SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
(Amendment No.1)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ABIGAIL ADAMS NATIONAL BANCORP, INC.
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(Exact name of registrant as specified in its charter)
Delaware 52-1508198
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(State of incorporation or organization) (IRS Employer Identification No.)
1627 K Street, Washington, D.C. 20006
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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None None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Share Purchase Rights
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(Title of Class)
Page 1 of 73 total pages Exhibit Index appears on page 7
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Item 1. Description of Securities to be Registered
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On April 12, 1994, the Board of Directors of ABIGAIL ADAMS NATIONAL
BANCORP, INC. (the "Company") declared a dividend of one common share purchase
right (a "Right") for each outstanding share of common stock, $10.00 par value
(the "Common Shares"), of the Company. The dividend is payable on April 25, 1994
(the "Record Date") to the shareholders of record on that date. Each Right
entitles the registered holder to purchase from the Company one Common Share of
the Company, at a price of $60.33 per Common Share (the "Purchase Price"),
subject to adjustment. The description and terms of the Rights are set forth in
a Rights Agreement (the "Rights Agreement") between the Company and The First
National Bank of Maryland, as Rights Agent (the "Rights Agent").
Until the earliest to occur of (a) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") has acquired, or obtained the right to acquire, beneficial ownership or
record ownership of 25% or more of the outstanding Common Shares; (b) 10 days
following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in the beneficial
ownership or record ownership by a person or group of 25 % or more of such
outstanding Common Shares; or (c) the date a person or group of affiliated or
associated persons is or becomes the beneficial or record owner of 15% or more
of the outstanding Common Shares and (i) the actions such person proposes to
take are likely to have a material adverse impact on the business or prospects
of the Company; (ii) such person intends to cause the Company to repurchase the
Common Shares owned by such person; (iii) such person exercises or attempts to
exercise a controlling influence over the Company; or (iv) such person transfers
all or a portion of such Common Shares in a manner that results in a person
owning 9.9% or more of the Common Shares (an "Adverse Person") (the earliest of
such dates being called the "Distribution Date"), the Rights will be evidenced,
with respect to any of the Common Share certificates outstanding as of the
Record Date, by such Common Share certificate with a copy of this Summary of
Rights attached thereto.
As of the date of adoption of the Rights Agreement, no Acquiring Person or
Adverse Person exists for purposes of the Rights Agreement.
The Rights Agreement provides that, until the Distribution Date, the Rights
will be transferred with and only with the Common Shares. Until the Distribution
Date (or earlier redemption or expiration of the Rights), new Common Share
certificates issued after the Record Date, upon transfer or new issuance of
Common Shares will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or expiration of
the Rights), the surrender for transfer of any certificates for Common Shares,
outstanding as of the Record Date, even without such notation or a copy of this
Summary of Rights being attached thereto, will also constitute the transfer of
the Rights
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associated with the Common Shares represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of record of the
Common Shares as of the close of business on the Distribution Date and such
separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on December 31, 2003 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed by the
Company, in each case, as described below.
The Purchase Price payable, and the number of Common Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Common
Shares, (ii) upon the grant to holders of the Common Shares of certain rights or
warrants to subscribe for or purchase Common Shares at a price, or securities
convertible into Common Shares with a conversion price, less than the then
current market price of the Common Shares or (iii) upon the distribution to
holders of the Common Shares of evidences of indebtedness or assets (excluding
regular periodic cash dividends paid out of earnings or retained earnings or
dividends payable in Common Shares) or of subscription rights or warrants (other
than those referred to above).
In the event that the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold, each holder of a Right will thereafter have the right to
receive, upon the exercise thereof at the then current exercise price of the
Right, that number of shares of common stock of the acquiring company which at
the time of such transaction will have a market value of two times the exercise
price of the Right. In the event that any Person becomes an Acquiring Person or
an Adverse Person, each holder of a Right, other than Rights beneficially owned
by the Acquiring Person or Adverse Person (which will thereafter be void), will
thereafter have the right to receive upon exercise that number of Common Shares
having a market value of two times the exercise price of the Right, but in no
event will the purchase price per share be less than the par value of the Common
Shares.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1 % in
such Purchase Price. No fractional Common Shares will be issued and in lieu
thereof, an adjustment in cash will be made based on the market price of the
Common Shares on the last trading day prior to the date of exercise.
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At any time prior to the date a Person becomes an Acquiring Person or an
Adverse Person, the Board of Directors of the Company may redeem the Rights in
whole, but not in part, at a price of $.Ol per Right (the "Redemption Price").
Immediately upon any redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights, including an amendment
to extend the Final Expiration Date and, provided there is no Acquiring Person
or Adverse Person, to extend the period during which the Rights may be redeemed,
except that from and after such time as any person becomes an Acquiring Person
or an Adverse Person no such amendment may adversely affect the interests of the
holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends.
On April 20, 1995, the Company and the Rights Agent entered into a First
Amendment to Rights Agreement (the "First Amendment"). Under the First
Amendment, the terms Acquiring Person and Adverse Person have been amended to
exclude from the definition thereof Citibank, Marshall T. Reynolds ("Reynolds")
and certain permitted assignees of Reynolds, and any of their Affiliates and
Associates, to the extent that any of them would become an Acquiring Person or
an Adverse Person by reason of either (i) the execution, delivery or performance
of the Stock Purchase Agreement (as hereinafter defined) or (ii) any public
announcement by any Person with respect to, or the initiation, conduct or
completion of, the Tender Offer (as hereinafter defined). In addition, the First
Amendment amends the term Distribution Date, as set forth in Section 3(a) of the
Rights Agreement, to provide that a Distribution Date will not occur by reason
of any public announcement by any Person with respect to, or by reason of the
initiation, conduct or completion of, the Tender Offer. A copy of the First
Amendment is attached hereto as Exhibit 4 and is hereby incorporated herein by
reference.
The First Amendment was adopted in anticipation of the entry by Citibank
and Marshall T. Reynolds into a stock purchase agreement pursuant to which
Reynolds, subject to certain conditions precedent, would agree to purchase from
Citibank up to 203,038 of the outstanding Common Shares (the "Stock Purchase
Agreement"). In connection therewith, the Company and Reynolds have entered into
an agreement, dated as of April 20, 1995 (the "Agreement"), whereby Reynolds has
agreed that, if the purchase of the Common Shares from Citibank is completed, he
will within 20 business days thereafter make a tender offer to purchase any or
all of the outstanding Common Shares not purchased from Citibank (the "Tender
Offer"). A copy of the Agreement (which includes as an exhibit thereto a copy of
the form of Stock Purchase Agreement) is attached hereto as Exhibit 5 and is
hereby incorporated herein by reference.
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As a consequence of the First Amendment, neither the entry into or the
performance of the Stock Purchase Agreement by Citibank and Reynolds (and any
permitted assignees of Reynolds) nor the announcement, initiation, conduct or
completion of the Tender Offer will cause the Rights to become exercisable.
On April 21, 1995, the day following the adoption and effectiveness of the
First Amendment, Citibank and Reynolds entered into the Stock Purchase
Agreement.
Item 2. Exhibits
Exhibit No. Description
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1. Rights Agreement, dated as of April 12, 1994, between
the Company and The First National Bank of Maryland, as
Rights Agent.*
2. Right Certificate (attached as Exhibit A to Rights
Agreement). Pursuant to the Rights Agreement, printed
Right Certificates will not be mailed until the
Distribution Date as defined therein.*
3. Summary of Rights to Purchase Common Shares (attached
as Exhibit B to Rights Agreement).*
4. First Amendment to Rights Agreement, dated as of April
20, 1995, between the Company and The First National
Bank of Maryland, as Rights Agent.
5. Agreement, dated as of April 20, 1995, between the
Company and Marshall T. Reynolds (attached as Exhibit A
to Exhibit 4 of this Form 8- A/A).
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* previously filed
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
ABIGAIL ADAMS NATIONAL BANCORP, INC.
Date: April 21, 1995 By :/s/ Barbara Davis Blum
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Barbara Davis Blum
Chairwoman, President
Chief Executive Officer
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EXHIBIT INDEX
Page at Which
Exhibit Appears
in Sequentially
Exhibit No. Description Numbered Copy
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4. First Amendment to Rights Agreement,
dated as of April 20, 1995, between the
Company and The First National Bank of
Maryland, as Rights Agent 8
7
Exhibit 4 to Form 8-A/A
of Abigail Adams
National Bancorp, Inc.,
dated April 21, 1995
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FIRST AMENDMENT
To
RIGHTS AGREEMENT
This First Amendment, dated as of April 20, 1995, amends the Rights
Agreement, dated as of April 12, 1994 (the "Rights Agreement"), between Abigail
Adams National Bancorp, Inc., a Delaware corporation (the "Company"), and The
First National Bank of Maryland, a national banking association (the "Rights
Agent"). Capitalized terms used herein without definition shall have the meaning
ascribed to such terms in the Rights Agreement.
WHEREAS, the Company understands that Citibank N.A. ("Citibank") wishes to
enter into a stock purchase agreement (the "Stock Purchase Agreement") with
Marshall T. Reynolds ("Reynolds"), in the form attached as Exhibit A to the
Reynolds Agreement (as hereinafter defined), pursuant to which Citibank would
agree to sell to Reynolds, and Reynolds would agree to purchase from Citibank,
subject to the satisfaction of certain conditions, all of Citibank's right,
title and interest in and to all of the Common Shares of which Citibank is the
Beneficial Owner;
WHEREAS, Reynolds and the Company have entered into an Agreement, dated as
of the date hereof, a copy of which is attached hereto as Attachment A (the
"Reynolds Agreement"), pursuant to which, among other things, Reynolds has
agreed that, if the purchase of Common Shares contemplated by the Stock Purchase
Agreement is completed, he will make a tender offer to the stockholders of the
Company (other than Citibank) at an offering price of $21.00 per Common Share
("Tender offer,');
WHEREAS, the Board of Directors of the Company, on the recommendation of
the Special Committee of outside Directors, has determined that the transaction
contemplated by the Stock Purchase Agreement, coupled with the Tender Offer,
represent a transaction that is in the best interests of the Company and its
stockholders (other than Citibank as to the interests of which it has reached no
conclusion);
WHEREAS, the Board of Directors wishes to amend the Rights Agreement to (i)
permit the execution, delivery and performance of the Stock Purchase Agreement
and the completion of the Tender offer without causing the Rights to become
exercisable and (ii) to
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permit the announcement, initiation, conduct and completion of the Tender offer
without causing the occurrence of a Distribution date;
WHEREAS, the Company and the Rights Agent each have concluded that the
amendments to the Rights Agreement provided for herein are necessary or
desirable; and
WHEREAS, the amendments to the Rights Agreement provided for herein are
consistent with and for the purpose of fulfilling the objectives of the Board of
Directors of the Company in adopting the Rights Agreement.
NOW, THEREFORE, in consideration of these premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. The term "Acquiring Person" as set forth in Section i(a) of the Rights
Agreement is hereby amended to be and read as follows:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall
become, after the date hereof, the Beneficial Owner or Record owner (as
such terms are hereinafter defined) of 25% or more of the Common Shares
then outstanding, but shall not include the Company, any Subsidiary (as
such term is hereinafter defined) of the Company or any employee benefit
plan of the Company or any Subsidiary of the Company, or any entity holding
Common Shares for or pursuant to the terms of any such plan; provided,
however, that notwithstanding any other provision of this Agreement to the
contrary, neither Citibank, Marshall T. Reynolds, any Permitted Assignee
(as defined by the Stock Purchase Agreement) of Marshall T. Reynolds, nor
any Affiliate or Associate of Citibank, Marshall T. Reynolds or any of such
Permitted Assignees shall become an Acquiring Person by reason of (i) the
execution, delivery or performance of the Stock Purchase Agreement or (ii)
any public announcement by any Person with respect to, or the initiation,
conduct or completion of, the Tender Offer.
2. The term "adverse person" as set forth in section 1(b) of the rights
agreement is hereby amended to be and read as follows:
(b) "Adverse Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person (i) is or becomes the
Beneficial owner or Record Owner of 15% or more of the Common Shares then
outstanding, and at least a majority of the Board of
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Directors of the Company who are not officers of the Company, after
reasonable inquiry and investigation, including consultation with such
persons as such directors shall deem appropriate, shall conclude that the
effect of such stock ownership, in the light of the actions which the
Person proposes or is likely to take, is potentially materially adverse to
the Company's business, assets, competitive position, prospects or other
shareholders; (ii) is or becomes the Beneficial Owner or Record Owner of
15% or more of the Common Shares then outstanding and at least a majority
of the Board of Directors of the Company who are not officers of the
Company determine, after reasonable inquiry and investigation, including
consultation with such persons as such directors shall deem appropriate,
that (a) such Beneficial ownership or Record Ownership by such Person is
intended to cause the Company to repurchase the Common Shares owned by such
Person or to cause pressure on the Company to take action or enter into a
transaction or series of transactions intended to provide such Person with
short-term financial gain or any economic benefit not otherwise available
to other shareholders under circumstances where the Board of Directors of
the Company determines that the best long-term interests of the Company and
all its stockholders would not be served by taking such action or entering
into such transactions or series of transactions at that time or (b) such
Beneficial ownership or Record Ownership is causing or reasonably likely to
cause a material adverse impact (including, but not limited to, impairment
of relationships with customers or impairment of the Company's ability to
maintain its competitive position) on the business or prospects of the
Company or its shareholders; (iii) is or becomes the Beneficial Owner or
Record Owner of 15% or more of the Common Shares then outstanding and
exercises or attempts to exercise, directly or indirectly, a controlling
influence over the management or policies of the Company or otherwise
exercises "control" of the Company, as such term is defined in 12 C.F.R.
ss.225.2(e); or (iv) is or becomes the Beneficial owner or Record Owner of
15% or more of the Common Shares then outstanding and sells, transfers,
assigns or otherwise disposes of all or a portion of such Common Shares in
a manner that results in a Person owning 9.9% or more of the Common Shares
then outstanding; provided, however, that notwithstanding any other
provision of
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this Agreement to the contrary, neither Citibank, Marshall T. Reynolds, any
Permitted Assignee (as defined by the Stock Purchase Agreement) of Marshall
T. Reynolds, nor any Affiliate or Associate of Citibank, Marshall T.
Reynolds or any of such Permitted Assignees shall become an Acquiring
Person by reason of (i) the execution, delivery or performance of the Stock
Purchase Agreement or (ii) any public announcement by any Person with
respect to, or the initiation, conduct or completion of the Tender Offer.
