AMENDMENT NO. 1 TO AGREEMENT
AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (the
“ Amendment”) , effective as of January 20,
2005, amends that certain Agreement and Plan of Merger (the “
Merger Agreement ”), dated as of December 16, 2004, by
and between SCBT Financial Corporation, a South Carolina
corporation (“ Buyer ”) and New Commerce
BanCorp, a South Carolina corporation (“ Seller
”).
WHEREAS , Buyer and Seller are parties to the Merger
Agreement;
WHEREAS , the parties wish to amend the Merger Agreement as
provided herein;
WHEREAS , pursuant to Section 1.4 of the Merger Agreement,
Buyer has the right to revise the structure of the Merger
contemplated by the Merger Agreement by merging Seller with and
into a wholly-owned subsidiary of Buyer, provided, that no
such revision to the structure of the Merger shall result in (i)
any changes in the amount or type of the consideration which the
holders of share of Seller Common Stock or Seller Rights are
entitled to receive under the Merger Agreement, or (ii) would
unreasonably impede or delay consummation of the Merger.
NOW, THEREFORE , in consideration of the above and the
agreements set forth herein, the parties agree as
follows:
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1.
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The text of
Section 1.1 of the Merger Agreement is hereby deleted and replaced
in its entirety with the following:
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“1.1
Merger
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(a)
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First Step
Merger. Subject to the terms and conditions of this Agreement and
the Plan of Merger, at the Effective Time, SCBT Interim Corporation
(“ SCBT Interim ”), a South Carolina corporation
and wholly owned subsidiary of South Carolina Bank and Trust, N.A.,
(“SCBT Bank”) shall be merged with and into Seller in
accordance with the applicable provisions of the South Carolina
Business Corporation Act (“SCBCA ”) and the
National Bank Act and with the effect provided therein. Seller
shall be the Surviving Corporation resulting from the Merger, shall
continue to be governed by the Laws of the State of South Carolina
and shall operate under the name “New Commerce
BanCorp.” This First Step Merger shall be consummated
pursuant to the terms and conditions of this Agreement and the
First Step Plan of Merger in substantially the form of Exhibit
1 , which has been approved and adopted by the Boards of
Directors of SCBT Interim and Seller.
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(b)
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Second Step
Merger. Subject to the terms and conditions of this Agreement and
the Second Step Plan of Merger, immediately subsequent t
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