EXHIBIT 2.1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of February
25, 2003 (the "Amendment"), by and among FIRST COMMUNITY BANCSHARES, INC.
("Parent"), FIRST COMMUNITY BANK, NATIONAL ASSOCIATION ("First Community Bank"),
and THE COMMONWEALTH BANK ("CommonWealth Bank," and together with Parent and
First Community Bank, the "Parties"). Capitalized terms not otherwise defined
herein shall have the meaning as set forth in the original Agreement.
WHEREAS, the Parties entered into an Agreement and Plan of Merger,
dated as of January 27, 2003 (the "Agreement");
WHEREAS, the Parties hereto wish to modify and amend the Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the premises, covenants and
agreements hereinafter set forth, the Parties hereto agree as follows:
SECTION 1. AMENDMENT OF SECTION 1.01 OF THE AGREEMENT.
The definition of "Maximum Cash Consideration" is hereby added
to Section 1.01 of the Agreement to read as follows:
"Maximum Cash Consideration" has the meaning set forth in
Section 3.01(b)(2)(iii).
SECTION 2. AMENDMENT TO SECTION 3.01 OF THE AGREEMENT.
Subsection (2) of subsection (b) of Section 3.01 of the
Agreement is amended to read in its entirety as follows:
(2) For purposes of this Agreement:
(i) the "Aggregate Cash Consideration" shall amount
to the product of the number of shares of CommonWealth Bank Common
Stock outstanding immediately prior to the Effective Time times .4
times $30.50;
(ii) the "Average Share Price" of the Parent Common
Stock shall mean the average of the closing sales price of a share of
Parent Common Stock, as reported on Nasdaq (as reported by an
authoritative source), for the 20 trading-day period ending with the
close of business on the fifth Business Day preceding the Effective
Time; and
(iii) the "Maximum Cash Consideration" shall amount
to the product of the number of shares of CommonWealth Bank Common
Stock outstanding immediately prior to the Effective Time times .5
times $30.50.
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SECTION 3. AMENDMENT OF SECTION 3.02 OF THE AGREEMENT.
Subsections (ii) and (iii) of subsection (d) of Section 3.02
of the Agreement are amended and restated in their entirety and a new subsection
(iv) is added, in each case to read as follows:
(ii) If the number of Cash Election Shares times the Per Share
Cash Consideration is greater than the Maximum Cash Consideration,
then:
(1) all Stock Election Shares and all No-Election
Shares shall be converted into the right to receive Parent Common
Stock,
(2) the Exchange Agent shall convert on a pro rata
basis as described below in Section 3.02(e) a sufficient number of Cash
Election Shares (excluding any Dissenting Shares) ("Reallocated Stock
Shares") such that the number of remaining Cash Election Shares
(including Dissenting Shares) times the Per Share Cash Consideration
equals the Maximum Cash Consideration, and all Reallocated Stock Shares
shall be converted into the right to receive Parent Common Stock, and
(3) the Cash Election Shares (subject to Section
3.06 with respect to Dissenting Shares) which are not Reallocated Stock
Shares shall be converted into the right to receive cash.
(iii) If the number of Cash Election Shares times the Per
Share Cash Consideration is equal to the Aggregate Cash Consideration,
then subparagraphs (d)(i) and (ii) above shall not apply and all Cash
Election Shares (subject to Section 3.06 with respect to Dissenting
Shares) shall be converted into the right to receive cash and all
No-Election Shares and all Stock Election Shares will be converted into
the right to receive Parent Common Stock.
(iv) If the number of the Cash Election Shares times the Per
Share Cash Consideration is greater than the Aggregate Cash
Consideration but less than the Maximum Cash Consideration, then:
(1) all Cash Election Shares (subject to Section 3.06
with respect to Dissenting Shares) shall be converted into the right to
receive cash,
(2) all Stock Election Shares shall be converted
into the right to receive Parent Common Stock,
(3) the Exchange Agent shall convert a sufficient
number of No-Election Shares into Reallocated Cash Shares such that the
sum of the number of Cash Election Shares plus the number of
Reallocated Cash Shares times the Per Share Cash Consideration equals
the Maximum Cash Consideration, and
(4) the No-Election Shares which are not Reallocated
Cash Shares shall be converted into the right to receive Parent Common
Stock.
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SECTION 4. MISCELLANEOUS.
(a) The Agreement is incorporated herein by reference.
(b) Except as otherwise set forth herein, the Agreement, as
amended hereby, shall remain in full force and effect and the Parties shall have
all the rights and remedies provided thereunder with the same force and effect
as if the Agreement were restated herein in its entirety.
(c) The provisions hereof shall be binding upon and inure to
the benefit of the Parties and their respective executors, heirs, personal
representatives, successors and assigns.
(d) This Amendment may be executed and delivered in several
counterparts with the intention that all such counterparts, when taken together,
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
FIRST COMMUNITY BANCSHARES, INC. FIRST COMMUNITY BANK, NATIONAL ASSOCIATION
By: By:
---------------------------- --------------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxx
Title: President and Title: Executive Vice President
Chief Executive Officer
THE COMMONWEALTH BANK
By:
----------------------------
Name: Xxxxxxxx X. Xxxx
Title: Chairman of the Board
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