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Exhibit B
OPTION AGREEMENT
This OPTION AGREEMENT (the "Agreement") is entered into on November 21,
1996, by and between STANDARD FEDERAL BANCORPORATION, INC., a Michigan
corporation ("Standard"), and ABN AMRO NORTH AMERICA, INC., a Delaware
corporation ("AANA").
AANA and Standard have entered into an Agreement and Plan of Merger (the
"Merger Agreement") providing, among other things, for the merger ("Merger") of
a wholly owned subsidiary of AANA with and into Standard with Standard as the
surviving corporation. In connection with the Merger, each share of
outstanding common stock of Standard, no par value ("Common Stock"), would be
converted into the right to receive $59.00 per share in cash from AANA. AANA
has expressly indicated to Standard that it would be unwilling to enter into
the Merger Agreement and consummate the transactions contemplated thereby
without the benefit of this Option Agreement. In order to encourage AANA to
proceed with the Merger and to prepare required federal and state applications
for approvals from the Applicable Governmental Authorities and to incur
substantial expense in connection therewith, Standard has determined that it is
in its best interests to grant to AANA an option to purchase additional shares
of its authorized but unissued Common Stock. Capitalized terms not otherwise
defined herein shall have the meanings given to them in the Merger Agreement.
In consideration of the premises and the respective representations,
warranties, covenants and agreements set forth herein, and intending to be
legally bound hereby, Standard and AANA agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth herein,
Standard hereby grants to AANA an option (the "Option") to purchase up to
6,209,894 fully paid and nonassessable shares (the "Option Shares") of Standard
Common Stock at a purchase price of $52.50 per share (such price, as adjusted
if applicable, the "Purchase Price"). Notwithstanding anything contained
herein or in the Merger Agreement to the contrary, the amount that AANA
(including any successor-in-interest, Affiliate or transferee) shall be
entitled to receive, whether as (a) consideration for the Option Shares or the
Option (including, without limitation, any payments in the form of Repurchase
Consideration) from any Person, including Standard (whether in a single
transaction or a series of transactions), less any Purchase Price actually paid
by AANA, or (b) costs, fees and expenses or other reimbursement amounts paid to
AANA pursuant to Section 7.2(b) of the Merger Agreement shall not exceed
$90,000,000 in the aggregate (the "Limit"). In the event that AANA receives or
is entitled to receive consideration and/or payments described in (a) and (b)
above in excess of the Limit, such excess amount shall be deemed to be held in
constructive trust by AANA for the benefit of Standard and shall be immediately
paid by AANA to Standard at the time and in the form such amount is received by
AANA. Each certificate evidencing Option Shares issued to AANA upon exercise
of the Option shall bear a legend in form and substance acceptable to Standard
to the effect that such shares are subject to the foregoing restrictions. The
foregoing restrictions with respect to the Limit
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shall expire and be of no further force and effect on the day after the
second anniversary of the occurrence of a Triggering Event (as defined below).
2. Exercise of Option.
(a) The Option may be exercised in whole or in part prior to the
termination of this Agreement and after the occurrence of a Triggering Event,
as defined in Section 4 hereof. In the event that AANA desires to exercise the
Option at any time, AANA shall notify Standard as to the number of shares of
Common Stock it wishes to purchase and a place and date, not less than 2
business days nor more than 10 business days after the date such notice is
given (the "Closing Date"), for the closing of such purchase; provided,
however, that notwithstanding the establishment of such Closing Date, the
consummation of the exercise of the Option may take place only after all
regulatory or supervisory agency approvals required by any applicable law, rule
or regulation shall have been obtained and each such approval shall have become
final. Standard shall fully cooperate with AANA in the filing of the required
notice or application for approval and the obtaining of any such approval.
(b) On the Closing Date, AANA shall (i) pay to Standard, in immediately
available funds by wire transfer to a bank account designated by Standard, an
amount equal to the Purchase Price multiplied by the number of Option Shares to
be purchased on the Closing Date, and (ii) present and surrender this Agreement
to Standard at the address of Standard specified in Section 11(f) hereof.
