Exhibit 2
APPENDIX I
AGREEMENT AND PLAN OF REORGANIZATION AND SHARE EXCHANGE
THIS AGREEMENT AND PLAN OF REORGANIZATION AND SHARE EXCHANGE (this
"Agreement"), made and entered into as of February 7, 2003, by and between
SURREY BANK & TRUST, a banking corporation organized under the laws of the State
of North Carolina and having its principal place of business in the City of
Mount Airy, Surry County, North Carolina (the "Bank"), and SURREY BANCORP, a
North Carolina corporation (the "Holding Company").
WHEREAS, the Boards of Directors of the Bank and the Holding Company
believe that it is in the best interests of their respective shareholders that
the Bank be reorganized into a bank holding company structure pursuant to which
the shareholders of the Bank (collectively, the "Shareholders" and individually,
a "Shareholder") would receive six shares of the common stock of the Holding
Company in exchange for every five of their shares of common stock of the Bank;
and
WHEREAS, the parties intend that the share exchange shall qualify as a
tax-free reorganization under the provisions of Section 368 of the Internal
Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the mutual promises and conditions
herein contained, the Bank and the Holding Company hereby mutually agree to an
exchange of shares on the terms and conditions and in the manner and on the
basis hereinafter provided:
1. The Exchange. (a) The name of the corporation whose shares will be
acquired is "Surrey Bank & Trust" and the name of the acquiring corporation is
"Surrey Bancorp."
(b) At the Effective Time (as defined in Section 2 below), upon the terms
and subject to the conditions set forth in this Agreement, in accordance with
the relevant provisions of the North Carolina Business Corporation Act, as
amended (the "NCBCA'), and without any action on the part of the Bank, the
Holding Company or the holders of any of the following securities, every five
(5) issued and outstanding share of the common stock, par value $4.00 per share,
of the Bank ("Bank Stock"), other than Dissenting Shares (as defined in Section
3) shall be exchanged (the "Share Exchange") for six (6) shares (the "Exchange
Consideration") of the common stock, no par value, of the Holding Company
("Holding Company Stock"). At the Effective Time, each share of Bank Stock shall
automatically be exchanged for the Exchange Consideration, and each holder of a
certificate representing shares of Bank Stock shall cease to have any rights
with respect thereto, except the right to receive the Exchange Consideration or,
with respect to the holders of Dissenting Shares, rights provided in Article 13
of the NCBCA.
(c) At the Effective Time, all shares of Holding Company Stock outstanding
immediately prior to the Effective Time shall be redeemed from the holder
thereof for the sum of $0.0l per share.
(d) The Share Exchange shall have the effects specified in the NCBCA.
(e) No scrip or certificates representing fractional shares of Holding
Company Stock will be issued for any Bank Stock, and, except as provided below,
no Shareholder will have any right to vote or receive any dividend or other
distribution on, or any other right with respect to, any fraction of a share of
Holding Company Stock resulting from the Share Exchange. In the event the
exchange of shares would result in the creation of fractional shares, then, in
lieu of the issuance of fractional shares of Holding Company Stock, the Bank
shall deliver cash to the Exchange Agent in an amount equal to the aggregate
market value of all such fractional shares, and the Exchange Agent shall divide
such cash among and remit it (without interest) to the former Shareholders in
accordance with their respective interests. For purposes of this Paragraph, the
"aggregate market value" of all fractional shares of Holding Company Stock shall
be equal to the total of such fractional shares multiplied by the amount
necessary to preserve the economic value of such shares.
2. Effective Time. As soon as practicable following the satisfaction or
waiver, if permissible, of the conditions set forth in Section 8, the Share
Exchange shall be consummated by filing with the Secretary of State of the State
of North Carolina articles of share exchange or other appropriate documents (in
any case, the "Articles of Share Exchange") in accordance with the NCBCA. The
Share Exchange shall become effective at such time as the Articles of Share
Exchange are duly filed, or at such later time as the Bank and the Holding
Company shall specify in the Articles of Share Exchange (the time the Share
Exchange becomes effective being the "Effective Time").
