Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER, dated as of April 11, 1997 (this
"Merger Agreement"), is made and entered into by and between ValliCorp
Holdings, Inc., a Delaware corporation ("Seller") and Westamerica
Bancorporation, a California corporation ("Buyer").
W I T N E S S E T H:
A. The Boards of Directors of Buyer and Seller have approved, and
deem it advisable and in the best interests of Buyer, Seller and their
respective shareholders, that Buyer and Seller consummate the business
transaction provided for herein in which Seller would merge with and
into Buyer (the "Merger").
B. Buyer and Seller have entered into an Agreement and Plan of
Reorganization dated as of November 11, 1996 (the "Agreement"),
providing, among other things, for the execution and filing of this
Merger Agreement and the consummation of the Merger.
NOW, THEREFORE, in consideration of the promises and mutual
agreements contained in this Merger Agreement, the parties to this
Merger Agreement hereby agree that Seller shall be merged with and into
Buyer in accordance with the provisions of the laws of the State of
California and the State of Delaware upon the terms and subject to the
conditions set forth as follows:
1. The Merger.
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1.1 Effective Time. On April 12, 1997, upon the filing with the
California Secretary of State of a duly executed counterpart of this
Merger Agreement with the officers' certificates prescribed by Section
1103 of the California General Corporation Law attached thereto, the
Merger shall become effective. The effective time of the Merger on the
Effective Date shall be 12:01 a.m., Pacific Daylight Time.
1.2 Effect of the Merger. On the Effective Date, Seller shall be
merged with and into Buyer and the separate corporate existence of
Seller shall cease. Buyer shall be the surviving corporation (the
"Surviving Corporation") in the Merger. It shall thereupon succeed,
without other transfer, to all rights and properties of, and shall be
subject to all the debts and liabilities of, Seller and the separate
existence of Buyer as a California corporation, with all its purposes,
objects, rights, powers, privileges and franchises shall continue
unaffected and unimpaired by the Merger.
2. Corporate Governance Matters.
2.1 From and after the Effective Date and until thereafter amended
as provided by law: (a) the Articles of Incorporation of Buyer as in
effect immediately prior to the Effective Date shall be and continue to
be the Articles of Incorporation of the Surviving Corporation; and
(b) the Bylaws of Buyer as in effect immediately prior to the Effective
Date shall be and continue to be the Bylaws of the Surviving
Corporation.
2.2 On the Effective Date: (a) the directors of the Surviving
Corporation shall be those persons who are the directors of Buyer
immediately prior to the Effective Date; and (b) the officers of the
Surviving Corporation shall be those persons who are the officers of
Buyer at the Effective Date.
3. Conversion of Shares.
3.1 Conversion of Seller Shares. As of the Effective Date, by
virtue of the Merger and without any action on the part of the holder
of the common stock of Seller, par value $.01 per share (a "Seller Share"
or "Seller Common Stock"):
(a) Each issued and outstanding Seller Share (other than
fractional shares, or any shares as to which dissenters' rights
have been perfected), shall be converted into .3479 shares of the
common stock, without par value, of Buyer ("Buyer Common Stock"
or a "Buyer Share").
(b) From and after the Effective Date, the holders of
certificates formerly representing Seller Shares shall cease to
have any rights with respect thereto other than any dissenters'
rights they have perfected pursuant to Section 262 of the General
Corporation Law of the State of Delaware.
(c) On the Effective Date, 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 or in
connection with a debt previously contracted and all shares of
Seller Common Stock owned by Buyer or owned beneficially by any
subsidiary of Buyer other than in a fiduciary capacity or in
connection with a debt previously contracted shall be canceled
and no cash, stock or other property shall be delivered in
exchange therefor.
3.2 Fractional Shares. Notwithstanding any other provision
hereof, no fractional shares of Buyer Common Stock shall be issued to
holders of Seller Shares. In lieu thereof, each such holder entitled to
a fraction of a share of Buyer Common Stock shall receive, at the time
of surrender of the certificate or certificates representing such
holder's Seller Shares, an amount in cash equal to the market value per
share of the Common Stock of Buyer, calculated by taking the average of
the closing price quoted on the Nasdaq, as reported in The Wall Street
Journal, for each of the twenty consecutive trading days prior to five
trading days prior to the Effective Date, rounded to 4 decimal places
(whether or not there were any trades in Buyer Common Stock on such
days), multiplied by the fraction of a share of Buyer Common Stock to
which such holder otherwise would be entitled. No such holder shall be
entitled to dividends, voting rights, interest on the value of, or any
other rights in respect of, a fractional share.
