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EXHIBIT 2
AGREEMENT OF AFFILIATION AND MERGER
THIS AGREEMENT OF AFFILIATION AND MERGER ("Agreement"), dated as of this
5th day of February, 1998, by and among BLUE RIVER BANCSHARES, INC. ("Blue
River"), SHELBY COUNTY BANCORP ("Shelby County") and SHELBY COUNTY SAVINGS
BANK, FSB ("SCSB"),
W I T N E S S E T H:
WHEREAS, Blue River is an Indiana corporation with its principal office
located in Shelbyville, Shelby County, Indiana; and
WHEREAS, Shelby County is an Indiana corporation registered as a savings
and loan holding company under the Home Owners' Loan Act, as amended ("HOLA"),
with its principal office located in Shelbyville, Shelby County, Indiana; and
WHEREAS, SCSB is a federally chartered savings bank and a wholly-owned
subsidiary of Shelby County with its principal office located in Shelbyville,
Shelby County, Indiana; and
WHEREAS, a majority of the Board of Directors of Blue River and a majority
of the Board of Directors of Shelby County have approved this Agreement, have
authorized its execution and delivery, and have designated this Agreement as a
plan of merger.
NOW, THEREFORE, in consideration of the foregoing premises, the
representations, warranties, covenants and mutual obligations herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Blue River, Shelby County and SCSB hereby agree as
follows:
SECTION 1
THE MERGER
1.01. General Description. Upon the terms and subject to the
conditions of this Agreement, Shelby County shall be merged into Blue River
("Merger"). Blue River shall survive the Merger ("Surviving Corporation") and
shall continue its corporate existence under the laws of the State of Indiana
and pursuant to the provisions of and with the effect provided in the Indiana
Business Corporation Law, as amended. Upon consummation of the Merger, SCSB
shall be a wholly-owned subsidiary of Blue River. Immediately prior to the
Effective Time (as hereinafter defined), SCSB shall convert into an Indiana
state-chartered bank ("Conversion"), as provided in the Plan of Charter
Conversion of Shelby County Savings Bank, FSB into Shelby County Bank ("Plan of
Conversion"), the form of which is attached hereto as Exhibit A. (The Merger
and the Conversion are collectively referred to as the "Transaction.")
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1.02 Name and Offices. The name of the Surviving Corporation shall be
"Blue River Bancshares, Inc." Its principal office shall be located at 00 Xxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx 00000.
1.03 Directors and Officers. (a) Surviving Corporation. The Board of
Directors of the Surviving Corporation, until such time as their respective
successors have been elected and have qualified, shall consist of the directors
of Blue River serving immediately prior to the Effective Time (as hereinafter
defined). The officers of the Surviving Corporation shall consist of the
officers of Blue River serving immediately prior to the Effective Time until
the Board of Directors of the Surviving Corporation shall elect new or
successor officers.
(b) SCSB. The Board of Directors of SCSB following the Effective Time,
until such time as their respective successors have been elected and qualified,
shall consist of those persons who are serving as directors of Blue River
immediately prior to the Effective Time. The officers of SCSB serving
immediately prior to the Effective Time shall be the officers of SCSB following
the Effective Time until the Board of Directors of SCSB shall elect new or
successor officers. In addition, as of the Effective Time, Xxxxxx X.
Xxxxxxxxxx shall resign as President and Chief Executive Office of SCSB, and
Xxxxxx X. Xxxx shall be elected as the President and Chief Executive Officer of
SCSB and shall serve in such positions until such time as his successor has
been duly elected and qualified.
(c) Term of Office. All directors and officers of the Surviving
Corporation and SCSB shall serve for a term and otherwise be subject to the
qualification and other requirements for directors and officers of the
Surviving Corporation and SCSB, respectively, as set forth in their respective
Articles of Incorporation, Charter or By-Laws in effect from time to time.
1.04 Capital Structure. The capital of the Surviving Corporation shall
not be less than the capital of Blue River immediately prior to the Effective
Time. The issued and outstanding shares of common stock of Blue River
immediately prior to the Effective Time shall remain issued and outstanding
following the Effective Time.
1.05 Articles of Incorporation; Charter and By-Laws. The Articles of
Incorporation and By-Laws of Blue River in existence at the Effective Time
shall be the Articles of Incorporation and By-Laws of the Surviving Corporation
following the Effective Time until such Articles of Incorporation and By-Laws
shall be amended as provided by applicable law. The Charter and By-Laws of
SCSB in existence at the Effective Time shall be the Charter and By-Laws of
SCSB following the Effective Time until such time as such Charter and By-Laws
shall be amended as provided by applicable law.
1.06 Effect of Merger. The effect of the Merger upon consummation thereof
shall be as set forth in Indiana Code Section 23-1-40-6, as amended.
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SECTION 2
MANNER AND BASIS
OF CONVERSION OF STOCK
2.01. Conversion of Shelby County Common Stock. Upon and by virtue of the
Merger becoming effective at the Effective Time, each issued and outstanding
share of Shelby County Common Stock shall be converted into the right to
receive a cash amount equal to Fifty-Eight Dollars ($58.00) ("Conversion
Price").
2.02. Distribution of Cash. (a) Promptly but not more than fifteen (15)
days following the Effective Time, the conversion agent designated by Blue
River with the prior approval of Shelby County which approval shall not be
unreasonably withheld ("Conversion Agent") shall mail to each Shelby County
shareholder a letter of transmittal providing instructions as to the
transmittal to Blue River of certificates formerly representing shares of
Shelby County Common Stock and the payment of cash in exchange therefor
pursuant to the terms of this Agreement.
(b) Following the Effective Time, the Conversion Agent, on behalf of Blue
River, shall distribute the cash payment, without interest, required by Section
2.01 hereof to each holder of Shelby County Common Stock of record at the
Effective Time within twenty (20) business days following receipt by the
Conversion Agent of the shareholder's certificate(s) formerly representing such
shareholder's shares of Shelby County Common Stock together with a properly
completed and executed letter of transmittal, all in form and substance
reasonably satisfactory to the Surviving Corporation.
(c) Following the Effective Time, stock certificates formerly
representing Shelby County Common Stock held by shareholders of Shelby County
shall be deemed to evidence only the right to receive cash, without interest
thereon, pursuant to Section 2.01 hereof.
(d) Blue River shall be entitled to rely upon the stock transfer books
and records of Shelby County to establish the persons entitled to receive the
cash payment pursuant to this Agreement, which books, in the absence of actual
knowledge by Blue River of any adverse claim thereto, shall be conclusive with
respect to the ownership of shares of Shelby County Common Stock.
(e) With respect to any certificate for shares of Shelby County
Common Stock which has been lost, stolen or destroyed, Blue River shall be
authorized to pay the cash amount required by Section 2.01 hereof to the
registered owner of such certificate upon Blue River's receipt of an agreement
to indemnify Blue River against loss from such lost, stolen or destroyed
certificate, an affidavit of lost, stolen or destroyed stock certificate and,
if necessary in Blue River's reasonable discretion, a bond, all in form and
substance reasonably satisfactory to Blue River, and upon compliance by the
shareholder of Shelby County with all other reasonable requirements of Blue
River in connection with lost, stolen or destroyed stock certificates.
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SECTION 3
DISSENTING SHAREHOLDERS
Shareholders of Shelby County who properly exercise and perfect statutory
dissenters' rights shall have the rights accorded to dissenting shareholders
under Chapter 23-1-44 of the Indiana Code, as amended.
SECTION 4
REPRESENTATIONS AND WARRANTIES
OF SHELBY COUNTY AND SCSB
Each of Shelby County and SCSB hereby represents and warrants to Blue
River with respect to itself, the other, The Shelby Group, Inc. ("Shelby
Group") and First Tier One Corporation ("First Tier") as follows as of the date
hereof:
4.01. Organization and Authority. (a) Shelby County is a corporation
duly organized and validly existing under the laws of the State of Indiana and
is a savings and loan holding company under the HOLA. Shelby County has full
power and authority (corporate and otherwise) to own and lease its properties
as presently owned and leased and to conduct its business in the manner and by
the means utilized as of the date hereof. Shelby County has no direct
subsidiaries and owns directly no voting stock or equity securities of any
corporation, partnership, association or other entity, other than all of the
issued and outstanding common stock of SCSB. The Shelby County Common Stock is
the only class of Shelby County stock and is registered pursuant to Section 12
of the Securities Exchange Act of 1934, as amended ("1934 Act").
(b) SCSB is a federally chartered savings bank duly organized and validly
existing under the laws of the United States of America. SCSB has full power
and authority (corporate and otherwise) to own and lease its properties as
presently owned and leased and to conduct its business in the manner and by the
means utilized as of the date hereof. Except for shares of common stock of the
Federal Home Loan Bank of Indianapolis, Shelby Group and First Tier and except
as provided in the Disclosure Schedule, SCSB has no subsidiaries and owns no
voting stock or equity securities of, or any interest in, any corporation,
partnership, association or other entity. SCSB is subject to primary federal
regulatory supervision and examination by the Office of Thrift Supervision
("OTS").
(c) Shelby Group is an Indiana corporation duly organized and validly
existing under the laws of the State of Indiana. Shelby Group has full power
and authority (corporate and otherwise) to own and lease its properties as
presently owned and leased and to conduct its business in the manner and by the
means utilized as of the date hereof. SCSB owns all of the issued and
outstanding shares of capital stock of Shelby Group. Shelby Group has no
subsidiaries and owns no voting stock or equity securities of or any interest
in, any corporation, partnership, association or other entity.
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(d) First Tier is an Indiana corporation duly organized and validly
existing under the laws of the State of Indiana. First Tier has full power and
authority (corporate and otherwise) to own and lease its properties as
presently owned and leased and to conduct its business in the manner and by the
means utilized as of the date hereof. SCSB owns all of the issued and
outstanding shares of capital stock of First Tier. First Tier has no
subsidiaries and owns no voting stock or equity securities of or any interest
in, any corporation, partnership, association or other entity. Shelby Group
and First Tier are sometimes hereinafter referred to collectively as the
"Subsidiaries."
4.02. Authorization. (a) Each of Shelby County and SCSB has the
requisite corporate power and authority to enter into this Agreement and to
perform its obligations hereunder, subject to the fulfillment of the conditions
precedent set forth in Section 8.02 hereof. This Agreement and its execution
and delivery by Shelby County and SCSB have been duly authorized and approved
by the Board of Directors of Shelby County and SCSB, respectively. This
Agreement constitutes a valid and binding obligation of Shelby County and SCSB
and is enforceable in accordance with its terms, except to the extent limited
by general principles of equity and public policy and by bankruptcy,
insolvency, fraudulent transfer, reorganization, liquidation, moratorium,
readjustment of debt or other laws of general application relating to or
affecting the enforcement of creditors' rights.
(b) Neither the execution of this Agreement nor consummation of the
Transaction (i) conflicts with or violates Shelby County's Articles of
Incorporation or By-Laws or SCSB's Charter or By-Laws; (ii) conflicts with or
violates any local, state, federal or foreign law, statute, ordinance, rule or
regulation (provided that the approvals of or filings with applicable
government regulatory agencies or authorities required for consummation of the
Transaction are obtained) or any court or administrative judgment, order,
injunction, writ or decree; (iii) conflicts with, results in a breach of or
constitutes a default under any note, bond, indenture, mortgage, deed of trust,
license, lease, contract, agreement, arrangement, commitment or other
instrument to which Shelby County, SCSB or either of the Subsidiaries is a
party or by which SCSB, Shelby County or either of the Subsidiaries is subject
or bound and which is material to Shelby County or SCSB, whether individually
or on a consolidated basis, or Shelby Group or First Tier on a consolidated
basis with Shelby County; (iv) results in the creation of or gives any person,
corporation or entity the right to create any material lien, charge, claim,
encumbrance or security interest, or results in the creation of any other
material rights or claims of any other party or any other material adverse
interest, upon any right, property or asset of Shelby County, SCSB or either of
the Subsidiaries; or (v) terminates or gives any person, corporation or entity
the right to terminate, accelerate, amend, modify or refuse to perform under
any note, bond, indenture, mortgage, deed of trust, license, lease, contract,
agreement, arrangement, commitment or other instrument to which Shelby County,
SCSB or either of the Subsidiaries is bound or with respect to which Shelby
County, SCSB or either of the Subsidiaries is to perform any duties or
obligations or receive any rights or benefits.
(c) Other than in connection or in compliance with the provisions of
the applicable federal and state banking, thrift, securities and corporation
statutes, all as amended, and the rules and regulations promulgated thereunder,
no notice to, filing with, exemption by or consent, authorization
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or approval of any governmental agency or body is necessary for the
consummation of the Merger by Shelby County and SCSB, respectively.
4.03. Capitalization. (a) The authorized capital stock of Shelby County
consists, and at the Effective Time will consist, of (i) 5,000,000 shares of
common stock, no par value per share, 175,950 of which shares are validly
issued and outstanding, which number of issued and outstanding shares of Shelby
County Common Stock is subject to increase to a total of 189,750 shares
pursuant to the exercise of options (collectively, the "Stock Options") granted
under the Shelby County Bancorp Stock Option Plan ("Stock Option Plan") to
purchase an aggregate of 13,800 shares of Shelby County Common Stock (the
shares of common stock outstanding on the date of this Agreement and the shares
of common stock to be issued pursuant to the exercise of the Stock Options are
referred to in this Agreement as the "Shelby County Common Stock") and (ii)
2,000,000 shares of "blank check" preferred stock, none of which shares are
issued or outstanding. The shares of Shelby County Common Stock presently
issued and outstanding have been (and with respect to the shares of common
stock of Shelby County to be issued upon exercise of the Stock Options shall
be) duly and validly authorized by all necessary corporate action of Shelby
County, are (and with respect to the shares of common stock of Shelby County to
be issued upon exercise of the Stock Options shall be) validly issued, fully
paid and nonassessable and have not been (and with respect to the shares of
common stock of Shelby County to be issued upon exercise of the Stock Options
shall not be) issued in violation of any pre-emptive rights of any present or
former Shelby County shareholders. Shelby County has no capital stock
authorized, issued or outstanding other than as described in this Section
4.03(a) and has no intention or obligation to authorize or issue any other
capital stock, or any additional shares of Shelby County Common Stock, except
for 13,800 shares of Shelby County Common Stock pursuant to the exercise of the
Stock Options. As of September 30, 1997, Shelby County had total shareholders'
equity of $7,171,322, which consisted of common stock of $1,358,123, retained
earnings of $5,187,531, and unrealized appreciation on investment securities
available for sale of $625,668. A description of the terms, relative rights,
preferences and limitations of the Shelby County Common Stock is contained in
the Articles of Incorporation of Shelby County, a copy of which is set forth in
the Disclosure Schedule pursuant to Section 4.04 hereof (for purposes of this
Agreement, "Disclosure Schedule" shall mean the schedules referencing the
applicable provisions of this Section 4 which are signed by the Chairman and
the President of Shelby County and SCSB solely in their respective officer
capacities and are attached hereto and made a part of this Agreement).
