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Exhibit 2.3
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PLAN OF MERGER
This Plan of Merger (the "Plan") dated as of
---------------- by and between RIVER BEND BANCSHARES, INC., an
Illinois corporation ("River Bend"), and LANDMARK BANCSHARES
CORPORATION, a Missouri corporation ("LBC"), such corporations
being hereinafter collectively referred to as the "Constituent
Corporations."
W I T N E S S E T H:
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WHEREAS, LBC is a corporation duly organized and existing
under the laws of the State of Missouri having an authorized
capital of 30,000 shares of common stock, $1.00 par value (the "LBC
Common Stock"), of which 1,000 shares are issued and outstanding as
of the date hereof; and
WHEREAS, River Bend is a corporation duly organized and
existing under the laws of the State of Illinois, having an
authorized capital of (i) 200,000 shares of Class I Voting Common
Stock, $1.00 par value ("Class I Common Stock"), of which, as of
the date hereof, 157,063 shares are issued and outstanding, (ii)
1,000,000 shares of Class II Non-Voting Common Stock, $1.00 par
value ("Class II Common Stock"), of which, as of the date hereof,
785,315 shares are issued and outstanding, and (iii) 10,000 shares
of Class A Preferred Stock, $100 par value ("Preferred Stock"), of
which, as of the date hereof, 5,991 shares are issued and
outstanding (the Class I Common Stock, Class II Common Stock and
Preferred Stock are collectively referred to herein as the "River
Bend Stock"); and
WHEREAS, the respective Boards of Directors of LBC and
River Bend each have duly approved this Plan of Merger providing
for the merger (the "Merger") of River Bend with and into LBC as
the surviving corporation as authorized by the statutes of the
States of Missouri and Illinois, respectively; and
WHEREAS, River Bend and Magna Group, Inc., a Delaware
corporation ("Magna"), have entered into an Agreement and Plan of
Reorganization dated as of October 11, 1995, as amended as of
November 27, 1995 (the "Agreement), setting forth certain
representations, warranties, covenants, agreements and conditions
in connection with the Merger; and
WHEREAS, Magna owns all the outstanding shares of LBC;
NOW THEREFORE, in consideration of the premises and the
mutual covenants and agreements herein contained, and for the
purpose of setting forth the terms and conditions of the Merger,
the manner and the basis of causing the shares of River Bend Stock
to be converted into the right to receive the Common Stock of
Magna, $2.00 par value ("Magna Common Stock"), and/or a cash
payment and/or an interest in a land trust holding a certain parcel
of real estate, as herein provided, the matters with respect to
which the Articles of Incorporation of the Surviving Corporation
are to be amended and such other details and provisions as are
deemed necessary or proper, the parties hereto have agreed, subject
to the approval and adoption of this Plan by the requisite vote of
the shareholders of each Constituent Corporation, and subject to
the conditions hereinafter set forth, as follows:
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ARTICLE I
Merger and Name of Surviving Corporation
At the Effective Time, River Bend shall be merged with
and into LBC, which is hereby designated as the "Surviving
Corporation", the name of which upon and after the Effective Time
shall be Landmark Bancshares Corporation.
ARTICLE II
Terms and Conditions of Merger
The terms and conditions of the Merger are (in addition
to those set forth elsewhere in this Plan) as follows:
Section 1. At the Effective Time:
(a) River Bend shall be merged with and into LBC, and
LBC shall be, and is designated herein as, the Surviving
Corporation.
(b) The separate existence of River Bend shall cease.
(c) The Surviving Corporation shall thereupon and
thereafter possess all the rights, privileges, immunities and
franchises, of a public as well as of a private nature, of each of
the Constituent Corporations; and all property, real, personal and
mixed, and all debts due on whatever account, including
subscriptions to shares, and all other choices in action, and all
and every other interest, of or belonging to or due to each of the
Constituent Corporations, shall be taken and deemed to be
transferred to and vested in the Surviving Corporation without
further act or deed; and the title to any real estate, or any
interest therein, vested in either Constituent Corporation shall
not revert or be in any way impaired by reason of the Merger; the
Surviving Corporation shall thenceforth be responsible and liable
for all the liabilities and obligations of each of the Constituent
Corporations; and any claim existing or action or proceeding
pending by or against either of such Constituent Corporations may
be prosecuted to judgment as if the Merger had not taken place, or
such Surviving Corporation may be substituted in its place.
Neither the rights of creditors nor any liens upon the property of
either of the Constituent Corporations shall be impaired by the
Merger.
