OPTION AGREEMENT
This OPTION AGREEMENT (the "Agreement") is entered into on
November 21, 1996, by and between STANDARD FEDERAL BANCORPORATION, INC., a
Michigan corporation ("Standard"), and ABN AMRO NORTH AMERICA, INC., a
Delaware corporation ("AANA").
AANA and Standard have entered into an Agreement and Plan of Merger
(the "Merger Agreement") providing, among other things, for the merger
("Merger") of a wholly owned subsidiary of AANA with and into Standard with
Standard as the surviving corporation. In connection with the Merger, each
share of outstanding common stock of Standard, no par value ("Common
Stock"), would be converted into the right to receive $59.00 per share in
cash from AANA. AANA has expressly indicated to Standard that it would be
unwilling to enter into the Merger Agreement and consummate the transactions
contemplated thereby without the benefit of this Option Agreement. In order
to encourage AANA to proceed with the Merger and to prepare required federal
and state applications for approvals from the Applicable Governmental
Authorities and to incur substantial expense in connection therewith,
Standard has determined that it is in its best interests to grant to AANA an
option to purchase additional shares of its authorized but unissued Common
Stock. Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Merger Agreement.
In consideration of the premises and the respective representations,
warranties, covenants and agreements set forth herein, and intending to be
legally bound hereby, Standard and AANA agree as follows:
1. Grant of Option. Subject to the terms and conditions set
forth herein, Standard hereby grants to AANA an option (the "Option") to
purchase up to 6,209,894 fully paid and nonassessable shares (the "Option
Shares") of Standard Common Stock at a purchase price of $52.50 per share
(such price, as adjusted if applicable, the "Purchase Price").
Notwithstanding anything contained herein or in the Merger Agreement to the
contrary, the amount that AANA (including any successor-in-interest,
Affiliate or transferee) shall be entitled to receive, whether as (a)
consideration for the Option Shares or the Option (including, without
limitation, any payments in the form of Repurchase Consideration) from any
Person, including Standard (whether in a single transaction or a series of
transactions), less any Purchase Price actually paid by AANA, or (b) costs,
fees and expenses or other reimbursement amounts paid to AANA pursuant to
Section 7.2(b) of the Merger Agreement shall not exceed $90,000,000 in the
aggregate (the "Limit"). In the event that AANA receives or is entitled to
receive consideration and/or payments described in (a) and (b) above in
excess of the Limit, such excess amount shall be deemed to be held in
constructive trust by AANA for the benefit of Standard and shall be
immediately paid by AANA to Standard at the time and in the form such amount
is received by AANA. Each certificate evidencing Option Shares issued to
AANA upon exercise of the Option shall bear a legend in form and substance
acceptable to Standard to the effect that such shares are subject to the
foregoing restrictions. The foregoing restrictions with respect to the
Limit shall expire and be of no further force and effect on the day after
the second anniversary of the occurrence of a Triggering Event (as defined
below).
2. Exercise of Option.
(a) The Option may be exercised in whole or in part prior to the
termination of this Agreement and after the occurrence of a Triggering
Event, as defined in Section 4 hereof. In the event that AANA desires to
exercise the Option at any time, AANA shall notify Standard as to the number
of shares of Common Stock it wishes to purchase and a place and date, not
less than 2 business days nor more than 10 business days after the date such
notice is given (the "Closing Date"), for the closing of such purchase;
provided, however, that notwithstanding the establishment of such Closing
Date, the consummation of the exercise of the Option may take place only
after all regulatory or supervisory agency approvals required by any
applicable law, rule or regulation shall have been obtained and each such
approval shall have become final. Standard shall fully cooperate with AANA
in the filing of the required notice or application for approval and the
obtaining of any such approval.
(b) On the Closing Date, AANA shall (i) pay to Standard, in
immediately available funds by wire transfer to a bank account designated by
Standard, an amount equal to the Purchase Price multiplied by the number of
Option Shares to be purchased on the Closing Date, and (ii) present and
surrender this Agreement to Standard at the address of Standard specified in
Section 11(f) hereof.
