EXHIBIT 3
THE TRANSFER OF THIS AGREEMENT IS SUBJECT TO CERTAIN PROVISIONS CONTAINED
HEREIN AND MAY BE SUBJECT TO RESALE RESTRICTIONS UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND RULES OF THE FEDERAL DEPOSIT INSURANCE CORPORATION
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is entered into as of August
29, 1995 by and between Community Bankshares, Inc., a New Hampshire bank
holding company ("Community") and Centerpoint Bank, a New Hampshire trust
company ("Centerpoint").
Whereas, Centerpoint and Community propose to enter into an Agreement and
Plan of Merger dated as of the date hereof (the "Merger Agreement";
capitalized terms not defined herein shall have the meanings set forth in the
Merger Agreement), providing for, among other things, the combination and
merger of a newly-formed bank subsidiary of Community and Centerpoint into a
single bank, which will be a subsidiary of Community; and
Whereas, as a condition and an inducement to Community's willingness to
enter into the Merger Agreement, Community has requested that Centerpoint
agree, and Centerpoint has agreed, to grant Community the Option (as defined
below);
Now, Therefore, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, Centerpoint and Community agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions set forth herein,
Centerpoint hereby grants to Community an irrevocable option (the "Option") to
acquire up to 165,920 shares (the "Option Shares") of common stock, par value
$1.00 per share, of Centerpoint ("Centerpoint Common Stock") at an acquisition
price of $12.00 per Option Share (the "Purchase Price"). The number of shares
of Centerpoint Common Stock that may be received upon the exercise of the
Option and the Purchase Price are subject to adjustment as herein set forth.
2. CERTAIN DEFINITIONS. (a) The holder or holders of this Option ("Holder")
may exercise the Option, in whole or in part, at any time and from time to
time following the occurrence of a Triggering Event (as defined below). Except
as otherwise provided in this Agreement, the right to exercise the Option
shall expire and be of no further force and effect upon the occurrence of a
Termination Event (as defined below).
(b) Each of the following shall constitute a "Termination Event":
(i) the Effective Time;
(ii) the first anniversary of a Triggering Event;
(iii) the second anniversary of a termination of the Merger Agreement
by reason of a material breach or wilful violation by Centerpoint of
its representations, warranties or obligations under the Merger
Agreement, provided, however, that such anniversary shall be a
Termination Event only if such anniversary occurs prior to the
occurrence of a Triggering Event;
(iv) immediately (A) upon termination of the Merger Agreement by
Centerpoint by reason of a breach or violation by Community of its
representations, warranties or obligations under the Merger Agreement,
or (B) if the holders of Community Common Stock shall not have approved
the Merger Agreement and the transactions contemplated thereby at the
Community Special Meeting held for the purpose of voting on the Merger
Agreement; or
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(v) the second anniversary of a termination of the Merger Agreement
other than as described in Section 2(b)(iii) or Section 2(b)(iv),
provided, however, that such anniversary shall be a Termination Event
only if such anniversary occurs prior to the occurrence of a Triggering
Event.
(c) Notwithstanding any expiration or termination of the Option, Community
shall be entitled to acquire those Option Shares with respect to which it has
exercised the Option in accordance with the terms hereof prior to the
expiration or termination of the Option. Any purchase of shares upon exercise
of the Option shall be subject to compliance with requirements established by
the New Hampshire Board of Trust Company Incorporation and with all other
requirements of applicable law, including the Bank Holding Company Act of
1956, as amended (the "BHC Act").
