EXHIBIT 2
AMENDED
AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDED AGREEMENT AND PLAN OF REORGANIZATION is made and entered
into as of January 22, 1997, by and among Pinnacle Bankshares Corporation, a
proposed bank holding company organized under the laws of Virginia, with its
principal office in Altavista, Virginia (the "Holding Company"), The First
National Bank of Altavista, a national banking corporation organized under the
laws of the United States of America, with its Main Office in Altavista,
Virginia (the "Bank") and Pinnacle Bank, N.A., an interim national bank being
organized under the laws of the United States of America, with its Main Office
in Altavista, Virginia, established for the purpose of effectuating the
reorganization of the Bank under a bank holding company structure (the
"Receiving Bank"). The Holding Company, the Bank and the Receiving Bank shall be
collectively referred to as the "Constituent Corporations."
WITNESSETH:
WHEREAS, the Constituent Corporation originally entered into the
Agreement and Plan of Reorganization as of January 22, 1997, and each
Constituent Corporation desires to amend and restate such original agreement in
order to comply with the requirements of the Office of Comptroller of the
Currency (the "OCC").
WHEREAS, the original agreement as amended and restated herein shall
be referred to herein as the "Agreement".
WHEREAS, the respective boards of directors of the Constituent
Corporations consider the merger of the Bank into the Receiving Bank, so that
the Bank will become and be a wholly-owned subsidiary of the Holding Company
(the "Merger"), to be in the respective best interests of the Constituent
Corporations and their shareholders. To that end, each such board has approved
this Agreement, as such shall or may be amended hereinafter in accordance
herewith.
WHEREAS, the Holding Company has initiated steps to establish the
Receiving Bank by making application to the OCC.
WHEREAS, the Bank has total capital of $12,657,000, comprised of
239,675 shares of common stock, par value $2.00 per share, with $479,000 in its
stated capital account, paid-in surplus of $2,016,000, undivided profits,
including capital reserves, of $10,174,000, and unrealized losses on securities
available for sale of $12,000 as of December 31, 1996, and the Receiving Bank,
which is an interim national bank in the process of formation, and which prior
to the Effective Date will have total capital of $120,000, comprised of 50,000
shares of common stock, par value $2.00 per share, with $100,000 in its stated
capital account and paid-in surplus of $20,000, each acting pursuant to a
resolution of its board of directors, adopted by the vote of a majority of its
directors, pursuant to the authority given by and in accordance with the
provisions of the Act of November 7, 1918, as amended (12 U.S.C. 215(a)),
witnessed as follows:
NOW THEREFORE, in consideration of the mutual agreements set forth
herein, the Constituent Corporations agree as follows:
1. THE MERGER. At the Effective Date of the Merger (as hereinafter
defined), the Bank shall be merged with and into the Receiving Bank, which shall
be the surviving or continuing corporation, under the Articles of Association of
the Receiving Bank. The Merger shall be pursuant to the provisions of 12 U.S.C.
Section 215a and with the effect specified in that section.
2. NAME; ARTICLES OF ASSOCIATION; BYLAWS; OFFICES. At the Effective
Date, the name of the Receiving Bank (herein referred to as the "Continuing
Bank" whenever reference is made to it as of the Effective Date or thereafter)
shall be changed to The First National Bank of Altavista, and the Articles of
Association and Bylaws of the Receiving Bank shall become and be the Articles of
Association and Bylaws of the Continuing Bank. As of the Effective Date, the
Articles of Incorporation of the Holding Company shall be amended and restated
in substantially the form attached as Appendix I hereto. The main office and
branches of the Bank immediately prior to the Merger shall become the main
office and branches of the Continuing Bank
3. CONVERSION OF SHARES. Upon, and by reason of, the Merger becoming
effective pursuant to the issuance of a merger approval, or other corresponding
order, by the OCC (the "Effective Date"), no cash shall be allocated to the
shareholders of the Bank, and stock shall be issued and allocated as follows:
Each of the issued and outstanding shares of common stock of
the Bank ("Bank Common Stock") shall be automatically exchanged for three shares
of common stock of the Holding Company ("Holding Company Common Stock").
Outstanding certificates representing shares of Bank Common Stock will
thereafter represent an equivalent number of shares of Holding Company Common
Stock after multiplying by a factor of three (the "Exchange Ratio"). As soon a
practicable thereafter, the Holding Company will issue new stock certificates
representing Holding Company Common Stock received in the Merger adjusted in
accordance with the Exchange Ratio. Each holder of Bank Common Stock, upon the
surrender of his Bank stock certificates to the Holding Company duly endorsed
for transfer, will be entitled to receive in exchange therefor a certificate or
certificates representing the Exchange Ratio adjusted shares of Holding Company
Common Stock, but shareholders will not be required to surrender their Bank
stock certificates.
