AMENDED AND RESTATED
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
NET.B@NK, INC.
AND
FIRST ALLIANCE/PREMIER BANCSHARES, INC.
AMENDED AND RESTATED
STOCK PURCHASE AGREEMENT
THIS AMENDED AND RESTATED STOCK PURCHASE AGREEMENT ("Agreement") is made
and entered into as of the ____ day of __________, 199__, by and between
NET.B@NK, INC. (the "Company"), a corporation organized and existing under the
laws of the State of Georgia and FIRST ALLIANCE/PREMIER BANCSHARES, INC., a
corporation organized and existing under the laws of the State of Georgia
("Bancshares").
PREAMBLE
WHEREAS, a majority of the entire Board of Directors of each of the Company
and Bancshares have, respectively, approved and made this Agreement and
authorized its execution; and
WHEREAS, Bancshares is the sole shareholder of Premier Bank, F.S.B.
("Bank"); and
WHEREAS, Bancshares anticipates that it will consolidate the operations of
First Alliance Bank and Bank pursuant to a Purchase and Assumption Agreement;
and
WHEREAS, the Boards of Directors of the Company and Bancshares are of the
opinion that the transactions described herein are in the best interests of the
parties to this Agreement and their respective stockholders; and
WHEREAS, the stock purchase described herein is subject to regulatory
approval and the satisfaction of certain other conditions described in this
Agreement.
NOW, THEREFORE, in consideration of the above and the mutual warranties,
representations, covenants and agreements set forth herein, the parties agree as
follows:
ARTICLE ONE
DEFINITIONS
Except as otherwise provided herein, the capitalized terms set forth below
(in their singular and plural forms as applicable) shall have the following
meanings:
1.1 "Agreement" shall mean this Stock Purchase Agreement.
1.2 "Bancshares" shall mean First Alliance/Premier Bancshares, Inc.
1.3 "Bank" shall mean Premier Bank, F.S.B.
1.4 "Bank Financial Statement" shall mean the financial statement of Bank
described in Section 4.4 of this Agreement.
1.5 "BHC Act" shall mean the federal Bank Holding Company Act of 1956, as
amended.
1.6 "Closing" shall mean the closing of the transactions contemplated
hereunder which, unless the Parties otherwise agree, will take place on the
Effective Date, as described in Section 3.1 of this Agreement.
1.7 "Common Stock" shall mean the $8.00 par value common stock of the
Bank.
1.8 "Effective Date" shall mean the date and time on which the stock
purchase contemplated by this Agreement becomes effective pursuant to the laws
of the State of Georgia as defined in Section 3.2 of this Agreement.
1.9 "ERISA" shall mean Public Law No. 93406, the Employee Retirement
Income Security Act of 1974, as amended.
1.10 Exhibits 1 and 2, inclusive, and the Schedules referenced herein,
shall mean the respective Exhibits and Schedules so marked, each of which has
been initialed for identification by an officer of the Company and an officer of
the Bank, and bound sets of which have been delivered to the respective Parties.
Such Exhibits and Schedules are hereby incorporated by reference herein and made
a part hereof, and may be referred to in this Agreement and any other related
instrument or document without being attached hereto.
1.11 "Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System.
1.12 "GAAP" shall mean generally accepted accounting principles.
1.13 "Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as amended.
1.14 "OTS" shall mean the Office of Thrift Supervision.
1.15 "Party" shall mean either the Company or Bancshares and "Parties"
shall mean collectively the Company and Bancshares.
1.16 "Previously Disclosed" shall mean information delivered prior to the
date of this Agreement in the manner and to the counsel described in Section
11.7 of this Agreement and describing in reasonable detail the matters contained
therein.
1.17 "Purchase and Assumption Transaction" shall mean the transaction
described in Section 9.12 hereof pursuant to an agreement substantially in the
form of Exhibit 1 attached hereto.
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1.18 "Regulatory Authorities" shall mean the applicable federal and state
regulatory authorities.
1.19 "Subsidiaries" or "Subsidiary" shall mean those corporations,
associations or other entities of which the entity in question owns or controls
80% or more of the outstanding equity securities either directly or through an
unbroken chain of entities as to each of which 80% or more of the outstanding
equity securities is owned directly or indirectly by its parent; provided,
however, there shall not be included any such entity acquired through
foreclosure, any such entity which owns or operates an automatic teller machine
interchange network or any such entity the equity securities of which are owned
or controlled in a fiduciary capacity.
ARTICLE TWO
PURCHASE OF STOCK
2.1 TRANSFER OF CERTIFICATES. Subject to the terms and conditions of this
Agreement, on the Effective Date Bancshares agrees to sell, assign, transfer and
deliver all of the $8.00 par value common stock of the Bank (the "Common Stock")
to the Company, and the Company agrees to purchase the Common Stock from
Bancshares. The certificates representing the Common Stock shall be duly
endorsed in blank, or accompanied by a stock power duly executed in blank, by
Bancshares, with all necessary transfer tax and other revenue stamps, acquired
at Bancshares' expense, affixed and cancelled. Bancshares agrees to cure at any
time after closing, without further compensation, any deficiencies with respect
to the endorsement of the certificates representing the Common Stock or with
respect to the stock power accompanying such certificate.
2.2 PURCHASE PRICE. In full consideration for the purchase by the Company
of the Common Stock, the Company shall on the Effective Date (i) pay to
Bancshares an amount in cash equal to the sum of the amount of the Bank's
unimpaired capital at Closing plus $100,000, and (ii) transfer to Bancshares 833
shares of the common stock of the Company (the "Company Common Stock") valued at
$120.00 per share which is the "agreed-upon" value of shares issued to certain
of the Company's investors by the Company. For the purpose of this Agreement,
the term "unimpaired capital" shall mean the sum of the Bank's paid in capital,
capital surplus, retained earnings and allocation for loan and lease losses with
respect to any loans and leases, immediately following consummation of the
Purchase and Assumption Transaction.