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(d) A "Triggering Event" shall occur for purposes of this Agreement upon the
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occurrence of any of the following:
(i) without having received Community's prior written consent,
Centerpoint shall have entered into, or the Board of Directors of
Centerpoint shall have approved or recommended that the shareholders of
Centerpoint approve or accept, an agreement with any person (other than
Community or any affiliate of Community) to (A) effect a merger,
consolidation or similar transaction involving Centerpoint, (B) sell,
lease or otherwise dispose of assets of Centerpoint (other than sales
of loans or securities classified as available for sale in the ordinary
course of business of Centerpoint) representing 15% or more of the
consolidated assets of Centerpoint, 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 Centerpoint (any of the foregoing an "Acquisition
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Transaction");
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(ii) any person (other than Community or any affiliate of Community)
shall, after the date hereof, have acquired beneficial ownership (as
defined in Rule 13(d)-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), or the right to acquire beneficial
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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, 15% or more of the then
outstanding Centerpoint Common Stock;
(iii) any person (other than Community or any affiliate of Community)
(1) publicly announces a proposal, or publicly discloses an intention
to make a proposal, to engage in an Acquisition Transaction, (2) files
an application under the BHC Act for approval to engage in an
Acquisition Transaction, or (3) files a notice under the Change in Bank
Control Act of 1978 or other applicable law of intent to engage in an
Acquisition Transaction;
(iv) Centerpoint's Board of Directors shall have failed to recommend
to its shareholders approval of the Merger Agreement, or shall have
withdrawn or modified in a manner adverse to Community its
recommendation with respect to the Merger Agreement; or
(v) the holders of Centerpoint Common Stock shall not have approved
the Merger Agreement and the transactions contemplated thereby at the
Special Meeting held for the purpose of voting on the Merger Agreement
or such Special Meeting shall not, due to actions or failure to act of
Centerpoint, have been held prior to a date which is 60 days ("End
---
Date") after effectiveness of the Registration Statement on Form S-4,
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provided, however, that the events described in this Section 2(d)(v)
shall constitute a Triggering Event only if, prior to the End Date,
Centerpoint shall have agreed to provide to a stockholder or a
stockholder representative a copy of its list of Centerpoint
stockholders for use in connection with possible communications with
other Centerpoint stockholders.
As used in this Agreement, "person" shall have the meaning specified in
Sections 3(a)(9) and 13(d)(3) of the Exchange Act and includes any individual,
corporation, partnership, company, group or other entity. Terms defined herein
by reference to the Exchange Act shall be construed as if Centerpoint had
registered under the Exchange Act.
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3. EXERCISE OF OPTION. (a) In the event Community wishes to exercise the
Option, it shall send to Centerpoint a written notice (the date of such notice
being herein referred to as the "Notice Date") specifying (i) the total number
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of Option Shares it intends to acquire pursuant to such exercise and (ii) a
place and date not earlier than three business days nor later than 15 business
days from the Notice Date for the closing of such acquisition (the "Closing
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Date").
----
(b) If the closing of the acquisition pursuant to the exercise of the Option
(the "Closing") cannot be consummated by reason of any judgment, decree or
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order, the period of time that otherwise would run pursuant to Section 3(a)
shall run instead until the date on which such judgment, decree or order
becomes final and nonappealable. Without limiting the foregoing, if prior
notification to or approval of the Board of Governors of the Federal Reserve
System ("FRB") or an other regulatory authority is required in connection with
such purchase, Community shall promptly file the required notice or
application for approval and shall expeditiously process the same (and
Centerpoint shall cooperate with Community 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 Section 3(a) shall run instead from the
date on which, as the case may be, (i) any required notification period has
expired or been terminated or (ii) such approval has been obtained, and in
either event, any requisite waiting period has passed.
4. PAYMENT AND DELIVERY OF CERTIFICATES. (a) On each Closing Date, Community
shall pay Centerpoint, in immediately available funds by wire transfer to a
bank account designated by Centerpoint, an amount equal to the Purchase Price
multiplied by the number of Option Shares to be purchased on such Closing
Date.
(b) At each Closing, simultaneously with the delivery of the consideration
specified in Section 4(a), Centerpoint shall deliver to Community a
certificate or certificates representing the Option Shares to be acquired at
such Closing, which Option Shares shall be free and clear of all liens,
claims, charges and encumbrances of any kind whatsoever (including any
preemptive rights of any stockholder).
5. REPRESENTATIONS AND WARRANTIES OF CENTERPOINT. Centerpoint hereby
represents and warrants to Community as follows:
(a) DUE AUTHORIZATION. Centerpoint has all necessary corporate power and
authority to execute and deliver this Agreement. The execution and delivery
of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate
action on the part of Centerpoint. This Agreement has been duly and validly
executed and delivered by Centerpoint.
