Exhibit 2
AMERICAN BANK
AMENDED
AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDED AGREEMENT AND PLAN OF REORGANIZATION, dated March 20,
2001, is by and between American Bank, a Pennsylvania commercial bank (the
"Bank"), American Bank Incorporated, a to-be-formed Pennsylvania corporation
(the "Holding Company"); and American Interim Bank, a to-be-formed interim
Pennsylvania commercial bank ("Interim").
The parties hereto desire to amend the Agreement and Plan of
Reorganization whereby the corporate structure of the Bank will be reorganized
into the Holding Company form of ownership. As a result of the reorganization,
immediately after the Effective Date (as defined in Article V below), all of the
issued and outstanding shares of common stock, par value $5.00 per share, of the
Bank will be held by the Holding Company, and the holders of the issued and
outstanding shares of common stock of the Bank will become the holders of the
issued and outstanding shares of common stock of the Holding Company.
The reorganization of the Bank will be accomplished by the following
steps: (1) the formation of the Holding Company as a wholly owned subsidiary of
the Bank; (2) the formation of an interim Pennsylvania commercial bank
("Interim"), which will be wholly owned by the Holding Company; and (3) the
merger of Interim into the Bank, with the Bank as the surviving corporation.
Pursuant to such merger: (i) each of the issued and outstanding shares of common
stock of the Bank will be converted by operation of law into an equal number of
issued and outstanding shares of common stock of the Holding Company; (ii) each
of the issued and outstanding shares of common stock of Interim will be
converted automatically by operation of law into an equal number of issued and
outstanding shares of common stock of the Bank; and (iii) the shares of common
stock of the Holding Company held by the Bank will be canceled.
NOW, THEREFORE, in order to consummate the Agreement and Plan of
Reorganization, and in consideration of the mutual covenants herein set forth,
the parties agree as follows:
ARTICLE I
MERGER OF INTERIM INTO
THE BANK AND RELATED MATTERS
1.1 On the Effective Date, Interim will be merged with and into the
Bank (the "Merger") and the separate existence of Interim shall cease, and all
assets and property (real, personal and mixed, tangible and intangible, choses
in action, rights and credits) then owned by Interim, or which would inure to
it, shall immediately and automatically, by operation of law and without any
conveyance, transfer, or further action, become the property of the Bank. The
Bank shall be deemed to be a continuation of Interim, and the Bank shall succeed
to the rights and obligations of Interim.
1.2 Following the Merger, the existence of the Bank shall continue
unaffected and unimpaired by the Merger, with all the rights, privileges,
immunities and powers, and subject to all the duties and liabilities, of a
savings bank organized under Pennsylvania law. The Articles of Incorporation
(the "Articles") and Bylaws of the Bank, as presently in effect, shall continue
in full force and effect and shall not be changed in any manner whatsoever by
the Merger.
1.3 From and after the Effective Date, and subject to the actions of
the Board of Directors of the Bank, the business presently conducted by the Bank
(whether directly or through its subsidiaries) will continue to be conducted by
it, as a wholly owned subsidiary of Holding Company, and the present directors
and officers of the Bank will continue in their present positions. The home
office and branch offices of the Bank in existence immediately prior to the
Effective Date shall continue to be the home office and branch offices,
respectively, of the Bank from and after the Effective Date.
ARTICLE II
CONVERSION OF STOCK
2.1 The terms and conditions of the Merger, the mode of carrying the
same into effect, and the manner and basis of converting the common stock of the
Bank into common stock of the Holding Company pursuant to this Agreement shall
be as follows:
A. On the Effective Date, each share of common stock, par
value $2.50 per share, of the Bank issued and outstanding immediately prior to
the Effective Date shall automatically by operation of law be converted into and
shall become one share of common stock, par value $0.10 per share, of the
Holding Company (the "Holding Company Common Stock"). Each share of common stock
of Interim issued and outstanding immediately prior to the Effective Date shall,
on the Effective Date, automatically by operation of law be converted into and
become one share of common stock, $2.50 par value per share, of the Bank and
shall not be further converted into shares of the Holding Company, so that from
and after the Effective Date all of the issued and outstanding shares of common
stock of the Bank shall be held by the Holding Company.
B. On the Effective Date, each outstanding warrant to purchase
Bank common stock will be automatically converted into an identical warrant,
with identical price, terms and conditions, to purchase an identical number of
shares of Holding Company Common Stock in lieu of shares of the Bank common
stock. From and after the Effective Date, each holder of an outstanding
certificate or certificates that, prior thereto, represented a warrant or
warrants to purchase Bank common stock, shall, upon surrender of the same to the
designated agent of the Bank, be entitled to receive in exchange therefor a
certificate or certificates representing a warrant or warrants to purchase the
number of whole shares of Holding Company Common Stock into which the shares
theretofore represented by the certificate or certificates so surrendered shall
have been converted, as provided in the foregoing provisions of this Section
2.1. Until so surrendered, each such outstanding certificate, which, prior to
the Effective Date, represented a warrant to purchase shares of the Bank's
common stock, shall be automatically deemed for all purposes to evidence the
ownership of a warrant to purchase the equal number of whole shares of Holding
Company Common Stock. Former holders of warrant certificates to purchase shares
of the Bank common stock will not be required to exchange their warrant
certificates for new certificates evidencing the right to purchase the same
number of shares of Holding Company Common Stock. If in the future Holding
Company determines to effect an exchange of warrant certificates, instructions
will be sent to all holders of record of warrants to purchase Holding Company
Common Stock.
