EXHIBIT 10.01
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (the "Termination Agreement") is made this
10th day of February, 2005 by and among Blue River Bancshares, Inc. ("Blue
River"), Shelby County Bank ("Shelby County"), Heartland Bancshares, Inc.
("Heartland"), and Heartland Community Bank ("Heartland Bank"). Blue River,
Shelby County, Heartland, and Heartland Bank are sometimes referred to herein
individually as a "Party" and collectively as the "Parties".
W I T N E S S E T H:
WHEREAS, Blue River, Shelby County, Heartland and Heartland Bank are
parties to that certain Agreement of Affiliation and Merger (the "Company Merger
Agreement"), dated as of August 31, 2004;
WHEREAS, Shelby County and Heartland Bank are parties to that certain
Plan of Reorganization and Merger (the "Bank Merger Agreement"), dated as of
August 31, 2004;
WHEREAS, Blue River and Heartland are parties to those certain
reciprocal Stock Option Agreements (the "Heartland Stock Option Agreement" and
the "Blue River Stock Option Agreement"), each dated as of August 31, 2004;
WHEREAS, each member of the Board of Directors of Blue River is a party
to that certain Voting Agreement (the "Blue River Voting Agreement"), dated as
of August 31, 2004;
WHEREAS, each member of the Board of Directors of Heartland is a party
to that certain Voting Agreement (the "Heartland Voting Agreement"), dated as of
August 31, 2004;
WHEREAS, Blue River and certain shareholders of Heartland who are
deemed to be affiliates of Heartland are parties to those certain Affiliate
Agreements (each, an "Affiliate Agreement", collectively, the "Affiliate
Agreements"), dated as of August 31, 2004;
WHEREAS, Blue River, Heartland and certain persons identified as the
▇▇▇▇▇▇▇ 13D Group are parties to that certain Confidentiality Agreement (the
"Confidentiality Agreement"), dated as of April 26, 2004; and
WHEREAS, the Parties have agreed that the Company Merger Agreement, the
Bank Merger Agreement, the Heartland Stock Option Agreement, the Blue River
Stock Option Agreement, the Blue River Voting Agreement, the Heartland Voting
Agreement and the Affiliate Agreements should be terminated.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
obligations herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
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SECTION 1
TERMINATION OF AGREEMENTS
1.01. Termination of Company Merger Agreement. Pursuant to Section
9.01(a)(i) of the Company Merger Agreement, Blue River, Shelby County, Heartland
and Heartland Bank agree that, as of the date hereof, the Company Merger
Agreement shall be terminated and shall be of no further force or effect, and
there shall be no further obligations or restrictions on future activities on
the part of Blue River, Shelby County, Heartland, or Heartland Bank under the
Company Merger Agreement, except as provided in compliance with: (i) the
confidentiality provisions set forth in Section 6.10 and 7.09 of the Company
Merger Agreement; (ii) the payment of expenses set forth in Section 11.10 of the
Company Merger Agreement; and (iii) the payment of equal portions of certain
fees of ▇▇▇▇▇ ▇▇▇▇▇▇ and Company LLC, as set forth in a letter that the parties
have executed and delivered concurrently with this Termination Agreement. The
obligations described in subparts (i), (ii) and (iii) above shall survive the
termination of the Company Merger Agreement.
1.02. Termination of Bank Merger Agreement. Shelby County and Heartland
Bank agree that, as of the date hereof, the Bank Merger Agreement shall be
terminated and shall be of no further force or effect, and there shall be no
further obligations or restrictions on future activities on the part of Shelby
County or Heartland thereunder.
1.03. Termination of Blue River Stock Option Agreement. Blue River
hereby represents that, as of the date hereof, there has not been an "Initial
Triggering Event" (as defined in section 2(c) of the Blue River Stock Option
Agreement). Blue River and Heartland agree that, as of the date hereof: (i) the
termination of the Company Merger Agreement constitutes an "Exercise Termination
Event" (as defined in Section 2(b) of the Blue River Stock Option Agreement);
and (ii) the Blue River Stock Option Agreement shall be terminated and shall be
of no further force or effect, and there shall be no further obligations or
restrictions on future activities on the part of Blue River or Heartland
thereunder.
1.04. Termination of Heartland Stock Option Agreement. Heartland hereby
represents that, as of the date hereof, there has not been an "Initial
Triggering Event" (as defined in section 2(c) of the Heartland Stock Option
Agreement). Blue River and Heartland agree that, as of the date hereof: (i) the
termination of the Company Merger Agreement constitutes an "Exercise Termination
Event" (as defined in Section 2(b) of the Heartland Stock Option Agreement); and
(ii) that the Heartland Stock Option Agreement shall be terminated and shall be
of no further force or effect, and there shall be no further obligations or
restrictions on future activities on the part of Blue River or Heartland
thereunder.
1.05. Termination of Blue River Voting Agreement. Each of the Parties
agree that, as of the date hereof, by virtue of the termination of the Company
Merger Agreement, the Blue River Voting Agreement shall be terminated and shall
be of no further force or effect, and there shall be no further obligations or
restrictions on future activities on the part of any person under the Blue River
Voting Agreement.
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1.06. Termination of Heartland Voting Agreement. Each of the Parties
agree that, as of the date hereof, by virtue of the termination of the Company
Merger Agreement, the Heartland Voting Agreement shall be terminated and shall
be of no further force or effect, and there shall be no further obligations or
restrictions on future activities on the part of any person under the Heartland
Voting Agreement.
1.07. Termination of Affiliate Agreements. Pursuant to Section 3 of the
Affiliate Agreements, the Affiliate Agreements shall automatically terminate and
be of no further force or effect upon the termination of Company Merger
Agreement pursuant to Section 9 thereof. Accordingly, as of the date hereof, the
Affiliate Agreements shall be terminated and shall be of no further force or
effect, and there shall be no further obligations or restrictions on future
activities on the part of any person under the Affiliate Agreements.
