Exhibit 2.3
ASSOCIATED BANC-CORP
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of May 14, 1997, by and
between Associated Bank-Corp, a Wisconsin corporation (the "Issuer"), and First
Financial Corporation, a Wisconsin corporation ("Grantee").
WHEREAS, concurrently with the execution and delivery of this
Agreement, Issuer, Badger Merger Corp., a Wisconsin corporation and a wholly
owned subsidiary of Issuer ("Merger Sub"), and Grantee are entering into an
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), which provides for, among other things, upon the terms and subject
to the conditions thereof, the merger of Merger Sub with and into Grantee (the
"Merger");
WHEREAS, as a condition to Grantee's willingness to enter into
the Merger Agreement, Grantee has requested that the Issuer agree, and in order
to induce Grantee to enter into the Merger Agreement, Issuer has so agreed, to
grant to Grantee an option with respect to certain shares of Issuer's common
stock on the terms and subject to the conditions set forth herein; and
WHEREAS, as a condition to Issuer's willingness to enter into
the Merger Agreement, the Issuer has requested that Grantee agree, and in order
to induce the Issuer to enter into the Merger Agreement, Grantee has so agreed,
to grant to Issuer an option with respect to certain shares of Grantee's common
stock on substantially the same terms as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants, representations, warranties and agreements contained herein
and in the Merger Agreement; and intending to be legally bound hereby, the
parties agree as follows:
1. Grant of Option. Issuer hereby grants Grantee an
irrevocable option (the "Stock Option") to purchase up to (a) 4,465,361 shares
(the "Option Shares") of common stock, $0.01 par value per share, of Issuer (the
"Issuer Common Stock") or (b) if, immediately prior to exercise, such number of
shares of Issuer Common Stock is less than 19.9% of the issued and outstanding
shares of Issuer Common Stock at the time of exercise of the Stock Option, such
greater number of shares of Issuer Common Stock as equals 19.9% of the issued
and outstanding shares of Issuer Common Stock at such time of exercise of the
Stock Option, in the manner set forth below, at a price of $32.50 per share (the
"Exercise Price"), payable in cash in accordance with Section 4 hereof.
Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in the Merger Agreement.
2. Exercise of Option. (a) Subject to the provisions of
Sections 2(c) and (d), the Stock Option may be exercised by Grantee, in whole or
in part, at any time or from time to time following the occurrence of a Purchase
Event (as defined below), provided that, except as provided in the last sentence
of this Section 2(a), the Stock Option shall terminate and be of no further
force and effect upon the earliest to occur of (i) the Effective Time, (ii) 12
months after the first occurrence of
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a Purchase Event and (iii) termination of the Merger Agreement in accordance
with its terms prior to the occurrence of a Purchase Event (provided that the
Stock Option shall not terminate for a period of 12 months following any
occurrence specified in Sections 2(b)(iv)(A) or 2(b)(v)(A); and provided further
that any purchase of shares upon exercise of the Stock Option shall be subject
to compliance with applicable law, including the Bank Holding Company Act of
1956, as amended (the "BHC Act"). Notwithstanding the termination of the Stock
Option, Grantee shall be entitled to purchase the Option Shares with respect to
which it has exercised the Stock Option in accordance with the terms hereof
prior to the termination of the Stock Option. The termination of the Stock
Option shall not affect any rights hereunder which by their terms extend beyond
the date of such termination.
