EXHIBIT 2
FIRST AMENDMENT TO
AGREEMENT TO MERGE
AND PLAN OF REORGANIZATION
THIS FIRST AMENDMENT TO THE AGREEMENT TO MERGE AND PLAN OF
REORGANIZATION (the "First Amendment") is entered into as of May 24, 2001, among
Mid-State Bank, a banking company organized under the laws of California
("BANK"), being located in Arroyo Grande, California, Mid-State Bancshares, a
corporation and registered bank holding company organized under the laws of
California ("ACQUIROR") located in Arroyo Grande, California, Americorp, a
corporation and registered bank holding company organized under the laws of
California ("TARGET") located in Ventura, California, and American Commercial
Bank, a banking company organized under the laws of California ("TARGET BANK"),
located in Ventura, California.
WHEREAS, Acquiror, Bank, Target and Target Bank entered into an
Agreement to Merge and Plan of Reorganization dated as of April 9, 2001 (the
"Agreement");
WHEREAS, the Parties wish to make certain changes and amendments 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. Recital F is amended in full as follows:
"F. It is the intention of the parties to this Agreement that the
business combination contemplated hereby be treated as a
"reorganization" under Section 368 of the Internal Revenue Code of
1986, as amended (the "Code")."
2. The following definitions are hereby added to Section 1.1 or, in
the event that the definition is already contained in the
Agreement, amended in full as follows:
"`CASH ELECTION' shall have the meaning given such term in Section
2.7(a)."
"`COMBINATION CASH ELECTION' shall have the meaning given such
term in Section 2.7(a)."
"`COMBINATION STOCK ELECTION' shall have the meaning given such
term in Section 2.7(a)."
"`ELECTION' shall have the meaning given such term in Section
2.7(a)."
"`ELECTION DEADLINE' shall have the meaning given such term in
Section 2.7(b)."
"`ELECTION FORM' shall have the meaning given such term in Section
2.7(a)."
"`ELECTION FORM RECORD DATE' shall have the meaning given such
term in Section 2.7(a)."
"`EXCHANGE RATIO' means the number of shares of Acquiror Stock
into which a share of Target Stock shall be converted which shall
be equal to the amount (to the nearest ten thousandth) as set
forth herein below:
(i) If the Average Closing Price is not less than $15.15 and is
not more than $17.61, the Exchange Ratio shall be calculated by
dividing $28.75 by the Average Closing Price;
(ii) If the Average Closing Price is more than $17.61, but not
more than $18.42, the Exchange Ratio shall be 1.6335;
(iii) If the Average Closing Price is more than $18.42, the
Exchange Ratio shall be calculated by dividing $30.09 by the
Average Closing Price; provided, however, that if Acquiror shall
have entered into a definitive agreement for a Change of Control
(which definitive agreement shall not have terminated at the
Effective Time) and the Average Closing Price is more than $18.42,
the Exchange Ratio shall be 1.6335;
(iv) If the Average Closing Price is less than $15.15 but not less
than $14.00, the Exchange Ratio shall be 1.8977;
(v) If the Average Closing Price is less than $14.00, the Exchange
Ratio shall be calculated by dividing $27.19 by the Average
Closing Price subject to Acquiror's right to terminate the
Agreement as set forth in Section 10.1(g).
The Exchange Ratio shall be adjusted for any Litigation
Expenses incurred in resolving the Litigation Contingencies if the
total amount of Litigation Expenses is in excess of $250,000;
provided, however, that the amount of Litigation Expenses shall be
reduced by the amount of any insurance proceeds actually received
or certain, in the reasonable judgment of Acquiror and Target
Bank, to be received from an insurer of Target or Target Bank.