3.3 Surrender of Seller Shares.
(a) Prior to the Effective Date, Buyer shall appoint Chemical
Trust Company of California or its successor, or any other bank or trust
company (having capital of at least $50 million) mutually acceptable to
Seller and Buyer, as exchange agent (the "Exchange Agent") for the
purpose of exchanging certificates representing the Buyer Common Stock,
and at and after the Effective Date, Buyer shall issue and deliver to
the Exchange Agent certificates representing the Buyer Common Stock, as
shall be required to be delivered to holders of Seller Shares pursuant
to Section 3.1 of this Merger Agreement. As soon as practicable after
the Effective Date, each holder of Seller Shares converted pursuant to
Section 3.1, upon surrender to the Exchange Agent of one or more
certificates for such Seller Shares for cancellation, along with duly
executed transmittal materials to be mailed after the Effective Date by
the Exchange Agent, will be entitled to receive a certificate
representing the number of shares of Buyer Common Stock determined in
accordance with Section 3.1 and a payment in cash with respect to
fractional shares, if any, determined in accordance with Section 3.2.
Each certificate representing Buyer Common Stock will bear a notation
incorporating the Amended Rights Agreement (as that term is defined in
Section 1.4 of the Agreement) by reference and certificates representing
the Buyer Common Stock will evidence and entitle the holders thereof to
certain rights as set forth in and subject to the terms of the Amended
Rights Agreement ("Rights"). Certificates issued for the Buyer Common
Stock shall be deemed to be certificates for said Rights.
(b) No dividends or other distributions of any kind which are
declared payable to shareholders of record of the Buyer Common Stock
after the Effective Date will be paid to persons entitled to receive
such certificates for Buyer Common Stock until such persons surrender
their certificates representing Seller Shares. Upon surrender of such
certificates representing Seller Shares, the holder thereof shall be
paid, without interest, any dividends or other distributions with
respect to the Buyer Common Stock as to which the record date and
payment date occurred on or after the Effective Date and on or before
the date of surrender.
(c) If any certificate for a Buyer Share is to be issued in a name
other than that in which the certificate for a Seller Share surrendered
in exchange therefor is registered, it shall be a condition of such
exchange that the person requesting such exchange shall pay to the
Exchange Agent any transfer costs, taxes or other expenses required by
reason of the issuance of certificates for such Buyer Share in a name
other than the registered holder of the certificate surrendered, or such
persons shall establish to the satisfaction of Buyer and the Exchange
Agent that such costs, taxes or other expenses have been paid or are not
applicable.
(d) All dividends or distributions, and any cash to be paid
pursuant to Section 3.2 in lieu of fractional shares, if held by the
Exchange Agent for payment or delivery to the holders of unsurrendered
certificates representing Seller Shares and unclaimed at the end of one
year from the Effective Date, shall (together with any interest earned
thereon) at such time be paid or redelivered by the Exchange Agent to
Buyer, and after such time any holder of a certificate representing a
Seller Share who has not surrendered such certificate to the Exchange
Agent shall, subject to applicable law, look as a general creditor only
to Buyer for payment or delivery of such dividends or distributions or
cash, as the case may be. Buyer shall not be liable to any holder of a
share of Seller Common Stock for such share (or dividends or
distributions with respect thereto) delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law.
(e) Upon the Effective Date, the stock transfer books of Seller
shall be closed and no transfer of Seller Common Stock shall thereafter
be made or recognized.
(f) In the event that prior to the Effective Date the outstanding
shares of Buyer Common Stock or Seller Common Stock shall have been
increased, decreased or changed into or exchanged for a different number
or kind of shares or securities by recapitalization, reclassification,
stock dividend, stock split or other like changes in Buyer's or Seller's
capitalization, or a distribution shall be made on Buyer Common Stock or
Seller Common Stock in any security convertible into Buyer Common Stock
or Seller Common Stock, respectively (provided that no such action shall
be taken by Seller without Buyer's prior written consent pursuant to
Section 5.2 of the Agreement), then an appropriate and proportionate
adjustment shall be made in the number and kind of shares of Buyer
Common Stock to be thereafter delivered pursuant to this Merger
Agreement.
