EXECUTION COPY Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION ("Reorganization Agreement" or
"Agreement"), dated as of July 30, 2002, by and among VIB CORP ("Seller"), a
California corporation having its principal executive office at 0000 Xxxx
Xxxxxx, Xx Xxxxxx, Xxxxxxxxxx 00000, COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., RABOBANK NEDERLAND ("Purchaser"), a cooperative
bank organized under the laws of The Netherlands having its registered office in
Amsterdam, The Netherlands, and UTRECHT-AMERICA ACQUISITION CORP. I ("Merger
Sub"), a California corporation having its principal executive office at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WITNESSETH
WHEREAS, the parties hereto desire that Seller shall be acquired by
Purchaser through the merger ("Merger") of Merger Sub with and into Seller, with
Seller as the surviving corporation ("Surviving Corporation"), pursuant to an
Agreement and Plan of Merger substantially in the form attached hereto as Annex
A ("Plan of Merger"); and
WHEREAS, the parties hereto desire to provide for certain undertakings,
conditions, representations, warranties and covenants in connection with the
transactions contemplated hereby;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained and intending to be
legally bound hereby, the parties hereto do hereby agree as follows:
DEFINITIONS
1.1 "Agreement" is defined in the preamble hereto.
1.2 "Advisory Board" is defined in Section 4.11 hereof.
1.3 "Bank Holding Company Act" shall mean the Bank Holding Company Act
of 1956, as amended.
1.4 "CADFI" shall mean the California Department of Financial
Institutions.
1.5 "Claim" is defined in Section 4.9(b) hereof.
1.6 "Closing Date" shall mean the date specified pursuant to Section 4.8
hereof as the date on which the parties hereto shall close the transactions
contemplated herein.
1.7 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.8 "Commission" or "SEC" shall mean the Securities and Exchange
Commission.
1.9 "Confidentiality Agreement" is defined in Section 4.5 hereof.
1.10 "Covered Parties" is defined in Section 4.9(c) hereof.
1.11 "DPC Shares" is defined in the Plan of Merger.
1.12 "Effective Date" shall mean the date specified pursuant to Section
4.8 hereof as the effective date of the Merger.
1.13 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
1.14 "ERISA Affiliate" is defined in Section 2.13(a) hereof.
1.15 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
1.16 "FDIA" shall mean the Federal Deposit Insurance Act.
1.17 "FDIC" shall mean the Federal Deposit Insurance Corporation.
1.18 "Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System.
1.19 "Indemnified Parties" is defined in Section 4.9(b) hereof.
1.20 "Insurance Amount" is defined in Section 4.9(d) hereof.
1.21 "Intellectual Property" means domestic and foreign letters patent,
patents, patent applications, patent licenses, software licensed or owned,
know-how licenses, trade names, common law and other trademarks, service marks,
licenses of trademarks, trade names and/or service marks, trademark
registrations and applications, service xxxx registrations and applications and
copyright registrations and applications.
1.22 "KBW" is defined in Section 2.17 hereof.
1.23 "Material Adverse Effect" shall mean, with respect to Seller or
Purchaser, as the case may be, a material adverse effect on the business,
prospects, results of operations or financial condition of such party and any
Subsidiary of such party taken as a whole or a material adverse effect on such
party's ability to consummate the transactions contemplated hereby; provided,
however, that in determining whether a Material Adverse Effect has occurred
there shall be excluded any effect on the referenced party the cause of which is
(i) any change in banking or similar laws, rules or regulations of general
applicability or interpretations thereof by courts or governmental authorities;
(ii) any change in generally accepted accounting principles or regulatory
accounting
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requirements applicable to banks or their holding companies, generally with
respect to clause (i) or (ii), to the extent that a change does not materially
affect the referenced party to a materially different extent than other
similarly situated banking organizations; and (iii) any action or omission of
Seller or Purchaser or any Subsidiary of either of them taken with the prior
written consent of Purchaser or Seller, as applicable, in contemplation of the
Merger.
1.24 "Merger" is defined in the recitals hereto.
1.25 "Merger Consideration" is defined in the Plan of Merger.
1.26 "Merger Sub" is defined in the preamble to this Agreement.
1.27 "Nasdaq" shall mean the Nasdaq Stock Market.
1.28 "Plan of Merger" is defined in the recitals hereto.
1.29 "Previously Disclosed" shall mean disclosed prior to the execution
hereof in a letter dated of even date herewith from the party making such
disclosure and delivered to the other parties prior to the execution hereof.
1.30 "Proxy Statement" shall mean the proxy statement (or similar
documents) together with any supplements thereto sent to the shareholders of
Seller to solicit their votes in connection with this Agreement and the Plan of
Merger.
1.31 "Purchaser" is defined in the preamble to this Agreement.
1.32 "Purchaser Plan" is defined in Section 4.9(a) hereof.
1.33 "Rights" shall mean warrants, options, rights, convertible
securities and other arrangements or commitments which obligate an entity to
issue or dispose of any of its capital stock, and stock appreciation rights,
performance units and other similar stock-based rights whether they obligate the
issuer thereof to issue stock or other securities or to pay cash.
1.34 "Rights Agreement" shall mean the Preferred Shares Rights
Agreement, dated August 14, 2001, between Seller and U.S. Stock Transfer
Corporation, as rights agent.
1.35 "Reorganization Agreement" is defined in the preamble to this
Agreement.
1.36 "SEC Documents" shall mean all reports and registration statements
filed, or required to be filed, by a party hereto pursuant to the Securities
Laws.
1.37 "Securities Act" shall mean the Securities Act of 1933, as amended.
1.38 "Securities Laws" shall mean the Securities Act; the Exchange Act;
the Investment Company Act of 1940, as
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amended; the Investment Advisers Act of 1940, as amended; the Trust Indenture
Act of 1939, as amended; and the rules and regulations of the Commission
promulgated thereunder.
1.39 "Seller" is defined in the preamble to this Agreement.
1.40 "Seller Bank" shall mean Valley Independent Bank.
1.41 "Seller Common Stock" is defined in Section 2.1 hereof.
1.42 "Seller Financial Statements" shall mean (i) the consolidated
balance sheets of Seller as of March 31, 2002 and as of December 31, 2001 and
2000 and the related consolidated statements of income and expense, cash flows
and shareholders' equity (including related notes, if any) for the three months
ended March 31, 2002 and each of the three years ended December 31, 2001, 2000
and 1999, respectively, as filed by Seller in SEC Documents; (ii) the
consolidated balance sheets of Seller and related consolidated statements of
income and expense, cash flows and changes in shareholders' equity (including
related notes, if any) as filed by Seller in SEC Documents with respect to any
periods ended subsequent to March 31, 2002; and (iii) the consolidated balance
sheets of Seller and related consolidated statements of income and expense, cash
flows and changes in shareholders' equity (including related notes, if any) with
respect to the period ended June 30, 2002, as provided by Seller to Purchaser
prior to the date hereof.
1.43 "Seller Plan" is defined in Section 2.13(a) hereof.
1.44 "Seller Preferred Stock" is defined in Section 2.1 hereof.
1.45 "Subsidiary" or "Subsidiaries" shall mean with respect to any
party, any bank, corporation, partnership or other organization, whether
incorporated or unincorporated, which is consolidated with such party for
financial reporting purposes.
1.46 "Surviving Corporation" is defined in the recitals hereto.
1.47 "Takeover Laws" is defined in Section 2.24 hereof.
1.48 "Takeover Proposal" is defined in Section 4.7(b)(xiv) hereof.
1.49 "Tax," collectively, "Taxes," shall mean all taxes, however
denominated, including any interest, penalties, criminal sanctions or additions
to tax (including, without limitation, any underpayment penalties for
insufficient estimated tax payments) or other additional amounts that may become
payable in respect thereof (or in respect of a failure to file any Tax Return
when and as required), imposed by any federal, state, local or foreign
government or any agency or political subdivision of any such government, which
taxes shall include, without limiting the generality of the foregoing, all
income taxes, payroll and employment taxes, withholding taxes (including
withholding taxes in connection with amounts paid or owing to any employee,
independent contractor, creditor, shareholder or other person or entity),
unemployment insurance taxes, social security (or similar) taxes, sales and use
taxes, excise taxes, franchise taxes, gross receipts taxes, occupation taxes,
real and personal property taxes, stamp taxes, value
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added taxes, transfer taxes, profits or windfall profits taxes, licenses in the
nature of taxes, estimated taxes, severance taxes, duties (custom and others),
workers' compensation taxes, premium taxes, environmental taxes (including taxes
under Section 59A of the Code), disability taxes, registration taxes,
alternative or add-on minimum taxes, estimated taxes, and other fees,
assessments, charges or obligations of the same or of a similar nature.
1.50 "Tax Return," collectively, "Tax Returns," shall mean all returns,
reports, estimates, information statements or other written submissions, and any
schedules or attachments thereto, required or permitted to be filed pursuant to
the statutes, rules and regulations of any federal, state, local or foreign
government Tax authority, including, but not limited to, original returns and
filings, amended returns, claims for refunds, information returns and accounting
method change requests.
1.51 "Termination Fee" is defined in Section 6.2(b) hereof.
1.52 "Trust Account Shares" is defined in the Plan of Merger.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser and Merger Sub as
follows:
2.1. CAPITAL STRUCTURE OF SELLER
The authorized capital stock of Seller consists of (i) 10,000,000 shares
of preferred stock, no par value ("Seller Preferred Stock"), none of which is
issued and outstanding; and (ii) 125,000,000 shares of common stock, no par
value ("Seller Common Stock"), 13,585,838 shares of which are issued and
outstanding and no shares of which are held in treasury. As of the date hereof,
no shares of Seller Preferred Stock or Seller Common Stock are reserved for
issuance, except that (i) 1,076,960 shares of Seller Common Stock are reserved
for issuance upon the exercise of stock options heretofore granted under the
Seller Plans (as contemplated in Section 2.13(a)); and (ii) 200,000 shares of
Seller Preferred Stock are reserved for issuance upon the exercise of the rights
distributed to the holders of Seller Common Stock pursuant to the Rights
Agreement. All outstanding shares of Seller Common Stock have been duly
authorized and validly issued and are fully paid and nonassessable. Seller does
not have and is not bound by any Rights which are authorized, issued or
outstanding with respect to the capital stock of Seller except as set forth
above. None of the shares of Seller's capital stock has been issued in violation
of the preemptive rights of any person.
2.2. ORGANIZATION, STANDING AND AUTHORITY OF SELLER
Seller is a duly organized corporation, validly existing and in good
standing under the laws of the State of California with full corporate power and
authority to carry on its business as now conducted and is duly licensed or
qualified to do business in the states of the United States and foreign
jurisdictions where its ownership or leasing of property or the conduct of its
business requires such qualification, except where the failure to be so
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licensed or qualified would not have a Material Adverse Effect on Seller. Seller
is registered as a bank holding company under the Bank Holding Company Act.
2.3. OWNERSHIP OF SELLER SUBSIDIARIES; CAPITAL STRUCTURE OF SELLER
SUBSIDIARIES
As of the date hereof, Seller does not own, directly or indirectly, five
percent (5%) or more of the outstanding capital stock or other voting securities
of any corporation, bank or other organization except the Seller Subsidiaries
and as Previously Disclosed. Seller has Previously Disclosed to Purchaser a list
of all of the Seller Subsidiaries, including a summary description of each
Subsidiary's activities and the authority under which each Subsidiary is held by
Seller. Except as Previously Disclosed, the outstanding shares of capital stock
or other equity interests of each Seller Subsidiary have been duly authorized
and validly issued and are fully paid and (except as provided by applicable law)
nonassessable, and all such shares or equity interests are directly or
indirectly owned by Seller free and clear of all liens, claims and encumbrances.
No Seller Subsidiary has or is bound by any Rights which are authorized, issued
or outstanding with respect to the capital stock or other equity interests of
any Seller Subsidiary and, except as Previously Disclosed, there are no
agreements, understandings or commitments relating to the right of Seller to
vote or to dispose of such shares. None of the shares of capital stock or other
equity interests of any Seller Subsidiary has been issued in violation of the
preemptive rights of any person.
