EXHIBIT 2
BANK AND BANCORP
AMENDED AND RESTATED
PLAN OF REORGANIZATION
This Bank and Bancorp Amended and Restated Plan of
Reorganization ("Plan") is entered into by and between Temecula
Valley Bank, N.A., a national association ("Bank") and Temecula
Valley Bancorp Inc., a Delaware corporation ("Bancorp") on April
2, 2002 and replaces the original Plan of Reorganization dated
March 12, 2002.
1. Participating Entities / Terms and Conditions.
A. Bank is a banking corporation duly
organized, validly existing and doing business in good standing
under the laws of the United States and has authorized capital
of forty million (40,000,000) shares of one dollar twenty five
cents ($1.25) par value common stock;
B. Bancorp is a corporation duly organized,
validly existing and doing business in good standing under the
laws of Delaware, and has authorized capital of forty million
(40,000,000) shares of the one tenth of one cent ($0.001) par
value common stock; and
C. A majority of the entire Boards of Directors
of Bank and Bancorp, respectively, have approved this Plan and
authorized its execution.
D. At the Effective Time, as defined below, the
Share Exchange, as defined below, shall be effected as follows:
each issued and outstanding share of Bank common stock ("Bank
Common Stock") will be converted into and exchanged for a right
to receive one share of Bancorp Common Stock ("Bancorp Common
Stock"), except for shares of Bank Common Stock held by
Dissenting Bank Stockholders, as defined below.
E. Subject to the satisfaction of the
conditions set forth in this Plan, at the Effective Time, the
Bank will be a wholly-owned subsidiary of Bancorp. At the
Effective Time, the separate corporate existence, identity,
name, purposes, franchises, powers, rights and immunities of
Bank shall continue unaffected and unimpaired by the Share
Exchange.
2. Definitions.
As used in this Plan, the following terms have the
definitions indicated:
A. "Closing Date" has the meaning set forth in
Section 7.
B. "Dissenting Bank Stockholder" has the
meaning set forth in Section 4 hereof.
C. "Effective Date" means the business day upon
which the Effective Time falls.
D. "Effective Time" means 5 p.m. California
time, on the day when all of the conditions to the Share
Exchange have satisfied or waived, and the parties hereto then
agree to the Effective Time.
E. "Exchange Agent" means the Bank or an agent
acting on its behalf in such capacity.
F. "FRB" means the Federal Reserve Board.
G. "OCC" means the Office of the Comptroller of
the Currency.
H. "Share Exchange" means the transactions
described in Section 1.D.
I. "Stock Option Plans" means the Temecula
Valley Bank, National Association 1996 Incentive and
Nonqualified Stock Option Plan (Employees), as amended and the
Temecula Valley Bank, National Association 1997 Nonqualified
Stock Option Plan (Directors), as amended.
3. Other Definitions. The terms defined in Section
2 do not comprise all the defined terms contained in this Plan.
Capitalized terms not defined in Section 2 shall have the
meanings described elsewhere herein.
4. Dissenting Bank Stockholders.
A. Procedure. The parties agree to afford to
those stockholders of the Bank who opt to exercise their rights
of dissent, the rights specified in this Plan and those
specified in 12 U.S.C. Section 215a(b), as amended from time to
time and no others. A Bank stockholder may become a Dissenting
Bank Stockholder if such stockholder shall have:
(i) Voted against the Plan at the meeting
of stockholders (the "Meeting") called for the purpose of
obtaining stockholder approval of the Plan or delivered to
the Bank, at or before the Meeting, written notice of the
stockholder's dissent from the Plan; and
(ii) After receipt of notice of the date of
consummation and shall have at any time before thirty (30)
days after consummation of the Share Exchange made a
written request to the Bank accompanied by the surrender of
his or her stock certificates.
B. Limitation of Rights. A stockholder who
becomes a Dissenting Bank Stockholder shall thereafter have only
such rights as are provided such a stockholder in accordance
with 12 U.S.C. Section 215a and as specified in this Plan, and
shall have no other rights under this Plan or otherwise.
5. Effect of Share Exchange.
A. Share Exchange. As of the Effective Time of
the Share Exchange, by virtue of the Share Exchange and without
any action on the part of the holder of any shares of Bank
Common Stock, each outstanding certificate which previously
represented shares of Bank Common Stock (except shares held by
Dissenting Bank Stockholders) shall, until surrendered for
exchange, be deemed for all purposes to evidence only the right
to receive shares of Bancorp Common Stock in accordance with the
terms of this Plan. After the Effective Time, there shall be no
further registration of transfer on the records of Bank of
shares of Bank Common Stock. If a certificate representing
shares of Bank Common Stock is presented to the Bank, the
Exchange Agent or the Bancorp it shall be cancelled in exchange
for shares of Bancorp Common Stock or cash as herein provided.
B. Charter and Bylaws. The Articles of
Association of Bank as in effect immediately prior to the
Effective Date shall, at and after the Effective Date, be the
Articles of Association of the Bank, without change or amendment
(until amended or repealed as provided by law) and the Bylaws of
Bank as in effect immediately prior to the Effective Date shall,
at and after the Effective Date, be the Bylaws of the Bank,
without change or amendment (until amended or repealed as
provided by law).