(b) The authorized capital stock of SCSB consists, and at the
Effective Time will consist, of 1,000 shares of common stock, $.01 par value
per share, all of which shares are validly outstanding and issued to Shelby
County (such issued and outstanding shares of common stock are referred to in
this Agreement as the "SCSB Common Stock"). Such issued and outstanding shares
of SCSB Common Stock have been duly and validly authorized by all necessary
corporate action of SCSB, are validly issued, fully paid and non-assessable and
have not been issued in violation of any pre-emptive rights of any present or
former SCSB shareholders. All of the issued and outstanding shares of SCSB
Common Stock are owned by Shelby County free and clear of all liens, pledges,
charges, claims, encumbrances, restrictions, security interests, options and
pre-emptive rights and of all other rights or claims of any other person,
corporation or entity with respect thereto.
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SCSB has no capital stock authorized, issued or outstanding other than as
described in this Section 4.03(b) and has no intention or obligation to
authorize or issue any other capital stock or any additional shares of SCSB
Common Stock. As of September 30, 1997, SCSB had total assets of $89,544,152,
total liabilities of $83,325,632 and total capital of $6,218,520, which capital
consisted of common stock of $10, capital surplus of $1,154,295, undivided
profits of $4,438,547, and unrealized appreciation on investment securities
available for sale of $625,668.
(c) The authorized capital stock of Shelby Group consists, and at the
Effective Time will consist, of 1,000 shares of common stock, no par value per
share, 1,000 of which shares are outstanding and validly issued to SCSB (such
issued and outstanding shares of common stock are referred to in this Agreement
as the "Shelby Group Common Stock"). The shares of Shelby Group Common Stock
have been duly and validly authorized by all necessary corporate action of
Shelby Group, are validly issued, fully paid and non-assessable and have not
been issued in violation of any pre-emptive rights of any present or former
shareholders of Shelby Group. All of the shares of Shelby Group Common Stock
are owned by SCSB free and clear of all liens, pledges, charges, claims,
encumbrances, restrictions, security interests, options and pre-emptive rights
and of all other rights or claims of any other person, corporation or entity
with respect thereto. Shelby Group has no capital stock authorized, issued or
outstanding other than as described in this Section 4.03(c) and has no
intention or obligation to authorize or issue any other capital stock or any
additional shares of Shelby Group Common Stock. As of September 30, 1997,
Shelby Group had total assets of $10,001, total liabilities of $-0- and total
capital of $10,001, which capital consisted of common stock of $100,000,
capital surplus of $-0-, and undivided profits of ($89,999).
(d) The authorized capital stock of First Tier consists, and at the
Effective Time will consist, of 1,000 shares of common stock, no par value per
share, 1,000 of which shares are outstanding and validly issued to Shelby
County (such issued and outstanding shares of common stock are referred to in
this Agreement as the "First Tier Common Stock"). The shares of First Tier
Common Stock have been duly and validly authorized by all necessary corporate
action of First Tier, are validly issued, fully paid and non-assessable and
have not been issued in violation of any pre-emptive rights of any present or
former shareholders of First Tier. All of the shares of First Tier Common
Stock are owned by Shelby County free and clear of all liens, pledges, charges,
claims, encumbrances, restrictions, security interests, options and pre-emptive
rights and of all other rights or claims of any other person, corporation or
entity with respect thereto. First Tier has no capital stock authorized,
issued or outstanding other than as described in this Section 4.03(d) and has
no intention or obligation to authorize or issue any other capital stock or any
additional shares of First Tier Common Stock. As of September 30, 1997, First
Tier had total assets of $63,384, total liabilities of $35 and total capital of
$63,349, which capital consisted of common stock of $15,000, capital surplus of
$-0-, and undivided profits of $48,349.
(e) Except for options to purchase 13,800 shares of Shelby County
Common Stock under the Stock Option Plan, there are no options, warrants,
commitments, calls, puts, agreements, understandings, arrangements or
subscription rights relating to any capital stock, or any securities
convertible into or representing the right to purchase or otherwise acquire any
capital stock or debt securities of Shelby County by which Shelby County is or
may become bound. Shelby County does
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not have any contractual or other obligation to repurchase, redeem or
otherwise acquire any of its issued and outstanding shares of Shelby County
Common Stock. Set forth in the Disclosure Schedule is a true, accurate and
complete (i) copy of an incentive stock option agreement and a non-qualified
stock option agreement that are identical in all material respects to the
presently outstanding stock option agreements (except as to the number of
shares subject to the option, the purchase price per share and the duration of
the option), (ii) copy of the Stock Option Plan and (iii) a list of all
optionees, including the number of shares subject to each Stock Option.
(f) There are no options, warrants, commitments, calls, puts, agreements,
understandings, arrangements or subscription rights relating to the capital
stock, or any securities convertible into or representing the right to purchase
or otherwise acquire the capital stock or any debt securities, of the
Subsidiaries by which either of the Subsidiaries are or may become bound. The
Subsidiaries do not have any contractual or other obligation to repurchase,
redeem or otherwise acquire any of their respective outstanding shares of
capital stock.
(g) Except as set forth in the Disclosure Schedule, Shelby County has no
knowledge of any person who beneficially owns 5% or more of the issued and
outstanding shares of Shelby County Common Stock.
4.04. Organizational Documents. The Articles of Incorporation and By-Laws
of Shelby County, Shelby Group and First Tier and the Charter and By-Laws of
SCSB, representing true, accurate and complete copies of such corporate
documents of Shelby County, SCSB, Shelby Group and First Tier, respectively, in
effect as of the date of this Agreement, have been delivered to Blue River and
are included in the Disclosure Schedule.
4.05. Compliance with Law. (a) Neither Shelby County, SCSB nor either of
the Subsidiaries has engaged in any activity or has taken or omitted to take
any action which has resulted in the violation of any local, state, federal or
foreign law, statute, regulation, rule, ordinance, order, restriction or
requirement nor is it in violation of any order, injunction, judgment, writ or
decree of any court or government agency or body, the violation of which could
have a material adverse effect on the financial condition, results of
operations, business, assets or capital of Shelby County and SCSB, whether
individually or on a consolidated basis, or Shelby Group or First Tier on a
consolidated basis with Shelby County. Shelby County, SCSB and each of the
Subsidiaries possess and hold all licenses, franchises, permits, certificates
and other authorizations necessary for the continued conduct of their
respective businesses without interference or interruption, and such licenses,
franchises, permits, certificates and authorizations held by Shelby County are
transferable to the Surviving Corporation at the Effective Time without any
restrictions or limitations thereon or the need to obtain any consents of
government agencies or other third parties other than as set forth in this
Agreement.
(b) All agreements, understandings and commitments with, and all
orders and directives of, all government regulatory agencies or authorities
with respect to the financial condition, results of operations, business,
assets or capital of Shelby County, SCSB or either of the Subsidiaries which
presently are binding upon or require action by, or at any time during the last
five (5) years have
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been binding upon or have required action by, Shelby County, SCSB or either of
the Subsidiaries, including, without limitation, all correspondence,
communications and commitments related thereto, are set forth in the Disclosure
Schedule. There are no uncured violations, or violations with respect to which
refunds or restitutions may be required, cited in any examination report
provided to Shelby County, SCSB or either of the Subsidiaries as a result of an
examination by any regulatory agency or body or set forth in any accountant's,
auditor's or other report to Shelby County, SCSB or either of the Subsidiaries.
(c) All of the existing offices and branches of SCSB have been legally
authorized and established in accordance with all applicable federal, state and
local laws, statutes, rules, regulations, ordinances, orders, restrictions and
requirements. SCSB does not have any approved but unopened offices or
branches.
(d) Shelby County and SCSB and their respective properties (including
those held by either of them in a fiduciary capacity) are in compliance in all
material respects with all applicable provisions of the Americans With
Disabilities Act ("ADA"), and no action under the ADA against Shelby County,
SCSB or any of their respective properties has been initiated or, to Shelby
County's and SCSB's best knowledge, threatened. Neither Shelby County nor SCSB
are required to comply with the Family and Medical Leave Act.
4.06. Accuracy of Statements Made and Materials Provided to Blue River.
(a) No representation, warranty or other statement made, or any information
provided, by Shelby County, SCSB or either of the Subsidiaries in this
Agreement or in the Disclosure Schedule (and any update thereto) and no written
report, statement, list, materials or other written information which has
previously been or which shall be provided subsequent to the date hereof by
Shelby County, SCSB or either of the Subsidiaries or any of their attorneys,
accountants or agents to Blue River or any of its attorneys, accountants or
agents in connection with this Agreement, the Transaction, Blue River's due
diligence investigation or confidential review of Shelby County, SCSB and the
Subsidiaries or otherwise, including, without limitation, any written
information with respect to Shelby County's, SCSB's and the Subsidiaries'
business, capital, assets, financial condition, results of operations, and
directors and officers for inclusion in the Registration Statement (as defined
in Section 7.02 hereof), the Prospectus (as defined in Section 7.02 hereof) and
the Proxy Statement (as defined in Section 6.01 hereof), contains or shall
contain (with respect to information relating to the Registration Statement at
the time it is declared effective, with respect to information relating to the
Prospectus at the time it is first delivered to prospective investors and with
respect to information relating to the Proxy Statement at the time it is mailed
to Shelby County shareholders) any untrue or misleading statement of material
fact or omits or shall omit to state a material fact necessary to make the
statements contained herein or therein, in light of the circumstances in which
they are made, not false or misleading.
(b) All materials or information provided by Shelby County, SCSB or
either of the Subsidiaries to Blue River for use by Blue River in any filing
with any state or federal bank or thrift regulatory agency or authority shall
not, at the time such filings are made, contain any untrue or misleading
statement of material fact or shall omit to state a material fact necessary to
make the
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statements contained therein, in light of the circumstances in which they are
made, not false or misleading.
4.07. Litigation and Pending Proceedings. (a) Except as set forth in the
Disclosure Schedule, there are no claims, actions, suits, proceedings,
arbitrations, mediations or investigations pending or, to the best knowledge of
Shelby County, SCSB and the Subsidiaries after due inquiry, threatened in any
court or before any government agency or authority, arbitration panel, mediator
or otherwise (nor does Shelby County, SCSB or either of the Subsidiaries have
any knowledge of a basis for any claim, action, suit, proceeding, litigation,
arbitration, mediation or investigation) against, by or affecting Shelby
County, SCSB or either of the Subsidiaries which could have a material adverse
effect on the financial condition, results of operations, business, assets or
capital of Shelby County or SCSB, whether individually or on a consolidated
basis, or Shelby Group or First Tier on a consolidated basis with Shelby
County, or which would prevent the performance of this Agreement, declare the
same unlawful or cause the rescission hereof.
(b) Neither Shelby County, SCSB nor either of the Subsidiaries is (i)
subject to any outstanding judgment, order, writ, injunction or decree of any
court, arbitration panel or governmental agency or authority, (ii) presently
charged with or under governmental investigation with respect to any actual or
alleged violations of any law, statute, rule, regulation or ordinance, or (iii)
the subject of any pending or, to the best knowledge of Shelby County, SCSB and
the Subsidiaries, threatened proceeding by any government regulatory agency or
authority having jurisdiction over their respective businesses, properties or
operations.
4.08. Financial Statements and Reports. Shelby County previously has
delivered to Blue River copies of the following financial statements and
reports, including the notes thereto, of Shelby County, SCSB and the
Subsidiaries (collectively, the "Shelby County Financial Statements"):
(a) Consolidated statements of financial condition as of September 30,
1996 and 1997 and the related statements of earnings and statements of changes
in shareholders' equity of Shelby County as of and for the fiscal years ended
September 30, 1995, 1996 and 1997; and
(b) Consolidated statements of cash flows of Shelby County for the fiscal
years ended September 30, 1995, 1996 and 1997.
The Shelby County Financial Statements are true, accurate and complete
in all material respects and present fairly the consolidated financial
positions of Shelby County, SCSB and the Subsidiaries as of and at the dates
shown and the consolidated results of operations for the periods covered
thereby. The Shelby County Financial Statements described in clauses (a) and
(b) above have been audited by KPMG Peat Marwick and have been prepared in
conformance with generally accepted accounting principles applied on a
consistent basis. The Shelby County Financial Statements do not include any
assets, liabilities or obligations or omit to state any assets, liabilities or
obligations, absolute or contingent, or any other facts, which inclusion or
omission would render any of the Shelby County Financial Statements false,
misleading or inaccurate in any material respect as of the respective dates
thereof.
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4.09. Properties, Contracts, Employees and Other Agreements. (a) Set
forth in the Disclosure Schedule is a true, accurate and complete copy and,
when applicable, a list or description of the following:
(i) A brief description and the location of all real property
owned by Shelby County, SCSB and each of the Subsidiaries
and the principal buildings and structures located thereon,
together with a legal description of such real property,
and each lease of real property to which Shelby County,
SCSB or either of the Subsidiaries is a party (excluding
any exhibits thereto which are not material), identifying
the parties thereto, the annual rental payable, the
expiration date of the lease and a brief description of
the property covered;
(ii) All loan or credit agreements and promissory notes
relating to money borrowed by Shelby County, SCSB and the
Subsidiaries, all land, conditional sales or installment
sales contracts or other title retention agreements and all
agreements for the purchase of federal funds to which Shelby
County, SCSB or either of the Subsidiaries is a party;
(iii) All agreements, contracts, leases, licenses, lines of
credit, understandings, commitments or obligations of
Shelby County, SCSB or either of the Subsidiaries which
individually or in the aggregate:
(A) involve payment or receipt by Shelby County, SCSB or
either of the Subsidiaries (other than as disbursements
of loan proceeds to customers or loan payments by
customers) of more than $10,000 during any twelve (12)
month period;
(B) involve payments based on profits of Shelby County,
SCSB or either of the Subsidiaries;
(C) relate to the purchase of goods, products, supplies
or services in excess of $5,000;
(D) were not made in the ordinary course of business; or
(E) may not be terminated without penalty within one (1)
year from the date of this Agreement; and
(iv) The name and current annual salary of each director, officer
and employee of Shelby County, SCSB or either of the
Subsidiaries whose current annual salary and bonus or
incentive compensation from Shelby County, SCSB or either
of the Subsidiaries is in excess of $25,000, and the
profit sharing and other form of compensation (other than
salary) paid or payable by Shelby
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County, SCSB or either of the Subsidiaries to or for the
benefit of each such person for the fiscal years ended
September 30, 1996 and 1997.
(b) SCSB has, prior to the date of this Agreement, provided or given
access to Blue River to the files and documentation of all of its borrowers, or
persons or entities that are or may become obligated to SCSB under a letter of
credit, line of credit, loan transaction, loan agreement, promissory note or
other commitment of SCSB, in excess of $10,000 individually or in the
aggregate, whether in principal, interest or otherwise, and including all
guarantors of such indebtedness.
(c) To the best knowledge of Shelby County, SCSB and the Subsidiaries,
each of the agreements, contracts, commitments, leases, instruments and
documents set forth in the Disclosure Schedule relating to this Section 4.09 is
valid and enforceable in accordance with its terms. Shelby County, SCSB and
the Subsidiaries are and, to their best knowledge, all other parties thereto
are in compliance with the provisions thereof, and Shelby County, SCSB and the
Subsidiaries are not and, to their best knowledge, no other party thereto is in
default in the performance, observance or fulfillment of any material
obligation, covenant or provision contained therein. None of the foregoing
requires the consent of any party to its assignment in connection with the
Transaction.
