ADDENDUM TO
AGREEMENT
AND
PLAN OF REORGANIZATION AND MERGER
THIS ADDENDUM TO AGREEMENT AND PLAN OF REORGANIZATION AND MERGER, dated
as of September 25, 2000, ("Addendum"), is made and entered into by and among
North Valley Bancorp, a California corporation ("NVBancorp"), NVB Interim
National Bank, an interim national banking association ("Interim Bank") and Six
Rivers National Bank, a national banking association ("SRNB").
RECITALS:
A. NVBancorp and SRNB entered into a certain Agreement and Plan
of Reorganization and Merger, dated as of October 3, 1999, as
amended on January 28, 2000, and on July 25, 2000 (the
"Agreement").
B. The Agreement contemplates that, upon organization of the
Interim Bank, the Interim Bank would become a party to the
Agreement by the execution and delivery of an addendum to the
Agreement, in form and substance acceptable to NVBancorp, SRNB
and the directors and shareholders of the Interim Bank.
C. Effective as of August 2, 2000, NVBancorp obtained preliminary
approval of the Office of the Comptroller of the Currency (the
"OCC") to organize the Interim Bank; and the execution and
delivery of this Addendum has been authorized and approved by
the directors and shareholders of the Interim Bank.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and in the Agreement, the parties hereto agree as
follows:
1. NVB INTERIM NATIONAL BANK AS PARTY. NVBancorp, SRNB and Interim Bank
hereby agree that, effective upon the execution and delivery of this Addendum,
Interim Bank shall become a party to the Agreement and shall be bound by all of
the provisions thereof. The Agreement, as amended by this Addendum, is binding
upon and is for the benefit of NVBancorp, SRNB and Interim Bank and their
respective successors and permitted assigns. This Addendum is not made for the
benefit of any person, firm, corporation or association not a party hereto, and
no other person, firm, corporation or association shall acquire or have any
right under or by virtue of this Addendum. No party may assign this Addendum or
any of its rights, privileges, duties or obligations hereunder without the prior
written consent of the other parties to this Addendum.
2. MERGER AGREEMENT. NVBancorp, SRNB and Interim Bank hereby agree that
the Merger Agreement, substantially in the form attached hereto as Exhibit A,
shall be substituted in the place of the form of Merger Agreement which is
<PAGE>
attached to the Agreement as Exhibit A thereto, subject to final approval of the
Merger Agreement by the OCC.
3. GOVERNING LAW. This Addendum shall be governed by and construed in
accordance with the laws of the State of California.
4. ATTORNEYS' FEES. In any action at law or suit in equity in relation
to this Addendum, the prevailing party in such action or suit shall be entitled
to receive a reasonable sum for its attorneys' fees and all other reasonable
costs and expenses incurred in such action or suit.
5. COUNTERPARTS. This Addendum may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, NVBancorp, SRNB and Interim Bank have caused this
Addendum to Agreement and Plan of Reorganization and Merger to be signed by
their duly authorized officers as of the day and year first above written.
<TABLE>
<CAPTION>
NORTH VALLEY BANCORP SIX RIVERS NATIONAL BANK
<S> <C>
By: /s/ Michael J. Cushman By: /s/ Michael W. Martinez
----------------------------------------- ------------------------------
Michael J. Cushman Michael W. Martinez
President and Chief Executive Officer President and Chief Executive Officer
By: /s/ J.M. Wells, Jr. By: /s/ Margie L. Plum
----------------------------------------- ------------------------------
J.M. Wells, Jr. Margie L. Plum
Secretary Secretary
</TABLE>
NVB INTERIM NATIONAL BANK
By: /s/ Michael J. Cushman
-----------------------------------------
Michael J. Cushman
President and Chief Executive Officer
By: /s/ J. M. Wells, Jr.
-----------------------------------------
J.M. Wells, Jr.
Secretary
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EXHIBIT A
MERGER AGREEMENT
THIS MERGER AGREEMENT (the "Agreement") is dated as of the ____ day
of_________, 2000, by and between Six Rivers National Bank, a national banking
association with its head office in Eureka, California ("SRNB") and NVB Interim
National Bank ("New Bank"), a national interim banking association formed as a
wholly-owned subsidiary of North Valley Bancorp, a California corporation
("NVBancorp") solely to facilitate the transactions contemplated by this
Agreement, as provided below.
