The Holding Company Merger – Conversion of Shares. (a) At the time of filing with the Indiana Secretary of State and the Kentucky Secretary of State of appropriate Articles of Merger with respect to the Holding Company Merger, or at such later time as shall be specified by such Articles of Merger (the "Effective Time"), all of the shares of Citizens First Common that, immediately prior to the Effective Time, are issued and outstanding (except for "Dissenting Shares" as provided in Section 1.03(j) below and shares of Citizens First Common held in the CFB 401(k) Plan (as defined in Section 4.11 below)) shall, by virtue of the Merger and without any action on the part of the holders thereof, be converted in accordance with subsections (b) and (c) of this Section 1.03 into the right to receive, subject to the provisions set forth in this Agreement, (i) a cash payment, and (ii) newly-issued shares of GABC Common (together, such cash, GABC Common and the "401(k) Cash Payment" (as defined below) is sometimes collectively referred to in this Agreement as the "Merger Consideration") pursuant to this Section 1.03. (b) Each record holder of Citizens First Common (other than Dissenting Shares and shares of Citizens First Common held in the CFB 401(k) Plan) immediately prior to the Effective Time shall be entitled to receive from GABC for each of such holder's shares of Citizens First Common then held of record by such record holder (i) a cash payment in the amount of Five and 80/100 Dollars ($5.80) or such lesser amount, but not less than zero, as may be determined by operation of subsection (c) of this Section 1.03 (the "Cash Payment"), and (ii) 0.6629 (the "Exchange Ratio") of a newly-issued share of GABC Common. Kentucky Trust Company, as the administrator and record holder of shares of Citizens First Common held in the CFB 401(k) Plan, shall be entitled to receive from GABC on the business day on which the Effective Time occurs, on behalf of the beneficial owners of shares of Citizens First Common held therein, a cash payment equal to Five and 80/100 Dollars ($5.80) plus the Exchange Ratio multiplied by the greater of: (i) the Average GABC Closing Price (as defined in Section 1.03(f)) or (ii) the closing trading price of GABC Common on the trading day that is the first business day preceding the Closing Date, as reported by Bloomberg L.P. (or, if not reported therein, in another authoritative source mutually selected by the parties), in exchange for each share of Citizens First Common held immediately prior to the Effective Time, or such lesser amount, but not less than zero, as may be determined by operation of subsection (c) of this Section 1.03 (the "401(k) Cash Payment"). The Exchange Ratio shall be subject to adjustment in accordance with the provisions of Section 1.03(i) of this Agreement. (c) If Citizens First's Effective Time Book Value (as defined by and calculated in accordance with this subparagraph) shall be less than the Target Book Value (as defined below) (the dollar amount of such shortfall is referred to in this Agreement as the "Shortfall"), then each of (i) the Cash Payment component of the Merger Consideration, payable with respect to each share of Citizens First Common that is eligible to receive such Cash Payment, and (ii) the 401(k) Cash Payment component of the Merger Consideration, payable with respect to each share of Citizens First Common that is eligible to receive such 401(k) Cash Payment, shall be reduced by a per share amount (rounded to the nearest whole cent) equal to the quotient obtained by dividing the dollar amount of the Shortfall by (x) the number of shares of Citizens First Common outstanding that is eligible to receive a Cash Payment, plus (y) the number of shares of Citizens First Common outstanding that is eligible to receive a 401(k) Cash Payment (the "Shortfall Adjustment"). For purposes of this subparagraph (c), "Effective Time Book Value" shall be calculated as the estimated shareholders' equity of Citizens First as of the Effective Time determined in accordance with United States generally accepted accounting principles ("GAAP") to the reasonable satisfaction of GABC, to be delivered by Citizens First to GABC no later than five (5) business days prior to the Closing Date, and which shall reflect an allowance for loan and lease losses calculated in a manner consistent with CF Bank's historical practices. For purposes of computing, "Effective Time Book Value," in no event shall the assumed provision for loan and lease losses be less than zero for any period after September 30, 2018. For the purposes of this subparagraph (c), "Target Book Value" shall be an amount equal to: (1) Forty-Eight Million Two Hundred Fifty Thousand Dollars ($48,250,000); (2) adjusted (A) downward by the product of Thirteen Thousand Dollars ($13,000) (the "Per Diem Factor") and the number of days the Effective Time is before July 1, 2019, or (B) upward by the product of the Per Diem Factor and the number of days the Effective Time is after July 1, 2019; and (3) less dividends paid after July 1, 2019. Notwithstanding the foregoing, the "Effective Time Book Value" shall reflect all after-tax accruals for all of Citizens First's and CF Bank's fees, expenses and costs relating to the Mergers (regardless of whether GAAP would require that such obligations be accrued as liabilities as of the Effective Time), including but not limited to those incurred by Citizens First or CF Bank in negotiating the terms of the Mergers, preparing, executing and delivering this Agreement, change of control or success bonuses, if any, to officers or directors as a result of the Mergers, additional accruals required pursuant to any director deferred compensation agreements, if any, obtaining shareholder and regulatory approvals, and closing the Mergers, costs of taking reasonable remedial and corrective actions and measures pursuant to Section 4.05, costs to cure or remove any material defects that GABC deems unacceptable other than Standard Permitted Exceptions pursuant to Section 4.07, and including fees, expenses and costs that might not be deemed earned or become payable until after the Effective Time, such as, but not limited to, investment banking fees and similar payments for services performed prior to the Effective Time that may not be deemed earned unless and until the Mergers have become effective; provided, however, that in calculating the Effective Time Book Value for purposes of this Section, none of the following will be considered: (1) gains or losses on sales of securities by Citizens First or CF Bank incurred after September 30, 2018; (2) any increase in assets or decrease in liabilities resulting from the issuance or redemption of shares of capital stock or other equity interests of Citizens First, including, but not limited to, Citizens First making the Performance Unit Cash Payment set forth in subparagraph (d) below; (3) any changes to the value of Citizens First's investment portfolio attributed to ASC 320, whether upward or downward from September 30, 2018 until the measurement date; (4) any fees payable upon the termination of any contracts (including the Citizens First data processing contracts) set forth on Section 2.18 of the Citizens First Disclosure Schedule or otherwise; (5) expenses relating to any litigation arising out of or in connection with this Agreement, the Mergers or any of the transactions contemplated hereby; and (6) severance and other payments pursuant to Section 5.06(e) of this Agreement (exclusive of any change of control payments, success bonuses or settlement payments