EXHIBIT 99.3
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT, dated as of the _____ day of
February, 1999 (the "Agreement"), is by and between FFBS BANCORP,
INC., a Delaware corporation ("Issuer"), and NBC CAPITAL
CORPORATION, a Mississippi corporation ("Grantee").
WHEREAS, Issuer and Grantee have entered into an Agreement and
Plan of Merger, (the "Merger Agreement"), which agreement has
been executed by the parties hereto immediately prior to this
Stock Option Agreement (the "Agreement"); and
WHEREAS, as a condition and inducement to Grantee's execution of
the Merger Agreement, Grantee has required that Issuer agree, and
Issuer has agreed, to grant Grantee the Option (as defined
below);
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements
set forth herein and in the Merger Agreement, and intending to be
legally bound hereby, Issuer and Grantee agree as follows:
1. Defined Terms. Capitalized terms which are used but not
defined herein shall have the meanings ascribed to such terms in
the Merger Agreement.
2. Grant of Option. Subject to the terms and conditions set
forth herein, Issuer hereby grants to Grantee an irrevocable
option (the "Option") to purchase up to 313,551 shares (the
"Option Shares") of Common Stock of Issuer, par value $.01 per
share ("Issuer Common Stock"), at a purchase price per Option
Share (the "Purchase Price") equal to $27.00
; 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 Issuer's issued and outstanding shares of
Common Stock. The number of shares of Issuer Common Stock that
may be received upon the exercise of the Option and the Purchase
Price are subject to adjustment as herein set forth.
3. Exercise of Option.
(a) Provided that (i) Grantee shall not be in material breach of
the agreements or covenants contained in this Agreement or the
Merger Agreement, or (ii) no preliminary or permanent injunction
or other order against the delivery of the Option Shares issued
by any court of competent jurisdiction in the United States shall
be in effect, Grantee may exercise the Option, in whole or in
part, at any time and from time to time, but only following the
occurrence of a Purchase Event (as defined below); provided that
the Option shall terminate and be of no further force or effect
upon the earlier to occur of (A) the Effective Time of the
Merger, (B) the termination of the Merger Agreement in accordance
with the terms thereof before the occurrence of a Purchase Event
or a Preliminary Purchase Event (other than a termination of the
Merger Agreement by Grantee pursuant to Section 11.1(g) of the
Merger Agreement (an "Issuer Default Termination"); (C) the close
of business on the 365th day after the occurrence of a
termination of the Merger Agreement by an Issuer Default
Termination; and (D) the close of business on the 365th day after
termination of the Merger Agreement following the occurrence of a
Purchase Event or a Preliminary Purchase Event (hereinafter
sometimes referred to as the "Termination Date"); provided that
any purchase of Option Shares upon the exercise of the Option
shall be subject to compliance with applicable law, including,
without limitation, the Bank Holding Company Act of 1956 (the
"BHCA"), and any required consent of any regulatory authority.
The rights set forth in Section 8 of this Agreement shall
terminate when the right to exercise the Option terminates (other
than as a result of a complete exercise of the Option) as set
forth herein.
(b) As used herein, a "Purchase Event" means any of the
following events:
(i) without Grantee's prior written consent, Issuer shall have
authorized, recommended, publicly proposed or publicly announced
an intention to authorize, recommend or propose, or entered into
an agreement with any person (other than Grantee or any
subsidiary of Grantee) to effect an Acquisition Transaction (as
defined below). As used herein, the term "Acquisition
Transaction" shall mean (A) a merger, consolidation or similar
transaction involving Issuer or any of its subsidiaries (other
than transactions solely between Issuer's subsidiaries), (B) the
disposition, by sale, lease, exchange or otherwise, of assets of
Issuer or any of its subsidiaries representing in either case 30%
or more of the consolidated assets of Issuer and its subsidiaries
or (C) the issuance, sale or other disposition of (including by
way of merger, consolidation, share exchange or any similar
transaction) securities representing 30% or more of the voting
power of Issuer or any of its significant subsidiaries; or
(ii) any person (other than Grantee or any subsidiary of Grantee)
shall have acquired beneficial ownership (as such term is defined
in Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) of, or the right to
acquire beneficial ownership of, or any "group" (as such term is
defined under the Exchange Act) shall have been formed which
beneficially owns or has the right to acquire beneficial
ownership of, 30% or more (or, if such person or group is the
beneficial owner of 30% of more on the date hereof, such person
or group acquires an additional 5% or more) of the voting power
of Issuer or any of its significant subsidiaries.
(c) As used herein, a "Preliminary Purchase Event" means any of
the following events:
(i) any person (other than Grantee or any subsidiary of Grantee)
shall have commenced (as such term is defined in Rule 14d-2 under
the Exchange Act) or shall have filed a registration statement
under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to a tender offer or exchange offer to
purchase any shares of Issuer Common Stock such that, upon
consummation of such offer, such person would own or control 20%
or more of the then outstanding shares of Issuer Common Stock
(such an offer being referred to herein as a "Tender Offer" or an
"Exchange Offer," respectively); or
(ii) the holders of Issuer Common Stock shall not have approved
the Merger Agreement at the meeting of such shareholders held for
the purpose of voting on the Merger Agreement, such meeting shall
not have been held or shall have been canceled prior to
termination of the Merger Agreement or Issuer's Board of
Directors shall have withdrawn or modified in a manner adverse to
Grantee the recommendation of Issuer's Board of Directors with
respect to the Merger Agreement, in each case, after it shall
have been publicly announced that any person (other than Grantee
or any subsidiary of Grantee) shall have (A) made, or disclosed
an intention to make, a proposal to engage in an Acquisition
Transaction, (B) commenced a Tender Offer or filed a registration
statement under the Securities Act with respect to an Exchange
Offer or (C) filed an application (or given a notice), whether in
draft or final form, under banking or corporate law or any other
applicable law seeking, including, without limitation, the BHCA,
approval to engage in an Acquisition Transaction.