(c) On the Closing Date, simultaneously with the delivery of immediately
available funds and surrender of this Agreement as provided in Section 2(b)
above, (i) Standard shall deliver to AANA a certificate or certificates
representing the Option Shares to be purchased at such Closing, which Option
Shares shall be free and clear of all liens, claims, charges and encumbrances
of any kind whatsoever, and, if the Option is exercised in part only, an
executed new agreement with the same terms as this Agreement evidencing the
right to purchase the balance of the Option Shares hereunder, and (ii) AANA
shall deliver to Standard a letter agreeing that AANA shall not offer to sell
or otherwise dispose of the Option Shares in violation of the provisions of
this Agreement.
(d) Certificates for the Option Shares delivered at each Closing shall be
endorsed with a restrictive legend which shall read substantially as follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AS AMENDED, STATE
SECURITIES LAWS AND PURSUANT TO THE TERMS OF AN OPTION AGREEMENT DATED
NOVEMBER 22, 1996. A COPY OF SUCH AGREEMENT WILL BE PROVIDED TO THE
HOLDER HEREOF WITHOUT CHARGE UPON RECEIPT BY Standard, INC. OF A WRITTEN
REQUEST THEREFOR.
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The above legend shall be removed by delivery of substitute certificate(s)
without the legend if AANA shall deliver to Standard a copy of a letter from
the staff of the Securities and Exchange Commission, or an opinion of counsel
in form and substance reasonably satisfactory to Standard and its counsel, to
the effect that the legend is not required for purposes of the Securities Act
of 1933, as amended (the "1933 Act").
(e) Upon the giving of written notice of exercise by AANA to Standard and
the tender of the applicable purchase price in immediately available funds,
AANA shall be deemed to be the holder of record of the shares of Common Stock
issuable upon such exercise, notwithstanding that the stock transfer books of
Standard shall then be closed or that certificates representing such shares of
Common Stock shall not then be actually delivered to AANA. Standard shall pay
all expenses, and any and all federal, state and local taxes and other charges
that may be payable in connection with the preparation, issue and delivery of
stock certificates under this Section 2 in the name of AANA or its assignee,
transferee or designee.
3. Termination of Option. The Option shall terminate and be of no further
force and effect upon the earliest to occur of: (i) the Effective Time (as
defined in the Merger Agreement), (ii) twenty-four (24) months after the
occurrence of a Triggering Event (as defined below), (iii) termination of the
Merger Agreement by reason of wrongful termination thereof by AANA or by mutual
agreement of the parties, (iv) six (6) months after the termination of the
Merger Agreement by Standard pursuant to Section 7.1(d)(i) thereof, or (v)
twelve (12) months after the termination of the Merger Agreement for any other
reason.
4. Conditions to Exercise. AANA may exercise the Option, in whole or in
part, at any time prior to its termination following the occurrence of a
Triggering Event. The term "Triggering Event" shall mean the occurrence of any
of the following events:
(a) if the Board of Directors of Standard shall withdraw its support
of the Merger by resolution or by authorization of specific action
inconsistent with consummation of the Merger, or if it fails to recommend
approval of the Merger;
(b) a Person (as defined by Section 13(d)(3)(e) of the 1934 Act),
other than AANA or an Affiliate of AANA:
(i) acquires beneficial ownership (as such term is defined in
Rule 13d-3 as promulgated under the Securities and Exchange Act of
1934, as amended (the "Exchange Act")) of ten percent (10%) or more
of the then outstanding Common Stock of Standard or securities
representing, or the right or option to acquire beneficial
ownership of, or to vote securities representing, ten percent (10%)
or more of the then outstanding Common Stock of Standard, and after
the occurrence of such acquisition the Board of Directors of
Standard (A) recommends such acquisition to its stockholders for
acceptance, (B) fails to undertake such acts as AANA reasonably
requests to oppose such acquisition (provided that in so doing
Standard does not incur significant legal expense), or
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(C) fails to recommend or withdraws its approval of the Merger
Agreement to the stockholders of Standard; or
(ii) enters into an agreement with Standard pursuant to which
such Person or any affiliate of such Person would (A) merge or
consolidate, or enter into any similar transaction, with Standard
or (B) acquire all or substantially all of the assets of Standard;
or
(iii) makes a bona fide proposal (a "Proposal") for any
merger, consolidation or acquisition of all or substantially all
the assets of Standard or other business combination involving
Standard, and thereafter, but before such Proposal has been
Publicly Withdrawn, Standard willfully commits any material breach
of any covenant of the Merger Agreement and such breach (A) would
entitle AANA to terminate the Merger Agreement without regard to
the cure periods provided for therein, (B) is not cured and (C)
would materially interfere with Standard's ability to consummate
the Merger or materially reduce the value of the transaction to
AANA.
