EXHIBIT 10.1
EXECUTION VERSION
TRUST AND ASSET MANAGEMENT BUSINESS
ASSET PURCHASE
AGREEMENT
BY AND AMONG
MARSHALL & ILSLEY TRUST COMPANY N.A.,
FIRST INDIANA BANK, N.A.
AND
FIRST INDIANA CORPORATION
Dated as of October 21, 2005
<PAGE>
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS.........................................................1
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ARTICLE 2 PURCHASE AND SALE OF THE
BUSINESS...................................9
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2.1 Purchase
and Sale................................. 9
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2.2 Assumed
Liabilities...............................10
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2.3 Retained
Liabilities..............................10
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2.4 Method of
Transfer................................11
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ARTICLE 3 PAYMENT 12
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3.1 Purchase
Price....................................12
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3.2 Payment of
Purchase Price.........................12
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3.3 Revenue
Incentive Amounts and Sustained Growth
Incentive Amount..................................13
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ARTICLE 4 THE
CLOSING........................................................15
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4.1 Closing
Time and Place............................15
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4.2 Deliveries
of Seller at Closing...................16
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4.3 Deliveries
of the Buyer at Closing................17
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ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF
THE SELLER.......................18
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5.1
Organization......................................18
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5.2
Authorization.....................................18
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5.3
Execution and Binding
Effect......................18
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5.4 Absence of
Conflicts..............................19
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5.5
Litigation........................................19
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5.6
Brokers...........................................19
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5.7 Trust
Agreements and Ancillary Agreements.........19
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5.8
Transferred Contracts.............................21
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5.9 Property
and Equipment............................21
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5.10
Compliance with Laws..............................22
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5.11 Fee
Schedules.....................................22
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5.12
Employees and Employee Benefit Plans; Notices.....22
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5.13
Taxes.............................................23
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5.14
Financial Information.............................24
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5.15
Books and Records.................................24
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5.16
Consents..........................................24
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5.17
Schedules.........................................25
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<PAGE>
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF
THE BUYER........................25
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6.1
Organization......................................25
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6.2
Authorization.....................................25
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6.3 Execution
and Binding Effect......................25
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6.4 Compliance
with Other Instruments.................26
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6.5 Compliance
with Laws..............................26
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6.6
Litigation; Claims................................26
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6.7
Brokers...........................................26
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6.8
Consents..........................................26
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6.9
Schedules.........................................27
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6.10
Material Adverse Effect...........................27
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ARTICLE 7 COVENANTS OF THE
SELLER............................................27
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7.1 Additional
Information............................27
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7.2
Cooperation.......................................27
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7.3
Consents..........................................27
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7.4 Conduct of
the Business...........................28
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7.5 Collection
of Accounts Receivable.................29
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7.6 Supplement
to Schedules...........................30
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ARTICLE 8 COVENANTS OF THE
BUYER.............................................30
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8.1
Cooperation.......................................30
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8.2
Consents..........................................31
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8.3 Supplement
to Schedules...........................31
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ARTICLE 9 CONDITIONS PRECEDENT TO THE
BUYER'S OBLIGATIONS....................31
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9.1
Representations and Warranties True at Closing
Date..............................................31
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9.2 Seller's
Performance..............................31
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9.3 Required
Consents.................................31
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9.4 No
Governmental Orders............................32
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ARTICLE 10 CONDITIONS PRECEDENT TO THE
SELLER'S OBLIGATIONS..................32
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10.1
Representations and Warranties True at Closing
Date..............................................32
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10.2
Buyer's Performance...............................32
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10.3
Required Consents.................................32
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10.4
No Governmental Orders............................33
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ARTICLE 11 FURTHER
COVENANTS.................................................33
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11.1
Employees and Employee Benefits...................33
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11.2
Proration of Fees and Expenses....................36
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11.3
Noncompete and Nonsolicitation....................37
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11.4
Lease of Premises.................................38
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<PAGE>
ARTICLE 12 POST-CLOSING
COVENANTS............................................39
