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EXHIBIT 10.1
STOCK OPTION AGREEMENT
THE TRANSFER OF THIS AGREEMENT IS
SUBJECT TO CERTAIN PROVISIONS CONTAINED
HEREIN AND TO RESALE RESTRICTIONS UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND
APPLICABLE STATE SECURITIES LAWS
STOCK OPTION AGREEMENT
This Stock Option Agreement, dated as of May 18, 1999 (the
"Agreement"), is made by and between Orange National Bancorp, a California
corporation ("Issuer"), and CVB Financial Corp., a California corporation
("Grantee").
WHEREAS, Grantee and Issuer have entered into an Agreement and
Plan of Reorganization dated May 18, 1999 (the "Reorganization Agreement"),
providing for, among other things, the merger of Issuer with and into Grantee
(the "Merger"), with Grantee being the surviving corporation; and
WHEREAS, as a condition and inducement to Grantee's execution of
the Reorganization Agreement, Issuer has agreed to grant to 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 Reorganization 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 Reorganization
Agreement. As used in this Agreement, the following terms shall have the
meanings indicated:
(a) "Exchange Act" means the Securities Exchange
Act of 1934, as amended.
(b) "Federal Reserve Board" means the Board of
Governors of the Federal Reserve System.
(c) "Holder" means Grantee and, to the extent
Grantee has assigned its rights and obligations under this
Agreement as permitted herein, any subsidiary or direct or
indirect transferee of Grantee.
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(d) "Person" shall have the meaning specified in
Sections 3(a)(9) and 13(d)(3) of the Exchange Act and the rules
and regulations thereunder.
(e) "Securities Act" means the Securities Act of
1933, as amended.
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 399,834 shares (the "Option Shares") of Common Stock, no par
value ("Issuer Common Stock"), of Issuer at a purchase price per Option Share of
$ 27.00 (the "Purchase Price"), but in no event shall the number of Option
Shares exceed 19.9% of the issued and outstanding shares of Issuer Common Stock.
The Purchase Price and the number of Option Shares that may be received upon the
exercise of the Option are subject to adjustment as set forth below.
3. Exercise of Option.
(a) The Holder 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 and effect
upon the earliest to occur of (such earliest date the "Expiration
Date"):
(i) the Effective Time of the Merger;
or
(ii) 15 months after the first
occurrence of a Purchase Event; or
(iii) 15 months after the termination
of the Reorganization Agreement on or following the
occurrence of a Preliminary Purchase Event (as
defined below) or Purchase Event or a termination
by Grantee pursuant to Section 13.1.4 or 13.1.8 of
the Reorganization Agreement; or
(iv) termination of the
Reorganization Agreement in accordance with the
terms thereof prior to the occurrence of a Purchase
Event or a Preliminary Purchase Event other than a
termination by Grantee pursuant to Section 13.1.4
or 13.1.8 of the Reorganization Agreement.
Notwithstanding anything to the contrary contained herein, any purchase of
shares upon exercise of the Option shall be subject to compliance with
applicable law, including, without limitation, the Bank Holding Company Act of
1956, as amended.
(b) As used herein, a "Purchase Event" means any of
the following events:
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(i) The Board of Directors of Issuer
shall have approved, or recommended to the Issuer's
shareholders that they approve, a proposal received
by Issuer from a person (other than Grantee or any
subsidiary of Grantee) to effect an Acquisition
Transaction (as defined below), Tender Offer (as
defined below) or Exchange Offer (as defined
below); or
(ii) Issuer, without having received
Grantee's prior written consent, shall have entered
into an agreement with any person (other than
Grantee or any subsidiary of Grantee) to effect an
Acquisition Transaction; or
(iii) 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 Exchange Act) of
or the right to acquire beneficial ownership of, or
any "group" (as such term is defined under the
Exchange Act and the rules and regulations
promulgated thereunder) shall have been formed
which beneficially owns or has the right to acquire
beneficial ownership of twenty percent (20%) or
more of the then outstanding shares of Issuer
Common Stock.
