EXHIBIT 2.2
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER, dated as of July 14, 2006 (this "Merger
Agreement"), is made and entered into by and between SAN XXXXXXX BANK (the
"Bank"), SAN XXXXXXX REORGANIZATION CORP. ("Reorganization Co."), and SAN
XXXXXXX BANCORP (the "Holding Company").
RECITALS AND UNDERTAKINGS
A. The Bank is a California state-chartered bank with its principal office in
the City of Bakersfield, State of California. Reorganization Co. is a
corporation duly organized and existing under the laws of the State of
California. The Holding Company is a corporation duly organized and existing
under the laws of the State of California with its principal office in the City
of Bakersfield, State of California.
B. As of the date hereof, the Bank has 10,000,000 shares of common stock
without par value authorized and 5,000,000 shares of preferred stock authorized.
As of the date hereof, 3,477,712 shares of common stock are issued and
outstanding and no shares of preferred stock are outstanding.
C. As of the date hereof, Reorganization Co. has 100 shares of common stock
without par value authorized. Immediately prior to the Effective Date (as such
term is defined below), 100 shares of such common stock will be issued and
outstanding, all of which shares will be owned by the Holding Company.
D. As of the date hereof, the Holding Company has 20,000,000 shares of common
stock without par value authorized and 5,000,000 shares of preferred stock
authorized. As of the date hereof, the Holding Company has one share of common
stock issued and outstanding and no shares of preferred stock outstanding.
E. The Boards of Directors of the Bank, the Holding Company and
Reorganization Co., respectively, have unanimously approved an Agreement and
Plan of Reorganization dated of even date herewith (the "Agreement"), providing,
among other things, for the execution and filing of this Merger Agreement.
F. The Holding Company, as sole shareholder of Reorganization Co., has
approved the Agreement and this Merger Agreement and authorized their execution,
and Xxxxx Xxxxxx, as sole shareholder of the Holding Company, has approved this
Agreement and authorized its execution.
NOW, THEREFORE, in consideration of the promises and mutual agreements
contained in this Merger Agreement, the parties to this Merger Agreement hereby
agree that Reorganization Co. shall be merged with and into the Bank (the
"Merger") in accordance with the provisions of the laws of the State of
California upon the terns and subject to the conditions set forth as follows:
1. MERGER.
1.1 EFFECTIVE DATE. 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.
1.2 EFFECT OF THE MERGER. On the Effective Date, Reorganization Co.
shall be merged with and into the Bank and the separate corporate existence of
Reorganization Co. shall cease. The Bank 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, Reorganization Co. and the separate existence of the
Bank 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 ARTICLES OF INCORPORATION AND BY-LAWS. From and after the Effective
Date and until thereafter amended as provided by law: (a) the Articles of
Incorporation of the Bank 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 the Bank as in effect immediately prior to
the Effective Date shall be and continue to be the Bylaws of the Surviving
Corporation.
2.2 DIRECTORS AND OFFICERS. On the Effective Date: (a) the directors of
the Surviving Corporation shall be those persons who are the directors of the
Bank immediately prior to the Effective Date; and (b) the officers of the
Surviving Corporation shall be those persons who are the officers of the Bank at
the Effective Date.
3. STOCK.
3.1 STOCK OF REORGANIZATION CO. At the Effective Date, each share of
common stock of Reorganization Co. issued and outstanding immediately prior to
the Effective Date shall, by virtue of the Merger, be deemed to be exchanged for
and converted into one share of fully paid and nonassessable common stock of the
Bank.
3.2 STOCK OF THE BANK. At the Effective Date, each share of common stock
of the Bank issued and outstanding immediately prior to the Effective Date
shall, by virtue of the Merger, be deemed to be exchanged for and converted into
one share of fully paid and nonassessable common stock of the Holding Company,
in accordance with the provisions of Section 3.3 hereto.
3.3 EXCHANGE OF STOCK BY THE BANK SHAREHOLDERS. At the Effective Date
or as soon as practicable thereafter, the following actions shall be taken to
effectuate the exchange and conversion specified in Section 3.2 hereof:
(a) The shareholders of the Bank of record immediately prior to
the Effective Date shall be allocated and entitled to receive for each share of
common stock of the Bank then held by them respectively one share of common
stock of the Holding Company.
(b) Subject to the provisions of Section 3.3(c) hereof, the
Holding Company shall issue to the shareholders of the Bank the shares of common
stock of the Holding Company which said shareholders are entitled to receive.
(c) After the Effective Time, outstanding certificates
representing shares of common stock of the Bank (except certificates issued to
the Holding Company in connection with the Merger) shall represent shares of
common stock of the Holding Company, and such certificates may, but need not, be
exchanged by the holders thereof for new certificates for the appropriate number
of shares of the Holding Company.
4. TERMINATION OR AMENDMENT.
4.1 This Merger Agreement shall terminate forthwith in the event that
the Agreement shall be terminated as therein provided.
4.2 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 Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxxx 00000.
5.2 A copy of the Agreement will be furnished by the Surviving
Corporation, on request and without cost to any shareholder of Reorganization
Co. or the Bank.
5.3 The Agreement between the parties to the Merger has been executed by
the parties in accordance with the requirements of Chapter 12 of the California
General Corporation Law.
IN WITNESS WHEREOF, the parties have duly executed this Merger Agreement
as of the date first written above.
Bank: SAN XXXXXXX BANK
By: /S/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Its: Chairman of the Board
By: /S/ XXXXXXX X. XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Its: Secretary
Reorganization Co.: SAN XXXXXXX REORGANIZATION CORP.
By: /S/ XXXXX XXXXXX
--------------------
Name: Xxxxx Xxxxxx
Its: Chairman of the Board and Chief
Executive Officer
By: /S/ XXXXXXX X. XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Its: Secretary
Holding Company: SAN XXXXXXX BANCORP
By: /S/ XXXXX XXXXXX
--------------------
Name: Xxxxx Xxxxxx
Its: Chairman of the Board and Chief
Executive Officer
By: /S/ XXXXXXX X. XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Its: Secretary