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12.1
Further Assurances................................39
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12.2
Conversion Plan...................................39
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12.3
Access to Files...................................40
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ARTICLE 13
INDEMNIFICATION...................................................40
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13.1
Indemnification...................................40
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13.2
Limitations on Claims.............................41
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13.3
Remedies Exclusive................................43
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13.4
Exclusion Relating to Transfer of Agreements......44
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13.5
Mitigation of Damages.............................44
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13.6
Enforcement.......................................45
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13.7
Tax
Treatment of Indemnification Payments.........45
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13.8
Arbitration.......................................45
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ARTICLE 14
TERMINATION.......................................................45
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14.1
Termination Events................................45
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14.2
Effect of Termination.............................46
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ARTICLE 15 SURVIVAL OF
PROVISIONS............................................46
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ARTICLE 16
GENERAL...........................................................47
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16.1
Communications Plan; Press Releases...............47
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16.2
Entire Agreement..................................47
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16.3
Amendment.........................................47
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16.4
Binding Effect....................................47
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16.5
Notices...........................................48
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16.6
Provisions Separable..............................49
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16.7
Captions..........................................49
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16.8
Expenses..........................................49
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16.9
Time Deadlines....................................49
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16.10
Construction......................................50
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16.11
Number and Gender.................................50
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16.12
Scope of Agreement................................50
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16.13
Governing Law.....................................50
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16.14
Waiver............................................50
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16.15 No
Third Party Beneficiary Rights.................50
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16.16
Counterparts......................................51
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<PAGE>
Exhibits and Schedules
Exhibit A
Instrument of Assumption
Schedule 1.1...............Accounts
Receivable
Schedule 1.2...............Furniture and
Equipment
Schedule 1.3...............List of
Prospects
Schedule 1.4...............New Accounts
Schedule 1.5...............Transferred
Contracts
Schedule 5.5...............Litigation
Schedule 5.7(a)............Trust Agreement
and Ancillary Agreement Customers
Schedule 5.7(b)............Excluded Trust
Agreement and Excluded Ancillary
Agreement Customers
Schedule 5.7(c)............Aggregated
Balances and Holdings of Customers
Schedule 5.7(g)............Notices from
Customers regarding Discontinuation,
Termination or Modification of Trust Agreements or
Ancillary Agreements
Schedule 5.12(c)...........Employees Having
Received Written Warnings from
Seller
Schedule 5.12(d)...........Employee Benefit
Plans
Schedule 5.13..............Untimely Tax
Filings
Schedule 5.14..............Financial
Information
Schedule 5.15..............Inaccurate or
Unreconciled Trust Accounting System
Records
Schedule 5.16..............Seller's
Required Consents
Schedule 6.8...............Buyer's Required
Consents
Schedule 11.1(a)...........Employee
Information
Schedule 11.1(e)...........Stock Based
Awards Held by Employees
Schedule 11.2(a)...........Fees and
Expenses Billed by Seller Prior to Closing
Schedule 11.2(b)...........Fees and
Expenses to be Billed by Buyer Following
Closing
Schedule 11.2(c)...........Prepaid Fees and
Expenses with Respect to Trust
Agreements
Schedule 11.3..............List of
Nonsolicitation Banking Customers
<PAGE>
TRUST AND ASSET MANAGEMENT BUSINESS ASSET PURCHASE AGREEMENT
This TRUST AND
ASSET MANAGEMENT
BUSINESS ASSET
PURCHASE AGREEMENT
(this
"Agreement") is made as of this 21st day of
October, 2005 by and among First
Indiana Bank, N.A., a national banking association with its principal office
located in Indianapolis, Indiana ("First Indiana Bank"), First Indiana
Corporation, an Indiana corporation (the "Parent," and together with First
Indiana Bank, the "Seller"), and Marshall & Ilsley Trust Company N.A., a
national banking association with its principal office located in Milwaukee,
Wisconsin (the "Buyer").
Background
The Buyer wishes
to purchase from the
Seller and the Seller wishes to sell
to the Buyer the trust and asset
management
business of the Seller, as such
business is described herein.
Terms
NOW THEREFORE,
in consideration of and subject to each of the
covenants,
representations, warranties, terms and conditions hereinafter set forth,
intending to be legally bound, the Seller
and the Buyer hereby agree as follows:
ARTICLE 1
DEFINITIONS
The following
terms, as used herein, have the following meanings:
"Account" shall
mean any arrangement,
however characterized,
with respect
to which the Seller acts as trustee, custodian, paying agent, investment
manager, record-keeper or in a similar
capacity under a Trust Agreement.
"Account
Documentation" shall mean the agreements, books, records and
other
data relating to the Business, including all files, reports, income tax
information and other tax deposit records maintained in connection with the
Business, mailing lists, accounting
records, documentation or records relating
<PAGE>
to the Business
or as a result of the provision of services under the Trust
Agreements (except that no records relating to Trust Agreements governing
Accounts which were terminated on or prior to the
Closing Date and have no cash
balances or obligations outstanding shall be transferred hereunder, and such
obligations shall remain the obligations of
the Seller).
"Accounts
Receivable" shall mean all receivables outstanding on the
Closing
Date and due to the Seller arising under any Trust Agreement or Ancillary
Agreement, as set forth on Schedule 1.1
hereof.
"Acquired
Competing Business" shall have the meaning
set forth in Section
11.3(b) hereof.
"Administrative
Fee" shall mean any
account-level fee, including, but not
limited to, trustee, custodial, paying agent, record-keeping, or asset
management fees, or any other fee charged to any
Customer relating to a
Trust
Agreement or Ancillary Agreement during the period identified on Schedule
5.7(a).
"Affiliate"
shall mean, with respect to any Person, another Person
which, directly or indirectly, owns or
controls, is owned or controlled by, or
is under common ownership or common control
with such Person.
"Agreement"
shall have the meaning set forth in the introductory
paragraph hereof.
