EXHIBIT 10.23
STOCK PURCHASE AGREEMENT BETWEEN
COMMUNITY BANCSHARES, INC AND
XXXXX X. XXXXX AND XXXXXX X. XXXXX
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into as of the
9th day of January, 2002 by and among Xxxxx X. Xxxxx, Xxxxxx X. Xxxxx (each, a
"Seller," and collectively, the "Sellers"), and Community Bancshares, Inc., a
Delaware corporation (the "Purchaser").
RECITALS:
WHEREAS, Xxxxx X. Xxxxx and Purchaser have entered into a retirement
agreement dated of equal date herewith in connection with Xx. Xxxxx'x retirement
as an executive officer and director of Purchaser and its subsidiary; and
WHEREAS, each of the Sellers own issued and outstanding shares of
common stock, $.10 par value per share (the "Common Stock"), of the Purchaser;
and
WHEREAS, each of the Sellers desires to sell, and the Purchaser desires
to acquire, all of the shares of Common Stock held by the Sellers, for the
consideration and on the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT:
1. Sale and Purchase of the Shares. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing (as defined below), each
of the Sellers shall sell, transfer, convey and assign to the Purchaser, and the
Purchaser shall acquire, the number of shares of Common Stock set forth opposite
the name of such Seller on Exhibit A hereto (collectively, the "Shares") and all
of the Sellers' rights, title and interests therein. In exchange therefor, at
the Closing the Purchaser shall remit to the Sellers as the purchase price
hereunder (the "Purchase Price") cash in the amount of $12.00 per Share by wire
transfer of immediately available funds to a bank account specified by the
applicable Seller, or by such other method as to which the Purchaser and each
Seller may agree.
2. Closing.
(a) The Closing of the transactions contemplated by this Agreement
shall take place at the offices of Purchaser, or at such other
place as may be mutually agreed upon by the parties hereto,
following satisfaction (or waiver thereof) of all of the
conditions set forth in Sections 6 and 7 hereof at a date
established by the Purchaser which shall be no later than the
second anniversary of the date of this Agreement (the "Closing
Date"). Notwithstanding the preceding, the Purchaser may, in
its sole discretion, elect to purchase portions of the Shares
at various dates within the two-year period commencing on the
date hereof. In that event there will be more than one closing
date and each event that is to occur on the Closing Date shall
occur on each date set by the Purchaser as the closing date
with respect to the pro rata number of Shares being purchased
on such date.
(b) At the Closing:
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(i) Each of the Sellers (except as otherwise indicated
below) will deliver to the Purchaser:
(A) certificates representing the number of
Shares set forth opposite the name of such Seller on Exhibit A
hereto, duly endorsed (or accompanied by duly executed stock
powers), with signatures guaranteed by a commercial bank or by
a member firm of the New York Stock Exchange, for transfer to
the Purchaser; and
(B) a certificate executed by such Seller to the
effect that each of such Seller's representations and
warranties in this Agreement was true and correct in all
material respects as of the date of this Agreement and is true
and correct in all material respects as of the Closing Date as
if made on the Closing Date, and that such Seller has
performed all acts, obligations and conditions required to be
performed by such Seller at or prior to the Closing
(collectively, the "Sellers' Certificates").
(ii) The Purchaser will deliver to the Sellers:
(A) the Purchase Price in the respective amounts
set forth opposite the name of each Seller on Exhibit A hereto
by wire transfer to an account specified by such Seller or by
such other method as the Purchaser and each Seller may agree;
and
(B) a certificate executed by the Purchaser to
the effect that each of the Purchaser's representations and
warranties in this Agreement was true and correct in all
material respects as of the date of this Agreement and is true
and correct in all material respects as of the Closing Date as
if made on the Closing Date, and that the Purchaser has
performed all acts, obligations and conditions required to be
performed by it at or prior to the Closing (the "Purchaser's
Certificate").
3. Representations and Warranties of the Sellers. Each of the Sellers
represents and warrants, severally and not jointly, to the Purchaser as follows:
(a) Organization and Authority. Each of the Sellers is an
individual residing in the State of Alabama. Each of the Sellers has full power,
right, legal capacity and authority to enter into this Agreement and to carry
out the transactions contemplated hereby.
