AGREEMENT AND PLAN OF SHARE EXCHANGE
THIS AGREEMENT AND PLAN OF SHARE EXCHANGE (the "Plan"), made and entered
into as of the 8th day of October, 2003, between FIRST NATIONAL BANK OF GWINNETT
(the "Bank"), a national bank organized under the laws of the United States, and
FNBG BANCSHARES, INC. (the "Company"), a Georgia corporation.
WITNESSETH
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WHEREAS, the Board of Directors of the Bank has determined that it is in
the best interest of the Bank and its shareholders to reorganize the Bank into a
one-bank holding company structure and, by resolutions duly adopted, has
approved the reorganization and all transactions related to the reorganization;
and
WHEREAS, the Boards of Directors of the Bank and the Company have
determined that it is in the best interests of the Bank and the Company, and
their respective shareholders, that the reorganization of the Bank be
accomplished by an exchange of all of the outstanding shares of Bank Common
Stock for shares of Company Common Stock (the "Share Exchange") and, by
resolutions duly adopted, have approved and adopted this Plan and directed that
it be submitted to the shareholders of the Bank and the Company for their
approval; and
WHEREAS, the principal offices of the Bank and the Company are located at
0000 Xxxxxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000; and
WHEREAS, the authorized capital stock of the Bank consists of 5,000,000
shares of common stock ("Bank Common Stock"), $5.00 par value, of which 777,895
shares are issued and outstanding; and
WHEREAS, the authorized capital stock of the Company consists of 10,000,000
shares of common stock ("Company Common Stock"), $1.00 par value, of which one
share is issued and outstanding; and
WHEREAS, the Board of Directors of the Company, by resolutions duly
adopted, has approved the issuance of the shares of Company Common Stock which
the shareholders of the Bank will receive upon consummation of the
reorganization and the Share Exchange as herein provided; and
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements contained in this Plan, and for the purpose of stating the method,
terms and conditions of the transactions provided for in this Plan, the mode of
carrying the same into effect, the manner and basis of exchanging the shares of
Bank Common Stock for Company Common Stock as provided in this Plan, and such
other provisions relating to the transactions as the parties deem necessary or
desirable, the parties hereto agree as follows:
SECTION 1
REORGANIZATION
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The reorganization of the Bank into a one-bank holding company shall be
accomplished pursuant to the provisions of Section 215a-2 of Title 12 of the
United States Code. The Company shall acquire all of the outstanding shares of
the Bank through a Share Exchange, thereby effecting the reorganization of the
Bank into a one-bank holding company structure. The Company will be the
acquiring corporation and the Bank will be the entity whose shares will be
acquired.
SECTION 2
EFFECTIVE DATE OF THE REORGANIZATION
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The Share Exchange and the reorganization of the Bank into a one-bank
holding company structure shall be effective as of the date on which the Office
of the Comptroller of the Currency issues a letter to the Bank granting final
approval of the Share Exchange pursuant to 12 U.S.C. Sec. 215a-2 (the "Effective
Date of the Reorganization").
Because the Share Exchange will effect the reorganization of the Bank into
a one-bank holding company structure, the Share Exchange and reorganization,
collectively, shall be referred in this Plan to as the "Reorganization."
SECTION 3
LOCATION, ARTICLES AND BYLAWS, MANAGEMENT
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AND CAPITAL STRUCTURE OF THE COMPANY AND THE BANK
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On the Effective Date of the Reorganization:
(a) The principal office of the Company and the Bank shall be located
at 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000, or such other location where
they are located immediately prior to the Effective Date of the Reorganization.
(b) The Articles of Incorporation and Bylaws of the Company shall be
the same as the Articles of Incorporation and Bylaws of the Company in effect
immediately prior to the Effective Date of the Reorganization.
(c) The directors and officers of the Company shall be the directors
and officers of the Company immediately prior to the Effective Date of the
Reorganization. All such directors and officers of the Company shall serve
until their respective successors are elected or appointed pursuant to the
Bylaws of the Company.
