AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
EXHIBIT
2.1
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION, dated as of February 15, 2006 (this
“Agreement”), by and among Placer Sierra Bancshares, a California corporation (“Parent”), and
Southwest Community Bancorp, a California corporation (the “Company”).
WHEREAS, the Company operates as a one-bank holding company for its wholly-owned Subsidiary,
Southwest Community Bank, a California state-chartered bank (the “Company Bank”);
WHEREAS, Parent operates as a one-bank holding company for its wholly-owned Subsidiary, Placer
Sierra Bank, a California state-chartered bank (the “Parent Bank”);
WHEREAS, the respective Boards of Directors of Parent and the Company deem it advisable and in
the best interests of their respective corporations and shareholders to effect the acquisition of
Company and Company Bank by Parent, subject to the terms and conditions herein, by means of a
merger (the “Holding Company Merger”) of Company with and into Parent in accordance with the
Agreement of Merger, in the form of Exhibit A hereto (the “Agreement of Merger”) and in
accordance with the applicable provisions of California General Corporation Law (the “CGCL”);
WHEREAS, the Holding Company Merger is intended to qualify as a tax-free reorganization within
the meaning of the provisions of Section 368 of the Internal Revenue Code of 1986, as amended (the
“Code”), with respect to the exchange of Company Common Stock for shares of Parent common stock to
be issued in connection with the Holding Company Merger;
WHEREAS, as an inducement for each party to enter into this Agreement, each of the directors
of the Company set forth on Exhibit B hereto (the “Company Affiliated Shareholders”), who
have the power to vote the number of the issued and outstanding shares of voting stock of the
Company set forth opposite their respective names on Exhibit B hereto, and each of the
directors of Parent set forth on Exhibit C hereto (the “Parent Affiliated Shareholders”),
who have the power to vote the respective number of shares of the issued and outstanding voting
stock of Parent set forth opposite their respective names on Exhibit C hereto, have
executed and delivered to Parent and the Company, respectively, agreements in the form of
Exhibit D-1 and Exhibit D-2 (each a “Voting Agreement” and collectively, the
“Voting Agreements”), providing that, among other things, the Company Affiliated Shareholders and
Parent Affiliated Shareholders will, subject to the terms and conditions therein, vote their
Company Shares and Parent Shares, respectively, in favor of the Holding Company Merger; and
WHEREAS, as an inducement for Parent to enter into this Agreement, each of the directors of
the Company identified on Schedule E-1, have executed and delivered to Parent agreements in
the form of Exhibit E-1 hereto (each a “Noncompetition Agreement” and collectively, the
“Noncompetition Agreements”) and each of the executive officers of the Company or Company Bank
identified on Schedule E-2 have executed and delivered to Parent agreements in the form of
Exhibit E-2 (each a “Nonsolicitation Agreement” and collectively, the “Nonsolicitation
Agreements”) providing, that, among other things, such person will, following the Holding Company
Merger, subject to the terms and conditions therein, refrain from competing with the Surviving
Corporation and the Surviving Bank, as defined below, or soliciting customers or prospective
customers from the Surviving Bank, as the case may be.
NOW, THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth in this Agreement and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
The Merger
The Merger
Section 1.1. The Holding Company Merger. Upon the terms and subject to satisfaction
or waiver of the conditions set forth in this Agreement, and in accordance with the CGCL, at the
Effective Time the Company shall be merged with and into the Parent. As a result of the Holding
Company Merger, the separate corporate existence of the Company shall cease and the Parent shall
continue as the surviving corporation of the Holding Company Merger (sometimes referred to as the
“Surviving Corporation”) pursuant to the laws of the state of California.
Section 1.2. Closing. The consummation of the Holding Company Merger (the “Closing”)
shall take place as soon as reasonably practicable but in no event later than the tenth
(10th) Business Day immediately after: (i) the satisfaction or waiver of the conditions
set forth in Articles VIII, IX and X, respectively (excluding conditions that, by their nature,
cannot be satisfied until, but will be satisfied or waived as of, the Closing Date) and (ii) the
expiration of the time period for determining which Company Shares are eligible to be Company
Perfected Dissenting Shares as provided in Section 1302 of the CGCL, unless this Agreement has been
theretofore terminated pursuant to its terms or unless another time or date is agreed to in writing
by the parties hereto (the actual date of the Closing being referred to herein as the “Closing
Date”). The Closing shall be held at the offices of Manatt, Xxxxxx & Xxxxxxxx, LLP, 0000 Xxxx Xxxx
Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, unless another place is agreed to in writing by the parties
hereto. On the Closing Date, the parties hereto shall cause the Holding Company Merger to be
consummated by filing a copy of the Agreement of Merger with the Secretary of State of California,
duly executed, together with the officers’ certificates prescribed by Section 1103 of the CGCL.
The Holding Company Merger shall become effective on the Closing Date when the Agreement of Merger
and officers’ certificates have been duly filed with the Secretary of State of California (the date
and time of such filing, or if another date and time is specified in such filing, such specified
date and time, being the “Effective Time”).
Section 1.3. Effect of the Holding Company Merger. At the Effective Time, the effect
of the Holding Company Merger shall be as provided in the provisions of the CGCL. Without limiting
the generality of the foregoing, at the Effective Time, except as otherwise provided herein, all
the property, rights, privileges, powers and franchises of the Company and the Parent shall vest in
the Surviving Corporation, and all debts, liabilities and duties of the Company and the Parent
shall become the debts, liabilities and duties of the Surviving Corporation.
Section 1.4. Articles of Incorporation; Bylaws. At the Effective Time, the Articles
of Incorporation and Bylaws of the Surviving Corporation shall be the Articles of Incorporation and
Bylaws of Parent as they exist immediately before the Effective Time, and in each case until
thereafter changed or amended as provided therein or pursuant to applicable Law.
Section 1.5. Directors and Officers of Surviving Corporation. At the Effective Time,
the initial directors of the Surviving Corporation shall be the directors of Parent, Xxxxx
Xxxxxxxxxxx and Xxxxx Xxxxxxxx (the “New Directors”), each to hold office in accordance with the
Articles of Incorporation and Bylaws of the Surviving Corporation. The initial officers of the
Surviving Corporation shall be the officers of Parent, each to hold office in accordance with the
Articles of Incorporation and Bylaws of the Surviving Corporation.
Section 1.6. The Bank Merger. Parent and the Company anticipate that, after the
Effective Time, the Company Bank will merge with and into the Parent Bank (the “Bank Merger”) with
Parent Bank surviving (the “Surviving Bank”). The Bank Merger shall occur at such time after the
Effective
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Time of the Holding Company Merger, and pursuant to the Agreement of Bank Merger in the form
of Exhibit F hereto (the “Agreement of Bank Merger”) or such other agreement as Parent shall
determine, in Parent’s sole discretion.
Section 1.7. Reservation of Right to Revise Transaction. Subject to the Company’s
prior written consent (which consent shall not be unreasonably withheld), Parent may change the
method of effecting the Holding Company Merger and the Bank Merger to the extent permitted by
applicable law; provided, however, that no such change shall (a) adversely alter or
change the amount or form of the Merger Consideration to be paid to the Company’s Shareholders, (b)
materially impede or delay the consummation of the Holding Company Merger or (c) adversely affect
the tax treatment of Company Shareholders as a result of receiving the Merger Consideration.
Section 1.8. Additional Actions. If, at any time after the Effective Time, Parent
shall consider or be advised that any further deeds, assignments or assurances or any other acts
are necessary or desirable to (a) vest, perfect or confirm, of record, or otherwise, in Parent its
right, title, or interest in, to or under any of the rights, properties or assets of Company or (b)
otherwise carry out the purposes of this Agreement, Company hereby grants to Parent an irrevocable
power of attorney, effective following the Effective Time, to execute and deliver all such deeds,
assignments or assurances and to do all acts necessary or desirable to vest, perfect or confirm
title and possession to such rights, properties or assets in Parent and otherwise carry out the
purposes of this Agreement. The officers and directors of Parent are authorized in the name of the
Company to take any and all such actions following the Effective Time.
ARTICLE II
Consideration; Conversion of Securities; Exchange of Certificates
Consideration; Conversion of Securities; Exchange of Certificates
Section 2.1. Conversion of Securities. At the Effective Time, by virtue of the
Holding Company Merger and without any action on the part of Parent, the Company or the holders of
any of the following securities:
(a) Conversion Generally. Subject to adjustment as provided in Section 11.1(k), each Company
Share issued and outstanding immediately prior to the Effective Time (other than any Company Shares
to be cancelled pursuant to Section 2.1(b) or Company Dissenting Shares), shall be converted into
and shall become exchangeable for the right to receive a number of shares of Parent Common Stock
equal to the Exchange Ratio (“Parent Shares”). At the Effective Time, all of the Company Shares
that were outstanding immediately prior to the Effective Time shall no longer be outstanding and
shall cease to exist, and each certificate previously representing any such Company Shares shall
thereafter represent solely the right to receive the Merger Consideration into which such Company
Shares were converted in the Holding Company Merger.
(b) Cancellation of Certain Shares. Each Company Share that is owned directly or indirectly
by the Parent or any Subsidiary of the Company or Parent (other than Company Shares held in trust
or otherwise for the benefit of a third party or as pledgee) shall be cancelled and retired and
shall cease to exist, and no Merger Consideration shall be delivered in exchange therefor.
(c) Company Dissenting Shares. Notwithstanding anything to the contrary contained in this
Agreement, any holder of Company Shares who shall be entitled to be paid the “fair market value” of
such holder’s Company Perfected Dissenting Shares, as provided in Section 1300 of the CGCL, shall
only be entitled to receive such payment provided for in Section 1300 of the CGCL unless and until
such holder shall have failed to perfect or withdrawn or lost such holder’s rights under Section
1300 of the CGCL.
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(d) Parent Capital Stock. Upon consummation of the Holding Company Merger, each outstanding
share of Parent capital stock shall remain an outstanding share of Parent capital stock and shall
not be converted or otherwise affected by the Holding Company Merger, except as set forth in
Section 2.6, and shall be deemed to represent one outstanding share of the Surviving Corporation.
Section 2.2. Change in Parent Common Stock. If between the date of this Agreement and
the Effective Time, the outstanding Parent Common Stock shall have been changed into a different
number of shares of Parent Common Stock by reason of any stock dividend, subdivision,
reclassification, recapitalization, split, combination or exchange of a class of shares or the
like, the Exchange Ratio, the Parent Average Price and the Starting Price shall be correspondingly
and appropriately adjusted to reflect such event.
Section 2.3. Fractional Shares. Notwithstanding any other provision hereof, no
fractional shares of Parent Common Stock shall be issued to holders of Company Shares in the
Holding Company Merger. In lieu thereof, each such holder entitled to a fraction of a share of
Parent Common Stock shall receive, at the time of surrender of the certificate or certificates
representing such holder’s Company Shares, an amount in cash equal to the Parent Average Price
multiplied by the fraction of a share of Parent Common Stock to which such holder otherwise would
be entitled. No such holder shall be entitled to dividends, voting rights, interest on the value
of, or any other rights in respect of a fractional share. Fractional shares shall be determined on
an aggregate basis for each Company shareholder and not on a per share or per certificate basis.
Section 2.4. Surrender of Certificates and Payment.
(a) Exchange Agent. As of the Effective Time, Parent shall deposit with a bank or trust
company reasonably satisfactory to the Company (the “Exchange Agent”) in trust for the benefit of
holders of the Company Shares (i) such certificates of Parent Common Stock (the “Parent Stock
Certificates”) representing the number of whole shares of Parent Common Stock issuable pursuant to
Section 2.1(a) in exchange for Company Shares outstanding immediately prior to the Effective Time,
and (ii) sufficient cash to make all cash payments in lieu of fractional shares pursuant to Section
2.3. Parent shall enter into an agreement with the Exchange Agent to effect the foregoing exchange
of Parent Common Stock for Company Shares, which agreement shall be reasonably satisfactory to the
Company.
(b) Exchange Procedures.
(i) The Parent shall cause the Exchange Agent, promptly after the Effective Time (and in no
event later than five (5) Business Days following the Effective Time), to mail to each holder of
record of certificates of Company Common Stock Certificates (“Company Common Stock Certificates”)
that were converted into the right to receive the Merger Consideration pursuant to Section 2.1(a),
(A) a letter of transmittal which shall specify that delivery shall be effected and risk of loss
and title to the Company Common Stock Certificates shall pass only upon delivery of the Company
Stock Certificates to the Exchange Agent and shall be in such form and have such other customary
provisions as Parent and the Company may reasonably specify) and (B) instructions for completion
and use in effecting the surrender of the Company Common Stock Certificates in exchange for the
Merger Consideration. Upon surrender of a Company Common Stock Certificate for cancellation to the
Exchange Agent (or, in default thereof, an appropriate affidavit of loss and indemnity agreement
and/or a bond in an amount as may be reasonably required by Parent as set forth in subsection (g)
hereto), together with such letter of transmittal duly executed in accordance with the instructions
contained
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therein, the holder of such Company Common Stock Certificate shall be entitled to receive in
exchange therefor the Merger Consideration that such holder has the right to receive pursuant to
this Article II and the Company Common Stock Certificate so surrendered shall forthwith be
cancelled. In the event of a transfer of ownership of Company Shares that is not registered in the
transfer records of the Company, the Merger Consideration may be issued to a transferee of the
record holder of such Company Shares if the Company Common Stock Certificate representing such
Company Shares is presented to the Exchange Agent accompanied by all documents required to evidence
and effect such transfer and by evidence that any applicable stock transfer taxes have been paid.
Until surrendered as contemplated by this Section 2.4, each Company Common Stock Certificate shall
be deemed at any time after the Effective Time to represent only the right to receive upon such
surrender the Merger Consideration as contemplated by this Section 2.4.
(c) Return of Merger Consideration. Any portion of the Merger Consideration which remains
undistributed to the holders of Company Shares for six (6) months after the Effective Time shall be
delivered to Parent upon demand by Parent to the Exchange Agent, and any holders of Company Shares
who have not theretofore surrendered their Company Common Stock Certificates, or any of them, as
provided in this Section 2.4, shall thereafter look only to Parent for the Merger Consideration to
which they are entitled, without any interest thereon.
(d) Distributions with Respect to Unexchanged Company Shares. Notwithstanding any other
provision of this Agreement, no dividends or other distributions in respect of Parent Shares with a
record date on or after the Effective Time shall be paid to any person holding a Company Common
Stock Certificate until such Company Common Stock Certificate has been surrendered for exchange as
provided for in this Section 2.4. Subject to applicable Laws and the immediately preceding
sentence, following surrender of any such Company Common Stock Certificate, there shall be paid to
the holder of the Parent Stock Certificate issued in exchange therefor, if any, without interest,
at the time of such surrender, the amount of dividends or other distributions with a record date on
or after the Effective Time theretofore payable with respect to the Parent Shares represented
thereby, as well as any dividends with respect to the Company Shares represented by the surrendered
Company Common Stock Certificate declared prior to the Effective Time but theretofore unpaid.
(e) Transfers. On or after the Effective Time, holders of Company Common Stock shall cease to
be, and shall have no rights as, shareholders of the Company, other than to receive the
consideration provided for under this Article II. After the Effective Time, there shall be no
transfers of Company Shares on the stock transfer books of the Company.
(f) No Liability. Neither the Parent nor the Company shall be liable to any holder of Company
Shares for any Merger Consideration deposited with the Exchange Agent which is properly delivered
to a public official pursuant to any abandoned property, escheat or similar Law.
(g) Lost Certificates. If any Company Common Stock Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person claiming such Company
Common Stock Certificate to be lost, stolen or destroyed and, if reasonably required by Parent, the
posting by such person of a bond, in such reasonable amount as Parent may direct, as indemnity
against any claim that may be made against it with respect to such Company Common Stock
Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed
Certificate the Merger Consideration to which the holders thereof are entitled, without any
interest thereon.
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(h) Withholding. Parent or the Exchange Agent shall be entitled to deduct and withhold from
the Merger Consideration otherwise payable pursuant to this Agreement to any holder of Company
Shares such amounts as Parent or the Exchange Agent is required to deduct and withhold under
applicable Law with respect to the making of such payment. To the extent that amounts are so
withheld by Parent or the Exchange Agent, such withheld amounts shall be treated for all purposes
of this Agreement as having been paid to the holder of Company Shares in respect of whom such
deduction and withholding was made by Parent or the Exchange Agent.
Section 2.5. Effect of Holding Company Merger on Company Options and Company Warrants.
The outstanding options or other rights to purchase shares of Company Common Stock (collectively,
the “Company Options”) and the outstanding Company Warrants shall be treated as follows in
connection with the Holding Company Merger:
(a) The Company shall give all holders of Company Options timely notice of the pending Holding
Company Merger in accordance with the provisions of the Company Option Plan. In accordance with
the terms of the Company Option Plan, each outstanding Company Option shall become immediately
exercisable, whether or not vested under the terms of the Company Option Plan. Each holder of a
Company Option will then have the right to exercise such Company Option for Company Common Stock,
and, upon effectiveness of the Holding Company Merger, receive the consideration set forth in
Section 2.1. In order to determine the value of shares of Company Common Stock used to pay the
exercise price for outstanding Company Options, the Company shall take into account the value of
Parent Common Stock being issued in exchange for Company Common Stock in the Holding Company
Merger. Unless exercised or canceled prior to the Effective Time, all Company Options which have
not been exercised prior to the Effective Time of the Holding Company Merger shall terminate in
accordance with the terms of the Company Option Plan without any additional consideration therefor.
(b) At the Effective Time, each Company Warrant which is then outstanding shall cease to
represent a right to acquire shares of Company Common Stock and shall be converted automatically
into a warrant to purchase the number of shares of Parent Common Stock and other securities and
property (including cash) which each holder would have owned or would have been entitled to receive
after the occurrence of the Holding Company Merger had they exercised the Company Warrant for
Company Common Stock immediately prior to the Effective Time of the Holding Company Merger, and
Parent shall assume each Company Warrant, in accordance with the terms of the Company Warrant and
the Warrant Agreement dated April 19, 2002. As assumed, the Warrant exercise price shall also be
adjusted by dividing the as adjusted per share exercise price under each such Company Warrant by
the Exchange Ratio, rounded to the nearest whole cent, subject to any additional adjustments
required by Section 11.1(k). Parent and Company agree to take all necessary steps to effect the
foregoing provisions of this Section 2.5(b), including without limitation the mailing by Parent by
first class, U.S. mail, postage prepaid, to each holder of a Company Warrant of a written
instrument setting forth Parent’s agreement to assume such Company Warrants .
Section 2.6. Parent Dissenting Shares. Notwithstanding anything to the contrary
contained in this Agreement, any holder of Parent Common Stock who shall be entitled to be paid the
“fair market value” of such holder’s Parent Perfected Dissenting Shares, as provided in Section
1300 of the CGCL, shall only be entitled to receive such payment provided for in Section 1300 of
the CGCL unless and until such holder shall have failed to perfect or withdrawn or lost such
holder’s rights under Section 1300 of the CGCL.
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Section 2.7. Computation and Confirmation of Certain Items. The Aggregate Merger
Consideration, Per Share Price and Exchange Ratio shall be calculated by Parent prior to the
Effective Time of the Holding Company Merger and shall be set forth in a certificate (the “Merger
Certificate”) executed by an authorized executive officer of Parent and furnished to the Company
prior to the Closing Date showing the manner of calculation in reasonable detail.
ARTICLE III
Representations and Warranties of the Company
Representations and Warranties of the Company
Except as set forth in a confidential disclosure schedule delivered by the Company to Parent
prior to the execution of this Agreement (the “Company Confidential Disclosure Schedule”), which
identifies exceptions by specific section references, the Company hereby represents and warrants to
Parent as follows:
Section 3.1. Organization and Qualification of Company and Subsidiaries. The Company
is a corporation duly incorporated, validly existing and in good standing under the laws of the
State of California, and is a registered bank holding company under the BHCA. Each Subsidiary of
the Company is a corporation or statutory business trust duly incorporated or organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or
organization, as set forth in Section 3.1 of the Company Confidential Disclosure Schedule. Each of
the Company and its Subsidiaries has the requisite corporate power and authority and all necessary
governmental approvals to own, lease and operate its respective properties and to carry on its
business as it is now being conducted. Each of the Company and its Subsidiaries is duly qualified
or licensed to do business, and is in good standing, in each jurisdiction where the character of
the properties owned, leased or operated by it or the nature of its business makes such
qualification, licensing or good standing necessary, except for such failures to be so qualified,
licensed or in good standing that would not, individually or in the aggregate, have a Material
Adverse Effect with respect to the Company.
Section 3.2. Articles of Incorporation and Bylaws; Corporate Books and Records. The
copies of the Company’s Articles of Incorporation, as amended (the “Company Articles”), and Bylaws,
as amended (the “Company Bylaws”), that are listed as exhibits to the Company’s Form 10-K for the
year ended December 31, 2004 are complete and correct copies thereof as in effect on the date
hereof. The Company is not in violation of any of the provisions of the Company Articles or the
Company Bylaws. True and complete copies of all minute books of the Company and each of its
Subsidiaries, containing minutes of meetings held and actions taken by their respective Boards of
Directors or any committees thereof during the period from January 1, 2003 to the date hereof, have
been made available by the Company to Parent.
Section 3.3. Capitalization.
(a) The authorized capital stock of the Company consists of 28,125,000 shares of Company
Common Stock, no par value per share and 10,000,000 shares of preferred stock, no par value per
share. As of the date hereof, (i) 3,808,663 shares of Company Common Stock are issued and
outstanding, all of which are validly issued, fully paid, nonassessable and free of preemptive
rights, (ii) no shares of preferred stock are outstanding, (iii) 863,841.375 shares of Company
Common Stock are issuable (and such number is reserved for issuance) upon exercise of Company
Options outstanding as of the date hereof (the “Company Option Shares”), and (iv) 112,700.7 shares
of Company Common Stock are issuable (and such number is reserved for issuance) upon exercise of
Company Warrants outstanding as of the date hereof. All of the issued and outstanding shares of
capital stock or other
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equity securities of the Company have been issued in compliance with all applicable federal
and state securities laws.
(b) Except for the Company Options and Company Warrants, there are no (i) options, warrants
or other rights, agreements, arrangements or commitments of any character to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound
relating to the issued or unissued capital stock or other Equity Interests of the Company or any of
its Subsidiaries, or (ii) securities convertible into or exchangeable for such capital stock or
other Equity Interests, or obligating the Company or any of its Subsidiaries to issue or sell any
shares of its capital stock or other Equity Interests, or (iii) securities convertible into or
exchangeable for such capital stock of, or other Equity Interests in, the Company or any of its
Subsidiaries. Section 3.3(b) of the Company Confidential Disclosure Schedule contains a true and
complete list of the name of each holder of Company Options and Company Warrants, the prices at
which outstanding Company Options and Company Warrants are exercisable, the plan or agreement
pursuant to which such Company Options and Company Warrants were issued and the number of Company
Option Shares and Company Warrant Shares outstanding at each such price. All of the Company Option
Shares and Company Warrant Shares, upon their issuance on the terms and conditions specified in the
instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully
paid, nonassessable and free of preemptive rights.
(c) Except for the Voting Agreements, and except as set forth in Section 3.3(c) of the Company
Confidential Disclosure Schedule, there are no outstanding contractual obligations of the Company
or any of its Subsidiaries (i) restricting the transfer of, (ii) affecting the voting rights of,
(iii) requiring the repurchase, redemption or disposition of, or containing any right of first
refusal with respect to, (iv) requiring the registration for sale of, or (v) granting any
preemptive or antidilutive right with respect to, any shares of Company Common Stock or any capital
stock of, or other Equity Interests in, the Company or any of its Subsidiaries.
(d) Neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures,
notes or other obligations the holders of which have the right to vote (or that are convertible
into or exercisable for securities having the right to vote) with the shareholders of the Company
on any matter.
(e) Neither the Company nor any of its Subsidiaries has currently in effect any shareholder
rights plan or “poison pill”.
Section 3.4. Subsidiaries.