2.4. ORGANIZATION, STANDING AND AUTHORITY OF SELLER SUBSIDIARIES
Each Seller Subsidiary is a duly organized corporation, banking
association or other organization, validly existing and in good standing under
applicable laws. Each Seller Subsidiary (i) has full power and authority to
carry on its business as now conducted; and (ii) is duly licensed or qualified
to do business in the states of the United States and foreign jurisdictions
where its ownership or leasing of property or the conduct of its business
requires such licensing or qualification, except where failure to be so licensed
or qualified would not have a Material Adverse Effect on Seller. Each Seller
Subsidiary has all federal, state, local and foreign governmental authorizations
necessary for it to own or lease its properties and assets and to carry on its
business as it is now being conducted, except where the failure to be so
authorized would not have a Material Adverse Effect on Seller. Seller Bank is a
member in good standing of the Federal Home Loan Bank of San Francisco and owns
the requisite amount of shares therein.
2.5. AUTHORIZED AND EFFECTIVE AGREEMENT
(a) Seller has all requisite corporate power and authority to enter
into and perform all of its obligations under this Reorganization Agreement and
the Plan of Merger. The execution and delivery of this Reorganization Agreement
and the Plan of Merger and the consummation of the transactions contemplated
hereby and thereby have been duly and validly authorized by all necessary
corporate action in respect thereof on the part of Seller, except for the
affirmative vote of the holders of a majority of the outstanding shares of
Seller Common Stock entitled to vote thereon, which is the only
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shareholder vote required to approve the Plan of Merger pursuant to the
California General Corporation Law and Articles of Incorporation, as amended,
and Bylaws of Seller. The Board of Directors of Seller has directed that this
Agreement and the Plan of Merger be submitted to shareholders of Seller for
approval at a special meeting to be held as soon as practicable.
(b) Assuming the accuracy of the representation contained in Section
3.2(b) hereof, this Reorganization Agreement and the Plan of Merger constitute
legal, valid and binding obligations of Seller, enforceable against it in
accordance with their respective terms, subject as to enforceability, to
bankruptcy, insolvency and other laws of general applicability relating to or
affecting creditors' rights, to the supervisory and enforcement powers of
applicable regulatory agencies, and to general equity principles.
(c) Neither the execution and delivery of this Reorganization
Agreement or the Plan of Merger, nor consummation of the transactions
contemplated hereby or thereby, nor compliance by Seller with any of the
provisions hereof or thereof shall (i) conflict with or result in a breach of
any provision of the articles or certificate of incorporation or association,
charter or bylaws of Seller or any Seller Subsidiary; (ii) assuming the consents
and approvals contemplated by Section 4.3 hereof are duly obtained, constitute
or result in a breach of any term, condition or provision of, or constitute a
default under, or give rise to any right of termination, cancellation or
acceleration with respect to, or result in the creation of any lien, charge or
encumbrance upon any property or asset of Seller or any Seller Subsidiary
pursuant to, any note, bond, mortgage, indenture, license, agreement or other
instrument or obligation; or (iii) assuming the consents and approvals
contemplated by Section 4.3 hereof and the consents and approvals which are
Previously Disclosed are duly obtained, violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Seller or any Seller
Subsidiary, except (in the case of clauses (ii) and (iii) above) for such
violations, rights, conflicts, breaches, creations or defaults which, either
individually or in the aggregate, would not have a Material Adverse Effect on
Seller.
(d) Other than as contemplated by Section 4.3 hereof, no consent,
approval or authorization of, or declaration, notice, filing or registration
with, any governmental or regulatory authority, or any other person, is required
to be made or obtained by Seller or any Seller Subsidiary on or prior to the
Closing Date in connection with the execution, delivery and performance of this
Agreement and the Plan of Merger or the consummation of the transactions
contemplated hereby or thereby. As of the date hereof, Seller is not aware of
any reason that the condition set forth in Section 5.1(b) of this Agreement,
including the proviso thereto, would not be satisfied.
2.6. SEC DOCUMENTS; REGULATORY FILINGS
Seller has filed all SEC Documents required by the Securities Laws and
such SEC Documents complied, as of their respective dates, in all material
respects with the Securities Laws. Seller and each Seller Subsidiary has filed
all reports required by statute or regulation to be filed with any federal or
state bank regulatory agency, except where the failure to so file would not have
a Material Adverse Effect on Seller, and such reports
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were prepared in accordance with the applicable statutes, regulations and
instructions in existence as of the date of filing of such reports in all
material respects.
2.7. FINANCIAL STATEMENTS; BOOKS AND RECORDS; MINUTE BOOKS
The Seller Financial Statements filed by Seller in SEC Documents prior
to the date of this Agreement fairly present, and the Seller Financial
Statements filed by Seller after the date of this Agreement shall fairly
present, the consolidated financial position of Seller and its consolidated
Subsidiaries as of the dates indicated and the consolidated income, changes in
shareholders' equity and cash flows of Seller and its consolidated Subsidiaries
for the periods then ended, and each such financial statement has been or shall
be, as the case may be, prepared in conformity with generally accepted
accounting principles applicable to financial institutions applied on a
consistent basis except as disclosed therein and except, in the case of
unaudited statements, as permitted by Form 10-Q. The books and records of Seller
and each Seller Subsidiary fairly reflect in all material respects the
transactions to which it is a party or by which its properties are subject or
bound. Such books and records have been properly kept and maintained and are in
compliance with all applicable legal and accounting requirements in all material
respects. The minute books of Seller and each Seller Subsidiary contain records,
which are accurate in all material respects of all corporate actions of the
shareholders and Board of Directors (including committees of its Board of
Directors) of Seller or applicable Seller Subsidiaries.
2.8. MATERIAL ADVERSE CHANGE
Seller has not, on a consolidated basis, suffered any change in its
financial condition, results of operations or business or prospects since June
30, 2002, which individually or in the aggregate with any other such changes
would constitute a Material Adverse Effect with respect to Seller.
2.9. ABSENCE OF UNDISCLOSED LIABILITIES
Neither Seller nor any Seller Subsidiary has any liability (contingent
or otherwise), excluding contractually assumed contingencies, that would have a
Material Adverse Effect on Seller, or that, when combined with all similar
liabilities, would have a Material Adverse Effect on Seller, except as disclosed
in the Seller Financial Statements filed with the SEC prior to the date hereof
and except for liabilities incurred in the ordinary course of business
subsequent to June 30, 2002.
2.10. PROPERTIES
Seller and the Seller Subsidiaries have good and marketable title free
and clear of all liens, encumbrances, charges, defaults or equitable interests
to all of the properties and assets, real and personal, which, individually or
in the aggregate, are material to the business of Seller and its Subsidiaries
taken as a whole, and which are reflected on the Seller Financial Statements as
of June 30, 2002, or acquired after such date, except (i) liens for Taxes not
yet due and payable; (ii) pledges to secure deposits and other liens
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incurred in the ordinary course of banking business; (iii) such imperfections of
title, easements and encumbrances, if any, as are not material in character,
amount or extent; and (iv) dispositions and encumbrances for adequate
consideration in the ordinary course of business. All leases pursuant to which
Seller or any Seller Subsidiary, as lessee, leases real and personal property
which, individually or in the aggregate, are material to the business of Seller
and its Subsidiaries, taken as a whole, are valid and enforceable in accordance
with their respective terms, except where the failure of such lease or leases to
be valid and enforceable would not, individually or in the aggregate, have a
Material Adverse Effect on Seller. All tangible property used in the business of
Seller and its Subsidiaries is in good condition, reasonable wear and tear
excepted, and is usable in the ordinary course of business consistent with
Seller's and Seller Subsidiaries' past practices.
2.11. LOANS
(a) Each loan reflected as an asset in the Seller Financial
Statements (i) is evidenced by notes, agreements or other evidences of
indebtedness which are true, genuine and what they purport to be; (ii) to the
extent secured, has been secured by valid liens and security interests which
have been perfected; and (iii) is the legal, valid and binding obligation of the
obligor named therein, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles, in each case, other than loans as to which the failure to satisfy
the foregoing standards, individually or in the aggregate, would not have a
Material Adverse Effect on Seller.
(b) The allowance for loan losses reflected on the Seller Financial
Statements, as of their respective dates, is in all material respects consistent
with the requirements of generally accepted accounting principles to provide for
reasonably anticipated losses with respect to Seller's loan portfolio based upon
information reasonably available at the time.
2.12. TAX MATTERS
(a) Seller and each Seller Subsidiary have timely filed federal
income Tax Returns for each year through December 31, 2001 and have timely
filed, or caused to be filed, all other Tax Returns required to be filed with
respect to Seller or any Seller Subsidiary, except where the failure to file
timely such federal income and other Tax Returns would not, individually or in
the aggregate, have a Material Adverse Effect on Seller. All Taxes due by or on
behalf of Seller or any Seller Subsidiary on or before the Closing Date have
been paid or adequate reserves have been established on the Seller Financial
Statements for the payment of such Taxes, except where any such failure to pay
or establish adequate reserves would not, individually or in the aggregate, have
a Material Adverse Effect on Seller. Neither Seller nor any Seller Subsidiary
shall have any liability for any such Taxes in excess of the amounts so paid or
reserves or accruals so established except where such liability would not have a
Material Adverse Effect on Seller.
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(b) All Tax Returns filed by Seller and each Seller Subsidiary were
true, correct, complete and accurate in all material respects when and as filed
and are final. Neither Seller nor any Seller Subsidiary is delinquent in the
payment of any material Tax, and none of Seller or any Seller Subsidiaries has
requested any extension of time within which to file any Tax Returns which have
not since been filed. Except as fully settled and paid or accrued on the Seller
Financial Statements, Seller has not received written notice of any audit
examination, deficiency, adjustment, refund claim or litigation with respect to
Tax Returns, paid Taxes, unpaid Taxes or Tax attributes of Seller or any Seller
Subsidiary, and no proceeding with respect thereto is underway. There are
currently no agreements in effect with respect to Seller or any Seller
Subsidiary to extend the period of limitations for the assessment or collection
of any Tax.
(c) Neither the transactions contemplated hereby nor the
termination of the employment of any employees of Seller or any Seller
Subsidiary prior to or following consummation of the transactions contemplated
hereby shall result in Seller or any Seller Subsidiary (or any successor
thereof) making or being required to make any "excess parachute payment" as that
term is defined in Section 280G of the Code.
(d) Except as Previously Disclosed, neither Seller nor any Seller
Subsidiary is a party to any agreement (other than an agreement exclusively
among Seller and the Seller Subsidiaries) providing for the allocation or
sharing of, or indemnification for, Taxes.
(e) Neither Seller nor any Seller Subsidiary is required to include
in income any adjustment pursuant to Section 481(a) of the Code in any taxable
period ending after the date hereof.
(f) Neither Seller nor any Seller Subsidiary has executed or
entered into any written agreement with any Tax authority conceding or agreeing
to any treatment of Taxes or Tax attributes, including, without limitation, an
Internal Revenue Service Form 870 or Form 870-AD, closing agreement or special
closing agreement, affecting the Seller or any Seller Subsidiary pursuant to
Section 7121 of the Code or any predecessor provision thereof or any similar
provision of state, local or foreign law, which agreement would have a material
impact on the calculation of the Taxes of Purchaser or any Purchaser Subsidiary
after the Effective Date.
(g) No written position has been taken on any Tax Return with
respect to the business or operations of Seller for a taxable year for which the
statute of limitations for the assessment of any Taxes with respect thereto has
not expired that is contrary to any publicly announced position of a taxing
authority.
(h) Neither Seller nor any Seller Subsidiary has sponsored,
promoted, marketed or entered into any transaction that is a "tax shelter"
within the meaning of any provision of the Code or regulations issued
thereunder.
(i) All Taxes that Seller is required by law to withhold or
collect, including sales and use taxes, and amounts required to be withheld for
Taxes of
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employees and other withholding taxes, have been duly withheld or collected and,
to the extent required, have been paid over to the proper taxing authority or
are held in separate bank accounts for such purpose; and all document retention,
information gathering and information reporting requirements related to any such
Taxes have been complied with in accordance with all applicable provisions of
the Code and the regulations issued thereunder.
(j) Seller is not, and has not been, a United States real property
holding corporation (as defined in Section 897(c)(2) of the Code) during the
applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(k) There are no Tax liens (other than for Taxes not yet due and
payable) upon the properties or assets of Seller.