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 internal mergers, reorganizations, consolidations or dissolutions
involving only Issuer and/or existing subsidiaries and other than a merger,
consolidation or similar transaction in which the common shareholders of Issuer
immediately prior thereto in the aggregate own at least seventy-five percent
(75%) of the common stock of the surviving or successor corporation immediately
after the consummation thereof), (B) the disposition, by sale, lease, exchange
or otherwise, of twenty (20%) or more of the consolidated assets or deposit
liabilities of Issuer and its subsidiaries, or (C) a purchase or other
acquisition (including by way of merger, consolidation, share exchange or any
similar transaction), other than by Issuer or its subsidiaries, of securities
representing twenty percent (20%) or more of the voting power of Issuer or any
of its 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 acquired
beneficial ownership of, or the right to acquire
beneficial ownership of, or any "group" (as defined
under the Exchange Act and the rules and
regulations thereunder) shall have been formed
which beneficially owns or has the right to acquire
beneficial ownership of, ten percent (10%) or more
of the then outstanding shares of Issuer Common
Stock; or
(ii) any person (other than Grantee
or any subsidiary of Grantee) shall have commenced
(as such term is
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defined in Rule 14d-2 under the Exchange Act), or
shall have filed a registration statement under 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 ten percent
(10%) 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
(iii) Issuer, without having
received Grantee's prior written consent, shall
have entered into an agreement with any person
(other than Grantee or any subsidiary of Grantee)
with respect to, or the Board of Directors of
Issuer shall have recommended that the shareholders
of Issuer approve or accept, a purchase or other
acquisition (including by way of merger,
consolidation, share exchange or any similar
transaction), other than by Issuer or its
subsidiaries, representing ten percent (10%) or
more of the voting power of Issuer or any of its
subsidiaries; or
(iv) any person (other than Grantee
or any subsidiary of Grantee) shall have filed an
application or notice with the Federal Reserve
Board or other federal or state regulatory
authority, which application or notice has been
accepted for processing, for approval to engage in
an Acquisition Transaction; or
(v) the holders of Issuer Common
Stock shall not have approved the Reorganization
Agreement at the meeting of such shareholders held
for the purpose of voting on the Reorganization
Agreement, such meeting shall not have been held or
shall have been canceled prior to termination of
the Reorganization 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
Reorganization 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 or (B) commenced a Tender Offer or
filed a registration statement under the Securities
Act with respect to an Exchange Offer.
(d) Issuer shall notify Grantee promptly in writing
of the occurrence of any Purchase Event or Preliminary Purchase
Event; provided, however, such notice shall not be a condition to
the right of the Holder to exercise the Option.
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(e) In the event Holder wishes to exercise the
Option, it shall send to Issuer a written notice (dated the date
on which it is sent to Issuer, which date is referred to as the
"Notice Date") specifying (i) the total number of Option Shares
it intends to purchase pursuant to such exercise and (ii) a date
not earlier than three (3) business days nor later than fifteen
(15) business days from the Notice Date for the closing (the
"Closing") of such purchase (the "Closing Date"). The Closing
shall be held at the Issuer's principal office or at such other
place as Issuer and Holder may agree. If prior notification to or
approval of the Federal Reserve Board or any other regulatory
authority is required as a condition precedent to such purchase,
then (A) Holder shall promptly file and process the required
notice or application for approval; (B) Issuer shall cooperate
with Holder in the filing of the required notice or application
for approval and the obtaining of any such approval; and (C) the
Closing Date shall be subject to extension for such period of
time, not to exceed six (6) months, as may be necessary to permit
the Holder to submit such filing to, and, if necessary, to obtain
such approval from, the Federal Reserve Board or other applicable
regulatory authority; provided, however, that the notice of
Option exercise and such governmental filing must be made, and
the Notice Date must be, no later than the date on which the
Option would otherwise terminate. Any exercise of the Option
shall be deemed to have occurred on the Notice Date.
4. Payment and Delivery of Certificates.
(a) On each Closing Date, Holder 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 in
Section 12(g) hereof.
(b) At each Closing, simultaneously with the
delivery of immediately available funds and surrender of this
Agreement as provided in Section 4(a), (i) Issuer shall deliver
to Holder (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 (B) if the Option is
exercised in part only, an executed new agreement with the same
terms as this Agreement evidencing the right to purchase the
balance of the shares of Issuer Common Stock purchasable
hereunder; and (ii) Holder shall deliver to Issuer a letter
agreeing that Holder shall not offer to sell or otherwise dispose
of such Option Shares in violation of the provisions of this
Agreement or applicable state and federal securities laws.
