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AMENDMENT TO AGREEMENT AND PLAN OF MERGER
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This AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment") is
made and entered into as of the 14th day of March, 2000, by and between
ENTERBANK HOLDINGS, INC., a Delaware corporation ("Enterbank"), and
COMMERCIAL GUARANTY BANCSHARES, INC., a Kansas corporation ("CGB").
RECITALS
WHEREAS, Enterbank and CGB are party to that certain Agreement and Plan
of Merger dated as of January 5, 2000 (the "Agreement");
WHEREAS, the Enterbank and CGB desire to amend the Agreement to better
reflect the intentions of the parties;
NOW THEREFORE, in consideration of the foregoing, the mutual covenants
contained in this Amendment and the Agreement, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. The Recitals contained above are true and correct and are hereby
incorporated herein by this reference.
2. The following amendments to the Agreement shall be effective
January 5, 2000.
3. Each of the parties represents and warrants to the other that
they are authorized to enter into this Amendment and have taken all necessary
action to approve the execution hereof.
4. Clause (A) of Section 4.2(a)(ii) is hereby deleted in its
entirety and replaced with the following:
"(A) declare or pay any dividends on or make other distributions
in respect of any of its capital stock, except for cash dividends
in an amount not to exceed $.0125 per share, and dividends by a
wholly owned Subsidiary of Enterbank to Enterbank,"
5. The third sentence of Section 5.8 of the Agreement is hereby
deleted in its entirety and replaced with the following:
"Notwithstanding the foregoing provisions of this Section 5.8,
if this Agreement is terminated pursuant to Sections
7.1(f)(i)(3), 7.1(f)(ii)(2) or 7.1(h)(1), then CGB shall pay
promptly by wire transfer of immediately available funds to
such account as Enterbank shall designate the amount of all
costs and expenses
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incurred by Enterbank incident to preparing, entering into and
carrying out this Agreement and to consummating the Merger,
including without limitation, fees and expenses incurred by
Enterbank for its accountants and counsel and all SEC Fees, and
fees and expenses of Xxxxxx, Xxxxxxxx & Company, Incorporated
which amount shall not exceed $250,000 (collectively, the "Actual
Expenses")."
6. Clause (2) of Section 7.1(f)(i) is hereby deleted in its entirety
and replaced with the following:
"(2) if the condition set forth in Section 6.2(g) is not
satisfied, or"
7. This Amendment may be executed by the parties on any number of
separate counterparts, and all such counterparts so executed constitute one
agreement binding on all the parties notwithstanding that all the parties are
not signatories to the same counterpart.
8. This Amendment, together with the Agreement as amended hereby,
constitutes the entire agreement amoung the parties pertaining to the subject
matter hereof and supersedes all prior agreements, letters of intent,
understandings, negotiations and discussions of the parties, whether oral or
written.
9. The parties will execute and deliver such further instruments and
do such further acts and things as may be required to carry out the intent
and purpose of this Amendment.
10. Except as expressly modified hereby, all other terms and
conditions of the Agreement remain in full force and effect. In the event of
a conflict between this Amendment and the terms of the Agreement, the terms of
this Amendment shall govern.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their duly authorized representatives as of the day and year
first above written.
ENTERBANK HOLDINGS, INC. COMMCERCIAL GUARANTY
BANCSHARES, INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxx X. Xxxxxx
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Xxxx X. Xxxxx, President Xxx X. Xxxxxx, Chairman
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxxx, Secretary Xxxxx X. Xxxxx, Secretary
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