"Ancillary
Agreements" shall mean, collectively, the agreements (other
than
Trust Agreements and Excluded
Trust Agreements, certificates or instruments
entered into by or on behalf of the Seller as a trustee, custodian, paying
agent, investment manager, record-keeper or in a similar capacity with any
Person, or under which the Seller, in a trustee, custodial, paying agent,
investment manager or record-keeping capacity, has rights or obligations in
connection with a Trust Agreement that are in effect on
the date hereof or are
entered into after the date hereof but on
or before the Closing Date.
"Applicable Law"
shall mean any law, rule, regulation, policy statement
or regulatory bulletin enacted, promulgated
or issued by any government entity,
<PAGE>
whether federal,
state or local, that are applicable to or binding upon the
Business, the transaction contemplated by
this Agreement or the parties hereto.
"Assets Under
Management"
shall have the meaning
set forth in Section 3.1
hereof.
"Assumed
Liabilities"
shall have the
meaning set forth in Section 2.2
hereof.
"Business Day"
shall mean any day which is not a Saturday, Sunday or a day
on which banks in either Indiana or
Wisconsin are authorized or obligated by law
or executive order to be closed.
"Business" shall
mean the trust and asset management business conducted by
the Seller, including, individually and collectively, all assignable right,
title and interest of the Seller in and to
the following
relating to the
trust
and asset management business conducted by the Seller,
but excluding all of the
Retained Assets:
(a) all of the
Trust Agreements
(excluding the Excluded Trust Agreements)
and Ancillary Agreements;
(b) funds, cash, securities and other assets held by the Seller as a
trustee, custodian, and/or investment manager pursuant
to the Trust Agreements
and the Ancillary Agreements;
(c) the Accounts Receivable;
(d) the Transferred Contracts;
(e) the Account Documentation;
(f) those items of equipment,
furniture,
computer hardware and
other tangible
personal
property that are owned by the Seller and used primarily in
connection
with the operation of the Business that Buyer agrees to
purchase, as set
forth by separate location in Schedule 1.2 hereto;
<PAGE>
(g) a list of prospects, pending proposals and the like,
segregated into those
prospects,
pending proposals and the like that relate to the Seller's
trust
and asset
management business ("Trust Prospects"), as set forth in
Schedule
1.3 hereto;
(h) all income tax information reporting and other tax records
maintained in
connection with
the Business; and
(i) all assets owned by Seller and used primarily in the conduct of the
Seller's trust
and asset management
business and required
by the Buyer to
conduct such
business following the Closing and that the Buyer
elects to
acquire
hereunder, if any, other than governmental licenses and the
like.
"Buyer Employee
Offer Schedule" shall have the meaning set forth in Section
11.1(b) hereof.
"Buyer
Indemnified
Parties" shall have the meaning set forth in Section
13.1(a) hereof.
"Buyer's
Knowledge"
shall mean the actual
knowledge of any senior officer
employed in the trust and asset management
business of the Buyer.
"Buyer's
Required Consents" shall have the meaning set forth in Section
6.8 hereof.
"Change of
Control" shall mean, with respect to any Person, the occurrence
of any of the following:
(a) the direct
or indirect sale, transfer, conveyance or other
disposition
(other than by way of merger or
consolidation), in one or more series of related
transactions, of all or substantially all of the properties or assets of
such
Person to any "person" (as such term is
used in Section 13(d) of the Securities
Exchange Act of 1934, as amended);
(b) the adoption of a plan relating to
the liquidation
or dissolution of
such
Person; or
(c) the consummation of any
transaction
(including, without
limitation,
any
merger
or consolidation) as a result any other Person becomes the
beneficial
owner, directly or indirectly,
of more than 40% of
the voting
stock of such
Person.
<PAGE>
"Claims" shall
have the meaning set forth in Section 5.5 hereof.
"Closing" shall
have the meaning set forth in Section 4.1 hereof.
"Closing Date"
shall mean the date on which the Closing occurs.
"Code" shall
mean the Internal
Revenue Code of 1986,
as amended, and
the
rules and regulations promulgated
thereunder.
"Commercially
Reasonable Efforts" shall mean diligent efforts by a party to
fulfill a responsibility that are
objectively reasonable taking into account all
of the relevant circumstances; provided that the exercise of commercially
reasonable efforts by a party shall not
require such party to
pay any bonus or
premium or make any financial concession to any Person, except as otherwise
specified herein.
"Competing
Business" shall have the meaning set forth
in Section 11.3(a)
hereof.
"Conversion
Plan" shall have the meaning set forth in Section 12.2 hereof.
"Customers"
shall mean, individually and collectively, those Persons
counter to the Seller in the Trust
Agreements.
"Damages"
shall
mean all actions, costs, damages, disbursements,
obligations, penalties, liabilities, Taxes, losses, diminution in value,
charges, expenses, assessments, judgments, settlements or deficiencies of
any
nature whatsoever, whether foreseeable or unforeseeable
(including,
without
limitation, any reasonable legal expenses, and any interest, penalties,
investigation, accounting and other costs and expenses incurred in the
investigation, collection, prosecution and defense of any action, suit,
proceeding or claim and amounts paid in settlement) that may be imposed or
otherwise incurred or suffered by an
indemnified party.
