PLAN OF REORGANIZATION AND ACQUISITION
Pursuant to Section 26B of Chapter 172
of the General Laws of Massachusetts
This Plan of Reorganization and Acquisition (the "Plan") is dated as of
October 15, 1996 and made between Abington Savings Bank, a Massachusetts savings
bank (the "Bank"), and Abington Bancorp, Inc., a Massachusetts corporation (the
"Holding Company").
The Bank is a stock savings bank, duly organized and validly existing
under the laws of The Commonwealth of Massachusetts, with its principal office
at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000. The authorized capital
stock of the Bank consists of (1) 7,000,000 shares of common stock, par value
$.10 per share (the "Bank Common Stock"), of which 1,886,738 shares are issued
and outstanding as of the date hereof and 206,262 shares are reserved for
issuance under the Stock Option Plan of the Bank, and (2) 3,000,000 shares of
preferred stock, par value $.10 per share, none of which are issued and
outstanding as of the date hereof.
The Holding Company is a corporation, duly organized and validly existing
under the laws of Massachusetts, with its principal office at 000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000. The authorized capital stock of the
Holding Company consists of 12,000,000 shares of common stock, par value $.10
per share (the "Holding Company Common Stock"), of which 100 shares are issued
and outstanding as of the date hereof, all of which are held by the Bank, and
3,000,000 shares of preferred stock, par value $.10 per share, none of which are
issued and outstanding as of the date hereof.
The Bank and the Holding Company have agreed that the Holding Company will
acquire all of the issued and outstanding shares of Bank Common Stock in
exchange for shares of Holding Company Common Stock pursuant to the provisions
of Section 26B of Chapter 172 of the General Laws of Massachusetts and of this
Plan. This Plan has been adopted and approved by a vote of a majority of all of
the members of the Board of Directors of the Bank, and by a vote of a majority
of all the members of the Board of Directors of the Holding Company. The
officers of the Bank and of the Holding Company whose respective signatures
appear below have been duly authorized to execute and deliver this Plan.
NOW, THEREFORE, in consideration of the premises, the Bank and the Holding
Company agree as follows:
SECTION 1. Approval and Filing of Plan
1.1. The Plan shall be submitted for approval by the holders of Bank
Common Stock at a meeting to be called and held in accordance with the
applicable provisions of law. Notice of such meeting shall be published at least
once a week for two successive weeks in a newspaper of general circulation in
the County of Plymouth, Commonwealth of Massachusetts. Both of said publications
of notice of such meeting shall be at least fifteen days prior to the date of
the meeting.
1.2. Upon approval of the Plan by vote of the holders of two-thirds of the
outstanding shares of Bank Common Stock as required by law, the Bank and the
Holding Company shall submit the Plan to the Commissioner of Banks of The
Commonwealth of Massachusetts (the "Bank Commissioner") for his approval and
filing in accordance with the provisions of Section 26B of Chapter 172 of the
General Laws of Massachusetts. The Plan shall be accompanied by such
certificates of the respective officers of the Bank and the Holding Company as
may be required by law and a written request from the Bank that the Plan not be
deemed to be filed with the Bank Commissioner until such future time as the Bank
Commissioner shall have received from the Bank and the Holding Company the
written notice described in Subsection 2.1.
1.3. If the requisite approval of the Plan is obtained at the meeting of
holders of Bank Common Stock referred to in Subsection 1.1, thereafter and until
the Effective Time, as hereafter defined, the Bank shall issue certificates for
Bank Common Stock, whether upon transfer or otherwise, only if such certificates
bear a legend, the form of which shall be approved by the Board of Directors of
the Holding Company, indicating that the Plan has been approved and that shares
of Bank Common Stock evidenced by such certificates are subject to the
acquisition by the Holding Company pursuant to the Plan.
SECTION 2. Definition of Effective Time
2.1. The Plan shall become effective at 12:01 A.M. on the first business
day following the date on which the Bank and the Holding Company file a written
notice with the Bank Commissioner stating (i) that all the conditions precedent
to the Plan becoming effective specified in Section 5 have been satisfied and
(ii) that the Plan has not been abandoned by the Bank or the Holding Company in
accordance with the provisions of Section 6. Such time is hereafter called the
"Effective Time".
SECTION 3. Actions at the Effective Time
3.1. At the Effective Time, the Holding Company shall, without any further
action on its part or on the part of the holders of Bank Common Stock,
automatically and by operation of law acquire and become the owner for all
purposes of all of the then issued and outstanding shares of Bank Common Stock
and shall be entitled to have issued to it by the Bank a certificate or
certificates representing such shares. Thereafter, the Holding Company shall
have full and exclusive power to vote such shares of Bank Common Stock, to
receive dividends thereon and to exercise all rights of an owner thereof.
