Exhibit 2.3
COMMON STOCK PURCHASE AND OPTION AGREEMENT*
BY AND BETWEEN
SECURITY FIRST NETWORK BANK
AND
RBC HOLDINGS (DELAWARE) INC.
DATED AS OF MARCH 9, 1998
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* As amended on June 5, 1998
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TABLE OF CONTENTS
Page
SECTION 1. PURCHASE AND SALE OF THE SHARES.....................................4
1.1 Purchase and Sale of the Shares.....................................4
1.2 Closing.............................................................4
SECTION 2. REGISTRATION RIGHTS.................................................4
2.1 Piggyback Registration Rights.......................................4
2.2 Demand Registration Rights..........................................5
2.3 Registration Procedures.............................................5
2.4 Registration Expenses...............................................6
2.5 Indemnity and Contribution..........................................7
2.6 Successor to SFNB...................................................8
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SFNB..............................8
3.1 Organization and Standing...........................................8
3.2 Authorization; Binding Obligation...................................9
3.3 Subsidiaries........................................................9
3.4 Capitalization......................................................9
3.5 Validity of Shares; Issuance........................................9
3.6 Non-Contravention...................................................9
3.7 Financial Statements...............................................10
3.8 Assets.............................................................10
3.9 Governmental Consent...............................................10
3.10 Litigation; Disputes...............................................11
3.11 Absence of Certain Changes or Events...............................11
3.12 Compliance with Applicable Laws....................................11
3.13 No Misrepresentation...............................................11
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER........................11
4.1 Organization and Standing..........................................11
4.2 Authorization......................................................12
4.3 Non-Contravention..................................................12
4.4 Governmental Consent...............................................12
4.5 Adequate Resources.................................................12
4.6 Investment Representations.........................................12
4.7 Litigation; Disputes...............................................13
4.8 No Misrepresentation...............................................13
SECTION 5. COVENANTS..........................................................13
5.1 Regulatory Applications; Third Party Consents......................13
5.2 Matters as to SFNB.................................................13
5.3 Other Approvals....................................................13
5.4 New Party to Agreement.............................................13
SECTION 6. CONDITIONS TO CLOSING..............................................13
6.1 Conditions to Obligations of All Parties...........................13
6.2 Conditions to the Obligations of Purchaser.........................14
6.3 Conditions to Obligations of SFNB..................................14
SECTION 7. CLOSING............................................................15
7.1 Deliveries by SFNB.................................................15
7.2 Deliveries by Purchaser............................................15
SECTION 8. LEGEND.............................................................16
8.1 Endorsement........................................................16
8.2 Removal of Legend..................................................16
SECTION 9. STOCK OPTION.......................................................16
9.1 Grant of Option....................................................16
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9.2 The Options........................................................16
9.3 Term of the Options................................................17
9.4 The Per Share Option Exercise Price................................17
9.5 Exercise of The Options............................................17
9.6 Transferability....................................................17
9.7 Requirements of Law................................................17
9.8 Changes in Capitalization..........................................18
9.9 Ownership Limitation...............................................18
SECTION 10. TERMINATION.......................................................18
10.1 Mutual Consent....................................................18
10.2 Other Termination.................................................18
10.3 Effect of Termination.............................................19
SECTION 11. MISCELLANEOUS.....................................................19
11.1 Additional Actions and Documents..................................19
11.2 Expenses..........................................................19
11.3 Notices...........................................................19
11.4. Waiver............................................................20
11.5 Binding Effect....................................................21
11.6 Entire Agreement; Amendment.......................................21
11.7 Severability......................................................21
11.8 Headings..........................................................21
11.9 Governing Law.....................................................21
11.10 Signature in Counterparts.........................................21
11.11 No Third Party Beneficiaries......................................21
11.12 Assignability.....................................................22
11.13 Parties Not Partners..............................................22
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COMMON STOCK PURCHASE AND OPTION AGREEMENT
This Common Stock Purchase and Option Agreement ("Agreement"), dated
as of March 9, 1998, is entered into by and between Security First Network Bank,
a federal savings bank ("SFNB"), and RBC Holdings (Delaware) Inc., a Delaware
corporation ("Purchaser").
WHEREAS, Purchaser desires to subscribe for and acquire from SFNB
shares of SFNB's common stock, no par value per share ("Common Stock") on the
terms and under the conditions specified herein; and
WHEREAS, SFNB and Purchaser desire that Purchaser acquire the Common
Stock on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, the sufficiency of which is hereby acknowledged, the parties mutually
agree as follows:
SECTION 1. PURCHASE AND SALE OF THE SHARES.
1.1 PURCHASE AND SALE OF THE SHARES.
At the Closing (as hereinafter defined) and subject to the terms and
conditions of this Agreement, Purchaser does hereby subscribe for and agree to
purchase for $10.80 per share (the "Purchase Price") 92,593 shares of Common
Stock (the "Shares"). SFNB agrees to sell the Shares to Purchaser at the Closing
under the terms and conditions of this Agreement.
1.2 CLOSING.
The closing (the "Closing") of the purchase and sale of the Shares
shall take place on the date hereof, or at such other time and date as the
parties shall mutually agree (the "Closing Date"), at the offices of Xxxxx &
Xxxxxxx L.L.P., 000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or at such other
place as the parties shall mutually agree.
SECTION 2. REGISTRATION RIGHTS.
2.1 PIGGYBACK REGISTRATION RIGHTS.
2.1(a) Except as provided at Section 2.1(b) below, if at any time or
times beginning six months after the Closing Date through three years following
the Closing Date SFNB proposes to make a public offering of its common stock, no
par value per share ("Common Stock"), which requires registration under
applicable rules and regulations of the Office of Thrift Supervision ("OTS") (or
any successor regulator thereto as to federal securities laws), other than an
offering not suitable for inclusion of shares of selling stockholders for offer
to the public, such as shares being offered in connection with an employment
benefit plan or in connection with a merger, SFNB shall give written notice of
the proposed registration to Purchaser not less than 14 business days prior to
the proposed filing date of the registration form with the OTS, and at the
written request of Purchaser delivered to SFNB within 10 days after the receipt
of such notice, SFNB shall include in such registration and
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offering, and in any underwriting of such offering, all shares of Common Stock
that have been designated for registration in Purchaser's request. SFNB may
withdraw any proposed registration statement or offering of securities under
this Section 2 at any time without any liability to Purchaser hereunder.