(l) Each asset with respect to which Seller claims depreciation or
amortization or similar expense for Tax purposes is owned by Seller for Tax
purposes. None of the assets of Seller are required to be, or are being,
depreciated under the alternative depreciation system prescribed by Section
168(g)(2) of the Code or subject to Section 168(f) of the Code. None of the
assets of Seller is property which Purchaser or Seller is required to treat as
"tax exempt use property," within the meaning of Section 168(h) of the Code.
Seller has not issued any "industrial revenue bonds," within the meaning of
Section 103 of the Code, or "private activity bonds," within the meaning of
Section 141 of the Code, or other tax-exempt financing in order to finance the
assets of Seller, whether leased or owned.
(m) For purposes of this Section 2.12, (i) references to Seller and
any Seller Subsidiary shall include predecessors thereof; and (ii) "Seller
Subsidiary" shall include each Subsidiary (as defined in Article 1 hereof) of
Seller, and each corporation, partnership, limited liability company, joint
venture or other entity which Seller controls directly or indirectly (through
one or more intermediaries). For purposes of the previous sentence, "control"
means the possession, direct or indirect, of the power either (1) to vote fifty
percent (50%) or more of the voting interests of a corporation, partnership,
limited liability company, joint venture or other entity, or (2) to direct or
cause the direction of the management and policies of a corporation,
partnership, limited liability company, joint venture or other entity, whether
by contract or otherwise.
2.13. EMPLOYEE BENEFIT PLANS
(a) Seller has Previously Disclosed a true and complete list of all
Seller Plans. For purposes of this Section 2.13, the term "Seller Plan" means
each bonus, deferred compensation, incentive compensation, stock purchase, stock
option, severance pay, medical, life or other insurance, profit-sharing, or
pension plan, program, agreement or arrangement, and each other employee benefit
plan, program, agreement or arrangement, sponsored, maintained or contributed to
or required to be contributed to by Seller or by any trade or business, whether
or not incorporated, that together with Seller would be deemed a "single
employer" under Section 414 of the Code (an "ERISA Affiliate") for the benefit
of any employee or director or former employee or former
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director of Seller or any ERISA Affiliate, whether formal or informal, and
whether legally binding or not.
(b) With respect to each of the Seller Plans, Seller has made
available to Purchaser true and complete copies of each of the following
documents: (i) the Seller Plan and related documents (including all amendments
thereto); (ii) the two (2) most recent annual reports, financial statements, and
actuarial reports, if any; (iii) the most recent summary plan descriptions,
together with each summary of material modifications, required under ERISA with
respect to such Seller Plan and all material communications relating to each
such Seller Plan; and (iv) the most recent determination letter received from
the Internal Revenue Service with respect to each Seller Plan that is intended
to be qualified under the Code and all material communications to or from the
Internal Revenue Service or any other governmental or regulatory agency or
authority relating to each Seller Plan.
(c) No liability under Title IV of ERISA has been incurred by
Seller or any ERISA Affiliate that has not been satisfied in full, and no
condition exists that presents a material risk to Seller or any ERISA Affiliate
of incurring a liability under such Title. No Seller Plan is subject to Title IV
of ERISA, Section 412 of the Code or Section 302 of ERISA.
(d) Neither Seller nor any ERISA Affiliate, nor any of the Seller
Plans, nor any trust created thereunder, nor any trustee or administrator
thereof, has engaged in any prohibited transaction (within the meaning of
Section 406 of ERISA and Section 4975 of the Code) in connection with which
Seller or any ERISA Affiliate could reasonably be expected to either directly or
indirectly incur any material liability or material cost.
(e) Full payment has been made, or will be made in accordance with
Section 404(a)(6) of the Code, of all amounts that Seller or any ERISA Affiliate
is required to pay under, or contribute to any, of the Seller Plans.
(f) None of the Seller Plans is a "multiemployer pension plan," as
such term is defined in Section 3(37) of ERISA, a "multiple employer welfare
arrangement," as such term is defined in Section 3(40) of ERISA, or a single
employer plan that has two or more contributing sponsors, at least two of whom
are not under common control, within the meaning of Section 4063(a) of ERISA.
(g) A favorable determination letter has been issued by the
Internal Revenue Service with respect to each of the Seller Plans that is
intended to be "qualified" within the meaning of Section 401(a) of the Code to
the effect that such plan is so qualified, and no condition exists that could
adversely affect the qualified status of any such Seller Plan. Each of the
Seller Plans that is intended to satisfy the requirements of Section 125 or
501(c)(9) of the Code satisfies such requirements in all material respects. Each
of the Seller Plans has been operated and administered in all material respects
in accordance with its terms and applicable laws, including, but not limited to,
ERISA and the Code.
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(h) Except as Previously Disclosed, each Seller Plan may be amended
or terminated without liability to Seller or any ERISA Affiliate. No amounts
payable under the Seller Plans shall fail to be deductible in their entirety for
federal income tax purposes under Section 280G of the Code. Each person who
performs services for Seller or any ERISA Affiliate has been, and is, properly
classified by Seller or the appropriate ERISA Affiliate as an employee or
independent contractor.
(i) There are no actions, suits or claims pending, or, to the
knowledge of Seller or any Seller Subsidiary, threatened or anticipated (other
than routine claims for benefits) against any Seller Plan, the assets of any
Seller Plan or against Seller or any ERISA Affiliate with respect to any Seller
Plan. There is no judgment, decree, injunction, rule or order of any court,
governmental body, commission, agency or arbitrator outstanding against or in
favor of any Seller Plan or any fiduciary thereof (other than rules of general
applicability). There are no pending or, to the knowledge of Seller or any
Seller Subsidiary, threatened audits, examinations or investigations by any
governmental body, commission or agency involving any Seller Plan.
(j) Except as Previously Disclosed, no Seller Plan provides
benefits, including without limitation death or medical benefits (whether or not
insured), with respect to current or former employees or directors of Seller or
any ERISA Affiliate after retirement or other termination of service (other than
(i) coverage mandated by applicable law; (ii) death benefits or retirement
benefits under any "employee pension plan," as that term is defined in Section
3(3) of ERISA; (iii) deferred compensation benefits accrued as liabilities on
the books of Seller or the ERISA Affiliates; or (iv) benefits, the full cost of
which is borne by the current or former employee or director (or his
beneficiary)).
(k) Except as Previously Disclosed, neither the execution of this
Agreement nor the consummation of the transactions contemplated hereby will
result in, or is a precondition to, (i) any current or former employee or
director of Seller or any ERISA Affiliate becoming entitled to severance pay,
unemployment compensation or any similar payment; (ii) any acceleration in the
time of payment or vesting, or increase in the amount, of any compensation due
to any such current or former employee or director; or (iii) any renewal or
extension of the term of any agreement regarding compensation for any such
current or former employee or director.
2.14. CERTAIN CONTRACTS
(a) Neither Seller nor any Seller Subsidiary is a party to, or is
bound by, (i) any material contract, as defined in Item 601(b)(10) of Regulation
S-K of the SEC, or any other material contract or similar arrangement whether or
not made in the ordinary course of business (other than loans or loan
commitments and funding transactions in the ordinary course of business of any
Seller Subsidiary) or any agreement restricting the nature or geographic scope
of its business activities in any material respect, except as Previously
Disclosed; (ii) any agreement, indenture or other instrument relating to the
borrowing of money by Seller or any Seller Subsidiary or the guarantee by Seller
or any Seller Subsidiary of any such obligation, other than instruments relating
to transactions entered into in the ordinary course of business, except as
Previously Disclosed; or
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(iii) any contract, agreement or understanding with a labor union, in each case
whether written or oral.
(b) Neither Seller nor any Seller Subsidiary is in default under
any material agreement, commitment, arrangement, lease, insurance policy or
other instrument, whether entered into in the ordinary course of business or
otherwise and whether written or oral, and there has not occurred any event
that, with the lapse of time or giving of notice or both, would constitute such
a default, except for such defaults which would not, individually or in the
aggregate, have a Material Adverse Effect on Seller.
(c) Except as Previously Disclosed, neither Seller nor any Seller
Subsidiary is a party to any transaction (other than agreements Previously
Disclosed in connection with Section 2.14(a) hereof) with (i) any person who has
been an executive officer or a director of Seller; (ii) any spouse of any such
officer or director; (iii) any parent, child, brother, sister or other family
relation of any such officer or director who has the same home as such officer
or director; (iv) any corporation or other entity of which such officer or
director or any such family relation is an officer, director, partner, or
greater than five percent (5%) interest holder (based on percentage of ownership
of voting securities); or (v) any "affiliate" or "associate" of any such persons
(as such terms are defined in the rules and regulations promulgated under the
Securities Act), including, without limitation, (x) any transaction involving a
contract, agreement, or other arrangement providing for the employment of,
furnishing of materials, products or services by, rental of real or personal
property from, or otherwise requiring payments to, any such person or entity,
and (y) loans (including any loan guaranty) outstanding at the date hereof, but
not (z) deposit accounts maintained at Seller Bank in the ordinary course of its
banking business.
2.15. LEGAL PROCEEDINGS
Except as Previously Disclosed, there are no actions, suits or
proceedings instituted, pending or, to the knowledge of Seller or any Seller
Subsidiary, threatened (or unasserted but considered probable of assertion and
which, if asserted, would have at least a reasonable probability of an
unfavorable outcome) against Seller or any Seller Subsidiary or against any
asset, interest or right of Seller or any Seller Subsidiary as to which there is
a reasonable probability of an unfavorable outcome and which, if such an
unfavorable outcome was rendered, would, individually or in the aggregate, have
a Material Adverse Effect on Seller. There are no actual or, to the knowledge of
Seller or any Seller Subsidiary, threatened actions, suits or proceedings which
present a claim to restrain or prohibit the transactions contemplated herein or
to impose any material liability in connection therewith as to which there is a
reasonable probability of an unfavorable outcome and which, if such an
unfavorable outcome was rendered, would, individually or in the aggregate, have
a Material Adverse Effect on Seller. There are no actions, suits or proceedings
instituted, pending or, to the knowledge of Seller or any Seller Subsidiary,
threatened (or unasserted but considered probable of assertion and which, if
asserted, would be reasonably expected to have an unfavorable outcome) against
any present or, to Seller's knowledge, former director or officer of Seller or
any
14
Seller Subsidiary, that would reasonably be expected to give rise to a claim for
indemnification and that (i) has a reasonable probability of an unfavorable
outcome; and (ii) in the event of an unfavorable outcome, would, individually or
in the aggregate, have a Material Adverse Effect on Seller.
2.16. COMPLIANCE WITH LAWS
Seller and each Seller Subsidiary is in compliance with all statutes and
regulations applicable to the conduct of its business, and neither Seller nor
any Seller Subsidiary has received notification from any agency or department of
federal, state or local government (i) asserting a violation of any such statute
or regulation; (ii) threatening to revoke any license, franchise, permit or
government authorization; or (iii) restricting or in any way limiting its
operations, except for such noncompliance, violations, revocations and
restrictions which would not, individually or in the aggregate, have a Material
Adverse Effect on Seller. Except as Previously Disclosed, neither Seller nor any
Seller Subsidiary is subject to any regulatory or supervisory cease and desist
order, agreement, directive, memorandum of understanding or commitment which
would be reasonably expected to have a Material Adverse Effect on Seller, and
none of them has received any communication requesting that they enter into any
of the foregoing.
2.17. BROKERS AND FINDERS
Neither Seller nor any Seller Subsidiary, nor any of their respective
officers, directors or employees, has employed any broker, finder or financial
advisor or incurred any liability for any fees or commissions in connection with
the transactions contemplated herein or the Plan of Merger, except that Seller
has engaged and shall pay a fee or commission to Xxxxx, Xxxxxxxx & Xxxxx, Inc.
("KBW") to perform certain financial advisory services as Previously Disclosed.