payable to officers or directors as a result of the Mergers). (d) Immediately prior to the Closing, Citizens First shall make cash payments (collectively, the "Performance Unit Cash Payment") to the holders of outstanding performance units ("Performance Units") granted under the Citizens First Corporation 2015 Incentive Compensation Plan (the "Citizens First Incentive Plan"), in lieu of distributing Citizens First Common shares to such holders, in each case according to the applicable award agreement terms. For purposes of any performance year that will be shortened as a result of the Mergers, Citizens First performance shall be based upon the maximum "Target" payout level. Upon receipt of their Performance Unit Cash Payment, a holder's rights under their Performance Units and under the related award agreement shall terminate and be of no further force or effect. (e) The shares of GABC Common issued and outstanding immediately prior to the Effective Time shall continue to be issued and outstanding shares of GABC. (f) No fractional shares of GABC Common shall be issued and, in lieu thereof, holders of shares of Citizens First Common who would otherwise be entitled to a fractional share interest (after taking into account all shares of Citizens First Common held by such holder) shall be paid an amount in cash equal to the product of such fractional share and the volume weighted average of the trading prices of GABC Common, rounded to the nearest cent, during the twenty (20) consecutive trading days ended on the trading day that is the second business day preceding the Closing Date, as reported by Bloomberg L.P. (or, if not reported therein, in another authoritative source mutually selected by the parties) (the "Average GABC Closing Price"). (g) At the Effective Time, each share of Citizens First Common, if any, held in the treasury of Citizens First or by any direct or indirect subsidiary of Citizens First (other than shares held in trust accounts for the benefit of others or in other fiduciary, nominee or similar capacities) immediately prior to the Effective Time shall be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor. (h) At the Effective Time, all of the outstanding shares of Citizens First Common, by virtue of the Holding Company Merger and without any action on the part of the holders thereof, shall no longer be outstanding and shall be canceled and retired and shall cease to exist, and each holder of any certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Citizens First Common ("Certificates") shall thereafter cease to have any rights with respect to such shares, except: (i) the right of such holders to receive, without interest, the cash payment and the certificates for the shares of GABC Common upon the surrender of such Certificate or Certificates in accordance with Section 1.07; or (ii) the right to receive payment of the fair value of Dissenting Shares in accordance with the provisions of the KBCA and Section 1.03(j). (i) If (i) GABC shall hereafter declare a stock dividend or other distribution of property or securities (other than a cash dividend) upon the GABC Common or shall subdivide, split up, reclassify or combine the GABC Common, and (ii) the record date for such transaction is prior to the date on which the Effective Time occurs, appropriate adjustment or adjustments will be made to the Exchange Ratio. (j) Shares of Citizens First Common which are issued and outstanding immediately prior to the Effective Time and which are held by persons who have properly exercised, and not withdrawn or waived, appraisal rights with respect thereto ("Dissenting Shares") in accordance with the KBCA will not be converted into the right to receive the Merger Consideration, but will be entitled in lieu thereof, to receive payment of the fair value of such Dissenting Shares in accordance with the provisions of the KBCA unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under the KBCA. If, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses such right, such shares of Citizens First Common will thereupon be treated as if they had been converted at the Effective Time into the right to receive the Merger Consideration, without any interest thereon. Citizens First will give GABC prompt notice of any notices of intent to demand payment received by Citizens First with respect to shares of Citizens First Common. Prior to the Effective Time, Citizens First will not, except with the prior written consent of GABC, make any payment with respect to, or settle or offer to settle, any such demands.
Appears in 2 contracts
Samples: Merger Agreement (Citizens First Corp), Merger Agreement (German American Bancorp, Inc.)
The Holding Company Merger – Conversion of Shares. (a) At the time of filing with the Indiana Secretary of State and the Kentucky Secretary of State of appropriate Articles of Merger with respect to the Holding Company Merger, or at such later time as shall be specified by such Articles of Merger (the "“Effective Time"”), all of the shares of Citizens First RVB Common that, that immediately prior to the Effective Time, Time are issued and outstanding (except for "Dissenting Shares" as provided in Section 1.03(j) below and shares of Citizens First Common held in the CFB 401(k) Plan (as defined in Section 4.11 below)) shall, by virtue of the Merger and without any action on the part of the holders thereof, be converted in accordance with subsections (b) and (c) of this Section 1.03 into the right to receive, subject to the provisions set forth in this Agreement, receive (i) if applicable, a cash payment, and (ii) newly-issued shares of GABC Common (together, such cash, cash and GABC Common and the "401(k) Cash Payment" (as defined below) is sometimes collectively referred to in this Agreement as the "“Merger Consideration"”) pursuant to this Section 1.03.
(b) Each record holder of Citizens First RVB Common (other than Dissenting Shares and shares of Citizens First Common held in the CFB 401(k) Plan) immediately prior to the Effective Time shall be entitled to receive from GABC for each of such holder's shares of Citizens First ’s RVB Common then held of record by such record holder (i) a cash payment in the amount of Five Nine and 80/100 90/100 Dollars ($5.809.90) or such lesser amount, but not less than zero, as may be determined by operation of subsection (c) of this Section 1.03 1.03) (the "“Cash Payment"”), and (ii) 0.6629 0.770 (the "“Exchange Ratio"”) of a newly-issued share of GABC Common. Kentucky Trust Company, as the administrator and record holder of shares of Citizens First Common held in the CFB 401(k) Plan, shall be entitled to receive from GABC on the business day on which the Effective Time occurs, on behalf of the beneficial owners of shares of Citizens First Common held therein, a cash payment equal to Five and 80/100 Dollars ($5.80) plus the Exchange Ratio multiplied by the greater of: (i) the Average GABC Closing Price (as defined in Section 1.03(f)) or (ii) the closing trading price of GABC Common on the trading day that is the first business day preceding the Closing Date, as reported by Bloomberg L.P. (or, if not reported therein, in another authoritative source mutually selected by the parties), in exchange for each share of Citizens First Common held immediately prior to the Effective Time, or such lesser amount, but not less than zero, as may be determined by operation of subsection (c) of this Section 1.03 (the "401(k) Cash Payment"). The Exchange Ratio shall be subject to adjustment in accordance with the provisions of Section 1.03(i1.03(j) of this Agreement.