(b) AUTHORIZED STOCK. Centerpoint has taken all necessary corporate and
other action to authorize and reserve and, subject to obtaining the
governmental and other approvals and consents referred to herein, to permit
it to issue, and, at all times from the date hereof until the obligation to
deliver Centerpoint Common Stock upon the exercise of the Option
terminates, will have reserved for issuance, upon exercise of the Option,
shares of Centerpoint Common Stock necessary for Community to exercise the
Option, and Centerpoint will take all necessary corporate action to
authorize and reserve for issuance all additional shares of Centerpoint
Common Stock or other securities which may be issued pursuant to Section 7
upon exercise of the Option. The shares of Centerpoint Common Stock to be
issued upon due exercise of the Option, including all additional shares of
Centerpoint 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
Centerpoint.
(c) NO CONFLICTS. The execution and delivery of this Agreement do not,
and the consummation of the transactions contemplated hereby will not,
conflict with or violate any provision of the Charter or By-laws or
equivalent organizational document of Centerpoint or any Subsidiary or,
subject to obtaining any required approvals or consents, violate, conflict
with or result in any breach of any provisions of, constitute a default (or
an event which with notice or lapse of time or both would constitute a
default) under, result in the termination of, accelerate the performance
required by, or result in the creation of any lien, security
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interest, charge or other encumbrance upon any of the respective properties
or assets of Centerpoint or any Subsidiary under any of the terms,
conditions or provisions of any note, bond, capital note, debenture,
mortgage, indenture, deed of trust, license, lease, agreement, obligation,
instrument, permit, concession, franchise, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Centerpoint or
any Subsidiary or their respective properties or assets.
(d) ACCESS TO STOCKHOLDER LISTS. The list of Centerpoint's stockholders
has been protected as confidential and proprietary information by
Centerpoint, has not been copied or distributed within the Bank, and no
copies of such list have been made available to stockholders or other third
parties.
6. REPRESENTATIONS AND WARRANTIES OF COMMUNITY. Community hereby represents
and warrants to Centerpoint that:
(a) DUE AUTHORIZATION. Community has all necessary corporate power and
authority to execute and deliver this Agreement. The execution and delivery
of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate
action on the part of Community. This Agreement has been duly and validly
executed and delivered by Community.
(b) NO CONFLICTS. The execution and delivery of this Agreement do not,
and the consummation of the transactions contemplated hereby will not,
conflict with or violate any provision of the Charter or By-laws or
equivalent organizational document of Community or any subsidiary Community
or, subject to obtaining any required approvals or consents contemplated
hereby, violate, conflict with or result in any breach of any provisions
of, constitute a default (or event which with notice or lapse of time or
both would constitute a default) under, result in the termination of,
accelerate the performance required by, or result in the creation of any
lien, security interest, charge or other encumbrance upon any of the
respective properties or assets of Community or any of its subsidiaries
under any of the terms, conditions or provisions of any note, bond, capital
note, debenture, mortgage, indenture, deed of trust, license, lease,
agreement, obligation, instrument, permit, concession, franchise, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to
Community or any subsidiary of Community or their respective properties or
assets.
(c) PURCHASE NOT FOR DISTRIBUTION. Any Option Shares or other securities
acquired by Community upon exercise of the Option will not be taken 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 of 1933.
7. ADJUSTMENT UPON SHARE ISSUANCES, CHANGES IN CAPITALIZATION, ETC. (a) In
the event of any change in Centerpoint 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 to be
delivered by Centerpoint pursuant to the Option shall be adjusted
appropriately, and proper provision shall be made in the agreements governing
such transaction, so that Community shall receive upon exercise of the Option
the number and class of shares or other securities or property that Community
would have received if the Option had been exercised immediately prior to such
event, or the record date therefor, as applicable.