4. CAPITAL, ASSETS AND LIABILITIES OF THE BANK AND RECEIVING BANK.
(a) Prior to the Effective Date, the Holding Company shall have
acquired 50,000 shares of Receiving Bank Common Stock, par value $2.00 per
share, for $120,000, such that the Receiving Bank's stated capital account shall
be $100,000 with paid-in surplus of $20,000. The Holding Company shall arrange
to draw upon a line of credit provided by one of the Bank's correspondent banks
at the then current market rate in order to capitalize the Receiving Bank. The
Holding Company shall not draw upon the line of credit until five business days
before the Effective Date. Such initial capital of the Receiving Bank shall not
be retained in the Continuing Bank subject to the effectiveness of the Merger as
set forth in 4(b) below. Such line of credit borrowings will be repaid
immediately after the Effective Date of the Merger from funds provided by a
special dividend from the Continuing Bank to the Holding Company as set forth in
4(b) immediately below.
(b) At the Effective Date, by virtue of and simultaneous
with the Merger and without any action on the part of the Constituent
Corporations, each share of the Bank Common Stock issued and outstanding
immediately prior to the Effective Date and received by the Holding Company as
set forth above in Section 3 above shall be converted into one share of
Continuing Bank Common Stock. In addition, simultaneous with the effectiveness
of this conversion of Bank Common Stock into Continuing Bank Common Stock, the
Continuing Bank shall pay a special dividend to the Holding Company in the
amount of $120,000, representing the original consideration paid by the Holding
Company for the 50,000 shares of Receiving Bank Common Stock and, in turn, the
Holding Company shall cancel the certificates representing such previously
outstanding shares. By virtue of the Bank's merger into the Continuing Bank, the
Continuing Bank's capital structure shall be identical to that of the Bank
immediately prior to the Effective Date, such that the Continuing Bank's capital
shall be as follows: 239,675 shares of Common Stock, par value $2.00 per share,
issued and outstanding for total stated capital of $479,000, paid-in surplus of
$2,016,000, and undivided profits, including capital reserves, of $10,174,000,
and unrealized losses on securities available for sale of $12,000; adjusted
however, for normal earnings and expenses (and if applicable, purchase
accounting adjustments) between December 31, 1996, and the Effective Date of the
Merger.
(c) All assets of the Bank as they exist at the Effective Date of
the Merger shall pass to and vest in the Continuing Bank without any
conveyance or other transfer. Thus, at the Effective Date, the Continuing Bank
shall have on hand identical assets as reflected in the Bank's latest audited
financial reports as of December 31, 1996, as adjusted, however, for normal
earnings, expenses and other operations in the normal course between December
31, 1996, and the Effective Date. In addition, all of the liabilities of every
kind and description of the Bank existing as of the Effective Date shall pass
to, vest in and be assumed by the Continuing Bank without any conveyance or
other transfer thereof. The President and Cashier and such additional officers
as the board of directors of each bank at the time of the Merger shall have
satisfied themselves that the statement of condition of each bank as of the
Effective Date fairly presents its financial condition and since such date there
has been no material adverse change in the financial condition or business of
either bank.
5. BOARD OF DIRECTORS; OFFICERS. (a) At the Effective Date, the boards
of directors of the Bank and the Holding Company shall continue to serve as the
directors of the Continuing Bank and the Holding Company, respectively, except
as otherwise determined in the discretion of the Boards prior to the Effective
Date, until the next annual meeting or until such time as their successors have
been elected and qualified.
(b) At the Effective Date, the respective officers of the
Continuing Bank and the Holding Company shall continue to serve in their then
current positions until such time as their successors have been elected or
appointed.
6. RIGHTS OF DISSENTING SHAREHOLDERS. Shareholders of the Bank who
dissent from the Merger will [ ] be entitled to the dissenters' rights and
remedies set forth in the provisions of 12 U.S.C Section 215a.
7. CONDITIONS TO THE MERGER. Consummation of the Merger is conditioned
upon (i) the approval of this Agreement, which shall include any subsequent
amendments authorized hereinbelow, by the affirmative vote of the shareholders
owning more than two-thirds of the outstanding shares of common stock of the
Bank and the Receiving Bank, respectively, at meetings to be held on the call of
their respective boards of directors, (ii) the receipt of the required
regulatory approvals, (iii) the receipt of an opinion of counsel as to the
tax-free nature of the transaction, and (iv) such amendments or modifications to
this Agreement as may be requested or required by the OCC or any other
regulatory agency for the transactions contemplated herein to be accomplished,
as approved by the boards of directors of the Constituent Corporations. Upon the
satisfaction of the foregoing conditions, the Merger shall become effective at
the time specified in a Certificate of Merger to be issued by the Comptroller of
the Currency approving the Merger.