(c) If Citizens First's RVB’s Effective Time Book Value (as defined by and calculated in accordance with this subparagraph) shall be less than Fifty-Three Million Two Hundred Fifty Thousand and 00/100 Dollars ($53,250,000) if the Target Book Value Closing Date is earlier than March 1, 2016 or less than Fifty-Three Million Eight Hundred Eighty-Three Thousand and 00/100 Dollars (as defined below$53,883,000.00) assuming the Closing Date is not earlier than March 1, 2016 (the dollar amount of amounts by which such shortfall target, as applicable, is not satisfied is referred to in this Agreement as the "“Shortfall"”), then each of (i) the Cash Payment component of the Merger Consideration, payable with respect to each RVB Common share of Citizens First Common that is eligible to receive such Cash Payment, and (ii) the 401(kCancellation Payment (as further described in Section 1.03(d) Cash Payment component of the Merger Considerationbelow), payable with respect to each share of Citizens First RVB Common that is eligible subject to receive such 401(kan Option (as further described in Section 1.03(d) Cash Payment, below) shall be reduced by a per share amount (rounded to the nearest whole cent) equal to the quotient obtained by dividing the dollar amount of the Shortfall by 2,552,762 (x) which is as of the date of this Agreement the number of RVB Common shares of Citizens First Common outstanding that is eligible to receive a Cash Payment, plus (y) the number of unissued RVB Common shares of Citizens First Common outstanding that is eligible to receive a 401(kpotentially issuable under the Options) Cash Payment (the "“Shortfall Adjustment"”). For purposes of this subparagraph (c), "“Effective Time Book Value" ” shall be calculated as the estimated shareholders' ’ equity of Citizens First RVB as of the end of the month prior to the Effective Time determined in accordance with United States generally accepted accounting principles ("“GAAP"”) to the reasonable satisfaction of GABC, to be delivered by Citizens First to GABC no later earlier than five three (53) business days prior to the Closing Date, Date and which shall reflect an allowance for loan and lease losses (the “Allowance”) calculated in a manner consistent with CF Bank's River Valley Financial’s historical practices. For purposes of computing, "Effective Time Book Value," in no event shall the assumed provision for loan and lease losses be less than zero for any period after September 30, 2018. For the purposes of this subparagraph (c), "Target Book Value" shall be an amount equal to: (1) Forty-Eight Million Two Hundred Fifty Thousand Dollars ($48,250,000); (2) adjusted (A) downward by the product of Thirteen Thousand Dollars ($13,000) (the "Per Diem Factor") and the number of days the Effective Time is before July 1, 2019, or (B) upward by the product of the Per Diem Factor and the number of days the Effective Time is after July 1, 2019; and (3) less dividends paid after July 1, 2019. Notwithstanding the foregoing, the "“Effective Time Book Value" ” shall reflect all after-tax accruals for all of Citizens First's RVB’s and CF Bank's any Subsidiary’s fees, expenses and costs relating to the Mergers (regardless of whether GAAP would require that such obligations be accrued as liabilities as of the Effective Time), including but not limited to those incurred by Citizens First RVB or CF Bank any Subsidiary in negotiating the terms of the Mergers, preparing, executing and delivering this Agreement, change of control or success bonuses, if any, severance payments payable to officers or directors as a result of the Mergers, additional accruals required pursuant to any director deferred compensation or employee salary continuation agreements, if any, obtaining shareholder and regulatory approvals, and closing the Mergers, costs of taking reasonable remedial and corrective actions and measures pursuant to Section 4.05, costs to cure or remove any material defects that GABC deems unacceptable other than Standard Permitted Exceptions pursuant to Section 4.07, and including fees, expenses and costs that might not be deemed earned or become payable until after the Effective Time, such as, but not limited to, investment banking fees and similar payments for services performed prior to the Effective Time that may not be deemed earned unless and until the Mergers have become effective; provided, however, that (1) no termination or withdrawal fees for RVB’s Pentegra Defined Benefit Plan for Financial Institutions (the “Pentegra Plan”) shall be accrued in determining the Effective Time Book Value, (2) any changes to the value of River Valley Financial’s investment portfolio attributed to ASC 320, whether upward or downward, from June 30, 2015 until the measurement date will not be considered in calculating the Effective Time Book Value for purposes of this Section, none of the following will be considered: (1) gains or losses on sales of securities by Citizens First or CF Bank incurred after September 30, 2018; (2) any increase in assets or decrease in liabilities resulting from the issuance or redemption of shares of capital stock or other equity interests of Citizens First, including, but not limited to, Citizens First making the Performance Unit Cash Payment set forth in subparagraph (d) below; (3) any changes to the value of Citizens First's investment portfolio attributed to ASC 320, whether upward or downward from September 30, 2018 until the measurement date; (4) any fees payable upon the termination of any contracts (including the Citizens First Xxxx Xxxxx data processing contracts) set forth other than those identified for termination in this Agreement will not be considered in calculating the Effective Time Book Value for purposes of this Section, and (4) gains on Section 2.18 sales of the Citizens First Disclosure Schedule or otherwise; (5) expenses relating to any litigation arising out of or in connection with this Agreement, the Mergers securities by RVB or any of Subsidiary incurred after June 30, 2015, will not be considered in calculating the transactions contemplated hereby; and (6) severance and other payments pursuant to Section 5.06(e) Effective Time Book Value for purposes of this Agreement (exclusive of any change of control payments, success bonuses or settlement payments payable to officers or directors as a result of the Mergers)Section.
(d) Immediately prior to To the Closing, Citizens First shall make cash payments (collectively, the "Performance Unit Cash Payment") to extent that the holders of outstanding performance units any options to purchase RVB Common granted by RVB ("Performance Units"“Options”) granted under RVB’s stock option plans (“RVB Stock Option Plans”) are then validly exercisable (except for the Citizens First Corporation 2015 Incentive Compensation Plan satisfaction of any minimum vesting requirement) by the holders thereof but have not been validly exercised on or before the Effective Time (“Cancelled Rights”), and subject to any action required by RVB’s Stock Option Committee and any consent required by any holder of a stock option, such Cancelled Rights (i) shall, at the Effective Time, be deemed to have been cancelled and shall no longer be deemed to represent the right to receive shares of RVB Common on any terms or conditions, and shall not be converted into the right to receive shares of GABC Common or other equity-based consideration pursuant to the Merger, and (ii) shall be deemed at all times at and after the Effective Time to represent only the right to receive, subject to compliance by the holders thereof with this Section 1.03(d), a cash payment in cancellation of the rights of the holders thereof (the "Citizens First Incentive Plan"“Cancellation Payment”). The Cancellation Payment for each stock option for a share of RVB Common shall be equal to an amount payable in cash equal to (i) $9.90 plus the Exchange Ratio multiplied by the Average GABC Closing Price (as defined in Section 1.03(f), in lieu adjusted for any Shortfall Adjustment under Section 1.03(c)), less (ii) the Option exercise price per share, and less (iii) any applicable withholding taxes (the “Cancellation Amount”). As a condition to its obligation to pay the Cancellation Payment to any holder of distributing Citizens First Common shares Cancelled Rights pursuant to this Section 1.03(d), GABC shall be entitled to require from each such holdersholder an agreement, in each case according form and substance reasonably acceptable to RVB, agreeing to accept such Cancellation Payment in complete cancellation, satisfaction and release of all claims of such holder in respect thereof (the “Cancellation Agreement”) plus the surrender of the original stock option agreement evidencing such unexercised Options (the “Cancellation Documentation”). It shall be a condition of payment of the Cancellation Payment that the Cancellation Agreement shall be properly executed and that the underlying stock option agreement that evidences the Cancelled Right shall be in proper form for cancellation and that the person requesting such Cancellation Payment shall pay to GABC any required transfer or other taxes or establish to the satisfaction of GABC that such tax has been paid or is not subject to withholding by GABC. Subject to the terms and conditions of such Cancellation Agreement, including, without limitation the prior completion of the Holding Company Merger, GABC shall be required to pay promptly the Cancellation Amount (without interest) to any such holder upon the delivery of such Cancellation Agreement and Cancellation Documentation to GABC at the principal offices of GABC in Jasper, Indiana, on any trading day after the date on which the Effective Time occurs, subject to applicable award agreement termsunclaimed property laws. For purposes If any holder of any performance year that an Option does not consent to the treatment of his or her Options under this Section 1.03(d), his or her Options will be shortened as a result converted to stock options to purchase the Merger Consideration or the value thereof in accordance with the terms of the Mergers, Citizens First performance shall be based upon the maximum "Target" payout level. Upon receipt of their Performance Unit Cash Payment, a holder's rights under their Performance Units and under the related award agreement shall terminate and be of no further force or effectapplicable RVB Stock Option Plan.
