EXHIBIT 2.2
OPTION AGREEMENT
This Option Agreement (the "Agreement") is entered into as of August
17, 1998, by and between Westco Bancorp, Inc., a Delaware corporation
("Bancorp"), and MAF Bancorp, Inc., a Delaware corporation ("MAF").
WHEREAS, MAF and Bancorp have entered into an Agreement and Plan of
Reorganization dated as of August 17, 1998 (the "Merger Agreement") providing,
among other things, for the merger ("Merger") of Bancorp with and into MAF, with
MAF as the surviving corporation;
WHEREAS, in connection with the Merger, each share of outstanding
common stock of Bancorp, par value $0.01 per share ("Bancorp Common Stock"),
would be converted into the right to receive 1.395 shares of common stock of
MAF, par value $0.01 per share ("Merger Consideration");
WHEREAS, MAF has expressly indicated to Bancorp that it would be
unwilling to enter into the Merger Agreement and consummate the transactions
contemplated thereby without the benefit of this Option Agreement; and
WHEREAS, in order to encourage MAF to proceed with the Merger and to
prepare required federal and state applications for approvals and filings from
the Applicable Governmental Authorities and to incur substantial expense in
connection therewith, Bancorp has determined that it is in its best interests to
grant to MAF an option to purchase additional shares of its authorized but
unissued Bancorp Common Stock. Capitalized terms not otherwise defined herein
shall have the meanings given to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the respective
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, Bancorp and MAF agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions set forth
herein, Bancorp hereby grants to MAF an option (the "Option") to purchase up to
617,685 fully paid and nonassessable shares (the "Option Shares") of Bancorp
Common Stock at a purchase price of $26.35 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 MAF (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 Bancorp (whether in a single transaction or a series of
transactions), less any Purchase Price actually paid by MAF, or (b) costs, fees
and expenses or other reimbursement amounts paid to MAF pursuant to Section 7.2
of the Merger Agreement shall not exceed $4,000,000 in the aggregate (the
"Limit"). In the event that MAF 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 MAF for the
benefit of Bancorp and shall be immediately paid by MAF to Bancorp at the time
and in the form such amount is received by MAF. Each certificate evidencing
Option Shares issued to MAF upon exercise of the Option shall bear a legend in
form and substance acceptable to Bancorp to the effect that such shares are
subject to the foregoing restrictions. The foregoing restrictions with
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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 MAF
desires to exercise the Option at any time, MAF shall notify Bancorp 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. Bancorp shall fully cooperate with MAF in the filing of the
required notice or application for approval and the obtaining of any
such approval.
(b) On the Closing Date, MAF shall (i) pay to Bancorp, in
immediately available funds by wire transfer to a bank account
designated by Bancorp, 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 Bancorp at the address of
Bancorp 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) Bancorp shall deliver to MAF 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 agreement with the same
terms as this Agreement evidencing the right to purchase the balance of
the Option Shares hereunder, and (ii) MAF shall deliver to Bancorp a
letter agreeing that MAF 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 AS OF AUGUST 17, 1998. A COPY OF SUCH OPTION AGREEMENT WILL BE
PROVIDED TO THE HOLDER HEREOF WITHOUT CHARGE UPON RECEIPT BY WESTCO
BANCORP, INC. OF A WRITTEN REQUEST THEREFOR.
The above legend shall be removed by delivery of substitute
certificate(s) without the legend if MAF shall deliver to Bancorp 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 Bancorp and its counsel,
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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 MAF to
Bancorp and the tender of the applicable purchase price in immediately
available funds, MAF 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 Bancorp shall then be closed or that
certificates representing such shares of Common Stock shall not then be
actually delivered to MAF. Bancorp 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 MAF 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) valid termination of
the Merger Agreement by Bancorp pursuant to Section 7.1(d) of the Merger
Agreement, (iv) termination of the Merger Agreement by MAF pursuant to Section
7.1(g) of the Merger Agreement, (v) termination of the Merger Agreement pursuant
to Section 7.1(a) of the Merger Agreement, or (vi) twelve (12) months after the
termination of the Merger Agreement for any other reason.