(c) Certificates for the Option Shares delivered at
each Closing shall be endorsed with a restrictive legend which
shall read substantially as follows:
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THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") OR QUALIFIED OR REGISTERED UNDER THE SECURITIES LAWS OF
ANY STATE. THEY MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND UNTIL THEY
HAVE BEEN QUALIFIED OR REGISTERED UNDER APPLICABLE STATE
SECURITIES LAWS, UNLESS THE ISSUER RECEIVES AN OPINION OF COUNSEL
FOR THE HOLDER OF THESE SECURITIES, REASONABLY SATISFACTORY TO
THE ISSUER, STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS. THE TRANSFER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS ALSO SUBJECT TO
RESALE RESTRICTIONS ARISING UNDER THE TERMS OF A STOCK OPTION
AGREEMENT DATED AS OF MAY 18, 1999, A COPY OF WHICH IS AVAILABLE
FOR INSPECTION AT THE OFFICE OF THE SECRETARY OF THE ISSUER.
It is understood and agreed that the above legend shall be removed by delivery
of substitute certificate(s) without such legend if Holder shall have delivered
to Issuer a copy of a letter from the staff of the SEC, or 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 or
applicable state securities laws.
5. Representations and Warranties and Covenants 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 and constitutes a binding
agreement of Issuer enforceable against Issuer in accordance with
its terms, except as the enforceability hereof may be limited by
bankruptcy, insolvency, moratorium or other similar laws
affecting the rights of creditors generally or by equitable
principles, whether such enforcement is sought in law or equity.
(b) Authorized Stock. Issuer has taken all
necessary corporate 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
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Option, shares of Issuer Common Stock necessary for Holder 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 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, 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
preemptive rights of any stockholder of Issuer.
(c) No Conflict The execution and delivery by
Issuer of this Agreement and the consummation of the transactions
contemplated hereby do not and will not violate or conflict with
Issuer's Articles of Incorporation or Bylaws, or any statute,
regulation, judgment, order, writ, decree or injunction
applicable to Issuer (other than as may be effected by Grantee's
ownership of Issuer Common Stock exceeding certain limits set
forth by statute or regulation) or its properties or assets and
do not and will not violate, conflict with, result in a breach
of, constitute a default (or an event which with due notice
and/or lapse of time would constitute a default) under, result in
a termination of, accelerate the performance required by, or
result in the creation of any lien, pledge, security interest,
charge or other encumbrance upon any of the properties or assets
of Issuer under the terms, conditions or provisions of any note,
bond, mortgage, indenture, deed of trust, or loan agreement or
other agreement, instrument or obligation to which Issuer is a
party, or by which Issuer or any of its properties or assets may
be bound or affected.
(d) Observance of Covenants. Issuer agrees that it
will not, by amendment of its Articles of Incorporation 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.
(e) Compliance. Issuer shall promptly take all
action as may from time to time be required (including, complying
with all premerger notification, reporting and waiting period
requirements of any federal or state regulatory authority, as
necessary, before the Option may be exercised, and cooperating
fully with Holder in preparing such applications or notices and
providing such information to the Federal Reserve Board, the
Office of the Comptroller of the Currency, the Federal Deposit
Insurance Corporation, the Department of Financial Institutions
or any other regulatory authority as they may require) in order
to permit Grantee to exercise the Option and Issuer duly and
effectively to issue shares of Common Stock pursuant hereto, and
to protect the rights of Grantee against dilution.
6. Representations and Warranties of Grantee. Grantee hereby represents
and warrants to Issuer that:
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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 and applicable state securities laws.
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
documentation pertaining to such transaction so that Holder shall
receive, upon exercise of the Option, the number and class of
shares or other securities or property that Holder 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 (whether
upon exercise of stock options or otherwise but excluding any
issuance 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, such number of shares, together with any shares of
Issuer Common Stock previously issued pursuant hereto, equals
nineteen and nine-tenths percent (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 (with any fractional share being rounded up to the next
full share). Issuer agrees that in no event shall the number of
shares of Issuer Common Stock issued after the date of this
Agreement pursuant to the preceding sentence, together with the
number of shares of Issuer Common Stock subject to the Option,
adjusted as aforesaid, exceed the number of available authorized
but unissued and unreserved shares of Issuer Common Stock.
Nothing contained in this Section 7(a) or elsewhere in this
Agreement shall be deemed to authorize Issuer to issue shares in
breach of any provision of the Reorganization Agreement.
