This opinion is being delivered to you pursuant to Section ____ of the Master Agreement. Terms used herein that are defined in the Merger Documents shall have the meanings set forth therein unless otherwise defined herein.
(i) an executed copy of the Merger Documents, including the Disclosure Schedules of PCB and Peoples;
(iii) PCB’s articles of incorporation, certified as true and correct by the Indiana Secretary of State as of [__________], 2005;
(iv) PCB’s bylaws, certified as true and correct by PCB’s Secretary as of the date hereof;
(v) Peoples’ charter, certified as true and correct by the OTS as of [_________], 2005;
(vi) Peoples’ bylaws, certified as true and correct by Peoples’ Secretary as of the date hereof;
(vii) an incumbency certificate signed by certain officers of PCB as of the date hereof;
(viii) an incumbency certificate signed by certain officers of Peoples as of the date hereof;
(ix) a Certificate of Existence from the Secretary of State of the State of Indiana dated [_________], 2005 as to the existence of PCB;
(x) a Certificate of Corporate Existence from the OTS dated [_________], 2005 as to the existence of Peoples;
(xi) certain resolutions of the Board of Directors of PCB adopted at a meeting held on May [__], 2005, as certified by the Secretary of PCB as being complete, accurate and in effect, relating to, among other things, authorization of the Merger Documents and matters related thereto;
(xii) certain resolutions of the Board of Directors of PCB adopted at a meeting held on [_____________], 2005, as certified by the Secretary of PCB as being complete, accurate and in effect, relating to, among other things, calling of a special meeting of shareholders for the purpose of approving the Merger Documents and matters related thereto;
(xiii) certain resolutions of the Board of Directors of Peoples adopted at a meeting held on May [__], 2005, as certified by the Secretary of Peoples as being complete, accurate and in effect, relating to, among other things, authorization of the Merger Documents and matters related thereto;
(xiv) certain resolutions of the shareholders of PCB adopted at a meeting held on [____________], 2005, as certified by the Secretary of PCB as being complete, accurate and in effect, relating to the approval and adoption of the Merger Documents;
(xv) certain resolutions of the sole shareholder of Peoples adopted by written consent on [____________], 2005, as certified by the Secretary of Peoples as being complete, accurate and in effect, relating to the approval and adoption of the Merger Documents;
(xvi) a certificate of the President and Chief Executive Officer of PCB, dated the date hereof, as to certain facts relating to PCB; and
(xvii) a certificate of the President and Chief Executive Officer of Peoples, dated the date hereof, as to certain facts relating to Peoples.
Other than our review of the Documents, we have not made any independent review or investigation of factual or other matters for the purpose of rendering this opinion. In addition, we have, with your consent, relied without independent review or investigation upon the representations and warranties of PCB and Peoples in the Merger Documents and on the statements of officers of PCB and Peoples made in certificates and other documents delivered at the Closing pursuant to the Merger Documents.
In our examination of the Documents, we have assumed but not verified (i) the genuineness of all signatures, (ii) the authenticity of all documents submitted to us as originals, (iii) the conformity with the originals of all documents supplied to us as copies, (iv) the accuracy and completeness of all corporate records and documents, certificates and statements of fact, in each case given or made available to us by PCB or Peoples, and (v) that the Merger Documents been duly and validly executed and delivered by, and constitute the legal, valid, binding and enforceable agreements of, German American and First State.
We are opining herein as to the effects on the subject transactions only of the federal banking laws of the United States of America and the corporate laws of the State of Indiana. We express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other state or jurisdiction or as to any matters of municipal law or the laws of any local agencies within any state.
This opinion letter shall be governed by the provisions of the Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Laws (1991). As a consequence, it is subject to a number of qualifications, exceptions, definitions, limitations on coverage and other limitations, all as more particularly described in the Accord, and this opinion letter should be read in conjunction therewith. All references to “actual knowledge” as used herein shall have the meaning of “Actual Knowledge” as set forth in the Accord.
On the basis of the foregoing and the other matters set forth herein, we hereby are of the opinion that:
1. | PCB exists as a corporation under the laws of the State of Indiana. |
2. | Peoples exists as a federal savings bank under the laws of the United States. |
3. Each of PCB and Peoples has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus, to enter into the Merger Documents and to merge with German American and First State, respectively, in accordance with the terms of the Merger Documents.
4. All corporate acts required to be taken by PCB and Peoples to authorize the execution, delivery and performance of the Merger Documents have been duly taken.
5. The Merger Documents have been duly executed and delivered by PCB and Peoples and constitute legal, valid, and binding obligations of PCB and Peoples enforceable against PCB and Peoples in accordance with their terms, subject to the provisions of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or similar laws affecting the enforceability of creditors’ rights generally from time to time in effect and equitable principles relating to the granting of specific performance and other equitable remedies as a matter of judicial discretion.