Appendix I-1
3. Rights of Dissenting Shareholders. Notwithstanding anything in this
Agreement to the contrary, shares of Bank Stock which are held by any record
holder who (a) does not vote in favor of the Share Exchange or consent thereto
in writing and who gives timely written notice to the Bank of intent to demand
payment in accordance with Section 55-13-21of the NCBCA; (b) who demands payment
and deposits share certificates in accordance with Section 55-13-23 of the
NCBCA; and (c) who otherwise perfects rights of appraisal under Article 13 of
the NCBCA (the "Dissenting Shares") shall not be exchanged for the Exchange
Consideration but shall become the right to receive such consideration as may be
determined pursuant to Article 13 of the NCBCA. However, any holder of
Dissenting Shares who fails to perfect or withdraws or loses his or her rights
to appraisal of such Dissenting Shares under the NCBCA shall forfeit the right
to appraisal of such Dissenting Shares, and such Dissenting Shares shall be
deemed to have been exchanged, as of the Effective Time, for the Exchange
Consideration. Any such payments to the holders of Dissenting Shares shall be
paid from funds of the Bank, and not from funds of the Holding Company.
Notwithstanding anything to the contrary contained in this Section 3, if (i) the
Share Exchange is rescinded or abandoned or (ii) if the Shareholders revoke the
authority to effect the Share Exchange, then the right of any Shareholder to be
paid the fair value of such Shareholder's Dissenting Shares shall cease.
4. Exchange of Certificates. (a) The Holding Company shall appoint
Register and Transfer Company to act as exchange agent (the "Exchange Agent")
for the Share Exchange. As of the Effective Time, the Holding Company shall
deposit with the Exchange Agent for the benefit of the holders (prior to the
Effective Time) of certificates evidencing shares of Bank Stock ("Bank Stock
Certificates"), certificates representing the shares of the Holding Company
Stock ("Holding Company Certificates") issuable pursuant to Section 1 in
exchange for such shares of Bank Stock.
(b) Upon surrender to the Exchange Agent of a Bank Stock Certificate,
together with such other documents as may be reasonably required by the Exchange
Agent, the holder of such Bank Stock Certificate shall be entitled to receive in
exchange therefor a Holding Company Certificate representing the Exchange
Consideration which such holder has the right to receive pursuant to Section 1.
The surrendered certificate shall be delivered to the Holding Company. If
delivery of a Holding Company Certificate is to be made to a person other than
the person in whose name the Bank Stock Certificate surrendered is registered,
it shall be a condition of the exchange and delivery that the Bank Stock
Certificate so surrendered be properly endorsed or otherwise be in proper form
for transfer and that the person requesting such delivery pay any transfer or
other taxes required by reason of the delivery to a person other than the
registered holder of the Bank Stock Certificate surrendered or establish to the
satisfaction of the Holding Company that such tax has been paid or is not
applicable. Until surrendered in accordance with the provisions of this Section
4, each Bank Stock Certificate (other than Bank Stock Certificates representing
Dissenting Shares) shall represent for all purposes only the exchange rights
established pursuant to this Agreement.
5. Lost, Destroyed, or Stolen Certificates. Shareholders whose
certificates evidencing shares of Bank Stock have been lost, destroyed or stolen
shall be entitled to receive certificates evidencing shares of Holding Company
Stock for which such shares of Bank Stock were exchanged pursuant to this
Agreement in compliance with the provisions of the Holding Company's bylaws.
6. Stock Option And Other Plans. At the Effective Time, all outstanding
options under the Bank's existing stock option plans (the "Plans") shall be
converted into options to acquire the number of shares of Holding Company Stock
that the holders of such options were entitled to acquire of Bank Stock
immediately prior to the Share Exchange on the same terms and conditions as set
forth in the Plans and the agreements issued pursuant to the Plans. The Holding
Company shall file a registration statement on Form S-8 covering all shares of
Holding Company Stock issuable with respect to existing stock options under the
Plans as soon as practicable following the Effective Time, and the Holding
Company shall cause such registration statement to become effective and remain
effective for as long as such options are outstanding.
