AMENDMENT NO. 2 TO THE AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 2 (this Amendment) to that certain Agreement and Plan of Merger, dated as of October 24, 2019 (the Merger Agreement), by and among EMPIRE BANCORP, INC., a New York corporation (the Company), LIGHTHOUSE ACQUISITION CO., INC., a New York corporation and a special-purpose, wholly owned subsidiary of Parent (the Merger Sub), and FLUSHING FINANCIAL CORPORATION, a Delaware corporation (Parent and, collectively with the Company and the Merger Sub, the Parties), as amended by Amendment No. 1 to the Merger Agreement, dated as of December 6, 2019 (Amendment No. 1 and together with the Merger Agreement, the Agreement) is made and entered into by the Parties as of August 14, 2020. Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Agreement.
WHEREAS, Section 9.2 of the Agreement provides that the Parties may amend the Agreement pursuant to an instrument in writing signed by the Parties.
WHEREAS, the Parties desire to amend the Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained in this Amendment, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
1. Section 1.11 of the Agreement is hereby amended to add the text, Subject to Section 6.20, at the beginning thereof.
2. Section 2.1(e) of the Agreement is hereby amended and restated in its entirety as follows:
Any Election shall have been made properly only if the Exchange Agent shall have received, during the Election Period, a Form of Election properly completed and signed.
3. The term Election Deadline in the Agreement shall mean 5:00 p.m. local time (in the city in which the principal office of the Exchange Agent is located) on the date of the Supplemental Company Meeting (as defined herein) or such other date and time as the Parties shall mutually agree.
4. In order to better reflect the Parties mutual intent and understanding at the time the Merger Agreement was entered into, Section 2.1 (h) of the Agreement is hereby amended and restated in its entirety as follows:
Notwithstanding any other provision contained in this Agreement, the total number of shares of Company Common Stock that will be converted into the right to receive the Per Share Cash Consideration pursuant to Section 1.5 (which, for this purpose, shall be deemed to include the Dissenting Shares) shall equal the product of 0.5 multiplied by the number of shares of Company Common Stock issued and outstanding immediately prior to the Closing including, for the avoidance of doubt, all shares of Company Common Stock subject to Company Restricted Stock Awards that have not been forfeited and that will vest in accordance with Section 1.7(c) (such number of shares of Company Common Stock, the Target Cash Conversion Number).