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3. Section 3(a) of the Rights Agreement is hereby amended to be and read as
follows:
(a) Until the earliest of (i) the tenth day after the Shares
Acquisition Date; (ii) the tenth day after the date of the commencement of,
or of the first public announcement of the intention of any Person (other
than the Company, any Subsidiary of the Company, any employee benefit plan
of the Company or of any Subsidiary of the Company or any entity holding
Common Shares for or pursuant to the terms of any such plan) to commence, a
tender or exchange offer the consummation of which would result in any
Person becoming the Beneficial Owner or Record Owner of Common Shares
aggregating 25% or more of the then outstanding Common Shares; provided,
however, that notwithstanding any other provision of this Agreement to the
contrary, no Distribution Date (as hereinafter defined) shall occur by
reason of any public announcement by any Person with respect to, or by
reason of the initiation, conduct or completion of, the Tender offer; or
(iii) the date a Person becomes an Adverse Person (including any such date
which is after the date of this Agreement and prior to the issuance of the
Rights; the earliest of such dates being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Common Shares
registered in the names of the holders thereof (which certificates shall
also be deemed to be Right Certificates) and not by separate Right
Certificates; and (y) the right to receive Right Certificates will be
transferable only in connection with the transfer of Common Shares. As soon
as practicable after the Distribution Date, the Company will prepare and
execute, the Rights Agent will countersign, and the Company will send or
cause to be sent (and the Rights Agent will, if requested, send) by
first-class, insured, postage-prepaid mail, to each record holder of Common
Shares as of the close of business on the Distribution Date, at the address
of such holder shown on the records of the Company, a Right Certificate, in
substantially the form of Exhibit A hereto (a "Right Certificate"),
evidencing one Right for each Common Share so held. As of the Distribution
Date, the Rights will be evidenced solely by such Right Certificates.
4. The Company shall indemnify and defend the Rights Agent from, and hold
it harmless against, any loss, liability, claim, damage, cost or expense
(including, but not limited to, reasonable attorney's fees, expert fees, and
other litigation costs incurred in defending or prosecuting any action) incurred
in connection with or arising out of any claim, action or threatened action
alleging that the occurrence of one
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or more events resulted in a Person becoming an Acquiring Person or an Adverse
Person on or before the effective date of this First Amendment.
5. Notwithstanding any provision of the Rights Agreement, the execution,
delivery and performance of the Stock Purchase Agreement shall not give rise to
a Distribution Date or cause the Rights to become exercisable.
6. This First Amendment shall become effective immediately prior to the
execution and delivery of the Stock Purchase Agreement.
7. This First Amendment shall be governed by and construed in accordance
with the laws of the State of Maryland. Except as amended by this First
Amendment, the terms, covenants, conditions and agreements of the Rights
Agreement shall continue in full force and effect. This First Amendment may be
signed in any number of counterparts with the same effect as if the signatures
on the respective counterparts hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed by a duly authorized officer as of the day and year first above
written.
ATTEST: ABIGAIL ADAMS NATIONAL
BANCORP, INC.
By: /s/ Joyce R. Hertz By:/s/ Barbara Davis Blum
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Name: Joyce R. Hertz Name: Barbara Davis Blum
Title: Corporate Secretary Title: President and CEO
ATTEST: THE FIRST NATIONAL BANK
OF MARYLAND, as
Rights Agent
By:/s/ Eileen Blige By: /s/ David Williams
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Name: Eileen Blige Name: David Williams
Title: Corporate Trust Executive Title: Vice President
Exhibit A to First
Amendent to Rights
Agreement, dated as of
April 20, 1995
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AGREEMENT
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THIS AGREEMENT ("Agreement"), dated as of April 20, 1995, between Marshall
T. Reynolds (the "Purchaser") and Abigail Adams National Bancorp, Inc.
("Bancorp"), a Delaware corporation and bank holding company.
W I T N E S S E T H:
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WHEREAS, pursuant to a Rights Agreement dated as of April 12, 1994, between
Bancorp and The First National Bank of Maryland, as rights agent (the "Bancorp
Rights Agreement"), Bancorp declared a dividend of one common share purchase
right (the "Rights") for each outstanding share of common stock, par value
$10.00 per share, of Bancorp ("Bancorp Common Stock"), payable to shareholders
of record of Bancorp common stock on April 23, 1994; and
WHEREAS, the Rights are not exercisable until the "Distribution Date"
described in the Bancorp Rights Agreement; and
WHEREAS, the Purchaser contemplates entering into a Stock Purchase
Agreement ("Stock Purchase Agreement") with Citibank, N.A. (the "Seller"), a
national banking association, the form of which is attached hereto as Exhibit A,
which provides, subject to the conditions therein contained, for the sale by
Seller to Purchaser of 203,038 shares (the "Shares") of Bancorp Common Stock,
said purchase being referred to in the Stock Purchase Agreement and this
Agreement as the "Acquisition"; and
WHEREAS, Purchaser and Seller are unwilling to enter into the Stock
Purchase Agreement without the execution of this Agreement, such that a
condition precedent to Purchaser's execution of the Stock Purchase Agreement is
the execution of this Agreement by Bancorp and the performance or the
undertaking to perform, as applicable, by Bancorp of its obligations hereunder;
and
WHEREAS, Bancorp has determined that consummation of the Acquisition,
subject to the terms set forth herein is in the best interests of Bancorp and
its stockholders; and
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto do hereby agree as
follows:
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ARTICLE I
DEFINITIONS
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Capitalized terms not otherwise defined herein are defined as in the
Bancorp Rights Agreement, a copy of which is attached hereto as Exhibit B, and
the form of Stock Purchase Agreement, a copy of which is attached hereto as
Exhibit A.
"Employment Agreement" shall mean the employment agreement dated March 31,
1993 among Bancorp, the Adams National Bank ("Adams") and Barbara Davis Blum, as
amended effective December 31, 1994, and as it may be further amended from time
to time.
"Severance Agreements" shall mean the severance agreements referenced in
Item 5 of Bancorp's Form 8-K report dated April 27, 1994 and appended thereto as
Exhibits No. 10.1 through 10.7, as such may be amended from time to time.
ARTICLE II
COVENANTS, UNDERTAKINGS AND OBLIGATIONS OF PURCHASER
----------------------------------------------------
2.1 Tender Offer
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Within twenty (20) business days following the Initial Closing Date of the
Acquisition, Purchaser will commence a cash tender offer directed to all
stockholders of Bancorp (other than Seller), whereby Purchaser will offer to
purchase all outstanding shares of Bancorp Common Stock owned by such
stockholders for a cash price of $21.00 per share (the "Tender Offer"). The
Tender Offer shall remain open for a minimum of twenty (20) business days (the
"Tender Offer Period") and Purchaser shall purchase pursuant to the Tender Offer
all shares tendered and not withdrawn during the Tender Offer Period. The Tender
Offer shall be conducted in accordance with the requirements of Section 14(d) of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder, and in accordance with all other applicable requirements of law.
2.2 Purchaser covenants and agrees that, prior to the consummation of the Tender
Offer and the payment in full for any shares tendered, neither the Purchaser nor
any assignee of the Shares (or of Purchaser's right to purchase the Shares) will
vote such Shares without the consent of Bancorp's Board of Directors, to change
in any respect the composition of the Board of Directors.
ARTICLE III
COVENANTS, UNDERTAKINGS AND OBLIGATIONS OF BANCORP
--------------------------------------------------
3.1 Bancorp agrees to take all actions necessary so that the execution,
delivery and performance of the Stock Purchase
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Agreement and consummation of the Acquisition and the Tender Offer as
contemplated by this Agreement do not and will not result in Purchaser, any of
his Permitted Assignees (as defined by the Stock Purchase Agreement), or any of
their "Affiliates" or "Associates" becoming an "Acquiring Person" or an "Adverse
Person" (as such terms are defined in the Bancorp Rights Agreement), enable or
require any Rights under the Bancorp Rights Agreement to become exercisable, or
otherwise cause or give rise to the occurrence of a "Distribution Date" (as such
term is defined in the Bancorp Rights Agreement), which the parties hereto agree
may be effected by means of an amendment to the Rights Plan without a redemption
of the Rights.
3.2 Bancorp agrees not to take any action to oppose or impede consummation
of the Acquisition.
3.3 Bancorp agrees to take and to cause Adams to take all actions necessary so
that the execution, delivery and performance of the Stock Purchase Agreement and
consummation of the Acquisition and the Tender Offer as contemplated by the
Stock Purchase Agreement and this Agreement do not constitute a "Change in
Control" under the terms of any of the Severance Agreements or otherwise cause
any of the rights or benefits of the employees thereunder to become exercisable
or triggered.
3.4 Except as contemplated or required by the terms of this Agreement, Bancorp
agrees that prior to the Initial Closing Date, it shall not amend or alter in
any fashion the Bancorp Rights Agreement.
3.5 Except as contemplated or required by the terms of this Agreement, Bancorp
agrees that prior to the Initial Closing Date, it shall not amend or alter, or
permit Adams to amend or alter, in any fashion any of the Severance Agreements
or Employment Agreement without the prior written consent of the Purchaser:
3.6 Except as otherwise permitted hereby, between the date hereof and the
Initial Closing Date, Bancorp agrees that it will not, and will cause Adams not
to, without the prior written approval of the Purchaser:
(a) Make any change in its authorized capital stock.
(b) Issue any shares of its capital stock, securities convertible into
its capital stock, or any long term debt securities.
(c) Issue or grant any options, warrants, or other rights to purchase
shares of its common stock.
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(d) Enter into, amend to materially increase its obligations under or
materially increase its current level of contributions to, any pension,
retirement, stock option, profit sharing, deferred compensation, bonus, group
insurance, or similar plan in respect of any of its directors, officers, or
other employees.
(e) Mortgage, pledge, or subject to a lien or any other encumbrance,
any of their assets, dispose of any of its assets, incur or cancel any debts or
claims, or increase the current level of compensation or benefits payable to its
officers, employees or directors, except in the ordinary course of business as
heretofore conducted, or take any other action not in the ordinary course of its
business as heretofore conducted or incur any material obligation or enter into
any material contract not in the ordinary course of business.
(f) Amend its Certificate of Incorporation or By-Laws, in the case of
Bancorp, or its Articles of Association or By- laws, in the case of Adams.
3.7 (a) Notwithstanding any other provision of this Agreement, the parties agree
that the Employment Agreement may be amended by Bancorp and Adams to provide for
one or more extensions of the termination date of such agreement to a date not
beyond 90 days following the Initial Closing Date, on the same terms and
conditions, except for the termination date, as provided for therein.
(b) Notwithstanding any other provision of this Agreement, Bancorp for
incentive purposes may adopt a stock option plan and during the first year of
the plan issue to directors and employees of Bancorp and Adams stock options to
purchase in the aggregate a number of shares of Bancorp Common Stock not in
excess of 2.5% of the number of shares of Bancorp Common Stock outstanding on
the date hereof.
3.8 At the Initial Closing, upon satisfaction of the conditions set forth in
Article VI of the Stock Purchase Agreement, Bancorp shall deliver, and shall
cause Adams to deliver, a release of claims against National Bancshares, Inc.
("NBI") and each of its directors (collectively, the "NBI Group") and its
officers, employees and agents, in all material respects in the form attached to
the Stock Purchase Agreement as Exhibit C.
4
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
4.1 Authorized and Effective Agreement
----------------------------------
(a) Purchaser has all requisite power and authority to enter into and
perform all of its obligations under this Agreement and the Stock Purchase
Agreement. The execution and delivery of this Agreement and the Stock Purchase
Agreement and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary action in respect
thereof on the part of Purchaser. This Agreement constitutes a legal, valid and
binding obligation of Purchaser, which is enforceable against Purchaser in
accordance with its terms, subject, as to enforceability, to bankruptcy,
insolvency, receivership or conservatorship and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
(b) Neither the execution and delivery of this Agreement or the Stock
Purchase Agreement, nor consummation of the transactions contemplated hereby or
thereby, nor compliance by Purchaser with any of the provisions hereof or
thereof, shall (i) constitute or result in a breach of any term, condition or
provision of, or constitute a default under, or give rise to any right of
termination, cancellation or acceleration with respect to, or result in the
creation of any lien, charge or encumbrance upon any property or asset of
Purchaser pursuant to, any note, bond, mortgage, indenture, license, agreement
or other instrument or obligation, or (ii) subject to receipt of all required
governmental approvals, violate any order, writ, injunction, decree, statute,
rule or regulation applicable to Purchaser.
4.2 Legal Proceedings: Regulatory Approvals
---------------------------------------
To the best of Purchaser's knowledge, as of the date of Purchaser's
execution and delivery of this Agreement, there are no actual actions, suits or
proceedings which present a claim to restrain or prohibit the transactions
contemplated herein. No fact or condition relating to Purchaser known to
Purchaser exists that would prohibit Purchaser from obtaining all of the
regulatory approvals contemplated herein.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BANCORP
-----------------------------------------
5.1 Authorized and Effective Agreement
----------------------------------
(a) Bancorp has all requisite corporate power and authority to enter
into and to perform all of its obligations
5
<PAGE>
under this Agreement. The execution and delivery of this Agreement and
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action in respect thereof on the part of
Bancorp. This Agreement constitutes a legal, valid and binding obligation of
Bancorp, which is enforceable against Bancorp in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, receivership or
conservatorship and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(b) Neither the execution and delivery of this Agreement nor
consummation of the transactions contemplated hereby, nor compliance by Bancorp
with any of the provisions hereof, shall (i) conflict with or result in a breach
of any provision of the Certificate of Incorporation or By-laws of Bancorp, (ii)
constitute or result in a breach of any term, condition or provision of, or
constitute a default under, or give rise to any Distribution Date with respect
to, the Bancorp Rights Agreement or any related documents, or (iii) subject to
receipt of all required governmental approvals, violate any order, writ,
injunction, decree, statute, regulation applicable to Bancorp.
5.2 Legal Proceedings
-----------------
To the best of Bancorp's knowledge, as of the date of Bancorp's
execution and delivery of this Agreement, there are no actual pending actions,
suits or proceedings which present a claim to restrain or prohibit the
transactions contemplated herein.
ARTICLE VI
CONDITIONS PRECEDENT
--------------------
6.1 Condition Precedent to Purchaser's Execution of this
----------------------------------------------------
Agreement
---------
Purchaser's execution of this Agreement shall be subject to the
receipt by Purchaser and Seller of the opinion of Covington & Burling that the
execution, delivery and performance of the Stock Purchase Agreement and
consummation of the Tender Offer shall not result in the Purchaser or any of his
Permitted Assignees (as defined by the Stock Purchase Agreement) or any of their
"Affiliates" or "Associates" becoming an "Acquiring Person" or an "Adverse
Person" (as such terms are defined by the Bancorp Rights Agreement) under the
Bancorp Rights Agreement or enable or require any Rights under the Bancorp
Rights Agreement to become exercisable, and that a "Distribution Date" (as such
term is defined in the Bancorp Rights Agreement) will not occur as a result of
the execution, delivery and performance of the Stock
6
<PAGE>
Purchase Agreement or the announcement or consummation of the Tender Offer, such
opinion to be in form and substance satisfactory to Seller, Purchaser and their
respective counsel.