"Litigation Expenses" includes the pre-tax amounts of each and
every cost and expense incurred by Target or Target Bank from the
date hereof until the Effective Time in connection with the
resolution or final disposition of the Litigation Contingencies,
including the amounts of any judgments, damages of all kinds,
settlements, legal fees, court costs, costs of mediators,
arbitrators and experts, reimbursements to third parties
(including any insurer of Target or Target Bank) and all other
expenses of or relating to the Litigation Contingencies. To the
extent that an item
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related to a Litigation Expense shall have already been booked and
expensed by Target and Target Bank as of the date hereof, no
further adjustment shall be made as a result thereof. In the event
of an adjustment to the Exchange Ratio resulting from Litigation
Expenses, the Exchange Ratio shall be calculated (to the nearest
ten thousandth) according to the following:
(V) If the Average Closing Price is not less than $15.15 and is
not more than $17.61, the Exchange Ratio shall be calculated
according to the following formula:
$28.75 - X
----------------------
Average Closing Price;
(W) If the Average Closing Price is more than $17.61, but not more
than $18.42, the Exchange Ratio shall be calculated according to
the following formula:
$28.75 - X
----------------------
$17.61
(X) If the Average Closing Price is more than $18.42, the Exchange
Ratio shall be calculated according to the following formula:
$30.09 - X
----------------------
Average Closing Price
provided, however, that if Acquiror shall have entered into a
definitive agreement for a Change of Control (which definitive
agreement shall not have terminated at the Effective Time) and the
Average Closing Price is more than $18.42, the Exchange Ratio
shall be as calculated in (W), above;
(Y) If the Average Closing Price is less than $15.15 but not less
than $14.00, the Exchange Ratio shall be calculated according to
the following formula:
$28.15 - X
----------------------
$15.15
(Z) If the Average Closing Price is less than $14.00, the Exchange
Ratio shall be calculated according to the following formula:
$27.19 - X
----------------------
Average Closing Price
subject to Acquiror's right to terminate the Agreement as set
forth in Section 10.1(g).
In each of the foregoing, "x" represents the dollar amount of
Litigation Expenses
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in excess of $250,000 divided by the outstanding shares of Target
Stock (determined as of the day on which the Average Closing Price
is determined."
"`MAILING DATE' shall have the meaning given such term in Section
2.7(a)."
"`MINIMUM STOCK AMOUNT' shall have the meaning given such term in
Section 2.7(c)."
"`PER SHARE CASH CONSIDERATION' is an amount of cash equal to the
Exchange Ratio multiplied by the Average Closing Price."
"`STOCK DESIGNATED SHARES' shall have the meaning given such term
in Section 2.7(d)."
"`STOCK ELECTION' shall have the meaning given such term in
Section 2.7(a)."
"`TOTAL CONSIDERATION' shall have the meaning given such term in
Section 2.7(c)."
"`UNDESIGNATED SHARES' shall have the meaning given such term in
Section 2.7(a)."
3. Section 2.3(a) of the Agreement is hereby amended in full as
follows:
"(a) Subject to the exceptions and limitations in Section 2.4,
each outstanding share of Target Stock shall, by virtue of the
Merger, be converted into the right to receive, at the election of
the holder thereof as provided in Section 2.7, either:
(i) shares of Acquiror Stock in accordance with the
Exchange Ratio; or
(ii) cash in the amount of the Per Share Cash Consideration;
or
(iii) a combination of Acquiror Stock and cash in the per
share amounts set forth in Section 2.3(a)(i) and
(a)(ii) above.
Notwithstanding the provisions of this Section 2.3(a) and Sections
2.5 and 2.7, there will be no right for the holders of Americorp Stock to Elect
to receive cash for their shares if the Parties agree that the Merger will be
accounted for as a "pooling" pursuant to Section 7.9."
4. Section 2.5 of the Agreement is hereby amended in full as follows:
"2.5 EXCHANGE PROCEDURES.
(a) As of the Effective Time, Acquiror shall have deposited
with the Exchange Agent for the benefit of the holders of shares
of Target Stock, for
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exchange in accordance with this Section 2.5 through the Exchange
Agent, certificates representing the shares of Acquiror Stock
issuable pursuant to Section 2.3 and funds in an amount not less
than the amount of cash payable pursuant to Elections (as
hereinafter defined) and the amount of cash payable in lieu of
fractional shares of Acquiror Stock which would otherwise be
payable in connection with Section 2.3 hereof, but for the
operation of Section 2.4 of this Agreement (collectively, the
"Exchange Fund").