(a) The Company has no Subsidiaries other than those listed in Section 3.1 of the Company
Confidential Disclosure Schedule, and there are no Subsidiaries of such Subsidiaries. Except as
set forth in Section 3.4 of the Company Confidential Disclosure Schedule, the Company owns all of
the issued and outstanding capital stock of each of its Subsidiaries, free and clear of any
pledges, security interests, options, liens, claims, or other encumbrances of any kind
(collectively, the “Liens”). All of the issued and outstanding shares of capital stock of each of
the Company’s Subsidiaries have been duly authorized, validly issued, fully paid and are
non-assessable. There are no outstanding contractual obligations of the Company or any of its
Subsidiaries to make any investment in any of its Subsidiaries or any other person. None of the
Company’s Subsidiaries has (i) any arrangements or commitments obligating any of them to issue
shares of any of its capital stock or any securities convertible into or
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having the right to purchase shares of any of its capital stock or (ii) any bonds, debentures,
notes or other obligations outstanding that entitle the holders thereof to vote (or that are
convertible into or exercisable for securities having the right to vote) on any matters on which
its shareholders may vote. True and complete copies of the Company’s Subsidiaries’ respective
articles of incorporation, bylaws or equivalent organizational documents have been delivered to
Parent. None of the Company’s Subsidiaries is in violation of its respective organizational
documents.
(b) Except for securities and other interests held in a fiduciary capacity and beneficially
owned by third parties or taken in consideration of debts previously contracted and ownership in
the Company Subsidiaries, the Company does not own beneficially, directly or indirectly any Equity
Interest or similar instrument of any Person or any interest in any partnership or joint venture of
any kind.
(c) The deposit accounts of Company Bank are insured by the Federal Deposit Insurance
Corporation in the manner and to the maximum extent provided by applicable Law, and Company Bank
has paid all deposit insurance premiums and assessments required by applicable Law and regulation.
Section 3.5. Authority.
(a) The Company has all necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by
this Agreement. The execution and delivery of this Agreement and the Agreement of Merger and the
consummation by the Company of the transactions contemplated hereby and thereby have been duly and
validly authorized by action of the Company (other than the adoption of this Agreement by the
affirmative vote of the holders of a majority of the outstanding Company Shares entitled to vote
thereon and the filing of the Agreement of Merger). This Agreement has been, and the Agreement of
Merger will be, duly and validly executed and delivered by the Company and, assuming the due
authorization, execution and delivery hereof by Parent, constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equitable principles
(regardless of whether such enforceability is considered in equity or at law).
(b) By resolutions duly adopted at a meeting of the Company Board duly called and held on
February 15, 2006, by the affirmative vote of the Company Board required to do so pursuant to the
Company’s Articles of Incorporation and the applicable provisions of the CGCL, the Company Board
has duly (i) declared this Agreement advisable and determined that the transactions contemplated
hereby (including the Holding Company Merger) are fair to and in the best interests of the Company
and its shareholders, (ii) approved and adopted this Agreement by the unanimous vote of the members
of the Company Board, and (iii) resolved to recommend that the shareholders of the Company vote for
the approval of the Agreement (the “Company Board Approval”). A true and correct copy of such
resolutions, certified by the Company’s corporate secretary, has been furnished to Parent and none
of such resolutions has been rescinded or revoked, in whole or in part, or modified in any way.
The affirmative vote of the holders of a majority of the issued and outstanding shares of Company
Common Stock is necessary to approve this Agreement (and the Holding Company Merger) on behalf of
the Company. No other vote of the Company Shareholders is required by Law, the Company’s Articles
or Bylaws or otherwise to adopt this Agreement and the Holding Company Merger.
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(c) The Company Bank has all necessary corporate power and authority to execute and deliver
the Agreement of Bank Merger, to perform its obligations thereunder and to consummate the
transactions contemplated thereby. The execution and delivery of the Agreement of Bank Merger and
the consummation by the Company Bank of the transactions contemplated thereby have been duly and
validly authorized by action of the Company Bank. The Agreement of Bank Merger, when duly and
validly executed and delivered by the Company Bank, will constitute a legal, valid and binding
obligation of the Company Bank, enforceable against the Company Bank in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors’ rights, to general equitable
principles (regardless of whether such enforceability is considered in equity or at law) and to 12
U.S.C. 1818(b)(6)(D).
Section 3.6. No Conflict; Required Filings and Consents.
(a) Except as set forth in Section 3.6(a) of the Company Confidential Disclosure Schedule, (i)
the execution and delivery of this Agreement and the Agreement of Merger by the Company, and (ii)
the execution and delivery of the Agreement of Bank Merger by the Company Bank, do not, and the
performance of this Agreement and the transactions contemplated hereby and thereby (including the
Holding Company Merger and the Bank Merger) by the Company and Company Bank, as the case may be,
will not, (A) conflict with or violate any provision of the Company Articles or Company Bylaws or
any equivalent organizational documents of any of its Subsidiaries, (B) conflict with or violate
any Law applicable to the Company or any of its Subsidiaries or by which any property or asset of
the Company or any of its Subsidiaries is bound or affected (assuming that all consents, approvals,
authorizations and permits described in Section 3.6(b) have been obtained and all filings and
notifications described in Section 3.6(b) have been made and any waiting periods thereunder have
terminated or expired), or (C) require any consent or approval under, result in any breach of or
any loss of any benefit under, constitute a change of control or default (or an event which with
notice or lapse of time or both would become a default) under or give to others any right of
termination, vesting, amendment, acceleration or cancellation of, or result in the creation of a
Lien on any property or asset of the Company or any of its Subsidiaries pursuant to, any Company
Material Contract (as defined in Section 3.14 herein), Company Permits or other material
instruments or obligations.
(b) (i) The execution and delivery of this Agreement and the consummation of the Holding
Company Merger by the Company and (ii) the execution and delivery of the Agreement of Bank Merger
and the consummation of the Bank Merger by the Company Bank, do not, and the performance by the
Company of its obligations under this Agreement and the performance by the Company Bank of its
obligations under the Agreement of Bank Merger will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any Governmental Entity, except as
set forth in Section 3.6(b) of the Company Confidential Disclosure Schedule. The Company has no
knowledge of any reason why all Government Approvals required for consummation of the Holding
Company Merger and the Bank Merger will not be obtained on a timely basis.
Section 3.7. Permits; Compliance With Law.
(a) Each of the Company and its Subsidiaries is in possession of all material authorizations,
licenses, permits, certificates, approvals and clearances of any Governmental Entity necessary for
it to own, lease and operate its properties or to carry on its business substantially in the manner
as it is being conducted (the “Company Permits”), and all such Company Permits are valid, and in
full force and effect and, to the Company’s knowledge, no suspension or cancellation of any of them
is threatened.
10
(b) None of the Company or any of its Subsidiaries is in default or violation of, (i) any Law
applicable to the Company or any of its Subsidiaries or by which any material property or asset of
the Company or any of its Subsidiaries is bound or affected or (ii) any Company Permits.
(c) The Company Bank received a rating of “Satisfactory” in its most recent examination for
compliance with the Community Reinvestment Act of 1977, as amended (“Community Reinvestment Act”).
Section 3.8. SEC Filings; Financial Statements; Regulatory Reports.
(a) The Company has timely filed all registration statements, prospectuses, forms, reports,
definitive proxy statements, schedules and documents required to be filed by it under the
Securities Act or the Exchange Act, as the case may be, since January 1, 2003 (collectively, the
“Company SEC Filings”). None of the Company’s Subsidiaries is required to file periodic reports
with the SEC pursuant to the Exchange Act. Each Company SEC Filing (i) as of the time it was
filed, complied in all material respects with the requirements of the Securities Act or the
Exchange Act, as the case may be and (ii) did not, at the time it was filed (or if subsequently
amended or superseded by a Company SEC Filing made on or prior to the date of this Agreement, then
on the date of such subsequent filing, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not misleading.
(b) The Company’s consolidated financial statements (including, in each case, any notes and
schedules thereto) contained in the Company SEC Filings, were prepared in accordance with GAAP
applied on a consistent basis throughout the periods indicated (except as may be indicated in the
notes thereto, or, in the case of interim consolidated financial statements, where information and
footnotes contained in such financial statements are not required to be in compliance with GAAP),
and in each case such consolidated financial statements fairly presented in all material respects,
the consolidated financial position, results of operations and cash flows of the Company and the
consolidated Subsidiaries of the Company as of the respective dates thereof and for the respective
periods covered thereby (subject, in the case of unaudited statements, to normal year-end
adjustments which did not and which are not expected to, individually or in the aggregate, have a
Material Adverse Effect with respect to the Company).
(c) Except as and to the extent adequately provided for, in the aggregate, on the consolidated
balance sheet of the Company and its consolidated Subsidiaries as of September 30, 2005 (the
“Company Balance Sheet”), neither the Company nor any of its consolidated Subsidiaries has any
liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that
would be required to be reflected on a balance sheet or in notes thereto prepared in accordance
with GAAP, except for liabilities or obligations (i) incurred in the ordinary course of business
since September 30, 2005 that would not, individually or in the aggregate, have a Material Adverse
Effect with respect to the Company, or (ii) incurred or provided for in, or as contemplated by,
this Agreement.
(d) Each required form, report and document containing financial statements that the Company
has filed with or furnished to the SEC since January 1, 2003 was accompanied by the certifications
required to be filed or furnished by the Company’s chief executive officer and chief financial
officer pursuant to the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated under
such act or the Exchange Act (collectively, the “Xxxxxxxx-Xxxxx Act”), and at the time of filing or
submission of each such certification, such certification (i) was true and accurate and complied
with the Xxxxxxxx-Xxxxx Act in all material respects, (ii) did not contain any qualifications or
exceptions to the
11
matters certified therein, except as otherwise permitted under the Xxxxxxxx-Xxxxx Act or the
rules and regulations thereunder, and (iii) has not been modified or withdrawn. Neither the
Company nor any of its officers has received notice from any Governmental Entity questioning or
challenging the accuracy, completeness, content, form or manner of filing or furnishing of such
certifications. The Company’s disclosure controls and procedures (as defined in Sections 13a-14(c)
and 15d-14(c) of the Exchange Act) effectively enable the Company to comply with, and the
appropriate officers of the Company to make all certifications required under, the provisions of
the Xxxxxxxx-Xxxxx Act pertaining to disclosure controls and procedures. The Company’s disclosure
controls and procedures (as defined in Sections 13a-15(e) and 15d-15(e) of the Exchange Act) are
effective to provide reasonable assurance that material information, relating to the Company and
its consolidated Subsidiaries, required to be included in any of the Company SEC Filings, were made
known to Company management, including its chief executive officer and chief financial officer,
respectively, on a timely basis. Neither the Company, nor any of its officers, has received notice
from any Governmental Entity questioning or challenging the accuracy, completeness, form or manner
of filing or submission of such certifications. The Company knows of no reason why the Company’s
outside auditors, chief executive officer and chief financial officer will not be able to give the
certifications and attestations required pursuant to the rules and regulations adopted pursuant to
Section 404 of the Xxxxxxxx-Xxxxx Act, without qualification, when next due.
(e) Each of the Company and its Subsidiaries has filed all material documents and reports
relating to each of the Company and its Subsidiaries required to be filed with the FRB, the FDIC,
the DFI, or any other Governmental Entity having jurisdiction over its business or any of its
assets or properties (each a “Regulatory Authority” and collectively, the “Regulatory
Authorities”). All such reports conform in all material respects with the requirements promulgated
by such Regulatory Authorities.
(f) The Company and its Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with management’s general or
specific authorization, and (iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to any differences.
Neither the Company nor, to the Company’s knowledge, the Company’s independent auditors or any
employee of the Company or its Subsidiaries has identified or been made aware of (i) any fraud,
whether or not material, that involves the Company’s or any Subsidiary’s management or other
employees who have a role in the preparation of financial statements or the internal controls used
or utilized by the Company or its Subsidiaries or (ii) any claim or allegation regarding any of the
foregoing.
Section 3.9. Regulatory Matters. Except as may otherwise be set forth in Section 3.9
of the Company Confidential Disclosure Schedule, neither the Company nor any of its Subsidiaries
(i) is, directly or indirectly, party or subject to any order, decree, agreement, memorandum of
understanding or similar arrangement with, or a commitment letter or similar submission to, or
supervisory letter from, any Regulatory Authority or (ii) has been advised by, or has any knowledge
of facts which are reasonably expected to give rise to an advisory notice by, any Regulatory
Authority that such Regulatory Authority is contemplating issuing or requesting (or is considering
the appropriateness of issuing or requesting) any order, decree, agreement, memorandum of
understanding, commitment letter, supervisory letter or similar submission. Except as set forth on
Section 3.9 of the Company Confidential Disclosure Schedule, all compliance or corrective action
relating to the Company or any of its Subsidiaries required by Regulatory Authorities having
jurisdiction over the Company or any of its
12
Subsidiaries has been taken. Each of the Company and its Subsidiaries has paid all
assessments made or imposed by and required to have been heretofore paid to any Regulatory
Authority.
Section 3.10. Absence of Certain Changes or Events.
(a) Since December 31, 2005, except as specifically contemplated by, or as disclosed in, this
Agreement, the Company SEC Filings or Section 3.10 of the Company Confidential Disclosure Schedule,
each of the Company and its Subsidiaries has conducted its business in the ordinary course
consistent with past practice and (ii) has not taken any action that would have been prohibited by
Section 6.1 if taken after the date of this Agreement, except with respect to Section 6.1(o) the
threshold shall be $2,000,000 rather than $1,000,000.
(b) Since December 31, 2005, except as set forth in Section 3.10 of the Company Confidential
Disclosure Schedule, there has not been any Material Adverse Effect with respect to the Company or
an event or development that is expected, individually or in the aggregate, to have a Material
Adverse Effect with respect to the Company.
Section 3.11. Employee Benefit Plans.
(a) Section 3.11(a) of the Company Confidential Disclosure Schedule lists, as of the date
hereof, all Company Benefit Plans. There have been made available to Parent copies of (i) each
such written Company Benefit Plan and a written summary of each Company Benefit Plan that is not in
writing, (ii) the three (3) most recent annual reports on Form 5500 series, with accompanying
schedules and attachments, filed with respect to each Company Benefit Plan required to make such a
filing, and (iii) the most recent actuarial valuation for each Company Benefit Plan, if any, that
is subject to Title IV of ERISA and the most recent actuarial valuation of benefits to be provided
under the SERPs.
(b) Except as set forth in Section 3.11(b) of the Company Confidential Disclosure Schedule,
(i) none of the Company Benefit Plans promises or provides retiree medical or other retiree welfare
benefits to any person, (ii) none of the Company Benefit Plans is a “multiemployer plan” as such
term is defined in Section 3(37) of ERISA (“Multiemployer Plan”); (iii) to the Company’s knowledge,
there has been no “prohibited transaction,” as such term is defined in Section 406 of ERISA and
Section 4975 of the Code (“Prohibited Transaction”) with respect to any Company Benefit Plan, which
could reasonably be expected to result in any material liability of the Company or any of its
Subsidiaries; (iv) to the Company’s knowledge, all Company Benefit Plans are in material compliance
with the requirements prescribed by any and all statutes (including ERISA and the Code), orders, or
governmental rules and regulations currently in effect with respect thereto (including all
applicable requirements for notification to participants or the Department of Labor, the Pension
Benefit Guaranty Corporation (the “PBGC”), Internal Revenue Service (the “IRS”) or Secretary of the
Treasury); (v) the Company and each of its Subsidiaries have performed their respective obligations
required to be performed by them under, are not in material default under or violation of, and have
no knowledge of any material default or violation by any other party to, any of the Company Benefit
Plans; (vi) each Company Benefit Plan intended to qualify under Section 401(a) of the Code and each
trust intended to qualify under Section 501(a) of the Code, including all amendments thereto, is
the subject of a favorable determination letter from the IRS covering qualification under all
changes in the Code except for changes with respect to which the applicable remedial amendment
period has not expired, and, to the Company’s knowledge, nothing has occurred which may reasonably
be expected to impair such determination; (vii) all contributions required to be made to any
Company Benefit Plan pursuant to Section 412 of the Code, or the terms of the Company Benefit Plan
or any collective bargaining agreement, have been made on or before their due dates; (viii) all
obligations in respect of each Company Benefit Plan have been
13
properly accrued and reflected in the Company’s most recent financial statements contained in
the Company’s SEC Filings; (ix) with respect to each Company Benefit Plan, no “reportable event”
within the meaning of Section 4043 of ERISA (excluding any such event for which the 30-day notice
requirement has been waived under the regulations to Section 4043 of ERISA) nor any event described
in Section 4062, 4063 or 4041 of ERISA has occurred; and (x) neither the Company nor any ERISA
Affiliate has incurred, nor reasonably expects to incur, any material liability under Title IV of
ERISA (other than liability for premium payments to the PBGC arising in the ordinary course).
(c) Except as set forth in Section 3.11(c) of the Company Confidential Disclosure Schedule, no
amount that could be received (whether in cash or property or the vesting of property), as a result
of the consummation of the transactions contemplated by this Agreement, by any employee, officer or
director of the Company or any of its Subsidiaries who is a “disqualified individual” (as such term
is defined in proposed Treasury Regulation Section 1.280G-1) under any Company Benefit Plan could
be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(d) Except as required by Law or as set forth in Section 3.11(d) of the Company Confidential
Disclosure Schedule, no Company Benefit Plan provides any retiree or post-employment medical,
disability or life insurance benefits. No Company Benefit Plan is a voluntary employee benefit
association under Section 501(a)(9) of the Code. The Company and each ERISA Affiliate are in
material compliance with (i) the requirements of the applicable health care continuation and notice
provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the
regulations thereunder and any similar state law and (ii) the applicable requirements of the Health
Insurance Portability and Accountability Act of 1996, as amended, and the regulations thereunder.
(e) Neither the Company nor any of its Subsidiaries maintains, sponsors, contributes or has
any liability with respect to any employee benefit plan, program or arrangement that provides
benefits to non-resident aliens with no U.S. source income outside of the United States.
(f) Except as set forth in Section 3.11(f) of the Company Confidential Disclosure Schedule,
neither the Company nor any of its Subsidiaries has (i) granted to any person an interest in a
“nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) which
interest has been or, upon the lapse of a substantial risk of forfeiture with respect to such
interest, will be subject to tax imposed by Section 409A(a)(1)(B) or (b)(4)(A) of the Code or (ii)
modified the terms of any nonqualified deferred compensation plan in a manner that could cause an
interest previously granted under such plan to become subject to the tax imposed by Section
409A(a)(1)(B) or (b)(4)(A) of the Code.
Section 3.12. Labor and Other Employment Matters.
(a) The Company and each of its Subsidiaries is in compliance in all material respects with
all applicable Laws respecting labor, employment, fair employment practices, terms and conditions
of employment, workers’ compensation, occupational safety, plant closings, and wages and hours.
Except as set forth in Section 3.12(a) of the Company Confidential Disclosure Schedule, none of the
Company or any of its Subsidiaries is a party to any collective bargaining or other labor union
contract applicable to persons employed by the Company or any of its Subsidiaries, and no
collective bargaining agreement or other labor union contract is being negotiated by the Company or
any of its Subsidiaries. There is no labor dispute, strike, slowdown or work stoppage against the
Company or any of its Subsidiaries pending or, to the knowledge of the Company, threatened. To the
Company’s knowledge, no employee of the Company or any of its Subsidiaries is, in any material
14
respect, in violation of any term of any employment contract, non-disclosure agreement,
non-competition agreement, or any restrictive covenant to a former employer relating to the right
of any such employee to be employed by the Company or such Subsidiary because of the nature of the
business conducted or presently proposed to be conducted by it or to the use of trade secrets or
proprietary information of others.
(b) The Company has identified in Section 3.12(b) of the Company Confidential Disclosure
Schedule and has made available to Parent true and complete copies of (i) all employment agreements
that the Company or any of its Subsidiaries has with any directors, officers or employees of or
consultants to the Company or any of its Subsidiaries, (ii) all Company Severance Arrangements, and
(iii) all Company Change in Control Arrangements. Except as set forth in Section 3.12(b) of the
Company Confidential Disclosure Schedule, neither the execution and delivery of this Agreement nor
the consummation of the Holding Company Merger or the Bank Merger by the Company will (either alone
or in conjunction with any other event, such as termination of employment) (A) result in any
payment (including, without limitation, severance, unemployment compensation, parachute or
otherwise) becoming due to any director, officer, employee or consultant of the Company or any of
its Subsidiaries from the Company or any of its Subsidiaries, (B) increase any benefits otherwise
payable or (C) result in any acceleration of the time of payment or vesting of any material
benefits, under or pursuant to any such employment agreements or Company Severance or Change in
Control Arrangements. No individual who is a party to any such employment agreement or a party to
or covered by any such Company Severance or Change in Control Arrangements has terminated his or
her employment or has been terminated, nor, to the Company’s knowledge, has any event occurred,
other than the transactions contemplated by this Agreement, that has given or could be reasonably
expected to give rise to a severance obligation on the part of the Company under any such agreement
or arrangement.
Section 3.13. Transactions with Interested Persons. Except as set forth in the
Company SEC Filings filed prior to the date of this Agreement, or as disclosed in Section 3.13 of
the Company Confidential Disclosure Schedule, no officer, director, employee or affiliate of the
Company or any of its Subsidiaries nor, to the Company’s knowledge, any member of the immediate
family of any such officer, director, employee or affiliate, is presently a party to any
transaction with the Company or any of its Subsidiaries of the type or involving an amount that
requires such transaction to be disclosed pursuant to Item 404 of Regulation S-K.
Section 3.14. Material Contracts. Except as set forth in Section 3.14 of the Company
Confidential Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or
bound by any Contract that (a) is a “material contract” (as such term is defined in Item 601(b)(10)
of Regulation S-K), (b) would prohibit or materially delay the consummation of the Holding Company
Merger or the Bank Merger or any of the transactions contemplated by this Agreement, (c) would
entitle any present or former director, officer employee or agent of the Company or any of its
Subsidiaries to indemnification from the Company or any of its Subsidiaries, (d) gives rise to any
payment of more than $50,000 per annum, (e) is not terminable without cause on 90 days or less
written notice by the Company or other party thereto, (f) limits the ability of the Company or its
Subsidiaries from competing in any line of business, in any geographic area or with any person, or
which requires referrals of business or requires the Company or any of its Subsidiaries to offer
products or services of any other person on a priority or exclusive basis, or (g) gives rise to any
benefits to any other person as a result of the consummation of the Holding Company Merger or the
Bank Merger, (collectively, “Company Material Contracts”). Each Company Material Contract is valid
and binding on the Company or the Subsidiary (as the case may be) that is a party thereto and, to
the Company’s knowledge, each other party thereto, and is in full force and effect, and the Company
or its Subsidiary that is a party thereto has
15
performed all of its obligations required to be performed by it to the date hereof under each
such Company Material Contract and, to the Company’s knowledge, each other party to each Company
Material Contract has in all respects performed all obligations required to be performed by it
under such Company Material Contract, except as would not, individually or in the aggregate, have a
Material Adverse Effect with respect to the Company. None of the Company or any of its
Subsidiaries has received any written notice of any violation or default under (or any condition
which with the passage of time or the giving of notice would cause such a violation of or default
under) any Company Material Contract.
Section 3.15. Litigation. Except as and to the extent disclosed in the Company SEC
Filings filed prior to the date of this Agreement or as set forth in Section 3.15 of the Company
Confidential Disclosure Schedule, (a) there are no suits, claims, actions, proceedings or
investigations pending or, to the knowledge of the Company, threatened against the Company or any
of its Subsidiaries or which the Company or any of its Subsidiaries has initiated, or for which the
Company or any of its Subsidiaries is obligated to indemnify a third party and (b) neither the
Company nor any of its Subsidiaries is subject to any outstanding and unsatisfied order, writ,
injunction, decree or arbitration ruling, award or other finding. There is no suit, claim,
action, proceeding or investigation pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries that challenges the validity or propriety, or seeks to
prevent consummation of, the Holding Company Merger or the Bank Merger.
Section 3.16. Environmental Matters.
