PLAN OF REORGANIZATION AND MERGER AGREEMENT
This Plan of Reorganization and Merger Agreement ("Agreement") is made
and entered into as of this 3rd day of September, 1999 by and between Humboldt
Bancorp ("Humboldt"), a California corporation and Silverado Merger Corporation
("Silverado"), a California corporation.
RECITALS AND UNDERTAKINGS
A. Humboldt is duly organized and existing under the laws of the State
of California with its principal offices located in Eureka, California.
Silverado is duly organized and existing under the laws of the State of
California with its principal offices located in Eureka, California.
B. As of the date hereof, Humboldt has 50,000,000 shares of no par value
common stock authorized and 4,514,731 shares outstanding.
C. As of the date hereof, Silverado has an authorized maximum number of
shares of capital stock consisting of 20,000,000 shares of no par value common
stock, of which 45,002 shares of common stock are outstanding, and 10,000,000
shares of preferred stock, of which no shares of preferred stock are
outstanding. Prior to the Effective Date (as defined in Section 1.2 herein),
Silverado will have no more than 45,002 shares outstanding, reflecting the
number of shares of common stock outstanding as of the date of this Agreement.
D. It is contemplated that in the merger Silverado will be merged with
and into Humboldt, and Humboldt will be the surviving corporation of such merger
(the "Merger").
E. The Boards of Directors of Humboldt and Silverado have, respectively,
approved this Agreement and authorized its execution.
F. The parties intend that the Merger be structured as a
"reorganization" under Section 368(a)(1)(A) of the Internal Revenue Code of
1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the mutual agreements of the parties
contained herein, the parties hereby agree as follows:
Section 1. General
1.1 The Merger. On the Effective Date, Silverado shall be merged into
Humboldt, and Humboldt shall be the surviving corporation (the "Surviving
Corporation"), and its name shall continue to be "Humboldt Bancorp."
1.2 Effective Date. This Agreement shall become effective on September
10, 1999 or such other date as is agreed to by the parties hereto (the
"Effective Date").
1.3 Articles of Incorporation and Bylaws. On the Effective Date, the
Articles of Incorporation of Humboldt, as in effect immediately prior to the
Effective Date, shall be and remain the Articles of Incorporation of the
Surviving Corporation; the Bylaws of Humboldt shall be and remain the Bylaws of
the Surviving Corporation until altered, amended or repealed.
1.4 Directors and Officers of the Surviving Corporation. On the
Effective Date, the directors and officers of Humboldt immediately prior to the
Effective Date shall be and remain the directors and officers of the Surviving
Corporation. Directors of the Surviving Corporation shall serve until the next
Annual Meeting of Shareholders of the Surviving Corporation or until such time
as their successors are elected and have qualified.
1.5 Effect of the Merger.
a. Assets and Rights. Upon the Merger becoming effective, all
rights, privileges, franchises and property of Silverado, and all debts and
liabilities due or to become due to Silverado, including things in action and
every interest or asset of conceivable value or benefit, shall be deemed fully
and finally and without any right of reversion transferred to and vested in the
Surviving Corporation without further act or deed, and the Surviving Corporation
shall have and hold the same in its own right as fully as the same was possessed
and held by Silverado.
b. Liabilities. Upon the Merger becoming effective, all debts,
liabilities, and obligations due or to become due of, and all claims or demands
for any cause existing against Silverado shall be and become the debts,
liabilities, obligations of, and the claims and demands against, the Surviving
Corporation in the same manner as if the Surviving Corporation had itself
incurred or become liable for them.
c. Creditors' Rights and Liens. Upon the Merger becoming
effective, all rights of creditors of Silverado, and all liens upon the property
of Silverado, shall be preserved unimpaired, limited in lien to the property
affected by the liens immediately prior to the Effective Date.
d. Pending Actions. Upon the Merger becoming effective, any
action or proceeding pending by or against Silverado shall not be deemed to have
abated or been discontinued, but may be prosecuted to judgment, with the right
to appeal or review as in other cases, as if the Merger had not taken place or
the Surviving Corporation may be substituted for Silverado.
1.6 Further Assurances. Humboldt and Silverado each agree that at any
time, or from time to time, as and when requested by the Surviving Corporation,
or by its successors and assigns, it will execute and deliver, or cause to be
executed and delivered in its name by its last acting officers, or by the
corresponding officers of the Surviving Corporation as the case may be, all such
conveyances, assignments, transfers, deeds or other instruments, and will take
or cause to be taken such further or other action as the Surviving Corporation,
its successors or assigns may deem necessary or desirable, in order to evidence
the transfer, vesting or devolution of any property right, privilege or
franchise or to vest or perfect in or confirm to the Surviving Corporation, its
successors and assigns, title to and possession of all the property, rights,
privileges, powers, immunities, franchises and interests referred to in this
Section 1 and otherwise to carry out the intent and purposes hereof.