(b) In the event that Issuer shall, prior to the
occurrence of an event set forth in Section 3(a) terminating the
Holder's right to exercise the Option, 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 and 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 fifty
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percent (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 consolidated assets or deposit
liabilities 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
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 Grantee, of either (A) the Acquiring Corporation
(as defined below), (B) any person that controls the Acquiring
Corporation, (such person being referred to as the "Substitute
Option Issuer"), or (C) in the case of a merger described in
clause (ii), Issuer.
(c) The Substitute Option shall have the same terms
as the Option, provided that if the terms of the Substitute
Option cannot, for legal reasons, be the same 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 (after giving effect for such purposes to the
provisions of 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 is
hereinafter defined) as is equal to the Assigned Value (as is
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 is hereinafter
defined). The exercise price of the Substitute Option per share
of the Substitute Common Stock (the "Substitute Purchase Price")
shall then 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 of the
Substitute Common Stock for which the Substitute Option is
exercisable.
(e) As used herein, the following terms have the
meanings indicated:
(i) "Acquiring Corporation" shall
mean (A) the continuing or surviving corporation of
a consolidation or merger with Issuer (if other
than Issuer), (B) Issuer in a merger in which
Issuer is the continuing or surviving person, and
(C) the transferee of all or any substantial part
of the Issuer's assets (or the assets of its
subsidiaries).
(ii) "Substitute Common Stock" shall
mean the common stock issued by the Substitute
Option Issuer upon exercise of the Substitute
Option.
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(iii) "Assigned Value" shall mean
the highest of (A) 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 or a subsidiary of Grantee),
(B) the price per share of the Issuer Common Stock
to be paid by any person (other than Grantee or a
subsidiary of Grantee) pursuant to an agreement
with Issuer, and (C) the highest closing price per
share of Issuer Common Stock as quoted on the
Nasdaq National Market (or if Common Stock is not
quoted on the Nasdaq National Market, 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 and reasonably
acceptable to Issuer) within the six-month period
immediately preceding the agreement governing the
transaction described in Section 7(b) which gave
rise to the Substitute Option; provided, however,
that in the event of a sale of less than all of
Issuer's consolidated assets or deposit
liabilities, the Assigned Value shall be the sum of
the price paid in such sale for such assets or
deposit liabilities and the current market value of
the remaining consolidated net assets of Issuer as
determined by a nationally recognized investment
banking firm selected by the Holder (or by a
majority in interest of the Holders if there shall
be more than one Holder (a "Holder Majority")) and
reasonably acceptable to Issuer, divided by the
number of shares of the Issuer Common Stock
outstanding at the time of such sale. In the event
that an 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
selected by Holder (or a Holder Majority) and
reasonably acceptable to Issuer.
(iv) "Average Price" shall mean the
average closing price of the Substitute Common
Stock for the one year immediately preceding the
effective date of the consolidation, merger or sale
in question, but in no event higher than the
closing 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 merging person,
as Holder may elect.
(f) In no event, pursuant to any of the foregoing
paragraphs, shall the Substitute Option be exercisable for more
than nineteen and nine-tenths
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percent (19.9%) of the aggregate of the shares of the Substitute
Common Stock outstanding prior to exercise of the Substitute
Option (with any fractional share being rounded up to the next
full share). 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 excess of (i) the value of the Substitute Option
without giving effect to the limitation in this clause (f) over
(ii) the value of the Substitute Option after giving effect to
the limitation in this clause (f). The difference in value shall
be determined by a nationally recognized investment banking firm
selected by Grantee and reasonably acceptable to the Substitute
Option Issuer, whose determination shall be conclusive and
binding on the parties.
(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 assume in writing all the obligations of Issuer
hereunder and take 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 distinguishable from or have lesser economic value than other
shares of common stock issued by the Substitute Option Issuer).