(e) The shares of GABC Common issued and outstanding immediately prior to the Effective Time shall continue to be issued and outstanding shares of GABC.
(f) No fractional shares of GABC Common shall be issued and, in lieu thereof, holders of shares of Citizens First RVB Common who would otherwise be entitled to a fractional share interest (after taking into account all shares of Citizens First RVB Common held by such holder) shall be paid an amount in cash equal to the product of such fractional share and the volume weighted average of the trading prices of GABC Common, rounded to the nearest cent, during the twenty (20) consecutive trading days ended on the trading day that is the second business day preceding the Closing Date, as reported by Bloomberg L.P. (or, if not reported therein, in another authoritative source mutually selected by the parties) (the "“Average GABC Closing Price"”).
(g) At the Effective Time, each share of Citizens First RVB Common, if any, held in the treasury of Citizens First RVB or by any direct or indirect subsidiary of Citizens First RVB (other than shares held in trust accounts for the benefit of others or in other fiduciary, nominee or similar capacities) immediately prior to the Effective Time shall be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.
(h) Subject to any action required by RVB’s Stock Option Committee and any consent required by any holder of restricted stock, shares of restricted stock granted under the River Valley Bancorp Recognition and Retention Plan and Trust and the River Valley Bancorp 2014 Stock Option and Incentive Plan that are subject to transfer restrictions immediately prior to the Closing shall have those restrictions lapse at Closing and such shares shall convert into the Merger Consideration as provided in this Section 1.03.
(i) At the Effective Time, all of the outstanding shares of Citizens First RVB Common, by virtue of the Holding Company Merger and without any action on the part of the holders thereof, shall no longer be outstanding and shall be canceled and retired and shall cease to exist, and each holder of any certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Citizens First RVB Common ("“Certificates"”) shall thereafter cease to have any rights with respect to such shares, except: (i) except the right of such holders to receive, without interest, the cash payment and the certificates for the shares of GABC Common upon the surrender of such Certificate or Certificates in accordance with Section 1.07; or (ii) the right to receive payment of the fair value of Dissenting Shares in accordance with the provisions of the KBCA and Section 1.03(j).
(ij) If (i) GABC shall hereafter declare a stock dividend or other distribution of property or securities (other than a cash dividend) upon the GABC Common or shall subdivide, split up, reclassify or combine the GABC Common, and (ii) the record date for such transaction is prior to the date on which the Effective Time occurs, appropriate adjustment or adjustments will be made to the Exchange Ratio.
(jk) Shares Shareholders of Citizens First Common which RVB are issued and outstanding immediately prior not entitled to dissenters’ rights under Indiana Code § 23-1-44, as amended, because the Effective Time and which are held by persons who have properly exercised, and not withdrawn or waived, appraisal rights with respect thereto ("Dissenting Shares") in accordance with the KBCA will not be converted into the right to receive the Merger Consideration, but will be entitled in lieu thereof, to receive payment of the fair value of such Dissenting Shares in accordance with the provisions of the KBCA unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under the KBCA. If, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses such right, such shares of Citizens First RVB Common will thereupon be treated as if they had been converted at the Effective Time into the right to receive the Merger Consideration, without any interest thereon. Citizens First will give GABC prompt notice of any notices of intent to demand payment received by Citizens First with respect to shares of Citizens First Common. Prior to the Effective Time, Citizens First will not, except with the prior written consent of GABC, make any payment with respect to, or settle or offer to settle, any such demandsare traded on The NASDAQ Capital Market.
Appears in 2 contracts
Samples: Merger Agreement (River Valley Bancorp), Merger Agreement (German American Bancorp, Inc.)
The Holding Company Merger – Conversion of Shares. (a) At the time of filing with the Indiana Secretary of State and the Kentucky Secretary of State of appropriate Articles of Merger with respect to the Holding Company Merger, or at such later time as shall be specified by such Articles of Merger (the "“Effective Time"”), all of the shares of Citizens First CUB Common that, immediately prior to the Effective Time, are issued and outstanding (except for "“Dissenting Shares" ” as provided in Section 1.03(j) below and shares of Citizens First Common held in the CFB 401(k) Plan (as defined in Section 4.11 below)) shall, by virtue of the Merger and without any action on the part of the holders thereof, be converted in accordance with subsections (b) and (c) of this Section 1.03 into the right to receive, subject to the provisions set forth in this Agreement, (i) a cash payment, and (ii) newly-issued shares of GABC Common (together, such cash, cash and GABC Common and the "401(k) Cash Payment" (as defined below) is sometimes collectively referred to in this Agreement as the "“Merger Consideration"”) pursuant to this Section 1.03.
(b) Each record holder of Citizens First CUB Common (other than Dissenting Shares and shares of Citizens First Common held in the CFB 401(k) PlanShares) immediately prior to the Effective Time shall be entitled to receive from GABC for each of such holder's ’s shares of Citizens First CUB Common then held of record by such record holder (i) a cash payment in the amount of Five Thirteen and 80/100 44/100 Dollars ($5.8013.44) or such lesser amount, but not less than zero, as may be determined by operation of subsection (c) of this Section 1.03 (the "“Cash Payment"”), and (ii) 0.6629 0.7739 (the "“Exchange Ratio"”) of a newly-issued share of GABC Common. Kentucky The Citizens Union Bancorp of Shelbyville, Inc. Employee Stock Ownership Trust Company(with 401(k) Provisions), as the administrator and record holder of shares of Citizens First CUB Common held in the CFB Citizens Union Bancorp of Shelbyville, Inc. Employee Stock Ownership Plan (with 401(k) PlanProvisions) (the “401(k) and ESOP”), shall be entitled to receive from GABC on the business day on which the Effective Time occurs, on behalf of the beneficial owners of shares of Citizens First CUB Common held therein, a cash payment equal to Five and 80/100 Dollars ($5.80) plus the Exchange Ratio multiplied by the greater of: (i) the Average GABC Closing Price (as defined in Section 1.03(f)) or (ii) the closing trading price of GABC Common on the trading day that is the first business day preceding the Closing Date, as reported by Bloomberg L.P. (or, if not reported therein, in another authoritative source mutually selected by the parties), in exchange for each share of Citizens First Common held immediately prior to the Effective Time, or such lesser amount, but not less than zero, as may be determined by operation of subsection (c) of this Section 1.03 (the "401(k) Cash Payment")Merger Consideration. The Exchange Ratio shall be subject to adjustment in accordance with the provisions of Section 1.03(i) of this Agreement.