(b) Acquiror shall direct the Exchange Agent to mail on the
Mailing Date (as hereinafter defined) to each holder of record of
a certificate or certificates (the "Certificates"): (i) a letter
of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall
pass, only upon delivery of the Certificates to the Exchange
Agent), (ii) an Election Form (as hereinafter defined), and (iii)
instructions for use in effecting the surrender of the
Certificates. Upon surrendering of a Certificate for cancellation
to the Exchange Agent or to such other agent or agents as may be
appointed by Acquiror, together with such letters of transmittal,
duly executed, the holder of such Certificate shall be entitled to
receive in exchange therefor the consideration provided herein,
and the Certificate so surrendered shall forthwith be canceled. In
the event a Certificate is surrendered representing Target Stock,
the transfer of ownership which is not registered in the transfer
records of Target, the consideration provided herein will be paid
if the Certificate representing such Target Stock 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 2.5 and except as provided in
subsection (g) hereof, each Certificate shall be deemed at any
time after the Effective Time to represent only the right to
receive upon such surrender the consideration provided herein.
Notwithstanding anything to the contrary set forth herein, if any
holder of shares of Target should be unable to surrender the
Certificates for such shares, because such Certificates have been
lost or destroyed, such holder may deliver in lieu thereof, in the
discretion of Acquiror, such bond in form and substance and with
surety reasonably satisfactory to Acquiror and thereafter shall be
entitled to receive the consideration provided herein. No interest
shall be paid on the Per Share Cash Consideration (as hereinafter
defined).
(c) No dividends or other distributions declared or made after the
Effective Time with respect to Acquiror Stock with a record date
after the Effective Time shall be paid to the holder of any
unsurrendered Certificate who are to receive Acquiror Stock
pursuant to the provisions hereof until the holder of record of
such Certificate shall surrender such Certificate. Subject to the
effect of applicable laws, following surrender of any such
Certificate by a holder receiving Acquiror Stock pursuant to the
provisions hereof, there shall be paid to the record holder of the
certificates representing whole shares of Acquiror Stock issued in
exchange thereof, without interest, (i) at the time of such
surrender, the amount of any cash payable in lieu of a fractional
share of Acquiror Stock to which such holder is
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entitled pursuant to Section 2.4 and the amount of dividends or
other distribution with a record date after the Effective Time
theretofore paid with respect to such whole shares of Acquiror
Stock, and (ii) at the appropriate payment date, the amount of
dividends or other distributions with a record date after the
Effective Time but prior to surrender and a payment date
subsequent to surrender payable with respect to such whole shares
of Acquiror Stock.
(d) All shares of Acquiror Stock issued upon the surrender for
exchange of Target Stock in accordance with the terms hereof
(including any cash paid pursuant to Section 2.4) shall be deemed
to have been issued in full satisfaction of all rights pertaining
to such shares of Target Stock, and there shall be no further
registration of transfers on the stock transfer books of Target or
Acquiror of the shares of Target Stock which were outstanding
immediately prior to the Effective Time. If after the Effective
Time, Certificates are presented to Acquiror for any reason, they
shall be canceled and exchanged as provided in this Agreement.
(e) Any portion of the Exchange Fund which remains undistributed
to the shareholders of Target following the passage of six months
after the Effective Time shall be delivered to Acquiror, upon
demand, and any shareholders of Target who have not theretofore
complied with this Section 2.5 shall thereafter look only to
Acquiror for payment of their claim for the consideration provided
herein and any dividends or distributions with respect to Acquiror
Stock.