3.4 All shares of Buyer Common Stock shall remain outstanding and
unaffected by the Merger.
4. Termination and Amendment.
4.1 The obligations of the parties to effect the Merger shall be
subject to all the terms and conditions contained in the Agreement.
Notwithstanding the approval of this Merger Agreement by the
shareholders of Seller or Buyer, this Merger Agreement shall terminate
forthwith in the event that the Agreement shall be terminated as therein
provided.
4.2 This Merger Agreement may be amended by Buyer and Seller at
any time prior to the Effective Date without the approval of the share-
holders of Seller or Buyer with respect to any of its terms except any
change in its principal terms or in the terms relating to the form or
amount of consideration to be delivered to the Seller shareholders in
the Merger. This Merger Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties hereto.
4.3 This Merger Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, and all of
which shall be deemed but one and the same instrument.
5. Miscellaneous.
5.1 The Agreement is and will be maintained on file at the
principal place of business of the Surviving Corporation. The address
of the principal place of business of the Surviving Corporation is 0000
Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000.
5.2 A copy of the Agreement will be furnished by the Surviving
Corporation, on request and without cost to any stockholder of Seller or
Buyer.
5.3 The Agreement between the parties to the Merger has been
approved, adopted, certified, executed and acknowledged by each of the
Seller and Buyer pursuant to Section 252 of the General Corporation Law
of the State of Delaware, and executed by the parties in accordance with
the requirements of Chapter 12 of the California General Corporation
Law.
5.4 The Surviving Corporation agrees that it may be served with
process in the State of Delaware in any proceeding for enforcement of
any obligation of Seller, as well as for enforcement of any obligation
of the Surviving Corporation arising from the Merger, including any suit
or other proceedings to enforce the right of any stockholders as
determined in appraisal proceedings pursuant to the provisions of
Section 262 of the General Corporation Law of the State of Delaware, and
irrevocably appoints the Secretary of State of the State of Delaware as
its agent to accept service of process in any such suit or other
proceedings and directs the Secretary of State of the State of Delaware
to mail copies of such process to the following address: 0000 Xxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000.
IN WITNESS WHEREOF, the parties have duly executed this Merger
Agreement as of the date first written above.
BUYER
By /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, President and
Chief Executive Officer
By /s/ Xxxx Xxxx Xxxx
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Xxxx Xxxx Xxxx, Assistant
Corporate Secretary
SELLER
By /s/ Wolfgang T. N. Muelleck
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Wolfgang T.N. Muelleck,
President and Chief Executive Officer
By /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, Secretary
OFFICERS' CERTIFICATE
Xxxxx X. Xxxxx and Xxxx Xxxx Xxxx hereby certify that:
1. They are the President and Chief Executive Officer and
Assistant Corporate Secretary, respectively, of WESTAMERICA
BANCORPORATION, a corporation organized under the laws of the State of
California.
2. The Merger Agreement in the form attached was duly approved by
the Board of Directors and shareholders of the corporation.
3. The shareholder approval was by the holders of a number of
outstanding shares which equaled or exceeded the vote required. The
percentage vote required was more than 50% of the outstanding shares.
4. There is only one class of shares and the number of shares
outstanding is 9,465,721.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this certificate are
true and correct of our own knowledge.
Date: April 11, 1997
/s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX, President and
Chief Executive Officer
/s/ Xxxx Xxxx Xxxx
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XXXX XXXX XXXX, Assistant
Corporate Secretary
OFFICERS' CERTIFICATE
Wolfgang T.N. Muelleck and Xxxxx X. Xxxxxxx hereby certify that:
1. They are the President and Chief Executive Officer and
Secretary, respectively, of VALLICORP HOLDINGS, INC., a corporation
organized under the laws of the State of Delaware.
2 The Merger Agreement in the form attached was duly approved by
the Board of Directors and shareholders of the corporation.
3 The shareholder approval was by the holders of a number of
outstanding shares which equaled or exceeded the vote required. The
percentage vote required was more than 50% of the outstanding shares.
4. There is only one class of shares and the number of shares
outstanding is 14,307,832.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this certificate are
true and correct of our own knowledge.
Date: April 11, 1997
/s/ Wolfgang T. N. Muelleck
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WOLFGANG T.N. MUELLECK, President
and Chief Executive Officer
/s/ Xxxxx X. Xxxxxxx
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XXXXX X. XXXXXXX, Secretary