(h) At the written request of Holder delivered to
the Substitute Option Issuer prior to the occurrence of an event
set forth in Section 3(a) above terminating the Substitute
Option, the Substitute Option Issuer shall repurchase from Holder
(i) the Substitute Option and/or (ii) all Substitute Common Stock
theretofore purchased by Holder pursuant hereto with respect to
which Holder then has beneficial ownership. The date on which
Holder exercises its rights under this Section 7(h) is referred
to as the "Substitute Option Request Date." Such repurchase shall
be at an aggregate price (the "Substitute Option Repurchase
Consideration") equal to the sum of (A) the excess, if any, of
(1) the Highest Closing Price (as defined below) for each share
of Substitute Common Stock over (2) the Substitute Purchase Price
per share of Substitute Common Stock, multiplied by the number of
shares of Substitute Common Stock for which the Substitute Option
may then be exercised and as to which Holder has exercised its
repurchase right hereunder, plus (B) the Highest Closing Price
for each share of Substitute Common Stock, multiplied by the
number of shares of Substitute Common Stock previously acquired
by Holder upon exercise of the Option or Substitute Option and as
to which Holder has exercised its repurchase right hereunder. The
term "Highest Closing Price" shall mean the highest closing price
per share of Substitute Common Stock on the Nasdaq National
Market (or, if Substitute Common Stock is not quoted on the
Nasdaq National Market, 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 and reasonably acceptable to
Issuer) or, if such shares are not traded in a trading market or
listed on an exchange, as quoted by the brokerage firms acting as
market makers for the Substitute Common Stock prior
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to the trading or listing of the Substitute Common Stock on any
national securities exchange and thereafter as reported by the
principal trading market or securities exchange on which such
shares are traded, during the sixty (60) business days preceding
the Substitute Option Request Date.
(i) The provisions of Sections 8(b), 8(c), 11 and
12 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", "Issuer Common Stock", "Repurchase
Consideration", and "Request Date" shall be deemed to be
references to "Substitute Option Issuer", "Substitute Option",
"Substitute Purchase Price", "Substitute Common Stock",
"Substitute Option Repurchase Consideration", and "Substitute
Option Request Date", respectively.
8. Repurchase at the Option of Grantee.
(a) At any time after the first occurrence of a
Repurchase Event (as defined in Section 8(e) below), at the
written request of Holder delivered to Issuer prior to the
occurrence of an event set forth in Section 3(a) above
terminating the Option, Issuer shall repurchase from Holder (i)
the Option and (ii) all Option Shares theretofore purchased by
Holder pursuant hereto with respect to which Holder then has
beneficial ownership. The date on which Holder exercises its
rights under this Section 8 is referred to as the "Request Date."
Such repurchase shall be at an aggregate price (the "Repurchase
Consideration") equal to the sum of:
(i) the aggregate Purchase Price
paid by Holder for any Option Shares acquired
pursuant to the Option with respect to which Holder
then has beneficial ownership;
(ii) the excess, if any, of (A) the
Applicable Price (as defined below) for each Option
Share over (B) the Purchase Price per Option Share
(subject to adjustment pursuant to Section 7(a)),
multiplied by the number of Option Shares 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(a)) 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 Holder for each
Option Share with respect to which the Option has
been exercised and with respect to which Holder
then has beneficial ownership, multiplied by the
number of such shares.
(b) If Holder exercises its rights under this
Section 8, Issuer shall, within ten (10) business days after the
Request Date, pay the Repurchase
13
Consideration to Holder in immediately available funds, and
Holder shall surrender to Issuer the Option and the certificates
evidencing the Option Shares purchased thereunder with respect to
which Holder then has beneficial ownership and has designated to
be repurchased, and Holder 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.
(c) Notwithstanding the provisions hereof to the
contrary, to the extent that Issuer is prohibited under
applicable law, regulation or administrative policy from
repurchasing all or any portion of the Option or Option Shares,
then (i) Issuer shall promptly give notice of such fact to
Holder; (ii) Issuer shall, from time to time subject to the last
sentence of this Section 8(c), deliver to Holder that portion of
the Repurchase Consideration that it is not then so prohibited
from paying; (iii) at Holder's request, Issuer shall promptly
file any required notice or application for approval and
expeditiously process the same. After Holder's receipt of such
notice from Issuer, Issuer shall not be in breach of its
repurchase obligation hereunder to the extent it is or remains,
despite reasonable efforts to obtain any required approvals,
legally prohibited from repurchasing the Option or Option Shares.