2.3 ANTI-DILUTION PROVISIONS. In the event that the Company changes the
number of shares of the Company Common Stock issued and outstanding prior to the
Effective Date as a result of a stock split, stock dividend or similar
recapitalization with respect to the Company Common Stock, the number of shares
issued to Bancshares as described in Section 2.2 shall be proportionately
adjusted.
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2.4 DIRECTOR AND OFFICERS OF THE BANK. Effective as of the Effective
Date, Bancshares shall deliver to the Company the resignations of all directors
and officers of the Bank.
ARTICLE THREE
CLOSING AND EFFECTIVE DATE
3.1 TIME AND PLACE OF CLOSING. A Closing will take place at 11:00 a.m. on
the Effective Date, or at such other time as the Parties may mutually agree.
The place of Closing shall be the offices of Bancshares at 0000 Xxxxxxx Xxxxx,
000 Xxxx Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, or at such other place as may
be mutually agreed upon by the Parties.
3.2 EFFECTIVE DATE. Upon the terms and subject to the conditions hereof,
as soon as practicable after receipt of the requisite regulatory approvals
following consummation of the Purchase and Assumption Transaction, but not later
than March 31, 1997, the parties shall designate an Effective Date on which the
Closing shall take place.
ARTICLE FOUR
REPRESENTATIONS AND WARRANTIES OF BANCSHARES
Bancshares hereby represents and warrants to the Company as follows:
4.1 ORGANIZATION, STANDING AND AUTHORITY. The Bank is a federal savings
bank duly organized, validly existing and in good standing under the laws of the
United States, is duly qualified to do business and is in good standing in the
States of the United States and jurisdictions where its ownership or leasing of
property or the conduct of its business requires it to be so qualified and in
which the failure to be duly qualified could have a material adverse effect upon
the Bank, and has corporate power and authority to carry on its business as now
conducted and to own, lease and operate its assets, properties and businesses,
and to execute and deliver this Agreement and perform its terms. The Bank is an
"insured bank" as defined in the Federal Deposit Insurance Act and applicable
regulations thereunder. The Bank has in effect all federal, state, local and
foreign governmental authorization necessary for it to own or lease its
properties and assets and to carry on its businesses as they are now being
conducted, the absence of which, either individually or in the aggregate, would
have a material adverse effect on the financial condition or operations of the
Bank.
4.2 CAPITAL STOCK.
(a) The authorized capital stock of the Bank consists of 1,000,000 shares
of Common Stock, $8.00 par value, of which 320,550 shares are issued and
outstanding as of the date of this Agreement. The Bank holds no shares of its
Common Stock in its treasury. As of the date of
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this Agreement, the Bank has reserved no shares of its Common Stock for issuance
to directors, officers and employees subject to options.
(b) All of the issued and outstanding shares of the Bank's Common Stock are
duly and validly issued and outstanding and are fully paid and non-assessable.
None of the outstanding shares of the Bank's Common Stock has been issued in
violation of any preemptive rights of the current or past stockholders of the
Bank. Except as set forth above, there are no shares of capital stock or other
equity securities of the Bank outstanding and no outstanding options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into or exchangeable for,
shares of the capital stock of the Bank, or contracts, commitments,
understandings or arrangements by which the Bank was or may be bound to issue
additional shares of its capital stock or options, warrants or rights to
purchase or acquire any additional shares of its capital stock.
4.3 AUTHORITY.
(a) The execution and delivery of this Agreement and the consummation of
the transactions contemplated herein have been duly and validly authorized by
all necessary corporate action in respect thereof on the part of Bancshares.
This Agreement represents a legal, valid and binding obligation of Bancshares
enforceable against Bancshares in accordance with its terms (except in all cases
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by Bancshares, nor
the consummation by Bancshares of the transactions contemplated herein, nor
compliance by Bancshares with any of the provisions hereof will (i) conflict
with or result in a breach of any provision of Bancshares' or the Bank's
Articles of Incorporation or Bylaws, or (ii) constitute or result in the breach
of any term, condition or provision of, or constitute a default under, or give
rise to any right of termination, cancellation, or acceleration with respect to,
or result in the creation of any lien, charge or encumbrance upon, any property
or assets of Bancshares or the Bank, pursuant to any note, bond, mortgage,
indenture, license, agreement, lease, or other instrument or obligation to which
they are a party or by which they or any of their properties or assets may be
subject, and that would, in any such events, have a material adverse effect on
the financial condition or operations of the Bank or the transactions
contemplated hereby, or (iii) subject to receipt of the requisite approvals
referred to in Section 9.5 of this Agreement, violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Bank or any of
its properties or assets.
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(c) Other than (i) in connection or compliance with the provisions of
applicable state corporate law, (ii) notices to, consents, authorizations,
approvals, or exemptions required from the Regulatory Authorities and (iii)
notices to or filings with the Internal Revenue Service or the Pension Benefit
Guaranty Corporation with respect to any employee benefit plans, no notice to,
filing with, authorization of, or exemption by, or consent or approval of any
public body or authority is necessary for the consummation by the Bank of the
transactions contemplated in this Agreement.
4.4 FINANCIAL STATEMENT. The Bank has delivered to the Company prior to
the execution of this Agreement the following financial statement (a copy of
which is attached hereto as Exhibit 2) of the Bank (referred to herein, together
with the footnotes thereto, as the "Bank's Financial Statement"): A pro forma
balance sheet giving effect to the asset purchase transaction pursuant to the
Purchase and Assumption Transaction referred to in Section 9.12 hereof.
The Bank's Financial Statement (as of the date thereof) is in accordance
with the books and records of the Bank, which are complete and accurate in all
material respects and which have been maintained in accordance with sound and
prudent business practices.
