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EXHIBIT 10.15
1998 NON-QUALIFIED STOCK OPTION AGREEMENT
This Agreement, effective as of September 23, 1998, is between
Local Financial Corporation, a Delaware corporation (the "Company"), and Xxxxxx
X. Xxxxxxxx, an individual resident of the State of Oklahoma ("Grantee"). This
Agreement is made pursuant to the terms and conditions of the Local Financial
Corporation 1998 Stock Option Plan (the "Plan"), a copy of which has been
provided to Grantee.
1. GRANT OF OPTION. The Company grants to Grantee an option to
purchase eight hundred eleven thousand six hundred forty (811,640) shares of the
Common Stock ($0.01 par value) of the Company (the "Shares"), on the terms and
conditions set forth in the Plan and in this Agreement. This grant is
conditioned on the Grantee rescinding the option previously granted under the
stock option agreement dated September 8, 1997. The Grantee is deemed to have
rescinded the previously granted option by executing and returning a copy of
this Agreement to the Company on or before November 30, 1998.
2. PURCHASE PRICE. The Purchase Price of the Shares to be
purchased pursuant to this option shall be ten dollars ($10.00) per Share, which
is equal to or greater than one hundred percent (100%) of the fair market value
of the Shares on the date hereof.
3. VESTING. Grantee's right to exercise the option granted in
this Agreement shall vest as provided in this Section . This option shall become
vested and exercisable with respect to one-third of the Shares on the effective
date of this Agreement, one-third on September 8, 1999 and one-third on
September 8, 2000.
In the event Grantee's employment by the Company is terminated
by the Company for any reason except for "Cause," as that term is defined below,
all unexercised portions of the option granted under this Agreement shall become
immediately vested and exercisable. The term for "Cause" is defined in the same
manner contained in the Employment Agreement entered into between Grantee and
Company dated September 8, 1997, as amended. In the event the Grantee dies
during the term of the option, all unexercised portions of the option granted
under this Agreement shall become immediately vested and exercisable by the
Grantee's estate. In the event the Grantee's employment with the Company ends
because the Grantee becomes disabled, all unexercised portions of the option
granted under this Agreement shall become immediately vested and exercisable by
the Grantee or his qualified representative (in the event of the Grantee's
mental disability). In the event that a Change of Control occurs, as that term
is defined in Section 10, below, all unexercised portions of the option granted
under this Agreement shall become immediately vested on the effective date of
any such Change of Control. If the Grantee's employment by the Company, or its
subsidiary bank, is terminated for "Cause," he shall forfeit the right to any
options granted to him under this Agreement which are not vested, or which have
not been exercised by Grantee as of the date of the termination of his
employment.
4. THE PLAN. This option is granted pursuant to the Plan, the
provisions of which are incorporated into this Agreement by reference, and in
the event of any conflict between this Agreement and the Plan, the terms of the
Plan shall govern.
5. NO TRANSFER OR ASSIGNMENT OF OPTION. Except as otherwise
provided in this Agreement, this option and the rights and privileges conferred
hereby shall not be transferred, assigned, pledged, or hypothecated in any way
(whether by operation of law or otherwise) and shall
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not be subject to sale under execution, attachment, or similar process. Upon any
attempt to transfer, assign, pledge, hypothecate, or otherwise dispose of this
option, or of any right or privilege conferred hereby, contrary to the
provisions of this Agreement, or upon any attempted sale under any execution,
attachment, or similar process upon the rights and privileges conferred hereby,
this option and the rights and privileges conferred hereby shall immediately
become null and void. Notwithstanding the foregoing, the Grantee may transfer
this option in its entirety or any portion thereof at his death by will or by
intestacy, or otherwise during his lifetime to the Grantee's children and
immediate family members, whether directly or indirectly, or by means of a trust
or partnership or otherwise.