2.18. INSURANCE
Each of Seller and the Seller Subsidiaries currently maintains insurance
in amounts considered by Seller and any Seller Subsidiary as applicable, to be
reasonably necessary for their operations. Neither Seller nor any Seller
Subsidiary has received any notice of a material premium increase over current
rates or cancellation with respect to any of its insurance policies or bonds,
and within the last three (3) years, neither Seller nor any Seller Subsidiary
has been refused any insurance coverage sought or applied for, and Seller has no
reason to believe that existing insurance coverage cannot be renewed as and when
the same shall expire, upon terms and conditions as favorable as those presently
in effect, other than possible increases in premiums or unavailability in
coverage that have not resulted from any extraordinary loss experience of Seller
or any Seller Subsidiary. Seller has Previously Disclosed a list of all
outstanding claims, as of the date hereof, against Seller or any Seller
Subsidiary under any insurance policy, other than medical or dental payments
under Seller Plans or claims for less than $25,000. The deposits of Seller Bank
are insured by the FDIC in accordance with the FDIA, and Seller Bank and its
predecessors have paid all assessments and filed all reports required by the
FDIA.
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2.19. ENVIRONMENTAL LIABILITY
Neither Seller nor any Seller Subsidiary has received any written notice
of any legal, administrative, arbitral or other proceeding, claim or action, and
there is no governmental investigation of any nature ongoing, in each case, that
would reasonably be expected to result in the imposition on Seller or any Seller
Subsidiary of any liability arising under any local, state or federal
environmental statute, regulation or ordinance including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, which liability would have a Material Adverse Effect on
Seller; there are no facts or circumstances which would reasonably be expected
to form the basis for any such proceeding, claim, action or governmental
investigation that would impose any such liability; and neither Seller nor any
Seller Subsidiary is subject to any agreement, order, judgment, decree or
memorandum by or with any court, governmental authority, regulatory agency or
third party imposing any such liability.
2.20. INTELLECTUAL PROPERTY
Seller or a Seller Subsidiary owns the entire right, title and interest
in and to, or has valid licenses with respect to, all of the Intellectual
Property necessary to conduct the business and operations of Seller and the
Seller Subsidiaries as presently conducted, except where the failure to do so
would not, individually or in the aggregate, have a Material Adverse Effect on
Seller. The ownership, licensing or use of Intellectual Property by Seller or
any of the Seller Subsidiaries does not, to the knowledge of Seller, conflict
with, infringe, misappropriate or otherwise violate the Intellectual Property
rights of any other person or entity. None of such Intellectual Property is
subject to any outstanding order, decree, judgment, stipulation, settlement,
lien, charge, encumbrance or attachment, which order, decree, judgment,
stipulation, settlement, lien, charge, encumbrance or attachment would have a
Material Adverse Effect on Seller. Upon consummation of the transactions
contemplated by this Agreement, Seller and the Seller Subsidiaries shall be
entitled to continue to use, and Purchaser shall be entitled to continue using,
all such Intellectual Property without the payment of any fees, licenses or
other payments.
2.21. RISK MANAGEMENT INSTRUMENTS
All interest rate swaps, caps, floors, option agreements, futures and
forward contracts and other similar risk management arrangements to which Seller
or a Seller Subsidiary is a party, whether entered into for Seller's own
account, or for the account of one or more of the Seller Subsidiaries or their
customers, were entered into (i) in accordance with prudent business practices
and all applicable laws, rules, regulations and regulatory policies; and (ii)
with counterparties believed to be financially responsible at the time; and each
of them constitutes the valid and legally binding obligation of Seller or one of
the Seller Subsidiaries, enforceable in accordance with its terms (except as
enforceability may be limited by bankruptcy, insolvency and other laws of
general applicability relating to or affecting creditors' rights, to the
supervisory and enforcement powers of applicable regulatory agencies, and to
general equity principles), and neither
16
Seller nor any Seller Subsidiary nor, to Seller's knowledge, any other party
thereto, is in breach of any of its obligations under any such agreement or
arrangement. Seller Previously Disclosed to Purchaser all of such agreements and
arrangements that are in effect as of the date of this Agreement.
2.22. REPURCHASE AGREEMENTS
With respect to all agreements pursuant to which Seller or any Seller
Subsidiary has purchased securities subject to an agreement to resell, if any,
Seller or such Seller Subsidiary, as the case may be, has a valid, perfected
first lien or security interest in or evidence of ownership in book entry form
of the government securities or other collateral securing the repurchase
agreements, and the value of such collateral equals or exceeds the amount of the
debt secured thereby.
2.23. CERTAIN INFORMATION
The information contained in the Proxy Statement, other than information
provided by Purchaser, at the time the Proxy Statement is mailed to shareholders
of Seller up to and including the time of the Seller's shareholders' meeting to
vote upon the Merger, (i) shall comply in all material respects with the
applicable provisions of the Securities Laws; and (ii) shall not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements contained therein not
misleading. All information concerning Seller and its directors, officers,
shareholders and any Subsidiaries included (or submitted for inclusion) in any
application and furnished by it pursuant to Section 4.3 of this Agreement shall
be true, correct and complete in all material respects.
2.24. TAKEOVER LAWS; RIGHTS AGREEMENT
(a) Seller has taken all action required to be taken by it in order
to exempt this Reorganization Agreement and the Plan of Merger and the
transactions contemplated hereby and thereby from, and this Reorganization
Agreement and the Plan of Merger and the transactions contemplated hereby and
thereby are exempt from, the requirements of any "moratorium," "control share,"
"fair price," "affiliate transaction," "business combination," or other
anti-takeover laws and regulations of any state (collectively, "Takeover Laws"),
including, without limitation, the State of California.
(b) Seller has irrevocably and validly amended, and the Board of
Directors of Seller has taken all necessary action to irrevocably amend, the
Rights Agreement so that (a) none of the execution or delivery of this
Reorganization Agreement or the Plan of Merger or the consummation of the
transactions contemplated hereby or thereby will result in (i) the occurrence of
any of the events described in Section 13 of the Rights Agreement; or (ii) the
Rights (as defined in the Rights Agreement) becoming evidenced by, and
transferable pursuant to, certificates separate from the certificates
representing shares, and (b) on the Effective Date, Seller Common Stock will be
converted into the consideration provided in the Plan of Merger and all
17
Rights (as defined in the Rights Agreement) attached thereto shall
simultaneously be extinguished.
2.25. FAIRNESS OPINION
KBW has rendered an oral opinion to the Board of Directors of Seller, as
of the same date as this Agreement, to the effect that, as of such date, the
Merger Consideration is fair, from a financial point of view, to the holders of
Seller Common Stock. A correct and complete copy of a written opinion that
confirms such oral opinion shall be delivered to Purchaser at the same time KBW
provides such written opinion to Seller.
2.26. LABOR MATTERS
With respect to their employees, neither Seller nor any Seller
Subsidiary is a party to any labor agreement with any labor organization, group
or association and has not engaged in any unfair labor practice. Since December
31, 2001 and prior to the date hereof, to knowledge of Seller, Seller and the
Seller Subsidiaries have not experienced any attempt by organized labor or its
representatives to make Seller or any Seller Subsidiary conform to demands of
organized labor relating to their employees or to enter into a binding agreement
with organized labor that would cover the employees of Seller or any Seller
Subsidiary. To the knowledge of Seller and the Seller Subsidiaries, there is no
unfair labor practice charge or other complaint by any employee or former
employee of Seller or any Seller Subsidiary against any of them pending before
any court, arbitrator or governmental agency arising out of Seller's or such
Seller Subsidiary's activities, which charges or complaints would, individually
or in the aggregate, have a Material Adverse Effect on Seller; there is no labor
strike or labor disturbance pending or, to the knowledge of Seller or any Seller
Subsidiaries, threatened against any of them; and neither Seller nor any Seller
Subsidiary has experienced a work stoppage or other material labor difficulty
since December 31, 2001.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND MERGER SUB
Purchaser and Merger Sub hereby jointly and severally represent and
warrant to Seller as follows:
3.1. ORGANIZATION, STANDING AND AUTHORITY OF PURCHASER AND MERGER SUB
Purchaser is a duly organized corporation, validly existing and in good
standing under the laws of The Netherlands, with full corporate power and
authority to carry on its business as now conducted and is duly licensed or
qualified to do business in the states of the United States and foreign
jurisdictions where its ownership or leasing of property or the conduct of its
business requires such qualification, except where the failure to be so licensed
or qualified would not have a Material Adverse Effect on Purchaser.
Merger Sub is a duly organized corporation, validly existing and in good
standing under the laws of the State of California, with full corporate power
and authority to carry
18
on its business as now conducted and is duly licensed or qualified to do
business in the states of the United States and foreign jurisdictions where its
ownership or leasing of property or the conduct of its business requires such
qualification, except where the failure to be so licensed or qualified would not
have a Material Adverse Effect on Purchaser or Merger Sub.
3.2. AUTHORIZED AND EFFECTIVE AGREEMENT
(a) Each of Purchaser and Merger Sub has all requisite corporate
power and authority to enter into and perform all of its obligations under this
Reorganization Agreement and the Plan of Merger. The execution and delivery of
this Reorganization Agreement and the Plan of Merger and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action in respect thereof on the part of
Purchaser and Merger Sub, including, in the case of Merger Sub, the approval of
such agreements and transactions by the sole shareholder of Merger Sub.
(b) Assuming the accuracy of the representation contained in
Section 2.5(b) hereof, this Reorganization Agreement and the Plan of Merger
constitute legal, valid and binding obligations of Purchaser and Merger Sub, in
each case, enforceable against it in accordance with their respective terms
subject, as to enforceability, to bankruptcy, insolvency and other laws of
general applicability relating to or affecting creditors' rights, to the
supervisory and enforcement powers of applicable regulatory agencies, and to
general equity principles.
(c) Neither the execution and delivery of this Reorganization
Agreement and the Plan of Merger, nor consummation of the transactions
contemplated hereby or thereby, nor compliance by Purchaser or Merger Sub with
any of the provisions hereof or thereof shall (i) conflict with or result in a
breach of any provision of the articles or certificate of incorporation or
association, charter or bylaws or other organizational documents of Purchaser or
any Purchaser Subsidiary; (ii) constitute or result in a breach of any term,
condition or provision of, or constitute a default under, or give rise to any
right of termination, cancellation or acceleration with respect to, or result in
the creation of any lien, charge or encumbrance upon any property or asset of
Purchaser or any Purchaser Subsidiary pursuant to, any note, bond, mortgage,
indenture, license, agreement or other instrument or obligation; or (iii)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Purchaser or any Purchaser Subsidiary, except (in the case of
clauses (ii) and (iii) above) for such violations, rights, conflicts, breaches,
creations or defaults which, either individually or in the aggregate, shall not
have a Material Adverse Effect on Purchaser.
(d) Except for approvals specified in Section 4.3 hereof and except
as expressly referred to in this Reorganization Agreement, no consent, approval
or authorization of, or declaration, notice, filing or registration with, any
governmental or regulatory authority, or any other person, is required to be
made or obtained by Purchaser or Merger Sub on or prior to the Closing Date in
connection with the execution, delivery and performance of this Agreement and
the Plan of Merger or the consummation of the
19
transactions contemplated hereby or thereby. As of the date hereof, Purchaser is
not aware of any reason that the condition set forth in Section 5.1(b) of this
Agreement, including the proviso thereto, would not be satisfied.
3.3. LEGAL PROCEEDINGS
There are no actions, suits or proceedings instituted, pending or, to
the knowledge of Purchaser, threatened against Purchaser or any Purchaser
Subsidiary which present a claim to restrain or prohibit the transactions
contemplated hereby or which would, in the event of an unfavorable decision or
outcome against Purchaser, have a material adverse effect on the ability of
Purchaser to effect the transactions contemplated by this Agreement or the Plan
of Merger, including the Merger.
3.4. BROKERS AND FINDERS
Neither Purchaser nor any Purchaser Subsidiary, nor any of their
respective officers, directors or employees, has employed any broker, finder or
financial advisor or incurred any liability for any fees or commissions in
connection with the transactions contemplated herein or the Plan of Merger,
except for Purchaser's retention of Sandler, X'Xxxxx & Partners, L.P. to perform
certain financial advisory services.
3.5. FINANCIAL RESOURCES
Purchaser and Merger Sub shall have available on the Closing Date
sufficient financial resources to enable Purchaser and Merger Sub to lawfully
satisfy their respective obligations pursuant to this Agreement and the Plan of
Merger and to consummate the Merger. Purchaser has and shall have sufficient
management and financial resources to obtain the required regulatory and other
approvals for the transactions contemplated by this Agreement and the Plan of
Merger.
ARTICLE 4.