4. CONDITIONS TO EXERCISE. MAF 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 Bancorp 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 1933
Act), other than MAF or an affiliate of MAF:
(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
Bancorp 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 Bancorp, and after the occurrence
of such acquisition the Board of Directors of Bancorp (A)
recommends such acquisition to its stockholders for
acceptance, (B) fails to undertake such acts as MAF reasonably
requests to oppose such acquisition (provided that in so doing
Bancorp does not incur significant legal expense), or (C)
fails to recommend or withdraws its approval of the Merger
Agreement to the stockholders of Bancorp;
(ii) enters into an agreement with Bancorp pursuant
to which such Person or any affiliate of such Person would (A)
merge or consolidate, or enter into any
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similar transaction, with Bancorp or (B) acquire all or
substantially all of the assets of Bancorp; or
(iii) makes a bona fide proposal (a "Proposal") for
any merger, consolidation or acquisition of all or
substantially all the assets of Bancorp or other business
combination involving Bancorp, and thereafter, but before such
Proposal has been Publicly Withdrawn (defined below), Bancorp
willfully commits any material breach of any covenant of the
Merger Agreement and such breach (A) would entitle MAF to
terminate the Merger Agreement without regard to the cure
periods provided for therein, (B) is not cured and (C) would
materially interfere with Bancorp's ability to consummate the
Merger or materially reduce the value of the transaction to
MAF.
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 Bancorp in writing. Bancorp shall notify MAF 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 Bancorp shall
not be a condition to the right of MAF to transfer or exercise the Option.
5. REPRESENTATIONS AND WARRANTIES OF BANCORP. Bancorp hereby represents
and warrants to MAF as follows:
(a) Bancorp 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 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 Bancorp. This Agreement has
been duly executed and delivered by Bancorp.
(b) Bancorp 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 MAF to exercise the Option, and Bancorp 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 Bancorp 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 Bancorp.
(c) The execution, delivery and performance of this Agreement
does not or will not, and the consummation by Bancorp 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,
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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 Bancorp's performance under
this Agreement.
(d) Bancorp 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 Bancorp 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 MAF in preparing such applications or notices
and providing such information to the OTS or such federal or state
regulatory authority as it may require) in order to permit MAF to
exercise the Option and Bancorp 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 MAF against dilution on or
prior to the Closing Date.
6. REPRESENTATIONS AND WARRANTIES OF MAF. MAF hereby represents and
warrants to Bancorp that:
(a) MAF 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 MAF.
(b) The Option is not being, and any Option Shares or other
securities acquired by MAF 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 Bancorp 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 MAF
shall receive, upon exercise of
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the Option, the number and class of shares or other securities or
property that MAF would have received in respect of Bancorp 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
Bancorp 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 Bancorp Common Stock subject to
the Option shall be adjusted so that, after such issuance, it, together
with any shares of Bancorp Common Stock previously issued pursuant
hereto, equals 19.9% of the number of shares of Bancorp Common Stock
then issued and outstanding, after giving effect to any shares subject
to or issued pursuant to the Option.
(b) If a Triggering Event described in Section 4(b) shall
occur and the transaction that is the subject of such Triggering Event
is consummated, or if any Person other than MAF or an Affiliate of MAF
acquires beneficial ownership of 50% or more of the then outstanding
shares of Bancorp Common Stock, Bancorp, if requested by MAF, shall pay
to MAF, 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"). 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 Bancorp Common
Stock as reported on The Nasdaq Stock Market ("NASDAQ") within six
months immediately preceding the date that MAF 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 by any third party pursuant to an agreement with Bancorp, or (iv)
in the event of a sale of all or a substantial portion of Bancorp's
assets the sum of the price paid in such sale for such assets and the
current market value of the remaining assets of Bancorp determined by a
nationally recognized investment banking firm mutually selected by MAF,
on the one hand, and Bancorp, on the other, divided by the number of
shares of Common Stock of Bancorp 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 MAF, on the one hand, and
Bancorp on the other.
(c) Upon exercise of its right to receive cash pursuant to
this Section, any and all obligations of MAF to make payment pursuant
to Section 2(b) and all obligations of Bancorp to deliver a certificate
or certificates representing shares of Common Stock pursuant to Section
2(b) shall be terminated. If MAF exercises its rights under this
Section 7, Bancorp shall, within 10 business days after the Request
Date, pay the Repurchase Consideration to MAF in immediately available
funds, and MAF shall surrender to Bancorp the Option. Notwithstanding
the foregoing, to the extent that prior notification to or approval of
the OTS or other regulatory authority is required in connection with
the payment of all or any portion of the Repurchase Consideration, MAF
shall have the ongoing option to revoke its request for repurchase
pursuant to Section 7(b) or to require that Bancorp 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
Bancorp shall cooperate with MAF in the filing of any such notice or
application and the obtaining of any such approval). If the OTS or any
other regulatory authority disapproves of any part of Bancorp's
proposed repurchase pursuant to Section 7(b), Bancorp
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shall promptly give notice of such fact to MAF and MAF 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 Bancorp shall,
at the request of MAF delivered at the time of and together with a
written notice of exercise in accordance with Section 2 hereof and
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 Bancorp Common Stock
issued upon total or partial exercise of this Option in accordance with
any plan of disposition requested by MAF. MAF will provide such
information as may be necessary for Bancorp'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 MAF or its intended plan of disposition of Option Shares.
