EXHIBIT 10.2
ASSET PURCHASE AGREEMENT
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THIS AGREEMENT, dated as of September 5, 2003 (the "Effective Date"),
is by and between GEORGIAN BANK, a banking corporation chartered
under the laws of the State of Georgia having its principal
offices in Powder Springs, Georgia ("Purchaser"), and X. XXXX
ENTERPRISES, INC., a Georgia corporation having its principal
offices in Alpharetta, Georgia ("Seller"):
WITNESSETH:
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WHEREAS, Seller is the owner of certain assets relating to its commercial
lending business in the Alpharetta, Georgia area; and
WHEREAS, Purchaser desires to acquire from Seller the assets described
herein and to assume from Seller the liabilities described herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I: TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES
Section 1.1. Transferred Assets
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As of the date of this Agreement and upon the terms and conditions set
forth herein, Seller hereby sells, assigns, transfers, conveys and delivers
to Purchaser, and Purchaser hereby purchases from Seller, all right, title
and interest of Seller in all of the assets of Seller existing on such date
(the "Assets"), including: (a) all leasehold improvements, furniture,
fixtures, and equipment and other tangible personal property; (b) all of
Seller's rights relating to its loan pipeline, including related loan fees;
(c) all receivables and prepaid expenses, including offering costs
associated with the Private Placement Memorandum; (d) all cash balances
maintained in any and all bank accounts of Seller; and (e) all records and
documents relating to the Assets.
Notwithstanding the foregoing, no loans held by Seller shall be
transferred to Purchaser pursuant to this Agreement.
Section 1.2. Assumed Liabilities
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As of the date of this Agreement and upon the terms and conditions set
forth herein, Seller hereby assigns to Purchaser, and Purchaser hereby
assumes from Seller, all obligations and liabilities of Seller existing on
such date (the "Liabilities"), including: (a) $736,500 of incentive
compensation payable; (b) all of Seller's obligations under a note in the
principal amount of $600,000 issued by Seller and held by Riverside Bank;
(c) Seller's obligations under its lease for its existing office space; and
(d) other accrued liabilities.
Section 1.3. Purchase Price
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Purchaser shall pay Seller, as soon after the date of this Agreement
as is practicable, a cash purchase price (the "Purchase Price") equal to
the sum of $21,000, reflecting a total acquisition of Assets valued at
$1,420,000 less the assumption of liabilities valued at $1,399,000.
ARTICLE II: CLOSING DELIVERIES
Section 2.1. Documents to be Delivered
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(a) All actions taken and documents delivered pursuant to this
Agreement shall be deemed to have been taken and executed simultaneously on
the Effective Date, and no action shall be deemed taken nor any document
delivered until all have been taken and delivered.
(b) Subject to all the terms and conditions of this Agreement,
Seller shall deliver to Purchaser:
(i) A Xxxx of Sale, in substantially the form attached hereto
as Exhibit 2.1(b)(1) (the "Xxxx of Sale"), transferring to Purchaser
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all of Seller's interest in the Assets;
(ii) An Assignment and Assumption Agreement, in substantially
the form attached hereto as Exhibit 2.1(b)(2) (the "Assignment and
Assumption Agreement"), pursuant to which Seller will assign, and
Purchaser shall assume, the Liabilities; and
(iii) Such certificates and other documents as Purchaser and
its counsel may reasonably require to evidence the receipt by Seller
of all necessary corporate and regulatory authorizations and approvals
for the consummation of the transactions provided for in this
Agreement.
(c) Subject to all the terms and conditions of this Agreement,
Purchaser shall deliver to Seller:
(i) A certificate and receipt acknowledging the delivery and
receipt of possession of the Assets;
(ii) The Assignment and Assumption Agreement;
(iii) Immediately available funds in the amount of the
Purchase Price; and
(iv) Such certificates and other documents as Seller and its
counsel may reasonably require to evidence the receipt of Purchaser of
all necessary corporate and regulatory authorizations and approvals
for the consummation of the transactions provided for in this
Agreement.
(d) All instruments, agreements and certificates described in this
Section 2.2 shall be in form and substance reasonably satisfactory to the
parties' respective legal counsel.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows, which
representations and warranties shall survive the Effective Date for a period of
12 months:
Section 3.1. Corporate Organization
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Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Georgia. Seller has the corporate
power and authority to own its properties, to carry on its business as
currently conducted and to effect the transactions contemplated herein.
Section 3.2. No Violation
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Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein, will violate or
conflict with (a) Seller's Articles of Incorporation or Bylaws; (b) any
material provision of any material agreement or any other material
restriction of any kind to which Seller is a party or by which Seller is
bound; (c) any material statute, law, decree, regulation or order of any
governmental authority; or (d) any material provision that will result in a
default under, or cause the acceleration of the maturity of, any material
obligation or loan to which Seller is a party.
