Exhbit 99.1
STOCK PURCHASE AGREEMENT
BY AND AMONG
EBANK FINANCIAL SERVICES, INC.,
a Georgia corporation,
AND
PEACHTREE CAPITAL CORPORATION,
a Georgia corporation,
AND
XXXXXXXX X. XXXXXXX & XXXXXX X. XXXXXXX
DATED Effective as of December 31, 2002
TABLE OF CONTENTS
Page
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ARTICLE 1 THE PURCHASE............................................ 1
Section 1.1. Purchase Transaction.............................. 1
Section 1.2. Effective Time and Closing of the Purchase........ 1
Section 1.3. Terms and Conditions; Conversion of Shares........ 2
ARTICLE 2 PURCHASE PRICE; EXCHANGE OF SHARES...................... 2
Section 2.1. Purchase Price; Payment for Shares................ 2
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND
EBANK................................................... 2
Section 3.1. Authorization; Organization....................... 2
Section 3.2. Capitalization; Structure......................... 4
Section 3.3. Undisclosed Liabilities........................... 4
Section 3.4. Real Property..................................... 4
Section 3.5. Litigation........................................ 5
Section 3.6. Insurance......................................... 5
Section 3.7. Brokers, Finders, Etc............................. 5
Section 3.8. Taxes............................................. 5
Section 3.9. Pension and Employee Benefit Plans................ 6
Section 3.10. Agreements Affecting Competition.................. 8
Section 3.11. Transactions with Related Parties................. 8
Section 3.12. Disclosure........................................ 9
Section 3.13. Limitations to Representations and Warranties..... 9
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS........ 10
Section 4.1. Power and Authorization........................... 10
Section 4.2. Validity of Contemplated Transactions, Etc........ 10
Section 4.3. Broker's or Finder's Fee.......................... 10
Section 4.4. Title............................................. 10
Section 4.5. Taxes............................................. 10
ARTICLE 5 COVENANTS AND AGREEMENTS OF THE PARTIES................. 11
Section 5.1. Employee Benefit Plans............................ 11
Section 5.2. Dividend on Preferred Stock....................... 11
Section 5.3. Company Retains $15,000........................... 11
Section 5.4. Earnings and Cash................................. 12
Section 5.5. Bank Employees During Transition Period........... 12
Section 5.6. 2002 Audit........................................ 12
Section 5.7. Xxx. Xxxxxxx' Directorship........................ 12
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Section 5.8. Resignation of Company Officers and Directors..... 12
Section 5.9. Termination of Agreements......................... 12
Section 5.10. Company Dividend.................................. 12
Section 5.11. Regulatory Matters................................ 13
Section 5.12. Insurance......................................... 13
ARTICLE 6 CLOSING................................................. 13
Section 6.1. Time and Place of Closing......................... 13
Section 6.2. Deliveries by Ebank............................... 13
Section 6.3. Deliveries by the Purchasers...................... 14
Section 6.4. Post Closing Deliveries and Power of Attorney..... 14
ARTICLE 7 SURVIVAL; INDEMNIFICATION............................... 14
Section 7.1. Survival.......................................... 14
Section 7.2. Indemnification................................... 15
Section 7.3. Procedure for Third-Party Claims.................. 16
Section 7.4. Records........................................... 17
ARTICLE 8 RESTRICTIVE COVENANTS................................... 17
Section 8.1. Restrictive Covenants............................. 17
ARTICLE 9 OTHER AGREEMENTS........................................ 18
Section 9.1. Effective Date.................................... 18
Section 9.2. Arbitration....................................... 18
Section 9.3. Non-Disparagement................................. 18
Section 9.4. Rescission of Acquisition Transaction Upon Failure
to Obtain Regulatory Approvals.................... 19
ARTICLE 10 MISCELLANEOUS........................................... 19
Section 10.1. Integration; Severability......................... 19
Section 10.2. Expenses.......................................... 19
Section 10.3. Notices........................................... 19
Section 10.4. Public Announcements.............................. 21
Section 10.5. Remedies.......................................... 21
Section 10.6. Opportunity to Obtain Assistance of Counsel....... 21
Section 10.7. Governing Law and Jurisdiction.................... 21
Section 10.8. Assignment; Amendments; Binding Agreement......... 22
Section 10.9. Counterparts; Facsimiles.......................... 22
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Stock Purchase Agreement
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THIS STOCK PURCHASE AGREEMENT ("Agreement") is dated as of December 31,
2002, by and among Ebank Financial Services, Inc. (formerly Xxxxx.xxx, Inc.), a
Georgia corporation ("Ebank"), Peachtree Capital Corporation, a Georgia
corporation (the "Company"), and Xxxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx,
individual residents of the State of Georgia (the "Purchasers" or each a
"Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, effective December 31, 2001 (the "Original Acquisition Date"),
Ebank purchased all of the outstanding stock of the Company from the Purchasers
(the "Original Acquisition"); and
WHEREAS, since the Original Acquisition Date, the Purchasers have continued
to operate the Company as an independent subsidiary, under the supervision of
Ebank; and
WHEREAS, subject to the terms and conditions of this Agreement, the
Purchasers, the Company, and Ebank desire and deem it in their respective best
interests that Purchasers repurchase all of the outstanding stock of the Company
from Ebank (the "Purchase"); and
WHEREAS, Ebank owns all of the outstanding capital stock of the Company and
desires to sell all of its shares of the Company to the Purchasers; and
WHEREAS, the Board of Directors of Ebank has approved of the Purchase and
other transactions contemplated hereby; and
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
ARTICLE 1
THE PURCHASE
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Section 1.1. Purchase Transaction. Subject to the terms and conditions
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hereof, the parties hereto agree that the Purchasers shall purchase all of the
Company's stock from Ebank. In the period following the purchase, the Company
shall also be known for the purposes of this Agreement as the "Surviving
Corporation." Subject to the terms and conditions hereof, the parties hereto
shall take all actions necessary in accordance with applicable law and their
respective Articles of Incorporation and Bylaws to cause the Purchase to be
consummated.
Section 1.2. Effective Time and Closing of the Purchase. The consummation
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of the transactions contemplated by this Agreement (the "Closing") shall become
effective on the
date (the "Closing Date") and time (the "Effective Time") as provided for
in Article 6 and at the time set forth in Section 9.1 of this Agreement.
