FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
FIRST
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER dated
June 21, 2010 (this “Amendment”),
is made to the Agreement and Plan of Merger dated as of
November 6, 2009 (the “Merger
Agreement”), by and among WESTERN LIBERTY BANCORP,
a Delaware corporation with its principal place of business in
New York, New York (“Parent”), WL-S1
INTERIM BANK, a Nevada corporation, SERVICE1ST BANK OF NEVADA, a
Nevada-chartered non-member bank
(“Bank”), and XXXXXX X. XXXXXXXX, an
individual, as the representative of the Persons who will be
former stockholders of Bank after the Closing. Capitalized terms
used but not defined herein shall have the meanings ascribed to
such terms in the Merger Agreement.
RECITALS
WHEREAS, pursuant to Section 12.5 of the Merger
Agreement, Parent and Bank wish to amend the Merger Agreement as
set forth in this Amendment.
NOW THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements herein contained, and
of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Parent and Bank
hereby agree as follows:
1. Amendments.
a. Merger Consideration. Clauses (i)
and (ii) of Section 3.2(a) of the Merger Agreement are
hereby deleted in their entirety and replaced with the following:
(i) an amount (the “Base Merger
Consideration”) equal to:
(A) the Tangible Book Value of Bank as of the Valuation
Date as calculated pursuant to Section 4.1, minus
(B) all Bank-Borne Transaction Expenses, minus
(C) $1,000,000; and
(ii) if at any time during the first two years after the
Effective Time, either (x) Parent Common Stock shall have
closed trading on the New York Stock Exchange or such other
national securities exchange (a “National
Exchange”) on which Parent Common Stock is then
listed at a price in excess of $12.75 per share (as reported in
the Wall Street Journal or, if not reported thereby, an
alternative chosen mutually by Parent and Bank) for thirty
(30) consecutive trading days or (y) in the event
Parent Common Stock is not listed on a National Exchange, if
Parent Common Stock shall have closed trading on the
Over-the-Counter Bulletin Board at a price in excess of
$12.75 per share (as reported in the Wall Street Journal or, if
not reported thereby, an alternative chosen mutually by Parent
and Bank) for thirty (30) consecutive trading days, an
additional amount equal to the following (such amount, if
payable, the “Contingent Merger
Consideration”): 20% of the Tangible Book Value as
of the Valuation Date as calculated pursuant to Section 4.1.
b. References to Merger Agreement. The
term “Agreement” as defined in the
recitals and Schedule II of the Merger Agreement is hereby
amended to refer to the Merger Agreement, as amended, restated,
modified or otherwise supplemented from time to time, including
without limitation, by this Amendment.
c. References to Date of the Merger
Agreement. Notwithstanding the execution of this
Amendment, any and all references in the Merger Agreement to the
date of the “Agreement” shall be a reference to
November 6, 2009.
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d. Material Adverse Effect.
i. The date “December 31, 2008” in
Section 5.18(b) of the Merger Agreement is hereby replaced
with “March 31, 2010”.
ii. The words “the Balance Sheet Date” in
Section 10.2(f) of the Merger Agreement are hereby replaced
with “March 31, 2010”.
e. Post-Effective Amendment to Registration
Statement. A new Section 7.12 is hereby
added to the Merger Agreement reading in its entirety as follows:
Section 7.11. Post-Effective Amendment to
Registration Statement. In accordance with the
provisions of Section 8.4(b) of the Merger Agreement,
(i) Parent shall file with the SEC as promptly as
practicable after the date of the First Amendment to Agreement
and Plan of Merger, dated June 21, 2010 among the parties
to this Agreement (the “Amendment”), a
post-effective amendment to the Registration Statement to amend
the Registration Statement to reflect the terms of the Amendment
(the “Registration Statement
Amendment”), (ii) Parent and Bank shall use
reasonable best efforts to have the Registration Statement
Amendment declared effective as soon as practicable and
(iii) as required by Applicable Law, Bank shall disseminate
the information contained in the Registration Statement
Amendment to the Bank Stockholders; provided, however,
that no amendment will be filed and no such information shall be
otherwise disseminated without prior consultation between Parent
and Bank and providing Parent and Bank with a reasonable
opportunity to review and comment on such amendment. For the
avoidance of doubt, the provisions of this Agreement relating to
the Registration Statement, including Section 7.10, shall
to the extent reasonably applicable apply to the Registration
Statement Amendment mutatis mutandis.