The phrase "Publicly Withdrawn" for purposes of clause (iii) above shall mean
an unconditional bona fide withdrawal of the Proposal or a formal rejection of
such Proposal by Standard in writing. Standard shall notify AANA promptly in
writing of the occurrence of any of the events set forth in paragraphs (b)(i),
(ii), or (iii) above, it being understood that the giving of such notice by
Standard shall not be a condition to the right of AANA to transfer or exercise
the Option.
5. Representations and Warranties of Standard. Standard hereby represents
and warrants to AANA as follows:
(a) Standard has all requisite corporate power and authority to enter into
this Agreement and, subject to any approvals referred to herein (including,
without limitation, the approval of FRB or OTS, if necessary), to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of Standard.
This Agreement has been duly executed and delivered by Standard.
(b) Standard has taken all necessary corporate and other action to
authorize and reserve and to permit it to issue, and, at all times from the
date hereof until the obligation to deliver the Option Shares upon the exercise
of the Option terminates, will have reserved for issuance, upon exercise of the
Option, shares of Common Stock necessary for AANA to exercise the Option, and
Standard will take all necessary corporate action to authorize and reserve for
issuance all additional shares of Common Stock or other securities which may be
issued upon exercise of the Option. The Option Shares, including all additional
shares of Standard Common Stock or other securities which may be issuable
pursuant to Section 7 hereof, upon issuance pursuant hereto and payment
therefor, shall be duly and validly issued, fully paid and
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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 Standard.
(c) The execution, delivery and performance of this Agreement does not or
will not, and the consummation by Standard of any of the transactions
contemplated hereby will not, constitute or result in (i) a breach or violation
of, or a default under, its certificate of incorporation or bylaws, or the
comparable governing instruments of any of its subsidiaries, or (ii) a breach
or violation of, or a default under, any agreement, lease, contract, note,
mortgage, indenture, arrangement or other obligation of it or any of its
subsidiaries (with or without the giving of notice, the lapse of time or both)
or under any law, rule, ordinance or regulation or judgment, decree, order,
award or governmental or nongovernmental permit or license to which it or any
of its subsidiaries is subject, that would, in any case referred to in this
clause (ii), give any other person the ability to prevent or enjoin Standard's
performance under this Agreement; provided, however, that Standard makes no
representations or warranties as to the enforceability or legality of this
Agreement and the Option granted hereby under the laws of the State of
Michigan.
(d) Standard agrees: (i) that it shall at all times maintain, free from
preemptive rights, sufficient authorized but unissued or treasury shares of
Common Stock so that the Option may be exercised without additional
authorization of Common Stock after giving effect to all other options,
warrants, convertible securities and other rights to purchase Common Stock;
(ii) that it will not, by charter amendment or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any other voluntary
act, avoid or seek to avoid the observance or performance of any of the
covenants, stipulations or conditions to be observed or performed hereunder by
Standard except pursuant to the Merger; (iii) promptly to take all action as
may from time to time be required (including (x) complying with all premerger
notification, reporting and waiting period requirements specified in 15 U.S.C.