Section 2. At the Effective Time the Articles of
Incorporation of the Surviving Corporation shall be amended to the
extent and only to the extent that changes in such Articles of
Incorporation are stated in this Plan in Article I.
Section 3. At the Effective Time the by-laws of LBC
shall become the by-laws of the Surviving Corporation.
Section 4. At the Effective Time the members of the
Board of Directors and officers of LBC shall continue in office as
the members of the Board of Directors and officers of the Surviving
Corporation until their respective successors are duly elected and
qualified in accordance with the provisions of the by-laws of the
Surviving Corporation.
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ARTICLE III
Manner and Basis of Converting Shares
The manner and basis of converting the shares of River
Bend Stock into the right to receive Magna Common Stock, a cash
payment and/or an interest in a land trust holding a certain parcel
of real estate and the mode of carrying the Merger into effect are
as follows:
Section 1. Conversion of LBC Common Stock
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Each share of LBC Common Stock outstanding at the
Effective Time shall without any action on the part of the holder
thereof, be converted into one fully paid and nonassessable share
of voting common stock, $1.00 par value, of the Surviving
Corporation, which shall upon such conversion be validly issued and
outstanding, fully paid and nonassessable, and shall not be liable
to any further call, nor shall the holder thereof be liable for any
further payments with respect thereto.
Section 2. Cancellation of River Bend Stock; Election
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Procedures
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(a) At the Effective Time, by virtue of the Merger and
without any action on the part of River Bend, LBC or the holders of
any of the capital stock of River Bend, the aggregate of all issued
and outstanding shares of:
(i) Preferred Stock shall cease to be outstanding
and shall be converted into the right to receive, in the
aggregate, an amount in cash equal to $599,100 (the
"Preferred Cash Distribution");
(ii) Class I Common Stock and Class II Common
Stock shall cease to be outstanding and shall be
converted into the right to receive, in the aggregate,
(1) 550,240 shares of Magna Common Stock (the "Stock
Distribution") and (2) an amount in cash equal to
$11,668,175 (the "Common Cash Distribution"); provided,
however, that if the number of shares of Magna Common
Stock issuable to all holders of Class I Common Stock and
Class II Common Stock is insufficient in the reasonable
judgment of Xxxxxxxx & Xxxxxxxx to allow it to render the
opinion required by Section 5.05 of the Agreement, then,
Xxxxxxxx & Xxxxxxxx will advise Magna on the day that the
Effective Time occurs (the "Closing Date") as to the
minimum number of additional shares of Magna Common Stock
that will be required to be issued as Stock Distribution
(in place of the Common Cash Distribution) in the Merger
in order to allow Xxxxxxxx & Xxxxxxxx to render such
opinion in its reasonable judgment. In the event that
Magna is required to issue additional shares of Magna
Common Stock, (1) the Stock Distribution shall equal A +
B and (2) the Common Cash Distribution shall equal C - (B
x D). For purposes of this Article III,
Section 2(a)(ii):
A = 550,240 shares
B = The minimum number of additional shares
of Magna Common Stock, as determined by
Xxxxxxxx & Xxxxxxxx
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in its reasonable judgment, that must be
issued in the Merger to the holders of
Class I Common Stock and Class II Common
Stock as Stock Distribution in order for
Xxxxxxxx & Xxxxxxxx to render the tax
opinion required by Section 5.05 of the
Agreement.
