Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
OF
TEMECULA MERGER CORPORATION
(A CALIFORNIA CORPORATION)
AND
TEMECULA VALLEY BANCORP INC.
(A DELAWARE CORPORATION)
This Agreement and Plan of Merger ("Merger Agreement") dated
as of November 7, 2003, is made by and between Temecula Merger Corporation, a
California corporation ("Temecula-California") and Temecula Valley Bancorp Inc.,
a Delaware corporation ("Temecula-Delaware" and together with
Temecula-California, the "Constituent Corporations").
RECITALS
A. Temecula-Delaware desires to merge with and into
Temecula-California, a California corporation that is a wholly-owned subsidiary
of Temecula-Delaware, and Temecula-California desires to merge with
Temecula-Delaware, all upon the terms and subject to the conditions of this
Merger Agreement (the "Proposed Merger").
B. Temecula-California is a corporation duly organized and
existing under the California General Corporation Law (the "CGCL").
Temecula-California has authorized capital of 40,000,000 shares of Common Stock,
no par value ("Temecula-California Common Stock"). As of the date hereof, one
share of Temecula-California Stock is issued and outstanding, which is held by
Temecula-Delaware.
C. Temecula-Delaware is a corporation duly organized and
existing under the Delaware General Corporation Law (the "DGCL").
Temecula-Delaware has authorized capital of 40,000,000 shares, consisting of
40,000,000 shares of Common Stock, par value $0.001 per share
("Temecula-Delaware Common Stock"). As of the date hereof, 4,065,957 shares of
Temecula-Delaware Common Stock are issued and outstanding.
D. The Board of Directors of Temecula-Delaware has determined
by unanimous vote that, for the purpose of effecting the reincorporation of
Temecula-Delaware in the State of California, it is advisable and in the best
interest of Temecula-Delaware and its shareholders that it ratify, confirm and
approve the Proposed Merger, pursuant to which it will merge with and into
Temecula-California upon the terms and conditions herein provided.
E. The respective Boards of Directors of Temecula-California
and Temecula-Delaware have authorized and approved this Merger Agreement and
have directed that this Merger Agreement be submitted to a vote of their
respective shareholders and executed by the undersigned officers.
F. The sole shareholder of Temecula-California has approved
this Merger Agreement.
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G. This Merger Agreement is a Plan of Reorganization under
Section 368 of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the foregoing recitals,
the mutual agreements and covenants set forth herein, and other good and
valuable consideration, the Constituent Corporations agree as follows:
ARTICLE I
MERGER
1.1 MERGER. In accordance with the provisions of this Merger
Agreement, the DGCL and the CGCL, Temecula-Delaware shall be merged with and
into Temecula-California (the "Merger"), the separate existence of
Temecula-Delaware shall cease, and Temecula-California shall survive the Merger
and shall continue to be governed by the CGCL. Temecula-California shall be, and
is herein sometimes referred to as, the "Surviving Corporation." The name of the
surviving corporation shall be Temecula Valley Bancorp Inc.
1.2 FILING AND EFFECTIVENESS. The Merger shall become
effective when this Merger Agreement along with properly executed Officers'
Certificates meeting the requirements of the CGCL shall have been filed with the
Secretary of State of the State of California.
The date and time when the Merger shall become effective, as
aforesaid, is herein called the "Effective Date."
1.3 EFFECT OF MERGER. Upon the Effective Date of the Merger,
the separate existence of Temecula-Delaware shall cease, and
Temecula-California, as the Surviving Corporation, (i) shall continue to possess
all of Temecula-California's assets, rights, powers and property as constituted
immediately prior to the Effective Date of the Merger; (ii) shall be subject to
all actions previously taken by its and Temecula-Delaware's Board of Directors;
(iii) shall succeed, without other transfer, to all of the assets, rights,
powers and property of Temecula-Delaware including, without limitation, all
patents, trademarks, licenses, registrations, and all other intellectual
properties however defined; (iv) shall continue to be subject to all of
Temecula-California's debts, liabilities and obligations as constituted
immediately prior to the Effective Date of the Merger, (v) shall succeed,
without other transfer, to all of the debts, liabilities and obligations of
Temecula-Delaware in the same manner as if Temecula-California had itself
incurred them, all as more fully provided under the applicable provisions of the
CGCL and the DGCL, and (vi) shall continue to operate the business of
Temecula-Delaware under its current name, Temecula Valley Bancorp Inc., as
provided in Article II below.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 ARTICLES OF INCORPORATION. The Articles of Incorporation
of Temecula-California as in effect immediately prior
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to the Effective Date of the Merger are amended and restated as of the Effective
Date as provided in Exhibit 2.1 to this Merger Agreement.
