EXHIBIT 10.1
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
AMONG THE REGISTRANT
AND FIRST ALLIANCE/PREMIER BANCSHARES, INC.
DATED AS OF DECEMBER 19, 1996,
AS AMENDED BY
AMENDMENT NO. 1 DATED
AS OF FEBRUARY 25, 1997
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 19th day of December, 1996, 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 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 Section 3(37), or (v) any other
"employee benefit plan" within the meaning of ERISA Section 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 Section 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
-12-
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
-13-
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
-15-
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. Section
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,
-16-
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.
-17-
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.
-18-
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:
-19-
COMPANY:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
President
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Copy to Counsel:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇, Esq.
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
Sixteenth Floor
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BANCSHARES:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman of the Board and Chief Executive Officer
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Copy to Counsel:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC
Suite 700
1275 Peachtree Street, N.E.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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.
-20-
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: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Attest:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Secretary
[CORPORATE SEAL]
FIRST ALLIANCE/PREMIER
BANCSHARES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Attest:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Secretary
[CORPORATE SEAL]
-21-
FIRST AMENDMENT TO
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
This FIRST AMENDMENT (the "Amendment") to the Amended and Restated Stock
Purchase Agreement (the "Agreement"), dated as of December 19, 1996, by and
between NET.B@NK, Inc. (the "Company") and PREMIER BANCSHARES, INC. (formerly
known as First Alliance/Premier Bancshares, Inc., "Bancshares") is entered
into and made effective as of February 25, 1997. Capitalized terms used
herein and not otherwise defined shall have the meaning ascribed to them in
the Agreement.
WHEREAS, the parties hereto desire to amend the Agreement for the
purpose of extending the termination date and modifying the amount of
consideration the Company will pay to Bancshares.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and Bancshares agree to amend
the Agreement as follows:
1. Section 2.2 of the Agreement is hereby amended by deleting the
existing Section 2.2 thereof in its entirety and substituting in lieu thereof
the following new Section 2.2:
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 Bank's
unimpaired capital at closing, and (ii) transfer to Bancshares 1,250
shares of the common stock of the Company (the "Company Common Stock")
valued at $115.00 per share, which is the "agreed-upon" value of shares
issued to certain of the Company's investors by the Company and is equal
to not less than one and one-half percent (1.50%) of the Company Common
Stock issued and outstanding as of February 25, 1997. 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. Section 3.2 of the Agreement is hereby amended to extend the
expiration of the permissible Effective Date to May 31, 1997.
3. Section 9.12 of the Agreement is hereby amended to increase the
number of shares referenced in the subscription agreement required of
Bancshares to 1,250 of the Company Common Stock.
4. Section 10.1(b) of the Agreement is hereby amended to extend the
termination of the Agreement to May 31, 1997.
-22-
5. Section 11.1 is hereby amended to provide at the end of Section 11.1
an additional sentence which provides as follows: "Notwithstanding anything
contained herein to the contrary, the Company shall pay to Bancshares an
amount in cash equal to $150,000.00 for the purpose of reimbursing Bancshares
for its expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement, $30,000.00 of which shall be
non-refundable and due and payable upon execution hereof and the remaining
$120,000.00 shall be due and payable on the Effective Date."
6. Except as hereinabove amended, the Agreement shall remain otherwise
in full force and effect.
7. This Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has caused this Amendment 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.
NET.B@NK, INC.
Attest:
/s/ ▇.▇. ▇▇▇▇▇▇
By: ------------------------------------
▇.▇. ▇▇▇▇▇▇, Chief Executive Officer
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Secretary
[CORPORATE SEAL]
PREMIER BANCSHARES, INC.
Attest:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: ------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the
Board and Chief Executive Officer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Secretary
[CORPORATE SEAL]
-23-
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
PREMIER BANK, F.S.B.
