EXHIBIT 2.2.1
VOTING AGREEMENT
This VOTING AGREEMENT ("Agreement") is made as of August 25, 2004, among
the undersigned individual (the "Shareholder") and Westamerica Bancorporation
("Westamerica")
Recitals
A. Westamerica, Westamerica Bank, Redwood Empire Bancorp ("Redwood
Empire") and National Bank of the Redwoods ("NBR") have entered into an
Agreement and Plan of Reorganization, dated as of August 25, 2004 (the "Plan").
The Plan generally provides for the merger of Redwood Empire into Westamerica
(the "Merger"), the merger of NBR into Westamerica Bank (the "Bank Merger" and
together with the Merger, the "Mergers") and the conversion of the issued and
outstanding shares of the common stock of Redwood Empire ("Redwood Empire common
stock") into a combination of cash and common stock of Westamerica. The Plan is
subject to the affirmative vote of holders of a majority of the outstanding
shares of Redwood Empire common stock, the receipt of certain regulatory
approvals, and the satisfaction of other conditions set forth in the Plan.
B. The Shareholder is among the largest shareholders of Redwood Empire
common stock. In order to induce Westamerica and Westamerica Bank to enter into
the Plan, Shareholder is entering into this Agreement with Westamerica to set
forth certain terms and conditions governing the actions to be taken by
Shareholder solely in his or her capacity as a holder of shares of Redwood
Empire common stock (the "Shares") with respect to the Shares held by such
Shareholder until consummation of the Merger.
NOW, THEREFORE, in consideration of the transactions contemplated by the
Plan and the mutual promises and covenants contained herein, the parties agree
as follows:
Agreement
SECTION 1. LIMITATIONS ON TRANSFER OF SHARES.
Without the prior written consent of Westamerica, which consent shall not
be unreasonably withheld, conditioned or delayed, Shareholder shall not
transfer, sell, assign, convey or encumber any of the Shares during the term of
this Agreement except (a) for transfers (i) by operation of law, by will, or
pursuant to the laws of descent and distribution, and (ii) in which the
transferee shall agree in writing to be bound by the provisions of paragraphs 1,
2, 3 and 4 of this Agreement as fully as Shareholder, or (b) pursuant to
foreclosure of a bona fide pledge of the Shares to secure indebtedness not
related to Redwood Empire, NBR or the Merger, provided the transferee shall
agree in writing to be bound by the provisions of paragraphs 1, 2, 3 and 4 of
this Agreement as fully as Shareholder, or (c) in exchange for cash and
securities pursuant to the terms of the Plan. Without limiting the generality of
the foregoing, Shareholder shall not grant to any party any option or right to
purchase the Shares or any interest therein.
SECTION 2. COMMITMENT TO VOTE IN FAVOR OF MERGER.
Shareholder intends to, and will, vote (or cause to be voted) all of the
Shares over which Shareholder has voting authority (other than in a fiduciary
capacity) in favor of the Plan and the Merger at any meeting of shareholders of
Redwood Empire called to vote on the Plan or either of the Merger or the
adjournment thereof or in any other circumstance upon which a vote, consent or
other approval with respect to the Plan or the Merger is sought. Further,
Shareholder intends to, and will, surrender the certificate or certificates
representing the Shares over which Shareholder has dispositive authority to the
Exchange Agent upon consummation of the Merger as described in the Plan and
hereby waives any rights of appraisal, or rights to dissent from the Merger,
that Shareholder may have.
SECTION 3. COMMITMENT TO VOTE AGAINST COMPETING TRANSACTION.
Except as otherwise provided in this Agreement, at any meeting of
shareholders of Redwood Empire or at any adjournment thereof or any other
circumstances upon which their vote, consent or other approval is sought,
Shareholder will vote (or cause to be voted) all of the Shares over which
Shareholder has voting authority (other than in a fiduciary capacity) against
(i) any merger agreement, share exchange or merger (other than the Plan and the
Merger), consolidation, liquidation, winding-up or sale of assets of or by
Redwood Empire or NBR or any other form of Business Combination (as defined in
the Plan), or (ii) any amendment of Redwood Empire's Articles of Incorporation
or Bylaws or other proposal or transaction involving Redwood Empire or any of
its subsidiaries, which amendment or other proposal or transaction would in any
manner impede, frustrate, prevent or nullify the Merger, the Plan, or any of the
other transactions contemplated thereby.
SECTION 4. PROXY.
Concurrently with the execution of this Agreement, Shareholder shall
deliver to Westamerica an executed proxy with respect to the Shares in the form
attached as Exhibit A to this Agreement. This proxy shall be irrevocable to the
maximum extent permitted by applicable law during, but only during, the term of
this Agreement.
SECTION 5. COVENANTS.
(a) No Solicitation. From the date hereof until the Expiration Date,
Shareholder shall not, and shall not authorize or permit any agent or
representative of Shareholder to, directly or indirectly, initiate, solicit or
encourage (including by way of furnishing information or assistance), or take
any other action to facilitate, or negotiate or discuss, or enter into any
agreement with respect to, a proposal for any Business Combination (other than
with Westamerica). Shareholder agrees to promptly notify Westamerica (orally and
in writing) of any proposal for any Business Combination, including the identity
of the prospective purchaser or soliciting party and the terms of any such
proposal for a Business Combination.