(b) Authorization and Binding Effect. The execution, delivery and
performance of this Agreement by each of the Sellers has been approved by all
requisite action and no other approval or authorization is required on the part
of the Sellers or any other person by law or otherwise in order to make this
Agreement a valid, binding and enforceable obligation of the Sellers. This
Agreement is and will constitute a valid and legally binding obligation of each
of the Sellers and will be enforceable against each of the Sellers in accordance
with the terms hereof, except as that enforceability may be (i) limited by any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and (ii) subject to
general principles of equity (regardless of whether that enforceability is
considered in a proceeding in equity or at law).
(c) Title to Shares. Each of the Sellers is and will be on the
Closing Date the record and beneficial owner and holder of the number of Shares
set forth opposite the name of such Seller on Exhibit A hereto, free and clear
of all liens, pledges, options, rights of first refusal, charges and
encumbrances except
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those liens and encumbrances listed on Exhibit B. None of the Shares is the
subject of any shareholder agreement, voting trust or other agreement or
understanding relating to the voting thereof or restricting in any way the sale
or transfer thereof.
(d) Conflicts. The execution of this Agreement by each of the
Sellers, the compliance by each of the Sellers with the provisions of this
Agreement and the consummation by each of the Sellers of the transactions
contemplated hereby (i) will not violate any provision of applicable law to
which any of the Sellers is subject, (ii) will not constitute a default under,
or are not events which, with notice, lapse of time, or both, would constitute a
default under, or result in the termination of, or accelerate the performance
required by any of the terms, conditions or provisions of, any contract,
agreement or other instrument binding on any of the Sellers, (iii) will not (due
to the action or inaction of any Seller) result in the creation of any
encumbrance upon any of the Shares, (iv) will not require the consent or
approval of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, and (v) do not violate any order, writ, injunction, decree or
arbitral award, statute, rule or regulation applicable to any of the Sellers.
(e) Litigation. There is no litigation, arbitration, claim,
investigation or proceeding pending or, to the best knowledge of each of the
Sellers, threatened against any of the Sellers at law or in equity, before any
court, arbitration tribunal or governmental agency that questions (i) the
validity of this Agreement, the Sellers' Releases, the Standstill Agreement or
the Stipulation, or (ii) the right of the Sellers to enter into such agreements
and releases or to consummate the purchase and sale of the Shares and other
transactions contemplated herein or therein. To the best of each of the Seller's
knowledge, there is no reasonable basis for any such litigation, arbitration,
claim, investigation or proceeding against any of the Sellers.
(f) Securities Laws. Each of the Sellers has held the Shares owned
by such Seller of record and beneficially for more than one year except those
Shares issued by the Purchaser upon the exercise of stock options by Xxxxx X.
Xxxxx in accordance with those certain Nonqualified Stock Option Agreements
dated March 28, 1996 and March 27, 1997. None of the Sellers purchased any of
the Shares from the Purchaser with a view to the distribution of such Shares or
engages, either full-time or part-time, directly or indirectly, as agent,
broker, or principal, in the business of offering, buying, selling or otherwise
dealing or trading in the Shares.
(g) Information. Each Seller has had the opportunity to ask for,
and has received all information requested from the Purchaser, that such Seller
deems, based on the representations and warranties made by the Purchaser herein,
necessary or desirable in order to make such Seller's decision to sell the
Shares to the Purchaser in accordance with the terms of this Agreement.
(h) Absence of Brokers. The Sellers have incurred no obligation or
liability, contingent or otherwise, for brokerage or finder's fees or
commissions or other similar payments in connection with this Agreement or the
transactions provided for herein.
4. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Sellers as follows:
(a) Organization and Authority. The Purchaser is a corporation
duly organized and validly existing in good standing under the laws of the State
of Delaware. The Purchaser has full power, right, legal capacity and authority
to enter into this Agreement and to carry out the transactions contemplated
hereby.
