PLAN OF MERGER
OF
MUTUAL SAVINGS BANK, F.S.B.
WITH AND INTO
AMERICAN NATIONAL BANK AND TRUST COMPANY
This PLAN OF MERGER (this "Plan of Merger") is made and
entered into as of September 26, 1995, by and between MUTUAL
SAVINGS BANK, F.S.B., a federally chartered stock savings bank
organized and existing under the laws of the United States, with
its main office located in Danville, Virginia ("Mutual"), and
AMERICAN NATIONAL BANK AND TRUST COMPANY, a national banking
association organized and existing under the laws of the United
States, with its main office located in Danville, Virginia
("American National").
American National is a wholly-owned subsidiary of
American National Bankshares Inc., a corporation organized and
existing under the laws of the Commonwealth of Virginia, with its
principal office located in Danville, Virginia ("ANB").
Concurrently with the execution and delivery of this Plan of
Merger, Mutual and ANB are entering into an Agreement and Plan of
Reorganization (the "Agreement") pursuant to which Mutual would
merge with and into American National. The Boards of Directors
of Mutual and American National are of the opinion that the best
interests of their respective institutions would be served if
Mutual is merged with and into American National on the terms and
conditions provided in this Plan of Merger.
NOW, THEREFORE, in consideration of the covenants and
agreements contained herein, Mutual and American National hereby
make, adopt, and approve this Plan of Merger in order to set
forth the terms and conditions for the merger of Mutual with and
into American National.
ARTICLE ONE
DEFINITIONS
Except as otherwise provided herein, the capitalized
terms set forth below shall have the following meanings:
"Agreement" shall mean the Agreement and Plan of
Reorganization, dated as of September 26, 1995, by and
between Mutual and ANB.
"American National Common Stock" shall mean the
$10.00 par value common stock of American National.
"ANB Common Stock" shall mean the $1.00 par value
common stock of ANB.
"ANB Companies" shall mean, collectively, ANB and all
ANB Subsidiaries.
"ANB Subsidiaries" shall mean the subsidiaries of ANB
which shall include the ANB Subsidiaries described in Section
6.4 of the Agreement and any corporation, bank, savings
association, or other organization acquired as a Subsidiary
of ANB in the future and owned by ANB at the Effective Time.
"Effective Time" shall mean the date and time at
which the Merger becomes effective as defined in Section 5.3
of this Plan of Merger.
"Exchange Agent" shall have the meaning provided in
Section 4.1 of this Plan of Merger.
"Exchange Ratio" shall have the meaning provided in
Section 2.2(b) of this Plan of Merger.
"Internal Revenue Code" shall mean the Internal
Revenue Code of 1986, as amended.
"Merger" shall refer to the merger of Mutual with and
into American National as provided in Section 2.1 of this
Plan of Merger.
"Mutual Common Stock" shall mean the $1.00 par value
common stock of Mutual.
"Mutual Companies" shall mean, collectively, Mutual
and all Mutual Subsidiaries.
"Mutual Subsidiaries" shall mean the subsidiaries of
ANB which shall include the ANB Subsidiaries described in
Section 5.4 of the Agreement and any corporation, bank,
savings association, or other organization acquired as a
Subsidiary of ANB in the future and owned by ANB at the
Effective Time.
"OCC" shall mean the Office of the Comptroller of the
Currency.
"Resulting Association" shall mean American National
upon and after the Effective Time.
ARTICLE TWO
TERMS OF MERGER
2.1Merger. Subject to the terms and conditions set
forth in this Plan of Merger, at the Effective Time, Mutual shall
be merged with and into American National under the Articles of
Association and Bylaws of American National pursuant to the
provisions of and with the effect provided in 12 U.S.C. Sections
215c, 1815(d), and 1828(c). American National shall be the
Resulting Association and receiving association resulting from
the Merger and shall continue to conduct its business under the
name "American National Bank and Trust Company." The Merger
shall be consummated pursuant to the terms of this Plan of
Merger, which has been approved and adopted by the respective
Boards of Directors of Mutual and American National.
2.2Method of Converting Shares. Subject to the
provisions of this Article Two, at the Effective Time, by virtue
of the Merger and without any action on the part of the holders
thereof, the shares of the constituent corporations or
associations shall be converted as follows:
(a)Each share of American National Common Stock
issued and outstanding at the Effective Time shall remain issued
and outstanding from and after the Effective Time.
(b)Each share of Mutual Common Stock (excluding
shares held by any Mutual Company or by any ANB Company, which
shares shall be canceled as provided in Section 2.4 of this Plan
of Merger, in each case other than in a fiduciary capacity or in
satisfaction of debts previously contracted) issued and
outstanding at the Effective Time shall cease to be outstanding
and shall be converted into and exchanged for .705 of a share of
ANB Common Stock (the "Exchange Ratio").
2.3 Anti-Dilution Provisions. In the event Mutual or
ANB changes the number of shares of Mutual Common Stock or ANB
Common Stock, respectively, issued and outstanding prior to the
Effective Time as a result of a stock split, stock dividend, or
similar recapitalization with respect to such stock and the
record date therefor shall be prior to the Effective Time, the
Exchange Ratio shall be proportionately adjusted.
2.4 Shares Held by Mutual or ANB. Each of the shares
of Mutual Common Stock held by any Mutual Company or by any ANB
Company, in each case other than in a fiduciary capacity or in
satisfaction of debts previously contracted, shall be canceled
and retired at the Effective Time, and no consideration shall be
issued in exchange therefor.
2.5 Dissenting Shareholders. Any holder of shares of
Mutual Common Stock who perfects such holder's dissenters' rights
of appraisal in accordance with and as contemplated by 12 C.F.R.
552.14 shall be entitled to receive the value of such shares in
cash as determined pursuant to such provision of Law; provided,
however, that no such payment shall be made to any dissenting
shareholder unless and until such dissenting shareholder has
complied with the applicable provisions of 12 C.F.R. 552.14 and
surrendered to the Resulting Association the certificate or
certificates representing the shares for which payment is being
made. In the event that after the Effective Time a dissenting
shareholder of Mutual fails to perfect, or effectively withdraws
or loses, such holder's right to appraisal and of payment for
such holder's shares, ANB shall issue and deliver the
consideration to which such holder of shares of Mutual Common
Stock is entitled under this Article Two (without interest) upon
surrender by such holder of the certificate or certificates
representing shares of Mutual Common Stock held by such holder.
Mutual will establish an escrow account with an amount sufficient
to satisfy the maximum aggregate payment that may be required to
be paid to dissenting shareholders. Upon satisfaction of all
claims of dissenting shareholders, the remaining escrowed amount,
reduced by payment of the fees and expenses of the escrow agent,
will be returned to the Resulting Association.
2.6 Fractional Shares. Notwithstanding any other
provision of this Plan of Merger, each holder of shares of Mutual
Common Stock exchanged pursuant to the Merger who would otherwise
have been entitled to receive a fraction of a share of ANB Common
Stock (after taking into account all certificates delivered by
such holder) shall receive, in lieu thereof, cash (without
interest) in an amount equal to such fractional part of a share
of ANB Common Stock multiplied by $30.50.