(b) As used herein, a "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 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 or a "group" (as such term is
defined under the Exchange Act) of which such person is a member, would
acquire beneficial ownership (as such term is defined in Rule 13d-3 of
the Exchange Act), or the right to acquire beneficial ownership, of 15%
or more of the then outstanding Issuer Common Stock (any such offer, a
"Tender Offer"), and the Board of Directors shall not have recommended
against such tender offer or exchange offer within 10 business days of
such commencement or filing or at any time thereafter shall recommend
acceptance thereof;
(ii) Issuer or any subsidiary of Issuer shall have authorized,
recommended, 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 (A) effect a
merger, consolidation or other business combination involving Issuer or
any of its subsidiaries (other than internal mergers, reorganizing
actions or consolidations involving only existing subsidiaries of
Issuer), (B) sell, lease or otherwise dispose of assets of Issuer or
its subsidiaries aggregating 15% or more of the consolidated assets,
net revenues or net income of Issuer and its subsidiaries or (C) issue,
sell or otherwise dispose of (including by way of merger,
consolidation, share exchange or any similar transaction) securities
representing 15% or more of the voting power of Issuer or any of its
subsidiaries (any of the foregoing, an "Acquisition Transaction");
(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 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, shares of Issuer Common
Stock (other than trust account shares) aggregating 15% or more of the
then outstanding Issuer Common Stock;
(iv) (A) the holders of Issuer Common Stock shall not have
approved the increase in the number of authorized shares of Issuer
Common Stock or the issuance of Issuer Common Stock in connection with
the Merger at the meeting of such shareholders held for the purpose of
voting on the increase in the number of authorized shares of Issuer
Common
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Stock and the issuance of Issuer Common Stock in connection with the
Merger, (B) such meeting shall not have been held or shall have been
cancelled prior to termination of the Merger Agreement or (C) Issuer's
Board of Directors shall have withdrawn or modified in a manner adverse
to Grantee or to Grantee's ability to consummate the transactions
contemplated by the Merger Agreement the recommendation of Issuer's
Board of Directors with respect to the Merger Agreement, in each case
after any person (other than Grantee or any subsidiary of Grantee)
shall have (X) publicly announced, or taken actions which have resulted
in public disclosure of, a proposal, or publicly disclosed an intention
to make a proposal, to engage in an Acquisition Transaction and shall
not have withdrawn such proposal at least 10 business days prior to the
stockholders' meeting to consider the increase in the number of
authorized shares of Issuer Common Stock or the issuance of Issuer
Common Stock in connection with the Merger (provided that any public
disclosures to the effect that such person intends to or may make
another proposal shall result in the original proposal not being deemed
to have been withdrawn) or (Y) filed an application (or given a
notice), whether in draft or final form, to the Federal Reserve Board,
the OCC, the FDIC or any other governmental or regulatory authority for
approval to engage in an Acquisition Transaction; provided that the
Stock Option shall not be exercisable upon the occurrence specified in
Section 2(b)(iv)(A) above unless and until any of the events specified
in Section 2 (b)(ii) or (iii) above shall have occurred; or
(v) (A) there shall exist a willful or intentional breach
under the Merger Agreement by Issuer and such breach would entitle
Grantee to terminate the Merger Agreement; and (B) within 12 months
from the date of such breach, any of the events specified in Section
2(b)(ii) or (iii) above shall have occurred.
As used in this Agreement, "person" shall have the meaning specified in Sections
3(a)(9) and 13(d)(3) of the Exchange Act.
(c) In the event Grantee wishes to exercise the Stock Option,
it shall send to Issuer a written notice (an "Exercise Notice" and the date of
which being herein referred to as a "Notice Date") specifying (i) the total
number of Option Shares that it intends to purchase pursuant to such exercise
and (ii) a place and date not earlier than three business days nor later than 20
business days from the Notice Date for the closing of such purchase (a "Closing
Date"); provided that if any closing of the purchase and sale pursuant to the
Stock Option (a "Closing") cannot be consummated by reason of any applicable
order, injunction, decree, judgment, law or regulation, the period of time that
otherwise would run pursuant to this sentence shall run instead from the date on
which such restriction on consummation has expired or been terminated; and
provided further, without limiting the foregoing, that if prior notification to
or approval of the Federal Reserve Board, the OCC, the FDIC or any other
governmental or regulatory authority is required in connection with such
purchase, Grantee shall promptly file the required notice or application for
approval and shall expeditiously process the same (and Issuer shall cooperate
with Grantee in the filing of any such notice or application and the obtaining
of any such approval), and the period of time that otherwise would run pursuant
to this sentence shall run instead from the date on which, as the case may be,
(A) any required notification period has expired or been terminated or (B) such
approval has been obtained, and in either event, any requisite waiting period
has passed.
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(d) Notwithstanding Section 2(c), in no event shall any
Closing Date occur later than 18 months after the related Notice Date, and if
such Closing shall not have occurred within 18 months after such Notice Date due
to the failure to obtain any required approval of the Federal Reserve Board, the
OCC, the FDIC or any other governmental or regulatory authority, the exercise of
the Stock Option or Substitute Option effected on such date shall be deemed to
have expired. In the event (i) Grantee receives official notice that any such
approval required for the purchase of Option Shares will not be issued or
granted or (ii) a Closing Date shall not have occurred within 18 months after
the related Notice Date due to the failure to obtain any such approval, Grantee
shall be entitled to exercise its rights to exercise the Stock Option in
connection with the resale of Issuer Common Stock or other securities pursuant
to a registration statement as provided in Section 8. The provisions of this
Section 2 and Section 4 shall apply with appropriate adjustments to any such
exercise.