Section 1.3. Terms and Conditions; Conversion of Shares. The effect of the
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Purchase on the Articles of Incorporation, Bylaws, directors and officers of the
Surviving Corporation, and the manner and basis of acquiring the shares of
capital stock of the Company from Ebank for cash and Series B-1 Preferred Stock
and Series B-2 Preferred Stock of Ebank (both as defined below), shall be as set
forth in this Agreement.
ARTICLE 2
PURCHASE PRICE; EXCHANGE OF SHARES
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Section 2.1. Purchase Price; Payment for Shares. In exchange for all the
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outstanding capital stock of the Company, $1.00 par value per share (the
"Company Common Stock"), the Purchasers shall (i) deliver 76,792 previously
issued shares of Ebank's Series B-1 Preferred stock, no par value (the "Series
B-1 Preferred Stock") and 76,792 previously issued shares of Ebank's Series B-2
Preferred stock, no par value (the "Series B-2 Preferred Stock") (the Series B-1
Preferred Stock and the Series B-2 Preferred Stock, and any shares acquired by
conversion thereof, are collectively referred to as the "Purchase Shares") to
Ebank at Closing, and (ii) pay $557,750 in cash to Ebank at Closing ($578,000
less the dividend of $20,250 to be paid pursuant to Section 5.2). Subject to the
provisions of this Article 2, at the Effective Time, by virtue of the Purchase
and without any action on the part of the holders thereof all shares of Company
Common Stock held in the treasury, if any, immediately prior to the Effective
Time shall be canceled and extinguished and no stock or cash shall be delivered
or deliverable in exchange therefor.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF COMPANY AND EBANK
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The Company and Ebank hereby represent and warrant to the Purchasers as
follows:
Section 3.1. Authorization; Organization.
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(a) The Company is a corporation duly organized and validly existing and in
good standing under the laws of the State of Georgia and has all requisite
corporate power and authority to own, lease or operate its properties and assets
and to carry on its business as now being conducted. The Company is duly
qualified to transact business and is in good standing in each jurisdiction in
which the nature of property owned or leased by it or the conduct of its
business requires it to be so qualified, except where the failure to do so would
not have a material adverse effect on its business, operations, properties,
assets or condition, financial or otherwise (a "Material Adverse Effect").
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(b) The Company has full corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the Purchase and the other transactions provided for herein (collectively, the
"Contemplated Transactions") and in all other documents and agreements executed
in connection herewith and therewith (collectively, the "Purchase Documents").
The Board of Directors of the Company and the Board of Directors of Ebank, other
than Xxxxxxxx X. Xxxxxxx who abstained from voting, have unanimously approved
the execution, delivery and performance of this Agreement and the consummation
of the Contemplated Transactions.
(c) This Agreement has been duly and voluntarily executed and delivered by
the Company and Ebank and constitutes the legal, valid and binding obligations
of each of them, enforceable in accordance with its terms.
(d) The execution, delivery and performance of this Agreement and the
consummation of the Contemplated Transactions will not conflict with or result
in a violation, breach, default, right to accelerate or increase in obligations
under the Company's or Ebank's Articles or Bylaws, any law or statute or any
order, judgment or decree by which the Company or Ebank is bound by name or any
license, lease or other agreement to which the Company or Ebank is a party or by
which its assets and business may be affected.
(e) To the knowledge of Ebank, the Company's Articles, Bylaws and stock
book and, in all material respects, its minute books are complete and correct
and contain all amendments thereto to date, a record of all corporate
proceedings of the Company, and a record of all stock issuances and transfers of
the Company.
(f) To the knowledge of Ebank, the Company does not have any subsidiaries.
(g) To the knowledge of Ebank, the Company is not a party to any joint
venture or other similar agreement or arrangement that involves any sharing of
profits of the Company or its assets or is similar to or competitive with the
business.
(h) Ebank is the sole record and beneficial owner of 1,000 shares of
Company Common Stock, and such Company Common Stock is free and clear of all
mortgages, liens, pledges, security interests, charges, proxies, claims,
restrictions, options and encumbrances of any nature whatsoever (collectively,
"Liens"). Ebank has the full legal right, power and authority to vote the shares
of Common Stock held by it. Ebank has not transferred or assigned any right,
power or authority with respect to any shares of Company Common Stock to any
other person or entity.
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Section 3.2. Capitalization; Structure.
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(a) The authorized capital stock of the Company consists of 100,000
authorized shares of Company Common Stock, of which, to the knowledge of Ebank,
1,000 shares are issued and outstanding. To the knowledge of Ebank, all of the
outstanding shares of Company Common Stock have been duly and validly authorized
and issued, and are all fully paid and nonassessable. To the knowledge of Ebank,
no shares of the Company's capital stock have been issued in violation of any
preemptive rights, any rights of first refusal or any similar restrictions,
other than those contained in the Original Acquisition Agreement (as defined
below). To the knowledge of Ebank, there are no: (i) outstanding options
(including phantom options), warrants or other rights (including preemptive
rights) of any kind relating to the sale, issuance or voting of any shares of
capital stock of the Company; (ii) securities convertible into, exchangeable for
or evidencing the right to purchase any such shares; or (iii) contracts,
commitments, agreements, understandings or arrangements of any kind relating to
the issuance, transfer or voting of such shares, any such convertible or
exchangeable securities or any such options, warrants or rights.
(b) All transactions whereby the Company repurchased, redeemed, canceled or
reacquired shares of its capital stock and the solicitation of consents in
connection with this Agreement have been effected in compliance with all
applicable corporate and securities laws, and documentation prepared by or on
behalf of the Company or Ebank in connection therewith did not include any
untrue statement of any material fact or omit to state any material fact
necessary to make the statements made therein correct and complete.
Section 3.3. Undisclosed Liabilities. Other than as shown on Schedule 3.3
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and to the knowledge of Ebank, the Company does not have any material
liabilities or obligations of any nature, known or which reasonably should be
known (whether accrued, absolute, contingent or otherwise) ("Liabilities") that
would, individually or in the aggregate have a Material Adverse Effect on the
Company.
Section 3.4. Real Property.
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(a) Property. To the knowledge of Ebank, the Company does not own any real
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property and, as of the Closing, it has only an agreement and sublease for
Company's sole office location (the leased space and improvements thereon
constituting the "Facilities"). The Surviving Corporation may continue to use
the facilities after the completion of the Purchase.