2.7Conversion of Stock Options.
(a)At the Effective Time, each option or other right
to purchase shares of Mutual Common Stock pursuant to stock
options or stock appreciation rights ("Mutual Options") granted
by Mutual under the Mutual Stock Plans (as defined in the
Agreement) which are outstanding at the Effective Time, whether
or not exercisable, shall be converted into and become rights
with respect to ANB Common Stock, and ANB shall assume each
Mutual Option, in accordance with the terms of the Mutual Stock
Plan and stock option agreement by which it is evidenced, except
that from and after the Effective Time, (i) the Board of
Directors of Mutual Mortgage Company shall be substituted for
Mutual and the Committee of Mutual's Board of Directors
(including, if applicable, the entire Board of Directors of
Mutual) administering such Mutual Stock Plan, (ii) each Mutual
Option assumed by ANB may be exercised solely for shares of ANB
Common Stock (or cash in the case of stock appreciation rights),
(iii) the number of shares of ANB Common Stock subject to such
Mutual Option shall be equal to the number of shares of Mutual
Common Stock subject to such Mutual Option immediately prior to
the Effective Time multiplied by the Exchange Ratio, and (iv) the
per share exercise price under each such Mutual Option shall be
adjusted by dividing the per share exercise price under each such
Mutual Option by the Exchange Ratio and rounding up to the
nearest cent. Notwithstanding the provisions of clause (iii) of
the preceding sentence, ANB shall not be obligated to issue any
fraction of a share of ANB Common Stock upon exercise of Mutual
Options and any fraction of a share of ANB Common Stock that
otherwise would be subject to a converted Mutual Option shall
represent the right to receive a cash payment equal to the
product of such fraction and the difference between the market
value of one share of ANB Common Stock and the per share exercise
price of such option. The market value of one share of ANB
Common Stock shall be the average of the closing bid and asked
prices of such common stock as quoted on the Nasdaq System or, if
not reported thereby, any other authoritative source selected by
ANB) on the last trading day preceding the exercise of the
option. In addition, notwithstanding the provisions of clauses
(iii) and (iv) of the first sentence of this Section 2.7, each
Mutual Option which is an "incentive stock option" shall be
adjusted as required by Section 424 of the Internal Revenue Code,
and the regulations promulgated thereunder, so as not to
constitute a modification, extension, or renewal of the option,
within the meaning of Section 424(h) of the Internal Revenue
Code.
(b)All restrictions or limitations on transfer with
respect to Mutual Common Stock awarded under the Mutual Stock
Plans or any other plan, program, or arrangement of any Mutual
Company, to the extent that such restrictions or limitations
shall not have already lapsed, and except as otherwise expressly
provided in such plan, program, or arrangement, shall remain in
full force and effect with respect to shares of ANB Common Stock
into which such restricted stock is converted pursuant to Section
2.2 of this Plan of Merger.
ARTICLE THREE
EFFECT OF MERGER
3.1Business of the Resulting Association. From and
after the Effective Time, the business of the Resulting
Association shall continue to be that of a national banking
association. The Resulting Association's business shall be
conducted from its main office located in Danville, Virginia and
at its legally established branches, which shall also include the
main office and all branches, the addresses of which are listed
in Exhibit A to this Plan of Merger, whether in operation or
approved but unopened, of Mutual at the Effective Time.
3.2Assumption of Rights. At the Effective Time, the
separate existence and corporate organization of Mutual shall be
merged into and continued in the Resulting Association. All
rights, franchises, and interests of both Mutual and American
National in and to every type of property (real, personal, and
mixed), and all choses in action of both Mutual and American
National shall be transferred to and vested in the Resulting
Association without any deed or other transfer. The Resulting
Association, upon consummation of the Merger and without any
order or other action on the part of any court or otherwise,
shall hold and enjoy all rights of property, franchises, and
interests, including appointments, designations, and nominations,
and all other rights and interests as trustee, executor,
administrator, registrar of stocks and bonds, guardian of
estates, assignee, receiver, and committee of estates of
incompetent persons, and in every other fiduciary capacity, in
the same manner and to the same extent as such rights,
franchises, and interests were held or enjoyed by either Mutual
or American National at the Effective Time.
3.3Assumption of Liabilities. All liabilities and
obligations of both of Mutual and of American National of every
kind and description (including without limitation the
liquidation account established by Mutual in connection with its
conversion to the stock form of organization, as in existence at
the Effective Time) shall be assumed by the Resulting Association
by virtue of the Merger, and the Resulting Association shall be
bound thereby in the same manner and to the same extent that
either of Mutual or American National was so bound at the
Effective Time.
3.4Savings Accounts and Deposits. All savings accounts
and deposits of Mutual and American National shall be and
continue to be savings accounts and deposits of the Resulting
Association, without change in their respective terms, maturity,
minimum required balances, or withdrawal value. As of the
Effective Time, each savings account or deposit of Mutual or
American National shall be considered for dividend or interest
purposes as a savings account or deposit of the Resulting
Association from the time said savings account or deposit was
opened in Mutual and American National and at all times
thereafter until such account or deposit ceases to be a savings
account or deposit of the Resulting Association until otherwise
amended or repealed.
3.5Articles of Association and Bylaws. The Articles of
Association and Bylaws of American National, as in effect
immediately prior to the Effective Time, shall continue in full
force and effect as the Articles of Association and Bylaws of the
Resulting Association.
3.6Officers, Employees, and Directors. The officers and
employees of the Resulting Association immediately following the
Effective Time shall include the officers and employees of
American National, together with such additional persons as may
thereafter be elected. The Board of Directors of the Resulting
Association immediately following the Effective Time shall
include the directors of American National, together with such
additional persons as may thereafter be elected.
3.7Capital Stock of the Resulting Association. The
capital stock of the Resulting Association upon completion of the
Merger shall be $3.0 million, consisting of 300,000 issued and
outstanding shares of common stock of a par value of $10.00 per
share. In addition, the Resulting Association shall have a
surplus of approximately $8,380,352 and undivided profits,
including capital reserves, of approximately $35,548,014
adjusted, however, for, among other adjustments, earnings and
expenses between June 30, 1995 and the Effective Time. The
capital structures of Mutual and American National are set forth
in Exhibit B to this Plan of Merger.
