EXHIBIT 2.1
SECOND AMENDMENT TO STOCK PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO STOCK PURCHASE AND SALE AGREEMENT, is made and
entered into as of this 29th day of June, 2004 (the "Second Amendment"), by and
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between Gulf Atlantic Financial Group, Inc., a corporation organized and
existing under the laws of the State of Florida ("Buyer"), and Community
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National Bancorporation, a corporation organized and existing under the laws of
the State of Georgia ("Seller"). Capitalized terms used but not otherwise
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defined herein shall have the meanings so ascribed pursuant to the Stock
Purchase Agreement (defined below).
WITNESSETH:
WHEREAS, pursuant to the terms of that certain Stock Purchase and Sale
Agreement, dated as of October 21, 2003, as amended by that certain First
Amendment to Stock Purchase and Sale Agreement dated January 29, 2004
(collectively, the "Stock Purchase Agreement"), Seller has agreed to sell to
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Buyer, and Buyer has agreed to purchase from Seller, the Shares, which represent
all of the outstanding capital stock of the Bank; and
WHEREAS, as of the date of this Second Amendment, Buyer has obtained
commitments for funds in excess of the Purchase Price, which funds will enable
Buyer to pay the Purchase Price at Closing.
WHEREAS, as required by the Agreement and applicable law, Buyer has
previously submitted an application for approval of the Transactions
("Regulatory Approval") with the Federal Reserve Bank of Atlanta (the "Federal
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Reserve").
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WHEREAS, the Federal Reserve has requested that Buyer's application be
treated as a draft until such time as Buyer has sufficient funds to pay the
Purchase Price, at which time Buyer may resubmit its application for final
processing.
WHEREAS, as a result of Buyer having received commitments for sufficient
funds to pay the Purchase Price, Buyer has resubmitted its application for
Regulatory Approval with the Federal Reserve.
WHEREAS, Buyer and Seller wish to amend the Stock Purchase Agreement as
set forth in this Second Amendment.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants, conditions and actions hereinafter set forth, the parties
hereto, each intending to be legally bound hereby, agree as follows:
ARTICLE I
WAIVER OF FINANCING CONTINGENCY
1.01 Buyer hereby waives the condition regarding the Buyer Private
Financing contained in Sections 6.02(j).
ARTICLE II
AMENDMENT
2.01 Section 7.01(c) is hereby amended to read in its entirety as
follows:
"(c) Delay. At any time prior to the Effective Time, by Buyer or
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Seller, in each case if its Board of Directors so determines by vote
of a majority of the members of its entire Board, in the event that
the transactions contemplated hereby are not consummated by the
earlier to occur of: (i) September 15, 2004, and (ii) within five
(5) business days of the Buyer's receipt of all Governmental
Approvals and the expiration of all applicable waiting periods,
except to the extent that the failure of the Transactions then to be
consummated arises out of or results from the action or inaction of
the Party seeking to terminate pursuant to this Section 7.01(c)."
ARTICLE III
MISCELLANEOUS
3.01 The above amendment to Section 7.01(c) may be terminated by the
Seller and the Agreement and the transactions contemplated thereby may be
terminated by Seller if the Federal Reserve does not indicate that it has
accepted for processing Buyer's application for Regulatory Approval on or before
July 2, 2004, provided, however, that Seller may not terminate based upon the
foregoing if non-acceptance by the Federal Reserve includes a request for
additional information to the Federal Reserve and Buyer takes efforts to supply
such information and Buyer's application for Regulatory Approval is accepted for
processing on or before July 12, 2004.
3.02 Buyer agrees to pay an extension fee which shall accrue in the
amount of $25,000 per month beginning on July 1, 2004 and ending on the first
to occur of the Closing or Termination of the Agreement by Seller. Such fee
shall be prorated for any fractional month. In the event of a Closing, the
extension fee which will be in addition to the Purchase Price, will be paid at
Closing. In the event of Termination of the Agreement without a Closing (other
than a Termination caused by the breach or other malfeasance of Seller), the
extension fee shall be paid by Buyer to Seller within five (5) business days
after the Termination in immediately available United States funds.
Notwithstanding anything to the contrary in this Section 3.02, in no event shall
the extension fee payable by Buyer aggregate more that $45,000.
3.03 Except as expressly amended by this Second Amendment, the terms,
conditions, covenants, agreements, representations and warranties contained in
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the Stock Purchase Agreement, as previously amended, shall remain unaffected
hereby and shall continue in full force and effect.
3.04 This Second Amendment 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.
[Signatures follow]
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IN WITNESS HEREOF, each Party hereto has caused this Second Amendment to be
executed on its behalf by its duly authorized officer, all as of the day and
year first above set forth.
COMMUNITY NATIONAL BANCORPORATION
By: /s/Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
President and Chief Executive Officer
GULF ATLANTIC FINANCIAL GROUP, INC.
By: /s/Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Senior Vice President