6. METHOD OF EXERCISE.
(a) NOTICE AND OPTION PAYMENT. Grantee may exercise
this option by giving written notice to the Company pursuant to Section
12(h). The notice shall specify the election to exercise this option
and the number of Shares for which it is being exercised; provided,
however, that no exercise for fractional Shares shall be permitted. The
notice shall be signed by Grantee. Grantee shall deliver to the
Company, at the time of giving the notice, payment in U.S. Dollars or a
check drawn on a U.S. financial institution in the full amount of the
Purchase Price. In addition, the option may be exercised by Grantee by
delivering to the Company (i) an exercise notice instructing the
Company to deliver the certificates for the Shares purchased to a
designated brokerage firm; and (ii) a copy of irrevocable instructions
delivered to the brokerage firm to sell the Shares acquired upon
exercise of the option and to deliver to the Company from the sale
proceeds sufficient cash to pay the exercise price.
(b) ALTERNATE PAYMENT WITH STOCK. Notwithstanding the
foregoing provisions requiring payment by check or delivery of shares
to a brokerage firm, payment of such Purchase Price owing upon the
exercise of an option hereunder or any portion thereof, or payment of
the withholding amount or any portion thereof, may be made by Grantee
tendering to the Company his Shares, or surrendering his exercisable
options hereunder, if the Shares are then publicly traded (as defined
below). Shares tendered or options surrendered shall be credited toward
such Purchase Price or withholding amount on the valuation basis set
forth below. In the case of Shares tendered, the stock certificates
evidencing the Shares to be used shall accompany the notice of exercise
and shall be duly endorsed or accompanied by duly executed stock powers
to transfer the same to the Company. Payment in Common Stock or options
instead of cash shall not be effective and shall be rejected by the
Company if (i) the Company is then prohibited from purchasing or
acquiring the shares, or (ii) the right or power of the person
exercising the options to deliver such shares or options in payment of
the Purchase Price or withholding amount is subject to the prior
interest of any other person (excepting the Company), as indicated by
legends upon the certificate(s) or is known to the Company. For
purposes of this Section 6(b): (y) "Publicly Traded Shares" are those
that are listed or admitted to unlisted trading privileges on a
national securities exchange or as to which bid and offer quotations
are reported in the automated quotation system ("NASDAQ") operated by
the National Association of Securities Dealers, Inc. ("NASD"), and (z)
for credit toward the Purchase Price or withholding amount, shares
tendered or options surrendered shall be valued as of the day
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immediately preceding the delivery to the Company of the certificates
evidencing such shares, in the case of tendered shares, or the option
exercise notice, in the case of surrendered options. If such day is not
a trading day in the United States Securities Markets, the shares shall
be valued on the nearest preceding trading day. The valuation shall be
made on the basis of the closing price of the Shares as reported with
respect to the market (or the composite of the markets, if more than
one) in which such Shares are then traded, or if no such closing prices
are reported, the lowest independent offer quotation reported therefor
in Level 2 of NASDAQ, or if no such quotations are reported, then on
the basis of the most nearly comparable valuation method acceptable to
the Company. If the Company rejects the payment in stock or options,
the tendered Notice of Exercise shall not be effective under this
Option Agreement unless promptly after being notified of such
rejection, the Grantee exercising the option pays the Purchase Price or
withholding amount as the case may be, in acceptable form as required
above in this Section 6.
(c) ISSUANCE OF SHARES. After receiving a proper
notice of exercise, the Company shall issue a certificate or
certificates for the Shares as to Grantee, registered in Grantee's name
(or in Grantee's name and the name of Grantee's spouse as community
property or as joint tenants with a right of survivorship) or permitted
transferee under Section 5.
7. TERM AND EXPIRATION.
(a) TERM. This option, if it has not expired earlier
under the provisions of Section 7(b), shall expire in all events on the
tenth (10th) anniversary of the effective date of this Agreement.
(b) TERMINATIONS OF OPTIONS. The option granted under
this Agreement, to the extent that it has not been exercised, shall
terminate at the earliest of any of the following times: In the event
of Grantee's death, the Grantee's estate shall have the original term
of the option to exercise the option. If Grantee's employment ends
because Grantee becomes disabled, the Grantee or his qualified
representative (in the event of the optionee's mental disability) shall
have the original term of the option to exercise the option. If Grantee
voluntarily resigns from the Company, the option shall terminate sixty
(60) months after the date of resignation, subject to the provision of
Section 7(a), above. If Grantee's employment is terminated by the
Company for reasons other than for "Cause," as defined above, the
Grantee shall have the original term of the option to exercise the
option, subject to the provision of Section 7(a), above. If Grantee's
employment with the Company is terminated for "Cause," as that term is
defined in his above-referenced Employment Agreement, the options
granted hereunder shall terminate completely on the date of such
termination. If Grantee's employment with the Company ends for any
reason not mentioned above in this Section 7(b), the options granted
hereunder shall terminate sixty (60) months after the date of
termination of employment, subject to the provision of Section 7(a),
above.