"Designated
Employees" shall have
the meaning set forth in Section 11.1(b)
hereof.
"Employees"
shall mean all current employees of the Business.
<PAGE>
"ERISA" shall
mean the Employee
Retirement Income Security Act of 1974, as
amended, and the rules and regulations
promulgated thereunder.
"Excluded
Ancillary Agreements"
shall mean,
collectively, the
agreements
(other than Trust Agreements, Ancillary Agreements and Excluded Trust
Agreements), instruments, certificates or other
documents entered into by or on
behalf of the Seller as a trustee,
custodian, paying
agent, investment manager,
record-keeper or in a similar capacity with any Person, or under which the
Seller, in a trustee, custodial, paying agent, investment manager or
record-keeping capacity, has rights or obligations in
connection with a
Trust
Agreement that are in effect on the date
hereof or are entered
into after the
date hereof but on or before the Closing
Date.
"Excluded
Documents"
shall mean documents
determined by the
Seller to be
subject to the attorney-client privilege, which determination shall be
conclusive, and other documents related to the Business that Buyer
and Seller
expressly agree in writing do not need to
be transferred as a result of the sale
of the Business hereunder.
"Excluded
Employees" shall mean
those employees working in the Business as
listed on Schedule 11.2(b).
"Excluded Trust
Agreements" shall mean:
(a) those Trust
Agreements in respect
of which the Customer (i) objects in
writing to the designation of the Buyer as
successor trustee,
custodian, paying
agent, investment manager and/or
record-keeper, (ii)
names a successor trustee,
custodian, paying agent, investment manager
and/or record-keeper other than the
Buyer, and (iii) provides the Seller with information as the Seller may
reasonably request in connection with a Customer's appointment of a successor
trustee, custodian, paying agent,
investment manager and/or record-keeper (other
than the Buyer) where such information is provided before the
Trust Agreements
and Ancillary Agreements were to be
transferred and assigned; and
(b) those Trust
Agreements which Buyer determines cannot be sold, assigned,
transferred or conveyed to, and assumed by Buyer under
Applicable
Law or the
terms of the underlying Trust Agreement or
related account documentation,
<PAGE>
unless the
Customer consents to
the transfer of its
agreement to Buyer or
agrees to enter into a new agreement
with the Buyer
appointing
the Buyer as a
successor trustee, custodian, paying agent, investment manager and/or
record-keeper, as the case may be.
"Fees" shall
mean all revenues
currently charged by the Seller and paid by
Customers or any other Person for services
provided under the
Trust Agreements
or in respect of the Business, including,
without limitation, (i) Administrative
Fees (ii) any "12b-1", subtransfer agent, shareholder servicing or other fees
paid by any mutual fund company or other
unrelated third party.
"Gross Revenues"
shall have the meaning set forth in Section 3.3(a) hereof.
"Indemnified
Party" shall have the meaning
set forth in Section
13.2(d)
hereof.
"Indemnifying
Party" shall have the meaning set forth
in Section 13.2(d)
hereof.
"Leased
Premises" shall have the meaning set forth in Section 11.4
hereof.
"Material
Adverse Effect" shall mean a material adverse effect on the
operations or revenues of the Business as conducted by the
Seller prior to the
Closing, taken as a whole.
"Maximum
Indemnification
Amount" shall have the meaning set forth in
Section 13.2(a) hereof.
"New
Account" shall mean any Account relating to a Trust Agreement
established with the Seller between the date of this Agreement
and the Closing
Date, as set forth, together with the related
Administrative Fees,
on Schedule
1.4 hereto, and delivered by the Seller to
the Buyer at the Closing.
"Person" shall
mean an individual, corporation, partnership, unincorporated
organization, voluntary association, joint stock company, business trust,
limited liability company or government or any
agency or political
subdivision
thereof or any other entity.
"Purchase Price"
shall have the meaning set forth in Section 3.1 hereof.
<PAGE>
"Retained
Assets" shall mean all of the assets of
the Seller that are not
specifically enumerated in the definition of
"Business" and are not transferred
to the Buyer as a part of the Business,
including, without limitation:
(a) the Excluded
Trust Agreements; and
(b) assets
owned by the Seller
that are not
specifically
related to the
operations of the Business.
"Retained
Liabilities"
shall have the
meaning set forth in Section 2.3
hereof.
"Revenue
Incentive Amount" shall have the meaning set forth in Section
3.3(d) hereof.
"Revenue
Incentive Determination Dates" shall have the meaning set forth
in
Section 3.3(a) hereof.
"Seller
Indemnified
Parties" shall have the meaning set forth
in Section
13.1(b) hereof.
"Seller's
Knowledge"
shall mean the
knowledge deemed to be possessed by
Seller regarding a matter if (a) any executive or senior management level
employee of the Seller has knowledge of the
matter, or (b) such matter has come,
or should reasonably be expected to have
come, to the attention of any executive
or senior management level employee of the
Seller if such person had conducted a
reasonable due diligence review of the
Business's operations
and assets and the
Business, including a review of the books,
records and operations of the Seller
relating to the Business and reasonable inquiries to appropriate personnel
regarding the same.