(c) If Citizens First's CUB’s Effective Time Book Value (as defined by and calculated in accordance with this subparagraph) shall be less than the Target Book Value (as defined below) (the dollar amount of such shortfall is referred to in this Agreement as the "“Shortfall"”), then each of (i) the Cash Payment component of the Merger Consideration, payable with respect to each share of Citizens First CUB Common that is eligible to receive such Cash Payment, and (ii) the 401(kCancellation Payment (as further described in Section 1.03(d) Cash Payment component of the Merger Considerationbelow), payable with respect to each share of Citizens First CUB Common that is eligible subject to receive such 401(kan Option (as further described in Section 1.03(d) Cash Paymentbelow), shall be reduced by a per share amount (rounded to the nearest whole cent) equal to the quotient obtained by dividing the dollar amount of the Shortfall by (x) the number of shares of Citizens First CUB Common outstanding that is eligible to receive a Cash Payment, plus (y) the number of unissued shares of Citizens First CUB Common outstanding subject to an Option that is eligible to receive a 401(k) Cash Cancellation Payment (the "“Shortfall Adjustment"”). For purposes of this subparagraph (c), "“Effective Time Book Value" ” shall be calculated as the estimated shareholders' ’ equity of Citizens First CUB as of the Effective Time determined in accordance with United States generally accepted accounting principles ("“GAAP"”) to the reasonable satisfaction of GABC, to be delivered by Citizens First CUB to GABC no later than five (5) business days prior to the Closing Date, and which shall reflect an allowance for loan and lease losses calculated in a manner consistent with CF Bank's Citizens Union’s historical practices. For purposes of computing, "“Effective Time Book Value," ” in no event shall the assumed provision for loan and lease losses be less than zero for any period after September April 30, 20182021. For the purposes of this subparagraph (c), "“Target Book Value" ” shall be an amount equal to: (1) Fortyto One Hundred Three Million Three Hundred Ninety-Eight Million Two Hundred Fifty Four Thousand and 00/100 Dollars ($48,250,000); (2103,394,000.00) adjusted (A1) downward by the product of Thirteen Twenty-Eight Thousand and 00/100 Dollars ($13,00028,000.00) (the "“Per Diem Factor"”) and the number of days the Effective Time is before July January 1, 20192022, or (B2) upward by the product of the Per Diem Factor and the number of days the Effective Time is after July January 1, 2019; and (3) less dividends paid after July 1, 20192022. Notwithstanding the foregoing, the "“Effective Time Book Value" ” shall reflect all after-tax accruals for all of CUB’s and Citizens First's and CF Bank's Union’s fees, expenses and costs relating to the Mergers (regardless of whether GAAP would require that such obligations be accrued as liabilities as of the Effective Time), including but not limited to those incurred by CUB or Citizens First or CF Bank Union in negotiating the terms of the Mergers, preparing, executing and delivering this Agreement, obtaining shareholder and regulatory approvals, and closing the Mergers, retention bonuses authorized by Section 4.01(a)(vi) of this Agreement, change of control or success bonuses, if any, to officers or directors as a result of the Mergers, additional accruals required pursuant to any director deferred compensation agreements, if any, obtaining shareholder and regulatory approvals, and closing the Mergers, costs of taking reasonable remedial and corrective actions and measures pursuant to Section 4.05, costs to cure or remove any material defects that GABC deems unacceptable other than Standard Permitted Exceptions pursuant to Section 4.07, termination, deconversion, liquidated damage, upfront payment recapture, and other similar costs, fees and expenses, in excess of the amount set forth in clause (4) below, payable upon the termination of any contracts contemplated by such clause (4), and including fees, expenses and costs that might not be deemed earned or become payable until after the Effective Time, such as, but not limited to, investment banking fees and similar payments for services performed prior to the Effective Time that may not be deemed earned unless and until the Mergers have become effective; provided, however, that in calculating the Effective Time Book Value for purposes of this Section, none of the following will be considered: (1) gains or losses on sales of securities by CUB or Citizens First or CF Bank Union incurred after September April 30, 20182021; (2) any increase in assets or decrease in liabilities resulting from the issuance or redemption of shares of capital stock or other equity interests of Citizens FirstCUB, including, but not limited to, Citizens First CUB making the Performance Unit Cash Cancellation Payment set forth in subparagraph (d) below; (3) any changes to the value of Citizens First's CUB’s investment portfolio attributed to ASC 320, whether upward or downward from September April 30, 2018 2021 until the measurement date; (4) any up to an aggregate of $3,365,000 in termination, deconversion, liquidated damage, upfront payment recapture, and other similar costs, fees and expenses payable upon the termination of any contracts (including including, but not limited to, the Citizens First CUB data processing and branded debit card incentive contracts) set forth on Section 2.18 of the Citizens First CUB Disclosure Schedule or otherwise; (5) expenses relating to any litigation arising out of or in connection with this Agreement, the Mergers or any of the transactions contemplated hereby; and (6) severance and other payments pursuant to Section 5.06(e5.05(e) of this Agreement (exclusive of any change of control payments, success bonuses or settlement payments payable to officers or directors as a result of the Mergers).