8. LEGALITY OF INITIAL ISSUANCE. No Shares shall be issued
upon the exercise of this option unless and until the Company has determined
that all applicable provisions of state and federal securities laws have been
satisfied.
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9. GROSS-UP BONUS. Upon any exercise, cancellation or cash out
by Grantee of his options hereunder, or any exercise by him of the Stock
Appreciation Rights granted to him under the provisions of Section 12, below, by
or for any reason or on any basis permitted under this Agreement, the Company
shall pay the Grantee a Gross-Up Bonus for all of his applicable resulting
federal and state taxes. The Gross-Up Bonus shall be paid at the time of the
exercise, cancellation or cash out of the option. The Gross-Up Bonus shall be
equal to: ["X" divided by "Y"] minus "X," where "X" is the compensation income
recognized by Grantee upon the exercise, cancellation or cash out of the option
and "Y" is one (1) minus [the sum of Grantee's federal and state tax rates and
Medicare rate]. The intent of the Gross-Up Bonus is to allow the net amount
received by the Grantee, after withholding all necessary federal and state
taxes, to equal the compensation income recognized from the options.
10. CHANGE OF CONTROL. Upon the effective date of any Change
of Control (as that term is defined below in this Section 10), all unexercised
portions of the options granted to the Grantee under this Agreement shall become
immediately vested and, in such event, the Grantee shall be entitled to elect to
do one of the following, in his sole and absolute discretion (Grantee's said
election to be evidenced by a written notice so indicating to be delivered by
Grantee to the Company, or to the Company's successor or assign, within thirty
(30) days after the said effective date of such Change of Control), namely:
(a) If Company survives such Change of Control and
continues to have shares of common stock issued and outstanding, then,
and, in such event, Grantee can elect to continue this Agreement in
full force and effect upon all of the same terms and conditions and to
fully retain the rights, benefits and options granted to him hereunder;
or
(b) to accept in lieu of the options to acquire the
Shares of the Company's common stock granted to him under this
Agreement options to acquire a proportionate amount (based on the
relation of the fair market value of the Company's Shares to the fair
market value of the common stock of the surviving, resulting or
acquiring corporation, as of the effective date of the said Change of
Control) of the common stock of the surviving, resulting or acquiring
corporation based on the same exercise price stated herein, with the
continuing right to receive the Gross-Up Bonus, when applicable,
pursuant to Section 9, above, and otherwise containing all of the other
identical terms and conditions of the options granted to Grantee under
this Agreement made fully applicable to Grantee's said option to
acquire the common stock of said surviving, resulting or acquiring
corporation pursuant hereto; or
(c) to accept as payment in full for all of Grantee's
rights under this Agreement and for all of the options granted to him
hereunder a "cash-out" payment in an amount equal to the difference
between the fair market value on the effective date of the Change of
Control of the underlying Shares subject to Grantee's options hereunder
and the exercise price of those options under this Agreement. The full
amount of the "cash-out" payment of such differential shall be payable
to Grantee, in cash, within ten (10) days of Grantee's delivery of his
written election hereunder to the Company, or its successor or assign.
In the event Grantee elects to receive the "cash-out" payment for his
options pursuant to this Section 10, Grantee shall also be entitled to
receive the Gross-Up Bonus with regard thereto as specifically provided
by the terms of Section 9, above, of this Agreement.
