Execution Copy
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
TOWER BANCORP, INC.
AND
FNB FINANCIAL CORPORATION
WHEREAS, Tower Bancorp, Inc. ("Tower") and FNB Financial Corporation
("FNB") have entered into an Agreement and Plan of Merger dated September 21,
2005 (the "Agreement");
WHEREAS, Tower and FNB intend that unless specifically defined herein, all
capitalized terms in this amendment shall have the same meaning as the defined
terms in the Agreement.
WHEREAS, Tower and FNB mutually agree to amend and modify the Agreement to
permit Election Forms to be mailed to FNB shareholders separately from the
Prospectus/Proxy Statement;
WHEREAS, Tower and FNB believe that this amendment is in the best
interests of all parties.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements and conditions contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Tower and FNB, intending to be legally bound hereby, agree as follows:
1. Effective as of the date of this amendment, Section 2.02(b) of the
Agreement is amended and restated as follows:
(b) Election Procedures. Tower and FNB shall cause the Exchange Agent to
mail an Election Form to holders of FNB Common Stock not more than
forty (40) Business Days and not less than twenty (20) Business Days
prior to the Election Deadline. Each Election Form shall permit the
holder (or in the case of nominee record holders, the beneficial
owner through proper instructions and documentation):
(i) To elect to receive the Common Stock Consideration with
respect to all or a portion of their shares of FNB Common
Stock (the "Common Stock Election Shares"); or
(ii) To elect to receive the Cash Consideration with respect to all
or a portion of their shares of FNB Common Stock (the "Cash
Election Shares").
Execution Copy
Tower and FNB shall each use its reasonable efforts to make
the Election Form available to all persons who become holders
of FNB Common Stock during the period between the record date
for the FNB Shareholders Meeting and the Election Deadline.
Any holder's Election shall have been properly made only if
the Exchange Agent shall have received at its designated
office, by the Election Deadline, a properly completed and
signed Election Form accompanied by the FNB Certificates to
which such Election Form relates, in form acceptable for
transfer (or by an appropriate guarantee of delivery of such
FNB Certificates as set forth in such Election Form from a
firm which is an "eligible guarantor institution" (as defined
in Rule 17Ad-15 under the Exchange Act) provided that such FNB
Certificates are in fact delivered to the Exchange Agent by
the time set forth in such guarantee of delivery). If a holder
of FNB Common Stock: (i) does not submit a properly completed
Election Form before the Election Deadline; (ii) revokes an
Election Form prior to the Election Deadline and does not
resubmit a properly completed Election Form prior to the
Election Deadline; or (iii) fails to perfect his, her or its
dissenters' rights pursuant to Section 2.05(b) of this
Agreement, the shares of FNB Common Stock held by such holder
shall be designated "No-Election Shares." Nominee record
holders who hold FNB Common Stock on behalf of multiple
beneficial owners shall be required to indicate how many of
the shares held by them are Common Stock Election Shares, Cash
Election Shares and No-Election Shares.
For purposes of this Section 2.02, any Dissenting FNB Shares
shall be deemed to be Cash Election Shares and, with respect
to such shares, the holders thereof shall in no event be
classified as holders of Reallocated Common Stock Shares as
defined herein.
2. The parties further agree that this amendment is an amendment within
the meaning of Section 8.03 of the Agreement and that this amendment complies
with the terms and provisions thereof.
3. Except as provided in this amendment, all terms and conditions of the
Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this amendment to be
executed in counterparts by their duly authorized officers and their corporate
seals to be affixed thereon this 14th day of December, 2005.
ATTEST: TOWER BANCORP, INC.
By: /s/ Xxxx X. XxXxxxxx Xx. By: /s/ Xxxxxxx X. Xxxxx
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Xxxx X. XxXxxxxx Xx., Secretary Xxxxxxx X. Xxxxx
President and Chief Executive Officer
ATTEST: FNB FINANCIAL CORPORATION
By: /s/ Xxxxxxxx Xxxxx By: /s/ Xxxx X. Xxxxxx
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Xxxxxxxx Xxxxx, Secretary Xxxx X. Xxxxxx
President and Chief Executive Officer
