Exhibit 2.2.2
AMENDMENT NO. 2 TO AGREEMENT OF
MERGER
THIS AMENDMENT NO. 2 TO AGREEMENT OF
MERGER (this “ Amendment ”) is made and entered
into as of October 15, 2009 between First Bankshares, Inc., a
Virginia bank holding company incorporated pursuant to the Virginia
Stock Corporation Act (“ FBS ”), and Xenith
Corporation, a Virginia corporation (“ Xenith
”). This Amendment amends that certain Agreement of Merger,
dated as of May 12, 2009, as amended by that certain Amendment
No. 1 thereto, dated as of August 14, 2009 (as so
amended, the “ Agreement ”), by and between FBS
and Xenith. Capitalized terms used herein and not otherwise defined
herein have the meanings ascribed to such terms in the
Agreement.
WITNESSETH:
WHEREAS, Section 12.03 of the
Agreement provides that the Agreement may be amended prior to the
Effective Time if, but only if, such amendment is in writing and is
signed by each party to the Agreement; and
WHEREAS, the parties to this
Amendment, being all of the parties to the Agreement, wish to amend
the Agreement as set forth herein.
NOW, THEREFORE, in consideration of
the foregoing and based on the mutual covenants and agreements
contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
AMENDMENT
Section 1.1. Amendment to
Merger Agreement . Section 11.01(b)(i) of the Agreement is
hereby amended and restated in its entirety to read as set forth
below:
“(i) the Merger has not been
consummated on or before October 30, 2009 (the “ End
Date ”); provided that the right to terminate this
Agreement pursuant to this Section 11.01(b)(i) shall not be
available to any party whose breach of any provision of this
Agreement results in the failure of the Merger to be consummated by
such time;”
ARTICLE II
MISCELLANEOUS
Section 2.1 Terms of
th
