EXHIBIT 2.1
PLAN OF REORGANIZATION AND MERGER AGREEMENT
This Plan of Reorganization and Merger Agreement (the "Agreement") is
entered into as of February 29, 2000, by and between PACIFIC MERCANTILE BANK
(the "Bank") and PMBSUB ("Subsidiary"), and is joined in by PACIFIC MERCANTILE
BANCORP (the "Holding Company") as a party to this Agreement, with reference to
the following:
RECITALS AND UNDERTAKINGS
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A. The Bank is a California banking corporation with its principal office
in the city of Newport Beach, California. Subsidiary and Holding Company are
corporations duly organized and existing under the laws of the State of
California, with their principal offices in the city of Newport Beach,
California.
B. As of the date hereof, the Bank's authorized capital stock consists of:
(i) 10,000,000 shares of common stock, no par value of which 1,860,081 shares
are issued and outstanding, and (ii) 2,000,000 shares of preferred stock, no par
value, of which no shares are issued or outstanding.
C. As of the date hereof, Subsidiary's authorized capital stock consists
of 1,000 shares of common stock, without par value. Immediately prior to the
Effective Date (as hereinafter defined), a total of 100 shares of such common
stock will be issued and outstanding, all of which shares will be owned by
Holding Company. As of the Effective Date the Subsidiary will not have
conducted any business and will not have any liabilities or obligations, fixed
or contingent, other than its obligations under this Agreement.
D. As of the date hereof, Holding Company's authorized capital stock
consists of: (i) 10,000,000 shares of common stock, without par value, and (ii)
2,000,000 shares of preferred stock, without par value. Immediately prior to
the Effective Date there will be authorized and reserved for issuance pursuant
to this Agreement the number of shares of common stock required for the Holding
Company to perform its obligations under Section 2 of this Agreement.
E. The Boards of Directors of the Bank and the Subsidiary, respectively,
have approved and authorized the execution of this Agreement, which provides for
the merger of the Subsidiary with and into the Bank under the laws of the State
of California and in accordance with the terms and conditions of this Agreement
(the "Merger"); and the Board of Directors, and the Bank as sole shareholder, of
the Holding Company have approved this Agreement and have authorized the Holding
Company to join in and be bound by this Agreement and to perform its obligations
under this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants,
agreements and undertakings of the parties herein set forth and for the purpose
of prescribing the terms and conditions of the Merger, the parties hereto agree
as follows:
1. GENERAL
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1.1 The Merger. At the Effective Date (as hereinafter defined), the
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Subsidiary shall be merged into the Bank and the Bank shall be the surviving
corporation in that merger (the "Surviving Corporation"). The Surviving
Corporation shall be a wholly-owned subsidiary of the Holding Company, and its
name shall continue to be Pacific Mercantile Bank.
1.2 Effective Date. The Merger described herein shall become effective,
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and actions to consummate the Merger shall commence, on the date and at the time
on such date (the "Effective Date"), on which an executed counterpart of the
Merger Agreement, substantially in the form attached hereto as Attachment A (as
amended, if necessary to conform to any requirements of law or governmental
authority or agency, which requirements are not materially in contravention of
any of the substantive terms hereof), shall have been filed in the Office of the
Secretary of State of the State of California, in accordance with Section 1103
of the California Corporations Code.
1.3 Articles of Incorporation, Bylaws and Certificate of Authority of the
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Surviving Corporation. On the Effective Date, the Articles of Incorporation of
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the Bank, as in effect immediately prior to the Effective Date, shall be and
remain the Articles of Incorporation of the Surviving Corporation until amended;
the Bylaws of the Bank, as in effect immediately prior to the Effective Date,
shall be and remain the Bylaws of the Surviving Corporation until altered,
amended or repealed; and the Certificate of Authority of the Bank issued by the
Commissioner of Financial Institutions of the State of California (the
"Commissioner") shall be and remain the Certificate of Authority of the
Surviving Corporation in the Merger.
1.4 Directors and Officers of the Surviving Corporation. On the Effective
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Date, the directors and officers of the Bank immediately prior thereto shall be
and remain the directors and officers of the Surviving Corporation. The
directors of the Surviving Corporation shall serve until the next annual meeting
of shareholders of the Surviving Corporation or until such time as their
successors are elected and have qualified.