ARTICLE FOUR
EXCHANGE OF SHARES
4.1 Exchange Procedures. Promptly after the
Effective Time, ANB shall cause the exchange agent selected by it
(the "Exchange Agent") to mail to the former shareholders of
Mutual appropriate transmittal materials (which shall specify
that delivery shall be effected, and risk of loss and title to
the certificates theretofore representing shares of Mutual Common
Stock shall pass, only upon proper delivery of such certificates
to the Exchange Agent). After the Effective Time, each holder of
shares of Mutual Common Stock (other than shares to be canceled
pursuant to Section 2.4 of this Plan of Merger) issued and
outstanding at the Effective Time shall surrender the certificate
or certificates representing such shares to the Exchange Agent
and shall promptly upon surrender thereof receive in exchange
therefor the consideration provided in Section 2.2 of this Plan
of Merger, together with all undelivered dividends or
distributions in respect of such shares (without interest
thereon) pursuant to Section 4.2 of this Plan of Merger. To the
extent required by Section 2.6 of this Plan of Merger, each
holder of shares of Mutual Common Stock issued and outstanding at
the Effective Time also shall receive, upon surrender of the
certificate or certificates representing such shares, cash in
lieu of any fractional share of ANB Common Stock to which such
holder may be otherwise entitled (without interest). ANB shall
not be obligated to deliver the consideration to which any former
holder of Mutual Common Stock is entitled as a result of the
Merger until such holder surrenders such holder's certificate or
certificates representing the shares of Mutual Common Stock for
exchange as provided in this Section 4.1. The certificate or
certificates of Mutual Common Stock so surrendered shall be duly
endorsed as the Exchange Agent may require. Any other provision
of the Agreement notwithstanding, neither ANB, the Resulting
Association, nor the Exchange Agent shall be liable to a holder
of Mutual Common Stock for any amounts paid or property delivered
in good faith to a public official pursuant to any applicable
abandoned property Law.
4.2 Rights of Former Mutual Shareholders. At the
Effective Time, the stock transfer books of Mutual shall be
closed as to holders of Mutual Common Stock immediately prior to
the Effective Time, and no transfer of Mutual Common Stock by any
such holder shall thereafter be made or recognized. Until
surrendered for exchange in accordance with the provisions of
Section 4.1 of this Plan of Merger, each certificate theretofore
representing shares of Mutual Common Stock (other than shares to
be canceled pursuant to Section 2.4 of this Plan of Merger or as
to which the holder thereof has perfected dissenters' rights of
appraisal as contemplated by Section 2.5 of this Plan of Merger)
shall from and after the Effective Time represent for all
purposes only the right to receive the consideration provided in
Sections 2.2 and 2.6 of this Plan of Merger in exchange therefor.
To the extent permitted by Law, former shareholders of record of
Mutual shall be entitled to vote after the Effective Time at any
meeting of ANB shareholders the number of whole shares of ANB
Common Stock into which their respective shares of Mutual Common
Stock are converted, regardless of whether such holders have
exchanged their certificates representing Mutual Common Stock for
certificates representing ANB Common Stock in accordance with the
provisions of this Plan of Merger. Whenever a dividend or other
distribution is declared by ANB on the ANB Common Stock, the
record date for which is at or after the Effective Time, the
declaration shall include dividends or other distributions on all
shares of ANB Common Stock issuable pursuant to the Agreement,
but no dividend or other distribution payable to the holders of
record of ANB Common Stock as of any time subsequent to the
Effective Time shall be delivered to the holder of any
certificate representing shares of Mutual Common Stock issued and
outstanding at the Effective Time until such holder surrenders
such certificate for exchange as provided in Section 4.1 of this
Plan of Merger. However, upon surrender of such Mutual Common
Stock certificate, both the ANB Common Stock certificate
(together with all such undelivered dividends or other
distributions without interest) and any undelivered cash payments
to be paid for fractional share interests (without interest)
shall be delivered and paid with respect to each share
represented by such certificate.
ARTICLE FIVE
EFFECTIVENESS
5.1Conditions Precedent. Consummation of the Merger is
conditioned upon the approval of the Merger by the shareholders
of Mutual and by the sole shareholder of American National as to
the extent provided by law, and the receipt of the requisite
regulatory approvals as set forth in the Agreement. The Merger
shall not be consummated unless and until notification is given
to the OTS pursuant to 12 C.F.R. section 563.22(b).
Additionally, consummation of the Merger is conditioned on the
fulfillment of the conditions precedent set forth in Article Nine
of the Agreement or the waiver of such conditions as provided in
Section 11.6 of the Agreement.
5.2Termination. This Plan of Merger may be terminated
at any time prior to the Effective Time by the parties hereto
after termination of the Agreement in accordance with the
provisions of Section 10.1 thereof.
5.3 Effective Time. The Merger and other
transactions contemplated by the Agreement shall become effective
on the date and at the time of issuance of the Certificate of
Merger by the OCC or on such other date and at such other time as
the OCC declares the Merger effective (the "Effective Time").
ARTICLE SIX
MISCELLANEOUS
6.1Amendment. To the extent permitted by law, this Plan
of Merger may be amended by a subsequent written instrument upon
the approval of the Boards of Directors of each of the parties
hereto and upon execution of such instrument by the duly
authorized officers of each and by a majority of the Boards of
Directors of each of the Parties; provided, however, that after
any such approval by the holders of Mutual Common Stock, there
shall be made no amendment decreasing the consideration to be
received by Mutual shareholders without the further approval of
such shareholders, and provided further, that no amendment to
this Plan of Merger shall modify the requirements of regulatory
approval required for the transactions contemplated by this Plan
of Merger.
6.2Governing Law. This Plan of Merger shall be governed
by and construed in accordance with the laws of the Commonwealth
of Virginia, except to the extent that the federal laws of the
United States of America apply to consummation of the Merger.
6.3Headings. The headings in this Plan of Merger are
for convenience only and shall not affect the construction or
interpretation of this Plan of Merger.
6.4Counterparts. This Plan of Merger may be executed in
two or more counterparts, each of which shall be deemed an
original instrument, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, each of Mutual and American National has
caused this Plan of Merger to be executed on its behalf by its
officers thereunto duly authorized and by a majority of its Board
of Directors, all as of the day and year first above written.
ATTEST: MUTUAL SAVINGS BANK, F.S.B.
By: /s/ Barbara N. Hobgood By:/s/ H. Dan Davis
Barbara N. Hobgood H. Dan Davis
Corporate Secretary President and Chief Executive
Officer
[SAVINGS BANK SEAL]
A Majority of the Entire
Board of Directors of Mutual Savings Bank, F.S.B.
E. Ballou Bagby F. Neal Howard, Jr.
W.G. Barker, Jr. T. David Luther
Phillip R. Blackmon Russell Perkins
Roy L. Connor L. Samuel Saunders
H. Dan Davis
ATTEST: AMERICAN NATIONAL BANK
AND TRUST COMPANY
By: /s/ David Hyler By: /s/ Charles H. Majors
David Hyler Charles H. Majors
Secretary President and Chief Executive
Officer
[ASSOCIATION SEAL]
A Majority of the Entire
Board of Directors of American National Bank
and Trust Company
Richard G. Barkhouser Charles H. Majors
B. Carrington Bidgood James A. Motley
Fred A. Blair Claude B. Owen, Jr.
Ben J. Davenport, Jr. Landon R. Wyatt, Jr.
Lester A. Hudson, Jr. Fred B. Leggett, Jr.