C = $11,668,175
D = $21.75; and
(iii) By the later of (1) ten (10) days after the
Effective Time or (2) the date on which a holder of
shares of Class I Common Stock and/or Class II Common
Stock surrenders their Certificate(s) (as defined in
Section 1.03 of the Agreement) to the Exchange Agent,
Magna shall cause LBC to distribute to the former holders
of the 157,063 shares of Class I Common Stock and the
785,315 shares of Class II Common Stock (all such 942,378
shares being treated equally but excluding any such
shares as to which dissenters' rights are then being
pursued by the former holder(s) thereof) beneficial
interests in a trust (the "Trust") that shall be the
record owner of that certain parcel of land identified by
Parcel ID No. 19-1-08-17-20-401-002.001 and consisting of
two acres more or less (the "Real Estate Consideration")
(the Stock Distribution, the Common Cash Distribution and
the Real Estate Consideration are collectively referred
to herein as the "Common Stock Consideration"). Any
beneficial interests that would otherwise be distributed
to holders of shares as to which dissenters' rights are
then being pursued shall be distributed to them if and
when such dissenters' rights are no longer being pursued
and if such holders shall have completed the dissent
process such that they are not to receive the Common
Stock Consideration, then such interests in the Trust
shall be distributed to Magna. The Trust shall have been
formerly owned beneficially by River Bend. The Trust
shall contain terms acceptable to Magna providing that
Magna and the subsidiaries of Magna and River Bend shall
be indemnified and held harmless for any and all tax
liability (including any interest, penalties or additions
thereto) in excess of $90,000 that Magna, River Bend, any
subsidiary of Magna or any subsidiary of River Bend shall
incur by reason of the distribution of the Trust from LBC
or payment of interests in the Trust to the former
holders of Class I Common Stock and/or Class II Common
Stock. Such indemnification shall not be subject to any
conditions precedent, other than a condition that Magna
permit the Trust to defend any proposed assessment of
tax. This indemnification obligation shall be guaranteed
by Xxxx X. Xxxxxxxx, Xx. for a period of one year
following the Effective Time; provided, however, in the
event (i) Magna or any subsidiary thereof, has filed a
tax return(s) which reports the distribution of the Real
Estate Consideration and such return(s) report the fair
market value of the Real Estate Consideration at any
amount such that Magna's and any subsidiary thereof's, in
the aggregate, tax liability is greater than $90,000 and
(ii) Magna, during the period ending one year after the
Closing Date, has provided notice to the Trust of such
additional tax due, the indemnification obligation of
Xx. Xxxxxxxx pursuant to this Article III, Section
2(a)(iii) shall extend beyond such one year period, but
solely with respect to the tax liability that is the
subject of the notice provided by Magna to the Trust
(e.g., the distribution of the interests in the Trust to
the former
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shareholders of River Bend) (the Common Stock Consideration
and the Preferred Cash Distribution are collectively referred
to herein as the "Merger Consideration").
(b) At the Effective Time, each individual share of (i)
Preferred Stock shall be converted into the right to receive an
amount in cash equal to $100 and (ii) Class I Common Stock and
Class II Common Stock (each share of such stock being treated
equally on a share by share basis) shall be converted into the
right to receive that share's proportionate interest in the Common
Stock Consideration, subject to adjustment as provided in Article
III, Sections 2(c) and (d) hereof.
(c) (i) Concurrently with the mailing of the Proxy
Statement (as contemplated by Section 5.02 of the
Agreement, including the Prospectus contained in the
Registration Statement (also as contemplated by Section
5.02 of the Agreement)) to the shareholders of River
Bend, Magna shall cause the Exchange Agent (as defined
below) to mail to each holder of record of Class I Common
Stock and/or Class II Common Stock a form of election
(the "Election Form") on which such holder shall make the
election as provided for in this Article III, Section 2.
Each Election Form shall specify the composition of the
proportionate interest in the Stock Distribution and the
Common Cash Distribution received by that holder (subject
to adjustments as provided for herein), by specifying
what percentage of the value of the consideration to be
received by the holder shall be the Common Cash
Distribution and what percentage of the value of the
consideration shall be the Stock Distribution. For this
purpose, the Stock Distribution shall be valued at a
price equal to the average, per share closing price of
Magna Common Stock as reported on the Nasdaq Stock Market
for the five business days preceding the three business
days preceding the Closing Date (the "Magna Share
Value").
(ii) Any shares of Class I Common Stock or Class
II Common Stock with respect to which the holder thereof
shall not, as of the "Election Deadline" (as defined
below), have made an election, pursuant to Article III,
Section 2(c)(i) hereof, by submission to River Bend of an
effective, properly completed Election Form shall be
deemed to have elected to receive 50% of their
proportionate interest of the Common Stock Consideration
as Stock Distribution and 50% as Common Cash
Distribution. "Election Deadline" means 5:00 p.m., local
time, on the day preceding the day of the special meeting
of shareholders called to vote upon the Merger. Any
election for purposes of this Article III, Section 2
shall be effective only if River Bend shall have received
a properly completed Election Form by the Election
Deadline. Any Election Form may be revoked or changed by
the person submitting such Election Form or any other
person to whom the subject shares are subsequently
transferred by written notice by such person to River
Bend at or prior to the Election Deadline.
(iii) All Election Forms shall be deemed to be
revoked if this Agreement shall have been terminated in
accordance with its terms. River Bend shall have
reasonable discretion to determine when any election,
modification or revocation is received and whether any
such election, modification or revocation is effective,
consistent with the duty of River Bend to give effect to
such elections, modifications or revocations to the
maximum
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extent possible. As soon as practicable after the Election
Deadline, River Bend shall deliver to the Exchange Agent (i) a
certified list that sets forth the election made, if any, by
each holder of Class I Common Stock and/or Class II Common
Stock and (ii) a copy of each Election Form received by River
Bend.