(b) In the event that Centerpoint shall enter into an agreement (i) to
consolidate with or merge into any person, other than Community or one of its
affiliates, and shall not be the continuing or surviving corporation of such
consolidation or merger, (ii) to permit any person, other than Community or
one of its affiliates, to merge into Centerpoint and shall be the continuing
or surviving corporation, but, in connection with such merger, the then
outstanding shares of Centerpoint Common Stock shall be changed into or
exchanged for stock or other securities of Centerpoint or any other person or
cash or any other property or the then outstanding shares of Centerpoint
Common Stock shall after such merger represent less than 50% of the
outstanding shares and share equivalents of the merged company or (iii) to
sell or otherwise transfer all or substantially all of its assets to any
person, other than Community or one of its affiliates, then, and in each such
case, the agreement governing such transaction shall make proper provision so
that the Option shall, upon the consummation of any such transaction and upon
the terms and conditions set forth in this Agreement, be converted into, or
exchanged for, an option to
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acquire the same type of consideration received by the holders of Centerpoint
Common Stock pursuant to such a transaction. The provisions of this Agreement
shall apply with appropriate adjustments to any securities for which the
Option becomes exercisable pursuant to this Section 7.
(c) Notwithstanding any other provision of this Agreement, from and after
any reorganization or recapitalization affecting Centerpoint which is related
to an internal corporate reorganization and from and after the issuance of
additional or replacement equity securities by Centerpoint, the Option shall
remain exercisable for equity securities of Centerpoint representing 19.9% of
the voting power of all Centerpoint equity securities, calculated on a fully-
diluted basis. In connection with any such reorganization or recapitalization
affecting Centerpoint, the type and number of shares or securities to be
delivered by Centerpoint pursuant to the Option shall be adjusted
appropriately, and proper provision shall be made in the agreements governing
such transaction, so that the Option shall remain exercisable for equity
securities of Centerpoint representing 19.9% of the voting power of all
Centerpoint equity securities, calculated on a fully-diluted basis.
8. REPURCHASE AT THE OPTION OF COMMUNITY.
(a) REPURCHASE EVENT. A "Repurchase Event" shall occur for purposes of this
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Agreement upon the occurrence of any of the following:
(i) without having received Community's prior written consent,
Centerpoint shall have entered into an agreement with respect to, or
consummated, a merger, consolidation or sale of substantially all of
its assets; or
(ii) any person (other than Community or any affiliate of Community)
shall, after the date hereof, have acquired beneficial ownership (as
defined in Rule 13(d)-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, 51% or more of the then
outstanding Centerpoint Common Stock.
(b) SECTION 8 REPURCHASE CONSIDERATION. At the request of Community at any
time commencing upon the occurrence of a Repurchase Event and ending upon the
earlier to occur of (x) 9 months immediately thereafter or (y) a Termination
Event, Centerpoint (or any successor entity thereof) shall repurchase from
Community (1) the Option (unless the Option shall have expired or been
terminated in accordance with the terms hereof) and (2) all shares of
Centerpoint Common Stock purchased by Community pursuant hereto with respect
to which Community then has beneficial ownership. The date on which Community
exercises its rights under this Section 8 is referred to as the "Request
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Date". Such repurchase shall be at an aggregate price (the "Section 8
---- ---------
Repurchase Consideration") equal to the sum of:
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(i) the aggregate exercise price paid by Community for any shares of
Centerpoint Common Stock acquired pursuant to the Option with respect
to which Community then has beneficial ownership;
(ii) the excess, if any, of (x) the Applicable Price (as defined
below) for each share of Centerpoint Common Stock over (y) the Purchase
Price (subject to adjustment pursuant to Section 7), multiplied by the
number of shares of Centerpoint Common Stock with respect to which the
Option has not been exercised; and
(iii) the excess, if any, of the Applicable Price over the Purchase
Price (subject to adjustment pursuant to Section 7) paid (or, in the
case of Option Shares with respect to which the Option has been
exercised but the Closing Date has not occurred, payable) by Community
for each share of Centerpoint Common Stock with respect to which the
Option has been exercised and with respect to which Community then has
beneficial ownership, multiplied by the number of such shares.
