Contract
Exhibit
99.2
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This Stock Purchase Agreement
(the "Agreement") is made as of this 26th day of March, 2008 between
Xxxxxxxxxx West Financial Group, Inc., a Delaware corporation and
registered unitary savings and loan holding company ("Company") and the
person named on the execution page
hereof ("Purchaser").
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ARTICLE
I
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When used in this Agreement with
capitalized initials, unless the context clearly requires a different
meaning, each of the following terms shall be given the meaning ascribed
to it in this article, as follows:
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"Act" means the Securities Act of
1933, as amended.
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"Affiliate" means any Person that
directly or through one or more intermediaries controls, is controlled by
or is under common control with the Person specified. The term "control,"
for purposes of this paragraph, shall mean the power, directly or
indirectly, to make or influence the policies and/or decisions of the
specified Person. The following shall be presumed to have control of a
Person: (a) its directors, executive officers, general partners, trustees,
LLC managers and others of similar capacity; (b) any other Person required
to sign the periodic reports of such Person under the Exchange Act; (c)
any beneficial owner of 10% or more of the outstanding voting securities
of such Person, and (d) any group of owners and/or beneficial owners
acting in concert for the purpose of exerting control over the specified
Person. In all other instances, the possession of control shall be
determined on the basis of all the facts and
circumstances.
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"Article," means one of the major
subdivisions of this Agreement denoted by such name and a sequential Roman
numeral; and a reference to an Article shall include, as applicable in the
context, a reference to each and every part of such
Article.
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"Bank" means Los Padres Bank, a
federally chartered savings bank and the Company's wholly owned
subsidiary.
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"Board of Directors" means the
Company's board of directors.
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"Business Day" means a day other
than Saturday or Sunday when all or substantially all banks in California
are open for business. The term shall exclude (1) every legal holiday
established as such by the laws of the United States or the State of
California, and (2) any other day on which banking institutions in San
Francisco are authorized or obligated by law or by federal order to
close.
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"Charter Documents" means, with
respect to any business organization, any certificate or articles of
incorporation and any bylaws, each as amended to date, that regulate the
basic organization of the business organization and its internal
relations.
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"Closing" means with respect to a
particular purchaser the consummation of the transaction contemplated by
this Agreement, as set forth in Section 2.2.
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"Closing Date" means the date on
which the Closing occurs, determined pursuant to Section
2.2.
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"Company" shall have the meaning
given such term in the recitals.
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"Consent" means any required
consent, approval, absence of disapproval, waiver or authorization from,
or notice to, or registration or filing with, any
Person.
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"Earnings Release" means the
press release of February 4, 2008 announcing the Company's earnings for
the quarter and year ended December 31, 2007.
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"Encumbrance" means any option,
pledge, security interest, lien, charge, encumbrance, mortgage,
assessment, claim or restriction (whether on voting, disposition or
otherwise), whether imposed by agreement, understanding, law or
otherwise.
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"Equity Securities" means capital
stock or any options, rights, warrants or other rights to subscribe for or
purchase capital stock, or any plans, contracts or commitments that are
exercisable in such capital stock or that provide for the issuance of, or
grant the right to acquire, or are convertible into, or exchangeable for,
such capital stock.
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"Exchange Act" means the
Securities Exchange Act of 1934, as amended.
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"Financial Statements" means the
Company's audited consolidated financial statements and notes thereto and
the related opinions thereon for the years ended December 31, 2004, 2005,
2006 and quarterly unaudited financial statements for the nine months
ended September 30, 2007, as presented in the SEC
Reports.
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"GAAP" means generally accepted
accounting principles.
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"Governmental Entity" means any
court or tribunal in any jurisdiction or any United States federal, state,
district, domestic, or other administrative agency, department,
commission, board, bureau or other governmental authority or
instrumentality.
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"IRS" means the US government
agency responsible for tax collection and tax law enforcement know as the
Internal Revenue Service.