3. Conditions to Closing. The obligation of Issuer to issue
Option Shares to Grantee hereunder is subject to the conditions that (a) all
consents, approvals, orders or authorizations of, or registrations, declarations
or filings with, the Federal Reserve Board, the OCC, the FDIC or any other
governmental or regulatory authority, if any, required in connection with the
issuance of Option Shares hereunder shall have been obtained or made, as the
case may be, and (b) no order, injunction or decree issued by any court or
agency of competent jurisdiction or other legal restraint preventing such
issuance shall be in effect.
4. Closing. At any Closing, (a) Issuer will deliver to Grantee
a certificate or certificates in definitive form, such certificate or
certificates to be registered in the name of Grantee, or such other affiliate of
Grantee as Grantee shall designate in the Exercise Notice and shall bear the
legend set forth in Section 11, representing the number of Option Shares
designated by Grantee in its Exercise Notice, which Option Shares shall be free
and clear of all Liens, and (b) Grantee will deliver to Issuer the aggregate
Exercise Price for the Option Shares so designated and being purchased at such
Closing by wire transfer of immediately available funds to a bank account
designated by Issuer.
5. Representations and Warranties of Issuer. Issuer represents
and warrants to Grantee that (a) Issuer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Wisconsin and has
full corporate power and authority to execute and deliver this Agreement and,
subject to any approvals referred to herein, to consummate the transactions
contemplated hereunder, (b) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
approved by the Board of Directors of Issuer and no other corporate proceedings
on the part of Issuer are necessary to approve this Agreement and to consummate
the transactions contemplated hereby, (c) this Agreement has been duly and
validly executed and delivered by Issuer and (assuming due authorization,
execution and delivery by Grantee) this Agreement constitutes a valid and
binding obligation of Issuer, enforceable against Issuer in accordance with its
terms, except as enforcement may be limited by general principles of equity
whether applied in a court of law or equity and by bankruptcy, insolvency and
similar laws affecting creditors' rights and remedies generally, (d) Issuer has
taken all necessary corporate action to authorize and reserve for issuance and
to permit it to issue, upon exercise of the Stock Option, and at all times from
the date hereof through the expiration of the Stock Option will have so
reserved, the requisite number of unissued shares of Issuer Common Stock
necessary to permit exercise in full of the Stock Option, all of which, upon
their issuance and delivery in accordance with the terms of this Agreement, will
be validly issued, fully paid and nonassessable
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(except as provided in Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law), (e) upon delivery of such shares of Issuer Common Stock to
Grantee upon exercise of the Stock Option, Grantee will acquire valid title to
all of such shares, free and clear of any and all Liens of any nature
whatsoever, (f) the execution and delivery of this Agreement by Issuer does not,
and the performance of this Agreement by Issuer will not (1) violate the
certificate of incorporation or by-laws of Issuer, (2) conflict with or violate
any statute, rule, regulation, order, judgment or decree applicable to Issuer or
by which it or any of its assets or properties is bound or affected or (3)
result in any breach or violation of or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give rise
to any rights of termination, amendment, acceleration or cancellation of, or
result in the creation of any Lien on any of the property or assets of Issuer
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, or other instrument or obligation to which Issuer or any of its
subsidiaries is a party or by which Issuer or any of its assets or properties is
bound or affected (except, in the case of clauses (2) and (3) above, for
violations, breaches or defaults which would not, individually or in the
aggregate, have a Material Adverse Effect on Issuer) and (g) any provisions of
the Wisconsin Business Corporation Law or Issuer's Articles of Incorporation
prohibiting certain business combinations shall not apply to Grantee in respect
of Grantee's acquisition of some or all of the Option Shares and (h) Grantee
will not, as a result of its exercise of the Stock Option, become subject to any
anti-takeover provisions, plans or arrangements in place at Issuer.