8. TERMINATION. This Agreement may be terminated by the unilateral
action of either of the boards of directors of the Receiving Bank or the Bank
prior to the approval of the Agreement by the shareholders of such party or by
the mutual consent of the respective boards of directors of the Receiving Bank
and the Bank after any shareholder group has taken the requisite affirmative
action. Upon termination for any reason, this Agreement shall be void and of no
further effect, and there shall be no liability by reason of this Agreement or
the termination thereof on the part of the Bank, the Receiving Bank or the
Holding Company or any of their directors, officers, employees, agents or
shareholders.
WITNESS, the following signatures and seals for the parties, each
hereunto set by its President and attested by its Cashier or Secretary, pursuant
to duly authorized resolutions of its Board of Directors.
ATTEST: PINNACLE BANKSHARES CORPORATION
(in formation)
/s/ Xxxx X. Xxxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------- --------------------------
Secretary Xxxxxx X. Xxxxxxx, Xx.
Pinnacle Bankshares Corporation President and Chief Executive Officer
(Company Seal)
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ATTEST: THE FIRST NATIONAL BANK OF ALTAVISTA
/s/ Xxxx X. Xxxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------ --------------------------
Cashier Xxxxxx X. Xxxxxxx, Xx.
The First National Bank of Altavista President
(Bank Seal)
ATTEST: PINNACLE BANK, N.A.
(in formation)
/s/ Xxxx X. Xxxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------- --------------------------
Cashier Xxxxxx X. Xxxxxxx, Xx.
Pinnacle Bank, N.A. President
(Bank Seal)
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APPENDIX I
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
PINNACLE BANKSHARES CORPORATION
I. NAME
The name of the Corporation is Pinnacle Bankshares Corporation.
II. PURPOSE
The purpose for which the Corporation is organized is to act as a bank
holding company and to transact any and all lawful business, not required to be
specifically stated in the Articles of Incorporation, for which corporations may
be incorporated under the Virginia Stock Corporation Act.
III. CAPITAL STOCK
Section 1. The Corporation shall have authority to issue three
million (3,000,000) shares of Common Stock, par value $3.00 per share.
Section 2. Subject to the provisions of law, the holders of Common
Stock at the time outstanding shall be entitled to receive such dividends at
such times and in much amounts as the Board of Directors may deem advisable.
Section 3. In the event of any liquidation, dissolution or winding up
(whether voluntary or involuntary) of the Corporation, after the payment or
provision for payment in full for all debts and other liabilities of the
Corporation, the remaining net assets of the Corporation shall be distributed
ratably among the holders of the shares at the time outstanding of Common Stock.
Section 4. The holders of Common Stock shall be entitled to one vote
per share on all matters as to which a stockholder vote is taken.
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IV. NO PREEMPTIVE RIGHTS
No holder of capital stock of the corporation of any class shall have
any preemptive right to subscribe to or purchase (i) any shares of capital stock
of the Corporation, (ii) any securities convertible into such shares or (iii)
any options, warrants or rights to purchase such shares or securities
convertible into any such shares.
V. DIRECTORS
Section 1. The Board of Directors shall consist of a minimum of
three (3) and a maximum of fifteen (15) individuals, and the number of
directors may be fixed or changed from time to time within such range by the
Board of Directors.
Section 2. The Board of Directors shall be divided into three classes,
Class I, Class II, and Class III as nearly equal in number as possible.
Directors of the first class (Class I) shall be elected to hold office for a
term expiring at the 1998 annual meeting of the shareholders; directors of the
second class (Class II) shall be elected for a term expiring at the 1999 annual
meeting of the shareholders, and directors of the third class (Class III) shall
be elected to hold office for a term expiring at the 2000 annual meeting of
shareholders. The successors to the class of directors whose terms expire shall
be identified as being of the same class as the directors they succeed and
elected to hold office for a term expiring at the third succeeding annual
meeting of shareholders. When the number of directors is changed, any newly
created directorships or any decrease in directorships shall be apportioned
among the classes by the Board of Directors as to make all classes as nearly
equal as possible.
Section 3. Directors of the Corporation may be removed only for cause
and with the affirmative vote of at least two-thirds of the outstanding
shares entitled to vote.