This Agreement is being entered into pursuant to the Agreement and Plan
of Reorganization and Merger dated as of October 3, 1999, as amended on January
28, 2000, and on July 25, 2000, and as further amended by the Addendum to
Agreement and Plan of Reorganization and Agreement dated September ____, 2000
(as amended, the "Plan of Reorganization") by and among NVBancorp, SRNB and New
Bank.
In consideration of the premises, and the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Except as otherwise provided herein, the capitalized terms set forth
below shall have the following meanings:
Section 1.1. "Effective Date" means the date at which the transactions
contemplated by this Agreement become effective as determined by the certificate
approving the Merger to be issued by the Office of the Comptroller of the
Currency (the "OCC").
Section 1.2. "New Bank Common Stock" means the common stock, par value
$5.00 per share, of New Bank owned by NVBancorp.
Section 1.3. "SRNB Common Stock" means the common stock, par value
$5.00 per share, of SRNB.
Section 1.4. "The Merger" means the merger of SRNB with and into New
Bank, as provided in Section 2.1 of this Agreement.
Section 1.5. "Resulting Bank" means New Bank as the receiving
institution in the Merger.
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ARTICLE 2
TERMS OF THE MERGER
Section 2.1. THE MERGER. Subject to the terms and conditions set forth
in the Plan of Reorganization, on the Effective Date, SRNB shall be merged with
and into New Bank, with New Bank as the Resulting Bank, under the national bank
charter number and name of "Six Rivers National Bank," as determined by the OCC,
and each of the outstanding shares of SRNB Common Stock shall and without any
action on the part of SRNB be canceled and be converted into the right to
receive shares of common stock of NVBancorp ("NVBancorp Common Stock") in
accordance with Section 3.1 hereof, and the shares of the New Bank Common Stock
shall be converted into shares of common stock of the Resulting Bank in
accordance with Section 3.4 hereof.
Section 2.2. ARTICLES OF ASSOCIATION, BYLAWS AND FACILITIES OF
RESULTING BANK. On the Effective Date and until thereafter amended in accordance
with law, the Articles of Association of the Resulting Bank shall be the same as
the Articles of Association of SRNB as in effect on the Effective Date, subject
to any amendments required by the OCC. A copy of said Articles of Association is
attached hereto as Annex A. Until altered, amended or repealed as provided
herein and in the Articles of Association of the Resulting Bank, the Bylaws of
the Resulting Bank shall be the same as the Bylaws of SRNB as in effect on the
Effective Date, subject to any amendments required by the OCC. The main office
of the Resulting Bank shall be the main office of SRNB as of the Effective Date,
and all corporate acts, plans, policies, contracts, approvals and authorizations
of SRNB and New Bank and their respective shareholders, boards of directors,
committees elected or appointed thereby, officers and agents, which were valid
and effective immediately prior to the Effective Date, shall be taken for all
purposes as the acts, plans, policies, contracts, approvals and authorizations
of the Resulting Bank and shall be as effective and binding as of the Effective
Date as the same had been with respect to SRNB and New Bank, respectively.
Section 2.3. EFFECT OF MERGER. On the Effective Date of the Merger, the
corporate existence of SRNB and New Bank shall be consolidated into and
continued in the Resulting Bank, and the Resulting Bank shall be deemed to be a
continuation in entity and identity of SRNB and New Bank. All rights, franchises
and interests of SRNB and New Bank, respectively, in and to any type of property
and choses in action shall be transferred to and vested in the Resulting Bank by
virtue of the Merger without any deed or other transfer. Resulting Bank, without
any order or other action on the part of any court or otherwise, shall hold and
enjoy all rights of property, franchises and interest, including appointments,
designations and nominations, and all other rights and interests as trustee,
executor, administrator, transfer agent or registrar of stocks and bonds,
guardian of estates, assignee, receiver and committee of estates of lunatics,
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 SRNB and New
Bank, respectively, as of the Effective Date.
Section 2.4. LIABILITIES OF THE RESULTING BANK. On the Effective Date,
the Resulting Bank shall be liable for all liabilities of SRNB and New Bank. All
deposits, debts, liabilities and obligations of SRNB and of New Bank,
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respectively, accrued, absolute, contingent or otherwise, and whether or not
reflected or reserved against on balance sheets, books of account or records of
SRNB or New Bank, as the case may be, shall be those of the Resulting Bank and
shall not be released or impaired by the Merger. All rights of creditors and
other obligees and all liens on property of either SRNB or New Bank shall be
preserved unimpaired.