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(b) Authorization and Binding Effect. The execution, delivery and
performance of this Agreement by the Purchaser has been approved by all
requisite corporate action on the part of the Purchaser and no other corporate
approval or authorization is required on the part of the Purchaser or any other
person by law or otherwise in order to make this Agreement a valid, binding and
enforceable obligation of the Purchaser. This Agreement is and will constitute a
valid and legally binding obligation of the Purchaser and will be enforceable
against it in accordance with the terms hereof, except as that enforceability
may be (i) limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and (ii) subject to general principles of equity (regardless of
whether that enforceability is considered in a proceeding in equity or at law).
(c) Conflicts. The execution by the Purchaser of this Agreement,
the compliance by it with the provisions of this Agreement and the consummation
by it of the transactions contemplated hereby (assuming any required regulatory
approvals are obtained) (i) will not violate any provision of applicable law to
which the Purchaser is subject, (ii) will not conflict with any of the terms of
the Purchaser's Certificate of Incorporation, Bylaws or any amendments thereto,
(iii) will not constitute a default under, or are not events which, with notice,
lapse of time, or both, would constitute a default under, or result in the
termination of, or accelerate the performance required by any of the terms,
conditions or provisions of any contract, agreement or other instrument binding
on the Purchaser, and (iv) do not violate any order, writ, injunction, decree or
arbitral award, statute, rule or regulation applicable to the Purchaser.
(d) Litigation. There is no litigation, arbitration, claim,
investigation or proceeding pending or, to the best knowledge of the Purchaser,
threatened against the Purchaser at law or in equity, before any court,
arbitration tribunal or governmental agency that questions (i) the validity of
this Agreement, or (ii) the right of the Purchaser to enter into such agreements
and release or to consummate the purchase and sale of the Shares and other
transactions contemplated herein or therein. To the best of the Purchaser's
knowledge, there is no reasonable basis for any such litigation, arbitration,
claim, investigation or proceeding against the Purchaser.
(e) Rights Plan. The execution by the Sellers and the Purchaser of
this Agreement does not, and the consummation of the transactions contemplated
herein in accordance with the terms hereof will not, contravene or trigger the
exercise of preferred share purchase rights granted under the Purchaser's Share
Purchase Rights Plan or that certain Rights Agent Agreement, dated as of January
13, 1999, between the Purchaser and the Bank of New York.
(f) Absence of Brokers. The Purchaser has incurred no obligation
or liability, contingent or otherwise, for brokerage or finder's fees or
commissions or other similar payments in connection with this Agreement or the
transactions provided for herein.
5. Covenants.
(a) Best Efforts; Cooperation. Upon the terms and subject to the
conditions set forth in this Agreement, each of the parties agrees to use such
party's reasonable best efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, and to assist and cooperate with the other parties
in doing, all things necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement, including (i) the
obtaining of all necessary actions or nonactions, waivers, consents and
approvals from governmental entities and the making of all necessary
registrations and filings and the taking of all steps as may be necessary to
obtain an approval or waiver from, or to avoid an action or proceeding by, any
governmental entity, (ii) the obtaining of all necessary consents, approvals or
waivers from third parties, (iii) the execution and delivery of any additional
instruments necessary to consummate the transactions
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contemplated by, and to fully carry out the purposes of, this Agreement, and
(iv) causing the conditions in Sections 6 and 7 of this Agreement to be
satisfied.
(b) No Negotiation. Until such time, if any, as this Agreement is
terminated pursuant to Section 9 hereof, the Sellers will not, and will cause
each of their agents or representatives not to, directly or indirectly, solicit,
initiate, participate in or encourage any inquiries or proposals from, discuss
or negotiate with, provide any non-public information to, or consider the merits
of any unsolicited inquiries or proposals from, any person, individual or entity
(other than the Purchaser) relating to any transaction involving the sale,
transfer, encumbrance or pledge of the Shares.