(c) On the Closing Date, simultaneously with the delivery of
immediately available funds and surrender of this Agreement as provided in
Section 2(b) above, (i) Standard shall deliver to AANA a certificate or
certificates representing the Option Shares to be purchased at such Closing,
which Option Shares shall be free and clear of all liens, claims, charges
and encumbrances of any kind whatsoever, and, if the Option is exercised in
part only, an executed new agreement with the same terms as this Agreement
evidencing the right to purchase the balance of the Option Shares hereunder,
and (ii) AANA shall deliver to Standard a letter agreeing that AANA shall
not offer to sell or otherwise dispose of the Option Shares in violation of
the provisions of this Agreement.
(d) Certificates for the Option Shares delivered at each Closing
shall be endorsed with a restrictive legend which shall read substantially
as follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT
TO RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, STATE SECURITIES LAWS AND PURSUANT TO THE TERMS OF AN
OPTION AGREEMENT DATED NOVEMBER 22, 1996. A COPY OF SUCH AGREEMENT
WILL BE PROVIDED TO THE HOLDER HEREOF WITHOUT CHARGE UPON RECEIPT BY
Standard, INC. OF A WRITTEN REQUEST THEREFOR.
The above legend shall be removed by delivery of substitute certificate(s)
without the legend if AANA shall deliver to Standard 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 Standard and its
counsel, to the effect that the legend is not required for purposes of the
Securities Act of 1933, as amended (the "1933 Act").
(e) Upon the giving of written notice of exercise by AANA to
Standard and the tender of the applicable purchase price in immediately
available funds, AANA shall be deemed to be the holder of record of the
shares of Common Stock issuable upon such exercise, notwithstanding that the
stock transfer books of Standard shall then be closed or that certificates
representing such shares of Common Stock shall not then be actually
delivered to AANA. Standard 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 2 in the name of AANA or its assignee, transferee or
designee.
3. Termination of Option. The Option shall terminate and be of
no further force and effect upon the earliest to occur of: (i) the Effective
Time (as defined in the Merger Agreement), (ii) twenty-four (24) months
after the occurrence of a Triggering Event (as defined below), (iii)
termination of the Merger Agreement by reason of wrongful termination
thereof by AANA or by mutual agreement of the parties, (iv) six (6) months
after the termination of the Merger Agreement by Standard pursuant to
Section 7.1(d)(i) thereof, or (v) twelve (12) months after the termination
of the Merger Agreement for any other reason.
4. Conditions to Exercise. AANA may exercise the Option, in
whole or in part, at any time prior to its termination following the
occurrence of a Triggering Event. The term "Triggering Event" shall mean
the occurrence of any of the following events:
(a) if the Board of Directors of Standard shall
withdraw its support of the Merger by resolution or by authorization
of specific action inconsistent with consummation of the Merger, or
if it fails to recommend approval of the Merger;
(b) a Person (as defined by Section 13(d)(3)(e) of the
1934 Act), other than AANA or an Affiliate of AANA:
(i) acquires beneficial ownership (as such term is
defined in Rule 13d-3 as promulgated under the Securities
and Exchange Act of 1934, as amended (the "Exchange Act"))
of ten percent (10%) or more of the then outstanding Common
Stock of Standard or securities representing, or the right
or option to acquire beneficial ownership of, or to vote
securities representing, ten percent (10%) or more of the
then outstanding Common Stock of Standard, and after the
occurrence of such acquisition the Board of Directors of
Standard (A) recommends such acquisition to its stockholders
for acceptance, (B) fails to undertake such acts as AANA
reasonably requests to oppose such acquisition (provided
that in so doing Standard does not incur significant legal
expense), or (C) fails to recommend or withdraws its
approval of the Merger Agreement to the stockholders of
Standard; or
(ii) enters into an agreement with Standard
pursuant to which such Person or any affiliate of such
Person would (A) merge or consolidate, or enter into any
similar transaction, with Standard or (B) acquire all or
substantially all of the assets of Standard; or
(iii) makes a bona fide proposal (a "Proposal") for
any merger, consolidation or acquisition of all or
substantially all the assets of Standard or other business
combination involving Standard, and thereafter, but before
such Proposal has been Publicly Withdrawn, Standard
willfully commits any material breach of any covenant of the
Merger Agreement and such breach (A) would entitle AANA to
terminate the Merger Agreement without regard to the cure
periods provided for therein, (B) is not cured and (C) would
materially interfere with Standard's ability to consummate
the Merger or materially reduce the value of the transaction
to AANA.
