Exhibit 2.2
FIRST AMENDMENT TO
AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION
THIS FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN OF
REORGANIZATION (the "Amendment") is made and entered into as of August 28, 2000
by and between Heritage Bancorp, Inc., a Virginia corporation with its principal
office located in McLean, Virginia ("HBI"), Cardinal Financial Corporation, a
Virginia corporation with its principal office located in Fairfax, Virginia
("CFC"), and Cardinal Merger Corp., a Virginia corporation and wholly-owned
subsidiary of CFC ("CMC").
WITNESSETH:
WHEREAS, the parties to this Amendment entered into an Amended and
Restated Agreement and Plan of Reorganization (the "Agreement") dated as of June
19, 2000; and
WHEREAS, the parties to this Amendment now desire, pursuant to Section
8.2 of the Agreement, to amend the Agreement and the Plan of Merger in the form
attached to the Agreement as Exhibit A (the "Plan").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereby agree as follows:
1. The first paragraph of Section 2.1 (b) of the Agreement is
amended to read as follows:
By written notice to CFC in the manner described below, each
HBI shareholder may elect the form of consideration (shares of Series A
Preferred Stock or cash) into which his or her shares of HBI Common
Stock will be converted on the Effective Date; provided that despite
such elections, shareholders of HBI may be required to receive a
different amount of cash or shares of Series A Preferred Stock in the
event of a proration pursuant to Section 2.1(c). Following approval of
this Agreement and the Plan by HBI's shareholders, HBI will mail
written instructions to each of its shareholders for making the
election, together with a form (a "Notice of Election") which each
shareholder shall be required to use to make such election. HBI shall
specify a date by which a shareholder's election must be made, subject
to extension (the "Election Date"). The Election Date shall be twenty
(20) days following the date the instructions and Notice of Election
form are first distributed to HBI's shareholders or such other date
specified by HBI. The instructions and Notice of Election distributed
to HBI's shareholders shall be provided by and in a form satisfactory
to CFC and HBI.
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2. The first paragraph of Section 2.1 (b) of the Plan is amended
to read as follows:
Election of Consideration. By written notice to CFC in the
manner described below, each HBI shareholder may elect the form of
consideration (shares of Series A Preferred Stock or cash) into which
his or her shares of HBI Common Stock will be converted on the
Effective Date; provided that despite such elections, shareholders of
HBI may be required to receive a different amount of cash or shares of
Series A Preferred Stock in the event of a proration pursuant to
Section 2.1(c). Following approval of this Agreement and the Plan of
Merger by HBI's shareholders, HBI will mail written instructions to
each of its shareholders for making the election, together with a form
(a "Notice of Election") which each shareholder shall be required to
use to make such election. HBI shall specify a date by which a
shareholder's election must be made, subject to extension (the
"Election Date"). The Election Date shall be twenty (20) days following
the date the instructions and Notice of Election form are first
distributed to HBI's shareholders or such other date specified by HBI.
The instructions and Notice of Election distributed to HBI's
shareholders shall be provided by and in a form satisfactory to CFC and
HBI.
3. Except as amended hereby, the Agreement shall remain in full
force and effect and shall be otherwise unaffected hereby.
4. Unless otherwise defined herein, all defined terms used herein
shall have the same meanings given to them in the Agreement.
5. This Amendment shall be deemed to be a contract made under the
laws of the Commonwealth of Virginia and for all purposes shall be governed by
and construed in accordance with the laws of such Commonwealth applicable to
contracts to be made and performed entirely within such Commonwealth.
6. This Amendment may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument. The parties hereto acknowledge and agree that original
signatures delivered by facsimile transmission shall be accepted as original to
evidence execution of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed in counterparts by their duly authorized officers and their corporate
seals to be affixed hereto, all as of the dates first written above.
CARDINAL FINANCIAL CORPORATION
By: /s/ L. Burwell Gunn, Jr.
-----------------------------------------
L. Burwell Gunn, Jr.
President and Chief Executive Officer
ATTEST:
/s/
------------------------------
Secretary
CARDINAL MERGER CORP.
By: /s/ L. Burwell Gunn, Jr.
-----------------------------------------
L. Burwell Gunn, Jr.
President and Chief Executive Officer
ATTEST:
/s/
------------------------------
Secretary
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HERITAGE BANCORP, INC.
By: /s/ Terrie G. Spiro
-------------------------------------
Terrie G. Spiro
President and Chief Executive Officer
ATTEST:
/s/
------------------------------
Secretary
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