(c) Notification. (i) Between the date of this Agreement and the
Closing Date, each Seller will promptly notify the Purchaser in writing if such
Seller becomes aware of any fact or condition that causes or constitutes a
breach of any of the Sellers' representations and warranties herein as of the
date of this Agreement, or if such Seller becomes aware of the occurrence after
the date of this Agreement of any fact or condition that would (except as
expressly contemplated by this Agreement) cause or constitute a breach of any
such representation or warranty had such representation or warranty been made as
of the time of occurrence or discovery of such fact or condition. During the
same period, each Seller will promptly notify the Purchaser of the occurrence of
any breach of any covenant of the Sellers in this Section 5 or of the occurrence
of any event that may make the satisfaction of the conditions in Section 6
impossible or unlikely. Each of the Sellers acknowledges that the Purchaser is
under no obligation to provide information of a non-public nature to the Sellers
based on events that occur after the execution of this Agreement, except to the
extent that such information is otherwise made available through the Purchaser's
public filings with the Securities and Exchange Commission.
(ii) Between the date of this Agreement and the Closing Date, the
Purchaser will promptly notify the Sellers in writing if the Purchaser becomes
aware of any fact or condition that causes or constitutes a breach of any of the
Purchaser's representations and warranties herein as of the date of this
Agreement, or if the Purchaser becomes aware of the occurrence after the date of
this Agreement of any fact or condition that would (except as expressly
contemplated by this Agreement) cause or constitute a breach of any such
representation or warranty had such representation or warranty been made as of
the time of occurrence or discovery of such fact or condition. During the same
period, the Purchaser will promptly notify the Sellers of the occurrence of any
breach of any covenant of the Purchaser in this Section 5 or of the occurrence
of any event that may make the satisfaction of the conditions in Section 7
impossible or unlikely.
(d) Confidentiality. Each of the Sellers shall keep, and shall
cause their agents and representatives to keep, the existence and terms of this
Agreement and the transactions contemplated herein and therein, and the
discussions and negotiations related thereto, and all information regarding the
Purchaser or provided by the Purchaser in connection herewith strictly
confidential, shall only disclose the same to such Seller's attorneys,
accountants and financial advisors on a need-to-know basis, unless (i) such
information is already known to such party or to others not bound by a duty of
confidentiality or such information becomes publicly available through no fault
of such party, or (ii) the furnishing or use of such information is required in
connection with, legal proceedings, and shall not at any time use such
information for any business purpose other than with respect to the transactions
contemplated by this Agreement.
(e) Voting. Between the date of this Agreement and the Closing
Date, each Seller agrees to vote (or, in the case of Shares as to which the
Seller is the beneficial, but not record owner, direct the record holder to
vote) the Shares listed on Exhibit A and any other shares of Company Common
Stock as to which such Seller acquired any legal or beneficial interest in
accordance with the recommendations of the
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Purchaser's Board of Directors on any matter submitted to the Purchaser's
shareholders at any annual or special meeting of shareholders.
6. Conditions to the Obligations of the Purchaser. The obligation of the
Purchaser to consummate the transactions contemplated by this Agreement is
subject to the following conditions:
(a) Representations and Warranties. The representations and
warranties of each of the Sellers, as set forth in Section 3 above, shall be
true and correct in all material respects as of the Closing, and each of the
Sellers shall have performed all acts, obligations and conditions required to be
performed by the Sellers at or prior to the Closing.
(b) Closing Certificates. The Sellers shall have delivered to the
Purchaser the Sellers' Certificates.
(c) Proceedings and Documents Satisfactory. All proceedings in
connection with the transactions contemplated hereby and all certificates and
documents delivered to the Purchaser pursuant to this Agreement shall be
satisfactory in form and substance to the Purchaser and its counsel acting
reasonably and in good faith.
(d) No Obstructive Proceeding. No action or proceedings shall have
been instituted, and no order, decree or judgment of any court, agency,
commission or governmental authority shall be subsisting, against any of the
Sellers or the Purchaser which seeks to, or would, render it unlawful as of the
Closing to effect the transactions contemplated hereby in accordance with the
terms hereof, and no such action shall seek damages in a material amount by
reason of the transactions contemplated hereby. Also, no substantive legal
objection to the transactions contemplated by this Agreement shall have been
received from or threatened by any governmental department or agency.
(e) Release of Liens; No Claim Regarding Stock Ownership or Sale
Proceeds. The lienholders listed on Exhibit B must have agreed in writing to
release any lien or encumbrance upon the Shares being transferred to Purchaser
upon receipt of the Purchase Price or a portion thereof. There must not have
been made or threatened by any person unrelated to the Purchaser or its
subsidiaries any claim asserting that such person (i) is the holder or the
beneficial owner of, or has the right to acquire or to obtain beneficial
ownership of, any voting, equity or ownership interest in, any of the Shares, or
(ii) is entitled to all or any portion of the Purchase Price payable for the
Shares.