E. Budge Kent, Jr.
EXHIBIT A
Main Office:
628 Main Street
Danville, Virginia 24541
Branches:
Nor-Dan Office
239 Nor-Dan Drive
Danville, Virginia 24540
Riverside Office
1081 Riverside Drive
Danville, Virginia 24540
South Main Office
1013 South Main Street
Danville, Virginia 24541
West Main Office
2016 West Main Street
Danville, Virginia 24541
South Boston Road Office
1407 South Boston Road
Danville, Virginia 24540
Gretna Office
109 Main Street
Gretna, Virginia 24557
103 Tower Drive
Danville,Virginia, 24543
625 Virginia Avenue
Collinsville, Virginia, 24078
539 Arnett Boulevard
Danville, Virginia, 24540
600 West Main Street
Danville, Virginia, 24541
EXHIBIT B
Capital Structures of Mutual
and
American National
(as of June 30, 1995)
Mutual American National
Equity Securities 7,500,000 shares common 300,000 shares common
Authorized $1.00 par value $10.00 par value
2,500,000 shares preferred
$1.00 par value
Outstanding Equity 1,154,100 shares common 300,000 shares common
Securities $1.00 par value $10.00 par value
Capital $1.154 million $3.000 million
Surplus $4.226 million $3.000 million
Unrealized Gain $(15) thousand $89 thousand
(Loss) on Investment
Securities and
Investment
Securities Held for
Sale
Undivided Profits $9.283 million $26.191 million
Total Stockholders'
Equity $14.648 million $32.280 million
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT (this "Agreement") is made and
entered into as of the 26th day of September, 1995, by and
between the undersigned, _________________________, a resident of
Danville, Virginia, and American National Bankshares Inc., a
corporation organized and existing under the laws of the
Commonwealth of Virginia ("ANB").
On even date herewith, ANB and Mutual Savings Bank,
F.S.B., a federal stock savings bank organized and existing under
the laws of the United States ("Mutual"), have entered into an
Agreement and Plan of Reorganization (the "Merger Agreement").
The Merger Agreement generally provides for the merger of Mutual
with American National Bank and Trust Company, a wholly owned
subsidiary of ANB (the "Merger"), and the conversion of the
issued and outstanding shares of the $1.00 par value common stock
of Mutual ("Mutual Common Stock") into shares of the $1.00 par
value common stock of ANB. The Merger Agreement is subject to
the affirmative vote of the shareholders of Mutual and ANB, the
receipt of certain regulatory approvals, and the satisfaction of
other conditions.
The undersigned is a member of the Board of Directors of
Mutual and is the owner of _________ shares of Mutual common
stock and has rights by option or otherwise to acquire _________
additional shares of Mutual common stock (collectively, the
"Shares"). In order to induce ANB to enter into the Merger
Agreement, the undersigned is entering into this Agreement with
ANB to set forth certain terms and conditions governing the
actions to be taken by the undersigned solely in the
undersigned's capacity as a shareholder of Mutual with respect to
the Shares until consummation of the Merger.
NOW, THEREFORE, in consideration of the transactions
contemplated by the Merger Agreement and the mutual promises and
covenants contained herein, the parties agree as follows:
1. Without the prior written consent of ANB, which
consent shall not be unreasonably withheld, the undersigned shall
not transfer, sell, assign, convey, or encumber any of the Shares
during the term of this Agreement except for transfers (i) by
operation of law, by will, or pursuant to the laws of descent and
distribution, (ii) in which the transferee shall agree in writing
to be bound by the provisions of paragraphs 1, 2, and 3 of this
Agreement as fully as the undersigned, or (iii) to ANB pursuant
to the terms of the Merger Agreement. Without limiting the
generality of the foregoing, the undersigned shall not grant to
any party any option or right to purchase the Shares or any
interest therein. Further, except with respect to the Merger,
the undersigned shall not during the term of this Agreement
approve or ratify any agreement or contract pursuant to which the
Shares would be transferred to any other party as a result of a
consolidation, merger, share exchange, or acquisition.
2. The undersigned intends to, and will, vote (or cause
to be voted) all of the Shares over which the undersigned has
voting authority (other than in a fiduciary capacity) in favor of
the Merger Agreement and the Merger at any meeting of
shareholders of Mutual called to vote on the Merger Agreement or
the Merger or the adjournment thereof or in any other
circumstance upon which a vote, consent, or other approval with
respect to the Merger Agreement or the Merger is sought.
Further, the undersigned intends to, and will, surrender the
certificate or certificates representing the Shares over which
the undersigned has dispositive authority to ANB upon
consummation of the Merger as described in the Merger Agreement
and hereby waives any rights of appraisal, or rights to dissent
from the Merger, that the undersigned may have.
3. Except as otherwise provided in this Agreement, at
any meeting of shareholders of Mutual or at any adjournment
thereof or any other circumstances upon which their vote,
consent, or other approval is sought, the undersigned will vote
(or cause to be voted) all of the Shares over which the
undersigned has voting authority (other than in a fiduciary
capacity) (i) against any merger agreement, share exchange, or
merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets, merger,
recapitalization, dissolution, liquidation, or winding-up of or
by Mutual or (ii) any amendment of Mutual's Charter or Bylaws or
other proposal or transaction involving Mutual or any of its
subsidiaries, which amendment or other proposal or transaction
would in any manner impede, frustrate, prevent, or nullify the
Merger, the Merger Agreement, or any of the other transactions
contemplated thereby.
4. The undersigned acknowledges and agrees that ANB
could not be made whole by monetary damages in the event of any
default by the undersigned of the terms and conditions set forth
in this Agreement. It is accordingly agreed and understood that
ANB in addition to any other remedy which it may have at law or
in equity, shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and specifically to enforce
the terms and provisions hereof in any action instituted in any
court of the United States or in any state having appropriate
jurisdiction.
5. The covenants and obligations set forth in this
Agreement shall expire and be of no further force and effect on
the earlier of: (i) September 30, 1996 or such date to which the
Merger Agreement is extended or (ii) the date on which the
Merger Agreement is terminated.
IN WITNESS WHEREOF, this Agreement has been duly executed
and delivered by the undersigned as of the day and year first
above written.
As to the Undersigned,
signed in the presence of:
_______________________________ _______________________________________
Name: __________________________
(Please print or type)
ATTEST: AMERICAN NATIONAL BANKSHARES INC.
By:___________________________ By:____________________________________
David Hyler Charles H. Majors
Corporate Secretary President and Chief Executive Officer
[CORPORATE SEAL]]
AFFILIATE AGREEMENT
American National Bankshares Inc.
628 Main Street
Danville, Virginia 24541
Gentlemen:
The undersigned is a stockholder of Mutual Savings Bank,
F.S.B. ("Mutual"), a federally chartered stock savings bank
organized and existing under the laws of the United States, and
will become a stockholder of American National Bankshares Inc.
("ANB") pursuant to the transactions described in the Agreement
and Plan of Reorganization, dated as of September 26, 1995 (the
"Agreement"), by and between Mutual and ANB. Under the terms of
the Agreement, Mutual will be merged into and with American
National Bank and Trust Company ("American National"), a national
banking association and a wholly owned subsidiary of ANB (the
"Merger"), and the shares of the $1.00 par value common stock of
Mutual ("Mutual Common Stock") will be converted into and
exchanged for shares of the common stock of ANB ("ANB Common
Stock"). This Affiliate Agreement represents an agreement
between the undersigned and ANB regarding certain rights and
obligations of the undersigned in connection with the shares of
ANB to be received by the undersigned as a result of the Merger.