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The Company expressly covenants and agrees that it will
require as an express condition to any merger or acquisition which it enters
into constituting a Change of Control under this Agreement that the surviving,
resulting or acquiring corporation (i) expressly assume and obligate itself in
writing to fully perform and pay all of the obligations of the Company under
this Agreement; (ii) expressly acknowledge in writing that a Change of Control
as defined in this Section 10 has occurred such as to entitle Grantee to
exercise all of the rights, elections and entitlements granted to him by the
provisions of this Section 10; and (iii) that it will be bound by Grantee's said
election and will fully perform and comply with all obligations or payments
resulting from Grantee's said election hereunder. If any such surviving,
resulting or acquiring corporation fails for any reason to fully perform its
obligations under this Agreement, then, and in such event, Company, or its
successor or assign, shall remain liable to fully perform or pay any and all
said obligations to Grantee to the extent such surviving, resulting or acquiring
corporation should fail to do so.
For all purposes under this Agreement, the term "Change of
Control" shall mean the occurrence of one of the following events:
(i) the consummation of any agreement of merger,
statutory share exchange or consolidation pursuant to which either the
Company, or its wholly-owned subsidiary bank, Local Federal Bank,
F.S.B., a federally chartered stock savings bank with its principal
offices in Oklahoma City, Oklahoma, or its successor entity or assign
(the "Bank"), is merged or consolidated into, or all of the outstanding
shares of the Company's or the Bank's common stock are acquired by,
another corporation, partnership, limited liability company or
partnership, or any other business entity; or
(ii) another corporation or such other business
entity is merged or consolidated into the Company or the Bank in
circumstances under which the outstanding shares of the Company's or
the Bank's common stock are converted into or exchanged for cash or
securities of another such corporation or entity which was not a
wholly-owned subsidiary of the Company or the Bank at all times within
one year prior to the said merger or consolidation; or
(iii) (x) the consummation of a sale of fifty percent
(50%) or more of the issued and outstanding common stock of the Bank by
the Company; or (y) fifty percent (50%) or more of the issued and
outstanding common stock of the Company is acquired by persons
(including corporations or any other form of business entity) acting in
concert; or (z) the consummation of the sale of all or substantially
all of the assets of the Bank by the Company or of the Company by the
Bank.
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11. CAPITAL ADJUSTMENTS.
(a) THE COMPANY'S FREEDOM TO ACT. The existence of
this Agreement shall not affect in any way the right or power of the
Company or its shareholders to make or authorize any or all
adjustments, recapitalizations, reorganizations, or other changes in
the Company's capital structure or its business, or any merger or
consolidation of the Company or any issue of bonds, debentures, or
preferred or preference stocks affecting the Shares or the rights
thereof, or of any rights, options, or warrants to purchase any capital
stock of the Company, or the dissolution or liquidation of the Company,
any sale or transfer of all or any part of its assets or business, or
any other corporate act or proceedings of the Company, whether of a
similar character or otherwise.
(b) ADJUSTMENT OF OPTIONED SHARES. The Shares with
respect to which this option is granted are Shares of the Company as
presently constituted; but if and whenever, prior to the delivery by
the Company of all of the Shares with respect to which these options
are granted, the Company shall effect a subdivision or consolidation of
the Shares or other capital readjustment, the payment of a stock
dividend, or other increase or reduction in the number of the Shares
outstanding without receiving compensation therefor in money, services,
or property, the number of the Shares then remaining subject to option
hereunder shall (i) in the event of an increase in the number of
outstanding Shares, be proportionately increased, and the cash
consideration payable per Share shall be proportionately reduced; and
(ii) in the event of a reduction in the number of outstanding Shares,
be proportionately reduced, and the cash consideration payable per
Share shall be proportionately increased.