(d) The Articles of Association and Bylaws of the Bank shall be the
same as the Articles of Association and Bylaws of the Bank in effect immediately
prior to the Effective Date of the Reorganization.
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(e) The directors and officers of the Bank shall be the directors and
officers of the Bank immediately prior to the Effective Date of the
Reorganization. All such directors and officers of the Bank shall serve until
their respective successors are elected or appointed pursuant to the Bylaws of
the Bank.
(f) The capital structure of the Bank shall not be altered or amended
by the Reorganization and shall continue in effect on and after the Effective
Date of the Reorganization.
(g) As of the Effective Date of the Reorganization, the Company shall
assume sponsorship of, and shall be the successor to the Bank with respect to
all of the Bank's rights, duties and obligations under the First National Bank
of Gwinnett 2000 Stock Incentive Plan (the "Stock Incentive Plan"), and the
number of shares of Company Common Stock reserved under the Stock Incentive Plan
shall be equal to the number of shares of Bank Common Stock reserved under the
Stock Incentive Plan.
SECTION 4
EXISTENCE, RIGHTS, DUTIES, ASSETS
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AND LIABILITIES OF THE BANK
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(a) As of the Effective Date of the Reorganization, the existence of
Bank as a separate entity shall continue.
(b) As of the Effective Date of the Reorganization, the Bank shall have
the authority to engage only in such businesses and to exercise only such powers
as are then permissible upon the original organization of a national bank under
the law of the United States and as are provided for in the Articles of
Association of the Bank, and the Bank shall be subject to the same prohibitions
and limitations to which it would be subject upon original organization, except
that the Bank may engage in any business and may exercise any right that the
Bank could lawfully have exercised or engaged in immediately prior to the
Effective Date of the Reorganization.
(c) No liability of the Bank or of any of its shareholders, directors
or officers shall be affected by the Reorganization, nor shall any lien on any
property of the Bank be impaired by the Reorganization. Any claim existing or
any action pending by or against the Bank may be prosecuted to judgment as if
the Reorganization had not taken place.
SECTION 5
MANNER AND BASIS OF EXCHANGING SHARES OF BANK COMMON STOCK
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The manner and basis of exchanging shares of Bank Common Stock for shares
of Company Common Stock, excluding those shares of Bank Common Stock held by
shareholders who have perfected their dissenters' rights under the applicable
provisions of 12 U.S.C. Sec. 215a (the "Dissenters' Rights Provision"), shall be
as follows:
(a) Exchange Ratio.
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(i) Each share of Bank Common Stock outstanding immediately prior
to the Effective Date of the Reorganization shall, by virtue of the
Reorganization and without any action on the part of the holder or holders
thereof, be converted into one share of Company Common Stock.
(ii) Each option to purchase Bank Common Stock outstanding under
the Stock Incentive Plan immediately prior to the Effective Date of the
Reorganization (and which by its terms does not lapse on or before the
Effective Date of the Reorganization) whether or not then exercisable,
shall be converted into and become an option to purchase Company Common
Stock and the Company shall assume each option in accordance with the terms
of the Stock Incentive Plan and option agreements, except that from and
after the Effective Date of the Reorganization:
- the Company shall be substituted for the Bank as administrator of
the Stock Incentive Plan;
- each option assumed by the Company may be exercised solely for
shares of Company Common Stock; and
- the number of shares of Company Common Stock subject to each
option shall be equal to the number of shares of Bank Common
Stock subject to such option immediately prior to the Effective
Date of the Reorganization.
(b) Rights of Holders of Certificates for Bank Common Stock. As of the
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Effective Date of the Reorganization, each certificate theretofore representing
one or more outstanding shares of Bank Common Stock shall be deemed for all
corporate purposes to evidence only the right to receive a certificate
representing an equal number of shares of Company Common Stock in accordance
with this Plan.