6.2 Conditions Precedent - Purchaser
--------------------------------
The obligations of the Purchaser to effect the Tender Offer as
contemplated by Section 2.1 of this Agreement shall be subject to satisfaction
of the following additional conditions at or immediately prior to the Initial
Closing Date of the Acquisition under the Stock Purchase Agreement unless waived
by Purchaser pursuant to Section 7.3 hereof:
(a) The representations and warranties of Bancorp set forth in Section
5.1 hereof shall be true and correct in all material respects as of the date of
this Agreement and as of such Initial Closing Date as though made on and as of
such Initial Closing Date, except as otherwise expressly provided in this
Agreement or consented to in writing by Purchaser.
(b) Purchaser shall have consummated the Acquisition.
(c) Bancorp shall have in all material respects performed all
obligations and complied with all covenants required or made by it in this
Agreement.
(d) Bancorp shall have delivered to Purchaser and Seller a
certificate, dated as of the Initial Closing Date and signed by its authorized
representative, stating that to the (i) best of such person's knowledge the
conditions set forth in Section 6.2(c) have been satisfied; and (ii) since the
date of execution of this Agreement the Bancorp Rights Agreement has not been
amended or altered in any fashion, (iii) since the date of the certificate of
Bancorp directors and officers referred to and relied upon in the opinion of
Covington & Burling described in Section 6.1 hereof, no change has occurred in
any of the matters and facts set forth in such certificate.
ARTICLE VII
TERMINATION, WAIVER AND AMENDMENT
---------------------------------
7.1 Termination
-----------
This Agreement shall terminate, without any further action on the part
of either party, effective immediately upon the termination of the Stock
Purchase Agreement prior to the Initial Closing Date and may be terminated as
follows:
(a) At any time by the mutual consent in writing of the parties
hereto.
7
<PAGE>
(b) At any time, by Purchaser in writing if Bancorp has, or by Bancorp
in writing if Purchaser has, in any material respect, breached (i) any covenant
or undertaking contained herein or (ii) any representation or warranty contained
herein, which breach has been materially adverse, and in the case of (i) or (ii)
such breach has not been cured by the earlier of 30 days after the date on which
written notice of such breach is given to the party committing such breach or
the Initial Closing Date; provided that neither party may terminate this
Agreement pursuant to this Section 7.1(b) if at such time such party has, in any
material respect, breached (i) any covenant or undertaking contained herein or
(ii) any representation or warranty contained herein and, in either case, such
breach has not been cured in all material respects.
7.2 Effect of Termination
---------------------
In the event this Agreement is terminated pursuant to Section 7.1
hereof, this Agreement shall become void and have no effect.
7.3 Waiver
------
Except with respect to any required regulatory approval, each party
hereto, by written instrument signed by an authorized officer of such party, may
at any time extend the time for the performance of any of the obligations or
other acts of the other party hereto and may waive (i) any inaccuracies of the
other party in the representations or warranties contained in this Agreement or
any document delivered pursuant hereto, (ii) compliance with any of the
covenants, undertakings or agreements of the other party, or satisfaction of any
of the conditions precedent to its obligations, contained herein or (iii) the
performance by the other party of any of its obligations set out herein. No
waiver or extension shall be effective unless it is in writing signed by the
party granting such waiver or extension.
7.4 Amendment or Supplement
-----------------------
This Agreement may be amended or supplemented in writing at any time
by mutual agreement of Purchaser and Bancorp. No modification or amendment of,
or supplement to, this Agreement shall be effective unless signed by the party
to be bound by such modification, amendment or supplement.
8
<PAGE>
ARTICLE VIII
MISCELLANEOUS
-------------
8.1 Expenses
--------
Except as provided elsewhere in this Agreement, each party shall bear
and pay all fees, expenses and costs that it incurred in connection with the
transactions contemplated by this Agreement, without limitation, fees and
expenses of its own financial consultants, accountants and counsel.
8.2 Entire Agreement
----------------
This Agreement contains the entire agreement between the parties with
respect to the transactions contemplated hereunder and supersedes all prior
arrangements or understandings with respect thereto, written or oral, with
respect to the subject matter hereof. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the parties hereto, and their
respective successors and Permitted Assignees. Nothing in this Agreement,
expressed or implied, is intended to confer upon any party, other than the
parties hereto, and their successors, any rights, remedies, obligations or
liabilities.
8.3 No Assignment
-------------
Neither of the parties hereto may assign any of its rights or
obligations under this Agreement to any other person without the prior written
consent of the non-assigning party.
8.4 Notices
-------
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally or sent by
overnight express, or by registered or certified mail, postage prepaid,
addressed as follows:
If to Bancorp:
Abigail Adams National Bancorp, Inc.
1627 K Street, N.W.
Washington, DC 20006
Attention: Barbara Davis Blum
9
<PAGE>
With a required copy to:
Covington & Burling
1201 Pennsylvania Avenue, N.W.
P. O. Box 7566
Washington, DC 20044
Attention: D. Michael Lefever, Esquire
If to Purchaser:
Marshall T. Reynolds
P. O. Box 4040
Huntington, West Virginia 25729
With a required copy to:
Huddleston, Bolen, Beatty, Porter & Copen
611 Third Avenue
P. O. Box 2185
Huntington, West Virginia 25722-2185
Attention: Thomas J. Murray, Esquire
8.5 Captions
--------
The captions contained in this Stock Purchase Agreement are for
reference purposes only and are not part of this Agreement.
8.6 Counterparts
------------
This Agreement may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
IN WITNESS WHEREOF, the corporate party has caused this Agreement to
be executed in counterparts by its duly authorized officers and its corporate
seal to be hereunto affixed and attested by its officers thereunto duly
authorized, and the individual party has signed his name, all as of the day and
year first above written.
10
<PAGE>
ABIGAIL ADAMS NATIONAL BANCORP, INC.
By: /s/ Barbara Davis Blum
-----------------------
Its: Chairwoman and CEO
------------------
/s/ Marshall T. Reynolds
------------------------
MARSHALL T. REYNOLDS
c:\h&r\a-adams8.agr
11
<PAGE>
EXHIBIT A
STOCK PURCHASE AGREEMENT
------------------------
STOCK PURCHASE AGREEMENT ("Stock Purchase Agreement" or "Agreement")
dated as of April 21, 1995, between CITIBANK, N.A. (the "Seller"), a national
banking association, and MARSHALL T. REYNOLDS (the "Purchaser").
W I T N E S S E T H
-------------------
WHEREAS, the Seller has made a loan (the "Loan"), pursuant to a Loan
Agreement ("Loan Agreement") dated August 24, 1988, to Mark G. Griffin, the E.A.
Griffin Trust, Barbara D. Blum, Richard W. Naing, Maria L. Naing and the Wynmark
Trust (collectively, "Borrowers");
WHEREAS, payment of the Loan is secured by the pledge by the Borrowers
to the Seller of 203,038 shares (the "Shares") of the common stock, par value
$10.00 per share ("Bancorp Common Stock") of Abigail Adams National Bancorp,
Inc. ("Bancorp");
WHEREAS, one or more events of default have occurred and are
continuing under the Loan Agreement;
WHEREAS, the Seller has, or will have as of the Initial Closing (as
defined in Section 2.1(a) hereof), full right, power and authority to sell,
pursuant to Section 9-504 of the New York Uniform Commercial Code ("UCC"), at
least 191,932 of the Shares to Purchaser;
WHEREAS, the Seller wishes to sell all of the Shares to Purchaser, and
Purchaser wishes to purchase and acquire, in a UCC sale, all of the Shares from
the Seller (the "Acquisition"), all on the terms set forth herein; and
WHEREAS, the parties desire to provide for certain undertakings,
conditions, representations, warranties and covenants in connection with the
transactions contemplated hereby;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto do hereby agree as
follows:
ARTICLE I
DEFINITIONS
"Adams" shall mean Adams National Bank, N.A., a national banking
association and a wholly owned, direct subsidiary of Bancorp.
<PAGE>
"Applicable Number of Shares" shall mean the greater of (i) the
maximum number of Shares that the Seller has the full right, power and authority
to sell and deliver to Purchaser as of the Initial Closing and (ii) 191,932 of
the Shares.
"Appropriate Federal Regulator" shall mean in the case of Adams, the
OCC, and in the case of Bancorp, the Federal Reserve Board or the Federal
Reserve Bank of Richmond.
"Bancorp Agreement" shall mean an agreement between Purchaser and
Bancorp executed prior hereto, a copy of which is attached hereto as Exhibit A,
pursuant to which, among other things, (a) Purchaser will provide an opportunity
to the stockholders of Bancorp (other than Seller) to receive $21.00 per share
in cash for the shares of Bancorp Common Stock held by them (defined therein as
the "Tender Offer"); and (b) Bancorp (i) agrees to take all actions necessary so
that the execution, delivery and performance of this Agreement and consummation
of the Acquisition as contemplated by this Agreement and the Tender Offer do not
and will not result in Purchaser, any of his Permitted Assignees, or any of
their "Affiliates" or "Associates" becoming an "Acquiring Person" or an "Adverse
Person" (as such terms are defined in the Bancorp Rights Agreement) under the
Bancorp Rights Agreement or enable or require any Rights under the Bancorp
Rights Agreement to become exercisable or otherwise cause or give rise to the
occurrence of a "Distribution Date" as such term is defined in the Bancorp
Rights Agreement, (ii) agrees not to take any action to oppose or impede
consummation of the Acquisition, and (iii) agrees to take all actions necessary
so that the execution and delivery of this Agreement, consummation of the
Acquisition and consummation of the Tender Offer do not constitute a "Change in
Control" under the terms of any of the severance agreements referenced in Item 5
of Bancorp's Form 8-K report dated April 27, 1994 or otherwise cause any of the
rights or benefits of the employees under such severance agreements to become
exercisable or triggered.
"Bancorp Rights Agreements" shall mean the Rights Agreement dated as
of April 12, 1994 between Bancorp and The First National Bank of Maryland, as
Rights Agent, as such may be amended from time to time.
"Business Day" shall mean any day other than Saturday, Sunday or a day
on which commercial banks located either in the District of Columbia or the City
of New York are required or permitted to be closed.
2
<PAGE>
"Closing Date" shall mean the Initial Closing Date or a Subsequent
Closing Date, as applicable, each as defined in Section 2.1 hereof.
"Commission" shall mean the Securities and Exchange Commission.
"Closing Deadline" shall mean the later of (a) the close of business
on July 21, 1995; or (b) such other date as may be applicable pursuant to
Section 2.1(b) of this Agreement.
"Deposit" shall have the meaning specified in Section 2.2 hereof.
"Designated Account" shall mean an account of the Seller at a
commercial bank that is designated in a written notice provided to Purchaser at
least two Business Days prior to the Closing Date or other payment date.
"Escrowed Funds" shall have the meaning specified in Section 2 of the
Escrow Agreement attached hereto as Exhibit B.
"FDIA" shall mean the Federal Deposit Insurance Act, as amended.
"FDIC" shall mean the Federal Deposit Insurance Corporation, or any
successor thereto.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System.
"Material Adverse Change" shall mean an event or condition described
in Section 6.3(e) of this Agreement that has occurred and is continuing at a
time and under circumstances described in Section 6.3(e) of this Agreement.
"OCC" shall mean the Office of the Comptroller of the Currency.
"Previously Disclosed" shall mean disclosed on or prior to the date
hereof in a letter from the party making such disclosure specifically referring
to this Agreement and delivered to the other party.
"Purchase Price" shall mean an amount equal to (i) $17.00 multiplied
by (ii) the Applicable Number of Shares.
"Remaining Shares" shall mean any of the Shares that are not sold and
delivered to Purchaser at the Initial Closing.
3
<PAGE>
Other terms used herein are defined in the preamble and elsewhere in
this Agreement.
ARTICLE II
PURCHASE AND SALE OF SHARES
2.1 Acquisition of Shares
---------------------
(a) The transactions contemplated by this Agreement shall be
consummated at a Closing (the "Initial Closing") to be held at the offices of
Covington & Burling, 1201 Pennsylvania Avenue, Washington, DC, or such other
place which shall be agreed to by the Seller and Purchaser, on the earlier of
(i) the date on which all conditions precedent contained in this Agreement have
been satisfied, but in no event later than the third Business Day following the
date on which the condition specified in Section 6.3(d) has been satisfied or
(ii) the Closing Deadline, or on such other date as the Seller and Purchaser may
agree in writing (the "Initial Closing Date"). Notwithstanding the foregoing,
unless the Seller and Purchaser otherwise agree in writing, the Initial Closing
shall take place no later than the Closing Deadline (as such may be extended
pursuant to Section 2.1(b) of this Agreement).
(b) Unless extended pursuant to this Section 2.1(b) or pursuant to the
written agreement of the parties as provided in Section 7.4, the Closing
Deadline for the Initial Closing Date shall be July 21, 1995. Provided that
Purchaser has satisfied the conditions set forth in this Section 2.1(b),
Purchaser shall have the right to extend the Closing Deadline one time (an
"Extension Right"), for an additional thirty day period (an "Extension Period").
An Extension Right may be exercised by Purchaser only if (i) as of the
commencement of the Extension Period the Seller does not have the right to
terminate this Agreement pursuant to Section 7.1(b) of this Agreement; (ii)
Purchaser has not received any regulatory disapproval or denial in connection
with this Agreement; (iii) the condition specified in Section 6.3(d) has not
been satisfied; (iv) Purchaser shall have notified Seller in writing of its
intent to exercise the Extension Right not more than ten days prior to the
Closing Deadline; (v) Purchaser shall have made a payment (an "Extension
Payment") in the amount of $50,000.00 in immediately available funds not later
than five days prior to the Closing Deadline to the Designated Account, or if no
Designated Account has been designated by Seller, by check payable to Seller. No
Extension Right may be exercised until the period commencing ten days prior to
the applicable Closing Deadline. Purchaser's notice of intent to exercise the
Extension Right shall state the reasons for the exercise of such Extension
Right.
4
<PAGE>
(c) At the Initial Closing, upon satisfaction of the conditions
contained in Article VI hereof, the Seller shall sell and deliver to Purchaser,
and Purchaser shall purchase from the Seller, the Applicable Number of Shares,
and in exchange therefor Purchaser shall pay to the Seller, by application of
the Escrowed Funds and wire transfer to the Designated Account or by check if no
Designated Account has been designated by the Seller, an amount equal to the
Purchase Price. At the Initial Closing, the Seller shall deliver to Purchaser
certificates representing the Applicable Number of Shares, together with duly
executed stock powers filled in blank, and shall take all reasonable actions at
the Initial Closing and thereafter (excluding delivering any legal opinions), at
the request of Purchaser, necessary to accomplish the transfer of the Applicable
Number of Shares to Purchaser.