(f) Neither Acquiror nor Target shall be liable to any holder of
shares of Target Stock for such shares (or dividends or
distributions with respect thereto) or cash from the Exchange Fund
delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(g) The Exchange Agent shall not be entitled to vote or exercise
any rights of ownership with respect to the shares of Acquiror
Stock held by it from time to time hereunder, except that it shall
receive and hold all dividends or other distributions paid or
distributed with respect to such shares of Acquiror Stock for the
account of the Persons entitled thereto. Former shareholders of
record of Target who are to receive shares of Acquiror Stock
pursuant to the provisions hereof shall be entitled to vote after
the Effective Time at any meeting of Acquiror shareholders the
number of whole shares of Acquiror Stock into which their
respective shares of Target Stock are converted, regardless of
whether such holders have exchanged their Certificates for
certificates representing Acquiror Stock in accordance with the
provisions of this Agreement."
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5. Section 2.7 is hereby added to read as follows:
"2.7 ELECTION AND PRORATION PROCEDURES.
(a) An election form and other appropriate and customary
transmittal materials in such form as Acquiror and Target shall
mutually agree ("Election Form") shall be mailed no less than 35
days prior to the anticipated Effective Time or on such other date
as Target and Acquiror shall mutually agree ("Mailing Date") to
each holder of record of Target Stock as of five Business Days
prior to the Mailing Date ("Election Form Record Date"). Acquiror
shall make available one or more Election Forms as maybe
reasonably requested by all persons who become holders (or
beneficial owners) of Target Stock after the Election Form Record
Date and prior to the Election Deadline (as defined below), and
Target shall provide to the Exchange Agent all information
reasonably necessary for it to perform its obligations as
specified herein. Each Election Form shall permit the holder (or
the beneficial owner through appropriate and customary
documentation and instructions) to elect (an "Election") to
receive either (i) Acquiror Stock (a "Stock Election") with
respect to all of such holder's Target Stock, (ii) cash (a "Cash
Election") with respect to all of such holder's Target Stock, or
(iii) a specified number of shares of Target Stock to receive
Acquiror Stock (a "Combination Stock Election") and a specified
number of shares of Target Stock to receive cash (a "Combination
Cash Election"). Any Target Stock (other than Target Dissenting
Shares) with respect to which the holder (or the beneficial owner,
as the case may be) shall not have submitted to the Exchange
Agent, an effective, properly completed Election Form received
prior to the Election Deadline shall be deemed to be "Undesignated
Shares" hereunder.
(b) Any Election shall have been properly made and effective only
if the Exchange Agent shall have actually received a properly
completed Election Form by 5:00 P.M. Pacific Time on or before the
30th day following the Mailing Date, or such other time and date
as Acquiror and Target may mutually agree (the "Election
Deadline"). An Election Form shall be deemed properly completed
only if an Election is indicated for each share of Target Stock
covered by such Election Form and if accompanied by one or more
certificates (or customary affidavits and indemnification
regarding the loss or destruction of such certificates or the
guaranteed delivery of such certificates) representing all shares
of Target Stock covered by such Election Form, together with duly
executed transmittal materials included in or required by the
Election Form. Any Election Form may be revoked or changed by the
person submitting such Election Form at or prior to the Election
Deadline. In the event an Election Form is revoked prior to the
Election Deadline, the shares of Target Stock represented by such
Election Form shall automatically become Undesignated Shares
unless and until a new Election is properly made with respect to
such shares on or before the Election Deadline, and Acquiror shall
cause the certificates representing such shares of Target Stock to
be promptly returned without charge to the person submitting the
revoked Election Form upon written request to that effect from the
holder who submitted such Election Form. Subject to the terms of
this Agreement and of the Election Form, the Exchange Agent shall
have reasonable discretion to determine whether any election,
7
revocation or change has been properly or timely made and to
disregard immaterial defects in the Election Forms, and any
decisions of Acquiror and Target required by the Exchange Agent
and made in good faith in determining such matters shall be
binding and conclusive. Neither Acquiror nor the Exchange Agent
shall be under any obligation to notify any person of any defect
in an Election Form.