As used in this Agreement, "person" shall have the meaning
specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act.
(d) Notwithstanding the foregoing, the obligation of Issuer to
issue Option Shares upon exercise of the Option shall be deferred
(but shall not be terminated): (i) until the receipt of all
required governmental or regulatory approvals or consents
necessary for Issuer to issue the Option Shares or Holder to
exercise the Option, or until the expiration or termination of
any waiting period required by law, or (ii) so long as any
injunction or other order, decree or ruling issued by any federal
or state court of competent jurisdiction is in effect which
prohibits the sale or delivery of the Option Shares.
(e) Issuer shall notify Grantee promptly in writing of the
occurrence of any Preliminary Purchase Event or Purchase 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.
(f) In the event Grantee wishes to exercise the Option, it shall
send to Issuer a written notice (the date of which being herein
referred to as the "Notice Date") specifying (i) the total number
of Option Shares it intends to purchase pursuant to such exercise
and (ii) subject to the next sentence, a place and date not
earlier than three (3) business days nor later than fifteen (15)
business days after the Notice Date for the closing (the
"Closing") of such purchase (the "Closing Date"). If prior
notification to or consent of any regulatory authority is
required in connection with such purchase, then, notwithstanding
the prior occurrence of the Termination Date, the Closing Date
shall be extended for such period as shall be necessary to enable
such prior notification or consent to occur or to be obtained
(and the expiration of any mandatory waiting period). Issuer
shall cooperate with Grantee in the filing of any applications or
documents necessary to obtain any required consent or in
connection with any required prior notification and the Closing
shall occur not earlier than three (3) business days nor later
than fifteen (15) business days following receipt of such consent
(or the filing of any such prior notification and the expiration
of any mandatory waiting periods).
4. Payment and Delivery of Certificates.
(a) On each Closing Date, Grantee shall (i) pay to Issuer, in
immediately available funds by wire transfer to a bank account
designated by Issuer, an amount equal to the Purchase Price
multiplied by the number of Option Shares to be purchased on such
Closing Date, and (ii) present and surrender this Agreement to
the Issuer at the address of the Issuer specified herein.
(b) At each Closing, simultaneously with the delivery of
immediately available funds and surrender of this Agreement as
provided in Section 4(a) above, (i) Issuer shall deliver to
Grantee (A) a certificate or certificates representing the Option
Shares to be purchased at such Closing, which Option Shares shall
be free and clear of all liens, claims, charges and encumbrances
of any kind whatsoever and subject to no pre-emptive rights, and
(B) if the Option is exercised in part only, a new Stock Option
Agreement, executed by Issuer, with the same terms as this
Agreement evidencing the right to purchase the balance of the
shares of Issuer Common Stock purchasable hereunder, and (ii)
Grantee shall deliver to Issuer a letter agreeing that Grantee
shall not offer to sell or otherwise dispose of such Option
Shares in violation of applicable federal and state law or of the
provisions of this Agreement.
(c) In addition to any other legend that is required by
applicable law, certificates for the Option Shares delivered at
each Closing shall be endorsed with a restrictive legend which
shall read substantially as follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND PURSUANT TO THE TERMS OF A STOCK OPTION AGREEMENT
DATED AS OF _______________, 1999. A COPY OF SUCH AGREEMENT WILL
BE PROVIDED TO THE HOLDER HEREOF WITHOUT CHARGE UPON RECEIPT BY
THE ISSUER OF A WRITTEN REQUEST THEREFOR.
It is understood and agreed that (i) the references to the trade
restrictions of the Securities Act in the above legend shall be
removed by delivery of substitute certificate(s) without such
legend if Grantee shall have delivered to Issuer an opinion of
counsel in form and substance reasonably satisfactory to Issuer
and its counsel, to the effect that such legend is not required
for purposes of the Securities Act; (ii) the references to the
provisions of 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.
(d) Upon the giving by Grantee to Issuer of the written notice
of exercise of the Option provided for under Section 3(e) of this
Agreement, the tender of the applicable Purchase Price in
immediately available funds and the tender of this Agreement to
Issuer, Grantee shall be deemed to be the holder of record of the
shares of Issuer Common Stock issuable upon such exercise,
notwithstanding that the stock transfer books of Issuer shall
then be closed or that certificates representing such shares of
Issuer Common Stock shall not then be actually delivered to
Grantee. Issuer shall pay all expenses, and any and all United
States federal, state, and local taxes and other charges that may
be payable in connection with the preparation, issuance and
delivery of stock certificates under this Section in the name of
Grantee or its assignee, transferee, or designee.