(d) During the six month period following the Initial Closing, Seller
shall, within three Business Days after the time at which it obtains the full
right, power and authority to sell and deliver any of the Remaining Shares to
Purchaser, deliver a written notice ("Remaining Shares Notice") to Purchaser
specifying the number of Remaining Shares as to which it has obtained full
right, power and authority to sell and deliver to Purchaser. A closing (a
"Subsequent Closing") with respect to such Shares shall be held within twenty
(20) Business Days after Seller so notifies Purchaser (such date being a
"Subsequent Closing Date"). Provided, however, that if the Remaining Shares
Notice is given at any time after Purchaser has publicly announced a tender
offer for Bancorp Common Stock and before expiration of the period, including
extensions, during which shares of Bancorp Common Stock tendered thereunder may
be accepted or rejected, the Subsequent Closing Date shall be postponed until
after expiration of such period or such other time as Purchaser may purchase the
Remaining Shares covered by such Remaining Shares Notice consistent with
applicable law and regulations, and Seller covenants and agrees that it shall
not tender any Remaining Shares pursuant to any such tender offer. At any
Subsequent Closing, upon satisfaction of the conditions contained in Article VI
hereof, the Seller shall sell and deliver to Purchaser, and Purchaser shall buy
and accept from Seller, the number of Remaining Shares specified in the
applicable Remaining Shares Notice by delivering to Purchaser certificates
representing such Shares, together with duly executed and witnessed stock powers
filled in blank, and Purchaser shall pay to the Seller, by wire transfer to the
Designated Account or by
5
<PAGE>
check if no Designated Account has been designated by the Seller, an amount
equal to the number of Remaining Shares being sold to Purchaser at such
Subsequent Closing multiplied by $17.00.
2.2 Deposit
-------
Concurrently with execution by Purchaser and Seller of this Agreement,
Purchaser shall deliver to Citizens Bank of Maryland, Trust Department, 14401
Sweitzer Lane, Laurel, Maryland 20707 (or another financial institution
reasonably acceptable to the parties hereto) as escrow agent (the "Escrow
Agent"), $325,000 in immediately available funds (the "Deposit"), and Purchaser
and the Seller concurrently herewith shall execute and deliver the Escrow
Agreement substantially in the form attached hereto as Exhibit B (the "Escrow
Agreement"). The Deposit shall be held and distributed by the Escrow Agent in
accordance with the Escrow Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Except as Previously Disclosed, the Seller hereby represents and
warrants to Purchaser as follows:
3.1 Organization, Good Standing and
Authority of the Seller
-----------------------
The Seller is a national bank duly organized, validly existing and in
good standing under the laws of the United States.
3.2 Warranty of Title to the Shares
-------------------------------
(a) The Seller has, or will have as of the Initial Closing, the
ability to transfer valid title to the Applicable Number of Shares to Purchaser,
pursuant to Section 9-504 of the UCC and, upon their transfer to Purchaser
pursuant to Section 2.1, Purchaser will have valid title to the Applicable
Number of Shares free and clear of any pledges, liens, security interests,
options, restrictions on transfer or other encumbrances, other than those
imposed through acts of Purchaser or by applicable State or Federal securities
laws, rules or regulations.
(b) Upon the transfer to Purchaser of any Remaining Shares pursuant to
Section 2.1 of this Agreement, Purchaser will have valid title to such Remaining
Shares free and clear of any pledges, liens, security interests, options,
restrictions on transfer or other encumbrances, other than those imposed through
acts of Purchaser or by applicable State or Federal securities laws, rules or
regulations.
6
<PAGE>
3.3 Authorized and Effective Agreement
----------------------------------
(a) The Seller has all requisite corporate power and authority to
enter into and to perform all of its obligations under this Agreement. As of the
date hereof, the Seller has all requisite corporate power and authority to hold
the Shares as collateral for the Loan. The execution and delivery of this Stock
Purchase Agreement and consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action in respect
thereof on the part of the Seller. This Stock Purchase Agreement constitutes a
legal, valid and binding obligation of the Seller, which is enforceable against
the Seller in accordance with its terms, subject, as to enforceability, to
bankruptcy, insolvency, receivership or conservatorship and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
(b) Neither the execution and delivery of this Stock Purchase
Agreement nor consummation of the transactions contemplated hereby, nor
compliance by the Seller with any of the provisions hereof shall (i) conflict
with or result in a breach of any provision of the articles of association or
by-laws of Seller, (ii) constitute or result in a breach of any term, condition
or provision of, or constitute a default under, or give rise to any right of
termination, cancellation or acceleration with respect to, the Loan Agreement or
any related documents, or (iii) subject to receipt of all required governmental
approvals, violate any order, writ, injunction, decree, statute, regulation
applicable to the Seller.
3.4 Legal Proceedings
-----------------
To the best of the Seller's knowledge (Seller having no duty of
inquiry) as of the date of Seller's execution and delivery of this Agreement,
there are no actual pending actions, suits or proceedings which present a claim
to restrain or prohibit the transactions contemplated herein, except for
Delaware Court of Chancery proceedings C.A. 13464 and C.A. 13810.
3.5 SELLER'S DISCLAIMER OF REPRESENTATIONS
AND WARRANTIES
--------------
PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY STATED IN
THIS AGREEMENT, SELLER HAS NOT MADE, DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS
ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES
OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING OR WITH RESPECT TO
BANCORP, ADAMS OR THE SHARES.
7
<PAGE>
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION
PROVIDED OR TO BE PROVIDED TO PURCHASER WITH RESPECT TO BANCORP, ADAMS OR THE
SHARES WAS OR WILL BE OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT
MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES
NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS, APPRAISALS, EVALUATIONS, REPORTS OR OTHER
INFORMATION PERTAINING TO BANCORP, ADAMS OR THE SHARES AS MAY HAVE BEEN
FURNISHED TO PURCHASER BY SELLER OR ITS AGENTS OR REPRESENTATIVES.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT
PERMITTED BY LAW, THE SALE OF THE SHARES AS PROVIDED IN THIS AGREEMENT IS MADE
WITHOUT RECOURSE ON AN "AS IS", "WHERE IS" CONDITION AND BASIS WITH ALL FAULTS
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN THIS
ARTICLE III. IT IS UNDERSTOOD AND AGREED THAT THE SHARES WILL BE SOLD BY SELLER
AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN THIS ARTICLE III.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT IT IS AWARE THAT THE
SHARES (A) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT") OR ANY OTHER STATE OR FEDERAL SECURITIES STATUTE, THAT BANCORP HAS
NO OBLIGATION OR INTENTION TO REGISTER THE SHARES, OR TO TAKE ANY ACTION SO AS
TO PERMIT SALES PURSUANT TO THE ACT, AND THAT SELLER HAS NO OBLIGATION OR
INTENTION TO CAUSE THE SHARES TO BE REGISTERED OR TO TAKE ANY ACTION SO AS TO
PERMIT SALES PURSUANT TO THE ACT, (B) WILL NOT BE LISTED ON ANY STOCK OR OTHER
SECURITIES EXCHANGE, (C) WILL CARRY NO RATING BY ANY RATING SERVICE, AND (D)
WILL NOT BE READILY MARKETABLE. PURCHASER UNDERSTANDS THAT BECAUSE OF THE ACT,
PURCHASER WILL BE PRECLUDED FROM MAKING ANY TRANSFER OR OTHER DISPOSITION OF ANY
OF THE SHARES FOR AN INDEFINITE PERIOD UNLESS A SPECIFIC EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE WITH RESPECT TO ANY PARTICULAR
TRANSACTION OR UNLESS THE SHARES HAVE BEEN REGISTERED PURSUANT TO THE ACT.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THE SHARES WILL BEAR AN
APPROPRIATE RESTRICTIVE LEGEND TO THE EFFECT THAT THE SHARES MAY NOT BE SOLD OR
TRANSFERRED WITHOUT REGISTRATION OR THE AVAILABILITY OF A VALID EXEMPTION FROM
REGISTRATION, AND THAT AN ACCEPTABLE OPINION OF COUNSEL MAY BE REQUIRED BY THE
ISSUER.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Except as Previously Disclosed, Purchaser hereby represents and
warrants to the Seller as follows:
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4.1 Authorized and Effective Agreement
----------------------------------
(a) Purchaser has all requisite power and authority to enter into and
perform all of its obligations under this Stock Purchase Agreement. The
execution and delivery of this Stock Purchase Agreement and consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action in respect thereof on the part of Purchaser. This Stock
Purchase Agreement constitutes a legal, valid and binding obligation of
Purchaser, enforceable against it in accordance with its terms subject, as to
enforceability, to bankruptcy, insolvency and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. Purchaser's consummation of the transactions contemplated by this
Agreement is not contingent upon financing.
(b) Neither the execution and delivery of this Stock Purchase
Agreement, nor consummation of the transactions contemplated hereby, nor
compliance by Purchaser with any of the provisions hereof shall (i) constitute
or result in a breach of any term, condition or provision of, or constitute a
default under, or give rise to any right of termination, cancellation or
acceleration with respect to, or result in the creation of any lien, charge or
encumbrance upon any property or asset of Purchaser pursuant to, any note, bond,
mortgage, indenture, license, agreement or other instrument or obligation, or
(ii) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Purchaser.
4.2 Legal Proceedings: Regulatory Approvals
---------------------------------------
To the best of Purchaser's knowledge as of the date of Purchaser's
execution and delivery of this Agreement, there are no actual actions, suits or
proceedings which present a claim to restrain or prohibit the transactions
contemplated herein. No fact or condition relating to Purchaser known to
Purchaser exists that would prohibit Purchaser from obtaining all of the
regulatory approvals contemplated herein.
4.3 Purchaser's Due Diligence
-------------------------
At the time of the execution of this Agreement, Purchaser shall have
made such examination, review and investigation of the facts and circumstances
necessary to evaluate Bancorp, Adams and the Shares as it has deemed necessary
or appropriate to form a basis for its decision to purchase the Shares.
Purchaser is assuming all risk with respect to the completeness, accuracy or
sufficiency of its examination, review and investigation. Purchaser has agreed
to the Purchase Price on the basis of its own independent investigation and
evaluation of
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Bancorp and Adams and has not sought or relied upon any representations,
warranties, information, covenants or agreements of Seller (other than the
express representations and warranties set forth in this Agreement).
4.4 Sophistication; Investment Intent; Legend
-----------------------------------------
Purchaser, his Permitted Assignees and their respective agents and
representatives have such knowledge and experience in financial and business
matters as to enable them to utilize the information made available to them in
connection with the purchases contemplated hereby, to evaluate the merits and
risks of an investment in Bancorp and to make an informed decision with respect
thereto. Purchaser and Permitted Assignees are acquiring the shares of Bancorp
common stock hereunder for their own account for investment only and not with a
view to making a distribution thereof within the meaning of the Securities Act
of 1933 (the "1933 Act"). Such shares will not be sold or transferred by
Purchaser or Permitted Assignees in violation of the securities laws of the
United States or any state thereof or other jurisdiction. Purchaser and
Permitted Assignees understand and agree that the certificate or certificates
representing such shares will bear a legend substantially to the effect set
forth below:
The securities represented by this certificate have not been
registered under either the Securities Act of 1933 (the "Act") or
applicable state or foreign securities laws (the "Other Acts")
and shall not be sold or otherwise disposed of for value by the
holder hereof except upon registration of such sale or
disposition in accordance with the securities registration
requirements of the Act or any applicable Other Acts, or pursuant
to an exemption from such registration requirements.
ARTICLE V
COVENANTS
5.1 Applications
------------
As promptly as practicable after the date hereof, Purchaser shall
submit applications for prior approval of the transactions contemplated herein
to the Federal Reserve Board, or any other federal, state or local government
agency, department or body the approval of which is required for consummation of
the Acquisition, and diligently pursue all such governmental approvals of such
applications. Except to the extent prohibited by law,
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rule, regulation or order, Seller shall, on specific request from Purchaser,
provide to Purchaser all non privileged, non-confidential documents in
possession, custody or control of the persons at Seller charged with
administering the Loan that are necessary for Purchaser to secure court or other
governmental approvals, and information in the possession, custody or control of
the persons at Seller charged with administering the Loan that would establish a
Material Adverse Change. Purchaser shall keep Seller reasonably informed
regarding the status of Purchaser's efforts to obtain regulatory approval of the
transactions contemplated by this Agreement. Without limiting the generality of
the foregoing, Purchaser shall inform Seller in writing within three (3)
business days of formal notice of (i) regulatory approval of the transaction;
(ii) regulatory disapproval of the transaction; or (iii) imposition of any
conditions to regulatory approval.
5.2 Best Efforts
------------
Purchaser and the Seller shall each use its best efforts in good faith
to take or cause to be taken all action necessary or desirable on its part so as
to permit consummation of the Acquisition, in accordance with the terms of this
Stock Purchase Agreement, at the earliest possible date. Neither Purchaser nor
the Seller shall take, or cause or unreasonably permit to be taken, any action
that would substantially delay or impair the prospects of completing the
Acquisition. On reasonable request by the other party, Purchaser and Seller
shall advise the other party of the status of its efforts to consummate the
Acquisition.
5.3 Press Releases
--------------
Purchaser and the Seller shall agree with each other as to the form
and substance of any press release related to this Stock Purchase Agreement or
the transactions contemplated hereby, and consult with each other as to the form
and substance of other public disclosures related thereto, other than those
required by any law, regulation, rule or order.
5.4 Forbearances of the Seller
--------------------------
Except with the prior written consent of Purchaser, between the date
hereof and the Closing Date, the Seller shall not enter into any binding
agreement concerning any acquisition of the Shares, other than an agreement that
is expressly a back-up agreement the effectiveness of which is expressly
conditioned on the termination of this Agreement pursuant to Section 7.1 hereof.
11
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5.5 Brokers and Finders
-------------------
Each party shall be responsible for any liability for any fees or
commissions or other payments in connection with the transactions contemplated
herein arising from claims by any broker, finder, financial advisor, attorney or
accountant it shall have engaged and shall indemnify the other party against
such liability. Purchaser has engaged Ferris, Baker Watts, Incorporated as its
financial advisor in connection with the transactions contemplated by this
Agreement. Seller has engaged no financial advisor in connection with the
transactions contemplated by this Agreement. Purchaser acknowledges that Bancorp
has engaged Baxter Fentriss and Company as its financial advisor, and that
Seller is not responsible for any fee or commission or other payments to Baxter
Fentriss and Company.