4.5 ABSENCE OF UNDISCLOSED LIABILITIES. Giving effect to the Purchase and
Assumption Transaction, the Bank has no obligation or liability (contingent or
otherwise) that has not been fully assumed by First Alliance Bank, except as
disclosed in the Bank's Financial Statement.
4.6 TAX MATTERS. All federal, state and local tax returns required to be
filed by or on behalf of Bancshares, the Bank and any affiliated group (as
defined in Section 1504 of the Internal Revenue Code) of which the Bank is a
member have been timely filed or requests for extensions have been timely filed,
granted and have not expired for periods ending on or before March 31, 1995, and
all returns filed are complete and accurate to the best information and belief
of Bancshares's management and the Bank's management. All taxes due on filed
returns have been paid. As of the date of this Agreement, there is no audit
examination, deficiency or refund litigation or matter in controversy with
respect to any taxes that might result in a determination adverse to the Bank,
except as reserved for in the Bank's Financial Statements. All taxes, interest,
additions and penalties due with respect to completed and settled examinations
or concluded litigation have been paid. No federal income tax returns for
Bancshares, the Bank or any affiliated group (as defined in Section 1504 of the
Internal Revenue Code) of which the Bank is a member have been audited by the
Internal Revenue Service.
4.7 LOANS. To the best knowledge and belief of management of the Bank, as
of the date of this Agreement, each loan reflected as an asset of the Bank in
the Bank's Financial Statement is the legal, valid and binding obligation of the
obligor named therein, and no loan, is subject to any asserted defense, offset
or counterclaim known to the Bank, except as disclosed on Schedule 4.7.
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4.8 ALLOWANCE FOR POSSIBLE LOAN LOSSES. The allowance for possible loan
losses shown on the Bank's Financial Statement is adequate in all material
respects to provide for possible losses on the loans referred to in Section 4.7
(including accrued interest receivable) as of the date hereof.
4.9 EMPLOYEE BENEFIT PLANS.
(a) The Company does not adopt or assume, and shall have no obligation to
adopt or assume, and shall have no liability whatsoever to the Bank, employees
of the Bank, or any other person, with respect to any Benefit Plan (as
hereinafter defined) currently maintained by, or contributed to, by the Bank, or
by which the Bank is or ever has been bound, for the benefit of the Bank's
employees, retirees, dependents, spouses, directors, independent contractors,
leased employees or the beneficiaries of all such persons, whether arrived at
through collective bargaining or otherwise, including, without limitation: (i)
any retirement, profit-sharing, deferred compensation, bonus, stock option,
stock purchase, stock appreciation, pension, retainer, consulting, severance,
welfare or incentive plan, agreement or arrangement, or (ii) any plan, agreement
or arrangement providing for "fringe benefits" or perquisites, including but not
limited to benefits relating to Bank automobiles, clubs, seminars, vacations,
parking, financial planning, child care, parenting, sabbatical, sick leave,
medical, dental, hospitalization, life insurance and other types of insurance,
or (iii) any employment agreement written or otherwise, or (iv) any
"multiemployer plan" within the meaning of ERISA (S) 3(37), or (v) any other
"employee benefit plan" within the meaning of ERISA (S) 3(3). For purposes of
this Section 4.9, the term "Bank" includes all employers (whether or not
incorporated) which are treated, together with the Bank, as a single employer by
reason of Sections 414(b), (c), (m) or (o) of the Internal Revenue Code.
(b) First Alliance Bank or Bancshares shall furnish such notices and comply
with such other requirements under the Bank's Benefit Plans regarding health
continuation coverage for its employees as are imposed by state or federal law,
including, without limitation, COBRA, ERISA, the Internal Revenue Code, and
other statutes affecting health continuation coverage.
(c) The Bank shall, prior to the Closing Date, take all actions necessary
to properly terminate, as of the Closing Date, its participation in or
sponsorship of the Bank's Benefit Plans, such action to include all necessary
corporate authorizations, amendment of Benefit Plan documents, advance written
notification to employee-participants (including, if applicable, a written
notice under ERISA (S) 204(h)), and filings with regulatory agencies, all as
required by law and by such Benefit Plans. Employees of the Bank shall accrue
no additional benefits under the Bank's Benefit Plans on or after the Closing
Date. All employee benefits accrued up to and including the Closing Date under
the Bank's Benefit Plans shall be the obligation of First Alliance Bank (or be
reflected on the Bank's Financial Statement as liabilities).
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4.10 MATERIAL CONTRACTS. Except as otherwise reflected in the Bank's
Financial Statement, neither the Bank, nor any of its assets, businesses or
operations is as of the date of this Agreement a party to, or is bound or
affected by, or receives benefits under, (i) any agreement, arrangement or
commitment not cancelable by it without penalty other than agreements,
arrangements or commitments to be fully assumed by First Alliance Bank pursuant
to the Purchase and Assumption Transaction, (ii) any agreement, arrangement or
commitment relating to the employment, election or retention in office of any
director or officer, or (iii) any contract, agreement or understanding with any
labor union.
4.11 LEGAL PROCEEDINGS. Except as set forth below and except as related
to normal foreclosure actions relating to collateral pledged to secure loans,
there are no actions, suits or proceedings instituted or pending, or to the
knowledge of the Bank's management, threatened (or unasserted but considered
probable of assertion) against the Bank or against any properties, assets,
interests, or rights of the Bank, that are reasonably expected to have either
individually or in the aggregate a material adverse effect on the businesses,
operations or financial condition of the Bank or that are reasonably expected to
threaten or impede the consummation of the transactions contemplated by this
Agreement. The Bank is not a party to any agreement or instrument or subject to
any charter or other corporate restriction or any judgment, order, writ,
injunction, decree, rule, regulation, code or ordinance that threatens or might
impede the consummation of the transactions contemplated by this Agreement.