The phrase "Publicly Withdrawn" for purposes of clause (iii) above shall
mean an unconditional bona fide withdrawal of the Proposal or a formal
rejection of such Proposal by Standard in writing. Standard shall notify
AANA promptly in writing of the occurrence of any of the events set forth in
paragraphs (b)(i), (ii), or (iii) above, it being understood that the giving
of such notice by Standard shall not be a condition to the right of AANA to
transfer or exercise the Option.
5. Representations and Warranties of Standard. Standard hereby
represents and warrants to AANA as follows:
(a) Standard has all requisite corporate power and authority to
enter into this Agreement and, subject to any approvals referred to herein
(including, without limitation, the approval of FRB or OTS, if necessary),
to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action on the part of Standard. This Agreement has been duly executed and
delivered by Standard.
(b) Standard has taken all necessary corporate and other action
to authorize and reserve and to permit it to issue, and, at all times from
the date hereof until the obligation to deliver the Option Shares upon the
exercise of the Option terminates, will have reserved for issuance, upon
exercise of the Option, shares of Common Stock necessary for AANA to
exercise the Option, and Standard will take all necessary corporate action
to authorize and reserve for issuance all additional shares of Common Stock
or other securities which may be issued upon exercise of the Option. The
Option Shares, including all additional shares of Standard Common Stock or
other securities which may be issuable pursuant to Section 7 hereof, upon
issuance pursuant hereto and payment therefor, shall be duly and validly
issued, fully paid and nonassessable, and shall be delivered free and clear
of all liens, claims, charges and encumbrances of any kind or nature
whatsoever, including any preemptive rights of any stockholder of Standard.
(c) The execution, delivery and performance of this Agreement
does not or will not, and the consummation by Standard of any of the
transactions contemplated hereby will not, constitute or result in (i) a
breach or violation of, or a default under, its certificate of incorporation
or bylaws, or the comparable governing instruments of any of its
subsidiaries, or (ii) a breach or violation of, or a default under, any
agreement, lease, contract, note, mortgage, indenture, arrangement or other
obligation of it or any of its subsidiaries (with or without the giving of
notice, the lapse of time or both) or under any law, rule, ordinance or
regulation or judgment, decree, order, award or governmental or
nongovernmental permit or license to which it or any of its subsidiaries is
subject, that would, in any case referred to in this clause (ii), give any
other person the ability to prevent or enjoin Standard's performance under
this Agreement; provided, however, that Standard makes no representations or
warranties as to the enforceability or legality of this Agreement and the
Option granted hereby under the laws of the State of Michigan.
(d) Standard agrees: (i) that it shall at all times maintain,
free from preemptive rights, sufficient authorized but unissued or treasury
shares of Common Stock so that the Option may be exercised without
additional authorization of Common Stock after giving effect to all other
options, warrants, convertible securities and other rights to purchase
Common Stock; (ii) that it will not, by charter amendment or through
reorganization, consolidation, merger, dissolution or sale of assets, or by
any other voluntary act, avoid or seek to avoid the observance or
performance of any of the covenants, stipulations or conditions to be
observed or performed hereunder by Standard except pursuant to the Merger;
(iii) promptly to take all action as may from time to time be required
(including (x) complying with all premerger notification, reporting and
waiting period requirements specified in 15 U.S.C. section 18a and
regulations promulgated thereunder and (y) in the event, under the Home
Owners' Loan Act, as amended, or the Change in Bank Control Act of 1978, as
amended, or any state banking law, prior approval of or notice to the OTS,
or to any federal or state regulatory authority is necessary before the
Option may be exercised, cooperating fully with AANA in preparing such
applications or notices and providing such information to the OTS and the
FRB or such state regulatory authority as they may require) in order to
permit AANA to exercise the Option and Standard duly and effectively to
issue shares of Common Stock pursuant hereto; and (iv) promptly to take all
action provided herein to protect the rights of AANA against dilution on or
prior to the Closing Date.