5.6 Release of National Bancshares, Inc.
------------------------------------
At the Initial Closing, upon satisfaction of the conditions set forth
in Article VI hereof, Seller and Purchaser shall execte and deliver a release of
claims against National Bancshares, Inc. ("NBI") and each of its directors
(collectively, the "NBI Group") and officers, employees and agents, in all
material respects in the form attached hereto as Exhibit C.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions Precedent -- Purchaser and the Seller
------------------------------------------------
The respective obligations of Purchaser and the Seller to effect the
transactions contemplated by this Agreement at any Closing Date shall be subject
to satisfaction or waiver by each party of the following conditions at or prior
to such Closing Date:
(a) Neither Purchaser nor the Seller shall be subject to any order,
decree or injunction of a court or agency of competent jurisdiction which
enjoins or prohibits consummation of the transactions contemplated by this Stock
Purchase Agreement.
(b) The NBI Group shall have executed and delivered an absolute and
unconditional release of any and all claims the NBI Group has or may have
against Seller, Bancorp, Adams, and Purchaser, and their respective directors,
officers, employees and agents, in all material respects in the form attached
hereto as Exhibit D, except that the foregoing release may exclude from coverage
and release thereunder any of Seller, Bancorp, Adams, Purchaser or any director
of Bancorp if such person or entity does
12
<PAGE>
not contemporaneously therewith execute a similar release in favor of the NBI
Group.
(c) Seller shall have executed and delivered, effective as of the
Initial Closing Date, an absolute and unconditional release of any and all
claims that Seller has or may have against Bancorp, Adams or any of their
respective affiliates, directors, officers, employees or agents related to any
action or inaction by any of them in connection with the Shares, the Seller's
efforts to sell the Shares, the Loan and any dealings, negotiations,
discussions, agreements or contracts between Seller and any party regarding the
Shares, Bancorp or Adams, such release to be in the form attached hereto as
Exhibit E; except that such release may exclude from coverage and release
thereunder any director of Bancorp who does not contemporaneously therewith
execute and deliver the release required by Section 6.2(g) (each director of
Bancorp who is entitled to a release hereunder is referred to herein as a
"Released Director").
(d) Prior to the execution hereof, Purchaser and Seller shall have
received the opinion of Covington & Burling that the execution, delivery and
performance of this Agreement and consummation of the Tender Offer shall not
result in the Purchaser, any of his Permitted Assignees, or any of their
"Affiliates" or "Associates" becoming an "Acquiring Person" or an "Adverse
Person" (as such terms are defined in the Bancorp Rights Agreement) under the
Bancorp Rights Agreement or enable or require any Rights under the Bancorp
Rights Agreement to become exercisable, such opinion to be in form and substance
satisfactory to Seller, Purchaser and their respective counsel.
(e) Purchaser and Bancorp shall have executed and delivered the
Bancorp Agreement and Bancorp shall have complied with all of its obligations
thereunder.
(f) Seller, Bancorp, Barbara D. Blum, Letitia P. Chambers, Shireen L.
Dodson, Susan Hager, Clarence L. James, Jr., Richard W. Naing and Dana B.
Stebbins shall have executed and delivered all motions or stipulations necessary
or appropriate to cause the dismissal with prejudice of that certain action
filed in the Court of Chancery of the State of Delaware in and for New Castle
County, captioned Citibank, N.A. v. Abigail Adams National Bancorp, Inc., et
al., C.A. No. 13464, including dismissal of all claims and counterclaims.
6.2 Conditions Precedent -- the Seller
----------------------------------
The obligations of the Seller to effect the transactions contemplated
by this Agreement at any Closing Date shall be subject to satisfaction of the
following additional conditions at
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or prior to such Closing Date unless waived by the Seller pursuant to Section
7.4 hereof:
(a) The representations and warranties of Purchaser set forth in
Article IV hereof shall be true and correct in all material respects as of the
date of this Agreement and as of such Closing Date as though made on and as of
such Closing Date (or on the date when made in the case of any representation
and warranty which specifically relates to an earlier date), except as otherwise
expressly provided in this Stock Purchase Agreement or consented to in writing
by the Seller.
(b) Purchaser shall have in all material respects performed all
obligations and complied with all covenants required by this Agreement.
(c) Purchaser shall have received all approvals of the transactions
contemplated herein from the Federal Reserve Board and any other state or
federal government agency, department or body, the approval of which is required
for the consummation of the Acquisition and all notice and waiting periods in
connection therewith shall have expired.
(d) Purchaser shall have delivered to the Seller a certificate, dated
as of such Closing Date and signed by its authorized representative, stating
that to the best of such person's knowledge the conditions set forth in Sections
6.2(a), 6.2(b), and 6.2(c) have been satisfied.
(e) Purchaser shall have delivered to Seller an opinion of Huddleston,
Bolen, Beatty, Porter & Copen, Huntington, West Virginia, that the sale of the
Shares by Seller to Purchaser and Purchaser's Permitted Assignees is exempt from
registration under the Securities Act of 1933, as amended.
(f) That there are no actions, suits, claims, governmental
investigations or procedures instituted or pending that present a claim to
restrain or prohibit the transactions contemplated herein.
(g) Bancorp and Adams each shall have executed and delivered to
Seller, effective as of the Initial Closing Date, an absolute and unconditional
release of any and all claims that it has or may have against Seller or any of
its affiliates, directors, officers, employees or agents relating to any action
or inaction by any of them in connection with the Shares, Seller's efforts to
sell the Shares, the Loan and any dealings, negotiations, discussions,
agreements or contracts between Seller and any party regarding the Shares,
Bancorp or Adams, such release to be in all material respects in the form
attached hereto as Exhibit F, and each Released Director of Bancorp shall have
14
<PAGE>
executed and delivered to Seller, effective as of the Initial Closing Date, an
absolute and conditional release in the same form and covering the same matters.
6.3 Conditions Precedent -- Purchaser
---------------------------------
The obligations of Purchaser to perform under Section 2.1 of this
Agreement shall be subject to satisfaction of the following additional
conditions at or prior to such Closing Date unless waived by Purchaser pursuant
to Section 7.4 hereof:
(a) The representations and warranties of the Seller set forth in
Article III hereof shall be true and correct in all material respects as of the
date of this Agreement and as of such Closing Date as though made on and as of
such Closing Date (or on the date when made in the case of any representation
and warranty which specifically relates to an earlier date), except as otherwise
contemplated by this Agreement or consented to in writing by Purchaser.
(b) The Seller shall have in all material respects performed all
obligations and complied with all covenants required by this Agreement.
(c) The Seller shall have delivered to Purchaser a certificate, dated
as of such Closing Date and signed by its authorized representative, stating
that to the best of such person's knowledge the conditions set forth in Sections
6.3(a) and 6.3(b) have been satisfied.
(d) Purchaser shall have received all regulatory approvals required in
connection with the transactions contemplated by this Stock Purchase Agreement,
all notice periods and waiting periods required after the granting of any such
approvals shall have passed, all such approvals shall be in effect and all
conditions precedent imposed by such approvals shall have been satisfied;
provided, however, that no such approval shall have imposed any condition or
requirement that, in the reasonable opinion of Purchaser, would so materially
and adversely affect the business or economic benefits of the transactions
contemplated by this Agreement as to render consummation of such transactions
unduly burdensome.
(e) No Material Adverse Change shall have occurred and be continuing.
A Material Adverse Change shall be deemed to have occurred only if:
(i) The Appropriate Federal Regulator for Bancorp or Adams shall
have issued a determination by March 31, 1995, based on the reported
financial condition of
15
<PAGE>
Bancorp or Adams on or before March 31, 1995, that Adams or Bancorp is
"undercapitalized" within the meaning of such regulator's prompt
corrective action regulations promulgated pursuant to Section 38 of
the FDIA;
(ii) The Appropriate Federal Regulator for Bancorp or Adams shall
have issued a prompt corrective action order by March 31, 1995 and
Adams or Bancorp shall have failed to comply with such order within
the time specified in such order or, if no time is specified, within a
reasonable time;
(iii) Adams or Bancorp shall have been notified on or before
March 31, 1995 by its Appropriate Federal Regulator that it is in an
unsafe and unsound condition or is engaging in an unsafe and unsound
practice, and Adams or Bancorp shall have failed to cure such
condition or cease such practice within the time set by such regulator
or, if no time is set, within a reasonable time;
(iv) On or before March 31, 1995, Adams or Bancorp shall have
entered into a written agreement with its Appropriate Federal
Regulator materially limiting its ability to engage in its principal
business activities;
(v) On or before March 31, 1995, the insurance of Adams' deposits
by the FDIC shall have been suspended or terminated; or
For the purpose of subsection (ii) and (iii), above, in the event that
the time in which an order may be complied with or a cure may be effected has
not expired as of the Closing Date, no "Material Adverse Change" shall be deemed
to have occurred, and Purchaser, not the Seller, shall bear the risk of
Bancorp's and/or Adams' compliance or non-compliance with such order, provided,
however, that in the event that a Material Adverse Change is deemed not to have
occurred because the time in which to comply with an order or effect a cure has
not expired, then Purchaser shall be entitled to a refund from Seller in an
amount equal to the lesser of (a) the total amount of Extension Payments as may
have been paid to Seller or (b) the reasonable and actual cost of effectuating
the required cure or complying with the regulator's order.
Purchaser shall provide a written notice to the Seller promptly after
Purchaser obtains actual knowledge of facts constituting a Material Adverse
Change describing such facts in reasonable detail (a "MAC Notice").
16
<PAGE>
(f) That there are no actions, suits, claims, governmental
investigations or procedures instituted or pending that present a claim to
restrain or prohibit the transactions contemplated herein, other than Delaware
Chancery Court proceeding C.A. 13810.
(g) Upon acquisition of the Shares by Purchaser pursuant to this
Agreement, Purchaser shall own at the Initial Closing at least 67.4% and at any
Subsequent Closing at least 70% of the outstanding voting stock and equity
interest in Bancorp, which shall own 100% of the outstanding voting stock and
equity interest in Adams and there shall be no outstanding rights or options
held by any person or entity the exercise of which could result in a dilution of
the ownership interests of Purchaser in Bancorp or Bancorp in Adams.
ARTICLE VII
TERMINATION, WAIVER, AMENDMENT AND INDEMNIFICATION
7.1 Termination
-----------
This Agreement may be terminated:
(a) At any time by the mutual consent in writing of the parties
hereto.
(b) At any time, by Purchaser in writing if the Seller has, or by the
Seller in writing if Purchaser has, in any material respect, breached (i) any
covenant or undertaking contained herein or (ii) any representation or warranty
contained herein, which breach has been materially adverse, and in the case of
(i) or (ii) such breach has not been cured by the earlier of 30 days after the
date on which written notice of such breach is given to the party committing
such breach or a Closing Date; provided that neither party may terminate this
Agreement pursuant to this Section 7.1(b) if at such time such party has, in any
material respect, breached (i) any covenant or undertaking contained herein or
(ii) any representation or warranty contained herein and such breach has not
been cured in all material respects.
(c) At any time by either party hereto if there shall have been a
final regulatory determination (as to which all periods for appeal, request for
reconsideration and judicial review shall have expired and no appeal, request
for reconsideration or petition for judicial review shall be pending) denying
any regulatory application the approval of which is a condition precedent to
either party's obligations hereunder, or approving such application with
conditions that, in the reasonable opinion of Purchaser, are unduly burdensome.
17
<PAGE>
(d) By Purchaser in the event a Material Adverse Change has occurred
and is continuing as of the Initial Closing Date;
(e) At any time by either party hereto if there shall have been a
final judicial determination in an action brought by a person or entity that is
not a party hereto, acting in concert with a party hereto or a shareholder of
Purchaser (as to which all periods for appeal shall have expired and no appeal
shall be pending) that any material provision of this Agreement is illegal,
invalid, or unenforceable.
(f) By Seller in writing, if the Initial Closing Date has not occurred
by the Closing Deadline, as it may be extended pursuant to Section 2.1(b), but
only if Purchaser is not entitled at such time to terminate this Agreement
pursuant to Section 7.1(b) (ignoring for such purpose any unexpired cure period
relating to a breach by the Seller specified therein).
(g) By the Seller if (i) it has received a MAC Notice from Purchaser,
(ii) Purchaser has not terminated this Agreement within ten Business Days after
the date (the "MAC Notice Date") such MAC Notice was delivered to the Seller by
Purchaser, (iii) the Seller delivers a written notice of termination (a "Seller
Notice") to Purchaser within 20 Business Days after the MAC Notice Date and (iv)
Purchaser has not, within five Business Days after its receipt of a Seller
Notice, waived its right to terminate this Agreement or refuse to consummate the
transactions contemplated hereby based solely upon the Material Adverse Change
specified in such MAC Notice.
(h) By the Seller or Purchaser, in writing, if the Deposit is not
delivered to the Escrow Agent and the Escrow Agreement is not executed by the
Seller, Purchaser and the Escrow Agent within the time period specified by
Section 2.2 hereof.
(i) By the Seller or Purchaser, in writing, if the Borrowers or any of
them or any of their successors or assigns, exercises any rights under the
documentation pertaining to the Loan, as in effect on the date hereof, to redeem
or repurchase more than 11,106 of the Shares.
(j) By the Seller or Purchaser, in writing, if the Federal Reserve
Board or the Federal Reserve Bank of New York takes any action under, or Seller
reasonably determines that Seller must take action to comply with Section
2(a)(5)(D) of the Bank Holding Company Act of 1956, as amended, that renders the
Seller unable to transfer or cause the transfer of the Applicable Number of
Shares to Purchaser.
18
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(k) By Purchaser if it concludes that, upon consummation of the
Acquisition, Purchaser will own less than 70% of the outstanding voting stock
and equity interest in Bancorp, Bancorp will own less than 100% of the
outstanding voting stock and equity interest in Adams or there are outstanding
rights or options held by any person or entity that could result in a dilution
of the ownership interests of Purchaser in Bancorp or Bancorp in Adams.
(l) By Purchaser or Seller in the event Bancorp fails to comply with
all of its obligations under the Bancorp Agreement.
(m) By Purchaser or Seller in the event the conditions specified in
Section 6.1 have not been satisfied by the Closing Deadline or the expiration of
the Extension Period; provided, however, that Purchaser may terminate this
Agreement under this subsection (m) only if the conditions specified in Section
6.3(d) have been satisfied.
7.2 Effect of Termination.
----------------------
In the event this Agreement is terminated pursuant to Section 7.1
hereof, this Agreement shall become void and have no effect, except that (i) the
provisions of Article 8 in their entirety and, with respect to any termination
after the Initial Closing, any provisions (other than Section 2.1(d)) that by
their terms survive the Initial Closing shall survive any such termination, (ii)
subject to Section 8.10 of this Agreement, a termination pursuant to Section
7.1(b) shall not relieve the breaching party from liability for an uncured
breach of the covenant, undertaking, representation or warranty giving rise to
such termination and (iii) a termination after the Initial Closing shall not
invalidate or otherwise affect any transactions consummated prior to the date of
such termination.