1.5 Effect of the Merger.
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(a) Assets and Rights. On the Effective Date and thereafter, the
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separate existence of Subsidiary shall cease and the Surviving Corporation shall
succeed, without other transfer, to all rights, privileges, franchises and
property of Subsidiary, and all debts and liabilities, if any, due or to become
due to Subsidiary, including things in action and every interest or asset of
conceivable value or benefit, shall be deemed fully and finally, and without any
right of reversion, transferred to and vested in the Surviving Corporation
without further act or deed; and the Surviving Corporation shall have and hold
the same in its own right as fully as the same was possessed and held by
Subsidiary.
(b) Liabilities. On the Effective Date and thereafter, all debts,
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liabilities and obligations due or to become due of, and all claims and demands
for any cause existing against, Subsidiary, if any, shall be and become the
debts, liabilities or obligations of, or the claims or demands against, the
Surviving Corporation in the same manner as if the Surviving Corporation had
itself incurred or become liable for them.
(c) Creditors' Rights and Liens. On the Effective Date and
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thereafter, all rights of creditors of the Bank and Subsidiary, and all liens
upon the property of the Bank and Subsidiary, shall be preserved unimpaired, and
shall be limited to the property affected by such liens immediately prior to the
Effective Date.
(d) Pending Actions. On the Effective Date and thereafter, any action
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or proceeding pending by or against the Bank or Subsidiary shall not be deemed
to have abated or been discontinued, but may be pursued to judgment with full
right to appeal or review. Any such action or proceeding may be pursued as if
the Merger described herein had not occurred, or with the Surviving Corporation
substituted in place of the Bank or Subsidiary, as the case may be.
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1.6 Further Assurances. The Bank and Subsidiary each agree that, at any
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time, or from time to time, as and when requested by the Surviving Corporation
or its successors or assigns, or by the Holding Company, it shall execute and
deliver, or cause to be executed and delivered, in its name by its last acting
officers or by the corresponding officers of the Surviving Corporation, all such
conveyances, assignments, transfers, deeds and other instruments, and will take
or cause to be taken such further or other action as the Surviving Corporation,
or its successors or assigns, may deem necessary or desirable in order to carry
out the vesting, perfecting, confirming, assignment, devolution or other
transfer of the interests, property, privileges, powers, immunities, franchises
and other rights referred to in this Section 1, or otherwise to carry out the
intent and purposes of this Agreement.
2. STOCK OF SURVIVING CORPORATION AND SUBSIDIARY
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2.1 Stock of Subsidiary. On the Effective Date, each share of common
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stock of Subsidiary issued and outstanding immediately prior thereto shall, by
virtue of the merger described herein, be deemed to be exchanged for and
converted into one fully paid share of common stock of the Bank as the Surviving
Corporation.
2.2 Stock of The Bank. On the Effective Date, each share of common stock
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of the Bank issued and outstanding immediately prior thereto shall, by virtue of
the Merger described herein, and without any action on the part of the holder
thereof, be exchanged for and converted, in accordance with the provisions of
Section 2.4 below, into one (1) share of common stock of the Holding Company
that is fully paid and non-assessable.
2.3 Stock of the Holding Company. On the Effective Date, any shares of
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Bancorp common stock owned by directors (which will be the only shares of stock
of the Holding Company that will be outstanding prior to the Effective Date)
shall be cancelled and the Holding Company shall issue shares of its common
stock pursuant to Section 2.2 hereof.
2.4 Exchange of Stock by Bank Shareholders. The conversion of the shares
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of the Bank as provided in Section 2.2 above shall occur automatically on the
Effective Date without action by the holders thereof and each share certificate
evidencing ownership of shares of the Bank common stock thereupon shall be
deemed to evidence a like number of shares of common stock of the Holding
Company. Each holder of shares of Bank common stock may choose, but shall not
be required, to surrender his or her share certificate or certificates (the
"Bank Certificates") to the Holding Company; and upon any such surrender shall
be entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of Holding Company common stock into which the
shares theretofore represented his or her Bank certificate or certificates shall
have been converted as provided above.