6. To our actual knowledge, neither the execution and delivery by PCB and Peoples of the Merger Documents nor the consummation of the transactions contemplated by the Merger Documents will (i) violate the Articles of Incorporation or Bylaws of PCB or the Charter or Bylaws of Peoples, (ii) constitute a material default under or material violation of any provision of, nor will the consummation of the transactions contemplated by the Merger Documents afford any party a right to accelerate any indebtedness under, any contract or other commitment or agreement to which PCB or Peoples is a party or by which either PCB or Peoples or its property is bound that is listed on Section 2.18 of PCB’s Disclosure Schedule, or (iii) violate any judgment, order, or decree against PCB or Peoples.
7. PCB’s authorized capital stock consists of 4,000,000 shares of common stock, $0.01 par value, and 1,000,000 shares of preferred stock, $0.01 par value.
8. Peoples’s authorized capital stock consists of 1,000 shares of common stock, $1.00 par value, and 9,000 shares of serial preferred stock, no par value.
Based solely on our review of certificates identified in paragraphs (xvi) and (xvii) above, we hereby confirm to you that, to our actual knowledge, there is no action, suit or proceeding pending or overtly threatened in writing against PCB or Peoples before or by any court or governmental body (a) that seeks to affect the enforceability of the Merger Documents or challenge the validity or property of the transactions contemplated by the Merger Documents or (b) that is likely, if decided adversely to PCB or Peoples, to have a material adverse effect on the financial condition or results of operations.
We assume no obligation to advise you of any events that occur subsequent to the date of this opinion. This opinion is being furnished to you solely for your benefit and may not be relied upon by any other person or for any other purpose and it should not be quoted in whole or in part or otherwise referred to or be filed with or furnished to any governmental agency or other person or entity without our prior express written consent.
Exhibit 1.10(b)(iv)
SUBJECT TO REVIEW AND APPROVAL BY THE ICE MILLER OPINIONS COMMITTEE
[ICE MILLER LETTERHEAD]
[CLOSING DATE]
PCB Holding Company
Peoples Community Bank
819 Main Street
Tell City, Indiana 47586
Ladies and Gentlemen:
We have acted as counsel for German American Bancorp, an Indiana corporation ("German American") in connection with the Agreement and Plan of Reorganization dated May 23, 2005 (the "Master Agreement"), among German American, First State Bank, Southwest Indiana, an Indiana banking corporation ("First State"), PCB Holding Company, an Indiana corporation ("PCB"), and Peoples Community Bank, a federal savings association ("Peoples"), and the Plan of Merger between German American and PCB and the Plan of Merger between First State and Peoples (together, the "Plans of Merger") (the Master Agreement and the Plans of Merger are referred to collectively herein as the "Merger Documents").
This opinion is being delivered to you pursuant to Section 1.09(b)(iv) of the Master Agreement. Terms used herein that are defined in the Merger Documents shall have the meaning set forth therein unless otherwise defined herein.
In connection with this opinion, we have examined and relied upon the Merger Documents, the Articles of Incorporation and Bylaws of German American, and such other corporate documents and records of German American and public documents and records as we have deemed necessary or appropriate for this opinion. As to questions of fact material to our opinion, we have relied upon representations of officers of German American, and public officials, none of which representations have been independently verified by us. In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals and conformity to the original documents of all documents submitted to us as certified or photostatic copies, the authenticity of the originals of the latter documents, and the due authorization, execution and delivery of all documents by parties other than German American.
Except as stated above, we have not undertaken any independent investigation in connection with this opinion to determine the existence or absence of facts, and any limited inquiries made by use for the preparation of this opinion are not to be regarded as such an investigation. Whenever our opinion herein with respect to the existence or absence of facts is qualified by the phrase "to our knowledge" or similar language, such qualification means that during the course of our representation of German American, no information has come to our attention that would give us actual knowledge of the existence or absence of such fact, as appropriate.
We express no opinion regarding the applicability of the registration requirements or other provisions of the securities laws of any jurisdiction to the transactions contemplated by the Merger Documents.
Based solely on the foregoing and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that:
1. German American and First State are corporations duly incorporated and validly existing under the laws of the State of Indiana. Each of German American and First State has all requisite corporate power and authority and all licenses, permits, and authorizations necessary to own and operate its properties and assets, to incur all of its liabilities, and to carry on its business as it is now being conducted. German American and First State have all requisite corporate power and authority to enter into the Merger Documents, and to merge with PCB and Peoples, respectively, in accordance with the terms of the Merger Documents, and to consummate the transactions contemplated by the Merger Documents.