4.10. Absence of Undisclosed Liabilities. Except as provided in the
Shelby County Financial Statements, except for accounts payable incurred and
unfunded loan commitments made to customers in the ordinary course of business,
except for additional borrowings from the Federal Home Loan Bank of
Indianapolis not to exceed $22.5 Million incurred in the ordinary course of
business between the date hereof and the Effective Time, neither Shelby County,
SCSB nor either of the Subsidiaries has any obligation, agreement, contract,
commitment, liability, lease or license which exceeds $5,000 individually or in
the aggregate, or any obligation, agreement, contract, commitment, liability,
lease or license made outside of the ordinary course of business.
4.11. Title to and Condition of Assets. (a) Shelby County, SCSB or
either of the Subsidiaries, as the case may be, has good and marketable title
in fee simple absolute to all real property (including, without limitation, all
real property used as bank premises and all other real estate owned) which is
reflected in the Shelby County Financial Statements as of September 30, 1997;
good and marketable title to all personal property reflected in the Shelby
County Financial Statements as of September 30, 1997, other than personal
property disposed of in the ordinary course of business since September 30,
1997; good and marketable title to or right to use by valid and enforceable
lease or contract all other properties and assets (whether real or personal,
tangible or intangible) which Shelby County, SCSB or either of the Subsidiaries
purports to own or which Shelby County, SCSB or either of the Subsidiaries uses
in their respective businesses; and good and marketable title to, or right to
use by the terms of a valid and enforceable lease or commitment all other
property and assets acquired and not disposed of or leased, as the case may be,
since September 30, 1997. All of such properties and assets owned by Shelby
County, SCSB and the Subsidiaries are owned free and clear of all land or
conditional sales contracts, mortgages, encumbrances, liens, pledges,
restrictions, security interests, charges, claims or rights of third parties of
any nature except (i) as set forth in the Disclosure Schedule; (ii) as
specifically noted in
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reasonable detail in the Shelby County Financial Statements; (iii) statutory
liens for taxes not yet delinquent or being contested in good faith by
appropriate proceedings; (iv) pledges or liens required to be granted in
connection with the acceptance of government deposits or granted in connection
with repurchase or reverse repurchase agreements; and (v) easements,
encumbrances and liens of record, minor imperfections of title, building or use
restrictions, variations and other limitations which are not substantial in
amounts, do not materially detract from the value or materially interfere with
the present or contemplated use of any of the properties subject thereto or
otherwise materially impair the use thereof for the purposes for which they are
held or used. All real property owned or leased by Shelby County, SCSB and the
Subsidiaries is in material compliance with all applicable zoning and land use
laws.
(b) To the best of their respective knowledge, Shelby County, SCSB and
each of the Subsidiaries have conducted their respective businesses in
compliance with all federal, state, county and municipal laws, statutes,
regulations, rules, ordinances, orders, directives, restrictions and
requirements relating to, without limitation, responsible property transfer,
underground storage tanks, petroleum products, air pollutants, water pollutants,
storm water or process waste water or otherwise relating to the environment or
toxic or hazardous substances or to the manufacturing, recycling, handling,
processing, distribution, use, generation, treatment, storage, disposal or
transport of any hazardous or toxic substances or petroleum products (including
polychlorinated biphenyls, whether contained or uncontained, and
asbestos-containing materials, whether friable or not), including, without
limitation, the Federal Solid Waste Disposal Act, the Hazardous and Solid Waste
Amendments, the Federal Clean Air Act, the Federal Clean Water Act, the
Occupational Health and Safety Act, the Federal Resource Conservation and
Recovery Act, the Toxic Substances Control Act, the Federal Comprehensive
Environmental Response, Compensation and Liability Act of 1980 and the Superfund
Amendments and Reauthorization Act of 1986, all as amended, and all regulations
of the Environmental Protection Agency, the Nuclear Regulatory Agency, the Army
Corp of Engineers, the Department of Interior, the United States Fish and
Wildlife Service and any state department of natural resources or state
environmental protection agency now or at any time hereafter in effect
(collectively, "Environmental Laws"). There are no pending or, to the best
knowledge of Shelby County, SCSB and the Subsidiaries threatened claims, actions
or proceedings by any local municipality, sewage district or other federal,
state or local governmental agency or authority or any other party against
Shelby County, SCSB or either of the Subsidiaries with respect to any of the
Environmental Laws and, except as set forth in the Disclosure Schedule, to the
best of Shelby County's, SCSB's and the Subsidiaries' knowledge, there is no
basis or grounds for any such claim, action or proceeding. Except as set forth
in the Disclosure Schedule, to the best of Shelby County's, SCSB's and the
Subsidiaries' knowledge, no environmental clearances or other governmental
environmental approvals are required for the conduct of Shelby County's, SCSB's
or either of the Subsidiaries' business or consummation of the Transaction.
Except as set forth in the Disclosure Schedule, to the best of Shelby County's,
SCSB's and the Subsidiaries' knowledge, neither Shelby County, SCSB nor either
of the Subsidiaries is the owner, and has not been in the chain of title or the
operator or lessee, of any property on which any substances have been used,
stored, deposited, treated, recycled or disposed of, which substances if known
to be present on, at or under such property would require clean-up, removal or
any other remedial action under any of the Environmental Laws.
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(c) Neither Shelby County, SCSB nor either of the Subsidiaries (i) is in
default in any respect under any agreements pursuant to which it leases real or
personal property, (ii) has knowledge of any default under such agreements by
any party thereto and (iii) has knowledge of any event which, with notice or
lapse of time or both, would constitute a default or a breach thereof.
4.12. Loans and Investments. (a) Except as set forth in the Disclosure
Schedule, SCSB has no loan in excess of $5,000 that has been classified by
regulatory examiners or management of SCSB as "Substandard," "Doubtful" or
"Loss" or in excess of $5,000 that has been identified by accountants or
auditors (internal or external) as having a significant risk of
uncollectability. The most recent loan watch list of SCSB and a list of all
loans in excess of $5,000 that SCSB has determined to be ninety (90) days or
more past due with respect to principal or interest payments or has placed on
nonaccrual status are set forth in the Disclosure Schedule.
(b) All loans reflected in the Shelby County Financial Statements as of
September 30, 1997 and which have been made, extended, renewed, restructured,
approved, amended or acquired since September 30, 1997 (i) have been made for
good, valuable and adequate consideration in the ordinary course of business;
(ii) to the best of SCSB's knowledge, constitute the legal, valid and binding
obligation of the obligor and any guarantor named therein, except to the extent
limited by general principles of equity and public policy or by bankruptcy,
insolvency, fraudulent transfer, reorganization, liquidation, moratorium,
readjustment of debt or other laws of general application relative to or
affecting the enforcement of creditors' rights; (iii) are evidenced by notes,
instruments or other evidences of indebtedness which are true, genuine and what
they purport to be; and (iv) are secured, to the extent that SCSB has a
security interest in collateral or a mortgage securing such loans, by perfected
security interests or recorded mortgages naming SCSB as the secured party or
mortgagee.
(c) The reserves, the allowance for possible loan and lease losses and
the carrying value for real estate owned which are shown on the Shelby County
Financial Statements are adequate in all respects under the requirements of
generally accepted accounting principles applied on a consistent basis to
provide for possible losses on items for which reserves were made, on loans and
leases outstanding and real estate owned as of the respective dates. To the
best knowledge of SCSB, the aggregate loan balances outstanding as of September
30, 1997, in excess of the reserve for loan losses as of such date, are
collectible in accordance with their respective terms.
(d) Shelby County and SCSB have complied in all material respects with
all laws, statutes, rules, regulations and other legal requirements relating to
its loans such that any failure to so comply will not interfere with the
collection of any loan or provide to any borrower any right, claim or action
against Shelby County or SCSB. Except as set forth in the Disclosure Schedule,
to the best of Shelby County's and SCSB's knowledge, no property in which SCSB
has an interest as collateral to secure a loan or that is held as an asset of
any trust violates any of the Environmental Laws or obligates Shelby County or
SCSB, or the owner or operator of such property, to remediate, treat or
otherwise alter the environmental condition of such property.
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(e) None of the investments reflected in the Shelby County Financial
Statements as of and for the year ended September 30, 1997 and none of the
investments made by Shelby County, SCSB or either of the Subsidiaries since
September 30, 1997 are subject to any restriction, whether contractual or
statutory, which materially impairs the ability of Shelby County, SCSB or
either of the Subsidiaries to dispose freely of such investment at any time.
Neither Shelby County, SCSB nor either of the Subsidiaries is a party to any
repurchase agreements with respect to securities. All investment securities
and other investments of SCSB are carried on its books in accordance with
generally accepted accounting principals applied on a consistent basis.
(f) Set forth in the Disclosure Schedule is a true, accurate and complete
list of all loans in which SCSB has any participation interest or which have
been made with or through another financial institution on a recourse basis
against SCSB.
(g) The aggregate amount of SCSB's indebtedness to the Federal Home Loan
Bank of Indianapolis does not exceed $22.5 Million.
4.13. Anti-takeover Provisions. Neither Shelby County, SCSB nor either of
the Subsidiaries has a shareholder rights plan or any other plan, program,
agreement or arrangement involving, restricting, prohibiting or discouraging a
change in control, merger or other combination of Shelby County, SCSB or either
of the Subsidiaries or which may be considered an anti-takeover mechanism,
except for (i) the Rights Plan Agreement, dated April 17, 1995 ("Rights
Agreement"), between Shelby County and Bank One, Indianapolis, NA, as Rights
Agent, (ii) the provisions in the Articles of Incorporation and By-Laws of
Shelby County, (iii) the Stock Option Plan, (iv) the Employment Agreements (as
hereinafter defined), and (v) the employment agreement between Xxxxxx X.
Xxxxxxxxxx and SCSB dated October 17, 1991 ("Xxxxxxxxxx Agreement").
4.14. Employee Benefit Plans. (a) With respect to the employee benefit
plans, as defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), whether written or oral, sponsored or otherwise
maintained by Shelby County or SCSB; in which Shelby County, SCSB or either of
the Subsidiaries participates as a participating employer; to which Shelby
County, SCSB or either of the Subsidiaries contributes; with respect to which
Shelby County, SCSB or either of the Subsidiaries acts as administrator, trustee
or fiduciary, whether written or oral; and including any such plans which have
been terminated, merged into another plan, frozen or discontinued (collectively,
the "Shelby County Plans"): (i) all such Shelby County Plans have, on a
continuous basis since their adoption, been maintained in compliance in all
materials respects with the requirements prescribed by all applicable statutes,
orders and governmental rules or regulations, including, without limitation,
ERISA, the Code, and the Department of Labor ("Department") and the Treasury
Regulations promulgated thereunder; (ii) all Shelby County Plans intended to
constitute tax-qualified plans under the Code have complied, in form and in
operation, since their adoption, or, with respect to form, have been timely
amended to comply, in all material respects, with all applicable requirements of
the Code and the Treasury Regulations promulgated thereunder, and favorable
determination letters with respect to the Tax Reform Act of 1986 have been
timely received from the Internal Revenue Service ("Service") with respect to
each such Shelby County Plan stating that each, in its current form (or at the
time of its disposition if it has been
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terminated, merged or discontinued), is qualified under and satisfies all
applicable provisions of the Code and Treasury Regulations; (iii) no Shelby
County Plan (or its related trust) holds any Shelby County Common Stock or any
stock of a related or affiliated person or entity, except as provided in the
Disclosure Schedule; (iv) neither Shelby County, SCSB nor either of the
Subsidiaries has liability to the Department or the Service with respect to any
Shelby County Plan; (v) neither Shelby County, SCSB nor either of the
Subsidiaries has engaged in any transaction that may subject Shelby County,
SCSB, either of the Subsidiaries or any Shelby County Plan to a civil penalty
imposed by Section 502 of ERISA; (vi) no prohibited transaction (as defined in
Section 406 of ERISA and as defined in Section 4975(c) of the Code) has occurred
with respect to any Shelby County Plan; (vii) each Shelby County Plan subject to
ERISA or intended to be qualified under Section 401(a) of the Code has been and,
if applicable, is being operated in accordance with the applicable provisions of
ERISA and the Code and the Department and Treasury Regulations promulgated
thereunder; (viii) to the best of Shelby County's, SCSB's and the Subsidiaries'
knowledge, no participant or beneficiary or non-participating employee has been
denied any benefit due or to become due under any Shelby County Plan or has been
misled as to his or her rights under any Shelby County Plan; (ix) all
obligations required to be performed by Shelby County, SCSB or either of the
Subsidiaries under any provision of a Shelby County Plan have been performed by
it and it is not in default under or in violation of any provision of a Shelby
County Plan; (x) no event has occurred which would constitute grounds for an
enforcement action by any party under Part 5 of Title I of ERISA under any
Shelby County Plan; (xi) there are no actions, suits, proceedings or claims
pending (other than routine claims for benefits) or, to the best knowledge of
Shelby County, SCSB and the Subsidiaries, threatened against Shelby County,
SCSB, either of the Subsidiaries, any Shelby County Plan or the assets of any
Shelby County Plan; and (xii) with respect to any Shelby County Plan sponsored,
participated in or contributed to by Shelby County, SCSB or either of the
Subsidiaries or with respect to which Shelby County, SCSB or either of the
Subsidiaries is responsible for complying with the reporting and disclosure
requirements of ERISA or the Code, there has been no violation of the reporting
and disclosure requirements imposed either under ERISA or the Code for which a
penalty has been or may be imposed.
(b) With regard to any Shelby County Plan intended to be a tax-qualified
plan under Section 401(a) of the Code, to the best knowledge of Shelby County,
SCSB and the Subsidiaries, no director, officer, employee or agent of Shelby
County, SCSB or either of the Subsidiaries has engaged in any action or failed
to act in such a manner that, as a result of such action or failure to act,
the Service could revoke or deny that plan's qualification under the Code
or the exemption under Section 501(a) of the Code for any trust or annuity
contract related to such Plan.
(c) Shelby County, SCSB and the Subsidiaries have provided to Blue
River in the Disclosure Schedule true, accurate and complete copies and, in the
case of any plan or program which has not been reduced to writing, a complete
summary, of all of the following: (i) pension, retirement, profit-sharing,
savings, stock purchase, stock bonus, stock ownership, stock option and stock
appreciation or depreciation right plans and agreements and all amendments
thereto (except that, with respect to the stock option agreements between Shelby
County and certain employees and directors of Shelby County, SCSB and the
Subsidiaries with respect to the Stock Options, only a true, accurate and
complete copy of an incentive stock option agreement and a non-qualified stock
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option agreement that are identical in all material respects to the remaining
outstanding stock option agreements have been included in the Disclosure
Schedule); (ii) all employment, deferred compensation (whether funded or
unfunded), salary continuation, consulting, bonus, severance and collective
bargaining agreements, arrangements or understandings; (iii) all executive and
other incentive compensation plans and programs; (iv) all group insurance and
health contracts, policies or plans; and (v) all other incentive, welfare or
employee benefit plans, understandings, arrangements or agreements, maintained
or sponsored, participated in, or contributed to by Shelby County, SCSB or
either of the Subsidiaries for their current or former directors, officers or
employees. All of the foregoing have been, since their inception, drafted,
implemented, administered and, where applicable, amended or terminated in
accordance with their terms and with applicable law.