(a) Except as would not, individually or in the aggregate, have a Material Adverse Effect with
respect to the Company, to the Company’s knowledge, the Company and each of its Subsidiaries (i) is
in compliance with all, and is not subject to any liability with respect to any, applicable
Environmental Laws, (ii) holds or has applied for all Environmental Permits necessary to conduct
its current operations, and (iii) is in compliance with its respective Environmental Permits.
(b) None of the Company or any of its Subsidiaries has received any written notice, demand,
letter, claim or request for information alleging that the Company or any of its Subsidiaries may
be in violation of, or liable under, any Environmental Law.
(c) None of the Company or any of its Subsidiaries (i) has entered into or agreed to any
consent decree or order or is subject to any judgment, decree or judicial order relating to (A)
compliance with Environmental Laws or Environmental Permits or (B) the investigation, sampling,
monitoring, treatment, remediation, removal or cleanup of Hazardous Materials and no investigation,
litigation or other proceeding is pending or, to the knowledge of the Company, threatened with
respect thereto, or (ii) is an indemnitor in connection with any claim threatened or asserted in
writing by any third-party indemnitee for any liability under any Environmental Law or relating to
any Hazardous Materials.
(d) None of the real property owned or leased by the Company or any of its Subsidiaries is
listed or, to the knowledge of the Company, proposed for listing on the “National Priorities List”
under CERCLA, as updated through the date hereof, or any similar state or foreign list of sites
requiring investigation or cleanup.
(e) To the knowledge of the Company, there are no past or present conditions, circumstances,
or facts that are reasonably expected to (i) interfere with or prevent continued compliance by the
Company or any of its Subsidiaries with Environmental Laws and the requirements of Environmental
Permits, (ii) give rise to any liability or other obligation under any Environmental
16
Laws, or (iii) form the basis of any claim, action, suit, proceeding, or investigation against
or involving the Company or any of its Subsidiaries based on or related to any Environmental Law.
Section 3.17. Intellectual Property. Each of the Company and its Subsidiaries owns or
has a valid license to use all Company Intellectual Property necessary to carry on its business
substantially as currently conducted. Neither the Company nor any of its Subsidiaries has received
any notice of infringement of or conflict with, and to the Company’s knowledge, there are no
infringements of or conflicts with, the rights of others with respect to the use of any
Intellectual Property. Section 3.17 of the Company Confidential Disclosure Schedule sets forth a
list of all of the Company Intellectual Property.
Section 3.18. Taxes.
(a) (i) Each of the Company and its Subsidiaries has duly filed on a timely basis with the
appropriate Tax authorities or other appropriate Governmental Entities all material Tax Returns
required to be filed by or on behalf of them or the affiliated group(s) of which any of them is or
was a member in all jurisdictions in which such Tax Returns are required to be filed (after giving
effect to any valid extensions of time in which to make such filings), and all such Tax Returns
were true, complete and correct in all respects, except as would not, individually or in the
aggregate, have a Material Adverse Effect with respect to the Company; (ii) all Taxes due and
payable by or on behalf of the Company and its Subsidiaries, either directly, as part of an
affiliated group Tax Return, as a successor or transferee, or otherwise, have been fully and timely
paid, except to the extent adequately reserved therefor on the balance sheet for the Company and
its Subsidiaries, and adequate reserves or accruals for Taxes have been provided in the balance
sheet for the Company and its Subsidiaries with respect to any period through the date thereof for
which Tax Returns have not yet been filed or for which Taxes are not yet due and owing; and (iii)
no agreement, waiver or other document or arrangement extending or having the effect of extending
the period for assessment or collection of Taxes (including, but not limited to, any applicable
statute of limitations) has been executed or filed with any Tax authority or other Governmental
Entity by or on behalf of the Company or any of its Subsidiaries or any affiliated group(s) of
which any of them is or was a member.
(b) Each of the Company and its Subsidiaries has complied in all material respects with all
applicable Laws, rules and regulations relating to the payment and withholding of Taxes and has
duly and timely withheld from employee salaries, wages and other compensation and has paid over to
the appropriate Tax authorities or other Governmental Entity all amounts required to be so withheld
and paid over for all periods under all applicable Laws. The withholding practices of the Company
and its Subsidiaries have not been challenged by any Tax authority or other Governmental Entity and
the Company and its Subsidiaries have no reason to believe that any of their withholding practices
do not comply with applicable Tax law.
(c) The Company has delivered or made available to the Parent complete and correct copies of
(i) all income or franchise Tax Returns of the Company and its Subsidiaries relating to all open
taxable periods and (ii) any Tax audit report issued within the last three (3) years relating to or
with respect to the Company and any of its Subsidiaries. None of the Company or any of its
Subsidiaries is currently under examination or audit by any Tax authority or other Governmental
Entity and no Tax authority or other Governmental Entity has informed the Company or any of its
Subsidiaries (in writing or otherwise) that it intends to examine or audit the Company or any of
its Subsidiaries.
17
(d) No claim has been made by a Tax authority or other Governmental Entity in a jurisdiction
where the Company or any of its Subsidiaries do not file an income or franchise Tax Return that the
Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(e) All deficiencies asserted or assessments made as a result of any examinations by any Tax
authority or other Governmental Entity of the Tax Returns of or covering or including the Company
or any of its Subsidiaries have been fully paid. No requests by the Company or any of its
Subsidiaries for a ruling or a determination letter are pending with any Tax authority or other
Governmental Entity; and no issue has been raised in writing by any Tax authority or other
Governmental Entity in any current or prior examination which, by application of the same or
similar principles, could reasonably be expected to result in a proposed deficiency against any of
the Company or any of its Subsidiaries for any subsequent taxable period that could be material.
There are no pending or threatened actions or proceedings for the assessment or collection of taxes
against the Company or any of its Subsidiaries.
(f) There are no outstanding requests for information relating to Taxes made by a Tax
authority or other Governmental Entity to the Company or any of its Subsidiaries.
(g) None of the Company or any of its Subsidiaries has been advised by any Tax authority or
other Governmental Entity of any proposed reassessments of the value (or other Tax base) of any
property owned by such Company or Subsidiary that could increase the amount of a property Tax to
which the Company or any of its Subsidiaries would be subject.
(h) As of December 31, 2005, none of the Company or any of its Subsidiaries had income
reportable for a taxable period ending after December 31, 2005, but attributable to a transaction,
(e.g. an installment sale) occurring in, or a change in accounting method made for a
taxable period ending on or before December 31, 2005, that resulted in a deferred reporting of
income from such transaction or from such change in accounting method (other than a deferred
inter-company transaction).
(i) All material amounts have been properly computed under the terms of any existing Tax
sharing agreements that any of the Company or any of its Subsidiaries is a party to; all payments
due any Company and its Subsidiary under any such Tax sharing agreements have been made to any
Company or such Subsidiary or will be received by any Company or such Subsidiary prior to the
Closing Date; and there are no amounts due from any Company or any Subsidiary under such
agreements.
(j) None of the Companies or any of its Subsidiaries has distributed to its shareholders or
security holders stock or securities of a controlled Subsidiary, nor has stock or securities of the
Company or a Subsidiary been distributed, in a transaction to which Section 355 of the Code
applies:
(i) in the two years prior to the date of this Agreement; or
(ii) in a distribution that could otherwise constitute part of a “plan” or “series of related
transactions” (within the meaning of Section 355(e) of the Code) that includes the transactions
contemplated by this Agreement.
(k) None of the Company or any of its Subsidiaries has (i) filed a consent pursuant to Section
341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any
18
disposition of a subsection (f) asset (as such term is defined in Section 341(f)(4) of the
Code) owned by the Company or its Subsidiaries, (ii) agreed to or is required to make any
adjustments pursuant to Section 481(a) of the Code or any similar provision of state, local or
foreign law by reason of a change in accounting method initiated by the Company or any of its
Subsidiaries, or has any knowledge that the Internal Revenue Service has proposed any such
adjustment or change in accounting method, or has any application pending with any Tax authority or
other Governmental Entity requesting permission for any changes in accounting methods that relate
to the business or operations of the Company or any of its Subsidiaries, or (iii) executed or
entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision
thereof or any similar provision of state, local or foreign law with respect to the Company or any
of its Subsidiaries.
(l) None of the Company or any of its Subsidiaries has engaged in a “reportable transaction”
within the meaning of Section 1.6011-4 of the Treasury Regulations.
(m) None of the Company or any of its Subsidiaries has within the last five years been a
“United States real property holding corporation” for purposes of Section 897 and Section 1445 of
the Code.
(n) None of the Company or any of its Subsidiaries has any liability for the Taxes of any
person (other than members of the consolidated group of which the Company is the common parent) (i)
under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign
law), (ii) as a transferee or successor, or (iii) by contract, except in each case where such
liability for Taxes would not, individually or in the aggregate, have a Material Adverse Effect
with respect to the Company.
(o) There are no liens as a result of any unpaid Taxes upon any of the assets of the Company
or any of its Subsidiaries other than (i) liens for Taxes not yet due and payable, and (ii) liens
for Taxes that are being contested in good faith by appropriate proceedings and for which adequate
reserves are being maintained in accordance with GAAP.
Section 3.19. Insurance. Section 3.19 of the Company Confidential Disclosure Schedule
lists policies of liability, property, casualty and other forms of insurance owned or held by the
Company and each of its Subsidiaries, copies of which have previously been made available to
Parent. All such policies are in full force and effect, all premiums due and payable have been
paid, and no written notice of cancellation or termination has been received with respect to any
such policy and all of such policies, or predecessor policies covering similar risks, have been in
full force and effect continuously for at least the past five (5) years. No insurer has advised
the Company or any of its Subsidiaries that it intends to materially reduce coverage or materially
increase any premium under any such policy, or that coverage is not available (or that it will
contest coverage) for any material claim made against the Company or any of its Subsidiaries.
Section 3.20. Properties. Each of the Company and its Subsidiaries has good,
marketable and valid title to or a valid leasehold interest in all of its properties and assets
reflected on the Company Balance Sheet or acquired after the date thereof (the “Company Property”),
except for (a) properties and assets sold or otherwise disposed of in the ordinary course of
business since the date of such balance sheet and (b) properties and assets the loss of which would
not, individually or in the aggregate, have a Material Adverse Effect with respect to the Company.
Except as set forth in Section 3.20 of the Company Confidential Disclosure Schedule, the Company
Property is free and clear of all Liens except (i) Liens for current taxes and assessments not yet
due or payable, (ii) pledges to secure deposits and other Liens incurred in the ordinary course of
business, and (iii) any Liens that do not materially detract
19
from the value or impair the use of the Property or assets subject thereto. The Property is
in adequate condition (ordinary wear and tear excepted) and is sufficient to carry on the business
of the Company and its Subsidiaries in the ordinary course of business consistent with past
practices. Except as set forth in Section 3.20 of the Disclosure Schedule, all Company Property
which is material to the business of the Company and its Subsidiaries and is leased or licensed by
the Company or its Subsidiaries is held pursuant to leases or licenses which will not terminate or
lapse prior to the Effective Time. Section 3.20 of the Company Confidential Disclosure Schedule
sets forth a list all real property which the Company or any of its Subsidiaries owns, has a
leasehold interest in, or leases to any third party.
Section 3.21. Derivative Transactions. Section 3.21 of the Company Confidential
Disclosure Schedule sets forth a list of all Derivative Transactions to which the Company or any of
its Subsidiaries is a party. All Derivative Transactions to which the Company or any of its
Subsidiaries is a party were entered into in the ordinary course of business, consistent with safe
and sound banking practices and regulatory guidance, and in accordance in all material respects
with the investment, securities, commodities, risk management and other policies, practices and
procedures employed by the Company and its Subsidiaries, as applicable. All of such Derivatives
Transactions are legal, valid and binding obligations of the Company or a Subsidiary of the
Company, as the case may be, enforceable in accordance with their terms (except as enforcement may
be limited by general principles of equity whether applied in a court of law or a court of equity
and by bankruptcy, insolvency and similar laws affecting creditors’ rights and remedies generally),
and are in full force and effect. The Company and each Subsidiary of the Company that is a party
to any such Derivative Transaction has duly performed in all material respects all of their
material obligations thereunder to the extent that such obligations to perform have accrued; and,
to the Company’s knowledge, there are no breaches, violations or defaults or allegations or
assertions of such by any party thereunder.
Section 3.22. Loans; Nonperforming and Classified Assets.
(a) Each Loan on the books and records of the Company and its Subsidiaries was made and has
been serviced in all material respects in accordance with their customary lending standards in the
ordinary course of business.
(b) Schedule 3.22 of the Company Confidential Disclosure Schedule sets forth a list, as to the
Company and its Subsidiaries and as of the latest practicable date prior to the date of this
Agreement, of: (i) any non-accrual Loan; (ii) each Loan which has been classified as “substandard,”
“doubtful,” “loss” or “special mention” (or words of similar import) by the Company or any of its
Subsidiaries or an applicable Regulatory Authority (it being understood that no representation is
being made that the FDIC or DFI would agree with the loan classifications established by the
Company or any of its Subsidiaries); (iii) a listing of the Other Real Estate Owned (OREO) acquired
by foreclosure or by deed-in-lieu thereof, including the book value thereof; and (iv) each Loan
with any director, executive officer or five percent (5%) or greater shareholder of the Company or
any of its Subsidiaries, or to the knowledge of the Company, any Person controlling, controlled by
or under common control with any of the foregoing.
Section 3.23. Allowance for Loan and Lease Losses. The Allowance for Loan Losses of
the Company and its Subsidiaries (“ALL”) is adequate in all material respects as provided under the
standards established by applicable Governmental Entities and the Financial Accounting Standards
Board.
Section 3.24. Fiduciary Accounts; Trust Powers. The Company and each of its
Subsidiaries has properly administered in all material respects all accounts for which it acts as a
fiduciary, including
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but not limited to accounts for which it serves as agent, custodian, personal representative,
guardian, conservator or investment advisor, in accordance with the terms of the governing
documents and applicable Laws. Neither the Company nor any of its Subsidiaries, nor any of their
respective directors, officers or employees, has committed any breach of trust with respect to any
fiduciary account and the records for each such fiduciary account are true and correct and
accurately reflect the assets of such fiduciary account. The Company Bank does not have or
exercise trust powers, including but not limited to, trust administration, and neither it nor any
predecessor has exercised such trust powers for a period of at least three (3) years prior to the
date hereof.
Section 3.25. Books and Records. All books and records of the Company and its
Subsidiaries have been fully, properly and accurately maintained in material compliance with
applicable legal and accounting requirements, and such books and records accurately reflect in all
material respects all dealings and transactions in respect of the business, assets, liabilities and
affairs of the Company and its Subsidiaries.
Section 3.26. Opinion of Financial Advisor. The Company has received from RBC Capital
Markets (the “Company Financial Advisor”) its opinion, dated February 15, 2006 (the “Company
Fairness Opinion”), to the effect that, as of such date and based on and subject to the matters set
forth in that Opinion, the Exchange Ratio is fair, from a financial point of view, to the
shareholders of the Company.
Section 3.27. Brokers. Except for fees payable to the Company Financial Advisor, the
Company Financial Advisor, no broker, finder or investment banker is entitled to any brokerage,
finder’s or other fee or commission in connection with the Holding Company Merger or Bank Merger
based upon arrangements made by or on behalf of the Company or any of its Subsidiaries.
Section 3.28. No Other Merger or Business Combination Agreements. The Company does
not have any legal obligation, absolute or contingent, to any person, other than Parent, to sell,
directly or indirectly, the Company or any of its Subsidiaries or to effect any merger, share
exchange, consolidation, business combination, recapitalization, liquidation or other
reorganization of the Company or any of its Subsidiaries or to enter into any agreement with
respect thereto.
Section 3.29. Disclosure. The representations and warranties contained in this
Article III, when considered as a whole, do not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements and information contained
in this Article III not misleading.
ARTICLE IV
Representations and Warranties of Parent
Representations and Warranties of Parent
Except as set forth in a disclosure schedule delivered by Parent to the Company prior to the
execution of this Agreement (the “Parent Confidential Disclosure Schedule”), which identifies
exceptions by specific Section references, Parent hereby represents and warrants to the Company as
follows:
Section 4.1. Organization and Qualification; Subsidiaries. Parent is a corporation
duly organized, validly existing and in good standing under the laws of the jurisdiction of its
incorporation, and is a registered bank holding company under the BHCA. Each Significant
Subsidiary of the Parent has been duly organized, and is validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization, as the case may be. Each
of Parent and its Significant Subsidiaries
21
has the requisite corporate power and authority and all necessary governmental approvals to
own, lease and operate its respective properties and to carry on its business as it is now being
conducted. Each of Parent and its Significant Subsidiaries is duly qualified or licensed to do
business, and is in good standing, in each jurisdiction where the character of the properties
owned, leased or operated by it or the nature of its business makes such qualification, licensing
or good standing necessary, except for such failures to be so qualified, licensed or in good
standing that would not, individually or in the aggregate, have a Material Adverse Effect with
respect to Parent.
Section 4.2. Articles of Incorporation and Bylaws; Corporate Books and Records.
Except as set forth in Schedule 4.2 of the Parent Confidential Disclosure Schedules, the copies of
Parent’s Articles of Incorporation, as amended (the “Parent Articles”), and Bylaws, as amended (the
“Parent Bylaws”), that are listed as exhibits to the Parent’s Form 10-K for the year ended December
31, 2004 are complete and correct copies thereof as in effect on the date hereof. Parent is not in
violation of any of the provisions of the Parent Articles or the Parent Bylaws. True and complete
copies of all minute books of the Parent and each of its Significant Subsidiaries, containing
minutes of meetings held and actions taken by their respective Boards of Directors or any
committees thereof during the period from January 1, 2003 to the date hereof, have been made
available by Parent to the Company.
Section 4.3. Capitalization. As of the date hereof, the authorized capital stock of
Parent consists of (a) one hundred million (100,000,000) shares of Parent Common Stock, of which
(i) 15,044,973 are issued and outstanding and all of which are validly issued, fully paid,
nonassessable and free of preemptive rights, and (ii) 967,866 shares of Parent Common Stock are
issuable (and such number is reserved for issuance) upon exercise of options of Parent outstanding
as of the date hereof and (b) twenty-five million (25,000,000) shares of Parent Preferred Stock, of
which no shares are issued and outstanding. The shares of Parent Common Stock to be issued in the
Holding Company Merger are duly authorized and, if and when so issued, will (i) be validly issued
and outstanding, fully paid and nonassessable, (ii) will have been registered under the Securities
Act, and (iii) have been registered or qualified under the Blue Sky Laws of all jurisdictions in
which such registration or qualification is so required.
Section 4.4. Significant Subsidiaries. Parent has no Significant Subsidiaries other
than Parent Bank or as set forth in Section 4.4 of the Parent Confidential Disclosure Schedule, and
there are no Subsidiaries of such Significant Subsidiaries. Except as set forth in Section 4.4 of
the Parent Confidential Disclosure Schedule, Parent owns all of the issued and outstanding shares
of capital stock of each of its Significant Subsidiaries, free and clear of any Liens and all of
such shares have been duly authorized, validly issued, fully paid and are non-assessable. None of
Parent’s Significant Subsidiaries has any arrangements or commitments obligating any of them to
issue shares of any of its capital stock or any securities convertible into or having the right to
purchase shares of any of its capital stock or that confers on the holders thereof the right to
vote on any of the matters on which the holders of the common stock of such Significant
Subsidiaries are entitled to vote. True and complete copies of Parent’s Significant Subsidiaries’
respective articles of incorporation, bylaws or equivalent organizational documents have been
delivered to the Company. None of Parent’s Significant Subsidiaries is in violation of its
respective organizational documents.
Section 4.5. Authority.
(a) Parent has all necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by
this Agreement. The execution and delivery of this Agreement and the Agreement of Merger by Parent
and the consummation by Parent of the transactions contemplated hereby and thereby
22
have been duly and validly authorized by action of the Board of Directors of Parent (the
“Parent Board”) and, except for the vote of the Parent Shareholders provided for elsewhere in this
Agreement or the Agreement of Merger, no other corporate action or proceedings on the part of
Parent are necessary to authorize its execution and delivery of this Agreement or its consummation
of the transactions contemplated hereby. This Agreement has been and the Agreement of Merger will
be, duly and validly executed and delivered by Parent and, assuming the due authorization,
execution and delivery hereof by the Company, constitutes a legal, valid and binding obligation of
Parent, enforceable against Parent in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors’ rights, and to general equitable principles (regardless of whether such
enforceability is considered in equity or at law).
(b) By resolutions duly adopted at a meeting of the Parent Board duly called and held on
February 15, 2006, by the affirmative vote of the Parent Board required to do so pursuant to the
Parent’s Articles and the applicable provisions of the CGCL, the Parent Board has duly (i)
determined that this Agreement and the transactions contemplated hereby (including the Holding
Company Merger) are fair to and in the best interests of Parent and its shareholders, and (ii)
approved and adopted this Agreement and the transactions contemplated hereby, including the Holding
Company Merger and the issuance of Parent Shares pursuant to the Merger (the “Parent Board
Approval”). A true and correct copy of such resolutions, certified by Parent’s corporate
secretary, has been furnished to the Company and none of such resolutions has been rescinded or
revoked, in whole or in part, or modified in any way. The affirmative vote of the holders of a
majority of the issued and outstanding shares of Parent Common Stock is necessary to approve this
Agreement and the Holding Company Merger on behalf of Parent. No other vote of the shareholders of
Parent is required by law, the Parent’s Articles or Parent’s bylaws, or otherwise to approve this
Agreement and the Holding Company Merger.
(c) The Parent Bank has all necessary corporate power and authority to execute and deliver the
Agreement of Bank Merger, to perform its obligations thereunder and to consummate the transactions
contemplated thereby. The execution and delivery of the Agreement of Bank Merger and the
consummation by the Parent Bank of the transactions contemplated thereby have been duly and validly
authorized by action of the Parent Bank. The Agreement of Bank Merger, when duly and validly
executed and delivered by the Parent Bank, will constitute a legal, valid and binding obligation of
the Parent Bank, enforceable against the Parent Bank in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights, to general equitable principles
(regardless of whether such enforceability is considered in equity or at law) and to 12 U.S.C.
1818(b)(6)(D).
Section 4.6. No Conflict; Required Filings and Consents.
(a) Except as set forth in Section 4.6(a) of the Parent Confidential Disclosure Schedule, (i)
the execution and delivery of this Agreement and the Agreement of Merger, and (ii) the execution
and delivery of the Agreement of Bank Merger by the Parent Bank, do not, and the performance of
this Agreement and the transactions contemplated hereby and thereby (including the Holding Company
Merger and the Bank Merger) by Parent and the Parent Bank, as the case may be, will not, (x)
conflict with or violate any provision of the Parent’s Articles of Incorporation or Bylaws or any
equivalent organizational documents of any of its Subsidiaries, (y) conflict with or violate any
Law applicable to the Parent or any of its Subsidiaries or by which any property or asset of the
Parent or any of its Subsidiaries is bound or affected (assuming that all consents, approvals,
authorizations and permits described in Section 4.6(b) have been obtained and all filings and
notifications described in Section 4.6(b) have been made and any waiting periods thereunder have
terminated or expired) or (z) require any consent or approval under, result in any breach of or any
loss of any benefit under,
23
constitute a change of control or default (or an event which with notice or lapse of time or
both would become a default) under or give to others any right of termination, vesting, amendment,
acceleration or cancellation of, or result in the creation of a Lien on any property or asset of
the Parent or any of its Subsidiaries pursuant to any Parent Material Contract filed (as defined in
Section 4.15 herein), any Parent Permit, or other instrument or obligation.
(b) (i) The execution and delivery of this Agreement, and the consummation of the transactions
contemplated hereby, by Parent and (ii) the execution and delivery of the Agreement of Bank Merger,
and the consummation of the Bank Merger, by the Parent Bank, do not, and the performance of the
transactions contemplated by this Agreement by Parent and the Parent Bank will not, require any
consent, approval, authorization or permit of, or filing with or notification to, any Governmental
Entity, except as set forth in Section 4.6(b) of the Parent Confidential Disclosure Schedule.
Parent has no knowledge of any reason why all Government Approvals required for consummation of the
transactions contemplated by this Agreement, including the Holding Company Merger and the Bank
Merger, will not be obtained on a timely basis.