7.3 Survival of Representations,
Warranties and Covenants
------------------------
All representations, warranties and covenants in this Agreement shall
expire on, and be terminated and extinguished at, each Closing Date with respect
to any transactions consummated on such Closing Date other than covenants that
by their terms are to be performed after such Closing Date, provided that no
such representations, warranties or covenants shall be deemed to be terminated
or extinguished so as to deprive Purchaser or the Seller (or any director,
officer or controlling person thereof) of any defense at law or in equity which
otherwise would be available against the claims of any person, including,
without limitation, any shareholder or former shareholder of either Purchaser or
the Seller or Bancorp, the aforesaid representations, warranties and
19
<PAGE>
covenants being material inducements to consummation by Purchaser and the Seller
of the transactions contemplated herein.
7.4 Waiver
------
Except with respect to any required regulatory approval, each party
hereto by written instrument signed by an authorized officer of such party, may
at any time extend the time for the performance of any of the obligations or
other acts of the other party hereto and may waive (i) any inaccuracies of the
other party in the representations or warranties contained in this Agreement or
any document delivered pursuant hereto, (ii) compliance with any of the
covenants, undertakings or agreements of the other party, or satisfaction of any
of the conditions precedent to its obligations, contained herein or (iii) the
performance by the other party of any of its obligations set out herein. No
waiver or extension shall be effective unless it is in writing signed by the
party granting such waiver or extension.
7.5 Amendment or Supplement
-----------------------
This Agreement may be amended or supplemented in writing at any time
by mutual agreement of Purchaser and the Seller. No modification or amendment
of, or supplement to, this Agreement shall be effective unless signed by the
party to be bound by such modification, amendment or supplement.
7.6 Indemnification
---------------
(a) From and after the Initial Closing, the Seller shall indemnify
Purchaser for claims made by, or liability in favor of, any of the Borrowers on
account of such Borrowers' rights or remedies under the Loan Agreement or
applicable bankruptcy or creditors rights laws. From and after the Initial
Closing, Purchaser shall indemnify the Seller for claims made by, or liability
in favor of, any shareholder of Bancorp or Adams (including all past, present or
future shareholders of Bancorp or Adams), other than Borrowers, arising from or
in connection with: (i) any action or inaction by Purchaser in connection with
Bancorp or Adams following the Initial Closing or (ii) in connection with the
Bancorp Rights Agreement or any amendment or modification thereto.
(b) If any action or proceeding (each a "Claim") is brought or
asserted against either party ("Indemnified Party") in respect of which
indemnification may be sought under Section 7.6(a), the Indemnified Party shall
promptly notify such other party ("Indemnifier") in writing of the existence of
such Claim, describe the Claim in reasonable detail and indicate the amount
(estimated, if necessary and to the extent feasible) of the
20
<PAGE>
damages that have been or may be suffered by the Indemnified Party and the
Indemnifier shall thereafter assume and control the defense of such Claim.
(c) Upon the assumption of control by the Indemnifier as provided in
Section 7.6 (b), the Indemnifier shall, at its expense, diligently proceed with
defense, compromise or settlement of the Claim at Indemnifier's sole expense,
including employment of counsel reasonably satisfactory to the Indemnified
Party, provided that the Indemnified Party shall have the right to employ
separate counsel with regard to any such Claim and to participate in the defense
thereof at its own cost, provided that the Indemnified Party shall have the
right to control the defense of any such Claim and the Indemnifier shall pay the
cost thereof in the event that (i) the Indemnifier shall have failed to assume
the defense thereof within ten days after receipt of written notice of such
action or (ii) both the Indemnifier and the Indemnified Party are parties to
such Claim and the Indemnified Party has been advised by counsel that there may
be one or more legal defenses available to the Indemnified Party which are
different from or additional to those available to the Indemnifier.
(d) In connection with any Claim, the Indemnified Party shall
cooperate fully, but at the expense of the Indemnifier, to make available to the
Indemnifier all pertinent information and witnesses under the Indemnified
Party's control, and take such other steps as in the opinion of counsel for the
Indemnifier are necessary to enable the Indemnifier to conduct such defense.
(e) The final, nonappealable determination of any Claim, including all
related costs and expenses, shall be binding and conclusive upon the Indemnifier
and the Indemnified Party as to the amount of the indemnification; provided,
--------
however, that, except with the written consent of the Indemnified Party, the
- -------
Indemnifying Party shall not consent to entry of any judgment or enter into any
settlement, which does not include as an unconditional term thereof the
provision by the claimant to the Indemnified Party of a release from all
liability in respect of such Claim.
(f) Neither party hereto shall compromise or settle any claim, action
or proceeding subject to Section 7.6(a) without the consent of the other party
hereto, which consent shall not be unreasonably withheld.
21
<PAGE>
ARTICLE VIII
MISCELLANEOUS
8.1 Expenses
--------
Except as provided elsewhere in this Agreement, each party shall bear
and pay all fees, expenses and costs that it incurred in connection with the
transactions contemplated by this Agreement, without limitation, fees and
expenses of its own financial consultants, accountants and counsel.
8.2 Entire Agreement
----------------
This Stock Purchase Agreement contains the entire agreement between
the parties with respect to the transactions contemplated hereunder and
supersedes all prior arrangements or understandings with respect thereto,
written or oral, other than documents referred to herein. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the parties hereto, and their respective successors. Nothing in this Agreement,
expressed or implied, is intended to confer upon any party, other than the
parties hereto, and their successors or Permitted Assignees, any rights,
remedies, obligations or liabilities, except that the conditions precedent set
forth in Section 6.1(b), (c) and (f) are also for the benefit of Bancorp, and
such provisions shall not be amended, modified or waived in any respect without
the prior written consent of Bancorp.
8.3 No Assignment
-------------
Neither of the parties hereto may assign any of its rights or
obligations under this Stock Purchase Agreement to any other person without the
prior written consent of the non-assigning party, which shall not be
unreasonably withheld. Seller hereby consents to Purchaser's assignment of
proportionate rights as Purchaser hereunder to each of Robert H. Beymer, Robert
L. Shell, Jr., Jeanne Hubbard and Thomas W. Wright and their respective spouses
(each such person being referred to herein as a "Permitted Assignee"). Any
instrument of assignment shall provide for each assignee's written acceptance
thereof, which acceptance by its express terms shall constitute the affirmative
adoption by each such assignee of all of Purchaser's representations,
warranties, covenants and obligations set forth in this Agreement, as fully as
if each assignee had been an original party signatory hereto. Such assignments,
if any, shall not relieve Purchaser from, nor modify, alter or diminish his
representations, warranties, covenants and obligations set forth in this
Agreement. Purchaser shall furnish copies of any such assignment to Seller
within 3 days after execution thereof. Notwithstanding the foregoing, the Seller
may assign its rights under this Agreement to a trustee or other fiduciary
provided that (i) the Seller has
22
<PAGE>
transferred the Shares to such trustee or fiduciary to prevent a violation of
the Bank Holding Company Act of 1956 and (ii) such trustee or fiduciary agrees
in writing to be bound by and perform the Seller's obligations under this
Agreement and the Escrow Agreement.
8.4 Notices
-------
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally or sent by
overnight express, or by registered or certified mail, postage prepaid,
addressed as follows:
If to the Seller:
Citibank, N.A.
Private Banking Group
153 East 53rd Street
New York, New York 10043
Attention: Mr. Walter C. Vosburgh, Jr.
With a required copy to:
Linowes and Blocher
Tenth Floor
1010 Wayne Avenue
P. O. Box 8728
Silver Spring, Maryland 20907-8728
Attention: Bradford F. Englander
If to Purchaser:
Marshall T. Reynolds
P. O. Box 4040
Huntington, West Virginia 25729
With a required copy to:
Huddleston, Bolen, Beatty, Porter & Copen
611 Third Avenue
P. O. Box 2185
Huntington, West Virginia 25722-2185
Attention: Thomas J. Murray
8.5 Captions
--------
The captions contained in this Stock Purchase Agreement are for
reference purposes only and are not part of this Agreement.
23
<PAGE>
8.6 Counterparts
------------
This Stock Purchase Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
8.7 Time of the Essence
-------------------
The parties hereto agree that time is of the essence.
8.8 Jury Trial Waiver
-----------------
THE PARTIES HERETO AGREE TO WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL
BY JURY OF ANY ISSUES RAISED IN ANY ACTION ALLEGING A BREACH OF THIS AGREEMENT.
8.9 Governing Law and Jurisdiction
------------------------------
THE VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
8.10 Limitation of Liability
-----------------------
(a) The parties agree and acknowledge that in the event that Purchaser
fails to consummate the Acquisition, Seller's damages would be
difficult to calculate, and the amount of the Escrowed Funds
constitutes reasonable and appropriate liquidated damages for
Purchaser's failure to consummate the Acquisition. Except for actual
damages resulting from Purchaser's material breach of Purchaser's
obligations under Section 7.6 of this Agreement and Purchaser's
failure to consummate a Subsequent Closing pursuant to Section 2.1(d)
of this Agreement, the amount of the Escrowed Funds shall constitute
the limit of Purchaser's liability under this Agreement.
(b) In the event that Purchaser terminates this Agreement pursuant to
Section 7.1(b), or the Seller terminates this Agreement pursuant to
Section 7.1(j), Purchaser shall be entitled to payment in an amount
equal to Purchaser's reasonable and actual out-of-pocket fees, costs
and expenses of its attorney's and other professionals incurred in
connection with the transactions contemplated by this Agreement from
the date of Seller's execution and delivery of this Agreement through
the date on which this Agreement is terminated. Except for actual
damages resulting from Seller's material breach of Section 7.6 of this
Agreement, the amounts payable by Seller under this
24
<PAGE>
subsection 8.10(b) shall constitute the limit of Seller's liability
under this Agreement.
IN WITNESS WHEREOF, the corporate party hereto has caused this Stock
Purchase Agreement to be executed in counterparts by its duly authorized
officers and its corporate seal to be hereunto affixed and attested by its
officers thereunto duly authorized, and the individual party has signed his
name, all as of the day and year first above written.
CITIBANK, N.A.
By:_____________________________________
Name:______________________________
Title:_____________________________
----------------------------------------
MARSHALL T. REYNOLDS
c:\agree\citbkmtr.sp9
25
EXHIBIT B
ESCROW AGREEMENT ("Escrow Agreement") made this 21st day of April,
1995, among MARSHALL T. REYNOLDS (the "Purchaser"), CITIBANK, N.A., a national
banking association (the "Seller"), and CITIZENS BANK OF MARYLAND (the "Escrow
Agent").
WHEREAS, the Purchaser and the Seller have entered into a Stock
Purchase Agreement (the "Stock Purchase Agreement") dated as of April 21, 1995
which requires Purchaser to deliver to the Escrow Agent a Deposit (as defined in
Section 2.2 of the Stock Purchase Agreement);
NOW THEREFORE, the parties hereto agree as follows:
1. Except as otherwise provided herein, capitalized terms used in the
Stock Purchase Agreement shall have the same meaning when used herein.
2. Concurrently with the execution of the Stock Purchase Agreement,
Purchaser shall deliver to the Escrow Agent the Deposit to be held by the Escrow
Agent in an escrow account at _______________ in accordance with the terms of
this Escrow Agreement and the Stock Purchase Agreement. The Escrow Agent shall
invest the Deposit in overnight repurchase agreements collateralized by United
States Treasury securities. The Deposit plus all interest or other moneys earned
thereon after the deduction of fees and expenses of the Escrow Agent as provided
herein shall constitute the "Escrowed Funds."
3. The Escrow Agent shall not sell, transfer or in any manner encumber
the Escrowed Funds except pursuant to the terms of this Escrow Agreement.
4. The Escrowed Funds shall be distributed by the Escrow Agent as
follows:
(a) If the Initial Closing occurs, the Escrowed Funds shall be
distributed at the Initial Closing to the Seller and credited toward payment of
the Purchase Price;
(b) If (i) the Stock Purchase Agreement is terminated by either Seller
or Purchaser pursuant to Section 7.1(c) or (f) thereof or by the Seller pursuant
to Section 7.1(b) thereof, (ii) Purchaser does not at such time have the right
to terminate the Stock Purchase Agreement under Section 7.1 thereof and (iii)
the Seller has not breached, in any material respect, (A) any covenant or
undertaking contained in the Stock Purchase Agreement or (B) any representation
or warranty contained in the Stock Purchase Agreement, which breach has not been
cured in all material respects, then the Escrowed Funds shall be distributed to
the Seller.
<PAGE>
(c) If the Stock Purchase Agreement is terminated other than pursuant
to Section 7.1(a) thereof and subsection (b) of this Section 4 does not apply,
then the Escrowed Funds shall be distributed to Purchaser.
(d) If the Stock Purchase Agreement is terminated pursuant to Section
7.1(a) thereof, the Escrowed Funds shall be distributed in accordance with the
joint instructions of the Seller and Purchaser.
5. In the event the Seller or Purchaser believes that it is entitled
to the Escrowed Funds, such party (the "Demanding Party") shall deliver a notice
("Notice") to the other party (the "Other Party") and to the Escrow Agent that
shall set forth the reason(s) it believes it is entitled to the Escrowed Funds.
If, within ten days of the date of such Notice, the Other Party either consents
in writing to such distribution or the Escrow Agent receives no Notice of
Objection (as defined below) pursuant to paragraph 6 hereof, the Escrow Agent
shall pay the Escrowed Funds to the Demanding Party on the eleventh day after
the date of such Notice.
6. If a Notice is sent to the Escrow Agent and, within ten days of the
date of the Notice, the Escrow Agent and the Demanding Party receive a written
notice of objection ("Notice of Objection") from the Other Party, no
distribution shall be made until such dispute shall have been resolved by (a) an
agreement in writing signed by the Seller and Purchaser, or (b) by a final
judgment of a court of competent jurisdiction, as to which judgment the time for
appeal shall have expired and no appeal shall be pending, and the full and
executed counterpart of such agreement, or a certified copy of such final
judgment together with an affidavit of counsel for the Seller or Purchaser, as
the case may be, stating that the time to appeal therefrom has expired and no
appeal is pending, is delivered to the Escrow Agent, in which case the Escrow
Agent shall comply with the terms of such agreement or judgment.
7. The Seller and Purchaser agree with the Escrow Agent as follows:
a. The Escrow Agent shall not be bound in any way by any
agreement or contract between the Seller and Purchaser other than the
Stock Purchase Agreement (and any amendments or supplements thereto of
which it has notice) or as specifically set forth herein, and the
Escrow Agent's only duties and responsibilities shall be to hold and
dispose of the Deposit in accordance with the terms of the Stock
Purchase Agreement and this Escrow Agreement.