6. Representations and Warranties of AANA. AANA hereby
represents and warrants to Standard that:
(a) AANA has all requisite corporate power and authority to
enter into this Agreement and, subject to any approvals or consents referred
to herein, to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by AANA.
(b) The Option is not being, and any Option Shares or other
securities acquired by AANA upon exercise of the Option will not be,
acquired with a view to the public distribution thereof and will not be
transferred or otherwise disposed of except in a transaction registered or
exempt from registration under the 1933 Act, as amended.
7. Adjustment upon Changes in Capitalization; Repurchase of
Option.
(a) In the event of any change in Standard Common Stock by
reason of a stock dividend, stock split, split-up, recapitalization,
combination, exchange of shares or similar transaction, the type and number
of shares or securities subject to the Option, and the Purchase Price
therefor, shall be adjusted appropriately, and proper provision shall be
made in the agreements governing such transaction so that AANA shall
receive, upon exercise of the Option, the number and class of shares or
other securities or property that AANA would have received in respect of
Standard Common Stock if the Option had been exercised immediately prior to
such event, or the record date therefor, as applicable. If any additional
shares of Standard Common Stock are issued after the date of this Agreement
(other than pursuant to an event described in the first sentence of this
Section 7(a)), the number of shares of Standard Common Stock subject to the
Option shall be adjusted so that, after such issuance, it, together with any
shares of Standard Common Stock previously issued pursuant hereto, equals
19.9% of the number of shares of Standard Common Stock then issued and
outstanding, without giving effect to any shares subject to or issued
pursuant to the Option.
(b) If a Triggering Event described in Section 4(b)(ii) shall
occur and the transaction that is the subject of such Triggering Event is
consummated, or if any Person other than AANA or an Affiliate of AANA
acquires beneficial ownership of 50% or more of the then outstanding shares
of Common Stock, Standard, if requested by AANA, shall pay to AANA, in lieu
of delivery of the Option Shares an amount in cash equal to the Spread
multiplied by the total number of Option Shares for which the Option is
exercisable (such aggregate amount is referred to as the "Repurchase
Consideration").
(c) As used herein, "Spread" shall mean the excess, if any, over
the Purchase Price (as defined in Section 1) of the higher of (i) highest
closing price per share of Standard Common Stock as reported on the New York
Stock Exchange ("NYSE") within six months immediately preceding the date
that AANA requests cash in lieu of shares pursuant to this Section (the
"Request Date"), (ii) the price per share of Common Stock at which a tender
offer or an exchange offer therefor has been made, (iii) the price per share
of Common Stock to be paid to any third party pursuant to an agreement with
Standard, or (iv) in the event of a sale of all or a substantial portion of
Standard's assets the sum of the price paid in such sale for such assets and
the current market value of the remaining assets of Standard determined by a
nationally recognized investment banking firm mutually selected by AANA, on
the one hand, and Standard, on the other, divided by the number of shares of
Common Stock of Standard outstanding at the time of such sale. In
determining the Repurchase Consideration, the value of consideration other
than cash shall be determined by a nationally recognized investment banking
firm mutually selected by AANA, on the one hand, and Standard on the other.
(d) Upon exercise of its right to receive cash pursuant to this
Section, any and all obligations of AANA to make payment pursuant to Section
2(b) and all obligations of Standard to deliver a certificate or
certificates representing shares of Common Stock pursuant to Section 2(b)
shall be terminated. If AANA exercises its rights under this Section 7,
Standard shall, within 10 business days after the Request Date, pay the
Repurchase Consideration to AANA in immediately available funds, and AANA
shall surrender to Standard the Option. Notwithstanding the foregoing, to
the extent that prior notification to or approval of the FRB or other
regulatory authority is required in connection with the payment of all or
any portion of the Repurchase Consideration, AANA shall have the ongoing
option to revoke its request for repurchase pursuant to Section 7(b) or to
require that Standard deliver from time to time that portion of the
Repurchase Consideration that it is not then so prohibited from paying and
promptly file the required notice or application for approval and
expeditiously process the same (and Standard shall cooperate with AANA in
the filing of any such notice or application and the obtaining of any such
approval). If the FRB or any other regulatory authority disapproves of any
part of Standard's proposed repurchase pursuant to Section 7(b), Standard
shall promptly give notice of such fact to AANA and AANA shall have the
right to exercise the Option as to the number of Option Shares for which the
Option was exercisable at the Request Date.