2.5 Employee Stock Options. On the Effective Date, the Holding Company
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will assume the Bank's rights and obligations under the Bank's 1999 Stock Option
Plan (the "1999 Plan") and under each of the outstanding stock options to
purchase common stock of the Bank previously granted under the 1999 Plan (each
such stock option existing immediately prior to the Effective Date being called
an "Existing Option" and each such stock option so assumed by the Holding
Company being called an "Assumed Option"). By reason of such assumption, each
option agreement that evidenced the right to purchase Bank common stock shall
thereafter represent, and each holder of an Existing Option shall have, the
right to purchase one share of Holding Company common stock for each share of
Bank common stock which such holder was entitled to purchase under his or her
Existing Option and the right to exercise the Existing Option into shares of
Bank common stock shall automatically terminate without
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the necessity of any action on the part of the Bank, the Bancorp or any
optionee. The price per share of Holding Company common stock at which an
Assumed Option may be exercised shall be the same price per share that was
applicable to the purchase of Bank common stock pursuant to the Existing
Options, immediately prior to the Effective Date. Each Assumed Option, subject
to such modification as set forth hereinafter, shall constitute a continuation
of the Existing Option, on the same terms and conditions set forth in the 1999
Plan in each optionee's stock option agreement that formerly evidenced the right
to purchase Bank common stock, except as follows: (i) shares of Holding Company
Common Stock will be substituted for the shares of Bank common stock into which
the existing options had been exercisable, (ii) the Holding Company shall be
substituted for the Bank as the issuer of shares under the 1999 Plan and (iii)
the Holding Company shall be authorized under the 1999 Plan to issue options to
purchase Holding Company shares not only to directors, officers and key
employees of the Bank, but also to directors, officers and key employees of the
Holding Company and any other subsidiaries it may establish in the future. In
addition, each option granted under the 1999 Plan on or after the Effective Date
shall evidence the right to purchase shares of common stock of the Holding
Company rather than shares of common stock of the Bank and the Plan shall be
modified to so provide. In all other respects, the 1999 Plan shall be unchanged.
3. OBLIGATIONS OF PARTIES PENDING THE EFFECTIVE DATE OF MERGER
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3.1 Stockholder Approvals. As soon as practicable, this Agreement shall
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be submitted to the respective shareholders of the parties for the purpose of
considering and acting upon this Agreement and the Merger in the manner required
by law. The Bank and the Subsidiary each shall use its best efforts to obtain
the requisite approval of its shareholders to this Agreement and the Merger as
contemplated herein. Each of the parties, through its respective officers and
directors, shall execute and file with the appropriate regulatory authorities
all necessary applications, documents and instruments and shall take every
reasonable and necessary step and action to comply with and to secure such
approval of this Agreement and the transactions contemplated herein as may be
required by all applicable statutes, rules and regulations.
3.2 Transferability of Common Stock. The Bank will use its best efforts
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to obtain for the Holding Company, prior to the Effective Date, a letter signed
by each person, if any, who is an "affiliate", as that term is defined by the
Securities and Exchange Commission ("SEC"), of the Bank for purposes of Rule 145
of the SEC, under the Securities Act of 1933, to the effect that (i) such person
will not dispose of any shares of common stock to be received by him pursuant to
the Merger in violation of the Securities Act of 1933 or the rules and
regulations of the SEC thereunder, or in any event prior to such time as
financial results covering at least 30 days of post-merger combined operations
have been published, and (ii) he or she consents to the placing of a legend on
the certificate(s) evidencing such shares of Holding Company common stock that
refers to the issuance of such shares in a transaction to which Rule 145 is
applicable and to the giving of stop-transfer instructions to the transfer agent
of Holding Company with respect to such certificate(s).