2.1(b) If a registration in which Purchaser has the right to
participate pursuant to this Section 2 is an underwritten public offering and
the managing underwriter advises SFNB in writing that in its opinion the number
of securities requested to be included in such registration exceeds the number
that can be sold in such offering consistent with the pricing expectations of
SFNB, then SFNB first shall include in such offering the Common Stock proposed
to be sold by SFNB if consistent with the aforementioned opinion of the managing
underwriter, and second shall include the Common Stock requested to be included
in such registration by Purchaser and other selling stockholders who hold
registration rights pursuant to pre-existing written agreements with SFNB, if
any, pro rata based upon the number of shares of Common Stock requested by each
such selling stockholder to be included in such registration, or in such other
amounts upon which SFNB, Purchaser and the other selling stockholders may agree.
The three year limitation on registration rights set forth in Section 2.1(a)
shall not apply to any shares of Purchaser's Common Stock excluded from
registration by virtue of this Section 2.1(b).
2.2 DEMAND REGISTRATION RIGHTS.
2.2(a) At any time after one year from the date of the Closing Date,
Purchaser may request registration for sale under the Securities Act of 1933, as
amended (the "Securities Act") of any shares of Common Stock owned by Purchaser
(a "Demand Registration"), provided, however, that (i) SFNB shall only be
obligated to effect one Demand Registration for Purchaser, (ii) SFNB shall not
be obligated to effect a Demand Registration unless Purchaser requests
registration for sale of shares that represent at least 50% of the aggregate
amount of Common Stock then owned by Purchaser, and (iii) SFNB shall not be
required to conduct an underwritten offering. A Demand Registration shall
specify the approximate number of shares of Common Stock requested to be
registered and the anticipated per share price range for such offering.
2.2(b) A Demand Registration shall be deemed to occur when such
registration becomes effective under the Securities Act, except that if, after
it becomes effective, such Demand Registration is interfered with by any stop
order, injunction or other order or requirement of the OTS (or any successor
regulator thereto as to federal securities laws) or any other governmental
authority, such registration shall not be deemed to have been effected unless
such stop order, injunction or other order shall have been subsequently vacated
or removed.
2.3 REGISTRATION PROCEDURES.
2.3(a) SFNB shall have no obligation to include shares of Common
Stock owned by Purchaser in a registration statement pursuant to Section 2.1 or
Section 2.2 hereof unless and until Purchaser has furnished SFNB with all
information and statements about or pertaining to Purchaser in such reasonable
detail and on such timely basis as is reasonably deemed by SFNB to be necessary
or appropriate for the preparation of the registration statement.
2.3(b) Whenever Purchaser has requested that its shares of Common
Stock be registered pursuant to Section 2.1 or Section 2.2 hereof, SFNB shall,
subject to its rights under Section 2.1(a) to withdraw the registration
statement and the other provisions of Section 2.1 and Section 2.2:
(1) prepare and file with the OTS a registration statement
with respect to such shares and use its reasonable efforts to cause such
registration statement to become effective
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as soon as practicable after the filing thereof (provided that before filing a
registration statement or offering circular or any amendments or supplements
thereto, SFNB shall furnish counsel for Purchaser with copies of all such
documents proposed to be filed);
(2) prepare and file with the OTS as promptly as is
reasonably practicable such amendments and supplements to such registration
statement and offering circular contained therein as may be necessary to keep
such registration statement effective for a period of not less than three months
or until Purchaser has completed the distribution described in such registration
statement, whichever occurs first;
(3) furnish to Purchaser the number of copies of such
registration statement, each amendment and supplement thereto, the offering
circular contained in such registration statement (including each preliminary
offering circular), and such other documents as Purchaser may reasonably
request;
(4) use reasonable efforts to register or qualify such
shares under the state blue sky or securities or banking laws ("Blue Sky Laws")
of such jurisdictions as Purchaser reasonably requests (and to keep such
registrations and qualifications effective for a period of three months, or
until Purchaser has completed the distribution of such shares, whichever occurs
first), and to do any and all other acts and things that may be reasonably
necessary or advisable to enable Purchaser to consummate the disposition of such
shares in such jurisdictions; provided, however, that SFNB will not be required
to do any of the following: (i) qualify generally to do business in any
jurisdiction where it would not be required but for this Section 2.3(b), (ii)
subject itself to taxation in any such jurisdiction, or (iii) file any general
consent to service of process in any such jurisdiction;
(5) promptly notify Purchaser at any time when an offering
circular relating thereto is required to be delivered under applicable federal
securities laws during the period that SFNB is required to keep the registration
statement effective, of the occurrence of any event as a result of which the
offering circular included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements
therein in the light of the circumstances under which they were made, not
misleading, and prepare a supplement or amendment to the offering circular so
that, as thereafter delivered to the purchasers of such shares, the offering
circular will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(6) use reasonable efforts to cause all such shares to be
listed on a securities exchange or the Nasdaq Stock Market; and
(7) provide a transfer agent and registrar (if SFNB does not
already have such an agent) for all such shares not later than the effective
date of such registration statement.
2.4 REGISTRATION EXPENSES.
2.4(a) If, pursuant to Section 2.1 or Section 2.2 hereof, shares of
Common Stock owned by Purchaser are included in a registration statement, then
Purchaser shall pay all transfer taxes, if any, relating to the sale of its
shares of Common Stock, the fees and expenses of its own counsel, and its pro
rata portion of any underwriting discounts or commissions or the equivalent
thereof.
2.4(b) Except for the fees and expenses specified in Section 2.4(a)
hereof and except as provided below in this Section 2.4(b), SFNB shall pay all
expenses incident to the registration and to SFNB's performance of or compliance
with this Agreement, including, without limitation, all
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registration and filing fees, fees and expenses of compliance, with Blue Sky
Laws, underwriting discounts, fees, and expenses (other than Purchaser's pro
rata portion of any underwriting discounts or commissions or the equivalent
thereof), printing expenses, messenger and delivery expenses, and fees and
expenses of counsel for SFNB and all independent certified public accountants
and other persons retained by SFNB. With respect to any registration pursuant to
Section 2.2 hereof, SFNB shall pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties) and the expenses and fees for listing the securities
to be registered on an exchange or on the Nasdaq Stock Market.