ARTICLE 3
CONVERSION OF SHARES
Section 3.1. CONVERSION OF SRNB COMMON STOCK. On the Effective Date,
each share of SRNB Common Stock, issued and outstanding immediately prior to the
Effective Date (other than Dissenting Shares as hereinafter defined) shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into the right to receive [__________] shares of NVBancorp Common
Stock in accordance with the Plan of Reorganization.
Section 3.2. EXCHANGE OF SHARES. On or immediately prior to the
Effective Date, in accordance with the Plan of Reorganization, NVBancorp shall
make available shares of its Common Stock in sufficient amount to effect the
Merger. As soon as practicable after the Closing Date (as defined in Section 9
of the Plan of Reorganization), the Exchange Agent (as defined in the Plan of
Reorganization) will send to each shareholder of SRNB a letter of transmittal
for use in exchanging such holder's stock certificate(s) for shares of NVBancorp
Common Stock. Each shareholder of SRNB shall be entitled to receive NVBancorp
Common Stock for such holder's shares only upon surrender of the certificates
representing such holder's shares of SRNB Common Stock or after providing an
appropriate affidavit of lost certificate and indemnity agreement and/or a bond
as may be required in each case by the Exchange Agent. Until so surrendered,
each SRNB Common Stock certificate will be deemed for all corporate purposes to
represent and evidence solely the right to receive the amount of NVBancorp
Common Stock to be exchanged therefor pursuant to the Plan of Reorganization.
Section 3.3. DISSENTING SHARES. Each share of SRNB Common Stock issued
and outstanding immediately prior to the Effective Date, the holder of which has
voted against the Merger and who has properly perfected his or her dissenters'
rights of appraisal by following the procedures set forth in the National Bank
Act is referred to herein as a "Dissenting Share." Dissenting Shares owned by
each holder thereof who has not exchanged his certificates representing shares
of SRNB Common Stock for the NVBancorp Common Stock and otherwise has not
effectively withdrawn or lost his dissenter's rights, shall not be converted
into or represent the right to receive the NVBancorp Common Stock pursuant to
Section 3.1 hereof and shall be entitled only to such rights as are available to
such holder pursuant to the applicable provisions of the National Bank Act. Each
holder of Dissenting Shares shall be entitled to receive the value of such
Dissenting Shares held by him or her in accordance with the applicable
provisions of the National Bank Act, provided such holder complies with the
procedures contemplated by and set forth in the applicable provisions of the
National Bank Act. If any holder of Dissenting Shares shall effectively withdraw
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or lose his or her dissenter's rights under the applicable provisions of the
National Bank Act, such Dissenting Shares shall be converted into the right to
receive the NVBancorp Common Stock in accordance with the provisions of Section
3.1.
Section 3.4. NEW BANK COMMON STOCK. On the Effective Date, the shares
of New Bank Common Stock issued and outstanding immediately prior to the
Effective Date shall be converted automatically and without any action on the
part of the holders thereof into 20,000 shares of common stock, par value $5.00
per share, of the Resulting Bank. The shares of common stock of the Resulting
Bank into which such New Bank Common Stock are converted shall represent
ownership of 100% of the issued and outstanding capital stock of the Resulting
Bank, all of which shall be owned by NVBancorp.
ARTICLE 4
MISCELLANEOUS
Section 4.1. CONDITIONS PRECEDENT. The respective obligations of each
party under this Agreement shall be subject to the satisfaction, or waiver by
the party permitted to do so, of the conditions set forth in Articles 7 and 8 of
the Plan of Reorganization.
Section 4.2. TERMINATION. This Agreement shall be terminated upon the
termination of the Plan of Reorganization in accordance with Article 12 thereof;
provided, that any such termination of this Agreement shall not relieve any
party hereto from liability on account of a breach by such party of any of the
terms hereof or thereof.
Section 4.3. AMENDMENTS. To the extent permitted by law, this Agreement
may be amended by a subsequent writing signed by all of the parties hereto upon
the approval of the Board of Directors of each of the parties hereto.
Section 4.4. SUCCESSORS. This Plan shall be binding on the successors
of New Bank and SRNB.
Section 4.5. RETURN OF SURPLUS. On, or as soon as practicable following
the Effective Date, the surplus of the Resulting Bank shall be reduced in the
amount equal to the amount paid-in or contributed by NVBancorp in connection
with the organization of New Bank and such amount shall be returned to
NVBancorp.