C. On the Effective Date, the current stock option plan of the
Bank (the "Option Plan") shall automatically, by operation of law, be continued
as Option Plan of the Holding Company. Each option to purchase shares of the
Bank common stock under the Option Plan outstanding at that time will be
automatically converted into an identical option, with identical price, terms
and conditions, to purchase an identical number of shares of Holding Company
Common Stock in lieu of shares of the Bank common stock. The Holding Company and
the Bank may make appropriate amendments to the Option Plan to reflect the
adoption of the Option Plan as the plans of the Holding Company, without adverse
effect on the Option Plan and their participants.
3.2-6
D. From and after the Effective Date, each holder of an
outstanding certificate or certificates that, prior thereto, represented shares
of the Bank common stock, shall, upon surrender of the same to the designated
agent of the Bank, be entitled to receive in exchange therefor a certificate or
certificates representing the number of whole shares of Holding Company Common
Stock into which the shares theretofore represented by the certificate or
certificates so surrendered shall have been converted, as provided in the
foregoing provisions of this Section 2.1. Until so surrendered, each such
outstanding certificate, which, prior to the Effective Date, represented shares
of the Bank's common stock, shall be automatically deemed for all purposes to
evidence the ownership of the equal number of whole shares of Holding Company
Common Stock. Former holders of shares of the Bank common stock will not be
required to exchange their the Bank common stock certificates for new
certificates evidencing the same number of shares of Holding Company Common
Stock. If in the future Holding Company determines to effect an exchange of
stock certificates, instructions will be sent to all holders of record of
Holding Company Common Stock.
E. All shares of Holding Company Common Stock into which
shares of the Bank common stock shall have been converted pursuant to this
Article II shall be deemed to have been issued in full satisfaction of all
rights pertaining to such converted shares.
F . On the Effective Date, the holders of certificates
formerly representing the Bank common stock outstanding on the Effective Date
shall cease to have any rights with respect to the common stock of the Bank, and
their sole rights shall be with respect to the Holding Company Common Stock into
which their shares of the Bank common stock shall have been converted by the
Merger.
ARTICLE III
CONDITIONS
3.1 The obligations of the Bank, Holding Company and Interim to effect
the Merger and otherwise consummate the transactions which are the subject
matter hereof shall be subject to satisfaction of the following conditions:
A. To the extent required by applicable law, rules, and
regulations, the holders of the outstanding shares of the Bank common stock
shall, at a meeting of the stockholders of the Bank duly called, have approved
this Agreement by the affirmative vote of two-thirds of the outstanding shares
of the Bank common stock.
B. Any and all approvals from the Federal Reserve Board (the
"FRB"), the Pennsylvania Department of Banking, and any other state or federal
governmental agency having jurisdiction necessary for the lawful consummation of
the Merger and the issuance and delivery of Holding Company Common Stock as
contemplated by this Agreement shall have been obtained.
C. The Bank shall have received either (i) a ruling from the
Internal Revenue Service or (ii) an opinion from its legal counsel, to the
effect that the Merger will be treated as a non-taxable transaction under
applicable provisions of the Internal Revenue Code of 1986, as amended, and that
no gain or loss will be recognized by the stockholders of the Bank upon the
exchange of the Bank common stock held by them solely for Holding Company Common
Stock.
3.2-7
ARTICLE IV
TERMINATION
4.1 This Agreement may be terminated at the election of any of the
parties hereto if any one or more of the conditions to the obligations of any of
them hereunder shall not have been satisfied and shall have become incapable of
fulfillment and shall not be waived. This Agreement may also be terminated at
any time prior to the Effective Date by the mutual consent of the respective
Boards of Directors of the parties.
4.2 In the event of the termination of this Agreement pursuant to any
of the foregoing provisions, no party shall have any further liability or
obligation of any nature to any other party under this Agreement.
ARTICLE V
EFFECTIVE DATE OF MERGER
Upon satisfaction or waiver (in accordance with the provisions of this
Agreement) of each of the conditions set forth in Article III, the parties
hereto shall execute and cause to be filed this Agreement and such certificates
or further documents as shall be required by Pennsylvania law to be filed with
the Pennsylvania Secretary of State. Upon approval of the Merger by the
Pennsylvania Department of Banking, and the filing of the Articles of Merger
with the Pennsylvania Department of State, the Merger and other transactions
contemplated by this Agreement shall become effective. The Effective Date for
all purposes hereunder shall be the date of such filing with the Pennsylvania
Department of State.
ARTICLE VI
MISCELLANEOUS
6.1 Any of the terms or conditions of this Agreement, which may legally
be waived, may be waived at any time by any party hereto that is entitled to the
benefit thereof, or any of such terms or conditions may be amended or modified
in whole or in part at any time, to the extent authorized by applicable law, by
an agreement in writing, executed in the same manner as this Agreement.
6.2 Any of the terms or conditions of this Agreement may be amended or
modified in whole or in part at any time, to the extent permitted by applicable
law, rules, and regulations, by an amendment in writing, provided that any such
amendment or modification is not materially adverse to the Bank, the Holding
Company or their stockholders. In the event that any governmental agency
requests or requires that the transactions contemplated herein be modified in
any respect as a condition of providing a necessary regulatory approval or
favorable ruling, or that in the opinion of counsel such modification is
necessary to obtain such approval or ruling, this Agreement may be modified, at
any time before or after adoption thereof by the stockholders of the Bank, by an
instrument in writing, provided that the effect of such amendment would not be
materially adverse to the Bank, the Holding Company or their stockholders.
6.3 This Agreement shall be governed by and construed under the laws of
the Commonwealth of Pennsylvania.
3.2-8
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement and Plan of Reorganization as of the date first above written.
AMERICAN BANK
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
President and Chief Executive Officer
AMERICAN BANK INCORPORATED
(in formation)
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Xxxx X. Xxxxxx
President and Chief Executive Officer
AMERICAN INTERIM BANK
(in formation)
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx
President and Chief Executive Officer
3.2-9