(e) Issuer agrees (i) that it shall at all times maintain, free
from pre-emptive rights, sufficient authorized but unissued or
treasury shares of Issuer Common Stock so that the Option may be
exercised without additional authorization of Issuer Common Stock
after giving effect to all other options, warrants, convertible
securities and other rights to purchase Issuer Common Stock, (ii)
that it will not, by amendment to its Articles of Incorporation
or Bylaws 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 Issuer, (iii) promptly to take all action
as may from time to time be required (including (A) complying (if
applicable) with all premerger notification, reporting and
waiting period requirements specified in 15 U.S.C. Sec. 18a and
regulations promulgated thereunder and (B) in the event under any
federal or state law, prior notice to consent of any regulatory
authority is necessary before the Option may be exercised,
cooperating fully with Grantee in preparing any required
application or notice and providing such information to such
regulatory authority as such regulatory authority may require) in
order to permit Grantee to exercise the Option and Issuer duly
and effectively to issue shares of Issuer Common Stock pursuant
hereto, and (iv) promptly to take all action provided herein to
protect the rights of Grantee against dilution.
5. Representations and Warranties of Issuer. Issuer hereby
represents and warrants to Grantee as follows:
(a) Due Authorization. Issuer has all requisite corporate
power and authority to enter into this Agreement and, subject to
any approvals referred to herein, to consummate the transactions
contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate
action on the part of Issuer. This Agreement has been duly
executed and delivered by Issuer.
(b) Authorized Stock. Issuer has taken all necessary
corporate and other action to authorize and reserve and to permit
it to issue, and, at all times from the date hereof until the
obligation to deliver Issuer Common Stock upon the exercise of
the Option terminates, will have reserved for issuance, upon
exercise of the Option, the number of shares of Issuer Common
Stock necessary for Grantee to exercise the Option, and Issuer
will take all necessary corporate action to authorize and reserve
for issuance all additional shares of Issuer Common Stock or
other securities which may be issued pursuant to Section 7 of
this Agreement upon exercise of the Option. The shares of Issuer
Common Stock to be issued upon due exercise of the Option,
including all additional shares of Issuer Common Stock or other
securities which may be issuable pursuant to Section 7 of this
Agreement, upon issuance pursuant hereto, shall be duly and
validly issued, fully paid and nonassessable, and shall be
delivered free and clear of all liens, claims, charges and
encumbrances of any kind or nature whatsoever, including any
pre-emptive right of any shareholder of Issuer, but subject to
the voting restrictions contained in the Certificate of
Incorporation of Issuer.
(c) No Violation. Except as disclosed pursuant to the Merger
Agreement, the execution and delivery of this Agreement does not,
and the consummation of the transactions contemplated hereby will
not, conflict with, or result in any violation pursuant to any
provisions of the Certificate of Incorporation, Charter or Bylaws
of Issuer or any subsidiary of Issuer or, subject to obtaining
any approvals or consents contemplated hereby, result in any
violation of any loan or credit agreement, note, mortgage,
indenture, lease, plan or other agreement, obligation,
instrument, permit, concession, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation
applicable to Issuer or any subsidiary of Issuer or their
respective properties or assets which violation would have a
material adverse effect on the condition of Issuer on a
consolidated basis.
6. Representations and Warrants of Grantee. Grantee hereby
represents and warrants to Issuer that:
(a) Due Authorization. Grantee has all requisite corporate
power and authority to enter into this Agreement and, subject to
any approvals or consents referred to herein, to consummate the
transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of Grantee. This Agreement has been
duly executed and delivered by Grantee.
(b) Purchase Not for Distribution. This Option is not being,
and any Option Shares or other securities acquired by Grantee
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 Securities Act.
7. Adjustment Upon Changes in Capitalization, Etc.
(a) In the event of any change in Issuer Common Stock by reason
of a stock dividend stock split, split-up, recapitalization,
combination, exchange of shares or similar transaction, the type
and number of shares or securities subject to the Option, and the
Purchase Price therefor, shall be adjusted appropriately, and
proper provision shall be made in the agreements governing such
transaction so that Grantee shall receive, upon exercise of the
Option, the number and class of shares or other securities or
property that Grantee would have received in respect of Issuer
Common Stock if the Option had been exercised immediately prior
to such event, or the record date therefor, as applicable. If
any additional shares of Issuer Common Stock are issued after the
date of this Agreement (other than pursuant to an event described
in the first sentence of this Section 7(a)), the number of shares
of Issuer Common Stock subject to the Option shall be adjusted so
that, after such issuance, the Option, together with any shares
of Issuer Common Stock previously issued pursuant hereto, equals
19.9% of the number of shares of Issuer Common Stock then issued
and outstanding, without giving effect to any shares subject to
or issued pursuant to the Option.
