CU BANCORP (NASDAQ:CUNB) Files An 8-K Entry into a Material Definitive Agreement
Item1.01.
| Entry into a Material Definitive Agreement. |
On April5, 2017, CU Bancorp, a California corporation (CU
Bancorp), entered into an Agreement and Plan of Merger (the
Merger Agreement) with PacWest Bancorp, a Delaware
corporation (PacWest). The Merger Agreement provides that,
upon the terms and subject to the conditions set forth therein,
CU Bancorp will merge with and into PacWest (the Merger),
with PacWest surviving the Merger. Immediately following the
Merger, CU Bancorps wholly-owned bank subsidiary, California
United Bank, will merge with and into PacWests wholly-owned bank
subsidiary, Pacific Western Bank (the Bank Merger).
Pacific Western Bank will be the surviving bank in the Bank
Merger. The Merger Agreement was approved and adopted by the
Board of Directors of each of CU Bancorp and PacWest.
Subject to the terms and conditions of the Merger Agreement, upon
consummation of the Merger, each outstanding CU Bancorp common
share, no par value per share (CU Bancorp Common Share),
excluding certain specified shares including dissenting shares,
will be converted into the right to receive (i)$12.00 in cash
(the Cash Consideration) and (ii)0.5308 (the Exchange
Ratio) of a share of PacWest common stock, par value $0.01
per share (PacWest Common Stock), subject to adjustment in
certain circumstances as set forth below (the Stock
Consideration, and together with the Cash Consideration, the
Merger Consideration). Prior to Closing (as defined in the
Merger Agreement), PacWest and CU Bancorp will also negotiate
with the United States Department of Treasury (U.S.
Treasury) for the purchase immediately prior to the Closing
of all of the CU Bancorp Series A Preferred Stock held by the
U.S. Treasury (the Preferred Stock Purchase).
In addition, as a result of the Merger, at the effective time of
the Merger (i)each outstanding option to acquire CU Bancorp
Common Shares, whether vested or unvested, will be cancelled and
will be cashed out based on the sum of the Cash Consideration and
the value of the Stock Consideration over the exercise price per
CU Bancorp Common Share subject to such option (less applicable
taxes required to be withheld with respect to such payment),
(ii)each outstanding CU Bancorp restricted stock award will
become fully vested and will be exchanged for the Merger
Consideration (less applicable taxes required to be withheld with
respect to such vesting), and (iii)each outstanding CU Bancorp
restricted stock unit will become fully vested and will be
exchanged for the Merger Consideration (less applicable taxes
required to be withheld with respect to such vesting).
The Merger Agreement contains customary representations and
warranties from both CU Bancorp and PacWest, and each party has
agreed to customary covenants, including, among others, covenants
relating to (1)the conduct of CU Bancorps and PacWests businesses
during the interim period between the execution of the Merger
Agreement and the Effective Time, (2)the obligation of CU Bancorp
to call a special meeting of its shareholders to adopt the Merger
Agreement, and, subject to certain exceptions, to recommend that
its shareholders adopt the Merger Agreement and (3)CU Bancorps
non-solicitation obligations relating to alternative acquisition
proposals. CU Bancorp and PacWest have agreed to use their
reasonable best efforts to prepare and file all applications,
notices, and other documents to obtain all necessary consents and
approvals for consummation of the transactions contemplated by
the Merger Agreement.
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Completion of the Merger is subject to certain customary
conditions, including (i)approval by CU Bancorps shareholders,
(ii)the absence of any governmental order or law prohibiting the
consummation of the Merger and (iii)effectiveness of the
registration statement for the PacWest Common Stock to be issued
as consideration in the Merger. The obligation of each party to
consummate the Merger is also conditioned upon (a)subject to
certain exceptions, the accuracy of the representations and
warranties of the other party, (b)performance in all material
respects by the other party of its obligations under the Merger
Agreement, (c)receipt by each party of a tax opinion to the
effect that the Merger will qualify as a reorganization within
the meaning of Section368(a) of the Internal Revenue Code of
1986, as amended, and (d)the absence of a material adverse effect
with respect to the other party since the date of the Merger
Agreement. The obligation of PacWest to consummate the Merger is
also conditioned upon (w)the adjusted shareholders equity of CU
Bancorp and CU Bancorps allowance for loan losses being in excess
of specified levels, (x)the receipt of required regulatory
approvals and such approvals not containing materially burdensome
regulatory conditions, (y)the holders of not more than ten
percent of the outstanding CU Bancorp Common Shares having duly
exercised their dissenters rights under California law and (z)the
consummation of the Preferred Stock Purchase. The obligation of
CU Bancorp to consummate the Merger is also conditioned upon the
receipt of certain required regulatory approvals.