2.5 INDEMNITY AND CONTRIBUTION.
2.5(a) In the event that any shares of Common Stock owned by
Purchaser are sold by means of a registration statement pursuant to Section 2.1
or Section 2.2 hereof, Purchaser (for the purposes of this paragraph 2.5(a), the
"Indemnifying Person") agrees to indemnify and hold harmless SFNB, each of
SFNB's officers and directors, and each person, if any, who controls or may
control SFNB within the meaning of the Securities Act (for the purposes of this
paragraph 2.5(a), SFNB, its officers and directors, and any such other persons
being hereinafter referred to individually as an "Indemnified Person" and
collectively as "Indemnified Persons") from and against all demands, claims,
actions or causes of action, assessments, losses, damages, liabilities, costs,
and expenses, including, without limitation, interest, penalties, and reasonable
attorneys' fees and disbursements, asserted against, resulting to, imposed upon,
or incurred by such Indemnified Person, directly or indirectly (collectively,
hereinafter referred to in the singular as a "Claim" and in the plural as
"Claims"), based upon, arising out of, or resulting from any untrue statement of
a material fact contained in the registration statement or any omission to state
therein a material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not misleading, to
the extent that such Claim is based upon, arises out of or results from any
untrue statement or omission based upon information furnished to SFNB by
Purchaser in a written document provided by Purchaser for use in connection with
the registration statement.
2.5(b) SFNB (for the purposes of this paragraph 2.5(b), the
"Indemnifying Person") agrees to indemnify and hold harmless Purchaser, its
officers and directors, each person, if any, who controls or may control
Purchaser within the meaning of the Securities Act and any underwriters
participating in the distribution of Common Stock pursuant to a registration
statement (for the purposes of this paragraph 2.5(b), Purchaser, its officers
and directors, and any such other persons also being hereinafter referred to
individually as an "Indemnified Person" and collectively as "Indemnified
Persons") from and against all Claims based upon, arising out of, or resulting
from any untrue statement of a material fact contained in the registration
statement or any omission to state therein a material fact necessary in order to
make the statement made therein, in the light of the circumstances under which
they were made, not misleading, provided that SFNB will not be liable in any
such case to the extent that any such Claim arises out of or results from any
untrue statement or omission based upon information furnished to SFNB by
Purchaser in a written document provided by Purchaser for use in connection with
the registration statement.
2.5(c) The indemnification set forth herein shall be in addition to
any liability SFNB or Purchaser may otherwise have in connection with any
registration of Common Stock. Within a reasonable time after receiving
definitive notice of any Claim in respect of which an Indemnified Person may
seek indemnification under this Section 2.5, such Indemnified Person shall
submit written notice thereof to Indemnifying Person. The failure of the
Indemnified Person so to notify the Indemnifying Person of any such Claim shall
not relieve the Indemnifying Person from any liability it may have hereunder
except to the extent that (a) such liability was caused or increased by such
omission, or (b) the ability of the Indemnifying Person to reduce such liability
was materially adversely affected by such omission. In addition, the omission of
the Indemnified Person so to notify the Indemnifying Person of any such Claim
shall not relieve the Indemnifying Person
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from any liability it may have otherwise than hereunder. The Indemnifying Person
shall have the right to undertake, by counsel or representatives of its own
choosing, the defense, compromise, or settlement (without admitting liability of
the Indemnifying Person) of any such Claim asserted, such defense, compromise,
or settlement to be undertaken at the expense and risk of the Indemnifying
Person, and the Indemnified Person shall have the right to engage separate
counsel, at its own expense, which counsel for the Indemnifying Person shall
keep informed and consult with in a reasonable manner. In the event the
Indemnifying Person shall fail to undertake such defense by its own
representatives, the Indemnifying Person shall give prompt written notice of
such election to the Indemnified Person, and the Indemnified Person shall
undertake the defense, compromise, or settlement (without admitting liability of
the Indemnified Person) thereof on behalf of and for the account and risk of the
Indemnifying Person by counsel or other representatives designated by the
Indemnified Person. In the event that any Claim shall arise out of a transaction
or cover any period or periods wherein SFNB and Purchaser shall each be liable
hereunder for part of the liability or obligation arising therefrom, then the
parties shall, each choosing its own counsel and bearing its own expenses,
defend such Claim, and no settlement or compromise of such Claim may be made
without the joint consent or approval of SFNB and Purchaser. Notwithstanding the
foregoing, no Indemnifying Person shall be obligated hereunder with respect to
amounts paid in settlement of any Claim if such settlement is effected without
the consent of such Indemnifying Person (which consent shall not be unreasonably
withheld).
2.5(d) If the indemnification provided for in this Section 2.5 is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party (as defined in either Section 2.5(a) or 2.5(b)) with respect to any Claim,
then the Purchaser or SFNB, as applicable and as the case may be (each an
"Indemnifying Party"), in lieu of indemnifying an Indemnified Party hereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such Claim in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and of the Indemnified
Party on the other in connection with the statements or omissions which resulted
in such claim.
2.6 SUCCESSOR TO SFNB.
SFNB has adopted a Second Amended and Restated Plan of Reorganization
(the "Plan") into a holding company structure (the "Reorganization"). Upon the
Reorganization, the provisions of this Section 2 shall be applicable to any
holding company which SFNB may form if the Shares are converted into the capital
stock of such holding company. Under such circumstances, references in this
Section 2 to Common Stock shall be deemed to refer to the capital stock of the
holding company, and references in this Section 2 to the OTS and the securities
rules and regulations thereof shall be deemed to refer to the Securities and
Exchange Commission ("SEC"), and the Securities Act and the regulations of the
SEC thereunder, respectively.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SFNB.