4.12 REPORTS. Since the date the Bank commenced business, the Bank has
filed all reports and statements, together with any amendments required to be
made with respect thereto, that it was required to file with the Regulatory
Authorities and the Internal Revenue Service. Each of such reports and
documents, including the financial statements, exhibits and schedules thereto,
are responsive to applicable requirements and the instructions of the applicable
form.
4.13 STATEMENTS TRUE AND CORRECT. No representation or warranty made by
the Bank nor any statement or certificate or instrument furnished as information
which is Previously Disclosed or included in an Exhibit or Schedule by
Bancshares or the Bank in connection with this Agreement nor any statement or
certificate to be furnished by Bancshares or the Bank to the Company pursuant to
this Agreement or in connection with the transactions contemplated by this
Agreement, contains or will contain any untrue statement of material fact or
omits or will omit to state a material fact necessary to make the statements
contained therein not misleading. None of the information supplied or to be
supplied by Bancshares or the Bank for inclusion in any documents to be filed
with any Regulatory Authority in connection with the transactions contemplated
hereby, will, at the respective times such documents are filed, be false or
misleading with respect to any material fact, or omit to state any material fact
necessary in order to make the statements therein not misleading. All documents
that Bancshares or the Bank is responsible for filing with any Regulatory
Authority in connection with the transactions contemplated hereby will comply as
to form in all material respects with the provisions of applicable law.
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4.14 REGULATORY APPROVALS. Bancshares knows of no reason why the
regulatory approvals required to be obtained in order to consummate the
transactions contemplated hereunder and referred to in Section 9.5 of this
Agreement should not be obtained without imposition of a condition or
restriction of the type referred to in the last sentence of such Section.
ARTICLE FIVE
COVENANTS AND AGREEMENTS OF BANCSHARES
Bancshares hereby covenants and agrees with the Company as follows:
5.1 CONDUCT OF BUSINESS; NEGATIVE COVENANTS. Unless contemplated by this
Agreement, from the date of this Agreement until the earlier of the Effective
Date or until the termination of this Agreement, Bancshares covenants and agrees
that it will not do or agree to commit to do, any of the following without the
prior written consent of the Company, which consent shall not be unreasonably
withheld:
(a) Amend the Bank's Articles of Incorporation or Bylaws; or
(b) Repurchase, redeem, or otherwise acquire or exchange, directly or
indirectly, any shares of its capital stock or any securities convertible into
any shares of the Bank's capital stock; or
(c) Take any action whatsoever which would prevent it or the Bank from
being able to consummate this Agreement in accordance with its terms and
conditions.
5.2 CONDUCT OF BUSINESS; AFFIRMATIVE COVENANTS. Unless the prior written
consent of the Company shall have been obtained and except as otherwise
contemplated herein, the Bank will operate its business only in the usual,
regular and ordinary course; and take no action which would (i) adversely affect
the ability of the Bank to obtain any necessary approvals of governmental
authorities required for the transactions contemplated hereby without imposition
of a condition or restriction of the type referred to in Section 9.5 of this
Agreement, or (ii) adversely affect the ability of the Bank to perform its
covenants and agreements under this Agreement.
5.3 ADVERSE CHANGES IN CONDITION. Bancshares hereby agrees to give
written notice promptly to the Company concerning any material adverse change in
its condition from the date of this Agreement until the Effective Date that
might adversely affect the consummation of the transactions contemplated hereby
or upon becoming aware of the occurrence or impending occurrence of any event or
circumstance which would cause or constitute a material breach of any of the
representations, warranties or covenants contained herein.
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5.4 COOPERATION. Bancshares hereby covenants and agrees to cooperate
fully with the Company to provide such support, assistance and information to
the Company as may be reasonably requested by it in connection with its
application for all necessary approvals by public authorities, federal, state or
local, in connection with the transactions contemplated hereby.
5.5 INVESTIGATION AND CONFIDENTIALITY. Prior to the Effective Date, the
Company may make or cause to be made such investigation, if any, of the business
and properties of the Bank and of its financial and legal condition as the
Company reasonably deems necessary or advisable to familiarize itself and its
advisers with such business, properties, and other matters, provided that such
investigation shall be reasonably related to the transactions contemplated
hereby and shall not interfere unnecessarily with normal operations. Bancshares
agrees to furnish the Company and the Company's advisers with such financial and
operating data and other information with respect to its businesses, properties,
and employees as the Company shall from time to time reasonably request. No
investigation by the Company shall affect the representations and warranties of
Bancshares, and subject to Section 10.3 of this Agreement, each such
representation and warranty shall survive any such investigation. The Company
shall, and shall cause its advisers and agents to, maintain the confidentiality
of all confidential information furnished to it by Bancshares concerning the
Bank's businesses, operations and financial condition and shall not use such
information for any purpose except in furtherance of the transactions
contemplated by this Agreement. If this Agreement is terminated prior to the
Effective Date, the Company shall promptly return all documents and copies
thereof and all work papers containing confidential information received from
Bancshares.
5.6 REPORTS. Bancshares shall file and shall cause the Bank to file all
reports required to be filed with the Regulatory Authorities by the Bank between
the date of this Agreement and the Effective Date and shall deliver to the
Company copies of all such reports promptly after the same are filed. The
financial statements provided by the Bank will fairly present the financial
position of the Bank as of the dates indicated and the results of operations and
changes in financial position for the period then ended in accordance with GAAP
applicable to banks applied on a consistent basis (subject in the case of
interim financial statements to normal recurring year-end adjustments).