The Merger Agreement contains certain termination rights for both
PacWest and CU Bancorp, including if (i)the Merger is not
consummated by February28, 2018 (as it may be extended to
April30, 2018 under certain circumstances, the End Date),
(ii)the necessary regulatory approvals are not obtained, (iii)the
approval of CU Bancorps shareholders is not obtained, or
(iv)there has been a breach by the other party that is not cured
such that the applicable closing conditions are not satisfied. In
addition, in certain circumstances, PacWest may terminate the
Merger Agreement prior to CU Bancorps shareholder approval of the
Merger in the event that (A)CU Bancorp materially breaches its
non-solicitation obligations relating to alternative business
combination transactions, (B)CU Bancorps board withdraws or
adversely modifies its recommendation to shareholders or fails to
affirm its recommendation within the required time period after
an acquisition proposal is made or (C)CU Bancorps board
recommends a tender offer or fails to recommend against such
tender offer within ten business days after commencement. The
Merger Agreement also provides that CU Bancorp will be obligated
to pay a termination fee of $26.5 million to PacWest if the
Merger Agreement (i)is terminated by PacWest in the circumstances
described in the preceding sentence or (ii)(A)if an acquisition
proposal is made to CU Bancorp or to its shareholders publicly,
(B)the Merger Agreement is terminated for failure to consummate
the Merger by the End Date without the approval of CU Bancorps
shareholders being obtained or for failure to obtain the approval
of CU Bancorps shareholders and (C)CU Bancorp enters into a
definitive agreement with respect to or consummates certain
acquisition proposals within 12 months of termination of the
Merger Agreement.
In addition, the Merger Agreement may be terminated by CU Bancorp
in the event that (i)the volume weighted average price of shares
of PacWest Common Stock quoted on NASDAQ for the Determination
Period (as defined below) (the PacWest Average Closing
Price) is less than $44.84 per share and (ii)the PacWest
Average Closing Price for the Determination Period underperforms
the KBW Regional Banking Index by greater than 15%. If CU Bancorp
exercises its termination right described in the preceding
sentence, PacWest will have the option of reinstating the Merger
and,
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in its sole discretion, either adjusting the Exchange Ratio or
adding cash to the per share Cash Consideration, determined in
accordance with the Merger Agreement. The Merger Agreement
defines Determination Period as the period beginning on the day
that is twenty (20)consecutive trading days prior to the fifth
(5th)business day immediately prior to the closing date of the
Merger (the Determination Date) and ending on the
Determination Date
Voting Agreements
PacWest also entered into voting agreements with each of the
directors of CU Bancrop, as shareholders of CU Bancorp. The
voting agreements generally require such shareholders to vote all
of their CU Bancorp Common Shares in favor of the approval of the
principal terms of the Merger Agreement and certain related
matters as applicable and against alternative transactions and
generally prohibit them from transferring their shares, subject
to certain exceptions. The voting agreements will terminate in
certain circumstances, including upon the consummation of the
Merger or the termination of the Merger Agreement in accordance
with its terms.
Non-Solicitation Agreements
PacWest has also entered into non-solicitation agreements with
each director and executive officer of CU Bancorp in connection
with the Merger Agreement, to which such directors are subject to
certain customary non-solicitation restrictions.
Consulting Agreements
In connection with the Merger Agreement, PacWest entered into
consulting agreements with David I. Rainer, the chairman and
chief executive officer of CU Bancorp, K. Brian Horton, director
and president of CU Bancorp and Karen Schoenbaum, executive vice
president and chief financial officer of CU Bancorp, whereby
PacWest will retain Mr.Rainer, Ms.Schoenbaum and Mr.Horton as
consultants to perform certain transitional services for PacWest
beginning on the first business day following the closing of the
Merger and ending on the earlier of (A)(1) the four year
anniversary of the closing of the Merger, in the case of
Mr.Rainer, or (2)the two year anniversary of the closing of the
Merger, in the case of Mr.Horton and Ms.Schoenbaum, or (B)the
termination of such consulting agreement to the terms therein.