SFNB represents and warrants to Purchaser as follows:
3.1 ORGANIZATION AND STANDING.
SFNB is a Federal savings bank organized and existing under the Home
Owners' Loan Act of 1933, as amended ("HOLA"). SFNB has the full corporate power
and authority to own and operate its properties and assets, to carry on its
business as currently conducted, to execute and deliver this Agreement, to sell
and issue the Shares hereunder, and, subject to the conditions specified herein,
to carry out and perform its obligations under the terms of this Agreement. SFNB
has furnished to Purchaser a true and complete copy of SFNB's federal stock
charter, as currently in
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effect, and a true and complete copy of SFNB's bylaws, as currently in effect,
in both cases, certified by its corporate secretary or other officer.
3.2 AUTHORIZATION; BINDING OBLIGATION.
SFNB has all requisite corporate power and authority to enter into
and to deliver this Agreement. Except as contemplated herein, all corporate
action on the part of SFNB and its directors, officers and stockholders
necessary for the authorization, execution, delivery and performance of this
Agreement by SFNB, the authorization, sale, issuance and delivery of the Shares,
and the performance of SFNB's obligations hereunder have been taken or will be
taken prior to the Closing Date. This Agreement, when executed and delivered by
SFNB, shall constitute a valid and binding obligation of SFNB enforceable in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws effecting the
enforcement of creditor's rights.
3.3 SUBSIDIARIES.
SFNB's direct subsidiaries are Security First Technologies, Inc. and
Security First Investments, Inc., and SFNB does not otherwise directly own any
other corporation, association or business entity.
3.4 CAPITALIZATION.
The authorized capital stock of SFNB consists of 25,000,000 shares of
common stock, of which 10,514,194 are issued and outstanding as of the date
hereof, and 2,500,000 shares of preferred stock, no par value per share
("Preferred Stock"), of which a Series A has been designated and of which
1,251,084 are issued and outstanding as of the date hereof. As of the date
hereof, there are options (the "Options") outstanding to purchase 4,129,834
shares of Common Stock, and except for the Options and the Class A Preferred
Stock, there are no outstanding securities convertible into or exchangeable for
Common Stock and there are no outstanding options, rights (preemptive or
otherwise), or warrants to purchase or to subscribe for any shares of such stock
or other securities of SFNB. Since December 31, 1997, SFNB has not issued any
capital stock except pursuant to Options and conversion of Preferred Stock.
3.5 VALIDITY OF SHARES; ISSUANCE.
The Shares, when issued in compliance with the provisions of this
Agreement, will be validly issued, fully paid and nonassessable, and free of any
liens or encumbrances, and will be issued in compliance with all applicable
federal and state banking and securities laws.
3.6 NON-CONTRAVENTION.
The execution, delivery and performance of, and compliance with, this
Agreement, and the issuance of the Shares, will not (a) violate any provision of
the federal stock charter or bylaws of SFNB; (b) conflict with or result in a
breach of, or default under, or result in the creation of any lien, claim,
charge or other encumbrance upon any of the assets or properties of SFNB or any
of its subsidiaries pursuant to the provisions of any agreement, mortgage,
indenture or other document or instrument to which SFNB or any of its
subsidiaries is a party or by which SFNB or any of its subsidiaries or any of
its properties or assets is bound, or (c) violate any existing statutes, laws,
ordinances, regulations, orders and other rules of law applicable to SFNB or any
of its subsidiaries or
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any of its properties or assets, or applicable to SFNB's power or authority to
perform its obligations under this Agreement.
3.7 FINANCIAL STATEMENTS.
SFNB has previously delivered or made available to Purchaser accurate
and complete copies of its audited consolidated financial statements as of and
for the year ended December 31, 1996 and its unaudited consolidated financial
statements as of and for the year ended December 31, 1997 (together, all such
financial statements are referred to as the "Financial Statements"). The
consolidated financial statements of SFNB referred to herein (including the
related notes, where applicable) fairly present (subject, in the case of the
unaudited statements, to recurring audit adjustments normal in nature and
amount, and the failure to include notes thereto), the results of the
consolidated operations and consolidated financial condition and cash flows of
SFNB for the respective fiscal periods or as of the respective dates therein set
forth; each of such statements (including the related notes, where applicable)
comply with applicable accounting requirements and with the published rules and
regulations of the OTS with respect thereto and each of such statements
(including the related notes, where applicable) has been prepared in accordance
with generally accepted accounting principles consistently applied during the
periods involved ("GAAP"), except in each case as indicated in such statements
or in the notes thereto. SFNB's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1996 and all reports filed under the Securities Exchange Act
of 1934, as amended ("Exchange Act") since May 23, 1996 comply in all material
respects with the appropriate requirements for such reports under the Exchange
Act, and SFNB has previously delivered or made available to Purchaser true,
correct and complete copies of such reports. Since May 23, 1996, SFNB has filled
all reports required to be filed by it under the Exchange Act. The books and
records of SFNB have been, and are being, maintained in all material respects in
accordance with GAAP and any other applicable legal and accounting requirements.
3.8 ASSETS.
SFNB (for purposes of this section, including its subsidiaries) has
good, valid and marketable title to all properties and assets owned by it,
including, without limitation, all properties and assets included in the
Financial Statements and all properties and assets purchased by SFNB since
December 31, 1996 (except for leased or licensed assets and for properties or
assets reflected in such Financial Statements which have been sold or otherwise
disposed of in the ordinary course of business), free and clear of all
encumbrances. All personal property of SFNB is in good operating condition and
repair and is suitable and adequate for the uses for which it is intended or is
being used. Each of SFNB and its subsidiaries owns or possesses the right to use
all material trademarks, service marks, trade names, copyrights, patents, and
licenses currently used by it in the conduct of its business. No material
product or service offered and no material trademark, service xxxx, or similar
right used by SFNB or its subsidiaries infringes any rights or patents of any
other person, and, as of the date hereof, neither SFNB nor any of its
subsidiaries has received any written or oral notice of any claim of such
infringement.
3.9 GOVERNMENTAL CONSENT.
No consent, approval or authorization of, or designation, declaration
or filing with, any governmental authority on the part of SFNB is required in
connection with the valid execution and delivery of this Agreement.
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3.10 LITIGATION; DISPUTES.