(b) In the event that, prior to the Termination Date, Issuer
shall enter into an agreement: (i) to consolidate with or merge
into any person, other than Grantee or one of its subsidiaries,
and shall not be the continuing or surviving corporation of such
consolidation or merger, (ii) to permit any person, other than
Grantee or one of its subsidiaries, to merge into Issuer where
Issuer shall be the continuing or surviving corporation, but, in
connection with such merger, the then outstanding shares of
Issuer Common Stock shall be changed into or exchanged for stock
or other securities of Issuer or any other person or cash or any
other property or the outstanding shares of Issuer Common Stock
immediately prior to such merger shall after such merger
represent less than 50% of the outstanding shares and share
equivalents of the merged company, or (iii) to sell or otherwise
transfer all or substantially all of its assets to any person,
other than Grantee or one of its subsidiaries, then, and in each
such case, the agreement governing such transaction shall make
proper provisions so that, upon the consummation of any such
transaction and upon the terms and conditions set forth herein,
the Option, notwithstanding the fact that as of the date of
consummation of such transaction the Termination Date shall have
occurred, shall be converted into, or exchanged for, an option
(the "Substitute Option"), at the election of Grantee, of either
(x) the Acquiring Corporation (as defined below), (y) any person
that controls the Acquiring Corporation, or (z) in the case of a
merger described in clause (ii), the Issuer (in each case, such
entity being referred to as the "Substitute Option Issuer").
(c) The Substitute Option shall have the same terms as the
Option, provided that, if the terms of the Substitute Option
cannot, because of the applicability of any law or regulation,
have the exact terms as the Option, such terms shall be as
similar as possible and in no event less advantageous to Grantee.
The Substitute Option Issuer shall also enter into an agreement
with the then-holder or holders of the Substitute Option 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 the Substitute Common Stock (as hereinafter defined)
as is equal to the Assigned Value (as hereinafter defined)
multiplied by the number of shares of the Issuer Common Stock for
which the Option was theretofore exercisable, divided by the
Average Price (as hereinafter defined). The exercise price of
each share of Substitute Common Stock subject to the Substitute
Option (the "Substitute Purchase Price") shall be equal to the
Purchase Price multiplied by a fraction in which the numerator is
the number of shares of the Issuer Common Stock for which the
Option was theretofore exercisable and the denominator is the
number of shares for which the Substitute Option is exercisable.
(e) The following terms have the meanings indicated:
(i) "Acquiring Corporation" shall mean (x) the continuing or
surviving corporation of a consolidation or merger with (if other
than Issuer), (y) the Issuer in a consolidation or merger or in
which the Issuer is the continuing or surviving corporation, and
(z) the transferee of all or any substantial part of the Issuer's
assets (or the assets of its subsidiaries).
(ii) "Assigned Value" shall mean the highest of (x) the price per
share of the Issuer Common Stock at which a Tender Offer or
Exchange Offer therefor has been made by any person (other than
Grantee), (y) the price per share of the Issuer Common Stock to
be paid by any person (other than the Grantee) pursuant to an
agreement with Issuer, and (z) the highest last sales price per
share of Issuer Common Stock quoted on any national securities
exchange (including the NASDAQ - National Market System) (or if
Issuer Common Stock is not quoted on any such national securities
exchange, the highest bid price per share on any day as quoted on
the principal trading market or securities exchange on which such
shares are traded as reported by a recognized source chosen by
Grantee) within the six-month period immediately preceding the
agreement described in Section 7(b) above; provided, however,
that in the event of a sale of less than all of Issuer's assets,
the Assigned Value shall be the sum of the price paid in such
sale for such assets and the current market value of the
remaining assets of Issuer as determined by a nationally
recognized investment banking firm selected by Grantee, divided
by the number of shares of the Issuer Common Stock outstanding at
the time of such sale. In the event a Tender Offer or Exchange
Offer is made for the Issuer Common Stock or an agreement is
entered into for a merger or consolidation involving
consideration other than cash, the value of the securities or
other property issuable or deliverable in exchange for the Issuer
Common Stock shall be determined by a nationally recognized
investment banking firm mutually selected by Grantee and Issuer
(or if applicable, Acquiring Corporation), provided that if a
mutual selection cannot be made as to such investment banking
firm, it shall be selected by Grantee.
(iii) "Average Price" shall mean the average last sales price
of a share of the Substitute Common Stock for the one year
immediately preceding the consolidation, merger or sale in
question, as quoted on any national securities exchange
(including the NASDAQ National Market System), and if the
Substitute Common Stock is not quoted on any such national
securities exchange, the average of the bid price for the one
year period described above, as quoted on the principal trading
market or securities exchange on which such Substitute Common
Stock is traded, as reported by a recognized source, as chosen by
Grantee, but in no event higher than the last sales price or
closing price or the bid price of the shares of the Substitute
Common Stock on the day preceding such consolidation, merger, or
sale; provided that if Issuer is the issuer of the Substitute
Option, the Average Price shall be computed with respect to a
share of common stock issued by Issuer, the person merging into
Issuer or by any company which controls or is controlled by such
person, as Grantee may elect.
(iv) "Substitute Common Stock" shall mean the common stock issued
by the Substitute Option Issuer upon the exercise of the
Substitute Option.
(f) In no event pursuant to any of the foregoing paragraphs
shall the Substitute Option be exercisable for more than 19.9% of
the aggregate of the shares of the Substitute Common Stock
outstanding prior to exercise of the Substitute Option. In the
event that the Substitute Option would be exercisable for more
than 19.9% of the aggregate of the shares of the Substitute
Common Stock but for this clause (f), the Substitute Option
Issuer shall make a cash payment to Grantee equal to the amount
of (i) the value of the Substitute Option without giving effect
to the limitation in this clause (f) in excess of (ii) the value
of the Substitute Option after giving effect to the limitation in
this clause (f). This difference in value shall be determined by
a nationally recognized investment banking firm selected by
Grantee.