In consideration of the Merger and the mutual covenants
contained herein, the undersigned and ANB hereby agree as
follows:
1. Affiliate Status. The undersigned understands and agrees
that as to Mutual the undersigned is an "affiliate" under Rule
145(c) as defined in Rule 405 of the Rules and Regulations of the
Securities and Exchange Commission ("SEC") under the Securities
Act of 1933, as amended ("1933 Act"), and the undersigned
anticipates that the undersigned will be such an "affiliate" at
the time of the meeting of the shareholders of Mutual to be held
to consider approval of the Merger and at the effective time of
the Merger.
2. Initial Restriction on Disposition. The undersigned
agrees that the undersigned will not sell, transfer, or otherwise
dispose of the undersigned's interests in, or reduce the
undersigned's risk relative to, any of the shares of ANB Common
Stock into which the undersigned's shares of Mutual Common Stock
are converted upon consummation of the Merger until such time as
the requirements of SEC Accounting Series Release Nos. 130 and
135 ("ASR 130 and 135") have been met. The undersigned
understands that ASR 130 and 135 relate to publication of
financial results of post-Merger combined operations of ANB and
Mutual. ANB agrees that it will publish such results within 45
days after the end of the first fiscal quarter of ANB containing
the required period of post-Merger combined operations and that
it will notify the undersigned promptly following such
publication.
3. Covenants and Warranties of Undersigned. The undersigned
represents, warrants, and agrees that:
(a)During the 30 days immediately preceding the
effective time of the Merger, the undersigned has not sold,
transferred, or otherwise disposed of the undersigned's
interests in, or reduced the undersigned's risk relative to,
any of the shares of ANB Common Stock or Mutual Common Stock
beneficially owned by the undersigned as of the date of the
meeting of the shareholders of Mutual held to approve the
Merger.
(b)The ANB Common Stock received by the undersigned as a
result of the Merger will be taken for the undersigned's own
or such undersigned's spouse's account or an account for
which the undersigned or the undersigned's spouse serve as a
fiduciary and not for others, directly or indirectly, in
whole or in part.
(c)ANB has informed the undersigned that any
distribution by the undersigned of ANB Common Stock has not
been registered under the 1933 Act and that shares of ANB
Common Stock received pursuant to the Merger can only be sold
by the undersigned (1) following registration under the 1933
Act, or (2) in conformity with the volume and other
requirements of Rule 145(d) promulgated by the SEC as the
same now exist or may hereafter be amended, or (3) to the
extent some other exemption from registration under the 1933
Act might be available. The undersigned understands that ANB
is under no obligation to file a registration statement with
the SEC covering the disposition of the undersigned's shares
of ANB Common Stock or to take any other action necessary to
make compliance with an exemption from such registration
available.
(d)The undersigned will, and will cause each of the
other parties whose shares are deemed to be beneficially
owned by the undersigned pursuant to Section 8 hereof to,
have all shares of Mutual Common Stock beneficially owned by
the undersigned registered in the name of the undersigned or
such parties, as applicable, prior to the effective time of
the Merger and not in the name of any bank, broker-dealer,
nominee, or clearinghouse.
4. Restrictions on Transfer. The undersigned understands
and agrees that stop transfer instructions with respect to the
shares of ANB Common Stock received by the undersigned pursuant
to the Merger will be given to ANB's transfer agent and that
there will be placed on the certificates for such shares, or
shares issued in substitution thereof, a legend stating in
substance:
"The shares represented by this certificate were issued
pursuant to a business combination which is accounted for
as a 'pooling of interests' and may not be sold, nor may
the owner thereof reduce the owner's risks relative
thereto in any way, until such time as American National
Bankshares Inc. ('ANB') has published the financial
results covering at least 30 days of combined operations
after the effective date of the merger through which the
business combination was effected. In addition, the
shares represented by this certificate may not be sold,
transferred, or otherwise disposed of except or unless
(1) covered by an effective registration statement under
the Securities Act of 1933, as amended, (2) in accordance
with (i) Rule 145(d) (in the case of shares issued to an
individual who is not an affiliate of ANB) or (ii) Rule
144 (in the case of shares issued to an individual who is
an affiliate of ANB) of the Rules and Regulations of such
Act, or (3) in accordance with a legal opinion
satisfactory to counsel for ANB that such sale or
transfer is otherwise exempt from the registration
requirements of such Act."
Such legend will also be placed on any certificate representing
ANB securities issued subsequent to the original issuance of the
ANB Common Stock pursuant to the Merger as a result of any
transfer of such shares or any stock dividend, stock split, or
other recapitalization as long as the ANB Common Stock issued to
the undersigned pursuant to the Merger has not been transferred
in such manner to justify the removal of the legend therefrom.
Upon the request of the undersigned, ANB shall cause the
certificates representing the shares of ANB Common Stock issued
to the undersigned in connection with the Merger to be reissued
free of any legend relating to restrictions on transfer by virtue
of ASR 130 and 135 as soon as practicable after the requirements
of ASR 130 and 135 have been met. In addition, if the provisions
of Rules 144 and 145 are amended to eliminate restrictions
applicable to the ANB Common Stock received by the undersigned
pursuant to the Merger, or at the expiration of the restrictive
period set forth in Rule 145(d), ANB, upon the request of the
undersigned, will cause the certificates representing the shares
of ANB Common Stock issued to the undersigned in connection with
the Merger to be reissued free of any legend relating to the
restrictions set forth in Rules 144 and 145(d) upon receipt by
ANB of an opinion of its counsel to the effect that such legend
may be removed.
5. Understanding of Restrictions on Dispositions. The
undersigned has carefully read the Agreement and this Affiliate
Agreement and discussed their requirements and impact upon the
undersigned's ability to sell, transfer, or otherwise dispose of
the shares of ANB Common Stock received by the undersigned, to
the extent the undersigned believes necessary, with the
undersigned's counsel or counsel for Mutual.
6. Filing of Reports by ANB. ANB agrees, for a period of
three years after the effective time of the Merger, to file on a
timely basis all reports required to be filed by it pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, so
that the public information provisions of Rule 145(d) promulgated
by the SEC as the same are presently in effect will be available
to the undersigned in the event the undersigned desires to
transfer any shares of ANB Common Stock issued to the undersigned
pursuant to the Merger.
7. Transfer Under Rule 145(d). If the undersigned desires
to sell or otherwise transfer the shares of ANB Common Stock
received by the undersigned in connection with the Merger at any
time during the restrictive period set forth in Rule 145(d), the
undersigned will provide the necessary representation letter to
the transfer agent for ANB Common Stock together with such
additional information as the transfer agent may reasonably
request. If ANB's counsel concludes that such proposed sale or
transfer complies with the requirements of Rule 145(d), ANB shall
cause such counsel to provide such opinions as may be necessary
to ANB's transfer agent so that the undersigned may complete the
proposed sale or transfer.
