VOTING AGREEMENT
This
VOTING AGREEMENT (“Agreement”) is made
and entered into as of October 1, 2010, by and among GERMAN AMERICAN BANCORP,
INC., an Indiana corporation (“German American”),
and the undersigned securityholder(s) (the “Securityholder”, which
term is used to describe all undersigned securityholders together if more than
one) of American Community Bancorp, Inc., an Indiana corporation that is not a
party to this Agreement (the “Company”). All
capitalized terms herein not otherwise defined shall have the meaning ascribed
to them in the Merger Agreement (as defined below).
Recitals
WHEREAS,
pursuant to an Agreement and Plan of Reorganization that German American has
confidentially advised the Securityholder is expected to be entered into on
October 4, 2010 or as soon as practicable thereafter (the “Merger Agreement”),
by and among German American, the Company, and their respective banking
subsidiaries, the Company (a) will merge into German American, with German
American continuing a the surviving corporation and all of the outstanding
common stock of the Company (“Company Stock”) being
exchanged for common stock of German American and a cash payment and (b) all of
the outstanding stock options and warrants to purchase Company Stock that have
been issued by the Company to founding shareholders, directors and employees
(“Purchase
Rights”) being cancelled for a payment approximating the in-the-money
values of the Purchase Rights (the merger and the cancellation of Purchase
Rights being sometimes referred to in this Agreement as the “Transaction”);
WHEREAS,
the Securityholder is the beneficial owner of, or exercises control and
direction over, the number of issued and outstanding shares of Company Stock,
and a number of issued and outstanding Purchase Rights, as set forth on the
signature page hereof;
WHEREAS,
the Securityholder has had a fair opportunity to review the Merger Agreement
(the September 30 draft of which has been provided by German American, with
Company consent, to the Securityholder for the Securityholder’s advance
confidential review, as contemplated by that certain confidentiality agreement
between German American and the lead representative of the Securityholder that
has been previously entered into) and to consult with legal, tax, financial and
other advisers of the Securityholder’s choosing to the extent such
Securityholder has desired to have such consultation(s); and
WHEREAS,
as a material inducement for German American to enter into the Merger Agreement
with the Company and thereby provide the benefits of the Transaction to the
Securityholder, the Securityholder is willing (among other terms and conditions
set forth in this Agreement) to (i) in accordance with the terms hereof, not
transfer or otherwise dispose of any of such Securityholder’s shares of Company
Stock or Purchase Rights, or any and all other shares or securities of the
Company issued, issuable, exchanged or exchangeable, in respect of any Company
Stock or Purchase Rights (the “Securities”), (ii)
vote or use best efforts to cause to be voted Company Stock as set forth herein;
and (iii) not take any action that would cause any of the Securities to be
eligible for cash payments pursuant to a judicial appraisal of the fair value of
those Securities under Chapter 44 of the Indiana Business Corporation Law
(Indiana Code 23-1-44-1 et.
seq.) (“Chapter
44 Rights”).
Agreement
NOW,
THEREFORE, in contemplation of the foregoing and in consideration of the mutual
agreements, covenants, representations and warranties contained herein and
intending to be legally bound hereby, the Securityholder (jointly and severally,
if more than one) agrees with German American as follows:
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1. Transfer and
Encumbrance. The Securityholder agrees that the Securityholder
will not take or permit any action to, directly or indirectly, (i) transfer,
sell, assign, give, pledge (excluding any pledges already in effect to
commercial lenders that secure the repayment of money borrowed), exchange, or
otherwise dispose of or encumber the Securities (except as may be specifically
required by court order, in which case the Securityholder shall give German
American prior written notice and any such transferee shall agree to be bound by
the terms and conditions of this Agreement) prior to the Expiration Date (as
defined below), or to make any offer or agreement relating thereto, at any time
prior to the Expiration Date; (ii) deposit any of the Securities into a voting
trust or enter into a voting agreement or arrangement with respect to such
Securities or grant any proxy or power of attorney with respect thereto, in each
case, in a manner that conflicts or may conflict with the Securityholder’s
obligations hereunder; or (iii) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect sale,
assignment, transfer, exchange or other disposition of or transfer of any
interest in or the voting of any of the Securities, in each case, in a manner
that conflicts or may conflict with the Securityholder’s obligations hereunder.