1.08. Continued Effectiveness of Confidentiality Agreement. This
Termination Agreement shall not affect the Confidentiality Agreement, all of the
terms and conditions of which shall remain and continue in full force and
effect.
SECTION 2
MUTUAL RELEASES
Each Party hereby releases, relinquishes, and forever discharges each
other Party, and the shareholders, officers, directors, agents, employees,
advisors, attorneys and other representatives of each such other Party
(collectively, such persons being hereafter referred to as the "Released
Persons" of such other Party), from any and all claims, demands, actions, and
causes of action of any and every kind or character, known or unknown, suspected
or unsuspected, whether having arisen or hereafter to arise which such Party
ever had, now has, or claims to have, or hereafter can, shall, or may for any
reason have, against any other Party or its Released Persons arising out of any
matter or event occurring contemporaneously with or before the execution of this
Termination Agreement related to the Company Merger Agreement, the Bank Merger
Agreement, the Heartland Stock Option Agreement, the Blue River Stock Option
Agreement, the Blue River Voting Agreement, the Heartland Voting Agreement, or
the Affiliate Agreements (collectively, the "Agreements"), including but not
limited to any loss, expense, or detriment of any kind or character growing out
of or in any way connected with or in any way resulting from the acts, actions,
or omissions of any Party or its Released Persons related to the Agreements,
excepting only claims, demands, actions, and causes of action relating to the
obligations that specifically survive the termination of the Company Merger
Agreement under Section 1.01 of this Termination Agreement. Nothing contained in
this Section 2 is intended to release, relinquish, or discharge any Party from
any claim, demand, action, or cause of action arising from or relating to a
breach of this Termination Agreement, including, without limitation, the
representations made in Sections 1.03 and 1.04 hereof.
SECTION 3
MISCELLANEOUS
3.01. Binding Effect; Assignment. This Termination Agreement and the
recitals hereof shall be binding upon and inure to the benefit of the respective
Parties hereto and their respective heirs, legatees, representatives, successors
and assigns; provided, however, that this Termination
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Agreement may not be assigned by any Party hereto without the prior written
consent of the other Parties hereto.
3.02. Amendment; Modification. This Termination Agreement may be
amended, modified or supplemented only by a written agreement executed by the
Parties hereto.
3.03. Notices. All notices, requests and other communications hereunder
shall be in writing (which shall include telecopier communication) and shall be
deemed to have been duly given if delivered by hand and receipted for, sent by
certified United States Mail, return receipt requested, first class postage
pre-paid, delivered by overnight express receipted delivery service or
telecopied if confirmed immediately thereafter by also mailing a copy of such
notice, request or other communication by certified United States Mail, return
receipt requested, with first class postage pre-paid as follows:
If to Blue River, Shelby County Bank with a copy (which shall not constitute
or the ▇▇▇▇▇▇▇ 13D Group: notice) to:
Blue River Bancshares, Inc. ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
29 ▇. ▇▇▇▇▇▇▇▇▇▇ Street ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III, ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Chairman and C.E.O. Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Heartland or Heartland Bank: with a copy (which shall not constitute
notice) to:
Heartland Bancshares, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ One American Square
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President Box 82001
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ ATTN: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or such substituted address or person as any of them have given to the other in
writing. All such notices, requests or other communications shall be effective:
(a) if delivered by hand, when delivered; (b) if mailed in the manner provided
herein, five (5) business days after deposit with the United States Postal
Service; (c) if delivered by overnight express delivery service, on the next
business day after deposit with such service; and (d) if by telecopier, on the
next business day if also confirmed by mail in the manner provided herein.
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3.04. Headings. The headings in this Termination Agreement have been
inserted solely for ease of reference and should not be considered in the
interpretation or construction of this Termination Agreement.
3.05. Severability. In case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Termination Agreement, but this Termination
Agreement shall be construed as if such invalid, illegal or unenforceable
provision or provisions (or portion thereof) had never been contained herein.
3.06. Counterparts. This Termination Agreement may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute one and the same instrument.
3.07. Governing Law. This Termination Agreement shall be governed by
and construed in accordance with the laws of the State of Indiana and applicable
federal laws, without regard to principles of conflicts of law. The parties
hereto hereby agree that all claims, actions, suits and proceedings between the
parties hereto relating to this Termination Agreement shall be filed, tried and
litigated only in the Circuit or Superior Courts of ▇▇▇▇▇▇ County, Indiana or
the United States District Court for the Southern District of Indiana - Southern
Division. In connection with the foregoing, the Parties hereto consent to the
jurisdiction and venue of such courts and expressly waive any claims or defenses
of lack of personal jurisdiction of or proper venue by such courts.
3.08. Entire Agreement. This Termination Agreement supersedes
terminates and renders of no further force or effect all other prior or
contemporaneous understandings, commitments, representations, negotiations or
agreements, whether oral or written, among the parties hereto relating to the
matters contemplated herein and constitutes the entire agreement between the
parties hereto relating to the subject matter hereof. The Parties hereto agree
that each Party and its counsel reviewed and revised this Termination Agreement
and that the normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be employed in the
interpretation of this Termination Agreement.
3.09. Expenses. Each Party shall pay its expenses related to the
preparation of this Termination Agreement.
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IN WITNESS WHEREOF, the parties hereto have made and entered into this
Termination Agreement as of the day and year first written above.
BLUE RIVER BANCSHARES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III, Chairman and
Chief Executive Officer
SHELBY COUNTY BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
HEARTLAND BANCSHARES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and
Chief Executive Officer
HEARTLAND COMMUNITY BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and
Chief Executive Officer
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