12. STOCK APPRECIATION XXXXXX.Xx addition to the right and
entitlement which Grantee has to exercise and pay for the options granted to him
under this Agreement under the provisions of Section 6 of this Agreement, above,
Grantee is hereby expressly granted the right and entitlement, so long as the
Shares are "Publicly Traded Shares" as that term is defined in Section 6(c),
above, in lieu of exercising his corresponding options to purchase the Shares,
to receive an amount equal to the difference between the fair market value of
the Shares (valued as of the day immediately preceding the delivery to the
Company of Grantee's notice of his exercise of his Stock Appreciation Rights
hereunder with respect to a portion or all of the unexercised portions of the
corresponding options granted to Grantee hereunder) over the aggregate exercise
price for such Shares subject to such corresponding options as to which Grantee
is so exercising his Stock Appreciation Rights hereunder. Grantee shall have the
privilege of exercising his Stock Appreciation Rights under the provisions of
this Section 12 at any time during the term of this Option Agreement as to the
Shares for which his options hereunder are then exercisable. Grantee shall be
entitled to receive the Gross-Up Bonus pursuant to the provisions of Section 9,
above, with regard to any exercise by him of is Stock Appreciation Rights under
the provisions of this Section 12. The amount payable to the Grantee upon
exercise of his Stock Appreciation Rights under the provisions of this Section
12 may, at the sole election of the Grantee, be paid either (i) in cash, or (ii)
in Shares of the Company's common stock then subject to his corresponding
options hereunder (valued on the basis of their fair market value determined as
of the day immediately preceding the delivery to the Company of the Grantee's
exercise of his Stock Appreciation Rights pursuant to this Section 12), or (iii)
in a combination of cash and such Shares so valued as the Grantee may elect or
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so specify in his written notice of exercise of his Stock Appreciation Rights
under this Section 12 delivered to the Company in the manner aforesaid. No Stock
Appreciation Rights may be exercised by Grantee in whole or in part under the
provisions of this Agreement (x) other than in connection with a contemporaneous
surrender without exercise of such corresponding options, or the portion thereof
that corresponds to the portion of the Stock Appreciation Rights being so
exercised by the Grantee pursuant hereto, or (y) except to the extent that the
corresponding option or such portion thereof is exercisable on the date of
exercise of the Stock Appreciation Rights by the Grantee in accordance with the
terms and provisions of this Agreement, or (z) unless the class of stock then
subject to the corresponding option hereunder is then "Publicly Traded Shares"
as that term is defined in Section 6(c) above. Grantee has the right to exercise
the Stock Appreciation Rights being granted to him under the provisions of this
Section 12 at any time during the term of this Agreement.
13. DETERMINATION OF FAIR MARKET VALUE OF SHARES. For all
purposes under this Agreement where it is required or appropriate to determine
the fair market value of the Shares or the shares of stock of another
corporation, that determination shall be made in one of the following two ways,
as applicable.
(a) FAIR MARKET VALUE OF PUBLICLY TRADED SHARES. For
any purposes under this Plan, the fair market value of any shares of
corporate stock being determined pursuant hereto which are
"Publicly-Traded Shares," as that term is defined in Section 6(b) of
this Agreement, shall be valued as of the day immediately preceding the
required valuation date hereunder. If such day is not a trading day in
the United States Securities Markets, the shares shall be valued on the
nearest preceding trading day. The valuation shall be made on the basis
of the closing price of the shares as reported with respect to the
market (or the composite of the markets, if more than one) in which
such shares are then traded, or if no such closing prices are reported,
the lowest independent offer quotation reported therefor in Level 2 of
NASDAQ, or if no such quotations are reported, then on the basis of the
most nearly comparable valuation method acceptable to the Company.
(b) FAIR MARKET VALUE OF SHARES WHICH ARE NOT
PUBLICLY TRADED. If the shares being valued for any purpose under this
Agreement are not "Publicly-Traded Shares," they shall be valued on the
basis of what a non-related willing buyer would pay to acquire such
shares from a non-related willing seller in an arms-length transaction.
In determining such value, the Company will use the most recent
purchase of such shares made on that basis if made within the last two
years or if there is no such sale the Company will obtain an appraisal
of the shares by a qualified, independent appraiser who is
knowledgeable of the type of business in which the corporation issuing
the shares is engaged and all parties shall be bound by the results of
such appraisal.
14. MISCELLANEOUS PROVISIONS.
(a) WITHHOLDING TAXES. In the event that the Company
determines that it is required to withhold federal, state, or local tax
as a result of the exercise of this option, Grantee, as a condition to
the exercise of this option, shall make arrangements satisfactory to
the Company to enable it to satisfy all withholding requirements. This
withholding requirement can be satisfied by means of the Gross-Up Bonus
pursuant to Section 9 of this Agreement.
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(b) NO RIGHTS AS A SHAREHOLDER. Grantee shall have no
rights as a shareholder with respect to any Shares subject to this
option until the Shares have been issued in the name of Grantee.