The effectiveness of the consulting agreements is conditioned
upon the consummation of the Merger.
The foregoing descriptions of the Merger Agreement, the voting
agreements and the non-solicitation agreements do not purport to
be complete and are qualified in their entirety by reference to
the respective agreements attached hereto as Exhibits 2.1, 99.1,
and 99.2, respectively, which are incorporated by reference
herein. The representations, warranties and covenants of each
party set forth in the Merger Agreement have been made only for
purposes of, and were and are solely for the benefit of the
parties to, the Merger Agreement, may be subject to limitations
agreed upon by the contracting parties, including being qualified
by confidential disclosures made for the purposes of allocating
contractual risk between the parties to the Merger Agreement
instead of establishing these matters as facts, and may be
subject to standards of materiality applicable to the contracting
parties that differ from those applicable to investors.
Accordingly, the representations and warranties may not describe
the actual state of affairs at the
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date they were made or at any other time, and investors should
not rely on them as statements of fact. In addition, such
representations and warranties (1)will not survive consummation
of the Merger, unless otherwise specified therein, and (2)were
made only as of the date of the Merger Agreement or such other
date as is specified in the Merger Agreement. Moreover,
information concerning the subject matter of the representations
and warranties may change after the date of the Merger Agreement,
which subsequent information may or may not be fully reflected in
the parties public disclosures. Accordingly, the Merger Agreement
is included with this filing only to provide investors with
information regarding the terms of the Merger Agreement, and not
to provide investors with any other factual information regarding
CU Bancorp or PacWest, their respective affiliates or their
respective businesses. The Merger Agreement should not be read
alone, but should instead be read in conjunction with the other
information regarding CU Bancorp, PacWest, their respective
affiliates or their respective businesses, the Merger Agreement
and the Merger that will be contained in, or incorporated by
reference into, the Registration Statement on Form S-4 that will
include a Proxy Statement of CU Bancorp and a prospectus of
PacWest, as well as in the Forms 10-K, Forms 10-Q and other
filings that each of CU Bancorp and PacWest make with the
Securities and Exchange Commission (SEC).
Cautionary Statements Regarding Forward-Looking
Information
The information presented herein may contain certain
forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. These statements
include, but are not limited to, the expected completion date,
financial benefits and other effects of the proposed merger of CU
Bancorp and PacWest. Forward-looking statements can be identified
by the use of the words believe, anticipate, expect, intend,
estimate, target and words of similar import. Forward-looking
statements are not historical facts but instead express only
managements beliefs regarding future results or events, many of
which, by their nature, are inherently uncertain and outside of
the managements control. It is possible that actual results and
outcomes may differ, possibly materially, from the anticipated
results or outcomes indicated in these forward-looking
statements. Factors that may cause such a difference include, but
are not limited to, the reaction to the transaction of the
companies customers, employees and counterparties; customer
disintermediation; inflation; expected synergies, cost savings
and other financial benefits of the proposed transaction might
not be realized within the expected timeframes or might be less
than projected; the requisite CU Bancorp shareholder approval for
the proposed transaction might not be obtained; the requisite
regulatory approvals for the proposed transaction might not be
obtained within the expected time frame or at all; credit and
interest rate risks associated with CU Bancorps and PacWests
respective businesses, customer borrowing, repayment, investment
and deposit practices, and general economic conditions, either
nationally or in the market areas in which CU Bancorp and PacWest
operate or anticipate doing business, are less favorable than
expected; new regulatory or legal requirements or obligations;
and other risks and important factors that could affect CU
Bancorps and PacWests future results are identified in their
respective Annual Reports on Form 10-K for the year ended
December31, 2016 and other reports filed with the SEC.
Forward-looking statements are made only as of the date hereof,
and neither CU Bancorp nor PacWest undertakes any obligation to
update any forward-looking statements contained in this
presentation to reflect events or conditions after the date
hereof, except as required by law.
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Important Additional Information.
This communication is being made in respect of the proposed
merger transaction involving PacWest and CU Bancorp. PacWest
intends to file a registration statement on Form S-4 with the
SEC, which will include a proxy statement of CU Bancorp and a
prospectus of PacWest, and each party will file other documents
regarding the proposed transaction with the SEC. A definitive
proxy statement/prospectus will also be sent to the CU Bancorp
shareholders seeking any required shareholder approvals.