2.2 BYLAWS. The Bylaws of Temecula-California as in effect
immediately prior to the Effective Date of the Merger shall continue in full
force and effect as the Bylaws of the Surviving Corporation until duly amended
in accordance with the provisions thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of
Temecula-Delaware immediately prior to the Effective Date of the Merger shall be
the directors and officers of the Surviving Corporation until their successors
shall have been duly elected and qualified or until as otherwise provided by
law, the Restated Articles of Incorporation of the Surviving Corporation or the
Bylaws of the Surviving Corporation.
ARTICLE III
MANNER OF CONVERSION OF STOCK
3.1 STOCK CONVERSION. Upon the Effective Date of the Merger,
each share of Temecula-Delaware Common Stock issued and outstanding immediately
prior thereto shall, by virtue of the Merger, and without any action by the
Constituent Corporations, the holder of such shares, or any other person, be
deemed to represent the right to receive two fully paid and nonassessable shares
of the corresponding Temecula-California Common Stock.
3.2 TEMECULA-DELAWARE EMPLOYEE BENEFITS AND STOCK OPTION
PLANS.
(a) Upon the Effective Date of the Merger, the Surviving Corporation shall
assume and continue the employee benefits and stock option plans of
Temecula-Delaware. Each outstanding and unexercised option or other right to
purchase a security convertible into Temecula-Delaware Common Stock shall become
an option or right to purchase a security convertible into the Surviving
Corporation's Common Stock on the basis of two shares of the Surviving
Corporation's Common Stock for each share of Temecula-Delaware Common Stock
issuable pursuant to any such option, upon the same terms and subject to the
same conditions and subject to appropriate adjustments to the exercise price due
to the stock split.
(b) A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of options, equal to twice the number of
shares of Temecula-Delaware Common Stock so reserved immediately prior to the
Effective Date of the Merger.
3.3 CANCELLATION OF STOCK. Upon the Effective Date of the
Merger, the one share of Temecula-California Common Stock presently issued and
outstanding shall be canceled without consideration and returned to the status
of authorized but unissued shares and no shares of Common Stock or other
securities of the Surviving Corporation will be issued in respect thereof.
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3.4 NO EXCHANGE OF CERTIFICATES REQUIRED.
(a) After the Effective Date of the Merger, each holder of an outstanding
certificate representing shares of Temecula-Delaware Common Stock may, but is
not required to, surrender the same for cancellation without consideration to
the Transfer Agent, U.S. Stock Transfer, and each such holder shall be entitled
to receive in exchange therefor a certificate or certificates representing the
number of shares of corresponding Temecula-California Stock into which the
surrendered shares were converted without giving effect to the two-for-one stock
split. A separate certificate shall be issued for the additional shares to be
issued as a result of the two-for-one stock split. Until so surrendered, each
outstanding certificate theretofore representing shares of Temecula-Delaware
Common Stock shall be deemed for all purposes to represent the number of
corresponding shares of whole Temecula-California Common Stock into which such
shares of Temecula-Delaware Common Stock were converted in the Merger without
giving effect to the two-for-one stock split.
(b) The registered owner on the books and records of the Surviving
Corporation or the Transfer Agent of any such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Corporation or the Transfer Agent, have
and be entitled to exercise any voting and other rights with respect to and to
receive dividends and other distributions upon the shares of Temecula-California
Stock represented by such outstanding certificate as provided above.
(c) Each certificate representing Temecula-California Stock so issued in
the Merger shall bear the same legends, if any, with respect to restrictions on
transferability as the certificates of corresponding stock of Temecula-Delaware
so converted and given in exchange therefore, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws. As applicable, the time period during which a shareholder has held the
Temecula-Delaware Common Stock shall be included in the time period during which
such shareholder actually holds the Temecula-California Common Stock received in
exchange for Temecula-Delaware Common Stock for the purposes of determining the
term of the restrictive period applicable to the Temecula-California Common
Stock.
