EXHIBIT 99.2
AGREEMENT TO SELL STOCK AND MUTUAL RELEASE
THIS AGREEMENT TO SELL STOCK AND MUTUAL RELEASE ("Agreement"), dated as
of October 30, 2003, by and among PSB GROUP, INC., a Michigan corporation (the
"Company") and ▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), an individual.
R E C I T A L S
Whereas, the Company has engaged in certain discussions concerning
various alternative means by which the Company can increase stockholder value
for the benefit of all of the Company's shareholders; and
Whereas, ▇▇▇▇▇ owns 263,118 shares of common stock of the Company (the
"Shares"); and
Whereas, ▇▇▇▇▇ has proposed to sell the Shares to the Company in
accordance with the terms of this Agreement; and
Whereas, the Board of Directors of the Company, in consultation with
legal and financial advisors, has unanimously determined that the actions to be
taken by the Company described herein are in the best interests of the Company
and its shareholders;
NOW, THEREFORE, the Company and ▇▇▇▇▇ in consideration of the
agreements, covenants and conditions set forth herein, agree as follows:
ARTICLE 1
SALE OF SHARES
1.1 SALE OF SHARES BY ▇▇▇▇▇. ▇▇▇▇▇ shall sell the Shares to the Company
on the Closing Date (as hereinafter defined).
1.2 PURCHASE PRICE. The Company agrees to pay $23.3125 for each of the
Shares ($6,133,938.30 in the aggregate) payable in immediately available funds
on the Closing Date.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF ▇▇▇▇▇
▇▇▇▇▇ represents and warrants to the Company as follows:
2.1 OWNERSHIP AND DELIVERY OF SHARES. ▇▇▇▇▇ is the rightful owner of
record of the Shares and, except with respect to a pledge of the Shares granted
to Citizens First Savings Bank ("Citizens First") (the "Stock Pledge") to secure
indebtedness of ▇▇▇▇▇ with Citizens First (the "Bank Debt"), the Shares are
owned by ▇▇▇▇▇, free and clear of any and all pledges, security interests,
liens, charges, encumbrances or adverse claims. There are no
outstanding options, warrants, calls, subscriptions, agreements or commitments
of any character affecting the Shares. ▇▇▇▇▇ is not a party to any voting trust,
proxy or other agreement or understanding with respect to the voting of the
Shares.
2.2 AUTHORIZATION OF TRANSACTION. ▇▇▇▇▇ has full power and authority to
execute and deliver this Agreement and to perform his obligations hereunder.
This Agreement has been duly and validly authorized, executed and delivered by
▇▇▇▇▇ and constitutes the valid and legally binding obligation of ▇▇▇▇▇,
enforceable against him in accordance with the terms and conditions hereof.
Except in connection with the Stock Pledge, ▇▇▇▇▇ is not required to give any
notice to, make any filing with, or obtain any authorization, consent, or
approval in order to consummate the transactions contemplated by this Agreement.
2.3 NONCONTRAVENTION. Except with respect to the Stock Pledge, neither
the execution and the delivery by ▇▇▇▇▇ of this Agreement, nor the consummation
of the transactions contemplated hereby, will (A) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge
or other restriction to which ▇▇▇▇▇ is subject, or (B) conflict with, result in
a breach of, constitute a default under, result in the acceleration of, create
in any party the right to accelerate, terminate, modify, or cancel, or require
any notice under any agreement, contract, lease, license, instrument, or other
arrangement to which ▇▇▇▇▇ is a party or by which ▇▇▇▇▇ is bound or to which any
of his assets are subject.
2.4 LITIGATION. ▇▇▇▇▇ has no knowledge of any action, suit, proceeding,
hearing, or investigation of, in or before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator involving the Shares, his ownership or authority with
respect to the Shares, or the transactions contemplated by this Agreement.
2.5 ENTIRE OWNERSHIP. Other than the Shares, ▇▇▇▇▇ does not
beneficially own, directly or indirectly, any securities issued by the Company.
From the date of this Agreement up to and including the Closing Date, ▇▇▇▇▇ will
not acquire any additional securities of the Company.
2.6 STOCK PLEDGE. ▇▇▇▇▇ has communicated the terms of this Agreement to
Citizens First and he has no reason to believe that Citizens First will object
hereto or will take any action or fail to take any action which would be
reasonably likely to cause the transactions contemplated by this Agreement to
fail to occur on or before October 31, 2003.
ARTICLE 3
REPRESENTATION AND WARRANTIES OF THE COMPANY
The Company represents and warrants to ▇▇▇▇▇ as follows:
3.1 AUTHORIZATION OF TRANSACTION. The Company has full power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of the Company, enforceable against the Company in accordance with its terms and
conditions.