COVENANTS
4.1. SHAREHOLDERS' MEETING
Seller shall submit this Reorganization Agreement and the Plan of Merger
to the shareholders of Seller for approval at a special meeting to be held as
soon as practicable. Subject to the fiduciary duties of the Board of Directors
of Seller as determined after consultation with counsel, the Board of Directors
of Seller shall recommend that the shareholders of Seller vote in favor of such
approval.
4.2. PROXY STATEMENT; REGISTRATION STATEMENT
As promptly as practicable after the date hereof, Purchaser and Seller
shall cooperate in the preparation of the Proxy Statement to be mailed to the
shareholders of Seller in connection with this Reorganization Agreement and the
Plan of Merger and the transactions contemplated hereby.
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4.3. APPLICATIONS
As promptly as practicable after the date hereof, and after a reasonable
opportunity for review by counsel to Seller, Purchaser shall submit any
requisite applications for prior approval of, and notices with respect to, the
transactions contemplated herein and in the Plan of Merger to (i) the Federal
Reserve Board pursuant to Section 3 of the Bank Holding Company Act; and (ii)
the CADFI pursuant to Sections 701 and 702 of the California Financial Code; and
(iii) the Dutch Ministry of Finance pursuant to Article 24, Section 1 of the
Credit System (Supervision) Act of 1992, and the regulations promulgated
thereunder, and each of the parties hereto shall, and they shall cause their
respective Subsidiaries to, submit any applications, notices or other filings to
any other state or federal government agency, department or body the approval of
which is required for consummation of the Merger. Seller and Purchaser each
represents and warrants to the other that all information concerning the
applicable party and directors, officers, shareholders and subsidiaries of such
party included (or submitted for inclusion) in any such application and
furnished by the party shall be true, correct and complete in all material
respects.
4.4. BEST EFFORTS
(a) Subject to the terms and conditions of this Agreement,
Purchaser and Seller shall each use its reasonable best efforts in good faith,
and each of them shall cause its Subsidiaries to use their reasonable best
efforts in good faith, to (i) furnish such information as may be required in
connection with the preparation of the documents referred to in Sections 4.2 and
4.3 above; and (ii) take or cause to be taken all action necessary or desirable
on its part so as to permit consummation of the Merger at the earliest possible
date, including, without limitation, (1) obtaining the consent or approval of
each individual, partnership, corporation, association or other business or
professional entity whose consent or approval is required for consummation of
the transactions contemplated hereby; provided, that neither Seller nor any
Seller Subsidiary shall agree to make any payments or modifications to
agreements in connection therewith without the prior written consent of
Purchaser, which consent shall not be unreasonably withheld, and (2) requesting
the delivery of appropriate opinions, consents and letters from its counsel and
independent auditors. Subject to the terms and conditions of this Agreement, no
party hereto shall take or fail to take, or cause or permit its Subsidiaries to
take or fail to take, or to the best of its ability permit to be taken or
omitted to be taken by any third persons, any action that would substantially
impair the prospects of completing the Merger pursuant to this Reorganization
Agreement and the Plan of Merger, or that would materially delay such
completion.
(b) Seller shall give prompt notice to Purchaser, and Purchaser
shall give prompt notice to Seller, of (i) the occurrence, or failure to occur,
of any event which occurrence or failure would be reasonably likely to cause any
representation or warranty contained in this Agreement to be untrue or
inaccurate at any time from the date hereof to the Closing Date such that the
condition set forth in Section 5.2(a) or 5.3(a), as applicable, would not be met
if such failure to be true or accurate were to occur or be continuing on the
Closing Date; and (ii) any material failure of Seller or Purchaser, as the
21
case may be, to comply with or satisfy any covenant, condition or agreement to
be complied with or satisfied by the applicable party hereunder, and each party
shall use all reasonable best efforts to remedy such failure.
4.5. INVESTIGATION AND CONFIDENTIALITY
Seller shall keep Purchaser advised of all material developments
relevant to its business and to consummation of the transactions contemplated
herein and in the Plan of Merger. Purchaser may make or cause to be made such
investigation of the financial and legal condition of Seller as Purchase
reasonably deems necessary or advisable in connection with the transactions
contemplated herein and in the Plan of Merger; provided, however, that such
investigation shall be reasonably related to such transactions and shall not
interfere unnecessarily with normal operations. Seller agrees to furnish
Purchaser and the advisors of Purchaser with such financial data and other
information with respect to its business and properties as Purchaser shall from
time to time reasonably request. No investigation pursuant to this Section 4.5
shall affect or be deemed to modify any representation or warranty made by
Seller, or the conditions to the obligations to consummate the Merger of
Purchaser. Each party hereto shall hold all information furnished by the other
party or any of such party's Subsidiaries or representatives pursuant to this
Agreement in confidence to the extent required by, and in accordance with, the
provisions of the confidentiality agreement, dated May 28, 2002, between Seller
and Purchaser (the "Confidentiality Agreement").
4.6. PRESS RELEASES
Seller and Purchaser shall agree with each other as to the form and
substance of any press release related to this Reorganization Agreement and the
Plan of Merger or the transactions contemplated hereby or thereby, and shall
consult each other as to the form and substance of other public disclosures
related thereto; provided, however, that nothing contained herein shall prohibit
any party, following notification to the other parties, from making any
disclosure which is required by applicable law or Nasdaq rules.
4.7. ACTIONS PENDING THE MERGER
(a) Prior to the Closing Date, and except as otherwise provided for
by this Reorganization Agreement, the Plan of Merger, or consented to or
approved by Purchaser, Seller shall, and shall cause each of the Seller
Subsidiaries to, use reasonable best efforts to preserve the properties,
business and relationships with customers, employees and other persons of each
of the Seller Subsidiaries.
(b) Seller shall not, and shall not permit any of the Seller
Subsidiaries to, except with the prior written consent of Purchaser or except as
Previously Disclosed or expressly contemplated or permitted by this Agreement or
the Plan of Merger:
(i) carry on its business other than in the usual, regular and
ordinary course in substantially the same manner as heretofore conducted;
22
(ii) declare, set aside, make or pay any dividend or other
distribution in respect of its capital stock;
(iii) issue any shares of its capital stock or permit any
treasury shares to become outstanding, except for the issuance of shares of
Seller Common Stock upon the exercise of options granted under Seller Plans that
are issued and outstanding as of the date hereof;
(iv) incur any additional debt obligation or other obligation
for borrowed money other than in the ordinary course of business consistent with
past practice;
(v) issue, grant or authorize any Rights or effect any
recapitalization, reclassification, stock dividend, stock split or like change
in capitalization, or redeem, repurchase or otherwise acquire any shares of its
capital stock except for Trust Account Shares and DPC Shares;
(vi) amend its articles or certificate of incorporation or
association or bylaws; impose, or suffer the imposition, on any share of stock
of any Seller Subsidiary held by Seller of any lien, charge or encumbrance, or
permit any such lien, charge or encumbrance to exist;
(vii) merge with any other corporation, savings association or
bank or permit any other corporation, savings association or bank to merge into
it or consolidate with any other corporation, savings association or bank (this
clause being subject to Sections 4.7(b)(xiv) and 6.1(f) of this Agreement);
acquire control over any other firm, bank, corporation, savings association or
organization or create any Subsidiary;
(viii) waive or release any material right or cancel or
compromise any material debt or claim other than loans written down or charged
off in the ordinary course of business consistent with past practice;
(ix) fail to comply in any material respect with any material
laws, regulations, ordinances or governmental actions applicable to it and to
the conduct of its business;
(x) liquidate or sell or dispose of any material assets or
acquire any material assets, except in the ordinary course of business
consistent with past practice; except as Previously Disclosed, make any capital
expenditure in excess of $50,000 in any instance or $250,000 in the aggregate;
or, except as Previously Disclosed, establish new branches or other similar
facilities, close existing branches or similar facilities or enter into or
modify any leases or other contracts relating thereto;
(xi) except as Previously Disclosed, increase the rate of
compensation of, pay or agree to pay any bonus to, or provide any other employee
benefit or incentive to, any of its directors, officers or employees except in a
manner consistent with past practice or as required by law or contractual
obligation in effect as of the date hereof;
23
(xii) change its lending, investment, asset/liability
management or other material banking policies in any material respect except as
may be required by changes in applicable law;
(xiii) change its methods of accounting in effect at December
31, 2001, except as required by changes in generally accepted accounting
principles concurred in by its independent certified public accountants, or
change any of its methods of reporting income, deductions or other items for
federal income tax purposes from those employed in the preparation of its
federal income tax returns for the year ended December 31, 2001, except as
required by applicable law;
(xiv) authorize or permit any of its officers, directors,
employees or agents to directly or indirectly solicit, initiate or encourage any
inquiries relating to, or the making of any proposal which constitutes, a
Takeover Proposal (as defined below), or, except to the extent legally required
for the discharge of the fiduciary duties of Board of Directors of Seller,
recommend or endorse any Takeover Proposal, or participate in any discussions or
negotiations, or provide third parties with any nonpublic information, relating
to any such inquiry or proposal or otherwise facilitate any effort or attempt to
make or implement a Takeover Proposal; provided, however, that Seller may
communicate information about any such Takeover Proposal to its shareholders if,
in the judgment of Board of Directors of Seller, after consultation with outside
counsel, such communication is necessary in order to comply with its fiduciary
duties to shareholders of Seller required under applicable law. Seller shall
take all actions necessary or advisable to inform the appropriate individuals or
entities referred to in the first sentence hereof of the obligations undertaken
herein. Seller shall notify Purchaser immediately if any such inquiries or
Takeover Proposals are received by, any such information is requested from, or
any such negotiations or discussions are sought to be initiated or continued
with, Seller, and Seller shall promptly inform Purchaser in writing of all of
the relevant details with respect to the foregoing. As used in this Agreement,
"Takeover Proposal" shall mean any tender or exchange offer, proposal for a
merger, consolidation or other business combination involving Seller or any
Seller Subsidiary or any proposal or offer to acquire in any manner a
substantial equity interest in, or a substantial portion of the assets of,
Seller or any Seller Subsidiary other than the transactions contemplated or
permitted by this Agreement and the Plan of Merger; or
(xv) agree to do any of the foregoing.
4.8. CLOSING; AGREEMENT OF MERGER
The transactions contemplated by this Reorganization Agreement and the
Plan of Merger (the terms of which are incorporated herein by reference) shall
be consummated at a closing to be held at such location and on such date as the
parties shall mutually agree, not later than thirty (30) days following the
satisfaction of the conditions to consummation of the Merger set forth in
ARTICLE 5 hereof or such other date to which the parties may mutually agree
(other than such conditions relating to the actions to be taken at the Closing)
(such date, "Closing Date"). In connection with such Closing, each of Merger Sub
and
24
Seller shall execute a certificate of approval of the Plan of Merger, and shall
cause the Plan of Merger and certificates to be delivered to the California
Secretary of State in accordance with Section 1103 of the California General
Corporation Law. The Merger shall be effective at the time and on the date
("Effective Date") as designated by the California Secretary of State.
4.9. SELLER EMPLOYEES; DIRECTORS AND MANAGEMENT; INDEMNIFICATION
(a) Prior to the Effective Date, Seller shall take all actions that
may be requested by Purchaser in writing with respect to (i) causing one or more
Seller Plans (other than Seller Plans that are contractual arrangements,
including, but not limited to, deferred compensation agreements, with individual
officers and employees of Seller or any Seller Subsidiary) to be modified or
terminated as of the Effective Date or for benefit accruals and entitlements to
cease as of the Effective Date; (ii) causing the continuation on and after the
Effective Date of any contract, arrangement or insurance policy relating to any
Seller Plan for such period as may be requested by Purchaser; (iii) facilitating
the merger of any Seller Plan into any Purchaser Plan; and (iv) any of the
matters Previously Disclosed. Seller shall not authorize the commencement of any
purchase period under any Seller stock purchase plan between the date hereof and
the termination of this Reorganization Agreement and shall not extend any
purchase period that is in effect on the date hereof beyond its originally
scheduled date of termination. For purposes of this Section 4.9(a), the term
"Purchaser Plan" means each bonus, deferred compensation, incentive
compensation, stock purchase, stock option, severance pay, medical, life or
other insurance, profit-sharing, or pension plan, program, agreement or
arrangement, and each other employee benefit plan, program, agreement or
arrangement, sponsored, maintained or contributed to or required to be
contributed to by Purchaser or by any trade or business, whether or not
incorporated, that together with Purchaser would be deemed a ERISA Affiliate for
the benefit of any employee or director or former employee or former director of
Purchaser or any ERISA Affiliate, whether formal or informal, and whether
legally binding or not.