(g) Issuer shall not enter into any transaction described in
subsection (b) of this Section 7 unless the Acquiring Corporation
and any person that controls the Acquiring Corporation assumes in
writing all of the obligations of Issuer hereunder and takes all
other actions that may be necessary so that the provisions of
this Section 7 are given full force and effect (including,
without limitation, any action that may be necessary so that the
shares of Substitute Common Stock are in no way distinguished
from or have lesser economic value (other than any diminution
resulting from the fact that the Substitute Common Stock is
"restricted securities" within the meaning of Rule 144 under the
Securities Act) than other shares of common stock issued by the
Substitute Option Issuer).
(h) The provisions of Sections 8, 9 and 10 shall apply, with
appropriate adjustments, to any securities for which the Option
becomes exercisable pursuant to this Section 7 and, as
applicable, references in such sections to "Issuer," "Option,"
"Purchase Price," and "Issuer Common Stock" shall be deemed to be
references to "Substitute Option Issuer," "Substitute Option,"
"Substitute Purchase Price," and "Substitute Common Stock,"
respectively.
8. Repurchase at the Option of Grantee.
(a) Subject to the last sentence of Section 3(a) of this
Agreement, at the request of Grantee at any time commencing upon
the first occurrence of a Repurchase Event (as defined in Section
8(d)) and ending at the close of business 365 days thereafter,
Issuer shall repurchase from Grantee the Option and all shares of
Issuer Common Stock purchased by Grantee pursuant hereto with
respect to which Grantee then has beneficial ownership. The date
on which Grantee exercises its rights under this Section 8 is
referred to as the "Request Date." Such repurchase shall be at
an aggregate price (the "Section 8 Repurchase Consideration")
equal to the sum of:
(i) the aggregate Purchase Price paid by Grantee for any shares
of Issuer Common Stock acquired pursuant to complete or partial
exercise of the Option with respect to which Grantee then has
beneficial ownership;
(ii) the excess, if any, of (x) the Applicable Price (as defined
below) for each share of Issuer Common Stock over (y) the
Purchase Price (subject to adjustment pursuant to Section 7),
multiplied by the number of shares of Issuer Common Stock with
respect to which the Option has not been exercised; and
(iii) the excess, if any, of the Applicable Price over the
Purchase Price (subject to adjustment pursuant to Section 7) paid
(or, in the case of Option Shares with respect to which the
Option has been exercised but the Closing Date has not occurred,
payable) by Grantee for each share of Issuer Common Stock with
respect to which the Option has been exercised and with respect
to which Grantee then has beneficial ownership, multiplied by the
number of such shares.
(b) If Grantee exercises its rights under this Section 8, Issuer
shall, within ten (10) business days after the Request Date, pay
the Section 8 Repurchase Consideration to Grantee in immediately
available funds, and contemporaneously with such payment Grantee
shall surrender to Issuer the Option and the certificates
evidencing the shares of Issuer Common Stock purchased thereunder
with respect to which Grantee then has beneficial ownership, and
Grantee shall warrant that it has sole record and beneficial
ownership of such shares and that the same are then free and
clear of all liens, claims, charges and encumbrances of any kind
whatsoever. Notwithstanding the foregoing, to the extent that
prior notification to or Consent of any Regulatory Authority is
required in connection with the payment of all or any portion of
the Section 8 Repurchase Consideration, or Issuer is prohibited
under applicable law or regulation, or as a consequence of
administrative policy, from repurchasing the Option and/or the
Option Shares in full, Issuer shall immediately so notify Grantee
and thereafter deliver from time to time, and as permitted by
applicable law or regulation, that portion of the Section 8
Repurchase Consideration that it is not then so prohibited from
paying within five business days after the date on which Issuer
is no longer prohibited; provided, however, that if Issuer at any
time is prohibited under applicable law or regulation, or as a
consequence of administrative policy, from delivering to the
Grantee the Section 8 Repurchase Consideration, in full (and
Issuer hereby undertakes to use its best efforts to obtain all
required consents of regulatory authorities and to file any
required notices as promptly as practicable in order to
accomplish such repurchase), the Grantee may, at its option,
revoke its request that Issuer repurchase the Option or the
Option Shares either in whole or to the extent of the
prohibition, whereupon, in the latter case, Issuer shall promptly
(i) deliver to the Grantee that portion of the Section 8
Repurchase Consideration that Issuer is not prohibited from
delivering; and (ii) deliver, to the Grantee either (A) a new
Stock Option Agreement evidencing the right of Issuer to purchase
that number of shares of Common Stock obtained by multiplying the
number of shares of Common Stock for which the surrendered Stock
Option Agreement was exercisable at the time of delivery of the
notice of repurchase by a fraction, the numerator of which is the
Section 8 Repurchase Consideration less the portion thereof
theretofore delivered to the Grantee and the denominator of which
is the Section 8 Repurchase Consideration, or (B) a certificate
for the Option Shares it is then prohibited from repurchasing.
Notwithstanding anything herein to the contrary, all of Grantee's
rights under this Section 8 shall terminate on the Termination
Date of this Option pursuant to Section 3(a) of this Agreement.
