Exhibit 5
AMENDMENT NO. 1 TO AGREEMENT OF MERGER
This Amendment No. 1 (this "Amendment") to the Agreement of Merger,
dated as of December 27, 2005 (the "Merger Agreement"), is entered into as of
April 13, 2006, by and among F&M Holding Company ("F&M"), Cascade Bancorp
("Cascade"), F&M Acquisition Corporation (formerly Igloo Acquisition
Corporation) ("Acquisition Co.") and Xxxxx X. Xxxxxx (the "Xxxxxx Shareholder").
RECITALS
WHEREAS, F&M, Cascade, Acquisition Corp. and the Xxxxxx Shareholder are
parties to the Merger Agreement, and wish to amend the Merger Agreement with
respect to certain covenants and conditions precedent contained therein in order
to facilitate the closing of the Merger.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. Definitions. All capitalized terms used and not defined herein shall
have the meanings given to them in the Merger Agreement.
2. Closing Balance Sheet. The first sentence of Section 5.12 of the
Merger Agreement is hereby amended and restated as follows:
"Not fewer than five (5) days prior to the Closing Date, F&M will
prepare and deliver to Cascade an updated, unaudited consolidated
balance sheet of F&M Bank dated as of March 31, 2006 (the
"Closing Balance Sheet")."
3. Certain Obligations. Cascade hereby agrees that the requirements and
obligations set forth in Section 5.17 of the Merger Agreement are hereby waived.
4. Continued Force and Effect. The Merger Agreement, as amended by this
Amendment, is hereby ratified and affirmed as of the date hereof, and shall
continue to be in full force and effect.
5. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument, may be delivered by facsimile and shall
become effective when one or more counterparts have been signed by each of the
parties and delivered to the other parties.
6. Headings and Captions. All headings and captions contained in this
Amendment are inserted for convenience only and shall not be deemed a part of
this Amendment.
7. Governing Law. This Amendment shall in all respects, including all
matters of construction, validity and performance, be governed by, and construed
and enforced in accordance with, the laws of the State of Oregon, without
reference to any rules governing conflicts of laws.
[The next page is a signature page.]
IN WITNESS WHEREOF, F&M, Cascade, Acquisition Co. and the Xxxxxx
Shareholder have caused this Amendment to be signed by their respective officers
thereunto duly authorized, all as of the date first written above.
CASCADE BANCORP
By: /s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxx
Chief Executive Officer
F&M HOLDING COMPANY
By: /s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx
President
F&M ACQUISITION CORPORATION
By: /s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxx
President and CEO
XXXXXX SHAREHOLDER
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