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3.2 NONCONTRAVENTION. Neither the execution and the delivery by the
Company of this Agreement, nor the consummation by the Company of the
transactions contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction to which the Company is subject, or (B) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or other
arrangement to which the Company is a party or by which it is bound or to which
any of its assets are subject.
3.3 LITIGATION. The Company has no knowledge of any action, suit,
proceeding, hearing, or investigation of, in, or before any court or
quasi-judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator involving the transactions contemplated by
this Agreement.
ARTICLE 4
OTHER PROVISIONS
4.1 OTHER PROVISIONS. From the date hereof through and including the
third (3rd) anniversary of the date first written above, ▇▇▇▇▇ agrees that,
without the Company's prior written consent, ▇▇▇▇▇ will not:
(a) acquire, announce an intention to acquire, offer or propose to
acquire, or agree to acquire, directly or indirectly, by purchase
or otherwise, beneficial ownership of any common stock of the
Company or any other securities of the Company (collectively the
"Securities") or direct or indirect rights or options to acquire
(through purchase, exchange, conversion or otherwise) any
Securities;
(b) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" (as such terms are defined in Rule
14a-1 under the ▇▇▇▇ ▇▇▇) to vote any Securities, seek to advise,
encourage or influence any person or entity with respect to the
voting of any Securities, initiate or propose any shareholder
proposal under Rule 14a-8 under the 1934 Act or induce or attempt
to induce any other person to initiate any shareholder proposal;
(c) make any statement or proposal, whether written or oral, to the
Board of Directors of the Company, or to any director, officer or
agent of the Company, or make any public announcement or proposal
whatsoever with respect to a merger or other business
combination, sale or transfer of assets, recapitalization,
dividend, share repurchase, liquidation or other extraordinary
corporate transaction with the Company or other transaction which
could result in a change of control, or solicit or encourage any
other person to make such statement or proposal;
(d) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to any
Securities;
(e) otherwise act, alone or in concert with others, to seek to
exercise any control over the management, Board of Directors or
policies of the Company;
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(f) make a public request to the Company (or its directors, officers,
shareholders, employees or agents) to amend or waive any
provisions of this Agreement, the Articles of Incorporation or
Bylaws of the Company;
(g) take any action which might require the Company to make a public
announcement regarding the possibility of any transaction
referred to in paragraph (c) above or similar transaction or,
advise, assist or encourage any other persons in connection with
the foregoing;
(h) provide, or act in concert with any Person to provide, any funds,
services, or facilities, to any Person in support of any activity
by such Person that would be a violation of ▇▇▇▇▇'▇ covenants
under this Section 4.1 if undertaken by any of them; or
(i) disclose any intention, plan or arrangement inconsistent with the
foregoing.
4.2 CONDUCT. ▇▇▇▇▇ agrees that, at all times following the signing of
this Agreement, he shall not make Negative Statements about the Company or its
direct or indirect subsidiaries ("Affiliates"). The Company agrees that, at all
times following the signing of this Agreement, its directors and executive
officers shall not make any Negative Statements about ▇▇▇▇▇. The term Negative
Statements shall mean false, negative, critical or disparaging statements, in
the case of the Company, concerning the Company or its Affiliates, its
management, its method of doing business, the quality of its products and
services, its role in the community, or its treatment of ▇▇▇▇▇, and in the case
of ▇▇▇▇▇, concerning ▇▇▇▇▇ or his position on the Boards of Directors of the
Company and the Affiliates. Nothing contained herein shall preclude the Company
from making such statements as the Company may deem necessary or appropriate,
upon advice from legal counsel, in conjunction with the 1933 Act, the 1934 Act,
rules and regulations of the SEC or banking laws or other legal requirements.
ARTICLE 5
MUTUAL RELEASES
5.1 RELEASE AND WAIVER. Effective upon the Closing Date, each of the
parties hereto, for itself and for the Affiliates and for each of their
respective principals, members, partners, fiduciaries, managers, directors,
stockholders, officers, agents and employees and for the predecessors,
successors and assigns of each of them (the "Releasing Persons"), does hereby
forever and unconditionally release, acquit and discharge each of the other
parties hereto, the Affiliates and each of their respective principals, members,
partners, fiduciaries, managers, directors, shareholders, officers, agents and
employees, and the predecessors, successors and assigns of each of them
(collectively the "Released Persons"), with respect to any and all claims,
controversies, causes of action, suits or liabilities of whatever kind or
nature, whether known or unknown, whether in law or in equity, which the
Releasing Persons had or has against any Released Person for any matter, thing,
event or omission which arises directly or indirectly out of the ownership by
▇▇▇▇▇ of the Shares or ▇▇▇▇▇'▇ service as a director of the Company or any of
its Affiliates, including without limitation claims which such Person has or
believes it may have as a shareholder relating to fiduciary duties of directors
or officers, disclosure or similar matters;
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provided, however, that nothing contained herein shall release any claim with
respect to this Agreement.