f. Bank Proxy Statement; Meeting of the Bank
Stockholders. A new Section 7.13 is hereby
added to the Merger Agreement reading in its entirety as follows:
Section 7.13. Bank Proxy Statement; Meeting
of the Bank Stockholders. Bank shall prepare
promptly following the date of the Amendment an amended Bank
Proxy Statement to reflect the terms of this Amendment. Bank,
acting through the Bank Board, shall take all actions in
accordance with Nevada Law, the Articles of Incorporation and
Bylaws of Bank and all other Applicable Laws to mail such
amendment to the Bank Proxy Statement and duly call and give
notice of as promptly as practicable after the Registration
Statement Amendment shall have become effective, and to convene
and hold, as promptly as practicable thereafter, a meeting of
the Bank Stockholders, or otherwise solicit written consents of
the Bank Stockholders, to obtain the Bank Stockholder Approval
of the Merger Agreement, as amended by the terms of the
Amendment, and the Related Documents, and the performance by
Bank of the Merger and the other transactions contemplated by
the Agreement and the Related Documents. For the avoidance of
doubt, the provisions of this Agreement relating to the Proxy
Statement, including Section 7.10, shall to the extent
reasonably applicable apply to the amended Bank Proxy Statement
mutatis mutandis.
g. Meeting of Parent’s
Stockholders. The phrase “as promptly as
practicable after the Registration Statement shall have become
effective” contained in the first sentence of
Section 8.5(a) of the Merger Agreement is hereby deleted in
its entirety and replaced with the following phrase: “as
promptly as practicable after the making of any such
determination, if any, by the Parent Board”.
h. Exclusivity; Superior Bank
Proposal. The reference to
“Section 11.2(b)(iv)” contained in
Section 7.9(c) of the Merger Agreement is hereby replaced
with “Section 11.2(b)(vi)”.
i. Additional Capital. The reference to
“$15,000,000” in Section 8.7 of the Merger
Agreement is hereby replaced with “$25,000,000”.
j. Bank-Designated Director. Bank
Schedule 8.8 of the Merger Agreement is hereby amended to
replace the name “Xxxxx X. Xxxxx” with “Xxxxxx
Xxxxxxxx”.
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k. Employment of Xxxx
Xxxxxx. Section 10.2(h) is hereby replaced
in its entirety with the following:
(h) Certain Employment
Arrangements. (i) Xx. Xxxxxx shall
continue to be employed by Bank
and/or
Parent, (ii) the Employment Agreement entered into by
Parent with Xx. Xxxxxx shall remain in full force and
effect, except in the case of death or disability, and
(iii) the Employment Agreement entered into by Parent with
Xx. Xxxxxx shall have been terminated without any liability
to Bank, Parent or any of their Affiliates and otherwise on
terms and conditions reasonably acceptable to Parent;
provided, however, that the condition set forth in
clause (ii) shall not apply with respect to any Employment
Agreement that has been terminated by Parent (other than as
required by Applicable Law or if Parent reasonably believes that
such termination is required in order to obtain Regulatory
Approvals as a result of discussions with Bank Regulators, and
Parent provides Bank with written notice of the termination of
such Employment Agreement specifying in reasonable detail the
basis on which Parent’s reasonable belief for such
termination is based).
2. Miscellaneous
Provisions. Sections 12.2, 12.3, 12.5, 12.6,
12.7, 12.8, 12.9, 12.10 and 12.11 of the Merger Agreement are
incorporated into this Amendment by reference as if they were a
part hereof and for the purposes of this Section 2,
each reference to the “Agreement” therein shall be
construed as a reference to this Amendment.
3. Survival of Merger Agreement. Except
as amended hereby, all the terms of the Merger Agreement shall
remain in full force and effect. This Amendment amends certain
provisions of the Merger Agreement and together with the Merger
Agreement sets forth the entire agreement and understanding of
the parties hereto in respect of the subject matter hereof and
thereof.
SIGNATURES
ON THE FOLLOWING PAGE
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IN WITNESS WHEREOF, each of the undersigned Amendment has caused
this Amendment to be duly executed and delivered as of the date
first written above.
Parent:
| By: |
/s/ Xxxxx
X. Xxxx
|
Name: Xxxxx X. Xxxx
| Title: | Chairman |
Bank:
SERVICE1ST BANK OF NEVADA
| By: |
/s/ Xxxxxxx
X. Xxxxxx
|
Name: Xxxxxxx X. Xxxxxx
| Title: | Vice Chairman & CEO |
ACKNOWLEDGED AND AGREED TO BY:
/s/ Xxxxxx
X. Xxxxxxxx
XXXXXX X. ANDERSON, in his capacity as
the Former Stockholders’ Representative
WL-S1 INTERIM BANK
| By: |
/s/ Xxxxx
X. Xxxx
|
Name: Xxxxx X. Xxxx
| Title: | Chairman |
[SIGNATURE
PAGE TO FIRST AMENDMENT TO MERGER AGREEMENT]
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