section 18a and regulations promulgated thereunder and (y) in the event, under
the Home Owners' Loan Act, as amended, or the Change in Bank Control Act of
1978, as amended, or any state banking law, prior approval of or notice to the
OTS, or to any federal or state regulatory authority is necessary before the
Option may be exercised, cooperating fully with AANA in preparing such
applications or notices and providing such information to the OTS and the FRB
or such state regulatory authority as they may require) in order to permit AANA
to exercise the Option and Standard duly and effectively to issue shares of
Common Stock pursuant hereto; and (iv) promptly to take all action provided
herein to protect the rights of AANA against dilution on or prior to the
Closing Date.
6. Representations and Warranties of AANA. AANA hereby represents and
warrants to Standard that:
(a) AANA has all requisite corporate power and authority to enter into
this Agreement and, subject to any approvals or consents referred to herein, to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by AANA.
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(b) The Option is not being, and any Option Shares or other securities
acquired by AANA upon exercise of the Option will not be, acquired with a view
to the public distribution thereof and will not be transferred or otherwise
disposed of except in a transaction registered or exempt from registration
under the 1933 Act, as amended.
7. Adjustment upon Changes in Capitalization; Repurchase of Option.
(a) In the event of any change in Standard Common Stock by reason of a
stock dividend, stock split, split-up, recapitalization, combination, exchange
of shares or similar transaction, the type and number of shares or securities
subject to the Option, and the Purchase Price therefor, shall be adjusted
appropriately, and proper provision shall be made in the agreements governing
such transaction so that AANA shall receive, upon exercise of the Option, the
number and class of shares or other securities or property that AANA would have
received in respect of Standard 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 Standard Common Stock are issued after the date of
this Agreement (other than pursuant to an event described in the first sentence
of this Section 7(a)), the number of shares of Standard Common Stock subject to
the Option shall be adjusted so that, after such issuance, it, together with
any shares of Standard Common Stock previously issued pursuant hereto, equals
19.9% of the number of shares of Standard Common Stock then issued and
outstanding, without giving effect to any shares subject to or issued pursuant
to the Option.
(b) If a Triggering Event described in Section 4(b)(ii) shall occur and
the transaction that is the subject of such Triggering Event is consummated, or
if any Person other than AANA or an Affiliate of AANA acquires beneficial
ownership of 50% or more of the then outstanding shares of Common Stock,
Standard, if requested by AANA, shall pay to AANA, in lieu of delivery of the
Option Shares an amount in cash equal to the Spread multiplied by the total
number of Option Shares for which the Option is exercisable (such aggregate
amount is referred to as the "Repurchase Consideration").
(c) As used herein, "Spread" shall mean the excess, if any, over the
Purchase Price (as defined in Section 1) of the higher of (i) highest closing
price per share of Standard Common Stock as reported on the New York Stock
Exchange ("NYSE") within six months immediately preceding the date that AANA
requests cash in lieu of shares pursuant to this Section (the "Request Date"),
(ii) the price per share of Common Stock at which a tender offer or an exchange
offer therefor has been made, (iii) the price per share of Common Stock to be
paid to any third party pursuant to an agreement with Standard, or (iv) in the
event of a sale of all or a substantial portion of Standard's assets the sum of
the price paid in such sale for such assets and the current market value of the
remaining assets of Standard determined by a nationally recognized investment
banking firm mutually selected by AANA, on the one hand, and Standard, on the
other, divided by the number of shares of Common Stock of Standard outstanding
at the time of such sale. In determining the Repurchase Consideration, the
value of consideration other than cash shall be determined by a nationally
recognized investment banking firm mutually selected by AANA, on the one hand,
and Standard on the other.