3.2. At the Effective Time, the shares of Holding Company stock which are
outstanding will be cancelled.
3.3. At the Effective Time, the holders of the then issued and outstanding
shares of Bank Common Stock shall, without any further action on their part or
on the part of the Holding Company, automatically and by operation of law cease
to own such shares and shall instead become owners of one share of Holding
Company Common Stock for each share of Bank Common Stock held by them
immediately prior to the Effective Time. Thereafter, such persons shall have
full and exclusive power to vote such shares of Holding Company Common Stock, to
receive dividends thereon, except as provided herein, and to exercise all rights
of an owner thereof.
3.4. At the Effective Time, all previously issued and outstanding
certificates representing shares of Bank Common Stock (the "Old Certificates")
shall automatically and by operation of law cease to represent shares of Bank
Common Stock or any interest therein and each Old Certificate shall instead
represent the ownership by the holder thereof of an equal number of shares of
Holding Company Common Stock. No holder of an Old Certificate shall be entitled
to vote the shares of Bank Common Stock formerly represented by such
certificate, or to receive dividends thereon, or to exercise any other rights of
ownership in respect thereof.
3.5. Notwithstanding any of the foregoing, any dissenting stockholder, as
defined in Subsection 8.1, shall have such rights as are provided by Subsection
8.2 and by the laws of The Commonwealth of Massachusetts.
SECTION 4. Actions After the Effective Time
As soon as practicable and in any event not more than thirty days after
the Effective Time:
4.1. The Holding Company shall deliver to the transfer agent for the Bank
and the Holding Company (the "Transfer Agent"), as agent for the then holders of
the Old Certificates (other than Old Certificates representing shares of Bank
Common Stock as to which dissenters rights shall have been exercised), a
certificate or certificates for the aggregate number of shares of Holding
Company Common Stock (the "New Certificates") to which said holders shall be
entitled. Each such holder shall surrender his Old Certificate to the Transfer
Agent and receive in exchange therefor a New Certificate for an equal number of
shares of Holding Company Common Stock. Until so surrendered, each Old
Certificate shall be deemed, for all corporate purposes, to evidence the
ownership of the number of shares of common stock of the Holding Company which
the holder thereof would be entitled to receive upon its surrender. Until so
exchanged, each such holder's Old Certificate will continue to represent the
same number of shares of Holding Company Common Stock, and such holder shall be
entitled to all the rights of a holder of a New Certificate.
4.2. The Holding Company shall publish, pursuant to applicable law, a
notice to the holders of all Old Certificates, specifying the Effective Time of
the Plan and notifying such holders to present their Old Certificates to the
Transfer Agent for exchange. Such notice shall likewise be given by mail to such
holders at their addresses on the Bank's records.
SECTION 5. Conditions Precedent
The Plan shall not become effective unless all of the following first
shall have occurred:
5.1. The Plan shall have been approved by a vote of two-thirds of the
outstanding Bank Common Stock at a meeting of the holders of the Bank Common
Stock held for such purpose.
5.2. The Plan shall have been approved by the Bank Commissioner and a copy
of the Plan with his approval endorsed thereon shall have been filed in his
office, all as provided in Section 26B of Chapter 172 of the General Laws of
Massachusetts.
5.3. The acquisition of the Bank by the Holding Company shall have been
reviewed without objection by any appropriate federal agency.
5.4. The Bank shall have received a favorable opinion from its counsel,
satisfactory in form and substance to the Bank, with respect to the federal
income tax consequences of the Plan and the acquisition contemplated thereby.
5.5. The Bank shall have received a favorable letter from its independent
public accountants, satisfactory in form and substance to the Bank, with respect
to the accounting treatment of the transaction.
5.6. The shares of Holding Company Common Stock to be issued to the
holders of Bank Common Stock pursuant to the Plan shall have been registered or
shall be exempt from registration under the Securities Act of 1933, as amended,
and all applicable state securities laws.
5.7. The Bank and the Holding Company shall have obtained all other
consents, permissions, opinions and approvals and taken all actions required by
law or agreement, or deemed necessary by the Bank or the Holding Company, to
enable the Holding Company to have and exercise all rights of ownership with
respect to all of the outstanding shares of Bank Common Stock acquired by it
under the Plan.
