to the right of Grantee to
exercise the Option.
(ii) In the event Grantee wishes to exercise the Option,
Grantee shall deliver to Issuer written notice (an "Exercise Notice")
specifying the total number of Option Shares it wishes to purchase.
(iii) Upon the giving by Grantee of Issuer of the
Exercise Notice and the tender of the applicable aggregate Option Price,
Grantee, to the extent permitted by law and Issuer's organizational
documents, and provided that the conditions to Issuer's obligation to
issue Option Shares to Grantee hereunder set forth in Section 3 have been
satisfied or waived, shall be deemed to be the holder of record of the
Option Shares issuable upon such exercise, notwithstanding that the stock
transfer books of Issuer shall then be closed or that certificates
representing such Option Shares shall not then be actually delivered to
Grantee.
(iv) Each closing of a purchase of Option Shares (a
"Closing") shall occur at a place, on a date, and at a time designated by
Grantee in an Exercise Notice delivered at least two business days prior
to the date of the Closing.
(c) The Option shall terminate upon the earliest to occur of:
(i) the Effective Time of the Merger;
(ii) the termination of the Merger Agreement pursuant to
Section 8.1 thereof, other than under circumstances which also constitute
a Trigger Event under this Agreement;
(iii) 180 days following any termination of the Merger
Agreement upon or during the continuance of a Trigger Event (or if, at the
expiration of such 180-day period, the Option cannot be exercised by
reason of any applicable judgment, decree, order, law or regulation, ten
business days after such impediment to exercise shall have been removed or
shall have become final and not subject to appeal, but in no event under
this clause (iii) later than September 30, 1997); and
(iv) payment by Issuer of the Trigger Payment set forth in
Section 5 of this Agreement to Grantee.
(d) Notwithstanding the foregoing, the Option may not be
exercised if (i) Grantee is in material breach of any of its
representations or warranties, or in material breach of any of its
covenants or agreements, contained in this Agreement or in the Merger
Agreement, or (ii) a Trigger Payment has been paid pursuant to Section 5
of this Agreement or demand therefor has been made and not withdrawn.
3. The obligation of Issuer to issue Option Shares to Grantee
hereunder is subject to the conditions that
(a) the Option Shares, and any Grantee Shares which are issued
in payment of the Option Price, shall have been approved for listing on
The Nasdaq Stock Market;
(b) all consents, approvals, orders or authorizations of, or
registrations, declarations or filings with, any federal, state or local
administrative agency or commission or other federal, state or local
Governmental Entity, if any, required in connection with the issuance by
Issuer and the acquisition by Grantee of the Option Shares hereunder shall
have been obtained or made; and
(c) no preliminary or permanent injunction or other order by
any court of competent jurisdiction prohibiting or otherwise restraining
such issuance shall be in effect.
The condition set forth in paragraph (a) above may be waived by Issuer, in
the case of Grantee Shares, and by Grantee, in the case of Option Shares,
in the sole discretion of the waiving party.
4. At any Closing,
(a) Issuer shall deliver to Grantee or its designee a single
certificate in definitive form representing the number of Option Shares
designated by Grantee in its Exercise Notice, such certificate to be
registered in the name of Grantee and to bear the legend set forth in
Section 13; and
(b) Grantee shall deliver to issuer the aggregate price for the
Option Shares so designated and being purchased by
(i) wire transfer of immediately available funds or
certified check or bank check, or
(ii) subject to the condition in Section 1(c)(ii), delivery
of a certificate or certificates representing the number of Grantee Shares
being issued by Grantee in consideration thereof, determined in accordance
with Section 4(c).
(c) In the event that Grantee issues Grantee Shares to Issuer
in consideration of Option Shares pursuant to Section 4(b)(ii), the number
of Grantee Shares to be so issued shall be equal to the quotient obtained
by dividing:
(i) the product of (x) the number of Option Shares with
respect to which the Option is being exercised and (y) the Option Price,
by
(ii) the Fair Market Value of the Grantee Shares as of the
date immediately preceding the date the Exercise Notice is delivered to
Issuer.
(d) Issuer shall pay all expenses, and any and all federal,
state and local taxes and other charges that may be payable in connection
with the preparation, issue and delivery of stock certificates under this
Section 4.
5. (a) Subject to the provisions of Section 8.3(d) of the Merger
Agreement, if a Trigger Event shall have occurred and any regulatory
approval or order required for the issuance by Issuer, or the acquisition
by Grantee, of the Option or the Option Shares upon exercise of the Option
shall not have been obtained, Grantee shall have the right to receive, and
Issuer shall pay to Grantee, an amount (the "Trigger Payment") equal to
the product of
(i) the maximum number of Option Shares that would have
been subject to purchases by Grantee upon exercise of the Option pursuant
to Sections 1 and 2 hereof if all such regulatory approvals or orders had
been obtained, and
(ii) the difference between (A) the Market/Offer Price (as
defined herein), determined as of the date on which notice of demand for
the Trigger Payment is given by Grantee, and (B) the Option Price (but
only if such Market/Offer Price is higher than such Option Price).
Demand for the Trigger Payment shall be given by notice in accordance with
the provisions of Section 17 hereof. The Trigger Payment shall be paid to
Grantee by Issuer on the Payment Date (as defined herein), by wire
transfer or immediately available funds to an account to be designated in
writing by Grantee not less than two business days before the Payment
Date.
(b) For purposes of this Section 5, "Payment Date" means the
date on which termination fees are required to be paid by Issuer to
Grantee under Sections 8.3(a) or 8.3(b), as the case may be, of the Merger
Agreement as a result of the occurrence of the Trigger Event referred to
in subsection (a) of this Section 5 or such later date as Grantee shall
specify with two business days prior written notice to Issuer.
(c) Issuer shall have no obligation to pay the Trigger Payment
if Grantee is in material breach of any of its representations or
warranties, or in material breach of any of its covenants or agreements,
contained in this Agreement or in the Merger Agreement.
6. Issuer represents and warrants to Grantee that
(a) Issuer has the corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder, subject in the
case of the repurchase of the Option Shares pursuant to Section 8(a) to
applicable law;
(b) this Agreement has been duly and validly executed and
delivered by Issuer, and, assuming the due authorization, execution and
delivery hereof by Grantee and the receipt of all required regulatory
approvals, constitutes a valid and binding obligation of Issuer,
enforceable against Issuer in accordance with its terms;
(c) Issuer has taken all necessary corporate action to
authorize and reserve for issuance and to permit it to issue, upon
exercise of the Option, and at all times from the date hereof through the
expiration of the Option will have reserved, the number of authorized and
unissued Option Shares, such amount being subject to adjustment as
provided in Sections 1 and 12, all of which, upon their issuance and
delivery in accordance with the terms of this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable (except as
otherwise provided by Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law);
(d) upon delivery of the Option Shares to Grantee upon the
exercise of the Option, Grantee will acquire the Option Shares free and
clear of all claims, liens, charges, encumbrances and security interests
of any nature whatsoever;
(e) except as described in Section 3.4 of the Merger Agreement,
the execution and delivery of this Agreement by Issuer does not, and,
subject to compliance with applicable law with respect to the repurchase
of the Option Shares pursuant to Section 8(a), the consummation by Issuer
of the transactions contemplated hereby will not, violate, conflict with,
or result in a breach of any provision of, or constitute a default (with
or without notice or a lapse of time, or both) under, or result in the
termination of, or accelerate the performance required by, or result in a
right of termination, cancellation, or acceleration of any obligation or
the loss of a material benefit under, or the creation of a lien, pledge,
security interest or other encumbrance on assets (any such conflict,
violation, default, right of termination, cancellation, acceleration, loss
or creation, hereinafter a "Violation") of Issuer or any of its
Subsidiaries, pursuant to
(i) any provision of the Articles of Incorporation or the
Bylaws of Issuer,
(ii) any provisions of any material loan or credit
agreement, note, mortgage, indenture, lease, benefit plan or other
agreement, obligation, instrument, permit, concession, franchise or
license (any of the foregoing in effect on the date hereof being referred
to as a "Material Contract") of Issuer or its Subsidiaries or to which any
of them is a party, or
(iii) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Issuer or its properties or
assets,
which Violation, in the case of each clauses (ii) and (iii), could
reasonably be expected to have a Material Adverse Effect on Issuer (except
that no representation or warranty is given concerning any Violation of a
Material Contract with respect to the repurchase of Option Shares pursuant
to Section 8(a));
(f) except as described in Section 3.4 of the Merger Agreement,
the execution and delivery of this Agreement by Issuer does not, and the
performance of this Agreement by Issuer will not, require any consent,
approval, authorization or permit of, filing with or notification to, any
Governmental Entity;
(g) none of Issuer, any of its affiliates or anyone acting on
its or their behalf, has issued, sold or offered any security of Issuer to
any person under circumstances that would cause the issuance and sale of
the Option Shares, as contemplated by this Agreement, to be subject to the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), as in effect on the date hereof, and, assuming the
representations and warranties of Grantee contained in Section 7(g) are
true and correct, the issuance, sale and delivery of the Option Shares
hereunder would be exempt from the registration and prospectus delivery
requirements of the Securities Act, as in effect on the date hereof (and
Issuer shall not take any action which would cause the issuance, sale, and
delivery of the Option Shares hereunder not to be exempt from such
requirements); and
(h) any Grantee Shares acquired pursuant to this Agreement will
be acquired for Issuer's own account, for investment purposes only, and
will not be acquired by Issuer with a view to the public distribution
thereof in violation of any applicable provision of the Securities Act.
7. Grantee represents and warrants to Issuer that
(a) Grantee has the corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder;
(b) this Agreement has been duly and validly executed and
delivered by Grantee and, assuming the due authorization, execution and
delivery hereof by Issuer and the receipt of all required regulatory
approvals, constitutes a valid and binding obligation of Grantee,
enforceable against Grantee in accordance with its respective terms;
(c) prior to any delivery of Grantee Shares in consideration of
the purchase of Option Shares pursuant hereto, Grantee will have taken all
necessary corporate action to authorize for issuance and to permit it to
issue such Grantee Shares, all of which, upon their issuance and delivery
in accordance with the terms of this Agreement, will be duly authorized,
validly issued, fully paid and nonassessable (except as otherwise provided
in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law);
(d) upon any delivery of such Grantee Shares to Issuer in
consideration of the purchase of the Option Shares pursuant hereto, Issuer
will acquire the Grantee Shares free and clear of all claims, liens,
charges, encumbrances and security interests of any nature whatsoever;
(e) except as described in Section 3.4 of the Merger Agreement,
the execution and delivery of this Agreement by Grantee does not, and the
consummation by Grantee of the transactions contemplated hereby will not,
violate, conflict with, or result in the breach of any provision of, or
constitute a default (with or without notice or a lapse of time, or both)
under, or result in any Violation by Grantee or any of its Subsidiaries,
pursuant to
(i) any provision of the Articles of Incorporation or
Bylaws of Grantee,
(ii) any Material Contract of Grantee or any of its
Subsidiaries or to which any of them is a party, or
(iii) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Grantee or its properties or
assets,
which Violation, in the case of each of clauses (ii) or (iii), would have
a Material Adverse Effect on Grantee;
(f) except as described in Section 3.4 of the Merger Agreement,
the execution and delivery of this Agreement by Grantee does not, and the
consummation by Grantee of the transactions contemplated hereby will not,
require any consent, approval, authorization or permit of, filing with or
notification to, any Governmental Entity; and
(g) any Option Shares acquired upon exercise of the Option will
be acquired for Grantee's own account, for investment purposes only and
will not be, and the Option is not being, acquired by Grantee with a view
to the public distribution thereof, in violation of any applicable
provision of the Securities Act.
8. (a) At the request of Grantee by written notice (x) at any time
during which the Option is exercisable pursuant to Section 2 (the
"Repurchase Period"), Issuer (or any successor entity thereof) shall, if
permitted by applicable law, the Articles of Incorporation and Bylaws of
the Issuer and Issuer's Material Contracts, repurchase from Grantee all or
any portion of the Option, at the price set forth in subparagraph (i)
below, or, (y) at any time prior to September 30, 1997, Issuer (or any
successor entity thereof) shall, if permitted by applicable law, the
Articles of Incorporation and Bylaws of Issuer and Issuer's Material
Contracts, repurchase from Grantee all or any portion of the Option Shares
purchased by Grantee pursuant to the Option, at the price set forth in
subparagraph (ii) below:
(i) (A) The difference between the "Market/Offer Price"
(as defined below) for shares of Issuer Common Stock as of the date
Grantee gives notice of its intent to exercise its rights under this
Section 8 and the Option Price, multiplied by the number of Option Shares
purchasable pursuant to the Option (or portion thereof with respect to
which Grantee is exercising its rights under this Section 8), but only if
the Market/Offer Price is greater than the Option Price.
(B) For purposes of this Agreement, "Market/Offer
Price" shall mean, as of any date, the higher of (I) the price per share
offered as of such date pursuant to any tender or exchange offer or other
offer with respect to a Business Combination involving Issuer as the
Target Party which was made prior to such date and not terminated or
withdrawn as of such date and (II) the Fair Market Value per share of
Issuer Common Stock as of such date.
(ii) (A) The product of (I) the sum of (a) the Option
Price paid by Grantee per Option Share acquired pursuant to the Option,
and (b) the difference between the "Offer Price" (as defined below) and
the Option Price, but only if the Offer Price is greater than the Option
Price, and (II) the number of Option Shares so to be repurchased pursuant
to this Section 8.
(B) For purposes of this clause (ii), the "Offer
Price" shall be the highest price per share offered pursuant to a tender
or exchange offer or other Business Combination offer involving Issuer as
the Target Party during the Repurchase Period prior to the delivery by
Grantee of a notice of repurchase.
(b) If Grantee shall have previously elected to purchase Option
Shares pursuant to the exercise of the Option by the issuance and delivery
of Grantee Shares, then Issuer shall, if so requested by Grantee, in
fulfillment of its obligation pursuant to Section 8(a)(y) (that is, with
respect to the Option Price only and without limitation to its obligation
to pay additional consideration under clause (b) of Section
8(a)(ii)(A)(I)), redeliver the certificates for such Grantee Shares to
Grantee, free and clear of all liens, claims, charges and encumbrances of
any kind or nature whatsoever; provided, however, that if at any time less
than all of the Option Shares so purchased by Grantee pursuant to the
Option are to be repurchased by Issuer pursuant to Section 8(a)(y), then
(i) Issuer shall be obligated to redeliver to Grantee the same proportion
of such Grantee Shares as the number of Option Shares that Issuer is then
obligated to repurchase bears to the number of Option Shares acquired by
Grantee upon exercise of the Option and (ii) Grantee shall issue to Issuer
new certificates representing those Grantee Shares which are not due to be
redelivered to Grantee pursuant to this Section 8(b) to the extent that
excess Grantee Shares are included in the certificates redelivered to
Grantee by Issuer.
(c) In the event Grantee exercises its rights under this
Section 8, Issuer shall, within ten business days thereafter, pay the
required amount to Grantee in immediately available funds and Grantee
shall surrender to Issuer the Option or the certificate or certificates
evidencing the Option Shares purchased by Grantee pursuant hereto, and
Grantee shall warrant that it owns the Option or such shares and that the
Option or such shares are then free and clear of all liens, claims,
damages, charges and encumbrances of any kind or nature whatsoever.
(d) If Grantee has elected to purchase Option shares pursuant
to the exercise of the Option by the issuance and delivery of Grantee
Shares, notwithstanding that Grantee may no longer hold any such Option
Shares or that Grantee elects not to exercise its other rights under this
Section 8, Grantee may require, at any time or from time to time prior to
September 30, 1997, Issuer to sell to Grantee any such Grantee Shares at
the price attributed to such Grantee Shares pursuant to Section 4 plus
interest at the publicly announced prime rate as published in the Wall
Street Journal (Midwest Edition) on such amount from the Closing Date
relating to the exchange of such Grantee shares pursuant to Section 4 to
the Closing Date under this Section 8(d) less any dividends on such
Grantee Shares paid during such period or declared and payable to
shareholders of record on a date during such period.
(e) In the event the repurchase price specified in Section 8(a)
would subject the purchase of the Option or the Option Shares purchased by
Grantee pursuant to the Option to a vote of the shareholders of Issuer
pursuant to applicable law or the Articles of Incorporation of Issuer,
then Grantee may, at its election, reduce the repurchase price to an
amount which would permit such repurchase without the necessity for such a
shareholder vote.
9. Following the date hereof and prior to the fifth anniversary of
the date hereof (the "Expiration Date"), each party shall vote any shares
of capital stock of the other party acquired by such party pursuant to
this Agreement ("Restricted Shares"), including any Grantee Shares issued
pursuant to Section 1(c), or otherwise beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act")), by such party on each matter
submitted to a vote of shareholders of such other party for and against
such matter in the same proportion as the vote of all other shareholders
of such other party are voted (whether by proxy or otherwise) for and
against such matter.
10. (a) Prior to the Expiration Date, neither party shall, directly
or indirectly, sell, assign, pledge, or otherwise dispose of or transfer
any Restricted Shares beneficially owned by such party, other than (i)
pursuant to Section 8, or (ii) in accordance with Section 10(b) or
Section 11.
(b) Following the termination of the Merger Agreement, a party
shall be permitted to sell any Restricted Shares beneficially owned by it
if such sale is made pursuant to a tender or exchange offer that has been
approved or recommended, or otherwise determined to be fair to and in the
best interests of the shareholders of the other party, by a majority of
the members of the Board of Directors of such other party, which majority
shall include a majority of directors who were directors prior to the
announcement of such tender or exchange offer.
11. (a) Following the termination of the Merger Agreement, either
party hereto that owns Restricted Shares (a "Designated Holder") may by
written notice (the "Registration Notice") to the other party (the
"Registrant") request the Registrant to register under the Securities Act
all or any part of the Restricted Shares beneficially owned by such
Designated Holder (the "Registrable Securities") pursuant to a bona fide
firm commitment underwritten public offering, in which the Designated
Holder and the underwriters shall effect as wide a distribution of such
Registrable Securities as is reasonably practicable and shall use their
best efforts to prevent any person (including any Group (as used in Rule
13d-5 under the Exchange Act)) and its affiliates from purchasing through
such offering Restricted Shares representing more than 1% of the
outstanding shares of common stock of the Registrant on a fully diluted
basis (a "Permitted Offering").
(b) The Registration Notice shall include a certificate
executed by the Designated Holder and its proposed managing underwriter,
which underwriter shall be an investment banking firm of recognized
standing on a national or regional basis (the "Manager"), stating that
(i) they have a good faith intention to commence promptly
a Permitted Offering, and
(ii) Manager in good faith believes that, based on the
then-prevailing market conditions, it will be able to sell the Registrable
Securities at a per share price equal to at least 80% of the then Fair
Market Value of such shares.
(c) The Registrant (and/or any person designed by the
Registrant) shall thereupon have the option exercisable by written notice
delivered to the Designated Holder within ten business days after the
receipt of the Registration Notice, irrevocably to agree to purchase all
or any part of the Registrable Securities proposed to be so sold for cash
at a price equal to the product of (i) the number of Registrable
Securities to be so purchased by the Registrant and (ii) the then Fair
Market Value of such shares.
(d) Any purchase of Registrable Securities by the Registrant
(or its designee) under Section 11(c) shall take place at a closing to be
held at the principal executive offices of the Registrant or at the
offices of its counsel at any reasonable date and time designated by the
Registrant and/or such designee in such notice within twenty business days
after delivery of such notice, and any payment for the shares to be so
purchased shall be made by delivery at the time of such closing in
immediately available funds.
(e) If the Registrant does not elect to exercise its option
pursuant to this Section 11 with respect to all Registrable Securities, it
shall use its best efforts to effect, as promptly as practicable, the
registration under the Securities Act of the unpurchased Registrable
Securities proposed to be so sold; provided, however, that
(i) neither party shall be entitled to demand more than an
aggregate of two effective registration statements hereunder, and
(ii) the Registrant will not be required to file any such
registration statement during any period of time (not to exceed 40 days
after such request in the case of clause (A) below or 90 days in the case
of clauses (B) and (C) below) when
(A) the Registrant is in possession of material non-
public information which it reasonably believes would be detrimental to be
disclosed at such time and, in the opinion of counsel to the Registrant,
such information would be required to be disclosed if a registration
statement were filed at that time;
(B) the Registrant is required under the Securities
Act to include audited financial statements for any period in such
registration statement and such financial statements are not yet available
for inclusion in such registration statement; or
(C) the Registrant determines, in its reasonable
judgment, that such registration would interfere with any financing,
acquisition or other material transaction involving the Registrant or any
of its affiliates.
(f) The Registrant shall use its reasonable best efforts to
cause any Registrable Securities registered pursuant to this Section 11 to
be qualified for sale under the securities or Blue Sky laws of such
jurisdictions as the Designated Holder may reasonably request and shall
continue such registration or qualification in effect in such
jurisdiction; provided, however, that the Registrant shall not be required
to qualify to do business in, or consent to general service of process in,
any jurisdiction by reason of this provision.
(g) The registration rights set forth in this Section 11 are
subject to the condition that the Designated Holder shall provide the
Registrant with such information with respect to such holder's Registrable
Securities, the plans for the distribution thereof, and such other
information with respect to such holder as, in the reasonable judgment of
counsel for the Registrant, is necessary to enable the Registrant to
include in such registration statement all material facts required to be
disclosed with respect to a registration thereunder.
(h) A registration effected under this Section 11 shall be
effected at the Registrant's expense, except for underwriting discounts
and commissions and the fees and the expenses of counsel to the Designated
Holder, and the Registrant shall provide to the underwriters such
documentation (including certificates, opinions of counsel and "comfort"
letters from auditors) as is customary in connection with underwritten
public offerings as such underwriters may reasonably require.
(i) In connection with any registration effected under this
Section 11, the parties agree
(i) to indemnify each other and the underwriters in the
customary manner,
(ii) to enter into an underwriting agreement in form and
substance customary for transactions of such type with the Manager and the
other underwriters participating in such offering, and
(iii) to take all further actions which shall be
reasonably necessary to effect such registration and sale (including if
the Manager deems it necessary, participating in road show presentations).
(j) The Registrant shall be entitled to include (at its
expense) additional shares of its common stock in a registration effected
pursuant to this Section 11 only if and to the extent the Manager
determines that such inclusion will not adversely affect the prospects for
success of such offering.
12. Without limitation to any restriction on Issuer contained in
this Agreement or in the Merger Agreement, in the event of any change in
Issuer Common Stock by reason of stock dividends, splitups, mergers (other
than the Merger), recapitalizations, combinations, exchange of shares or
the like, the type and number of shares or securities subject to the
Option, and the Option Price provided in Section 1, shall be adjusted
appropriately to restore to Grantee its rights hereunder, including the
right to purchase from Issuer (or its successors) shares of Issuer Common
Stock (or such other shares or securities into which Issuer Common Stock
has been so changed) for the aggregate Option Price as provided in Section
1.