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"Law" means any statute or law or
any judgment, decree, injunction, order, regulation or rule of any
Governmental Entity.
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"Material Adverse Effect" means,
with respect to any party, any change, circumstance or effect,
individually or in the aggregate, that is materially adverse (i) to
the business, results of operations, prospects, or condition (financial or
otherwise), of such party and its subsidiaries taken as a whole, other
than any change, circumstance or effect relating to (A) changes,
after the date hereof, in generally accepted accounting principles or
regulatory accounting requirements applicable to financial institutions
generally, except to the extent such change disproportionately adversely
affects such party, (B) changes, after the date hereof, in laws of
general applicability or interpretations thereof by courts or governmental
authorities, (C) actions or omissions by any party taken with the
prior written permission of the other party or upon the recommendation of
the other party or required under this Agreement, or (D) changes,
after the date hereof, in global or national or regional political
conditions (including the outbreak of war or acts of terrorism) or in
general or regional economic or market conditions affecting financial
institutions or their holding companies generally except to the extent
that any such changes in general or regional economic or market conditions
have a disproportionate adverse effect on such party, or (ii) to the
ability of such party to timely consummate the transactions contemplated
by this Agreement.
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"Options" means options, warrants
or rights issued by Company and entitling the holder to purchase Shares
from the Company. The term does not include securities or other
instruments of any kind issued by any other Person.
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"OTS" shall mean the Office of
Thrift Supervision, an agency of the United States Department of the
Treasury.
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A "party" shall mean, in all
cases, the Company and, in the case of a Purchaser, such specific
Purchaser. A Purchaser shall not be deemed to be a "party" to
any other Purchaser's Agreement with the
Company.
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"Person" means any natural
person, corporation, trust, association, unincorporated body, partnership,
joint venture, Governmental Entity, statutorily or regulatory sanctioned
entity or any other person or organization which may be given standing as
a person in any court located in the United States of
America.
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"Purchaser" shall have the
meaning given such term in the recitals.
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"Schedule" means any disclosure
schedule from the party making the disclosure and delivered to the other
party.
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"SEC" means the United States
Securities and Exchange Commission.
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"SEC Reports" means all reports
filed by the Company pursuant to the Exchange Act with the SEC since
December 31, 2005.
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"Section" means a section of this
Agreement denoted by such name and by a sequential number in legal format,
consisting of an ordinal in Arabic format corresponding with the article
number, followed by a decimal and a second ordinal indicating the order of
the section within the article. Any reference to a Section shall include,
as applicable in the context, a reference to each and every subsection or
other part of such Section.
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"Shares" means shares of the
voting common stock, $.01 par value, of the Company.
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"Subject Shares" shall have the
meaning given such term in the recitals.
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"Subsidiary," when used with
reference to a specified Person, means any corporation, partnership, trust
or other entity of which the majority of outstanding voting securities are
owned by such Person.
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ARTICLE
II
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ABA
Routing Number:
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000000000
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Beneficiary:
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HWFG
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Acct
#:
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151176955
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Attn:
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Xxxxxxx
Xxxxxxxx
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Section
2.4. Restricted
Securities. Purchaser understands that the Subject Shares have not
been registered with the SEC pursuant to the Act and therefore have the
status of "restricted securities," which may only be sold or otherwise
disposed of unless such sale or disposition has been registered with the
SEC or is exempt from the registration requirement. Purchaser shall not
sell or otherwise dispose of the Subject Shares without such registration
or exemption, and Company shall direct its Secretary and transfer agent to
refuse to transfer any of the Subject Shares on the records of the Company
without receiving evidence reasonably satisfactory to the Company that
such transfer is exempt from the registration requirement. All
certificates representing the Subject Shares, whether upon original
issuance or upon transfer (as, if and when permitted hereby and by
applicable Law) shall be endorsed with a legend giving notice
of the transfer restriction to prospective purchasers, in form as
follows:
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THE
SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). THESE SHARES MAY NOT BE OFFERED FOR
SALE, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED TO ANY PERSON AT ANY
TIME, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT COVERING SUCH
SHARES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
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ARTICLE
III
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To induce Purchaser to enter into
this Agreement, Company represents and warrants to Purchaser as
follows:
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Section
3.10. SEC Reports and
Earnings Release. Since December 31, 2005, the Company has filed
all reports and registrations statements required to be filed by it
pursuant to the Act and the Exchange Act. The Company has
delivered to each Purchaser true and complete copies of all of such
filings as well as its Earnings Release. As of the respective
dates, since December 31, 2005, none of Company's SEC Reports nor the
Earnings Release contained at the time of filing any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstance under which they were made, not
misleading.