(b) Compliance. To the knowledge of Ebank, the present use of the
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Facilities is in compliance with all applicable zoning ordinances, building
codes, fire codes, or health department ordinances pertaining thereto; the
Facilities are in compliance with all federal, state and local laws and
ordinances relating to clean air, water, waste disposal, toxic substances and
other environmental regulations; the Facilities are in compliance with all laws
and ordinances relating to occupational health and safety; and Ebank has not
received any notices of any purported violations of any of the foregoing.
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Section 3.5. Litigation. To the knowledge of Ebank, there are no suits,
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claims, investigations or proceedings pending or threatened against the Company,
its officers or directors in their capacities as officers or directors, Ebank or
any other person or entity for whom Ebank or the Company may be vicariously
liable at law or in equity. Ebank is not subject to, and the Company is not
operating under or subject to, any order, writ, injunction or decree of any
court or governmental authority in which any of them is named.
Section 3.6. Insurance. To the knowledge of Ebank, Schedule 3.6 lists all
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policies of casualty, liability, workers' compensation, life and other forms of
insurance held by Ebank and by which the Company is currently insured as a
subsidiary of Ebank, and includes for each policy in effect the period through
which premiums have been paid. All of the policies indicated as in force in
Schedule 3.6 are in full force and effect and no notice of cancellation has been
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received with respect thereto and are sufficient for compliance in all material
respects with all requirements of law and all agreements to which the Company is
a party.
Section 3.7. Brokers, Finders, etc. Neither Ebank nor, to Ebank's
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knowledge, the Company, has employed any broker, finder, consultant or other
intermediary in connection with the Contemplated Transactions who might be
entitled to a fee or commission in connection with such transactions.
Section 3.8. Taxes.
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(a) Filing of Tax Returns. The Company has timely filed with the
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appropriate taxing authorities all returns (including, without limitation,
information returns and other material information) in respect of Taxes (as
hereinafter defined) required to be filed through the date hereof. All such
returns and other information filed are complete and accurate in all material
respects. All distributions and expenses made by the Company for salaries and
other deductible expenses, as reflected on such returns, are properly
categorized thereon.
(b) Payment of Taxes. All Taxes that are due and payable by the Company
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(whether or not shown on any return) before the date hereof have been paid. In
the opinion and to the knowledge of the Company and Ebank, an adequate reserve
has been established on the Company's financial statements as of November 30,
2002 for all unpaid Taxes payable by the Company with respect to all periods
through the date of such financial statements, and the Company is not, in
Ebank's reasonable judgment, required to reserve for any liability for Taxes in
excess of the reserves so established. No portion of the reserve established on
the above financial statements for Taxes reflects any contingent liability or
other potential liability for Taxes that are due and payable, or that may become
due and payable in the future, as a result of an audit, amended return or
otherwise. Ebank shall be liable for all Taxes payable by the Company with
respect to the 2002 taxable year.
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(c) Audit History. The Company and Ebank warrant that:
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(i) There are no deficiencies for Taxes that have been claimed,
proposed or assessed by any taxing or other governmental authority against
the Company which have not been paid or otherwise finally settled and
resolved;
(ii) The Company has not waived the statute of limitations in respect
of any Tax or agreed to any extension of time with respect to the assessment
of any Tax; and
(iii) The Company is not currently under audit with respect to Taxes
by any governmental authority, and no such authority in a jurisdiction where
the Company does not file Tax returns or pay Taxes has claimed that the
Company is required to file Tax returns or otherwise is subject to taxation.
(d) Withholding Taxes. To the knowledge of Ebank, the Company has withheld
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and paid all Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor, creditor,
Purchaser or other third party.
(e) Taxes. For purposes of this Agreement, "Taxes" shall mean all federal,
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state, local, foreign and other taxes, assessments, or other governmental
charges, including, without limitation, income, estimated income, business,
occupation, franchise, property, sales, gross receipts, excise, employment, or
withholding taxes, including interest, penalties and additions in connection
therewith.
Section 3.9. Pension and Employee Benefit Plans.
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(a) For purposes of this Agreement, the terms set forth below shall have
the following meanings:
(i) "Code": The Internal Revenue Code of 1986, as amended, together
with the regulations promulgated thereunder;
(ii) "Employee Plans": All plans, programs, arrangements, practices
or contracts pursuant to which the Company or Ebank provides or is obligated
to provide or has since the Original Acquisition Date been obligated to
provide, directly or indirectly, benefits or compensation to or on behalf of
employees or former employees of the Company, whether formal or informal,
whether or not written, whether or not terminated, including but not limited
to the following:
(A) Executive Arrangements -- any bonus, incentive compensation,
stock option, deferred compensation, commission, severance,
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golden parachute or other executive compensation plan, employment
contract, arrangement or practice;
(B) ERISA plans -- any Pension Plan or Welfare Plan, as defined
in Section 3 of ERISA, including but not limited to any multi-employer
plan, defined benefit pension plan, profit sharing plan, savings or
thrift plan, stock bonus plan, employee stock ownership plan, or any plan,
fund, program, arrangement or practice providing for medical
hospitalization, accident, sickness, disability, severance pay or life
insurance benefits; and
(C) Other Employee Fringe Benefits -- any stock purchase,
vacation, scholarship, day care, prepaid legal services, severance pay,
or fringe benefit plan, program, arrangement, contract, or practice;
(iii) "ERISA": The Employee Retirement Income Security Act of 1974, as
amended, and the rulings and regulations thereunder; and
(iv) "ERISA Affiliate": A corporation that is or was a member of a
controlled group of corporations with the Company or a trade or business
that is under common control with the Company or which together with the
Company is treated as a single employer, in each case within the meaning of
Section 414 of the Code.
(b) Schedule 3.9 lists or describes all Employee Plans maintained or
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contributed to by the Company or Ebank pursuant to which the Company or Ebank
provides benefits or compensation to or on behalf of employees or former
employees of the Company.
(c) Each Employee Plan (and related trust or funding vehicle, if any) has
at all times since the Original Acquisition Date been administered and
maintained in accordance with its terms and the applicable law including,
without limitation, the filing of Forms 5500 and all other applicable reports.
(d) To the extent any Employee Plan is subject to approval by any
governmental agency, such Employee Plan has received such approval and such
approval is current.