(b) In the event of any threatened or actual claim, action, suit,
proceeding or investigation, whether civil, criminal or administrative,
including, without limitation, any such claim, action, suit, proceeding or
investigation in which any person who is now, or has been at any time prior to
the date of this Agreement, or who becomes prior to the Effective Date, a
director or officer of Seller or of any Seller Subsidiary (the "Indemnified
Parties") is, or is threatened to be, made a party based in whole or in part on,
or arising in whole or in part out of, or pertaining to (i) the fact that he is
or was a director, officer or employee of Seller, or any Seller Subsidiary or
any of their respective predecessors; or (ii) this Agreement or the Plan of
Merger or any of the transactions contemplated hereby or thereby, whether in any
case asserted or arising before or after the Effective Date, the parties hereto
agree to cooperate and use their best efforts to defend against and respond
thereto. On and after the Effective Date, Purchaser shall indemnify and hold
harmless, as and to the fullest extent permitted by law, each such Indemnified
Party against any losses, claims, damages, liabilities, costs, expenses
(including reasonable attorney's fees and expenses in advance of the final
disposition of any claim, suit, proceeding or investigation to each Indemnified
Party to the fullest extent
25
permitted by law upon receipt of any undertaking required by applicable law),
judgments, fines and amounts paid in settlement in connection with any such
threatened or actual claim, action, suit, proceeding or investigation, and in
the event of any such threatened or actual claim, action, suit, proceeding or
investigation (whether asserted or arising before or after the Effective Date),
the Indemnified Parties may retain counsel reasonably satisfactory to them after
consultation with Purchaser; provided, however, that (1) Purchaser shall have
the right to assume the defense thereof and upon such assumption Purchaser shall
not be liable to any Indemnified Party for any legal expenses of other counsel
or any other expenses subsequently incurred by any Indemnified Party in
connection with the defense thereof, except that, if Purchaser elects not to
assume such defense or counsel for the Indemnified Parties and reasonably
advises the Indemnified Parties that there are issues which raise conflicts of
interest between Purchaser and the Indemnified Parties, the Indemnified Parties
may retain counsel reasonably satisfactory to them after such notification, and
Purchaser shall pay the reasonable fees and expenses of such counsel for the
Indemnified Parties, (2) Purchaser shall be obligated pursuant to this paragraph
to pay for only one firm of counsel for all Indemnified Parties; provided, that,
if there are issues which raise conflicts of interest between two (2) or more of
the Indemnified Parties that result in the retention of separate counsel
pursuant to the provisions of the preceding clause (1) Purchaser shall be
obligated pursuant to this paragraph to pay for only one firm of counsel for
each Indemnified Party or set of Indemnified Parties requiring separate counsel,
(3) Purchaser shall not be liable for any settlement effected without its prior
written consent (which consent shall not be unreasonably withheld), and (4)
Purchaser shall have no obligation hereunder to any Indemnified Party when and
if a court of competent jurisdiction shall ultimately determine, and such
determination shall have become final and nonappealable, that indemnification of
such Indemnified Party in the manner contemplated hereby is prohibited by
applicable law. Any Indemnified Party wishing to claim Indemnification under
this Section 4.9(b), upon learning of any such claim, action, suit, proceeding
or investigation, shall promptly notify Purchaser thereof; provided, that the
failure of any Indemnified Party to so notify Purchaser shall not relieve it of
its obligations hereunder except (and only) to the extent that such failure
materially prejudices Purchaser. Purchaser's obligations under this Section
4.9(b) continue in full force and effect for a period of six (6) years from the
Effective Date; provided, however, that all rights to indemnification in respect
of any claim (a "Claim") asserted or made within such period shall continue
until the final disposition of such Claim.
(c) Purchaser agrees that all rights to indemnification and all
limitations on liability existing in favor of the directors, officers and
employees of Seller and any Seller Subsidiary (the "Covered Parties") as
provided in their respective articles of incorporation, bylaws or similar
governing documents as in effect as of the date of this Agreement with respect
to matters occurring prior to the Effective Date shall survive the Merger and
shall continue in full force and effect, and shall be honored by such entities
or their respective successors as if they were the indemnifying party
thereunder; provided, however, that nothing contained in this Section 4.9(c)
shall be deemed to preclude the liquidation, consolidation or merger of Seller
or any Seller Subsidiary, in which case all of such rights to indemnification
and limitations on liability shall be
26
deemed to so survive and continue as an obligation of Purchaser or the successor
to Seller or the Seller Subsidiary notwithstanding any such liquidation,
consolidation or merger.
(d) Purchaser, from and after the Effective Date shall use its
reasonable best efforts directly or indirectly to cause the persons who served
as directors or officers of Seller on or before the Effective Date to be covered
by Seller's existing directors' and officers' liability insurance policy
(provided, that Purchaser may substitute therefor policies of at least the same
coverage and amounts containing terms and conditions which are not less
advantageous than such policy) but in no event shall any insured person be
entitled under this Section 4.9(d) to insurance coverage more favorable than
that provided to him or her in such capacities as of the date hereof with
respect to acts or omissions resulting from their service as such on or prior to
the Effective Date. Such insurance coverage, if reasonably available at a
reasonable cost relative to the coverage obtained, shall commence on the
Effective Date and shall be provided for a period of no less than six (6) years
after the Effective Date; provided, however, that in no event shall Purchaser be
required to expend more than 200% of the current amount expended by Seller (the
"Insurance Amount") to maintain or procure insurance coverage pursuant hereto,
provided, further, that the Insurance Amount shall be deemed reasonable for
purposes of this Section 4.9(d). Seller agrees to renew any such existing
insurance or to purchase any "discovery period" insurance provided for
thereunder at request of Purchaser.
(e) In the event Purchaser or any of its successors or assigns (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 or conveys all or substantially all of its properties and
assets to any person, then, and in each such case, to the extent necessary,
proper provision shall be made so that the successors and assigns of Purchaser
assume the obligations set forth in this section.
(f) The provisions of Section 4.9(b), (c), (d) and (e) are intended
to be for the benefit of, and shall be enforceable by, each Indemnified Party
and their respective heirs and representatives.
(g) The parties agree to take the further actions Previously
Disclosed by Purchaser.
4.10. TAKEOVER LAWS
No party hereto shall take any action that would cause the transactions
contemplated by this Reorganization Agreement or the Plan of Merger to be
subject to the requirements imposed by any Takeover Law, and each of them shall
take all necessary steps within its control to exempt (or ensure the continued
exemption of) the transactions contemplated by this Reorganization Agreement and
the Plan of Merger from, or if necessary challenge the validity or applicability
of, any applicable Takeover Law, as now or hereafter in effect.
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4.11. BOARD OF DIRECTORS; ADVISORY BOARD
(a) Purchaser shall take all requisite action to cause Xx. Xxxxxx
Xxxx and two (2) other members of Seller's Board of Directors immediately prior
to the Effective Date to become members of Seller's Board of Directors after the
Effective Date. Such two directors shall be selected by Seller's Board of
Directors subject to the prior approval of Purchaser.
(b) Promptly following the Effective Date, Purchaser shall
establish an advisory board (the "Advisory Board"), which shall include members
of Seller's Board of Directors, identified by Seller prior to the Effective Date
and reasonably acceptable to Purchaser. The function of the Advisory Board shall
be to advise Purchaser on business conditions and opportunities in the markets
currently served by Seller and on such other matters as Purchaser may reasonably
request.
ARTICLE 5.
CONDITIONS PRECEDENT
5.1. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER, MERGER SUB AND
SELLER
The respective obligations of the parties to effect the Merger shall be
subject to satisfaction or waiver of the following conditions at or prior to the
Closing Date:
(a) All corporate action necessary to authorize the execution,
delivery and performance of this Reorganization Agreement and the Plan of Merger
and consummation of the transactions contemplated hereby and thereby, including,
without limitation the shareholder approval contemplated by Section 2.5 hereof,
shall have been duly and validly taken;
(b) The parties hereto shall have received all regulatory approvals
required or mutually deemed necessary in connection with the transactions
contemplated by this Reorganization Agreement and the Plan of Merger, all notice
periods and waiting periods required after the granting of any such approvals
shall have passed and all conditions contained in any such approval required to
have been satisfied prior to consummation of such transactions shall have been
satisfied; provided, however, that no such approval shall have imposed any
condition or requirement that, in the reasonable good faith opinion of the Board
of Directors of Purchaser, so materially and adversely affects the anticipated
economic and business benefits to Purchaser of the transactions contemplated by
this Agreement as to render consummation of such transactions inadvisable;
(c) To the extent that any lease, license, loan, financing
agreement or other contract or agreement to which Seller or any Seller
Subsidiary is a party requires the consent of or waiver from the other party
thereto as a result of the transactions contemplated by this Agreement, such
consent or waiver shall have been obtained, unless the failure to obtain such
consents or waivers, individually or in the aggregate, would not have a Material
Adverse Effect on Seller; and
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(d) None of the parties hereto shall be subject to any order,
decree or injunction of a court or agency of competent jurisdiction which
enjoins or prohibits the consummation of the transactions contemplated by this
Reorganization Agreement and the Plan of Merger.
5.2. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller to effect the Merger shall be subject to
satisfaction of the following additional conditions at or prior to the Closing
Date unless waived by Seller pursuant to Section 6.4 hereof:
(a) The representations and warranties of Purchaser and Merger Sub
set forth in ARTICLE 3 hereof shall be true and correct in all material respects
as of the date of this Reorganization Agreement and as of the Closing Date as
though made on and as of the Closing Date (or on the date when made in the case
of any representation and warranty which specifically relates to an earlier
date), except as otherwise contemplated by this Reorganization Agreement or
consented to in writing by Seller; provided, however, that (i) in determining
whether or not the condition contained in this paragraph (a) shall be satisfied,
no effect shall be given to any exceptions in such representations and
warranties relating to materiality or Material Adverse Effect; and (ii) the
condition contained in this paragraph (a) shall be deemed to be satisfied unless
the failure of such representations and warranties to be so true and correct
constitute, individually or in the aggregate, a Material Adverse Effect on
Purchaser;
(b) Purchaser and Merger Sub shall have in all material respects
performed all obligations and complied with all covenants required by this
Reorganization Agreement and the Plan of Merger to be performed or complied with
at or prior to the Closing Date;
(c) Purchaser shall have deposited or shall have caused the Merger
Consideration to be deposited into an escrow account at U.S. Stock Transfer
Corporation; and
(d) Each of Purchaser and Merger Sub shall have delivered to Seller
a certificate, dated the Closing Date and signed by its respective Chairman,
CEO, Executive Vice President or Senior Vice President to the effect that the
conditions set forth in paragraphs (a), (b) and (c) of this Section 5.2 have
been satisfied.
5.3. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER AND MERGER SUB
The respective obligations of Purchaser and Merger Sub to effect the
Merger shall be subject to satisfaction of the following additional conditions
at or prior to the Closing Date unless waived by Purchaser pursuant to Section
6.4 hereof:
(a) The representations and warranties of Seller set forth in
Article 2 hereof shall be true and correct in all material respects as of the
date of this Reorganization Agreement and as of the Closing Date as though made
on and as of the Closing Date (or on the date when made in the case of any
representation and warranty
29
which specifically relates to an earlier date), except as otherwise contemplated
by this Reorganization Agreement or consented to in writing by Purchaser;
provided, however, that (i) in determining whether or not the condition
contained in this paragraph (a) shall be satisfied, no effect shall be given to
any exceptions in such representations and warranties relating to materiality or
Material Adverse Effect; and (ii) the condition contained in this paragraph (a)
shall be deemed to be satisfied unless the failure of such representations and
warranties to be so true and correct constitute, individually or in the
aggregate, a Material Adverse Effect on Seller;
(b) Seller shall have in all material respects performed all
obligations and complied with all covenants required by this Reorganization
Agreement and the Plan of Merger to be performed or complied with at or prior to
the Closing Date;
(c) Seller shall have delivered to Purchaser and Merger Sub a
certificate, dated the Closing Date and signed by its Chairman, President and
Chief Executive Officer or any Executive Vice President to the effect that the
conditions set forth in paragraphs (a) and (b) of this Section 5.3 have been
satisfied.; and
(d) Holders of no more than fifteen percent (15%) of the
outstanding shares of Seller Common Stock shall have "filed a demand for
payment" (as that term is contemplated in Section 1300(b)(1) of the California
General Corporation Law).