Section 3.3. Enforceable Agreement
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This Agreement has been duly authorized, executed and delivered by
Seller and is the legal, valid and binding agreement of Seller, enforceable
in accordance with its terms.
Section 3.4. No Brokers
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All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Seller and Purchaser, and there
has been no participation or intervention by any other person, firm or
corporation employed or engaged by or on behalf of Seller in such a manner
as to give rise to any valid claim, by any person, firm or corporation,
against Seller or Purchaser for a brokerage commission, finder's fee or
like commission.
Section 3.5. Title
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Seller owns, and will convey to Purchaser at the Closing, all of
Seller's right, title and interest to the Assets free and clear of any
claims, mortgages, liens, security interests, pledges or encumbrances of
any kind, except as may otherwise be set forth in this Agreement. The
personal property to be purchased by Purchaser is sold AS IS, WHERE IS,
with no warranties or representations whatsoever, except as may be
expressly represented or warranted in this Section 3.5.
ARTICLE IV: REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows, which
representations and warranties shall survive the Effective Date for a period of
12 months:
Section 4.1. Corporate Organization
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Purchaser is a banking corporation, duly organized, validly existing,
and in good standing under the laws of the State of Georgia. Purchaser has
the corporate power and authority to own the properties being acquired, to
assume the liabilities being transferred and to effect the transactions
contemplated herein.
Section 4.2. No Violation
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Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein, will violate or
conflict with (a) the Articles of Incorporation or Bylaws of Purchaser; (b)
any material provision of any material agreement or any other material
restriction of any kind to which Purchaser is a party or by which Purchaser
is bound; (c) any material statute, law, decree, regulation or order of any
governmental authority; or (d) any material provision that will result in a
default under, or cause the acceleration of the maturity of, any material
obligation or loan to which Purchaser is a party.
Section 4.3. Enforceable Agreement
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This Agreement has been duly authorized, executed and delivered by
Purchaser and is the legal, valid and binding agreement of Purchaser
enforceable in accordance with its terms.
Section 4.4. No Brokers
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All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Seller and Purchaser, and there
has been no participation or intervention by any other person, firm or
corporation employed or engaged by or on behalf of Purchaser in such a
manner as to give rise to any valid claim, by any person, firm or
corporation, against Seller or Purchaser for a brokerage commission,
finder's fee or like commission.
ARTICLE V: OBLIGATIONS OF PARTIES AFTER EFFECTIVE DATE
Section 5.1. Further Actions
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The parties hereto shall execute and deliver such instruments and take
such other actions as the other party may reasonably require in order
carrying out the intent of this Agreement.
Section 5.2. Tax Reporting
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Seller shall comply with all tax reporting obligations in connection
with the Assets on or before the Effective Date, and Purchaser shall comply
with all tax reporting obligations with respect to the Assets after the
Effective Date.
ARTICLE VI: MISCELLANEOUS
Section 6.1. Amendment and Modification
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The parties hereto, by mutual consent of their duly authorized
officers, may amend, modify and supplement this Agreement in such manner as
may be agreed upon by them in writing.
Section 6.2. Waiver and Extension
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Either party, by written instrument signed by a duly authorized
officer, may extend the time for the performance of any of the obligations
or other acts of the other party and may waive (a) any inaccuracies in the
representations and warranties contained herein or in any document
delivered pursuant hereto or (b) compliance with any of the undertakings,
obligations, covenants or other acts contained herein.
Section 6.3. Assignment
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This Agreement and all of the provisions hereof shall be binding,
upon, and shall inure to the benefit of, the parties hereto and their
permitted assigns, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either of the
parties hereto without the prior written consent of the other.
Section 6.4 Counterparts
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This Agreement may be executed simultaneously 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.
Section 6.5 Governing Law
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This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Georgia.
Section 6.6. Sole Agreement
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This Agreement and the exhibits and attachments hereto represent the
sole agreement between the parties hereto respecting the transactions
contemplated hereby and all prior or contemporaneous written or oral
proposals, agreements in principle, representations, warranties and
understandings between the parties with respect to such matters are
superseded hereby and merged herein.
Section 6.7. Severability
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If any provision of this Agreement is invalid or unenforceable, the
balance of this Agreement shall remain in effect.
Section 6.8. Parties in Interest
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Nothing in this Agreement, express or implied, is intended or shall be
construed to confer upon or give to any person (other than the parties
hereto, their successors and permitted assigns) any rights or remedies
under or by reason of this Agreement, or any term, provision, condition,
undertaking, warranty, representation, indemnity, covenant or agreement
contained herein.
[Signatures Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers as of the date first written
above.
ATTEST: GEORGIAN BANK
By: By:
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Name: Name:
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Title: Title:
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ATTEST: X. XXXX ENTERPRISES, INC.
By: By:
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Name: Name:
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Title: Title:
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