(c) For purposes of this Section 2.7, the following definitions
shall apply:
(i) "Total Consideration" shall mean the sum of (A) the product of
(1) the Average Closing Price and (2) the number of shares of
Acquiror Stock actually issued to holders of Target Stock in the
Merger, (B) the amount of cash actually issued to holders of
Target Stock in the Merger pursuant to Cash Elections and
Combination Cash Elections, (C) the amount of cash actually issued
to holders of Target Stock in the Merger in lieu of fractional
shares of Acquiror Stock, and (D) an amount equal to the number of
shares of Target Dissenting Shares as to which the holder's demand
to exercise dissenter's rights shall not have been withdrawn as of
the Effective Time multiplied by the greater of (1) the product of
the Exchange Ratio and the Average Closing Price and (2) the Per
Share Cash Consideration.
(ii) "Minimum Stock Amount" shall mean the lowest whole number of
shares of Acquiror Stock which, if multiplied by the Average
Closing Price, results in a dollar amount at least equal to 60
percent of the Total Consideration.
(d) As promptly as practicable after the Effective Time, but not
later than 10 days after the Effective Time, Acquiror shall use
its best efforts to cause the Exchange Agent to effect the
allocation among the holders of Target Stock of rights to receive
Acquiror Stock or cash in the Merger as follows:
(i) If the conversion of the shares of Target Stock for which
Stock Elections and Combination Stock Elections shall have
effectively been made (based upon the Exchange Ratio) would not
result in a number of shares of Acquiror Stock being issued that
is at least equal to the Minimum Stock Amount (which shall be
determined for this purpose on the assumption that all shares of
Target Stock [other than (A) those for which Stock Elections or
Combination Stock Elections have been made or (B) are Undesignated
Shares] would be entitled to receive the Per Share Cash
Consideration), then, to the extent necessary so that the number
of shares of Acquiror Stock to be issued in the Merger shall be at
least equal to the Minimum Stock Amount, the Exchange Agent shall
make the following allocations and adjustments in the following
order:
(1) all shares of Target Stock (A) for which Stock Elections
and Combination Stock Elections have been made or (B) are
Undesignated Shares shall be converted into the right to
receive shares of Acquiror Stock equal to the product of the
Exchange Ratio multiplied by the number of
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shares of Target Common Stock covered by such Stock Elections
or Combination Stock Elections;
(2) the Exchange Agent shall select by lot according to the
formula as described in subsection (iv) of this Section
2.7(d), from among holders of Cash Election shares and
Combination Cash Election shares a sufficient number of such
shares ("Stock Designated Shares") until the number of shares
of Acquiror Stock that will be issued in the Merger upon the
conversion of such Stock Designated Shares equals the Minimum
Stock Amount, and all Stock Designated Shares shall be
converted into the right to receive Acquiror Stock equal to
the product of the Exchange Ratio multiplied by the number of
shares of Target Common Stock covered by such Stock
Designated Shares; and
(3) After completion of the foregoing selection process, the
Combination Cash Election shares and Cash Election shares not
treated as Stock Designated Shares shall be converted into
the right to receive the Per Share Cash Consideration.
(ii) If the sum of the aggregate number of shares of Target Stock
(A) for which Stock Elections and Combination Stock Elections
shall have effectively been made, and (B) are Undesignated Shares
would result in a number of shares of Acquiror Stock being issued
that is at least equal to the Minimum Stock Amount,
(1) the shares of Target Stock for which Stock Elections and
Combination Stock Elections have been made shall be converted
into the right to receive Acquiror Stock equal to the product
of the Exchange Ratio multiplied by the number of shares of
Target Common Stock covered by such Stock Elections and
Combination of Stock Elections;
(2) the shares of Target Stock for which Cash Elections and
Combination Cash Elections have been made shall be converted
into the right to receive the Per Share Cash Consideration;
and
(3) the Undesignated Shares shall be converted into the right
to receive Acquiror Stock equal to the product of the
Exchange Ratio multiplied by the number of shares of Target
Common Stock which are Undesignated Shares.
(iii) Notwithstanding any other provision of this Agreement, if,
after applying the allocation rules set forth in the preceding
subsections of this Section 2.7(d), the aggregate value of the
shares of Acquiror Stock that would be issued pursuant to the
Merger (valued at the Average Closing Price) is less than 60
percent of the Total Consideration, Acquiror shall be authorized
to reallocate shares of Acquiror Stock and cash among the holders
of the Target Stock, or to vary the number of
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shares of Acquiror Stock to be issued the Merger, in a manner such
that the number of shares of Acquiror Stock to be issued in the
Merger shall be not less than the Minimum Stock Amount as
described in Section 2.7(d)(iv).
