Contract
FIRST
AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER, dated as of August 6, 2007 (this
“Amendment”), by and among KEYCORP (“Acquiror”), KYCA CORPORATION (“Acquiror
Sub”) and
U.S.B. HOLDING CO., INC. (“Company”).
RECITALS
A. Acquiror,
Acquiror Sub and the Company (collectively, the “Parties”, and each a “Party”)
entered into that certain Agreement and Plan of Merger, dated as of July 26,
2007 (the “Original Agreement”).
B. The
Parties now desire to make a technical correction to the Original Agreement
pursuant to Section 8.2 thereof on the terms and conditions set forth
herein.
NOW,
THEREFORE, in consideration of their mutual promises and obligations, the
parties hereto approve, adopt and make this Amendment and prescribe the terms
and conditions hereof and the manner and mode of carrying it into effect, which
are as follows:
1. The
following sentence of Section 2.4(a) of the Original Agreement shall be deleted
in its entirety:
“Notwithstanding
the foregoing, any Company Options (whether vested or unvested) that are held
by
employees of the Company who are not Continuing Employees (as such term is
Defined in Section 5.10(a)) or that are held by directors of Company shall
be
entitled to a cash payment from the Company at the Effective Time in an amount
equal to the excess of (i) the sum of (A) the Per Share Cash Consideration
plus
(B) (1) the Designated Ratio multiplied by (2) the Acquiror Share Price over
(ii) the per share exercise price of such Company Option, subject to any
required withholding of taxes.”
and
replaced with the following:
“Notwithstanding
the foregoing, any Company Options (whether vested or unvested) that are held
by
employees of the Company who are not Continuing Employees (as such term is
defined in Section 5.10(a)) or that are held by directors of Company shall
be
entitled to a cash payment from the Company at the Effective Time in an amount
equal to the excess of (i) the sum of (A) the Per Share Cash Consideration
plus
(B) the product of (1) the Designated Ratio multiplied by (2) .65 multiplied
by
(3) the Acquiror Share Price over (ii) the per share exercise price of such
Company Option, subject to any required withholding of taxes.”
2. Nothing
in this Amendment is intended or shall be construed to confer upon any Person,
other than the Parties, any right, remedy or claim under or by reason of the
Original Agreement, this Amendment or any part hereof.
3. Each
Party represents and warrants that this Amendment has been duly authorized,
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance to its terms.
4. This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York, without giving effect to the principles of conflict of laws
thereof.
5. This
Amendment may be executed in one or more counterparts, each of which shall
be
deemed an original, and all of which shall constitute one and the same
Amendment.
6. Except
to
the extent expressly amended by this Amendment, all terms of the Original
Agreement shall remain in full force and effect without amendment, change or
modification.
7. All
references in the Original Agreement to the “Agreement” shall be deemed to be to
the Original Agreement as amended by this Amendment.
8. Capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Original Agreement.
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IN
WITNESS
WHEREOF, this Amendment has been duly executed and delivered by the duly
authorized officers of the parties hereto as of the date first above
written.
KEYCORP
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By: | /s/ Xxxxxx X. Xxxxxxx | |
Name: Xxxxxx X. Xxxxxxx |
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Title:
SVP and Deputy General
Counsel
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KYCA
CORPORATION
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By: | /s/ Xxxxxx X. Xxxxxxx | |
Xxxxxx X. Xxxxxxx |
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Title:
President
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U.S.B.
HOLDING CO., INC.
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By: | /s/ Xxxxxx X. Xxxxx | |
Name: Xxxxxx X. Xxxxx |
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Title:
Chairman and Chief Executive
Officer
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