13. Each certificate representing Option Shares issued to Grantee
hereunder, and Grantee Shares, if any, delivered to Issuer at a Closing,
shall include 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, OR ANY
STATE SECURITIES OR BLUE SKY LAWS, AND MAY BE REOFFERED OR SOLD
ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION
IS AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AS SET FORTH IN A STOCK OPTION AND
TRIGGER PAYMENT AGREEMENT, DATED AS OF NOVEMBER 13, 1996, A COPY
OF WHICH MAY BE OBTAINED FROM THE ISSUER UPON REQUEST.
It is understood and agreed that:
(i) the reference to the resale restrictions of the
Securities Act and state securities or Blue Sky laws in the above legend
shall be removed by delivery of substitute certificate(s) without such
reference if Grantee or Issuer, as the case may be, shall have delivered
to the other party a copy of a letter from the staff of the Securities and
Exchange Commission, or an opinion of counsel, in form and substance
reasonably satisfactory to the other party, to the effect that such legend
is not required for purposes of the Securities Act or such laws;
(ii) the reference to the provisions to this Agreement in
the above legend shall be removed by delivery of substitute certificate(s)
without such reference if the shares have been sold or transferred in
compliance with the provisions of this Agreement and under circumstances
that do not require the retention of such reference; and
(iii) the legend shall be removed in its entirety if
the conditions in the preceding clauses (i) and (ii) are both satisfied.
In addition, such certificates shall bear any other legend as may be
required by law. Certificates representing shares sold in a registered
public offering pursuant to Section 11 shall not be required to bear the
legend set forth in this Section 13.
14. (a) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns.
(b) Except as expressly provided for in this Agreement, neither
this Agreement nor the rights or obligations of either party hereto are
assignable, except by operation of law, or with the written consent of the
other party.
(c) Nothing contained in this Agreement, express or implied, is
intended to confer upon any person other than the parties hereto and their
respective successors and permitted assigns any rights or remedies of any
nature whatsoever by reason of this Agreement.
(d) Any Restricted Shares sold by a party in compliance with
the provisions of Section 11 shall, upon consummation of such sale, be
free of the restrictions imposed with respect to such shares by this
Agreement, unless and until such party shall repurchase or otherwise
become the beneficial owner of such shares, and any transferee of such
shares shall not be entitled to the registration rights of such party.
15. The parties hereto acknowledge that damages would be an
inadequate remedy for a breach of this Agreement by either party hereto
and that the obligations of the parties hereto shall be enforceable by
either party hereto through injunctive or other equitable relief.
16. If any term, provision, covenant or restriction contained
in this Agreement is held by a court or a federal or state regulatory
agency of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions and covenants and restrictions
contained in this Agreement shall remain in full force and effect, and
shall in no way be affected, impaired or invalidated. Subject to Section
5, if for any reason any such court or regulatory agency determines that
Grantee is not permitted to acquire, or Issuer is not permitted to
repurchase pursuant to Section 8, the full number of Option Shares
provided in Section 1 hereof (as the same may be adjusted), it is the
express intention of Issuer to allow Grantee to acquire or to require
Issuer to repurchase such lesser number of shares as may be permissible
without any amendment or modification hereof.
17. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied
(with confirmation), mailed by registered or certified mail (return
receipt requested) or delivered by an express courier (with confirmation)
at the respective addresses of the parties set forth in the Merger
Agreement (or at such other address for a party as shall be specified by
like notice).
18. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin, regardless of the laws
that might otherwise govern under applicable principles of conflicts of
laws thereof.
19. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same agreement.
20. Except as otherwise expressly 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.
21. Except as otherwise expressly provided herein or in the
Merger Agreement, this Agreement contains the entire agreement between the
parties with respect to the transactions contemplated hereunder and
supersedes all prior arrangements or understandings with respect thereof,
written or oral.
22. 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.
23. The time periods for exercises of certain rights under
Sections 2, 5 and 8 shall be extended (but in no event by more than six
months):
(a) to the extent necessary to obtain all regulatory approvals
for the exercise of such rights; and
(b) to the extent necessary to avoid any liability under
Section 16(b) of the Exchange Act by reason of such exercise.
24. Capitalized terms used in this Agreement and not defined
herein shall have the meanings assigned thereto in the Merger Agreement.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the date first above written.
FCB FINANCIAL CORP.
By:
Donald D. Parker
President and Chief Executive
Officer
OSB FINANCIAL CORP.
By:
James J. Rothenbach
President and Chief Executive
Officer
Exhibit C
Execution Copy
Plan of Merger
Between
FCB Financial Corp.
and
OSB Financial Corp.
PLAN OF MERGER (this "Plan"), dated as of November 13, 1996, by
and between FCB Financial Corp., a Wisconsin corporation ("FCB"), and
OSB Financial Corp., a Wisconsin corporation ("OSB").
WHEREAS, the Boards of Directors of FCB and OSB have determined
that it is in the best interests of their respective corporations and
their shareholders to consummate a merger in which OSB will merge with and
into FCB (the "Merger"), so that FCB is the resulting corporation
(hereinafter sometimes called the "Surviving Corporation") in the Merger;
WHEREAS, FCB and OSB have entered into an Agreement and Plan of
Merger, dated November 13, 1996 (the "Agreement"), which sets forth the
terms of the Merger;
WHEREAS, this Plan provides for the terms and conditions of the
Merger and the mode for carrying the Merger into effect.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Subject to the terms and conditions of the
Agreement and this Plan, and in accordance with the Wisconsin Business
Corporation Law (the "WBCL"), at the Effective Time (as defined in Section
1.2), OSB shall merge with and into FCB, and FCB shall survive the Merger
and shall continue its corporate existence under the laws of the State of
Wisconsin. Upon consummation of the Merger, the separate corporate
existence of OSB shall terminate and the name of the Surviving Corporation
shall be "FCB Financial Corp."
1.2 Effective Time. The Merger shall become effective upon the
later of (a) the time of filing of Articles of Merger with the Department
of Financial Institutions of the State of Wisconsin (the "Wisconsin
Department") and (b) the effective date and time of the Merger as set
forth in such Articles of Merger. The parties shall each use reasonable
efforts to cause Articles of Merger to be filed on the Closing Date (as
defined in Section 1.19). The term "Effective Time" shall be the date and
time when the Merger becomes effective, in accordance with this
Section 1.2.
1.3 Effects of the Merger. At and after the Effective Time,
the Merger shall have the effects set forth in Section 180.1106 of the
WBCL.
1.4 Conversion of OSB Common Stock; Treatment of FCB Common
Stock.
*
(a) At the Effective Time, subject to Section 2.2, by
virtue of the Merger and without any action on the part of OSB, or
the holder of any securities of OSB, each share of the common stock,
$.01 par value, of OSB (the "OSB Common Stock") issued and
outstanding immediately prior to the Effective Time (other than
shares canceled pursuant to Section 1.4(c)) shall be converted into
the right to receive 1.46 shares (the "OSB Exchange Ratio") of the
common stock, par value $.01 per share, of FCB (the "FCB Common
Stock").
(b) All of the shares of OSB Common Stock converted into
FCB Common Stock pursuant to this Article I shall no longer be
outstanding and shall automatically be canceled and shall cease to
exist as of the Effective Time, and each certificate (each an "OSB
Common Stock Certificate") previously representing any such shares of
OSB Common Stock shall thereafter represent only the right to receive
(i) a certificate representing the number of whole shares of FCB
Common Stock (each an "FCB Common Stock Certificate") and (ii) cash
in lieu of fractional shares into which the shares of OSB Common
Stock previously represented by such OSB Common Stock Certificate
have been converted pursuant to this Section 1.4 and Section 2.2.
OSB Common Stock Certificates previously representing shares of OSB
Common Stock shall be exchanged for FCB Common Stock Certificates
representing whole shares of FCB Common Stock and cash in lieu of
fractional shares issued in consideration therefor upon the surrender
of such OSB Common Stock Certificates in accordance with Section 2.2,
without any interest thereon.
(c) At the Effective Time, all shares of OSB Common Stock
that are owned by OSB as treasury stock, owned by the Oshkosh Savings
Bank, FSB Management Development and Recognition Plan and not
allocated to participants thereunder or owned by FCB, if any, shall
be canceled and shall cease to exist, and no stock of FCB or other
consideration shall be delivered in exchange therefor.
(d) At and after the Effective Time, each share of FCB
Common Stock issued and outstanding immediately prior to the
Effective Time shall remain an issued and outstanding share of common
stock of the Surviving Corporation and shall not be affected by the
Merger.
1.5 Articles of Incorporation. The Articles of Incorporation
of FCB in effect as of the Effective Time shall be the Articles of
Incorporation of the Surviving Corporation after the Merger until
thereafter amended in accordance with applicable law.
1.6 By-Laws. The By-Laws of FCB in effect as of the Effective
Time shall be the By-Laws of the Surviving Corporation after the Merger
until thereafter amended in accordance with applicable law.
1.7 Tax Consequences. It is intended that the Merger shall
constitute a reorganization within the meaning of Section 368(a)(1)(A) of
the Internal Revenue Code of 1986, as amended (the "Code"), and that the
Agreement and this Plan shall constitute a "plan of reorganization" for
the purposes of Section 368 of the Code.
1.8 Board of Directors of the Surviving Corporation From and
after the Effective Time, the Board of Directors of the Surviving
Corporation shall consist of fourteen (14) persons, including Donald D.
Parker and James J. Rothenbach. Six (6) directors, in addition to Donald
D. Parker, shall have been selected by FCB ("FCB Representatives"), and
six (6) directors, in addition to James J. Rothenbach, shall have been
selected by OSB (the "OSB Representatives"). The FCB Representatives and
the OSB Representatives, respectively, shall be divided as equally as
practicable among the three classes of directors of the Surviving
Corporation and shall serve in such capacities until their successors
shall have been elected or appointed and shall have qualified in
accordance with the Articles of Incorporation and By-laws of the Surviving
Corporation and the WBCL. Directors chosen from among the FCB
Representatives and the OSB Representatives shall be equally represented
on the personnel committee (which shall have four members) and the
executive committee, if any, of the Board of Directors of the Surviving
Corporation.
1.9 Closing. Subject to the terms and conditions of the
Agreement and this Plan, the closing of the Merger (the "Closing") will
take place at 10:00 a.m. on a date and at a place to be specified by the
parties, which shall be no later than the first business day in the
calendar month immediately following the month in which the last of the
conditions precedent to the Merger set forth in Article VII of the
Agreement is satisfied or waived, or at such other time, date and place as
OSB and FCB shall mutually agree (the "Closing Date").
ARTICLE II
CONVERSION OF SHARES
2.1 FCB to Make Shares Available. At or prior to the Effective
Time, FCB shall deposit, or shall cause to be deposited, with a bank,
trust company or other entity reasonably acceptable to OSB (the "Exchange
Agent"), for the benefit of the holders of OSB Common Stock Certificates,
for exchange in accordance with this Article II, FCB Common Stock
Certificates and cash in lieu of any fractional shares of FCB Common Stock
(such cash and FCB Common Stock Certificates, together with any dividends
or distributions with respect thereto paid after the Effective Time, being
hereinafter referred to as the "Conversion Fund") to be issued pursuant to
Section 1.4 and paid pursuant to Section 2.2(a) in exchange for
outstanding shares of OSB Common Stock.
2.2 Exchange of Certificates.
(a) As soon as practicable after the Effective Time, and
in no event later than ten (10) business days thereafter, the
Surviving Corporation shall cause the Exchange Agent to mail to each
holder of record of one or more OSB Common Stock Certificates a
letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the OSB Common Stock
Certificates shall pass, only upon delivery of the OSB Common Stock
Certificates to the Exchange Agent) and instructions for use in
effecting the surrender of the OSB Common Stock Certificates in
exchange for FCB Common Stock Certificates and any cash in lieu of
fractional shares into which the shares of OSB Common Stock
represented by such OSB Common Stock Certificate or Certificates
shall have been converted pursuant to the Agreement and this Plan.
Upon proper surrender of an OSB Common Stock Certificate for exchange
and cancellation to the Exchange Agent, together with such properly
completed letter of transmittal, duly executed, the holder of such
OSB Common Stock Certificate shall be entitled to receive in exchange
therefor, as applicable, (i) an FCB Common Stock Certificate
representing that number of whole shares of FCB Common Stock to which
such holder of OSB Common Stock shall have become entitled pursuant
to the provisions of Section 1.4 hereof, and (ii) a check
representing the amount of any cash in lieu of fractional shares that
such holder has the right to receive in respect of such OSB Common
Stock Certificate, and the OSB Common Stock Certificate so
surrendered shall forthwith be canceled. No interest will be paid or
accrued on any cash in lieu of fractional shares payable to holders
of OSB Common Stock Certificates.
(b) If any FCB Common Stock Certificate is to be issued in
a name other than that in which the OSB Common Stock Certificate
surrendered in exchange therefor is registered, it shall be a
condition of the issuance thereof that the OSB Common Stock
Certificate so surrendered shall be properly endorsed (or accompanied
by an appropriate instrument of transfer) and otherwise in proper
form for transfer, and that the person requesting such exchange shall
pay to the Exchange Agent in advance any transfer or other taxes
required by reason of the issuance of an FCB Common Stock
Certificate in any name other than that of the registered holder of
the OSB Common Stock Certificate surrendered, or required for any
other reason, or shall establish to the satisfaction of the Exchange
Agent that such tax has been paid or is not payable.
(c) After the Effective Time, there shall be no transfers
on the stock transfer books of OSB of the shares of OSB Common Stock
which were issued and outstanding immediately prior to the Effective
Time. If, after the Effective Time, OSB Common Stock Certificates
are presented for transfer to the Exchange Agent, they shall be
canceled and exchanged for FCB Common Stock Certificates representing
shares of FCB Common Stock as provided in this Article II.
(d) Notwithstanding anything to the contrary contained
herein, no certificates or scrip representing fractional shares of
FCB Common Stock shall be issued upon the surrender for exchange of
OSB Common Stock Certificates, no dividend or distribution with
respect to FCB Common Stock shall be payable on or with respect to
any fractional share, and such fractional share interests shall not
entitle the owner thereof to vote or to any other rights of a
shareholder of the Surviving Corporation. In lieu of the issuance of
any such fractional share, the Surviving Corporation shall pay to
each former shareholder of OSB who otherwise would be entitled to
receive such fractional share an amount in cash determined by
multiplying (i) the average of the last sales price for FCB Common
Stock as reported on The Nasdaq Stock Market for the twenty (20)
trading days immediately preceding the fifth trading day prior to the
Closing Date by (ii) the fraction of a share (rounded to the nearest
tenth when expressed as an Arabic number) of FCB Common Stock to
which such holder would otherwise be entitled to receive pursuant to
Section 1.4.
(e) Any portion of the Conversion Fund that remains
unclaimed by the shareholders of OSB for twelve (12) months after the
Effective Time shall be paid to the Surviving Corporation. Any
shareholders of OSB who have not theretofore complied with this
Article II shall thereafter look only to the Surviving Corporation
for the issuance of certificates representing shares of FCB Common
Stock and the payment of cash in lieu of any fractional shares and
any unpaid dividends and distributions on the FCB Common Stock
deliverable in respect of each share of OSB Common Stock such
shareholder holds as determined pursuant to the Agreement and this
Plan, in each case, without any interest thereon. Notwithstanding
the foregoing, none of FCB, OSB, the Exchange Agent or any other
person shall be liable to any former holder of shares of OSB Common
Stock, for any amount delivered in good faith to a public official
pursuant to applicable abandoned property, escheat or similar laws.
(f) In the event any OSB Common Stock Certificate shall
have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming such OSB Common Stock Certificate
to be lost, stolen or destroyed and, if reasonably required by the
Surviving Corporation, the posting by such person of a bond in such
amount as the Exchange Agent may determine is reasonably necessary as
indemnity against any claim that may be made against it with respect
to such OSB Common Stock Certificate, the Exchange Agent will issue
in exchange for such lost, stolen or destroyed Certificate an FCB
Common Stock Certificate representing the shares of FCB Common Stock
and any cash in lieu of fractional shares deliverable in respect
thereof pursuant to the Agreement and this Plan.
ARTICLE III
SHAREHOLDER APPROVALS
3.1 Each of FCB and OSB shall call a meeting of its
shareholders to be held as soon as reasonably practicable for the purpose
of voting upon the Agreement and this Plan (and, in the case of FCB, the
issuance of shares of FCB Common Stock in the Merger), and, subject to the
terms and conditions of the Agreement and this Plan, each of FCB and OSB
shall use reasonable efforts to cause such meetings to occur on the same
date and each shall use all reasonable efforts to obtain shareholder
approval of the Agreement, this Plan and the Merger.
ARTICLE IV
GENERAL PROVISIONS
4.1 Termination. Notwithstanding anything herein to the
contrary, in the event the Agreement shall have been terminated pursuant
to Section 8.1 thereof, this Plan shall automatically terminate.
4.2 Counterparts. This Plan may be executed in counterparts,
all of which shall be considered one and the same agreement 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.
4.3 Governing Law. This Plan shall be governed and construed
in accordance with the laws of the State of Wisconsin, without regard to
any applicable conflicts of law.
4.4 Amendment. Subject to compliance with applicable law, this
Agreement may be amended by the parties hereto, by action taken or
authorized by their respective Boards of Directors, at any time before or
after approval of the matters presented in connection with the Merger by
the shareholders of FCB or OSB, provided, however, that after any approval
of the transactions contemplated by this Plan by the respective
shareholders of FCB or OSB, there may not be, without further approval of
such shareholders, any amendment of this Plan which changes the amount or
the form of the consideration to be delivered to the holders of OSB Common
Stock hereunder other than as contemplated by the Agreement and this Plan.
This Plan may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
IN WITNESS WHEREOF, FCB and OSB have caused this Plan to be
executed by their respective officers thereunto duly authorized as of the
date first above written.
FCB FINANCIAL CORP. OSB FINANCIAL CORP.
By: By:
Name: Donald D. Parker Name: James J. Rothenbach
Title: President and Title: President and
Chief Executive Officer Chief Executive
Officer
Exhibit D
Directors of the Surviving Corporation
Director Company Represented Class
Walter H. Drew FCB I
Donald S. Koskinen FCB I
David L. Baston OSB I
Ronald L. Tenpas OSB I
David L. Erdmann FCB II
Donald D. Parker FCB II
William A. Raaths FCB II
David L. Geurden OSB II
David L. Omachinski OSB II
Richard A. Bergstrom FCB III
William J. Schmidt FCB III
Thomas C. Butterbrodt OSB III
Dr. Edwin L. Downing OSB III
James J. Rothenbach OSB III
Class I: Term of office expires at the first annual meeting of
shareholders of the Surviving Corporation subsequent to the
Closing Date.
Class II: Term of office expires at the second annual meeting of
shareholders of the Surviving Corporation subsequent to the
Closing Date.
Class III: Term of office expires at the third annual meeting of
shareholders of the Surviving Corporation subsequent to the
Closing Date.
Exhibit E
List of Directors and Executive Officers of the Surviving Bank
Executive Officers of the Surviving Bank
Name Position
Donald D. Parker Chairman of the Board of Directors
James J. Rothenbach President and Chief Executive Officer
Phillip J. Schoofs Vice President, Treasurer and Chief
Financial Officer
Harold L. Hermansen Vice President -- Retail Lending and
Secretary
Theodore W. Hoff Vice President -- Retail Sales and Service
Directors of the Surviving Bank
David L. Baston
Richard A. Bergstrom
Thomas C. Butterbrodt
Dr. Edwin L. Downing
Walter H. Drew
David L. Erdmann
David L. Geurden
Donald S. Koskinen
David L. Omachinski
Donald D. Parker
William A. Raaths
James J. Rothenbach
William J. Schmidt
Ronald L. Tenpas
Exhibit F
Form of Affiliate Agreement
_______________, 19___
FCB Financial Corp.
108 East Wisconsin Avenue
Neenah, Wisconsin 54956
Re: Agreement and Plan of Merger, dated November __, 1996,
between FCB Financial Corp. and OSB Financial Corp.
Gentlemen:
Reference is made to the Agreement and Plan of Merger (the
"Agreement") dated as of November __, 1996, by and between FCB Financial
Corp., a Wisconsin corporation ("FCB"), and OSB Financial Corp., a
Wisconsin corporation ("OSB"), providing for the merger of OSB with and
into FCB (the "Merger") whereby FCB is the resulting corporation (the
"Surviving Corporation"). Under the terms of the Agreement, all of the
outstanding shares of common stock of OSB, $0.01 par value (the "OSB
Common Stock"), will be converted into shares of common stock of FCB,
$0.01 par value (the "FCB Common Stock").
The undersigned has been advised that the issuance of shares
of FCB Common Stock to the undersigned in connection with the Merger will
be registered with the Securities and Exchange Commission (the "SEC")
under the Securities Act of 1933, as amended (the "Securities Act"), on a
Registration Statement on Form S-4 and that such registration will not
cover any resale or other disposition of FCB Common Stock. The
undersigned also has been advised that the undersigned may be deemed to be
an affiliate of the Surviving Corporation within the meaning of Rule 145
of the rules and regulations of the SEC under the Securities Act and that
the shares of FCB Common Stock acquired by the undersigned in connection
with the Merger may only be disposed of in conformity with the provisions
hereof.
The undersigned represents and warrants to and agrees with
OSB, FCB and the Surviving Corporation as follows:
(a) The undersigned shall not sell, exchange, transfer or
otherwise dispose of any shares of FCB Common Stock received by the
undersigned in the Merger except (i) at such time as a registration
statement under the Securities Act covering sales of such FCB Common
Stock by the undersigned is effective, (ii) within the limits, and in
accordance with the applicable provisions of, Rule 145 under the
Securities Act, or (iii) in a transaction which, in the opinion of
counsel for the undersigned or as described in a "no-action" or
interpretive letter from the staff of the SEC, in each case
satisfactory to FCB, is not required to be registered under the
Securities Act. The undersigned acknowledges and agrees that FCB is
under no obligation to register the sale, transfer or other
disposition of such FCB Common Stock by the undersigned or on his or
her behalf, or to take any other action necessary to make an
exemption from registration available.
(b) FCB shall not be bound by any attempted sale of any
shares of FCB Common Stock by the undersigned, and FCB's transfer
agent shall be given an appropriate stop transfer order and shall not
be required to register any such attempted sale, unless the sale has
been effected in compliance with the terms of this Letter Agreement.
There will be placed on the certificate representing the shares of
FCB Common Stock issued to the undersigned in the Merger, or any
substitutions therefor, a restrictive legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF RULE 145(d), PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF WITHOUT COMPLIANCE WITH SAID RULE."