Section 4.7. Litigation. Except as and to the extent disclosed in the Parent SEC
Filings filed prior to the date of this Agreement or as set forth in Section 4.7 of the Parent
Confidential Disclosure Schedule, (a) there are no suits, claims, actions, proceedings or
investigations pending or, to the knowledge of Parent, threatened against Parent or any of its
Subsidiaries or which Parent or any of its Subsidiaries has initiated, or for which Parent or any
of its Subsidiaries is obligated to indemnify a third party and (b) neither Parent nor any of its
Subsidiaries is subject to any outstanding and unsatisfied order, writ, injunction, decree or
arbitration ruling, award or other finding. There is no suit, claim, action, proceeding or
investigation pending or, to the knowledge of Parent, threatened against Parent or any of its
Subsidiaries that challenges the validity or propriety or seeks to prevent consummation of, the
Holding Company Merger or the Bank Merger.
Section 4.8. Permits; Compliance With Law.
(a) Each of the Parent and its Significant Subsidiaries is in possession of all
authorizations, licenses, permits, certificates, approvals and clearances of any Governmental
Entity necessary for it to own, lease and operate its properties or to carry on its business
substantially in the manner as it is being conducted (the “Parent Permits”), and all such Parent
Permits are valid, and in full force and effect and, to Parent’s knowledge, no suspension or
cancellation of any of them is threatened.
(b) None of the Parent or any of its Significant Subsidiaries is in default or violation of,
(i) any Law applicable to Parent or any of its Significant Subsidiaries or by which any of their
respective properties or assets is bound or affected or (ii) any Parent Permits.
(c) The Parent Bank received a rating of “Satisfactory” in its most recent examination for
compliance with the Community Reinvestment Act.
Section 4.9. SEC Filings; Financial Statements; Regulatory Reports.
(a) Parent has timely filed all registration statements, prospectuses, forms, reports,
definitive proxy statements, schedules and documents required to be filed by it under the
Securities Act or the Exchange Act, as the case may be, since August 16, 2004 (collectively, the
“Parent SEC Filings”). None of Parent’s Subsidiaries is required to file periodic reports with the
SEC pursuant to the Exchange Act. Each Parent SEC Filing (i) as of the time it was filed, complied
in all material respects with the requirements of the Securities Act or the Exchange Act, as the
case may be, and
24
(ii) did not at the time it was filed (or if subsequently amended or superseded by an Parent
SEC Filing made on or prior to the date of this Agreement, then on the date of such subsequent
filing), contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
(b) The Parent’s consolidated financial statements (including, in each case, any notes and
schedules thereto) contained in the Parent SEC Filings were prepared in accordance with GAAP
applied on a consistent basis throughout the periods indicated (except as may be indicated in the
notes thereto, or, in the case of interim consolidated financial statements, where information and
footnotes contained in such financial statements are not required to be in compliance with GAAP),
and in each case such consolidated financial statements fairly presented or will fairly present, in
all material respects, the consolidated financial position, results of operations and cash flows of
Parent and the consolidated Subsidiaries of Parent as of the respective dates thereof and for the
respective periods covered thereby (subject, in the case of unaudited statements, to normal
year-end adjustments which did not and which are not expected to, individually or in the aggregate,
have a Material Adverse Effect with respect to Parent).
(c) Except as and to the extent set forth on the consolidated balance sheet of Parent and its
consolidated Subsidiaries as of September 30, 2005 (the “Parent Balance Sheet”), neither Parent nor
any of its consolidated Subsidiaries has any liabilities or obligations of any nature (whether
accrued, absolute, contingent or otherwise) that would be required to be reflected on a balance
sheet or in notes thereto prepared in accordance with GAAP consistently applied, except for
liabilities or obligations (i) incurred in the ordinary course of business since September 30,
2005 that would not, individually or in the aggregate, have a Material Adverse Effect with respect
to Parent or (ii) incurred or provided for in, or as contemplated by, this Agreement.
(d) Each required form, report and document containing financial statements that Parent has
filed with or furnished to the SEC since August 16, 2004 was accompanied by the certifications
required to be filed or furnished by Parent’s chief executive officer and chief financial officer
pursuant to the Xxxxxxxx-Xxxxx Act, and at the time of filing or submission of each such
certification, such certification (i) was true and accurate and complied with the Xxxxxxxx-Xxxxx
Act in all material respects, (ii) did not contain any qualifications or exceptions to the matters
certified therein, except as otherwise permitted under the Xxxxxxxx-Xxxxx Act, and (iii) has not
been modified or withdrawn. Neither Parent nor any of its officers has received notice from any
Governmental Entity questioning or challenging the accuracy, completeness, content, form or manner
of filing or furnishing of such certifications. Parent’s disclosure controls and procedures (as
defined in Sections 13a-14(c) and 15d-14(c) of the Exchange Act) effectively enable Parent to
comply with, and the appropriate officers of Parent to make all certifications required under, the
provisions of the Xxxxxxxx-Xxxxx Act pertaining to disclosure controls and procedures. Parent’s
disclosure controls and procedures (as defined in Sections 13a-15(e) and 15d-15(e) of the Exchange
Act) were effective to provide reasonable assurance that material information, relating to Parent
and its consolidated Subsidiaries, required to be included in any of the Parent SEC Filings, were
made known to Parent management, including its chief executive officer and chief financial officer,
respectively, on a timely basis. Neither Parent, nor any of its officers, has received notice from
any Governmental Entity questioning or challenging the accuracy, completeness, form or manner of
filing or submission of such certifications. Parent knows of no reason why Parent’s outside
auditors, chief executive officer and chief financial officer will not be able to give the
certifications and attestations required pursuant to the rules and regulations adopted pursuant to
Section 404 of the Xxxxxxxx-Xxxxx Act, without qualification, when next due.
25
(e) Each of Parent and its Subsidiaries has filed all material documents and reports relating
to each of Parent and its Subsidiaries required to be filed with Regulatory Authorities. All such
reports conform in all material respects with the requirements promulgated by such Regulatory
Authorities.
(f) The Parent and its Subsidiaries maintain a system of internal accounting controls
sufficient to provide assurance that (i) transaction are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any differences. Neither the
Parent nor, to the Parent’s knowledge, the Parent’s independent auditors or any employee of the
Parent or its Subsidiaries has identified or been made aware of (A) any fraud, whether or not
material, that involves the Parent’s or any Subsidiary’s management or other employees who have a
role in the preparation of financial statements or the internal controls used or utilized by the
Parent or its Subsidiaries or (B) any claim or allegation regarding any of the foregoing.
Section 4.10. Regulatory Matters. Except as may otherwise be set forth in Section
4.10 of the Parent Confidential Disclosure Schedule, neither the Parent nor any of its Subsidiaries
(i) is, directly or indirectly, party or subject to any order, decree, agreement, memorandum of
understanding or similar arrangement with, or a commitment letter or similar submission to, or
supervisory letter from, any Regulatory Authority or (ii) has been advised by, or has any knowledge
of facts which are reasonably expected to give rise to an advisory notice by, any Regulatory
Authority that such Regulatory Authority is contemplating issuing or requesting (or is considering
the appropriateness of issuing or requesting) any order, decree, agreement, memorandum of
understanding, commitment letter, supervisory letter or similar submission. Except as set forth on
Section 4.10 of the Parent Confidential Disclosure Schedule, all compliance or corrective action
relating to Parent or any of its Subsidiaries required by Regulatory Authorities having
jurisdiction over Parent or any of its Subsidiaries has been taken. Each of Parent and its
Subsidiaries has paid all assessments made or imposed by and required to have been heretofore paid
to any Regulatory Authority.
Section 4.11. Absence of Certain Changes or Events. Since December 31, 2005, except
as set forth in Section 4.11 of the Parent Confidential Disclosure Schedule, (i) Parent and its
Significant Subsidiaries have conducted their business in the ordinary course consistent with past
practice and (ii) there has not been any Material Adverse Effect with respect to Parent or an event
or development that would, individually or in the aggregate, have a Material Adverse Effect with
respect to Parent or any of its Significant Subsidiaries.
Section 4.12. Employee Benefit Plans.
(a) Section 4.12(a) of the Parent Confidential Disclosure Schedule lists as of the date hereof
all Parent Benefit Plans, excluding agreements with former employees under which the Company has no
remaining obligations. There have been made available to the Company copies of (i) each such
written Parent Benefit Plan, (ii) the most recent annual report on Form 5500 series, with
accompanying schedules and attachments, filed with respect to each Parent Benefit Plan required to
make such a filing, and (iii) the most recent actuarial valuation for each Parent Benefit Plan, if
any, that is subject to Title IV of ERISA.
26
(b) Except as set forth in Section 4.12(b) of the Parent Confidential Disclosure Schedule, (i)
all Parent Benefit Plans are in compliance with the requirements prescribed by any and all statutes
(including ERISA and the Code), orders, or governmental rules and regulations currently in effect
with respect thereto (including all applicable requirements for notification to participants or the
Department of Labor, the PBGC, the IRS or Secretary of the Treasury), and Parent and each of its
Subsidiaries have performed their respective obligations required to be performed by them under,
are not in default under or violation of, and have no knowledge of any default or violation by any
other party to, any of the Parent Benefit Plans, except for any instances of non-compliance,
failures to perform, or defaults or violations that would not, either individually or in the
aggregate, have a Material Adverse Effect; (ii) each Parent Benefit Plan intended to qualify under
Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code is
the subject of a favorable determination letter from the IRS, and, to Parent’s knowledge, nothing
has occurred which may reasonably be expected to impair such determination; (iii) all obligations
in respect of each Parent Benefit Plan have been properly accrued and reflected in the Parent’s
most recent financial statements contained in the Parent SEC Filings, (iv) all contributions
required to be made to any Parent Benefit Plan pursuant to Section 412 of the Code, or the terms of
the Parent Benefit Plan or any collective bargaining agreement, have been made on or before their
due dates; (v) with respect to each Parent Benefit Plan, no “reportable event” within the meaning
of Section 4043 of ERISA (excluding any such event for which the 30 day notice requirement has
been waived under the regulations to Section 4043 of ERISA) nor any event described in Section
4062, 4063 or 4041 of ERISA has occurred; and (vi) neither Parent nor any ERISA Affiliate has
incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than
liability for premium payments to the PBGC arising in the ordinary course).
(c) No Parent Benefit Plan is a voluntary employee benefit association under Section 501(a)(9)
of the Code. Parent and each ERISA Affiliate are in compliance with (i) the requirements of the
applicable health care continuation and notice provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, and the regulations thereunder and any similar state law
and (ii) the applicable requirements of the Health Insurance Portability and Accountability Act of
1996, as amended, and the regulations thereunder, except where the failure to so comply would not,
individually or in the aggregate, have a Material Adverse Effect.
(d) Neither Parent nor any of its Subsidiaries maintains, sponsors, contributes or has any
liability with respect to any employee benefit plan, program or arrangement that provides benefits
to non-resident aliens with no U.S. source income outside of the United States.
Section 4.13. Labor and Other Employment Matters.
(a) Parent and each of its Subsidiaries is in compliance in all material respects with all
applicable Laws respecting labor, employment, fair employment practices, terms and conditions of
employment, workers’ compensation, occupational safety, plant closings, and wages and hours.
Except as set forth in Section 4.13(a) of the Parent Confidential Disclosure Schedule, none of
Parent or any of its Subsidiaries is a party to any collective bargaining or other labor union
contract applicable to persons employed by Parent or any of its Subsidiaries, and no collective
bargaining agreement or other labor union contract is being negotiated by Parent or any of its
Subsidiaries. There is no labor dispute, strike, slowdown or work stoppage against Parent or any
of its Subsidiaries pending or, to the knowledge of Parent, threatened which would have a Material
Adverse Effect with respect to Parent.
(b) Neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby by Parent will (either alone or in conjunction
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with any other event, such as termination of employment) (A) result in any payment (including,
without limitation, severance, unemployment compensation, parachute or otherwise) becoming due to
any director, officer, employee or consultant of Parent or any of its Subsidiaries from Parent or
any of its Subsidiaries, (B) increase any benefits otherwise payable or (C) result in any
acceleration of the time of payment or vesting of any material benefits, under or pursuant to any
such employment agreements or Severance or Change in Control Arrangements.
Section 4.14. Transactions with Interested Persons. Except as set forth in the Parent SEC
Filings filed prior to the date of this Agreement, or as disclosed in Section 4.14 of the Parent
Confidential Disclosure Schedule, no officer, director or employee or affiliate of Parent or any of
its Subsidiaries nor, to Parent’s knowledge, any member of the immediate family of any such
officer, director or employee or affiliate, is presently a party to any transaction with Parent or
any of its Subsidiaries of the type or involving an amount that requires such transaction to be
disclosed pursuant to Item 404 of Regulation S-K.
Section 4.15. Material Contracts. Except as set forth in Section 4.15 of the Parent
Confidential Disclosure Schedule, none of Parent or any of its Subsidiaries is a party to or bound
by any Contract that (a) is a “material contract” (as such term is defined in Item 601(b)(10) of
Regulation S-K), (b) which would prohibit or materially delay the consummation of the Holding
Company Merger or the Bank Merger, (c) limits the ability of Parent or its Subsidiaries from
competing in any line of business, in any geographic area or with any person, or which requires
referrals of business or requires Parent or any of its Subsidiaries to offer products or services
of any other person on a priority or exclusive basis, or (d) gives rise to any material payments or
material benefits to any other person as a result of the transactions contemplated hereby,
including the Holding Company Merger and the Bank Merger (collectively, “Parent Material
Contracts”). Each Parent Material Contract is valid and binding on Parent or the Subsidiary (as
the case may be) that is a party thereto and, to Parent’s knowledge, each other party thereto, and
is in full force and effect, and Parent or its Subsidiary that is a party thereto has performed all
of its obligations required to be performed by it to the date hereof under each such Parent
Material Contract and, to Parent’s knowledge, each other party to each Parent Material Contract has
in all respects performed all obligations required to be performed by it under such Parent Material
Contract, except as would not, individually or in the aggregate, have a Material Adverse Effect
with respect to Parent. None of Parent or any of its Subsidiaries has received any written notice
of any violation or default under (or any condition which with the passage of time or the giving of
notice would cause such a violation of or default under) any Parent Material Contract.
Section 4.16. Environmental Matters.
(a) Except as would not, individually or in the aggregate, have a Material Adverse Effect with
respect to Parent, to Parent’s knowledge, Parent and each of its Subsidiaries (i) is in compliance
with all, and is not subject to any liability with respect to any, applicable Environmental Laws,
(ii) holds or has applied for all Environmental Permits necessary to conduct its current
operations, and (iii) is in compliance with its respective Environmental Permits.
(b) None of Parent or any of its Subsidiaries has received any written notice, demand, letter,
claim or request for information alleging that Parent or any of its Subsidiaries may be in
violation of, or liable under, any Environmental Law.
(c) None of Parent or any of its Subsidiaries (i) has entered into or agreed to any consent
decree or order or is subject to any judgment, decree or judicial order relating to (A) compliance
with Environmental Laws or Environmental Permits or (B) the investigation, sampling,
28
monitoring, treatment, remediation, removal or cleanup of Hazardous Materials and no
investigation, litigation or other proceeding is pending or, to the knowledge of Parent, threatened
with respect thereto, or (ii) is an indemnitor in connection with any claim threatened or asserted
in writing by any third-party indemnitee for any liability under any Environmental Law or relating
to any Hazardous Materials.
(d) None of the real property owned or leased by Parent or any of its Subsidiaries is listed
or, to the knowledge of Parent, proposed for listing on the “National Priorities List” under
CERCLA, as updated through the date hereof, or any similar state or foreign list of sites requiring
investigation or cleanup.
(e) To the knowledge of Parent, there are no past or present conditions, circumstances, or
facts that may (i) interfere with or prevent continued compliance by Parent or any of its
Subsidiaries with Environmental Laws and the requirements of Environmental Permits, (ii) give rise
to any liability or other obligation under any Environmental Laws, or (iii) form the basis of any
claim, action, suit, proceeding, or investigation against or involving Parent or any of its
Subsidiaries based on or related to any Environmental Law.
Section 4.17. Intellectual Property. Each of Parent and its Subsidiaries owns or has
a valid and binding license to use all Parent Intellectual Property necessary to carry on its
business substantially as currently conducted Neither Parent nor any of its Subsidiaries has
received any notice of infringement of or conflict with, and to the Company’s knowledge, there are
no infringements of or conflicts with, the rights of others with respect to the use of any
Intellectual.
Section 4.18. Taxes.
(a) Each of Parent and its Subsidiaries has duly and timely filed with the appropriate Tax
authorities or other Governmental Entities all material Tax Returns required to be filed. All such
Tax Returns are complete and accurate in all respects, except as would not, individually or in the
aggregate, have a Material Adverse Effect. All Taxes shown as due on such Tax Returns have been
timely paid.
(b) Subject to such exceptions as would not, individually or in the aggregate, have a Material
Adverse Effect, the unpaid Taxes of Parent and its Subsidiaries did not, as of the dates of the
most recent financial statements contained in the Parent SEC Filings, exceed the reserve for Tax
liability set forth on the face of the balance sheets contained in such financial statements.
(c) Subject to such exceptions as would not, individually or in the aggregate, have a Material
Adverse Effect, (i) no deficiencies for Taxes with respect to Parent or any of its Subsidiaries
have been claimed, proposed or assessed by a Tax authority or other Governmental Entity in writing
to Parent, any of its Subsidiaries or any of their respective affiliates and (ii) no audit or other
proceeding for or relating to any liability in respect of Taxes of Parent or any of its
Subsidiaries is being conducted by any Tax authority or Governmental Entity, and neither Parent nor
any of its Subsidiaries has received notification in writing that any such audit or other
proceeding is pending.
(d) There are no material Tax liens upon any property or assets of Parent or any of its
Subsidiaries except (i) liens for current Taxes not yet due and payable and (ii) liens for Taxes
that are being contested in good faith by appropriate proceedings and for which adequate reserves
are being maintained in accordance with GAAP.
(e) Parent and its Subsidiaries have withheld and paid all Taxes required to have been
withheld and paid in connection with amounts paid or owing to any employee, independent
29
contractor, creditor, shareholder or other third party, subject to such exceptions as would
not, individually or in the aggregate, have a Material Adverse Effect.
(f) None of Parent or any of its Subsidiaries has any liability for the Taxes of any person
(other than members of the consolidated group of which Parent is the common parent) (i) under
Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign Law),
(ii) as a transferee or successor, or (iii) by contract, except in each case where such liability
for Taxes would not, individually or in the aggregate, have a Material Adverse Effect.
(g) Parent and its Subsidiaries have made available to the Company correct and complete copies
of all federal Tax Returns for Tax periods ending on or after December 31, 2003.
(h) Neither Parent nor any of its Subsidiaries is a party to, is bound by or has any
obligation under any material Tax sharing or Tax indemnity agreement or similar contract or
arrangement other than any agreement, contract or other arrangement between Parent and its
Subsidiaries.
Section 4.19. Insurance. Parent and each of its Subsidiaries are insured with
reputable insurers against such risks and in such amounts as is customary and prudent in accordance
with prevailing practices in the banking industries. All such policies are in full force and
effect, all premiums due and payable have been paid, and no written notice of cancellation or
termination has been received with respect to any such policy and all of such policies, or
predecessor policies covering similar risks, have been in full force and effect continuously for at
least the past five (5) years. No insurer has advised Parent or any of its Subsidiaries that it
intends to materially reduce coverage or materially increase any premium under any such policy, or
that coverage is not available (or that it will contest coverage) for any material claim made
against Parent or any of its Subsidiaries.
Section 4.20. Properties. Each of Parent and its Subsidiaries has good and valid
title to or a valid leasehold interest in all of its properties and assets reflected on the Parent
Balance Sheet or acquired after the date thereof (“Parent Property”), except for (a) properties and
assets sold or otherwise disposed of in the ordinary course of business since the date of such
balance sheet and (b) properties and assets the loss of which would not, individually or in the
aggregate, have a Material Adverse Effect. Except as set forth in Section 4.20 of the Parent
Confidential Disclosure Schedule, the Parent Property is free and clear of all Liens except (i)
Liens for current taxes and assessments not yet due or payable, (ii) pledges to secure deposits and
other Liens incurred in the ordinary course of business, and (iii) any Liens that do not materially
detract from the value or impair the use of the Property or assets subject thereto.
Section 4.21. Derivative Transactions. All Derivative Transactions to which any of
Parent or its Subsidiaries is a party were entered into in the ordinary course of business,
consistent with safe and sound banking practices and regulatory guidance, and in accordance with
the investment, securities, commodities, risk management and other policies, practices and
procedures employed by Parent and its Subsidiaries, as applicable. All of such Derivatives
Transactions are legal, valid and binding obligations of Parent or a Subsidiary of Parent, as the
case may be, enforceable in accordance with their terms (except as enforcement may be limited by
general principles of equity whether applied in a court of law or a court of equity and by
bankruptcy, insolvency and similar laws affecting creditors’ rights and remedies generally), and
are in full force and effect. Parent and each Subsidiary of Parent has duly performed in all
material respects all of their material obligations thereunder to the extent that such obligations
to perform have accrued; and, to Parent’s knowledge, there are no breaches, violations or defaults
or allegations or assertions of such by any party thereunder.
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Section 4.22. Loans; Nonperforming and Classified Assets. Each Loan on the books and
records of the Parent and its Subsidiaries was made and has been serviced in all material respects
in accordance with their customary lending standards in the ordinary course of business. Schedule
4.22 of the Parent Confidential Disclosure Schedule sets forth a list, as to Parent and its
Subsidiaries and as of the latest practicable date prior to the date of this Agreement, of: (i) any
written or, to Parent’s knowledge, oral Loan under the terms of which the obligor is 60 or more
days delinquent in payment of principal or interest, or to Parent’s knowledge, in default of any
other material provision thereof; (ii) each Loan which has been classified as “substandard,”
“doubtful,” “loss” or “special mention” (or words of similar import) by Parent or any of its
Subsidiaries or an applicable Regulatory Authority (it being understood that no representation is
being made that the FRB or DFI would agree with the loan classifications established by Parent or
any of its Subsidiaries); (iii) a listing of the OREO acquired by foreclosure or by deed-in-lieu
thereof, including the book value thereof; and (iv) each Loan with any director, executive officer
or five percent (5%) or greater shareholder of Parent or any of its Subsidiaries, or to the
knowledge of Parent, any Person controlling, controlled by or under common control with any of the
foregoing.
Section 4.23. Allowance for Loan and Lease Losses. The ALL of Parent and its
Subsidiaries is, and shall be as of the Effective Time, adequate as provided under the standards
established by applicable Governmental Entities and the Financial Accounting Standards Board.
Section 4.24. No Other Merger or Business Combination Agreements. As of the date
hereof, Parent does not have any legal obligation, absolute or contingent, to any other person to
sell, directly or indirectly, Parent or any of its Subsidiaries or to effect any merger, share
exchange, consolidation, business combination, recapitalization, liquidation or other
reorganization of Parent or any of its Subsidiaries or to enter into any agreement with respect
thereto.
Section 4.25. Ownership of Company Common Stock. As of the date hereof, neither
Parent nor any of Parent’s “Affiliates” or “Associates” directly or indirectly “owns,” beneficially
or otherwise, any Company Common Stock.
Section 4.26. Opinion of Financial Advisor. The Parent has received from Xxxxxxxxx &
Co. its opinion, dated February 15, 2006 (the “Parent Fairness Opinion”), to the effect that, as of
such date and based on and subject to the matters set forth in that Opinion, the Merger
Consideration is fair, from a financial point of view, to the shareholders of the Parent.
Section 4.27. No Brokers. Except as set forth in Section 4.27 of the Parent
Confidential Disclosure Schedule, no action has been taken by Parent or its Subsidiaries that would
give rise to any valid claim against any party hereto for a brokerage commission, finder’s fee or
other like payment with respect to the transactions contemplated by this Agreement.
Section 4.28. Books and Records. All books and records of the Parent and its
Subsidiaries have been fully, properly and accurately maintained in material compliance with
applicable legal and accounting requirements, and such books and records accurately reflect in all
material respects all dealings and transactions in respect of the business, assets, liabilities and
affairs of the Parent and its Subsidiaries.