8. Acknowledgments. The undersigned recognizes and agrees
that the foregoing provisions also apply to all shares of the
capital stock of Mutual and ANB that are deemed to be
beneficially owned by the undersigned pursuant to applicable
federal securities laws, which the undersigned agrees may
include, without limitation, shares owned or held in the name of
(i) the undersigned's spouse, (ii) any relative of the
undersigned or of the undersigned's spouse who has the same home
as the undersigned, (iii) any trust or estate in which the
undersigned, the undersigned's spouse, and any such relative
collectively own at least a 10% beneficial interest or of which
any of the foregoing serves as trustee, executor, or in any
similar capacity, and (iv) any corporation or other organization
in which the undersigned, the undersigned's spouse, and any such
relative collectively own at least 10% of any class of equity
securities or of the equity interest. The undersigned further
recognizes that, in the event that the undersigned is a director
or officer of ANB or becomes a director or officer of ANB upon
consummation of the Merger, among other things, any sale of ANB
Common Stock by the undersigned within a period of less than six
months following the effective time of the Mergers may subject
the undersigned to liability pursuant to Section 16(b) of the
Securities Exchange Act of 1934, as amended.
9. Miscellaneous. This Affiliate Agreement is the complete
agreement between ANB and the undersigned concerning the subject
matter hereof. Any notice required to be sent to any party
hereunder shall be sent by registered or certified mail, return
receipt requested, using the addresses set forth herein or such
other address as shall be furnished in writing by the parties.
This Affiliate Agreement shall be governed by the laws of the
Commonwealth of Virginia.
This Affiliate Agreement is executed as of the ___ day of
_______, 1995.
Very truly yours,
___________________________
Signature
___________________________
Print Name
___________________________
___________________________
___________________________
Address
[add below the signatures of all
registered owners
of shares deemed beneficially owned
by the affiliate]
___________________________
Name:
___________________________
Name:
___________________________
Name:
AGREED TO AND ACCEPTED as of
_______________, 1995
AMERICAN NATIONAL BANKSHARES INC.
By:_________________________
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made
and entered into as of this ___ day of _______, 199__, by
and among H. Dan Davis, a resident of the Commonwealth of
Virginia ("Davis"); American National Bankshares Inc., a
corporation organized and existing under the laws of the
Commonwealth of Virginia ("ANB"); and American National Bank
and Trust Company, a national banking association organized
and existing under the laws of the United States and a
wholly owned subsidiary of ANB ("American National").
BACKGROUND
Davis formerly served as President and Chief Executive
Officer of Mutual Savings Bank, F.S.B., a federally
chartered stock savings bank organized and existing under
the laws of the United States ("Mutual"). On even date
herewith, ANB is consummating the acquisition of Mutual by
means of the merger of Mutual into and with American
National.
ANB and American National have determined that the
services of Davis will be of great value and benefit to ANB
and American National, and accordingly, desires to enter
into an agreement with Davis in order to secure such
services. Davis is willing to serve ANB and American
National in accordance with the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements contained herein, Davis, ANB, and
American National hereby agree as follows:
SECTION ONE
DEFINITIONS
As used herein, the terms set forth below shall have
the following meanings:
(a) "Consulting Salary" shall mean the monthly
salary to be received by Davis as a senior consultant
pursuant to the provisions of Section Five of this
Agreement.
(b) "Consulting Term" shall mean the Term of this
Agreement during which Davis serves as a senior consultant
pursuant to Section Five of this Agreement.
(c) "Effective Date" shall mean the date and the
time of issuance of the Certificate of Merger by the Office
of the Comptroller of the Currency ("OCC") or on such other
date and at such other time as the OCC declares the Merger
effective.
(d) "Initial Term" shall mean the initial two (2)
year term of this Agreement as provided in Section Three of
this Agreement unless earlier terminated in accordance with
Sections Five or Eight of this Agreement.
(e) "Merger" shall mean the merger of Mutual with
and into American National.
(f) "Mutual Mortgage" shall mean Mutual Mortgage
Company, a corporation to be organized as a wholly owned
subsidiary of ANB or American National in accordance with
the terms of the Agreement and Plan of Reorganization, dated
as of September 26, 1995, by and between ANB and Mutual.
(g) "Salary" shall mean the direct cash
compensation to be paid to Davis during the Initial Term and
shall not include any fringe benefits or any incidental
rights or benefits that might be provided hereunder or might
be made available to Davis as an employee of ANB.
(h) "Term" shall mean collectively the Initial
Term and the Consulting Term and shall expire not later than
______(seven (7) years from the Effective Date).
SECTION TWO
EMPLOYMENT AND DUTIES
ANB shall employ Davis as (i) Executive Vice President
of ANB and Senior Vice President of American National on and
as of the Effective Date and (ii) President and Chief
Executive Officer of Mutual Mortgage upon its organization.
In such capacities, he shall have the general responsibility
to carry out the duties and obligations with respect to such
offices as may be set forth in the Bylaws of ANB, American
National, and Mutual Mortgage, respectively, to promote the
business affairs and welfare of ANB, American National, and
Mutual Mortgage, and to carry out such other duties and
responsibilities consistent with the nature of such
positions as may be assigned him from time to time by the
Chief Executive Officer of ANB or the Board of Directors of
ANB, American National, or Mutual Mortgage.
Davis shall at all times abide by the policies and
procedures of ANB, American National, and Mutual Mortgage as
set forth in their respective policies and procedures
manuals, rules of conduct, and as may be established from
time to time by their respective Boards of Directors or
senior management except to the extent that such policies or
procedures are contradictory to the scope of the duties and
obligations set forth herein.
SECTION THREE
EFFECTIVENESS AND TERM
The Initial Term of Davis' employment hereunder shall
commence on the Effective Date and shall continue, unless
earlier terminated as provided in Sections Five or Eight of
this Agreement, for a period of two (2) years thereafter.
SECTION FOUR
COMPENSATION AND BENEFITS
During the Initial Term, ANB shall pay to Davis a
Salary of One Hundred Ten Thousand Dollars ($110,000) per
annum. Davis shall not receive any compensation or fees in
addition to his Salary for serving as a member of the Board
of Directors of either ANB, American National, or Mutual
Mortgage, nor shall Davis be entitled to participate in the
Cash Profit Sharing Bonus Plan of American National.
In addition to the Salary, Davis shall be entitled to
receive during the Initial Term the following benefits:
(a) Until such time as Davis is eligible for
benefits under Medicare, Davis shall be eligible to
participate in the group health and major medical benefit
plans made available to similarly positioned officers of
American National.
(b) Davis shall be eligible to participate in the
401(k) plan, the retirement plan, and the group life and
disability plan of American National.
(c) Davis shall have the right to the use of an
automobile supplied by American National under the terms of
its policy relating to bank vehicles.
(d) Davis shall have the right to have reasonable
expenses paid for him and his spouse to attend meetings that
he has customarily attended of bankers' associations,
including, but not limited to, meetings of the Virginia
Bankers Association.