2
<PAGE>
b. The Escrow Agent may rely and shall be protected in acting or
refraining from acting upon any written notice, instruction or request
furnished to the Escrow Agent either by the Seller or Purchaser by any
of the persons whose names and specimen signatures have been furnished
to the Escrow Agent pursuant to paragraph 9 hereof and it shall not be
necessary for the Escrow Agent to inquire into the authority of such
signer(s).
c. This Escrow Agreement may be altered or amended only with the
consent of all of the parties hereto. The Seller and Purchaser may
remove Citizens Bank of Maryland as Escrow Agent at any time upon 10
days' written notice to the Escrow Agent.
d. Any notice required to be given to the Escrow Agent, the
Seller or Purchaser shall be in writing and shall be effective when
delivered to the Seller or Purchaser at its address as specified in
Section 8.4 of the Stock Purchase Agreement or to the Escrow Agent at
the address specified below:
Citizens Bank of Maryland
==============================
Attention:____________________
or such other address as the parties may have furnished each other in
writing, which notice of change of address shall be effective only
upon receipt.
e. The Escrow Agent shall charge the Escrowed Funds for any
reasonable expenses incurred in connection with this Escrow Agreement,
including attorneys' fees at its hourly rates and including the actual
cost of legal services should the Escrow Agent deem it necessary to
retain counsel (other than any fees and expenses incurred by the
Escrow Agent in connection with a Notice of Objection, which fees and
expenses shall be paid by the Seller if a final judgment of a court of
competent jurisdiction is rendered for Purchaser and which fees and
expenses shall be paid by Purchaser if a final judgment of a court of
competent jurisdiction is rendered for the Seller.
f. The Escrow Agent shall not be liable for any action taken or
omitted by the Escrow Agent in good faith and in no event shall the
Escrow Agent be liable or responsible except for its own gross
negligence or willful misconduct.
3
<PAGE>
g. Purchaser warrants to the Escrow Agent and the Seller that (i)
there is no security interest in the Deposit or any part thereof, (ii)
no financing statement under the Uniform Commercial Code is on file in
any jurisdiction claiming a security interest in or describing
(whether specifically or generally) the Deposit or any part thereof,
and (iii) the Escrow Agent shall have no responsibility at any time to
ascertain whether any security interest exists in the Deposit or any
part thereof or to file any financing statement under the Uniform
Commercial Code with respect to the Deposit or any part thereof.
8. This Escrow Agreement and its validity, construction and
performance shall be governed by the laws of the District of Columbia, without
giving effect to principles of conflict of laws thereof, and shall be binding
upon the Escrow Agent, Purchaser and the Seller and their respective successors
and permitted assigns. No party to this Escrow Agreement may assign its rights
or duties hereunder without the prior written consent of the other parties
hereto.
9. Simultaneously with the execution of this Escrow Agreement, the
Seller and Purchaser will each deliver to the Escrow Agent and to each other a
certificate containing the names and specimen signatures of its officers or
representatives authorized to sign this Escrow Agreement and notices,
instructions and other communications hereunder. These certificates may be
amended or replaced from time to time by later dated certificates delivered to
the Escrow Agent by the Seller or Purchaser, as the case may be.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed and delivered by their duly authorized officers or
representatives and have caused this Escrow Agreement to be dated as of the date
and year first above written.
CITIBANK, N.A.
By:________________________________
Name:_________________________
Title:________________________
-----------------------------------
MARSHALL T. REYNOLDS
4
<PAGE>
We accept appointment as Escrow Agent and acknowledge receipt of the Deposit.
CITIZENS BANK OF MARYLAND
By:________________________________
Name:_________________________
Title:________________________
c:\agree\citbkmtr.ea4
5
EXHIBIT C
STANDSTILL AND RELEASE AGREEMENT
("Bancorp/Purchaser Release")
SPECIFIC RELEASE
FOR VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby
acknowledged, each of the undersigned hereby releases and forever discharges
National Bancshares, Inc. and each of its associates, owners, stockholders,
subscribers, promoters, predecessors, successors, assigns, agents, directors,
officers, representatives, lawyers, consultants and employees, and all persons
acting by, through, under or in concert with them, or any of them (collectively,
the "Released Parties"), of and from any and all manner of action or actions,
cause or causes of action, in law or in equity, suits, debts, liens, contracts,
agreements, promises, liabilities, claims, demands, damages, losses, costs or
expenses, of any nature whatsoever, known or unknown, fixed or contingent,
arising from the day before the beginning of time to the date hereof (together,
"Claims"), which the undersigned now has or may hereafter have against the
Released Parties, or any of them by reason of any matter, cause, or thing
arising from or in connection with, or in any way relating to:
(1) that certain Stock Purchase Agreement dated April 11, 1994, between
Citibank, N.A. and National Bancshares, Inc.;
(2) that certain Stock Purchase Agreement, as Amended dated June 1, 1994,
between Citibank, N.A. and National Bancshares, Inc.;
(3) any attempt, effort, proposal or offer by or on behalf of the Releasing
Parties, or any of them, to acquire, or offer to acquire, directly or
indirectly, any shares or other interest in Abigail Adams National Bancorp,
Inc. or any of its property or assets;
(4) any dealings, negotiations, discussions, agreements, contracts between
National Bancshares, Inc. and Abigail Adams National Bancorp, Inc., or on
their respective behalves, regarding the proposed, planned, attempted or
offered acquisition by National Bancshares, Inc. of, or offer to acquire,
any shares or other interest in Abigail Adams National Bancorp, Inc., from
whatever source;
(5) any action or failure to take action, by or on behalf of National
Bancshares, Inc., including without limitation any statements made or
claims asserted or threatened, in any way
<PAGE>
relating to Abigail Adams National Bancorp, Inc., any shares of or other
interest therein of any subsidiary, employee, officer, director, agent or
attorney thereof or of any subsidiary thereof;
(6) any effort or attempt by National Bancshares, Inc. to cause Abigail
Adams National Bancorp, Inc. or the Adams National Bank to take or not to
take any action relating to any agreement by it or any subsidiary with any
officer or employee thereof;
(7) any dealings, negotiations, discussions, agreements, contracts, actions
or inaction by or between Citibank, N.A. and National Bancshares, Inc., or
on their behalves, regarding the proposed, attempted, planned or offered
acquisition of shares in Abigail Adams National Bancorp, Inc. by National
Bancshares, Inc.;
(8) the performance or termination of any agreements between Citibank, N.A.
and National Bancshares, Inc.;
(9) any dealings, negotiations, discussions, agreements or contracts
between Citibank, N.A. and the Purchaser regarding the proposed acquisition
of shares in Abigail Adams National Bancorp, Inc. by the Purchaser;
(10) shares of Abigail Adams National Bancorp, Inc. held by Citibank, N.A.
as collateral for a certain loan to certain individuals, among others, who
are or were among the officers and directors of Abigail Adams National
Bancorp, Inc.; or
(11) the alleged agreement between Citibank, N.A. and National Bancshares,
Inc., which was the subject of Civil Action No. 13810 in the Court of
Chancery of the State of Delaware in and for New Castle County.
(individually, a "Released Claim," and collectively, "Released Claims"). This
Release shall not release or discharge any claim that does not arise from, or is
not in connection with or related to items 1 through 11, above.
Each of the Releasing Parties represents and warrants to the Released
Parties that he or it has not assigned or transferred any interest in any
Released Claim, and each of the Releasing Parties agrees (individually and not
jointly) to indemnify and hold the Released Parties harmless from any liability,
claim, demand, damages, costs, expenses and attorneys' fees incurred as a result
of any person asserting any such assignment or transfer of any rights or claims
under such assignment or transfer by the Releasing Party. It is the intention of
each of the undersigned that this indemnity does not require payment as a
condition
2
<PAGE>
precedent to recovery by the Released Parties from the undersigned under this
indemnity.
Each of the Released Parties agrees that if he or it hereafter commences,
joins in, or in any manner seeks relief through any suit arising out of, based
upon, or relating to any of the Released Claims or in any manner asserts against
a Released Party any of the Released Claims, then such Releasing Party will
(individually and not jointly) pay to such Released Party, in addition to any
other damages caused thereby, all attorneys' fees incurred by the Releasing
Party in defending or otherwise responding to said suit or claim.
Each Released Party, by accepting the benefits of this Release, and the
undersigned further understand and agree that the execution and acceptance of
this Release shall not constitute or be construed as an admission of any
liability, claim, defense or counterclaim by or against any party.
[SIGNATURE FOLLOWS]
- ------------------------------
[individual]
STATE OF )
- ---------------------------------
) ss.
COUNTY OF )
- ---------------------------------
On this _____ day of _______________, in the year 1995, before me, the
undersigned, personally appeared _________________________, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to this instrument, and acknowledged that [he/she]
executed it.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
before written.
- ------------------------------
Notary Public in and for
Said County and State
[Seal]
- ------------------------------
[corporation]
By: __________________________
Title: _______________________
3
<PAGE>
STATE OF )
- ---------------------------------
)ss.
COUNTY OF )
- ---------------------------------
On this _____ day of _______________, in the year 1995, before me, the
undersigned, personally appeared _________________________, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as [president/vice- president/secretary] or on
behalf of the corporation therein named and acknowledged that the corporation
executed it.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
before written.
- ------------------------------
Notary Public in and for
Said County and State
[Seal]
4
EXHIBIT D
STANDSTILL AND RELEASE AGREEMENT
("NBI Release")
SPECIFIC RELEASE
FOR VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby
acknowledged, each of the undersigned (i.e., National Bancshares, Inc., a
Delaware corporation, and each of its directors, James F. McCall, Frank Francois
and Theodore A. Adams, Jr. in their corporate and individual capacities)
(together, the "Releasing Parties"), hereby releases and forever discharges
Citibank, N.A., Abigail Adams National Bancorp, Inc., The Adams National Bank
and _________________________ (who is the "Purchaser," as such term is defined
in that certain Standstill and Release Agreement dated as of February ____, 1995
between Citibank, N.A. and National Bancshares, Inc.), and each of their
respective associates, owners, stockholders, subscribers, promoters,
predecessors, successors, heirs, assigns, agents, directors, officers, partners,
representatives, lawyers, consultants and employees and all persons acting by,
through, under or in concert with them, or any of them, and any other person or
entity (collectively, the "Released Parties"), of and from any and all manner of
action or actions, cause or causes of action, in law or in equity, suits, debts,
liens, contracts, agreements, promises, liabilities, claims, demands, damages,
losses, costs or expenses, of any nature whatsoever, known or unknown, fixed or
contingent, arising from the day before the beginning of time to the date hereof
(together, "Claims"), which the undersigned now has or may hereafter have
against the Released Parties, or any of them by reason of any matter, cause, or
thing arising from or in connection with, or in any way relating to:
(1) that certain Stock Purchase Agreement dated April 11, 1994, between
Citibank, N.A. and National Bancshares, Inc.;
(2) that certain Stock Purchase Agreement, as Amended dated June 1, 1994,
between Citibank, N.A. and National Bancshares, Inc.;
(3) any attempt, effort, proposal or offer by or on behalf of the Releasing
Parties, or any of them, to acquire, or offer to acquire, directly or
indirectly, any shares or other interest in Abigail Adams National Bancorp,
Inc. or any of its property or assets;
(4) any dealings, negotiations, discussions, agreements, contracts, actions
or inactions by or between the Releasing
<PAGE>
Parties, or any of them, on the one hand, and the Released Parties, or
any of them, on the other hand, or on their respective behalves,
regarding the proposed, planned, attempted or offered acquisition by
National Bancshares, Inc. of, or offer to acquire, any shares or other
interest in Abigail Adams National Bancorp, Inc., from whatever source;
(5) any action or failure to take action, by or on behalf of the
Released Parties, or any of them, including without limitation any
statements made or claims asserted or threatened, in any way relating
to the Releasing Parties, or any of them, any subsidiary, employee,
officer, director, agent or attorney thereof;
(6) any effort or attempt by the Released Parties, or any of them, to
cause any person or entity to take or not to take any action relating
to Abigail Adams National Bancorp, Inc.
or the Adams National Bank;
(7) rights, claims, obligations, duties or liabilities under
the D.C. Human Rights Act, as may be amended from time to
time, and any rules or regulations thereunder;
(8) the performance or termination of any agreements between
Citibank, N.A. and National Bancshares, Inc.;
(9) any dealings, negotiations, discussions, agreements,
contracts between Citibank, N.A. and any other person or
entity regarding Abigail Adams National Bancorp, Inc.;
(10) shares of Abigail Adams National Bancorp, Inc. held by
Citibank, N.A. as collateral for a certain loan to certain
individuals, among others, who are or were among the officers
and directors of Abigail Adams National Bancorp, Inc.; or
(11) the alleged agreement between Citibank, N.A. and
National Bancshares, Inc., which was the subject of Civil
Action No. 13810 in the Court of Chancery of the State of
Delaware in and for New Castle County.
(individually, a "Released Claim," and collectively, "Released Claims"). This
Release shall not release or discharge any claim that does not arise from, or is
not in connection with or related to items 1 through 11, above.
Each of the Releasing Parties represents and warrants to the Released
Parties that he or it has not assigned or transferred any interest in any
Released Claim, and each of the Releasing Parties agrees (individually and not
jointly) to indemnify and hold the Released Parties harmless from any liability,
claim, demand, damages, costs, expenses and attorneys' fees incurred as a result
of any person asserting any such assignment or transfer of any
2
<PAGE>
rights or claims under such assignment or transfer by the Releasing Party. It is
the intention of each of the undersigned that this indemnity does not require
payment as a condition precedent to recovery by the Released Parties from the
undersigned under this indemnity.
Each of the Released Parties agrees that if he or it hereafter commences,
joins in, or in any manner seeks relief through any suit arising out of, based
upon, or relating to any of the Released Claims or in any manner asserts against
a Released Party any of the Released Claims, then such Releasing Party will
(individually and not jointly) pay to such Released Party, in addition to any
other damages caused thereby, all attorneys' fees incurred by the Releasing
Party in defending or otherwise responding to said suit or claim.
Each Released Party, by accepting the benefits of this Release, and the
undersigned further understand and agree that the execution and acceptance of
this Release shall not constitute or be construed as an admission of any
liability, claim, defense or counterclaim by or against any party.
[SIGNATURE FOLLOWS]
- ------------------------------
James F. McCall
STATE OF )
- ---------------------------------
)ss.
COUNTY OF )
- ---------------------------------
On this _____ day of _______________, in the year 1995, before me, the
undersigned, personally appeared James F. McCall, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to this instrument, and acknowledged that he executed it.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and
year before written.