(c) The provisions of paragraphs (a) and (b) hereof shall
also apply to any securities which may be paid as a dividend or
otherwise distributed on or with respect to, or issued or delivered
in exchange or substitution for, shares of FCB Common Stock received
in the Merger by the undersigned.
(d) The undersigned does not have any present plan or
intention to sell or otherwise dispose of shares of FCB Common Stock
received by the undersigned in the Merger. The undersigned
undertakes to give prompt written notice to FCB, c/o James J.
Rothenbach, President and Chief Executive Officer, if and as soon as,
anytime after the date hereof, the undersigned has a plan or
intention to sell or otherwise dispose of shares of FCB Common Stock
received by the undersigned in the Merger. [To be included only in
those letters furnished by 5% shareholders]
(e) The undersigned has the capacity to enter into this
Letter Agreement and to make the representations, warranties and
agreements herein, and to perform the obligations of the undersigned
hereunder. This Letter Agreement constitutes a valid and binding
obligation of the undersigned, enforceable against the undersigned in
accordance with its terms. This Letter Agreement shall be binding
upon, and enforceable against, administrators, executors, personal
representatives, donees, heirs, legatees and devisees of the
undersigned, and any pledgee holding as collateral any shares of FCB
Common Stock issued to the undersigned in the Merger, and any such
person shall be required to acknowledge in writing the terms of this
Letter Agreement.
FCB agrees that the stop transfer instructions and legend
referred to in paragraph (c) hereof will be promptly removed upon (i) the
sale, exchange, transfer or other disposition of the FCB Common Stock
received in the Merger in full compliance with the provisions of this
Letter Agreement or (ii) two (2) years after the effective date of the
Merger, provided that, in the latter case, the undersigned is not an
affiliate of FCB and adequate current public information with respect to
the Surviving Corporation is then available, within the meaning of Rule
144(c) under the Securities Act.
This Letter Agreement shall terminate concurrently with any
termination of the Agreement in accordance with its terms.
Very truly yours,
[Name]
Agreed to and accepted this
___ day of ___________, 199___.
FCB FINANCIAL CORP.
By:
Title:
Exhibit G
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
this ____ day of _____, 1997 between FCB Financial Corp., a Wisconsin
corporation (the "Company"), Fox Cities Bank, F.S.B., a federal savings
bank which is wholly-owned by the Company (the "Bank") and Donald D.
Parker (the "Executive").
WHEREAS, the Company and OSB Financial Corp. ("OSB Financial")
entered into an Agreement and Plan of Merger, dated _______, 1996 (the
"Merger Agreement"), providing for the combination of the Company and OSB
Financial Corp. and a concurrent combination of the Bank and Oshkosh
Savings Bank, F.S.B. ("OSB Bank") in a strategic merger, wherein the
Company and the Bank survive the merger (collectively, the "Merger");
WHEREAS, prior to the Merger, the Bank employed the Executive
as President and Chief Executive Officer of the Bank;
WHEREAS, consummation of the Merger contemplated by the Merger
Agreement is conditioned upon the Company, the Bank and the Executive
entering into an Employment Agreement conforming to the terms hereof;
WHEREAS, Executive's skills and extensive experience and
knowledge in the financial institutions industry will substantially
benefit the Company and the Bank; and
WHEREAS, the Company and the Bank desire to retain the
services of Executive in connection with the business activities of the
Company and the Bank following the Merger.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, it is
agreed as follows:
ARTICLE I
EMPLOYMENT
1.1 Term of Employment.
The Bank hereby employs Executive for a period commencing on _______,
1997 (the "Commencement Date") and terminating on October 31, 1999,
subject to earlier termination as provided in Article II hereof.
1.2 Duties of Executive.
The Bank hereby employs Executive, and Executive hereby accepts
employment with the Bank, upon the terms and conditions hereinafter set
forth for the term of this Agreement. Executive is employed by the Bank
to perform the duties of Chairman of the Board of the Bank, and the
Company shall cause the Bank to appoint Executive to such position. As
part of Executive's employment by the Bank hereunder, Executive shall also
serve as, and the Company hereby appoints Executive during the term of his
employment by the Bank hereunder to serve as, Chairman of the Board of the
Company. The services to be performed by the Executive shall include
those normally performed by the Chairman of the Board of similar banking
organizations and as directed by the Board of Directors of the Company and
the Bank, respectively, which are not inconsistent with the foregoing.
Executive agrees to devote his full business time to the rendition of such
services, subject to absences for customary vacations and for temporary
illnesses. The Company and the Bank each agree that during the term of
this Agreement it will not reduce the Executive's current job title,
status or responsibilities without the Executive's consent. Furthermore,
Executive shall not be required, without his express written consent, to
be based anywhere other than within the Oshkosh-Neenah/Menasha-Appleton
metropolitan area, except for reasonable business travel in connection
with the business of the Company and the Bank. During the term of this
Agreement, Executive shall also serve as a director of the Company
(subject to being elected by shareholders) and the Bank and shall be
entitled to receive applicable director's fees (including fees for
committee meetings) for service as a director of the Company and the Bank.
1.3 Compensation.
The Bank agrees to compensate, and the Company agrees to cause the
Bank to compensate, the Executive for his services hereunder during the
term of this Agreement by payment of a salary at the annual rate of
$139,200 in such monthly, semi-monthly or other payments as are from time
to time applicable to other executive officers of the Bank. The
Executive's salary may be increased from time to time during the term of
this Agreement in the sole discretion of the Board of Directors of the
Bank, but Executive's salary shall not be reduced below the level then in
effect. In addition, Executive shall be entitled to participate in
incentive compensation plans as may from time to time be established by
the Company or the Bank on an equivalent basis as other executive officers
of the Company or the Bank (but recognizing differences in
responsibilities among executive officers). All directors and committee
meeting fees in respect to the Company and the Bank received by Executive
shall be included along with his salary for purposes of computing any
amount to which he may become entitled under any bonus or similar plan of
the Company and the Bank.
1.4 Benefits.
(a) Executive shall be provided the following additional benefits,
(i) participation in any pension, profit-sharing, deferred compensation or
other retirement plan, (ii) medical, dental and life insurance coverage
consistent with coverages provided to other executive officers of the Bank
(which initially will include a 30% co-pay by the Executive), (iii) the
use of an automobile and membership or appropriate affiliation with a
service club and a recreational club, (iv) reimbursement of business
expenses reasonably incurred in connection with his employment and
expenses incurred by his spouse when accompanying Executive, (v) paid
vacations and sick leave in accordance with prevailing policies of the
Bank, provided that allowed vacations shall in no event be less than five
weeks per annum, and (vi) such other benefits as are provided to other
executive officers of the Bank; provided that amounts allocated to
Executive's personal use under clause (iii) above and additional charges
for Executive's spouse pursuant to clause (iv) above shall be treated as
taxable income to Executive in accordance with applicable Bank policies.
(b) If Executive shall become temporarily disabled or
incapacitated to the extent that he is unable to perform the duties of
Chairman of the Board of the Company or the Bank for three (3) consecutive
months, he shall nevertheless be entitled to receive 100 percent of his
compensation under Section 1.3 of this Agreement for the period of his
disability up to three (3) months, less any amount paid to the Executive
under any other disability program maintained by the Company or the Bank
or disability insurance policy maintained for the benefit of Executive by
the Company or the Bank. Upon returning to active full-time employment,
Executive's full compensation as set forth in this Agreement shall be
reinstated. In the event that Executive returns to active employment on
other than a full-time basis with the approval of the Board of Directors
of the Bank, then his compensation (as set forth in Section 1.3 of this
Agreement) shall be reduced proportionately based upon the fraction of
full-time employment devoted by Executive to his employment and
responsibilities at the Bank and the Company. But, if he is again unable
to perform the duties of Chairman of the Board of the Company and the Bank
hereunder due to disability or incapacity, he must have been engaged in
active full-time employment for at least twelve (12) consecutive months
immediately prior to such later absence or inability in order to qualify
for the full or partial continuance of his salary under this Section (b).
(c) It is the intention of the Company that, within 30 days after
the date of this Agreement, the Company shall cause 10,000 non-tax-
qualified stock options (exercisable for shares of the Company's common
stock) to be granted to Executive. The 10,000 stock options provided for
in this Section 1.4(c) shall be granted by the personnel committee of the
Company under the terms of the Company's 1993 Stock Option and Incentive
Plan and shall vest ratably over a five year period beginning from the
date of their grant and any unvested options shall vest immediately upon
Executive's termination of employment on October 31, 1999.
1.5 Covenant Not to Compete.
Executive acknowledges that the Company and the Bank would be
substantially damaged by an association of Executive with a depository
institution that competes for customers with the Company and the Bank.
Without the consent of the Company, Executive shall not at any time during
the term of this Agreement or Executive's employment by the Bank, and for
a period of one year thereafter (regardless of the reason for
termination), (i) on behalf of himself or as agent of any other person
solicit any person who was a customer of the Company or the Bank or any of
their subsidiaries during the two year period prior to the termination of
this Agreement or Executive's employment hereunder for the purpose of
offering the same products or rendering the same services to such customer
as were provided or proposed to be provided by the Company or the Bank or
any of their subsidiaries to such customer as of the time of termination
of Executive's employment, (ii) directly or indirectly, on Executive's
behalf or in the service or on the behalf of others, render or be retained
to render similar services as described in Section 1.2 hereof, whether as
an officer, partner, trustee, consultant, or employee for any depository
institution, which has a banking office located within 10 miles of any
office of the Bank or any banking office of the Company in existence as of
the Commencement Date, provided, however, that Executive shall not be
deemed to have breached this undertaking if (a) he renders services
otherwise prohibited by this paragraph (ii) for a depository institution
which has its home office located outside of the Wisconsin counties of
Winnebago and Outagamie and he renders such services from a full-service
banking office of such depository institution which is located outside
these same Wisconsin counties, or (b) his sole relationship with any other
such entity consists of his holding, directly or indirectly, an equity
interest in such entity not greater than three percent (3%) of such
entity's outstanding equity interest, or (iii) actively induce or solicit
any employees of the Company or the Bank to leave such employ. For
purposes of this Section 1.5, "person" shall include any individual,
corporation, partnership, trust, firm, proprietorship, venture or other
entity of any nature whatsoever.
ARTICLE II
TERMINATION OF EMPLOYMENT
2.1 Voluntary Termination of Employment by Executive.
Executive may terminate his employment hereunder at any time for any
reason upon giving the Bank written notice, at least ninety (90) days
prior to termination of employment. Upon such termination, Executive
shall be entitled to receive Executive's theretofore unpaid base salary in
effect at the date such written notice is given for the period of
employment up to the date of termination, and Executive and his spouse
and dependents will be entitled to further medical coverage, at his and/or
their expense, to the extent required by COBRA.
2.2 Termination of Employment for Death.
If Executive's employment is terminated by reason of Executive's
death, then Executive's personal representative shall be entitled to
receive Executive's theretofore unpaid base salary for the period of
employment up to the date of death. Executive's spouse and dependent
children shall continue to be entitled, at the expense of the Bank
(subject to then existing co-payment features applicable under the Bank's
medical insurance plan) if it is an insured plan, to further medical
coverage to the extent permitted by COBRA; provided that, if the Bank's
plan is not insured, the Bank will pay to Executive's spouse an additional
monthly death benefit during the applicable COBRA period, based upon COBRA
rates in effect at the time of Executive's death, in an amount equal to
the COBRA rate plus taxes due on such cash payment; provided further that
this benefit shall cease if the spouse and dependents cease to be eligible
for COBRA coverage.
2.3 Termination of Employment for Disability.
If Executive becomes Totally and Permanently Disabled (as defined
below) during the term of this Agreement, the Bank may terminate
Executive's employment and this Agreement, except Section 1.5 and Article
IV hereof, by giving Executive written notice of such termination not less
than 5 days before the effective date thereof. If Executive's employment
and this Agreement are terminated pursuant to this Section 2.3, the Bank
shall pay to Executive his theretofore unpaid base salary for the period
of employment up to the date of termination, and the Company and the Bank
shall have no further obligations to Executive under this Agreement,
except for any COBRA obligations. The Executive is Totally and
Permanently Disabled for purposes of this Section 2.3 if he is disabled or
incapacitated to the extent that he is unable to perform the duties of
Chairman of the Board of the Company or the Bank for more than three (3)
consecutive months, and such disability or incapacity (i) is expected to
continue for more than three (3) additional months as certified by a
medical doctor of the Company's choosing which is not contradicted by a
doctor of the Executive's choosing or (ii) shall have in fact continued
for more than three (3) additional months.
2.4 Termination of Employment by the Company for Just Cause.
The Bank may terminate Executive's employment hereunder for Just
Cause (as such term is defined below), in which case the Executive shall
be entitled to receive Executive's theretofore unpaid base salary for the
period of employment up to the date of termination, but shall not be
entitled to any compensation or employment benefits pursuant to this
Agreement for any period after the date of termination, or the
continuation of any benefits except as may be required by law, including,
at his own expense, COBRA.
"Just Cause" shall mean personal dishonesty, incompetence, willful
misconduct or breach of a fiduciary duty involving personal profit in the
performance of his duties under this Agreement, intentional failure to
perform stated duties (provided that such nonperformance has continued for
10 days after the Bank has given written notice of such nonperformance to
the Executive and its intention to terminate Executive's employment
hereunder because of such nonperformance), willful violation of any law,
rule or regulation (other than a law, rule or regulation relating to a
traffic violation or similar offense), final cease-and-desist order,
termination under the provisions of Section 2.7(b) and (c) or material
breach of any provision of this Agreement.
2.5 Termination of Employment by the Bank Without Cause.
The Bank may terminate Executive's employment hereunder without
cause, in which case the Executive shall receive (a) his base salary under
Section 1.3 hereof through the then remaining term of employment under
Section 1.1, (b) his theretofore unpaid base salary for the period of
employment up to the date of termination, (c) medical, dental and life
insurance through the then remaining term of employment under Section 1.1
consistent with the terms and conditions set forth in Section 1.4, to the
extent the same can be provided under the insurance arrangements of the
Bank in effect at the time of termination, (d) any other benefits to which
Executive is entitled by law or the specific terms of the Bank's policies
in effect at the time of termination of employment and (e) an amount equal
to the product of the Bank's annual aggregate contribution, for the
benefit of the Executive in the fiscal year preceding termination, to all
qualified retirement plans in which the Executive participated multiplied
by the number of years in the term of employment under Section 1.1. The
benefit in (e) under this Section 2.5 shall be in addition to any benefit
payable from any qualified or non-qualified plans or programs maintained
by the Company or the Bank at the time of termination. If the Bank's
medical and dental plans are not insured, the medical and dental benefit
in (c) shall be accomplished by the Bank paying to Executive an additional
cash amount equal to the COBRA premium for such coverage, plus taxes on
such amount, so that Executive may purchase the coverage on an after-tax
basis.
2.6 Definition of Termination of Employment.
The terms "termination" or "involuntarily terminated" in this
Agreement shall refer to the termination of the employment of Executive by
the Bank without his express written consent. In addition, for purposes
of this Agreement, a material diminution or interference with the
Executive's duties, responsibilities and benefits as Chairman of the Board
of the Company or the Bank shall be deemed and shall constitute an
involuntary termination of employment to the same extent as express notice
of such involuntary termination. By way of example and not by way of
limitation, any of the following actions, if unreasonable or materially
adverse to the Executive shall constitute such diminution or interference
unless consented to in writing by the Executive: (1) a change in the
principal work place of the Executive to a location outside a twenty-five
mile radius from the Company's headquarters at 420 South Koeller Street,
Oshkosh, Wisconsin; (2) a material reduction in the secretarial or other
administrative support of the Executive; (3) a material demotion of the
Executive, a material reduction in the number or seniority of other
Company or Bank personnel reporting to the Executive, or a reduction in
the frequency with which, or in the nature of the matters with respect to
which, such personnel are to report to the Executive, other than as part
of a Company-wide or Bank-wide reduction in staff; and (4) a reduction or
adverse change in the salary, perquisites, benefits, contingent benefits
or vacation time which had theretofore been provided to the Executive,
other than as part of an overall program applied uniformly and with
equitable effect to all executive officers of the Company or the Bank.
2.7 Termination or Suspension of Employment as Required by Law.
Notwithstanding anything in this Agreement to the contrary, the
following provisions shall limit the obligation of the Bank to continue
employing Executive, but only to the extent required by the applicable
regulations of the OTS (12 C.F.R. Section 563.39), or similar succeeding
regulations:
(a) If the Executive is suspended and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(3) and (g)(1)) the Bank's obligations under this
Agreement shall be suspended as of the date of service of notice, unless
stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Bank may in its discretion (i) pay the Executive all or
part of the compensation withheld while its contract obligations hereunder
were suspended and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.
(b) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(4) or (g)(1)) all obligations of the Bank under
this Agreement shall terminate as of the effective date of the order.
(c) If the Bank is in default (as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act), the obligation to Executive hereunder
shall terminate as of the date of default.
(d) All obligations under this Agreement may be terminated: (i)
by the Director of the Office of Thrift Supervision (the "Director") or
his or her designee at the time the Federal Deposit Insurance Company
enters into an agreement to provide assistance to or on behalf of the Bank
under the authority contained in Section 13(c) of the Federal Deposit
Insurance Act and (ii) by the Director, or his or her designee at the time
the Director or such designee approves a supervisory merger to resolve
problems related to operation of the Bank or when the Bank is determined
by the Director to be in an unsafe or unsound condition.
(e) Termination pursuant to subparagraph (d) of this Section 2.7
shall be treated as a termination by the Bank without cause entitling
Executive to benefits payable under Section 2.5. Termination pursuant to
subparagraph (a), (b) or (c) shall be treated as a termination for Just
Cause under Section 2.4. Termination under this Section 2.7 shall not
affect other rights hereunder which are vested at the time of termination.
2.8 Limitation on Termination or Disability Pay.
Any payments made to the Executive pursuant to this Agreement or
otherwise are subject to and conditioned upon their compliance with 12
U.S.C. Section 1828(k) and any regulations promulgated thereunder.
ARTICLE III
LEGAL FEES AND EXPENSES
The Company shall pay, or shall cause the Bank to pay, all legal fees
and expenses which the Executive may incur as a result of the Company or
the Bank contesting the validity or enforceability of this Agreement,
provided that the Executive is the prevailing party in such contest or
that any dispute may otherwise be settled in favor of the Executive. The
Executive shall be entitled to receive interest thereon for the period of
any delay in payment from the date such payment was due at the rate
determined by adding two hundred basis points to the six-month Treasury
Bill rate.
ARTICLE IV
CONFIDENTIALITY
Executive acknowledges that he now has, and in the course of his
employment will have, access to important and confidential information
regarding the business and services of the Company, the Bank and their
subsidiaries, as well as similar information regarding OSB Financial and
its subsidiaries and that the disclosure to, or the use of such
information by, and business in competition with the Company, the Bank or
their subsidiaries shall result in substantial and undeterminable harm to
the Company, the Bank and their subsidiaries. In order to protect the
Company, the Bank and their subsidiaries against such harm and from unfair
competition, Executive agrees with the Company and the Bank that while
employed by the Bank and at any time thereafter, Executive will not
disclose, communicate or divulge to anyone, or use in any manner adverse
to the Company, the Bank or their subsidiaries any information concerning
customers, methods of business, financial information or other
confidential information of the Company, the Bank, their subsidiaries or
similar information regarding OSB Financial and its subsidiaries, except
for information as is in the public domain or ascertainable through common
sources of public information (otherwise than as a result of any breach of
this covenant by Executive).
ARTICLE V
GENERAL PROVISIONS
5.1 Inquiries Regarding Proposed Activities.
In the event Executive shall inquire in writing of the Company
whether any proposed action on the part of Executive would be considered
by the Company or the Bank to be prohibited by or in breach of the terms
of this Agreement, the Company shall have 30 days after receipt of such
notice to express in writing to Executive its position with respect
thereof and in the event such writing shall not be given to Executive,
such proposed action, as set forth in the writing of the Executive, shall
not be deemed to be a violation of or breach of this Agreement.
5.2 No Duty of Mitigation.
The Executive shall not be required to mitigate the amount of any
payment or benefit provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or benefit
provided for in this Agreement be reduced by any compensation earned by
the Executive as the result of employment by another employer, by
retirement benefits after the date of termination of this Agreement or
otherwise.
5.3 Successors.
This Agreement may be assigned by the Company or the Bank to any
other business entity that is directly or indirectly controlled by the
Company or the Bank. This Agreement may not be assigned by the Company or
the Bank except in connection with a merger involving the Company or the
Bank or a sale of substantially all of the assets of the Company or the
Bank, and the respective obligations of the Company and the Bank provided
for in this Agreement shall be the binding legal obligations of any
successor to the Company or the Bank by purchase, merger, consolidation,
or otherwise. This Agreement may not be assigned by the Executive during
his life, and upon his death will be binding upon and inure to the benefit
of his heirs, legatees and the legal representatives of his estate.
5.4 Notice.
For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or sent
by certified mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth on the signature page of this Agreement
(provided that all notices to the Company and the Bank shall be directed
to the attention of the Board of Directors of the Company and/or the Bank,
as the case may be, with a copy to the Secretary of the Company and/or the
Bank, as the case may be), or to such other address as either party may
have furnished to the other in writing in accordance herewith.
5.5 Amendments.
No amendment or additions to this Agreement shall be binding unless
in writing and signed by all parties, except as herein otherwise provided.
5.6 Severability.
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
5.7 Governing Law.
This Agreement shall be governed by the laws of the United States to
the extent applicable and otherwise by the internal laws of the State of
Wisconsin.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
FCB FINANCIAL CORP.
By:
Its:
Address: ______________________
______________________
______________________
FOX CITIES BANK, F.S.B.
By:
Its:
Address: ______________________
______________________
______________________
EXECUTIVE
Donald D. Parker
Address: ______________________
______________________
______________________
Exhibit H
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
this ____ day of _____, 1997 between FCB Financial Corp., a Wisconsin
corporation (the "Company"), Fox Cities Bank, F.S.B., a federal savings
bank which is wholly-owned by the Company (the "Bank") and Phillip J.
Schoofs (the "Executive").