As used herein, the term “Expiration Date”
shall mean the earlier to occur of (i) March 31, 2011, or (ii) the date on which
the Merger Agreement is terminated in accordance with its terms.
2. Agreement to Vote and Not to
Exercise Chapter 44 Rights. Prior to the Expiration Date, at every
meeting of the shareholders of the Company called with respect to any of the
following, and at every adjournment thereof, and on every action or approval by
written consent of the stockholders of the Company with respect to any of the
following, the Securityholder agrees to vote (or cause to be voted) the shares
of Company Stock owned of record directly by such Securityholder, and, to the
full extent legally permitted, cause holders of record of other shares of
Company Stock over which the Securityholder has the sole or shared power to vote
(or to direct the vote) to vote (and to provide evidence thereof within ten (10)
days prior to the meeting) (such directly owned and other shares of Company
Stock being referred to herein collectively as the “Shares”): (i) in
favor of approval of the Transaction, the Merger Agreement and the transactions
contemplated thereby and any matter that could reasonably be expected to
facilitate the Transaction; (ii) in favor of any alternative structure as may be
agreed upon by German American and the Company to effect the Transaction;
provided that such alternative structure is on terms in the aggregate no less
favorable to the Securityholder from a financial point of view than the terms of
the Transaction set forth in the Merger Agreement (including, without
limitation, with respect to the consideration to be received by the
Securityholder); and (iii) against the consummation of any proposal looking
toward the acquisition of control of the Company by any party not affiliated
with German American, or any action, proposal, agreement or transaction (other
than the Transaction, the Merger Agreement or the transactions contemplated
thereby) that in any such case would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement, which could reasonably result in any of the
conditions to the Company’s obligations under the Merger Agreement not being
fulfilled or which would be inconsistent with the Transaction or any other
transaction contemplated by the Merger Agreement. Further,
Securityholder shall cause all of such Shares not to become the subject of any
communication to the Company that might reasonably be construed as asserting an
intention by the Securityholder to exercise Chapter 44 Rights or a claim of such
Chapter 44 Rights in respect of any such Shares. Prior to the
Expiration Date, the Securityholder will not enter into any agreement or
understanding with any Person to vote or to exercise Chapter 44
Rights. In addition, prior to the Expiration Date, the Securityholder
agrees not to enter into any agreement, discussions or negotiations with any
firm, entity, individual, or group (other than German American or any of its
affiliates) with respect to an Acquisition Proposal or a potential Acquisition
Proposal. This Agreement is intended to bind the Securityholder as a
stockholder of the Company only with respect to the specific matters set forth
herein. Notwithstanding the foregoing, nothing in this Agreement
shall limit or restrict the Securityholder from voting in his, her or its sole
discretion on any matter other than those matters referred to in this
Agreement.
3. No Opposition. Prior
to the Expiration Date, the Securityholder agrees not to take, or cause to be
taken, any action in the Securityholder’s capacity as a holder of Securities of
the Company that would, or would be reasonably likely to, have the purpose or
effect of preventing the consummation of the Transaction and the transactions
contemplated by the Merger Agreement. Prior to the Expiration Date,
the Securityholder agrees to take, or cause to be taken in its capacity as a
holder of Securities of the Company, all actions necessary to effect the
Transaction and the transactions contemplated by the Merger
Agreement.
4. New
Securities. The Securityholder hereby agrees that any shares
of the capital stock or other securities of the Company that the Securityholder
purchases or with respect to which the Securityholder otherwise acquires a right
to acquire or other beneficial ownership (as such concept of beneficial
ownership is interpreted for purposes of the beneficial ownership disclosure
provisions of Section 13(d) of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission adopted
thereunder) after the date of this Agreement and prior to the Expiration Date
(the “New
Securities”), and any and all other shares or securities of the Company
issued, issuable, exchanged or exchangeable in respect of any New Securities,
shall become subject to the terms and conditions of this Agreement to the same
extent as if they constituted Securities.
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5. Representations, Warranties
and Covenants of Securityholder. The Securityholder (and if more than one
signatory exists for the Securityholder, all such signatories, jointly and
severally) hereby represents and warrants to, and covenants with, German
American that:
5.1.