(c) For purposes of this Agreement, the "Applicable Price" means
the highest of: (i) the highest price per share of Issuer Common
Stock paid for any such share by the person or groups described
in Section 8(d)(i) below; (ii) the price per share of Issuer
Common Stock received by holders of Issuer Common Stock in
connection with any merger or other business combination
transaction described in Section 7(b)(i), 7(b)(ii) or 7(b)(iii)
above; or (iii) the highest last sales price per share of Issuer
Common Stock quoted on any national securities exchange
(including the NASDAQ - National Market System) (or if Issuer
Common Stock is not quoted on any such national securities
exchange, the highest bid price per share as quoted on the
principal trading market or securities exchange on which such
shares are traded as reported by a recognized source chosen by
Grantee) during the sixty (60) business days preceding the
Request Date; provided, however, that in the event of a sale of
less than all of Issuer's assets, the Applicable Price shall be
the sum of the price paid in such sale for such assets and the
current market value of the remaining assets of Issuer as
determined by a nationally recognized investment banking firm
selected by Grantee, divided by the number of shares of the
Issuer Common Stock outstanding at the time of such sale. If the
consideration to be offered, paid or received pursuant to either
of the foregoing clauses (i) or (ii) shall be other than in cash,
the value of such consideration shall be determined in good faith
by an independent nationally recognized investment banking firm
selected by Grantee and reasonably acceptable to Issuer and
reasonably acceptable to Issuer, which determination shall be
conclusive for all purposes of this Agreement.
(d) As used herein, a "Repurchase Event" shall occur if (i) any
person (other than Grantee or any subsidiary of Grantee) shall
have acquired beneficial ownership of (as such term is defined in
Rule 13d-3 promulgated under the Exchange Act), or the right to
acquire beneficial ownership of, or any "group" (as such term is
defined under the Exchange Act) shall have been formed which
beneficially owns or has the right to acquire beneficial
ownership of, 50% or more of the then outstanding shares of
Issuer Common Stock, or (ii) any of the transactions described in
Section 7(b)(i), 7(b)(ii) or 7(b)(iii) of this Agreement shall be
consummated.
9. Registration Rights.
(a) Demand Registration Rights. Issuer shall, subject to the
conditions of subparagraph (c) below, if requested by Grantee, as
expeditiously as possible prepare and file a registration
statement under the Securities Act if such registration is
necessary in order to permit the sale or other disposition of any
or all shares of Issuer Common Stock or other securities that
have been acquired by or are issuable to Grantee upon exercise of
the Option in accordance with the intended method of sale or
other disposition stated by Grantee in such request, including
without limitation a "shelf" registration statement under Rule
415 under the Securities Act or any successor provision, and
Issuer shall use its best efforts to qualify such shares or other
securities for sale under any applicable state securities laws.
(b) Additional Registration Rights. If Issuer at any time
after the exercise of the Option proposes to register any shares
of Issuer Common Stock under the Securities Act in connection
with an underwritten public offering of such Issuer Common Stock,
Issuer will promptly give written notice to Grantee (any
permitted transferee) of its intention to do so and, upon the
written request of Grantee (or any such permitted transferee of
Grantee) given within 30 days after receipt of any such notice
(which request shall specify the number of shares of Issuer
Common Stock intended to be included in such underwritten public
offering by Grantee (or such permitted transferee)), Issuer will
cause all such shares, the holders of which shall have requested
participation in such registration, to be so registered and
included in such underwritten public offering; provided, that the
Issuer may elect not to cause all of the shares for which the
Grantee has requested participation in such registration to be
registered and included in such underwritten public offering (i)
if the underwriters, for good business reasons and in good faith,
object to such inclusion or (ii) in the case of a registration
solely to implement a dividend reinvestment or similar plan, an
employee benefit plan or a registration filed on Form S-4 or any
successor form, or a registration filed on a form which does not
permit registration of resales; provided further, that such
election pursuant to clause (i) may be made only one time. If
some but not all the shares of Issuer Common Stock, with respect
to which Issuer shall l have received requests for registration
pursuant to this subparagraph (b), shall be excluded from such
registration, Issuer shall make appropriate allocation of shares
to be registered among selling holders of Option Shares and any
other person (other than Issuer or any person exercising demand
registration rights in connection with such registration) who or
which is permitted to register their shares of Issuer Common
Stock in connection with such registration pro rata in the
proportion that the number of shares requested to be registered
by each selling holder of Option Shares bears to the total number
of shares requested to be registered by all persons then desiring
to have Issuer Common Stock registered for sale.
(c) Conditions to Required Registration. Issuer shall use all
reasonable efforts to cause each registration statement referred
to in subparagraph (a) above to become effective and to obtain
all consents or waivers of other parties which are required
therefor and to keep such registration statement effective,
provided, however, that Issuer may delay any registration of
Option Shares required pursuant to subparagraph (a) above for a
period not exceeding 90 days in the event that Issuer shall in
good faith determine that any such registration would adversely
affect an offering or contemplated offering of other securities
by Issuer, and Issuer shall not be required to register Option
Shares under the Securities Act pursuant to subparagraph (a)
above:
(i) prior to the earliest of (a) termination of the Merger
Agreement, and (b) a Purchase Event;
(ii) on more than two occasions;
(iii)more than once during any calendar year; and
(iv) within 90 days after the effective date of a registration
referred to in subparagraph (b) above pursuant to which the
holder or holders of the Option Shares concerned were afforded
the opportunity to register such shares under the Securities Act
and such shares were registered as requested.
(v) unless a request therefor is made to Issuer by selling
holders of Option Shares holding at least 25% or more of the
aggregate number of Option Shares then outstanding.