C. Officer and Directors. On and after the
Effective Date, the directors and officers of Bank, immediately
prior to the Effective Date, shall be the directors and officers
of the Bank. Directors of the Bank shall serve until the next
annual meeting of stockholders of the Bank and until such time
as their successors are elected and have qualified.
D. Rights and Privileges. On and after the
Effective Date, all the rights, privileges, powers, franchises,
facilities and immunities, as well as all the properties, real,
personal and mixed, tangible and intangible, of Bank shall
continue unaffected and unimpaired by the Share Exchange.
E. Further Cooperation. If at any time after
the Effective Date any further conveyance, assignment or other
documents, or any further action is necessary or desirable to
further effectuate the transactions set forth herein or
contemplated hereby, the officers and directors of the parties
hereto shall execute and deliver, or cause to be executed and
delivered, all such documents as may be reasonably required to
effectuate such transactions.
F. Offices. Upon the Effective Date, all
offices of Bank shall continue to be offices of the Bank and the
principal office of Bank shall continue to be the principal
office of the Bank.
G. Rights to Stock Options. On and after the
Effective Date, all outstanding options to purchase shares of
Bank Common Stock granted pursuant to the Bank's Stock Option
Plans shall be assumed by and shall be deemed options to purchase
shares of Bancorp Common Stock on the same terms and conditions,
subject to the requirements of the Securities Act of 1933, as
amended, and the California law, and for the same number of
shares as have been agreed upon and set forth in Bank's Stock
Option Plans and stock option agreements entered into pursuant
thereto.
H. Warrant Shares. Warrants to purchase Bank
Common Stock which are outstanding immediately before the
Effective Time shall upon the Effective Time and without any
further action on the part of the holders thereof or the parties
hereto be exchanged for, converted into and be deemed warrants
issued by the Bancorp with the same terms and conditions and to
purchase the same number of shares of Bank Common Stock as the
warrants issued and outstanding immediately prior to the
Effective Time.
6. Exchange Process For Stockholders Other Than
Dissenting Bank Stockholders. As soon as practical after the
Effective Time, the Exchange Agent will send a letter of
transmittal, the terms of which shall be acceptable to the
parties hereto, to each holder of a certificate theretofore
evidencing Bank Common Stock (except for Dissenting Bank
Stockholders), advising such holder of the terms of the exchange
effected by the Share Exchange and the procedure for
surrendering to the Exchange Agent such certificate or
certificates for exchange into stock or cash, as the case may
be. Upon surrender of certificates theretofore evidencing
shares of Bank Common Stock to the Exchange Agent in accordance
with such letter of transmittal, each such holder shall be
entitled to receive in exchange therefore the amount of cash or
stock called for under the terms of this Plan. The Exchange
Agent may withhold delivery of cash or stock to any Bank
stockholder who has not delivered his or her certificates for
exchange along with a duly completed letter of transmittal.
7. The Closing. The Closing of the transactions
contemplated herein shall take place at the main office of Bank
at 10:00 a.m., local time (or at such other place and time as
the parties may mutually agree upon), on a date (the "Closing
Date") determined by the parties, which date shall be within
sixty (60) days following the date upon which all approvals,
consents and authorizations are obtained and all applicable
waiting periods have lapsed (the "Closing"). At the Closing and
on the Closing Date, the parties shall deliver, or cause to be
delivered, the documents necessary to effect a closing.
8. Conditions to Closings. The mutual obligations
of the parties to proceed with the Share Exchange are subject to
fulfillment, at or prior to the Effective Time of the conditions
set forth in this Section 8.
A. Regulatory Approvals. Appropriate permits
or approvals from the FRB, the OCC and any other governmental
agencies which are necessary to carry out the transactions
contemplated in this Plan shall have been received, including
but not limited to approval from the FRB for Bancorp to become
the holding company of the Bank as a result of the effectuation
of the Share Exchange and from the OCC for the Bank to engage in
the Share Exchange.
B. Shareholder Approval. This Plan shall have
been approved by the holders of record of at least two thirds
(2/3) of the issued and outstanding shares of Bank Common Stock.
C. Rights of Dissenting Shareholders. Any
stockholder of the Bank who has voted against the Plan at the
Meeting, or has given notice in writing at or prior to the
Meeting to the presiding officer that he or she dissents from the
Plan, shall be entitled to receive the value of the shares so
held by him or her when the Plan shall be approved by the
Comptroller upon written request made to the Bancorp at any time
before thirty (30) days after the date of consummation of the
Share Exchange, accompanied by the surrender of his or her stock
certificates. The value of the shares of any dissenting
stockholder shall be determined in accordance with the provisions
of 12 U.S.C. Section 215a.
D. Performance. Each of the acts and
undertakings of the Bank and Bancorp to be performed on or
before the Effective Date pursuant to the terms hereof shall
have been duly performed in all material respects.