4. CONDITIONS PRECEDENT, TERMINATION AND PAYMENT OF EXPENSES
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4.1 Conditions Precedent to the Merger. Consummation of the Merger as
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described herein, is subject to satisfaction of the following conditions:
(a) Approval of this Agreement by the respective shareholders of the
Bank, the Subsidiary and the Holding Company, if and to the extent required by
applicable law;
(b) The obtaining of all other consents and approvals, on terms and
conditions satisfactory to each of the parties hereto, and satisfying all other
requirements, prescribed by law or
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otherwise, which are necessary for the Merger described herein to be
consummated, including without limitation, an approval from the Commissioner
under Section 701 et seq. of the California Financial Code and from the Federal
Reserve Bank of San Francisco under 12 U.S.C Section 18(a) (c) of the Bank
Holding Company Act of 1956;
(c) Procuring all other consents or approvals, governmental or other,
which in the opinion of counsel for the Bank are or may be necessary to permit
or to enable the Surviving Corporation to conduct, from and after consummation
of the Merger, all of the business and other activities in which the Bank will
be engaged up to the time of such Merger, in the same manner and to the same
extent as such businesses and other activities are then conducted; and
(d) Performance by each of the parties hereto of all obligations under
this Agreement which are to be performed prior to the consummation of the
Merger.
4.2 Termination of the Merger. If any condition specified in Section 4.1
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cannot be fulfilled, or, prior to the Effective Date, the Board of Directors of
any of the parties hereto has determined that:
(a) The number of shares of common stock of the Bank voting against
the Merger, makes its consummation inadvisable; or
(b) Any action, suit, proceeding or claim relating to the Merger,
whether initiated or threatened, makes consummation of such Merger inadvisable;
or
(c) Consummation of the merger described herein is inadvisable for any
other reason;
then, this Agreement may be terminated by any of the parties hereto, whether
before or after shareholder and other approvals have been obtained in
satisfaction of the conditions precedent set forth in Section 4.1. Upon as such
termination, this Agreement shall be void and of no further effect, and there
shall be no liability by reason of this Agreement or the termination thereof on
the part of any of the parties hereto or their respective directors, officers,
employees, agents or shareholders.
4.3 Expenses of the Merger. The Bank shall pay expenses incurred in
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connection with the Merger.
5. MISCELLANEOUS
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5.1 Entire Agreement. This Agreement embodies the entire agreement among
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the parties and there have been and are no agreements, representations or
warranties among the parties with respect to the subject matter of this
Agreement other than those set forth herein or those provided for herein.
5.2 Governing Law. This Agreement has been executed in California and the
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laws of such State shall govern the validity and the interpretation hereof and
the performance by the parties hereto.
5.3 Counterparts. To facilitate the filing of this Agreement, any number
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of counterparts hereof may be executed and each such counterpart shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one instrument.
5.4 Captions. The captions contained in this Agreement are solely for
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convenience of reference and shall not be deemed to affect the meaning or
interpretation of any provisions of this Agreement.
(Signatures of the Parties follow on next page)
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IN WITNESS WHEREOF, the parties hereto have caused this Plan of
Reorganization and Merger Agreement to be executed by their duly authorized
officers as of the day and year first above written.
PACIFIC MERCANTILE BANK PMBSUB
By: /s/Xxxxxxx X. Xxxxxxxx By: /s/Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, President Xxxxxxx X. Xxxxxxxx, President
By: /s/Xxxxxxx Xxxxxxx By: /s/Xxxxxxx Xxxxxxx
-------------------------------- ------------------------------
Xxxxxxx Xxxxxxx, Secretary Xxxxxxx Xxxxxxx, Secretary
PACIFIC MERCANTILE BANCORP
By: /s/Xxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxx, President
By: /s/Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx Xxxxxxx, Secretary
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ATTACHMENT A
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TO
--
PLAN OF REORGANIZATION AND MERGER AGREEMENT
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This MERGER AGREEMENT (the "Agreement") is made and entered into as of this
__ day of February, 2000, by and between PACIFIC MERCANTILE BANK, a California
banking corporation (the "Bank") and PMBSUB, a California corporation
("Subsidiary"), and PACIFIC MERCANTILE BANCORP, a California corporation (the
"Holding Company").
