SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit
2.3
SECOND
AMENDMENT TO
This
SECOND AMENDMENT, dated as of December 18, 2009, is entered into between Metro
Bancorp, Inc., formerly known as Pennsylvania Commerce Bancorp, Inc., a
Pennsylvania corporation (“Parent”), and Republic First Bancorp, Inc., a
Pennsylvania corporation (the “Company”). Any capitalized term which
is undefined herein has the meaning assigned to it in the Agreement and Plan of
Merger entered into by the parties as of November 7, 2008
(“Agreement”).
WHEREAS,
the Agreement was approved and adopted by the shareholders of the Company on
March 18, 2009, and by the shareholders of Parent on March 19, 2009;
and
WHEREAS, pursuant
to Section 9.3 (Amendment) of the Agreement, subject to compliance with
applicable law, the Agreement may be amended by the parties, by action taken or
authorized by their respective Boards of Directors, at any time after approval
and adoption of the Agreement and Merger by the shareholders of either the
Company or Parent; provided, however, that after
such approval and adoption by the Company’s shareholders, the parties may not
reduce the amount or change the form of the consideration to be delivered to the
Company’s shareholders under the Agreement without further approval and adoption
by such shareholders; and
WHEREAS,
Section 9.1 (Termination) of the Agreement provides various conditions under
which the parties may terminate the Agreement, including the failure of the
parties to consummate the Merger by the Closing Deadline; and
WHEREAS,
by First Amendment to Agreement and Plan of Merger dated as of July 31, 2009,
the parties extended the Closing Deadline to October 31, 2009 with the proviso
that on or before October 31, 2009, either party by notice to the other could
extend the deadline to December 31, 2009 in the event that the condition set
forth in Section 8.1(d) had not been met by September 30, 2009; and
WHEREAS,
Parent extended the Closing Deadline to December 31, 2009 by letter to the
Company dated October 29, 2009; and
WHEREAS,
Parent and the Company have determined that it is in the best interests of their
respective companies and their shareholders to amend Section 9.1 of the
Agreement in order to further extend the Closing Deadline and that such
amendment will not reduce the amount or change the form of consideration to be
delivered to the Company’s shareholders under the Agreement.
NOW,
THEREFORE, in consideration of the foregoing recitals and the agreement
hereinafter contained, and intending to be legally bound hereby, the parties
agree to amend Section 9.1 of the Agreement with respect to either party’s
ability to terminate the Agreement such that subsection (c) shall read in its
entirety as follows:
(c) by
either Parent or the Company if the Merger shall not have been consummated on or
before March 31, 2010 (“Closing Deadline”), unless the failure of the Closing to
occur by such date shall be due to the failure of the party seeking to terminate
this Agreement to perform or observe the covenants and agreements of such party
set forth herein; provided, however,
that either Parent or the Company may extend the Closing Deadline to June 30,
2010 by notice to the other party on or before March 31, 2010, in the event that
the condition set forth in Section 8.1(d) has not been met by March 1, 2010, and
the failure of such condition to have been met is not due to the failure of the
party seeking to extend the Closing Deadline;
IN
WITNESS WHEREOF, Parent and the Company have caused this Second Amendment to the
Agreement and Plan of Merger to be executed by their respective officers
thereunto duly authorized as of the date first above written.
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METRO
BANCORP, INC.
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REPUBLIC
FIRST BANCORP, INC.
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By:
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Xxxx X.
Xxxxxxxxxx
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By:
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Xxxxx X.
Xxxxxxx
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Name:
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Xxxx
X. Xxxxxxxxxx
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Name:
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Xxxxx
X. Xxxxxxx
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Title:
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Chief
Executive Officer
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Title:
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Chief
Executive Officer
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