8. Registration Rights.
(a) Upon the occurrence of a Triggering Event Standard shall, at
the request of AANA delivered at the time of and together with a written
notice of exercise in accordance with Section 2 hereof and on one occasion
only, promptly prepare, file and keep current a registration statement under
the 1933 Act covering any shares issued or issuable pursuant to this Option
and shall use its best efforts to cause such registration statement to
become effective and to remain effective for up to 180 days from the day
such registration statement first becomes effective or such shorter time as
may be reasonably necessary in order to permit the sale or other disposition
of any shares of Common Stock issued upon total or partial exercise of this
Option in accordance with any plan of disposition requested by AANA. AANA
will provide such information as may be necessary for Standard's preparation
of such a registration statement, and any such information will not contain
any statement which, at the time and in light of the circumstances under
which it is made, is false or misleading with respect to any material fact
nor will such information omit to state any material facts with respect to
AANA or its intended plan of disposition of Option Shares. The foregoing
notwithstanding, if, at the time of any request by AANA for registration of
Option Shares as provided above, Standard is in registration with respect to
an underwritten public offering of shares of Common Stock, and if in the
good faith reasonable judgment of the managing underwriter or managing
underwriters, or, if none, the sole underwriter or underwriters, of such
offering the inclusion of AANA's Option or Option Shares would interfere
with the successful marketing of the shares of Common Stock offered by
Standard, the number of Option Shares otherwise to be covered in the
registration statement contemplated hereby may be reduced ("Underwriter
Reduction"); provided, however, that after any such required reduction, the
number of Option Shares to be included in such offering for the account of
AANA shall constitute at least 10% of the total number of shares to be sold
by AANA and Standard in the aggregate; provided, further, however, that if
such reduction occurs, then Standard shall file a registration statement for
the balance as promptly as practical and no reduction shall thereafter
occur. If requested by AANA in connection with such registration, Standard
shall become a party to any underwriting agreement relating to the sale of
such shares, but only to the extent of obligating itself in respect of
representations, warranties, indemnities and other agreements customarily
included in such underwriting agreements for Standard.
(b) If after the occurrence of a Triggering Event, Standard
effects a registration under the Securities Act of Standard Common Stock for
its own account or for any other stockholders of Standard (other than on
Form S-4 or Form S-8, or any successor forms or any form with respect to a
dividend reinvestment or similar plan), it shall allow AANA the right to
participate in such registration, and such participation shall not affect
the obligation of Standard to effect a registration statement for AANA under
Section 8(a); provided, however, that if the circumstances give rise to an
Underwriter Reduction as provided in 8(a) above then the procedure set forth
in Section 8(a) governing the number of Option Shares to be included in such
registration shall apply.
(c) In connection with any registration pursuant to this Section
8, Standard and AANA shall provide each other and any underwriter of the
offering with customary representations, warranties, covenants,
indemnification and contribution in connection with such registration. Any
registration statement prepared and filed under this Section 8 and any sale
covered thereby shall be at Standard's expense except for underwriting
discounts or commissions, brokers' fees, taxes and the fees and
disbursements of AANA's counsel related thereto.
9. (a) In the event that prior to the termination of the
Option, Standard shall enter into an agreement (i) to consolidate with or
merge into any person, other than AANA or one of its subsidiaries, and shall
not be the continuing or surviving corporation of such consolidation or
merger, (ii) to permit any person, other than AANA or one of its
subsidiaries, to merge into Standard and Standard shall be the continuing or
surviving corporation, but, in connection with such merger, the then
outstanding shares of Common Stock shall be changed into or exchanged for
stock or other securities of any other person or cash or any other property
or the then outstanding shares of Common Stock shall after such merger
represent less than 50% of the outstanding shares and share equivalents of
the merged company, or (iii) to sell or otherwise transfer all or
substantially all of its assets to any person, other than AANA or one of its
subsidiaries, then, and in each such case, the agreement governing such
transaction shall make proper provision so that the Option shall, upon the
consummation of any such transaction and upon the terms and conditions set
forth herein, be converted into, or exchanged for, an option (the
"Substitute Option"), at the election of AANA, of either (x) the Acquiring
Corporation (as hereinafter defined) or (y) any person that controls the
Acquiring Corporation.