Holder shall have the right (A) to revoke its request for
repurchase with respect to the portion of the Option or Option
Shares that Issuer is prohibited from repurchasing, (B) to
require Issuer to deliver to Holder the Option and/or Option
Shares Issuer is prohibited from repurchasing, and (C) to
exercise the Option as to the number of Option Shares for which
the Option was exercisable at the Request Date less the number of
such Option Shares in respect of which the Repurchase
Consideration has been lawfully paid. Notwithstanding anything
herein to the contrary, Issuer shall not be obligated to
repurchase all or any part of the Option or Option Shares
pursuant to more than one written request from Holder, except
that Issuer shall be obligated to repurchase, pursuant to more
than one written request, any Option or Option Shares in the
event that Holder (1) has revoked its request for repurchase in
accordance with the provisions of this Section 8 prior to the
occurrence of an event set forth in Section 3(a) terminating the
Holder's right to exercise the Option and (2) has delivered,
prior to such event, a new written notice requesting a
repurchase. If an event set forth in Section 3(a) terminating the
Holder's right to exercise the Option occurs prior to, or is
scheduled to occur within, sixty (60) days after the date of the
notice by Issuer described in clause 8(c)(i) above, then,
notwithstanding the occurrence of such terminating event, Holder
shall have the right to receive the Repurchase Consideration to
the extent Issuer is or becomes, within a sixty (60) day period
from the date of such notice by Issuer, legally permitted to
repurchase. Except as set forth in the preceding sentence,
Holder's repurchase rights under this Agreement shall terminate
concurrently with the termination of Holder's right to exercise
the Option, pursuant to Section 3(a).
(d) 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(e)(i), (ii) the price per share of
Issuer Common Stock received by holders of Issuer Common
14
Stock in connection with any merger or other business combination
transaction described in Section 7(b)(i), 7(b)(ii) or 7(b)(iii),
or (iii) the highest bid price per share of Issuer Common Stock
on the Nasdaq National Market or other principal trading market
or securities exchange on which such shares are traded as
reported by a recognized source selected by Holder 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 or deposit liabilities and the
current market value of the remaining consolidated net assets of
Issuer as determined by a nationally recognized investment
banking firm selected by Holder (or the Holder Majority) and
reasonably acceptable to Issuer, 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 Holder (or the Holder Majority) and
reasonably acceptable to Issuer, which determination shall be
conclusive for all purposes of this Agreement.
(e) 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 and the rules and
regulations promulgated thereunder) shall have been formed which
beneficially owns, or has the right to acquire beneficial
ownership of, fifty percent (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) shall be
consummated.
9. Registration Rights.
(a) Demand Registration Rights. Issuer shall,
subject to the conditions of Section 9(c) below, if requested by
any Holder, including Grantee and any permitted transferee
("Selling Shareholder"), after exercise of the Option and prior
to an Expiration Date, expeditiously 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 the
Selling Shareholder upon exercise of the Option in accordance
with the intended method of sale or other disposition stated by
the Selling Shareholder 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
15
of such Issuer Common Stock, Issuer will promptly give written
notice to the Holders of its intention to do so and, upon the
written request of any Holder given within thirty (30) days after
receipt of any such notice (which request shall specify the
number of shares of Issuer Common intended to be included in such
underwritten public offering by the Holder), Issuer will cause
all such shares for which a Holder requests participation in such
registration, to be so registered and included in such
underwritten public offering; provided, however, that Issuer may
elect to not cause any such shares to be so registered (i) if the
underwriters in good faith object for valid business reasons, or
(ii) in the case of a registration solely to implement an
employee benefit plan or a registration filed on Form S-4 of the
Securities Act or any successor form, provided, further, however,
that such election pursuant to (i) may be only made one time. If
some but not all the shares of Issuer Common Stock, with respect
to which Issuer shall have received requests for registration
pursuant to this Section 9(b), shall be excluded from such
registration, Issuer shall make appropriate allocation of shares
to be registered among the Holders desiring to register their
shares pro rata in the proportion that the number of shares
requested to be registered by each such Holder bears to the total
number of shares requested to be registered by all such Holders
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 Section 9(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 Section 9(a)
above for a period not exceeding 90 days if Issuer determines, in
the good faith exercise of its reasonable business judgment, that
such registration and offering could adversely effect or
interfere with bona fide financing plans of Issuer or would
require disclosure of information, the premature disclosure of
which could adversely affect Issuer or any transaction under
active consideration by Issuer. Notwithstanding anything to the
contrary stated herein, Issuer shall not be required to register
Option Shares under the Securities Act pursuant to Section 9(a)
above:
(i) on more than one occasion during
any calendar year;
(ii) within 90 days after the
effective date of a registration referred to in
Section 9(b) above pursuant to which the Holders
concerned were afforded the opportunity to register
or qualify such shares under the Securities Act and
such shares were registered or qualified as
requested, and
(iii) unless a request therefor is
made to Issuer by Holders that hold at least 25% or
more of the aggregate number of Option Shares
(including shares of Issuer Common Stock issuable
upon exercise of the Option) then outstanding.