(d) No current or former director, officer or employee of Shelby County,
SCSB or either of the Subsidiaries is entitled to any benefit under any welfare
benefit plans (as defined in Section 3(1) of ERISA) after termination of
employment with Shelby County, SCSB or either of the Subsidiaries, except that
such individuals may be entitled to continue their group health care coverage
pursuant to Section 4980B of the Code if they pay the cost of such coverage
pursuant to the applicable requirements of the Code with respect thereto.
(e) With respect to any group health plan (as defined in Section
607(1) of ERISA) sponsored or maintained by Shelby County, SCSB or either of the
Subsidiaries, in which Shelby County, SCSB or either of the Subsidiaries
participates as a participating employer or to which Shelby County, SCSB or
either of the Subsidiaries contributes, to the best knowledge of Shelby County,
SCSB and the Subsidiaries, no director, officer, employee or agent of Shelby
County, SCSB or either of the Subsidiaries has engaged in any action or failed
to act in such a manner that, as a result of such action or failure to act,
would cause a tax to be imposed upon Shelby County, SCSB or either of the
Subsidiaries under Section 4980B(a) of the Code. With respect to all such
plans, all applicable provisions of Section 4980B of the Code and Section 601 of
ERISA have been complied with in all material respects by Shelby County, SCSB
and the Subsidiaries.
(f) Except as otherwise provided in the Disclosure Schedule, there are no
collective bargaining, employment, management, consulting, deferred
compensation, reimbursement, indemnity, retirement, early retirement, severance
or similar plans or agreements, commitments or understandings, or any employee
welfare, benefit or retirement plan or agreement, binding upon Shelby County,
SCSB or either of the Subsidiaries and no such agreement, commitment,
understanding or plan is under discussion or negotiation by management with any
employee or group of employees, any member of management or any other person.
4.15. Obligations to Employees. Except as otherwise provided in the
Disclosure Schedule, all accrued obligations and liabilities of Shelby County,
SCSB, the Subsidiaries and the Shelby County Plans, whether arising by operation
of law, by contract or by past custom, for payments to trusts or other funds, to
any government agency or authority or to any present or former director,
officer, employee or agent of Shelby County, SCSB or either of the Subsidiaries
(or his heirs, legatees or legal representatives) have been and are being paid
to the extent required by applicable
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law or by the plan, trust, contract or past custom or practice, and adequate
accruals and reserves for such payments have been and are being made by
Shelby County, SCSB and the Subsidiaries in accordance with generally accepted
accounting principles and applicable law applied on a consistent basis and
actuarial methods with respect to the following: (a) withholding taxes,
unemployment compensation or social security benefits; (b) all pension,
profit-sharing, savings, stock purchase, stock bonus, stock ownership, stock
option and stock appreciation rights plans and agreements; (c) all employment,
deferred compensation (whether funded or unfunded), salary continuation,
consulting, retirement, early retirement, severance, reimbursement or bonus
plans or agreements; (d) all executive and other incentive compensation plans,
programs or agreements; (e) all group insurance and health contracts and
policies; and (f) all other incentive, welfare, retirement or employee benefit
plans or agreements maintained, sponsored, participated in, or contributed to by
Shelby County, SCSB or either of the Subsidiaries for their current or former
directors, officers, employees and agents, including, without limitation, all
liabilities and obligations to the Shelby County Plans. All obligations and
liabilities of Shelby County, SCSB and the Subsidiaries, whether arising by
operation of law, by contract or by past custom or practice, for all other forms
of compensation which are or may be payable to their current or former
directors, officers, employees or agents have been and are being paid to the
extent required by applicable law or by the plan or contract, and adequate
accruals and reserves for payment therefor have been and are being made by
Shelby County, SCSB and the Subsidiaries in accordance with generally accepted
accounting and principles applied on a consistent basis. Except as otherwise
provided in the Disclosure Schedule, all accruals and reserves referred to in
this Section 4.15 are correctly and accurately reflected and accounted for in
all material respects in the Shelby County Financial Statements and the books,
statements and records of Shelby County, SCSB and the Subsidiaries.
SCSB is not and has not engaged in any unfair labor practice within the
meaning of the National Labor Relations Act, as amended, and there is no
proceeding or investigation pending or threatened against it with respect
thereto. There are no, and during the last five (5) years have not been any,
formal, informal or internal charges or complaints of, or any proceedings or
lawsuits pending or threatened involving, discrimination or harassment, nor is
there any investigation pending or threatened before the Equal Employment
Opportunity Commission or any other federal, state or local agency or authority
involving SCSB or any of its present or former directors, employees or agents.
Except to set forth in the Disclosure Schedule, neither the execution
and delivery of this Agreement nor the consummation of any of the transactions
contemplated hereby, will (a) result in any payment (including, without
limitation, severance, unemployment compensation or golden parachute payment)
becoming due to any director or employee of Shelby County or SCSB from either of
such entities; (b) increase any benefit otherwise payable under any of the
Shelby County Plans or any other plan of program relating to directors or
employees of Shelby County or SCSB; or (c) result in the acceleration in the
time of payment of any benefit or amount owed to any present or former director
or employee of Shelby County or SCSB.
4.16. Taxes, Returns and Reports. Shelby County, SCSB and the
Subsidiaries have (a) duly filed all federal, state, local and foreign tax
returns of every type and kind required to be
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filed, and each such return is true, accurate and complete in all material
respects; (b) paid all taxes, assessments and other governmental charges due or
claimed to be due upon each of them or any of their income, properties or
assets; and (c) not requested an extension of time for any such payments (which
extension is still in force). Except for taxes not yet due and payable, the
reserve for taxes in the Shelby County Financial Statements as of September 30,
1997 is adequate to cover all of Shelby County's, SCSB's and the Subsidiaries'
tax liabilities (including, without limitation, income taxes and franchise fees)
that may become payable in future periods with respect to any transactions
consummated prior to September 30, 1997. Neither Shelby County, SCSB nor either
of the Subsidiaries has, or will have, any liability for taxes of any nature for
or with respect to the operation of their respective businesses, including the
business of any subsidiary, or ownership of their assets, including the assets
of any subsidiary, from the date hereof up to and including the Effective Time,
except to the extent set forth in the Subsequent Shelby County Financial
Statements (as hereinafter defined). Neither Shelby County, SCSB nor either of
the Subsidiaries is currently under audit by any state or federal taxing
authority. No federal, state or local tax returns of Shelby County, SCSB or
either of the Subsidiaries have been audited by any taxing authority during the
past five (5) years.
4.17. Deposit Insurance. The deposits of SCSB are insured by the Federal
Deposit Insurance Corporation in accordance with the Federal Deposit Insurance
Corporation Act, as amended, and SCSB has paid or properly reserved or accrued
for all current premiums and assessments with respect to such deposit
insurance.
4.18. Insurance. Set forth in the Disclosure Schedule is a list and brief
description of all policies of insurance (including, without limitation,
blanket bond, directors' and officers' liability insurance, property and
casualty insurance, group health or hospitalization insurance and insurance
providing benefits for employees) owned or held by Shelby County, SCSB or
either of the Subsidiaries on the date hereof or with respect to which Shelby
County, SCSB or either of the Subsidiaries pays any premiums. Each such policy
is in full force and effect, all premiums due thereon have been paid when due,
and a true, accurate and complete copy thereof has been made available to Blue
River prior to the date hereof.
4.19. Books and Records. The books and records of Shelby County, SCSB and
the Subsidiaries are in all material respects complete and correct and
accurately reflect the basis for the respective financial condition, results of
operations, business, assets and capital of Shelby County, SCSB and the
Subsidiaries set forth in the Shelby County Financial Statements.
4.20. Broker's, Finder's or Other Fees. Except for the reasonable fees
of Shelby County's attorneys, accountants and investment bankers and the
printing and mailing costs relating to the proxy statement pertaining to the
Merger, all of which will be paid by Shelby County prior to the Effective Time,
no agent, broker or other person acting on behalf of Shelby County, SCSB or
either of the Subsidiaries or acting under any authority of Shelby County, SCSB
or either of the Subsidiaries is or shall be entitled to any commission,
broker's or finder's fee or any other form of compensation or payment from any
of the parties hereto relating to this Agreement or the Transaction. A true,
accurate and complete copy of Shelby County's agreements with its attorneys,
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accountants, investment banker or other advisors relative to their
respective fees in connection with the Transaction is set forth in the
Disclosure Schedule.
4.21. Interim Events. Except as otherwise permitted hereunder, since
September 30, 1997, neither Shelby County, SCSB nor either of the Subsidiaries
has:
(a) Suffered any changes having a material adverse effect on its
financial condition, results of operations, assets, capital or business;
(b) Suffered any material damage, destruction or loss to any of its
properties not fully-covered by insurance;
(c) Declared, distributed or paid any dividend or other distribution to
its shareholders, except for payment of dividends as permitted by Section
6.03(a)(iii) hereof and except for 13,800 shares of Shelby County Common Stock
issued pursuant to the exercise of the Stock Options;
(d) Repurchased, redeemed or otherwise acquired shares of its capital
stock, issued any shares of its capital stock or stock appreciation rights or
sold or agreed to issue or sell (except for 13,800 shares of Shelby County
Common Stock issued pursuant to the exercise of the Stock Options) any shares
of its capital stock or any right or option to purchase or acquire any such
stock or any security convertible into such stock or taken any action to
reclassify, recapitalize or split up its stock;
(e) Granted or agreed to grant any increase in benefits payable or to
become payable under any pension, retirement, profit-sharing, savings, bonus,
deferred compensation, stock or option plan or agreement; any employee welfare
or benefit plan or arrangement; or any other agreement, commitment or
understanding, to present or former employees, officers or directors of Shelby
County, SCSB or either of the Subsidiaries;
(f) Increased the salary, compensation or fees of any director,
officer or employee, except for normal increases in the ordinary course of
business and in accordance with past practices, entered into any employment
contract, indemnity agreement or any other agreement or understanding with any
officer or employee or installed any employee benefit plan;
(g) Leased, sold or otherwise disposed of any of its assets except in the
ordinary course of business or leased, purchased or otherwise acquired from
third parties any assets except in the ordinary course of business;
(h) Merged, consolidated or sold shares of capital stock of SCSB;
except for the Merger, agreed or committed to merge, consolidate, combine or
affiliate with or into any third party; agreed or committed to sell the
substantial assets or any shares of capital stock of Shelby County, SCSB or
either of the Subsidiaries; or except pursuant to foreclosure actions and
mortgages, liens or security interests securing loans, acquired or agreed to
acquire any securities, equity interest, assets or business of any third party;
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(i) Incurred, assumed or guaranteed any obligation or liability (fixed or
contingent) (including borrowings in the ordinary course of business from the
Federal Home Loan Bank of Indianapolis not exceeding $22.5 Million) other than
obligations and liabilities incurred in the ordinary course of business;
(j) Mortgaged, pledged or subjected to a lien, security interest, option
or other encumbrance any of its assets, except for tax and other liens which
arise by operation of law and with respect to which payment is not past due and
except for pledges or lien: (i) required to be granted in connection with
acceptance by SCSB of government deposits; or (ii) granted in connection with
repurchase or reverse repurchase agreements; or (iii) otherwise incurred in the
ordinary course of the conduct of its business;
(k) Canceled, released or compromised any loan, debt, obligation, claim
or receivable other than in the ordinary course of business;
(l) Entered into or made any loan or other transaction, contract or
commitment other than in the ordinary course of business;
(m) Agreed to enter into any transaction for the borrowing or lending of
monies, funds or securities, other than in the ordinary course of its lending
business; or
(n) Conducted its business in any manner other than substantially as it
was being conducted on September 30, 1997.
4.22. Regulatory Filings. Shelby County, SCSB and the Subsidiaries have
filed and will continue to file in a timely manner all filings and reports with
all federal and state regulatory agencies and authorities as required by
applicable law. All such filings with federal and state regulatory agencies
were true, accurate and complete in all respects as of the dates of the filings
and were prepared in conformity with generally accepted accounting principles
applied on a consistent basis and applicable law, and no such filing contained
any untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements, at the time and in light of the
circumstances under which they were made, not false or misleading.
4.23. Contracts. Neither Shelby County, SCSB nor either of the
Subsidiaries is in default under or in breach of or, to the best knowledge of
Shelby County, SCSB and the Subsidiaries, alleged to be in default under or in
breach of, any loan or credit agreement, security agreement, bond, indenture,
mortgage, license, contract, lease, commitment or any other instrument or
obligation, which breach or default could have a material adverse effect on the
financial condition, results of operation, business, assets or capital of Shelby
County or SCSB, whether individually or on a consolidated basis, or Shelby Group
or First Tier on a consolidated basis with Shelby County.
4.24. No Third Party Options. Except as provided in the Disclosure
Schedule with respect to the options to purchase 13,800 shares of Shelby County
Common Stock under the Stock Option Plan, there are no agreements, options,
commitments or rights with, of or to any third party to
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acquire any shares of capital stock or assets of Shelby County, SCSB or either
of the Subsidiaries which are binding upon Shelby County, SCSB or either of
the Subsidiaries.
4.25. Disclosure Schedule and Documents. All written data, documents,
materials and information referred to in this Agreement and delivered by Shelby
County, SCSB or either of the Subsidiaries pursuant to or in connection with
the Disclosure Schedule are true, accurate and complete in all material
respects as of the date hereof and, with respect to such items delivered
subsequent to the date hereof or with any update to the Disclosure Schedule,
will be true, accurate and complete in all material respects on the date of
delivery thereof.
4.26. Indemnification Agreements. (a) Neither Shelby County, SCSB nor
either of the Subsidiaries is a party to any indemnification, indemnity or
reimbursement agreement, contract, commitment or understanding to indemnify any
present or former director, officer, employee, shareholder or agent against
liability or hold the same harmless from liability, other than as expressly
provided in the Articles of Incorporation or By-Laws of Shelby County, Shelby
Group or First Tier or the Charter or By-Laws of SCSB.
(b) No claims have been made against or filed with Shelby County, SCSB or
either of the Subsidiaries nor has, to the best knowledge of Shelby County,
SCSB and the Subsidiaries after due inquiry, any claims been threatened against
Shelby County, SCSB or either of the Subsidiaries, for indemnification against
liability or for reimbursement of any costs or expenses incurred in connection
with any legal or regulatory proceeding by any present or former director,
officer, shareholder, employee or agent of either Shelby County, SCSB or either
of the Subsidiaries.
4.27. Representations and Warranties at the Effective Time. All
representations and warranties of Shelby County and SCSB contained herein shall
be true, accurate and complete in all material respects on and as of the
Effective Time as though made or given at such time, except as otherwise
expressly contemplated by this Agreement.
