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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Pacifica Bancorp Inc; UCBH Holdings, Inc.; Squire, Sanders & Dempsey

Date:

2005

Size:

Preview shows 67KB of 200KB total

Price:

$76

ID:

#1444583

► Compensation ► Plan Agreements ► Plans & Agreements of Merger
► Financial ► Regional Banks
► Services ► Legal

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AGREEMENT AND PLAN OF MERGER

among

UCBH HOLDINGS, INC.

UCBH MERGER SUB, INC.

and

PACIFICA BANCORP, INC.

Dated as of May 23, 2005

TABLE OF CONTENTS


		Page
AGREEMENT AND PLAN OF MERGER		1

ARTICLE I THE MERGER		1

	1.1 Definitions	1

	1.2 The Merger	1

	1.3 Closing; Effective Time	1

	1.4 Effects of the Merger	2

	1.5 Conversion of Company Capital Stock	2

	1.6 Stock Options	3

	1.7 Buyer Capital Stock; Merger Sub Capital Stock	3

	1.8 Articles of Incorporation	4

	1.9 Bylaws	4

	1.10 Directors and Officers	4

ARTICLE II DELIVERY OF MERGER CONSIDERATION		4

	2.1 Surrender of Company Capital Stock	4

	2.2 Election and Proration Procedures	5

	2.3 Further Transfers of Company Capital Stock	10

	2.4 Dissenting Shares	10

	2.5 Alternative Method	10

ARTICLE III DISCLOSURE SCHEDULES; REPRESENTATIONS AND WARRANTIES OF THE COMPANY		10

	3.1 Disclosure Schedule	10

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY		10

	4.1 Corporate Organization	10

	4.2 Capitalization	12

	4.3 Authority; No Violation	12

	4.4 Consents and Approvals	13

	4.5 Regulatory Reports	14

	4.6 Financial Statements	14

	4.7 Brokers Fees	15

	4.8 Absence of Certain Changes or Events	15

TABLE OF CONTENTS

(continued)


		Page
	4.9 Legal Proceedings	15

	4.10 Taxes	16

	4.11 Employee Benefit Plans	16

	4.12 Disclosure Controls and Procedures	17

	4.13 Company Information	17

	4.14 Compliance with Applicable Law	17

	4.15 Contracts	18

	4.16 Environmental Matters	19

	4.17 Derivative Transactions	20

	4.18 Opinion	20

	4.19 Approvals	20

	4.20 Loans and Deposits	20

	4.21 Property	21

	4.22 Labor Matters	21

	4.23 Insurance	22

	4.24 Absence of Undisclosed Liabilities	22

	4.25 Full Disclosure	23

ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER		23

	5.1 Corporate Organization	23

	5.2 Authority; No Violation	23

	5.3 Consents and Approvals	24

	5.4 Brokers Fees	24

	5.5 Buyer Information	24

	5.6 Ownership of Company and Bank Capital Stock	25

	5.7 Access to Funds	25

	5.8 Approvals	25

	5.9 Legal Proceedings	25

	5.10 Compliance with Applicable Law	25

	5.11 Regulatory Reports	26

	5.12 Full Disclosure	26

TABLE OF CONTENTS

(continued)


		Page
	5.13 Capitalization	26

	5.14 Financial Statements	27

	5.15 Absence of Certain Changes or Events	27

	5.16 Taxes	27

	5.17 Disclosure Controls and Procedures	28

	5.18 Absence of Undisclosed Liabilities	28

ARTICLE VI COVENANTS RELATING TO CONDUCT OF BUSINESS		29

	6.1 Covenants of the Company and the Bank	29

	6.2 Covenants of Buyer	31

ARTICLE VII ADDITIONAL AGREEMENTS		32

	7.1 Regulatory Matters	32

	7.2 No Solicitation by the Company	35

	7.3 Access to Information	36

	7.4 Confidentiality	37

	7.5 Notification of Certain Matters	37

	7.6 Employee Benefit Plans	37

	7.7 Indemnification	38

	7.8 Reasonable efforts; Additional Agreements	39

	7.9 Current Information	40

ARTICLE VIII CONDITIONS PRECEDENT		40

	8.1 Conditions to Each Partys Obligation To Effect the Merger	40

	8.2 Conditions to Obligations of Buyer and Merger Sub	41

	8.3 Conditions to Obligations of the Company	42

	8.4 Frustration of Closing Conditions	44

ARTICLE IX TERMINATION AND AMENDMENT		44

	9.1 Termination	44

	9.2 Effect of Termination	46

	9.3 Amendment	47

	9.4 Extension; Waiver	47

ARTICLE X GENERAL PROVISIONS		47

iii

TABLE OF CONTENTS

(continued)