(f) Consents and Approvals. All of the consents, permits and
licenses required from any federal, state or local governmental agency or
organization, and all releases, waivers of default and consents to assignment
required from any third party, with respect to consummation of the transactions
contemplated hereby shall have been obtained.
(g) Performance of Obligations. The Sellers shall have performed
in all material respects all obligations required to be performed by them under
this Agreement prior to the Closing Date, and the Purchaser shall have received
a certificate to such effect signed by each of the Sellers.
7. Conditions to the Obligations of the Sellers. The Sellers' obligations
to consummate the transactions contemplated by this Agreement are subject to the
following conditions:
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(a) Representations and Warranties. The representations of the
Purchaser, as set forth in Section 4 above, shall be true and correct in all
material respects as of the Closing, and the Purchaser shall have performed all
acts, obligations and conditions required to be performed by it at or prior to
the Closing.
(b) Closing Certificate. The Purchaser shall have delivered to the
Seller the Purchaser's Certificate.
(c) Proceedings and Documents Satisfactory. All proceedings in
connection with the transactions contemplated hereby and all certificates and
documents delivered to the Purchaser pursuant to this Agreement shall be
satisfactory in form and substance to the Sellers and the Sellers' counsel
acting reasonably and in good faith.
(d) No Obstructive Proceeding. No action or proceedings shall have
been instituted, and no order, decree or judgment of any court, agency,
commission or governmental authority shall be subsisting, against any of the
Sellers or the Purchaser which seeks to, or would, render it unlawful as of the
Closing to effect the transactions contemplated hereby in accordance with the
terms hereof, and no such action shall seek damages in a material amount by
reason of the transactions contemplated hereby. Also, no substantive legal
objection to the transactions contemplated by this Agreement shall have been
received from or threatened by any governmental department or agency.
(e) Consents and Approvals. All of the consents, permits and
licenses required from any federal, state or local governmental agency or
organization, and all releases, waivers of default and consents to assignment
required from any third party, with respect to consummation of the transactions
contemplated hereby shall have been obtained.
(f) Performance of Obligations. The Purchaser shall have performed
in all material respects all obligations required to be performed by it under
this Agreement prior to the Closing Date, and the Sellers shall have received a
certificate to such effect signed on behalf of the Purchaser by an officer of
the Purchaser.
8. Indemnification.
(a) Survival; Knowledge. All representations and warranties,
covenants and agreements of the parties made in this Agreement shall survive the
Closing for a period of 36 months after the Closing Date, unless otherwise
specifically provided herein. The right to indemnification, payment of damages
or other remedy based on representations, warranties, covenants and obligations
herein will not be affected by any investigation conducted with respect to, or
any knowledge acquired (or capable of being acquired) at any time, whether
before or after the execution and delivery of this Agreement or the Closing
Date, with respect to the accuracy or inaccuracy of or compliance with, any such
representation, warranty, covenant or obligation. The waiver of any condition
based on the accuracy of any representation or warranty, or on the performance
of or compliance with any covenant or obligation, will not affect the right to
indemnification, payment of damages, or other remedy based on such
representations, warranties, covenants and obligations.
(b) Indemnification of the Purchaser. Each of the Sellers, jointly
and severally, agrees to indemnify, defend and hold harmless the Purchaser and
its directors, officers, stockholders, employees, agents, affiliates and
representatives from and against any and all damages, losses, settlement
payments, obligations, liabilities, penalties, claims, actions or causes of
action, encumbrances and reasonable costs and expenses (including, without
limitation, attorneys' fees and costs of investigation) suffered, sustained,
incurred or paid by any such indemnified party because of the untruth,
inaccuracy or breach of any
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representation, warranty, agreement or covenant of any of the Sellers contained
in or made pursuant to this Agreement or the Sellers' Certificates.