There are no actions, suits, claims, arbitrations, proceedings or
investigations pending, or to the knowledge of SFNB, threatened against,
affecting or involving SFNB or any of its subsidiaries in connection with the
transactions contemplated by this Agreement, at law or in equity, or before or
by any court, arbitrator or governmental authority, domestic or foreign. There
are no material legal proceedings pending, or to SFNB's knowledge, threatened,
other than ordinary routine litigation incidental to the business, to which SFNB
or any of its subsidiaries is a party or of which any of their property is
subject.
3.11 ABSENCE OF CERTAIN CHANGES OR EVENTS.
Except as disclosed in its reports filed under the Exchange Act,
there has been no material adverse change in the business, operations, results
of operations or financial condition of SFNB and its subsidiaries, and since
December 31, 1996 neither SFNB nor any of its subsidiaries has incurred any
material liability, except as contemplated hereby or in the ordinary course of
their business consistent with their past practices and which has not had a
material adverse effect on SFNB or its subsidiaries. Since December 31, 1996,
SFNB and its subsidiaries have carried on their respective businesses in the
ordinary and usual course consistent with their past practices.
3.12 COMPLIANCE WITH APPLICABLE LAWS.
Each of SFNB and its subsidiaries have complied in all material
respects with all laws applicable to it or to the operation of its business.
Neither SFNB nor any subsidiary thereof has received any notice of any material
alleged or threatened claim, violation, or liability under any such laws that
has not heretofore been cured and for which there is no remaining liability.
3.13 NO MISREPRESENTATION.
None of the representations and warranties of SFNB set forth in this
Section 3 nor any of SFNB's reports filed under the Exchange Act since May 23,
1996 (at the time they were filed) contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
contained therein, in light of the circumstances in which they were made, not
misleading.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents and warrants to SFNB as follows:
4.1 ORGANIZATION AND STANDING.
Purchaser is a Delaware corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Purchaser has the
full corporate power and authority to own and operate its properties and assets,
to carry on its business as currently conducted, to execute and deliver this
Agreement and, subject to the conditions specified herein, to carry out and
perform its obligations under the terms of this Agreement.
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4.2 AUTHORIZATION.
Purchaser has all requisite corporate power and authority to enter
into and to deliver this Agreement. All corporate action on the part of
Purchaser and its directors and stockholders necessary for the authorization,
execution, delivery and performance of this Agreement by Purchaser and the
performance of Purchaser's obligations hereunder have been taken. This
Agreement, when executed and delivered by Purchaser, shall constitute a valid
and binding obligation of Purchaser enforceable in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws effecting the enforcement of creditor's rights.
4.3 NON-CONTRAVENTION.
The execution, delivery and performance of, and compliance with, this
Agreement will not (a) violate any provision of the articles of incorporation or
bylaws of Purchaser; (b) conflict with or result in a breach of, or default
under, or result in the creation of any lien, claim, charge or other encumbrance
upon any of the assets or properties of Purchaser pursuant to the provisions of
any agreement, mortgage, indenture or other document or instrument to which
Purchaser is a party or by which Purchaser or any of its properties or assets is
bound, or (c) violate any existing statutes, laws, ordinances, regulations,
orders and other rules of law applicable to Purchaser or any of its properties
or assets, or applicable to Purchaser's power or authority to perform its
obligations under this Agreement.
4.4 GOVERNMENTAL CONSENT.
No consent, approval or authorization of, or designation, declaration
or filing with, any governmental authority on the part of Purchaser is required
in connection with the valid execution and delivery of this Agreement or in
connection with the consummation of the purchase of the Shares contemplated by
Section 1.1 hereof.
4.5 ADEQUATE RESOURCES.
Purchaser has sufficient cash and other resources to perform its
obligations hereunder.
4.6 INVESTMENT REPRESENTATIONS.
4.6(a) Purchaser has had an opportunity to discuss SFNB's business,
management and financial affairs with SFNB's management. Purchaser is capable of
evaluating the merits and risks of its investment in SFNB and has the capacity
to protect its own interests.
4.6(b) Purchaser is acquiring the Shares for investment for its own
account and not with a view to, or for resale in connection with, any
distribution. Purchaser understands that the Shares have not been registered
under the Securities Act nor under applicable rules and regulations of the OTS
by reason of a specific exemption from the registration provisions thereof which
depends upon, among other things, the bona fide nature of the investment intent
as expressed herein.
4.6(c) Purchaser acknowledges that the Shares must be held
indefinitely unless they are subsequently registered under applicable rules and
regulations of the OTS or an exemption from registration is available.
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4.7 LITIGATION; DISPUTES.
There are no actions, suits, claims, arbitrations, proceedings or
investigations pending, or to the knowledge of Purchaser, threatened against,
affecting or involving Purchaser in connection with the transactions
contemplated by this Agreement, at law or in equity, or before or by any court,
arbitrator or governmental authority, domestic or foreign.
4.8 NO MISREPRESENTATION.
None of the representations and warranties of Purchaser set forth in
this Section 4 contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements contained therein, in
light of the circumstances in which they were made, not misleading.
SECTION 5. COVENANTS.
5.1 REGULATORY APPLICATIONS; THIRD PARTY CONSENTS.
If applicable, upon the execution and delivery of this Agreement,
Purchaser shall cause to be prepared and filed, as soon as is reasonably
practical, all required applications and notices and any other filings with
governmental authorities which are necessary or contemplated for consummation of
the purchase of Shares contemplated hereby. Such applications and filings shall
be in such forms as may be prescribed by the respective governmental authorities
and shall contain such information as they may require.
5.2 MATTERS AS TO SFNB.
SFNB agrees to take all such action required of SFNB to consummate
the transactions contemplated hereby.
5.3 OTHER APPROVALS.
The parties shall cooperate and use their best efforts to obtain all
written consents and approvals of other persons in connection with the purchase
of the Shares contemplated hereby.
5.4 NEW PARTY TO AGREEMENT.
Upon the organization of Security First Technologies Corporation
("Holdings") as the proposed holding company in the Reorganization, SFNB shall
cause Holdings to become a party hereto, bound by the terms, conditions and
obligations contained herein.
SECTION 6. CONDITIONS TO CLOSING.