ARTICLE 6.
TERMINATION, WAIVER AND AMENDMENT
6.1. TERMINATION
This Reorganization Agreement and the Plan of Merger may be terminated,
either before or after approval by the shareholders of Seller or Purchaser:
(a) At any time on or prior to the Effective Date, by the mutual
consent in writing of the parties hereto;
(b) At any time on or prior to the Closing Date, by Purchaser in
writing, if Seller has, or by Seller in writing, if Purchaser or Merger Sub has,
in any material respect, breached (i) any covenant or agreement contained herein
or in the Plan of Merger; or (ii) any representation or warranty contained
herein, and in either case if (x) such breach has not been cured by the earlier
of thirty (30) days after the date on which written notice of such breach is
given to the party committing such breach or, in the event such breach occurs
after March 2, 2003, by March 31, 2003, and (y) such breach would entitle the
non-breaching party not to consummate the transactions contemplated hereby under
ARTICLE 5 hereof;
(c) On the Closing Date, by Purchaser in writing, if Seller has, or
by Seller in writing, if Purchaser has, not fulfilled or satisfied any of the
conditions set forth in ARTICLE 5 hereof with respect to such party;
30
(d) At any time, by any party hereto in writing, if the
applications for prior approval referred to in Section 4.3 hereof have been
finally denied, and the time period for appeals and requests for reconsideration
has run, or if any governmental entity of competent jurisdiction shall have
issued a final nonappealable order enjoining or otherwise prohibiting the
Merger;
(e) At any time, by any party hereto in writing, if the
shareholders of Seller do not approve the transactions contemplated hereby and
by the Plan of Merger at the special meeting duly called for that purpose;
(f) By Purchaser prior to the time the shareholders of Seller
approve the transactions contemplated by this Agreement and the Plan of Merger,
if (i) Board of Directors of Seller fails to recommend approval and adoption of
this Agreement and the Merger by the shareholders of Seller or withdraws or
modifies (or publicly announces an intention to withdraw or modify) in any
adverse manner its approval or recommendation of this Agreement or the Merger;
(ii) the Board of Directors of Seller makes any public recommendation with
respect to any Takeover Proposal other than a recommendation to reject such
Takeover Proposal; (iii) Seller takes any action prohibited by 4.7(b)(xiv); or
(iv) Board of Directors of Seller resolves to take any of the actions specified
above;; or
(g) By any party hereto in writing, if the Closing Date has not
occurred by the close of business on March 31, 2003, unless the failure of the
Closing to occur by such date shall be due to the failure of the party seeking
to terminate this Agreement to perform or observe the covenants and agreements
set forth herein.
6.2. EFFECT OF TERMINATION
(a) In the event this Reorganization Agreement and the Plan of
Merger are terminated pursuant to Section 6.1 hereof, this Agreement and the
Plan of Merger shall become void and have no effect, except that (i) the
provisions relating to confidentiality, fees and expenses set forth in Sections
4.5, 6.2(b) and 7.1 hereof, respectively, shall survive any such termination;
and (ii) a termination pursuant to Section 6.1(b)(i) or 6.1(b)(ii) hereof shall
not relieve the breaching party from liability for an uncured willful breach of
such covenant or agreement or representation or warranty giving rise to such
termination.
(b) Seller and Purchaser each acknowledge that the other has spent,
and shall be required to spend, substantial time and effort in examining the
business, properties, affairs, financial condition and prospects of the other,
has incurred, and shall continue to incur, substantial fees and expenses in
connection with such examination, the preparation of this Reorganization
Agreement and the accomplishment of the transactions contemplated hereby, and
shall be unable to evaluate and, possibly, make investments in or acquire other
entities due to the limited number of personnel available for such purpose and
the constraints of time. Therefore, to induce Purchaser and Seller to enter into
this Reorganization Agreement, in the event this Reorganization Agreement and
the Plan of Merger are terminated:
31
(i) by Purchaser pursuant to Section 6.1(f) hereof; or
(ii) by Seller or Purchaser pursuant to Section 6.1(e) hereof
because of the failure to obtain the required approval of Seller's shareholders
and, if (A) at or prior to the Seller's shareholders meeting a Takeover Proposal
shall have been publicly announced or disclosed (whether or not such offer,
proposal or announcement or agreement shall have been rejected or shall have
been withdrawn prior to the time of such termination or of Seller's
shareholders' meeting) and (B)(1) a third party or "group" (within the meaning
of Rule 13d-5 under the Exchange Act), directly or indirectly, acquires Seller
Common Stock which results in a such third party or "group" having beneficial
ownership of fifty percent (50%) or more of the then outstanding Seller Common
Stock or (2) a sale, transfer or license (having similar effect as a sale or
transfer) of fifty percent (50%) or more of the fair market value of the assets
of Seller, other than in the ordinary course of business, or (3) a definitive
agreement with respect to any transaction referred to in (1) or (2) is executed
by Seller or any Seller Subsidiaries, in the case of (1), (2) or (3), within one
(1) year following termination of this Reorganization Agreement and the Plan of
Merger pursuant to this Section 6.1(e);
(iii) By Seller pursuant to Sections 6.1(d) or 6.1(g), if the
failure to obtain the required regulatory approvals, in the one case, or the
failure of the Closing Date to occur by the close of business on March 31, 2003,
in the other, is directly caused by Purchaser having entered into an agreement
to acquire another bank or bank holding company;
then, in the case of clause (i), Seller shall pay to Purchaser by wire transfer
of the same day funds promptly, but not later than two (2) business days after
the date of such termination, a termination fee of $ 6,375,000 (the "Termination
Fee"), and, in the case of clause (ii), Seller shall pay the Termination Fee to
Purchaser by wire transfer of same day funds promptly, but not later than two
(2) business days after satisfaction of all conditions to the payment thereof
set forth in clause (ii), and in the case of clause (iii), Purchaser shall pay
the Termination Fee to Seller by wire transfer of same day funds promptly, not
later than two (2) business days after the date of such termination, the
Termination Fee. In the event that one party is entitled to the Termination Fee,
the party paying the Termination Fee shall also pay the receiving party interest
at the rate of seven and one-half percent (7.5%) per annum on any amounts that
are not paid when due, plus all costs and expense in connection with or arising
out of the enforcement of the obligation of the party paying the Termination Fee
to pay such fee or such interest.
6.3. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
All representations, warranties and covenants in this Reorganization
Agreement and the Plan of Merger or in any instrument delivered pursuant hereto
or thereto shall expire on, and be terminated and extinguished at, the Effective
Date other than covenants that by their terms are to survive or be performed
after the Effective Date; provided, that no such representations, warranties or
covenants shall be deemed to be terminated or extinguished so as to deprive
Purchaser, Merger Sub or Seller (or any director, officer or
32
controlling person thereof) of any defense in law or equity which otherwise
would be available against the claims of any person, including, without
limitation, any shareholder or former shareholder of Seller, the aforesaid
representations, warranties and covenants being material inducements to the
consummation by Purchaser and Seller of the transactions contemplated herein.
6.4. WAIVER
Except where prohibited by law, Purchaser and Seller, respectively, by
written instrument signed by an executive officer of such party, may at any time
(whether before or after approval of this Reorganization Agreement and the Plan
of Merger by the shareholders of Seller) extend the time for the performance of
any of the obligations or other acts of Seller, on the one hand, or Purchaser or
Merger Sub, on the other hand, and may waive (i) any inaccuracies of such
parties in the representations or warranties contained in this Agreement, the
Plan of Merger or any document delivered pursuant hereto or thereto; (ii)
compliance with any of the covenants, undertakings or agreements of such
parties, or satisfaction of any of the conditions precedent to its obligations,
contained herein or in the Plan of Merger; or (iii) the performance by such
parties of any of its obligations set out herein or therein; provided, however,
that no such waiver, or amendment or supplement contemplated by Section 6.5
hereof, executed after approval of this Reorganization Agreement and the Plan of
Merger by the shareholders of Seller shall, without the further approval
thereof, change the amount or kind of Merger Consideration.
6.5. AMENDMENT OR SUPPLEMENT
This Reorganization Agreement and the Plan of Merger may be amended or
supplemented at any time only by mutual agreement of the parties hereto or
thereto. Any such amendment or supplement must be in writing and approved by
their respective boards of directors and/or officers authorized thereby and
shall be subject to the proviso in Section 6.4 hereto.
ARTICLE 7.
MISCELLANEOUS
7.1. EXPENSES
Except as otherwise provided in Section 6.2(b) hereof, each party hereto
shall bear and pay all costs and expenses incurred by it in connection with the
transactions contemplated in this Reorganization Agreement, including fees and
expenses of its own financial consultants, accountants and counsel, except that
Purchaser and Seller each shall bear and pay fifty percent (50%) of all printing
and mailing costs and filing fees associated with the Proxy Statement.
7.2. ENTIRE AGREEMENT
This Reorganization Agreement and the Plan of Merger contain the entire
agreement between the parties with respect to the transactions contemplated
hereunder
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and thereunder and supersede all prior arrangements or understandings with
respect thereto, written or oral, other than documents referred to herein or
therein and the Confidentiality Agreement. The terms and conditions of this
Reorganization Agreement and the Plan of Merger shall inure to the benefit of
and be binding upon the parties hereto and thereto and their respective
successors. Except as specifically set forth herein, or in the Plan of Merger,
nothing in this Reorganization Agreement or the Plan of Merger, expressed or
implied, is intended to confer upon any party, other than the parties hereto and
thereto, and their respective successors, any rights, remedies, obligations or
liabilities.
7.3. NO ASSIGNMENT
No party hereto may assign any of its rights or obligations under this
Reorganization Agreement to any other person.
7.4. ALTERNATIVE STRUCTURE
Notwithstanding any provision of this Reorganization Agreement to the
contrary, Purchaser may, with the written consent of Seller, which shall not be
unreasonably withheld, elect, subject to the filing of all necessary
applications and the receipt of all required regulatory approvals, to modify the
structure of the acquisition of Seller and the Seller Subsidiaries set forth
herein; provided, that (i) the consideration to be paid to the holders of the
Seller Common Stock is not thereby changed in kind or reduced in amount as a
result of such modification; and (ii) such modification shall not materially
delay or jeopardize the consummation of the transactions contemplated by the
Reorganization Agreement and the Plan of Merger; provided, further, that
Purchaser shall pay all costs, if any, associated with any such modifications of
structure.
7.5. NOTICES
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally or sent by
facsimile transmission or overnight express or by registered or certified mail,
postage prepaid, addressed as follows:
If to Seller:
VIB Corp
0000 Xxxx Xxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxx
Facsimile No: 760.337.3229
With a required copy to:
Horgan, Rosen, Beckham & Coren, L.L.P.
00000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
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Attn: S. Xxxx Xxxxx, Esq.
Facsimile No: 818.591.3838
If to Purchaser or Merger Sub:
Rabobank International
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxx Xxxxxx
Facsimile No: 212.916.7880
With a required copy to:
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxxxxxxxx, Esq.
Facsimile No: 212.715.1399
7.6. CAPTIONS
The captions contained in this Reorganization Agreement are for
reference purposes only and are not part of this Reorganization Agreement.
7.7. COUNTERPARTS
This Reorganization Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
7.8. GOVERNING LAW
This Reorganization Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to agreements
made and entirely to be performed within such jurisdiction, except to the extent
federal law may be applicable.
[Remainder of page left intentionally blank; signatures
appear on the following page.]
35
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Reorganization Agreement to be executed in counterparts
by their duly authorized officers and their corporate seal to be hereunto
affixed and attested by their officers thereunto duly authorized, all as of the
day and year first above written.