"Seller's
Required Consents" shall have the meaning set forth
in Section
5.16 hereof.
"Sustained
Growth Incentive Amount" shall have the meaning set forth
in
Section 3.3(e) hereof.
"Tax" or "Taxes"
shall mean any net income, alternative or add-on minimum
tax, gross income, gross receipts, sales,
use, ad valorem,
franchise,
capital,
profits, license, withholding, payroll, employment, excise, severance, stamp,
occupation, premium, property, custom duty,
transfer, documentary or
<PAGE>
other tax,
governmental fee or
other like assessment or charge of any kind
whatsoever, including any obligation to contribute to the payment of a Tax
determined upon a consolidated, combined or unitary basis with
respect to the
Seller, any information reporting or
back-up withholding
obligation,
liability
or penalty, together with any interest or any penalty, addition to tax or
additional amount imposed by any governmental authority responsible for the
imposition of any such tax.
"Three-Year
Period" shall have the meaning
set forth in Section
11.3(a)
hereof.
"Threshold"
shall have the meaning set forth in Section 13.2(a) hereof.
"Transferred
Contracts"
shall mean those
contracts specified on
Schedule
1.5 hereto.
"Transferred
Employees" shall have the meaning set forth in Section
11.1(d) hereof.
"Trust
Agreement"
shall mean each
agreement,
including any investment
management agency agreement, that, as of
the Closing Date, designates the Seller
as trustee, custodian, paying agent, or in
other similar capacities on behalf of
Customers, as specified on Schedule 5.7(a),
Schedule 5.7(b) and Schedule 5.7(c)
hereto.
"Trust
Prospects"
shall have the
meaning set forth in
Section (i) of the
definition of "Business" in this Article
1.
ARTICLE 2
PURCHASE AND SALE OF THE BUSINESS
2.1 Purchase and
Sale. Subject to the terms, provisions and conditions set
forth herein, the Seller hereby agrees to
sell, assign,
transfer and convey
to
the Buyer, and the Buyer agrees to
purchase, acquire and accept from the Seller,
at the Closing, in the manner set forth in Section
2.4 hereof, all right, title
and interest of the Seller in the
Business in
consideration
for the Purchase
Price and the assumption by the Buyer of
the Assumed Liabilities. In connection
with such sale, assignment, transfer and conveyance,
the Seller undertakes
to
sell, assign, transfer and convey to the Buyer all assets
owned by the Seller
with respect to each Trust Agreement and Ancillary Agreement and all of the
assets that the Seller is required to hold
or otherwise control pursuant to each
such Trust Agreement and Ancillary
Agreement.
<PAGE>
2.2 Assumed
Liabilities.
After the Closing
Date, the Buyer shall assume
only those liabilities and obligations
which relate to the Business as set forth
below (the "Assumed Liabilities"). The
Assumed Liabilities shall not include any
Retained Liabilities but shall consist only of the
following liabilities
and
obligations arising after the Closing
Date:
(a) all
liabilities
and obligations of the Buyer as successor to the
Business with respect to all of the assets
transferred to the
Buyer hereunder,
including without limitation all liabilities
and obligations
under the Trust
Agreements and the Ancillary Agreements that are due to be performed in the
period after the Closing Date, arising in the ordinary course of business;
provided however, that Buyer shall not assume or be
responsible
for any such
liabilities or obligations which arise from breaches thereof or defaults
thereunder by Seller;
(b) the liabilities and obligations of the Buyer relating to the
Transferred Employees to the extent
specified in Section 11.1 hereof; and
(c) certain
liabilities
and obligations in connection with the Leased
Premises as set forth in Section 11.4
hereof.
2.3 Retained Liabilities. Notwithstanding anything to the contrary set
forth in this Agreement, the Buyer shall assume only the
Assumed
Liabilities.
The Seller shall retain all liabilities not so assumed by the Buyer,
which
liabilities shall be hereinafter
referred to as the
"Retained Liabilities"
and
which shall include, without limitation,
the following:
(a) all
liabilities
and obligations of the Seller relating to (i) the
period prior to and including the Closing Date or (ii)
incurred in
connection
with the Retained Assets including, but not
limited to, all escheat obligations;
provided, however, that in the event any
asset that is subject to escheatment is
transferred to the Buyer hereunder,
the Buyer shall
escheat such asset upon the
request of the Seller;
(b) all
liabilities and obligations of the Seller for Taxes attributable
to
the conduct of the Business for all periods
prior to and
including the
Closing
Date;
<PAGE>
(c) all
liabilities
and obligations of the Seller arising in
connection
with its operations unrelated to the
Business; and
(d) (i) with respect to Transferred Employees, all liabilities and
obligations of the Seller relating to such
Transferred
Employees in the
period
on or before the Closing Date and those liabilities and obligations in the
period following the Closing Date specified in Section 11.1 hereof,
and (ii)
with respect to all other Employees, all liabilities and obligations of the
Seller relating to such other
Employees.