		Page
	10.1 Nonsurvival of Representations, Warranties and Agreements	47

	10.2 Expenses	47

	10.3 Notices	47

	10.4 Interpretation	48

	10.5 Counterparts	49

	10.6 Entire Agreement	49

	10.7 Governing Law	49

	10.8 Enforcement of Agreement	49

	10.9 Severability	49

	10.10 Publicity	50

	10.11 Assignment; No Third Party Beneficiaries	50

	10.12 Fax Signatures	50

EXHIBIT A Plan of Merger

EXHIBIT B Certificate of Ownership

EXHIBIT C Form of Affiliate Agreement

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER, dated as of May 23, 2005 (this Agreement), is entered into by and among UCBH Holdings, Inc., a Delaware corporation registered under the Bank Holding Company Act of 1956, as amended (Buyer), UCBH Merger Sub, Inc., a California corporation and a wholly owned subsidiary of Buyer (Merger Sub), and Pacifica Bancorp, Inc., a Washington corporation registered under the Bank Holding Company Act of 1956, as amended (the Company).

WHEREAS, the Boards of Directors of Buyer, Merger Sub and the Company have determined that it is in the best interests of their respective companies and their stockholders to consummate the business combination transaction provided for herein in which the Company will, subject to the terms and conditions set forth herein, merge with and into Merger Sub, with Merger Sub being the surviving entity (the Merger);

WHEREAS, it is contemplated that the business combination contemplated herein shall be immediately followed by a merger of Companys banking subsidiary, Pacifica Bank (the Bank), with and into Buyers bank subsidiary, United Commercial Bank (UCB), as provided for in agreements in substantially the form attached hereto as Exhibits A and B; and

WHEREAS, the parties desire to make certain representations, warranties and agreements in connection with the Merger and also to prescribe certain conditions to the Merger.

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and intending to be legally bound hereby, the parties agree as follows:

ARTICLE I

THE MERGER

1.1 Definitions. The defined terms used in this Agreement have the meanings set forth on Appendix I hereto.

1.2 The Merger. Subject to the terms and conditions of this Agreement, in accordance with applicable provisions of the WBCA, the CFC and the CGCL, at the Effective Time, the Company shall merge with and into Merger Sub. Merger Sub shall be the surviving corporation (hereinafter sometimes called the Surviving Corporation) in the Merger and shall continue its corporate existence under the laws of the State of California. The name of the Surviving Corporation shall be UCBH Merger Sub, Inc. Upon consummation of the Merger, the separate corporate existence of the Company shall terminate.

1.3 Closing; Effective Time.

(a) Closing. Subject to the terms and conditions of this Agreement, the closing of the Merger (the Closing) will take place at 10:00 a.m. on the fifth (5th) business day after the satisfaction or waiver (subject to applicable law) of the latest to occur of the conditions set forth in Article VIII hereof (other than those conditions which relate to actions to be taken at

the Closing) (the Closing Date), at the offices of Squire, Sanders & Dempsey L.L.P., One Maritime Plaza, Suite 300, San Francisco, California 94111-3492 unless another time, date or place is agreed to in writing by the parties hereto. The Closing Date shall not take place between September 1, 2005 and October 6, 2005.

(b) Effective Time. Subject to the provisions of this Agreement, an agreement of merger complying with Section 1101 of the CGCL and Section 23B.11.070 of the WBCA (the Agreement of Merger) and officers certificates complying with Section 1103 of the CGCL (the California Certificates) shall be duly prepared, executed and filed with the Secretary of State of the State of California (the California Secretary) and the Secretary of State of the State of Washington (the Washington Secretary) on the Closing Date by the Company and Merger Sub. The Merger shall become effective at such time the filings with the California Secretary and the Washington Secretary of the Agreement of Merger both become effective (the Effective Time).

1.4 Effects of the Merger. At and after the Effective Time, the Merger shall have the effects set forth in Section 1107 of the CGCL and Section 23B.11.060 of the WBCA.

1.5 Conversion of Company Capital Stock.

(a) At the Effective Time, subject to the exceptions and limitations set forth in Section 2.4 hereof, each share of Company Capital Stock issued and outstanding immediately prior to the Effective Time (other than (y) any shares of Company Capital Stock held directly or indirectly by Buyer or any of Buyers Subsidiaries (except for Trust Account Shares and DPC Shares) and (z) Dissenting Shares), shall, by virtue of this Agreement and without any action on the part of the holder thereof, be converted into the right to receive, at the election of the holder thereof as provided in Section 2.2 hereof, either (i) shares of Buyer Common Stock in accordance with the Exchange Ratio, or (ii) cash in the amount of the Per Share Cash Consideration (collectively, the Merger Consideration).

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