EXHIBIT 2.1
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 (the "Amendment") to Agreement and Plan of Merger is
entered into as of April 5, 2001, by and among PBOC Holdings, Inc., a savings
institution holding company organized under the laws of the State of Delaware
(the "Holding Company"), FBOP Corporation, a bank and savings institution
holding company organized under the laws of the State of Illinois ("FBOP") and
FBOP Acquisition Company, a corporation organized under the laws of the State of
Delaware ("Acquisition"). Holding Company and Acquisition are sometimes referred
to herein as the "Constituent Corporations."
W I T N E S S E T H:
WHEREAS, Holding Company, FBOP and Acquisition have entered into an
Agreement and Plan of Merger dated as of December 8, 2000 (the "Merger
Agreement") (with terms used herein but not otherwise defined having the
meanings set forth therein);
WHEREAS, four class action lawsuits have been filed against Holding Company,
FBOP and Acquisition and certain directors and officers of Holding Company
alleging a breach of fiduciary duties by the directors of Holding Company in
connection with their approval of the Merger Agreement (the "Litigation");
WHEREAS, Holding Company, FBOP and Acquisition have agreed to enter into a
Memorandum of Understanding with the plaintiffs in the Litigation providing for
the settlement and dismissal with prejudice of the Litigation (the "Memorandum
of Understanding");
WHEREAS, in connection with such settlement, Holding Company, FBOP and
Acquisition have agreed to amend certain provisions of the Merger Agreement;
NOW, THEREFORE, for and in consideration of the foregoing premises and of
the mutual agreements, promises and covenants contained herein, the parties
hereto, intending to be legally bound, hereby agree as follows:
l. EXCLUSIVITY. Article V(b) of the Merger Agreement hereby is deleted in
its entirety and replaced by the following;
"(b) EXCLUSIVITY.
(i) Neither Holding Company, Savings Institution nor any of Holding
Company's other Subsidiaries or any of their respective officers, directors,
employees, representatives, investment bankers (including but not limited to
Sandler O'Neill and Keefe Bruyette), agents or Affiliates (as defined below)
shall directly or indirectly solicit, initiate, or encourage inquiries or
proposals with respect to, furnish any information relating to, or
participate in any negotiations or discussions concerning (i) any merger,
sale of assets not in the ordinary course of business, acquisition, business
combination, change of control or other similar transaction involving
Holding Company or Savings Institution, or (ii) any purchase or other
acquisition by any person of any shares of capital stock of Holding Company
or Savings Institution, or (iii) any issuance by Holding Company or Savings
Institution of any shares of their respective capital stock (each of
(i)-(iii) above being an "Alternative Proposal"). Notwithstanding the
foregoing, Holding Company may furnish information or participate in
negotiations or discussions with respect to a Superior Proposal (as defined
below) if the Board of Directors of Holding Company, after receiving advice
of outside counsel and after consulting with its financial advisors, has
determined in good faith that the failure to do the same would result in a
breach of the fiduciary duties of the Board of Directors of Holding Company
to
its stockholders under applicable Delaware law. Holding Company immediately
will inform FBOP or Acquisition orally and in writing of any unsolicited
offer or request for information relating to an Alternative Proposal or of
any negotiations or discussions relating to a Superior Proposal (including
in each case all relevant terms and conditions of any proposal and the
identity of the party making any such proposal), and will instruct its and
its Subsidiaries' directors, officers, representatives, investment bankers,
agents and Affiliates to refrain from taking any action prohibited by this
Article V(b). In no event may Holding Company provide any information to a
third party in connection with a Superior Proposal that it has not provided
or made available to FBOP or Acquisition.
(ii) In the event that the Board of Directors of Holding Company
determines in good faith, after receiving advice of outside counsel and
after consulting with its financial advisors, that it has received a
Superior Proposal, it shall notify FBOP promptly in writing if it intends to
terminate this Agreement. Concurrently with any such termination (A) the
Board of Directors shall cause Holding Company to execute a letter of intent
or an acquisition agreement with respect to the Superior Proposal, or the
Board of Directors will adopt a resolution recommending acceptance to
Holding Company's stockholders of the Superior Proposal, in each case as
provided in Article XI(a)(vi), and (B) Holding Company shall pay to FBOP the
termination fee set forth in Article XI(b). For purposes of this Agreement,
a "Superior Proposal" means any bona fide written proposal, including a
tender offer, made by a third party (and that did not arise directly or
indirectly as a result of any breach by Holding Company, Savings
Institution, or any of Holding Company's other Subsidiaries or any of their
respective officers, directors, employees, representatives, investment
bankers (including but not limited to Sandler O'Neill and Keefe Bruyette),
agents or Affiliates (as defined below), of the provisions of this
Article V(b) to acquire, directly or indirectly, for consideration
consisting of cash and/or securities, more than 80% of the voting power of
the shares of Holding Company then outstanding or all or substantially all
of the assets of Holding Company or any of the Subsidiaries and provides
consideration to Holding Company's stockholders which the Board of Directors
of Holding Company determines in its good faith judgment (after consulting
with its financial advisors) to be materially more favorable to the Holding
Company stockholders from a financial point of view than the Per Share
Merger Consideration, and for which third-party financing, to the extent
required, is then firmly committed, and which can reasonably be expected to
be consummated.