(iv) As soon as practicable after the Closing,
Magna shall cause the Exchange Agent to allocate among
the holders of Class I Common Stock and Class II Common
Stock the rights to receive the Stock Distribution and
the Common Cash Distribution as set forth in their
respective Election Forms; provided, however, to the
extent that holders of certificates representing shares
of Class I Common Stock and Class II Common Stock elect
either (A) more cash than equals the Common Cash
Distribution or (B) more Magna Common Stock than equals
the Stock Distribution, the type of merger consideration
oversubscribed shall be apportioned among the holders by
pro-rating that consideration, in proportion to the
amounts elected by the holders, so that the sum of the
amount of that form of consideration equals the amount
available to be received by the holders of the
certificates representing shares of Class I Common Stock
and Class II Common Stock, in the aggregate. The
remainder of each holder's merger consideration shall be
in the form of the undersubscribed merger consideration,
in an amount such that the fair market value of all
merger consideration (valuing the Stock Distribution
portion at a per share value equal to the Magna Share
Value) received by the holder equals the proportionate
amount of the Common Stock Consideration to which such
holder is entitled.
(v) The pro rata computations to be used by the
Exchange Agent shall be made by the Exchange Agent in the
reasonable exercise of its discretion. Each separate
entry on River Bend's list of shareholders shall be
presumed to represent a separate and distinct holder of
record of Class I Common Stock, Class II Common Stock or
Preferred Stock.
(vi) Only holders of shares of Class I Common
Stock and Class II Common Stock shall be entitled to
complete and submit an Election Form. Holders of shares
of Preferred Stock shall be entitled to receive their
proportionate interest of the Preferred Cash Distribution
(as provided in Article III, Section 2(a)(i) hereof).
(d) In the event that the Closing Date occurs after
February 29, 1996, then the Common Cash Distribution and the
Preferred Cash Distribution shall be adjusted in the following
manner. An amount shall be added to the Common Cash Distribution
(after such number has been adjusted as provided in Article III,
Section 2(a)(ii) hereof but before any adjustment pursuant to this
Article III, Section 2(d)) equal to (A) the product of (i) the sum
of all dividends declared by Magna on a single share of Magna
Common Stock for stockholders of record for the period beginning
March 1, 1996 and ending the day prior to the Closing Date and (ii)
the number of shares of Magna Common Stock comprising the Stock
Distribution (after such number has been adjusted as provided in
Article III, Section 2(a)(ii) hereof) less (B) the aggregate amount
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of dividends declared by River Bend on shares of Class I Common
Stock and Class II Common Stock during such period plus (C) the
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product of (i) the Common Cash Distribution (after such number has
been adjusted as provided in Article III, Section 2(a)(ii) hereof
but before any adjustment pursuant to this Article III, Section
2(d)) times (ii) (1) the
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Federal funds rate, as published in The Wall Street Journal, Midwest
Edition, as such rate varies from time to time, divided by (2) 365 times
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(iii) the number of days, inclusive, from February 29, 1996 to the day
prior to the Closing Date. An amount shall be added to the Preferred Cash
Distribution equal to the product of (A) the Preferred Cash Distribution
times (B) (i) the Federal funds rate, as published in The Wall Street
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Journal, Midwest Edition, as such rate varies from time to time,
divided by (ii) 365 times (C) the number of days, inclusive, from
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February 29, 1996 to the day prior to the Closing Date.
(e) No fractional shares of Magna Common Stock shall be
issued. In lieu thereof, any shareholder of River Bend who would
be entitled to a fractional share of Magna Common Stock shall
receive an amount in cash, equal to the fraction of a share to
which such shareholder would have been entitled times $21.75,
rounded to the nearest whole cent. This value has been agreed upon
solely for the purpose of determining the conversion rate for the
Class I Voting Stock and the Class II Voting Stock and the basis
for the payment for fractional shares under this Plan of Merger.
No representation is made that such value would be the value of
shares for any other purpose nor is any representation made that
such value would be relevant in determining the amount which any
shareholder dissenting from the merger would receive.
(f) No payment shall be made in respect of authorized
but unissued shares of River Bend Stock.
Section 3. Dissenting River Bend Shareholders
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Shareholders of River Bend who, at or prior to the
meeting of River Bend shareholders called to approve the Merger,
file a written demand for payment of their shares if the proposed
Merger is consummated and do not vote in favor thereof and shall
otherwise perfect their rights under the Illinois Business
Corporation Act of 1983, as amended (the "Illinois Statute"), shall
be paid by the Surviving Corporation, with funds provided by Magna,
such amount as they are entitled to under law.