R E C I T A L S
- - - - - - - -
A. The Bank is a California banking corporation, the authorized capital
stock of which consists of: (i) ten million (10,000,000) shares of common stock,
of which one million eight hundred sixty thousand eighty three (1,860,080)
shares of common stock are issued and outstanding, and (ii) two million
(2,000,000) shares of Preferred Stock, none of which are issued or outstanding.
B. Subsidiary is a California corporation with one thousand (1,000) shares
of common stock authorized and one hundred (100) shares issued and outstanding,
all of which are owned by the Holding Company.
C. Holding Company's authorized capital stock consists of (i) ten million
(10,000,000) shares of common stock of which ten (10) shares are issued and
outstanding; and (ii) two million (2,000,000) shares of Preferred Stock, none of
which have been issued or are outstanding. As of the date hereof, 10 shares of
the Holding Company's common stock were outstanding, all of which are held by
directors of the Company (the "Directors' Shares").
D. A Plan of Reorganization and Merger Agreement (the "Reorganization
Agreement") was entered into on February , 2000, by and among the Bank, the
Subsidiary and the Holding Company, for the purpose of merging Subsidiary into
the Bank in order to make the Bank a wholly-owned subsidiary of the Holding
Company.
NOW, THEREFORE, in consideration of the promises and mutual covenants of
the parties herein set forth and for the purpose of prescribing the terms and
conditions of the merger, the parties agree as follows:
1. General.
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1.1 The Merger. At the Effective Time, Subsidiary shall be merged into
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the Bank, which shall be the surviving corporation (the "Surviving
Corporation"). The Surviving Corporation shall be a subsidiary of the Holding
Company, and its name shall continue to be Pacific Mercantile Bank.
1.2 Effective Time. The merger described herein (the "Merger") shall
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become effective on the date and at the time on such date (the "Effective Time")
on which an executed counterpart of this Merger Agreement shall have been filed
with the Secretary of State of the State of California, in accordance with (SS)
1103 of the California Corporations Code.
1.3 Articles of Incorporation, Bylaws and Certificate of Authority . At
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the Effective Time, the Articles of Incorporation and the Bylaws of the Bank, as
in effect immediately prior to the Effective Time, shall be and remain the
Articles of Incorporation and the Bylaws, respectively, of the Surviving
Corporation until amended thereafter; and the Certificate of Authority of the
Bank issued by the California Commissioner of Financial Institutions shall be
and remain the Certificate of Authority of the Surviving Corporation.
1.4 Directors and Officers of the Surviving Corporation. At the Effective
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Time, the directors and officers of the Bank immediately prior thereto shall be
and remain the directors and officers
of the Surviving Corporation. The directors of the Surviving Corporation shall
serve until the next annual meeting of stockholders of the Surviving Corporation
or until such time as their successors are elected and have qualified.
2. Stock of the Surviving Corporation.
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2.1 Stock of Subsidiary. At the close of business at the Effective Time,
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each share of common stock of Subsidiary issued and outstanding immediately
prior thereto shall, by virtue of the Merger described herein, be deemed to be
exchanged for and converted into one fully paid and nonassessable share of
common stock of the Bank as the Surviving Corporation.
2.2 Stock of the Bank. At the Effective Time, each share of common stock
-----------------
of the Bank that is issued and outstanding immediately prior thereto shall, by
virtue of the Merger described herein, and without any action on the part of
each holder thereof, be converted and exchanged into one fully paid and non-
assessable share of common stock of Holding Company, in accordance with the
provisions of Section 2.3 hereof.
2.3 Stock of the Holding Company. On the Effective Date, any issued and
----------------------------
outstanding Director Shares shall be cancelled and the Holding Company shall
issue shares of its common stock pursuant to Section 2.2 hereof.
2.4 Exchange of Stock by the Bank Shareholders. The conversion of the
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shares of common stock of the Bank, as provided in Section 2.2 above, shall
occur automatically at the Effective Time without action by the holders thereof
and each share certificate evidencing ownership of shares of the Bank common
stock thereupon shall be deemed to evidence ownership of a like number of shares
of common stock of the Holding Company. Each holder of shares of Bank common
stock may elect, but is not required, to surrender his share certificate or
certificates to the Holding Company and shall be entitled to receive in exchange
therefor a certificate or certificates representing the number of shares of
Holding Company common stock into which his or her shares of Bank common stock
theretofore represented by the certificate or certificates so surrendered shall
have been converted as aforesaid.