5.7 CURRENT INFORMATION. During the period from the date of this
Agreement to the Effective Date, Bancshares shall cause one or more of its
representatives to confer on a regular and frequent basis with representatives
of the Company and to report on the general status of the Bank's ongoing
operations. Bancshares shall promptly notify the Company of any material change
in (a) the normal course of the Bank's business, or (b) in the operation of its
properties, and of any material governmental complaints, investigations or
hearings (or communications indicating that the same may be contemplated) or the
institution or the threat of any material litigation involving the Bank, and
will keep the Company fully informed with respect to such events.
5.8 CAPITAL STOCK. Without the prior written consent of the Company, from
the date of this Agreement to the earlier of the Effective Date or the
termination of this Agreement,
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Bancshares shall not, and shall not enter into any agreement to, issue, sell, or
otherwise permit to become outstanding any additional shares of Common Stock, or
any other capital stock of the Bank, including any shares of capital stock held
in the Bank's treasury, or any stock appreciation rights, or any option,
warrant, conversion, or other right to purchase any such stock, or any security
convertible into any such stock.
5.9 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms and
conditions of this Agreement, Bancshares hereby agrees to use all reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper, or advisable under applicable laws and
regulations to consummate and make effective, as soon as practicable after the
date of this Agreement, the transactions contemplated by this Agreement,
including, but not limited to, the Purchase and Assumption Transaction referred
to in Section 9.12 hereof.
ARTICLE SIX
REPRESENTATIONS AND WARRANTS OF THE COMPANY
The Company hereby represents and warrants to Bancshares as follows:
6.1 ORGANIZATION, STANDING AND AUTHORITY OF THE COMPANY. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Georgia, is duly qualified to do business and is in good
standing in the states of the United States and foreign jurisdictions where its
ownership or leasing of property or the conduct of its business requires it to
be so qualified and in which the failure to be duly qualified could have a
material adverse effect upon the Company and its Subsidiaries on a consolidated
basis, and has corporate power and authority to carry on its business as now
conducted and to own, lease and operate its assets, properties and businesses,
and to execute and deliver this Agreement and perform its terms. The Company has
in effect all federal, state, local and foreign governmental authorization
necessary for it to own or lease its properties and assets and to carry on its
businesses as they are now being conducted, the absence of which, either
individually or in the aggregate, would have a material adverse effect on the
financial condition or operations of the Company and its Subsidiaries on a
consolidated basis.
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6.2 AUTHORITY.
(a) The execution and delivery of this Agreement and the consummation of
the transactions contemplated herein have been duly and validly authorized by
all necessary corporate action in respect thereof on the part of the Company.
This Agreement represents a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms (except in all
cases as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by the Company or
its Subsidiaries, nor the consummation by the Company or its Subsidiaries of the
transactions contemplated herein, nor compliance by the Company with any of the
provisions hereof will (i) conflict with or result in a breach of any provision
of the Company's Articles of Incorporation, Articles of Association or Bylaws,
or (ii) constitute or result in the breach of any term, condition or provision
of, or constitute a default under, or give rise to any right of termination,
cancellation, or acceleration with respect to, or result in the creation of any
lien, charge or encumbrance upon, any property or assets of the Company,
pursuant to any note, bond, mortgage, indenture, license, agreement, lease, or
other instrument or obligation to which it is a party or by which it or any of
its properties or assets may be subject, and that would, in any such event, have
a material adverse effect on the financial condition or operations of the
Company and its Subsidiaries on a consolidated basis or the transactions
contemplated hereby, or (iii) subject to receipt of the requisite approvals
referred to in Section 9.5 of this Agreement, violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Company or any
of its Subsidiaries or any of their properties or assets.
(c) Other than (i) in connection or compliance with the provisions of
applicable state corporate law, (ii) consents, authorizations, approvals, or
exemptions required from the Regulatory Authorities, and (iii) notices to or
filings with the Internal Revenue Service or the Pension Benefit Guaranty
Corporation with respect to any employee benefit plans, no notice to, filing
with, authorization of, or exemption by, or consent or approval of any public
body or authority is necessary for the consummation by the Company of the
transactions contemplated in this Agreement.
6.3 STATEMENTS TRUE AND CORRECT. No representation or warranty made by
the Company nor any statement or certificate or instrument furnished as
information which is Previously Disclosed or included in an Exhibit or Schedule
in connection with this Agreement nor any statement or certificate to be
furnished by the Company to Bancshares pursuant to this Agreement or in
connection with the transactions contemplated by this Agreement, contains or
will contain any untrue statement of material fact or omits or will omit to
state a material fact necessary to make the statements contained therein not
misleading. None of the information supplied or to be supplied by the Company
for inclusion in any documents to be filed with any
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Regulatory Authority in connection with the transactions contemplated hereby,
will, at the respective times such documents are filed, be false or misleading
with respect to any material fact, or omit to state any material fact necessary
in order to make the statements therein not misleading. All documents that the
Company is responsible for filing with any Regulatory Authority in connection
with the transactions contemplated hereby will comply as to form in all material
respects with the provisions of applicable law.
6.4 REGULATORY APPROVALS. The Company knows of no reason why the
regulatory approvals referred to in Section 9.5 of this Agreement should not be
obtained without imposition of a condition or restriction of the type referred
to in the last sentence of such Section.
ARTICLE SEVEN
COVENANTS AND AGREEMENTS OF THE COMPANY
7.1 APPLICATIONS. The Company shall prepare and file, or shall cause to
be prepared and filed, applications with the Regulatory Authorities seeking the
requisite approvals necessary to consummate the transactions contemplated by
this Agreement, and shall take such other steps and actions in furtherance
thereof as it deems appropriate in order to be able to secure such approvals.