(c) Indemnification of the Sellers. The Purchaser agrees to
indemnify, defend and hold harmless each of the Sellers from and against any and
all damages, losses, settlement payments, obligations, liabilities, penalties,
claims, actions or causes of action, encumbrances and reasonable costs and
expenses (including, without limitation, attorneys' fees and costs of
investigation) suffered, sustained, incurred or paid by any such indemnified
party because of the untruth, inaccuracy or breach of any representation,
warranty, agreement or covenant of the Purchaser contained in or made pursuant
to this Agreement or the Purchaser's Certificate.
(d) Notice and Opportunity to Defend. (i) In the case of a claim
based on a demand by a third party, a party making a claim for indemnification
hereunder (the "Indemnified Party") shall notify in writing the indemnifying
party (the "Indemnitor") of the claim, describing the claim, the amount thereof,
and the basis therefor, within 15 days after a third-party claim is presented to
the Indemnified Party. The Indemnitor shall have the right to assume the entire
control of the defense, compromise or settlement thereof, and, in connection
therewith, the Indemnified Party shall cooperate fully to make available to the
Indemnitor all pertinent information under its control. If the Indemnitor fails
to assume the defense of such claim within a reasonable length of time, the
Indemnified Party may do so without the Indemnitor's participation, in which
case the Indemnitor shall pay the expenses of such defense, and the Indemnified
Party may settle or compromise such claim without the Indemnitor's consent. If
the Indemnified Party fails to so notify the Indemnitor, and if the Indemnitor
is thereby materially prejudiced by such failure of notice in its defense of the
claim, the Indemnitor's obligation of indemnity hereunder shall be extinguished
with respect to such claim to the extent that the Indemnitor has been prejudiced
by the failure to give such notice.
(ii) In any case in which an Indemnified Party seeks
indemnification hereunder which is not subject to paragraph (I) of this Section
8(d) because no third-party action is involved, the Indemnified Party shall
promptly provide written notice to the Indemnitor of the claim, describing the
claim, the amount thereof, and the basis therefor. The Indemnitor shall respond
to each such claim within 30 days of receipt of such notice. No action shall be
taken pursuant to the provisions of this Agreement or otherwise by the
Indemnified Party until the later of (A) the expiration of the 30-day response
period (unless reasonably necessary to protect the rights of the Indemnified
Party), or (B) 30 days following the receipt of a response within such 30-day
period by the Indemnified Party requesting an opportunity to cure the matter
giving rise to the indemnification (and, in such event, the amount of such claim
for indemnification shall be reduced to the extent so cured within such 30-day
cure period).
(e) Non-Exclusive Remedies. The remedies provided in this Section
shall be non-exclusive and cumulative and shall not preclude assertion by any
party of any other rights or the seeking of any other rights or remedies against
any other party hereto.
(f) Limitation of Liability. Notwithstanding anything to the
contrary contained in this Agreement or otherwise, if, notwithstanding the
limitations contained in this Section 8 or elsewhere in this Agreement, the
Sellers nevertheless become liable to the Purchaser, in no event shall the
aggregate amount of such liability of the Sellers (including, but not limited
to, any and all liabilities of the Sellers for costs, expenses and attorneys'
fees paid or incurred in connection therewith or in connection with the curing
of any and all misrepresentations of representations or warranties or breaches
of covenants or agreements under this Agreement) exceed the Purchase Price.
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9. Termination.
(a) Termination. This Agreement may be terminated and the
transactions contemplated hereby abandoned at any time prior to the Closing as
follows:
(i) by the mutual consent of the Purchaser and the
Sellers;
(ii) by Sellers representing a majority of the Shares, if
any of the conditions set forth in Section 7 hereof shall have not been
met or if satisfaction of such a condition is or becomes impossible
(other than through the failure of the Sellers to comply with the
obligations of this Agreement) and the Sellers have not waived such
condition on or before such date;
(iii) by the Purchaser, if any of the conditions provided
in Section 6 hereof have not been met or if satisfaction of such a
condition is or becomes impossible (other than through the failure of
the Purchaser to comply with the obligations of this Agreement) and the
Purchaser has not waived such condition on or before such date; or
(iv) by either the Sellers representing a majority of the
Shares or the Purchaser if a material breach of any provision of this
Agreement has been committed by the other of them and such breach has
not been waived.