(iv) If all the Undesignated Shares plus all shares as to which
Stock Elections and Combination Stock Elections have been made
together are less than the Minimum Stock Amount, then:
(A) a cash proration factor (the "Cash Proration Factor")
shall be determined by dividing the Minimum Stock Amount
(less the shares for which a Stock Election and Combination
Stock Election has been made, plus all the Undesignated
Shares) by the sum of the total number of shares of Target
Common Stock with respect to which Cash Elections and
Combination Cash Elections were made. Each holder of Target
Common Stock who made a Cash Election or Combination Cash
Election shall be entitled to:
(I) cash equal to the product of (x) the Per Share
Cash Consideration, multiplied by (y) the number of
shares of Target Common Stock covered by such Cash
Election or Combination Cash Election, multiplied by (z)
one minus the Cash Proration Factor; and
(II) the number of shares of Target Common Stock
equal to the product of (x) the Exchange Ratio,
multiplied by (y) the number of shares of Target Common
Stock covered by such Cash Election or Combination Cash
Election, multiplied by (z) the Cash Proration Factor.
(v) Notwithstanding any other provision of this Agreement, if,
after applying the allocation rules set forth in Section
2.7(d)(iv), the aggregate value of the Acquiror Common Stock that
would be issued pursuant to the Merger is less than the Minimum
Stock Amount to be paid in exchange for Target Common Stock,
Target and Acquiror shall be authorized to reallocate, in good
faith and in such a manner as they reasonably determine to be fair
and equitable, shares of Acquiror Common Stock and cash among the
holders of Target Common Stock, or to vary the number of shares of
Acquiror Common Stock to be issued in the Merger, in a manner such
that the number of shares of Acquiror Common Stock to be issued in
the Merger shall not be less than the Minimum Stock Amount.
(e) CALCULATIONS. The calculations required by Section 2.7(d)
shall be prepared by Acquiror prior to the Effective Time and
shall be set forth in a certificate executed by the Chief
Financial Officer of Acquiror and furnished to Target at least two
Business Days prior to the Effective Time showing the manner of
calculation in reasonable detail. Any calculation of a portion of
a share of
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Acquiror Common Stock shall be rounded to the nearest
ten-thousandth of a share, and any cash payment shall be rounded
to the nearest cent.
(v) Notwithstanding any other provision of this Agreement (other
than Section 2.7(d)(iii) hereof), if any share of Target
Dissenting Shares fails to become Target Perfected Dissenting
Shares, such Target Dissenting Shares shall automatically be
converted into and represent the right to receive Acquiror Stock
in accordance with the Exchange Ratio."
6. Section 3.12 of the Agreement is hereby amended in full as
follows:
"3.12 POOLING OF INTERESTS. Except as disclosed in the Acquiror's
Disclosure Letter, no event has occurred to the knowledge of
Acquiror or Bank or is reasonably foreseeable (including any
transaction contemplated by this Agreement) that would prevent the
Merger as being accounted for on a pooling of interests basis."
7. Section 4.28 of the Agreement is hereby amended in full as
follows:
"4.28 POOLING OF INTERESTS. Except as disclosed in the Target's
Disclosure Letter, no event has occurred to the knowledge of
Target or Target Bank or is reasonably foreseeable (including any
transaction contemplated by this Agreement) that would prevent the
Merger as being accounted for on a pooling of interests basis."
8. Section 5.3(a)(3) is hereby deleted.
9. Section 5.3(a)(7) is hereby amended in full as follows:
"(7) knowingly take or cause to be taken any action which would
disqualify the Merger and/or the Bank Merger as a "reorganization"
within the meaning of Section 368 of the Code."