E. Opinion. Issuance (unless the same is waived
by the parties hereto) of a favorable opinion from a law firm or
accounting firm, in form and substance satisfactory to the
parties and their counsel, with respect to the tax consequences
to the parties and their stockholders resulting from the Share
Exchange.
F. No Violation. The Share Exchange shall not
violate any order, decree or judgment of any court or
governmental body having competent jurisdiction and no law, rule
or regulation shall have been adopted, by any such body,
prohibiting or enjoining the actions contemplated by this Plan
or which would, in the reasonable judgment of either party,
substantially lessen the benefits of the transactions
contemplated hereby.
G. No Orders. No order of any court is entered
which, in the reasonable opinion of either party, renders it
impossible or inadvisable for either party to consummate the
transactions contemplated hereby.
9. Termination.
A. Events of Termination. The Plan may be
terminated at any time upon the occurrence of any of the
following events:
(i) If any of the conditions set forth in
Article 8 are not fulfilled within a reasonable period of
time, such reasonable period of time to be determined by a
majority of the Board of Directors of either of the parties,
in their sole and absolute discretion; or
(ii) If any action, suit, proceeding or claim
has been instituted, made or threatened, relating to this
Plan or the proposed Share Exchange which makes consummation
of the Share Exchange inadvisable in the opinion of a
majority of the Board of Directors of either of the parties;
or
(iii) If for any reason consummation of the
Share Exchange is inadvisable in the opinion of a majority
of the Board of Directors of either of the parties.
B. Mandatory Termination. The Plan shall be
terminated in the event holders of shares perfect their
dissenters rights of appraisal pursuant to 12 U.S.C. Section 215a
in an amount that the Board of Directors of either party
determines, in its sole discretion, is detrimental to the capital
levels of either party.
Upon termination, this Plan shall be void and of no
further effect, and there shall be no liability by reason of this
Plan or the termination thereof on the part of the parties hereto
or their respective directors, officers, employees, agents or
stockholders.
10. Amendment. Bank and Bancorp, by mutual consent
of their respective Boards of Directors, to the extent permitted
by law, may amend, modify, supplement and interpret this Plan in
such manner as may be mutually agreed upon by them in writing at
any time before or after adoption thereof by stockholders of
Bank; provided, however, that no such amendment, modification or
supplement shall change any principal term hereof or the number
or kind of shares to be issued by Bancorp in exchange for each
share of Bank, except (i) by the affirmative action of such
stockholders as required by law or (ii) the initial approval of
this Plan by the Bank's stockholders shall be deemed to include
approval of such changes to this Plan, if any, as may be required
from time to time by any bank regulatory agency or department.
11. Governing Law. This Plan is made and entered
into in the State of California, and the laws of said State
shall govern the validity and interpretation hereof, and the
performance of the parties hereto and their respective duties
and obligations hereunder except as required by applicable
provisions of Title 12 of the United States Code and the laws,
rules and regulations issued thereunder within the jurisdiction
of the OCC and the FRB.
12. Assignment. This Plan may not be assigned by
either party without the prior written consent of the other
party and any attempted assignment in violation of this section
is void.
13. Successors and Assigns. This Plan shall be
binding upon and inure to the benefit of, and be enforceable by,
the parties hereto and their respective successors and assigns.
14. Entire Plan. This Plan together with any
schedules or exhibits hereto contains all of the agreements of
the parties to it with respect to the matters contained herein
and no prior or contemporaneous agreement or understanding, oral
or written, pertaining to any such matters shall be effective
for any purpose.
15. Headings. The headings of this Plan are for
purposes of reference only and shall not limit or define the
meaning of the provisions of this Plan.
16. Severability. If any paragraph, section,
sentence, clause or phrase contained in this Plan shall become
illegal, null or void or against public policy, for any reason,
or shall be held by any court of competent jurisdiction to be
illegal, null or void or against public policy, the remaining
paragraphs, sections, sentences, clauses or phrases contained in
this Plan shall not be affected thereby.
17. Singular and Plural. Whenever the context of
this Plan so requires, the singular includes the plural, the
plural includes the singular, and the whole includes any part
thereof.
18. Third Parties. Except as may be specifically
provided herein, nothing in this Plan, whether expressed or
implied, is intended to confer any rights or remedies under or
by reason of this Plan on any persons other than the parties to
it and their respective successors and assigns, nor is anything
in this Plan intended to relieve or discharge the obligation or
liability of any third persons to any party to this Plan, nor
shall any provision give any third persons any right of
subrogation or action over against any party to this Plan.
19. Expenses. All of the expenses of the Share
Exchange, including filing fees, printing and mailing costs, and
accountants' fees and legal fees shall be borne by the Bank or
the Bancorp, as applicable.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties to this Plan have
duly executed this Plan as of the day and year first above
written.
TEMECULA VALLEY BANK, N.A.
By: /S/ STEHEN H. WACKNITZ
Xxxxxxx X. Xxxxxxxx
President and Chief Executive
Officer
TEMECULA VALLEY BANCORP INC.
By: /S/ XXXXXXX X. XXXXXXXX
Xxxxxxx X. Xxxxxxxx
President and Chief Executive
Officer
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