7.2 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms and
conditions of this Agreement, the Company agrees to use all reasonable efforts
to take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper, or advisable under applicable laws and regulations to
consummate and make effective, as soon as practicable after the date of this
Agreement, the transactions contemplated by this Agreement. The Company shall
use all reasonable efforts to obtain consents of (and agreements with) all third
parties and governmental bodies necessary or desirable for the consummation of
the transactions contemplated by this Agreement.
7.3 ADVERSE CHANGES IN CONDITION. The Company hereby agrees to give
written notice promptly to Bancshares concerning any material adverse change in
its condition from the date of this Agreement until the Effective Date that
might adversely affect the consummation of the transactions contemplated hereby,
or upon becoming aware of the occurrence or impending occurrence of any event or
circumstance which would cause or constitute a material breach of any of the
representations, warranties or covenants contained herein.
7.4 COOPERATION. The Company hereby covenants and agrees to cooperate
fully with Bancshares to provide such support, assistance and information to
Bancshares as may be reasonably requested by it in connection with its
application for all necessary approvals of the Regulatory Authorities in
connection with the transactions contemplated hereby.
7.5 INVESTIGATION AND CONFIDENTIALITY. Prior to the Effective Date,
Bancshares may make or cause to be made such investigation, if any, of the
business and properties of the
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Company and of its financial and legal condition as Bancshares reasonably deems
necessary or advisable to familiarize itself and its advisors with such
business, properties, and other matters, provided that such investigation shall
be reasonably related to the transactions contemplated hereby and shall not
interfere unnecessarily with normal operations. The Company agrees to furnish
Bancshares and Bancshares' advisors with such financial and operating data and
other information with respect to its businesses, properties, and employees as
Bancshares shall, from time to time, reasonably request. No investigation by
Bancshares shall affect the representations and warranties of the Company, and
subject to Section 10.3 of this Agreement, each such representation and warranty
shall survive any such investigation. Bancshares shall, and shall cause its
advisors and agents to, maintain the confidentiality of all confidential
information furnished to it by the Company concerning the Company's businesses,
operations and financial condition and shall not use such information for any
purpose except in furtherance of the transactions contemplated by this
Agreement. If this Agreement is terminated prior to the Effective Date,
Bancshares shall promptly return all documents and copies thereof and all work
papers containing confidential information received from the Company.
7.6 REPORTS. The Company shall file all reports required to be filed with
the Regulatory Authorities between the date of this Agreement and the Effective
Date and shall deliver to Bancshares copies of all such reports promptly after
the same are filed.
7.7 CURRENT INFORMATION. During the period from the date of this
Agreement to the Effective Date, the Company shall cause one or more of its
representatives to confer on a regular and frequent basis with representatives
of Bancshares and to report on the general status of the Company's ongoing
operations. The Company shall promptly notify Bancshares of any material change
in (a) the normal course of the Company's business, or (b) any operations of its
properties, and of any material governmental complaints, investigations or
hearings (or communications indicating that the same may be contemplated) or the
institution or the threat of any material litigation involving the Company, and
will keep Bancshares fully informed with respect to such events.
ARTICLE EIGHT
ADDITIONAL AGREEMENTS
8.1 PRESS RELEASES. Prior to the Effective Date, the Company and
Bancshares shall consult with each other as to the form and substance of any
press release or other public disclosure related to this Agreement or any other
transaction contemplated hereby. All such press releases, announcements and
other public disclosures must be reviewed in advance by the other Party prior to
distribution; provided, however, that nothing in this Section 8.1 shall be
deemed to prohibit any Party from making any disclosure after such consultation
which its counsel deems necessary or advisable in order to satisfy such Party's
disclosure obligations imposed by law.
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ARTICLE NINE
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
The obligations of the Company and Bancshares to perform this Agreement are
subject to the satisfaction of the following conditions, unless waived in
writing by the Party for whose benefit such condition exists pursuant to Section
11.5 of this Agreement:
9.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
each Party set forth or referred to in this Agreement shall be true and correct
in all material respects as of the date of this Agreement and as of the
Effective Date with the same effect as though all such representations and
warranties had been made on and as of the Effective Date, except for any such
representations and warranties confined to a specified date, which shall be true
and correct in all material respects as of such date.
9.2 PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of the
covenants and agreements of each Party to be performed and complied with
pursuant to this Agreement and the other agreements contemplated hereby prior to
the Effective Date shall have been duly performed and complied with in all
material respects.
9.3 CERTIFICATES. Each of the Parties shall have delivered to the other a
certificate, dated as of the Effective Date and signed on its behalf by its
Chairman of the Board, or its President, and its Treasurer, Cashier or other
principal, to the effect that (i) the conditions of its obligations set forth in
Section 9.1 and Section 9.2 of this Agreement have been satisfied, and (ii) with
respect to each of the Parties, that there has been no material adverse change
in the financial condition or results of operations of either Party from that
reflected on the most recent financial statements referred to in Section 4.4,
all in such reasonable detail as the other Party shall request.
9.4 CORPORATE AUTHORIZATION. All action necessary to authorize the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby shall have been duly and validly taken by
the Parties. Each Party shall have furnished to the other certified copies of
resolutions duly adopted by such Party's Board of Directors evidencing the same.
9.5 CONSENTS AND APPROVALS. All approvals and authorizations of, filings
and registrations with, and notifications to, all federal and state authorities
required for consummation of the transactions contemplated hereby and for the
preventing of any termination of any right, privilege, license or agreement of
either Party which, if not obtained or made, would have a material adverse
impact on the financial condition or results of operation of such Party, shall
have been obtained or made and shall be in full force and effect and all waiting
periods required by law shall have expired. To the extent that any lease,
license, loan or financing agreement or other contract or agreement to which the
Bank is a party requires the consent of or waiver from the other party thereto
as a result of the transactions contemplated by this Agreement, such consent or
waiver shall have been obtained, unless waived by the Company in accordance with
Section 11.5 of this Agreement. Any approval obtained from any Regulatory
Authority which is
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necessary to consummate the transactions contemplated hereby shall not be
conditioned or restricted in a manner which in the judgment of the Board of
Directors of all Parties would make it impractical to consummate the
transactions contemplated hereby.