In addition to the foregoing, Issuer shall not be required to
maintain the effectiveness of any registration statement after
the expiration of 180 days from the effective date of such
registration statement. Issuer shall use all reasonable efforts
to make any filings, and take all steps, under all applicable
state securities laws to the extent necessary to permit the sale
or other disposition of the Option Shares so registered in
accordance with the intended method of distribution for such
shares, provided, that Issuer shall not be required to consent to
general jurisdiction or qualify to do business in any state where
it is not otherwise required to so consent to such jurisdiction
or to so qualify to do business.
(d) Expenses. Except where applicable state law prohibits
such payments, Issuer will pay all of its expenses (including,
without limitation, registration fees, qualification fees, blue
sky fees and expenses, legal expenses, printing expenses and the
costs of special audits or "cold comfort" letters, expenses of
underwriters, excluding discounts and commissions but including
liability insurance if Issuer so desires or the underwriters so
require, and the reasonable fees and expenses of any necessary
special experts) in connection with each registration pursuant to
subparagraph (a) or (b) above (including the related offerings
and sales by holders of Option Shares) and all other
qualifications, notifications or exemptions pursuant to
subparagraph (a) or (b) above; provided, however, that fees and
expenses of counsel to the selling holders of Option Shares and
any other expenses (including underwriting discounts and
commissions relating to the sale of Option Shares) incurred by
the selling holders of Option Shares in connection with such
registration shall be borne by the selling holders of Option
Shares.
(e) Indemnification. In connection with any registration
under subparagraph (a) or (b) above Issuer hereby indemnifies the
holder of the Option Shares, and each underwriter thereof,
including each person, if any, who controls such holder or
underwriter within the meaning of Section 15 of the Securities
Act, against all expenses, losses, claims, damages and
liabilities caused by any untrue, or alleged untrue, statement of
a material fact contained in any registration statement or
prospectus or notification or offering circular (including any
amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission, or alleged omission, to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as
such expenses, losses, claims, damages or liabilities of such
indemnified party are caused by any untrue statement or alleged
untrue statement that was included by Issuer in any such
registration statement or prospectus or notification or offering
circular (including any amendments or supplements thereto) in
reliance upon and in conformity with, information furnished in
writing to Issuer by such indemnified party expressly for use
therein, and Issuer and each officer, director and controlling
person of Issuer shall be indemnified by such holder of the
Option Shares, or by such underwriter, as the case may be, for
all such expenses, losses, claims, damages and liabilities caused
by any untrue, or alleged untrue, statement, that was included by
Issuer in any such registration statement or prospectus or
notification or offering circular (including any amendments or
supplements thereto) in reliance upon, and in conformity with,
information furnished in writing to Issuer by such holder or such
underwriter, as the case may be, expressly for such use.
Promptly upon receipt by a party indemnified under this
subparagraph (e) of notice of the commencement of any action
against such indemnified party in respect of which indemnity or
reimbursement may be sought against any indemnifying party under
this subparagraph (e), such indemnified party shall notify the
indemnifying party in writing of the commencement of such action,
but the failure so to notify the indemnifying party shall not
relieve it of any liability which it may otherwise have to any
indemnified party under this subparagraph (e) provided such
failure does not prejudice Issuer. In case notice of
commencement of any such action shall be given to the
indemnifying party as above provided, the indemnifying party
shall be entitled to participate in and, to the extent it may
wish, jointly with any other indemnifying party similarly
notified, to assume the defense of such action at its own
expense, with counsel chosen by it and satisfactory to such
indemnified party. The indemnified party shall have the right to
employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel (other
than reasonable costs of investigation) shall be paid by the
indemnified party unless (i) the indemnifying party either agrees
to pay the same, (ii) the indemnifying party fails to assume the
defense of such action with counsel satisfactory to the
indemnified party, or (iii) the indemnified party has been
advised by counsel that one or more legal defenses may be
available to the indemnifying party that may be contrary to the
interest of the indemnified party, in which case the indemnifying
party shall be entitled to assume the defense of such action
notwithstanding its obligation to bear fees and expenses of such
counsel. No indemnifying party shall be liable for any
settlement entered into without its consent, which consent may
not be unreasonably withheld.
If the indemnification provided for in this subparagraph (e) is
unavailable to a party otherwise entitled to be indemnified in
respect of any expenses, losses, claims, damages or liabilities
referred to herein, then the indemnifying party, in lieu of
indemnifying such party otherwise entitled to be indemnified,
shall contribute to the amount paid or payable by such party to
be indemnified as a result of such expenses, losses, claims,
damages or liabilities in such proportion as is appropriate to
reflect the relative benefits received by Issuer, the selling
shareholders and the underwriters from the offering of the
securities and also the relative fault of Issuer, the selling
shareholders and the underwriters in connection with the
statements or omissions which resulted in such expenses, losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations. The amount paid or payable by a party
as a result of the expenses, losses, claims, damages and
liabilities referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such party
in connection with investigating or defending any action or
claim; provided, however, that in no case shall the holders of
the Option Shares be responsible, in the aggregate, for any
amount in excess of the net offering proceeds attributable to its
Option Shares included in the offering. No person guilty of
fraudulent misrepresentation (with the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
Any obligation by any holder to indemnify shall be several and
not joint with other holders.