(c) NO EMPLOYMENT RIGHTS. Nothing in this Agreement
shall be construed as giving Grantee the right to be retained as an
employee of the Company.
(d) FURTHER ASSURANCES. Each party to this Agreement
agrees to perform any and all further acts and to execute and deliver
any documents that may reasonably be necessary to carry out the
provisions of this Agreement.
(e) ATTORNEYS' FEES. In any legal action or other
proceeding brought by either party to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs.
(f) CONFIDENTIALITY. Grantee agrees and acknowledges
that the terms and conditions of this Agreement, including without
limitation the number of Shares for which options have been granted,
are confidential. Grantee agrees that he will not disclose these terms
and conditions to any third party, except to Grantee's financial or
legal advisors, tax preparer or family members, unless such disclosure
is required by law.
(g) GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of Oklahoma
applicable to contracts wholly made and performed in the State of
Oklahoma.
(h) NOTICES. Any notice or other communication under
this Agreement must be in writing and shall be effective upon delivery
by hand; or one (1) day after deposited with a recognized overnight
mail courier service; or three (3) business days after deposit in the
United States mail, postage prepaid, certified or registered; and
addressed to the Company or to Grantee at the corresponding address
below. Each party shall be obligated to notify the other in writing of
any change in that party's address. Notice of change of address shall
be effective only when done in accordance with this Section .
If to the Company, to:
Attention: Corporate Secretary
Local Financial Corporation
0000 X. X. 00xx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
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If to Grantee, to:
Xxxxxx X. Xxxxxxxx
00000 Xxxxx 000
Xxxxx, Xxxxxxxx 00000
(i) ENTIRE AGREEMENT. This Agreement and the Plan,
together with those documents that are referenced in the Agreement, are
intended to be the final, complete, and exclusive statement of the
terms of the agreement between Grantee and the Company with regard to
the subject matter of this Agreement. This Agreement and the Plan
supersede all other prior agreements, communications, and statements,
whether written or oral, express or implied, pertaining to that subject
matter. This Agreement and the Plan may not be contradicted by evidence
of any prior or contemporaneous statements or agreements, oral or
written, and may not be explained or supplemented by evidence of
consistent additional terms.
(j) AMENDMENTS. This Agreement may not be amended or
modified except in a writing signed by both parties.
(k) SUCCESSORS AND ASSIGNS. Grantee agrees that he
will not assign, sell, transfer, delegate, or otherwise dispose of,
whether voluntarily or involuntarily, or by operation of law, any
rights or obligations under this Agreement, except as expressly
permitted by this Agreement. Any such purported assignment, sale,
transfer, delegation, or other disposition shall be null and void.
Subject to the limitations set forth in this Agreement, the Agreement
shall be binding on and inure to the benefit of the successors and
assigns of the Company and any successors and permitted assigns of
Grantee, including any of his executors, administrators, or other legal
representatives. It shall not benefit any person or entity other than
those specifically enumerated in this Agreement.
(l) SEVERABILITY. If any provision of this Agreement,
or its application to any person, place, or circumstance, is held by an
arbitrator or a court of competent jurisdiction to be invalid,
unenforceable, or void, that provision shall be enforced to the
greatest extent permitted by law, and the remainder of this Agreement
and of that provision shall remain in full force and effect as applied
to other persons, places, and circumstances.
(m) INTERPRETATION. This Agreement shall be construed
as a whole, according to its fair meaning, and not in favor of or
against any party. By way of example and not in limitation, this
Agreement shall not be construed in favor of the party receiving a
benefit nor against the party responsible for any particular language
in this Agreement. Captions are used for reference purposes only and
should be ignored in the interpretation of the Agreement. Unless the
context requires otherwise, all references in this Agreement to
Sections are to the Sections of this Agreement.
(n) COUNTERPARTS. This Agreement may be executed in
one or more counterparts all of which together shall constitute one and
the same instrument.
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The parties have duly executed this Agreement as of the date
first written above.
COMPANY: LOCAL FINANCIAL CORPORATION
By:
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Name: Xxx X. Xxxxxx
Title: President
GRANTEE: -------------------------------------
Xxxxxx X. Xxxxxxxx
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