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IN WITNESS WHEREOF, New Bank and SRNB have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
NVB INTERIM NATIONAL BANK
Attest:
___________________ By: __________________________________
Title: ________________________________
SIX RIVERS NATIONAL BANK
Attest:
___________________ By: __________________________________
Title: ________________________________
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ANNEX A
ARTICLES OF ASSOCIATION
For the purpose of organizing an association to perform any
lawful activities of national banks, the undersigned enter into the
following Articles of Association:
FIRST. The title of this Association shall be:
SIX RIVERS NATIONAL BANK
SECOND. The Main Office of the Association shall be in the
City of Eureka, County of Humboldt, State of California. The general
business of the Association shall be conducted at its Main office and
its legally established branches.
THIRD. The Board of Directors of this Association shall
consist of not less than five (5) nor more than twenty-five (25)
shareholders, the exact number of directors within such minimum and
maximum limits to be fixed and determined from time to time by
resolution of a majority of the full Board of Directors or by
resolution of the shareholders at any annual or special meeting
thereof. Each director, during the full term of his or her
directorship, shall own a minimum of $1,000 par value of stock of this
Association. Any vacancy in the Board of Directors for any reason,
including an increase in the number thereof, may be filled by action of
the Board of Directors.
FOURTH. There shall be an annual meeting of the shareholders
the purpose of which shall be the election of directors and the
transaction of whatever other business may be brought before said
meeting. It shall be held at the Main Office or such other convenient
place as the Board of Directors may designate, on the day of each year
specified therefor in the Bylaws, but if no election is held on that
day, it may be held on any subsequent day according to such lawful
rules as may be prescribed by the Board of Directors.
Nominations for election to the Board of Directors may be made
by the Board of Directors or by any stockholder of any outstanding
class of capital stock of the Bank entitled to vote for election of
directors. Nominations, other than those made by or on behalf of the
existing management of the Bank, shall be made in writing and shall be
delivered or mailed to the President of the Bank and to the Comptroller
of the Currency, Washington, D.C., not less than fourteen (14) days nor
more than fifty (50) days prior to any meeting of stockholders called
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for the election of directors, PROVIDED, HOWEVER, that if less than
twenty-one (21) days' notice of the meeting is given to shareholders,
such nomination shall be mailed or delivered to the President of the
Bank and to the Comptroller of the Currency not later than the close of
business on the seventh (7th) day following the day on which the notice
of meeting was mailed. Such notification shall contain the following
information to the extent known to the notifying shareholder: (a) the
name and address of each proposed nominee; (b) the principal occupation
of each proposed nominee; (c) the total number of shares of capital
stock of the Bank beneficially owned by each proposed nominee; (d) the
name and residence address of the notifying shareholder; and (e) the
number of shares of capital stock of the Bank owned by the notifying
shareholder. Nominations not made in accordance herewith may, in his
discretion, be disregarded by the Chairman of the meeting, and upon his
instructions, the vote tellers may disregard all votes cast for each
such nominee.
FIFTH. The amount of authorized capital stock of this
Association shall be twenty thousand (20,000) shares of Common Stock of
the par value of $5.00 each; but said capital stock may be increased or
decreased from time to time in accordance with the provisions of the
laws of the United States.
No holder of shares of the capital stock of any class of this
Association shall have any preemptive or preferential right of
subscription to any shares of any class of stock of the Association,
whether now or hereafter authorized, or to any obligations convertible
into stock of the Association, issued or sold, nor any right of
subscription to any thereof other than such, if any, as the Board of
Directors, in its discretion, may from time to time determine and at
such price as the Board of Directors may from time to time fix.
The Association, at any time and from time to time, may
authorize and issue debt obligations, whether or not subordinated,
without the approval of shareholders.
SIXTH. The Board of Directors shall appoint one of its members
President of this Association, who shall be Chairman of the Board,
unless the Board appoints another director to be the Chairman. The
Board of Directors shall have the power to appoint one or more Vice
Presidents, at least one of whom shall be authorized, in the absence of
the President, to perform all acts and duties pertaining to the office
of the President; and to appoint a cashier and such other officers and
employees as may be required to transact the business of this
Association.
The Board of Directors shall have the power to define the
duties of the officers and employees of the Association; to fix the
salaries to be paid to them; to dismiss them; to require bonds from
them and to fix the penalty thereof; to regulate the manner in which
any increase of the capital of the Association shall be made; to manage
and administer the business and affairs of the Association; to make all
Bylaws that it may be lawful for them to make; and generally to do and
perform all acts that it may be legal for a Board of Directors to do
and perform.