(c) Letter of Transmittal. Unless the parties otherwise agree, within
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three business days after the Effective Date of the Reorganization, the Bank
shall mail a letter of transmittal to all holders of certificates for Bank
Common Stock. Upon receipt of the letter of transmittal, each holder of a
certificate or certificates theretofore representing shares of Bank Common Stock
shall surrender such certificates to the Bank, as exchange agent, together with
a properly completed and signed letter of transmittal, and shall receive in
exchange therefor, as set forth in (a) above, a certificate representing an
equal number of shares of Company Common Stock, subject to the restrictions and
conditions of this Plan.
(d) Failure to Surrender Bank Common Stock Certificates. Until the
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holder surrenders his or her Bank Common Stock certificate or certificates to
the Bank (or suitable arrangements are made to account for any lost, stolen or
destroyed certificates according to the Bank's usual procedures), the holder:
(i) shall not be issued a certificate representing the shares of
Company Common Stock which such Bank Common Stock certificate may entitle
the holder to receive; and
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(ii) shall not be paid dividends or other distributions in respect
of the shares of Company Common Stock which such Bank Common Stock
certificate may entitle the holder to receive; instead such dividends or
distributions shall be retained, without interest, for the holder's account
until he or she surrenders such Bank Common Stock certificate.
SECTION 6
ACQUISITION OF DISSENTERS' BANK COMMON STOCK
--------------------------------------------
The Bank shall establish an escrow account (the "Escrow Account") and
transfer from its funds, prior to the Effective Date of the Reorganization, cash
sufficient to pay any dissenters as follows:
(a) The Bank shall pay any holder of Bank Common Stock certificates who
fully complies with the Dissenters' Rights Provision cash from the Escrow
Account, in an amount to be determined under such provision, for his or her
shares of Bank Common Stock. Any cash remaining in the Escrow Account, after
payment to all holders of Bank Common Stock certificates who fully comply with
the Dissenters' Rights Provision, shall be returned to the Bank. The shares of
Bank Common Stock so acquired by the Bank shall be subject to public auction as
provided in 12 U.S.C. Sec. 215a, and any proceeds received from the public
auction which exceed the amount paid from the Escrow Account to holders
perfecting their dissenters' rights shall be remitted to such holders on a pro
rata basis.
(b) In accordance with the Dissenters' Rights Provision, the Bank
hereby agrees to pay the costs of any appraisal that may result from a demand
for payment pursuant to the Dissenters Rights Provision.
SECTION 7
REDEMPTION OF COMPANY COMMON STOCK
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As soon as practicable after the Effective Date of the Reorganization, the
Company shall redeem any shares of Company Common Stock which may have been
issued prior to the Effective Date of the Reorganization at a redemption price
equal to the same consideration paid for such shares, so that immediately after
such redemption the then outstanding shares of Company Common Stock shall
consist solely of the shares to be issued by the Company upon the exchange of
shares of Bank Common Stock as provided in this Plan.
SECTION 8
CONDITIONS PRECEDENT TO CONSUMMATION OF THE REORGANIZATION
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This Plan is subject to, and consummation of the Reorganization is
conditioned upon, the fulfillment prior to the Effective Date of the
Reorganization of each of the following conditions:
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(a) Approval of the Plan by the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Bank Common Stock;
(b) The number of shares held by persons who have perfected dissenters'
rights of appraisal pursuant to the Dissenters' Rights Provision shall not be
deemed by the parties to this Plan to make consummation of this Plan
inadvisable;
(c) Procurement of all consents of, filings and registrations with, and
notifications to all regulatory authorities required for consummation of the
transactions contemplated by this Plan, and expiration of all waiting periods
required by law;
(d) Procurement of any action, consent, approval or ruling,
governmental or otherwise, which is, or in the opinion of counsel for the Bank
may be, necessary to permit or enable the Bank, upon and after the
Reorganization, to conduct all or any part of the business and activities
conducted by the Bank prior to the Reorganization; and
(e) The receipt by the Bank of a written opinion of special counsel to
the Bank that for federal income tax purposes, no gain or loss will be
recognized by a Bank shareholder who exchanges his or her Bank Common Stock for
Company Common Stock, as provided by this Plan.