Before making any voting or investment decision,
investors and security holders of CU Bancorp are urged to
carefully read the entire registration statement and proxy
statement/prospectus, when they become available, as well as any
amendments or supplements to these documents, because they will
contain important information about the proposed
transaction. The documents filed by CU Bancorp and
PacWest with the SEC may be obtained free of charge at the SECs
website at www.sec.gov. In addition, the documents filed by CU
Bancorp may be obtained free of charge at CU Bancorps website at
http://www.cubancorp.com/ and the documents filed by
PacWest may be obtained free of charge at PacWests website at
http://www.pacwestbancorp.com/. Alternatively, these
documents, when available, can be obtained free of charge from CU
Bancorp upon written request to CU Bancorp, Attn: Investor
Relations, Karen Schoenbaum, California United Bank, 818 W.
7th Street, Suite 220,
Los Angeles, California 90017 or by calling (818)257-7700 or from
PacWest upon written request to PacWest Bancorp, Attn: Investor
Relations, 9701 Wilshire Blvd., Suite 700, Beverly Hills,
California 90212 or by calling (310)887-8500.
CU Bancorp, PacWest, their directors, executive officers and
certain other persons may be deemed to be participants in the
solicitation of proxies from CU Bancorps shareholders in favor of
the approval of the merger. Information about the directors and
executive officers of CU Bancorp and their ownership of CU
Bancorp Common Stock is set forth in the proxy statement for CU
Bancorps 2016 annual meeting of stockholders, as previously filed
with the SEC on August11, 2016. Information about the directors
and executive officers of PacWest and their ownership of PacWest
Common Stock is set forth in the proxy statement for PacWests
2017 annual meeting of stockholders, as previously filed with the
SEC on March31, 2017. Shareholders may obtain additional
information regarding the interests of such participants by
reading the registration statement and the proxy
statement/prospectus when they become available.
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| Item9.01 | Financial Statements and Exhibits |
(d ) Exhibits.
The following Exhibits are attached as part of this report:
2.1 Agreement and Plan of Merger by and between CU Bancorp and
PacWest Bancorp, dated April5, 2017.*
99.1 Form of Voting Agreement by and among PacWest and the
members of the CU Bancorp Board dated April5, 2017.
99.2 Form of Non-Solicitation Agreement, dated April5, 2017,
between PacWest and the directors of CU Bancorp.
| * |
The schedules have been omitted to Item601(b)(2) of Regulation S-K and will be provided to the Securities and Exchange Commission upon request. |
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to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
| CU Bancorp | ||||||
| Dated: April6, 2017 | By: |
/s/ Anita Wolman |
||||
| Anita Wolman | ||||||
|
Executive Vice President, General Counsel and Corporate Secretary |
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EXHIBIT INDEX
2.1 Agreement and Plan of Merger by and between CU Bancorp and
PacWest Bancorp, dated April5, 2017.*
99.1 Form of Voting and Non-Competition Agreement by and among
PacWest and the members of the CU Bancorp Board dated April5,
2017
| 99.2 |
Form of Non-Solicitation Agreement, dated April5, 2017, between PacWest and the directors of CU Bancorp. |
| * | The schedules have been omitted |
About CU BANCORP (NASDAQ:CUNB)
CU Bancorp is a bank holding company. The Company’s principal business is to serve as the holding company for its bank subsidiary, California United Bank (the Bank). It operates in commercial business banking segment. The Bank is a commercial bank offering a range of banking products and services designed for small and medium-sized businesses, non-profit organizations, business owners and entrepreneurs, and the professional community, including attorneys, certified public accountants, financial advisors and healthcare providers, and investors. Its deposit products include demand, money market and certificates of deposit, and loan products include commercial, real estate construction, commercial real estate, Small Business Administration (SBA) and personal loans. It also provides cash management services, online banking, commercial credit cards and other primarily business-oriented products. It conducts lending and deposit operations through over 10 branch offices. CU BANCORP (NASDAQ:CUNB) Recent Trading Information
CU BANCORP (NASDAQ:CUNB) closed its last trading session up +0.15 at 38.90 with 543,412 shares trading hands.