Section 4.29. Disclosure. The representations and warranties contained in this
Article IV, when considered as a whole, do not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements and information contained
in this Article IV not misleading.
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ARTICLE V
Mutual Covenants of the Parties
Section 5.1. Reasonable Best Efforts. Subject to the terms and conditions of this
Agreement, each of Parent and the Company agrees to use its reasonable best efforts in good faith
to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary,
proper or desirable, or advisable under applicable Laws, so as to enable the parties to consummate,
as soon as practicable, the Holding Company Merger and the Bank Merger and the other transactions
contemplated hereby which are required to be performed prior to or at the Effective Time, including
the satisfaction of the conditions set forth in this Agreement, and the parties shall cooperate
fully with each other to that end.
Section 5.2. Shareholder Meetings and Approvals. Parent shall seek and shall use its
reasonable best efforts as soon as reasonably practicable to obtain the Parent Shareholder Approval
in accordance with the applicable provisions of Parent’s Articles and Bylaws, the CGCL and this
Agreement, at a duly called and noticed meeting of such Shareholders including any adjournment or
postponement thereof (the “Parent Shareholders’ Meeting”) to be held for the purpose of considering
and voting on the approval of those matters. The Company shall seek and shall use its reasonable
best efforts to obtain as soon as reasonably practicable the Company Shareholder Approval, in
accordance with the applicable provisions of the Company’s Articles of Incorporation and Bylaws,
the CGCL and this Agreement, at a duly called and noticed meeting of the Company Shareholders to be
held for the purpose of considering and voting on the approval of that matter including any
adjournment or postponement thereof (the “Company Shareholders’ Meeting”).
Section 5.3. Preparation of Registration Statement and Proxy Statement/Prospectus.
(a) As promptly as practicable after the execution of this Agreement, (i) Parent shall prepare
and file with the SEC and any states, if required by the blue sky laws thereof, the Registration
Statement and (ii) the Parent and the Company shall jointly prepare, for inclusion in the
Registration Statement and shall file with the SEC the Proxy Statement/Prospectus. Copies of the
Proxy Statement/Prospectus shall be provided by the Company and Parent to the Nasdaq National
Market in accordance with its rules. For and in connection with the preparation and filing of the
Registration Statement and Proxy Statement/Prospectus:
(i) Each of Parent and the Company shall cause the Proxy Statement/Prospectus to comply as to
form in all material respects with the applicable requirements of the Exchange Act, the Securities
Act and the rules and regulations of the Nasdaq National Market and, in connection therewith shall
furnish such information about itself and its business, its management and its financial condition
and operating results, including its respective consolidated financial statements, appropriate
opinions and consents as the other party may reasonably request for inclusion or incorporation in,
and the parties shall otherwise cooperate with each other in connection with the preparation and
filing of, the Registration Statement and the Proxy Statement/Prospectus.
(ii) Each of Parent and the Company shall notify the other of the receipt of (A) any comments
from the SEC on the Registration Statement or the Proxy Statement/Prospectus, (B) any requests by
the SEC for any amendments or supplements thereto or for additional information, and shall provide
to each other promptly copies of all correspondence between Parent, the Company or any of their
representatives and advisors, on the one hand, and the SEC, on the other hand.
(iii) Parent shall use its reasonable best efforts to cause the Registration Statement to be
declared effective by the SEC as promptly as practicable after it has been
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filed with the SEC and the Company shall provide Parent such cooperation therewith as the
Parent may reasonably request.
(b) The Proxy Statement/Prospectus shall include:
(i) with respect to the Company and its shareholders: (A) subject to Section 6.3 hereof, the
Company Board’s recommendation that the Company Shareholders vote in favor of adoption of this
Agreement (the “Company Board Recommendation”) and (B) a discussion of the Company Fairness
Opinion referred to in Section 3.26 hereof in compliance with applicable Law, and
(ii) with respect to Parent and its shareholders: (A) the Parent Board’s recommendation that
the Parent Shareholders vote in favor of the adoption of this Agreement, (the “Parent Board
Recommendation”), and (B) a discussion of the Parent Fairness Opinion referred to in Section 4.28
hereof in compliance with applicable law.
(c) Except as may be required by applicable Law, no amendment or supplement to the Proxy
Statement/Prospectus or the Registration Statement shall be made without the approval of both the
Parent and the Company, which approval shall not be unreasonably withheld or delayed. Each of the
parties hereto shall advise the other, promptly after it receives notice thereof, of the time when
the Registration Statement has become effective or any supplement or amendment has been filed, of
the issuance of any stop order, of the suspension of the qualification of the Parent Shares for
offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy
Statement/Prospectus or the Registration Statement or comments thereon and responses thereto or
requests by the SEC for additional information.
(d) Following the effective date of the Registration Statement, Parent and the Company shall
mail the Proxy Statement/Prospectus to their respective Shareholders in sufficient time to enable
the Parent Shareholder Meeting and the Company Shareholder Meeting to be held at the time or times
set forth in Section 5.2 hereof.
Section 5.4. Public Announcements. The press release announcing the execution by the
parties of this Agreement shall be issued only in such form as shall be mutually agreed upon by the
Company and Parent. Neither the Company nor Parent shall issue any other press release or
otherwise make any public statement with respect to this Agreement and the Holding Company Merger
or Bank Merger or which could reasonably be expected to affect the outcome of the voting by the
parties’ respective shareholders on the Holding Company Merger without first consulting and
obtaining the prior consent of the other party (which shall not be unreasonably withheld or
delayed) to the issuance of such press release or the making of such public statement.
Notwithstanding the foregoing, however, a party may issue such a press release or make such a
public statement without consulting or obtaining the prior consent of the other party, provided
that such party concludes in good faith, after consultation with its legal counsel, that such party
is required by applicable Law (or by any listing agreement with a national securities exchange or
automated quotation system applicable to it) to issue such press release or make such public
statement.
Section 5.5. Appropriate Actions; Consents; Filings.
(a) Parent and the Company shall use their reasonable best efforts to (i) take, or cause to be
taken, all appropriate action, and do, or cause to be done, all things necessary, proper or
advisable under applicable Law or otherwise in order to consummate and make effective the
transactions contemplated by this Agreement that are intended to be consummated prior to the
Effective
33
Time as promptly as practicable hereafter, (ii) obtain from any Governmental Entity any
Government Approvals required to be obtained or made by the Company or Parent or any of their
respective Subsidiaries, or to avoid or cause to be withdrawn or terminated, without prejudice to
the parties, any action or proceeding by any Governmental Entity, in connection with the
authorization, execution and delivery of this Agreement and the consummation of the Holding Company
Merger and the Bank Merger as contemplated hereby and thereby, and (iii) make all necessary
filings, and thereafter make any other required submissions, with respect to this Agreement and the
Holding Company Merger and the Bank Merger required under (A) the BHCA, (B) the California
Financial Code, (C) the Bank Merger Act, (D) the Exchange Act, and any other applicable federal or
state securities Laws, and (E) any other applicable Law; provided, that the Company and Parent
shall cooperate with each other in connection with the preparation and making of all such filings,
including, if requested, by providing copies of all such documents to the non-filing party and its
advisors prior to filing and, if requested, to accept all reasonable additions, deletions or
changes suggested in connection therewith; provided further, that any initial filings with
Governmental Entities (other than the Registration Statement, the Agreement of Merger, the
Certificate of Merger and the Agreement of Bank Merger) shall be made by Parent as soon as
reasonably practicable after the execution hereof but, provided that the Company has cooperated as
described above, in no event later than 60 calendar days after the date hereof; and provided
further, that nothing in this Section 5.5(a) shall require the expenditure of money by Parent or
the Company to a third party in exchange for any such consent (other than filing or processing
fees) except as required by applicable Law. The Company and Parent shall furnish to each other all
information reasonably required for any application or other filing under applicable Law in
connection with the transactions contemplated by this Agreement.
(b) The Company and Parent shall give (or shall cause their respective Subsidiaries to give)
any notices to third parties, and use, and cause their respective Subsidiaries to use, reasonable
best efforts to obtain any third party consents, (i) necessary, proper or advisable to consummate
the transactions contemplated in this Agreement, or (ii) disclosed in the Company Confidential
Disclosure Schedule or the Parent Confidential Disclosure Schedule, as applicable. In the event
that either party shall fail to obtain any such third party consent, that party shall use its
reasonable best efforts, and shall take any such actions reasonably requested by the other party
hereto, to minimize any adverse effect on the consummation of the Holding Company Merger, the Bank
Merger, the Company and Parent, their respective Subsidiaries, and their respective businesses
resulting, or which could reasonably be expected to result after the Effective Time, from the
failure to obtain such consent.
Section 5.6. Tax Treatment of the Holding Company Merger. Parent and the Company
intend that the Holding Company Merger qualify as a tax-free reorganization for U.S. federal income
tax purposes within the meaning of Section 368(a) of the Code and the parties hereto hereby adopt
this Agreement as a plan of reorganization within the meaning of Section 368(a) of the Code and the
Treasury Regulations promulgated thereunder. The parties and their Subsidiaries, respectively,
both before and after the Effective Time, shall (a) use reasonable best efforts to cause the
Holding Company Merger to so qualify; (b) refrain from taking any action that would reasonably be
expected to cause the Holding Company Merger to fail to so qualify; and (c) take the position for
all tax purposes that the Holding Company Merger so qualifies.
Section 5.7. Section 16 Matters. The Board of Directors of the Company and Parent
shall, prior to the Effective Time, take all such actions as may be necessary or appropriate
pursuant to Rule 16b-3(d) and Rule 16b-3(e) under the Exchange Act to exempt the conversion of
Company Shares into Parent Common Stock by officers and directors of the Company subject to the
reporting requirements of Section 16(a) of the Exchange Act or by employees of the Company who may
become an officer or director of Parent subject to the reporting requirements of Section 16(a) of
the Exchange Act. In
34
furtherance of the foregoing, prior to the Effective Time, the board of directors of the
Company shall adopt resolutions that specify (A) the name of each individual whose disposition of
Company Shares (including Company Options) is to be exempted, (B) the number of Shares (including
Company Options) to be disposed of by each such individual, and (C) that the approval is granted
for purposes of exempting the disposition from Section 16(b) of the Exchange Act under Rule
16b-3(e) of the Exchange Act. Parent and the Company shall provide to counsel of the other party
for its review copies of such resolutions to be adopted by the respective Boards of Directors prior
to such adoption and the Company shall provide Parent with such information as shall be reasonably
necessary for Parent’s Board of Directors to set forth the information required in the resolutions
of Parent’s Board of Directors.
Section 5.8. Notification of Certain Matters. Each of the Company and Parent shall
give prompt notice to the other of any fact, event or circumstance that becomes known to it that
(a) is reasonably likely, individually or taken together with all other facts, events and
circumstances known to it, to result in any Material Adverse Effect, or (b) would cause or
constitute a material breach of any of its representations, warranties, covenants or agreements
contained herein or (c) could reasonably be expected to result in the failure of a condition in
Article VIII, IX or X to be satisfied.
Section 5.9. Dividends. Until the Effective Time, Company and Parent shall coordinate
the declaration and payment of any dividends in respect of Company Common Stock and Parent Common
Stock and the record dates and the payment dates relating thereto, it being the intention of Parent
and Company that holders of Company Common Stock shall not receive two dividends, or fail to
receive one dividend, for any single calendar quarter with respect to their shares of Company
Common Stock and/or any shares of Parent Common Stock that any such holder receives in exchange
therefore pursuant to the Holding Company Merger.
Section 5.10. Filings. The Company and Parent will timely file all respective
registration statements, prospectuses, forms, reports, definitive proxy statements, schedules and
documents required to be filed by them under the Securities Act or the Exchange Act, as the case
may be, after the date hereof.
Section 5.11. Registration Statement, Proxy Statement/Prospectus. Each of Company and
Parent agrees that none of the information supplied by it for inclusion or incorporation by
reference in the Registration Statement, any filing pursuant to Rule 165 or Rule 425 under the
Securities Act or Rule 14a-12 under the Exchange Act, shall contain, at the time such Registration
Statement or filing is filed with and at the time it is declared effective by the SEC, any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading. Each of Company and Parent agrees that none of the information supplied
by it for inclusion or incorporation by reference in the Proxy Statement/Prospectus shall contain,
on (i) the date it is first mailed to the Company Shareholders and Parent Shareholders and (ii) at
the time or times when the Company Shareholder Meeting and Parent Shareholder Meeting are held, any
statement which, at such time and in light of the circumstances under which it was made, is false
or misleading with respect to any material fact, or will omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not false or misleading,
or omit to state any material fact necessary to correct any statement in any earlier Company or
Parent communication with respect to the solicitation of proxies for the Company Shareholder
Meeting and the Parent Shareholder Meeting, as the case may be, which has become false or
misleading. If at any time prior to the Company Shareholder Meeting or Parent Shareholder Meeting,
any event relating to the Company or any of its Subsidiaries or Parent or any of its Subsidiaries,
or their respective affiliates, officers or directors, should be discovered by the Company or
Parent, as the case may be, which should be set forth in an amendment or a supplement to the
Registration Statement or Proxy Statement/Prospectus,
35
the Company or Parent will promptly inform the other party. As to the Company and Parent, the
Proxy Statement/Prospectus shall comply in all material respects as to form and substance with the
requirements of the Securities Act, the Exchange Act and the rules and regulations thereunder.
Notwithstanding the foregoing, neither the Company nor Parent makes any representation or warranty
with respect to any information supplied by the other party which is contained in or incorporated
by reference in any of the foregoing documents.
ARTICLE VI
Covenants of the Company
Section 6.1. Conduct of Business by the Company Pending the Closing. The Company
agrees that, between the date of this Agreement and the earlier of the Effective Time or the
termination of this Agreement, except as set forth in Section 6.1 of the Company Confidential
Disclosure Schedule or as specifically required or permitted by this Agreement or required by Law,
unless Parent shall otherwise consent thereto in writing, the Company shall, and shall cause each
of its Subsidiaries to, conduct its operations only in the ordinary and usual course of business
consistent with past practice and, to the extent consistent therewith, shall use its reasonable
best efforts to (x) preserve its and each of its Subsidiaries’ business organization and its
rights, authorizations, franchises and other authorizations issued by Governmental Entities intact,
(y) keep available the present services of the current officers and employees of the Company and
each of its Subsidiaries, and (z) preserve the goodwill of the customers of the Company and each of
its Subsidiaries with whom business relationships exist. By way of amplification and not
limitation, except as set forth in Section 6.1 of the Company Confidential Disclosure Schedule or
as specifically required or permitted by any other provision of this Agreement or required by Law,
between the date of this Agreement and the earlier of the Effective Time or the termination of this
Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, do, or agree to do, any of the following without the prior written consent of Parent
(which consent shall not be unreasonably withheld or delayed):
(a) amend or otherwise change its Company Articles or Bylaws or equivalent organizational
documents;
(b) enter into a plan of consolidation, merger, share exchange, reorganization or similar
business combination with or involving any other Person, or a letter of intent or agreement in
principle with respect thereto, other than in accordance with Section 6.3(e) of this Agreement or
as contemplated by this Agreement;
(c) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance,
sale, pledge, disposition, grant, transfer, or encumbrance of any shares of capital stock or rights
of, or other Equity Interests in, the Company or any of its Subsidiaries of any class, or
securities convertible or exchangeable or exercisable for any shares of such capital stock or other
Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of
such capital stock or other Equity Interests or such convertible or exchangeable securities, or any
other ownership interest (including, without limitation, any such interest represented by contract
right), of the Company or any of its Subsidiaries, including but not limited to any shares of
capital stock to be issued but excluding the issuance of Company Common Stock upon the exercise or
conversion of Company Options or Company Warrants outstanding as of the date hereof in accordance
with their terms;
(d) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize
the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material
property or assets (including Intellectual Property) of the Company or deposits of the Company
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Bank, except (i) pursuant to existing Contracts or commitments listed on Section 6.1(d) of the
Company Confidential Disclosure Schedule; (ii) the sale of SBA or commercial loans in the ordinary
course of business consistent with past practice; or (iii) the sale or purchase of goods or the
pledge of securities in the ordinary course of business consistent with past practice and in a
transaction that together with all other transactions is not material to the Company and its
Subsidiaries taken as a whole;
(e) other than normal quarterly cash dividends not in excess of $0.05 per share of Company
Common Stock, declare, set aside, make or pay any dividend or other distribution (whether payable
in cash, stock, property or a combination thereof); provided, however, that no dividends shall be
paid by the Company or any Subsidiary if (i) the Company or any Subsidiary shall be required to
borrow funds to do so or (ii) such dividend shall cause the Company or any Subsidiary to cease to
qualify as a “well-capitalized” institution under applicable FRB or FDIC rules;
(f) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly
or indirectly, any of its capital stock, other Equity Interests or other securities;
(g) enter into any agreement or otherwise agree to acquire, directly or indirectly (whether by
merger or consolidation, acquisition of stock or assets or by formation of a joint venture or
otherwise), all or any portion of the assets or properties of any business, or any interest therein
(other than by way of foreclosures or acquisitions of control in a bona fide fiduciary capacity or
in satisfaction of debts previously contracted in good faith in the ordinary course of business
consistent with past practice);
(h) incur any indebtedness for borrowed money or issue any debt securities or assume,
guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of
any person for borrowed money, other than in the ordinary course of business consistent with past
practice;
(i) terminate, cancel or request any material change in, or agree to any material change in,
or enter into any new, Company Material Agreement, other than in the ordinary course of business
and consistent with past practice;
(j) except as may be required by contractual commitments or corporate policies with respect to
bonuses, annual salary increases, severance or termination pay in existence on the date of this
Agreement and except for bonus payments identified in Section 6.1(j) of the Company Confidential
Disclosure Schedule relating to service performed during the Company’s 2005 fiscal year: (i)
increase the compensation or benefits payable or to become payable to its current or former
directors, officers or employees other than increases in compensation for non-executive officers
and other employees in the ordinary course of business and consistent with past practice; (ii)
grant any rights to severance or termination pay to, or enter into any employment or severance
agreement with, any current or former director, officer or other employee of the Company or any of
its Subsidiaries, or establish, adopt, enter into, make any contribution to, or amend any
collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock,
pension, retirement, deferred compensation, employment, termination, severance or other plan,
agreement, trust, fund, policy or arrangement for the benefit of any current or former director,
officer or employee, except to the extent required by applicable Law or this Agreement or to
satisfy contractual obligations existing as of the date hereof or as otherwise set forth on
Schedule 6.1(j) of the Company Confidential Disclosure Schedule; or (iii) take any affirmative
action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability
or funding under any Company Benefit Plan, other than as permitted by this Agreement;
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(k) hire any person as an employee of the Company or any of its Subsidiaries or promote any
employee, except (i) to satisfy contractual obligations existing as of the date hereof and set
forth in Section 6.1(k) of the Company Confidential Disclosure Schedule, (ii) persons hired to fill
any vacancies arising after the date hereof and whose employment is terminable at the will of the
Company or applicable Subsidiary, and (iii) persons hired to fill newly created positions other
than any person to be hired under this clause (iii) who would be entitled to receive cash
compensation, including any guaranteed bonus, of more than $75,000 per annum;
(l) enter into any new line of business except as set forth in Section 6.1(l), offer any new
product or change its material lending, investment, underwriting, risk and asset liability
management and other material banking and operating policies except as required by a Governmental
Entity or file any application or make any contract with respect to branching or site location or
branching or site relocation;
(m) enter into any Derivatives Transaction;
(n) acquire (other than by way for foreclosures or acquisitions in a bona fide fiduciary
capacity or in satisfaction of debts previously contracted in good faith, in each case in the
ordinary course of business consistent with past practice) any debt security or equity investment
other than federal funds or United States government securities or United States government agency
securities, in each case with a term of one (1) year or less;
(o) make any loan, loan commitment or renewal or extension thereof to any Person which would,
when aggregated with all outstanding loans, commitments for loans or renewals or extensions thereof
made to such Person and any affiliate or immediate family member of such Person, exceeds $2,000,000
without submitting complete loan package information customarily submitted to the Company Bank
Board or the Company Bank loan committee in connection with obtaining approval of such action to
the chief financial officer of Parent for review with a right of comment at least three (3)
Business Days prior to taking such action; provided, that, if Parent objects in writing to
such loan or loan commitment or renewal or extension thereof by the end of such third Business Day,
the Company shall be required to obtain the approval of a majority of the members of (i) the
Company or Company Bank Board (as applicable) or (ii) the Company Bank loan committee, prior to
making such loan or loan commitment or renewal or extension thereof;
(p) make any capital expenditures other than those identified in Section 6.1(p) of the Company
Confidential Disclosure Schedule and other additional capital expenditures in the ordinary course
of business consistent with past practice not exceeding $50,000 individually or $100,000 in the
aggregate;
(q) accelerate the payment of any material liabilities or obligations (absolute, accrued,
contingent or otherwise), except in the ordinary course of business consistent with past practice;
(r) make any material change in accounting policies or procedures, other than as required by
GAAP or by a Governmental Entity;
(s) waive, release, assign, settle or compromise any claims, or any litigation or arbitration
for an amount in excess of $50,000, individually, or $100,000 in the aggregate, or which would
impose any restriction on the Company’s or any Subsidiary’s ability to conduct its business as
presently conducted or would create a precedent for claims that are reasonably likely to be
material to the Company and its Subsidiaries taken as a whole;
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(t) make any material tax election, settle or compromise any material liability for Taxes,
extend the statute of limitations with any Tax authority, or file any proceeding in court in any
tax litigation or any appeal from an asserted tax deficiency file or amend any Tax Return or file
any refund for Taxes, other than in the ordinary course of business;
(u) reclassify any investment security from hold-to-maturity or available to sale to trading;
or
(v) authorize or enter into any agreement or otherwise make any commitment to do any of the
foregoing.
Section 6.2. Access to Information; Confidentiality. From the date of this Agreement
to the Effective Time, the Company shall, and shall cause each of its Subsidiaries and each of
their respective directors, officers, employees, accountants, consultants, legal counsel,
investment bankers, advisors, and agents and other representatives (collectively,
“Representatives”) to, subject to applicable Law, (a) provide to Parent and its respective
Representatives access at reasonable times upon reasonable prior notice to the officers, employees,
agents, properties, offices and other facilities of the Company and its Subsidiaries and to the
books and records (including, without limitation, tax returns and work papers of independent
auditors) thereof and (b) furnish promptly such information concerning the business, properties,
Contracts, assets, liabilities, personnel and other aspects of the Company and its Subsidiaries as
the Parent and its Representatives may reasonably request, provided that such access and furnishing
of information does not impair the Company’s ability to conduct its operations in the ordinary
course of business. Except as required by Law or as necessary to consummate the transactions
contemplated by this Agreement, Parent and Company shall not disclose the Company Confidential
Disclosure Schedule and Parent Confidential Disclosure Schedule, respectively. to any other party.
With respect to the information disclosed pursuant to this Section 6.2 and the Confidential
Disclosure Schedules, the parties shall comply with all of their respective confidentiality and
other obligations under that certain letter agreement dated December 31, 2005, previously executed
by Parent and the Company (the “Confidentiality Agreement”).
Section 6.3. No Solicitation of Acquisition Proposals.