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(d) Upon exercise of its right to receive cash pursuant to this Section,
any and all obligations of AANA to make payment pursuant to Section 2(b) and
all obligations of Standard to deliver a certificate or certificates
representing shares of Common Stock pursuant to Section 2(b) shall be
terminated. If AANA exercises its rights under this Section 7, Standard shall,
within 10 business days after the Request Date, pay the Repurchase
Consideration to AANA in immediately available funds, and AANA shall surrender
to Standard the Option. Notwithstanding the foregoing, to the extent that prior
notification to or approval of the FRB or other regulatory authority is
required in connection with the payment of all or any portion of the Repurchase
Consideration, AANA shall have the ongoing option to revoke its request for
repurchase pursuant to Section 7(b) or to require that Standard deliver from
time to time that portion of the Repurchase Consideration that it is not then
so prohibited from paying and promptly file the required notice or application
for approval and expeditiously process the same (and Standard shall cooperate
with AANA in the filing of any such notice or application and the obtaining of
any such approval). If the FRB or any other regulatory authority disapproves
of any part of Standard's proposed repurchase pursuant to Section 7(b),
Standard shall promptly give notice of such fact to AANA and AANA shall have
the right to exercise the Option as to the number of Option Shares for which
the Option was exercisable at the Request Date.
8. Registration Rights.
(a) Upon the occurrence of a Triggering Event Standard shall, at the
request of AANA delivered at the time of and together with a written notice of
exercise in accordance with Section 2 hereof and on one occasion only, promptly
prepare, file and keep current a registration statement under the 1933 Act
covering any shares issued or issuable pursuant to this Option and shall use
its best efforts to cause such registration statement to become effective and
to remain effective for up to 180 days from the day such registration statement
first becomes effective or such shorter time as may be reasonably necessary in
order to permit the sale or other disposition of any shares of Common Stock
issued upon total or partial exercise of this Option in accordance with any
plan of disposition requested by AANA. AANA will provide such information as
may be necessary for Standard's preparation of such a registration statement,
and any such information will not contain any statement which, at the time and
in light of the circumstances under which it is made, is false or misleading
with respect to any material fact nor will such information omit to state any
material facts with respect to AANA or its intended plan of disposition of
Option Shares. The foregoing notwithstanding, if, at the time of any request
by AANA for registration of Option Shares as provided above, Standard is in
registration with respect to an underwritten public offering of shares of
Common Stock, and if in the good faith reasonable judgment of the managing
underwriter or managing underwriters, or, if none, the sole underwriter or
underwriters, of such offering the inclusion of AANA's Option or Option Shares
would interfere with the successful marketing of the shares of Common Stock
offered by Standard, the number of Option Shares otherwise to be covered in the
registration statement contemplated hereby may be reduced ("Underwriter
Reduction"); provided, however, that after any such required reduction, the
number of Option Shares to be included in such offering for the account of AANA
shall constitute at least 10% of the total number of shares to be sold by AANA
and Standard in the aggregate; provided, further, however, that if such
reduction occurs,
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then Standard shall file a registration statement for the balance as
promptly as practical and no reduction shall thereafter occur. If requested by
AANA in connection with such registration, Standard shall become a party to any
underwriting agreement relating to the sale of such shares, but only to the
extent of obligating itself in respect of representations, warranties,
indemnities and other agreements customarily included in such underwriting
agreements for Standard.
(b) If after the occurrence of a Triggering Event, Standard effects a
registration under the Securities Act of Standard Common Stock for its own
account or for any other stockholders of Standard (other than on Form S-4 or
Form S-8, or any successor forms or any form with respect to a dividend
reinvestment or similar plan), it shall allow AANA the right to participate in
such registration, and such participation shall not affect the obligation of
Standard to effect a registration statement for AANA under Section 8(a);
provided, however, that if the circumstances give rise to an Underwriter
Reduction as provided in 8(a) above then the procedure set forth in Section
8(a) governing the number of Option Shares to be included in such registration
shall apply.
(c) In connection with any registration pursuant to this Section 8,
Standard and AANA shall provide each other and any underwriter of the offering
with customary representations, warranties, covenants, indemnification and
contribution in connection with such registration. Any registration statement
prepared and filed under this Section 8 and any sale covered thereby shall be
at Standard's expense except for underwriting discounts or commissions,
brokers' fees, taxes and the fees and disbursements of AANA's counsel related
thereto.