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ARTICLE
IV
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To induce Company to enter into
this Agreement, Purchaser (as to itself and not as to any other Purchaser)
hereby warrants and represents as follows:
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Section 4.7. Investment Intent. Purchaser is purchasing
for its own account, for investment purposes, and not with any intention
to resell, assign, transfer or otherwise distribute the Subject Shares
except as allowed by SEC Rule 144 or in an offering registered with the
SEC under the Act.
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ARTICLE
V
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Section 5.2. Standstill Provision.
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(a)
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Prior
to March 25, 2010, Purchaser shall not, without the prior written consent
of the Board of Directors (excluding directors who are Purchasers or
Affiliates of Purchaser): (i) directly or indirectly acquire or assist,
advise or encourage any other person in acquiring by purchase, tender
offer or otherwise, beneficial ownership of more than 24.9% of the issued
and outstanding Shares (on a fully diluted basis); (ii) enter
into any voting trust or other agreement (except as provided herein) with
respect to voting any Shares directly or beneficially owned by
Purchaser in any nomination to the Board of Directors; (iii) make any
public announcement with respect to, or submit a proposal for, or offer
of, any extraordinary transaction involving the Company or any of its
securities or assets; or (iv) join with any group, company,
association, syndicate or other entity or organization, formal or
informal, for the purpose of voting any Shares or otherwise controlling or
exerting a controlling influence over the Company (except, if Purchaser is
a director, in his capacity as a director of the
Company).
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(b)
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Prior
to March 25, 2010, Purchaser shall not engage, directly or indirectly, in
the solicitation of proxies, including the solicitation of written
consents, or become a participant in any election contest or any other
matter in opposition to the recommendation of the Board of Directors with
respect to any matter submitted to a vote of the shareholders of the
Company.
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(c)
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While
the restrictions of Section 5.2(a) remain in effect, Purchaser shall not,
without the prior written consent of the Board of Directors (excluding
directors who are Purchasers or Affiliates of Purchaser), sell any Subject
Shares to any Person if such Person would beneficially own more than 10 %
of the Shares outstanding immediately after such sale (except (i) to a
director of the Company, (ii) to an Affiliate of the Purchaser or (iii) in
a "brokers' transaction" within the meaning of Section 4(4) of the Act or
in transactions with a "market maker" as that term is defined in Section
3(a)(38) of the Exchange Act). The foregoing provisions of this paragraph
shall not apply to the sale of Subject Shares to the underwriter(s) as
part of a registered public offering of Shares held by Purchaser or to any
sale or exchange in response to a tender or exchange offer made by a
Person who is not an Affiliate of the Purchaser and not acting on
Purchaser's behalf.
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(d)
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All
the provisions of this Section 5.2 shall survive the
Closing.
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Section
5.4. Provision of
Information About Purchaser. Purchaser shall provide to Company
such information as Company may reasonably request to verify that
Purchaser is an "accredited investor" within the meaning of SEC Rule
501(a). Without limiting the generality of the foregoing, each Purchaser
shall provide:
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(a)
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Copies
of its most recent annual, quarterly and transaction reports, if any,
filed with the SEC or with any other U.S. or state agency by which
Purchaser is regulated and with which it is required to file reports that
could provide information about its financial position.