(a) The Company agrees that neither it nor any of its Subsidiaries shall, and that it shall
direct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not
to, directly or indirectly: (i) encourage, initiate, solicit or take any other action designed to
facilitate an Acquisition Proposal or the making, submission or announcement of any Acquisition
Proposal or take any other action designed to facilitate or that is likely to result in, any
inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead
to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations
regarding, or furnish to any person any nonpublic information with respect to, or take any other
action to facilitate the submission of any inquiry or the making of any proposal that constitutes
or may reasonably be expected to lead to an Acquisition Proposal; (iii) engage in discussions with
any person with respect to an Acquisition Proposal, except to notify such person as to the
existence of these provisions and refer such person to this Agreement; (iv) approve, endorse or
recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into
any letter of intent or similar document or any agreement, commitment or understanding
contemplating or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any
statement, recommendation or solicitation in support of any Acquisition Proposal. The Company
agrees that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable
best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all
current discussions or negotiations (if any) in which any of them may be involved with any third
party with respect to an Acquisition Proposal. The Company also shall promptly request that each
person which has
39
heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of
its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible
Acquisition Proposal to return promptly or destroy all confidential information heretofore
furnished to such person or its Representatives in accordance with the terms of such person’s
confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere
in this Agreement, if, prior to the date of the Company Shareholders’ Meeting, the Company or any
of its Subsidiaries, or any of their respective Representatives, receives a written Acquisition
Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a)
and appears, on its face to be bona fide, and the Company Board (or any committee thereof)
determines in good faith, after consultation with its financial advisor (which may be its existing
Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could
reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this
Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish
information with respect to the Company to the person who has made such Acquisition Proposal, or
any of its Representatives, pursuant to a confidentiality agreement containing confidentiality
provisions not materially less restrictive than those contained in the Confidentiality Agreement;
provided that such information has previously been provided to Parent or is provided to Parent
substantially concurrently with the time it is provided to such person or its Representatives, and
(ii) participate in discussions and negotiations with such person regarding such Acquisition
Proposal. The Company shall advise Parent orally and in writing of the receipt of any Acquisition
Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in
each case within two (2) Business Days of receipt thereof), specifying the material terms and
conditions thereof and the identity of the person making such Acquisition Proposal or inquiry (as
the case may be) and the Company shall use its reasonable best efforts to provide to Parent a copy
of all written materials provided to the Company or any of its Subsidiaries in connection with any
such Acquisition Proposal not later than 48 hours after the receipt of same by the Company or any
of its Subsidiaries and, in order to be able to do so, the Company agrees that it and its
Subsidiaries will not enter into any confidentiality agreement with any person subsequent to the
date hereof which prohibits the Company from providing such information to Parent. The Company
shall notify Parent (within forty-eight hours) orally and in writing of any material modifications
to the financial or other material terms of any such Acquisition Proposal or inquiry and shall
provide to Parent, within that same timeframe, a copy of all written materials subsequently
provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or
propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board
Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the
Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to
the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its
efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the
Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in
good faith, after consultation with its outside legal counsel (which may be its current outside
legal counsel), that failure to take such actions could result in a breach of the Company Board’s
fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall
(i) advise Parent as promptly as practicable (and in any event within 24 hours) following the
commencement of any discussions or negotiations with respect to any Acquisition Proposal and the
material terms and conditions that are the subject of such discussions or negotiations and (ii)
keep Parent reasonably informed of the status and material details (including material amendments)
with respect to
40
the information previously provided, pursuant to this Section 6.3(d), by the Company in
connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and
prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an
agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants
contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written
notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with
respect to a Superior Proposal, which notice shall attach the most current version of any written
agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice
referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any
schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in
good faith, after consultation with its financial advisor (which may be its current Financial
Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such
Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business
Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by the Company pursuant to Section
6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent
pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of
Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such
rules and items will in no way limit or modify the effect of such action pursuant to such rules and
items would otherwise have under this Agreement.
(h) If the Company Board or any committee thereof takes, agrees or resolves to take any action
permitted by this Section 6.3 without the Company, its Subsidiaries or any of its or its
Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not
limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action
shall not, in any way, constitute a breach of this Agreement by the Company.
Section 6.4. Accounting. At or prior to the Effective Time, the Company shall and
shall cause its Subsidiaries to, consistent with GAAP, the rules and regulations of the SEC, and
applicable Law, modify or change its loan, accrual, reserve, tax, litigation and real estate
valuation policies and practices (including loan classifications and levels of reserves) so as to
be applied on a basis that is consistent with that of Parent; provided, however, that no such
modifications or changes need be made prior to the satisfaction of the conditions set forth in
Section 8.1(e); and further provided, that in any event, no accrual or reserve made by the Company
or any of its Subsidiaries pursuant to this Section 6.4 shall constitute or be deemed to be a
breach, violation of or failure to satisfy any representation, warranty, covenant, agreement or
condition or other provision of this Agreement or otherwise be considered in determining whether
any such breach, violation or failure to satisfy shall have occurred. The recording of any such
adjustments shall not be deemed to imply any misstatement of previously
41
furnished financial statements or information and shall not be construed as concurrence of the
Company or its subsidiaries with any such adjustments.
Section 6.5. Control of the Company’s Business. Nothing contained in this Agreement
shall give Parent, directly or indirectly, the right to control or direct the Company’s operations
prior to the Effective Time. Prior to the Effective Time, each of the Company and Parent shall
exercise, consistent with the terms and conditions of this Agreement, complete control and
supervision over its respective operations.
Section 6.6. Affiliates. The Company shall cooperate to use its commercially
reasonable best efforts to identify those persons who may be deemed to be “affiliates” of the
Company within the meaning of Rule 145 promulgated by the SEC under the Securities Act (such
persons being “Company Affiliates”). The Company shall use its commercially reasonable best
efforts to cause each person so identified to deliver to Parent, no later than the date of the
Company Shareholders’ Meeting, a written agreement substantially in the form of Exhibit G
hereto.
Section 6.7. Estoppel Letters. The Company shall use its commercially reasonable best
efforts to obtain and deliver to the Parent at the Effective Time with respect to all real estate
(i) owned by the Company or any of its Subsidiaries, an estoppel letter dated as of a date within
fifteen days (15) of the Closing in the form of Exhibit H hereto from all tenants and (ii)
leased by the Company or any of its Subsidiaries, an estoppel letter dated as of date within
fifteen (15) days of the Closing in the form of Exhibit I from all lessors.
Section 6.8. Noncompetition and Nonsolicitation Agreements. Company shall use its
reasonable best efforts to cause each member of the Company Board identified on Schedule E-1 to
have executed and delivered to Parent a Noncompetition Agreement in the form of Exhibit E-1
hereto and each of the executive officers of the Company and Company Bank identified on Schedule
E-2 to have executed and delivered to Parent nonsolicitation agreements in the form of Exhibit
E-2, in each case simultaneously with the execution of this Agreement.
Section 6.9. Company Benefit Plans; SERP. Company shall terminate, amend or take such
other actions with respect to the Company Benefits Plans as are set forth in Section 7.4 as and
when specified in Section 7.4.
Section 6.10. Transaction Expenses. The Company shall exercise its commercially reasonable
efforts to ensure that at least two (2) Business Days prior to the Effective Time of the Holding
Company Merger, all attorneys, accountants, investment bankers and other advisors and agents for
the Company and its Subsidiaries shall have submitted to the Company estimates of their fees and
expenses for all services rendered or to be rendered in any respect in connection with the
transactions contemplated hereby to the extent not already paid, and based on such estimates, the
Company shall have prepared and submitted to Parent a summary of such fees and expenses for the
transaction. At or prior to the Effective Time of the Holding Company Merger the Company shall use
its best efforts to cause such advisors to submit their final bills for all material fees and
expenses to the Company for services rendered, a copy of which the Company shall have caused to be
delivered to Parent, and based on such summary, the Company shall have prepared and submitted to
Parent a final calculation of such fees and expenses, and shall accrue and pay the amount of such
fees and expenses as calculated above, after a copy of all such bills and calculation of such fees
and expenses has been delivered to Parent. Nothing herein shall invalidate responsibility to pay
any valid invoice received after the Effective Time of the Holding Company Merger.
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ARTICLE VII
Covenants of Parent
Section 7.1. Conduct of Business by Parent Pending the Closing. Parent agrees that,
between the date of this Agreement and the earlier of the Effective Time or the termination of this
Agreement, except as set forth in Section 7.1 of the Parent Confidential Disclosure Schedule or as
specifically required or permitted by this Agreement or required by Law, unless the Company shall
otherwise consent thereto in writing (which consent shall not be unreasonably withheld or delayed
and shall be deemed to have been given by the Company if it does not refuse its consent within
three (3) Business Days of its receipt of a request therefore from Parent), Parent shall, and shall
cause each of its Subsidiaries to, conduct its operations only in the ordinary and usual course of
business consistent with past practice and, to the extent consistent therewith, shall use its
reasonable best efforts to (y) preserve its and each of its Subsidiaries’ business organization and
its rights, authorizations, franchises and other authorizations issued by Governmental Entities
intact and (z) preserve the goodwill of the customers of Parent and each of its Subsidiaries with
whom business relationships exist. By way of amplification and not limitation, except as set forth
in Section 7.1 of the Parent Confidential Disclosure Schedule or as specifically required or
permitted by any other provision of this Agreement or required by Law, between the date of this
Agreement and the earlier of the Effective Time or the termination of this Agreement, Parent shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly, do, or agree to do,
any of the following without the prior written consent of the Company (which consent shall not be
unreasonably withheld or delayed and which shall be deemed to have been given by the Company if it
does not refuse its consent within three (3) Business Days of its receipt of a request therefor
from Parent):
(a) amend or otherwise change its Articles of Incorporation or Bylaws or equivalent
organizational documents in a manner which adversely affects the rights, preferences or privileges
of Parent Common Stock;
(b) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance,
sale, pledge, disposition, grant, transfer, or encumbrance of any shares of capital stock or rights
of, or other Equity Interests in, Parent or any of its Subsidiaries of any class, or securities
convertible or exchangeable or exercisable for any shares of such capital stock or other Equity
Interests, or any options, warrants or other rights of any kind to acquire any shares of such
capital stock or other Equity Interests or such convertible or exchangeable securities, or any
other ownership interest (including, without limitation, any such interest represented by contract
right), of Parent or any of its Subsidiaries, other than (x) the issuance of Parent Common Stock
upon the exercise or conversion of Parent options, warrants or other rights to acquire any capital
stock of the company (“Parent Options”) in accordance with their terms, (y) the granting of
options to purchase shares of Parent Common Stock in the ordinary course of business consistent
with past practice, or (z) as contemplated by Section 6.12 hereof;
(c) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize
the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material
property or assets (including Intellectual Property) of Parent or deposits of the Parent Bank,
except pursuant to existing Contracts or commitments listed on Section 7.1(c) of the Parent
Disclosure Schedule or the sale or purchase of goods or the pledge of securities in the ordinary
course of business consistent with past practice and in a transaction that together with all other
transactions will not have, individually or in the aggregate, a Material Adverse Effect;
43
(d) make any material change in accounting policies or procedures, other than as required by
GAAP or by a Governmental Entity; or
(e) authorize or enter into any agreement or otherwise make any commitment to do any of the
foregoing.
Section 7.2. Reservation, Issuance and Registration of Parent Common Stock. Parent
shall reserve and make available for issuance the Parent Shares in connection with the Holding
Company Merger and in accordance with the terms of this Agreement. All Parent Shares, when issued
and delivered pursuant to and in accordance with the terms of this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable and free of all Liens (other than Liens
resulting from actions by the Company Shareholders) and, except for Parent Shares issued in the
Holding Company Merger to affiliates of the Company that are subject to Rule 145 under the
Securities Act, shall be free of restrictions on transfer.
Section 7.3. Nasdaq. Parent shall use its best efforts to cause the Parent Shares to
be issued in the Holding Company Merger to be approved for listing on the Nasdaq National Market,
subject to official notice of issuance, prior to the Effective Time.
Section 7.4. Employee Benefit Matters.
(a) From and after the Effective Time, Parent shall provide employees of the Company and its
Subsidiaries (“Company Employees”) who continue as employees of Parent or any of its Subsidiaries
with employee benefit plans (“Parent Benefit Plans”) no less favorable in the aggregate than those
provided to similarly situated employees of Parent or its Subsidiaries. With respect to each
Parent Benefit Plan in which Company Employees participate after the Effective Time, for purposes
of determining vesting and entitlement to benefits (including severance benefits and vacation
entitlements) thereunder, but not for purposes of benefit accrual under any retirement plan,
service with the Company or any Subsidiary shall be treated as service with Parent; provided, that
such service shall not be recognized to the extent that such recognition would result in a
duplication of benefits or to the extent that such service was not recognized under a corresponding
Company Benefit Plan. Except to the extent that Parent provides written notice to the Company to
the contrary, the Company shall terminate, as of the Effective Time, each Company Benefit Plan that
provides medical, dental and other similar benefits. If applicable and to the extent possible
under Parent Benefit Plans that provide medical, dental or other similar benefits, Parent shall
cause any and all pre-existing condition limitations, eligibility waiting periods and evidence of
insurability requirements under any Parent Benefit Plans to be waived with respect to such Company
Employees and their eligible dependents and shall provide them with credit for any co-payments,
deductibles, and offsets (or similar payments) made during the plan year including the Effective
Time for the purposes of satisfying any applicable deductible, out-of-pocket, or similar
requirements under any Parent Benefit Plans in which they are eligible to participate after the
Effective Time.
(b) Effective as of a date no later than the day immediately preceding the Effective Time, the
Company shall terminate the 401(K) Plan, unless Parent provides written notice to the Company that
the 401(K) Plan shall not be so terminated. Unless Parent provides such written notice to the
Company, the Company shall provide Parent with evidence that the 401(K) Plan has been terminated
(effective as of no later than the day immediately preceding the Effective Time) pursuant to
resolutions of the Company Board. The form and substance of such resolutions shall be subject to
the review and reasonable approval of Parent. The Company also shall take such other actions in
furtherance of terminating the 401(K) Plan as Parent may reasonably require.
44
(c) Effective no later than the Effective Time, the Company shall terminate the Company Option
Plan, unless Parent provides written notice to the Company that the Company Option Plan, or any of
them, shall not be so terminated. Unless Parent provides such written notice to the Company, the
Company shall provide Parent with evidence that the Company Option Plan have been terminated
(effective no later than the Effective Time) pursuant to resolutions of the Company Board. The
form and substance of such resolutions shall be subject to the review and reasonable approval of
Parent. The Company shall also take such other actions in furtherance of terminating the Company
Option Plan as Parent may reasonably require.
(d) Prior to the Closing, the Company will amend the SERPs to the extent reasonably necessary
to bring the SERPs into compliance with Section 409A of the Code. The form and substance of such
amendments shall be subject to the review and reasonable approval of Parent. Following the
Closing, Parent will amend and restate the SERPs as necessary to bring them into compliance with
Section 409A of the Code for regulatory guidance issued after the Closing.
(e) Prior to the Closing, Parent will conduct interviews with all Company employees in order
to determine the appropriate staffing levels of the Surviving Corporation and the Surviving Bank.
Parent and Company will determine by mutual agreement (i) appropriate retention packages and (ii)
appropriate severance packages for Company employees. Prior to the Closing, Company shall
establish an expense accrual for all retention and severance packages.
Section 7.5. Indemnification.
(a) From and after the Effective Time until five (5) years thereafter, Parent (the
“Indemnifying Party”) shall indemnify and hold harmless (and also shall advance expenses as and
when incurred to the fullest extent permitted by a California company under California Law), each
person who now is or prior to the date hereof has been, or who becomes prior to the Effective Time
an officer or director of the Company or any Subsidiary (collectively, the “Indemnified Persons”),
against all losses, claims, damages, costs, expenses (including counsel fees and expenses),
settlement, payments or liabilities arising out of or in connection with any claim, demand, action,
suit, proceeding or investigation based in whole or in part on or arising in whole or in part out
of the fact that such person is or was an officer or director of the Company or any Subsidiary or
as a result of serving at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, whether or not
pertaining to any matter existing or occurring at or prior to the Effective Time and whether or not
asserted or claimed prior to or at or after the Effective Time, to the fullest extent which such
Indemnified Parties are entitled under the Company or any Subsidiary certificate of incorporation,
bylaws or equivalent organizational documents, as applicable, or any agreement, arrangement or
understanding set forth in Section 7.5 of the Company Confidential Disclosure Schedule and for
which the right to indemnification has been provided by the Company in accordance with applicable
Law (“Indemnified Liabilities”). Nothing contained herein shall make Parent or the Company an
insurer, a co-insurer or an excess insurer in respect of any insurance policies which may provide
coverage for Indemnified Liabilities, nor shall this Section 7.5 relieve the obligations of any
insurer in respect thereto. The parties hereto intend, to the extent not prohibited by applicable
Law, that the indemnification provided for in this Section 7.5 shall apply without limitation to
negligent acts or omissions by an Indemnified Person. Each Indemnified Person (and each of his or
her heirs, executors and administrators) is an intended third party beneficiary of this Section
7.5, each of whom may, individually or jointly, specifically enforce its terms against Parent.
This Section 7.5 shall survive the consummation of the Holding Company Merger at the Effective Time
and shall be binding not only on Parent but also on all of its successors and assigns. This
Section 7.5 shall not limit or
45
otherwise adversely affect any rights any Indemnified Person may have under any agreement with
the Company or under the Company Articles or Company Bylaws as presently in effect, or otherwise.
(b) From and after the Effective Time until five (5) years thereafter, Parent shall fulfill
and honor in all respects the obligations of the Company pursuant to any indemnification agreements
between the Company and its directors and officers, copies of which have been furnished to Parent,
and any indemnification provisions under the Company Articles or Company Bylaws as in effect
immediately prior to the Effective Time. Any Indemnified Person wishing to claim indemnification
under this Section 7.5, upon learning of any such claim, action, suit, proceeding or investigation,
shall promptly notify the Indemnifying Party, but the failure to so notify shall not relieve the
Indemnifying Party of any liability it may have to such Indemnified Person if such failure does not
actually prejudice the Indemnifying Party. In the event of any such claim, action, suit,
proceeding or investigation (whether arising before or after the Effective Time), (i) the
Indemnifying Party shall have the right to assume the defense thereof and the Indemnifying Party
shall not be liable to such Indemnified Persons for any legal expenses of other counsel or any
other expenses subsequently incurred by such Indemnified Parties in connection with the defense
thereof, except that if the Indemnifying Party elects not to assume such defense or counsel for the
Indemnified Persons advises that there are issues which raise conflicts of interest between the
Indemnifying Party and the Indemnified Parties, the Indemnified Parties may retain counsel which is
reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party shall pay, promptly
as statements therefor are received, the reasonable fees and expenses of such counsel for the
Indemnified Persons (which may not exceed one firm in any jurisdiction), (ii) the Indemnified
Person will cooperate in the defense of any such matter, (iii) the Indemnifying Party shall not be
liable for any settlement effected without its prior written consent which shall not be
unreasonably withheld, and (iv) the Indemnifying Party shall have no obligation hereunder in the
event that a federal or state banking agency or a court of competent jurisdiction shall determine
that indemnification of an Indemnified Person in the manner contemplated hereby is prohibited by
applicable Laws and regulations.
(c) Parent shall maintain in effect, for six (6) consecutive years commencing on and
continuing after the Effective Time, the current policies of directors’ and officers’ liability
insurance maintained by the Company or its Subsidiaries on the date hereof (provided that Parent
may substitute thereof policies with reputable and financially sound carriers having at least the
same coverage and amounts thereof and containing material terms and conditions that are no less
advantageous to the directors and officers of the Company insured under such policies) for acts or
omissions occurring at or prior to the Effective Time; provided, however, that in no event shall
Parent be required to pay in excess of 250% of the annual premium most recently paid by the Company
or any Subsidiary for such coverage; provided further, that notwithstanding the foregoing, in the
event such coverage is not available (or is only available for an amount in excess of 250% of the
annual premium most recently paid by the Company for such coverage), Parent shall nevertheless use
reasonable best efforts to provide such coverage as may be obtained for such 250% amount.
(d) In the event Parent (i) consolidates with or merges into any other person and shall not be
the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers
all or substantially all of its properties and assets to any person, then, and in each such case,
proper provisions shall be made so that such continuing or surviving corporation or entity or
transferee of such assets, as the case may be, shall assume the obligations set forth in this
Section 7.5.
(e) The obligations of Parent under this Section 7.5 shall not be terminated or modified in
such a manner as to, nor shall Parent take any other action that would, adversely affect or
otherwise diminish the rights of any indemnitee to whom this Section 7.5 applies without the
consent of such affected indemnitee.
46
Section 7.6. Severance Agreements. As of the Effective Time, and as mutually agreed
to by the Company and Parent, and notwithstanding any termination of Company Benefit Plans set
forth in Section 7.4(a), either Company shall fulfill all of its obligations under the Severance
Arrangements and Change in Control Arrangements or Parent shall assume all of the obligations of
the Company under the Severance Arrangements and Change in Control Arrangements identified in
Section 7.6 of the Company Confidential Disclosure Schedules, in accordance with their respective
terms (even if the terms thereof provide for performance thereof at a later date), including any
and all payment obligations thereunder and Parent shall not challenge the enforceability or seek to
invalidate or make unenforceable any of such Agreements.
ARTICLE VIII
Conditions to the Obligations of Both Parties to Consummate the Holding Company Merger
Section 8.1. Conditions to Obligations of Each Party Under This Agreement. The
respective obligations of each party to effect the Holding Company Merger and any other
transactions to be consummated pursuant hereto at the Effective Time shall be subject to the
satisfaction at or prior to the Effective Time of the following conditions, any or all of which may
be waived in writing, in whole or in part, to the extent permitted by applicable Law:
(a) Shareholder Approval. The Company Shareholder Approval and Parent Shareholder Approval
shall have been obtained in accordance with applicable Law.
(b) No Order. No Governmental Entity, nor any federal or state court of competent
jurisdiction or arbitrator shall have enacted, issued, promulgated, enforced or entered any
statute, rule, regulation, executive order, decree, judgment, injunction or arbitration award or
other order which prevents or prohibits consummation of the Holding Company Merger or the Bank
Merger.
(c) Registration Statement. The Registration Statement shall have become effective under the
Securities Act and no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been initiated by the SEC and not
withdrawn.
(d) Listing on Nasdaq. The shares of Parent Common Stock to be issued in the Holding Company
Merger shall have been approved for listing on the Nasdaq National Market, subject to official
notice of issuance.
(e) Governmental Approvals. All consents, approvals and authorizations of any Governmental
Entity required to be obtained by Parent, Company or any of their Subsidiaries to consummate the
Holding Company Merger and the Bank Merger shall have been obtained and shall remain in full force
and effect and all statutory waiting periods in respect thereof shall have expired and no such
approval shall contain any conditions, restrictions or requirements which Parent reasonably
determines in good faith would following the Effective Time have a Material Adverse Effect as to
Parent.
ARTICLE IX
Conditions to Obligations of the Company
Section 9.1. Conditions to Obligations of the Company. The obligations of the Company
to effect the Holding Company Merger and to consummate any other transactions contemplated hereby
47
that are required to be consummated by the Effective Time shall be subject to the
satisfaction, at or prior to the Effective Time, of the following conditions, any or all of which
may be waived in writing by the Company, in whole or in part, to the extent permitted by applicable
Law:
(a) Representations and Warranties. The representations and warranties of Parent set forth in
this Agreement, shall have been true and correct in all material respects (if not qualified as to
materiality) and true and correct (if so qualified) when made, and as of the Closing as if made as
of the Closing; provided, however, that this condition precedent shall be deemed to
have been satisfied if the failure of any such representations and warranties (without giving
effect to any qualifications as to materiality, “Material Adverse Effect” or similar terms and
phrases contained therein) to be true and correct individually or in the aggregate has not resulted
in or constituted, and would not reasonably be expected to have, a Material Adverse Effect with
respect to Parent; and provided, further, that to the extent that any such
representations and warranties were made as of a specified date, such representations and
warranties shall continue on the Closing Date to have been true as of such specified date and not
as of the Closing.
(b) Performance. Parent shall have performed in all material respects all of its material
agreements and covenants required by this Agreement to be performed by it on or prior to the
Effective Time.
(c) No Material Adverse Change. There shall have been no changes since December 31, 2005 in
Parent’s business, financial condition or results of operations which, taken as a whole, constitute
or would reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect with respect to Parent on a consolidated basis or the consummation of the Holding Company
Merger.
(d) Officer’s Certificate. The Company shall have received a certificate, dated as of the
Effective Time, signed on behalf of Parent by its Chief Financial Officer, certifying to the
fulfillment of the conditions stated in Sections 9.1(a)-(c) hereof.