WHEREAS, the Company and OSB Financial Corp. ("OSB Financial")
entered into an Agreement and Plan of Merger, dated _______, 1996 (the
"Merger Agreement"), providing for the combination of the Company and OSB
Financial Corp. and a concurrent combination of the Bank and Oshkosh
Savings Bank, F.S.B. ("OSB Bank") in a strategic merger, wherein the
Company and the Bank survive the merger (collectively, the "Merger");
WHEREAS, prior to the Merger, the Bank employed the Executive
as Vice President - Finance/Treasurer of the Bank;
WHEREAS, consummation of the Merger contemplated by the Merger
Agreement is conditioned upon the Company, the Bank and the Executive
entering into an Employment Agreement conforming to the terms hereof;
WHEREAS, Executive's skills and extensive experience and
knowledge in the financial institutions industry will substantially
benefit the Company and the Bank; and
WHEREAS, the Company and the Bank desire to retain the
services of Executive in connection with the business activities of the
Company and the Bank following the Merger.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, it is
agreed as follows:
ARTICLE I
EMPLOYMENT
1.1 Term of Employment.
The Bank hereby employs Executive for an initial period of fifteen
(15) months commencing on _______, 1997 (the "Commencement Date") and
terminating on ________, 1998 (the "Initial Termination Date"), subject to
earlier termination as provided in Article II hereof. The Board of
Directors of the Bank shall review and may extend the term of this
Agreement for a period of one (1) additional year beginning on the Initial
Termination Date and in each subsequent year thereafter for a period of
one (1) additional year. Any extensions of the term of this Agreement
shall be made by giving Executive written notice of such extension at
least 90 days prior to the Initial Termination Date or the expiration of
any renewal period. Reference herein to the term of this Agreement shall
refer to both the initial term and such extended terms.
1.2 Duties of Executive.
The Bank hereby employs Executive, and Executive hereby accepts
employment with the Bank, upon the terms and conditions hereinafter set
forth for the term of this Agreement. Executive is employed by the Bank
to perform the duties of Vice President, Treasurer and Chief Financial
Officer of the Bank, and the Company shall cause the Bank to appoint
Executive to such position. As part of Executive's employment by the
Bank hereunder, Executive shall also serve as, and the Company hereby
appoints Executive during the term of his employment by the Bank hereunder
to serve as, Vice President, Treasurer and Chief Financial Officer of the
Company. The services to be performed by the Executive shall include
those normally performed by the Vice President, Treasurer and Chief
Financial Officer of similar banking organizations and as directed by the
Board of Directors of the Company and the Bank, respectively, which are
not inconsistent with the foregoing. Executive agrees to devote his full
business time to the rendition of such services, subject to absences for
customary vacations and for temporary illnesses. The Company and the Bank
each agree that during the term of this Agreement it will not reduce the
Executive's current job title, status or responsibilities without the
Executive's consent. Furthermore, Executive shall not be required,
without his express written consent, to be based anywhere other than
within the Oshkosh-Neenah/Menasha-Appleton metropolitan area, except for
reasonable business travel in connection with the business of the Company
and the Bank.
1.3 Compensation.
The Bank agrees to compensate, and the Company agrees to cause the
Bank to compensate, the Executive for his services hereunder during the
term of this Agreement by payment of a salary at the annual rate of
$75,000 in such monthly, semi-monthly or other payments as are from time
to time applicable to other executive officers of the Bank. The
Executive's salary may be increased from time to time during the term of
this Agreement in the sole discretion of the Board of Directors of the
Bank, but Executive's salary shall not be reduced below the level then in
effect. In addition, Executive shall be entitled to participate in
incentive compensation plans as may from time to time be established by
the Company or the Bank on an equivalent basis as other executive officers
of the Company or the Bank (but recognizing differences in
responsibilities among executive officers).
1.4 Benefits.
(a) Executive shall be provided the following additional benefits,
(i) participation in any pension, profit-sharing, deferred compensation or
other retirement plan, (ii) medical, dental and life insurance coverage
consistent with coverages provided to other executive officers of the Bank
(which initially will include a 30% co-pay by the Executive), (iii)
membership or appropriate affiliation with a recreational club, (iv)
reimbursement of business expenses reasonably incurred in connection with
his employment and expenses incurred by his spouse when accompanying
Executive, (v) paid vacations and sick leave in accordance with prevailing
policies of the Bank, provided that allowed vacations shall in no event be
less than three weeks per annum, and (vi) such other benefits as are
provided to other executive officers of the Bank; provided that amounts
allocated to Executive's personal use under clause (iii) above and
additional charges for Executive's spouse pursuant to clause (iv) above
shall be treated as taxable income to Executive in accordance with
applicable Bank policies.
(b) If Executive shall become temporarily disabled or
incapacitated to the extent that he is unable to perform the duties of
Vice President, Treasurer and Chief Financial Officer of the Company or
the Bank for three (3) consecutive months, he shall nevertheless be
entitled to receive 100 percent of his compensation under Section 1.3 of
this Agreement for the period of his disability up to three (3) months,
less any amount paid to the Executive under any other disability program
maintained by the Company or the Bank or disability insurance policy
maintained for the benefit of Executive by the Company or the Bank. Upon
returning to active full-time employment, Executive's full compensation as
set forth in this Agreement shall be reinstated. In the event that
Executive returns to active employment on other than a full-time basis
with the approval of the Board of Directors of the Bank, then his
compensation (as set forth in Section 1.3 of this Agreement) shall be
reduced proportionately based upon the fraction of full-time employment
devoted by Executive to his employment and responsibilities at the Bank
and the Company. But, if he is again unable to perform the duties of Vice
President, Treasurer and Chief Financial Officer of the Company and the
Bank hereunder due to disability or incapacity, he must have been engaged
in active full-time employment for at least twelve (12) consecutive months
immediately prior to such later absence or inability in order to qualify
for the full or partial continuance of his salary under this Section (b).
(c) It is the intention of the Company that, within 30 days after
the date of this Agreement, the Company shall cause 7,500 non-tax-
qualified stock options (exercisable for shares of the Company's common
stock) to be granted to Executive. The 7,500 stock options provided for
in this Section 1.4(c) shall be granted by the personnel committee of the
Company under the terms of the Company's 1993 Stock Option and Incentive
Plan and shall vest ratably over a five year period beginning from the
date of their grant.
1.5 Covenant Not to Compete.
Executive acknowledges that the Company and the Bank would be
substantially damaged by an association of Executive with a depository
institution that competes for customers with the Company and the Bank.
Without the consent of the Company, Executive shall not at any time during
the term of this Agreement or Executive's employment by the Bank, and for
a period of one year thereafter (regardless of the reason for
termination), (i) on behalf of himself or as agent of any other person
solicit any person who was a customer of the Company or the Bank or any of
their subsidiaries during the two year period prior to the termination of
this Agreement or Executive's employment hereunder for the purpose of
offering the same products or rendering the same services to such customer
as were provided or proposed to be provided by the Company or the Bank or
any of their subsidiaries to such customer as of the time of termination
of Executive's employment, or (ii) actively induce or solicit any
employees of the Company or the Bank to leave such employ. For purposes
of this Section 1.5, "person" shall include any individual, corporation,
partnership, trust, firm, proprietorship, venture or other entity of any
nature whatsoever.
ARTICLE II
TERMINATION OF EMPLOYMENT
2.1 Voluntary Termination of Employment by Executive.
Executive may terminate his employment hereunder at any time for any
reason upon giving the Bank written notice, at least ninety (90) days
prior to termination of employment. Upon such termination, Executive
shall be entitled to receive Executive's theretofore unpaid base salary in
effect at the date such written notice is given for the period of
employment up to the date of termination, and Executive and his spouse
and dependents will be entitled to further medical coverage, at his and/or
their expense, to the extent required by COBRA.
2.2 Termination of Employment for Death.
If Executive's employment is terminated by reason of Executive's
death, then Executive's personal representative shall be entitled to
receive Executive's theretofore unpaid base salary for the period of
employment up to the date of death. Executive's spouse and dependent
children shall continue to be entitled, at the expense of the Bank
(subject to then existing co-payment features applicable under the Bank's
medical insurance plan) if it is an insured plan, to further medical
coverage to the extent permitted by COBRA; provided that, if the Bank's
plan is not insured, the Bank will pay to Executive's spouse an additional
monthly death benefit during the applicable COBRA period, based upon COBRA
rates in effect at the time of Executive's death, in an amount equal to
the COBRA rate plus taxes due on such cash payment; provided further that
this benefit shall cease if the spouse and dependents cease to be eligible
for COBRA coverage.
2.3 Termination of Employment for Disability.
If Executive becomes Totally and Permanently Disabled (as defined
below) during the term of this Agreement, the Bank may terminate
Executive's employment and this Agreement, except Section 1.5 and Article
IV hereof, by giving Executive written notice of such termination not less
than 5 days before the effective date thereof. If Executive's employment
and this Agreement are terminated pursuant to this Section 2.3, the Bank
shall pay to Executive his theretofore unpaid base salary for the period
of employment up to the date of termination, and the Company and the Bank
shall have no further obligations to Executive under this Agreement,
except for any COBRA obligations. The Executive is Totally and
Permanently Disabled for purposes of this Section 2.3 if he is disabled or
incapacitated to the extent that he is unable to perform the duties of
Vice President, Treasurer and Chief Financial Officer of the Company or
the Bank for more than three (3) consecutive months, and such disability
or incapacity (i) is expected to continue for more than three (3)
additional months as certified by a medical doctor of the Company's
choosing which is not contradicted by a doctor of the Executive's choosing
or (ii) shall have in fact continued for more than three (3) additional
months.
2.4 Termination of Employment by the Company for Just Cause.
The Bank may terminate Executive's employment hereunder for Just
Cause (as such term is defined below), in which case the Executive shall
be entitled to receive Executive's theretofore unpaid base salary for the
period of employment up to the date of termination, but shall not be
entitled to any compensation or employment benefits pursuant to this
Agreement for any period after the date of termination, or the
continuation of any benefits except as may be required by law, including,
at his own expense, COBRA.
"Just Cause" shall mean personal dishonesty, incompetence, willful
misconduct or breach of a fiduciary duty involving personal profit in the
performance of his duties under this Agreement, intentional failure to
perform stated duties (provided that such nonperformance has continued for
10 days after the Bank has given written notice of such nonperformance to
the Executive and its intention to terminate Executive's employment
hereunder because of such nonperformance), willful violation of any law,
rule or regulation (other than a law, rule or regulation relating to a
traffic violation or similar offense), final cease-and-desist order,
termination under the provisions of Section 2.7(b) and (c) or material
breach of any provision of this Agreement.
2.5 Termination of Employment by the Bank Without Cause.
The Bank may terminate Executive's employment hereunder without
cause, in which case the Executive shall receive (a) his base salary under
Section 1.3 hereof through the then remaining term of employment under
Section 1.1, (b) his theretofore unpaid base salary for the period of
employment up to the date of termination, (c) medical, dental and life
insurance through the then remaining term of employment under Section 1.1
consistent with the terms and conditions set forth in Section 1.4, to the
extent the same can be provided under the insurance arrangements of the
Bank in effect at the time of termination, (d) any other benefits to which
Executive is entitled by law or the specific terms of the Bank's policies
in effect at the time of termination of employment and (e) an amount equal
to the product of the Bank's annual aggregate contribution, for the
benefit of the Executive in the fiscal year preceding termination, to all
qualified retirement plans in which the Executive participated multiplied
by the number of years in the initial term of employment under Section
1.1. The benefit in (e) under this Section 2.5 shall be in addition to
any benefit payable from any qualified or non-qualified plans or programs
maintained by the Company or the Bank at the time of termination. If the
Bank's medical and dental plans are not insured, the medical and dental
benefit in (c) shall be accomplished by the Bank paying to Executive an
additional cash amount equal to the COBRA premium for such coverage, plus
taxes on such amount, so that Executive may purchase the coverage on an
after-tax basis.
2.6 Termination of Employment Due to Change in Control.
(a) If, at any time after the date hereof, a "Change in Control"
(as hereinafter defined) occurs and within eighteen (18) months thereafter
Executive's appointment as Vice President, Treasurer and Chief Financial
Officer of the Company or his employment as Vice President, Treasurer and
Chief Financial Officer of the Bank is involuntarily terminated (other
than for Just Cause pursuant to Section 2.4) then the Executive shall be
entitled to the benefits provided below.
(i) The Company shall promptly pay, or cause the Bank to
pay, to the Executive an amount equal to the product of 2.0 times the
Executive's "base amount" as defined in Section 280G(b)(3) of the Code
(such "base amount" to be derived from Executive's compensation paid by
the Company and the Bank).
(ii) During the term of this Agreement set forth in
paragraph 1.1 (including any renewal term), the Executive, his dependents,
beneficiaries and estate shall continue to be covered under all employee
benefit plans of the Company and the Bank, including without limitation
the Company's and the Bank's pension and retirement plans, life insurance
and health insurance as if the Executive was still employed by the Bank
during such period under this Agreement; provided that coverage under the
medical and dental plans of the Company and the Bank shall be handled as
set forth in Section 2.5 above.
(iii) If and to the extent that benefits or services credit
for benefits under Section 2.6(a)(ii) above shall not be payable or
provided under any such plans to the Executive, his dependents,
beneficiaries and estate, by reason of his no longer being an employee of
the Bank as a result of termination of employment, the Company shall
itself, or shall cause the Bank to, pay or provide for payment of such
benefits and service credit for benefits to the Executive, his dependents,
beneficiaries and estate. Any such payment relating to retirement shall
commence on a date selected by the Executive which must be a date on which
payments under the Company or Bank's qualified pension plan or successor
plan may commence.
(b) (i) Anything in this Agreement to the contrary
notwithstanding, it is the intention of the Company, the Bank and the
Executive that no portion of any payment under this Agreement, or payments
to or for the benefit of the Executive under any other agreement or plan,
be deemed an "Excess Parachute Payment" as defined in Section 280G of the
Code, or its successors. It is agreed that the present value of any
payment to or for the benefit of the Executive in the nature of
compensation, receipt of which is contingent on the occurrence of a Change
in Control, and to which Section 280G of the Code applies (in the
aggregate "Total Payments") shall not exceed an amount equal to one dollar
less than the maximum amount that the Company and the Bank may pay without
loss of deduction under Section 280(G)(a) of the Code. Present value for
purposes of this Agreement shall be calculated in accordance with Section
280G(d)(4) of the Code. Within sixty days (60) following the earlier of
(1) the giving of notice of termination of employment or (2) the giving of
notice by the Company to the Executive of its belief that there is a
payment or benefit due the Executive, the Company, at the Company's
expense, shall obtain the opinion of the Company's public accounting firm
(the "Accounting Firm"), which opinion need not be unqualified, which sets
forth: (a) the amount of the Base Period Income of the Executive (as
defined in Code Section 280G), (b) the present value of Total Payments and
(c) the amount and present value of any Excess Parachute Payments. In the
event that such opinion determines that there would be an Excess Parachute
Payment, the payment hereunder shall be modified, reduced or eliminated as
specified by the Executive in writing delivered to the Company within
thirty (30) days of his receipt of such opinion or, if the Executive fails
to so notify the Company, then as the Company shall reasonably determine,
so that under the bases of calculation set forth in such opinion there
will be no Excess Parachute Payment. In the event that the provisions of
Sections 280G and 4999 of the Code are repealed without succession, this
Section shall be of no further force or effect.
(ii) In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the
Change in Control, the Executive shall appoint another nationally
recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the
Accounting Firm under Section 2.6(b)). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any determination
by the Accounting Firm shall be binding upon the Company and the
Executive.
(c) For purposes of Section 2.6 of this Agreement, a "Change in
Control" shall be deemed to have occurred if:
(i) a third person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 (as in effect on
the date hereof), becomes the beneficial owner of shares of the Company
having 20% or more of the total number of votes that may be cast for the
election of directors of the Company, including for this purpose any
shares beneficially owned by such third person or group as of the date
hereof; or
(ii) as the result of, or in connection with, any cash
tender or exchange offer, merger or other business combination, sale of
assets or contested election, or any combination of the foregoing
transactions (a "Transaction"), the persons who were directors of the
Company before the Transaction shall cease to constitute a majority of the
Board of Directors of the Company or any successor to the Company. (In the
event of any reorganization involving the Company in a transaction
initiated by the Company in which the shareholders of the Company
immediately prior to such reorganization become the shareholders of a
successor or ultimate parent company of the Company resulting from such
reorganization and the persons who were directors of the Company
immediately prior to such reorganization constitute a majority of the
Board of Directors of such successor or ultimate parent, no "Change in
Control" shall be deemed to have taken place solely by reason of such
reorganization, notwithstanding the fact that the Company may have become
the wholly-owned subsidiary of another Company in such reorganization and
the Board of Directors thereof may have been reconstituted, and thereafter
the term "Company" for purposes of this paragraph shall refer to such
successor or ultimate parent company.); or
(iii) a third person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 (as in effect on
the date hereof), acquires control, as defined in 12 C.F.R. Section
574.4, or any successor regulation, of the Company which would require the
filing of an application for acquisition of control or notice of change in
control in a manner set forth in 12 C.F.R. Section 574.3, or any
successor regulation; or
(iv) The terms "termination" or "involuntarily terminated"
in this Agreement shall refer to the termination of the employment of
Executive by the Bank without his express written consent. In addition,
for purposes of this Agreement, a material diminution or interference
with the Executive's duties, responsibilities and benefits as Vice
President, Treasurer and Chief Financial Officer of the Company or the
Bank shall be deemed and shall constitute an involuntary termination of
employment to the same extent as express notice of such involuntary
termination. By way of example and not by way of limitation, any of the
following actions, if unreasonable or materially adverse to the Executive
shall constitute such diminution or interference unless consented to in
writing by the Executive: (1) a change in the principal work place of the
Executive to a location outside a twenty-five mile radius from the
Company's headquarters at 420 South Koeller Street, Oshkosh, Wisconsin;
(2) a material reduction in the secretarial or other administrative
support of the Executive; (3) a material demotion of the Executive, a
material reduction in the number or seniority of other Company or Bank
personnel reporting to the Executive, or a reduction in the frequency with
which, or in the nature of the matters with respect to which, such
personnel are to report to the Executive, other than as part of a Company-
wide or Bank-wide reduction in staff; and (4) a reduction or adverse
change in the salary, perquisites, benefits, contingent benefits or
vacation time which had theretofore been provided to the Executive, other
than as part of an overall program applied uniformly and with equitable
effect to all executive officers of the Company or the Bank.
2.7 Termination or Suspension of Employment as Required by Law.
Notwithstanding anything in this Agreement to the contrary, the
following provisions shall limit the obligation of the Bank to continue
employing Executive, but only to the extent required by the applicable
regulations of the OTS (12 C.F.R. Section 563.39), or similar succeeding
regulations:
(a) If the Executive is suspended and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(3) and (g)(1)) the Bank's obligations under this
Agreement shall be suspended as of the date of service of notice, unless
stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Bank may in its discretion (i) pay the Executive all or
part of the compensation withheld while its contract obligations hereunder
were suspended and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.
(b) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(4) or (g)(1)) all obligations of the Bank under
this Agreement shall terminate as of the effective date of the order.
(c) If the Bank is in default (as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act), the obligation to Executive hereunder
shall terminate as of the date of default.
(d) All obligations under this Agreement may be terminated: (i)
by the Director of the Office of Thrift Supervision (the "Director") or
his or her designee at the time the Federal Deposit Insurance Company
enters into an agreement to provide assistance to or on behalf of the Bank
under the authority contained in Section 13(c) of the Federal Deposit
Insurance Act and (ii) by the Director, or his or her designee at the time
the Director or such designee approves a supervisory merger to resolve
problems related to operation of the Bank or when the Bank is determined
by the Director to be in an unsafe or unsound condition.
(e) Termination pursuant to subparagraph (d) of this Section 2.7
shall be treated as a termination by the Bank without cause entitling
Executive to benefits payable under Section 2.5. Termination pursuant to
subparagraph (a), (b) or (c) shall be treated as a termination for Just
Cause under Section 2.4. Termination under this Section 2.7 shall not
affect other rights hereunder which are vested at the time of termination.
2.8 Limitation on Termination or Disability Pay.
Any payments made to the Executive pursuant to this Agreement or
otherwise are subject to and conditioned upon their compliance with 12
U.S.C. Section 1828(k) and any regulations promulgated thereunder.
ARTICLE III
LEGAL FEES AND EXPENSES
The Company shall pay, or shall cause the Bank to pay, all legal fees
and expenses which the Executive may incur as a result of the Company or
the Bank contesting the validity or enforceability of this Agreement,
provided that the Executive is the prevailing party in such contest or
that any dispute may otherwise be settled in favor of the Executive. The
Executive shall be entitled to receive interest thereon for the period of
any delay in payment from the date such payment was due at the rate
determined by adding two hundred basis points to the six-month Treasury
Bill rate.
ARTICLE IV
CONFIDENTIALITY
Executive acknowledges that he now has, and in the course of his
employment will have, access to important and confidential information
regarding the business and services of the Company, the Bank and their
subsidiaries, as well as similar information regarding OSB Financial and
its subsidiaries, and that the disclosure to, or the use of such
information by, and business in competition with the Company, the Bank or
their subsidiaries shall result in substantial and undeterminable harm to
the Company, the Bank and their subsidiaries. In order to protect the
Company, the Bank and their subsidiaries against such harm and from unfair
competition, Executive agrees with the Company and the Bank that while
employed by the Bank and at any time thereafter, Executive will not
disclose, communicate or divulge to anyone, or use in any manner adverse
to the Company, the Bank or their subsidiaries any information concerning
customers, methods of business, financial information or other
confidential information of the Company, the Bank, their subsidiaries or
similar information regarding OSB Financial and its subsidiaries, except
for information as is in the public domain or ascertainable through common
sources of public information (otherwise than as a result of any breach of
this covenant by Executive).
ARTICLE V
GENERAL PROVISIONS
5.1 Inquiries Regarding Proposed Activities.
In the event Executive shall inquire in writing of the Company
whether any proposed action on the part of Executive would be considered
by the Company or the Bank to be prohibited by or in breach of the terms
of this Agreement, the Company shall have 30 days after receipt of such
notice to express in writing to Executive its position with respect
thereof and in the event such writing shall not be given to Executive,
such proposed action, as set forth in the writing of the Executive, shall
not be deemed to be a violation of or breach of this Agreement.
5.2 No Duty of Mitigation.
The Executive shall not be required to mitigate the amount of any
payment or benefit provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or benefit
provided for in this Agreement be reduced by any compensation earned by
the Executive as the result of employment by another employer, by
retirement benefits after the date of termination of this Agreement or
otherwise.
5.3 Successors.
This Agreement may be assigned by the Company or the Bank to any
other business entity that is directly or indirectly controlled by the
Company or the Bank. This Agreement may not be assigned by the Company or
the Bank except in connection with a merger involving the Company or the
Bank or a sale of substantially all of the assets of the Company or the
Bank, and the respective obligations of the Company and the Bank provided
for in this Agreement shall be the binding legal obligations of any
successor to the Company or the Bank by purchase, merger, consolidation,
or otherwise. This Agreement may not be assigned by the Executive during
his life, and upon his death will be binding upon and inure to the benefit
of his heirs, legatees and the legal representatives of his estate.