16
In addition to the foregoing, Issuer shall not be required to maintain the
effectiveness of any registration statement after the expiration of nine (9)
months 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, however, that Issuer
shall not be required to consent to the 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 the costs of such
registration or qualification expenses, including without
limitation registration fees, qualification fees, blue sky fees
and expenses, Issuer's legal expenses, costs of special audits or
"cold comfort" letters, expenses of underwriters, excluding
discounts and commissions, and the reasonable fees and expenses
of any necessary special experts in connection with each
registration pursuant to Section 9(a) or (b) above (including the
related offerings and sales by holders of Option Shares) and all
other qualifications, notifications, or exemptions pursuant to
Section 9(a) or 9(b) above.
(e) Indemnification. In connection with any
registration under Section 9(a) or 9(b) above, Issuer hereby
indemnifies the Selling Shareholders, 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 or any underwriter
expressly for use therein, and Issuer and each officer, director
and controlling person of Issuer shall be indemnified by such
Selling Shareholders, 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 Section 9(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 Section 9(e), such
17
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 Section 9(e). 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 reasonably
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
indemnified party that may be contrary to the interest of the indemnifying
party. 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 Section 9(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 any Selling Shareholder 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 (within 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 Section 9(a) or 9(b)
above, Issuer and each Selling Shareholder (other than Grantee) shall enter into
an agreement containing the indemnification provisions of this Section 9(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 Selling Shareholders 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 Selling Shareholders with any
information necessary in connection with the completion and
filing of any reports or forms required to be filed by them
18
under the Securities Act or the Exchange Act, or required
pursuant to any state securities laws or the rules of any stock
exchange.
10. Listing. If Issuer Common Stock or any other securities to be
acquired upon exercise of the Option are not then authorized for quotation on
the Nasdaq National Market or any securities exchange, Issuer, upon the request
of Holder, will promptly file an application to authorize for quotation the
shares of Issuer Common Stock or other securities to be acquired upon exercise
of the Option on the Nasdaq National Market and will use its best efforts to
obtain approval of such listing as soon as practicable.
11. Division of Option. This Agreement (and the Option granted
hereby) are exchangeable, without expense, at the option of Holder, upon
presentation and surrender of this Agreement at the principal office of Issuer
for other agreements providing for other 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 "other
agreements" and "other options" as used in the preceding sentence mean 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. Limitation on Total Profit and Notional Total Profit.
(a) Notwithstanding anything to the contrary
contained herein, in no event shall Grantee's Total Profit (as
defined below in Section 12(c) hereof) exceed $3.2 million and,
if it otherwise would exceed such amount, Grantee, at its sole
election, shall either (i) reduce the number of shares of Issuer
common stock subject to the Option, (ii) pay cash to Issuer, or
(iii) any combination thereof, so that Grantee's actually
realized Total Profit shall not exceed $3.2 million after taking
into account the foregoing actions.
(b) Notwithstanding anything to the contrary
contained herein, the Option may not be exercised for a number of
shares as would, as of the date of exercise, result in a Notional
Total Profit (as defined below in Section 12(d) hereof) of more
than $3.2 million; provided, that nothing in this sentence shall
restrict any exercise of the Option permitted hereby on any
subsequent date on which the Notional Total Profit would be less
than $3.2 million..
(c) As used herein, the term "Total Profit" shall
mean the aggregate amount (before taxes) of the following: (i)
the amount received by Grantee pursuant to Issuer's repurchase of
the Option (or any portion thereof) pursuant to Section 8 hereof,
(ii) (x) the amount received by Grantee or any affiliate of
Grantee pursuant to Issuer's repurchase of Option Shares pursuant
to
19
Section 8 hereof, less (y) Grantee's or any affiliate of
Grantee's purchase price for such Option Shares, (iii) (x) the
net cash amounts received by Grantee or any affiliate of Grantee
pursuant to the sale of Option Shares (or any other securities
into which such Option Shares shall be converted or exchanged) to
any unaffiliated party, less (y) Grantee's or any affiliate of
Grantee's purchase price of such Option Shares, and (iv) any
equivalent amounts with respect to the Substitute Option.
(d) As used herein, the term "Notional Total
Profit" with respect to any number of shares as to which Grantee
or any affiliate of Grantee may propose to exercise the Option
shall be the Total Profit determined as of the date of such
proposed exercise assuming that the Option were exercised on such
date for such number of shares and assuming that such shares,
together with all other Option Shares held by Grantee or any
affiliate of Grantee as of such date, were sold for cash at the
closing market price for the Issuer Common Stock as of the close
of business on the preceding trading day (less customary
brokerage commissions).