10. Section 7.9 is hereby added to read as follows:
"7.9 ACCOUNTING TREATMENT. The Parties agree that certain
events may have occurred which will disqualify the Merger and
the other transactions contemplated hereby from being accounted
for on a "pooling of interest" basis. The Parties further agree
that it is their current intent that the Merger and the other
transactions contemplated hereby be accounted for as a
"purchase" under GAAP. If the Parties mutually agree to cure
all disqualifying events and such disqualifying events are in
fact cured prior to the Effective Time, the Merger and the
other transaction contemplated hereby will be accounted for on
a "pooling of interest" basis."
11. Section 8.1(h) is hereby amended in full as follows:
"(h) If Acquiror intends for the Merger and the other transactions
contemplated
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hereby to be accounted for as a "pooling of interest" pursuant to
Section 7.9, AA shall have delivered a written opinion to Target
and Acquiror that the Merger and the other transactions
contemplated hereby will qualify for pooling-of-interest
accounting treatment. In making its determination that the Merger
will qualify for such treatment, AA shall be entitled to assume
that cash will be paid with respect to all shares held of record
by any holder of Dissenting Shares. In connection with AA's
opinion, Vavrinek shall have delivered to AA its opinion that the
Target is a "poolable" entity under GAAP.
12. Section 10.1(g) is hereby amended in full as follows:
"(g) By Acquiror during the five trading day period preceding the
anticipated Effective Date, if the Average Closing Price is less
than $14.00 subject, however, to the following provisions. If
Acquiror elects to exercise its termination right pursuant to the
immediately preceding sentence, it shall give prompt written
notice to Target; provided that such notice may be withdrawn by
Acquiror at any time within two business days following the giving
of such notice by Acquiror to Target. If said notice is rescinded
by Acquiror during said two day period, no termination shall have
occurred pursuant to this subsection and this Agreement shall
remain in effect in accordance with its terms."
13. Sections 8.1(c), 10.1(b) and 10.1(c) are hereby amended by
deleting "September 30, 2001" and inserting in its place "October
31, 2001."
14. Capitalized terms used herein and not otherwise defined shall have
the same meaning as set forth in the Agreement.
15. This First 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.
16. Except as herein amended, the Agreement shall remain in full force
and effect.
17. This First Amendment shall be governed by and construed in
accordance with the laws of the State of California.
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WITNESS, the signature of Acquiror, as of the 24th day of May 2001, set
by its Chairman and attested to by its Assistant Secretary, pursuant to a
resolution of its Board of Directors, acting by at least a majority:
MID-STATE BANCSHARES
By: /s/ XXXXXX X. XXXXXX Attest: /s/ XXXXX X. XXXXXXX
--------------------------- ---------------------------
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxxx
Chairman of the Board Assistant Secretary
WITNESS, the signature of Mid-State Bank, as of the _____ day of May,
2001 set by its President and attested to by its Assistant Secretary, pursuant
to a resolution of its Board of Directors, acting by at least a majority:
MID-STATE BANK
By: /s/ XXXXX X. XXXXX Attest: /s/ XXXXX X. XXXXXXX
--------------------------- ---------------------------
Xxxxx X. Xxxxx Xxxxx X. Xxxxxxx
President Assistant Secretary
WITNESS, the signature of Americorp, as of the 24th day of May, 2001
set by its Chairman and attested to by its Secretary, pursuant to a resolution
of its Board of Directors, acting by at least a majority:
AMERICORP
By: /s/ XXXXXX X. XXXXXXXXXXX Attest: /s/ XXXXXX XXXX
--------------------------- ---------------------------
Xxxxxx X. Xxxxxxxxxxx Xxxxxx Xxxx
Chairman of the Board Secretary
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WITNESS, the signature of American Commercial Bank, as of the 24th day
of May, 2001 set by its President and attested to by its Secretary, pursuant to
a resolution of its Board of Directors, acting by at least a majority:
AMERICAN COMMERCIAL BANK
By: /s/ XXXXXX X. XXXXXXXXX Attest: /s/ XXXXXX XXXX
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Xxxxxx X. Xxxxxxxxx Xxxxxx Xxxx
President Secretary
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