5.4 Notice.
For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or sent
by certified mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth on the signature page of this Agreement
(provided that all notices to the Company and the Bank shall be directed
to the attention of the Board of Directors of the Company and/or the Bank,
as the case may be, with a copy to the Secretary of the Company and/or the
Bank, as the case may be), or to such other address as either party may
have furnished to the other in writing in accordance herewith.
5.5 Amendments.
No amendment or additions to this Agreement shall be binding unless
in writing and signed by all parties, except as herein otherwise provided.
5.6 Severability.
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
5.7 Governing Law.
This Agreement shall be governed by the laws of the United States to
the extent applicable and otherwise by the internal laws of the State of
Wisconsin.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
FCB FINANCIAL CORP.
By:
Its:
Address: ______________________
______________________
______________________
FOX CITIES BANK, F.S.B.
By:
Its:
Address: ______________________
______________________
______________________
EXECUTIVE
Phillip J. Schoofs
Address: ______________________
______________________
______________________
Exhibit I
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
this ____ day of _____, 1997 between FCB Financial Corp., a Wisconsin
corporation (the "Company"), Fox Cities Bank, F.S.B., a federal savings
bank which is wholly-owned by the Company (the "Bank") and Harold L.
Hermansen (the "Executive").
WHEREAS, the Company and OSB Financial Corp. ("OSB Financial")
entered into an Agreement and Plan of Merger, dated _______, 1996 (the
"Merger Agreement"), providing for the combination of the Company and OSB
Financial Corp. and a concurrent combination of the Bank and Oshkosh
Savings Bank, F.S.B. ("OSB Bank") in a strategic merger, wherein the
Company and the Bank survive the merger (collectively, the "Merger");
WHEREAS, prior to the Merger, the Bank employed the Executive
as Vice President - Lending/Secretary of the Bank;
WHEREAS, consummation of the Merger contemplated by the Merger
Agreement is conditioned upon the Company, the Bank and the Executive
entering into an Employment Agreement conforming to the terms hereof;
WHEREAS, Executive's skills and extensive experience and
knowledge in the financial institutions industry will substantially
benefit the Company and the Bank; and
WHEREAS, the Company and the Bank desire to retain the
services of Executive in connection with the business activities of the
Company and the Bank following the Merger.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, it is
agreed as follows:
ARTICLE I
EMPLOYMENT
1.1 Term of Employment.
The Bank hereby employs Executive for an initial period of fifteen
(15) months commencing on _______, 1997 (the "Commencement Date") and
terminating on _________, 1998 (the "Initial Termination Date"), subject
to earlier termination as provided in Article II hereof. The Board of
Directors of the Bank shall review and may extend the term of this
Agreement for a period of one (1) additional year beginning on the Initial
Termination Date and in each subsequent year thereafter for a period of
one (1) additional year. Any extensions of the term of this Agreement
shall be made by giving Executive written notice of such extension at
least 90 days prior to the Initial Termination Date or the expiration of
any renewal period. Reference herein to the term of this Agreement shall
refer to both the initial term and such extended terms.
1.2 Duties of Executive.
The Bank hereby employs Executive, and Executive hereby accepts
employment with the Bank, upon the terms and conditions hereinafter set
forth for the term of this Agreement. Executive is employed by the Bank
to perform the duties of Vice President - Retail Lending and Secretary of
the Bank, and the Company shall cause the Bank to appoint Executive to
such position. As part of Executive's employment by the Bank hereunder,
Executive shall also serve as, and the Company hereby appoints Executive
during the term of his employment by the Bank hereunder to serve as, Vice
President - Retail Lending and Secretary of the Company. The services to
be performed by the Executive shall include those normally performed by
the Vice President - Retail Lending and Secretary of similar banking
organizations and as directed by the Board of Directors of the Company and
the Bank, respectively, which are not inconsistent with the foregoing.
Executive agrees to devote his full business time to the rendition of such
services, subject to absences for customary vacations and for temporary
illnesses. The Company and the Bank each agree that during the term of
this Agreement it will not reduce the Executive's current job title,
status or responsibilities without the Executive's consent. Furthermore,
Executive shall not be required, without his express written consent, to
be based anywhere other than within the Oshkosh-Neenah/Menasha-Appleton
metropolitan area, except for reasonable business travel in connection
with the business of the Company and the Bank.
1.3 Compensation.
The Bank agrees to compensate, and the Company agrees to cause the
Bank to compensate, the Executive for his services hereunder during the
term of this Agreement by payment of a salary at the annual rate of
$70,000 in such monthly, semi-monthly or other payments as are from time
to time applicable to other executive officers of the Bank. The
Executive's salary may be increased from time to time during the term of
this Agreement in the sole discretion of the Board of Directors of the
Bank, but Executive's salary shall not be reduced below the level then in
effect. In addition, Executive shall be entitled to participate in
incentive compensation plans as may from time to time be established by
the Company or the Bank on an equivalent basis as other executive officers
of the Company or the Bank (but recognizing differences in
responsibilities among executive officers).
1.4 Benefits.
(a) Executive shall be provided the following additional benefits,
(i) participation in any pension, profit-sharing, deferred compensation or
other retirement plan, (ii) medical, dental and life insurance coverage
consistent with coverages provided to other executive officers of the Bank
(which initially will include a 30% co-pay by the Executive), (iii)
membership or appropriate affiliation with a recreational club, (iv)
reimbursement of business expenses reasonably incurred in connection with
his employment and expenses incurred by his spouse when accompanying
Executive, (v) paid vacations and sick leave in accordance with prevailing
policies of the Bank, provided that allowed vacations shall in no event be
less than three weeks per annum, and (vi) such other benefits as are
provided to other executive officers of the Bank; provided that amounts
allocated to Executive's personal use under clause (iii) above and
additional charges for Executive's spouse pursuant to clause (iv) above
shall be treated as taxable income to Executive in accordance with
applicable Bank policies.
(b) If Executive shall become temporarily disabled or
incapacitated to the extent that he is unable to perform the duties of
Vice President - Retail Lending and Secretary of the Company or the Bank
for three (3) consecutive months, he shall nevertheless be entitled to
receive 100 percent of his compensation under Section 1.3 of this
Agreement for the period of his disability up to three (3) months, less
any amount paid to the Executive under any other disability program
maintained by the Company or the Bank or disability insurance policy
maintained for the benefit of Executive by the Company or the Bank. Upon
returning to active full-time employment, Executive's full compensation as
set forth in this Agreement shall be reinstated. In the event that
Executive returns to active employment on other than a full-time basis
with the approval of the Board of Directors of the Bank, then his
compensation (as set forth in Section 1.3 of this Agreement) shall be
reduced proportionately based upon the fraction of full-time employment
devoted by Executive to his employment and responsibilities at the Bank
and the Company. But, if he is again unable to perform the duties of Vice
President - Retail Lending and Secretary of the Company and the Bank
hereunder due to disability or incapacity, he must have been engaged in
active full-time employment for at least twelve (12) consecutive months
immediately prior to such later absence or inability in order to qualify
for the full or partial continuance of his salary under this Section (b).
(c) It is the intention of the Company that, within 30 days after
the date of this Agreement, the Company shall cause 6,000 non-tax-
qualified stock options (exercisable for shares of the Company's common
stock) to be granted to Executive. The 6,000 stock options provided for
in this Section 1.4(c) shall be granted by the personnel committee of the
Company under the terms of the Company's 1993 Stock Option and Incentive
Plan and shall vest ratably over a five year period beginning from the
date of their grant.
1.5 Covenant Not to Compete.
Executive acknowledges that the Company and the Bank would be
substantially damaged by an association of Executive with a depository
institution that competes for customers with the Company and the Bank.
Without the consent of the Company, Executive shall not at any time during
the term of this Agreement or Executive's employment by the Bank, and for
a period of one year thereafter (regardless of the reason for
termination), (i) on behalf of himself or as agent of any other person
solicit any person who was a customer of the Company or the Bank or any of
their subsidiaries during the two year period prior to the termination of
this Agreement or Executive's employment hereunder for the purpose of
offering the same products or rendering the same services to such customer
as were provided or proposed to be provided by the Company or the Bank or
any of their subsidiaries to such customer as of the time of termination
of Executive's employment, or (ii) actively induce or solicit any
employees of the Company or the Bank to leave such employ. For purposes
of this Section 1.5, "person" shall include any individual, corporation,
partnership, trust, firm, proprietorship, venture or other entity of any
nature whatsoever.
ARTICLE II
TERMINATION OF EMPLOYMENT
2.1 Voluntary Termination of Employment by Executive.
Executive may terminate his employment hereunder at any time for any
reason upon giving the Bank written notice, at least ninety (90) days
prior to termination of employment. Upon such termination, Executive
shall be entitled to receive Executive's theretofore unpaid base salary in
effect at the date such written notice is given for the period of
employment up to the date of termination, and Executive and his spouse
and dependents will be entitled to further medical coverage, at his and/or
their expense, to the extent required by COBRA.
2.2 Termination of Employment for Death.
If Executive's employment is terminated by reason of Executive's
death, then Executive's personal representative shall be entitled to
receive Executive's theretofore unpaid base salary for the period of
employment up to the date of death. Executive's spouse and dependent
children shall continue to be entitled, at the expense of the Bank
(subject to then existing co-payment features applicable under the Bank's
medical insurance plan) if it is an insured plan, to further medical
coverage to the extent permitted by COBRA; provided that, if the Bank's
plan is not insured, the Bank will pay to Executive's spouse an additional
monthly death benefit during the applicable COBRA period, based upon COBRA
rates in effect at the time of Executive's death, in an amount equal to
the COBRA rate plus taxes due on such cash payment; provided further that
this benefit shall cease if the spouse and dependents cease to be eligible
for COBRA coverage.
2.3 Termination of Employment for Disability.
If Executive becomes Totally and Permanently Disabled (as defined
below) during the term of this Agreement, the Bank may terminate
Executive's employment and this Agreement, except Section 1.5 and Article
IV hereof, by giving Executive written notice of such termination not less
than 5 days before the effective date thereof. If Executive's employment
and this Agreement are terminated pursuant to this Section 2.3, the Bank
shall pay to Executive his theretofore unpaid base salary for the period
of employment up to the date of termination, and the Company and the Bank
shall have no further obligations to Executive under this Agreement,
except for any COBRA obligations. The Executive is Totally and
Permanently Disabled for purposes of this Section 2.3 if he is disabled or
incapacitated to the extent that he is unable to perform the duties of
Vice President - Retail Lending and Secretary of the Company or the Bank
for more than three (3) consecutive months, and such disability or
incapacity (i) is expected to continue for more than three (3) additional
months as certified by a medical doctor of the Company's choosing which is
not contradicted by a doctor of the Executive's choosing or (ii) shall
have in fact continued for more than three (3) additional months.
2.4 Termination of Employment by the Company for Just Cause.
The Bank may terminate Executive's employment hereunder for Just
Cause (as such term is defined below), in which case the Executive shall
be entitled to receive Executive's theretofore unpaid base salary for the
period of employment up to the date of termination, but shall not be
entitled to any compensation or employment benefits pursuant to this
Agreement for any period after the date of termination, or the
continuation of any benefits except as may be required by law, including,
at his own expense, COBRA.
"Just Cause" shall mean personal dishonesty, incompetence, willful
misconduct or breach of a fiduciary duty involving personal profit in the
performance of his duties under this Agreement, intentional failure to
perform stated duties (provided that such nonperformance has continued for
10 days after the Bank has given written notice of such nonperformance to
the Executive and its intention to terminate Executive's employment
hereunder because of such nonperformance), willful violation of any law,
rule or regulation (other than a law, rule or regulation relating to a
traffic violation or similar offense), final cease-and-desist order,
termination under the provisions of Section 2.7(b) and (c) or material
breach of any provision of this Agreement.
2.5 Termination of Employment by the Bank Without Cause.
The Bank may terminate Executive's employment hereunder without
cause, in which case the Executive shall receive (a) his base salary under
Section 1.3 hereof through the then remaining term of employment under
Section 1.1, (b) his theretofore unpaid base salary for the period of
employment up to the date of termination, (c) medical, dental and life
insurance through the then remaining term of employment under Section 1.1
consistent with the terms and conditions set forth in Section 1.4, to the
extent the same can be provided under the insurance arrangements of the
Bank in effect at the time of termination, (d) any other benefits to which
Executive is entitled by law or the specific terms of the Bank's policies
in effect at the time of termination of employment and (e) an amount equal
to the product of the Bank's annual aggregate contribution, for the
benefit of the Executive in the fiscal year preceding termination, to all
qualified retirement plans in which the Executive participated multiplied
by the number of years in the initial term of employment under Section
1.1. The benefit in (e) under this Section 2.5 shall be in addition to
any benefit payable from any qualified or non-qualified plans or programs
maintained by the Company or the Bank at the time of termination. If the
Bank's medical and dental plans are not insured, the medical and dental
benefit in (c) shall be accomplished by the Bank paying to Executive an
additional cash amount equal to the COBRA premium for such coverage, plus
taxes on such amount, so that Executive may purchase the coverage on an
after-tax basis.
2.6 Termination of Employment Due to Change in Control.
(a) If, at any time after the date hereof, a "Change in Control"
(as hereinafter defined) occurs and within eighteen (18) months thereafter
Executive's appointment as Vice President - Retail Lending and Secretary
of the Company or his employment as Vice President - Retail Lending and
Secretary of the Bank is involuntarily terminated (other than for Just
Cause pursuant to Section 2.4) then the Executive shall be entitled to the
benefits provided below.
(i) The Company shall promptly pay, or cause the Bank to
pay, to the Executive an amount equal to the product of 2.0 times the
Executive's "base amount" as defined in Section 280G(b)(3) of the Code
(such "base amount" to be derived from Executive's compensation paid by
the Company and the Bank).
(ii) During the term of this Agreement set forth in
paragraph 1.1 (including any renewal term), the Executive, his dependents,
beneficiaries and estate shall continue to be covered under all employee
benefit plans of the Company and the Bank, including without limitation
the Company's and the Bank's pension and retirement plans, life insurance
and health insurance as if the Executive was still employed by the Bank
during such period under this Agreement; provided that coverage under the
medical and dental plans of the Company and the Bank shall be handled as
set forth in Section 2.5 above.
(iii) If and to the extent that benefits or services credit
for benefits under Section 2.6(a)(ii) above shall not be payable or
provided under any such plans to the Executive, his dependents,
beneficiaries and estate, by reason of his no longer being an employee of
the Bank as a result of termination of employment, the Company shall
itself, or shall cause the Bank to, pay or provide for payment of such
benefits and service credit for benefits to the Executive, his dependents,
beneficiaries and estate. Any such payment relating to retirement shall
commence on a date selected by the Executive which must be a date on which
payments under the Company or Bank's qualified pension plan or successor
plan may commence.
(b) (i) Anything in this Agreement to the contrary
notwithstanding, it is the intention of the Company, the Bank and the
Executive that no portion of any payment under this Agreement, or payments
to or for the benefit of the Executive under any other agreement or plan,
be deemed an "Excess Parachute Payment" as defined in Section 280G of the
Code, or its successors. It is agreed that the present value of any
payment to or for the benefit of the Executive in the nature of
compensation, receipt of which is contingent on the occurrence of a Change
in Control, and to which Section 280G of the Code applies (in the
aggregate "Total Payments") shall not exceed an amount equal to one dollar
less than the maximum amount that the Company and the Bank may pay without
loss of deduction under Section 280(G)(a) of the Code. Present value for
purposes of this Agreement shall be calculated in accordance with Section
280G(d)(4) of the Code. Within sixty days (60) following the earlier of
(1) the giving of notice of termination of employment or (2) the giving of
notice by the Company to the Executive of its belief that there is a
payment or benefit due the Executive, the Company, at the Company's
expense, shall obtain the opinion of the Company's public accounting firm
(the "Accounting Firm"), which opinion need not be unqualified, which sets
forth: (a) the amount of the Base Period Income of the Executive (as
defined in Code Section 280G), (b) the present value of Total Payments and
(c) the amount and present value of any Excess Parachute Payments. In the
event that such opinion determines that there would be an Excess Parachute
Payment, the payment hereunder shall be modified, reduced or eliminated as
specified by the Executive in writing delivered to the Company within
thirty (30) days of his receipt of such opinion or, if the Executive fails
to so notify the Company, then as the Company shall reasonably determine,
so that under the bases of calculation set forth in such opinion there
will be no Excess Parachute Payment. In the event that the provisions of
Sections 280G and 4999 of the Code are repealed without succession, this
Section shall be of no further force or effect.
(ii) In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the
Change in Control, the Executive shall appoint another nationally
recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the
Accounting Firm under Section 2.6(b)). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any determination
by the Accounting Firm shall be binding upon the Company and the
Executive.
(c) For purposes of Section 2.6 of this Agreement, a "Change in
Control" shall be deemed to have occurred if:
(i) a third person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 (as in effect on
the date hereof), becomes the beneficial owner of shares of the Company
having 20% or more of the total number of votes that may be cast for the
election of directors of the Company, including for this purpose any
shares beneficially owned by such third person or group as of the date
hereof; or
(ii) as the result of, or in connection with, any cash
tender or exchange offer, merger or other business combination, sale of
assets or contested election, or any combination of the foregoing
transactions (a "Transaction"), the persons who were directors of the
Company before the Transaction shall cease to constitute a majority of the
Board of Directors of the Company or any successor to the Company. (In the
event of any reorganization involving the Company in a transaction
initiated by the Company in which the shareholders of the Company
immediately prior to such reorganization become the shareholders of a
successor or ultimate parent company of the Company resulting from such
reorganization and the persons who were directors of the Company
immediately prior to such reorganization constitute a majority of the
Board of Directors of such successor or ultimate parent, no "Change in
Control" shall be deemed to have taken place solely by reason of such
reorganization, notwithstanding the fact that the Company may have become
the wholly-owned subsidiary of another Company in such reorganization and
the Board of Directors thereof may have been reconstituted, and thereafter
the term "Company" for purposes of this paragraph shall refer to such
successor or ultimate parent company.); or
(iii) a third person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 (as in effect on
the date hereof), acquires control, as defined in 12 C.F.R. Section
574.4, or any successor regulation, of the Company which would require the
filing of an application for acquisition of control or notice of change in
control in a manner set forth in 12 C.F.R. Section 574.3, or any
successor regulation; or
(iv) The terms "termination" or "involuntarily terminated"
in this Agreement shall refer to the termination of the employment of
Executive by the Bank without his express written consent. In addition,
for purposes of this Agreement, a material diminution or interference
with the Executive's duties, responsibilities and benefits as Vice
President - Retail Lending and Secretary of the Company or the Bank shall
be deemed and shall constitute an involuntary termination of employment to
the same extent as express notice of such involuntary termination. By way
of example and not by way of limitation, any of the following actions, if
unreasonable or materially adverse to the Executive shall constitute such
diminution or interference unless consented to in writing by the
Executive: (1) a change in the principal work place of the Executive to a
location outside a twenty-five mile radius from the Company's headquarters
at 420 South Koeller Street, Oshkosh, Wisconsin; (2) a material reduction
in the secretarial or other administrative support of the Executive; (3) a
material demotion of the Executive, a material reduction in the number or
seniority of other Company or Bank personnel reporting to the Executive,
or a reduction in the frequency with which, or in the nature of the
matters with respect to which, such personnel are to report to the
Executive, other than as part of a Company-wide or Bank-wide reduction in
staff; and (4) a reduction or adverse change in the salary, perquisites,
benefits, contingent benefits or vacation time which had theretofore been
provided to the Executive, other than as part of an overall program
applied uniformly and with equitable effect to all executive officers of
the Company or the Bank.
2.7 Termination or Suspension of Employment as Required by Law.
Notwithstanding anything in this Agreement to the contrary, the
following provisions shall limit the obligation of the Bank to continue
employing Executive, but only to the extent required by the applicable
regulations of the OTS (12 C.F.R. Section 563.39), or similar succeeding
regulations:
(a) If the Executive is suspended and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(3) and (g)(1)) the Bank's obligations under this
Agreement shall be suspended as of the date of service of notice, unless
stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Bank may in its discretion (i) pay the Executive all or
part of the compensation withheld while its contract obligations hereunder
were suspended and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.
(b) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(4) or (g)(1)) all obligations of the Bank under
this Agreement shall terminate as of the effective date of the order.
(c) If the Bank is in default (as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act), the obligation to Executive hereunder
shall terminate as of the date of default.
(d) All obligations under this Agreement may be terminated: (i)
by the Director of the Office of Thrift Supervision (the "Director") or
his or her designee at the time the Federal Deposit Insurance Company
enters into an agreement to provide assistance to or on behalf of the Bank
under the authority contained in Section 13(c) of the Federal Deposit
Insurance Act and (ii) by the Director, or his or her designee at the time
the Director or such designee approves a supervisory merger to resolve
problems related to operation of the Bank or when the Bank is determined
by the Director to be in an unsafe or unsound condition.
(e) Termination pursuant to subparagraph (d) of this Section 2.7
shall be treated as a termination by the Bank without cause entitling
Executive to benefits payable under Section 2.5. Termination pursuant to
subparagraph (a), (b) or (c) shall be treated as a termination for Just
Cause under Section 2.4. Termination under this Section 2.7 shall not
affect other rights hereunder which are vested at the time of termination.
2.8 Limitation on Termination or Disability Pay.
Any payments made to the Executive pursuant to this Agreement or
otherwise are subject to and conditioned upon their compliance with 12
U.S.C. Section 1828(k) and any regulations promulgated thereunder.
ARTICLE III
LEGAL FEES AND EXPENSES
The Company shall pay, or shall cause the Bank to pay, all legal fees
and expenses which the Executive may incur as a result of the Company or
the Bank contesting the validity or enforceability of this Agreement,
provided that the Executive is the prevailing party in such contest or
that any dispute may otherwise be settled in favor of the Executive. The
Executive shall be entitled to receive interest thereon for the period of
any delay in payment from the date such payment was due at the rate
determined by adding two hundred basis points to the six-month Treasury
Bill rate.
ARTICLE IV
CONFIDENTIALITY
Executive acknowledges that he now has, and in the course of his
employment will have, access to important and confidential information
regarding the business and services of the Company, the Bank and their
subsidiaries, as well as similar information regarding OSB Financial and
its subsidiaries, and that the disclosure to, or the use of such
information by, and business in competition with the Company, the Bank or
their subsidiaries shall result in substantial and undeterminable harm to
the Company, the Bank and their subsidiaries. In order to protect the
Company, the Bank and their subsidiaries against such harm and from unfair
competition, Executive agrees with the Company and the Bank that while
employed by the Bank and at any time thereafter, Executive will not
disclose, communicate or divulge to anyone, or use in any manner adverse
to the Company, the Bank or their subsidiaries any information concerning
customers, methods of business, financial information or other
confidential information of the Company, the Bank, their subsidiaries or
similar information regarding OSB Financial and its subsidiaries, except
for information as is in the public domain or ascertainable through common
sources of public information (otherwise than as a result of any breach of
this covenant by Executive).