SECTION 6. Abandonment of Plan
6.1. The Plan may be abandoned by either the Bank or the Holding Company
at any time before the Effective Time in the event that:
(a) The number of shares of Bank Common Stock owned by Dissenting
Stockholders, as defined in Section 8.1, shall make consummation of the
acquisition contemplated by the Plan inadvisable in the opinion of the
Bank or the Holding Company;
(b) Any action, suit, proceeding or claim has been instituted, made
or threatened relating to the Plan which shall make consummation of the
acquisition contemplated by the Plan inadvisable in the opinion of the
Bank or the Holding Company; or
(c) For any other reason consummation of the acquisition
contemplated by the Plan is inadvisable in the opinion of the Bank or the
Holding Company.
Such abandonment shall be effected by written notice by either the Bank or
the Holding Company to the other of them, and shall be authorized or approved by
the Board of Directors of the party giving such notice. Upon the giving of such
notice, the Plan shall be terminated and there shall be no liability hereunder
or on account of such termination on the party of the Bank or the Holding
Company or the Directors, officers, employees, agents or stockholders of either
of them. In the event of abandonment of the Plan, the Bank shall pay the fees
and expenses incurred by itself and the Holding Company in connection with the
Plan and the proposed acquisition. If either party hereto gives written notice
of termination to the other party pursuant to this section, the party giving
such written notice shall simultaneously furnish a copy thereof to the Bank
Commissioner.
SECTION 7. Amendment of Plan
7.1. The Plan may be amended or modified at any time by mutual agreement
of the Boards of Directors of the Holding Company and the Bank (i) prior to the
approval hereof by the stockholders of the Bank, in any respect, and (ii)
subsequent to such approval, in any respect provided that the Bank Commissioner
shall approve of such amendment or modification.
SECTION 8. Rights of Dissenting Stockholders
8.1. "Dissenting Stockholders" shall mean those holders of Bank Common
Stock who file with the Bank before the taking of the vote on the Plan written
objection to the Plan, pursuant to Chapter 156B of the General Laws of
Massachusetts, stating that they intend to demand payment for their shares of
Bank Common Stock if the Plan is consummated and whose shares are not voted in
favor of the Plan.
8.2. Dissenting Stockholders who comply with the provisions of Sections 86
to 98, inclusive, of Chapter 156B of the General Laws of Massachusetts and all
other applicable provisions of law shall be entitled to receive from the Bank
payment of the fair value of their shares of Bank Common Stock upon surrender by
such holders of the certificates which previously represented shares of Bank
Common Stock. Certificates so obtained by the Bank, upon payment of the fair
value of such shares of provided by law, shall be cancelled. Shares of Holding
Company Common Stock, to which Dissenting Stockholders would have been entitled
had they not dissented, shall be deemed to constitute authorized but unissued
shares of Holding Company Common Stock and may be sold or otherwise disposed of
by the Holding Company at the discretion of, and on such terms as may be fixed
by, its Board of Directors.
SECTION 9. Stock Options
By consummation of the acquisition contemplated by the Plan, the Holding
Company shall have approved its adoption of the existing Stock Option Plan of
the Bank as the Stock Option Plan of the Holding Company and shall have agreed
to issue Holding Company Common Stock in lieu of Bank Common Stock pursuant to
options currently outstanding under the existing Stock Option Plan of the Bank.
As of the Effective Time, the unexercised portion of the options outstanding
under the existing Stock Option Plan of the Bank shall be assumed by the Holding
Company and thereafter shall be exercisable only for shares of Holding Company
Common Stock, with each such option being exercisable for a number of shares of
Holding Company Common Stock equal to the number of shares of Bank Common Stock
that were available thereunder immediately prior to the Effective Time, and with
no change in the option exercise price or any other term or condition of such
option. The Holding Company and the Bank shall make appropriate amendments to
the existing Stock Option Plan to reflect the adoption of the Plan as the Stock
Option Plan of the Holding Company without adverse effect upon the options
outstanding under the existing Stock Option Plan of the Bank.
SECTION 10. Governing Law
The Plan shall take effect as a sealed instrument and shall be governed by
and construed in accordance with the laws of The Commonwealth of Massachusetts.
SECTION 11. Counterparts
The Plan may be executed in several identical counterparts, each of which
when executed and delivered by the parties hereto shall be an original, but all
of which together shall constitute a single instrument. In making proof of the
Plan, it shall not be necessary to produce or account for more than one such
counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Plan of
Reorganization and Acquisition to be duly executed as of the date first set
forth above and their corporate seals to be hereunto affixed.
Corporate Seal ABINGTON SAVINGS BANK
Attest:
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. XxXxxxxxx
------------------------------------- ---------------------------------------
Xxxxx Xxxxx X. XxXxxxxxx, President
and Chief Executive Officer
Corporate Seal ABINGTON BANCORP, INC.
Attest:
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. XxXxxxxxx
------------------------------------- ---------------------------------------
Xxxxx Xxxxx X. XxXxxxxxx, President
and Chief Executive Officer