(b) No Opposition. Shareholder agrees that he or she shall not take,
or cause to be taken, any action that (i) is reasonably likely to result in a
breach of any representation,
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warranty, covenant or other obligation of Redwood Empire or NBR under the Plan
or that is reasonably likely to preclude fulfillment of a condition precedent
under the Plan to Redwood Empire's or NBR's obligation to consummate either of
the Mergers or (ii) is intended to, or is reasonably likely to, impede,
interfere with, delay, postpone, discourage or adversely affect either of the
Mergers or any of the other transactions contemplated by the Plan.
(c) Further Assurances. From time to time and without additional
consideration, Shareholder shall execute and deliver, or cause to be executed or
delivered, before or after the Effective Time of the Merger, such additional
proxies, consents and other instruments and shall take such further actions as
Westamerica may reasonably request for the purpose of carrying out and
furthering the intent of this Agreement, unless and to the extent such action
would require Shareholder to surrender a right not contemplated by this
Agreement.
SECTION 6. MISCELLANEOUS.
(a) Specific Performance. Shareholder acknowledges and agrees that
Westamerica could not be made whole by monetary damages in the event of any
default by Shareholder of the terms and conditions set forth in this Agreement.
It is accordingly agreed and understood that Westamerica, in addition to any
other remedy which it may have at law or in equity, shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and specifically
to enforce the terms and provisions hereof in any action instituted in any state
or federal court having appropriate jurisdiction located in the State of
California.
(b) Provisions Severable. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
(c) Termination. The covenants and obligations set forth in this
Agreement shall expire and be of no further force and effect on the earlier of:
(i) May 18, 2005, or such date to which the Plan is extended; or (ii) the date
on which the Plan is terminated under Section 11 thereof (the "Expiration
Date").
(d) Counterparts. This Agreement may be signed in counterparts. .
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year hereinabove written.
Westamerica Bancorporation Shareholder:
By /s/ David L. Payne /s/ B. John Barry
---------------------------- --------------------------------
Its Chairman, President and B. John Barry
Chief Executive Officer
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Exhibit A
IRREVOCABLE PROXY
The undersigned holder of capital stock of Redwood Empire Bancorp, a
California corporation ("Redwood Empire"), hereby grants to Westamerica
Bancorporation, a California corporation (the "Proxyholder"), an irrevocable
proxy to vote his or her shares of capital stock of Redwood Empire, limited to
the matters described in the next three paragraphs (this "Proxy").
During such time as this Proxy is in effect, the Proxyholder may vote or
execute and deliver written consents, with respect to all of the shares of
Redwood Empire's capital stock now owned or hereafter acquired by the
undersigned, as fully, to the same extent and with the same effect as the
undersigned might or could do under any applicable laws or regulations governing
the rights and powers of shareholders of a California corporation, to take, in
the Proxyholder's sole discretion, all actions necessary or appropriate to:
(a) approve, consent to or effectuate (i) the merger of Redwood Empire
into the Proxyholder (the "Merger"), and the merger of National Bank of the
Redwoods ("NBR") into Westamerica Bank (the "Bank Merger" and together with the
Merger, the "Mergers") pursuant to the Agreement and Plan of Reorganization,
dated as of August 25, 2004 by and among Redwood Empire, the Proxyholder, NBR
and Westamerica Bank (the "Plan") and (ii) the Plan; and
(b) disapprove, withhold consent to or reject (i) any merger agreement,
share exchange or merger (other than the Plan and the Mergers), consolidation,
liquidation, winding-up or sale of assets of or by Redwood Empire or NBR or any
other form of Business Combination (as defined in the Plan), or (ii) any
amendment of Redwood Empire's Articles of Incorporation or Bylaws or other
proposal or transaction involving Redwood Empire or any of its subsidiaries,
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which amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Mergers, the Plan, or any of the other
transactions contemplated thereby.
This Proxy does not grant the Proxyholder any rights with respect to the
shares of Redwood Empire capital stock owned by the undersigned except as set
forth in the prior three paragraphs. The undersigned hereby affirms that this
Proxy is coupled with an interest and is irrevocable during the term of this
proxy. Notwithstanding any provision herein to the contrary, this Proxy shall
automatically terminate and be of no further force or effect on the Expiration
Date as defined in the Voting Agreement of even date herewith by and between the
undersigned and the Proxyholder.
SUBJECT TO THE TERMS AND CONDITIONS OF THIS PROXY, THIS PROXY SHALL REMAIN
IN FULL FORCE AND EFFECT AND BE ENFORCEABLE AGAINST ANY DONEE, TRANSFEREE OR
ASSIGNEE OF THE STOCK SUBJECT HERETO.
Dated this 25th day of August, 2004.
/s/ B. John Barry
---------------------------------
Name: B. John Barry
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