(d) If any certificate for shares of Temecula-California Stock is to be
issued in a name other than that in which the certificate surrendered in
exchange therefore is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise be
in proper form for transfer, that such transfer otherwise be proper and the
person requesting such transfer pay to Temecula-California or the Transfer Agent
any transfer or other taxes payable by reason of the issuance of such new
certificate in a name other than that of the registered holder of the
certificate surrendered or establish to the satisfaction of Temecula-California
that such tax has been paid or is not payable.
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3.5 DISSENTERS' RIGHTS. Notwithstanding anything to the contrary
contained in this Article III, each outstanding share of Temecula-Delaware
Common Stock as to which a written demand for purchase is made in accordance
with Section 1301 of the CGCL, stating that the record holder demands that his
or her shares be purchased for cash for their fair market value, and which is
not voted in favor of the Merger, shall not be converted into shares of
Temecula-California Common Stock unless and until the holder shall have failed
to perfect or shall have effectively withdrawn or lost his right to payment of
the fair market value of his shares of Temecula-Delaware Common Stock under
Sections 1300 to 1313, inclusive, of the CGCL, at which time such shares of
Temecula-Delaware Common Stock shall be converted into shares of
Temecula-California Common Stock in the same manner as provided for other
outstanding shares of Temecula-Delaware Common Stock in this Article III.
ARTICLE IV
GENERAL
4.1 COVENANTS OF TEMECULA-CALIFORNIA. From time to time, as
and when required by Temecula-California or by its successors or assigns, there
shall be executed and delivered on behalf of Temecula-Delaware such deeds and
other instruments, and there shall be taken or caused to be taken by it such
further and other actions, as shall be appropriate or necessary in order to vest
or perfect in or conform of record or otherwise by Temecula-California the title
to and possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Temecula-Delaware and otherwise
to carry out the purposes of this Merger Agreement.
4.2 ABANDONMENT. At any time before the Effective Date of the
Merger, this Merger Agreement may be terminated and the Merger may be abandoned
for any reason whatsoever by the Board of Directors of either of the Constituent
Corporations, or by both, notwithstanding the approval of this Merger Agreement
by the shareholders of either of the Constituent Corporations, or by both.
4.3 AMENDMENT. The Boards of Directors of the Constituent
Corporations may amend this Merger Agreement at any time prior to the Effective
Date; provided, however, that an amendment made subsequent to the adoption of
this Merger Agreement by the shareholders of either of the Constituent
Corporations shall not without the requisite shareholder approval (a) alter or
change the amount or kind of shares, securities, cash, property and/or rights to
be received in exchange for or on conversion of all or any of the shares of any
class or series thereof of such Constituent Corporation, (b) alter or change any
term of the Restated Articles of Incorporation of the Surviving Corporation to
be effective immediately after the Merger, or (c) alter or change any of the
terms and conditions of this Merger Agreement if such alteration or change would
adversely affect the holders of any class or series thereof of such Constituent
Corporation.
4.4 GOVERNING LAW. This Merger Agreement shall in all respects
be construed, interpreted and enforced in accordance with the laws of the State
of California and, so far as applicable, the merger provisions of the DGCL.
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4.5 COUNTERPART. To facilitate the filing and recording of
this Merger Agreement, the same may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Merger Agreement having first been
approved by the resolutions of the Boards of Directors of Temecula-California, a
California corporation, and Temecula-Delaware, a Delaware corporation, is hereby
executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized as of the date first above
written.
TEMECULA VALLEY BANCORP INC.
a Delaware corporation
/s/ STEPHEN H. WACHNITZ
-----------------------------------
Stephen H. Wacknitz
Chief Executive Officer
and President
/s/ DONALD A. PITCHER
-----------------------------------
Donald A.Pitcher
Secretary
TEMECULA MERGER CORPORATION
a California corporation
/s/ STEPHEN H. WACKNITZ
-----------------------------------
Stephen H. Wacknitz
Chief Executive Officer
and President
/s/ DONALD A. PITCHER
-----------------------------------
Donald A. Pitcher
Secretary
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EXHIBIT 2.1 TO THE MERGER AGREEMENT
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
TEMECULA VALLEY BANCORP INC.