(e) Tax Opinion. The Company shall have received an opinion of its certified public
accountants or counsel, subject to assumptions and exceptions normally included, in form and
substance reasonably satisfactory to the Company, substantially to the effect that, on the basis of
facts, representations and assumptions set forth in such opinion, which are consistent with the
state of facts existing at the Effective Time of the Holding Company Merger, the Holding Company
Merger will be treated for federal income tax purposes as a reorganization under Section 368(a) of
the Code and the Company shareholders shall not recognize any gain or loss to the extent of the
receipt of Parent Common Stock in exchange for Company Shares. The issuance of such opinion shall
be conditioned on the receipt of tax representation letters from Parent and the Company, which
letters shall be in such form and substance as may reasonably be required by the recipient’s
counsel. Each such tax representation letter shall be dated on or before the date of such opinion
and shall not have been withdrawn or modified in any material respect as of the date of such
opinion.
(f) Appointments to Board of Directors. Parent shall have appointed the New Directors to
Parent’s Board of Directors effective immediately following the Holding Company Merger and Company
shall have received a copy of the resolutions of Parent’s Board of Directors affecting such
appointment certified by Parent’s Secretary.
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(g) Voting Agreements. Company shall have received executed copies of the Voting Agreement in
the form of Exhibit D-2 from each of the members of Parent Board concurrent with the
execution of this Agreement.
ARTICLE X
Conditions to Obligations of Parent
Section 10.1. Conditions to Obligations of Parent. The obligations of Parent to
effect the Holding Company Merger and to consummate any other transactions contemplated hereby that
are required to be consummated by the Effective Time shall be subject to the satisfaction at or
prior to the Effective Time of the following conditions, any or all of which may be waived in
writing by Parent, in whole or in part, to the extent permitted by applicable Law:
(a) Representations and Warranties. The representations and warranties of the Company set
forth in this Agreement, shall have been true and correct in all material respects (if not
qualified as to materiality) and true and correct (if so qualified) when made, and as of the
Closing as if made as of the Closing; provided, however, that this condition
precedent shall be deemed to have been satisfied if the failure of any such representations and
warranties (without giving effect to any qualifications as to materiality, “Material Adverse
Effect” and similar terms and phrases contained therein) to be true and correct individually or in
the aggregate has not resulted in or constituted, and would not reasonably be expected to have, a
Material Adverse Effect with respect to the Company; and provided, further, that to
the extent that any such representations and warranties were made as of a specified date, such
representations and warranties shall continue on the Closing Date to have been true as of such
specified date and not as of the Closing.
(b) Performance. The Company shall have performed in all material respects all of its
material agreements and covenants required by this Agreement to be performed by it on or prior to
the Effective Time.
(c) No Material Adverse Change. There shall have been no changes since December 31, 2005 in
Company’s business, financial condition or results of operations which, taken as a whole,
constitute or would reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect with respect to Company on a consolidated basis or the consummation of the Holding
Company Merger or Bank Merger.
(d) Officer’s Certificate. Parent shall have received a certificate, dated as of the
Effective Time, signed on behalf of the Company by its Chief Financial Officer, certifying to the
fulfillment of the conditions stated in Sections 10.1(a)-(c) hereof.
(e) Non-Governmental Consents. The Company shall have obtained each of the consents listed in
Schedule 10.1(e) of the Company Confidential Disclosure Schedule.
(f) Tax Opinion. Parent shall have received an opinion of its counsel, subject to assumptions
and exceptions normally included, in form and substance reasonably satisfactory to the Parent,
substantially to the effect that, on the basis of facts, representations and assumptions set forth
in such opinion, which are consistent with the state of facts existing at the Effective Time of the
Holding Company Merger, the Holding Company Merger will be treated for federal income tax purposes
as a reorganization under Section 368(a) of the Code. The issuance of such opinion shall be
conditioned on the receipt of tax representation letters from Parent and the Company, which letters
shall be in such form and substance as may reasonably be required by the recipient’s counsel. Each
such tax
49
representation letter shall be dated on or before the date of such opinion and shall not have
been withdrawn or modified in any material respect as of the date of such opinion.
(g) Noncompetition and Nonsolicitation Agreements. Parent shall have received executed copies
of each of the Noncompetition Agreements from each of the members of Company Board identified on
Schedule E-1 and Nonsolicitation Agreements from each of the Company and Company Bank
executive officers identified on Schedule E-2 concurrent with the execution of this
Agreement.
(h) Voting Agreements. Parent shall have received executed copies of the Voting Agreement in
the form of Exhibit D-1 from each of the members of Company Board concurrent with the
execution of this Agreement.
(i) Resignations. Parent shall have received the resignations of the directors and officers
of Company and Company Bank effective immediately prior to consummation of the Holding Company
Merger.
(j) Certificate. The Company shall have delivered to Parent a certificate of the Company
issued pursuant to Treasury Regulations Section 1.1445-2(c)(3) and Section 1.897-2(h) certifying
that the stock of the Company is not a United States real property interest, in a form reasonably
satisfactory to Parent.
(k) Company Benefit Plans; SERP. Company shall have terminated, effective immediately prior
to the Closing, the 401(K) Plan set forth in Section 7.4(b) unless Parent provides notice to the
Company that the 401(K) Plan shall not be terminated. Company shall have taken such other actions
with respect to the Company Benefit Plans as are specified in Section 7.4. Parent shall receive
from the Company satisfactory evidence that the 401(K) Plan has been terminated and that such other
actions have been taken.
(l) Dissenting Shares. The number of shares of Company Common Stock which are eligible to be
Company Perfected Dissenting Shares shall not exceed an amount, which, when combined with other
cash amounts payable in connection with the Holding Company Merger, would result in the Holding
Company Merger being disqualified from being a tax free reorganization pursuant to Section 368 of
the Code; provided, further, in no event shall the number of Parent Perfected Dissenting Shares and
Company Perfected Dissenting Shares exceed 10% of the outstanding Parent Common Stock or Company
Common Stock as of the date of the Parent Shareholders’ Meeting or Company Shareholders’ Meeting,
as the case may be.
ARTICLE XI
Termination, Amendment and Waiver
Section 11.1. Termination. This Agreement may be terminated, and the Holding Company
Merger contemplated hereby may be abandoned, at any time prior to the Effective Time, by action
taken or authorized by the Board of Directors of the terminating party, whether before or after
approval of this Agreement and the Holding Company Merger by the shareholders of the Company and
the Parent:
(a) By mutual written consent of Parent and the Company, if the Board of Directors of each so
determines by a vote of a majority of members of the entire Board;
50
(b) By either the Parent or Company, if the Effective Time shall not have occurred on or
before November 30, 2006 (the “Termination Date); provided, however, that the right to terminate
this Agreement under this Section 11.1(b) shall not be available (i) to any party whose failure to
perform any of its agreements or covenants under this Agreement shall have been a principal reason
for or a principal cause of the failure of the Effective Time to occur on or before such date or
(ii) as a result of the failure of any of the Company Affiliated Shareholders (if the Company is
the party seeking to terminate) or any of the Parent Affiliated Shareholders (if the Parent is the
party seeking to terminate) to perform or observe their covenants under the relevant Voting
Agreement;
(c) By either the Parent or Company, by a vote of a majority of the members of its entire
Board, in the event the approval of any Governmental Entity required for consummation of the
Holding Company Merger and the Bank Merger shall have been denied by final nonappelable action of
such Governmental Entity or an application therefore shall have been permanently withdrawn at the
request of a Governmental Entity; provided, however, that no party shall have the right to
terminate this Agreement pursuant to this Section 11.1(c) if such denial shall be principally due
to the failure of the party seeking to terminate this Agreement to perform or observe the
agreements or covenants of such party set forth herein;
(d) By written notice of Parent, if (i) the Company Board shall have: (A) failed to make the
Company Board Recommendation, or withdrawn, or adversely modified or changed the Company Board
Recommendation; (B) failed to reject an Acquisition Proposal within 10 Business Days of its
announcement or receipt thereof; (C) approved or recommended to its shareholders an Acquisition
Proposal other than that contemplated by this Agreement or entered into, or resolved to enter into,
any agreement with respect to an Acquisition Proposal other than that contemplated by this
Agreement; or (D) recommended that its shareholders tender their shares in any tender offer or
exchange offer that is commenced (other than by Parent or an affiliate of Parent) that, if
successful, would result in any person or group becoming a beneficial owner of 10% or more of the
Company’s outstanding voting shares or fails to recommend that its shareholders reject such tender
offer or exchange offer within the 10 Business Day period specified in Rule 14e-2(a) under the
Exchange Act; (ii) the Company shall have breached Section 6.3 in any respect materially adverse to
Parent or (iii) the Company shall have failed to call, give notice of, convene and hold the Company
Shareholders’ Meeting pursuant to Section 6.3;
(e) By the Company pursuant to Section 6.3(e);
(f) By Parent provided that Parent is not then in breach of any representation, warranty,
agreement or covenant which would render any condition incapable of being satisfied prior to the
Termination Date, if the Company shall have breached any of its representations or warranties, or
failed to perform any of its agreements or covenants, contained in this Agreement, which breach or
failure to perform (i) is incapable of being cured by the Company prior to the Effective Time and
(ii) renders any condition, as applicable, under Sections 10.1(a) or 10.1(b) incapable of being
satisfied prior to the Termination Date;
(g) By the Company provided that the Company is not then in breach of any representation,
warranty, agreement or covenant which would render any condition incapable of being satisfied prior
to the Termination Date, if Parent shall have breached any of its representations or warranties, or
failed to perform any of its agreements or covenants, contained in this Agreement, which breach or
failure to perform (i) is incapable of being cured by the Parent prior to the Effective Time and
(ii) renders any condition, as applicable, under Sections 9.1(a) or 9.1(b) incapable of being
satisfied prior to the Termination Date;
51
(h) By Parent or the Company, upon the failure of the Company Shareholders to approve the
adoption of this Agreement by the affirmative vote of the holders of a majority of the Company
Shares as required by the applicable provisions of the CGCL at the Company Shareholders’ Meeting;
(i) By Parent or the Company, upon the failure of the Parent Shareholders to approve, by the
affirmative vote of a majority of the holders of the Parent Shares at the Parent Shareholders’
Meeting, (i) this Agreement and the Holding Company Merger or (ii) to the extent required, the
issuance of the Parent Shares in the Merger in accordance with this Agreement;
(j) By the Company, provided that the Company is not then in breach of any representation,
warranty, agreement or covenant which would render any condition incapable of being satisfied prior
to the Termination Date, if Parent shall have voluntarily entered into a Parent Acquisition
Transaction that (i) includes as a condition precedent that Parent terminate this Agreement or
(ii) as a result of which a Governmental Entity has advised Parent or Company in writing that
Parent’s ability to consummate the Holding Company Merger or Bank Merger will be delayed beyond the
Termination Date; or
(k) By the Company, if the Company Board so determines by the vote of a majority of all of its
members, at any time during the two day period following the End Date, if both the following
conditions are satisfied:
(i) the Parent Average Price shall be less than 81% of the Starting Price, and
(ii) (x) the number obtained by dividing the Parent Average Price by the Starting Price
shall be less than (y) the number obtained by dividing the Final Index by the Starting Index (such
number being referred to herein as the Index Ratio) and then multiplying this quotient in this
clause (ii) (y) by 0.85; subject, however, to the following three sentences. If the Company
elects to exercise its termination right pursuant to the immediately preceding sentence, it shall
give written notice to Parent (provided that such notice of election to terminate may be withdrawn
at any time within the aforementioned two day period). During the two day period commencing with
its receipt of the notice, Parent shall have the option of increasing the Merger Consideration
which may be received with respect to each share of Company Common Stock by a cash payment equal to
the difference between (a) the product of the Exchange Ratio then in effect and $21.06 and (b) the
product of the Exchange Ratio then in effect and the Parent Average Price. If Parent makes an
election contemplated by the preceding sentence within such two day period, it shall give prompt
written notice to the Company of such election and the revised calculation of Merger Consideration,
whereupon no termination shall have occurred pursuant to this Section 11.1(k) and this Agreement
shall remain in effect in accordance with its terms (except as the Per Share Price shall have been
so modified), and any references in this Agreement to Merger Consideration shall thereafter be
deemed to refer to the Merger Consideration as adjusted pursuant to this Section 11.1(k).
Section 11.2. Effect of Termination.
(a) Survival. In the event of termination of this Agreement as provided in Section
11.1 hereof, this Agreement shall forthwith become void and of no effect except that the provisions
of this Section 11.2 and Section 5.4, the last sentence of Section 6.2 and the entirety of Article
XII shall survive any termination of this Agreement pursuant to Section 11.1.
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(b) Company Termination Fee. The Company shall pay Parent a termination fee in an
amount equal to $7,000,000 (the “Company Termination Fee”), in the manner and at the time set forth
in Section 11.2(d)(i) hereof, in the event that this Agreement is terminated solely as follows:
(i) if Parent shall terminate this Agreement pursuant to Section 11.1(d);
(ii) if the Company shall terminate this Agreement pursuant to Section 11.1(e), or
(iii) (A) an Acquisition Proposal involving the Company shall have been publicly announced,
commenced or otherwise been communicated or made known to senior management of the Company or the
Company Board or any person shall have publicly announced an intention to make an Acquisition
Proposal involving the Company, (B) this Agreement is (x) terminated by Parent or the Company
pursuant to Section 11.1(h), (y) terminated by Parent pursuant to Section 11.1(f) or (z) terminated
by Parent or Company pursuant to Section 11.1(b) and at the time of termination no vote of the
Company Shareholders contemplated by this Agreement at the Company Shareholders Meeting shall have
occurred, and (C) within twelve (12) months of the termination of this Agreement, the Company
enters into an agreement with respect to a Control Transaction or consummates a Control
Transaction. As used in this Section 11.2, “Control Transaction” means the acquisition by
purchase, merger, consolidation, sale, transfer or otherwise in one transaction or any related
series of transaction of a majority of the voting power of the outstanding securities of the
Company or the Company Bank or substantially all of the assets of Company or Company Bank.
Payment of the Termination Fee to Parent, pursuant to this Section 11.2(b), shall be the sole
and exclusive liability of the Company to and the sole remedy of Parent for any termination of this
Agreement as set forth in paragraphs (i), (ii) and (iii) of this Section 11.2(b), or the actions,
events, occurrences or circumstances giving rise to any such termination. Company and Parent agree
that the agreements contained in this Section 11.2(b) are an integral part of the transactions
contemplated by this Agreement, that without such agreements Company and Parent would not have
entered into this Agreement and that such amounts do not constitute a penalty in the event of a
breach of this Agreement by Company.
(c) Parent Termination Fee. The Parent shall pay Company a termination fee in an
amount equal to $7,000,000 (the “Parent Termination Fee”), in the manner and at the time set forth
in Section 11.2(d)(ii) hereof, in the event that this Agreement is terminated by Company pursuant
to Section 11.1(j). Payment of the Termination Fee to Company, pursuant to this Section 11.2(c),
shall be the sole and exclusive liability of the Parent to and the sole remedy of Company for any
termination of this Agreement as set forth in paragraph 11.2(c), or the actions, events,
occurrences or circumstances giving rise to any such termination. Company and Parent agree that
the agreements contained in this Section 11.2(c) are an integral part of the transactions
contemplated by this Agreement, that without such agreements Company and Parent would not have
entered into this Agreement and that such amounts do not constitute a penalty in the event of a
breach of this Agreement by Parent.
(d) Payment of Termination Fee.
(i) If the Company Termination Fee becomes payable pursuant to Section 11.2(b), that fee shall
be paid by wire transfer of immediately available funds to an account designated by Parent, (x)
concurrently with and as a condition to the termination of this Agreement in the case of a
termination described in paragraph 11.2(b)(ii), or (y) within three (3) Business Days in the case
of a termination described in paragraph 11.2(b)(i) or (z) within three (3) Business Days after
execution of
53
an agreement with respect to a Control Transaction or the consummation of a Control Transaction in
the case of a termination set forth in paragraph 11.2(b)(iii).
(ii) If the Parent Termination Fee becomes payable pursuant to Section 11.2(j), that fee shall
be paid by wire transfer of immediately available funds to an account designated by Company within
three (3) Business Days after execution of an agreement with respect to a Parent Acquisition
Transaction.
(e) Effect of Termination pursuant to Section 11.1(f) or 11.1(g). Notwithstanding
anything to the contrary that may be contained in this Section 11.2(b), if this Agreement is
terminated by Parent as provided in Section 11.1(f) (other than a termination covered by Section
11.2(b)(iii)(B)(y)) or by the Company as provided in Section 11.1(g), and the event that entitled
such party (the “Terminating “Party”) to terminate this Agreement pursuant to Section 11.1(f) or
11.1(g), as the case may be, was a willful and material breach by the other party (a “Breaching
Party”) of any representation, warranty or covenant of such Breaching Party set forth in this
Agreement, the Terminating Party shall have all rights and remedies available to it under this
Agreement or at law to recover from the Breaching Party all damages, losses, costs and expenses
that the Terminating Party incurs by reason of such willful and material breach by the Breaching
Party and the resulting termination of this Agreement.
(f) Effect of Other Terminations. No party shall have any liability of any kind or
nature to the other party by reason of any termination of this Agreement pursuant to Section 11.1
or the action, events, occurrences or circumstances that caused this Agreement to be terminated,
except (i) as and to the extent provided in Sections 11.2(b) and 11.2(e) above. In no event and
under no circumstance shall any officer, director, shareholder, employee or independent contractor
of any party hereto have any liability whatsoever to the other party by reason of any termination
of this Agreement or the action, events, occurrences or circumstances that caused this Agreement to
be terminated.
(g) Payments. Any payments that the Company becomes obligated to make to Parent or
Parent becomes obligated to make to Company pursuant to Section 11.2(b), 11.2(c) or 11.2(d) shall
be made by wire transfer of immediately available funds to an account designated by Parent when
due. If the Company fails to pay any such amount when payment thereof is due to Parent pursuant to
Section 11.2(d)(i) or if Parent fails to pay any such amount when payment thereof is due to Company
pursuant to Section 11.2(d)(ii), the unpaid amount shall bear interest at the Prime Rate at the
time such payment is due, as reported in The Wall Street Journal, until it is paid in full and
Parent shall be entitled to recover such accrued interest and its costs and expenses (including
reasonable attorneys’ fees and expenses) incurred in its efforts to collect such amount from the
non-breaching party (whether or not litigation is instituted).
ARTICLE XII
General Provisions
Section 12.1. Non-Survival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any instrument delivered pursuant to this
Agreement shall survive the Effective Time. This Section 12.1 shall not limit any covenant or
agreement of the parties which by its terms contemplates or provides for performance after the
Effective Time or after any termination of this Agreement pursuant to Section 11.1(a) hereof, each
of which covenants or agreements shall survive the consummation of the Holding Company Merger or
termination of this Agreement, as applicable, until such covenant or agreement has been fully and
faithfully performed.
54
Section 12.2. Notices. Any notices or other communications required or permitted
under, or otherwise in connection with this Agreement, shall be in writing and shall be deemed to
have been duly given when delivered in person or upon confirmation of receipt when transmitted by
facsimile transmission (but only if followed by transmittal by national overnight courier or hand
for delivery on the next Business Day) or on receipt after dispatch by registered or certified
mail, postage prepaid, addressed, or on the next Business Day if transmitted by national overnight
courier, in each case as follows:
If to Parent, addressed to it at:
Placer Sierra Bancshares
000 X Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
000 X Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Xxxxxxx,
X. Xxxxxx, Esq.
Fax: (000) 000-0000
with a copy to:
Manatt, Xxxxxx & Xxxxxxxx, LLP
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Quicksilver, Esq.
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Quicksilver, Esq.
Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to the Company, addressed to it at:
Southwest Community Bancorp
0000 Xx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxx
Fax: (000) 000-0000
0000 Xx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxx
Fax: (000) 000-0000
With a copy addressed to:
Horgan, Rosen, Beckham & Coren, LLP
00000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: S. Xxxx Xxxxx, Esq.
Fax: (000) 000-0000
00000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: S. Xxxx Xxxxx, Esq.
Fax: (000) 000-0000
And a copy addressed to:
General Counsel
Southwest Community Bancorp
0000 Xx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Fax: (000) 000-0000
Southwest Community Bancorp
0000 Xx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Fax: (000) 000-0000
55
Section 12.3. Certain Definitions. For purposes of this Agreement, the term:
“Acquisition Proposal” means any inquiry, offer or proposal or the filing of any regulatory
application or notice (whether in draft or final form) or disclosure or any intention to do any of
the foregoing concerning any (a) merger, consolidation, business combination, recapitalization,
liquidation, dissolution or similar transaction involving the Company or its Subsidiaries, (b)
sale, lease or other disposition directly or indirectly by merger, consolidation, business
combination, share exchange, joint venture, or otherwise of assets of the Company representing 15%
or more of the consolidated assets of the Company and its Subsidiaries, as applicable, (c)
issuance, sale, or other disposition (including by way of merger, consolidation, business
combination, share exchange, joint venture, or any similar transaction) of securities (or options,
rights or warrants to purchase, or securities convertible into or exchangeable for such securities)
representing 15% or more of the voting power of the Company or the Company Bank, (d) transaction,
including any tender offer, in which any person shall acquire beneficial ownership, or the right to
acquire beneficial ownership or any group shall have been formed which beneficially owns or has the
right to acquire beneficial ownership of 15% or more of the outstanding voting capital stock of the
Company or Company Bank, or (e) any combination of the foregoing (other than the Holding Company
Merger).
“affiliate” means a person that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, the first-mentioned person.
“Aggregate Merger Consideration” shall mean the sum of (i)$175,000,000 and (ii) the aggregate
exercise price for all In-the-Money Company Options exercised between the date hereof and the
Effective Time and (iii) the aggregate exercise price of all Company Warrants outstanding at the
Effective Time (and before the implementation of Section 2.5(b) herein).
“Bank Merger Act” means Section 18(c) of the Federal Deposit Insurance Act.
“beneficial ownership” (and related terms such as “beneficially owned” or “beneficial owner”)
has the meaning set forth in Rule 13d-3 under the Exchange Act.
“Benefit Plan” means, when used in connection with a party to this Agreement, any “employee
benefit plan” as defined in Section 3(3) of ERISA and any other known plan, policy, program,
practice, agreement, understanding or arrangement (whether written or oral) providing material
compensation or other benefits to any current or former director, officer, employee or consultant
(or any of their dependents or beneficiaries) of such party or any ERISA Affiliate thereof, under
which such party or any ERISA Affiliate thereof has any obligation or liability, whether actual or
contingent, including, without limitation, all incentive, bonus, deferred compensation, vacation,
holiday, severance, cafeteria, medical, dental, disability, stock purchase, stock option, stock
appreciation, phantom stock, restricted stock or other stock-based compensation plans, policies,
programs, practices, agreements, understandings or arrangements.
“BHCA” means the Bank Holding Company Act of 1956, as amended.
“Blue Sky Laws” means state securities or “blue sky” laws.
“Business Day” means any day other than Saturday, Sunday, any federal holiday or any other day
on which banks doing business in the state of California are authorized to be closed.
56
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended as of the date hereof.
“Change in Control Arrangements” means, with respect to either party to this Agreement, all
plans, programs, agreements and other arrangements of such party or any of such party’s
Subsidiaries, which provide for (i) the making of any payment (including, without limitation, any
severance, unemployment compensation, parachute payment) to, (ii) any increase in the compensation
or benefits otherwise payable to, or (iii) the acceleration of the time of payment or vesting of
any compensation or benefits of, any of the directors, officers, employees or consultants of such
party or any of its Subsidiaries on or by reason of the execution and delivery of any agreement
providing for, or the consummation of, any transaction or series of related transactions with any
person that would result in (A) the persons who were the holders of all of the outstanding voting
shares of such party or any of its Subsidiaries (as the case may be) immediately prior to the
consummation of such transaction ceasing to own at least fifty percent (50%) of the shares of
voting stock of such party or of such Subsidiary, or (B) all or a substantial portion of the assets
of such party or any Subsidiary thereof being sold or otherwise transferred to another person
(other than a person that, immediately prior to the consummation of such sale or other transfer of
assets, was an Affiliate of such party).
“Company Bank Stock” means shares of common stock of the Company Bank, no par value per share.
“Company Board” means the Board of Directors of the Company.
“Company Common Stock” and “Company Shares” each means shares of common stock of the Company,
no par value per share.