6. Representations and Warranties of Grantee. Grantee
represents and warrants to Issuer that (a) Grantee is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Wisconsin and has full corporate power and authority to execute and deliver this
Agreement and, subject to any approvals referred to herein, to consummate the
transactions contemplated hereunder, (b) the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly approved by the Board of Directors of Grantee and no other
corporate proceedings on the part of Grantee are necessary to approve this
Agreement and to consummate the transactions contemplated hereby, (c) this
Agreement has been duly executed and delivered by Grantee and (assuming due
authorization, execution and delivery by Issuer) this Agreement constitutes a
valid and binding obligation of Grantee, enforceable against Grantee in
accordance with its terms, except as enforcement may be limited by general
principles of equity whether applied in a court of law or equity and by
bankruptcy, insolvency and similar laws affecting creditors' rights and remedies
generally, (d) the execution and delivery of this Agreement by Grantee does not,
and the performance of this Agreement by Grantee will not (1) violate the
certificate of incorporation or bylaws of Grantee, (2) conflict with or violate
any statute, rule, regulation, order, judgment or decree applicable to Grantee
or by which it or any of its properties or assets is bound or affected or (3)
result in any breach of or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, or give rise to any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a Lien on any of the property or assets of Grantee pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license, or
other instrument or obligation to which Grantee is a party or by which Grantee
or any of its properties or assets is bound or affected (except, in the case of
clauses (2) and (3) above, for violations, breaches, or defaults which would
not, individually or in the aggregate, have a Material Adverse Effect on
Grantee) and (e) any Option Shares acquired upon exercise of the Stock Option
will be, and the Stock Option is being, acquired by Grantee for its own account
and not with a view to the public distribution or resale thereof in any manner
which would be in violation of applicable United States securities laws.
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7. Adjustment upon Changes in Capitalization; Substitute
Option. (a) In the event of any change in Issuer Common Stock by reason of a
stock dividend, split-up, recapitalization, combination, exchange of shares or
similar transaction, the type and number of shares or securities subject to the
Stock Option, and the Exercise 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 Stock 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 Stock Option had been exercised
immediately prior to such event or the record date therefor, as applicable.
(b) In the event that 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 and Issuer shall be the continuing or
surviving corporation, but, in connection with such merger, the shares of Issuer
Common Stock outstanding immediately prior to the consummation of such merger
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 shares of Issuer Common
Stock outstanding immediately prior to the consummation of such merger shall
after such merger represent less than 50% of the outstanding voting securities
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 the Stock 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) or (B) any person that controls the Acquiring Corporation
(any such person being referred to as "Substitute Option Issuer").
(c) The Substitute Option shall have the same terms as the
Stock Option; provided that the exercise price therefor and number of shares
subject thereto shall be as set forth in this Section 7; provided further that
the Substitute Option shall be exercisable immediately upon issuance without the
occurrence of a Purchase Event; and provided further that if the terms of the
Substitute Option cannot, for legal reasons, be the same as the Stock Option
(subject to the variations described in the foregoing provisos), such terms
shall be as similar as possible and in no event less advantageous to Grantee.
Substitute Option Issuer shall also enter into an agreement with Grantee in
substantially the same form as this Agreement (subject to the variations
described in the foregoing provisos), which shall be applicable to the
Substitute Option.
(d) The Substitute Option shall be exercisable for such number
of shares of Substitute Common Stock (as defined below) as is equal to the
Assigned Value (as defined below) multiplied by the number of shares of Issuer
Common Stock for which the Stock Option was theretofore exercisable, divided by
the Average Price (as defined below), rounded up to the nearest whole share. The
exercise price per share of Substitute Common Stock of the Substitute Option
(the "Substitute Option Price") shall then be equal to the Exercise Price
multiplied by a fraction in which the numerator is the number of shares of
Issuer Common Stock for which the Stock Option was theretofore exercisable and
the denominator is the number of shares of Substitute Common Stock for which the
Substitute Option is exercisable.
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(e) 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 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 outstanding Substitute
Common Stock but for the limitation in the first sentence of this Section 7(e),
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 the first sentence of this Section 7(e) over (ii) the value of the
Substitute Option after giving effect to the limitation in the first sentence of
this Section 7(e). This difference in value shall be determined by a nationally
recognized investment banking firm selected by Grantee.
(f) Issuer shall not enter into any transaction described in
Section 7(b) 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 holders of the other shares of common
stock issued by Substitute Option Issuer are not entitled to exercise any rights
by reason of the issuance or exercise of the Substitute Option and the shares of
Substitute Common Stock are otherwise in no way distinguishable from or have
lesser economic value than other shares of common stock issued by Substitute
Option Issuer (other than any diminution in value resulting from the fact that
the shares of Substitute Common Stock are restricted securities, as defined in
Rule 144 under the Securities Act or any successor provision)).
(g) For purposes hereof, the following terms have the
following meanings:
(1) "Acquiring Corporation" means (i) the continuing or
surviving corporation of a consolidation or merger with Issuer (if
other than Issuer), (ii) Issuer in a merger in which Issuer is the
continuing or surviving corporation and (iii) the transferee of all or
substantially all of Issuer's assets or deposits.