(e) The Company is not subject to, and no facts exist which could subject
the Company to, any liability whatsoever which is directly or indirectly related
to any Employee Plan, including, but not limited to, liability for benefits
payments or related claims (other than the ordinary claims by participants or
beneficiaries which have been made for benefits called for under the terms of
such Employee Plans), any liability for any Tax or related penalty under the
Code, or liability for any damages or penalties arising under Title I or Title
IV of ERISA.
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(f) No Employee Plan has engaged in or been a party to any "prohibited
transaction" (as defined in ERISA or the Code), and the Company has not
incurred, and does not reasonably expect to incur, any liability under Chapter
43 of the Code or Section 502 of ERISA with respect to any Employee Plan.
(g) No ERISA Welfare Plan provides benefits to former employees of the
Company, other than continuation coverage required by Section 4980B of the Code
and Section 601 of ERISA.
(h) There are no pending or, to the knowledge of Ebank, threatened claims,
suits or other proceedings with respect to any Employee Plan other than the
ordinary claims by participants or beneficiaries which have been made for
benefits called for under the terms of such Employee Plans and which will be
paid under such Employee Plans in the ordinary course.
(i) There is no requirement that the Surviving Corporation or Ebank make
any further contributions to any Employee Plan after the date of this Agreement,
and each Employee Plan which provides benefits to or on behalf of employees or
former employees of the Company may be terminated by the Surviving Corporation
or Ebank in its sole discretion without liability of any kind or description
whatsoever to Surviving Corporation, Ebank or any other person, entity or
governmental agency.
(j) The Company is not a party to or obligated under any agreement, plan,
contract or other arrangements that will result, separately or in the aggregate,
in the payment of any "excess parachute payment" within the meaning of Section
280G of the Code.
Section 3.10. Agreements Affecting Competition. To the knowledge of Ebank,
--------------------------------
the Company is not a party to or is bound by any agreement which presently
restricts or precludes the Company or any present or future affiliate of the
Company from conducting any business anywhere in the world, or upon the
occurrence of any event, the giving of notice or the passage of time, by its
terms would have such an effect.
Section 3.11. Transactions with Related Parties. To the knowledge of Ebank
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and except as (i) disclosed on Schedule 3.11 in connection with customary
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transactions in the ordinary course of business, or (ii) with respect to any
agreements entered into in connection with the Original Acquisition Agreement,
no officer or director of the Company (other than the Purchasers) or any
relative or affiliate thereof:
(a) owes money to the Company;
(b) has any claim against the Company;
(c) has any interest in any property or assets used by the Company in its
business;
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(d) has any benefits which are contingent on the transactions contemplated
by this Agreement, other than as stated herein;
(e) has any agreement with the Company that is not terminable by the
Company without penalty or notice;
(f) has any agreement providing severance benefits or other benefits (which
are conditioned upon a change of control) after the termination of employment of
such employee regardless of the reason for such termination of employment; or
(g) has any agreement or plan, any of the benefits of which will be
increased, vested or accelerated by the occurrence of any of the transactions
contemplated by this Agreement.
Section 3.12. Disclosure. No representation, warranty, or statement made by
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the Company or the Ebank in this Agreement or in any document or certificate
furnished or to be furnished to the Purchasers pursuant to this Agreement
contains or will contain any untrue statement or omits or will omit to state any
fact necessary to make the statements contained herein or therein not
misleading.
Section 3.13. Limitations to Representations and Warranties..
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Notwithstanding anything above to the contrary: (a) wherever any representation
or warranty of Ebank in this Article 3 is qualified by the words, "to our
knowledge," "known to us," "to the knowledge of Ebank," or other similar words,
the quoted words mean the current awareness by employees of Ebank, without any
independent investigation; (b) Ebank expressly disclaims any knowledge relating
to the Company for any time period that predates the Original Acquisition Date;
and (c) the representations and warranties of Ebank in this Article 3 are
limited to the time period following the Original Acquisition Date, and Ebank is
not responsible for any events or actions relating to the Company that occurred
before the Original Acquisition Date.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
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The Purchasers hereby represent and warrant to the Company and Ebank as
follows:
Section 4.1. Power and Authorization. The Purchasers each have the power,
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authority and legal right to execute, deliver and perform this Agreement and to
consummate the Contemplated Transactions. This Agreement has been duly executed
and delivered by each of the Purchasers and constitutes the legal, valid, and
binding obligation of each of the Purchasers, enforceable against them in
accordance with its terms.
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Section 4.2. Validity of Contemplated Transactions, etc. The execution,
------------------------------------------
delivery, and performance of this Agreement and the consummation of the
Contemplated Transactions by the Purchasers does not and will not violate,
conflict with or result in the breach of any term, condition or provision of, or
require the consent of any other party to, (a) any existing law, ordinance, or
governmental rule or regulation to which either Purchaser is subject, (b) any
judgment, order, writ, injunction, decree or award of any court, arbitrator or
governmental or regulatory official, body or authority which is applicable to
either Purchaser, or (c) any mortgage, indenture, agreement, contract,
commitment, lease, plan or other instrument, document or understanding, oral or
written, to which either Purchaser is a party or by which it is otherwise bound.
Except as aforesaid, no authorization, approval or consent of, and no
registration or filing with, any governmental or regulatory official, body or
authority is required in connection with the execution, delivery and performance
of this Agreement and the consummation of the Contemplated Transactions by the
Purchasers.
Section 4.3. Broker's or Finder's Fees. The Purchasers have not authorized
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any person to act as broker, finder, or in any other similar capacity in
connection with the Contemplated Transactions.
Section 4.4. Title. Each Purchaser owns, of record and beneficially, valid
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title to his Purchase Shares, and such shares are free and clear of all Liens,
Claims (as defined below), encumbrances, options, rights of refusal or similar
rights or other transfer restrictions of any nature whatsoever (other than the
terms of the Purchase Shares set forth in their respective designations, and
restrictions on transfers arising out of applicable federal and state securities
Laws).
Section 4.5. Taxes. Each Purchaser has reviewed with his or her tax advisor
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the United States federal and state tax consequences of the Contemplated
Transactions. Each Purchaser is relying solely on such advisors and not on any
statements or representations of Ebank, the Company or the agent of either,
except for the statements, representations and covenants provided in this
Agreement, and understands that he or she (and not Ebank or any other party)
shall be responsible for his or her own tax liability that will arise as a
result of the Contemplated Transactions.