(b) The following terms have the meanings indicated:
(1) "Acquiring Corporation" shall mean (i) the
continuing or surviving corporation of a consolidation or merger
with Standard (if other than Standard), (ii) Standard in a merger in
which Standard is the continuing or surviving person, and (iii) the
transferee of all or substantially all of Standard's assets.
(2) "Substitute Common Stock" shall mean the shares of
capital stock (or similar equity interest) with the greatest voting
power in respect of the election of directors (or other persons
similarly responsible for direction of the business and affairs) of
the issuer of the Substitute Option.
(3) "Assigned Value" shall mean the highest of (i) the
price per share of common stock at which a tender offer or exchange
offer therefor has been made, (ii) the price per share of common
stock to be paid by any third party pursuant to an agreement with
Standard, or (iii) in the event of a sale of all or substantially
all of Standard's assets, the sum of the price paid in such sale for
such assets and the current market value of the remaining assets of
Standard as determined by a nationally recognized investment banking
firm selected by AANA divided by the number of shares of Common
Stock of Standard outstanding at the time of such sale. In
determining the market/offer price, the value of consideration other
than cash shall be determined by a nationally recognized investment
banking firm selected by AANA.
(4) "Average Price" shall mean the average closing
price of a share of the Substitute Common Stock for the six months
immediately preceding the consolidation, merger or sale in question,
but in no event higher than the closing price of the shares of
Substitute Common Stock on the day preceding such consolidation,
merger or sale; provided, however, that if Standard is the issuer of
the Substitute Option, the Average Price shall be computed with
respect to a share of common stock issued by the person merging into
Standard or by any company which controls or is controlled by such
person, as AANA may elect.
(c) The Substitute Option shall have the same terms and
conditions as the Option, provided, that if any term or condition of the
Substitute Option cannot, for legal reasons, be the same as the Option, such
term or condition shall be as similar as possible and in no event less
advantageous to AANA. The issuer of the Substitute Option shall also enter
into an agreement with AANA in substantially the same form as this
Agreement, which shall be applicable to the Substitute Option.
(d) The Substitute Option shall be exercisable for such number
of shares of Substitute Common Stock as is equal to (i) the product of (A)
the Assigned Value and (B) the number of shares of Common Stock for which
the Option is then exercisable, divided by (ii) the Average Price. The
exercise price of the Substitute Option per share of Substitute Common Stock
shall then be equal to the Option Price multiplied by a fraction, the
numerator of which shall be the number of shares of Common Stock for which
the Option is then exercisable and the denominator of which shall be the
number of shares of Substitute Common Stock for which the Substitute Option
is exercisable.
(e) In no event, pursuant to any of the foregoing paragraphs,
shall the Substitute Option be exercisable for more than 19.9% of the shares
of Substitute Common Stock outstanding prior to exercise of the Substitute
Option.
(f) Standard shall not enter into any transaction described in
subsection (a) of this Section 9 unless the Acquiring Corporation and any
person that controls the Acquiring Corporation assume in writing all the
obligations of Standard hereunder.
10. Listing. If Standard Common Stock to be acquired upon
exercise of the Option is then authorized for listing on the NYSE or on any
other national securities exchange or automated quotation system, Standard
will promptly file an application to authorize for listing the shares of
Standard Common Stock to be acquired upon exercise of the Option on the NYSE
or such other securities exchange or quotation system and will use its best
efforts to obtain approval of such listing as soon as practicable.
11. Miscellaneous.
(a) Expenses. Except as otherwise provided in Section 8, each
of the parties hereto shall bear and pay all costs and expenses incurred by
it or on its behalf in connection with the transactions contemplated
hereunder, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) Waiver and Amendment. Any provision of this Agreement may
be waived at any time by the party that is entitled to the benefits of such
provision. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
(c) Entire Agreement; No Third-Party Beneficiary; Severability.
This Agreement constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof and is not intended to confer upon
any person other than the parties hereto any rights or remedies hereunder.
