EXHIBIT 2.2
FIRST AMENDMENT TO PLAN AND AGREEMENT TO MERGE
First Amendment to PLAN AND AGREEMENT TO MERGE (this "Amendment") dated as
of November __, 1999 to the PLAN AND AGREEMENT TO MERGE (the "Plan"), dated as
of September 28, 1999 by and between COLUMBIA BANCORP ("Columbia Bancorp"), a
Maryland corporation, and SUBURBAN BANCSHARES, INC. ("Suburban Bancshares"), a
Delaware corporation.
W I T N E S S E T H:
WHEREAS, Columbia Bancorp and Suburban Bancshares are parties to the Plan
whereby Suburban Bancshares has agreed to merge with and into Columbia Bancorp,
with Columbia Bancorp as the surviving entity.
WHEREAS, Suburban Bancshares and Columbia Bancorp wish to amend the Plan
pursuant to Section 12 of the Plan in order to provide for any stockholders of
Suburban Bancshares which exercise dissenters' rights of appraisal.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and the mutual benefits to be derived herefrom, the parties
agree as follows:
1. Section 9.2 of the Plan is hereby amended by deleting that section in
its entirety and inserting the following in lieu thereof:
9.2. Conversion of Stock; Conversion Ratio. (a) On the Effective
Date, each share of the Suburban Bancshares Common Stock outstanding
immediately prior to the Effective Date (other than shares (the
"Dissenters' Shares") with respect to which dissenter's rights shall have
been perfected in accordance with De. General Corporation Law (S) 262),
shall, without any action on the part of the holder thereof, be canceled
and converted into the number of shares of Successor Corporation Common
Stock (rounded to the nearest 0.01 share) which results after
multiplication by the Conversion Ratio. The Conversion Ratio shall be
0.2196; provided, however, that the Conversion Ratio shall be increased
(but not decreased) to the extent necessary to cause the average market
value (based on the mean of the daily high and low trade prices, or, if
none, of the daily high bid and low asked prices, reported on NASDAQ) of
Columbia Bancorp Common Stock (for each of the 10 trading days ending on
the trading date that is three days before the Effective Date) received for
each share of Suburban Bancshares Common Stock to be $3.00 per share;
provided, further that such adjustment may not increase the Conversion
Ratio above 0.2338.
(b) No certificates for fractional shares of Successor
Corporation Common Stock shall be issued; in lieu thereof, each holder
otherwise entitled to a fractional interest shall receive an amount in cash
based on the market value of Columbia Bancorp Common Stock as determined in
Section 9.2. Each such holder shall have no other rights with respect to
such fractional interest.
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(c) Dissenters' Shares shall be paid for in accordance with De.
General Corporation Law (S) 262 and thereupon shall be cancelled, retired
and cease to exist.
(d) Notwithstanding any provision of this Plan to the contrary,
any Dissenters' Shares, which as of the Effective Date the holder thereof
has not withdrawn or lost any right to such appraisal shall not be
exchanged, or represent a right to receive shares of Columbia Bancorp
Common Stock, but the holder shall only be entitled to such rights as are
granted by De. General Corporation Law (S) 262. If a stockholder of
Suburban Bancshares who demands appraisal of his shares under De. General
Corporation Law (S) 262 shall effectively withdraw or lose (through failure
to perfect or otherwise) the right to appraisal, then, as of the Effective
Date or the occurrence of such event, whichever last occurs, that
stockholder's shares of the Suburban Bancshares Common Stock shall be
exchanged and represent only the right to receive shares of Columbia
Bancorp Common Stock as provided in Section 9.2(a) pursuant to the
procedures in Section 9.3. Suburban Bancshares shall give Columbia Bancorp
(a) prompt written notice of any written demands for appraisal of any share
of the Suburban Bancshares Common Stock, attempted withdrawals of such
demands and any other instruments served pursuant to the De. General
Corporation Law (S) 262 relating to the Suburban Bancshares stockholders'
rights of appraisal and (b) the opportunity to direct all negotiations and
proceedings with respect to demands for appraisal under De. General
Corporation Law (S) 262. Suburban Bancshares shall not, except with the
prior written consent of Columbia Bancorp, voluntarily make any payment
with respect to any demands for appraisals of share of the Suburban
Bancshares Common Stock, offer to settle or settle any such demands or
approve any withdrawal of any such demands. Notwithstanding any provision
of this Plan to the contrary, Columbia Bancorp shall have the right to
terminate this Plan and be released from all obligations hereunder if,
immediately prior to the proposed Effective Date, Suburban Bancshares
stockholders have demanded appraisal rights (which demands theretofore have
not been withdrawn) in such numbers that jeopardize the accounting
treatment specified in Section 7.10 and, KPMG LLP fails or refuses to
deliver a letter to Columbia Bancorp to the effect that the Mergers qualify
for pooling-of-interests accounting treatment, as provided in Section 7.10.
2. Section 13(d) of the Plan is hereby amended by deleting that
subsection in its entirety and inserting the following in lieu thereof:
(d) by Columbia Bancorp by written notice to Suburban Bancshares
if prior to June 30, 2000 (i) any approval, consent, or waiver of any
Governmental Entity required to permit consummation of the transactions
contemplated hereby shall have been denied, (ii) any approval, consent, or
waiver of any Governmental Entity required to permit consummation of the
transactions contemplated hereby shall include any condition or requirement
that would (i) result in a materially adverse effect on Columbia Bancorp or
Suburban Bancshares, or (ii) so materially and adversely affect the
economic or business benefits of the Mergers that Columbia Bancorp, in the
sole judgment of Columbia
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Bancorp, would not have entered into this Plan had such conditions or
requirements been known at the date hereof, (iii) any action or proceeding
against Columbia Bancorp or any of the Columbia Subsidiaries or against
Suburban Bancshares or any of the Suburban Subsidiaries shall be pending
which seeks to prevent consummation of the transactions contemplated by
this Plan, (iv) any court shall have entered an order which prohibits
consummation of the Mergers and the transactions contemplated by this Plan,
or (v) termination is permitted as provided in Section 9.2(d);
3. The Plan and all provisions thereof remain in full force and effect
unless specifically modified or amended hereby.
IN WITNESS WHEREOF, Columbia Bancorp and Suburban Bancshares have caused
this Amendment to be duly executed by their respective chairmen or presidents,
and their respective seals to be hereunto affixed and attested by their
respective secretaries, thereunto duly authorized as of the date first above
written.
ATTEST: [SEAL] COLUMBIA BANCORP
By: ________________________________________
Xxxx X. Xxxxxxxx, Xx. Xxxx X. Xxxx, Xx.
Secretary President and Chief Executive Officer
ATTEST: [SEAL] SUBURBAN BANCSHARES, INC.
By: ________________________________________
Xxxxxxxx X. Xxxxx, Xx.
Secretary Chairman of the Board
and Chief Executive Officer
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