(e) Grantee agrees, promptly following any exercise
of all or any portion of the Option, and subject to its rights
under Section 8 hereof, to use and cause any wholly owned
Subsidiary of Grantee to use commercially reasonable efforts
promptly to maximize the value of Option Shares purchased taking
into account market conditions, the number of Option Shares, the
potential negative impact of substantial sales on the market
price for Issuer Common stock, and the availability of an
effective registration statement to permit public sale of Option
Shares.
13. Miscellaneous.
(a) Expenses. Except as otherwise provided in
Section 9, each of the parties hereto and any Holder shall bear
and pay all costs and expenses incurred by it or on its behalf in
connection with the transactions contemplated hereunder,
including, without limitation, 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.
This Agreement, together with the Reorganization Agreement and
the other documents and instruments referred to herein and
therein (i) 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
(ii) is not intended to confer upon any person other than the
parties hereto, and their
20
respective successors and assigns, any rights or remedies
hereunder, except as expressly provided in this Agreement.
(d) Severability. If any term, provision, covenant
or restriction of this Agreement is held by a court or a federal
or state regulatory authority of competent jurisdiction to be
invalid, void or unenforceable, such invalid, void or
unenforceable term, provision, covenant or restriction shall, if
it is so susceptible, be deemed modified to the minimum extent
necessary to render the same valid and enforceable and, in all
events, 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.
Without limiting the foregoing, if for any reason such court or
regulatory authority determines that Holder may not legally
acquire, or Issuer may not legally 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 Holder to acquire or to require Issuer to
repurchase the maximum number of shares as may be legally
permissible without any amendment or modification hereof.
(e) Governing Law. This Agreement shall be governed
and construed in accordance with the laws of the State of
California without regard to any applicable conflicts of law
rules.
(f) 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.
(g) Notices. All notices, requests, claims, demands
and other communications under this Agreement shall be in writing
and shall be given (and shall be deemed to have been duly
received if so given) by personal delivery, by telecopy (provided
that copy is concurrently sent by first class U.S. mail, postage
prepaid), or by mail (registered or certified mail, postage
prepaid, return receipt requested) to the parties as follows:
If to Issuer: Orange National Bancorp
1201 E. Katella Avenue
Orange, California 92867
Attn: Kenneth Cosgrove, President
Fax No.: (714) 289-2310
With a copy to: Brobeck, Phleger & Harrison, LLP
One Market Plaza
San Francisco, California 94105
Attn: J. Michael Shepherd
Fax No.: (415) 442-1010
21
If to Grantee: CVB Financial Corp.
701 N. Haven Avenue
Ontario, California 91423
Attn: D. Linn Wiley, President
Fax No.: (909) 481-2130
With a copy to: Manatt, Phelps & Phillips
11355 West Olympic Boulevard
Los Angeles, California 90064
Attn: William T. Quicksilver
Fax No.: (310) 312-4224
or to such other address as a party may have furnished to the others in writing
in accordance with this paragraph, except that notices of change of address
shall only be effective upon receipt. Any notice, demand or other communication
given pursuant to the provisions of this Section 11(g) shall be deemed to have
been given on the date actually delivered or on the third day following the date
mailed, whichever first occurs.
(h) 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.
(i) 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 without the
prior written consent of the other party, except that Grantee may
assign this Agreement to a wholly-owned subsidiary of Grantee and
at any time after a Purchase Event occurs, Holder may assign or
transfer its rights and obligations hereunder, in whole or in
part, to any Person or Persons, subject to compliance with
applicable laws. In order to effectuate the foregoing, Grantee
shall be entitled to surrender this Agreement to Issuer in
exchange for two or more Agreements entitling the holders thereof
to purchase in the aggregate the same number of shares of Common
Stock as may be purchasable hereunder. 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 permitted assigns.
(j) Further Assurances. In the event of any
exercise of the Option by Holder, Issuer and Holder 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.
(k) 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
22
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 Stock
Option Agreement to be signed by their respective officers thereunto duly
authorized, all as of the day and year first written above.
CVB FINANCIAL CORP. ORANGE NATIONAL BANCORP
By /s/ D. Linn Wiley By /s/ Kenneth Cosgrove
------------------------------ ------------------------------
D. Linn Wiley Kenneth Cosgrove
President President