- ------------------------------
Notary Public in and for
Said County and State
[Seal]
3
<PAGE>
- ------------------------------
Frank Francois
STATE OF )
- ---------------------------------
)ss.
COUNTY OF )
- ---------------------------------
On this _____ day of _______________, in the year 1995, before me, the
undersigned, personally appeared Frank Francois, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to this instrument, and acknowledged that he executed it.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
before written.
- ------------------------------
Notary Public in and for
Said County and State
[Seal]
- ------------------------------
Theodore A. Adams, Jr.
STATE OF )
- ---------------------------------
)ss.
COUNTY OF )
- ---------------------------------
On this _____ day of _______________, in the year 1995, before me, the
undersigned, personally appeared Theodore A. Adams, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to this instrument, and acknowledged that he executed it.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
before written.
- ------------------------------
Notary Public in and for
Said County and State
[Seal]
4
<PAGE>
National Bancshares, Inc., a Delaware corporation
By: __________________________
Title: _______________________
STATE OF )
- ---------------------------------
)ss.
COUNTY OF )
- ---------------------------------
On this _____ day of _______________, in the year 1995, before me, the
undersigned, personally appeared _________________________, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to this instrument, and acknowledged that he executed
it.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
before written.
- ------------------------------
Notary Public in and for
Said County and State
[Seal]
5
EXHIBIT E
TO
STOCK PURCHASE AGREEMENT
("Seller Release" per Section 6.1(c))
SPECIFIC RELEASE
FOR VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby
acknowledged, except as expressly stated below, the undersigned Citibank, N.A.
(the "Releasing Party") hereby releases and forever discharges Abigail Adams
National Bancorp, Inc. ("Bancorp"), The Adams National Bank ("Adams") and each
of their affiliates and subsidiaries (collectively, the "Released Entities" and
individually, a "Released Entity") and all officers, directors, predecessors,
successors, assigns, employees, agents, representatives, lawyers and consultants
of each Released Entity, and all heirs, successors and assigns of each such
Released Entity and such other persons and entities, and all persons acting by,
through, or in concert with them, or any of them , but excluding any person who
is an "Excluded Director" as hereinafter defined (collectively, the "Released
Parties" and individually, a "Released Party"), of and from any and all manner
of action or actions, cause or causes of action, in law or in equity, suits,
debts, liens, contracts, agreements, promises, liabilities, claims, demands,
damages, losses, costs or expenses, of any nature whatsoever, known or unknown,
fixed or contingent, arising from the day before the beginning of time to the
date of execution hereof (together, "Claims"), which the Releasing Party now has
or may hereafter have against the Released Parties, or any of them, by reason of
any matter, cause, or thing arising from or in connection with, or in any way
relating to:
(1) that certain Stock Purchase Agreement dated April 11, 1994, between
Citibank, N.A. ("Citibank") and National Bancshares, Inc. ("NBI");
(2) that certain Stock Purchase Agreement, as Amended dated June 1, 1994,
between Citibank and NBI;
(3) any dealings, negotiations, discussions, communications, agreements, or
contracts between or among any Released Party or any of their parents,
subsidiaries or affiliates, or any of their officers, directors, employees,
agents, representatives or lawyers, and any person or entity relating to a
purchase, sale or any other disposition of the shares of common stock of
Bancorp pledged to Citibank as collateral (the "Shares") or of Bancorp or
the Bank (or of any interest in any of them);
<PAGE>
(4) any dealings, negotiations, discussions, communications, agreements, or
contracts between or among the Releasing Party, or its parents,
subsidiaries or affiliates, or any of their officers, directors, employees,
agents, representatives or lawyers, and any person or entity relating to
the purchase, sale or any other disposition of the Shares of Bancorp or the
Bank (or of any interest in any of them);
(5) any action or inaction by or on behalf of the Released Parties, or any
of them, relating to Bancorp, the Bank or the Shares;
(6) that certain Rights Agreement dated as of April 12, 1994 between
Bancorp and the First National Bank of Maryland as Rights Agent, as
amended;
(7) any matter or thing that is the subject matter of any claim,
counterclaim, defense or allegation that was made in that certain lawsuit
currently pending in the Chancery Court of the State of Delaware in and for
New Castle County, captioned Citibank, N.A. v. Abigail Adams National
Bancorp, Inc., et al., Case No. C.A. 13464;
(8) any action or inaction of the Released Parties, or any of them, in
connection with the Citibank's status as a pledgee or alleged shareholder
of the Shares; and
(9) any breach of fiduciary duty, or alleged breach of fiduciary duty, by
the Released Parties, or any of them, to the Releasing Parties, or any of
them, in connection with Bancorp, Adams or the Shares.
(individually, a "Released Claim," and collectively, "Released Claims").
Notwithstanding the foregoing, the terms, "Released Claim" and "Released
Claims," shall not include, and this Release shall not release, discharge, alter
or impair any Claim, that:
(a) does not arise from, or is not in connection with or related to items 1
through 9, above;
(b) arises solely under the terms of the Term Loan Agreement or the Pledge
Agreement, each dated August 24, 1988, between Citibank as lender and Mark
G. Griffin, Karen Griffin, Richard W. Naing, Maria L. Naing, Barbara D.
Blum, the Wynmark Trust and the E.A. Griffin Trust as borrowers (the
"Borrowers");
2
<PAGE>
(c) arises solely under the terms of that certain settlement agreement
dated as of June 30, 1994 between Citibank and Barbara D. Blum ("Blum"); or
(d) arises under, or constitutes a contract, agreement, promise, right,
privilege, immunity or indebtedness under, that certain Stock Purchase
Agreement dated April __, 1995 (as may be amended from time to time)
between Citibank and Marshall T. Reynolds, or under the "Escrow Agreement"
as such term is defined therein.
The Releasing Party represents and warrants to the Released Parties that it
has not assigned or transferred any interest in any Released Claim, and the
Releasing Party agrees to indemnify and hold the Released Parties harmless from
any liability, Claim, demand, damages, costs, expenses and attorneys' fees
incurred as a result of any person asserting any such assignment or transfer of
any rights or claims under such assignment or transfer by such Releasing Party.
It is the intention of the Releasing Party that this indemnity does not require
payment as a condition precedent to recovery by the Released Parties from the
undersigned under this indemnity.
The Releasing Party agrees that if it hereafter commences, joins in, or in
any manner seeks relief through any suit arising out of, based upon, or relating
to any of the Released Claims or in any manner asserts against a Released Party
any of the Released Claims, then the Releasing Party will pay to such Released
Party, in addition to any other damages caused thereby, all attorneys' fees
incurred by the Released Party in defending or otherwise responding to said suit
or claim.
Each Released Party, by accepting the benefits of this Release, and the
undersigned further understand and agree that the execution and acceptance of
this Release shall not constitute or be construed as an admission of any
liability, claim, defense or counterclaim by or against any party.
The term, "Excluded Director," as used herein shall mean and include the
following individuals: [insert names of individuals who are directors of Bancorp
at Closing, and who fail or refuse to execute and deliver the
Bancorp/Adams/Director Release]. Notwithstanding any other term or provision of
this Release to the contrary, Excluded Directors, and any person or entity who
would be entitled to the benefits of this Release solely by virtue of being a
successor, assign or heir of such person, or a person acting by, through or in
concert with such person, shall not be considered to be a "Released Party" or
"Released Parties" hereunder, and shall not be entitled to any right, benefit,
immunity or privilege as a result hereof.
3
<PAGE>
[SIGNATURES FOLLOWS]
4
<PAGE>
- ---------------------
[individual]
STATE OF )
) ss.
CITY/COUNTY OF )
On this ____ day of July, in the year 1995, before me, the undersigned,
personally appeared ________________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as ____________________________ or on behalf of
the corporation therein named and acknowledged that the corporation executed it.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
before written.
- -------------------------------------------
Notary Public in and for
Said County and State
[Seal]
5
<PAGE>
[Corporation]
By:__________________________
Title:_______________________
STATE OF )
) ss.
CITY/COUNTY OF )
On this ____ day of July, in the year 1995, before me, the undersigned,
personally appeared ________________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as ____________________________ or on behalf of
the corporation therein named and acknowledged that the corporation executed it.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
before written.
- -------------------------------------------
Notary Public in and for
Said County and State
[Seal]
6
EXHIBIT F
TO
STOCK PURCHASE AGREEMENT
("Bancorp/Adams/Director Release" per Section 6.2(g))
SPECIFIC RELEASE
FOR VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby
acknowledged, except as stated below, the undersigned (individually, a
"Releasing Party" and collectively, the "Releasing Parties") hereby releases and
forever discharges Citibank, N.A. ("Citibank") and each of Citibank's parents,
subsidiaries and affiliates (collectively, the "Released Entities" and
individually, a "Released Entity"), and all officers, directors, predecessors,
successors, assigns, employees, agents, representatives, lawyers and consultants
of each Released Entity, and all heirs, successors and assigns of each such
Released Entity and such other persons and entities, and all persons acting by,
through, or in concert with them, or any of them (individually, a "Released
Party" and collectively, the "Released Parties"), of and from any and all manner
of action or actions, cause or causes of action, in law or in equity, suits,
debts, liens, contracts, agreements, promises, liabilities, claims, demands,
damages, losses, costs or expenses, of any nature whatsoever, known or unknown,
fixed or contingent, arising from the day before the beginning of time to the
date of execution hereof (together, "Claims"), which the undersigned now has or
may hereafter have against the Released Parties, or any of them, by reason of
any matter, cause, or thing arising from or in connection with, or in any way
relating to:
(1) that certain Stock Purchase Agreement dated April 11, 1994, between
Citibank, N.A. ("Citibank") and National Bancshares, Inc. ("NBI");
(2) that certain Stock Purchase Agreement, as Amended dated June 1, 1994,
between Citibank and NBI;
(3) any dealings, negotiations, discussions, communications, agreements, or
contracts between or among any Released Party or any of their parents,
subsidiaries, or affiliates, or any of their officers, directors,
employees, agents, representatives or lawyers, and any person or entity
relating to a purchase, sale or any other disposition of the shares of
common stock of Abigail Adams National Bancorp, Inc. ("Bancorp") pledged to
Citibank as collateral (the "Shares") or of Bancorp or the Adams National
Bank (the "Bank") (or of any interest in any of them);
<PAGE>
(4) any dealings, negotiations, discussions, communications, agreements, or
contracts between the Releasing Parties or any of their parents,
subsidiaries or affiliates, or any of their officers, directors, employees,
agents, representatives or lawyers, and any person or entity relating to
the purchase, sale or any other disposition of the Shares or of Bancorp or
the Bank (or of any interest in any of them);
(5) any action or inaction by or on behalf of the Released Parties, or any
of them, relating to the Shares, Bancorp or the Bank;
(6) that certain Rights Agreement dated as of April 12, 1994 between
Bancorp and the First National Bank of Maryland as Rights Agent, as
amended;
(7) any matter or thing that is the subject matter of any claim,
counterclaim, defense or allegation that was made in that certain lawsuit
currently pending in the Chancery Court of the State of Delaware in and for
New Castle County, captioned Citibank, N.A. v. Abigail Adams National
Bancorp, Inc., et al., Case No. C.A. 13464;
(8) any action or inaction of the Released Parties, or any of them, in
connection with Citibank's status as a pledgee or alleged shareholder of
the Shares; and
(9) any breach of fiduciary duty, or alleged breach of fiduciary duty, by
the Released Parties, or any of them, in connection with Bancorp, Adams or
the Shares.
(individually, a "Released Claim," and collectively, "Released Claims").
Notwithstanding the foregoing, the terms, "Released Claim" and "Released
Claims," shall not include, and this Release shall not release, discharge, alter
or impair any Claim, that:
(a) does not arise from, or is not in connection with or related to items 1
through 9, above;
(b) arises solely under the terms of the Term Loan Agreement or the Pledge
Agreement, each dated August 24, 1988, between Citibank as lender and Mark
G. Griffin, Karen Griffin, Richard W. Naing, Maria L. Naing, Barbara D.
Blum, the Wynmark Trust and the E.A. Griffin Trust as borrowers (the
"Borrowers"), and is a
2
<PAGE>
Claim which is, and continuously has been, owned and held by one or more of
such Borrowers;
(c) arises solely under the terms of that certain settlement agreement
dated as of June 30, 1994 between Citibank and Barbara D. Blum ("Blum"),
and is a Claim which is, and continuously has been owned and held by Blum;
or
(d) arises under, or constitutes a contract, agreement, promise, right,
privilege, immunity or indebtedness under, that certain Stock Purchase
Agreement dated April __, 1995 (as may be amended from time to time)
between Citibank and Marshall T. Reynolds, or under the "Escrow Agreement,"
as such term is defined therein.
Each of the Releasing Parties represents and warrants to the Released
Parties that he, she or it has not assigned or transferred any interest in any
Released Claim, and each of the Releasing Parties agrees individually, and not
jointly, to indemnify and hold the Released Parties harmless from any liability,
Claim, demand, damages, costs, expenses and attorneys' fees incurred as a result
of any person asserting any such assignment or transfer of any rights or claims
under such assignment or transfer by such Releasing Party. It is the intention
of each of the Releasing Parties that this indemnity does not require payment as
a condition precedent to recovery by the Released Parties from the undersigned
under this indemnity.
Each of the Releasing Parties agrees that if he, she or it hereafter
commences, joins in, or in any manner seeks relief through any suit arising out
of, based upon, or relating to any of the Released Claims or in any manner
asserts against a Released Party any of the Released Claims, then such Releasing
Party will pay to such Released Party, in addition to any other damages caused
thereby, all attorneys' fees incurred by the Released Party in defending or
otherwise responding to said suit or claim.
Each Released Party, by accepting the benefits of this Release, and the
undersigned further understand and agree that the execution and acceptance of
this Release shall not constitute or be construed as an admission of any
liability, claim, defense or counterclaim by or against any party.
[SIGNATURE(S) FOLLOW]
3
<PAGE>
- --------------------------------------------
[individual]
STATE OF )
) ss.
CITY/COUNTY OF )
On this ___ day of _______________, in the year 1995, before me, the
undersigned, personally appeared _________________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to this instrument, and acknowledged that
[he/she] executed it.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
before written.
- --------------------------------------------
Notary Public in and for
Said County and State
[Seal]
4
<PAGE>
[Corporation]
By: ________________________________________
Title: _____________________________________
STATE OF )
) ss.
CITY/COUNTY OF )
On this ____ day of _____________, in the year 1995, before me, the
undersigned, personally appeared ________________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person who executed the within instrument as
[president/vice-president/secretary] or on behalf of the corporation therein
named and acknowledged that the corporation executed it.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
before written.
- -------------------------------------------
Notary Public in and for
Said County and State
[Seal]
5