ARTICLE I
NAME: The name of the Corporation is Temecula Valley
Bancorp Inc.
ARTICLE II
PURPOSE: The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be
organized under the General Corporation Law of
California other than the banking business, the trust
company business or the practice of a profession
permitted to be incorporated by the California
Corporations Code.
ARTICLE III
AUTHORIZED
STOCK: The Corporation is authorized to issue only one class
of stock, designated as Common Stock, and the total
number of shares which the Corporation is authorized
to issue is forty million (40,000,000).
ARTICLE IV
DIRECTOR
LIABILITY: The liability of the directors of the Corporation for
monetary damages shall be eliminated to the fullest
extent permissible under California law.
ARTICLE V
INDEMNI-
FICATION: This Corporation is authorized to provide
indemnification of agents (as defined in Section 317
of the California Corporations Code) to the fullest
A-1
extent permissible under California law. Any
amendment, repeal or modification of the provisions
of this Article shall not adversely affect any right
or protection of an agent of the Corporation existing
at the time of such amendment, repeal or
modification.
ARTICLE VI
AGENT FOR
SERVICE OF
PROCESS: The name and address in the State of California of
this corporation's initial agent for service of
process is:
Stephanie E. Allen
2040 Main Street, 14th Floor
Irvine, CA 92614
A-2
TEMECULA VALLEY BANCORP INC.
OFFICER'S CERTIFICATE
PURSUANT TO SECTION 1103 OF THE
CALIFORNIA CORPORATIONS CODE
----------------------------
Stephen H. Wacknitz and Donald A. Pitcher certify that:
1. They are the president and the secretary, respectively, of
Temecula Merger Corporation, a California corporation ("TMC").
2. With respect to the merger of TMC and Temecula Valley
Bancorp Inc., a Delaware corporation ("TVB") described in the attached Agreement
and Plan of Merger dated November 7, 2003 (the "Merger Agreement"), there was a
total of one (1) share of TMC common stock outstanding, the only class of stock
of TMC outstanding and entitled to vote on the merger.
3. The principal terms of the Merger Agreement in the form
attached were approved by TMC by a vote of a number of shares of common stock
which equaled or exceeded the vote required. The only class entitled to vote was
common stock and the percentage vote required of the common stock to approve the
Merger Agreement was 100% of the outstanding shares of common stock.
4. The Merger Agreement was approved by the Board of Directors
of TMC.
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: December 18, 2003 /s/ STEPHEN H. WACKNITZ
-------------------------------------
Stephen H. Wacknitz, President
/s/ DONALD A. PITCHER
-------------------------------------
Donald A. Pitcher, Secretary
TEMECULA VALLEY BANCORP INC.
OFFICER'S CERTIFICATE
PURSUANT TO SECTION 1103 OF THE
CALIFORNIA CORPORATIONS CODE
Stephen H. Wacknitz and Donald A. Pitcher certify that:
1. They are the president and the secretary, respectively, of
Temecula Valley Bancorp Inc., a Delaware corporation ("TVB").
2. With respect to the Merger of TVB and Temecula Merger
Corporation, a Delaware corporation ("TMC") described in the attached Agreement
and Plan of Merger dated November 7, 2003 (the "Merger Agreement"), there were a
total of 4,065,957 shares of TVB shares of common stock outstanding as of the
record date of November 7, 2003, the only class of stock of TVB outstanding and
entitled to vote on the merger.
3. The principal terms of the Merger Agreement in the form
attached were approved by TVB by a vote of a number of shares of common stock
which equaled or exceeded the vote required. The only class entitled to vote was
common stock and the percentage vote required of the common stock to approve the
Merger Agreement was more than 50% of the outstanding shares of common stock.
4. The Merger Agreement was approved by the Board of Directors
of TVB.
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: December 18, 2003 /s/ STEPHEN H. WACKNITZ
----------------------------------
Stephen H. Wacknitz, President
/s/ DONALD A. PITCHER
-----------------------------------
Donald A. Pitcher, Secretary