9. (a) In the event that prior to the termination of the Option, Standard
shall enter into an agreement (i) to consolidate with or merge into any person,
other than AANA 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 AANA or one of its subsidiaries, to merge into Standard and
Standard shall be the continuing or surviving corporation, but, in connection
with such merger, the then outstanding shares of Common Stock shall be changed
into or exchanged for stock or other securities of any other person or cash or
any other property or the then outstanding shares of Common Stock shall after
such merger represent less than 50% of the outstanding shares and share
equivalents of the merged company, or (iii) to sell or otherwise transfer all
or substantially all of its assets to any person, other than AANA or one of its
subsidiaries, then, and in each such case, the agreement governing such
transaction shall make proper provision so that the Option shall, upon the
consummation of any such transaction and upon the terms and conditions set
forth herein, be converted into, or exchanged for, an option (the "Substitute
Option"), at the election of AANA, of either (x) the Acquiring Corporation (as
hereinafter defined) or (y) any person that controls the Acquiring Corporation.
(b) The following terms have the meanings indicated:
(1) "Acquiring Corporation" shall mean (i) the continuing or
surviving corporation of a consolidation or merger with Standard (if
other than Standard), (ii)
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Standard in a merger in which Standard is the continuing or surviving
person, and (iii) the transferee of all or substantially all of
Standard's assets.
(2) "Substitute Common Stock" shall mean the shares of capital stock
(or similar equity interest) with the greatest voting power in respect of
the election of directors (or other persons similarly responsible for
direction of the business and affairs) of the issuer of the Substitute
Option.
(3) "Assigned Value" shall mean the highest of (i) the price per
share of common stock at which a tender offer or exchange offer therefor
has been made, (ii) the price per share of common stock to be paid by any
third party pursuant to an agreement with Standard, or (iii) in the event
of a sale of all or substantially all of Standard's assets, the sum of
the price paid in such sale for such assets and the current market value
of the remaining assets of Standard as determined by a nationally
recognized investment banking firm selected by AANA divided by the number
of shares of Common Stock of Standard outstanding at the time of such
sale. In determining the market/offer price, the value of consideration
other than cash shall be determined by a nationally recognized investment
banking firm selected by AANA.
(4) "Average Price" shall mean the average closing price of a share
of the Substitute Common Stock for the six months immediately preceding
the consolidation, merger or sale in question, but in no event higher
than the closing price of the shares of Substitute Common Stock on the
day preceding such consolidation, merger or sale; provided, however, that
if Standard is the issuer of the Substitute Option, the Average Price
shall be computed with respect to a share of common stock issued by the
person merging into Standard or by any company which controls or is
controlled by such person, as AANA may elect.
(c) The Substitute Option shall have the same terms and conditions as the
Option, provided, that if any term or condition of the Substitute Option
cannot, for legal reasons, be the same as the Option, such term or condition
shall be as similar as possible and in no event less advantageous to AANA. The
issuer of the Substitute Option shall also enter into an agreement with AANA in
substantially the same form as this Agreement, which shall be applicable to the
Substitute Option.
(d) The Substitute Option shall be exercisable for such number of shares
of Substitute Common Stock as is equal to (i) the product of (A) the Assigned
Value and (B) the number of shares of Common Stock for which the Option is then
exercisable, divided by (ii) the Average Price. The exercise price of the
Substitute Option per share of Substitute Common Stock shall then be equal to
the Option Price multiplied by a fraction, the numerator of which shall be the
number of shares of Common Stock for which the Option is then exercisable and
the denominator of which shall be the number of shares of Substitute Common
Stock for which the Substitute Option is exercisable.
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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 shares of
Substitute Common Stock outstanding prior to exercise of the Substitute Option.