9.6 LEGAL PROCEEDINGS. No action, proceeding or any restrictive orders
shall have been instituted or issued by any governmental authority or to the
knowledge of the Parties threatened by any governmental authority seeking to
restrain the consummation of the transactions contemplated by this Agreement
which, in the opinion of the Board of Directors of the Company or Bancshares,
render it impossible or inadvisable to consummate the transactions provided for
in this Agreement.
9.7 MATERIAL ADVERSE CHANGE. There shall have been no determination by
the Board of Directors of any Party that the transactions contemplated by this
Agreement have become impractical because any state of war, national emergency,
or banking moratorium shall have been declared in the United States or a general
suspension of trading on the New York Stock Exchange shall have occurred. At
the Effective Date, the Assets and Liabilities and unimpaired capital of the
Bank shall be identical in nature and amount to the figures shown on the Bank's
Financial Statement.
9.8 INDEMNIFICATION BY BANCSHARES. Bancshares shall indemnify and hold
harmless the Company and each of their directors, officers, agents and
successors and assigns against all losses, damages and expenses (including
reasonable attorneys' fees), caused by or arising out of (i) any breach or
default in the performance by Bancshares of any covenant or agreement of
Bancshares contained in this Agreement, (ii) any breach of any warranty or
material misrepresentation made by Bancshares herein or in any schedule attached
hereto or in any certificate or other instrument delivered by or on behalf of
Bancshares pursuant hereto which relates to a warranty which pursuant to Section
10.3 survives the Closing, (iii) any liability of the Bank for taxes
attributable to any period or portion thereof that ends on or before the
Effective Date, and (iv) any liability for taxes of any affiliated group (as
defined in Section 1504 of the Internal Revenue Code) of which the Bank is a
member that are assessed against the Bank (or any successor by merger thereof or
any deemed purchaser of the assets of the Bank pursuant to Treas. Reg.
(S)1.1502-6, by contract, as transferee or successor, or otherwise, and (v) any
and all actions, suits, proceedings, claims, demands, judgments, costs and
expenses (including reasonable legal and accounting fees) whatsoever not
expressly included and identified by nature and amount in the liabilities
section of the Bank's Financial Statement caused by or arising out of any
business or activities of the Bank prior to the Effective Date. The party to be
indemnified hereunder shall give to the indemnifying party prompt written notice
of the assertion of any third-party claim which might give rise to an
indemnification obligation hereunder and the indemnifying party may undertake
the defense thereof by representatives chosen by it, but acceptable to the
indemnified party, which acceptance shall not be unreasonably withheld. If the
indemnifying party, within a reasonable time after notice of any such claim,
fails to defend, the indemnified party will have the right to undertake the
defense, and compromise or settle any such claim on behalf of and for the
account and risk of the indemnifying party, subject to the right of the
indemnifying party to assume the defense of such claim at any time prior to
settlement,
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compromise or final determination. Notwithstanding the foregoing, if there is a
reasonable probability that a claim may materially and adversely affect the
indemnified party, other than as a result of money damages or other payments,
the indemnified party shall have the right, at the cost and expense of the
indemnifying party, to defend, compromise or settle such claim.
9.9 INDEMNIFICATION BY COMPANY. The Company shall indemnify and hold
harmless Bancshares and each of its directors, officers, agents and successors
and assigns against all losses, damages and expenses (including reasonable
attorneys' fees), caused by or arising out of (i) any breach or default in the
performance by the Company of any covenant or agreement of the Company contained
in this Agreement or (ii) any breach of any warranty or any material
misrepresentation made by the Company herein or in any schedule attached hereto
or in any certificate or other instrument delivered by or on behalf of the
Company pursuant hereto which relates to a warranty which pursuant to Section
10.3 survives the Closing. The party to be indemnified hereunder shall give to
the indemnifying party prompt written notice of the assertion of any third-party
claim which might give rise to an indemnification obligation hereunder and the
indemnifying party may undertake the defense thereof by representatives chosen
by it, but acceptable to the indemnified party, which acceptance shall not be
unreasonable withheld. If the indemnifying party, within a reasonable time
after notice of any such claim, fails to defend, the indemnified party will have
the right to undertake the defense, and compromise or settle any such claim on
behalf of and for the account and risk of the indemnifying party, subject to the
right of the indemnifying party to assume the defense of such claim at any time
prior to settlement, compromise or final determination. Notwithstanding the
foregoing, if there is a reasonable probability that a claim may materially or
adversely affect the indemnified party, other than as a result of monetary
damages or other payments, the indemnified party shall have the right, at the
cost and expense of the indemnifying party, to defend, compromise or settle such
claim.
9.10 RELOCATION OF BANK HEADQUARTERS. Receipt by the Bank of regulatory
approval from the OTS for the relocation of its headquarters from Acworth,
Georgia, to Columbia, South Carolina.
9.11 PURCHASE AND ASSUMPTION. The Bank and First Alliance Bank shall have
entered into and shall, prior to or contemporaneously with the Closing hereof,
consummate the Purchase and Assumption Transaction pursuant to an agreement
substantially in the form of Exhibit 1 attached hereto, as a result of which the
financial position of the Bank will conform to the Bank Financial Statement
referred to in Section 4.4 hereof.
9.12 SUBSCRIPTION BY BANCSHARES. Bancshares shall have executed a
subscription agreement for 833 shares of the Company Common Stock at the time of
the Closing of this Agreement on terms and conditions mutually satisfactory to
Bancshares and the Company.