2. All corporate acts and other proceedings required to be taken by German American and First State to authorize the execution, delivery and performance of the Merger Documents have been duly taken. The Merger Documents have been duly executed and delivered by German American and First State and constitute the legal, valid and binding obligation of German American and First State enforceable in accordance with their terms, subject to the provisions of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or similar laws affecting the enforceability of creditors' rights generally from time to time in effect and equitable principles relating to the granting of specific performance and other equitable remedies as a matter of judicial discretion.
3. To the best of our knowledge, neither the execution and delivery by German American or First State of the Merger Documents nor the consummation of the transactions contemplated by the Merger Documents will constitute a default under or a material violation of any provision of, nor will the consummation of the transaction contemplated by the Merger Documents afford any party a right to accelerate any indebtedness under, the Articles of Incorporation or Bylaws of German American or First State, any material promissory note, indenture or other evidence of indebtedness or security therefor, or any material lease, contract, or other commitment or agreement to which German American or First State is a party or by which German American, First State or their property is bound, or any judgment, order, or decree against German American or First State.
4. Except as set forth in the Merger Documents and to the best of our knowledge, no consent, approval, order or authorization of, or registration, declaration or filing with or notice to any court, administrative agency, or commission or other governmental authority or instrumentality, domestic or foreign, or any other governmental entity or entities is required to be obtained or made by German American or First State in connection with the execution and delivery of the Merger Documents or the consummation by German American and First State of the transaction contemplated by the Merger Documents.
5. German American's authorized capital stock consists of 20,000,000 shares of common stock, no par value, $1 stated value ("German American Common"), and 500,000 shares of preferred stock, $10.00 par value.
6. The shares of German American Common that are to be issued to the stockholders of PCB pursuant to the Holding Company Merger have been duly authorized and, when so issued in accordance with the terms of the Merger Documents, will be validly issued, fully paid and nonassessable.
This opinion is solely for the benefit of the addressees hereof in connection with the closing of the transactions contemplated by the Merger Documents, and no other person or entity may rely upon this opinion without the prior, express written consent of this firm. This opinion is based on our knowledge of the law and facts as of the date hereof, and we assume no duty to communicate with you with respect to any matter that comes to our attention hereafter.
Very truly yours, |
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Ice Miller |
Exhibit 6.01(k)
VOTING AGREEMENT
In consideration of the execution by German American Bancorp ("German American") of the Agreement and Plan of Reorganization among German American, PCB Holding Company ("PCB"), and others, effective as of May 23, 2005 (the "Merger Agreement"), each of the undersigned members of the Board of Directors (the "Directors") severally hereby agrees that he shall vote all shares of common stock of PCB owned by him of record to be voted in favor of the merger of PCB with and into German American in accordance with and pursuant to the terms of the Merger Agreement at the meeting of shareholders of Peoples called for that purpose. In addition, each Director agrees that he shall use his best efforts to cause to be voted all shares of common stock of PCB that may be deemed under Regulation 13D-G of the United States Securities and Exchange Commission to be "beneficially owned" by him, including but not limited to all shares shown as owned beneficially by him opposite his signature below. All such shares owned of record or beneficially by each such Director are referred to collectively in this Voting Agreement as the "Shares." Each of the Directors further agrees and covenants that he shall not sell, assign, transfer, dispose or otherwise convey, nor shall he cause, consent to, authorize or approve the sale, assignment, transfer, disposition or other conveyance of any of the Shares, or any voting, proxy, or other interest in the Shares, to any other person, trust or entity prior to the meeting of shareholders of PCB called for the purpose of voting on the Merger Agreement, other than transfers by will or by operation of law. The obligations of each of the Directors under the terms of this Voting Agreement shall terminate contemporaneously with any termination of the Merger Agreement.
IN WITNESS WHEREOF, German American and the undersigned Directors of PCB have made and executed this Voting Agreement as of _________, 2005 [insert date of mailing of the Prospectus/Proxy Statement].
| | GERMAN AMERICAN BANCORP
By:
DIRECTORS OF PCB HOLDING COMPANY:
Carl D. Smith
Shares Directly Owned: 6,687
Shares Beneficially Owned: 998
Mark L. Ress
Shares Directly Owned: 7,642
Shares Beneficially Owned: —
David L. Lasher
Shares Directly Owned: 456
Shares Beneficially Owned: —
James G. Tyler
Shares Directly Owned: 4,570
Shares Beneficially Owned: —
Daniel P. Lutgring
Shares Directly Owned: 3,202
Shares Beneficially Owned: 2,174
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