ARTICLE 5
COVENANTS AND AGREEMENTS OF THE PARTIES
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Section 5.1. Employee Benefit Plans. Notwithstanding anything in this
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Agreement to the contrary, Ebank, the Company and each Purchaser do hereby agree
and covenant that, (i) as of the Closing, neither Ebank nor the Company shall
sponsor any Benefit Plan or Applicable Benefit Plan (defined hereinafter); (ii)
immediately prior to the Closing, the participation of Company employees in each
Applicable Benefit Plan shall have been terminated; and (iii) as of the Closing,
neither Ebank nor the Company shall have any liability, or responsibility to act
or omit to act in any regard, in relation to any Benefit Plan or Applicable
Benefit Plan. It is agreed and understood that prior to Closing, the Company
will
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fund and then terminate the participation of Company employees in any
Employee Benefit Plans and will pay out any amounts required by those plans. For
purposes of this Section 5.4, the phrase "Benefit Plan" shall include, without
limitation, (i) each pension, retirement, profit-sharing, cash or deferred,
deferred compensation, stock option, phantom stock, stock appreciation rights,
employee stock ownership, severance pay, vacation, paid time off,
education-reimbursement, bonus, incentive, and other or similar plan, program or
other arrangement, (ii) each cafeteria, Section 125, medical, vision, dental,
disability, death benefit, life insurance, health and/or accident plan, program
or other arrangement, (iii) each written or unwritten employee or other or
similar program, arrangement, agreement or understanding, whether arrived at
through collective bargaining or otherwise, and (iv) each other employee benefit
plan, voluntary employees' beneficiary association, fringe benefit plan, and
other or similar plan, program or other arrangement, agreement or understanding,
including, without limitation, each "employee benefit plan," as that term is
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended. The phrases "Applicable Benefit Plan" and "Applicable Benefit Plans"
shall include, without limitation, each and every Benefit Plan which, at any
time up to the Closing, was sponsored by, was contributed to or required to be
contributed to by, or was otherwise connected with, Ebank or the Company.
Section 5.2. Dividend on Preferred Stock. The dividend declared by the
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Board of Directors of Ebank on the Series B-1 and Series B-2 Preferred Stock
will be paid to the Purchasers at Closing in the amount of $20,250. This amount
will be netted against the cash portion of the Purchase Price, as described in
Section 2.1.
Section 5.3. Company Retains $15,000. At closing, the Company will retain
-----------------------
the $15,000 deposit held by Fiserv. This deposit is represented as "restricted
cash" cash on the Company's balance sheet.
Section 5.4. Earnings and Cash. All amounts actually received by the
-----------------
Company on or after the Closing Date for products or services shall be deemed to
be earnings of the Company as owned by the Purchasers and all such amounts shall
be retained by the Surviving Corporation and shall be accounted for on the books
and records of the Company as earnings of the Surviving Corporation. This
treatment of amounts actually received by the Company on or after the Closing
Date shall be applied whether or not the actual sale of products or the
provision of services occurred on or prior to the Closing Date. The Purchasers
will ensure that all amounts received by the Company prior to Closing Date will
be promptly deposited in the Company's account and immediately available for
dividend to Ebank as described in Section 5.10 below.
Section 5.5. Bank Employees During Transition Period. The two bank
---------------------------------------
employees who are currently licensed at the Company (Xxxxxx Xxxxx and Xxxxx
Xxxxxx) will remain in their positions for six months following the Closing. The
Company will compensate these employees during the six-month period according to
the Company's compensation structure. Notwithstanding the above, the parties
acknowledge that these employees are "at will" employees, and that they will
only serve in this capacity so long as they are employees of Ebank or its
subsidiary bank.
11
Section 5.6. 2002 Audit and Tax Return: The Purchasers and the Surviving
-------------------------
Corporation will cooperate with the Ebank auditors to complete the 2002 audit of
the Company. The cost of the 2002 audit will be borne by the Company, not to
exceed $3,000. Additionally, Ebank will file any Tax returns with respect to the
Company for 2002 and will pay all Taxes owed by the Company with respect to
2002. The Purchasers and the Surviving Corporation will cooperate with Ebank to
complete such Tax returns.
Section 5.7. Xxx. Xxxxxxx' Directorship: Xxx. Xxxxxxx will resign from her
--------------------------
position as Director on the Ebank Board of Directors immediately upon the
Closing.
Section 5.8. Resignation of Company Officers and Directors. Xxxxx X. Box,
---------------------------------------------
Xxxxxx Xxxxxxxxx, Xxxxx Xxxxx and Xxxxxxx X. Xxxxxxx will resign from their
positions as directors of the Company immediately upon the Closing.
Section 5.9. Termination of Agreements. The Registration Rights Agreement
-------------------------
dated December 31, 2001 between Xxxxxxxx Xxxxxxx, Xxxxxx X. Xxxxxxx and Ebank
will be terminated upon the Closing.
Section 5.10. Company Dividend. The parties agree that prior to Closing,
----------------
the Company will distribute a dividend to Ebank, its then sole shareholder, of
all of the cash the Company then holds (provided that this dividend shall not be
less than $70,000), other than the $15,000 deposit referenced in Section 5.3
above.
Section 5.11. Regulatory Matters. The parties acknowledge that both Ebank
------------------
and the Company are regulated entities, and as such, are subject to regulatory
examinations from their respective regulators. For this reason and subject to
applicable privacy regulations, the parties agree to cooperate with one another
with respect to any regulatory examinations or audits that may require the
examination of the other's business.
Section 5.12. Insurance. Ebank agrees to maintain directors and officers
---------
insurance with respect to the period from the Original Acquisition Date through
the Closing Date for a period of five years following the Closing Date.
ARTICLE 6
CLOSING
-------
Section 6.1. Time and Place of Closing. The Closing of the transactions
-------------------------
contemplated hereunder shall take upon execution and delivery of this Agreement
and shall be effective as of the December 31, 2002. The Closing shall take place
at the offices of Xxxxxxxxxx Xxxxxx & Xxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000 at 10:00 a.m., Atlanta Time.