ARTICLE V
GENERAL PROVISIONS
5.1 Inquiries Regarding Proposed Activities.
In the event Executive shall inquire in writing of the Company
whether any proposed action on the part of Executive would be considered
by the Company or the Bank to be prohibited by or in breach of the terms
of this Agreement, the Company shall have 30 days after receipt of such
notice to express in writing to Executive its position with respect
thereof and in the event such writing shall not be given to Executive,
such proposed action, as set forth in the writing of the Executive, shall
not be deemed to be a violation of or breach of this Agreement.
5.2 No Duty of Mitigation.
The Executive shall not be required to mitigate the amount of any
payment or benefit provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or benefit
provided for in this Agreement be reduced by any compensation earned by
the Executive as the result of employment by another employer, by
retirement benefits after the date of termination of this Agreement or
otherwise.
5.3 Successors.
This Agreement may be assigned by the Company or the Bank to any
other business entity that is directly or indirectly controlled by the
Company or the Bank. This Agreement may not be assigned by the Company or
the Bank except in connection with a merger involving the Company or the
Bank or a sale of substantially all of the assets of the Company or the
Bank, and the respective obligations of the Company and the Bank provided
for in this Agreement shall be the binding legal obligations of any
successor to the Company or the Bank by purchase, merger, consolidation,
or otherwise. This Agreement may not be assigned by the Executive during
his life, and upon his death will be binding upon and inure to the benefit
of his heirs, legatees and the legal representatives of his estate.
5.4 Notice.
For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or sent
by certified mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth on the signature page of this Agreement
(provided that all notices to the Company and the Bank shall be directed
to the attention of the Board of Directors of the Company and/or the Bank,
as the case may be, with a copy to the Secretary of the Company and/or the
Bank, as the case may be), or to such other address as either party may
have furnished to the other in writing in accordance herewith.
5.5 Amendments.
No amendment or additions to this Agreement shall be binding unless
in writing and signed by all parties, except as herein otherwise provided.
5.6 Severability.
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
5.7 Governing Law.
This Agreement shall be governed by the laws of the United States to
the extent applicable and otherwise by the internal laws of the State of
Wisconsin.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
FCB FINANCIAL CORP.
By:
Its:
Address: ______________________
______________________
______________________
FOX CITIES BANK, F.S.B.
By:
Its:
Address: ______________________
______________________
______________________
EXECUTIVE
Harold L. Hermansen
Address: ______________________
______________________
______________________
Exhibit J
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
this ____ day of _____, 1997 between FCB Financial Corp., a Wisconsin
corporation (the "Company"), Fox Cities Bank, F.S.B., a federal savings
bank which is wholly-owned by the Company (the "Bank") and James J.
Rothenbach (the "Executive").
WHEREAS, the Company and OSB Financial Corp. ("OSB Financial")
entered into an Agreement and Plan of Merger, dated _________, 1996 (the
"Merger Agreement"), providing for the combination of the Company and OSB
Financial Corp. and a concurrent combination of the Bank and Oshkosh
Savings Bank, F.S.B. in a strategic merger, wherein the Company and the
Bank survive the merger (collectively, the "Merger");
WHEREAS, prior to the Merger, OSB Financial employed the
Executive as President and Chief Executive Officer of OSB Financial under
the terms of an employment agreement, dated July 1, 1995;
WHEREAS, consummation of the Merger contemplated by the Merger
Agreement is conditioned upon the Company, the Bank and the Executive
entering into an Employment Agreement conforming to the terms hereof;
WHEREAS, Executive's skills and extensive experience and
knowledge in the financial institutions industry will substantially
benefit the Company and the Bank; and
WHEREAS, the Company and the Bank desire to retain the
services of Executive in connection with the business activities of the
Company and the Bank following the Merger.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, it is
agreed as follows:
ARTICLE I
EMPLOYMENT
(a)1 Term of Employment.
The Bank hereby employs Executive for an initial period of three (3)
years commencing on _______, 1997 (the "Commencement Date") and
terminating on ________, 2000 (the "Initial Termination Date"), subject to
earlier termination as provided in Article II hereof. The Board of
Directors of the Bank shall review and may extend the term of this
Agreement for a period of one (1) additional year beginning on the Initial
Termination Date and in each subsequent year thereafter for a period of
one (1) additional year. Any extensions of the term of this Agreement
shall be made by giving Executive written notice of such extension at
least 90 days prior to the Initial Termination Date or the expiration of
any renewal period. Reference herein to the term of this Agreement shall
refer to both the initial term and such extended terms.
1.2 Duties of Executive.
The Bank hereby employs Executive, and Executive hereby accepts
employment with the Bank, upon the terms and conditions hereinafter set
forth for the term of this Agreement. Executive is employed by the Bank
to perform the duties of President and Chief Executive Officer of the
Bank, and the Company shall cause the Bank to appoint Executive to such
position. As part of Executive's employment by the Bank hereunder,
Executive shall also serve as, and the Company hereby appoints Executive
during the term of his employment by the Bank hereunder to serve as,
President and Chief Executive officer of the Company. The services to be
performed by the Executive shall include those normally performed by the
President and Chief Executive Officer of similar banking organizations and
as directed by the Board of Directors of the Company and the Bank,
respectively, which are not inconsistent with the foregoing. Executive
agrees to devote his full business time to the rendition of such services,
subject to absences for customary vacations and for temporary illnesses.
The Company and the Bank each agree that during the term of this Agreement
it will not reduce the Executive's current job title, status or
responsibilities without the Executive's consent. Furthermore, Executive
shall not be required, without his express written consent, to be based
anywhere other than within the Oshkosh-Neenah/Menasha-Appleton
metropolitan area, except for reasonable business travel in connection
with the business of the Company and the Bank. During the term of this
Agreement, Executive shall also serve as a director of the Company
(subject to being elected by shareholders) and the Bank without any
additional compensation.
1.3 Compensation.
The Bank agrees to compensate, and the Company agrees to cause the
Bank to compensate, the Executive for his services hereunder during the
term of this Agreement by payment of a salary at the annual rate of
$150,000 in such monthly, semi-monthly or other payments as are from time
to time applicable to other executive officers of the Bank. The
Executive's salary may be increased from time to time during the term of
this Agreement in the sole discretion of the Board of Directors of the
Bank, but Executive's salary shall not be reduced below the level then in
effect. In addition, Executive shall be entitled to participate in
incentive compensation plans as may from time to time be established by
the Company or the Bank on an equivalent basis as other executive officers
of the Company or the Bank (but recognizing differences in
responsibilities among executive officers).
1.4 Benefits.
(a) Executive shall be provided the following additional benefits,
(i) participation in any pension, profit-sharing, deferred compensation or
other retirement plan, (ii) medical, dental and life insurance coverage
consistent with coverages provided to other executive officers of the Bank
(which initially will include a 30% co-pay by the Executive), (iii) the
use of an automobile and membership or appropriate affiliation with a
service club and a recreational club, (iv) reimbursement of business
expenses reasonably incurred in connection with his employment and
expenses incurred by his spouse when accompanying Executive, (v) paid
vacations and sick leave in accordance with prevailing policies of the
Bank, provided that allowed vacations shall in no event be less than four
weeks per annum, and (vi) such other benefits as are provided to other
executive officers of the Bank; provided that amounts allocated to
Executive's personal use under clause (iii) above and additional charges
for Executive's spouse pursuant to clause (iv) above shall be treated as
taxable income to Executive in accordance with applicable Bank policies.
(b) If Executive shall become temporarily disabled or
incapacitated to the extent that he is unable to perform the duties of
President and Chief Executive Officer of the Company or the Bank for three
(3) consecutive months, he shall nevertheless be entitled to receive 100
percent of his compensation under Section 1.3 of this Agreement for the
period of his disability up to three (3) months, less any amount paid to
the Executive under any other disability program maintained by the Company
or the Bank or disability insurance policy maintained for the benefit of
Executive by the Company or the Bank. Upon returning to active full-time
employment, Executive's full compensation as set forth in this Agreement
shall be reinstated. In the event that Executive returns to active
employment on other than a full-time basis with the approval of the Board
of Directors of the Bank, then his compensation (as set forth in Section
1.3 of this Agreement) shall be reduced proportionately based upon the
fraction of full-time employment devoted by Executive to his employment
and responsibilities at the Bank and the Company. But, if he is again
unable to perform the duties of President and Chief Executive Officer of
the Company and the Bank hereunder due to disability or incapacity, he
must have been engaged in active full-time employment for at least twelve
(12) consecutive months immediately prior to such later absence or
inability in order to qualify for the full or partial continuance of his
salary under this Section (b).
(c) It is the intention of the Company that, within 30 days after
the date of this Agreement, the Company shall cause 20,000 non-tax-
qualified stock options (exercisable for shares of the Company's common
stock) to be granted to Executive. The 20,000 stock options provided for
in this Section 1.4(c) shall be granted by the personnel committee of the
Company under the terms of the Company's 1993 Stock Option and Incentive
Plan and shall vest ratably over a five year period beginning from the
date of their grant.
1.5 Covenant Not to Compete.
Executive acknowledges that the Company and the Bank would be
substantially damaged by an association of Executive with a depository
institution that competes for customers with the Company and the Bank.
Without the consent of the Company, Executive shall not at any time during
the term of this Agreement or Executive's employment by the Bank, and for
a period of one year thereafter (regardless of the reason for
termination), (i) on behalf of himself or as agent of any other person
solicit any person who was a customer of the Company or the Bank or any of
their subsidiaries during the two year period prior to the termination of
this Agreement or Executive's employment hereunder for the purpose of
offering the same products or rendering the same services to such customer
as were provided or proposed to be provided by the Company or the Bank or
any of their subsidiaries to such customer as of the time of termination
of Executive's employment, (ii) directly or indirectly, on Executive's
behalf or in the service or on the behalf of others, render or be retained
to render similar services as described in Section 1.2 hereof, whether as
an officer, partner, trustee, consultant, or employee for any depository
institution, which has a banking office located within 10 miles of any
office of the Bank or any banking office of the Company in existence as of
the Commencement Date or the beginning of any renewal period as provided
in Section 1.1 hereof, provided, however, that Executive shall not be
deemed to have breached this undertaking if (a) he renders services
otherwise prohibited by this paragraph (ii) for a depository institution
which has its home office located outside of the Wisconsin counties of
Winnebago and Outagamie and he renders such services from a full-service
banking office of such depository institution which is located outside
these same Wisconsin counties, or (b) his sole relationship with any other
such entity consists of his holding, directly or indirectly, an equity
interest in such entity not greater than three percent (3%) of such
entity's outstanding equity interest, or (iii) actively induce or solicit
any employees of the Company or the Bank to leave such employ. For
purposes of this Section 1.5, "person" shall include any individual,
corporation, partnership, trust, firm, proprietorship, venture or other
entity of any nature whatsoever.
ARTICLE II
TERMINATION OF EMPLOYMENT
2.1 Voluntary Termination of Employment by Executive.
Executive may terminate his employment hereunder at any time for any
reason upon giving the Bank written notice, at least ninety (90) days
prior to termination of employment. Upon such termination, Executive
shall be entitled to receive Executive's theretofore unpaid base salary in
effect at the date such written notice is given for the period of
employment up to the date of termination, and Executive and his spouse
and dependents will be entitled to further medical coverage, at his and/or
their expense, to the extent required by COBRA.
2.2 Termination of Employment for Death.
If Executive's employment is terminated by reason of Executive's
death, then Executive's personal representative shall be entitled to
receive Executive's theretofore unpaid base salary for the period of
employment up to the date of death. Executive's spouse and dependent
children shall continue to be entitled, at the expense of the Bank
(subject to then existing co-payment features applicable under the Bank's
medical insurance plan) if it is an insured plan, to further medical
coverage to the extent permitted by COBRA; provided that, if the Bank's
plan is not insured, the Bank will pay to Executive's spouse an additional
monthly death benefit during the applicable COBRA period, based upon COBRA
rates in effect at the time of Executive's death, in an amount equal to
the COBRA rate plus taxes due on such cash payment; provided further that
this benefit shall cease if the spouse and dependents cease to be eligible
for COBRA coverage.
2.3 Termination of Employment for Disability.
If Executive becomes Totally and Permanently Disabled (as defined
below) during the term of this Agreement, the Bank may terminate
Executive's employment and this Agreement, except Section 1.5 and Article
IV hereof, by giving Executive written notice of such termination not less
than 5 days before the effective date thereof. If Executive's employment
and this Agreement are terminated pursuant to this Section 2.3, the Bank
shall pay to Executive his theretofore unpaid base salary for the period
of employment up to the date of termination, and the Company and the Bank
shall have no further obligations to Executive under this Agreement,
except for any COBRA obligations. The Executive is Totally and
Permanently Disabled for purposes of this Section 2.3 if he is disabled or
incapacitated to the extent that he is unable to perform the duties of
President and Chief Executive Officer of the Company or the Bank for more
than three (3) consecutive months, and such disability or incapacity (i)
is expected to continue for more than three (3) additional months as
certified by a medical doctor of the Company's choosing which is not
contradicted by a doctor of the Executive's choosing or (ii) shall have in
fact continued for more than three (3) additional months.
2.4 Termination of Employment by the Company for Just Cause.
The Bank may terminate Executive's employment hereunder for Just
Cause (as such term is defined below), in which case the Executive shall
be entitled to receive Executive's theretofore unpaid base salary for the
period of employment up to the date of termination, but shall not be
entitled to any compensation or employment benefits pursuant to this
Agreement for any period after the date of termination, or the
continuation of any benefits except as may be required by law, including,
at his own expense, COBRA.
"Just Cause" shall mean personal dishonesty, incompetence, willful
misconduct or breach of a fiduciary duty involving personal profit in the
performance of his duties under this Agreement, intentional failure to
perform stated duties (provided that such nonperformance has continued for
10 days after the Bank has given written notice of such nonperformance to
the Executive and its intention to terminate Executive's employment
hereunder because of such nonperformance), willful violation of any law,
rule or regulation (other than a law, rule or regulation relating to a
traffic violation or similar offense), final cease-and-desist order,
termination under the provisions of Section 2.7(b) and (c) or material
breach of any provision of this Agreement.
2.5 Termination of Employment by the Bank Without Cause.
The Bank may terminate Executive's employment hereunder without
cause, in which case the Executive shall receive (a) his base salary under
Section 1.3 hereof through the then remaining term of employment under
Section 1.1, (b) his theretofore unpaid base salary for the period of
employment up to the date of termination, (c) medical, dental and life
insurance through the then remaining term of employment under Section 1.1
consistent with the terms and conditions set forth in Section 1.4, to the
extent the same can be provided under the insurance arrangements of the
Bank in effect at the time of termination, (d) any other benefits to which
Executive is entitled by law or the specific terms of the Bank's policies
in effect at the time of termination of employment and (e) an amount equal
to the product of the Bank's annual aggregate contribution, for the
benefit of the Executive in the fiscal year preceding termination, to all
qualified retirement plans in which the Executive participated multiplied
by the number of years in the initial term of employment under Section
1.1. The benefit in (e) under this Section 2.5 shall be in addition to
any benefit payable from any qualified or non-qualified plans or programs
maintained by the Company or the Bank at the time of termination. If the
Bank's medical and dental plans are not insured, the medical and dental
benefit in (c) shall be accomplished by the Bank paying to Executive an
additional cash amount equal to the COBRA premium for such coverage, plus
taxes on such amount, so that Executive may purchase the coverage on an
after-tax basis.
2.6 Termination of Employment Due to Change in Control.
(a) If, at any time after the date hereof, a "Change in Control"
(as hereinafter defined) occurs and within eighteen (18) months thereafter
Executive's appointment as President or as Chief Executive Officer of the
Company or his employment as President or as Chief Executive Officer of
the Bank is involuntarily terminated (other than for Just Cause pursuant
to Section 2.4) then the Executive shall be entitled to the benefits
provided below.
(i) The Company shall promptly pay, or cause the Bank to
pay, to the Executive an amount equal to the product of 2.00 times the
Executive's "base amount" as defined in Section 280G(b)(3) of the Code
(such "base amount" to be derived from Executive's compensation paid by
the Company and the Bank).
(ii) During the term of this Agreement set forth in
paragraph 1.1 (including any renewal term), the Executive, his dependents,
beneficiaries and estate shall continue to be covered under all employee
benefit plans of the Company and the Bank, including without limitation
the Company's and the Bank's pension and retirement plans, life insurance
and health insurance as if the Executive was still employed by the Bank
during such period under this Agreement; provided that coverage under the
medical and dental plans of the Company and the Bank shall be handled as
set forth in Section 2.5 above.
(iii) If and to the extent that benefits or services credit
for benefits under Section 2.6(a)(ii) above shall not be payable or
provided under any such plans to the Executive, his dependents,
beneficiaries and estate, by reason of his no longer being an employee of
the Bank as a result of termination of employment, the Company shall
itself, or shall cause the Bank to, pay or provide for payment of such
benefits and service credit for benefits to the Executive, his dependents,
beneficiaries and estate. Any such payment relating to retirement shall
commence on a date selected by the Executive which must be a date on which
payments under the Company or Bank's qualified pension plan or successor
plan may commence.
(b) (i) Anything in this Agreement to the contrary
notwithstanding, it is the intention of the Company, the Bank and the
Executive that no portion of any payment under this Agreement, or payments
to or for the benefit of the Executive under any other agreement or plan,
be deemed an "Excess Parachute Payment" as defined in Section 280G of the
Code, or its successors. It is agreed that the present value of any
payment to or for the benefit of the Executive in the nature of
compensation, receipt of which is contingent on the occurrence of a Change
in Control, and to which Section 280G of the Code applies (in the
aggregate "Total Payments") shall not exceed an amount equal to one dollar
less than the maximum amount that the Company and the Bank may pay without
loss of deduction under Section 280(G)(a) of the Code. Present value for
purposes of this Agreement shall be calculated in accordance with Section
280G(d)(4) of the Code. Within sixty days (60) following the earlier of
(1) the giving of notice of termination of employment or (2) the giving of
notice by the Company to the Executive of its belief that there is a
payment or benefit due the Executive, the Company, at the Company's
expense, shall obtain the opinion of the Company's public accounting firm
(the "Accounting Firm"), which opinion need not be unqualified, which sets
forth: (a) the amount of the Base Period Income of the Executive (as
defined in Code Section 280G), (b) the present value of Total Payments and
(c) the amount and present value of any Excess Parachute Payments. In the
event that such opinion determines that there would be an Excess Parachute
Payment, the payment hereunder shall be modified, reduced or eliminated as
specified by the Executive in writing delivered to the Company within
thirty (30) days of his receipt of such opinion or, if the Executive fails
to so notify the Company, then as the Company shall reasonably determine,
so that under the bases of calculation set forth in such opinion there
will be no Excess Parachute Payment. In the event that the provisions of
Sections 280G and 4999 of the Code are repealed without succession, this
Section shall be of no further force or effect.
(ii) In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the
Change in Control, the Executive shall appoint another nationally
recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the
Accounting Firm under Section 2.6(b)). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any determination
by the Accounting Firm shall be binding upon the Company and the
Executive.
(c) For purposes of Section 2.6 of this Agreement, a "Change in
Control" shall be deemed to have occurred if:
(i) a third person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 (as in effect on
the date hereof), becomes the beneficial owner of shares of the Company
having 20% or more of the total number of votes that may be cast for the
election of directors of the Company, including for this purpose any
shares beneficially owned by such third person or group as of the date
hereof; or
(ii) as the result of, or in connection with, any cash
tender or exchange offer, merger or other business combination, sale of
assets or contested election, or any combination of the foregoing
transactions (a "Transaction"), the persons who were directors of the
Company before the Transaction shall cease to constitute a majority of the
Board of Directors of the Company or any successor to the Company. (In the
event of any reorganization involving the Company in a transaction
initiated by the Company in which the shareholders of the Company
immediately prior to such reorganization become the shareholders of a
successor or ultimate parent company of the Company resulting from such
reorganization and the persons who were directors of the Company
immediately prior to such reorganization constitute a majority of the
Board of Directors of such successor or ultimate parent, no "Change in
Control" shall be deemed to have taken place solely by reason of such
reorganization, notwithstanding the fact that the Company may have become
the wholly-owned subsidiary of another Company in such reorganization and
the Board of Directors thereof may have been reconstituted, and thereafter
the term "Company" for purposes of this paragraph shall refer to such
successor or ultimate parent company.); or
(iii) a third person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 (as in effect on
the date hereof), acquires control, as defined in 12 C.F.R. Section
574.4, or any successor regulation, of the Company which would require the
filing of an application for acquisition of control or notice of change in
control in a manner set forth in 12 C.F.R. Section 574.3, or any
successor regulation; or
(iv) The terms "termination" or "involuntarily terminated"
in this Agreement shall refer to the termination of the employment of
Executive by the Bank without his express written consent. In addition,
for purposes of this Agreement, a material diminution or interference
with the Executive's duties, responsibilities and benefits as President
and Chief Executive Officer of the Company or the Bank shall be deemed and
shall constitute an involuntary termination of employment to the same
extent as express notice of such involuntary termination. By way of
example and not by way of limitation, any of the following actions, if
unreasonable or materially adverse to the Executive shall constitute such
diminution or interference unless consented to in writing by the
Executive: (1) a change in the principal work place of the Executive to a
location outside a twenty-five mile radius from the Company's headquarters
at 420 South Koeller Street, Oshkosh, Wisconsin; (2) a material reduction
in the secretarial or other administrative support of the Executive; (3) a
material demotion of the Executive, a material reduction in the number or
seniority of other Company or Bank personnel reporting to the Executive,
or a reduction in the frequency with which, or in the nature of the
matters with respect to which, such personnel are to report to the
Executive, other than as part of a Company-wide or Bank-wide reduction in
staff; and (4) a reduction or adverse change in the salary, perquisites,
benefits, contingent benefits or vacation time which had theretofore been
provided to the Executive, other than as part of an overall program
applied uniformly and with equitable effect to all executive officers of
the Company or the Bank.
2.7 Termination or Suspension of Employment as Required by Law.
Notwithstanding anything in this Agreement to the contrary, the
following provisions shall limit the obligation of the Bank to continue
employing Executive, but only to the extent required by the applicable
regulations of the OTS (12 C.F.R. Section 563.39), or similar succeeding
regulations:
(a) If the Executive is suspended and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(3) and (g)(1)) the Bank's obligations under this
Agreement shall be suspended as of the date of service of notice, unless
stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Bank may in its discretion (i) pay the Executive all or
part of the compensation withheld while its contract obligations hereunder
were suspended and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.
(b) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(4) or (g)(1)) all obligations of the Bank under
this Agreement shall terminate as of the effective date of the order.