In the event of such termination by either the Purchaser or the Sellers pursuant
to this Section 9(a), written notice shall forthwith be given to the other
parties hereto.
(b) Events Upon Termination. In the event that this Agreement is
terminated as provided above:
(i) the Purchaser shall deliver to the Sellers all
documents (and copies thereof in its possession) previously delivered
by the Sellers to the Purchaser in connection herewith;
(ii) the Sellers shall deliver to the Purchaser all
documents (and copies thereof in their possession) previously delivered
by the Purchaser to the Sellers in connection herewith; and
(iii) none of the parties hereto, nor any of their
respective shareholders, directors or officers, shall have any
liability to the other party for costs, expenses, loss of anticipated
profits, consequential damages or otherwise, except that if this
Agreement is terminated by the Purchaser or the Sellers because of a
breach of this Agreement by the Purchaser (with respect to the Sellers)
or the Sellers (with respect to the Purchaser), then the terminating
party's right to pursue any and all legal and equitable remedies with
respect thereto shall survive such termination unimpaired.
10. Change in Control. The Change in Control Agreement dated December 4,
1999 between Xxxxx X. Xxxxx and Purchaser is canceled and terminated as of the
date hereof. If prior to the consummation of the transactions contemplated
hereby Purchaser enters into an agreement to consolidate with, merge into or
sell, transfer or lease all or substantially all of its assets to any other
entity pursuant to which shareholders of Purchaser will receive an amount in
excess of $12.00 per share for their Common Stock, Sellers shall have the option
to terminate this Agreement and elect to receive the consideration for the
Shares offered to other shareholders of Purchaser.
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11. Miscellaneous
(a) Notices. All notices, consents, waivers and other
communications under this Agreement must be in writing and will be deemed to
have been duly given if delivered by hand, by overnight delivery, or United
States mail, postage prepaid, registered or certified mail, return receipt
requested, upon delivery or refusal of delivery, in each case to the appropriate
addresses set forth below (or to such other addresses as a party may designate
by notice to the other party hereto): (i) if to the Sellers: Xxxxx X. Xxxxx and
Xxxxxx X. Xxxxx, 00 Xxxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxx 00000, and (ii) if to
the Purchaser: Community Bancshares, Inc., 00000 Xxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxxx, Xx.
(b) Entire Agreement. This Agreement and the Exhibits, schedules
and documents delivered pursuant hereto constitute the entire agreement, and
supersedes any prior agreement, understanding or letter of intent (oral or
written), between the parties hereto relating to the subject matter of this
Agreement. To be effective, any modification of this Agreement must be in
writing and signed by the party to be charged thereby.
(c) Choice of Law. The validity and construction of this Agreement
shall be governed by the laws of the State of Alabama, without regard to the
principles of conflict of laws thereof.
(d) Headings. The Section headings herein are for reference only
and shall not limit or control the meaning of any provision of this Agreement.
(e) No Waiver. No delay or omission on the part of any party
hereto in exercising any right hereunder shall operate as a waiver of such right
or any other right under this Agreement.
(f) Assignment. No party hereto shall assign this Agreement, or
any rights, benefits, duties or obligations hereunder, or any interest therein,
without first obtaining the express prior written consent of the other parties
hereto; provided, however, that this Agreement may be assigned by any of the
Sellers to a revocable management trust formed by such Seller. Without waiver of
the foregoing provisions, all of the rights, benefits, duties, liabilities, and
obligations of the parties hereto shall inure to the benefit of and be binding
upon the parties and their respective heirs, successors and permitted assigns.
(g) Interpretation. The parties hereto have each negotiated the
terms hereof and reviewed this Agreement carefully. It is the intent of the
parties that each word, phrase, and sentence and other part hereof shall be
given its plain meaning, and that rules of interpretation or construction of
contracts that would construe any ambiguity of any part hereof against the
draftsman, by virtue of being the draftsman, shall not apply. When a reference
is made in this Agreement to an Article, Section or Exhibit, such reference
shall be to an Article or Section of, or an Exhibit to, this Agreement unless
otherwise indicated. Whenever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. All terms defined
in this Agreement shall have the defined meanings when used in any certificate
or other document made or delivered pursuant hereto unless otherwise defined
therein. The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such term. Any agreement, instrument or
statute defined or referred to herein or in any agreement or instrument that is
referred to herein means such agreement, instrument or statute as from time to
time amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession of
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comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. References to a person are also to its heirs,
successors and permitted assigns.