ARTICLE 6
CONDITIONS TO THE OBLIGATIONS OF THE PARTIES
The obligation of ▇▇▇▇▇ and the Company to consummate the transactions
contemplated by this Agreement is further subject to the satisfaction (or
waiver) of the following conditions:
6.1 COMPLIANCE BY ▇▇▇▇▇ AND THE COMPANY. (a) All the terms, covenants
and conditions of this Agreement required to be complied with and satisfied by
each of ▇▇▇▇▇ and the Company on or prior to the Closing Date shall have been
duly complied with and satisfied in all materials respects, and (b) the
representations and warranties made by each of ▇▇▇▇▇ and the Company shall be
true and correct in all material respects at and as of the Closing Date.
6.2 CERTIFICATES. ▇▇▇▇▇ and the Company shall have each delivered to
the other a signed certificate, dated the Closing Date, certifying that such
party has met and fully complied with all of the conditions set forth herein.
6.3 BANK INDEBTEDNESS. Citizens First shall have delivered to the
Company simultaneously with the Closing, evidence satisfactory to the Company
that the Stock Pledge has been terminated.
ARTICLE 7
7.1 CLOSING. Consummation of the transactions contemplated hereby shall
take place at such place as the parties shall agree upon (referred to herein as
"Closing"). The date of the Closing hereunder (the "Closing Date") shall be
October 31, 2003, or such earlier date as the parties may agree.
7.2 CLOSING DOCUMENTS. At the Closing, the following documents shall be
delivered:
(a) ▇▇▇▇▇ shall deliver to the Company such stock certificates, stock
powers, assignments, bills of sale with covenants of warranty,
endorsements, and other good and sufficient instruments of
transfer and conveyance as shall be effective to vest in the
Company good and valid title to the Shares free and clear of all
pledges, security interests, liens, charges, encumbrances or
adverse claims of any kind or nature, including the Stock Pledge.
(b) The Company shall deliver, pursuant to the wire transfer
instructions contained in Exhibit A hereto, to Citizens First the
amount of the Purchase Price as is described in Exhibit A hereto
to satisfy in full the Bank Debt and shall deliver, pursuant to
the
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wire transfer instructions contained in Exhibit A hereto, to
▇▇▇▇▇ the amount of the Purchase Price as described in Exhibit A
hereto.
(c) The Company and ▇▇▇▇▇ shall deliver to each other the documents
contemplated by Article 6 of this Agreement.
(d) ▇▇▇▇▇ shall deliver to the Company his written resignation
effective on the Closing Date from all positions as a member of
any Board of Directors, or any committee thereof, of the Company
or any of the Affiliates.
ARTICLE 8
TERMINATION
8.1 TERMINATION. This Agreement may be terminated at any time:
(a) by the mutual consent of ▇▇▇▇▇ and the Company;
(b) by the Company, if there shall have been a material breach of any
covenant or representation or other agreement of ▇▇▇▇▇ hereunder,
and such breach shall not have been remedied within three (3)
business days after receipt by ▇▇▇▇▇ of a notice in writing from
the Company specifying the breach and requesting such be
remedied; or
(c) by ▇▇▇▇▇, if there shall have been a material breach of any
covenant or representation or other agreement of the Company
hereunder, and such breach shall not have been remedied within
three (3) business days after receipt by the Company of notice in
writing from ▇▇▇▇▇ specifying the breach and requesting such be
remedied.
(d) By the Company or ▇▇▇▇▇ if the Closing Date does not occur on or
before October 31, 2003.
8.2 EFFECT OF TERMINATION. If this Agreement is terminated pursuant to
Section 8.1, all obligations and agreements of the parties hereunder shall
terminate, except that no such termination shall relieve any party from
liability for any prior breach of this Agreement.
ARTICLE 9
MISCELLANEOUS
9.1 DEFINED TERMS. The following shall have the meanings indicated:
"Person" shall have the meaning specified in Section 2(a)(2) of the
▇▇▇▇ ▇▇▇.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"1933 Act" shall mean Securities Act of 1933, as amended.