(c) If the Bank is in default (as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act), the obligation to Executive hereunder
shall terminate as of the date of default.
(d) All obligations under this Agreement may be terminated: (i)
by the Director of the Office of Thrift Supervision (the "Director") or
his or her designee at the time the Federal Deposit Insurance Company
enters into an agreement to provide assistance to or on behalf of the Bank
under the authority contained in Section 13(c) of the Federal Deposit
Insurance Act and (ii) by the Director, or his or her designee at the time
the Director or such designee approves a supervisory merger to resolve
problems related to operation of the Bank or when the Bank is determined
by the Director to be in an unsafe or unsound condition.
(e) Termination pursuant to subparagraph (d) of this Section 2.7
shall be treated as a termination by the Bank without cause entitling
Executive to benefits payable under Section 2.5. Termination pursuant to
subparagraph (a), (b) or (c) shall be treated as a termination for Just
Cause under Section 2.4. Termination under this Section 2.7 shall not
affect other rights hereunder which are vested at the time of termination.
2.8 Limitation on Termination or Disability Pay.
Any payments made to the Executive pursuant to this Agreement or
otherwise are subject to and conditioned upon their compliance with 12
U.S.C. Section 1828(k) and any regulations promulgated thereunder.
ARTICLE III
LEGAL FEES AND EXPENSES
The Company shall pay, or shall cause the Bank to pay, all legal fees
and expenses which the Executive may incur as a result of the Company or
the Bank contesting the validity or enforceability of this Agreement,
provided that the Executive is the prevailing party in such contest or
that any dispute may otherwise be settled in favor of the Executive. The
Executive shall be entitled to receive interest thereon for the period of
any delay in payment from the date such payment was due at the rate
determined by adding two hundred basis points to the six-month Treasury
Bill rate.
ARTICLE IV
CONFIDENTIALITY
Executive acknowledges that he now has, and in the course of his
employment will have, access to important and confidential information
regarding the business and services of the Company, the Bank and their
subsidiaries, as well as similar information regarding OSB Financial and
its subsidiaries relating to his previous employment by that company, and
that the disclosure to, or the use of such information by, and business in
competition with the Company, the Bank or their subsidiaries shall result
in substantial and undeterminable harm to the Company, the Bank and their
subsidiaries. In order to protect the Company, the Bank and their
subsidiaries against such harm and from unfair competition, Executive
agrees with the Company and the Bank that while employed by the Bank and
at any time thereafter, Executive will not disclose, communicate or
divulge to anyone, or use in any manner adverse to the Company, the Bank
or their subsidiaries any information concerning customers, methods of
business, financial information or other confidential information of the
Company, the Bank, their subsidiaries or similar information regarding OSB
Financial and its subsidiaries, except for information as is in the public
domain or ascertainable through common sources of public information
(otherwise than as a result of any breach of this covenant by Executive).
ARTICLE V
GENERAL PROVISIONS
5.1 Inquiries Regarding Proposed Activities.
In the event Executive shall inquire in writing of the Company
whether any proposed action on the part of Executive would be considered
by the Company or the Bank to be prohibited by or in breach of the terms
of this Agreement, the Company shall have 30 days after receipt of such
notice to express in writing to Executive its position with respect
thereof and in the event such writing shall not be given to Executive,
such proposed action, as set forth in the writing of the Executive, shall
not be deemed to be a violation of or breach of this Agreement.
5.2 No Duty of Mitigation.
The Executive shall not be required to mitigate the amount of any
payment or benefit provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or benefit
provided for in this Agreement be reduced by any compensation earned by
the Executive as the result of employment by another employer, by
retirement benefits after the date of termination of this Agreement or
otherwise.
5.3 Successors.
This Agreement may be assigned by the Company or the Bank to any
other business entity that is directly or indirectly controlled by the
Company or the Bank. This Agreement may not be assigned by the Company or
the Bank except in connection with a merger involving the Company or the
Bank or a sale of substantially all of the assets of the Company or the
Bank, and the respective obligations of the Company and the Bank provided
for in this Agreement shall be the binding legal obligations of any
successor to the Company or the Bank by purchase, merger, consolidation,
or otherwise. This Agreement may not be assigned by the Executive during
his life, and upon his death will be binding upon and inure to the benefit
of his heirs, legatees and the legal representatives of his estate.
5.4 Notice.
For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or sent
by certified mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth on the signature page of this Agreement
(provided that all notices to the Company and the Bank shall be directed
to the attention of the Board of Directors of the Company and/or the Bank,
as the case may be, with a copy to the Secretary of the Company and/or the
Bank, as the case may be), or to such other address as either party may
have furnished to the other in writing in accordance herewith.
5.5 Amendments.
No amendment or additions to this Agreement shall be binding unless
in writing and signed by all parties, except as herein otherwise provided.
5.6 Severability.
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
5.7 Governing Law.
This Agreement shall be governed by the laws of the United States to
the extent applicable and otherwise by the internal laws of the State of
Wisconsin.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
FCB FINANCIAL CORP.
By:
Its:
Address: ______________________
______________________
______________________
FOX CITIES BANK, F.S.B.
By:
Its:
Address: ______________________
______________________
______________________
EXECUTIVE
James J. Rothenbach
Address: ______________________
______________________
______________________
Exhibit K
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
this ____ day of _____, 1997 between FCB Financial Corp., a Wisconsin
corporation (the "Company"), Fox Cities Bank, F.S.B., a federal savings
bank which is wholly-owned by the Company (the "Bank") and Theodore W.
Hoff (the "Executive").
WHEREAS, the Company and OSB Financial Corp. ("OSB Financial")
entered into an Agreement and Plan of Merger, dated _________, 1996 (the
"Merger Agreement"), providing for the combination of the Company and OSB
Financial Corp. and a concurrent combination of the Bank and Oshkosh
Savings Bank, F.S.B. ("OSB Bank") in a strategic merger, wherein the
Company and the Bank survive the merger (collectively, the "Merger");
WHEREAS, prior to the Merger, OSB Bank employed the Executive
as Vice President - Retail Sales and Service;
WHEREAS, consummation of the Merger contemplated by the Merger
Agreement is conditioned upon the Company, the Bank and the Executive
entering into an Employment Agreement conforming to the terms hereof;
WHEREAS, Executive's skills and extensive experience and
knowledge in the financial institutions industry will substantially
benefit the Company and the Bank; and
WHEREAS, the Company and the Bank desire to retain the
services of Executive in connection with the business activities of the
Company and the Bank following the Merger.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, it is
agreed as follows:
ARTICLE I
EMPLOYMENT
1.1 Term of Employment.
The Bank hereby employs Executive for an initial period of fifteen
(15) months commencing on _______, 1997 (the "Commencement Date") and
terminating on ________, 1998 (the "Initial Termination Date"), subject to
earlier termination as provided in Article II hereof. The Board of
Directors of the Bank shall review and may extend the term of this
Agreement for a period of one (1) additional year beginning on the Initial
Termination Date and in each subsequent year thereafter for a period of
one (1) additional year. Any extensions of the term of this Agreement
shall be made by giving Executive written notice of such extension at
least 90 days prior to the Initial Termination Date or the expiration of
any renewal period. Reference herein to the term of this Agreement shall
refer to both the initial term and such extended terms.
1.2 Duties of Executive.
The Bank hereby employs Executive, and Executive hereby accepts
employment with the Bank, upon the terms and conditions hereinafter set
forth for the term of this Agreement. Executive is employed by the Bank
to perform the duties of Vice President - Retail Sales and Service of the
Bank, and the Company shall cause the Bank to appoint Executive to such
position. As part of Executive's employment by the Bank hereunder,
Executive shall also serve as, and the Company hereby appoints Executive
during the term of his employment by the Bank hereunder to serve as Vice
President - Retail Sales and Service of the Company. The services to be
performed by the Executive shall include those normally performed by Vice
President - Retail Sales and Service of similar banking organizations and
as directed by the Board of Directors of the Company and the Bank,
respectively, which are not inconsistent with the foregoing. Executive
agrees to devote his full business time to the rendition of such services,
subject to absences for customary vacations and for temporary illnesses.
The Company and the Bank each agree that during the term of this Agreement
it will not reduce the Executive's current job title, status or
responsibilities without the Executive's consent. Furthermore, Executive
shall not be required, without his express written consent, to be based
anywhere other than within the Oshkosh-Neenah/Menasha-Appleton
metropolitan area, except for reasonable business travel in connection
with the business of the Company and the Bank.
1.3 Compensation.
The Bank agrees to compensate, and the Company agrees to cause the
Bank to compensate, the Executive for his services hereunder during the
term of this Agreement by payment of a salary at the annual rate of
$70,000 in such monthly, semi-monthly or other payments as are from time
to time applicable to other executive officers of the Bank. The
Executive's salary may be increased from time to time during the term of
this Agreement in the sole discretion of the Board of Directors of the
Bank, but Executive's salary shall not be reduced below the level then in
effect. In addition, Executive shall be entitled to participate in
incentive compensation plans as may from time to time be established by
the Company or the Bank on an equivalent basis as other executive officers
of the Company or the Bank (but recognizing differences in
responsibilities among executive officers).
1.4 Benefits.
(a) Executive shall be provided the following additional benefits,
(i) participation in any pension, profit-sharing, deferred compensation or
other retirement plan, (ii) medical, dental and life insurance coverage
consistent with coverages provided to other executive officers of the Bank
(which initially will include a 30% co-pay by the Executive), (iii)
membership or appropriate affiliation with a recreational club, (iv)
reimbursement of business expenses reasonably incurred in connection with
his employment and expenses incurred by his spouse when accompanying
Executive, (v) paid vacations and sick leave in accordance with prevailing
policies of the Bank, provided that allowed vacations shall in no event be
less than four weeks per annum, and (vi) such other benefits as are
provided to other executive officers of the Bank; provided that amounts
allocated to Executive's personal use under clause (iii) above and
additional charges for Executive's spouse pursuant to clause (iv) above
shall be treated as taxable income to Executive in accordance with
applicable Bank policies.
(b) If Executive shall become temporarily disabled or
incapacitated to the extent that he is unable to perform the duties of
Vice President - Retail Sales and Service of the Company or the Bank for
three (3) consecutive months, he shall nevertheless be entitled to receive
100 percent of his compensation under Section 1.3 of this Agreement for
the period of his disability up to three (3) months, less any amount paid
to the Executive under any other disability program maintained by the
Company or the Bank or disability insurance policy maintained for the
benefit of Executive by the Company or the Bank. Upon returning to active
full-time employment, Executive's full compensation as set forth in this
Agreement shall be reinstated. In the event that Executive returns to
active employment on other than a full-time basis with the approval of the
Board of Directors of the Bank, then his compensation (as set forth in
Section 1.3 of this Agreement) shall be reduced proportionately based upon
the fraction of full-time employment devoted by Executive to his
employment and responsibilities at the Bank and the Company. But, if he
is again unable to perform the duties of Vice President - Retail Sales and
Service of the Company and the Bank hereunder due to disability or
incapacity, he must have been engaged in active full-time employment for
at least twelve (12) consecutive months immediately prior to such later
absence or inability in order to qualify for the full or partial
continuance of his salary under this Section (b).
(c) It is the intention of the Company that, within 30 days after
the date of this Agreement, the Company shall cause 6,000 non-tax-
qualified stock options (exercisable for shares of the Company's common
stock) to be granted to Executive. The 6,000 stock options provided for
in this Section 1.4(c) shall be granted by the personnel committee of the
Company under the terms of the Company's 1993 Stock Option and Incentive
Plan and shall vest ratably over a five year period beginning from the
date of their grant.
1.5 Covenant Not to Compete.
Executive acknowledges that the Company and the Bank would be
substantially damaged by an association of Executive with a depository
institution that competes for customers with the Company and the Bank.
Without the consent of the Company, Executive shall not at any time during
the term of this Agreement or Executive's employment by the Bank, and for
a period of one year thereafter (regardless of the reason for
termination), (i) on behalf of himself or as agent of any other person
solicit any person who was a customer of the Company or the Bank or any of
their subsidiaries during the two year period prior to the termination of
this Agreement or Executive's employment hereunder for the purpose of
offering the same products or rendering the same services to such customer
as were provided or proposed to be provided by the Company or the Bank or
any of their subsidiaries to such customer as of the time of termination
of Executive's employment, or (ii) actively induce or solicit any
employees of the Company or the Bank to leave such employ. For purposes
of this Section 1.5, "person" shall include any individual, corporation,
partnership, trust, firm, proprietorship, venture or other entity of any
nature whatsoever.
ARTICLE II
TERMINATION OF EMPLOYMENT
2.1 Voluntary Termination of Employment by Executive.
Executive may terminate his employment hereunder at any time for any
reason upon giving the Bank written notice, at least ninety (90) days
prior to termination of employment. Upon such termination, Executive
shall be entitled to receive Executive's theretofore unpaid base salary in
effect at the date such written notice is given for the period of
employment up to the date of termination, and Executive and his spouse
and dependents will be entitled to further medical coverage, at his and/or
their expense, to the extent required by COBRA.
2.2 Termination of Employment for Death.
If Executive's employment is terminated by reason of Executive's
death, then Executive's personal representative shall be entitled to
receive Executive's theretofore unpaid base salary for the period of
employment up to the date of death. Executive's spouse and dependent
children shall continue to be entitled, at the expense of the Bank
(subject to then existing co-payment features applicable under the Bank's
medical insurance plan) if it is an insured plan, to further medical
coverage to the extent permitted by COBRA; provided that, if the Bank's
plan is not insured, the Bank will pay to Executive's spouse an additional
monthly death benefit during the applicable COBRA period, based upon COBRA
rates in effect at the time of Executive's death, in an amount equal to
the COBRA rate plus taxes due on such cash payment; provided further that
this benefit shall cease if the spouse and dependents cease to be eligible
for COBRA coverage.
2.3 Termination of Employment for Disability.
If Executive becomes Totally and Permanently Disabled (as defined
below) during the term of this Agreement, the Bank may terminate
Executive's employment and this Agreement, except Section 1.5 and Article
IV hereof, by giving Executive written notice of such termination not less
than 5 days before the effective date thereof. If Executive's employment
and this Agreement are terminated pursuant to this Section 2.3, the Bank
shall pay to Executive his theretofore unpaid base salary for the period
of employment up to the date of termination, and the Company and the Bank
shall have no further obligations to Executive under this Agreement,
except for any COBRA obligations. The Executive is Totally and
Permanently Disabled for purposes of this Section 2.3 if he is disabled or
incapacitated to the extent that he is unable to perform the duties of
Vice President - Retail Sales and Services of the Company and the Bank for
more than three (3) consecutive months, and such disability or incapacity
(i) is expected to continue for more than three (3) additional months as
certified by a medical doctor of the Company's choosing which is not
contradicted by a doctor of the Executive's choosing or (ii) shall have in
fact continued for more than three (3) additional months.
2.4 Termination of Employment by the Company for Just Cause.
The Bank may terminate Executive's employment hereunder for Just
Cause (as such term is defined below), in which case the Executive shall
be entitled to receive Executive's theretofore unpaid base salary for the
period of employment up to the date of termination, but shall not be
entitled to any compensation or employment benefits pursuant to this
Agreement for any period after the date of termination, or the
continuation of any benefits except as may be required by law, including,
at his own expense, COBRA.
"Just Cause" shall mean personal dishonesty, incompetence, willful
misconduct or breach of a fiduciary duty involving personal profit in the
performance of his duties under this Agreement, intentional failure to
perform stated duties (provided that such nonperformance has continued for
10 days after the Bank has given written notice of such nonperformance to
the Executive and its intention to terminate Executive's employment
hereunder because of such nonperformance), willful violation of any law,
rule or regulation (other than a law, rule or regulation relating to a
traffic violation or similar offense), final cease-and-desist order,
termination under the provisions of Section 2.7(b) and (c) or material
breach of any provision of this Agreement.
2.5 Termination of Employment by the Bank Without Cause.
The Bank may terminate Executive's employment hereunder without
cause, in which case the Executive shall receive (a) his base salary under
Section 1.3 hereof through the then remaining term of employment under
Section 1.1, (b) his theretofore unpaid base salary for the period of
employment up to the date of termination, (c) medical, dental and life
insurance through the then remaining term of employment under Section 1.1
consistent with the terms and conditions set forth in Section 1.4, to the
extent the same can be provided under the insurance arrangements of the
Bank in effect at the time of termination, (d) any other benefits to which
Executive is entitled by law or the specific terms of the Bank's policies
in effect at the time of termination of employment and (e) an amount equal
to the product of the Bank's annual aggregate contribution, for the
benefit of the Executive in the fiscal year preceding termination, to all
qualified retirement plans in which the Executive participated multiplied
by the number of years in the initial term of employment under Section
1.1. The benefit in (e) under this Section 2.5 shall be in addition to
any benefit payable from any qualified or non-qualified plans or programs
maintained by the Company or the Bank at the time of termination. If the
Bank's medical and dental plans are not insured, the medical and dental
benefit in (c) shall be accomplished by the Bank paying to Executive an
additional cash amount equal to the COBRA premium for such coverage, plus
taxes on such amount, so that Executive may purchase the coverage on an
after-tax basis.
2.6 Termination of Employment Due to Change in Control.
(a) If, at any time after the date hereof, a "Change in Control"
(as hereinafter defined) occurs and within eighteen (18) months thereafter
Executive's appointment as Vice President - Retail Sales and Service of
the Company or his employment as Vice President - Retail Sales and Service
of the Bank is involuntarily terminated (other than for Just Cause
pursuant to Section 2.4) then the Executive shall be entitled to the
benefits provided below.
(i) The Company shall promptly pay, or cause the Bank to
pay, to the Executive an amount equal to the product of 2.0 times the
Executive's "base amount" as defined in Section 280G(b)(3) of the Code
(such "base amount" to be derived from Executive's compensation paid by
the Company and the Bank).
(ii) During the term of this Agreement set forth in
paragraph 1.1 (including any renewal term), the Executive, his dependents,
beneficiaries and estate shall continue to be covered under all employee
benefit plans of the Company and the Bank, including without limitation
the Company's and the Bank's pension and retirement plans, life insurance
and health insurance as if the Executive was still employed by the Bank
during such period under this Agreement; provided that coverage under the
medical and dental plans of the Company and the Bank shall be handled as
set forth in Section 2.5 above.
(iii) If and to the extent that benefits or services credit
for benefits under Section 2.6(a)(ii) above shall not be payable or
provided under any such plans to the Executive, his dependents,
beneficiaries and estate, by reason of his no longer being an employee of
the Bank as a result of termination of employment, the Company shall
itself, or shall cause the Bank to, pay or provide for payment of such
benefits and service credit for benefits to the Executive, his dependents,
beneficiaries and estate. Any such payment relating to retirement shall
commence on a date selected by the Executive which must be a date on which
payments under the Company or Bank's qualified pension plan or successor
plan may commence.
(b) (i) Anything in this Agreement to the contrary
notwithstanding, it is the intention of the Company, the Bank and the
Executive that no portion of any payment under this Agreement, or payments
to or for the benefit of the Executive under any other agreement or plan,
be deemed an "Excess Parachute Payment" as defined in Section 280G of the
Code, or its successors. It is agreed that the present value of any
payment to or for the benefit of the Executive in the nature of
compensation, receipt of which is contingent on the occurrence of a Change
in Control, and to which Section 280G of the Code applies (in the
aggregate "Total Payments") shall not exceed an amount equal to one dollar
less than the maximum amount that the Company and the Bank may pay without
loss of deduction under Section 280(G)(a) of the Code. Present value for
purposes of this Agreement shall be calculated in accordance with Section
280G(d)(4) of the Code. Within sixty days (60) following the earlier of
(1) the giving of notice of termination of employment or (2) the giving of
notice by the Company to the Executive of its belief that there is a
payment or benefit due the Executive, the Company, at the Company's
expense, shall obtain the opinion of the Company's public accounting firm
(the "Accounting Firm"), which opinion need not be unqualified, which sets
forth: (a) the amount of the Base Period Income of the Executive (as
defined in Code Section 280G), (b) the present value of Total Payments and
(c) the amount and present value of any Excess Parachute Payments. In the
event that such opinion determines that there would be an Excess Parachute
Payment, the payment hereunder shall be modified, reduced or eliminated as
specified by the Executive in writing delivered to the Company within
thirty (30) days of his receipt of such opinion or, if the Executive fails
to so notify the Company, then as the Company shall reasonably determine,
so that under the bases of calculation set forth in such opinion there
will be no Excess Parachute Payment. In the event that the provisions of
Sections 280G and 4999 of the Code are repealed without succession, this
Section shall be of no further force or effect.
(ii) In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the
Change in Control, the Executive shall appoint another nationally
recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the
Accounting Firm under Section 2.6(b)). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any determination
by the Accounting Firm shall be binding upon the Company and the
Executive.
(c) For purposes of Section 2.6 of this Agreement, a "Change in
Control" shall be deemed to have occurred if:
(i) a third person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 (as in effect on
the date hereof), becomes the beneficial owner of shares of the Company
having 20% or more of the total number of votes that may be cast for the
election of directors of the Company, including for this purpose any
shares beneficially owned by such third person or group as of the date
hereof; or
(ii) as the result of, or in connection with, any cash
tender or exchange offer, merger or other business combination, sale of
assets or contested election, or any combination of the foregoing
transactions (a "Transaction"), the persons who were directors of the
Company before the Transaction shall cease to constitute a majority of the
Board of Directors of the Company or any successor to the Company. (In the
event of any reorganization involving the Company in a transaction
initiated by the Company in which the shareholders of the Company
immediately prior to such reorganization become the shareholders of a
successor or ultimate parent company of the Company resulting from such
reorganization and the persons who were directors of the Company
immediately prior to such reorganization constitute a majority of the
Board of Directors of such successor or ultimate parent, no "Change in
Control" shall be deemed to have taken place solely by reason of such
reorganization, notwithstanding the fact that the Company may have become
the wholly-owned subsidiary of another Company in such reorganization and
the Board of Directors thereof may have been reconstituted, and thereafter
the term "Company" for purposes of this paragraph shall refer to such
successor or ultimate parent company.); or
(iii) a third person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 (as in effect on
the date hereof), acquires control, as defined in 12 C.F.R. Section
574.4, or any successor regulation, of the Company which would require the
filing of an application for acquisition of control or notice of change in
control in a manner set forth in 12 C.F.R. Section 574.3, or any
successor regulation; or
(iv) The terms "termination" or "involuntarily terminated"
in this Agreement shall refer to the termination of the employment of
Executive by the Bank without his express written consent. In addition,
for purposes of this Agreement, a material diminution or interference
with the Executive's duties, responsibilities and benefits as Vice
President - Retail Sales and Service of the Company or the Bank shall be
deemed and shall constitute an involuntary termination of employment to
the same extent as express notice of such involuntary termination. By way
of example and not by way of limitation, any of the following actions, if
unreasonable or materially adverse to the Executive shall constitute such
diminution or interference unless consented to in writing by the
Executive: (1) a change in the principal work place of the Executive to a
location outside a twenty-five mile radius from the Company's headquarters
at 420 South Koeller Street, Oshkosh, Wisconsin; (2) a material reduction
in the secretarial or other administrative support of the Executive; (3) a
material demotion of the Executive, a material reduction in the number or
seniority of other Company or Bank personnel reporting to the Executive,
or a reduction in the frequency with which, or in the nature of the
matters with respect to which, such personnel are to report to the
Executive, other than as part of a Company-wide or Bank-wide reduction in
staff; and (4) a reduction or adverse change in the salary, perquisites,
benefits, contingent benefits or vacation time which had theretofore been
provided to the Executive, other than as part of an overall program
applied uniformly and with equitable effect to all executive officers of
the Company or the Bank.