4.28. Nonsurvival of Representations and Warranties. The representations
and warranties of Shelby County and SCSB contained in this Agreement shall
expire upon the earlier of the Effective Time or the termination of this
Agreement pursuant to Section 9 hereof (except that any claim of
misrepresentation or breach of a warranty may be brought following any
such termination), and thereafter Shelby County, SCSB and the Subsidiaries and
all directors, officers and employees thereof shall have no further liability
with respect thereto, except for fraud or intentional and knowing participation
in the making of untrue, inaccurate or misleading statements in such
representations and warranties. Nothing in the foregoing shall result in the
termination of any of the covenants provided for in this Agreement that shall by
their terms survive the Effective Time.
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SECTION 5
REPRESENTATIONS AND WARRANTIES OF BLUE RIVER
Blue River represents and warrants to Shelby County and SCSB as follows as
of the date hereof and at all times that this Agreement shall be in effect:
5.01. Organization and Authority. Blue River is a corporation duly
organized and validly existing under the laws of the State of Indiana and has
full power and authority (corporate and otherwise) to own and lease its
properties as presently owned and leased and to conduct its business in the
manner and by the means utilized as of the date hereof.
5.02. Authorization. (a) Blue River has the requisite corporate power
and authority to enter into this Agreement and to carry out its obligations
hereunder subject to the fulfillment of the conditions precedent set forth in
Section 8.01 hereof. This Agreement and its execution and delivery by Blue
River have been duly authorized and approved by the Board of Directors of Blue
River. This Agreement constitutes a valid and binding obligation of Blue River
and is enforceable in accordance with its terms, except to the extent limited
by general principles of equity and public policy and by bankruptcy,
insolvency, fraudulent transfer, reorganization, liquidation, moratorium,
readjustment of debt or other laws of general application relating to or
affecting the enforcement of creditors' rights.
(b) Neither the execution of this Agreement nor consummation of the
Merger (i) conflicts with or violates Blue River's Articles of Incorporation or
By-Laws; (ii) conflicts with or violates any local, state, federal or foreign
law, statute, ordinance, rule or regulation (provided that the approvals of or
filings with applicable government regulatory agencies or authorities required
for consummation of the Transaction are obtained) or any court or administrative
judgment, order, injunction, writ or decree; (iii) conflicts with, results in a
breach of or constitutes a default under any note, bond, indenture, mortgage,
deed of trust, license, contract, lease, agreement, arrangement, commitment or
other instrument to which Blue River is a party or by which Blue River is
subject or bound; (iv) results in the creation of or gives any person,
corporation or entity the right to create any lien, charge, claim, encumbrance
or security interest, or results in the creation of any other rights or claims
of any other party or any other adverse interest, upon any right, property or
asset of Blue River; or (v) terminates or gives any person, corporation or
entity the right to terminate, accelerate, amend, modify or refuse to perform
under any note, bond, indenture, mortgage, deed of trust, license, lease,
contract, agreement, arrangement, commitment or other instrument to which Blue
River is bound or with respect to which Blue River is to perform any duties or
obligations or receive any rights or benefits.
(c) Other than in connection or in compliance with the provisions of
applicable federal and state banking, thrift, securities and corporation
statutes, all as amended, and the rules and regulations promulgated thereunder,
no notice to, filing with, exemption by or consent, authorization or approval
of any governmental agency or body is necessary for consummation by Blue River
of the Transaction.
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5.03. Organizational Documents. The Articles of Incorporation and By-Laws
of Blue River in effect as of the date of this Agreement have been delivered to
Shelby County and represent true, accurate and complete copies of such
corporate documents of Blue River in effect as of the date of this Agreement.
5.04. Compliance With Law. Blue River has not engaged in any activity or
has taken or omitted to take any action which has resulted or could result in
the violation of any local, state, federal or foreign law, statute, rule,
regulation, ordinance, order, restriction or requirement or of any order,
injunction, judgment, writ or decree of any court or government agency or body,
the violation of which could have a material adverse effect on the financial
condition, results of operations, business, assets or capitalization of Blue
River.
5.05. Litigation and Pending Proceedings. (a) There are no claims,
actions, suits, proceedings, investigations, arbitrations or mediations pending
or, to the best knowledge of Blue River after due inquiry, threatened in any
court or before any government agency or authority, arbitration panel or
otherwise (nor does Blue River have any knowledge of a basis for any claim,
action, suit, proceeding, litigation, investigation, arbitration or mediation)
against, by or affecting Blue River which could have a material adverse effect
on the financial condition, results of operations, business, assets or
capitalization of Blue River, or which would prevent the performance of this
Agreement, declare the same unlawful or cause the rescission hereof.
(b) Blue River is not (i) subject to any outstanding judgment, order,
writ, injunction or decree of any court, arbitration panel or governmental
agency or authority having a material adverse effect on its business, assets,
capitalization, financial condition or results of operations on a consolidated
basis, (ii) presently charged with or under governmental investigation with
respect to any actual or alleged violations of any law, statute, rule,
regulation or ordinance, or (iii) the subject of any pending or, to the best
knowledge of Blue River, threatened proceeding by any government regulatory
agency or authority having jurisdiction over its business, properties or
operations.
5.06. Representations and Warranties at the Effective Time. All
representations and warranties of Blue River contained herein shall be true,
accurate and complete in all material respects on and as of the Effective Time
as though made or given at such time.
5.07. Nonsurvival of Representations and Warranties. The representations
and warranties of Blue River contained in this Agreement shall expire upon the
earlier of the Effective Time or the termination of this Agreement pursuant
to Section 9 hereof (except that any claim of misrepresentation or breach
of warranty may be brought following any such termination), and thereafter,
Blue River and all directors, officers and employees of Blue River shall
have no further liability with respect thereto, except for fraud or intentional
and knowing participation in the making of untrue, inaccurate or misleading
statements in such representations and warranties. Nothing in the foregoing
shall result in the termination of any covenants provided for herein that shall
by their terms survive the Effective Time.
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SECTION 6
COVENANTS OF SHELBY COUNTY AND SCSB
Shelby County and SCSB covenant and agree with Blue River, and SCSB
covenants and agrees with Blue River to cause Shelby Group and First Tier to
act, as follows:
6.01. Shareholder Approval. Shelby County shall submit this Agreement and
the Merger to its shareholders for approval at a meeting to be called and held
in accordance with applicable law and the Articles of Incorporation and By-Laws
of Shelby County on a date mutually acceptable to Shelby County and Blue River.
Shelby County shall use its reasonable efforts to hold such meeting of
shareholders no later than sixty (60) days following the date of this
Agreement. In connection with such meeting of shareholders of Shelby County,
(a) Shelby County shall deliver to its shareholders a proxy statement relating
to the Merger ("Proxy Statement") which shall include a copy of this Agreement
and all other information required to be provided to shareholders of Shelby
County in accordance with applicable law; and (b) the Board of Directors of
Shelby County shall recommend, by at least a majority vote, to Shelby County's
shareholders that such shareholders approve this Agreement and the Merger and
shall solicit proxies in favor of this Agreement from such shareholders
(unless, in the written opinion of counsel for Shelby County, the fiduciary
duties of such Board might reasonably be found to prohibit such a
recommendation, in which event the individual members of the Board of Directors
shall nevertheless remain personally obligated to vote in favor of this
Agreement and the Merger pursuant to their personal undertakings set forth
elsewhere in this Agreement). Immediately following the approval of this
Agreement by the shareholders of Shelby County, Shelby County, as the sole
shareholder of SCSB, and the Board of Directors of SCSB shall each approve the
Conversion and adopt the Plan of Conversion.
Shelby County shall use its reasonable efforts to cause Trident Financial
Corporation ("Trident") to issue, no later than the date of the Proxy
Statement, Trident's written opinion ("Fairness Opinion") stating that the
Conversion Price is fair to the shareholders of Shelby County from a financial
point of view. Shelby County shall attach a copy of Trident's fairness opinion
to the proxy statement to be delivered to Shelby County's shareholders in
connection with the meeting of shareholders referenced in this Section 6.01.
6.02. Other Approvals and Actions. (a) Shelby County and SCSB shall
proceed expeditiously, cooperate fully and use their reasonable efforts to
assist Blue River in procuring, upon terms and conditions reasonably acceptable
to Blue River, all consents, authorizations, approvals, registrations and
certificates, in completing all filings and applications and in satisfying all
other requirements prescribed by law which are necessary for the IPO (as defined
in Section 7.02 hereof) and the consummation of the Transaction on the terms and
conditions provided in this Agreement. Shelby County shall take all actions
reasonably requested by Blue River in connection with the Conversion.
(b) Shelby County and SCSB shall take all necessary steps to (i)
terminate the Stock Option Plan as of the Effective Time such that, among other
things, the Stock Options will terminate
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or lapse if not exercised prior to the Effective Time and (ii) assist
Blue River in the disposition of the SCSB Retirement Plan (as hereinafter
defined), in accordance with Section 7.03 hereof. Shelby County shall pay all
costs and expenses associated with the disposition of such plans, to the extent
incurred prior to the Effective Time.
(c) Shelby County shall take all necessary steps to redeem the rights
granted pursuant to the Rights Agreement at or prior to the Effective Time at
an aggregate cost not to exceed Twenty Thousand Dollars ($20,000).
(d) In advance of filing the Proxy Statement with the Securities and
Exchange Commission ("SEC"), Shelby County shall provide to Blue River and its
counsel with a copy of the Proxy Statement and provide them an opportunity to
comment thereon.
6.03. Conduct of Business. (a) On and after the date of this Agreement
and until the Effective Time or until this Agreement shall be terminated as
herein provided, neither Shelby County, SCSB nor either of the Subsidiaries
shall, without the prior written consent of Blue River:
(i) make any changes in its capital stock accounts (including,
without limitation, any stock split, stock dividend,
recapitalization or reclassification);
(ii) authorize a class of securities, issue or grant, or
authorize the issuance or grant of, securities or options
other than or in addition to the presently issued and
outstanding shares of Shelby County Common Stock, SCSB Common
Stock, Shelby Group Common Stock or First Tier Common Stock
set forth in Section 4.03 hereof and other than the presently
outstanding options to purchase an aggregate of 13,800 shares
of Shelby County Common Stock;
(iii) distribute or pay any dividends on its shares of common
stock, or make any other distribution to its shareholders,
except that Shelby County may pay to its shareholders its
normal and customary quarterly cash dividend in an amount
not to exceed twelve and one-half cents ($0.125) per share
of Shelby County Common Stock for each such dividend until
the Effective Time and except that SCSB may pay cash
dividends to Shelby County in the ordinary course of
business in accordance with past practices for payment
of reasonable and necessary business and operating expenses
of Shelby County;
(iv) redeem any of its outstanding shares of common stock;
(v) merge, combine or consolidate or effect a share exchange
with or sell substantially all of its assets or any of its
securities to any other person,
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corporation or entity or enter into any similar
transaction not in the ordinary course of business;
(vi) assume any liabilities of any bank or savings and loan
holding company, bank, savings association, corporation or
other entity, except in the ordinary course of business;
(vii) except in the ordinary course of business in accordance with
sound banking practices (and, with respect to loan
transactions or commitments, letters of credit and deposit
accounts, only on terms and conditions which are not
materially more favorable than those available to the
borrower or customer from competitive sources in transactions
in the ordinary course of business) make any loan, payment or
disbursement; issue any loan commitment, letter of credit or
line of credit; accept any deposit; enter into any lease,
contract, agreement understanding or arrangement; amend,
modify or terminate, or forgive or grant any waiver or
concession under, any loan, debt or obligation owed to Shelby
County or SCSB; or guaranty any debt or obligation of any
third party;
(viii) except for acquisitions or dispositions in the ordinary
course of business, acquire or dispose of any property or
asset in excess of $5,000 individually or $10,000 in the
aggregate;
(ix) except for the pledge of securities to secure public funds
deposits or except for additional borrowings in the ordinary
course of business from the Federal Home Loan Bank of
Indianapolis not to exceed $22.5 Million in the aggregate,
subject any of its properties or assets to a mortgage, lien,
claim, charge, option, restriction, security interest or
encumbrance;
(x) promote to a new position or increase the rate of
compensation (except for promotions and compensation
increases in the ordinary course of business and in
accordance with past practices and established employment
policies), or enter into any agreement to promote to a new
position or increase the rate of compensation, of any
director, officer or employee of Shelby County, SCSB or
either of the Subsidiaries;
(xi) execute, create, institute, modify, amend or terminate
(except with respect to any amendments to the Shelby County
Plans required by law, rule or regulation, except with
respect to the amendments to the Stock Option Plan as
described in Section 6.02(b)(i) hereof, except with respect
to the termination of the SCSB Retirement Plan as described
in Section 6.02(b)(ii) hereof and as contemplated by
Section 7.03 hereof, except with respect to the amendments
to the Employment Agreements and the Xxxxxxxxxx Agreement as
contemplated by Section 6.11 hereof and except with respect
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to the Termination Agreement (as hereinafter defined))
any pension, retirement, savings, stock purchase, stock
bonus, stock ownership, stock option, stock appreciation or
depreciation right or profit sharing plans of Shelby County
or SCSB; any employment, deferred compensation, consulting,
bonus or collective bargaining agreement; any group insurance
or health contract or policy; or any other incentive,
retirement or employee welfare or pension benefit plan,
agreement or understanding for current or former directors,
officers or employees of Shelby County, SCSB or either of the
Subsidiaries; or change the level of benefits or payments
under any of the foregoing or increase or decrease any
severance or termination of pay benefits or any other fringe
or employee benefits other than as required by law or
regulatory authorities;
(xii) make any filing concerning the amendments to or disposition
of the Shelby County Plans as provided in Section 7.03
hereof to any employee of Shelby County, SCSB or either of
the Subsidiaries or any third party, including any
regulatory authority;
(xiii) modify, amend or institute new employment policies or
practices (other than in the ordinary course of business
consistent with past practices) or enter into, renew or
extend any employment, indemnity, reimbursement, consulting,
compensation or severance agreements with respect to any
present or former directors, officers or employees of Shelby
County, SCSB or either of the Subsidiaries;
(xiv) hire or employ any new or additional employees of Shelby
County, SCSB or either of the Subsidiaries, except those
which are reasonably necessary for the proper operation of
Shelby County's, SCSB's or either of the Subsidiaries'
business;
(xv) amend, modify or restate Shelby County's, Shelby Group's or
First Tier's Articles of Incorporation or By-Laws or
SCSB's Charter or By-Laws from those in effect on the date
of this Agreement and as delivered to Blue River hereunder;
(xvi) give, dispose of, sell, convey or transfer; assign,
hypothecate, pledge or encumber; or grant a security
interest in or option or right to acquire any shares of
capital stock of Shelby County, SCSB, Shelby Group or First
Tier or substantially all of the assets of Shelby County,
SCSB, Shelby Group or First Tier, or enter into any
agreement or commitment relative to the foregoing;
(xvii) fail to continue to make additions to in accordance with
past practices and to otherwise maintain in all respects
SCSB's reserve for loan and lease
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losses, or any other reserve account, in accordance with
safe, sound and prudent banking practices and in accordance
with generally accepted accounting principles applied on a
consistent basis;
(xviii) fail to accrue, pay, discharge and satisfy all accounts
payable, debts, liabilities, obligations and expenses
incurred in the regular and ordinary course of business as
such payables, debts, liabilities, obligations and expenses
become due;
(xix) issue, or authorize the issuance of, any securities
convertible into or exchangeable for Shelby County Common
Stock, SCSB Common Stock, Shelby Group Common Stock or
First Tier Common Stock;
(xx) except for accounts payable and similar liabilities and
obligations incurred in the ordinary course of business,
for the payment, discharge or satisfaction in the ordinary
course of business of liabilities reflected in the Shelby
County Financial Statements or the Subsequent Shelby County
Financial Statements and for additional borrowings in the
ordinary course of business from the Federal Home Loan Bank
of Indianapolis not to exceed $22.5 Million, borrow any
money or incur any indebtedness, including, without
limitation, through the issuance of debentures, or incur
any liability or obligation (whether absolute, accrued,
contingent or otherwise), in an aggregate amount exceeding
$5,000, other than legal, accounting, and investment banker
fees and proxy printing and mailing costs relating to the
Transaction or the operation of Shelby County's and
SCSB's business;
(xxi) open, close, move or, in any material respect, expand,
renovate, alter or change any of its offices or branches;
(xxii) pay or commit to pay any management, consulting,
professional or other similar type of fees, except for the
reasonable fees paid to Shelby County's and SCSB's existing
attorneys and accountants for work done in the ordinary
course of Shelby County's and SCSB's business and the
reasonable fees paid to Shelby County's attorneys,
accountants, investment banker and other advisors with
respect to the Transaction which shall not exceed in the
aggregate the amount of fees set forth in the agreements or
other arrangements disclosed in the Disclosure Schedule;
(xxiii) enter into any contract, agreement, lease, commitment,
understanding, arrangement or transaction or incur any
liability or obligation (other than as contemplated by
Section 6.03(a)(vii) hereof) requiring payments by Shelby
County, SCSB or either of the Subsidiaries which exceed
$5,000, whether individually or in the aggregate, or that is
not in the ordinary course of business;
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(xxiv) elect or appoint any director or officer of Shelby
County, SCSB or either of the Subsidiaries in addition
to or other than Xxxx Xxxxxx and those persons who were
directors or officers of Shelby County, SCSB or either
of the Subsidiaries on the date of the Agreement;
(xxv) execute, create, institute, modify, amend or terminate
any shareholders rights plan (including the Rights
Agreement), poison pill or any other anti-takeover plan,
device, mechanism or arrangement involving, restricting,
prohibiting or discouraging a change in control, merger,
sale or other combination of Shelby County, SCSB or either
of the Subsidiaries or which may be considered an
anti-takeover mechanism (except with respect to the
amendments to the Stock Option Plan as contemplated by
Section 6.02(b)(i) hereof and except with respect to the
amendments to the Employment Agreements and the Xxxxxxxxxx
Agreement as contemplated by Section 6.11 hereof and except
with respect to the Termination Agreement);
(xxvi) redeem the rights granted pursuant to the Rights Agreement
(except as provided by Section 6.02(c) hereof and Section
5(d) of the Stock Option Agreement ("Lock-up Agreement")
dated of even date herewith by and between Blue River and
Shelby County);
(xxvii) make or modify, or commit to make or modify, any 30-year
fixed rate mortgage loan that will have an annual interest
rate which is less than the Federal National Mortgage
Association (Xxxxxx Xxx) posted yields on 30-year
mortgage commitments (priced at par) for delivery within 30
days, as published in the "Money Rates" section of The Wall
Street Journal (Midwest Edition) on the most recent date
(which The Wall Street Journal (Midwest Edition) is
published) preceding the date which SCSB makes or commits to
make any such 30-year fixed rate mortgage loan;
(xxviii) violate any law, statute, rule, regulation, directive or
other legal requirement in any material respect; or
(xxviv) enter into any contract, agreement, commitment or
understanding with respect to any of the foregoing specified
in this Section 6.03(a).