Ownership. Except
as may be noted on the signature page hereof, the person(s) or entity(ies) who
or that has (have) signed this Agreement as the Securityholder have good and
marketable title to, and is (are) the sole legal and beneficial owners of
Securities in the numbers that are specified on the signature page
hereof. As of the date hereof, such person(s) or entity(ies) does
(do) not beneficially own any shares of the capital stock of the Company or
other securities issued by the Company other than the Securityholder’s
Securities that are so identified. No person acting on behalf of any
such person(s) or entity(ies) has provided German American with any information
concerning the nature of ownership of the numbers of Securities identified on
the signature page hereto that is false or misleading in any respect material to
German American.
5.2. Authorization; Binding
Agreement. The Securityholder has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby and thereby and has sole voting power and sole power of
disposition, with respect to all of the Shares with no restrictions on its
voting rights or rights of disposition pertaining thereto, except as specified
by the signature page hereof. The Securityholder has duly executed and delivered
this Agreement and, assuming its due authorization, execution and delivery by
German American, this Agreement is a legal, valid and binding agreement of the
Securityholder, enforceable against the Securityholder in accordance with its
terms.
5.3. No Violation. Except as may
be provided in any pledges already in effect to commercial lenders (i.e. loans
with German American and the Company) that secure the repayment of money
borrowed, neither the execution, delivery and performance of this Agreement nor
the consummation of the transactions contemplated hereby and thereby will (i)
violate, or cause a breach of or default (or an event which with notice or the
lapse of time or both would become a default) under, any contract, agreement or
understanding, or any judgment or any arbitration award, that is binding upon
the Securityholder; or (ii) cause the acceleration of any obligation under or
give to others any right of termination, amendment, acceleration or cancellation
of, or result in the creation of an option or purchase right in favor of any
third party, or any lien or encumbrance on any property or asset of the
Securityholder pursuant to any provision of any indenture, mortgage, lien,
lease, agreement, contract, instrument, order, judgment, ordinance, regulation
or decree to which the Securityholder is subject or by which the Securityholder
or any of the Securityholder’s properties or assets are bound. No
proceedings are pending which, if adversely determined, will have a material
adverse effect on any ability to vote or dispose of any of the
Securities.
5.4. Regulatory Approvals. The
Securityholder agrees that, so long as the Securityholder is required to vote
the Securities in favor of the Transaction, the Securityholder shall, at German
American’s or the Company’s cost, cooperate with all reasonable requests by
German American or the Company in obtaining all governmental and regulatory
approvals that are required (a) to permit German American to complete the
Transaction as contemplated in the Merger Agreement and (b) for German American
to have obtained (or to retain) the rights sought to be obtained by German
American by this Agreement.
5.5.
Public Disclosure. The
Securityholder agrees not to make any public disclosure or announcement of or
pertaining to this Agreement, the Transaction, the Merger Agreement or the
transactions contemplated thereby nor to disclose that any discussions or
negotiations are taking place in connection therewith without the prior written
consent of both German American and the Company, provided, however, that the
Securityholder may make such disclosures if and to the extent that such are
required in the written opinion of counsel for the Securityholder by applicable
law, subject to prior consultation by the Securityholder or the Securityholder’s
counsel concerning the proposed disclosure and the legal reasons therefor with
counsel for German American and the Company.
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6. Further Assurances.
The Securityholder hereby covenants and agrees to execute and deliver, or cause
to be executed or delivered, such proxies, consents, waivers and other
instruments, and undertake any and all further action, necessary or desirable,
in the reasonable opinion of German American, to carry out the purpose and
intent of this Agreement and to consummate the Transaction, the Merger Agreement
and the transactions contemplated thereby.
7. Termination. This
Agreement shall terminate and shall have no further force or effect as of the
Expiration Date; provided, however, that nothing herein shall relieve any party
from liability hereof for breaches of this Agreement prior to the Expiration
Date.
8.
Miscellaneous.
8.1. Severability. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction (or deemed formally or informally by a governmental
agency) to be invalid, void or unenforceable, then the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated. In the event that a governmental agency (including but
not limited to the Board of Governors of the Federal Reserve System (the “FRB”)) expresses to
German American any concern that this Agreement may be violative of law
applicable to German American or the Securityholder, then German American shall
so notify the Securityholder of such concern, and German American and the
Securityholder shall cooperate with each other toward amending this Agreement in
order to resolve such governmental agency’s concern(s).