(h) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall comprise one and the same document. In making proof of this Agreement, it
shall not be necessary to produce or account for more than one such counterpart
executed by the party against whom enforcement of this Agreement is sought.
(i) Attorneys' Fees. If legal action is commenced to enforce this
Agreement, the prevailing party in such action shall be entitled to recover its
reasonable costs and reasonable attorneys' fees in addition to any other relief
granted. The term "prevailing party" shall mean the party in whose favor final
judgment after appeal (if any) is rendered with respect to the claims asserted
in a complaint.
(j) Severability. If any provision of this Agreement shall be held
invalid under any applicable laws, such invalidity shall not affect any other
provision of this Agreement that can be given effect without the invalid
provision, and, to this end, the provisions hereof are severable.
(k) Expenses. All expenses incurred in connection with the
transactions contemplated hereby, including, without limitation, attorneys'
fees, accounting fees, sales taxes, recording fees, investment advisers' fees
and disbursements, shall be borne by the respective parties incurring such
expense, whether or not such transactions are consummated; it being understood
and agreed that all federal, state and local income, transfer and sales taxes
arising from the disposition of the Shares pursuant to this Agreement shall be
borne by the Sellers.
(l) Cooperation and Further Assurances. The parties hereto will
cooperate with each other and will use all reasonable efforts to cause the
fulfillment of the conditions to the parties obligations hereunder and to obtain
as promptly as possible all consents, authorizations, orders or approvals from
each and every third party, whether private or governmental, required in
connection with the transactions contemplated by this Agreement. From time to
time, at the Purchaser's request, and without further consideration, the Sellers
will execute, acknowledge and deliver all instruments of further assurance and
do all such acts and things as may reasonably be requested by the Purchaser for
the purpose of carrying out the intent of this Agreement and to more effectively
to convey, transfer to and vest in the Purchaser and its assignees, the Shares
to be conveyed hereunder.
(m) Schedules and Exhibits. The Schedules and Exhibits attached
hereto, and all Schedules and Exhibits attached hereto after the date of this
Agreement and prior to the Closing, are hereby incorporated into this Agreement
wherever reference is made to them to the same extent as if they were set out in
full at the point at which such reference is made.
(n) No Third Party Beneficiaries. Except as expressly provided
herein, this Agreement and its provisions, terms and conditions are for the sole
and exclusive benefit of the parties hereto and their heirs, successors and
permitted assigns.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
THE "SELLERS" THE "PURCHASER"
COMMUNITY BANCSHARES, INC.
/S/ XXXXX X. XXXXX BY: /S/ XXXXXX X . XXXXXXXXX
--------------------------------- --------------------------
XXXXX X. XXXXX XXXXXX X. XXXXXXXXX, XX.
CHAIRMAN, PRESIDENT & CEO
/S/ XXXXXX X. XXXXX
---------------------------------
XXXXXX X. XXXXX
EXHIBIT A
PURCHASE PRICE
SELLER NUMBER OF SHARES DUE TO SELLER
------ ---------------- --------------
Xxxxx X. Xxxxx and
Xxxxxx X. Xxxxx as joint tenants
With right of survivorship 60,208 $722,496
Xxxxx X. Xxxxx 150 $ 1,800
In addition, Xxxxx Xxxxx. is the beneficial owner of shares allocated to his
account in the Community Bancshares, Inc. Employee Stock Ownership Plan. Sellers
and Purchaser agree that the terms of this Stock Purchase Agreement shall apply
to those shares; provided, however, that no actions shall be taken by any party
with respect to such shares which, in the opinion of counsel, jeopardizes the
tax-qualified status of the ESOP under Section 401 of the Internal Revenue Code
of 1986, as amended.
EXHIBIT B
Colonial Bank has a lien on approximately 49,000 shares and The Exchange Bank of
Altoona has a lien on 10,000 shares.
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