(d) Immediately To the extent that the holders of any options to purchase CUB Common granted by CUB (“Options”) under the Citizens Union Bancorp of Shelbyville, Inc. 2010 Stock Option Plan or the Citizens Union Bancorp of Shelbyville, Inc. 2017 Stock Option Plan (the “CUB Stock Option Plan”) are then validly exercisable (except for the satisfaction of any minimum vesting requirement, and provided that CUB’s Board of Directors will accelerate vesting of any unvested options in accordance with the terms of the CUB Stock Option Plan prior to the ClosingEffective Time) by the holders thereof but have not been validly exercised on or before the Effective Time (“Cancelled Rights”), Citizens First and subject to any action required by CUB’s Board of Directors and any consent required by any holder of a stock option, such Cancelled Rights (i) shall, at the Effective Time, be deemed to have been cancelled and shall make no longer be deemed to represent the right to receive shares of CUB Common on any terms or conditions, and shall not be converted into the right to receive shares of GABC Common or other equity-based consideration pursuant to the Merger, and (ii) shall be deemed at all times at and after the Effective Time to represent only the right to receive, subject to compliance by the holders thereof with this Section 1.03(d), a cash payments payment in cancellation of the rights of the holders thereof (collectivelythe “Cancellation Payment”). The Cancellation Payment for each stock option for a share of CUB Common shall be equal to an amount payable in cash equal to the sum of (i) the Cash Payment (reflecting any Shortfall Adjustment under Section 1.03(c), plus (ii) the "Performance Unit Cash Payment"Exchange Ratio multiplied by the volume weighted average of the trading prices of GABC Common, rounded to the nearest cent, during the ten (10) consecutive trading days ended on the trading day that is the fourth business day preceding the Closing Date, as reported by Bloomberg L.P. (or, if not reported therein, in another authoritative source mutually selected by the parties), less (iii) the Option exercise price per share, and less (iv) any applicable withholding taxes (the “Cancellation Amount”). As a condition to its obligation to pay the Cancellation Payment to any holder of Cancelled Rights pursuant to this Section 1.03(d), GABC shall be entitled to require from each such holder an agreement, in form and substance reasonably acceptable to CUB, agreeing to accept such Cancellation Payment in complete cancellation, satisfaction and release of all claims of such holder in respect thereof (the “Cancellation Agreement”) plus the surrender of the original stock option agreement evidencing such unexercised Options (the “Cancellation Documentation”). It shall be a condition of payment of the Cancellation Payment that the Cancellation Agreement shall be properly executed and that the underlying stock option agreement that evidences the Cancelled Right shall be in proper form for cancellation and that the person requesting such Cancellation Payment shall pay to GABC any required transfer or other taxes or establish to the satisfaction of GABC that such tax has been paid or is not subject to withholding by GABC. Subject to the terms and conditions of such Cancellation Agreement, including, without limitation the prior completion of the Holding Company Merger, GABC shall be required to pay promptly the Cancellation Amount (without interest) to any such holder upon the holders delivery of outstanding performance units ("Performance Units") granted such Cancellation Agreement and Cancellation Documentation to GABC at the principal offices of GABC in Jasper, Indiana, on any trading day after the date on which the Effective Time occurs, subject to applicable unclaimed property laws. If any holder of an Option does not consent to the treatment of his or her Options under the Citizens First Corporation 2015 Incentive Compensation Plan (the "Citizens First Incentive Plan"this Section 1.03(d), his or her Options will be converted to stock options to purchase the Merger Consideration or the value thereof in lieu accordance with the terms of distributing Citizens First Common shares to such holders, in each case according to the applicable award agreement terms. For purposes of any performance year that will be shortened as a result of the Mergers, Citizens First performance shall be based upon the maximum "Target" payout level. Upon receipt of their Performance Unit Cash Payment, a holder's rights under their Performance Units and under the related award agreement shall terminate and be of no further force or effectCUB Stock Option Plan.
(e) The shares of GABC Common issued and outstanding immediately prior to the Effective Time shall continue to be issued and outstanding shares of GABC.
(f) No fractional shares of GABC Common shall be issued and, in lieu thereof, holders of shares of Citizens First CUB Common who would otherwise be entitled to a fractional share interest (after taking into account all shares of Citizens First CUB Common held by such holder) shall be paid an amount in cash equal to the product of such fractional share and the volume weighted average of the trading prices of GABC Common, rounded to the nearest cent, during the twenty (20) consecutive trading days ended on the trading day that is the second business day preceding the Closing Date, as reported by Bloomberg L.P. (or, if not reported therein, in another authoritative source mutually selected by the parties) (the "Average GABC Closing Price").
(g) At the Effective Time, each share of Citizens First CUB Common, if any, held in the treasury of Citizens First CUB or by any direct or indirect subsidiary of Citizens First CUB (other than shares held in trust accounts for the benefit of others or in other fiduciary, nominee or similar capacities) immediately prior to the Effective Time shall be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.
(h) At the Effective Time, all of the outstanding shares of Citizens First CUB Common, by virtue of the Holding Company Merger and without any action on the part of the holders thereof, shall no longer be outstanding and shall be canceled and retired and shall cease to exist, and each holder of any certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Citizens First CUB Common ("“Certificates"”) shall thereafter cease to have any rights with respect to such shares, except: (i) the right of such holders to receive, without interest, the cash payment and the certificates for the shares of GABC Common upon the surrender of such Certificate or Certificates in accordance with Section 1.07; or (ii) the right to receive payment of the fair value of Dissenting Shares in accordance with the provisions of the KBCA and Section 1.03(j).
(i) If (i) GABC shall hereafter declare a stock dividend or other distribution of property or securities (other than a cash dividend) upon the GABC Common or shall subdivide, split up, reclassify or combine the GABC Common, and (ii) the record date for such transaction is prior to the date on which the Effective Time occurs, appropriate adjustment or adjustments will be made to the Exchange Ratio.
(j) Shares of Citizens First CUB Common which are issued and outstanding immediately prior to the Effective Time and which are held by persons who have properly exercised, and not withdrawn or waived, appraisal rights with respect thereto ("“Dissenting Shares"”) in accordance with the KBCA will not be converted into the right to receive the Merger Consideration, but will be entitled in lieu thereof, to receive payment of the fair value of such Dissenting Shares in accordance with the provisions of the KBCA unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under the KBCA. If, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses such right, such shares of Citizens First CUB Common will thereupon be treated as if they had been converted at the Effective Time into the right to receive the Merger Consideration, without any interest thereon. Citizens First CUB will give GABC prompt notice of any notices of intent to demand payment received by Citizens First CUB with respect to shares of Citizens First CUB Common. Prior to the Effective Time, Citizens First CUB will not, except with the prior written consent of GABC, make any payment with respect to, or settle or offer to settle, any such demands.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (German American Bancorp, Inc.)
The Holding Company Merger – Conversion of Shares. (a) At the time of filing with the Indiana Secretary of State and the Kentucky Secretary of State of appropriate Articles of Merger with respect to the Holding Company Merger, or at such later time as shall be specified by such Articles of Merger (the "Effective Time"), all of the shares of Citizens First FSI Common that, that immediately prior to the Effective Time, Time are issued and outstanding (except for "Dissenting Shares" as provided in Section 1.03(j1.03(l) below and shares of Citizens First FSI Common held in by the CFB 401(k) Plan and ESOP (as defined in Section 4.11 2.13(n) below)) shall, by virtue of the Merger and without any action on the part of the holders thereof, be converted in accordance with subsections (b) and (c) of this Section 1.03 into the right to receive, subject to the provisions set forth in this Agreement, receive (i) if applicable, a cash payment, and (ii) newly-issued shares of GABC Common (together, such cash, cash and GABC Common and the "401(k) Cash Payment" (as defined below) is sometimes collectively referred to in this Agreement as the "Merger Consideration") pursuant to this Section 1.03.