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SEVENTH. The Board of Directors shall have the power to change
the location of the Main Office of this Association to any authorized
branch location within the limits of Eureka, California, without the
approval of the shareholders of this Association, or with a vote of
shareholders owning two-thirds of the stock of this Association for a
relocation outside such limits and upon receipt of a certificate of
approval from the Comptroller of the Currency, to any other location
within or outside the limits of Eureka, California, but not more than
thirty (30) miles beyond such limits. The Board of Directors of this
Association shall have the power to establish or change the location of
any branch or branches of this Association to any other location
permitted under applicable law, without the approval of the
shareholders of this Association, subject to the approval of the
Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall
continue until terminated in accordance with the laws of the United
States.
NINTH. The Board of Directors of this Association, or any ten
(10) or more shareholders owning, in the aggregate, not less than
twenty percent (20%) of the stock of this Association, may call a
special meeting of shareholders at any time.
Unless otherwise provided by the laws of the United States, a
notice of the time, place, and purpose of every regular annual and
every special meeting of the shareholders shall be given by first-class
mail, postage prepaid, mailed at least ten (10) days prior to the date
of such meeting to each shareholder of record at his or her address as
shown upon the books of this Association.
TENTH. The Association may indemnify its agents against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred by such person having been made or having been
threatened to be made a party to a proceeding to the fullest extent
possible by the provisions of the California General Corporation Law
and the Association may advance the expenses reasonably expected to be
incurred by such agent in defending any such proceeding upon receipt of
the undertaking required by the California General Corporation Law;
PROVIDED, HOWEVER, that any indemnification or reimbursement provided
by the Association shall be reasonable and comply with the requirements
of 12 U.S.C. 1828(k) and Interpretive Ruling 7.2014 (12 CFR 7.2014) of
the Comptroller of the Currency; and FURTHER PROVIDED, that the
Association may not indemnify such persons against expenses, penalties,
or other payments incurred in an administrative proceeding or action
instituted by an appropriate bank regulatory agency which proceeding or
action results in a final order assessing civil money penalties or
requiring affirmative action by an individual or individuals in the
form of payments to the Association.
The Association may, upon the affirmative vote of a majority
of its Board of Directors, purchase insurance for the purpose of
indemnifying its agents to the extent that such indemnification is
allowed in the preceding paragraph. Such insurance may, but need not,
be for the benefit of all directors, officers, employees or other
agents.
The Association is authorized to provide indemnification of
its agents for breach of duty to the Association and its stockholders
through bylaw provisions or through agreements with the agents, or
both, in excess of the indemnification otherwise permitted by Section
317 of the California Corporations Code, subject to the limits on such
excess indemnification set forth in Section 204 of the Corporations
Code.
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The terms, "agent," "proceeding" and "expense" as used herein
shall have the same meaning as such terms in Section 317 of the
California General Corporation Law, as amended.
ELEVENTH. The liability of the directors of the Association
for monetary damages shall be eliminated to the fullest extent
permissible under California law.
TWELFTH. The Board of Directors of this Association, when
evaluating any offer of another party to (a) make a tender or exchange
offer for any equity security of the Association with another
corporation or association, or (b) merge or consolidate the Association
with another corporation or association, or (c) purchase or otherwise
acquire all or substantially all of the properties and assets of the
Association, shall, in connection with the exercise of its judgement
and fiduciary duty in determining what is in the best interest of the
Association and its shareholders, give due consideration to (i) the
social, legal and economic effects on the Association's employees,
depositors, customers and other affected persons, and on the
communities served by the Association, (ii) the value of the
Association in relation to the Board of Directors' estimate of the
Association's future value as an independent going concern; (iii) the
competence, experience and integrity of the proposed purchaser; (iv)
the financial condition, earnings prospects and strategic plan of the
proposed purchaser; and (v) such other factors as the Board of
Directors may deem relevant under the circumstances.
THIRTEENTH. Subject to the provisions of the laws of the
United States, these Articles of Association may be amended at any
meeting of the shareholders for which adequate notice has been given,
by the affirmative vote of the owners of a majority of the stock of
this Association, voting in person or by proxy, or by the written
consent of the owners of a majority of the stock of this Association,
unless the vote of the holders of a greater amount of stock is required
by law, and in that case by the vote or written consent of such greater
amount.
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