2.4 Method of
Transfer. The parties
intend that the Seller
shall, to the
extent not prohibited by Applicable
Law, transfer and assign to the Buyer
the
Trust Agreements and Ancillary Agreements
on the Closing Date in accordance with
the following procedures:
(a) Where the
Buyer determines that a particular Trust Agreement, Ancillary
Agreement and Applicable Law does not
require the affirmative written consent of
the Customer to the transfer or assignment of the Trust Agreement and any
related Ancillary Agreements, or the Buyer determines that such
written consent
is not appropriate, the Seller shall (i) assign to the
Buyer all rights, duties
and responsibilities of the Seller relating to the
Trust Agreement and related
Ancillary Agreements and the Buyer will be deemed the successor trustee,
custodian, paying agent, investment manager
and/or record-keeper, as applicable,
under such Trust Agreement, effective as of the Closing Date,
and (ii) promptly
deliver to the Customer a notice of the
foregoing,
which will, among other
things, notify the Customer that the Trust
Agreement and
Ancillary
Agreements
will be assigned and transferred by the Seller to the Buyer on or
after a date
following the mailing of such notice.
(b) Where the
Buyer determines that a particular Trust Agreement, Ancillary
Agreement or Applicable Law requires the affirmative written consent of the
Customer to the transfer or assignment
of such Trust
Agreement and any
related
Ancillary Agreements, or the Buyer determines that such written consent is
appropriate, (i) the Buyer and the Seller shall
request the Customer's
written
consent to the transfer or assignment of the related Trust Agreement and any
related Ancillary Agreements, (ii) the Buyer and the
Seller shall promptly
<PAGE>
notify the Customer that the Trust Agreement and any related Ancillary
Agreements will, if the Customer consents in writing, be assigned and
transferred by the Seller to the Buyer on or
after a date following the mailing
of such notice, and (iii) the Seller shall resign as the trustee,
custodian,
paying agent, investment manager and/or
record-keeper, as applicable, under such
Trust Agreements and Ancillary
Agreements if the
Customer has not consented to
the transfer and assignment of such Trust
Agreement and any
related Ancillary
Agreements. If the Customer objects in writing to the
appointment of the Buyer
as successor trustee, custodian, paying agent, investment manager and/or
record-keeper on or before the Closing
Date, and is entitled to, and does,
in
fact, name a successor trustee, custodian, paying agent, investment manager
and/or record-keeper other than Buyer, then such Trust Agreements shall be
deemed to be Excluded Trust Agreements and Excluded
Ancillary Agreements and
shall not be transferred and assigned by
the Seller to the Buyer hereunder.
ARTICLE 3
PAYMENT
3.1 Purchase
Price. In consideration for the transfer of the Business
to
the Buyer, Buyer agrees to assume the Assumed Liabilities and to pay to the
Seller an amount equal to the product of the assets under management in
connection with the Business (the "Assets
Under Management") as
of the Closing
Date times .0155 (the "Purchase
Price"). By way of example, the Buyer and the
Seller agree that if September 30, 2005 had been the Closing
Date, the Assets
Under Management would have been equal to Nine
Hundred Eighty Million
Dollars
($980,000,000) and the Purchase Price would
therefore have been Fifteen Million,
One Hundred Ninety Thousand Dollars
($15,190,000).
The Purchase Price
shall be
paid in the manner set forth in Section
3.2.
3.2 Payment of Purchase Price. On the Closing Date, the Seller shall
deliver to the Buyer a certificate executed by Seller certifying as to the
Assets Under Management as of the Closing
Date. The Purchase Price shall be paid
by wire transfer of immediately
available federal
funds to an account which the
Seller shall designate in writing at least two (2)
Business Days prior to
the
Closing.
3.3 Revenue
Incentive Amounts and Sustained Growth Incentive Amount. (a) In
addition to the Purchase Price, the Buyer shall pay to the Seller
the Revenue
<PAGE>
Incentive Amounts and the Sustained
Growth Incentive Amount (each as defined
below), if any, as set forth in Section
3.3(b)-(e), which
shall be based on the
annual gross revenues, determined in a
manner consistent with Buyer's accounting
practices, earned or received by the Buyer
with respect to the Trust Agreements
acquired hereunder or generated by the Business after the Closing Date
(including all gross revenues of the Buyer
and its Affiliates
associated
with
the Business from all services and products of the Buyer and its
Affiliates)
(the "Gross Revenues") in each of the Buyer's
fiscal years ended
December 31,
2006, December 31, 2007 and December 31, 2008 (each such date a "Revenue
Incentive Determination Date"). The Revenue
Incentive Amounts and the Sustained
Growth Incentive Amount, if any, shall be paid in the manner set forth in
Section 3.3(f).
(b) If the
quotient of the Gross Revenues for the Buyer's fiscal year
ended
December 31, 2006 divided by the Gross Revenues for the Buyer's fiscal year
ended December 31, 2005, as determined in
accordance with the Buyer's accounting
practices (the "Base Gross Revenue
Amount"), is greater
than 1.15 but less than
or equal to 1.2, then the Buyer shall pay to the Seller an amount
(the "Year 1
Revenue Incentive Amount") equal to Two Hundred
Thousand Dollars
($200,000);
provided, however, that if such quotient is greater than 1.2, then
the Year 1
Revenue Incentive Amount shall equal Three
Hundred Thousand Dollars ($300,000).
