SECOND AMENDMENT TO AGREEMENT TO MERGE AND PLAN OF REORGANIZATION
EXHIBIT
2.2
SECOND
AMENDMENT TO
AGREEMENT
TO MERGE
AND
PLAN OF REORGANIZATION
THIS
SECOND AMENDMENT TO THE
AGREEMENT TO MERGE AND PLAN OF REORGANIZATION (the “Second Amendment”) is
entered into as of January 30, 2008, between Belvedere SoCal, a company
organized under the laws of California (“SoCal”), being located in
San Francisco, California, and Spectrum Bank, a banking company organized under
the laws of California (“Seller”), located in Irvine,
California.
WHEREAS,
SoCal and Seller
entered into an Agreement to Merge and Plan of Reorganization dated as of July
13, 2007 which was subsequently amended on September 4, 2007 (as so amended,
the
“Agreement”);
WHEREAS,
the Parties wish to
make changes and an amendment to the Agreement which they believe to be in
the
best interest of their respective shareholders;
NOW,
THEREFORE, in
consideration of the premises and mutual promises of the Parties, the Parties
hereto agree as follows:
1.
The definition of “Per Share Cash Consideration” in Section 1.1 of the Agreement
is hereby modified by changing the amount of “$475,000” to
“$490,000.”
2.
Subsection (d) is hereby added to Section 2.1 to read as follows:
“(d) Immediately
prior to the Effective Time, SoCal shall acquire from certain shareholders
of
Seller, pursuant to a separate purchase agreement, the Seller Shares set forth
on Exhibit A to this Second Amendment in exchange for certain trust preferred
securities issued by a subsidiary trust of SoCal valued on the basis of the
Per
Share Cash Consideration (the “Stock Sale”). The trust preferred
securities shall have the terms and provisions provided for in an amended and
restated declaration of trust which shall be mutually acceptable to SoCal and
the selling shareholders.”
|
3.
|
Subsection
(a) of Section 2.3 of the Agreement is hereby amended to read as
follows:
|
“(a) Except
as
provided in Subsection (d) hereof, each Seller Share shall, by virtue of
the
Merger, be converted into the right to receive cash in the amount of the
Per
Share Cash Consideration.”
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4.
Subsection (d) is hereby added to Section 2.3 of the Agreement to read as
follows:
“(d) Each
Seller Share held by SoCal at the Effective Time will be cancelled and no
amount
of cash or other consideration will be paid in exchange
therefor.”
5.
Subsection (a) of Section 2.5 of the Agreement is hereby amended to read as
follows:
“(a)
As of the Effective Time, SoCal shall have caused to be deposited with the
Exchange Agent for the benefit of the holders of shares of Seller Stock funds
in
an amount equal to the number of shares of Seller Stock outstanding at the
Effective Time minus the number of shares of Seller Stock owned by SoCal at
the
Effective Time multiplied by the Per Share Cash Consideration (collectively,
the
“Exchange Fund”).
6.
Subsection (e) is hereby added to Section 8.1 to read as follows:
“(e)
The Stock Sale shall have been completed immediately prior to the Effective
Time.”
7.
Subsection (d) of Section 8.2 is hereby amended by deleting the last sentence
of
such Subsection.
8.
Capitalized terms used herein and not otherwise defined shall have the same
meaning as set forth in the Agreement.
9.
This Second Amendment may be entered into in one or more counterparts, all
of
which shall be considered one and the same instrument, and it shall become
effective when one or more counterparts have been signed by each of the Parties
and delivered to the other Parties, it being understood that all Parties need
not sign the same counterpart.
10.
The Agreement shall remain in full force and effect in all other
respects.
11.
This Second Amendment shall be governed by and construed in accordance with
the
laws of the State of California.
[signatures
appear on the following page]
2
WITNESS,
the signature of Belvedere
SoCal as of the 30th day of January, 2008, set by its Chairman of the Board
and
its Secretary, pursuant to a resolution of its board of directors, acting by
at
least a majority:
| By: _______________________________ | By: _______________________________ |
|
President
&
Chief Executive Officer
|
Secretary
|
WITNESS,
the signature of Spectrum Bank, as of the 30th day of January, 2008, set by
its
Chief Executive Officer and its Secretary, pursuant to a resolution of its
board
of directors, acting by at least a majority:
|
SPECTRUM
BANK
|
|
| By: _______________________________ | By: _______________________________ |
|
Chief
Executive
Officer
|
Secretary
|
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EXHIBIT
A
| Selling Shareholder |
#
of
shares of Seller
Stock
to
be sold
|
Value
of
Trust Preferred
Securities
to be received
|
||||||
| Xxxxxx X. Xxxxxxx |
182,115
|
$ | 8,403,024 | |||||
| Xxxxxx X. Xxxxxxx, Tr GFT | 76,191 | $ | 3,515,574 | |||||
| Xxxx X. & Xxxxx X. | 22,297 | $ | 1,028,815 | |||||
| Xx Xxxx, Xx DSFT | ||||||||
| Xxxxxx X. Xxxxxxx | 44, 485 | $ | 2,052,588 | |||||
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