If any term, provision, covenant or restriction of this Agreement is held by
a court of competent jurisdiction or a federal or state regulatory agency to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. If for any
reason such court or regulatory agency determines that the Option does not
permit AANA to acquire, or does not require Standard to repurchase, the full
number of shares of Standard Common Stock as provided in Sections 2 and 7,
it is the express intention of Standard to allow AANA to acquire or to
require Standard to repurchase such lesser number of shares as may be
permissible without any amendment or modification hereof.
(d) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware without
regard to any applicable conflicts of law rules.
(e) Descriptive Headings. The descriptive headings contained
herein are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
(f) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (with confirmation) or mailed by registered or certified mail
(return receipt requested) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
If to AANA, addressed to:
ABN AMRO North America, Inc.
135 South LaSalle Street
Room 340
Chicago, Illinois 60603
Telecopy: (312) 904-6318
Attention: Thomas C. Heagy, Chief Financial Officer
with a copy to:
ABN AMRO North America, Inc.
Legal
135 South LaSalle Street
Suite 925
Chicago, Illinois 60603
Telecopy: (312) 904-5150
Attention: Robert K. Quinn, Esq., Group Senior Vice
President, General Counsel and Secretary
and with a copy to:
Vedder, Price, Kaufman & Kammholz
222 North LaSalle Street
Chicago, Illinois 60601-1003
Telecopy: (312) 609-5005
Attention: Robert J. Stucker, Esq.
If to Standard, addressed to:
Standard Federal Bancorporation, Inc.
2600 West Big Beaver Road
Troy, Michigan 48084
Telecopy: (810) 637-0329
Attention: Thomas R. Ricketts, Chairman
with a copy to:
Dykema Gossett, PLLC
400 Renaissance Center
Detroit, Michigan 48243
Telecopy: (313) 568-6915
Attention: Paul R. Rentenbach, Esq.
or to such other place and with such other copies as either party may
designate as to itself by written notice to the others.
(g) Counterparts. This Agreement and any amendments hereto may
be executed in two counterparts, each of which shall be considered one and
the same agreement and shall become effective when both counterparts have
been signed, it being understood that both parties need not sign the same
counterpart.
(h) Assignment. TRANSFER OF THIS AGREEMENT IS SUBJECT TO
CERTAIN PROVISIONS CONTAINED HEREIN AND TO RESALE RESTRICTIONS UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. Neither this Agreement nor any of the
rights, interests or obligations hereunder or under the Option may be
assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other party, except that
AANA may assign this Agreement to a wholly owned subsidiary of AANA. This
Agreement shall be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and permitted assigns.
(i) Further Assurances. In the event of any exercise of the
Option by AANA, Standard and AANA shall execute and deliver all other
documents and instruments and take all other action that may be reasonably
necessary in order to consummate the transactions provided for by such
exercise.
(j) Specific Performance. The parties hereto agree that this
Agreement may be enforced by either party through specific performance,
injunctive relief and other equitable relief. Both parties further agree to
waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such equitable relief and that this provision is
without prejudice to any other rights that the parties hereto may have for
any failure to perform this Agreement.
(k) Termination by AANA. Notwithstanding anything to the
contrary herein, in the event that AANA or any Related Person (as
hereinafter defined) thereof is a person making an offer or proposal to
engage in an action that would result in a Triggering Event (other than the
transaction contemplated by the Merger Agreement), then the Option held by
AANA shall immediately terminate and be of no further force or effect. A
Related Person of AANA means any Affiliate (as defined in Rule 12b-2 of the
rules and regulations under the Exchange Act) of AANA or any person that is
the beneficial owner of 5% or more of the voting power of AANA.
IN WITNESS WHEREOF, Standard and AANA have caused this Option
Agreement to be signed by their respective officers, all as of the day and
year first written above.
ABN AMRO NORTH AMERICA, INC.
By: /S/ HARRISON F. TEMPEST
Its: Chairman and Chief Executive Officer
By: /S/ ROBERT K. QUINN
Its: Group Senior Vice President,
General Counsel and Secretary
STANDARD FEDERAL BANCORPORATION, INC.
By: /S/ THOMAS R. RICKETTS
Its: Chairman and President