“Company Option Plan” means the Company’s 2002 Stock Option Plan, as amended.
“Company Shareholders” means the record holders of the Company Shares.
“Company Shareholder Approval” means the adoption of this Agreement by the affirmative vote
(in person or by proxy) of the holders of a majority of the outstanding Company Shares.
“Company Warrants” means the warrants outstanding to purchase an aggregate of [112,700]
Company Shares which were issued in connection with the Company’s unit offering completed on July
1, 2002.
“Company Warrant Shares” means the Company Shares issuable upon exercise of the Company
Warrants.
57
“Contracts” means any of the agreements, contracts, leases, powers of attorney, notes, loans,
evidence of indebtedness, purchase orders, letters of credit, settlement agreements, franchise
agreements, undertakings, covenants not to compete, employment agreements, licenses, instruments,
obligations, commitments, understandings, policies, purchase and sales orders, quotations and other
executory commitments to which any company is a party or to which any of the assets of the
companies are subject, whether oral or written, express or implied, except that the term
“Contracts” shall not include Loans made by Parent or the Company or the Parent Bank or Company
Bank in the ordinary course of their respective businesses consistent with past practices and the
notes or other instruments or agreements that evidence such Loans or provide for security therefor.
“control” (including the terms “controlled by” and “under common control with”) means the
possession, directly or indirectly or as trustee or executor, of the power to direct or cause the
direction of the management or policies of a person, whether through the ownership of stock or as
trustee or executor, by contract or credit arrangement or otherwise.
“Derivative Transaction” means a transaction involving any swap, forward, future, option, cap,
floor or collar or any other interest rate or foreign currency protection contract or any other
contract that is not included in the Balance Sheet of the Company or Parent, as applicable, and is
a derivatives contract.
“DFI” means the California Department of Financial Institutions.
“End Date” means the fifth trading day prior to the date the parties have mutually scheduled
to be the Closing Date.
“Environmental Laws” means any federal, state, local or foreign statute, law, ordinance,
regulation, rule, code, treaty, writ or order and any enforceable judicial or administrative
interpretation thereof, including any judicial or administrative order, consent decree, judgment,
stipulation, injunction, permit, authorization, policy, opinion, or agency requirement, in each
case having the force and effect of law, relating to pollution, contamination, protection,
investigation or restoration of the environment, health and safety or natural resources, including,
without limitation, noise, odor, wetlands, or the use, handling, presence, transportation,
treatment, storage, disposal, release, threatened release or discharge of Hazardous Materials.
“Environmental Permits” means any permit, approval, identification number, license and other
authorization required under any applicable Environmental Law.
“Equity Interest” means any share, capital stock, partnership, membership or similar interest
in any entity, and any option, warrant, right or security (including debt securities) convertible,
exchangeable or exercisable therefor.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the
regulations promulgated thereunder.
“ERISA Affiliate” means any entity or trade or business (whether or not incorporated) other
than a party to this Agreement that together with such party is considered under common control and
treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.
“Exchange Act” shall mean Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
58
“Exchange Ratio” shall mean the quotient, rounded to one ten-thousandth, obtained by dividing
(i) the Per Share Price by (ii) the Parent Average Price; provided, however, in the event the
Parent Average Price is less than or equal to $23.40, the Exchange Ratio shall be equal to the
quotient, rounded to one ten-thousandth, obtained by dividing the (i) the Per Share Price by
$23.40, subject to adjustment as set forth in Section 11.1(k); provided, further, in the event the
Parent Average Price is greater than or equal to $28.60, the Exchange Ratio shall be equal to the
quotient, rounded to one-ten thousandth, obtained by dividing (i) the Per Share Price by $28.60.
“Final Index” means the average of the closing price of the Index for the 20 consecutive
trading days prior to and including the End Date.
“FDIA” means the Federal Deposit Insurance Act.
“FDIC” means the Federal Deposit Insurance Corporation.
“FRB” means the Board of Governors of the Federal Reserve System.
“GAAP” means generally accepted accounting principles as applied in the United States.
“Government Approvals” shall mean, where applicable, (a) the approval of the Holding Company
Merger and the Bank Merger by the FRB under the BHCA and the Bank Merger Act, as amended, and the
DFI under the California Financial Code, and (b) the following additional governmental consents and
approvals: (i) the effectiveness of the Registration Statement under the Securities Act; (ii) the
clearance by the SEC for, or the expiration of the applicable waiting period with respect to, the
mailing of the Proxy Statement/Prospectus under the Exchange Act; (iii) the applicable rules and
regulations of Nasdaq National Market, as applicable, (iv) any approvals or consents under
applicable state securities laws relating to the offer and sale of the Parent Shares in the Holding
Company Merger; (v) any consents, approval, authorizations or permits from Governmental Entities
that may be required by the CGCL and (vi) all other consents, permits and approvals required under
federal and state law to effect the Holding Company Merger and the Bank Merger without a violation
thereof.
“Governmental Entity” means any domestic or foreign governmental, administrative, judicial or
Regulatory Authority.
“group” is defined as in the Exchange Act, except where the context otherwise requires.
“Hazardous Materials” means (a) any petroleum, petroleum products, byproducts or breakdown
products, radioactive materials, mold, radon, asbestos-containing materials or polychlorinated
biphenyls or (b) any chemical, material or other substance defined or regulated as toxic or
hazardous or as a pollutant or contaminant or waste under any applicable Environmental Law.
“In-the-Money Company Options” shall mean those Company Options having an exercise price less
than the Per Share Price.
“Index” means the Nasdaq Bank Index; ticker (CBNK).
“Intellectual Property” means, with respect to either party to this Agreement, all trademarks,
trade names and service marks (including any registrations or applications for registration of any
of the foregoing) of such party.
“IRS” means the United States Internal Revenue Service.
59
“knowledge” of any person which is not an individual means, with respect to any specific
matter, the actual knowledge of such person’s executive officers and any other officer having
primary responsibility for such matter after reasonable inquiry.
“Law” means any foreign or domestic law, statute, code, ordinance, rule, regulation, order,
judgment, writ, stipulation, award, injunction, decree or arbitration award or finding, including,
without limitation, Sections 23A and 23B of the Federal Reserve Act and the FDIC regulations
pursuant thereto, the Equal Credit Opportunity Act, the Fair Housing Act, the Community
Reinvestment Act, the Home Mortgage Disclosure Act, the Bank Secrecy Act and all other applicable
fair lending laws and other laws relating to discriminatory business practices, the Xxxxxxxx-Xxxxx
Act of 2002, the USA Patriot Act, and the Real Estate Settlement Procedures Act.
“Loan” means any loan, loan commitment, letter of credit or other extension of credit.
“Material Adverse Effect” means, when used in connection with Parent or the Company, any
change, effect, or circumstance that, individually or in the aggregate (a) has or could reasonably
be expected to have a material adverse effect on the business, financial condition or results of
operations of such party and its Subsidiaries taken as a whole, other than such changes, effects or
circumstances that are reasonably attributable to or resulting from: (i) economic conditions
generally in the United States, conditions in the financial or securities markets in general or
conditions in general or in the industries and markets in which the Company or Parent, as the case
may be, conduct their respective businesses, except to the extent the Company or Parent, as the
case may be, is materially and disproportionately affected thereby; (ii) changes in banking and
similar laws of general applicability or interpretations thereof by courts or Governmental
Entities, (iii) changes in GAAP or regulatory accounting requirements applicable to banks and their
holding companies generally, (iv) the announcement or pendency of the Holding Company Merger; (v)
any change in required action taken by the Company with Parent’s prior written consent or any
change in required action taken by Parent with the Company’s prior written consent; (vi) any change
in the trading price or trading volume of a party’s common stock in and of itself; or (vii) any
failure, in and of itself, by either party to meet internal or other estimates, predictions,
projections or forecasts of revenue, net income or any other measure of financial performance (it
being understood that, with respect to clauses (vi) and (vii) that the facts or circumstances
giving rise or contributing either to such change in trading price or failure to meet estimates or
projections may be deemed to constitute, or be taken into account in determining whether there has
been, a Material Adverse Effect); or (b) prevents Parent, the Company, the Company Bank or Parent
Bank, as applicable, from consummating the Holding Company Merger or the Bank Merger, as the case
may be, or performing any of such party’s obligations under Article I or Article II of this
Agreement.
“Merger Consideration” shall mean the amounts of Parent Common Stock and cash for fractional
shares that shall be payable to the Company Shareholders pursuant to Article II herein.
“Parent Acquisition Transaction” means a business combination, tender offer or similar
transaction to which Parent or any of its Significant Subsidiaries is a party.
“Parent Average Price” shall mean the average of the daily volume-weighted average sale price
of Parent Common Stock for the 20 consecutive trading days prior to and including the fifth (5th)
trading day prior to the date the parties have mutually scheduled to be the Closing Date.
“Parent Common Stock” means shares of common stock of Parent, no par value per share.
60
“Parent Preferred Stock” means shares of any series of preferred stock of Parent, no par value
per share.
“Parent Shareholder Approval” means the approval of this Agreement by the affirmative vote (in
person or by proxy) of the holders of a majority of the outstanding Parent Shares present (either
in person or by proxy) and voting at the Parent Shareholder Meeting.
“Parent Shareholders” means the record holders of the Parent Shares.
“Perfected Dissenting Shares” means shares of Parent Stock or Company Stock, as the case may
be, which have taken all requisite action to be treated as dissenting shares pursuant to Sections
1300 et seq of the CGCL.
“Per Share Price” means the amount obtained, rounded to one ten-thousandth, by dividing (i)
the Aggregate Merger Consideration by (ii) the Total Shares.
“person” means an individual, corporation, limited liability company, partnership,
association, trust, unincorporated organization, other entity or group (as defined in Section 13(d)
of the Exchange Act).
“Proxy Statement/Prospectus” shall mean the joint proxy statement/prospectus to be sent to the
Company Shareholders and Parent Shareholders in connection with the respective meetings thereof at
which the Company Shareholders and Parent Shareholders shall consider and vote on the approval of
this Agreement and the Holding Company Merger, and, in the case of the Parent, also on the approval
(if required by applicable Law or applicable Nasdaq National Market Listing requirements) of the
issuance of the shares of Parent Common Stock in the Holding Company Merger, as such proxy
statement/prospectus may be amended or supplemented.
“Registration Statement” shall mean the registration statement pursuant to which the Parent
Shares to be issued in the Holding Company Merger will be registered with the SEC under the
Securities Act, as such registration statement may be amended or supplemented following such filing
and as of the date it is declared or has become effective under the Securities Act.
“Regulation S-K” means the SEC promulgated regulation which is referred to by the SEC as
Regulation S-K and which, together the General Rules and Regulations under the Securities Act of
1933, as amended (“Securities Act”), and the Securities Exchange Act of 1934 (“Exchange Act”) and
the interpretative releases under these acts, sets forth the form and content of and requirements
for non-financial statements required to be filed as a part of (i) registration statements filed
under the Securities Act; and (ii) registration statements under section 12, annual or other
reports under sections 13 and 15(d) and proxy and information statements under section 14 of the
Exchange Act.
“Regulation S-X” means the SEC promulgated regulation which is referred to by the SEC as
Regulation S-X and which, together with the SEC’s Financial Reporting Releases, sets forth the form
and content of and requirements for financial statements required to be filed as a part of (i)
registration statements filed under the Securities Act of 1933 and (ii) registration statements
under Section 12, annual or other reports under Sections 13 and 15(d) and proxy and information
statements under Section 14 of the Securities Exchange Act of 1934.
“SEC” means the Securities and Exchange Commission.
61
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“SERPs” shall mean the Executive Supplemental Compensation Agreements listed in Section 3.14
of the Company Confidential Disclosure Schedule.
“Severance Arrangements” means all agreements, plans, programs and policies of either party to
this Agreement or any of such party’s Subsidiaries that provide for the payment or continuation of
compensation or benefits to any of the directors, officers or employees of or consultants to such
party or any of its Subsidiaries on or by reason of, or following, a termination of employment or
cessation of service of such director, officer, employee or consultant with such party or any of
its Subsidiaries.
“Significant Subsidiary” shall have the meaning given to it in Rule 1-02(w) of SEC Regulation
S-X.
“Starting Index: shall mean the closing price of the Index on the Business Day immediately
preceding the execution of this Agreement, which was $3136.87.
“Starting Price” shall mean $26.00, subject to adjustment pursuant to Section 2.2 and rounded
to the nearest whole cent.
“Subsidiary” of any person means any corporation, partnership, joint venture or other legal
entity of which such person (either alone or through or together with any other Subsidiary), owns,
directly or indirectly, a majority of the stock or other equity interests the holders of which are
generally entitled to vote for the election of the Board of Directors or other governing body of
such corporation, partnership, joint venture or other legal entity.
“Superior Proposal” means a bona fide written offer which is not solicited after the date
hereof in violation of this Agreement made by any person other than Parent that involves (a) (i) a
sale, lease, exchange, transfer or other disposition of at least 50% of the assets of the Company
and its Subsidiaries, taken as a whole, in a single transaction or a series of related
transactions, or (ii) the acquisition, directly or indirectly, by such third party of beneficial
ownership of 50% or more of the Common Stock of the Company, whether to be effectuated by a merger,
consolidation, share exchange, business combination, tender or exchange offer or otherwise, (b) is
on terms which the Company Board in good faith concludes (following consultation with its financial
advisors and outside legal counsel) are more favorable to the Company’s shareholders (in their
capacities as shareholders) from a financial point of view than the transactions contemplated by
this Agreement (including any revisions hereto), (c) is, in the good faith judgment of the Company
Board, reasonably likely to be completed materially on the terms proposed, taking into account the
various legal, financial and regulatory aspects of the proposal and the person making the proposal
and (d) for which financing, to the extent required, is then committed or which, in the good faith
judgment of the Company Board is reasonably likely to be obtained by such third party.
“Taxes” means any federal, state, local or foreign income, gross receipts, franchise,
estimated, alternative minimum, add-on minimum, sales, use, transfer, registration, ad valorem,
value added, excise, natural resources, severance, stamp, occupation, premium, windfall profit,
environmental (including taxes under Section 59A of the Code), customs duties, real property,
personal property, capital stock, employment, profits, withholding, disability, intangibles,
withholding, social security, unemployment, disability, payroll, license, employee or other tax or
levy, of any kind whatsoever, including any interest, penalties, or additions to tax in respect of
the foregoing whether disputed or not.
62
“Tax Returns” means any report, return (including information return), claim for refund,
declaration or statement relating to Taxes, including any schedule or attachment thereto, and
including any amendments thereof.
“Total Shares” shall mean the sum of (x) the number of Company Shares issued and outstanding
immediately prior to the Effective Time (without regard to the exercise of any Company Options
between the date of this Agreement and the Effective Time) (y) the number of Company Shares
underlying Company Warrants issued and outstanding immediately prior to the Effective Time and (z)
the difference between (i) the number of Company Shares into which Company Options are exercisable
as of the date of this Agreement and (ii) the number of Company Shares subject to Company Options
which are canceled without exercise prior to or as a result of the Closing pursuant to the terms of
the Company Option Plan, including as a result of termination of an optionee’s affiliation with the
Company.
“Weighting Factor” means, for each member of the Peer Group, the corresponding percentage
signified for said Peer Group member in the definition of Peer Group.
“401(K) Plan” means the Company’s defined contribution pension plan.
Section 12.4. Terms Defined Elsewhere. The following terms are defined elsewhere in
this Agreement, as indicated below:
DEFINED TERMS | SECTION | |
Agreement
|
Preamble | |
Agreement of Bank Merger
|
Section 1.6 | |
Agreement of Merger
|
Recitals | |
ALL
|
Section 3.23 | |
Bank Merger
|
Section 1.6 | |
Breaching Party
|
Section 11.2(e) | |
CGCL
|
Recitals | |
Closing
|
Section 1.2 | |
Closing Date
|
Section 1.2 | |
Code
|
Recitals | |
Community Reinvestment Act
|
Section 3.7(c) | |
Company
|
Preamble | |
Company Affiliates
|
Section 6.6 | |
Company Affiliated Shareholders
|
Recitals | |
Company Bank
|
Recitals | |
Company Balance Sheet
|
Section 3.8(c) | |
Company Board Approval
|
Section 3.5(b) | |
Company Board Recommendation
|
Section 5.3(b) | |
Company Bylaws
|
Section 3.2 | |
Company Articles
|
Section 3.2 | |
Company Common Stock Certificates
|
Section 2.4(b) | |
Company Confidential Disclosure Schedule
|
Article III Preamble | |
Company Employees
|
Section 7.4(a) | |
Company Fairness Opinion
|
Section 3.26 | |
Company Financial Advisor
|
Section 3.26 | |
Company Material Contract
|
Section 3.14 | |
Company Options
|
Section 2.5 | |
Company Option Shares
|
Section 3.3(a) | |
Company Permits
|
Section 3.7 | |
Company Property
|
Section 3.20 |
63
DEFINED TERMS | SECTION | |
Company SEC Filings
|
Section 3.8(a) | |
Company Shareholders’ Meeting
|
Section 5.2 | |
Company Termination Fee
|
Section 11.2(b) | |
Confidentiality Agreement
|
Section 6.2 | |
Control Transaction
|
Section 11.2 | |
Effective Time
|
Section 1.2 | |
Exchange Agent
|
Section 2.4(a) | |
Governing Law
|
Section 12.13 | |
Holding Company Merger
|
Recitals | |
Indemnified Liabilities
|
Section 7.5(a) | |
Indemnified Persons
|
Section 7.5(a) | |
Indemnifying Party
|
Section 7.5(a) | |
Liens
|
Section 3.4 | |
Multiemployer Plan
|
Section 3.11(b) | |
Parent
|
Preamble | |
Parent Affiliated Shareholders
|
Recitals | |
Parent Articles
|
Section 4.2 | |
Parent Balance Sheet
|
Section 4.9(c) | |
Parent Bank
|
Recitals | |
Parent Benefit Plan
|
Section 7.4(a) | |
Parent Board
|
Section 4.5(a) | |
Parent Board Approval
|
Section 4.5(b) | |
Parent Board Recommendation
|
Section 5.3(b) | |
Parent Bylaws
|
Section 4.2 | |
Parent Confidential Disclosure Schedule
|
Article IV Preamble | |
Parent Fairness Opinion
|
Section 4.26 | |
Parent Material Contract
|
Section 4.15 | |
Parent Options
|
Section 7.1(b) | |
Parent Permits
|
Section 4.8(a) | |
Parent SEC Filings
|
Section 4.9(a) | |
Parent Shareholders’ Meeting
|
Section 5.2 | |
Parent Shares
|
Section 2.1(a) | |
Parent Stock Certificates
|
Section 2.4(a) | |
Prohibited Transaction
|
Section 3.11(b) | |
Representatives
|
Section 6.2 | |
Surviving Bank
|
Section 1.6 | |
Surviving Corporation
|
Section 1.6 | |
Termination Date
|
Section 11.1 | |
Terminating Party
|
Section 11.2(e) | |
Voting Agreement
|
Recitals |
Section 12.5. Fees and Expenses. Subject to any provisions in Section 11.2 to
the contrary, whether or not the Holding Company Merger is consummated, all costs and expenses
incurred in connection with this Agreement and the transactions contemplated hereby shall be paid
by the party incurring such costs and expenses.
Section 12.6. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 12.7. Interpretation. The words “shareholder” or “shareholders” shall be
deemed to include the words “stockholder” or “stockholders” and vice versa.
Section 12.8. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect so
long as the economic (including,
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without limitation, the aggregate Merger Consideration) and legal substance of the
transactions contemplated hereby, taken as a whole, are not affected in any manner materially
adverse to any party; provided, that for purposes of clarification, any change in the Merger
Consideration shall be deemed to be “materially adverse.” Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original intent of the parties
as closely as possible in an acceptable manner to the end that transactions contemplated hereby are
fulfilled to the extent possible.
Section 12.9. Entire Agreement. This Agreement (together with the Exhibits,
Schedules, Parent Confidential Disclosure Schedule and Company Confidential Disclosure Schedule and
the other documents delivered pursuant hereto) and the Confidentiality Agreement constitute the
entire agreement of the parties and supersede all prior agreements and undertakings, both written
and oral, between the parties, or any of them, with respect to the subject matter hereof, and
except as otherwise expressly provided herein, are not intended to confer upon any other person any
rights or remedies hereunder.
Section 12.10. Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any party hereto, in whole or in part, without the prior
written consent of the other party, and any attempt to make any such assignment without such
consent shall be null and void. Subject to the preceding sentence, this Agreement shall be binding
upon and inure to the benefit of and be enforced by the parties hereto and their respective
successors and permitted assigns.
Section 12.11. No Third Party Beneficiaries. Nothing in this Agreement, other than
pursuant to Section 7.5, express or implied is intended to or shall confer upon any person other
than the parties hereto any right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
Section 12.12. Mutual Drafting. Each party hereto has participated in the drafting of
this Agreement, which each party acknowledges is the result of extensive arms-length negotiations
between the parties.
Section 12.13. Governing Law. This Agreement shall be deemed to be made in and in all
respects shall be interpreted, construed and governed by and in accordance with the law of the
State of California without regard to conflict of Law principles thereof (the “Governing Law”).
Section 12.14. Specific Performance. The parties hereto 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. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions, without the posting of any bond, to
prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
Section 12.15. Waiver. At any time prior to the Effective Time, any party hereto may
(a) extend the time for the performance of any of the obligations or other acts of the other party
hereto, (b) waive any inaccuracies in the representations and warranties of the other party
contained herein or in any document delivered pursuant hereto, and (c) waive compliance by the
other party with any of the agreements or conditions contained herein; provided, however, that
after any approval of the transactions contemplated by this Agreement by the Company Shareholders
and Parent Shareholders, there may not be, without further approval of such Shareholders, any
extension or waiver of this Agreement or any portion thereof which, by Law or in accordance with
the rules of the Nasdaq Stock Market, requires further approval by such Shareholders. Any such
extension or waiver shall be valid
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only if set forth in an instrument in writing signed by each of the parties to be bound
thereby, but such extension or waiver or failure to insist on strict compliance with an obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent failure to comply with the same obligation, covenant, agreement or condition or any
failure to comply with any other obligation, covenant, agreement or condition by the party whose
performance was waived.
Section 12.16. Amendment. This Agreement may be amended by the parties hereto by
action taken by or on behalf of their respective Boards of Directors at any time prior to the
Effective Time; provided, however, that, after the adoption of this Agreement by the Company
Shareholders and Parent Shareholders, no amendment shall be made except as allowed under applicable
Law. This Agreement may not be amended except by an instrument in writing signed by each of the
parties hereto.
Section 12.17. Force Majeure. The parties hereto agree that, notwithstanding anything
to the contrary in this Agreement, in the event this Agreement is terminated as a result of a
failure of a condition, which failure is due to a natural disaster or other act of God, including,
but not limited to, an earthquake or flood, or an act of war or terrorism, and provided neither
party has materially failed to observe the material obligations of such party under this Agreement,
neither party shall be obligated to pay to the other party to this Agreement any expenses or
otherwise be liable hereunder
Section 12.18. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each of which executed
counterparts and any photocopies and facsimile copies thereof, shall be deemed to be an original,
but all of which taken together shall constitute one and the same agreement.
[Signature page follows]
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IN WITNESS WHEREOF, Parent and the Company have caused this Agreement to be executed as of the
date first written above by their respective officers thereunto duly authorized.
PLACER SIERRA BANCSHARES | ||
By: /s/ Xxxxxx X. Xxxxxx | ||
Name: Xxxxxx X. Xxxxxx | ||
Title: Chairman and Chief Executive Officer | ||
By: /s/ Xxxxxxx X. Xxxxxx | ||
Name: Xxxxxxx X. Xxxxxx | ||
Title: Secretary | ||
SOUTHWEST COMMUNITY BANCORP | ||
By: /s/ Xxxxx Xxxxxxxxxxx | ||
Name: Xxxxx Xxxxxxxxxxx | ||
Title: Chief Executive Officer | ||
By: /s/ Xxxx Xxxx | ||
Name: Xxxx Xxxx | ||
Title: Secretary |
SIGNATURE PAGE TO AGREEMENT AND PLAN OF REORGANIZATION
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