In connection with any registration pursuant to subparagraph (a)
or (b) above, Issuer and each holder of any Option Shares (other
than Grantee) shall enter into an agreement containing the
indemnification provisions of this subparagraph (e).
(f) Miscellaneous Reporting. Issuer shall comply with all
reporting requirements and will do all such other things as may
be necessary to permit the expeditious sale at any time of any
Option Shares by the holder thereof in accordance with and to the
extent permitted by any rule or regulation promulgated by the SEC
from time to time. Issuer shall at its expense provide the
holder of any Option Shares with any information necessary in
connection with the completion and filing of any reports or forms
required to be filed by them under the Securities Act or the
Exchange Act, or required pursuant to any state securities laws
or the rules of any stock exchange.
10. Quotation; Listing. If Issuer Common Stock or any other
securities to be acquired upon exercise of the Option are then
authorized for quotation or trading or listing on the NASDAQ
National Market or any other securities exchange or any automated
quotations system maintained by a self-regulatory organization,
Issuer will promptly file an application, if required, to
authorize for quotation or trading or listing the shares of
Issuer Common Stock or other securities to be acquired upon
exercise of the Option on the NASDAQ National Market or any other
securities exchange or any automated quotations system maintained
by a self-regulatory organization and will use its best efforts
to obtain approval, if required, of such quotation or listing as
soon as practicable.
11. Division of Option. This Agreement (and the Option
granted hereby) are exchangeable, without expense, at the option
of Grantee, upon presentation and surrender of this Agreement at
the principal office of Issuer for other Agreements providing for
Options of different denominations entitling the holder thereof
to purchase in the aggregate the same number of shares of Issuer
Common Stock purchasable hereunder. The terms "Agreement" and
"Option" as used herein include any other Agreements and related
Options for which this Agreement (and the Option granted hereby)
may be exchanged. Upon receipt by Issuer of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation
of this Agreement, and (in the case of loss, theft or
destruction) of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Agreement, if mutilated,
Issuer will execute and deliver a new Agreement of like tenor and
date. Any such new Agreement executed and delivered shall
constitute an additional contractual obligation on the part of
Issuer, whether or not the Agreement so lost, stolen, destroyed
or mutilated shall at any time be enforceable by anyone.
12. Miscellaneous.
(a) Expenses. Except as otherwise provided in Section 9 of
this Agreement, 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 if such waiver is in writing. This
Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement
executed by the parties hereto.
(c) Entire Agreement; No Third-Party Beneficiary; Severability.
This Agreement, together with the Merger Agreement and the other
documents and instruments referred to herein and therein, between
Grantee and Issuer (a) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter
hereof and (b) is not intended to confer upon any person other
than the parties hereto (other than any transferees of the Option
Shares or any permitted transferee of this Agreement pursuant to
Section 12(h)) 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
Grantee to acquire, or does not require Issuer to repurchase, the
full number of shares of Issuer Common Stock as provided in
Sections 3 and 8 (as adjusted pursuant to Section 7), it is the
express intention of Issuer to allow Grantee to acquire or to
require Issuer 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,
except to the extent that federal law may apply.
(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 Issuer to: E. Frank Griffin, III
First Federal Bank for Savings
Post Office Box 152
Columbus MS 39703-0152
With a copy to: Charles E. Sloane
Malizia, Spidi, Sloane & Fisch, P.C.
One Franklin Square
1301 K. Street, N.W.
Suite 700 East
Washington, DC 20005
If to Grantee to: Lewis F. Mallory
National Bank of Commerce
Post Office Box 1187
Starkville MS 39760
With a copy to: Hunter M. Gholson
Gholson, Hicks & Nichols
Post Office Box 1111
Columbus MS 39703-1111
(g) Counterparts. This Agreement and any amendments hereto
may be executed in two counterparts, each of which shall be
considered one and the same agreement and shall become effective
when both counterparts have been signed, it being understood that
both parties need not sign the same counterpart.
(h) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder or under the Option shall be
assigned by any of the parties hereto (whether by operation of
law or otherwise) without the prior written consent of the other
party, except that Grantee may assign this Agreement to a wholly
owned subsidiary of Grantee and Grantee may assign its rights
hereunder in whole or in part after the occurrence of a Purchase
Event; provided, however, that until the Federal Reserve has
approved an application by Grantee to acquire the shares of
Issuer Common Stock subject to the Option, Grantee may not assign
its rights under the Option except in (i) a widely dispersed
public distribution, (ii) a private placement in which no one
party acquires the right to purchase in excess of 2% of the
voting shares of Issuer, (iii) an assignment to a single party
(e.g., a broker or investment banker) for the purpose of
conducting a widely dispersed public distribution on Grantee's
behalf or (iv) any other manner approved by the Federal Reserve.
Any such assignment shall be in compliance with all applicable
laws. Subject to the preceding sentence, this Agreement shall
be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
(i) Further Assurances. In the event of any exercise of the
Option by Grantee, Issuer and Grantee 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.
IN WITNESS WHEREOF, Issuer and Grantee have caused this Agreement
to be signed by their respective officers thereunto duly
authorized, all as of the day and year first written above.
FFBS BANCORP, INC., a Delaware corporation
BY: _______________________________________
NBC CAPITAL CORPORATION, a Mississippi
corporation
BY: _______________________________________