"1934 Act" shall mean Securities Exchange Act of 1934, as amended.
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9.2 EFFORTS TO CLOSE. Subject to the terms and conditions hereof, the
Company and ▇▇▇▇▇ each agree to use their best efforts to take all action to
fulfill their respective obligations under the terms of this agreement and to
facilitate the consummation of the transactions contemplated hereby including,
in the case of ▇▇▇▇▇, the satisfaction of the condition contained in Section 6.3
hereof.
9.3 SPECIFIC PERFORMANCE. The parties hereto acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, it is agreed that, in addition to any other
remedies which they may have, the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of competent jurisdiction.
9.4 EXPENSES. Each party to this Agreement shall pay its own costs and
expenses (including all legal, accounting, broker, finder and investment banker
fees) relating to this Agreement, the negotiations leading up to this Agreement
and the transactions contemplated by this Agreement.
9.5 ATTORNEYS' FEES. Notwithstanding Section 9.4 hereof, should an
action be instituted by either of the parties hereto in any court of law or
equity pertaining to the enforcement of any of the provisions of this Agreement,
the prevailing party shall be entitled to recover, in addition to any judgment
or decree rendered therein, all court costs and reasonable attorneys' fees and
expenses.
9.6 PUBLIC DISCLOSURE. As soon as practicable following the execution
and delivery of this Agreement, the Company shall issue a press release or make
other public communications with respect to this subject matter hereof. It is
further expected that the Company will file the press release and a copy of this
Agreement as part of a Form 8-K filing under the 1934 Act. The Company will
endeavor to provide ▇▇▇▇▇ with a copy of the press release in advance of such
filing and will give reasonable consideration to any comments he may have.
9.7 AMENDMENT. This Agreement shall not be amended or modified except
by a writing duly executed by the parties hereto.
9.8 FURTHER ASSURANCES. Each party to this Agreement shall execute all
instruments and documents and take all actions as may reasonably be necessary to
effectuate this Agreement.
9.9 ENTIRE AGREEMENT. This Agreement, including the other instruments,
agreements and documents delivered pursuant to this Agreement, contain all of
the terms, conditions and representations and warranties agreed upon by the
parties relating to the subject matter of this Agreement and supersede all prior
agreements, negotiations, correspondence, undertakings and communications of the
parties, oral or written, respecting such subject matter.
9.10 HEADINGS. The headings contained in this Agreement are intended
solely for convenience and shall not affect the rights of the parties to this
Agreement.
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9.11 NOTICES. All notices, requests, demands, and other communications
hereunder shall be deemed to have been duly given if delivered in person, or by
electronic facsimile, or mailed, certified and registered mail with postage
prepaid (and, if by electronic facsimile, with acknowledgment or evidence of
receipt or with copies mailed, certified or registered mail with postage
prepaid):
(a) If to ▇▇▇▇▇:
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
McDonnell, Conley, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(b) If to the Company:
PSB Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ Attorneys, P.C.
The Michigan Building, Suite 200
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
9.12 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to this Agreement to the
extent possible. In any event, all other provisions of this Agreement shall be
deemed valid and enforceable to the full extent possible.
9.13 WAIVER. Waiver of any term or condition of this Agreement by any
party shall only be effective if in writing and shall not be construed as a
waiver of any subsequent breach or failure of the same term or condition, or a
waiver of any other term or condition of this Agreement.
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9.14 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall
confer any rights upon any person or entity which is not a party or an assignee
of a party to this Agreement.
9.15 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each and every
representation, warranty and agreement of the Parties contained herein or in any
certificate, schedule or other document delivered before or at the Closing shall
survive the Closing.
9.16 GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Michigan without regard to conflict of law
principles.
9.17 CONSTRUCTION. Each party to this Agreement and its counsel have
reviewed and revised this Agreement. The rule of construction that any ambiguity
shall be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
9.18 SUCCESSORS AND ASSIGNS; ASSIGNMENT. All of the terms, covenants
and conditions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. No party
hereto shall be permitted to assign its rights under this Agreement except with
the written consent of the other party. No assignment or transfer permitted
hereunder shall relieve any such assignor or transferor of any of its
obligations hereunder and any assignee or transferee shall assume in writing all
of the undertakings of assignor or transferor under this Agreement.
9.19 COUNTERPARTS. This Agreement may be signed in counterpart, each of
which shall be deemed to be an original instrument and all of which shall
constitute a single agreement.
IN WITNESS WHEREOF, each of the parties have executed this Agreement as
of the day and year first above written.
PSB GROUP, INC.
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇, President and CEO
/s/▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
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