(iii) As used in this Agreement, the term "AFFILIATE" shall mean, with
respect to any specified person, (1) any other person which, directly or
indirectly, owns or controls, is under common ownership or control with, or
is owned or controlled by, such specified person, (2) any other person which
is a director, officer or partner, of the specified person or a person
described in clause (1) of this paragraph, (3) another person of which the
specified person is a director, officer or partner, (4) another person in
which the specified person has a substantial beneficial interest or as to
which the specified person serves as trustee or in a similar capacity, or
(5) any relative or spouse of the specified person or any of the foregoing
persons, any relative of such spouse or any spouse of any such relative."
2. TERMINATION. Article XI(a) of the Merger Agreement hereby is deleted in
its entirety and replaced by the following:
``(a) TERMINATION. This Agreement and the Transaction may be
terminated at any time prior to the filing of the Certificate of Merger with
the Secretary of State of Delaware, whether before or after action by the
stockholders of Holding Company as contemplated by Article V(k) of this
Agreement and without further approval by the outstanding stockholders of
Holding Company (i) by mutual written consent of the Boards of Directors of
Acquisition and Holding Company, (ii) by action of the Board of Directors of
Acquisition in the event of a failure of a condition set
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forth in Article VII of this Agreement as of the time such condition is
required hereunder to be fulfilled, (iii) by action of the Board of
Directors of Holding Company in the event of failure of a condition set
forth in Article VIII of this Agreement as of the time such condition is
required hereunder to be fulfilled, or (iv) by action of the Board of
Directors of either Acquisition or Holding Company in the event of a failure
of a condition set forth in Article IX of this Agreement as of the time such
condition is required hereunder to be fulfilled, (v) by action of the Board
of Directors of Acquisition or FBOP at any time on or prior to December 21,
2000, if the results of FBOP's investigation of the business, operations,
assets, liabilities, capital, prospects, investments, affairs, condition
(financial or otherwise) of Holding Company and its Subsidiaries are not
satisfactory to FBOP or Acquisition in their sole discretion, whether or not
any of the foregoing would institute a Material Adverse Change, or (vi) by
action of the Board of Directors of Holding Company, if Holding Company has
received a Superior Proposal pursuant to Article V(b) hereof, and the Board
of Directors of Holding Company has made a determination to accept such
Superior Proposal subject to approval thereof by Holding Company
stockholders, and concurrently with the termination of this Agreement
pursuant to this Article XI(a), (A) Holding Company enters into a letter of
intent or an acquisition agreement with respect to the Superior Proposal if
the Superior Proposal is for a merger or the Board of Directors of Holding
Company adopts a binding resolution to recommend to the stockholders of
Holding Company that they accept the Superior Proposal if the Superior
Proposal is for a tender offer and (B) the Holding Company pays the
termination fee set forth in Article XI(b) hereof."
3. TERMINATION FEE. Article XI(b) of the Merger Agreement hereby is
amended by deleting the words "the Merger" in subsection (i) and replacing them
with the words "this Agreement."
4. GOVERNING LAW; SUCCESSORS AND ASSIGNS. This Amendment shall be governed
by and construed in accordance with the internal laws of the State of Illinois.
This Amendment shall be binding upon the parties hereto and their respective
heirs, successors, or representatives.
5. RATIFICATION. The Merger Agreement and all of the documents referred to
therein or contemplated thereby hereby are amended such that all references
therein to the Merger Agreement are deemed to include this Amendment. The Merger
Agreement as amended hereby shall remain in full force and effect.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original hereof and all of which
together shall constitute one and the same document.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered as of the day and year first above written.
PBOC HOLDINGS, INC.
By: /s/ Rudolf P. Guenzel
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Name: Rudolf P. Guenzel
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Title: President and CEO
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FBOP ACQUISITION COMPANY
By: /s/ Michael E. Kelly
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Name: Michael E. Kelly
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Title: President
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FBOP CORPORATION
By: /s/ Michael E. Kelly
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Name: Michael E. Kelly
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Title: Chairman of the Board
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