Exhibit 10.s
AMENDMENT AND WAIVER TO MERGER AGREEMENT
THIS AMENDMENT AND WAIVER TO MERGER AGREEMENT (this "Amendment and
Waiver"), dated as of March 24, 2000, is by and between:
FIRST BANCORP, a North Carolina corporation and a holding company
registered with the Board of Governors of the Federal Reserve System under the
Bank Holding Company Act of 1956, as amended, and a North Carolina bank holding
company (the "Buyer");
FIRST BANK, a North Carolina bank and a wholly owned subsidiary of the
Buyer (the "Buyer Bank");
FIRST SAVINGS BANCORP, INC., a North Carolina corporation and a holding
company registered with the Board of Governors of the Federal Reserve System
under the Bank Holding Company Act of 1956, as amended, and a North Carolina
savings bank holding company (the "Company"); and
FIRST SAVINGS BANK OF XXXXX COUNTY, INC., SSB, a North Carolina stock
savings bank (the "Company Bank").
Background Statement
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The parties to this Amendment and Waiver entered into a Merger
Agreement (the "Agreement") dated as of December 15, 1999 providing for the
merger of the Company into the Buyer, with the Buyer being the surviving
corporation (the "Holding Company Merger"), and the merger of the Company Bank
into the Buyer Bank, with the Buyer Bank being the surviving corporation (the
"Bank Merger").
Statement of Agreement
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In consideration of the premises and the mutual covenants herein
contained, the parties hereto, for themselves, their successors and assigns,
agree as follows:
ARTICLE I.
AMENDMENTS
1.1 The Bank Merger.
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(a) Section 3.1(a) of the Agreement is hereby amended so that the
phrase "Immediately after the consummation of the Holding Company Merger" is
replaced with the phrase "As soon as reasonably practicable after the
consummation of the Holding Company Merger, as determined by the Buyer."
(b) Section 3.1(f) of the Agreement is hereby amended so that the
phrase "At the Closing but after the filing of the Articles of Merger in respect
of the Holding Company Merger" is replaced by the phrase "As soon as reasonably
practicable after the filing of the Articles of Merger in respect of the Holding
Company Merger, as determined by the Buyer."
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(c) Section 3.1(g) is hereby added to the Agreement and shall read as
follows:
(g) Timing of the Bank Merger. Notwithstanding anything to the
contrary in this Agreement, the Bank Merger shall be
consummated as soon as reasonably practicable after the
consummation of the Holding Company Merger, as determined by
the Buyer, subject to satisfaction of all requirements of the
Regulatory Authorities.
1.2 Future Dividends. Section 7.2(h) of the Agreement is hereby
amended so that the phrase "$0.76" is replaced with the phrase "$0.88."
ARTICLE II.
WAIVER
The parties hereto waive the condition to Closing (as defined in the
Agreement) set forth in Section 9.1(b) of the Agreement to the extent such
condition relates to the expiration of any required waiting periods for the
Merger of the Company Bank and the Buyer Bank; provided, however, that the
parties agree that such waiting period shall have expired prior to consummation
of the Bank Merger.
ARTICLE IIII.
MISCELLANEOUS
3.1 Amendment and Modification. This Amendment and Waiver may be
amended, modified or supplemented only by a written agreement executed by all
parties hereto.
3.2 Waiver of Compliance; Consents. Except as otherwise provided in
this Amendment and Waiver, any failure of the Buyer and the Buyer Bank, on one
hand, and the Company and the Company Bank, on the other, to comply with any
obligation, representation, warranty, covenant, agreement or condition herein
may be waived by the other party or parties only by a written instrument signed
by the party or parties granting such waiver, but such waiver or failure to
insist upon strict compliance with such obligation, representation, warranty,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. Should this Amendment and
Waiver require or permit consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in Section 11.4 of the Agreement.
3.3 Governing Law. The execution, interpretation and performance of
this Amendment and Waiver shall be governed by the internal laws and judicial
decisions of the State of North Carolina.
3.4 Counterparts. This Amendment and Waiver may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.5 Interpretation. The article and section headings contained in this
Amendment and Waiver are solely for the purpose of reference, are not part of
the agreement of the parties and shall not in any way affect the meaning or
interpretation of this Amendment and Waiver.
3.6 Entire Agreement. The Agreement, including the agreements and
documents that are Exhibits and Schedules thereto, together with this Amendment
and Waiver, (a) embody the entire agreement and understanding of the parties
with respect of the subject matter hereof and thereof and (b) supersede all
prior agreements and understandings between the parties with respect to the
subject matter hereof and thereof.
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IN WITNESS WHEREOF, the Company, the Company Bank, the Buyer and the
Buyer Bank have caused this Amendment and Waiver to be signed by their
respective duly authorized officers, as of the date first above written.
COMPANY:
FIRST SAVINGS BANCORP, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: President and CEO
COMPANY BANK:
FIRST SAVINGS BANK OF XXXXX COUNTY, INC., SSB
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: President and CEO
BUYER:
FIRST BANCORP
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
BUYER BANK:
FIRST BANK
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
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