7. Obligations of the Parties Pending the Effective Time. The Bank and
the Holding Company shall, as soon as practicable take the following action:
(a) This Agreement shall be duly submitted to the Shareholders of the Bank
and the sole shareholder of the Holding Company for the purpose of considering
and acting upon the Share Exchange in the manner required by law and their
respective articles of incorporation and bylaws. The Bank and the Holding
Company shall use their best efforts to obtain the requisite approval of their
shareholders for the Share Exchange and the transactions
Appendix I-2
contemplated by this Agreement, and the Bank and the Holding Company shall,
through their respective officers, execute and file with the appropriate
regulatory authorities, including the Board of Governors of the Federal Reserve
System and the North Carolina Banking Commission, such applications, exhibits,
documents and papers as shall be necessary or appropriate to secure approval of
this Agreement, the Share Exchange and the other transactions contemplated
hereby, as required by applicable statutes, rules and regulations;
(b) The Holding Company shall use its best efforts to cause the issuance
of common stock of the Holding Company pursuant to the Share Exchange to be
qualified or exempted under the Securities Act of 1933, as amended, and the
securities and blue sky laws of each state in which it deems such qualification
or exemption to be required; and
(c) Until the Effective Time, neither the Bank nor the Holding Company
shall dispose of its assets except in the ordinary and normal course of
business.
8. Conditions Precedent to the Share Exchange. The Share Exchange shall
be subject to the satisfaction of the following conditions:
(a) Ratification and confirmation of this Agreement by affirmative vote
of Shareholders holding a majority of the shares of Bank Stock entitled to be
cast on the Share Exchange and by consent of the sole shareholder of the Holding
Company as required by law;
(b) Approval to the extent required, by the Board of Governors of the
Federal Reserve System of the Share Exchange and the transactions related
thereto;
(c) Approval, to the extent required, of any other governmental or
regulatory authority;
(d) Expiration of any waiting period required by any supervisory authority
of the Bank or the Holding Company; and
(e) Neither the Bank nor the Holding Company shall be subject as of the
Effective Time to any order, decree or injunction of a court of competent
jurisdiction that enjoins or prohibits the consummation of the Share Exchange,
nor shall there be pending an action, suit or proceeding by any governmental
authority that seeks injunctive or other relief in connection with the
transactions contemplated hereby.
9. Termination. This Agreement may be terminated prior to the Effective
Time for any of the following reasons by written notice by either the Bank or
the Holding Company to the other upon authorization by resolution adopted by the
Board of Directors of either the Bank or the Holding Company:
(a) Any condition precedent contained in Section 8 has not been fulfilled
or waived;
(b) Any order, decree, injunction, action, suit, proceeding, or claim has
been instituted, made or threatened, relating to the proposed Share Exchange,
that makes consummation of the Share Exchange inadvisable in the opinion of the
Board of Directors of either the Bank or the Holding Company;
(c) The Board of Directors of the Bank determines that the holders of more
than five percent of the shares of Bank Stock have dissented from the Share
Exchange so that consummation of the Share Exchange is not in the best interests
of the Bank; or
(d) A determination by the Board of Directors of either the Bank or the
Holding Company that consummation of the Share Exchange is inadvisable in the
opinion of such Board of Directors.
10. Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to the transactions contemplated hereby.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. Effect of the Agreement. The terms and conditions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
13. Parties in Interest. Nothing in this Agreement, express or implied,
other than the right to receive the Exchange Consideration pursuant to Section
1, is intended to or shall confer upon any person other than the parties hereto
any rights, benefits or remedies of any nature whatsoever under or by reason of
this Agreement.
14. Interpretation. The section headings contained in this Agreement are
solely for the purpose of reference, are not part of the agreement of the
parties and shall not in any way affect the meaning or interpretation of this
Agreement.
Appendix I-3
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
IN WITNESS WHEREOF, the Bank and the Holding Company have caused this
Agreement to be executed by their duly authorized officers and their corporate
seals to be affixed hereto as of the date first above written.
SURREY BANK & TRUST
By: /s/ Xxxxxx X. Xxxxx, III
-------------------------
Xxxxxx X. Xxxxx, III
[Corporate Seal] President and Chief Executive Officer
SURREY BANCORP
By: /s/ Xxxxxx X. Xxxxx, III
-------------------------
Xxxxxx X. Xxxxx, III
[Corporate Seal] President and Chief Executive Officer
Appendix I-4