(b) Each record holder of Citizens First FSI Common (other than Dissenting Shares and shares of Citizens First FSI Common held in by the CFB 401(k) Planand ESOP) immediately prior to the Effective Time shall be entitled to receive from GABC for each of such holder's shares of Citizens First FSI Common then held of record by such record holder (i) a cash payment in the amount of Five Twelve and 80/100 00/100 Dollars ($5.8012.00) or such lesser amount, but not less than zero, as may be determined by operation of subsection (c) of this Section 1.03 (the "Cash Payment"), and (ii) 0.6629 0.7982 (the "Exchange Ratio") of a newly-issued share of GABC Common. Kentucky Trust CompanyThe 401(k) and ESOP, as the administrator and a record holder of shares of Citizens First FSI Common held in immediately prior to the CFB 401(k) PlanEffective Time, shall be entitled to receive from GABC on for each share of FSI Common then held by the business day on which the Effective Time occurs, on behalf 401(k) and ESOP of the beneficial owners of shares of Citizens First Common held therein, record a cash payment equal to Five Forty and 80/100 00/100 Dollars ($5.80) plus the Exchange Ratio multiplied by the greater of: (i) the Average GABC Closing Price (as defined in Section 1.03(f40.00)) or (ii) the closing trading price of GABC Common on the trading day that is the first business day preceding the Closing Date, as reported by Bloomberg L.P. (or, if not reported therein, in another authoritative source mutually selected by the parties), in exchange for each share of Citizens First Common held immediately prior to the Effective Time, or such lesser amount, but not less than zero, as may be determined by operation of subsection (c) of this Section 1.03 (the "401(k) ESOP Cash Payment"). The Exchange Ratio shall be subject to adjustment in accordance with the provisions of Section 1.03(i1.03(k) of this Agreement.
(c) If Citizens FirstFSI's Effective Time Book Value (as defined by and calculated in accordance with this subparagraph) shall be less than the Target Book Value (as defined below) (the dollar amount of such shortfall is referred to in this Agreement as the "Shortfall"), then each of (i) the Cash Payment component of the Merger Consideration, payable with respect to each share of Citizens First FSI Common that is eligible to receive such Cash Payment, and (ii) the 401(kCancellation Payment (as further described in Section 1.03(d) below), payable with respect to each share of FSI Common subject to an Option (as further described in Section 1.03(d) below), and (iii) the ESOP Cash Payment component of the Merger Consideration, payable with respect to each share of Citizens First FSI Common that is eligible to receive such 401(k) ESOP Cash Payment, shall be reduced by a per share amount (rounded to the nearest whole cent) equal to the quotient obtained by dividing the dollar amount of the Shortfall by (x) the number of shares of Citizens First FSI Common outstanding that is eligible to receive a Cash Payment, plus (y) the number of shares of Citizens First FSI Common outstanding that is eligible to receive an ESOP Cash Payment, plus (z) the number of unissued shares of FSI Common subject to an option that is eligible to receive a 401(k) Cash Cancellation Payment (the "Shortfall Adjustment"). For purposes of this subparagraph (c), "Effective Time Book Value" shall be calculated as the estimated shareholders' equity of Citizens First FSI as of the Effective Time determined in accordance with United States generally accepted accounting principles ("GAAP") as adjusted to reflect a reasonable projection of the operations of FSI from the date of delivery of the estimate through the Effective Time to the reasonable satisfaction of GABC, to be delivered by Citizens First FSI to GABC no later than five (5) business days prior to the Closing Date, and which shall reflect an allowance for loan and lease losses calculated in a manner consistent with CF FS Bank's historical practices. For purposes of computing, the foregoing definition a "reasonable projection of operations" will be based on the average monthly operations of FSI during the six-month period ending on the end of the month prior to the Effective Time Book Value," in no event shall the assumed provision for loan and lease losses be less than zero for any period after September 30, 2018Time. For the purposes of this subparagraph (c), "Target Book Value" shall be an amount equal to: (1) FortyFifty-Eight Million Two Hundred Fifty Thousand and 00/100 Dollars ($48,250,00058,250,000.00); (2) adjusted (A) downward upward by the product of Thirteen Nine Thousand and 00/100 Dollars ($13,000) (the "Per Diem Factor"9,000.00) and the number of days the Effective Time is before July after October 1, 2019, or (B) upward by the product of the Per Diem Factor and the number of days the Effective Time is after July 1, 20192018; and (3) less dividends paid after July October 1, 20192018. Notwithstanding the foregoing, the "Effective Time Book Value" shall reflect all after-tax accruals for all of Citizens FirstFSI's and CF Bankany Subsidiary's fees, expenses and costs relating to the Mergers (regardless of whether GAAP would require that such obligations be accrued as liabilities as of the Effective Time), including but not limited to those incurred by Citizens First FSI or CF Bank any Subsidiary in negotiating the terms of the Mergers, preparing, executing and delivering this Agreement, change of control or success bonuses, if any, to officers or directors as a result of the Mergers, additional accruals required pursuant to any director deferred compensation agreements, if any, obtaining shareholder and regulatory approvals, and closing the Mergers, costs of taking reasonable remedial and corrective actions and measures pursuant to Section 4.05, costs to cure or remove any material defects that GABC deems unacceptable other than Standard Permitted Exceptions pursuant to Section 4.07, and including fees, expenses and costs that might not be deemed earned or become payable until after the Effective Time, such as, but not limited to, investment banking fees and similar payments for services performed prior to the Effective Time that may not be deemed earned unless and until the Mergers have become effective; provided, however, that (1) gains or losses on sales of securities by FSI or any Subsidiary incurred after April 1, 2018 will not be considered in calculating the Effective Time Book Value for purposes of this Section, none of the following will be considered: (1) gains or losses on sales of securities by Citizens First or CF Bank incurred after September 30, 2018; (2) any the increase in of assets or decrease in of liabilities resulting from based on the issuance or redemption of any shares of capital stock or other equity interests of Citizens Firstfor consideration, including, but not limited to, Citizens First making the Performance Unit Cash Payment set forth conversion of any convertible subordinated notes after April 1, 2018 pursuant to the terms thereof, will not be considered in subparagraph (d) below; calculating the Effective Time Book Value for purposes of this Section, (3) any changes to the value of Citizens FirstFSI's investment portfolio attributed to ASC 320, whether upward or downward from September 30April 1, 2018 until the measurement date; date will not be considered in calculating the Effective Time Book Value for the purposes of this Section (4) any fees payable upon the termination of any contracts (including the Citizens First FSI data processing contracts) set forth on Section 2.18 of the Citizens First FSI Disclosure Schedule or otherwise; otherwise will not be considered in calculating the Effective Time Book Value for the purposes of this Section 1.03(c) and (5) expenses relating to any litigation arising out of or the "Catch-Up Bonus" (as defined in connection with this Agreement, that certain Bonus and Change in Control Termination Agreement between FSI and Xxxxxxx X. Xxxxxxxx) will not be considered in calculating the Mergers or any of Effective Time Book Value for the transactions contemplated hereby; and (6) severance and other payments pursuant to Section 5.06(e) purposes of this Agreement (exclusive of any change of control payments, success bonuses or settlement payments payable to officers or directors as a result of the MergersSection 1.03(c).