The foregoing notwithstanding, if, at the time of any request by MAF
for registration of Option Shares as provided above, Bancorp 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 MAF's
Option or Option Shares would interfere with the successful marketing
of the shares of Common Stock offered by Bancorp, 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 MAF shall
constitute at least 50% of the total number of shares to be sold by MAF
and Bancorp in the aggregate; provided, further, however, that if such
reduction occurs, then Bancorp shall file a registration statement for
the balance as promptly as practical and no reduction shall thereafter
occur. If requested by MAF in connection with such registration,
Bancorp 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
Bancorp.
(b) If after the occurrence of a Triggering Event, Bancorp
effects a registration under the 1933 Act of Bancorp Common Stock for
its own account or for any other stockholders of Bancorp (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 MAF the
right to participate in such registration, and such participation shall
not affect the obligation of Bancorp to effect a registration statement
for MAF under Section 8(a) above; 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.
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(c) In connection with any registration pursuant to this
Section 8, Bancorp and MAF 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 Bancorp's expense except for
underwriting discounts or commissions, brokers' fees, taxes and the
fees and disbursements of MAF's counsel related thereto.
9. SUBSTITUTE OPTION.
(a) In the event that prior to the termination of the Option,
Bancorp shall enter into an agreement (i) to consolidate with or merge
into any person, other than MAF 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 MAF or one of its
subsidiaries, to merge into Bancorp and Bancorp 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 MAF 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 MAF, 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 Bancorp (if other than Bancorp), (ii) Bancorp in a
merger in which Bancorp is the continuing or surviving person,
and (iii) the transferee of all or substantially all of
Bancorp'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 Bancorp, or (iii) in the event of a sale
of all or substantially all of Bancorp's assets, the sum of
the price paid in such sale for such assets and the current
market value of the remaining assets of Bancorp as determined
by a nationally recognized investment banking firm selected by
MAF divided by the
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number of shares of Common Stock of Bancorp 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
MAF.
(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
Bancorp 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 Bancorp or by any
company which controls or is controlled by such person, as MAF
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 MAF. The issuer of the Substitute Option
shall also enter into an agreement with MAF 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) Bancorp 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 Bancorp hereunder.
10. LISTING. If Bancorp Common Stock to be acquired upon exercise of
the Option is then authorized for listing on the NASDAQ or on any other national
securities exchange or automated quotation system, Bancorp will promptly file an
application to authorize for listing the shares of Bancorp Common Stock to be
acquired upon exercise of the Option on the NASDAQ or such other securities
exchange or quotation system and will use its best efforts to obtain approval of
such listing as soon as practicable.
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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 MAF to acquire, or does not require Bancorp to
repurchase, the full number of shares of Bancorp Common Stock as
provided herein, it is the express intention of Bancorp to allow MAF to
acquire or to require Bancorp 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 MAF, addressed to:
MAF Bancorp, Inc.
55th & Holmes
Clarendon Hills, Illinois 60514
Telecopy: (630) 325-0407
Attention: Mr. Allen H. Koranda
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with a copy to:
Vedder, Price, Kaufman & Kammholz
222 North LaSalle Street
Chicago, Illinois 60601-1003
Telecopy: (312) 609-5005
Attention: Jennifer R. Evans, Esq.
Daniel C. McKay II, Esq.
If to Bancorp, addressed to:
Westco Bancorp, Inc.
2121 South Mannheim Road
Westchester, Illinois 60154
Telecopy: (708) 865-1135
Attention: David C. Burba, President
with a copy to:
Muldoon, Murphy & Faucette
5101 Wisconsin Avenue, N.W.
Washington, D.C. 20016
Attention: Lori M. Beresford, Esq.
Telephone Number: (202) 362-0840
Facsimile Number: (202) 966-9409.
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 MAF may assign this Agreement to a wholly owned subsidiary
of MAF. 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 MAF, Bancorp and MAF shall execute and deliver all other
documents and instruments and take
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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.
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IN WITNESS WHEREOF, Bancorp and MAF have caused this Option Agreement
to be signed by their respective officers, all as of the day and year first
written above.
MAF Bancorp, Inc.
By: /s/ ALLEN H. KORANDA
--------------------------------------
Its: Chairman and Chief Executive Officer
/s/ CAROLYN PIHERA
- ----------------------------------
Secretary
Westco Bancorp, Inc.
By: /s/ DAVID C. BURBA
--------------------------------------
Its: President
/s/ MARY S. SUFFI
- ----------------------------------
Secretary
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