2.5 Stock Options. At the Effective Time, the Holding Company will assume
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the Bank's rights and obligations under the Bank's 1999 Stock Option Plan (the
"1999 Plan") and under each of the outstanding stock options to purchase common
stock of the Bank previously granted under the 1999 Plan (each such stock option
existing immediately prior to the Effective Time being called an "Existing
Option" and each such stock option so assumed by the Holding Company being
called an "Assumed Option"). By reason of such assumption, and each option
agreement that evidenced the right to purchase Bank common stock shall
thereafter represent, and each holder of an Existing Option shall have, the
right to purchase one share of Holding Company common stock for each share of
Bank common stock which such holder was entitled to purchase under his or her
Existing Option at an exercise price per share equal to the exercise price of
the Existing Options. Each Assumed Option shall constitute a continuation of
the Existing Option, on the same terms and conditions set forth in the 1999 Plan
and in each optionee's stock option agreement that formerly evidenced the right
to purchase Bank common stock, except as follows: (i) shares of Holding Company
Common Stock will be substituted for the shares of Bank common stock into which
the existing options had been exercisable, (ii) the Holding Company shall be
substituted for the Bank as the issuer of shares under the 1999 Plan and (iii)
the Holding Company shall be authorized under the 1999 Plan to issue options to
purchase Holding Company shares not only to directors, officers and key
employees of the Bank, but also to directors, officers and key employees of the
Holding Company and any other subsidiaries it may establish in the future. In
addition, each option granted under the 1999 Plan at or after the Effective Time
shall evidence the right to purchase shares of common
2
stock of the Holding Company rather than shares of common stock of the Bank and
the Plan shall be modified to so provide. In all other respects, the 1999 Plan
shall be unchanged.
3. Termination of Merger. In the event, prior to the Effective Time, the
---------------------
Board of Directors of any of the parties hereto has determined that:
(a) the number of shares of common stock of the Bank voting against
the merger makes consummation of such merger inadvisable; or
(b) any action, suit, proceeding or claim relating to the merger
described herein, whether initiated or threatened, makes consummation of such
merger inadvisable; or
(c) consummation of the merger described herein is advisable for any
other reason; then this Agreement shall be terminated.
Upon any such termination, this Agreement shall be void and of no further
effect, and there shall be no liability by reason of this Agreement or the
termination thereof on the part of any of the parties hereto or any of their
respective directors, officers, employees, agents or stockholders.
4. Miscellaneous.
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4.1 Governing Law. This Agreement has been executed in California and the
-------------
laws of such State shall govern the validity and the interpretation hereof and
the performance by the parties hereto.
4.2 Counterparts. To facilitate the filing of this agreement, any number
------------
of counterparts hereof may be executed and each such counterpart shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one instrument.
4.3 Entire Agreement. This Merger Agreement, together with the
----------------
Reorganization Agreement, embody the entire agreement among the parties and
there have not been and there exist no other agreements, representations or
warranties among the parties with respect to the subject matter of this
Agreement or the Reorganization Agreement other than those set forth herein and
therein.
4.4 Captions. The captions contained in this Agreement are solely for
--------
convenience of reference and shall not be deemed to affect the meaning or
interpretation of any paragraph hereof.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Merger Agreement to
be executed by their duly authorized officers as of the day and year first above
written.
PACIFIC MERCANTILE BANK PACIFIC MERCANTILE BANCORP
By: /s/ XXXXXXX X. XXXXXXXX By: /s/ XXXXXXX X. XXXXXXXX
------------------------------ ------------------------------
Xxxxxxx X. Xxxxxxxx, President Xxxxxxx X. Xxxxxxxx, President
By: /s/ XXXXXXX XXXXXXX By: /s/ XXXXXXX XXXXXXX
------------------------------ ------------------------------
Xxxxxxx Xxxxxxx, Secretary Xxxxxxx Xxxxxxx, Secretary
PMBSUB
By: /s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx, President
By: /s/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx, Secretary
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