(2) "Assigned Value" means the highest of (A) the price per
share of Issuer Common Stock at which a Tender Offer has been made
after the date hereof and prior to the consummation of the
consolidation, merger or sale referred to in Section 7(b), (B) the
price per share to be paid by any third party or the consideration per
share to be received by holders of Issuer Common Stock, in each case
pursuant to the agreement with Issuer with respect to the
consolidation, merger or sale referred to in Section 7(b), (C) the
highest closing sales price per share for Issuer Common Stock quoted on
the National Association of Securities Dealers' Automated Quotation
System (the "NASDAQS") (or, if the shares of Issuer Common Stock are
not quoted thereon, on the principal trading market on which such
shares are traded as reported by a recognized source) during the
12-month period immediately preceding the consolidation, merger or sale
referred to in Section 7(b) and (D) in the event the transaction
referred to in Section 7(b) is a sale of all or substantially all of
Issuer's assets and/or deposits, an amount equal to (i) the sum of the
price paid in such sale for such assets and/or deposits 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 (ii) the number of shares of Issuer Common Stock outstanding
at such time. In the event that a Tender Offer is made for Issuer
Common Stock or an agreement is entered into for a merger
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or consolidation involving consideration other than cash, the value of
the securities or other property issuable or deliverable in exchange
for Issuer Common Stock shall be determined by a nationally recognized
investment banking firm selected by Grantee.
(3) "Average Price" means the average closing sales price per
share of a share of Substitute Common Stock quoted on the NASDAQS (or,
if the shares of Substitute Common Stock are not quoted thereon, on the
principal trading market on which such shares are traded as reported by
a recognized source) for the one year immediately preceding the
consolidation, merger or sale in question, but in no event higher than
the closing price of the shares of Substitute Common Stock on the day
preceding such consolidation, merger or sale; provided that if
Substitute Option Issuer is Issuer, 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 such person, as
Grantee may elect.
(4) "Substitute Common Stock" means the shares of capital
stock (or similar equity interest) with the greatest voting power in
respect of the election of directors (or persons similarly responsible
for the direction of the business and affairs) of the Substitute Option
Issuer.
8. Registration Rights. (a) Issuer shall, if requested by
Grantee at any time and from time to time (a) within three years of the first
exercise of the Stock Option or (b) for 30 business days following the
occurrence of either of the events set forth in clauses (i) and (ii) of Section
2(d), as expeditiously as possible prepare and file up to two registration
statements under the Securities Act if such registration is necessary in order
to permit the sale or other disposition of any or all shares of securities that
have been acquired by or are issuable to Grantee upon exercise of the Stock
Option in accordance with the intended method of sale or other disposition
stated by Grantee, including 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 under any applicable
state securities laws. Grantee agrees to use its best efforts to cause, and to
cause any underwriters of any sale or other disposition to cause, any sale or
other disposition pursuant to such registration statement to be effected on a
widely distributed basis so that upon consummation thereof no purchaser or
transferee shall own beneficially more than 4.9% of the then outstanding voting
power of Issuer. Issuer shall use all reasonable efforts to cause each such
registration statement to become effective, to obtain all consents or waivers of
other parties which are required therefor and to keep such registration
statement effective for such period not in excess of 180 days from the day such
registration statement first becomes effective as may be reasonably necessary to
effect such sale or other disposition. Any registration statement prepared and
filed under this Section 9, and any sale covered thereby, shall be at Issuer's
expense except for underwriting discounts or commissions, brokers' fees and the
fees and disbursements of Grantee's counsel related thereto.
(b) In the event that Grantee requests Issuer to file a
registration statement following the failure to obtain a required approval for
an exercise of the Stock Option as described in Section 2(d), the closing of the
sale or other disposition of Issuer Common Stock or other securities pursuant to
such registration statement shall occur substantially simultaneously with the
exercise of the Stock Option.
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(c) The obligations of Issuer under this Section 8 to file a
registration statement and to maintain its effectiveness may be suspended for
one or more periods of time not exceeding 60 days in the aggregate if the Board
of Directors of Issuer shall have determined that the filing of such
registration statement or the maintenance of its effectiveness would require
premature disclosure of nonpublic information that would materially and
adversely affect Issuer.