(c) If Community exercises its rights under this Xxxxxxx 0, Xxxxxxxxxxx
shall, within 10 business days after the Request Date, pay the Section 8
Repurchase Consideration to Community in immediately available funds, and
Community shall surrender to Centerpoint the Option and the certificates
evidencing the shares of Centerpoint Common Stock purchased thereunder with
respect to which Community then has beneficial ownership; and Community shall
warrant that it has sole record and beneficial ownership of such shares and
that
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the same are then free and clear of all liens, claims, charges and
encumbrances of any kind whatsoever. Notwithstanding the foregoing, to the
extent that prior notification to or approval of the FRB or other Governmental
Entity is required in connection with the payment of all or any portion of the
Section 8 Repurchase Consideration or is not then permissible under applicable
law, Centerpoint shall deliver from time to time that portion of the Section 8
Repurchase Consideration that it is not then so prohibited from paying and
shall promptly file the required notice or application for approval and shall
expeditiously process the same (and Community shall cooperate with Centerpoint
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 the
preceding sentence for the payment of the portion of the Section 8 Repurchase
Consideration requiring such notification or approval shall run instead from
the date on which, as the case may be, (i) any required notification period
has expired or been terminated or (ii) such approval has been obtained and, in
either event, any requisite waiting period shall have passed. If the FRB or
any other Governmental Entity disapproves of any part of Centerpoint's
proposed repurchase pursuant to this Xxxxxxx 0, Xxxxxxxxxxx shall promptly
give notice of such fact to Community and redeliver to Community the Option
Shares it has acquired from Community pursuant hereto and is then prohibited
from repurchasing, and Community shall have the right to exercise the Option
as to the number of Option Shares for which the Option was exercisable at the
Request Date less the number of shares as to which payment has been made
pursuant to Section 8(b); provided that if the Option shall have expired prior
to the date of such notice or shall be scheduled to expire at any time before
the expiration of a period ending on the thirtieth business day after such
date, Community shall nonetheless have the right so to exercise the Option
until the expiration of such period of 30 business days. Notwithstanding
anything herein to the contrary, Centerpoint shall not be obligated to
repurchase the Option or any shares of Centerpoint Common Stock pursuant to
this Section 8 on more than one occasion.
(d) For purposes of this Agreement, the "Applicable Price" means the highest
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of (i) the highest price per share at which a tender or exchange offer has
been made for shares of Centerpoint Common Stock after the date hereof and on
or prior to the Request Date, (ii) the price per share to be paid by any third
party for shares of Centerpoint Common Stock or the consideration per share to
be received by holders of Centerpoint Common Stock, in each case pursuant to
an agreement for a merger or other business combination transaction with
Centerpoint entered into on or prior to the Request Date or (iii) the highest
bid price per share as quoted on the principal trading market on which such
shares are traded as reported by a recognized source during the 60 business
days preceding the Request Date. 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 Community and reasonably acceptable to Centerpoint, which
determination shall be conclusive for all purposes of this Agreement.
9. REPURCHASE AT THE OPTION OF CENTERPOINT.
(a) Except to the extent that Community shall have previously exercised its
rights under Section 8, at the request of Centerpoint during the 30-day period
commencing 12 months following the first occurrence of a Repurchase Event,
Centerpoint may repurchase from Community, and Community shall sell to
Centerpoint, all (but not less than all) of the shares of Centerpoint Common
Stock acquired by Community pursuant hereto and with respect to which
Community has beneficial ownership at the time of such repurchase at a price
equal to the greater of (A) 110% of the Current Market Price (as defined
below) or (B) the sum of (1) the Purchase Price in respect of the shares so
acquired plus (2) Community's pre-tax per share carrying cost (as defined
below), multiplied in either case by the number of shares so acquired (the
"Section 9 Repurchase Consideration"); provided that Centerpoint's rights
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under this Section 9 shall be suspended (with any such rights being extended
accordingly) during any period when the exercise of such rights would subject
Community to liability pursuant to Section 16(b) of the Exchange Act by reason
of Community's purchase of shares of Centerpoint Common Stock hereunder.
