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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Ps Financial Inc

Date:

2001

Size:

Preview shows 19KB of 179KB total

Price:

$60

ID:

#1414920

► Plans ► Agreements ► Agreements & Plans of Merger

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       AGREEMENT AND PLAN OF MERGER

       between

       PNA HOLDING COMPANY

       and

       PS FINANCIAL, INC.

       dated as of June 13, 2001

Next Page

TABLE OF CONTENTS

Page

ARTICLE I

DEFINITIONS			1

ARTICLE II THE MERGERS

	2.1	The Cash-Out Merger	7
	2.2	Effective Time; Closing	7
	2.3	Treatment of Capital Stock of Merger Sub, Seller and Buyer	8
	2.4	Stockholder Rights, Stock Transfers	8
	2.5	Options	8
	2.6	Exchange Procedures	8
	2.7	Dissenting Shares	10
	2.8	Holding Company and Financial Institution Mergers	10
	2.9	Additional Actions	10

ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER

	3.1	Capital Structure	11
	3.2	Organization, Standing and Authority of Seller	11
	3.3	Seller Subsidiaries	12
	3.4	Registration Obligation	12
	3.5	Authorized and Effective Agreement	12
	3.6	Securities Documents and Regulatory Reports	13

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3.7	Financial Statements	13
3.8	Material Adverse Change	14
3.9	Environmental Matters	14
3.10	Tax Matters	14
3.11	Legal Proceedings	15
3.12	Compliance with Laws	15
3.13	Certain Information	16
3.14	Employee Benefit Plans	16
3.15	Certain Contracts	17
3.16	Brokers and Finders	18
3.17	Insurance	18
3.18	Properties	18
3.19	Labor	19
3.20	Allowance for Loan Losses	19
3.21	Material Interests of Certain Persons	19
3.22	Fairness Opinion	19
3.23	Disclosures	20
3.24	No Undisclosed Liabilities	20
3.25	Indemnification	20
3.26	Loan Portfolio	20
3.27	Investment Portfolio	21
3.28	Corporate Records	21
3.29	Interim Events	21
3.30	Defaults	21

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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER

	4.1	Organization, Standing and Authority of Buyer	21
	4.2	Authorized and Effective Agreement	22
	4.3	Regulatory Rights	23
	4.4	Financial Statements	23
	4.5	Material Adverse Change	23
	4.6	Legal Proceeding	24
	4.7	Certain Information	24
	4.8	Brokers and Finders	24
	4.9	Disclosures	24
	4.10	Financial Resources	24

ARTICLE V COVENANTS

	5.1	Reasonable Best Efforts	25
	5.2	Stockholder Meeting	25
	5.3	Regulatory Matters	25
	5.4	Investigation and Confidentiality	26
	5.5	Press Releases	27
	5.6	Business of the Parties	27
	5.7	Certain Actions	30
	5.8	Current Information	30
	5.9	Indemnification; Insurance	30
	5.10	Environmental Reports	31
	5.11	Employees and Employee Benefit Plans	31

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	5.12	Litigation Matters	33
	5.13	Organization of Merger Sub	33
	5.14	Conforming Entries	33
	5.15	Integration of Policies	34
	5.16	Disclosure Supplements	34
	5.17	Failure to Fulfill Conditions	34
	5.18	Proxy Solicitor	34
	5.19	Advisory Directors	35

ARTICLE VI CONDITIONS PRECEDENT

	6.1	Conditions Precedent - Buyer and Seller	35
	6.2	Conditions Precedent - Seller	36
	6.3	Conditions Precedent - Buyer	36

ARTICLE VII TERMINATION, WAIVER AND AMENDMENT

	7.1	Termination	37
	7.2	Effect of Termination	38
	7.3	Survival of Representations, Warranties and Covenants	38
	7.4	Waiver	39
	7.5	Amendment or Supplement	39
	7.6	Liquidated Damages	39

ARTICLE VIII MISCELLANEOUS

	8.1	Expenses	40
	8.2	Entire Agreement	40

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8.3	No Assignment	40
8.4	Notices	40
8.5	Alternative Structure	41
8.6	Interpretation	42
8.7	Counterparts	42
8.8	Governing Law	42
8.9	Severability	42

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       AGREEMENT AND PLAN OF MERGER

       Agreement and Plan of Merger ("Agreement") dated as of June 13, 2001, by and between PNA Holding Company ("Buyer"), an Illinois corporation, and PS Financial, Inc. ("Seller"), a Delaware corporation.