(b) Shelby County, SCSB and each of the Subsidiaries shall maintain,
or cause to be maintained, in full force and effect, insurance on its assets,
properties and operations, fidelity coverage and directors' and officers'
liability insurance on its directors, officers and employees in such amounts
and with regard to such liabilities and hazards as are currently insured by
Shelby County, SCSB and the Subsidiaries as of the date of this Agreement.
(c) Shelby County, SCSB and each of the Subsidiaries shall cause its
attorneys, accountants and other professionals and advisors and all other
parties doing business with Shelby
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County, SCSB or any of the Subsidiaries to xxxx or invoice for goods or
services provided no less frequently than monthly.
6.04. Preservation of Business. On and after the date of this Agreement
and until the Effective Time or until this Agreement is terminated as herein
provided, each of Shelby County, SCSB and each of the Subsidiaries shall (a)
carry on its business diligently, substantially in the manner as is presently
being conducted and in the ordinary course of business; (b) use its reasonable
efforts to preserve its business organization intact, keep available the
services of the present officers and employees and preserve its present
relationships with customers and persons having business dealings with it; (c)
maintain all of the properties and assets that it owns or utilizes in good
operating condition and repair, reasonable wear and tear excepted, and maintain
insurance upon such properties and assets in amounts and kinds comparable to
that in effect on the date of this Agreement; (d) maintain its books, records
and accounts in the usual, regular and ordinary manner, on a basis consistent
with prior years and in compliance with all material respects with all
statutes, laws, rules and regulations applicable to it and to the conduct of
its business; and (e) not do or fail to do anything which will cause a material
breach of, or material default in, any contract, agreement, commitment,
obligation, understanding, arrangement, lease or license to which it is a party
or by which it is or may be subject or bound.
6.05. Other Negotiations. (a) Subject to Section 6.05(b) hereof, on and
after the date of this Agreement and until the Effective Time or until this
Agreement is terminated as herein provided, Shelby County, SCSB and each of the
Subsidiaries (except with the prior written approval of Blue River) shall not,
nor shall they permit or authorize their respective directors, officers,
employees, agents or representatives to, directly or indirectly, initiate,
solicit, facilitate, encourage or engage in discussions or negotiations with,
or provide information to, any corporation, association, partnership, limited
liability company, person or other entity or group concerning any merger,
consolidation, share exchange, combination, affiliation, purchase or sale of
substantial assets, sale of shares of common stock (or securities convertible
or exchangeable into or otherwise evidencing, or any agreement or instrument
evidencing, the right to acquire capital stock) or similar transaction relating
to Shelby County, SCSB or either of the Subsidiaries or to which Shelby County,
SCSB or either of the Subsidiaries may become a party (all such transactions
are hereinafter referred to as "Acquisition Transactions"). Shelby County,
SCSB and the Subsidiaries shall promptly communicate to Blue River the terms of
any proposal or offer which either of them may receive with respect to an
Acquisition Transaction and any request by or indication of interest on the
part of any third party with respect to the initiation of any Acquisition
Transaction or discussions with respect thereto.
(b) On and after the date of this Agreement and until the Effective
Time or until this Agreement is terminated as herein provided, Shelby County
may engage, and may permit and authorize its directors, officers, employees,
agents or representatives to engage in discussions or negotiations with or
provide information to any corporation, association, partnership, limited
liability company, person or other entity or group concerning an unsolicited
offer by such third party with respect to an Acquisition Transaction only with
the prior written approval of Blue River, which approval shall be provided to
Shelby County promptly upon receipt by Blue River of a letter from
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Shelby County signed by at least a majority of its Board of Directors
then in office indicating that Shelby County has received an unsolicited offer
regarding an Acquisition Transaction which the Board of Directors of Shelby
County (i) considers, in the exercise of its fiduciary duties as a Board, to be
substantially superior, taking into account all relevant factors, to the then
current offer of Blue River pursuant to this Agreement and (ii) concludes,
after consultation with its counsel, that its fiduciary duties as a Board
require it to consider (based upon a written opinion of Shelby County's legal
counsel advising the Board to consider) and, in light of such duties, take such
other actions with respect to such unsolicited offer as may be necessary or
appropriate; and such approval may, in all other instances, be provided to
Shelby County when and if Blue River shall, in its sole discretion, determine.
This Section 6.05 shall not authorize Shelby County, SCSB or either of the
Subsidiaries or any of their directors, officers, employees, agents or
representatives to solicit or initiate any discussions or negotiations
relative to an Acquisition Transaction with a third party.
6.06. Press Releases. Except as required by law, neither Shelby County,
SCSB nor either of the Subsidiaries shall issue any press releases or make any
other public announcements or disclosures relating to the Transaction without
the prior consent of Blue River, which consent shall not be unreasonably
withheld.
6.07. Disclosure Schedule Update. Shelby County shall promptly
supplement, amend and update, upon the occurrence of any change prior to the
Effective Time, and as of the Effective Time, the Disclosure Schedule with
respect to any agreements, documents, matters or events hereafter arising
which, if in existence or having occurred as of the date of this Agreement,
would have been required to be set forth or described in the Disclosure
Schedule or this Agreement and including, without limitation, any fact which,
if existing or known as of the date hereof, would have made any of the
representations or warranties of Shelby County or SCSB contained herein
materially incorrect, untrue or misleading.
6.8. Information, Access Thereto, Confidentiality. Blue River and its
attorneys, accountants, representatives, advisors and agents shall, at all
times during normal business hours prior to the Effective Time, have full and
continuing access to the properties, facilities, operations, books and records
of Shelby County, SCSB and the Subsidiaries. Blue River and its attorneys,
accountants, representatives, advisors and agents may, prior to the Effective
Time, make or cause to be made such reasonable investigation (including,
without limitation, any environmental review study, survey or assessment of
Shelby County's, SCSB's or any Subsidiary's real properties) of the operations,
books, records and properties of Shelby County, SCSB and the Subsidiaries and
of their financial and legal condition as deemed necessary or advisable to
familiarize themselves with such operations, books, records, properties and
other matters; provided, however, that such access or investigation shall not
interfere unnecessarily with the normal operations of Shelby County, SCSB or
either of the Subsidiaries; and provided further, that if Blue River elects to
conduct or have conducted on its behalf an environmental review, study, survey
or assessment to verify the representations and warranties given by Shelby
County, SCSB and the Subsidiaries with respect to the environmental matters
specified in Section 4.11(b) hereof, all reports and findings related to such
environmental review, study, survey or assessment shall be shall be disclosed
to Shelby County, SCSB and the Subsidiaries within fifteen (15) days of the
date of such report or finding. Upon
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request, Shelby County, SCSB and the Subsidiaries shall furnish Blue
River, or its attorneys, accountants, representatives, advisors or agents,
Shelby County's attorneys' responses to external auditors requests for
information, management letters received from its external auditors and such
financial, loan and operating data and other information reasonably requested
by Blue River which has been or is developed by Shelby County, SCSB or either
of the Subsidiaries or their auditors, accountants or attorneys (provided with
respect to attorneys, such disclosure would not result in the waiver by Shelby
County, SCSB or either of the Subsidiaries of any claim of attorney-client
privilege), and will permit Blue River and its respective representatives or
agents to discuss such information directly with any individual or firm
performing auditing or accounting functions for Shelby County, SCSB or either
of the Subsidiaries, and such auditors and accountants shall be directed to
furnish copies of any reports or financial information as developed to Blue
River or its auditors or accountants. No investigation or review by Blue River
(whether conducted before or after the date hereof) shall affect the
representations and warranties made by Shelby County or SCSB herein or the
information contained in any document provided hereunder, and Blue River shall
be entitled to rely on such representations, warranties and documents
notwithstanding any such investigation or review. Any confidential information
or trade secrets received by Blue River or its representatives or agents in the
course of such examination shall be treated confidentially, and any
correspondence, memoranda, records, copies, documents and electronic or other
media of any kind containing such confidential information or trade secrets or
both shall be destroyed by Blue River or, at Shelby County's request, returned
to Shelby County in the event this Agreement is terminated as provided in
Section 9 hereof. This Section 6.08 shall not require the disclosure of any
information to Blue River which would be prohibited by law.
6.09. Subsequent Shelby County Financial Statements. As soon as
available after the date of this Agreement, Shelby County shall deliver to Blue
River the monthly unaudited consolidated balance sheets and income statements
of Shelby County prepared for its internal use, Shelby County's Forms 10-Q for
each quarterly period and Form 10-K for each fiscal year completed prior to the
Effective Time and all other financial reports or statements, including the
notes thereto, submitted to regulatory authorities after the date hereof, to
the extent permitted by law (collectively, "Subsequent Shelby County Financial
Statements"). The Subsequent Shelby County Financial Statements shall be
prepared on a basis consistent with past accounting practices and generally
accepted accounting principles applied on a consistent basis and shall present
fairly the financial condition and results of operations as of the dates and
for the periods presented. The Subsequent Shelby County Financial Statements
will not include any assets, liabilities or obligations or omit to state any
assets, liabilities or obligations, absolute or contingent, or any other facts,
which inclusion or omission would render such financial statements inaccurate,
incomplete or misleading in any material respect.
6.10. Employee Benefits. Neither the terms of Section 7.03 hereof
(except as otherwise expressly provided therein) nor the provision of any
employee benefits by Blue River or any of its subsidiaries to employees of
Shelby County, SCSB and the Subsidiaries shall (i) create any employment
contract, agreement or understanding with or employment rights for, or
constitute a commitment or obligation of employment to, any of the officers or
employees of Shelby County, SCSB and the Subsidiaries or (ii) except as
expressly provided in this Agreement, prohibit or restrict
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Blue River or its subsidiaries, whether before or after the Effective
Time, from changing, amending or terminating any employee benefits provided to
its employees from time to time.
6.11. Employment Agreements. Prior to the Effective Time, SCSB shall use
all reasonable efforts to cause the employment agreements between SCSB and each
of Xxxxxx X. Xxxxxx, Xxxxx X. Xxxx and Xxxx Xxxxxxxx (each in the form set
forth in the Disclosure Schedule) (collectively referred to herein as the
"Employment Agreements") to be amended, all in form and substance reasonably
satisfactory to Blue River, such that (i) the requirement that each participate
in a stock option plan shall be deleted and all references as to title other
than the title of Vice President shall be deleted, (ii) each will receive
employee benefits in accordance with Blue River's employee benefit plans
instead of SCSB's plans and (iii) the term of each of the Employment Agreements
shall end one (1) year from the Effective Time. Other than the foregoing
amendments, the Employment Agreements shall not be amended or modified in any
respect, and none of the respective terms of the Employment Agreements shall be
extended or renewed. On the date hereof, SCSB and Xxxxxx X. Xxxxxxxxxx shall
enter into an agreement relating to the Xxxxxxxxxx Agreement ("Termination
Agreement") to the effect that the Xxxxxxxxxx Agreement shall be terminated as
of the Effective Time upon the terms and conditions specified in the
Termination Agreement. Other than as set forth in the Termination Agreement,
the Xxxxxxxxxx Agreement shall not be changed, amended or modified in any
respect and the term thereof shall not be extended or renewed without the prior
written consent of Blue River, SCSB and Xx. Xxxxxxxxxx.