8.2. Binding Effect and
Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but, except as otherwise specifically provided
herein, neither this Agreement nor any of the rights, interests or obligations
of the parties hereto may be assigned by either of the parties without the prior
written consent of the other; provided, however, that German American may freely
assign its rights to a direct or indirect wholly-owned subsidiary of German
American without such prior written approval but no such assignment shall
relieve German American of any of its obligations hereunder. Any purported
assignment without such consent shall be void. No provision of this
Agreement shall be for the benefit of any third party, except that the Company
is an intended third-party beneficiary of the Securityholder’s agreements
pursuant to this Agreement, and German American may provide a copy of this
Agreement to the Company.
8.3. Amendment and Modification.
This Agreement may not be modified, amended, altered or supplemented except by
the execution and delivery of a written agreement executed by the parties
hereto.
8.4. Specific Performance; Injunctive
Relief. The parties hereto acknowledge that German American will be
irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of the Securityholder set forth
herein. Therefore, it is agreed that, in addition to any other remedies that may
be available to German American upon such violation, German American shall have
the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to German American at law or
in equity.
8.5. Notices. All notices that are
required or may be given pursuant to the terms of this Agreement shall be in
writing and shall be sufficient in all respects if given in writing and
delivered by hand, national or international overnight courier service,
transmitted by telecopy or mailed by registered or certified mail, postage
prepaid (effective when delivered by hand, or by telecopy or electronic message
(if receipt of such telecopy or electronic message at or about the time of
telecopy or electronic message is confirmed by the recipient of the telecopy or
electronic message), one (1) business day after dispatch by overnight courier,
and three (3) business days after dispatch by mail), as follows:
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If to
German American, to:
Xxxx X.
Xxxxxxxxx
Chairman
and Chief Executive Officer
000 Xxxx
Xxxxxx
Xxxxxx,
Xxxxxxx 00000
Telecopy
No.: (000) 000-0000
with a
copy to:
Xxxx X.
Xxxxxx
Xxxx
Xxxxxx Law PC
0000 Xxxx
Xxxxx Xxxx
Xxxxxxxxxxxx,
Xxxxxxx 00000
Telecopy
No.: (000) 000-0000
If to any
person who has signed this Agreement as Securityholder, to the address or
facsimile number set forth beneath the Securityholder’s signature
below.
8.6. Governing Law. This Agreement
shall be governed by, construed and enforced in accordance with the internal
laws of the State of Indiana without giving effect to any choice or conflict of
law provision, rule or principle (whether of the State of Indiana or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Indiana.
8.7. Entire Agreement. This
Agreement contains the entire understanding of German American and
Securityholder in respect of the subject matter hereof, and, except for any
confidentiality agreements between German American and the Securityholder
specifically referenced on the signature page hereof, supersedes all prior
negotiations and understandings between the parties with respect to such subject
matters.
8.8. Counterparts. This Agreement
may be executed (and delivered, in original form or by electronic mail or by
facsimile transmission) in several counterparts, each of which shall be an
original, but all of which together shall (when executed and delivered between
or among two or more signatories) constitute one and the same
agreement.
8.9. Effect of Headings. The
section headings herein are for convenience only and shall not affect the
construction or interpretation of this Agreement.
8.10. Jurisdiction. The parties to
this Agreement agree that any suit, action or proceeding arising out of, or with
respect to, this Agreement, or any judgment entered by any court in respect
thereof shall be brought in the courts located in Vanderburgh County Indiana or
the U.S. District Court for the Southern District of Indiana – Evansville
Division as the commencing party may elect, and the Securityholder hereby
accepts the exclusive jurisdiction of those courts for the purpose of any suit,
action or proceeding. In addition, the Securityholder hereby
irrevocably waives, to the fullest extent permitted by law, any objection which
the Securityholder may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any
judgment entered by any such court, and hereby further irrevocably waives any
claim that any suit, action or proceedings brought in such court has been
brought in an inconvenient forum.
8.11. No Limitation on Actions of the
Securityholder as Director or Officer. Notwithstanding
anything to the contrary in this Agreement, in the event the Securityholder, or
a representative of the Securityholder, is an officer or director of the
Company, nothing in this Agreement is intended or shall be construed to require
the Securityholder, or its representative, as the case may be, in such
individual’s capacity as an officer or director of the Company, to act or fail
to act in accordance with such individual’s fiduciary duties in such
capacity.