SECTION FIVE
SENIOR CONSULTANT
At any time during the Initial Term, Davis shall have
the right to elect to become a senior consultant to ANB for
a term effective on the first calendar day of the month
following such election and expiring on ___________ (seven
(7) years from the Effective Date). If Davis elects to
become a senior consultant to ANB, he shall resign, upon the
effectiveness of his election, all management positions with
ANB, American National, and Mutual Mortgage.
As a senior consultant, ANB shall pay Davis a
Consulting Salary of Five Thousand Five Hundred Dollars
($5,500) per month. As a senior consultant, Davis shall not
be entitled to receive any other compensation, fees, or
other benefits, including the compensation, fees, and
benefits described in Section Four of this Agreement, other
than the benefit provided for in Section Four (a) of this
Agreement, to which a full-time employee of ANB, American
Nation, or Mutual Mortgage would otherwise be entitled.
As a senior consultant, Davis shall carry out such
advisory or consulting duties and responsibilities as may be
requested of him from time to time by the Chief Executive
Officer of ANB or the Board of Directors of ANB.
As a senior consultant, Davis agrees that he will not,
without the prior written approval of the Board of Directors
of ANB, serve in a management, policy making, consulting, or
marketing capacity for any bank, savings and loan
association, credit union, or other financial institution
maintaining an office in any city or county in which ANB or
any of its subsidiaries maintains a banking or banking-
related office or in any city or county whose city or county
limits are within fifty (50) miles of a city or county in
which ANB or any of its subsidiaries maintains a banking or
banking-related office. Davis acknowledges that the remedy
at law for a breach of the covenant contained in this
provision will be inadequate and that ANB shall be entitled
to injunctive relief with respect to any such breach.
SECTION SIX
EXTENT OF SERVICES
Davis agrees during the Term of this Agreement to
devote his time, energy, and skills to the conduct of the
business of ANB, American National, and Mutual Mortgage as
shall be reasonably necessary to discharge and fulfill his
responsibilities hereunder. Davis further agrees that
during the Term of this Agreement, he will not engage in or
otherwise be interested in, directly or indirectly, any
other business or activity that is in competition with ANB,
American National, or Mutual Mortgage or that would result
in a conflict of interest with ANB, American National, or
Mutual Mortgage.
SECTION SEVEN
CONFIDENTIAL INFORMATION
Davis agrees that he shall hold in a fiduciary capacity
for the benefit of ANB, American National, and Mutual
Mortgage all secret and confidential information, knowledge,
or data of ANB, American National, and Mutual Mortgage
obtained by him during his employment, and he shall not,
during the Term of this Agreement, or for a period of two
(2) years thereafter, communicate or divulge any such
information, knowledge, or data to any person, firm, or
corporation other than: (i) ANB, American National, or
Mutual Mortgage; (ii) persons, firms, or corporations
designated by ANB; (iii) in the execution of his duties
hereunder; or (iv) as may be required by law or by any court
of competent jurisdiction.
SECTION EIGHT
TERMINATION OF AGREEMENT
Davis' employment hereunder may be terminated as
follows:
(a) By mutual agreement between ANB and Davis;
(b) Upon the death of Davis or by ANB on the 90th
day after the commencement of any disability which prevents
Davis from attending to the duties and responsibilities of
his employment, or on any day thereafter so long as the
disability continues;
(c) By Davis upon at least 90 days' prior written
notice to ANB;
(d) By ANB upon 90 days' written notice to Davis
prior to any anniversary date of the Effective Date;
(e) By ANB for "cause" as hereinafter defined.
"Cause" shall mean (i) conduct in connection with his
employment hereunder amounting to fraud, dishonesty, or
gross negligence in the performance of his responsibilities
hereunder; (ii) a willful and intentional failure to make a
good faith effort to execute or perform a legal and duly
adopted directive consistent with his duties and
responsibilities hereunder from the Chief Executive Officer
of ANB or the Board of Directors of ANB; (iii) conviction of
any felony or crime involving moral turpitude; or (iv)
violation of any convenant or obligation of this Agreement;
or
(f) By ANB if so ordered by any bank regulatory
authority or any court of law, or if any bank regulatory
authority or court of law enters an order or directive
requesting or mandating the suspension or removal of Davis
from his position as an officer or employee of ANB, American
National, or Mutual Mortgage.
SECTION NINE
EFFECT OF TERMINATION
The termination of Davis' employment hereunder as
provided in Section Eight above shall have the following
consequences:
(a) If pursuant to Section Eight (a) of this
Agreement, ANB shall continue to compensate Davis in such
amount and for such period as may be mutually agreed between
ANB and Davis.
(b) If pursuant to Section Eight (b) of this
Agreement, the death or disability benefits provided to
Davis, together with such other incidental benefits that may
be made available to him or to which he may be entitled
shall be paid in accordance with the terms and provisions of
such benefit plans.
(c) If pursuant to Sections Eight (c), (e), or
(f) of this Agreement, ANB shall continue to pay Davis his
Salary or Consulting Salary through the date upon which such
termination becomes effective.
(d) If pursuant to Section Eight (d) of this
Agreement, ANB shall continue to pay Davis his Salary or
Consulting Salary throughout the period of time remaining on
the term of this Agreement and Davis shall be entitled to
receive such additional benefits to which he would otherwise
have been entitled during the Initial Term or the Consulting
Term pursuant to Sections Four and Five of this Agreement
had his employment not been terminated by ANB. ANB may
elect to satisfy this Salary or Consulting Salary obligation
by a lump sum payment to Davis if it so desires. Further,
in the event Davis subsequently violates the provisions of
the last paragraph of Section Five or Section Seven of this
Agreement, ANB may at its option terminate its obligation to
pay the Salary or the Consulting Salary required hereby. .
(e) If pursuant to any of the provisions
described in Section Eight of this Agreement, Davis shall be
entitled to all rights and benefits under any ANB plans in
which his interest is "vested" as described in such plan or
to which he may be entitled as a matter of law.
SECTION TEN
SUPPLEMENTAL RETIREMENT
In the event (i) the Initial Term of Davis' employment
hereunder shall expire in accordance with the terms of
Section Three of this Agreement on the second anniversary of
the Effective Date, (ii) Davis has not elected to become a
senior consultant pursuant to the terms of Section Five of
this Agreement prior to the expiration of the Initial Term
of Davis' employment hereunder, and (iii) ANB or American
National continues to employ Davis as a full-time employee,
ANB or American National, as appropriate, will enter into an
Executive Compensation Continuation Agreement with Davis
pursuant to which Davis will receive, commencing at his
retirement at age 65 for a period of ten (10) years
thereafter, an amount equal to the product of (i) $2,000 and
(ii) the number of full years, subject to a maximum of five
(5) years, that Davis works as a full-time employee of ANB
or American National after the second anniversary of the
Effective Date. The payments provided for under this
Section Ten will be in addition to any other retirement or
other benefits that may be made available to Davis or to
which he may be entitled in accordance with the terms and
provisions of such benefit plans.