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ARTICLE TEN
TERMINATION
10.1 TERMINATION. This Agreement may be terminated in any of the
following ways:
(a) By a vote of a majority of the Board of Directors of the Company or
Bancshares in the event of a material breach by another Party of any
representation, warranty, covenant or agreement contained herein which cannot be
cured at or prior to the Effective Date; or
(b) By a vote of a majority of the Board of Directors of the Company or
Bancshares in the event that the stock purchase described herein shall not have
been consummated by March 31, 1997, which date may be extended upon the mutual
agreement of the Parties; or
(c) By a vote of a majority of the Board of Directors of the Company or
Bancshares in the event any approval of any governmental or other Regulatory
Authority required for consummation of the transactions contemplated hereby
shall have been denied by final non-appealable action of such authority or if
any action taken by such authority is not appealed within the time limit for
appeal.
10.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 10.1 of this Agreement, this
Agreement shall become void and have no effect, except that the provisions of
Sections 5.5, 7.5 and 11.1 of this Agreement shall survive any such termination
and abandonment.
10.3 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The respective
representations, warranties, obligations, covenants and agreements of the
Parties shall not survive the Effective Date except Sections 2.1, 4.1, 4.3,
4.13, 6.1, 6.2, 6.3, 9.8, 9.9, 11.1 and 11.2 of this Agreement. The
representations, warranties, obligations, covenants and agreements of the
Parties (a) under Sections 2.1, 11.1 and 11.2 of this Agreement shall survive
only for a period of six months following the Closing, (b) under Sections 4.1
and 6.1 shall survive only for a period of three years following the Closing,
and (c) under the remaining Sections shall survive only for the period during
which a claim which serves as a basis for an asserted misrepresentation or,
where applicable, a breach of warranty, obligation, covenant or agreement could
be brought as an action under applicable law.
ARTICLE ELEVEN
MISCELLANEOUS
11.1 EXPENSES. Each of the Parties shall bear and pay all costs and
expenses incurred by it or on its behalf in connection with the transactions
contemplated hereunder, including fees and expenses of its own financial or
other consultants, investment bankers, accountants and counsel.
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11.2 BROKERS AND FINDERS. Each of the Parties represents and warrants
that neither it nor any of its officers, directors, employees or affiliates has
employed any broker or finder or incurred any liability for any financial
advisory fees, investment bankers' fees, brokerage fees, commissions, or
finders' fees in connection with this Agreement or the transactions contemplated
hereby. In the event of a claim by any broker or finder based upon his or its
representing or being retained by or allegedly representing or being retained by
either the Company or Bancshares, as the case may be, agrees to indemnify and
hold the other Party harmless of and from any such claim.
11.3 ENTIRE AGREEMENT. Except as otherwise expressly provided herein,
this Agreement contains the entire agreement between the Parties with respect to
the transactions contemplated hereunder, and this Agreement supersedes all prior
arrangements or understandings with respect thereto, written or oral. The terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the Parties and their respective successors. Nothing in this Agreement,
expressed or implied, is intended to confer upon any party, other than the
Parties or their respective successors, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
11.4 AMENDMENTS. To the extent permitted by law, this Agreement may be
amended by a subsequent writing signed by all of the Parties upon the approval
of the Boards of Directors of each of the Parties.
11.5 WAIVERS. Prior to or on the Effective Date, the Company shall have
the right to waive any default in the performance of any term of this Agreement
by Bancshares, to waive or extend the time for the compliance or fulfillment by
Bancshares of any and all of its obligations under this Agreement, and to waive
any or all of the conditions precedent to the obligations of the Company under
this Agreement, except any condition which, if not satisfied, would result in
the violation of any law or applicable governmental regulation. Prior to or on
the Effective Date Bancshares shall have the right to waive any default in the
performance of any term of this Agreement by the Company, to waive or extend the
time for the compliance or fulfillment by the Company of any and all of its
obligations under this Agreement, and to waive any or all of the conditions
precedent to the obligations of Bancshares under this Agreement, except any
condition which, if not satisfied, would result in the violation of any law or
applicable governmental regulation.
11.6 NO ASSIGNMENT. None of the Parties may assign any of its rights or
obligations under this Agreement to any other person without the prior written
consent of the other Party.
11.7 NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or by facsimile transmission or by registered or certified mail, postage
prepaid, to the persons at the addresses set forth below (or at such other
address as may be provided hereunder), and shall be deemed to have been
delivered as of the date so delivered:
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COMPANY:
Xxxxxx X. Xxxxxxxxx, Xx.
President
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxxx 00, Xxxxx 000
Xxxxxxx, XX 00000
Copy to Counsel:
Xxxxxx X. Xxxxxxx, XX, Esq.
Powell, Goldstein, Xxxxxx & Xxxxxx
Sixteenth Floor
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
BANCSHARES:
Xxxxxxx X. Xxxxxxx
Chairman of the Board and Chief Executive Officer
0000 Xxxxxxx Xxxxx
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Copy to Counsel:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC
Suite 700
1275 Peachtree Street, N.E.
Xxxxxxx, XX 00000
11.8 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia except to the extent federal
law shall be applicable.
11.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed on its behalf and its corporate seal to be hereunto affixed and
attested by officers hereunto duly authorized, all as of the day and year first
above written.
COMPANY:
NET.B@NK, INC.
By: Xxxxxx X. Xxxxxxxxx, Xx.
------------------------
Print Name: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
----------------------------
Attest:
/s/ Xxxx X. Xxxxxxx
---------------------------------
Secretary
[CORPORATE SEAL]
FIRST ALLIANCE/PREMIER
BANCSHARES, INC.
By: Xxxxxxx X. Xxxxxxx
------------------
Print Name: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Attest:
/s/ Xxxxxxx X. Xxxxx
---------------------------------
Secretary
[CORPORATE SEAL]
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