8.12. Remedies Not Exclusive. All
rights, powers and remedies provided under this Agreement or otherwise available
in respect hereof at law or in equity will be cumulative and not alternative,
and the exercise of any thereof by either party will not preclude the
simultaneous or later exercise of any other such right, power or remedy by such
party.
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8.13. Waiver of Jury
Trial. Deleted.
8.14. Disclosure. The
Securityholder hereby authorizes German American and the Company to disclose the
identity of the Securityholder and the nature and amounts of its commitments,
arrangements and understandings under this Agreement (and to file publicly a
copy of this Agreement in that connection) in any reports or other filings or
communications that either German American or the Company may be required to
file under any applicable law (without seeking confidential treatment of such
disclosure), including without limitation the laws popularly known as Bank
Holding Company Act of 1956, the Bank Merger Act, the Securities Exchange Act of
1934, and the Securities Act of 1933 (each as amended), and including, without
limitation, any report filed with the Securities and Exchange Commission on Form
8-K or any Schedule 13D or Schedule 13G, any Registration Statement filed by
German American under the Securities Act of 1933, and any applications or
notices seeking or concerning regulatory review and/or approval of the
Transaction and/or this Agreement that may be filed with the FRB, the Federal
Deposit Insurance Corporation and the Indiana Department of Financial
Institutions.
8.15.
Attorney
Fees. German American hereby agrees to pay any and all
reasonable costs, expenses and attorneys fees of the Securityholder in
connection with the review and execution of this Agreement, any future
negotiation or consultation in connection with the merger contemplated by this
Agreement, and/or in the event of any judicial proceeding arising out of or
related to this Agreement or which requires the interpretation or construction
of this Agreement.
[SIGNATURE
PAGES FOLLOW]
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IN
WITNESS WHEREOF, the parties have caused this Voting Agreement to be duly
executed on the day and year first above written.
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By:
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/s/ Xxxx X. Xxxxxxxxx
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Xxxx
X. Xxxxxxxxx,
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Chairman
and Chief Executive Officer
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[GERMAN AMERICAN SIGNATURE PAGE TO
VOTING AGREEMENT]
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SECURITYHOLDER
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By:
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FOUR S PROPERTIES LLC
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Print Name of Securityholder and Representative Capacity of
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Signatory if Applicable:
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/s/ Xxxx X. Xxxxxxxxx, Manager
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By:
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Xxxx X. Xxxxxxxxx
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Print Additional Name of Securityholder if Joint or Common
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or Group Owners and Representative Capacity of Signatory if
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Applicable:
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/s/ Xxxx X. Xxxxxxxxx
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By:
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Print Additional Name of Securityholder if Joint or Common
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or Group Owners and Representative Capacity of Signatory if
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Applicable:
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Name and
address for notice to all signatories above: 0000 Xxxxxxxx Xx
Xxxxxxxxxx XX 00000
Facsimile
number for notices to all signatories above: 000 000
0000
Securities
owned of record or beneficially in the aggregate by all signatories above as of
the date hereof:
166,083 shares of
Company Common, consisting of
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·
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166,083 shares
owned of record and evidenced by stock certificate(s) issued by the
Company in name(s) of signatory Securityholder(s) exactly as signed
above
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__________
shares owned of record by other
accounts
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_______
shares purchasable pursuant to Purchase Rights
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__________
shares purchasable under Purchase Rights owned of record and evidenced by
Purchase Rights agreements or certificates for Purchase Rights issued by
the Company in name(s) of signatory Securityholder(s) exactly as signed
above
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·
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__________
shares purchasable under Purchase Rights owned of record by other
accounts
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Identification
of other agreements between German American and any of the signatory
Securityholders that continue in effect with respect to the subject matter of
the Transaction (if none, so state):
Confidentiality
Agreement
Any
additional disclosures that may constitute an exception to the Securityholder
representations and warranties pursuant to Section 5 of this
Agreement: Securityholder currently has
commercial loans with German American and with the Company, both of which are
secured by pledges of Securityholder’s Company Stock
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[SECURITYHOLDER SIGNATURE PAGE TO
VOTING AGREEMENT]
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