6.12. Certain Actions. Neither Shelby County, SCSB nor either of the
Subsidiaries shall intentionally or knowingly take, cause to be taken or fail
to take any action which will cause or result in a misrepresentation or a
breach of a covenant or warranty of this Agreement that will give Blue River
the right to terminate this Agreement pursuant to Section 9.01(b) hereof or
which will result in a condition precedent to consummation of the Transaction
not to be satisfied or fulfilled.
6.13. Restructure. Shelby County and SCSB understand, acknowledge and
agree that Blue River, in its sole discretion, may change the structure of the
transactions contemplated by this Agreement; provided, however, that any such
change in structure shall not affect the Conversion Price or the consideration
to be paid hereunder to the shareholders of Shelby County or cause the
consummation of the Transaction to be delayed. Shelby County and SCSB shall
execute and deliver such amendments, agreements and instruments and take such
further actions as Blue River may reasonably request in connection with any
such restructure of the transactions contemplated by this Agreement.
SECTION 7
COVENANTS OF BLUE RIVER
Blue River covenants and agrees with Shelby County as follows:
7.1. Approvals. (a) Blue River shall have primary responsibility
for the preparation, filing and cost of all filings and applications
required for consummation of the Transaction, except for the
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Proxy Statement. Blue River shall file all such applications as soon
as practicable after the execution of this Agreement. Blue River shall provide
to Shelby County's counsel copies of all applications filed and copies of all
material written communications with all state and federal bank regulatory
agencies relating to such applications. Blue River shall proceed
expeditiously, cooperate fully and use its best efforts to procure, upon terms
and conditions reasonably acceptable to Blue River, all consents,
authorizations, approvals, registrations and certificates, to complete all
filings and applications and to satisfy all other requirements prescribed by
law which are necessary for consummation of the Transaction on the terms and
conditions provided in this Agreement at the earliest possible reasonable date,
except as set forth in Section 6.01 hereof.
(b) Blue River shall submit this Agreement to its shareholders for
approval at a meeting to be called and held in accordance with applicable law
and the Articles of Incorporation and By-Laws of Blue River at a date
reasonably in advance of the Effective Time and the Board of Directors of Blue
River shall recommend, by at least a majority vote, to Blue River's
shareholders that such shareholders approve this Agreement and the Merger.
7.02. SEC Registration. Blue River shall file with the SEC as soon as
practicable after the execution of this Agreement a Registration Statement on
an appropriate form under the 1933 Act covering the shares of Blue River common
stock to be sold in its initial public offering ("IPO"). Such Registration
Statement and any amendments and supplements thereto are referred to in this
Agreement as the "Registration Statement." The Registration Statement shall
include a prospectus ("Prospectus") relating to the shares of Blue River common
stock to be sold in the IPO. In advance of filing the Registration Statement
and all other filings described in Section 7.01 hereof, Blue River shall
provide Shelby County and its counsel with a copy of the Registration Statement
and each such other filing and provide an opportunity to comment thereon.
7.03. Blue River Benefit Plans. (a) General. Blue River will make
available to the employees of SCSB who continue as employees of SCSB after the
Effective Time such employee benefits as the Board of Directors of Blue River
may determine to provide to employees from time to time. Until such time as
the employees of SCSB become eligible to participate in or eligible to be
covered by Blue River's employee pension benefit plans or employee welfare
benefit plans, employees of SCSB who would otherwise be eligible to participate
in or be covered by the employee pension benefit and employee welfare benefit
plans of Blue River under the terms thereof shall remain participants in or
covered by the employee pension benefit plans and employees welfare benefit
plans of Shelby County in existence at the Effective Time, subject to the terms
of such plans, to the extent provided by such plans of Shelby County.
Notwithstanding the foregoing or anything herein to the contrary, Blue River
shall not be obligated to provide any employee benefit plans to employees of
SCSB following the Merger who meet the applicable eligible requirements except
for the Blue River Profit Sharing Plan (as hereinafter defined) and group
health and hospitalization insurance.
(b) Eligibility and Vesting. Years of service, as defined in the
applicable Blue River employee welfare or pension benefit plan, with SCSB prior
to the Effective Time shall be credited to each employee of SCSB eligible for
coverage under Section 7.03(a) hereof for purposes of (i)
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eligibility under Blue River's employee welfare benefit plans; and (ii)
eligibility and vesting, but not for purposes of benefit accrual or
contributions, under the Blue River Employees' Savings and Profit Sharing Plan
("Blue River Profit Sharing Plan"). The employees of SCSB shall become covered
by Blue River's employee pension and welfare benefit plans at such time(s) as
shall be specified by Blue River in its sole discretion, subject to Section
7.03(a) hereof. The service credit provided by this Section 7.03(b) will
become effective for a plan on the date Blue River specifies pursuant to the
preceding sentence. Those officers and employees of SCSB who otherwise meet
the eligibility requirements of the designated plan, based upon their age and
years of service for SCSB and Blue River, shall become participants thereunder
on the entry date which coincides with or next follows the specified date.
Those officers and employees of SCSB who do not meet the eligibility
requirements of the designated plan on such date shall become participants
thereunder on the first plan entry date which coincides with or next follows
the date on which such eligibility requirements are satisfied.
(c) Financial Institutions Retirement Fund. The accrual of participants'
benefits under SCSB's Financial Institutions Retirement Fund ("SCSB Retirement
Plan") shall be frozen effective as of December 31st of the year in which the
Effective Time occurs, and all accrued benefits of participants in the SCSB
Retirement Plan shall thereupon become fully vested. To the extent permitted
by the SCSB Retirement Plan and applicable law, the accrued benefit of each
participant in the SCSB Retirement Plan shall be held and remain under the SCSB
Retirement Plan and shall be payable at the time(s) and in the forms provided
for under that plan. Blue River shall be responsible for the withdrawal of
SCSB from the SCSB Retirement Plan and for making any required or appropriate
application to the Service for a determination letter to the effect that such
withdrawal does not adversely affect the tax-qualified status of such plan and
for providing any notices to the Pension Benefit Guaranty Corporation or other
governmental entity regarding the withdrawal. SCSB shall make contributions to
the SCSB Retirement Plan through the date of such withdrawal only to the extent
required to maintain the plan's tax-qualified status and avoid any federal
income taxes or penalties attributable to the plan's funding status.
7.04. Press Releases. Except as required by law, Blue River shall not
issue any press releases or make any other public announcements or disclosures
relating primarily to Shelby County, SCSB or either of the Subsidiaries with
respect to the Transaction without the prior consent of Shelby County, which
consent shall not be unreasonably withheld.
7.5. Information, Access Thereto, Confidentiality. Shelby County and
its attorneys, accountants, representatives, advisors and agents shall, at all
times during normal business hours prior to the Effective Time, have full and
continuing access to the facilities, operations, books, records and properties
of Blue River. Shelby County and its attorneys, accountants, representatives,
advisors and agents may, prior to the Effective Time, make or cause to be made
such reasonable investigation of the operations, books, records and properties
of Blue River and of its financial and legal condition as Shelby County shall
deem reasonable necessary or advisable to familiarize itself with such books,
records, properties and other matters; provided, however, that such access or
investigation shall not interfere unnecessarily with the normal operations of
Blue River. No investigation or review by Shelby County (whether conducted
before or after the date hereof) shall
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affect the representations and warranties made by Blue River or the
information contained in any document provided herein, and Shelby County shall
be entitled to rely on such representations, warranties and documents
notwithstanding any such investigation or review. Any confidential information
or trade secrets received by Shelby County or its respective employees or
agents in the course of such examination shall be treated confidentially, and
any correspondence, memoranda, records, copies, documents and electronic or
other media of any kind containing such confidential information or trade
secrets or both shall be destroyed by Shelby County or, at Blue River's
request, returned to Blue River in the event this Agreement is terminated as
provided in Section 9 hereof. This Section 7.05 shall not require the
disclosure of any information to Shelby County which would be prohibited by
law.
7.06. Employment Agreements. Following the Effective Time, Blue River
agrees to cause SCSB to assume all obligations under the Employment Agreements,
as amended pursuant to Section 6.11 hereof, except as may be otherwise required
by law or any government agency or authority.
7.07. Indemnification. Blue River shall cause SCSB to keep the
indemnification provisions in SCSB's Charter in effect on the date hereof in
full force and effect for a period of not less than two (2) years following the
Effective Time.
7.08. Termination Fee. (a) Blue River hereby acknowledges and agrees that
Shelby County and SCSB have committed and will commit substantial time, effort,
resources and expenses in pursuing the Transaction. Blue River further agrees
that it shall pay to Shelby County a termination fee in the amount the amount
of One Hundred Thousand Dollars ($100,000) in immediately available funds
("Termination Fee"), in the event that Shelby County terminates this Agreement
pursuant to Section 9.01(c)(i), 9.01(c)(ii), 9.01(c)(iii) or 9.01(c)(iv)
hereof.
(b) The Termination Fee shall be immediately paid to Shelby County upon
the termination of this Agreement by Shelby County pursuant to Section 9.01(c)
hereof. If the Termination Fee is not immediately paid as provided, then
Shelby County shall be entitled to recover interest at the highest prime rate
set forth in The Wall Street Journal (Midwest Edition) under the section
entitled "Money Rates" on the unpaid amount of the Termination Fee from the
time the Termination Fee is due until paid-in-full, together with all costs of
collection thereof, including reasonable attorneys' fees and expenses.
(c) Blue River, Shelby County and SCSB hereby acknowledge and agree
that the Termination Fee shall compensate Shelby County and SCSB for (i)
certain expenses incurred for attorneys, accountants, financial advisors and
consultants of Shelby County and SCSB in developing the Transaction and
drafting this Agreement, (ii) Shelby County and SCSB's management time and
expense in investigating, analyzing, developing and pursuing the Transaction,
and (iii) expenses relating to Shelby County and SCSB's due diligence efforts.
Blue River further acknowledges and agrees that the amount of the Termination
Fee is fair, reasonable and not a penalty and that its obligation to pay the
Termination Fee shall survive any termination of this Agreement by Shelby
County or SCSB.
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SECTION 8
CONDITIONS PRECEDENT TO THE TRANSACTION
8.01. Blue River. The obligation of Blue River to consummate the
Transaction is subject to the satisfaction and fulfillment of each of the
following conditions on or prior to the Effective Time, unless waived in
writing by Blue River:
(a) Representations and Warranties at Effective Time. Each of the
representations and warranties of Shelby County and SCSB contained in this
Agreement shall be true, accurate and correct in all material respects at and
as of the Effective Time as though such representations and warranties had been
made or given on and as of the Effective Time.
(b) Covenants. Each of the covenants and agreements of Shelby County and
SCSB shall have been fulfilled or complied with from the date of this Agreement
through and as of the Effective Time.
(c) Deliveries at Closing. Blue River shall have received from Shelby
County and SCSB at the Closing (as hereinafter defined) the items and
documents, in form and content reasonably satisfactory to Blue River, set forth
in Section 11.02(b) hereof.
(d) Stock Offering. Blue River shall have (i) registered under the 1933
Act its shares of common stock to be sold in the IPO; (ii) caused each
registration statement with respect to the shares to be issued in the IPO to
have been declared effective by the SEC, and the SEC shall not have issued or
threatened to issue a stop order with respect to each such registration
statement; (iii) received all state securities or Blue Sky approvals,
authorizations and/or exemptions with respect to the shares to be sold in the
IPO; (iv) executed with Xxxxx & Co. or any other investment banking firm, an
underwriting agreement with respect to the shares to be sold in the IPO; and
(v) sold at least 1 million shares of common stock of Blue River in the IPO.
(e) Regulatory Approvals. All appropriate orders, consents,
approvals and clearances from all regulatory agencies and governmental
authorities whose orders, consents, approvals or clearances are required by law
for consummation of the Transaction shall have been obtained on terms and
conditions reasonably satisfactory to Blue River.
(f) Shareholder Approvals. The shareholders of Blue River and Shelby
County shall have approved and adopted this Agreement as required by applicable
law and their respective Articles of Incorporation.
(g) Officers' Certificate. Shelby County shall have delivered to Blue
River a certificate signed by its Chairman or President and its Secretary,
dated as of the Effective Time, certifying that (i) all the representations and
warranties of Shelby County and SCSB are true, accurate and correct in all
material respects on and as of the Effective Time; (ii) all the covenants of
Shelby County and SCSB have been complied with from the date of this Agreement
through and as of the Effective
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Time; and (iii) Shelby County and SCSB has satisfied and fully complied
with all conditions necessary to make this Agreement effective as to it.
(h) Shareholders' Equity. As of the last day of the month immediately
preceding the Effective Time, the shareholders' equity of Shelby County on a
consolidated basis shall be at least Six Million Nine Hundred Thousand Dollars
($6,900,000) as reflected on Shelby County's financial statements as of such
date and as determined in accordance with generally accepted accounting
principles applied in a consistent basis. Such amount of shareholders' equity
shall be calculated after all liability accruals and payments have been made
for all legal, accounting, investment banking, environmental and other
professional or advisors' fees of Shelby County and SCSB and all expenses of
Shelby County and SCSB relating to the Transaction incurred as of and through
the date of such financial statements.
8.02. Shelby County. The obligations of Shelby County and SCSB to
consummate the Transaction is subject to the satisfaction and fulfillment of
each of the following conditions on or prior to the Effective Time, unless
waived in writing by Shelby County:
(a) Representations and Warranties at Effective Time. Each of the
representations and warranties of Blue River contained in this Agreement shall
be true, accurate and correct in all material respects on and as of the
Effective Time as though such representations and warranties had been made or
given at and as of the Effective Time.
(b) Covenants. Each of the covenants and agreements of Blue River shall
have been fulfilled or complied with from the date of this Agreement through
and as of the Effective Time.
(c) Deliveries at Closing. Shelby County and SCSB shall have received
from Blue River at the Closing the items and documents, in form and content
reasonably satisfactory to Shelby County, listed in Section 11.02(a) hereof.
(d) Regulatory Approvals. All appropriate orders, consents,
approvals and clearances from all regulatory agencies and governmental
authorities whose orders, consents, approvals or clearances are required by law
for consummation of the Transaction shall have been obtained.
(e) Shareholder Approvals. The shareholders of Blue River and Shelby
County shall have approved and adopted this Agreement as required by applicable
law and their respective Articles of Incorporation.
(f) Fairness Opinion. Shelby County shall have received the Fairness
Opinion by the date of the Proxy Statement. The obligations of Shelby County
and SCSB to consummate the Transaction are not subject to or conditioned upon
any update to, supplement to or bring-down of the Fairness Opinion or the
issuance of another opinion stating that the Conversion Price is fair to the
shareholders of Shelby County from a financial point of view.
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(g) Officers' Certificate. Blue River shall have delivered to Shelby
County and SCSB a certificate signed by its Chairman or President and its
Secretary, dated as of the Effective Time, certifying that (i) all the
representations and warranties of Blue River are true, accurate and correct in
all material respects on and as of the Effective Time; (ii) all the covenants
of Blue River have been complied with from the date of this Agreement through
and as of the Effective Time; and (iii) Blue River has satisfied and fully
complied with all conditions necessary to make this Agreement effective as to
it.