Section 4. If the office of any director shall become vacant, the
directors at the time in office, whether or not a quorum, may, by majority
vote of the directors then in office, choose a successor who shall hold office
until the next annual meeting of stockholders. In such event, the successor
elected by the stockholders at that annual meeting shall hold office for a term
that shall coincide with the remaining term of the class of directors to which
that person has been elected. Vacancies resulting from the increase in the
number of directors shall be filled in the same manner.
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VI. SHAREHOLDER APPROVAL OF CERTAIN TRANSACTIONS
Any amendment of the Corporation's Articles of Incorporation, a plan
of merger or exchange, a transaction involving the sale of all or substantially
all the Corporation's assets other than in the regular course of business and a
plan of dissolution shall be approved by the vote of a majority of all the votes
entitled to be cast on such transactions by each voting group entitled to vote
on the transaction at a meeting at which a quorum of the voting group is
present, provided that the transaction has been approved and recommended by at
least two-thirds of the directors in office at the time of such approval and
recommendation. If the transaction is not so approved and recommended, then the
transaction shall be approved by the vote of eighty percent (80%) or more of all
votes entitled to be cast on such transactions by each voting group entitled to
vote on the transaction.
VII. LIMIT ON LIABILITY AND INDEMNIFICATION
Section 1. To the full extent that the Virginia Stock Corporation
Act, as it exists on the date hereof or may hereafter be amended, permits
the limitation or elimination of the liability of directors or officers, a
director or officer of the Corporation shall not be liable to the Corporation or
its shareholders for monetary damages.
Section 2. To the full extent permitted and in the manner prescribed
by the Virginia Stock Corporation Act, the Corporation shall indemnify each
director or officer of the Corporation against liabilities, fines, penalties and
claims imposed upon or asserted against him (including amounts paid in
settlement) by reason of having been such director or officer, whether or not
then continuing so to be, and against all expenses (including counsel fees)
reasonably incurred by him in connection therewith, except in relation to
matters as to which he shall have been finally adjudged liable by reason of his
willful misconduct or a knowing violation of criminal law in the performance of
his duty as such director or officer. The Board of Directors is hereby
empowered, by majority vote of a quorum of disinterested directors, to contract
in advance to indemnify any director or officer.
Section 3. The Board of Directors is hereby empowered, by majority
vote of a quorum of disinterested directors, to cause the Corporation to
indemnify or contract in advance to indemnify any person not specified in
Section 2 of this Article against liabilities, fines, penalties and claims
imposed upon or asserted against him (including amounts paid in settlement) by
reason of having been an employee, agent or consultant of the Corporation,
whether or not then continuing so to be, and against all expenses (including
counsel fees) reasonably incurred by him in connection therewith, to the same
extent as if such person were specified as one to whom indemnification is
granted in Section 2.
Section 4. The Corporation may purchase and maintain insurance to
indemnify it against the whole or any portion of the liability assumed by it in
accordance with this Article and may also procure insurance, in such amounts as
the Board of Directors may determine, on behalf of any person who is or was a
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director, officer, employee, agent or consultant of the Corporation against any
liability asserted against or incurred by any such person in any such capacity
or arising from his status as such, whether or not the Corporation would have
power to indemnify him against such liability under the provisions of this
Article.
Section 5. In the event there has been a change in the composition of
a majority of the Board of Directors after the date of the alleged act or
omission with respect to which indemnification is claimed, any determination as
to indemnification and advancement of expenses with respect to any claim for
indemnification made pursuant to Sections 2 or 3 of this Article VI shall be
made by special legal counsel agreed upon by the Board of Directors and the
proposed indemnitee. If the Board of Directors and the proposed indemnitee are
unable to agree upon such special legal counsel, the Board of Directors and the
proposed indemnitee each shall select a nominee, and the nominees shall select
such special legal counsel.
Section 6. No amendment, modification or repeal of this Article shall
diminish the rights provided hereby or diminish the right to indemnification
with respect to any claim, issue or matter in any then pending or subsequent
proceeding that is based in any material respect on any alleged action or
failure to act occurring before the adoption of such amendment, modification or
repeal.
Section 7. Every reference herein to director, officer, employee,
agent or consultant shall include (i) every director, officer, employee, agent,
or consultant of the Corporation or any corporation the majority of the voting
stock of which is owned directly or indirectly by the Corporation, (ii) every
former director, officer, employee, agent, or consultant of the Corporation,
(iii) every person who may have served at the request of or on behalf of the
Corporation as a director, officer, employee, agent, consultant or trustee of
another corporation, partnership, joint venture, trust or other entity, and (iv)
in all of such cases, his executors and administrators.
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