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
RABOBANK NEDERLAND
By /s/ Cor F. Broekhuyse By /s/ Xxxx Xxxxx
------------------------ ------------------------
Executive Vice President Senior Vice President
UTRECHT-AMERICA
ACQUISITION CORP. I
By: /s/ Cor F. Broekhuyse By: /s/ Xxxxxxxxx Xxxxxx
----------------------- -----------------------
President Vice President
VIB CORP
By: /s/ Xxxxxx X. Xxxx By /s/ Xxxxxxxxx Xxxxxx
----------------------- -----------------------
President and Secretary
Chief Executive Officer
36
ANNEX A
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER OF
UTRECHT-AMERICAN ACQUISITION CORP. I
WITH AND INTO VIB CORP
AGREEMENT AND PLAN OF MERGER ("Plan of Merger") dated as of July 30,
2002, by and between VIB CORP ("Seller"), a California corporation having its
principal executive office at 0000 Xxxx Xxxxxx, Xx Xxxxxx, Xxxxxxxxxx 00000,
UTRECHT-AMERICA ACQUISITION CORP. I ("Merger Sub"), a California corporation
having its principal executive office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., RABOBANK
NEDERLAND ("Purchaser"), a cooperative bank organized under the laws of The
Netherlands having its registered office in Amsterdam, The Netherlands.
WITNESSETH
WHEREAS, the respective Boards of Directors of Seller and Merger Sub and
the Supervisory Board and the Board of Management of Purchaser deem the merger
of Merger Sub with and into Seller, under and pursuant to the terms and
conditions herein set forth or referred to, desirable and in the best interests
of the respective corporations and their respective shareholders, and the
respective Boards of Directors of Seller and Merger Sub and the Supervisory
Board and the Board of Management of Purchaser have adopted resolutions
approving this Plan of Merger and an Agreement and Plan of Reorganization dated
of even date herewith ("Reorganization Agreement"); and
WHEREAS, the parties hereto desire that Seller shall be acquired by
Purchaser through the merger of Merger Sub with and into Seller, with Seller as
the surviving corporation, subject to the terms and conditions of this Plan of
Merger and the Reorganization Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto do hereby agree as follows:
ARTICLE 1.
MERGER
Subject to the terms and conditions of this Plan of Merger, at the
Effective Time (as hereinafter defined), Merger Sub shall be merged with and
into Seller, pursuant to the provisions of, and with the effect provided in, the
California General Corporation Law (said transaction being hereinafter referred
to as the "Merger"). At the Effective Time, the separate existence of Merger Sub
shall cease and Seller, as the surviving entity, shall continue unaffected and
unimpaired by the Merger (Seller as existing on and after the Effective Time
being hereinafter sometimes referred to as the "Surviving Corporation").
ARTICLE 2.
ARTICLES OF INCORPORATION AND BY-LAWS
The Articles of Incorporation and the By-Laws of Seller in effect
immediately prior to the Effective Time shall be the Articles of Incorporation
and the By-Laws of the Surviving Corporation, in each case until amended in
accordance with applicable law.
ARTICLE 3.
BOARD OF DIRECTORS AND OFFICERS
The directors of Merger Sub immediately prior to the Effective Time
shall be the directors of Seller, and the officers of Seller immediately prior
to the Effective Time shall be the officers of Seller, each to hold office in
accordance with the Articles of Incorporation and By-laws of Seller.
ARTICLE 4.
CAPITAL
At the Effective Time, all of the shares of capital stock of Merger Sub
issued and outstanding immediately prior to the Effective Time shall remain
outstanding and unchanged by virtue of the Merger and shall constitute all of
the issued and outstanding shares of capital stock of the Seller.
ARTICLE 5.
CONVERSION AND EXCHANGE OF SELLER SHARES
5.1 At the Effective Time, each share of the common stock of Seller, no
par value ("Seller Common Stock"), outstanding immediately prior to the
Effective Time (except as provided in Sections 5.2 and 5.3), together with the
rights attached thereto issued pursuant to the Preferred Shares Rights
Agreement, dated as of August 14, 2001, between Seller and U.S. Stock Transfer
Corporation, as rights agent, shall by virtue of the Merger be converted into
the right to receive $15.10 in cash (the "Merger Consideration").
5.2 At the Effective Time, all shares of Seller Common Stock held in the
treasury of Seller or owned beneficially by any subsidiary of Seller other than
in a fiduciary capacity (the "Trust Account Shares") or in connection with a
debt previously contracted ("DPC Shares"), and all shares of Seller Common Stock
owned by Purchaser or owned beneficially by any subsidiary of Purchaser other
than Trust Account Shares and DPC Shares shall be canceled and no cash, stock or
other property shall be delivered in exchange therefor.
5.3 Notwithstanding any other provisions contained in this Plan of
Merger, to the extent required by the California General Corporation Law, no
shares of Seller Common Stock that are issued and outstanding as of the
Effective Time and that are held by a shareholder, who has properly exercised
his appraisal rights (any such shares being referred to herein as "Dissenting
Shares") under applicable law, shall be converted into
2
the right to receive the Merger Consideration, unless and until the holder shall
have failed to perfect, or shall have effectively withdrawn or lost, his right
to dissent from the Merger under applicable law and to receive such
consideration as may be determined to be due with respect to such Dissenting
Shares pursuant to and subject to the requirements of applicable law. If any
such holder shall have failed to perfect or effectively withdrawn or lost such
holder's right to dissent from the Merger, each of such holder's shares of
Seller Common Stock shall thereupon be deemed to have been converted into and to
have become, at the Effective Time, the right to receive the Merger
Consideration.
5.4 As of the Closing Date, Purchaser shall deposit, or shall cause to
be deposited, with U.S. Stock Transfer Corporation (the "Payment Agent"), for
the benefit of the holders of shares of Seller Common Stock, for payment in
accordance with this Section 5.4, the Merger Consideration to be paid pursuant
to Section 5.1 and deposited pursuant to this Section 5.4 in exchange for
outstanding shares of Seller Common Stock. Promptly after the Effective Time,
Purchaser shall cause the Payment Agent to mail to each holder of record of a
certificate previously representing shares of Seller common Stock (a
"Certificate") the following: (i) a letter of transmittal specifying that
delivery shall be effected, and risk of loss and title to the Certificates shall
pass, only upon delivery of the Certificates to the Payment Agent, which shall
be in a form and contain such provisions as Purchaser and Seller may determine;
and (ii) instructions for use in effecting the surrender of the Certificates in
payment for the Merger Consideration. Upon the proper surrender of a Certificate
to the Payment Agent, together with a properly completed and duly executed
letter of transmittal, the holder of such Certificate shall be entitled to
receive in payment therefor a check representing the Merger Consideration which
such holder has the right to receive in respect of the Certificate surrendered
pursuant to the provisions hereof, and the Certificate so surrendered shall
forthwith be cancelled. No interest will be paid or accrued on the Merger
Consideration. In the event of a transfer of ownership of any shares of Seller
Common Stock not registered in the transfer records of Seller, a check for the
Merger Consideration may be issued to the transferee if the Certificate
representing such Seller Common Stock is presented to the Payment Agent,
accompanied by documents sufficient, in the discretion of Purchaser, (i) to
evidence and effect such transfer; and (ii) to evidence that all applicable
stock transfer taxes have been paid. Any portion of the aggregate Merger
Consideration or the proceeds of any investments thereof that remains unclaimed
by the shareholders of Seller for six months after the Effective Time shall be
repaid by the Payment Agent to Purchaser. Any shareholders of Seller who have
not theretofore complied with this Section 5.4 shall thereafter look only to
Purchaser for payment of the Merger Consideration deliverable in respect of each
share of Seller Common Stock such shareholder holds as determined pursuant to
this Plan of Merger without any interest thereon. Any other provision of this
Plan of Merger notwithstanding, neither Purchaser or its agent nor any party to
the Merger shall be liable to a holder of Seller Common Stock for any amount
paid or property delivered in good faith to a public official pursuant to any
applicable abandoned property, escheat or similar law. After the Effective Time,
the stock transfer books of Seller shall be closed and no transfer of Seller
Common Stock shall thereafter be made or recognized. If after the Effective Time
Certificates are presented to Purchaser or the Surviving Corporation, they shall
be cancelled and
3
exchanged for the Merger Consideration deliverable in respect thereof pursuant
to this Plan of Merger in accordance with the procedures set forth in this
Section 5.4.
5.5 At the Effective Time, the right to purchase shares of Seller Common
stock pursuant to stock options granted under the VIB Corp 1997 Stock Option
Plan ("Employee Stock Options") shall terminate and such options shall be
cancelled. With respect to each Employee Stock Option that (a) is outstanding
immediately prior to the Effective Time and (b) has an exercise price of less
than $15.10, the holder of such option shall be paid an amount equal to the
product of (i) the number of shares of Seller Common Stock subject to such
option immediately prior to the Effective Time, and (ii) the difference between
$15.10 and the aggregate exercise price of such option. All such amounts shall
be paid by Purchaser as soon as practicable after the Effective Time.
5.6 In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and, if required by Purchaser,
the posting by such person of a bond in such amount as Purchaser may reasonably
direct as indemnity against any claim that may be made against it with respect
to such Certificate, Purchaser or its agent will issue in exchange for such
lost, stolen or destroyed Certificate the Merger Consideration to which the
holder of such Certificate is entitled pursuant to Section 5.1.
ARTICLE 6.
EFFECTIVE TIME OF THE MERGER
This Plan of Merger shall be delivered to the California Secretary of
State for filing as provided in the Reorganization Agreement. The Merger shall
be effective at the time and on the date as designated by the California
Secretary of State (such date and time being herein referred to as the
"Effective Time").
ARTICLE 7.
FURTHER ASSURANCES
If at any time the Surviving Corporation shall consider or be advised
that any further assignments, conveyances or assurances are necessary or
desirable to vest, perfect or confirm in the Surviving Corporation title to any
property or rights of Merger Sub, or otherwise carry out the provisions hereof,
the proper officers and directors of Merger Sub, as of the Effective Time, and
thereafter the officers of the Surviving Corporation acting on behalf of Merger
Sub, shall execute and deliver any and all proper assignments, conveyances and
assurances, and do all things necessary or desirable to vest, perfect or confirm
title to such property or rights in the Surviving Corporation and otherwise
carry out the provisions hereof.
ARTICLE 8.
CONDITIONS PRECEDENT
4
The obligations of Purchaser, Merger Sub and Seller to effect the Merger
as herein provided shall be subject to satisfaction, unless duly waived, of the
conditions set forth in the Reorganization Agreement (which is incorporated
herein by reference).
ARTICLE 9.
TERMINATION
Anything contained in the Plan of Merger to the contrary
notwithstanding, and notwithstanding adoption hereof by the shareholders of
Seller, this Plan of Merger may be terminated and the Merger abandoned as
provided in the Reorganization Agreement.
ARTICLE 10.
MISCELLANEOUS
10.1 This Plan of Merger may be amended or supplemented at any time
prior to the Effective Time by mutual agreement of Purchaser, Merger Sub and
Seller. Any such amendment or supplement must be in writing and approved by
their respective Boards of Directors, in the cases of Merger Sub and Seller, and
the Supervisory Board and the Board of Management, in the case of Purchaser,
and/or by officers authorized thereby and shall be subject to the proviso in
Section 6.4 of the Reorganization Agreement.
10.2 Any notice or other communication required or permitted under this
Plan of Merger shall be given, and shall be effective, in accordance with the
provisions of the Reorganization Agreement.
10.3 The headings of the several Articles herein are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Plan of Merger.
10.4 This Plan of Merger shall be governed by and construed in
accordance with the laws of the State of California applicable to the internal
affairs of Seller and Merger Sub, respectively.
[Remainder of page left intentionally blank; signatures
appear on the following page.]
5
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement and Plan of Merger to be executed in
counterparts by their duly authorized officers as of the day and year first
above written.
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A.,
RABOBANK NEDERLAND
By /s/ Cor F. Breckhuyse By /s/ Xxxx Xxxxx
------------------------ ------------------------
Executive Vice President Senior Vice President
UTRECHT-AMERICA
ACQUISITION CORP. I
By: /s/ Cor F. Broekhuyse By: /s/ Xxxxxxxxx Xxxxxx
----------------------- -----------------------
President Vice President
VIB CORP
By: /s/ Xxxxxx X. Xxxx By /s/ Xxxxxxxxx Xxxxxx
------------------------ ------------------------
President and Secretary
Chief Executive Officer
6