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(b)
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Unless
provided as part of the reports described above, copies of Purchaser's
audited balance sheet and statement of operations for the year and quarter
most recently concluded.
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ARTICLE
VI
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The obligations of Purchaser to
purchase and pay for the Subject Shares are subject to the satisfaction or
waiver, on or before the Closing Date, of all of the following
conditions:
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Section 6.3. Approvals and Consents. The Company shall
have duly received all authorizations, consents, approvals, licenses,
franchises, permits and certificates by or of, and shall have made all
filings and effected all registrations and qualifications with, all
federal, state and local governmental authorities necessary for the
issuance of the Subject Shares, and all thereof shall be in full force and
effect at the time of Closing and shall be effective to permit such
issuance.
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ARTICLE
VII
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The obligations of the Company to
issue and sell the Subject Shares to the Purchaser are subject to this
satisfaction, on or before the Closing Date, of all of the following
conditions:
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Section 7.4. Approvals and Consents. The Company shall
have duly received all authorizations, consents, approvals, licenses,
franchises, permits and certificates by or of, and shall have made all
filings and effected all registrations and qualifications with, all
federal, state and local governmental authorities necessary for the
issuance of the Shares, and all thereof shall be in full force and effect
at the time of Closing and shall be effective to permit such
issuance.
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ARTICLE
VIII
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(a)
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by
the mutual written consent of such Purchaser and the Company;
or
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(b)
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by
either such Purchaser or the Company in writing (provided the terminating
party is not otherwise in default or in breach of this Agreement), if the
Closing shall not have occurred on or before June 30,, 2008;
or
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(c)
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by
either such Purchaser or the Company in writing, if the other party has
breached any of its representations, warranties, covenants or agreements
contained herein, which in the case of any covenant or agreement, is not
cured within fifteen days after such party has been notified of the intent
to terminate this Agreement pursuant to this clause
(c).
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ARTICLE
IX
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If
to Company:
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Xxxxxxxxxx
West Financial Group, Inc.
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000
Xxxxx Xxxxxxx Xxxx
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Xxxxxxx,
Xxxxxxxxxx 00000
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Attn:
Chief Executive Officer
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with
a copy to:
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Xxxxxxx,
Xxxxxx & Xxxxx
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0000
Xxxxx Xxxxxx
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Xxx
Xxxx Xxxxxx, XX 00000
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If
to Purchaser, at the address set forth below the Purchaser's
signature.
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or
to such other address as either party may, from time to time, designate in
a written notice given in a like
manner.
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Section 9.9. Submission to Jurisdiction; Consent to Service of
Process. With respect to any claim arising out of this Agreement,
(a) the Company and the Purchaser each irrevocably submits to the
nonexclusive jurisdiction of the courts of the State of California and the
United States District Court located in the Central District of
California, and (b) the Company and the Purchaser each irrevocably waives
any objection it may have at any time to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement brought
in any such court, irrevocably waives any claim that any such suit, action
or proceeding brought in any such court has been brought in an
inconvenient forum and further irrevocably waives the right to object,
with respect to such suit, action or proceeding brought in any such court,
that such court does not have jurisdiction over such party; provided, however, that nothing in this
Section 9.9 shall be deemed to preclude either the Company or the
Purchaser from bringing an action or proceeding in respect of any such
agreement in any other jurisdiction.
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XXXXXXXXXX
WEST FINANCIAL GROUP INC.
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By:
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/s/
Xxxxx X. Xxxxx
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Xxxxx
X. Xxxxx
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Chief
Executive Officer
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PURCHASER
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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Executive
Vice President
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Community
First Financial Group, Inc.
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Address:
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00
Xxxxx Xxxxxxxxx Xxxxx, #0000
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Xxxxxxx,
XX 00000
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