Exhibit 2.1
SECOND AMENDMENT TO MERGER AGREEMENT
THIS SECOND AMENDMENT TO MERGER AGREEMENT (this "Second Amendment") is made
and dated as of November 24, 2009 by and among Four Oaks Fincorp, Inc., a North
Carolina corporation and a financial 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 "Parent"), Four
Oaks Bank & Trust Company, a North Carolina banking corporation and a state
chartered member of the Federal Reserve System (the "Buyer"), and Nuestro Banco,
a North Carolina banking corporation (the "Company"). The Parent, the Buyer, and
the Company are collectively referred to herein as the "Parties."
RECITALS
WHEREAS, the Parties entered into a Merger Agreement dated as of
April 29, 2009, as amended by the First Amendment to Merger Agreement, dated
October 26, 2009 (the "Merger Agreement");
WHEREAS, Section 9.1(c) of the Merger Agreement permits either the
Parent and the Buyer on the one hand, or the Company, on the other hand, to
terminate the Merger Agreement prior to the Closing Date if the conditions to
the obligation to effect the transactions contemplated by the Merger Agreement
of the party or parties seeking termination have not been fulfilled or waived by
November 30, 2009;
WHEREAS, the Parties now desire to amend the Merger Agreement to
extend the aforementioned deadline.
NOW, THEREFORE, in consideration of the premises, covenants and
agreements set forth herein and of other good and valuable consideration, the
receipt and legal sufficiency of which they hereby acknowledge, and intending to
be legally bound hereby, the Parties hereby agree as follows:
1. Amendments to Merger Agreement. The Merger Agreement shall be, and it
hereby is, amended as follows:
(a) Section 9.1(c) is hereby amended to delete the words "November
30, 2009" appearing on the third line, and replace such words with the
words "December 31, 2009".
2. Reference to and Effect on the Merger Agreement.
(a) From and after the effective date hereof, each reference in the
Merger Agreement to "this Agreement", "hereunder", "hereof" or words of
like import referring to the Merger Agreement, and each reference in any
agreement to be delivered in connection with the Closing under the Merger
Agreement to the "Merger Agreement", "Agreement", "thereunder", "thereof"
or words of like import referring to the Merger Agreement, shall mean and
be a reference to the Merger Agreement as amended hereby.
(b) Except as specifically amended above, the Merger Agreement
shall continue to be in full force and effect and is hereby in all respects
ratified and confirmed.
3. Counterparts. This Second Amendment 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.
4. Governing Law. The execution, interpretation and performance of
this Second Amendment shall be governed by the internal laws and judicial
decisions of the State of North Carolina, without regard to principles of
conflicts of law.
[signature page follows]
IN WITNESS WHEREOF, the Parties have executed this Second Amendment
as of the date first written above.
PARENT:
FOUR OAKS FINCORP, INC.
By: /s/ Ayden X. Xxx, Xx.
-----------------------------------
Name: Ayden X. Xxx, Xx.
Title: Chairman, President and CEO
BUYER:
FOUR OAKS BANK & TRUST COMPANY
By: /s/ Ayden X. Xxx, Xx.
-----------------------------------
Name: Ayden X. Xxx, Xx.
Title: Chairman, President and CEO
COMPANY:
NUESTRO BANCO
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Acting President and CEO