Section 2. Capital Stock of the Surviving Corporation
2.1 Stock of Silverado. Upon the Merger becoming effective, the shares
of capital stock of Silverado issued and outstanding immediately prior to the
Effective Date shall thereupon be converted into and exchanged for 45,002 shares
of fully paid and nonassessable common stock of Humboldt as the Surviving
Corporation.
2.2 Exchange Procedure.
a. Humboldt shall act as payment agent (the "Exchange Agent") for
the purpose of exchanging certificates representing shares of Silverado common
stock for shares of Humboldt common stock as provided by Section 2.1.
b. If any holder of Silverado common stock shall be unable to
surrender his or her stock certificates representing Silverado common stock
because such certificates have been lost or destroyed, such holder of Silverado
common stock may deliver in lieu thereof an indemnity bond in form and substance
and with a surety satisfactory to Silverado.
Section 3. Approvals
3.1 Shareholder Approval. This Agreement shall be submitted to the
shareholders of Silverado for ratification and approval in accordance with the
applicable provisions of law.
3.2 Regulatory Approvals. The parties shall obtain the waivers, consents
and approvals of all regulatory authorities as required for consummation of the
Merger on the terms herein provided.
Section 4. Conditions, Termination and Payment of Expenses
4.1 Conditions to the Merger. Consummation of the Merger is conditioned
upon:
a. ratification and approval of this Agreement by the
shareholders of Silverado as required by law;
b. obtaining all other consents and approvals, and satisfaction
of all other requirements prescribed by law which are necessary for consummation
of the Merger;
c. obtaining all consents or approvals, governmental or
otherwise, which are or, in the opinion of counsel for Humboldt may be,
necessary to permit or enable the Surviving Corporation, upon and after the
Merger, to conduct all or any part of the business and activities of Humboldt up
to the time of the Merger, in the manner in which such activities and business
are then conducted;
d. the appointment of at least three and a maximum of five of
Silverado's organizers and/or directors to the Board of Directors of Capitol
Valley Bank, a wholly-owned subsidiary of Humboldt;
e. the execution of the Shareholder Agreement between each
organizer and/or director of Silverado and Humboldt in the form attached as
Exhibit 1;
f. the execution of the Warrant Agreement between each organizer
and/or director of Silverado and Humboldt in the form attached as Exhibit 2;
g. the purchase of an aggregate of 108,333 shares of Humboldt
common stock at $12.00 per share by the organizers and/or directors of Silverado
on or before August 20, 1999;
h. the determination by Humboldt that the only liabilities of
Silverado in existence at the Effective Date shall be as set forth in Schedule
4.1;
i. the satisfactory release of the Silverado building lease
without any continuing liability to Humboldt except as set forth in Schedule
4.1: and
j. performance by each party hereto of all of its respective
obligations hereunder to be performed prior to the Merger becoming effective.
4.2 Termination of the Merger. If any condition in Paragraph 4.1 has not
been fulfilled with respect to the Merger, or, if in the opinion of a majority
of the Board of Directors of any of the parties:
a. any action, suit, proceeding or claim has been instituted,
made or threatened relating to the proposed Merger which
makes consummation of such Merger inadvisable; or
b. for any other reason consummation of such Merger is
inadvisable;
then this Agreement may be terminated at any time before such merger becomes
effective. Upon termination, this Agreement shall be void and of no further
effect, and there shall be no liability by reason of this Agreement or the
termination thereof on the part of the parties or their respective directors,
officers, employees, agents or shareholders, except as provided in Section 4.3
hereof.
4.3 Expenses of the Merger. Humboldt shall bear the expenses of the
Merger, including filing fees, accountants' fees and legal fees.
Section 5. Miscellaneous
5.1 Assignment. Neither party shall have the right to assign its rights
or obligations under this Agreement.
5.2 Execution. This Agreement may be executed in counterparts, each of
which when so executed shall be deemed an original and such counterparts shall
together constitute one and the same instrument.
5.3 Governing Law. This Agreement is made and entered into in the State
of California, and the laws of said State shall govern the validity and
interpretation hereof.
5.4 Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the Merger and supersedes all prior
arrangements or understandings with respect thereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
HUMBOLDT BANCORP
By:__________________________________________
Xxxxxxxx Xxxxx, President
By:__________________________________________
Xxxx Xxxxx, Secretary
SILVERADO MERGER CORPORATION
By:__________________________________________
Xxx Xxxxx, President
By:__________________________________________
Xxxxxx Xxxxx, Secretary