SECTION ELEVEN
MISCELLANEOUS
(a) Any notice or communication between the parties
hereto relating to this Agreement shall be in writing and
shall be personally delivered or mailed by first-class or
certified mail, postage prepaid, or by any other reasonable
method of delivery. Notices shall be addressed as follows:
To Davis: ______________________
______________________
______________________
To ANB or
American National: Charles H. Majors
President and Chief Executive Officer
American National Bankshares Inc.
628 Main Street
Danville, Virginia 24541
or to such other address as the parties may designate in
writing.
(b) The waiver by either party to this Agreement
of a breach by the other party of any of the provisions of
this Agreement shall not operate or be construed as a waiver
of any subsequent breach.
(c) If any clause or any other portion of this
Agreement is determined to be void or unenforceable for any
reason, such determination shall not affect the validity or
enforceability of any other clause or portion of this
Agreement, all of which shall remain in full force and
effect.
(d) All of the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of
an be enforceable by the heirs, executors, administrators,
successors (including any successor to ANB or American
National), and assigns of the parties hereto.
(e) This Agreement constitutes the entire
Agreement between the parities with respect to the subject
matter hereof and supersedes any prior agreements or
understandings between the parties with respect to such
subject matter, including, but not limited to, that certain
Employment Agreement dated October 1, 1986, as amended,
between Davis and Mutual. No modification or amendment of
this Agreement shall be effective unless in writing and
signed by both parties hereto.
(f) This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Virginia.
(g) This Agreement may not be assigned by either
party hereto without the prior written consent of the other
party hereto.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Employment Agreement in duplicate with each
party retaining an executed copy as of the date first above
written.
___________________________
H. Dan Davis
AMERICAN NATIONAL BANKSHARES INC.
By:__________________________
Charles H. Majors
President and Chief Executive Officer
ATTEST:
By: _______________________
David Hyler
Corporate Secretary
[CORPORATE SEAL]
AMERICAN NATIONAL BANK
AND TRUST COMPANY
By:__________________________
Charles H. Majors
President and Chief Executive
Officer
ATTEST:
By: _______________________
David Hyler
Corporate Secretary
[ASSOCIATION SEAL]
OPINION OF MUTUAL COUNSEL
This opinion is delivered pursuant to Section 9.2(f) of
the Agreement. Capitalized terms used in this opinion shall have
the meaning set forth in the Agreement.
1. Mutual is a federally chartered stock savings bank
duly organized and validly existing under the Laws of the United
States with full authority to own the properties owned by it and
to carry on the business in which it is engaged as described in
the Joint Proxy Statement used to solicit the approval by the
shareholders of Mutual of the transactions contemplated by the
Agreement and the Plan of Merger. The deposits of Mutual are
insured by the FDIC to the extent provided by Law.
2. The authorized capital stock of Mutual consists of
(i) 7,500,000 shares of Mutual Common Stock, of which _________
shares were issued and outstanding as of _________, 1995, and
(ii) 2,500,000 shares of Mutual Preferred Stock, of which no
shares are issued and outstanding. The shares of Mutual Common
Stock that are issued and outstanding were not issued in
violation of any statutory preemptive rights of shareholders,
were duly issued, and are fully paid and nonassessable. To the
best of our knowledge, there are no options, subscriptions,
warrants, calls, rights, or commitments obligating Mutual to
issue any equity securities or acquire any of its equity
securities other than as disclosed in the Joint Proxy Statement.
3. The execution and delivery of the Agreement and the
Plan of Merger and compliance with their respective terms do not
and will not violate or contravene: (i) any provision of the
Charter or Bylaws of Mutual or (ii) to the best of our knowledge
but without any independent investigation, any order, judgment,
or decree to which Mutual is a party or by which Mutual is bound.
4. In accordance with the Bylaws of Mutual and pursuant
to resolutions duly adopted by its Board of Directors and
shareholders, the Agreement and the Plan of Merger have been duly
adopted and approved by the Board of Directors of Mutual and by
the shareholders of Mutual at the Mutual Shareholders' Meeting.
5. To the best of our knowledge, all proceedings
required by Law or by provisions of the Agreement or the Plan of
Merger to be taken by Mutual in connection with the due
consummation of the transactions contemplated by the Agreement
and the Plan of Merger have been duly and validly taken.
6. The Agreement and the Plan of Merger have been duly
and validly executed and delivered by Mutual and, assuming valid
authorization, execution, and delivery by ANB, constitute valid
and binding agreements of Mutual enforceable in accordance with
their respective terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, or similar Laws
affecting the enforcement of creditors' rights generally or the
right of creditors of an insured depository institution or by
general equity principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law
and, provided, however, that we express no opinion as to the
availability of the equitable remedy of specific performance.
OPINION OF ANB COUNSEL
This opinion is delivered pursuant to Section 9.3(d) of
the Agreement. Capitalized terms used in this opinion shall have
the meaning set forth in the Agreement.
1. ANB is a corporation duly organized, validly
existing, and in good standing under the Laws of the Commonwealth
of Virginia with full corporate power and authority to carry on
the business in which it is engaged as described in Joint Proxy
Statement used to solicit the approval by the shareholders of ANB
of the Articles of Incorporation Amendment contemplated by the
Agreement, and to own the properties owned by it.
2. American National is a national banking association
duly organized and validly existing under the Laws of the United
States with all requisite power and authority to carry on the
business in which it is engaged as described in the Joint Proxy
Statement, and to own the properties owned by it. The deposits
of American National are insured by the FDIC to the extent
provided by Law.
3. The execution and delivery of the Agreement and
compliance with its terms do not and will not violate or
contravene: (i) any provision of the Articles of Incorporation or
Bylaws of ANB or (ii) to our knowledge but without any
independent investigation, any order, arbitration award,
judgment, or decree to which ANB is a party or by which ANB is
bound. The execution and delivery of the Plan of Merger and
compliance with its terms do not and will not violate or
contravene: (i) any provision of the Articles of Association or
Bylaws of American National or (ii) to our knowledge but without
any independent investigation, any order, arbitration award,
judgment, or decree to which American National is a party or by
which American National is bound.
4. In accordance with the Bylaws of ANB and pursuant to
resolutions duly adopted by its Boards of Directors, the
Agreement has been duly adopted and approved by the Board of
Directors of ANB. In accordance with the Bylaws of American
National and pursuant to resolutions duly adopted by its Boards
of Directors, the Plan of Merger has been duly adopted and
approved by the Board of Directors of American National.
5. All proceedings required by Law or by provisions of
the Agreement or the Plan of Merger to be taken by ANB or
American National in connection with the due consummation of the
transactions contemplated by the Agreement or the Plan of Merger
have been duly and validly taken.
6. The Agreement and the Plan of Merger have been duly
and validly executed and delivered by ANB and American National,
respectively, and assuming valid authorization, execution, and
delivery by Mutual, constitute valid and binding agreements of
ANB and American National, respectively, enforceable in
accordance with each of their respective terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or similar Laws affecting creditors' rights
generally, provided, however, that we express no opinion as to
the availability of the equitable remedy of specific performance.