Section 6.2. Deliveries by Ebank. At the Closing, Ebank shall deliver to
-------------------
the Purchasers:
12
(a) stock certificates evidencing all of the shares of Company Common
Stock, canceled or duly endorsed in blank or with stock powers endorsed in
blank;
(b) Articles of Incorporation of the Company, certified by the Secretary of
State of the State of Georgia, and a true and correct copy of the Bylaws of the
Company, certified as of the Closing Date by the Secretary of the Company;
(c) good standing certificates relating to the Company from the State of
Georgia and each other jurisdiction in which the Company is qualified to conduct
business;
(d) the corporate seal and all stock ledgers and minute books of the
Company in existence as of the Closing, accompanied by a certificate of the
secretary of the Company certifying that the stock ledgers and minutes books
are, to the best of her information and belief, true, correct and complete as of
the Closing Date;
(e) the Purchase Documents duly executed by Ebank;
(f) a Secretary's Certificate attesting to the incumbency of the officers
of the Company and Ebank executing this Agreement and the other certificates and
agreements delivered by the Company and Ebank at the Closing; and
(g) the cross receipt evidencing the share and cash transfer.
Section 6.3. Deliveries by The Purchasers. At the Closing, the Purchasers
----------------------------
shall deliver to Ebank:
(a) the Purchase Documents duly executed by the Purchasers, as applicable;
(b) the Purchase Shares and the $557,750 cash proceeds; and
(c) the cross receipt evidencing the share and cash transfer.
Section 6.4. Post Closing Deliveries and Power of Attorney. The Purchasers,
---------------------------------------------
Ebank, and the Company (in its role as the Surviving Corporation) agree that,
from time to time after the Closing, each of them will execute and deliver such
further instruments of conveyance and transfer and take such other action as may
be necessary to carry out the purposes and intent of this Agreement. Ebank
absolutely and irrevocably appoints Xxxxxxxx Xxxxxxx, as its true and lawful
agent and attorney-in-fact, with full power of substitution, in the name of
Ebank, to execute and do all such assurances, acts and things which Ebank has
covenanted and agreed to do under this Agreement but which Ebank failed to
execute or do within three days of the Surviving Corporation's or the
Purchaser's request therefor, including but not limited to executing, on behalf
of Ebank, such transfer or conveyance documents and other agreements that the
Surviving Corporation or the Purchasers may deem proper in and for the exercise
of any such powers, authorities or discretion. This Power of Attorney grants to
Xx. Xxxxxxx, as agent for the Purchasers, all powers granted to agents and
attorneys-in-fact generally under applicable law.
13
Ebank hereby ratifies and confirms and agrees to ratify and confirm whatever
lawful acts Xx. Xxxxxxx shall do in the exercise of the power of attorney
granted hereby, which power of attorney shall be deemed to be coupled with an
interest, is irrevocable and shall survive the corporate life of Ebank.
ARTICLE 7
SURVIVAL; INDEMNIFICATION
-------------------------
Section 7.1. Survival. The parties' respective representations and
--------
warranties contained in this Agreement will survive execution and delivery of
this Agreement and Closing and shall remain in full force and effect until the
running of the applicable statute of limitations; provided, however, that the
-------- -------
representations and warranties set forth in Section 3.8 shall survive until
expiration of any applicable statute of limitations (including any extensions
thereof) which will preclude assertion of Tax claims against the Company for
matters existing on or prior to the date of this Agreement. Any claim made or
notice of a claim given as to any breach or alleged breach of a representation
or warranty shall extend the applicable survival period set forth above until
such claim has been resolved and satisfied by agreement of the parties or by the
entry of a final, non-appealable judgment of a court having jurisdiction over
such claim.
Section 7.2. Indemnification.
---------------
(a) Indemnification by Ebank. Subject to the terms of this Article 7,
------------------------
Ebank hereby covenants and agrees to indemnify, defend, save, and hold harmless
the Surviving Corporation and the Purchasers and their respective officers,
directors, employees, agents, affiliates or any of their respective successors,
predecessors, assigns or personal representatives (collectively, the "Purchaser
Indemnified Parties"), from and against any demands, claims, actions, losses,
damages, deficiencies, liabilities, costs and expenses (including, without
limitation, reasonable attorneys' and accountants' fees and expenses), together
with interest and penalties, if any, awarded by court order or otherwise agreed
to (collectively, "Indemnifiable Damages"), suffered by the Purchaser
Indemnified Parties which arise out of or result from:
(i) any misrepresentation in or breach of any of the representations,
warranties or covenants made by the Company or Ebank in this Agreement;
(ii) any misrepresentation in a document, certificate or affidavit
delivered by or on behalf of the Company or Ebank in connection with this
Agreement;
(iii) the continued existence after the execution of this Agreement of
any Lien in violation of this Agreement.
14
(iv) any claim alleging misconduct of, by or under the control of the
Company or Ebank which is criminal or of a grossly negligent character that
is attributable to events occurring prior to the execution of this Agreement.
(v) any and all Tax liabilities of the Company or Ebank relating to
the 2002 taxable year; and
(vi) any liabilities or obligations of or relating to Ebank or its
business other than the business of the Company.
(b) Indemnification by the Purchasers. Subject to the terms of this Article
---------------------------------
7, the Purchasers hereby covenant and agree to indemnify, defend, save, and hold
harmless Ebank and its representatives, trustees and permitted assigns (the
"Ebank Indemnified Parties") from and against any Indemnifiable Damages suffered
by them which arise out of or result from:
(i) any misrepresentation in or breach of any of the representations,
warranties or covenants made by the Purchasers in this Agreement;
(ii) any misrepresentation in a document, certificate or affidavit
delivered by or on behalf of the Purchasers in connection with this
Agreement; or
(iii) any claim alleging misconduct of, by or under the control of the
Purchasers which is criminal or of a grossly negligent character that is
attributable to events occurring prior to the execution of this Agreement.
(c) Limitations on Amount. None of Ebank, the Surviving Corporation, or the
---------------------
Purchasers will have liability (for indemnification or otherwise) with respect
to the matters described in clause 7.2(a) or 7.2(b) or for any other matter
unless and until the total of all damages with respect to such matters exceeds
$10,000. However, this provision in Section 7.2(c) will not apply to any breach
of any of the representations and warranties of the Company, the Purchasers, or
Ebank where the party had knowledge at any time prior to the date on which such
representation or warranty is made that the representation or warranty was not
accurate. Further, the provisions of this Section 7.2(c) will not apply to an
intentional breach by any party of any covenant or obligation.
Section 7.3. Procedure for Third-Party Claims.