(c) If the
quotient of (i) the Gross Revenues for the Buyer's
fiscal year
ended December 31, 2007 divided by (ii) the product of the
Base Gross Revenue
Amount times 1.15 is greater than 1.15 but less than or equal
to 1.2, then the
Buyer shall pay to the Seller an amount
(the "Year 2 Revenue Incentive Amount")
equal to Two Hundred Thousand Dollars
($200,000);
provided, however, that if
such quotient is greater than 1.2, then the Year 2 Revenue
Incentive Amount
shall equal Three Hundred Thousand Dollars
($300,000).
(d) If the
quotient of (i) the Gross Revenues for the Buyer's
fiscal year
ended December 31, 2008 divided by (ii) the product of the
Base Gross Revenue
Amount times 1.3 is greater than 1.15 but less than or equal
to 1.2, then the
Buyer shall pay to the Seller an amount
(the "Year 3 Revenue Incentive Amount")
equal to Two Hundred Thousand Dollars
($200,000) and, collectively with the Year
1 Revenue Incentive Amount and the Year 2
Revenue Incentive Amount, the "Revenue
Incentive Amounts"); provided, however,
that if such quotient is
<PAGE>
greater
than 1.2, then the Year 3 Revenue
Incentive Amount shall equal
Three Hundred Thousand Dollars
($300,000).
(e) If, at the
end of the Buyer's
three fiscal
years ended
December 31,
2008, the Seller has been entitled to each of the Year 1 Revenue
Incentive
Amount, the Year 2 Revenue Incentive Amount and the Year 3 Revenue
Incentive
Amounts, then the Buyer shall pay to the
seller an additional
amount equal to
Six Hundred Thousand Dollars $600,000 (the
"Sustained Growth Incentive Amount");
provided, however, that if at such time the
Seller has not been entitled to any
one of the Revenue Incentive Amounts, but the aggregate Gross Revenues
for the
Buyer's three fiscal years ended
December 31, 2008 are
equal to or greater than
the product of the Base Gross Revenues
times 1.5209, then the Buyer shall pay to
the seller the Sustained Growth Incentive
Amount.
(f) Within
ninety (90) days following each Revenue Incentive Determination
Date, the Buyer will deliver to the Seller
a certificate,
signed by an
officer
of the Buyer, certifying as to the Gross
Revenues and the
determination of the
Revenue Incentive Amount for the respective fiscal year and, following the
December 31, 2008 Revenue Incentive Determination Date, the Sustained Growth
Incentive Amount. The Buyer will grant the Seller reasonable access to all
books, records and other data related to
the Business during
regular business
hours upon reasonable prior notice for the purpose of verifying the
determination of the Revenue Incentive
Amount and, as applicable, the Sustained
Growth Incentive Amount. Subject to the resolution of any
disputed amount,
the
Revenue Incentive Amount and, as applicable,
the Sustained
Growth Incentive
Amount, will be paid by the Buyer to the
Seller not later than the one hundred
twentieth (120th) day following the
applicable Revenue
Incentive
Determination
Date. The Seller shall, within thirty (30) days after delivery of the
certificate, notify the Buyer in writing of any disagreement with the
calculation of the Gross Revenues (which notice shall specify in detail the
nature of such disagreement), and upon agreement by the Buyer
regarding the
Seller's requested adjustment, an appropriate adjustment to the Revenue
Incentive Amount and/or, as applicable, the Sustained Growth Incentive
Amount,
shall be made thereto. If the Buyer does
not agree to any such adjustment within
five (5) days after receipt of Seller's
notice, then the
portion of the Revenue
Incentive Amount and/or, as applicable, the
Sustained Growth Incentive Amount
<PAGE>
(if any) that is
not subject to any dispute shall be paid as scheduled, and
the disputed elements shall be submitted to
binding resolution by any nationally
recognized independent accounting firm
agreed to by the Buyer and the Seller (an
"Independent Accountant"),which shall be
expressly charged with determining any
disputed Revenue Incentive Amount or Sustained Growth Incentive Amount in
accordance with the terms of this
Agreement. If issues
in dispute are submitted
to the Independent Accountant for
resolution, (i) each party will furnish to the
Independent Accountant such records and
other documents and information relating
to the disputed issues as the Independent Accountant may request and are
available to that party, and will be afforded the
opportunity to present to the
Independent Accountant any material
relating to the determination and to discuss
the determination with the Independent
Accountant; (ii) the determination by the
Independent Accountant, in accordance herewith and as set forth in a notice
delivered to both parties by the Independent Accountant, will be binding and
conclusive on the parties; and (iii) the costs and expenses
of such Independent
Accountant shall be borne by the non-prevailing party with respect to such
dispute. Any remaining Revenue Incentive
Amount and/or, as applicable, Sustained
Growth Incentive Amount, will be paid by the Buyer to the
Seller promptly after
the Independent Accountant's determination. If the Independent Accountant
determines that the Revenue Incentive Amount and/or, as applicable, the
Sustained Growth Incentive Amount paid by the Buyer
exceeds the actual Revenue
Incentive Amount and/or, as applicable, the Sustained Growth Incentive
Amount
determined by the Independent Accountant, the Seller shall promptly pay
Buyer
the amount of any such excess.