SECTION 9
TERMINATION
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In the event that:
(a) The number of shares of Bank Common Stock voted against the
Reorganization shall make consummation of the Reorganization inadvisable in the
opinion of the Board of Directors of the Bank or the Company;
(b) Any action, suit, proceeding or claim has been instituted, made or
threatened relating to the proposed Reorganization which shall make consummation
of the Reorganization inadvisable in the opinion of the Board of Directors of
the Bank or the Company;
(c) Any action, consent, approval, opinion, or ruling required to be
provided by Section 8 of this Plan shall not have been obtained; or
(d) For any other reason, consummation of the Reorganization is deemed
inadvisable in the opinion of the Board of Directors of the Bank or the Company;
then this Plan may be terminated at any time before consummation of the
Reorganization, by written notice, approved or authorized by the Board of
Directors of the party wishing to terminate, to the other party. Upon
termination by written notice as provided by this Section 9, this Plan shall be
void and of no further effect, and there shall be no liability by reason of this
Plan or the termination hereof on the part of the Bank, the Company or their
directors, officers, employees, agents or shareholders.
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SECTION 10
AMENDMENT; WAIVER
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(a) At any time before or after approval and adoption of this Plan by
the respective shareholders of the Bank and the Company, this Plan may be
amended by agreement among the Bank and the Company; provided, however, that
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after the approval and adoption of this Plan by the shareholders of the Bank, no
amendment reducing the consideration payable to Bank shareholders pursuant to
Section 5(a) of this Plan shall be valid without having been approved by the
shareholders of the Bank in the manner required for approval of this Plan.
(b) A waiver by any party to this Plan of any breach of a term or
condition of this Plan shall not operate as a waiver of any other breach of such
term or condition or of other terms or conditions, nor shall failure to enforce
any term or condition operate as a waiver or release of any other right, in law
or in equity, or claim which any party may have against another party for
anything arising out of, connected with or based upon this Plan. A waiver shall
be effective only if evidenced by a writing signed by the party who is entitled
to the benefit of the term or condition of this Plan which is to be waived. A
waiver of a term or condition on one occasion shall not be deemed to be a waiver
of the same or of any other term or condition on a future occasion.
SECTION 11
BINDING EFFECT; COUNTERPARTS; HEADINGS; ENTIRE AGREEMENT; GOVERNING LAW
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This Plan is binding upon the parties hereto and upon their successors and
assigns. This Plan may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument. The title of and the headings in this
Plan are for convenience of reference only and shall not be deemed a part of
this Plan. This Plan constitutes the entire agreement between the parties with
respect to the transactions contemplated by this Plan and supercedes any other
prior agreements. This Plan shall be governed by and construed in accordance
with the laws of the State of Georgia and by federal banking law.
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IN WITNESS WHEREOF, the parties hereto have caused this Plan of
Reorganization to be executed by their duly authorized officers and their bank
and corporate seals to be affixed to this Plan all as of the day and year first
above written.
FIRST NATIONAL BANK OF GWINNETT
[BANK SEAL]
By: /s/Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President and Chief Executive Officer
ATTEST:
/s/Xxxxxx X. Xxxxx
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(Signature)
Xxxxxx X. Xxxxx
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(Print Name)
Senior Vice President
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(Title)
FNBG BANCSHARES, INC.
[CORPORATION SEAL]
By: /s/Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President and Chief Executive Officer
ATTEST:
/s/Xxxxxx X. Xxxxx
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(Signature)
Xxxxxx X. Xxxxx
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(Print Name)
Secretary
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(Title)
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