--------------------------------
(a) Promptly after obtaining knowledge of any claim or demand which has
given rise to, or could reasonably give rise to, a claim for indemnification
hereunder, the party seeking indemnification shall give written notice of such
claim ("Notice of Claim") to the other party within 60 days, but failure to do
so will not prejudice any right of recovery to the extent that damage did not
arise as a result of such failure to provide timely notice. The Notice of Claim
shall set forth a brief description of the facts giving rise to such claim and
the amount (or a reasonable estimate) of the liability, loss, damage or expense
suffered, or which
15
may be suffered, by the party seeking indemnification, and shall be accompanied
by all documentation in the case of a third-party claim against the indemnified
party.
(b) In the case of a third party claim, upon receiving the Notice of Claim,
the indemnifying party shall resist, settle or otherwise dispose of such claim
in such manner as it shall deem appropriate, including the employment of
counsel, and shall be responsible for the payment of all settlements, judgments,
costs and expenses, including the reasonable fees and expenses of any counsel
retained. The indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the indemnified party's expense unless:
(i) the employment has been specifically authorized by the
indemnifying party in writing;
(ii) the indemnifying party has improperly failed to assume the
defense and employ counsel; or
(iii) the named parties to any action (including any impleaded parties)
include the Surviving Corporation, Ebank and/or the Purchasers, and the
indemnified party has been advised by such counsel that representation of
the Surviving Corporation, Ebank and/or the Purchasers by the same counsel
would be inappropriate under applicable standards of professional conduct
due to actual or potential differing interests between them (in which case,
if the indemnified party notifies the indemnifying party in writing that the
indemnified party elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall have neither the right nor
the obligation to assume the defense of such action on behalf of the
indemnified party).
(c) The party seeking indemnification shall comply with the foregoing
procedure for each claim arising hereunder, whether or not the amount of such
claims exceeds any minimum amount. All Notices of Claim for general
contingencies must be delivered within the time frame permitted by Section 7.1.
The indemnified party shall cooperate with the indemnifying party in defending
any such claim and provide any books, records, information or testimony
requested, which is in the hands of or under the control of the indemnified
party or obtainable by the indemnified party without unreasonable expense.
Section 7.4. Records. In connection with any claim for indemnification
-------
hereunder, the parties agree to provide reasonable access to the other with
respect to any business records related to the indemnification claim.
16
ARTICLE 8
RESTRICTIVE COVENANTS
---------------------
Section 8.1. Restrictive Covenants. The covenants in this Section are
---------------------
necessary to induce the Purchasers to purchase the Company Common Stock from
Ebank and to induce Ebank to sell the Company Common Stock to the Purchasers
because of the nature of the relationship that exists between Ebank and its
customers and the customers and employees of the Company.
(a) Covenant not to Solicit Customers. Ebank recognizes and acknowledges
---------------------------------
that the Company's customer base was one of the primary assets motivating the
Purchasers to purchase the Company from Ebank. Ebank further acknowledges that
information regarding these customers and the specific needs of such customers
is essential to the success of the Surviving Corporation's business and its
continued goodwill and that its customer list is a property interest of the
Surviving Corporation, having been developed by it at great effort and expense.
Ebank covenants and agrees that for a period of six months after the Closing
Date, Ebank shall not, directly or indirectly, alone or in association with or
on behalf of any other person or entity, solicit for any service or business
offering Services competitive with the Surviving Corporation any person or
entity who was a customer of the Company within 60 days prior to the Closing of
this Agreement.
(b) Covenant not to Interfere. The Purchasers covenant and agree that, for
-------------------------
a period of six months after the Closing Date, they will not, directly or
indirectly, alone or in conjunction with or on behalf of any other person or
entity, induce any customer of Ebank to discontinue its banking relationship
with Ebank.
(c) Covenant not to Solicit Employees. Each of the Purchasers and the
---------------------------------
surviving corporation, on one hand, and Ebank, on the other hand, covenants and
agrees that for a period of six months after the Closing Date, it shall not,
directly or indirectly, alone or in association with or on behalf of any other
person or entity solicit or attempt to solicit or induce any person or persons
employed by the other parties, including persons hired subsequent to the date of
this Agreement, to leave such employment for employment with another business,
or to breach his or her employment agreement with the applicable party.
ARTICLE 9
OTHER AGREEMENTS
----------------
Section 9.1. Effective Date. Notwithstanding the actual date of execution
--------------
and delivery of this Agreement, the parties agree that, for all purposes
(including legal, tax and accounting), this Agreement shall be deemed dated and
effective as of December 31, 2002.
Section 9.2. Arbitration. The parties hereto shall, in good-faith, attempt
-----------
to settle any dispute, controversy, or claim arising out of or relating to this
Agreement or any other related Purchase Documents, agreements, certificates, or
other writing, or the breach,
17
termination, construction, validity, or enforceability hereof or thereof, for
a period of 60 days after notification to all parties of the dispute. If
there is no resolution within those 60 days, the dispute shall be settled by
binding arbitration held in Atlanta, Georgia in accordance with the rules of the
American Arbitration Association in force at the time. The right to demand
arbitration and to receive damages and obtain other available remedies as
provided hereunder shall be the exclusive remedy in the event an arbitration
demand is made, except that the Surviving Corporation and/or Ebank shall be
entitled to obtain equitable relief, such as injunctive relief, from any court
of competent jurisdiction to protect its rights in any of its intellectual
property rights or documents while such proceeding is pending or in support of
any award made pursuant to such arbitration.
Section 9.3. Non-Disparagement. The parties further warrant and agree that
-----------------
each of them shall not disparage the other or its owners, officers, directors,
shareholders, employees, agents, or its business, products, policies, practices
or services, in any way whatsoever.