6.1 CONDITIONS TO OBLIGATIONS OF ALL PARTIES.
The obligations of each party to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, on or before the
Closing Date, of each of the following conditions precedent:
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6.1(a) Termination. This Agreement shall not have been terminated in
accordance with its terms.
6.1(b) Regulatory Approvals. All regulatory approvals sought shall
have been obtained and all notice periods shall have expired; no regulatory
approval shall contain any condition that would require any material
modification or nonperformance of the terms of this Agreement; all regulatory
approvals shall remain in full force and effect and all conditions and
requirements set forth in any regulatory approvals that are required to be
satisfied on or before the Closing Date, including the expiration of any waiting
periods, shall have been satisfied or properly waived.
6.1(c) No Governmental Action. No action or proceeding by or before
any governmental authority shall have been instituted or threatened (and not
subsequently dismissed, settled or otherwise terminated) which is reasonably
expected to restrain, prohibit or invalidate the transactions contemplated by
this Agreement or to affect adversely the consolidated financial condition and
business prospects of SFNB.
6.1(d) Reorganization. The Reorganization shall not have occurred.
6.2 CONDITIONS TO THE OBLIGATIONS OF PURCHASER.
The obligations of Purchaser to purchase the Shares contemplated by
this Agreement are subject to the satisfaction, on or before the Closing Date,
of each of the following conditions precedent, any one or more of which may be
waived by Purchaser, in its sole and absolute discretion:
6.2(a) Representations and Warranties. The representations and
warranties of SFNB contained in this Agreement shall be true, correct and
complete in all material respects when made and shall be true and correct on the
Closing Date with the same force and effect as if made on the Closing Date
(provided, however, that if any portion of any representation or warranty is
already qualified by materiality, for purposes of determining whether this
Section 6.2(a) has been satisfied with respect to such portion of such
representation or warranty, such portion of such representation or warranty as
so qualified must be true and correct in all respects).
6.2(b) Compliance. SFNB shall have in all material respects performed
all obligations and agreements and complied with all covenants contained in this
Agreement to be performed and complied with by SFNB on or prior to the Closing
Date.
6.3 CONDITIONS TO OBLIGATIONS OF SFNB.
The obligations of SFNB to consummate the transactions contemplated
by this Agreement are subject to the satisfaction, on or before the Closing
Date, of each of the following conditions precedent, any one or more of which
may be waived by SFNB, in its sole and absolute discretion:
6.3(a) Representations and Warranties. The representations and
warranties of Purchaser contained in this Agreement shall be true, correct and
complete in all material respects when made and shall be true and correct as of
the Closing Date with the same force and effect as if made on the Closing Date
(provided, however, that if any portion of any representation or warranty is
already qualified by materiality, for purposes of determining whether this
Section 6.3(a) has been satisfied with respect to such portion of such
representation or warranty, such portion of such representation or warranty as
so qualified must be true and correct in all respects).
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6.3(b) Compliance. Purchaser shall have in all material respects
performed all obligations and agreements and complied with all covenants
contained in this Agreement to be performed and complied with by it on or prior
to the Closing Date.
SECTION 7. CLOSING.
7.1 DELIVERIES BY SFNB.
At the Closing, SFNB shall deliver to Purchaser the following:
(1) A certificate or certificates registered in Purchaser's
name, representing all of the Shares.
(2) A copy of the resolutions of the Board of Directors of
SFNB certified by the Secretary of SFNB, as being true, correct and complete and
then in full force and effect, authorizing the execution, delivery and
performance of this Agreement by SFNB, the authorization, sale, issuance and
delivery of the Shares, and the performance of SFNB's obligations hereunder.
(3) A certificate of SFNB signed by the President of SFNB
certifying that the representations and warranties of SFNB made herein are true,
complete and correct in all material respects as of the date of this Agreement
and are true and correct as of the Closing Date, and SFNB has in all material
respects performed all obligations and agreements and complied with all
covenants required to be performed or complied with by SFNB on or prior to the
Closing.
(4) Such other certificates, instruments or documents as
Purchaser may reasonably request in order to effect and document the
transactions contemplated hereby.
(5) An opinion of SFNB's counsel as to the due
authorization, full payment and non-assessibility of the Shares.
7.2 DELIVERIES BY PURCHASER.
At the Closing, Purchaser shall deliver to SFNB the following:
(1) The aggregate Purchase Price for the Shares, in cash or
by wire transfer or certified or bank cashier's check, payable to the order of
SFNB.
(2) A certificate of Purchaser signed by an officer of
Purchaser reasonably satisfactory to SFNB, certifying that the representations
and warranties of Purchaser made herein are true, complete and correct in all
material respects as of the date of this Agreement and are true and correct as
of the Closing Date, and Purchaser has in all material respects performed all
obligations and agreements and complied with all covenants required to be
performed or complied with by Purchaser on or prior to the Closing.
(3) Such other certificates, instruments or documents as
SFNB may reasonably request in order to effect and document the transaction
contemplated hereby.
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SECTION 8. LEGEND.
8.1 ENDORSEMENT.
Each certificate representing the Shares shall be endorsed with the
following legend (in addition to any legend required by applicable state
securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY
OTHER FEDERAL OR STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER APPLICABLE FEDERAL SECURITIES LAWS COVERING SUCH
SECURITIES OR SFNB RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO SFNB
THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
8.2 REMOVAL OF LEGEND.
The legend endorsed on a stock certificate pursuant to Section 8.1 of
this Agreement shall be removed and SFNB shall issue a certificate without such
legend to the holder of such Shares if such Shares are registered under
applicable federal securities laws and an offering circular meeting the
requirements of the rules and regulations of the OTS is available or if such
holder provides to SFNB an opinion of counsel for such holder of the Shares
reasonably satisfactory to SFNB, to the effect that a public sale, transfer or
assignment of such Shares may be made without registration and without
compliance with any restrictions.
SECTION 9. STOCK OPTION
9.1 GRANT OF OPTION.
SFNB does hereby grant to Purchaser four separate options (each, an
"Option," or collectively, the Options") to subscribe for and purchase that
number of whole shares of Common Stock (the "Option Shares") as determined below
in this Article 9. Upon the Reorganization, the provisions of this Article 9
shall be applicable to any holding company which SFNB may form pursuant to the
Plan if the Shares are converted into the capital stock of such holding company.