Section 4. River Bend Stock Certificates
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After the Effective Time, each holder of an outstanding
certificate which prior thereto represented shares of River Bend
Stock shall be entitled, upon surrender thereof to a qualified bank
or trust company, as appointed by Magna (the "Exchange Agent"), to
receive in exchange therefor the number of shares of Magna Common
Stock, the cash payment and/or an interest in the Trust into which
it has been converted. Until so surrendered, each such outstanding
certificate which, prior to the Effective Time, represented shares
of River Bend Stock shall for all purposes evidence the right to
receive the Merger Consideration; provided that dividends or other
distributions which are payable in respect of shares of Magna
Common Stock into which shares of River Bend Stock shall have been
so converted shall be set aside by Magna and shall not be paid to
holders of certificates representing such shares of River Bend
Stock until such certificates shall have been so surrendered in
exchange for certificates representing such Magna Common Stock.
Upon such surrender the holders of such shares shall be entitled to
receive such dividends without interest. No interest will be
accrued or paid on the cash component of the Merger Consideration
except as provided in Article III, Section 2(d) hereof.
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The Merger Consideration shall be issued in full
satisfaction of all rights pertaining to such converted shares.
ARTICLE IV
Other Provisions with Respect to Merger
Section 1. This Plan of Merger shall be submitted to the
shareholders of each of LBC and River Bend as provided by the laws
of the States of Missouri and Illinois, respectively. After the
approval or adoption thereof by the shareholders of each
Constituent Corporation in accordance with the requirements of the
laws of the States of Missouri and Illinois, all required
documents, including the Articles of Merger, shall be executed,
filed and recorded and all required acts shall be done in order to
accomplish the Merger pursuant to the Illinois Statute and the
General and Business Corporation Law of Missouri (the "Missouri
Statute"), subject to the terms and conditions of the Agreement.
Section 2. If the Agreement is terminated, then this
Plan of Merger shall simultaneously terminate without further
action by the Constituent Corporations. In the event of such
termination, the Board of Directors of each of the Constituent
Corporations shall direct its officers not to file this Plan of
Merger as provided above notwithstanding favorable action on this
Plan of Merger by the shareholders of River Bend or LBC.
ARTICLE V
Approval and Effective Time of Merger; Miscellaneous Matters
Section 1. The Merger shall become effective when all
the following actions have been taken: (i) this Plan of Merger
shall be authorized, adopted and approved on behalf of each of LBC
and River Bend in accordance with the laws of the States of
Missouri and Illinois, respectively, and (ii) Articles of Merger
(with this Plan of Merger attached as part thereof) shall be filed
in the Office of the Secretary of State of the State of Illinois
and the Office of the Secretary of State of the State of Missouri
and each such Secretary shall have issued a certificate of merger
reflecting such filing. The time at which such actions are
completed and such merger becomes effective is herein referred to
as the "Effective Time".
Section 2. If at any time the Surviving Corporation
shall deem or be advised that any further grants, assignments,
confirmations or assurances are necessary or desirable to vest,
perfect or confirm, of record or otherwise, in the Surviving
Corporation the title to any property of River Bend acquired or to
be acquired by or as a result of the Merger, the officers or any of
them and directors of the Surviving Corporation shall be and they
hereby are severally and fully authorized to execute and deliver
any and all such deeds, assignments, confirmations and assurances
and to do all things necessary or proper so as to best prove,
confirm and ratify title to such property in the Surviving
Corporation and otherwise carry out the purposes of the Merger and
the terms of this Plan of Merger.
Section 3. For the convenience of the parties and to
facilitate the filing and recording of this Plan of Merger, any
number of counterparts hereof may be executed, and each such
counterpart shall be deemed to be an original instrument and all
such counterparts together shall be considered one instrument.
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Section 4. This Plan of Merger cannot be altered or
amended except pursuant to an instrument in writing signed on
behalf of the parties hereto.
IN WITNESS WHEREOF, each Constituent Corporation has
caused this Plan of Merger to be executed, all as of the date first
above written.
LANDMARK BANCSHARES CORPORATION
[SEAL]
By
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ATTEST: G. Xxxxxx Xxxxx, President
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Xxxxxxx X. Xxxxxx, Secretary
RIVER BEND BANCSHARES, INC
[SEAL]
By
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Xxxx X. Xxxxxxxx, Xx., President
ATTEST:
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Xxxxxx X. Xxxxxx, Secretary
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