ARTICLE 4
THE CLOSING
4.1 Closing Time and Place. The consummation of the transactions
contemplated by this Agreement shall take place
at a closing (the "Closing") to
be held beginning at 10:00 AM on January
1, 2006 at the
offices of Godfrey
&
Kahn, S.C., located at 780 North Water
Street, Milwaukee,
Wisconsin or at
such
other place and time as the parties may
agree. The Closing may
be accomplished
by the use of facsimile transmission of documents and instruments, including
signature pages, to be delivered at the
Closing, provided that
the originals of
such documents and instruments,
including original signature pages, shall be
delivered promptly after the Closing.
<PAGE>
4.2 Deliveries of Seller at Closing. At the Closing, the Seller will
deliver or cause to be delivered to the
Buyer the following:
(a) the
amounts payable by the Seller to the Buyer
pursuant to Sections
11.2(a), 11.2(c) and 11.2(d) hereof;
(b) a receipt
acknowledging receipt by the Seller of the Purchase Price and
the amount payable by the Buyer to the Seller
pursuant to Section 11.2(b)
hereof;
(c) a
certificate executed by the Seller representing and warranting to
the
Buyer that (i) each of the Seller's
representations and
warranties contained in
Article 5 hereof was true and correct in
all material respects as of the date of
this Agreement and is true and correct in all material respects as of the
Closing Date, with the same force and effect as though newly made as of the
Closing Date except where made as of a
specific date or
otherwise
contemplated
by this Agreement and for purposes of such
certificate;
and (ii) that each
of
the obligations of the Seller to be performed on or before the Closing
Date
pursuant to the terms hereof shall have
been performed in all material respects;
(d) an officer's
incumbency certificate of Seller;
(e) a certified
copy of the
resolutions adopted by
the Board of Directors
of Seller approving this Agreement and the
transactions contemplated hereby;
(f) any
Schedules or updates to any Schedule which are required by the
terms of this Agreement to be delivered by
the Seller at the Closing;
(g) all of
Seller's Required Consents;
(h) a bill of
sale and assignments,
certificates
of title and such
other
instruments of conveyance as the Buyer shall require, in form and substance
satisfactory to the Buyer, each duly executed by the Seller,
conveying to the
Buyer all right, title and interest in the
assets acquired by the Buyer pursuant
to this Agreement; and
<PAGE>
(i) all other
documents,
instruments
of assignment and other writings
required to be delivered by the Seller at or prior to the
Closing pursuant
to
this Agreement.
4.3 Deliveries of the Buyer at Closing.
At the Closing, the Buyer will
deliver or cause to be delivered to the
Seller the following:
(a) the Purchase
Price payable by the Buyer to the Seller
as set forth in
Section 3.1(a) hereof;
(b) the
amount payable by the Buyer to the Seller pursuant to Section
11.2(b) hereof;
(c) a receipt
acknowledging receipt
by the Buyer of the amounts payable by
the Seller to the Buyer pursuant to Sections 11.2(a), 11.2(c) and 11.2(d)
hereof;
(d) a
certificate executed
by the Buyer representing and warranting to the
Seller that (i) each of the Buyer's
representations and
warranties contained in
Article 6 hereof was true and correct in all respects as of the date of this
Agreement and is true and correct in all material respects as of the Closing
Date, with the same force and effect as though
newly made as of the Closing
Date, except where made as of a specific
date or otherwise
contemplated by this
Agreement and for purposes of such certificate; and (ii) that each of the
obligations of the Buyer to be performed on or
before the Closing Date pursuant
to the terms hereof shall have been
performed in all material respects;
(e) an officer's
incumbency certificate of Buyer;
(f) an
instrument of assumption ("Instrument of Assumption") substantially
in the form attached hereto as Exhibit A evidencing the
assumption by the Buyer
of the Assumed Liabilities;
(g) any
Schedules or updates to any Schedule which are required by the
terms of this Agreement to be delivered by
the Buyer at the Closing; and
(h) all other
documents, instruments
and writings required to be delivered
by Buyer at or prior to the Closing
pursuant to this Agreement.
<PAGE>
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE SELLER
5.1
Organization.
(a) First
Indiana Bank is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States and
has the requisite authority to own and operate its
properties
and to carry on
the Business as now conducted; and
(b) the Parent
is a corporation duly
organized,
validly existing and in
good standing under the laws of Indiana and has
the requisite
authority to own
and operate its properties and to carry on
the Business as now conducted.
5.2 Authorization. The Seller has the corporate power and authority to
execute and deliver this Agreement and to
perform its obligations hereunder, and
all such action has been duly and validly
authorized by all necessary corporate
p