(b) If Centerpoint exercises its rights under this Section 9 and Community
does not sell the shares to a third party pursuant thereto, Centerpoint shall,
within 10 business days after the expiration of the 30-day period referred to
in paragraph (a) above or, if applicable, upon abandonment of the transaction
covered by the Offeror's
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Notice, pay the Section 9 Repurchase Consideration in immediately available
funds, and Community shall surrender to Centerpoint the certificates
evidencing the shares of Centerpoint Common Stock purchased hereunder with
respect to which Community then has beneficial ownership, and Community 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) As used herein, (i) "Current Market Price" means the average closing
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sales price per share of Centerpoint Common Stock quoted on the principal
trading market on which such shares are traded as reported by a recognized
source for the 10 business days preceding the date of Centerpoint's request
for repurchase pursuant to this Section 9 and (ii) "Community's pre-tax per
-----------------------
share carrying cost" shall be the amount equal to the interest on the
-------------------
aggregate Purchase Price paid for the shares of Centerpoint Common Stock
purchased from the date of purchase to the date of repurchase at the rate of
interest announced by Bank of Boston as its prime or base lending or reference
rate during such period, less any dividends received on the shares so
purchased, divided by the number of shares so purchased.
10. DIVISION OF OPTION. This Agreement and the Option granted hereby are
exchangeable, without expense, at the option of Community upon partial
exercise of the Option or partial assignment of the Option, in both instances
as provided herein, upon presentation and surrender of this Agreement at the
principal office of Centerpoint, for other Agreements providing for Options of
different denominations entitling the holder thereof to acquire in the
aggregate the same number of shares of Centerpoint Common Stock which may be
acquired hereunder. The terms "Agreement" and "Option" as used herein include
--------- ------
any other Agreements and related Options for which this Agreement and the
Option granted hereby may be exchanged.
11. MISCELLANEOUS.
(a) EXPENSES. Except as otherwise provided in the Merger Agreement, each of
the parties hereto shall bear and pay all costs and expenses incurred by it or
on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own 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 BENEFICIAL SEVERABILITY. Except as
otherwise set forth in the Merger Agreement, this Agreement (including other
documents and instruments referred to herein or 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 any rights or remedies hereunder. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction or a regulatory agency to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
(d) GOVERNING LAW. This Agreement shall be governed by the internal laws of
New Hampshire without regard its conflicts of law principles.
(e) DESCRIPTIVE HEADINGS. The descriptive headings contained herein are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered as provided in the Merger
Agreement.
(g) COUNTERPARTS. This Agreement and any amendments hereto may be executed,
including by facsimile, in two counterparts, each of which shall be considered
one and the same agreement and shall become effective
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when both counterparts have been signed by each of the parties and delivered
to the other party, it being understood that both parties need not sign the
same counterpart.
(h) ASSIGNMENT. Neither this Agreement nor any of the rights, interests or
obligations hereunder or under the Option shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other party, except that: (i) Community may assign this
Agreement to any subsidiary or affiliate, and (ii) after the occurrence of a
Repurchase Event Community may assign its rights under this Agreement to third
parties; provided, however, that until the date 30 days following the date on
which the Federal Reserve Board approves an application by Community under the
BHC Act to acquire the shares of Centerpoint Common Stock subject to the
Option, Community may not assign its rights under the Option except in a
manner approved by the Federal Reserve Board, and provided, further, that,
notwithstanding any such assignment, Community shall continue to be liable for
the performance of its obligations under this Agreement. Subject to the
preceding sentence, this Agreement shall be binding upon, inure to the benefit
of and be enforceable by the parties and their respective successors and
assigns.
(i) FURTHER ASSURANCES. In the event of any exercise of the Option by
Community, Centerpoint and Community shall execute and deliver all other
documents and instruments and take all other action that may be reasonably
necessary in order to consummate the transactions provided for by such
exercise.
(j) SPECIFIC PERFORMANCE. The parties hereto agree that this Agreement may
be enforced by either party through specific performance, injunctive relief
and other equitable relief. Both parties further agree to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such equitable relief and that this provision is without
prejudice to any other rights that the parties hereto may have for any failure
to perform this Agreement.
In Witness Whereof, Centerpoint and Community have caused this Stock Option
Agreement to be executed as a sealed instrument by their respective officers
thereunto duly authorized, all as of the date first written above.
Attest: Centerpoint Bank
/s/ Xxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
By: _________________________________
Name: Xxxxxx X. Xxxxx
Attest: Title:President
/s/ Xxxxxxx X. Xxxx Community Bankshares, Inc.
/s/ Xxxxxxx Xxxxxxxxxx
By: _________________________________
Name: Xxxxxxx Xxxxxxxxxx
Title:President
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