(d) Immediately prior To the extent that the holders of any options to purchase FSI Common granted by FSI ("Options") under FSI's 2007 Stock Option Plan (the Closing, Citizens First shall make cash payments "FSI 2007 Plan") and the FSI Incentive Plan (as defined in Section 1.03(i) below) (collectively, the "Performance Unit Cash PaymentFSI Stock Option Plans") are then validly exercisable (except for the satisfaction of any minimum vesting requirement, and provided that FSI's Board of Directors will accelerate vesting of any unvested options in accordance with the terms of the FSI Stock Option Plans prior to the Effective Time) by the holders of outstanding performance units thereof but have not been validly exercised on or before the Effective Time ("Performance UnitsCancelled Rights"), and subject to any action required by FSI's Board of Directors and any consent required by any holder of a stock option, such Cancelled Rights (i) granted under shall, at the Citizens First Corporation 2015 Incentive Compensation Plan Effective Time, be deemed to have been cancelled and shall no longer be deemed to represent the right to receive shares of FSI Common on any terms or conditions, and shall not be converted into the right to receive shares of GABC Common or other equity-based consideration pursuant to the Merger, and (ii) shall be deemed at all times at and after the Effective Time to represent only the right to receive, subject to compliance by the holders thereof with this Section 1.03(d), a cash payment in cancellation of the rights of the holders thereof (the "Citizens First Incentive PlanCancellation Payment"). The Cancellation Payment for each stock option for a share of FSI Common shall be equal to an amount payable in cash equal to (i) Forty and 00/100 Dollars ($40.00) (adjusted for any Shortfall Adjustment under Section 1.03(c)), less (ii) the Option exercise price per share, and less (iii) any applicable withholding taxes (the "Cancellation Amount"). As a condition to its obligation to pay the Cancellation Payment to any holder of Cancelled Rights pursuant to this Section 1.03(d), GABC shall be entitled to require from each such holder an agreement, in lieu form and substance reasonably acceptable to FSI, agreeing to accept such Cancellation Payment in complete cancellation, satisfaction and release of distributing Citizens First Common shares all claims of such holder in respect thereof (the "Cancellation Agreement") plus the surrender of the original stock option agreement evidencing such unexercised Options (the "Cancellation Documentation"). It shall be a condition of payment of the Cancellation Payment that the Cancellation Agreement shall be properly executed and that the underlying stock option agreement that evidences the Cancelled Right shall be in proper form for cancellation and that the person requesting such Cancellation Payment shall pay to such holders, in each case according GABC any required transfer or other taxes or establish to the satisfaction of GABC that such tax has been paid or is not subject to withholding by GABC. Subject to the terms and conditions of such Cancellation Agreement, including, without limitation the prior completion of the Holding Company Merger, GABC shall be required to pay promptly the Cancellation Amount (without interest) to any such holder upon the delivery of such Cancellation Agreement and Cancellation Documentation to GABC at the principal offices of GABC in Jasper, Indiana, on any trading day after the date on which the Effective Time occurs, subject to applicable award agreement termsunclaimed property laws. For purposes If any holder of any performance year that an Option does not consent to the treatment of his or her Options under this Section 1.03(d), his or her Options will be shortened as a result converted to stock options to purchase the Merger Consideration or the value thereof in accordance with the terms of the Mergers, Citizens First performance shall be based upon the maximum "Target" payout level. Upon receipt of their Performance Unit Cash Payment, a holder's rights under their Performance Units and under the related award agreement shall terminate and be of no further force or effectapplicable FSI Stock Option Plan.
(e) The convertible subordinated notes shall be prepaid by FSI prior to the Effective Time as set forth in Section 4.11 of this Agreement.
(f) The shares of GABC Common issued and outstanding immediately prior to the Effective Time shall continue to be issued and outstanding shares of GABC.
(fg) No fractional shares of GABC Common shall be issued and, in lieu thereof, holders of shares of Citizens First FSI Common who would otherwise be entitled to a fractional share interest (after taking into account all shares of Citizens First FSI Common held by such holder) shall be paid an amount in cash equal to the product of such fractional share and the volume weighted average of the trading prices of GABC Common, rounded to the nearest cent, during the twenty (20) consecutive trading days ended on the trading day that is the second business day preceding the Closing Date, as reported by Bloomberg L.P. (or, if not reported therein, in another authoritative source mutually selected by the parties) (the "Average GABC Closing Price").
(gh) At the Effective Time, each share of Citizens First FSI Common, if any, held in the treasury of Citizens First FSI or by any direct or indirect subsidiary of Citizens First FSI (other than shares held in trust accounts for the benefit of others or in other fiduciary, nominee or similar capacities) immediately prior to the Effective Time shall be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.
(hi) Subject to any action required by FSI's Board of Directors and any consent required by any holder of restricted stock, shares of restricted stock granted under the First Security, Inc. 2012 Long Term Incentive Plan (the "FSI Incentive Plan") that are subject to transfer restrictions immediately prior to the Closing shall have those restrictions lapse at Closing and such shares shall convert into the Merger Consideration as provided in this Section 1.03.
(j) At the Effective Time, all of the outstanding shares of Citizens First FSI Common, by virtue of the Holding Company Merger and without any action on the part of the holders thereof, shall no longer be outstanding and shall be canceled and retired and shall cease to exist, and each holder of any certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Citizens First FSI Common ("Certificates") shall thereafter cease to have any rights with respect to such shares, except: (i) the right of such holders to receive, without interest, the cash payment and the certificates for the shares of GABC Common upon the surrender of such Certificate or Certificates in accordance with Section 1.07; or (ii) the right to receive payment of the fair value of Dissenting Shares in accordance with the provisions of the KBCA and Section 1.03(j1.03(l).
(ik) If (i) GABC shall hereafter declare a stock dividend or other distribution of property or securities (other than a cash dividend) upon the GABC Common or shall subdivide, split up, reclassify or combine the GABC Common, and (ii) the record date for such transaction is prior to the date on which the Effective Time occurs, appropriate adjustment or adjustments will be made to the Exchange Ratio.
(jl) Shares of Citizens First FSI Common which are issued and outstanding immediately prior to the Effective Time and which are held by persons who have properly exercised, and not withdrawn or waived, appraisal rights with respect thereto ("Dissenting Shares") in accordance with the KBCA will not be converted into the right to receive the Merger Consideration, but will be entitled in lieu thereof, to receive payment of the fair value of such Dissenting Shares in accordance with the provisions of the KBCA unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under the KBCA. If, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses such right, such shares of Citizens First FSI Common will thereupon be treated as if they had been converted at the Effective Time into the right to receive the Merger Consideration, without any interest thereon. Citizens First FSI will give GABC prompt notice of any notices of intent to demand payment received by Citizens First FSI with respect to shares of Citizens First FSI Common. Prior to the Effective Time, Citizens First FSI will not, except with the prior written consent of GABC, make any payment with respect to, or settle or offer to settle, any such demands.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (German American Bancorp, Inc.)