(f) Standard shall not enter into any transaction described in subsection
(a) of this Section 9 unless the Acquiring Corporation and any person that
controls the Acquiring Corporation assume in writing all the obligations of
Standard hereunder.
10. Listing. If Standard Common Stock to be acquired upon exercise of the
Option is then authorized for listing on the NYSE or on any other national
securities exchange or automated quotation system, Standard will promptly file
an application to authorize for listing the shares of Standard Common Stock to
be acquired upon exercise of the Option on the NYSE or such other securities
exchange or quotation system and will use its best efforts to obtain approval
of such listing as soon as practicable.
11. Miscellaneous.
(a) Expenses. Except as otherwise provided in Section 8, each of the
parties hereto shall bear and pay all costs and expenses incurred by it or on
its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial consultants, investment
bankers, accountants and counsel.
(b) Waiver and Amendment. Any provision of this Agreement may be waived
at any time by the party that is entitled to the benefits of such provision.
This Agreement may not be modified, amended, altered or supplemented except
upon the execution and delivery of a written agreement executed by the parties
hereto.
(c) Entire Agreement; No Third-Party Beneficiary; Severability. This
Agreement constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof and is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction or a federal or state regulatory agency to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. If for any reason such court
or regulatory agency determines that the Option does not permit AANA to
acquire, or does not require Standard to repurchase, the full number of shares
of Standard Common Stock as provided in Sections 2 and 7, it is the express
intention of Standard to allow AANA to acquire or to require Standard to
repurchase such lesser number of shares as may be permissible without any
amendment or modification hereof.
(d) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware without regard to any
applicable conflicts of law rules.
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(e) Descriptive Headings. The descriptive headings contained herein are
for convenience of reference only and shall not affect in any way the meaning
or interpretation of this Agreement.
(f) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (with
confirmation) or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
If to AANA, addressed to:
ABN AMRO North America, Inc.
000 Xxxxx XxXxxxx Xxxxxx
Xxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Chief Financial Officer
with a copy to:
ABN AMRO North America, Inc.
Legal
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq., Group Senior Vice President,
General Counsel and Secretary
and with a copy to:
Vedder, Price, Xxxxxxx & Kammholz
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
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If to Standard, addressed to:
Standard Federal Bancorporation, Inc.
0000 Xxxx Xxx Xxxxxx Xxxx
Xxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Chairman
with a copy to:
Xxxxxx Xxxxxxx, PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
(g) Counterparts. This Agreement and any amendments hereto may be executed
in two counterparts, each of which shall be considered one and the same
agreement and shall become effective when both counterparts have been signed,
it being understood that both parties need not sign the same counterpart.
(h) Assignment. TRANSFER OF THIS AGREEMENT IS SUBJECT TO CERTAIN
PROVISIONS CONTAINED HEREIN AND TO RESALE RESTRICTIONS UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. Neither this Agreement nor any of the rights, interests
or obligations hereunder or under the Option may be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other party, except that AANA may assign this Agreement
to a wholly owned subsidiary of AANA. This Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and permitted assigns.
(i) Further Assurances. In the event of any exercise of the Option by
AANA, Standard and AANA 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.
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(k) Termination by AANA. Notwithstanding anything to the contrary herein,
in the event that AANA or any Related Person (as hereinafter defined) thereof
is a person making an offer or proposal to engage in an action that would
result in a Triggering Event (other than the transaction contemplated by the
Merger Agreement), then the Option held by AANA shall immediately terminate and
be of no further force or effect. A Related Person of AANA means any Affiliate
(as defined in Rule 12b-2 of the rules and regulations under the Exchange Act)
of AANA or any person that is the beneficial owner of 5% or more of the voting
power of AANA.
IN WITNESS WHEREOF, Standard and AANA have caused this Option Agreement to
be signed by their respective officers, all as of the day and year first
written above.
ABN AMRO NORTH AMERICA, INC.
By:
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Its:
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By:
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Its:
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STANDARD FEDERAL BANCORPORATION, INC.
By:
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Its:
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