Under such circumstances, references in this Article 2 to Option Shares shall be
deemed to refer to share of capital stock of the holding company, references to
Common Stock shall be deemed to refer to the Common Stock of the holding company
and references in this Article 9 to SFNB shall be deemed to refer to the holding
company resulting from the Reorganization.
9.2 THE OPTIONS.
The Options are hereby designated individually as Option I, Option
II, Option III and Option IV. Each Option shall be exercisable for that number
of Option Shares which is equal to 2,500,000, divided by the number which equals
the "Per Share Option Exercise Price" for such Option, as set forth below in
Section 9.4.
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9.3 TERM OF THE OPTIONS.
Option I shall be exercisable from the date of the "Closing" under
the terms of, and as defined in, that certain Stock Purchase Agreement (the
"SFNB Stock Purchase Agreement") among Royal Bank of Canada, Purchaser, SFNB and
upon organization, Holdings, dated as of even date herewith ("the SFNB Closing
Date") until the close of business on the first business day which is 90 days
after the SFNB Closing Date. Option II shall be exercisable from the SFNB
Closing Date until the close of business on the first business day which is 270
days after the SFNB Closing Date. Option III shall be exercisable from the SFNB
Closing Date until the close of business on the first business day which is 450
days after the SFNB Closing Date. Option IV shall be exercisable from the SFNB
Closing Date until the close of business on the first business day which is 630
days after the SFNB Closing Date. Notwithstanding anything to the contrary
provided herein, the Options shall terminate and be of no further effect upon
termination of the Stock Purchase Agreement, other than by reason of Closing
thereunder.
9.4 THE PER SHARE OPTION EXERCISE PRICE.
The Per Share Option Exercise Price of Option I shall be the dollar
amount equal to the product of the Purchase Price, times 1.10. The Per Share
Option Exercise Price of Option II shall be the dollar amount equal to the
product of the Purchase Price, times 1.21. The Per Share Option Exercise Price
of Option III shall be the dollar amount equal to the product of the Purchase
Price, times 1.331. The Per Share Option Exercise Price of Option IV shall be
the dollar amount equal to the product of the Purchase Price, times 1.464.
9.5 EXERCISE OF THE OPTIONS.
An Option that is exercisable hereunder may be exercised by delivery
to SFNB on any business day, at its principal office, addressed to the attention
of the Corporate Secretary of SFNB, of written notice of exercise, which notice
shall specify the number of shares with respect to which the Option is being
exercised. The minimum number of shares of Stock with respect to which an Option
may be exercised, in whole or in part, at any time shall be the lesser of 100
shares or the maximum number of shares available for purchase under the Option
at the time of exercise. Payment of the aggregate Per Share Option Exercise
Price for the shares of Common Stock purchased pursuant to the exercise of an
Option shall be made in cash (whether by check, wire transfer or other
reasonably acceptable means). Promptly after the exercise of an Option and the
payment in full of the aggregate Per Share Option Exercise Price of the shares
of Common Stock covered thereby, the Purchaser shall be entitled to the issuance
of a stock certificate or certificates evidencing ownership of the Option Shares
so exercised.
9.6 TRANSFERABILITY.
Notwithstanding any provision of this Agreement to the contrary, no
Option shall be assignable or transferable, other than by Purchaser to any
direct or indirect parent or subsidiary corporation of Purchaser.
9.7 REQUIREMENTS OF LAW.
SFNB shall not be required to sell or issue any shares of Common
Stock under any Option if the sale or issuance of such shares would constitute a
violation by the Purchaser or SFNB of any provisions of any law or regulation of
any governmental authority, including without limitation any federal or state
securities laws or regulations. SFNB shall not be obligated to take
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any affirmative action in order to cause the exercise of an Option or the
issuance of shares pursuant thereto to comply with any law or regulation of any
governmental authority.
9.8 CHANGES IN CAPITALIZATION.
If the outstanding shares of Common Stock are increased or decreased
or changed into or exchanged for a different number or kind of shares or other
securities of SFNB by reason of any recapitalization, reclassification, stock
split, reverse split, combination of shares, exchange of shares, stock dividend
or other distribution payable in capital stock, or other increase or decrease in
such shares effected without receipt of consideration by SFNB, occurring after
the date hereof, the number and kinds of Option Shares shall be adjusted
proportionately and accordingly. In addition, the number and kind of shares for
which Options are outstanding shall be adjusted proportionately and accordingly
so that the proportionate interest of the holder of the Options immediately
following such event shall, to the extent practicable, be the same as
immediately prior to such event. Any such adjustment in outstanding Options
shall not change the aggregate Per Share Option Price payable with respect to
shares subject to the unexercised portion of the Option outstanding but shall
include a corresponding proportionate adjustment in the Per Share Option Price.
9.9 OWNERSHIP LIMITATION.
If, upon exercise of an Option, Purchaser, including any subsidiaries
and affiliates thereof, would then own more than 4.999% of the outstanding
Common Stock, the Option Shares then subject to issuance shall be shares of SFNB
Class A Preferred Stock, no par value per share (the "Preferred Shares"), or if
after the Reorganization, the shares of capital stock of the resulting holding
company into which shares of Preferred Stock are converted, which stock shall
have the same terms and conditions of the Preferred Shares to the extent
contemplated by the Plan.
SECTION 10. TERMINATION.
10.1 MUTUAL CONSENT.
The parties may terminate this Agreement at any time by mutual
written agreement.
10.2 OTHER TERMINATION.
Either of SFNB, on the one hand, or Purchaser, on the other, may
terminate this Agreement by giving notice (a "Termination Notice") to the other
at the time designated in this Section or, in the absence of such designation,
at any time up to and including the Closing Date, if any one or more of the
following shall have occurred and be continuing:
10.2(a) Termination By Any Party. Any party may terminate this
Agreement under any one or more of the following circumstances:
(1) at any time after June 30, 1998, if the Closing shall
not have occurred for any reason other than a default or non-performance of its
obligations hereunder by the party giving such notice;
(2) any application for regulatory approval or notice with
any regulatory agency or authority is denied or withdrawn and is not modified or
supplemented and resubmitted in a manner that the party giving the notice
believes is responsive to the comments of the applicable governmental authority
within 45 days after it is so denied or withdrawn;
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(3) a court or other governmental authority of competent
jurisdiction shall have issued an order, writ, injunction or decree or shall
have taken any other action permanently restraining or otherwise prohibiting the
purchase of Shares contemplated hereby and such order, writ, injunction, decree
or other action shall have become final and nonappealable.