       R E C I T A L S:

       WHEREAS, the Boards of Directors of the Buyer and Seller have determined that it is in their respective best interests for Buyer to acquire Seller pursuant to the terms of this Agreement;

       WHEREAS, to the effect the acquisition, Buyer will form a new corporation ("Merger Sub") under the laws of the State of Delaware, which will be a wholly-owned, first-tier subsidiary of Buyer, and Merger Sub will be merged with and into Seller (the "Cash-Out Merger"), with Seller being the surviving corporation (the "Surviving Corporation"). Immediately after the Cash-Out Merger becomes effective, the Board of Directors of Buyer, acting on behalf of Buyer as the sole stockholder of the Surviving Corporation, shall adopt a merger resolution and the Holding Company Plan of Merger (as defined in Article I) for the merger of the Surviving Corporation with and into the Buyer (the "Holding Company Merger") and Buyer shall file a certificate of ownership and merger with the Secretary of State of Delaware and articles of merger with the Secretary of State of Illinois with respect to the Holding Company Merger. Immediately thereafter, all necessary corporate action will be taken to effect the merger (the "Financial Institution Merger") of Alliance (as defined in Article I) with and into Preferred (as defined in Article I). The Cash-Out Merger, the Holding Company Merger and the Financial Institution Merger are sometimes hereinafter collectively referred to as the "Merger."

       WHEREAS, as an inducement and condition to Buyer's willingness to enter into this Agreement, Buyer and certain of the Directors of Seller will concurrently enter into voting agreements in the form attached hereto as Exhibit A; and

       NOW, THEREFORE, in consideration of such inducements and of the mutual covenants and agreements contained herein, the Parties (as defined in Article I) hereby agree as follows:

       ARTICLE I
       DEFINITIONS

       The following terms shall have the meanings ascribed to them for all purposes of this Agreement.

       "Agreement" shall mean this Agreement as the same may be amended or modified in accordance with its terms.

       "Alliance" shall mean Alliance, FSB, a wholly owned subsidiary of Buyer.

       "Alternative Proposal" shall mean any bona fide written proposal by any person other than Buyer to engage in a merger, consolidation, purchase or lease of substantially all assets,

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      purchase of securities representing more than 20% of the voting power, or any similar transaction involving Seller, in each case for per share consideration to Seller's stockholders in excess of (i) $13.25 per share if the consideration received includes equity securities of the acquiror or (ii) $14.00 per share in all other cases.

       "Buyer" has the meaning set forth in the preamble to this Agreement.

       "Buyer Accountant" shall mean Crowe, Chizek and Company L.L.P., independent certified public accountants with respect to Buyer.

       "Buyer Financial Statements" shall mean (i) the consolidated balance sheets (including related notes and schedules, if any) of Buyer as of September 30, 2000 and 1999 and the consolidated statements of income, changes in stockholders' equity and cash flows (including related notes and schedules, if any) of Buyer for each of its fiscal years since inception and (ii) the consolidated balance sheets of Buyer (including related notes and schedules, if any) and the consolidated statements of income, changes in stockholders' equity and cash flows (including related notes and schedules, if any) of Buyer with respect to each quarterly and annual period ended subsequent to September 30, 2000.

       "Cash-Out Merger" has the meaning set forth in the Recitals of this Agreement.

       "Cause" shall mean termination because of the employee's personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving personal profit, intentional failure to perform stated duties or willful violation of any law, rule or regulation (other than traffic violations or similar offenses).

       "Certificate" shall mean any certificate which prior to the Effective Time represented shares of Seller Common Stock including Seller Restricted Stock.

       "Certificate of Merger" shall mean the certificate of merger to be filed with the Secretary of State of Delaware with respect to the Cash-Out Merger.

       "Closing" shall mean the closing of the Cash-Out Merger at a time and place selected by Buyer no later than five days following the satisfaction or waiver of all conditions set forth in Article VI of this Agreement, provided that Buyer shall have no obligation to schedule Closing prior to September 30, 2001.

       "Closing Date" shall mean the date on which the Closing occurs.

       "Code" shall mean the Internal Revenue Code of 1986, as amended.

       "CRA" shall mean the Community Reinvestment Act.

       "Defined Benefit Plan" shall mean any Seller Employee Plan constituting a defined benefit plan within the meaning of Section 3(35) of ERISA.

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