Section 9.4. Rescission of Acquisition Transaction Upon Failure to Obtain
------------------------------------------------------------
Regulatory Approvals. In order to continue its operation as a broker-dealer, the
--------------------
Company must receive regulatory approval (the "Required Approvals") for the
change in control of its ownership as contemplated under this Agreement from
both the Securities and Exchange Commission and the National Association of
Securities Dealers. If the Company has not received the Required Approvals by
the 75th day following Closing, then either Ebank or the Purchasers shall have
the right to rescind the transactions contemplated by this Agreement (the
"Rescission Option"). The party exercising the Rescission Option shall deliver
written notice of its election to rescind to all other parties to this
Agreement, and within 10 business days after delivery of the written notice, the
parties shall close the rescission transactions (the "Rescission Closing"). At
the Rescission Closing, (i) the Purchasers shall transfer all Company Common
Stock to Ebank, (ii) Ebank shall pay $557,750 in immediately available funds and
transfer all Purchase Shares to the Purchasers, (iii) all other agreements
entered into between the parties in connection with this Agreement representing
continuing financial obligations or liabilities shall be terminated, (iv) the
terms of the acquisition agreement (the "Original Acquisition Agreement")
entered into in connection with the Original Acquisition shall govern such
Rescission Closing, and (v) the parties shall re-execute any ancillary
agreements entered into between them in connection with the Original
Acquisition. Notwithstanding this provision, the parties hereto shall use
commercially reasonable efforts, and will at all times act in good-faith, to
obtain the Required Approvals.
ARTICLE 10
MISCELLANEOUS
-------------
Section 10.1. Integration; Severability. Except for the obligations between
-------------------------
the parties set forth in the agreements to be executed at Closing and the
obligations of the parties under the Original Acquisition Agreement, this
Agreement represents the entire understanding of the Company, Ebank and the
Purchasers with respect to the subject matter hereof and there
18
are no other written or oral agreements or understandings between the parties
with respect thereto. If for any reason any term, provision or portion thereof
of this Agreement is held to be unenforceable, invalid or illegal, such
provision or portion thereof shall be deemed modified to the minimum extent
necessary to make such provision consistent with the applicable law and the
remaining portions and provisions of this Agreement shall continue in full force
and effect thereafter.
Section 10.2. Expenses. All legal, accounting and other costs and expenses
--------
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such costs and expenses.
Section 10.3. Notices. All notices hereunder shall be sufficiently given
-------
for all purposes hereunder if in writing and delivered personally, sent by
documented overnight delivery service, or to the extent receipt is confirmed,
facsimile, or other electronic transmission service to the appropriate address
or number as follows:
To the Purchasers:
Xxxxxxxx X. Xxxxxxx
One Buckhead Plaza
Suite 1825
0000 Xxxxxxxxx Xx., XX
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Xxxxxx X. Xxxxxxx
One Buckhead Plaza
Suite 1825
0000 Xxxxxxxxx Xx., XX
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
To the Company:
Peachtree Capital Corporation
Xxxxxxxx X. Xxxxxxx, President
One Buckhead Plaza
Suite 1825
0000 Xxxxxxxxx Xx., XX
Xxxxxxx, Xxxxxxx 00000
With a copy to:
Xxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
00
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
To Ebank:
Ebank Financial Services, Inc.
0000 Xxxxx Xxxxx Xx.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Box, President
Facsimile: (000) 000-0000
With a copy to:
J. Xxxxxxx Xxxx, Esq.
Xxxxxx Xxxxxxx Xxxxx & Scarborough, L.L.P.
First Union Plaza - Suite 1400
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Section 10.4. Public Announcements. No party shall make any public
--------------------
announcement or other public disclosure regarding this Agreement or its terms
without the consent of the other party, except to the extent that such
disclosure is required by applicable law. Notwithstanding the foregoing, the
parties may communicate with their respective employees, customers, suppliers,
creditors, advisors and relevant governmental agencies as may be necessary and
appropriate in connection with the implementation and consummation of the terms
of this Agreement. This provision will terminate if and when the terms of this
Agreement become available to the public.
Section 10.5. Remedies. Each of the parties acknowledges that money damages
--------
would not be a sufficient remedy for any breach of this Agreement and that
irreparable harm would result if this Agreement were not specifically enforced.
Therefore, the rights and obligations of the parties under this Agreement shall
be enforceable by a decree of specific performance issued by any court of
competent jurisdiction, and appropriate injunctive relief may be applied for and
granted in connection therewith. A party's right to specific performance shall
be in addition to all other legal or equitable remedies available to such party.
Section 10.6. Opportunity to Obtain Assistance of Counsel. Each party
-------------------------------------------
hereto acknowledges that they have had the opportunity to obtain the assistance
of counsel in negotiating and preparing the terms of this Agreement; therefore,
this Agreement shall be construed without regard to any presumption or other
rule requiring construction against the party causing the Agreement to be
drafted.
20
Section 10.7. Governing Law and Jurisdiction. This Agreement shall be
------------------------------
interpreted and enforced construed in accordance with the laws of the State of
Georgia (excluding conflict of laws principles). The parties consent to the
exclusive jurisdiction and venue of the courts of any county in the State of
Georgia and the United States District Court for any District of Georgia in any
action or judicial proceeding brought to enforce, construe or interpret this
Agreement or any other documents or agreements contemplated hereby. The parties
agree that any forum other than the State of Georgia is an inconvenient forum
and that a suit (or non-compulsory counterclaim) brought by any party against
the Surviving Corporation or Ebank or any of their affiliates (including the
Ebank Indemnified Parties) in a court of any state other than the State of
Georgia should be forthwith dismissed or transferred to a court located in the
State of Georgia.
Section 10.8. Assignment; Amendments; Binding Agreement. The Purchasers may
-----------------------------------------
not assign any of their rights or responsibilities hereunder without the prior
written consent of the Surviving Corporation or Ebank; any attempted assignment
without such prior written consent of the Surviving Corporation or Ebank shall
be null and void. Neither Ebank nor the Surviving Corporation may assign any of
its rights or responsibilities hereunder, except to Subsidiaries or other
affiliates of Ebank, without the prior written consent of the Purchasers; any
attempted assignment without such prior written consent of the Purchasers shall
be null and void. No amendment or modification of this Agreement shall be
binding unless the same shall be in writing and executed by the parties hereto.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their successors, representatives, receivers, trustees and
permitted assigns.
Section 10.9. Counterparts; Facsimiles. This Agreement may be executed in
------------------------
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. To the maximum
extent permitted by law or by any applicable governmental authority, any
document may be signed and transmitted by facsimile with the same validity as if
it were an ink-signed document.
[Signatures on Next Page]
21
IN WITNESS WHEREOF, this Stock Purchase Agreement has been executed by each
of the parties as of the date first above written.
Ebank Financial Services, Inc.
By: s/ Xxxxx X. Box
--------------------------------
Name: Xxxxx X. Box
Title: President and CEO
Peachtree Capital Corporation
By: s/ Xxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: President
Purchasers:
s/Xxxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxxx X. Xxxxxxx
s/Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
22