2.7 Termination or Suspension of Employment as Required by Law.
Notwithstanding anything in this Agreement to the contrary, the
following provisions shall limit the obligation of the Bank to continue
employing Executive, but only to the extent required by the applicable
regulations of the OTS (12 C.F.R. Section 563.39), or similar succeeding
regulations:
(a) If the Executive is suspended and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(3) and (g)(1)) the Bank's obligations under this
Agreement shall be suspended as of the date of service of notice, unless
stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Bank may in its discretion (i) pay the Executive all or
part of the compensation withheld while its contract obligations hereunder
were suspended and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.
(b) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(4) or (g)(1)) all obligations of the Bank under
this Agreement shall terminate as of the effective date of the order.
(c) If the Bank is in default (as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act), the obligation to Executive hereunder
shall terminate as of the date of default.
(d) All obligations under this Agreement may be terminated: (i)
by the Director of the Office of Thrift Supervision (the "Director") or
his or her designee at the time the Federal Deposit Insurance Company
enters into an agreement to provide assistance to or on behalf of the Bank
under the authority contained in Section 13(c) of the Federal Deposit
Insurance Act and (ii) by the Director, or his or her designee at the time
the Director or such designee approves a supervisory merger to resolve
problems related to operation of the Bank or when the Bank is determined
by the Director to be in an unsafe or unsound condition.
(e) Termination pursuant to subparagraph (d) of this Section 2.7
shall be treated as a termination by the Bank without cause entitling
Executive to benefits payable under Section 2.5. Termination pursuant to
subparagraph (a), (b) or (c) shall be treated as a termination for Just
Cause under Section 2.4. Termination under this Section 2.7 shall not
affect other rights hereunder which are vested at the time of termination.
2.8 Limitation on Termination or Disability Pay.
Any payments made to the Executive pursuant to this Agreement or
otherwise are subject to and conditioned upon their compliance with 12
U.S.C. Section 1828(k) and any regulations promulgated thereunder.
ARTICLE III
LEGAL FEES AND EXPENSES
The Company shall pay, or shall cause the Bank to pay, all legal fees
and expenses which the Executive may incur as a result of the Company or
the Bank contesting the validity or enforceability of this Agreement,
provided that the Executive is the prevailing party in such contest or
that any dispute may otherwise be settled in favor of the Executive. The
Executive shall be entitled to receive interest thereon for the period of
any delay in payment from the date such payment was due at the rate
determined by adding two hundred basis points to the six-month Treasury
Bill rate.
ARTICLE IV
CONFIDENTIALITY
Executive acknowledges that he now has, and in the course of his
employment will have, access to important and confidential information
regarding the business and services of the Company, the Bank and their
subsidiaries, as well as similar information regarding OSB Financial and
its subsidiaries relating to his previous employment by OSB Bank, and that
the disclosure to, or the use of such information by, and business in
competition with the Company, the Bank or their subsidiaries shall result
in substantial and undeterminable harm to the Company, the Bank and their
subsidiaries. In order to protect the Company, the Bank and their
subsidiaries against such harm and from unfair competition, Executive
agrees with the Company and the Bank that while employed by the Bank and
at any time thereafter, Executive will not disclose, communicate or
divulge to anyone, or use in any manner adverse to the Company, the Bank
or their subsidiaries any information concerning customers, methods of
business, financial information or other confidential information of the
Company, the Bank, their subsidiaries or similar information regarding OSB
Financial and its subsidiaries, except for information as is in the public
domain or ascertainable through common sources of public information
(otherwise than as a result of any breach of this covenant by Executive).
ARTICLE V
GENERAL PROVISIONS
5.1 Inquiries Regarding Proposed Activities.
In the event Executive shall inquire in writing of the Company
whether any proposed action on the part of Executive would be considered
by the Company or the Bank to be prohibited by or in breach of the terms
of this Agreement, the Company shall have 30 days after receipt of such
notice to express in writing to Executive its position with respect
thereof and in the event such writing shall not be given to Executive,
such proposed action, as set forth in the writing of the Executive, shall
not be deemed to be a violation of or breach of this Agreement.
5.2 No Duty of Mitigation.
The Executive shall not be required to mitigate the amount of any
payment or benefit provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or benefit
provided for in this Agreement be reduced by any compensation earned by
the Executive as the result of employment by another employer, by
retirement benefits after the date of termination of this Agreement or
otherwise.
5.3 Successors.
This Agreement may be assigned by the Company or the Bank to any
other business entity that is directly or indirectly controlled by the
Company or the Bank. This Agreement may not be assigned by the Company or
the Bank except in connection with a merger involving the Company or the
Bank or a sale of substantially all of the assets of the Company or the
Bank, and the respective obligations of the Company and the Bank provided
for in this Agreement shall be the binding legal obligations of any
successor to the Company or the Bank by purchase, merger, consolidation,
or otherwise. This Agreement may not be assigned by the Executive during
his life, and upon his death will be binding upon and inure to the benefit
of his heirs, legatees and the legal representatives of his estate.
5.4 Notice.
For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or sent
by certified mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth on the signature page of this Agreement
(provided that all notices to the Company and the Bank shall be directed
to the attention of the Board of Directors of the Company and/or the Bank,
as the case may be, with a copy to the Secretary of the Company and/or the
Bank, as the case may be), or to such other address as either party may
have furnished to the other in writing in accordance herewith.
5.5 Amendments.
No amendment or additions to this Agreement shall be binding unless
in writing and signed by all parties, except as herein otherwise provided.
5.6 Severability.
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
5.7 Governing Law.
This Agreement shall be governed by the laws of the United States to
the extent applicable and otherwise by the internal laws of the State of
Wisconsin.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
FCB FINANCIAL CORP.
By:
Its:
Address: ______________________
______________________
______________________
FOX CITIES BANK, F.S.B.
By:
Its:
Address: ______________________
______________________
______________________
EXECUTIVE
Theodore W. Hoff
Address: ______________________
______________________
______________________
[Foley & Lardner] Exhibit L
_____________, 1997
OSB Financial Corp.
420 South Koeller Street
Oshkosh, Wisconsin 54902
Re: Agreement and Plan of Merger, dated as of November __,
1996, Between FCB Financial Corp. and OSB Financial
Corp.
Gentlemen:
We have served as special counsel to FCB Financial Corp., a
Wisconsin corporation ("FCB"), in connection with the preparation,
execution and delivery of the Agreement and Plan of Merger, dated November
__, 1996 (the "Agreement"), and the Plan of Merger, dated ________, 1997
(the "Plan of Merger"), by and between FCB and OSB Financial Corp., a
Wisconsin corporation ("OSB"), providing for the merger of OSB with and
into FCB (the "Merger"). This opinion is being delivered to you pursuant
to Section 7.2(d) of the Agreement. Capitalized terms used herein and not
otherwise defined shall have the meaning given them in the Agreement.
As counsel for FCB, we have reviewed the Agreement, the Plan
of Merger and the Registration Statement on Form S-4 [, as amended] of FCB
(Registration No. 333-________) (the "Registration Statement") filed with
the Securities and Exchange Commission (the "Commission"), and also have
examined and relied upon such other documents and instruments, and
certificates of public officials, and have made such other investigations
and inquiries as we have deemed necessary or appropriate for purposes of
this opinion. For purposes of this opinion, we have assumed, without
investigation: (a) the legal capacity of each natural person; (b) the full
power and authority of each person, other than FCB and its officers, to
execute, deliver and perform each document heretofore executed and
delivered or hereafter to be executed and delivered, and to do each other
act heretofore done or hereafter to be done by such person; (c) the due
authorization, execution and delivery by each person, other than FCB and
its officers, of each document heretofore executed and delivered or
hereafter to be executed and delivered by such person; (d) the legality,
validity, binding effect and enforceability as to each person, other than
FCB and its officers, of each document heretofore executed and delivered
or hereafter to be executed and delivered, and of each other act
heretofore done or hereafter to be done by such person; (e) the
genuineness of each signature (other than signatures of FCB officers) on
and the completeness of each document submitted to us as an original; (f)
the conformity to, and the authenticity of, the original of each document
submitted to us as a copy; (g) no modification of any provision of any
document, nor waiver of any right or remedy; and (h) no exercise of any
right or remedy other than in a commercially reasonable and conscionable
manner and in good faith.
As to questions of fact material to our opinion which have not
been independently established (which includes the factual basis for those
parts of our opinion which are stated to be qualified with the statement
"to our knowledge" or words of similar import), we have relied upon,
without independent verification, the accuracy of the relevant facts
stated in the certificates or comparable documents of officers of FCB and
the FCB Subsidiaries and upon the accuracy of the representations and
warranties contained in the Agreement. Although we have made no
independent investigation or verification of each matter set forth
therein, nothing has come to our attention indicating that such reliance
by us or by you is not justified. In addition, and particularly with
respect to numbered paragraph 10 below, we wish to advise you that we have
made no special investigation as to the factual basis for our opinion,
such as a search of the dockets or records of any court or governmental
office, agency or authority to determine if any such proceedings are
pending or orders have been entered involving FCB or the FCB Subsidiaries.
The opinions hereafter expressed are qualified to the extent
that the rights, interests and remedies under the Agreement, the Plan of
Merger, or any other documents, exhibits or schedules delivered in
connection with the transactions contemplated thereby may be subject to or
affected by: (a) any bankruptcy, insolvency, bank conservatorship or
receivership or similar laws affecting creditors' rights and remedies
generally, and the enforcement thereof; (b) the unavailability of, or any
limitation on the availability of, any particular right or remedy (whether
in a proceeding in equity or at law) because of general principles of
equity; and (c) any limitation insofar as indemnification and contribution
provisions thereof may be limited by applicable law. In addition, we
express no opinion as to the enforceability of Sections 1.10 and 8.3 of
the Agreement.
On the basis of and subject to the foregoing and the
qualifications stated below, we are of the opinion that:
1. FCB is a corporation validly existing under the laws of the
State of Wisconsin and has the corporate power to own all of its
properties and assets and to carry on its business as it is now being
conducted as described in the Registration Statement. FCB is a registered
savings and loan holding company under the Home Owners' Loan Act.
2. FCB Bank is validly existing as a savings association under
the laws of the United States and has the corporate power to own all of
its properties and assets and to carry on its business as it is now being
conducted as described in the Registration Statement.
3. Each of the FCB Subsidiaries (other than FCB Bank) is a
corporation validly existing under the laws of its respective jurisdiction
of incorporation and each has the corporate power to own all of its
properties and assets and to carry on its business as it is now being
conducted as described in Registration Statement.
4. The authorized capitalization of FCB consists of (i)
15,000,000 shares of common stock, $.01 par value per share, of which
____________ shares are issued and outstanding and ________ shares are
held in the treasury; and (ii) 5,000,000 shares of preferred stock, $.01
par value per share, of which no shares are issued and outstanding. All
of the issued shares of common stock, $.01 par value, of FCB have been
duly authorized and validly issued and are fully paid and nonassessable
(except with respect to assessability as provided in Section
180.0622(2)(b) of the Wisconsin Business Corporation Law (the "WBCL")).
To our knowledge, except for the rights of OSB under the Agreement, the
Plan of Merger, and the OSB Stock Option Agreement and except for options
granted and outstanding under FCB's 1993 Stock Option and Incentive Plan,
there are no options, agreements, contracts or other rights in existence
to purchase or acquire from FCB any shares of capital stock of FCB.
5. FCB has full corporate power and authority to execute and
deliver the Agreement and the Plan of Merger and to consummate the
transactions contemplated thereby. The execution and delivery and
performance of the Agreement and the Plan of Merger and the consummation
of the transactions contemplated thereby have been duly and validly
approved by the Board of Directors of FCB and, to our knowledge, in the
case of the Agreement and the Plan of Merger, by the shareholders of FCB,
these being the only corporate authorizations required under the Articles
of Incorporation and Bylaws of FCB and the WBCL. The Agreement and the
Plan of Merger have been duly and validly executed and delivered by FCB
and constitute valid and binding obligations of FCB, enforceable against
FCB in accordance with their respective terms.
6. The execution, delivery and performance by FCB of the
Agreement and the Plan of Merger will not violate the Articles of
Incorporation or Bylaws of FCB.
7. Upon issuance in the manner and upon the terms contemplated in
the Agreement and the Plan of Merger, the shares of common stock, $.01 par
value, of FCB to be issued in the Merger will be duly authorized, validly
issued, fully paid, and nonassessable (except with respect to
assessability as provided in Section 180.0622(2)(b) of the WBCL).
8. At the time that the Registration Statement was declared
effective by the Commission, the Registration Statement (other than the
financial statements and supporting schedules and the financial and
statistical information or data included therein, as to which we express
no opinion) complied as to form in all material respects with the
requirements of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder.
9. No consents or approvals of, or filings or registrations with
any Governmental Entity are necessary in connection with the execution and
delivery by FCB of the Agreement and the Plan of Merger and the
consummation by FCB of the Merger and the other transactions contemplated
thereby that have not been received or obtained as of the date hereof,
except where the failure to obtain such consent or approval or to make
such filing or registration will not have or be reasonably likely to have
a Material Adverse Effect on FCB.
10. To our knowledge, there are no actions, suits or proceedings,
pending or threatened against or affecting FCB or the FCB Subsidiaries, at
law or in equity or before or by any governmental department, commission,
board, bureau, agency or instrumentality, or before any arbitrator of any
kind which, in our opinion, based upon such knowledge, if the relief
sought in the pleadings in such actions, suits and proceedings were
granted or if the threatened claims were accrued in full, are likely to
have a Material Adverse Effect on FCB.
We are qualified to practice law in the State of Wisconsin and
we do not purport to be experts on the law other than that of the State of
Wisconsin and the Federal laws of the United States of America. We
express no opinion and make no representations with respect to the law of
any other jurisdiction.
This opinion is being furnished to you solely for your benefit
in connection with the Agreement. It may not be relied upon by, nor a
copy of it delivered to any other party, without our prior written
consent. This opinion is based upon our knowledge of the law and facts as
of the date hereof, and we assume no duty to communicate with you with
respect to any matter that comes to our attention hereafter.
Very truly yours,
FOLEY & LARDNER
Christopher J. Zinski
Direct Dial: (312) 258-5548
[Schiff Hardin & Waite] Exhibit M
_____________, 1997
FCB Financial Corp.
108 East Wisconsin Avenue
Neenah, Wisconsin 54957
Re: Agreement and Plan of Merger, dated as of November __,
1996, Between FCB Financial Corp. and OSB Financial
Corp.
Gentlemen:
We have served as special counsel to OSB Financial Corp., a
Wisconsin corporation ("OSB"), in connection with the preparation,
execution and delivery of the Agreement and Plan of Merger, dated November
__, 1996 (the "Agreement"), and the Plan of Merger, dated ________, 1997
(the "Plan of Merger"), by and between OSB and FCB Financial Corp., a
Wisconsin corporation ("FCB"), providing for the merger of OSB with and
into FCB (the "Merger"). This opinion is being delivered to you pursuant
to Section 7.3(d) of the Agreement. Capitalized terms used herein and not
otherwise defined shall have the meaning given them in the Agreement.
As counsel for OSB, we have reviewed the Agreement, the Plan
of Merger and the Registration Statement on Form S-4 [, as amended] of FCB
(Registration No. 333-________) (the "Registration Statement") filed with
the Securities and Exchange Commission (the "Commission"), and also have
examined and relied upon such other documents and instruments, and
certificates of public officials, and have made such other investigations
and inquiries as we have deemed necessary or appropriate for purposes of
this opinion. For purposes of this opinion, we have assumed, without
investigation: (a) the legal capacity of each natural person; (b) the full
power and authority of each person, other than OSB and its officers, to
execute, deliver and perform each document heretofore executed and
delivered or hereafter to be executed and delivered, and to do each other
act heretofore done or hereafter to be done by such person; (c) the due
authorization, execution and delivery by each person, other than OSB and
its officers, of each document heretofore executed and delivered or
hereafter to be executed and delivered by such person; (d) the legality,
validity, binding effect and enforceability as to each person, other than
OSB and its officers, of each document heretofore executed and delivered
or hereafter to be executed and delivered, and of each other act
heretofore done or hereafter to be done by such person; (e) the
genuineness of each signature (other than signatures of OSB officers) on
and the completeness of each document submitted to us as an original; (f)
the conformity to, and the authenticity of, the original of each document
submitted to us as a copy; (g) no modification of any provision of any
document, nor waiver of any right or remedy; and (h) no exercise of any
right or remedy other than in a commercially reasonable and conscionable
manner and in good faith.
As to questions of fact material to our opinion which have not
been independently established (which includes the factual basis for those
parts of our opinion which are stated to be qualified with the statement
"to our knowledge" or words of similar import), we have relied upon,
without independent verification, the accuracy of the relevant facts
stated in the certificates or comparable documents of officers of OSB and
the OSB Subsidiaries and upon the accuracy of the representations and
warranties contained in the Agreement. Although we have made no
independent investigation or verification of each matter set forth
therein, nothing has come to our attention indicating that such reliance
by us or by you is not justified. In addition, and particularly with
respect to numbered paragraph 8 below, we wish to advise you that we have
made no special investigation as to the factual basis for our opinion,
such as a search of the dockets or records of any court or governmental
office, agency or authority to determine if any such proceedings are
pending or orders have been entered involving OSB or the OSB Subsidiaries.
The opinions hereafter expressed are qualified to the extent
that the rights, interests and remedies under the Agreement, the Plan of
Merger, or any other documents, exhibits or schedules delivered in
connection with the transactions contemplated thereby may be subject to or
affected by: (a) any bankruptcy, insolvency, bank conservatorship or
receivership or similar laws affecting creditors' rights and remedies
generally, and the enforcement thereof; (b) the unavailability of, or any
limitation on the availability of, any particular right or remedy (whether
in a proceeding in equity or at law) because of general principles of
equity; and (c) any limitation insofar as indemnification and contribution
provisions thereof may be limited by applicable law. In addition, (i)
with respect to numbered paragraph 5 below, we express no opinion as to
the adequacy of the Registration Statement or Joint Proxy Statement and
(ii) we express no opinion as to the enforceability of Sections 1.10 and
8.3 of the Agreement.
On the basis of and subject to the foregoing and the
qualifications stated below, we are of the opinion that:
1. OSB is a corporation validly existing under the laws of the
State of Wisconsin and has the corporate power to own all of its
properties and assets and to carry on its business as it is now being
conducted as described in the Registration Statement. OSB is a registered
savings and loan holding company under the Home Owners' Loan Act.
2. OSB Bank is validly existing as a savings association under
the laws of the United States and has the corporate power to own all of
its properties and assets and to carry on its business as it is now being
conducted as described in the Registration Statement.
3. Each of the OSB Subsidiaries (other than OSB Bank) is a
corporation validly existing under the laws of its respective jurisdiction
of incorporation and each has the corporate power to own all of its
properties and assets and to carry on its business as it is now being
conducted as described in the Registration Statement, except that if RWFV,
Inc. has been dissolved it has paid all outstanding franchise and other
taxes due and owing by it.
4. The authorized capitalization of OSB consists of (i) 7,000,000
shares of common stock, $0.01 par value per share, of which ____________
shares are issued and outstanding and ________ shares are held in the
treasury; and (ii) 1,000,000 shares of preferred stock, $0.01 par value
per share, of which no shares are issued and outstanding. All such issued
shares of common stock have been duly authorized and validly issued and
are fully paid and nonassessable (except with respect to assessability as
provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation
Law (the "WBCL")). To our knowledge, except for the rights of FCB
under the Agreement, the Plan of Merger, FCB Stock Option Agreement and
except for options granted and outstanding under OSB's 1992 Stock Option
and Incentive Plan, there are no options, agreements, contracts or other
rights in existence to purchase or acquire from OSB any shares of capital
stock of OSB.
5. OSB has full corporate power and authority to execute and
deliver the Agreement and the Plan of Merger and to consummate the
transactions contemplated thereby. The execution and delivery and
performance of the Agreement and the Plan of Merger and the consummation
of the transactions contemplated thereby have been duly and validly
approved by the Board of Directors of OSB and, to the best of our
knowledge, in the case of the Agreement and Plan of Merger, by the
shareholders of OSB, these being the only corporate authorizations
required under the Articles of Incorporation and Bylaws of OSB and the
WBCL. The Agreement and the Plan of Merger have been duly and validly
executed and delivered by OSB and constitute valid and binding obligations
of OSB, enforceable against OSB in accordance with their respective terms.
6. The execution, delivery and performance by OSB of the
Agreement and the Plan of Merger will not violate the Articles of
Incorporation or Bylaws of OSB.
7. No consents or approvals of, or filings or registrations with,
any Governmental Entity are necessary in connection with the execution and
delivery by OSB of the Agreement and the Plan of Merger and the
consummation by OSB of the Merger and the other transactions contemplated
thereby that have not been received or obtained as of the date hereof,
except where the failure to obtain such consent or approval or to make
such filing or registration will not have or be reasonably likely to have
a Material Adverse Effect on OSB.
8. To our knowledge, there are no actions, suits or proceedings,
pending or threatened against or affecting OSB or the OSB Subsidiaries, at
law or in equity or before or by any governmental department, commission,
board, bureau, agency or instrumentality, or before any arbitrator of any
kind which, in our opinion, based upon such knowledge, if the relief
sought in the pleadings in such actions, suits and proceedings were
granted or if the threatened claims were accrued in full, are likely to
have a Material Adverse Effect on OSB.
This opinion is being furnished to you solely for your benefit
in connection with the Agreement. It may not be relied upon by, nor a
copy of it delivered to any other party, without our prior written
consent. This opinion is based upon our knowledge of the law and facts as
of the date hereof, and we assume no duty to communicate with you with
respect to any matter that comes to our attention hereafter.
Very truly yours,
SCHIFF HARDIN & WAITE
By:___________________________________
Christopher J. Zinski