(d) If during the time periods referred to in the first
sentence of Section 8(a) Issuer effects a registration under the Securities Act
of Issuer Common Stock for its own account or for any other stockholders of
Issuer (other than on Form S-4 or Form S-8, or any successor form), Issuer shall
allow Grantee the right to participate in such registration, and such
participation shall not affect the obligation of Issuer to effect two
registration statements for Grantee under this Section 8 ; provided that, if the
managing underwriters of such offering advise Issuer in writing that in their
opinion the number of shares of Issuer Common Stock requested to be included in
such registration exceeds the number which can be sold in such offering, Issuer
shall include the shares requested to be included therein by Grantee pro rata
with the shares intended to be included therein by Issuer.
(e) Grantee shall provide all information reasonably requested
by Issuer for inclusion in any registration statement to be filed hereunder. In
connection with any registration pursuant to this Section 8, Issuer and Grantee
shall provide each other and any underwriter of the offering with customary
representations, warranties, covenants, indemnification and contribution in
connection with such registration.
9. Restrictive Legends. Each certificate representing Option
Shares issued to Grantee hereunder shall initially be endorsed with a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE
REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
REGISTRATION AND APPLICABLE STATE SECURITIES LAWS IS AVAILABLE. SUCH
SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS
SET FORTH IN THE STOCK OPTION AGREEMENT, DATED MAY 14, 1997, A COPY OF
WHICH MAY BE OBTAINED FROM THE ISSUER HEREOF.
10. NASDAQS Listing. Upon any exercise of the Stock Option,
Issuer shall use its best efforts to cause the shares of Issuer Common Stock to
be acquired in connection with such exercise of the Stock Option to be approved
for listing on the NASDAQS and each other securities exchange on which such
shares are listed as soon as practicable after such exercise.
11. Assignment; Third Party Beneficiaries. (a) Neither this
Agreement nor any of the rights, interests or obligations of any party hereunder
shall be assigned by any of the parties hereto (whether by operation of law or
otherwise) without prior written consent of the other party; provided that
Grantee may assign all or any part of its rights hereunder to (i) any affiliate
thereof or (ii) any person after the occurrence of a Purchase Event. Subject to
the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
assigns. This Agreement (including the documents and instruments referred
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to herein) is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(b) Any Option Shares sold by a party in compliance with the
provisions of Section 9 shall, upon consummation of such sale, be free of the
restrictions imposed with respect to such shares by this Agreement. In no event
will any transferee of any Option Shares be entitled to the rights of Grantee
hereunder.
(c) Certificates representing shares sold in a registered
public offering pursuant to Section 8 shall not be required to bear the legend
set forth in Section 9.
12. Enforcement of the Agreement. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
13. Entire Agreement. This Agreement and the Merger Agreement
(together with the other documents and instruments referred to in the Merger
Agreement) constitute the entire agreement and supersede all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
14. Further Assurances. Each party will execute and deliver
all such further documents and instruments and take all such further action as
may be necessary in order to consummate the transactions contemplated hereby.
15. Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
16. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally, mailed by
registered or certified mail (return receipt requested) or delivered by express
courier (with confirmation) to the parties at the following addresses (or such
other address for a party as shall be specified by like notice):
(a) if to Grantee, to:
First Financial Corporation
1305 Main Street
Stevens Point, Wisconsin 54481
Attention: Robert M. Salinger, General Counsel
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With a copy to:
Hogan & Hartson, L.L.P.
555 13th Street, N.W.
Washington, D.C. 20004
Attention: Stuart G. Stein
and
(b) if to Issuer, to:
Associated Banc-Corp
112 North Adams Street
Green Bay, Wisconsin 54307
Attention: Brian R. Bodager, General Counsel
With a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attention: Creighton O'M. Condon
17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Wisconsin, without regard
to any applicable conflicts of law.
18. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
19. Counterparts. This Agreement may be executed in
counterparts, all of which shall be considered and shall become effective when
counterparts have been signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign the same
counterpart.
20. Expenses. Except as otherwise expressly provided herein or
in the Merger Agreement, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expense.
21. Amendments; Waiver. This Agreement may be amended by the
parties hereto and the terms and conditions hereof may be waived only by an
instrument in writing signed on behalf of each of the parties hereto, or, in the
case of a waiver, by an instrument signed on behalf of the party waiving
compliance.
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IN WITNESS WHEREOF, Issuer and Grantee have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first above written.
ASSOCIATED BANC-CORP
By: /s/ H.B. Conlon
----------------------------
Name: H.B. Conlon
Title: Chief Executive Officer
FIRST FINANCIAL CORPORATION
By: /s/ John C. Seramur
------------------------
Name: John C. Seramur
Title: Chief Executive Officer