SECTION 9
TERMINATION OF MERGER
9.01. Manner of Termination. This Agreement and the Transaction may be
terminated at any time prior to the Effective Time by written notice delivered
by Blue River to Shelby County, or by Shelby County to Blue River, as follows:
(a) By Blue River or Shelby County, if:
(i) the Merger contemplated by this Agreement has not been
consummated by August 31, 1998; provided, however, that
Blue River may extend such date for up to sixty (60) days,
solely for the purpose of obtaining regulatory approvals
contemplated by Section 8.01(e) hereof and Section 8.02(d)
hereof; or
(ii) the respective Boards of Directors of Blue River, Shelby
County and SCSB mutually agree to terminate this Agreement.
(b) By Blue River, if:
(i) any item, event or information set forth in any supplement,
amendment or update to the Disclosure Schedule has had
or would be expected to have, in the reasonable discretion
of Blue River, a material adverse effect on the business,
prospects, assets, capitalization, financial condition
or results of operations of Shelby County or SCSB, whether
individually or on a consolidated basis, or Shelby Group
or First Tier on a consolidated basis with Shelby County; or
(ii) there has been a misrepresentation or a breach of
any warranty by or on the part of Shelby County or SCSB in
their representations and warranties set forth in this
Agreement which has had or would be expected to have, in the
reasonable discretion of Blue River, a material adverse
effect on the business, prospects, assets, capitalization,
financial condition or results of operations of Shelby
County or SCSB, whether individually or on a consolidated
basis, or Shelby Group or First Tier on a consolidated basis
with Shelby County;
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provided, however, that in the event of any inaccuracy
in the representations and warranties contained in Section
4.03 hereof relative to the number of issued and outstanding
shares of Shelby County Common Stock, SCSB Common Stock,
Shelby Group Common Stock or First Tier Common Stock, then
Blue River shall have the absolute right in its discretion
to terminate this Agreement without regard to the
materiality of any such inaccuracy; or
(iii) there has been a material breach of or a failure to comply
in all material respects with any covenant set forth in
this Agreement by or on the part of Shelby County or SCSB;
provided, however, that the covenants set forth in Sections
6.01, 6.02, 6.03(a)(i), (ii), (iii), (iv), (v), (vi), (vii),
(ix), (xi), (xv), (xvi), (xix), (xxi), (xxii), (xxiv),
(xxv), (xxvi) and (xvii), 6.05, 6.07 and 6.11 shall be
fully complied with by Shelby County and SCSB without regard
to materiality, except for any materiality qualification
set forth in such Sections; or
(iv) Blue River shall reasonably determine that the
Transaction has become inadvisable or impracticable by
reason of commencement or threat of any claim, litigation or
proceeding against Blue River, Shelby County, SCSB, Shelby
Group, or First Tier or any director or officer of any of
such entities (A) relating to this Agreement or the
Transaction or (B) which is likely to have a material
adverse effect on the business, prospects, assets,
capitalization, financial condition or results of operations
of Shelby County or SCSB, whether individually or on a
consolidated basis, or Shelby Group or First Tier on a
consolidated basis with Shelby County, or of Blue River; or
(v) there has been a material adverse change in the
business, prospects, assets, capitalization, financial
condition or results of operations of Shelby County or SCSB,
whether individually or on a consolidated basis, or Shelby
Group or First Tier on a consolidated basis with Shelby
County, at any time as compared to that in existence as of
September 30, 1997; or
(vi) Trident has not issued, by the date of the Proxy
Statement, its written opinion stating that the Conversion
Price is fair to the shareholders of Shelby County from a
financial point of view.
(c) By Shelby County, if:
(i) there has been a misrepresentation or a breach of
any warranty by or on the part of Blue River in its
representations and warranties set forth in this Agreement
which has had or would be expected to have, in the
reasonable discretion of Shelby County, a material adverse
effect on the business, assets, capitalization, financial
condition or results of operation of Blue River; or
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(ii) there has been a breach of or failure to comply
with any covenant set forth in this Agreement by or on the
part of Blue River; or
(iii) Blue River does not receive, by February 20, 1998, a letter
of intent or other similar document from Xxxxx & Co.
regarding its intent to act as the principal underwriter
in the IPO; or
(iv) Xxxxx & Co. withdraws or terminates its letter of intent
or other similar document relating to the IPO (except
in connection with the execution of an underwriting
agreement); provided, however, that before Shelby County may
exercise its right to terminate this Agreement pursuant to
this Section 9.01(c)(iv), Blue River shall have thirty (30)
days from the date of such withdrawal to obtain a letter of
intent or similar document from another investment banker
with respect to the intent of such other investment banker
to act as the principal underwriter in the IPO.
9.02. Effect of Termination. Upon termination by written notice, this
Agreement shall be of no further force or effect, and there shall be no further
obligations or restrictions on future activities on the part of Blue River,
Shelby County, SCSB and their respective directors, officers, employees, agents
and shareholders, except as provided in compliance with the confidentiality
provisions of this Agreement set forth in Section 6.08 and Section 7.05 hereof,
for the payment of the Termination Fee as provided by Section 7.08 hereof and
for the payment of expenses set forth in Section 12.09 hereof; provided,
however, the damages of Shelby County and SCSB relating to this Agreement and
the Transaction shall be limited solely to the Termination Fee; provided,
further, if such termination was the result of an intentional breach by Shelby
County or SCSB of any representation, warranty, covenant or other provision in
this Agreement, or an intentional act or omission by Shelby County or SCSB
which resulted in any representation, warranty, covenant or other provision in
this Agreement to be breached, Shelby County and SCSB shall be liable to Blue
River for damages and all costs and expenses incurred in connection with the
preparation, negotiation and execution of this Agreement, including, but not
limited to, reasonable attorneys' fees and disbursements, reasonable fees and
disbursements of accountants and tax advisors, and reasonable fees and costs of
environmental consultants. In the event that this Agreement is terminated
pursuant to this Section 9, the parties hereto each agree that Xxxxx & Co. and
any other investment banking firm engaged by Blue River shall have no liability
relating to the failure of Blue River to fulfill the conditions contemplated by
Section 8.01(d) hereof.
SECTION 10
EFFECTIVE TIME OF THE MERGER
Upon the terms and subject to the conditions specified in this Agreement,
the Merger shall become effective at the time specified in the Articles of
Merger of Shelby County with and into Blue River as filed with the Indiana
Secretary of State ("Effective Time"). The Effective Time shall occur not
later than the last business day of the month following (a) the fulfillment of
all conditions
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precedent to the Transaction set forth in Section 8 hereof, and (b) the
expiration of all waiting periods in connection with the regulatory
applications filed for the approval of the Transaction. The Conversion shall
be effective at the time specified in the Articles of Conversion of SCSB into
Shelby County Bank as filed with the Indiana Department of Financial
Institutions.
SECTION 11
CLOSING
11.01. Closing Date and Place. So long as all conditions precedent set
forth in Section 8 have been satisfied and fulfilled, the closing of the
Transaction ("Closing") shall take place on the Effective Time at the offices
of Xxxxx XxXxxxx Xxxxxxxxx & Xxxxxxxx in Indianapolis, Indiana.
11.02. Deliveries. (a) At the Closing, Blue River shall deliver to Shelby
County the following:
(i) an opinion of its counsel dated as of the Effective Time
and substantially in the form set forth in Exhibit B
attached hereto;
(ii) the officers' certificate contemplated by Section
8.02(g) hereof;
(iii) copies of all approvals by government regulatory
agencies necessary to consummate the Transaction;
(iv) copies of the resolutions of the Board of Directors
of Blue River and the shareholders of Blue River, if
necessary, certified by the President or Secretary of Blue
River, relative to the approval of this Agreement and the
Merger; and
(v) such other documents as Shelby County or its legal counsel
may reasonably request.
(b) At the Closing, Shelby County shall deliver to Blue River the
following:
(i) an opinion of its counsel dated as of the Effective Time
and substantially in the form set forth in Exhibit C
attached hereto;
(ii) the officers' certificate contemplated by Section
8.01(g) hereof;
(iii) a list of Shelby County's shareholders as of the Effective
Time certified by the President and Secretary of Shelby
County;
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(iv) copies of the resolutions adopted by the Board of Directors
and shareholders of Shelby County, certified by its Chairman
or President and Secretary, relative to the approval of this
Agreement and the Merger;
(v) copies of resolutions adopted by the Board of Directors and
sole shareholder of SCSB, certified by its Chairman or
President and Secretary, relative to the approval of this
Agreement, the Conversion and the Plan of Conversion; and
(vi) such other documents as Blue River or its legal counsel may
reasonably request.
SECTION 12
MISCELLANEOUS
12.01. Effective Agreement. This Agreement shall be binding upon and
inure to the benefit of the respective parties hereto and their respective
successors and assigns; provided, however, that this Agreement may not be
assigned by any party hereto without the prior written consent of the other
parties hereto. The representations, warranties, covenants and agreements
contained in this Agreement are for the sole benefit of the parties hereto and
their successors and assigns, and they shall not be construed as conferring any
rights on any other persons.
12.02. Waiver; Amendment. (a) Blue River or Shelby County may by an
instrument in writing: (i) extend the time for the performance of or otherwise
amend any of the covenants, conditions or agreements of the other parties to
this Agreement (other than SCSB with respect to Shelby County); (ii) waive any
inaccuracies in the representations or warranties of the other parties
contained in this Agreement or in any document delivered pursuant hereto or
thereto (other than SCSB with respect to Shelby County); (iii) waive the
performance by the other parties (other than SCSB with respect to Shelby
County) of any of the covenants or agreements to be performed by it or them
under this Agreement; or (iv) waive the satisfaction or fulfillment of any
condition, the nonsatisfaction or nonfulfillment of which is a condition to the
right of the party so waiving to consummate the Transaction. The waiver by any
party hereto of a breach of or noncompliance with any provision of this
Agreement shall not operate or be construed as a continuing waiver or a waiver
of any other or subsequent breach or noncompliance hereunder.
(b) This Agreement may be amended, modified or supplemented only by a
written agreement executed by the parties hereto and, if such amendment,
modification or supplement occurs after the approval of the Agreement by the
shareholders of Shelby County, only in a manner that will not materially and
adversely affect the rights of Shelby County's shareholders hereunder without
obtaining their approval thereof.
12.3. Notices. All notices, requests and other communications
hereunder shall be in writing (which shall include telecopier communication)
and shall be deemed to have been duly given if delivered by hand and receipted
for, sent by certified United States Mail, return receipt requested,
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first class postage pre-paid, delivered by overnight express receipted
delivery service or telecopied if confirmed immediately thereafter by also
mailing a copy of such notice, request or other communication by certified
United States Mail, return receipt requested, with First Class postage prepaid
as follows:
If to Blue River: with a copy to (which shall not
constitute notice):
Blue River Bancshares, Inc. Xxxxx XxXxxxx Xxxxxxxxx & Xxxxxxxx
ATTN: Xxxxxx X. Xxxx, President ATTN: Xxxxxxxx X. Xxxxxx, Esq.
000 Xxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxxx Square, Suite 2800
Shelbyville, Indiana 46176 Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
If to Shelby County or SCSB: with a copy to (which shall not
constitute notice):
Shelby County Bancorp Bose XxXxxxxx & Xxxxx
ATTN: Xxxxx X. Xxxxxxx, Chairman ATTN: Xxxxx X. Xxxxxxx, Esq.
00 Xxxx Xxxxxxxxxx Xxxxxx 2700 First Indiana Building
P. O. Box 438 135 South Pennsylvania Street
Shelbyville, Indiana 46176 Xxxxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
or such substituted address or person as any of them given to the other in
writing. All such notices, requests or other communications shall be
effective: (a) if delivered by hand, when delivered; (b) if mailed in the
manner provided herein, three (3) business days after deposit with the United
States Postal Service; (c) if delivered by overnight express delivery service,
on the next business day after deposit with such service; and (d) if by
telecopier, on the next business day if also confirmed by mail in the manner
provided herein.
12.04. Headings. The headings in this Agreement have been inserted solely
for ease of reference and should not be considered in the interpretation or
construction of this Agreement.
12.05. Severability. In case any one or more of the provisions
contained herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision or
provisions had never been contained herein.
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12.06. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same instrument.
12.07. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Indiana and applicable federal
laws.
12.08. Entire Agreement. This Agreement supersedes all other prior or
contemporaneous understandings, commitments, representations, negotiations or
agreements, whether oral or written, between or among the parties hereto
relating to the Transaction and the matters contemplated herein (including, but
not limited to, the Memorandum dated December 5, 1997 from Blue River to the
Board of Directors of Shelby County and SCSB) and constitutes the entire
agreement among the parties hereto relating to the subject matter hereof,
except with respect to the Confidentiality Agreement dated December 9, 1997 by
and between Blue River and Shelby County, the Lock-up Agreement and the
Termination Agreement, each of which shall remain in full force and effect.
The parties hereto agree that each party and its counsel reviewed and revised
this Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any amendments or exhibits hereto.
12.09. Expenses. The parties hereto shall each pay their respective
expenses incidental to the Transaction.
12.10. Certain References. Whenever in this Agreement a singular word is
used, it also shall include the plural wherever required by the context and
vice-versa. Except expressly stated otherwise, all references in this
Agreement to periods of days shall be construed to refer to calendar, not
business, days. The term "business day" shall mean any day except Saturday and
Sunday when SCSB, is open for the transaction of business.
12.11. Disclosure Schedule. The Disclosure Schedule attached hereto is
intended to be and hereby is specifically made a part of this Agreement, and
the information contained in the Disclosure Schedule shall be deemed to be
representations and warranties of Shelby County and SCSB.
* * *
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IN WITNESS WHEREOF, Blue River, Shelby County and SCSB have entered into,
executed and delivered this Agreement as of the day and year first above
written.
BLUE RIVER BANCSHARES, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Xxxxxx X. Xxxx, President
ATTEST:
By: /s/ D. Xxxxxx Xxxxxxx
-----------------------------
D. Xxxxxx Xxxxxxx, Secretary
SHELBY COUNTY BANCORP
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Xxxxx X. Xxxxxxx, Chairman
ATTEST:
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx, Secretary
SHELBY COUNTY SAVINGS BANK, FSB
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Xxxxx X. Xxxxxxx, Chairman
ATTEST:
By: /s/ Xxxxx X. Xxxxx
----------------------------
Xxxxx X. Xxxxx, Secretary
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Each of the undersigned directors of Shelby County hereby (a) agrees in
his capacity as a director to recommend to Shelby County's shareholders the
approval of this Agreement and the Merger in accordance with Section 6.01
hereof, and (b) agrees in his individual capacity to vote his shares of Shelby
County Common Stock that are registered in his personal name (and agrees to use
his reasonable efforts to cause all additional shares of Shelby County Common
Stock owned jointly with any other person or by his spouse or over which he has
voting influence or control to be voted) in favor of this Agreement and the
Merger. In addition, each of the undersigned directors hereby agrees not to
make any transfers of shares of Shelby County Common Stock with the purpose of
avoiding his agreements set forth in the preceding sentence.
Dated this 5th day of February, 1998.
/s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxxxx
/s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxx
------------------------------
Xxxx X. Xxxxxx
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