10.2(b) Termination By Purchaser. Purchaser may terminate this
Agreement if any condition precedent set forth in Sections 6.1 or 6.2 shall be
incapable of being satisfied.
10.2(c) Termination By SFNB. SFNB may terminate this Agreement if any
condition precedent set forth in Sections 6.1 or 6.3 shall be incapable of being
satisfied.
10.3 EFFECT OF TERMINATION.
Termination of this Agreement pursuant to this Section shall not
relieve any party of any liability for a default or other breach, default or
nonperformance under this Agreement. Notwithstanding the foregoing, no party
hereto shall be liable for consequential or punitive damages in connection with
such termination.
SECTION 11. MISCELLANEOUS.
11.1 ADDITIONAL ACTIONS AND DOCUMENTS.
Each of the parties hereto agrees that it will, at any time, prior
to, at or after the Closing, take or cause to be taken such further actions, and
execute, deliver and file or cause to be executed, delivered and filed such
further documents and instruments as may be necessary or reasonably requested in
connection with the consummation of the purchase and sale contemplated by this
Agreement or in order to fully effectuate the purposes, terms and conditions of
this Agreement.
11.2 EXPENSES.
Each party hereto shall pay its own expenses incurred in connection
with this Agreement and in the preparation for and consummation of the
transactions contemplated hereby.
11.3 NOTICES.
All notices, demands, requests, or other communications which may be
or are required to be given or made by any party to any other party pursuant to
this Agreement shall be in writing and shall be hand delivered, mailed by
first-class registered or certified mail, return receipt requested, postage
prepaid, or delivered by overnight air courier, addressed as follows:
(i) if to SFNB or Holdings (before the Reorganization):
Security First Network Bank
0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn.: President
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Security First Technologies Corporation
0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn.: President
(after the Reorganization):
Security First Technologies Corporation
0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn.: President
with a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn.: Xxxxxx X. Xxxxx, Esq.
(ii)if to Purchaser:
RBC Holdings (Delaware) Inc.
0 Xxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Attn.: Vice President - Business Development
with a copy (which shall not constitute notice) to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxx Xxxxxxxx
or such other address as the addressee may indicate by written notice to the
other parties. Each notice, demand, request, or communication which shall be
given or made in the manner described above shall be deemed sufficiently given
or made for all purposes at such time as it is delivered to the addressee (with
the return receipt, the delivery receipt, or the affidavit of messenger being
deemed conclusive but not exclusive evidence of such delivery) or at such time
as delivery is refused by the addressee upon presentation.
11.4. WAIVER.
No waiver by any party of any failure or refusal of any other party
to comply with its obligations under this Agreement shall be deemed a waiver of
any other or subsequent failure or
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refusal to so comply by such other party. No waiver shall be valid unless in
writing signed by the party to be charged and only to the extent therein set
forth.
11.5 BINDING EFFECT.
This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns including, but
not limited to, any holding company which SFNB may form if the Shares are
converted into capital stock of such holding company.
11.6 ENTIRE AGREEMENT; AMENDMENT.
This Agreement, including the other instruments and documents
referred to herein or delivered pursuant hereto, contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior oral or written agreements, commitments or understandings with respect to
such matters. No amendment, modification or discharge of this Agreement shall be
valid or binding unless set forth in writing and duly executed by the party
against whom enforcement of the amendment, modification or discharge is sought.
11.7 SEVERABILITY.
If any part of any provision of this Agreement shall be invalid or
unenforceable under applicable law, such part shall be ineffective to the extent
of such invalidity or unenforceability only, without in any way affecting the
remaining parts of such provisions or the remaining provisions of said
Agreement.
11.8 HEADINGS.
The headings of the sections and subsections contained in this
Agreement are inserted for convenience only and do not form a part or affect the
meaning, construction or scope thereof.
11.9 GOVERNING LAW.
This Agreement, the rights and obligations of the parties hereto, and
any claims or disputes relating thereto, shall be governed by and construed
under and in accordance with the laws of the State of New York, excluding the
choice of law rules thereof.
11.10 SIGNATURE IN COUNTERPARTS.
This Agreement may be executed in separate counterparts, none of
which need contain the signatures of all parties, each of which shall be deemed
to be an original, and all of which taken together constitute one and the same
instrument. It shall not be necessary in making proof of this Agreement to
produce or account for more than the number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
11.11 NO THIRD PARTY BENEFICIARIES.
Except as expressly provided herein, this Agreement is made and
entered into for the sole protection and benefit of the parties hereto, and no
other person or entity shall have any right of
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action hereon, right to claim any right or benefit from the terms contained
herein or be deemed a third party beneficiary hereunder.
11.12 ASSIGNABILITY.
All terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their respective transferees,
successors and assigns; provided, however, that neither this Agreement nor any
rights, privileges, duties and obligations of the parties hereto may be assigned
or delegated by any party hereto without the prior written consent of all the
parties to this Agreement and any such purported or attempted assignment shall
be null and void ab initio and of no force or effect provided, further that
Purchaser may assign this Agreement, including rights, privileges, duties and
obligations hereunder to any parent or subsidiary corporation affiliate of
Purchaser so long as such assignment does not in any way materially delay or
otherwise materially adversely impact the ability of the parties hereto to
effect the transactions contemplated hereby.
11.13 PARTIES NOT PARTNERS.
Nothing contained in this Agreement shall constitute any party as a
partner with, agent for or principal of any one or more of the other parties or
their successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first above written.
SECURITY FIRST NETWORK BANK
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxxx
Treasurer, Acting President and
Chief Financial Officer
RBC HOLDINGS (DELAWARE) INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer + Secretary
SECURITY FIRST
TECHNOLOGIES CORPORATION
By: /s/ Xxxxx X. Xxxxx, III
-----------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Chief Executive Officer
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