AS SELLER
AND
FIRST ALLIANCE BANK
AS PURCHASER
EXHIBIT 1
PURCHASE AND ASSUMPTION AGREEMENT
TABLE OF CONTENTS
Page
----
SECTION 1
DEFINED TERMS
1.1 Defined Terms......................................................... 1
SECTION 2
TRANSFER OF ASSETS
2.1 Assets Sold........................................................... 2
2.2 Documents of Transfer................................................. 2
2.3 Breaches with Third Parties........................................... 3
2.4 Payments Accepted After the Closing................................... 3
SECTION 3
ASSUMPTION OF ACQUIRED DEPOSITS AND LIABILITIES
3.1 Acquired Deposits..................................................... 3
3.2 Overdrafts............................................................. 3
3.3 Documentation of Assumption............................................ 3
3.4 Assumption Subject to Certain Terms................................... 4
3.5 Payment of Items by the Seller After Closing.......................... 4
3.6 Payment of Items by the Purchaser After Closing....................... 4
3.7 Transfer of Credits by the Seller..................................... 4
3.8 The Seller Not Liable to Pay.......................................... 4
3.9 The Purchaser Responsible for Returned Items.......................... 4
3.10 Acquired Liabilities.................................................. 4
SECTION 4
ASSUMPTION OF RISKS
4.1 Insurance Policies..................................................... 4
4.2 Persons and Property................................................... 4
SECTION 5
PURCHASE PRICE AND SETTLEMENT
5.1 Purchase Price........................................................ 5
5.2 Payment of Acquired Deposits and Assumption of
Acquired Liabilities by the Seller.................................... 5
5.3 Preliminary Settlement................................................ 5
5.4 Final Settlement....................................................... 5
5.5 Interest Paid and Earned as of the Closing Date........................ 5
-i-
Page
----
SECTION 6
ACCESS TO THE BRANCHES' PROPERTIES AND RECORDS AND DUE DILIGENCE
6.1 Access and Confidential Treatment..................................... 6
6.2 The Purchaser's Due Diligence......................................... 6
6.3 Recordkeeping and Access Following the Closing........................ 6
SECTION 7
REPRESENTATIONS AND WARRANTIES OF SELLER
7.1 Corporate Organization................................................. 6
7.2 Corporate Authority to Carry On Business............................... 6
7.3 Corporate Authority to Enter into this Agreement....................... 6
7.4 Execution and Delivery; Enforceability................................. 6
7.5 Status of the Acquired Deposits....................................... 7
7.6 Status of the Purchased Loans......................................... 7
7.7 Status of the Purchased Securities..................................... 7
7.8 No Violations.......................................................... 7
7.9 No Adverse Litigation.................................................. 7
7.10 Limitations of Warranties............................................. 8
SECTION 8
REPRESENTATIONS AND WARRANTIES OF PURCHASER
8.1 Corporate Organization................................................. 8
8.2 Corporate Authority to Carry On Business............................... 8
8.3 Corporate Authority to Enter this Agreement............................ 8
8.4 Execution and Delivery; Enforceability................................. 8
8.5 No Violations.......................................................... 8
8.6 No Adverse Litigation.................................................. 8
SECTION 9
ADDITIONAL UNDERTAKINGS OF THE SELLER
9.1 Conduct of Business Pending Closing................................... 9
9.2 Documentation at the Closing and Further Assurances.................... 9
SECTION 10
ADDITIONAL UNDERTAKINGS OF THE PURCHASER
10.1 The Purchaser's Contact with Customers................................. 9
10.2 Regulatory Filings.................................................... 10
SECTION 11
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASER
11.1 Representations and Warranties True................................... 10
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11.2 Obligations Performed................................................. 10
11.3 Certificate of Compliance............................................. 10
11.4 No Adverse Litigation................................................. 10
11.5 Regulatory Approvals.................................................. 10
SECTION 12
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SELLER
12.1 Representations and Warranties True................................... 10
12.2 Obligations Performed................................................. 11
12.3 Certificate of Compliance............................................. 11
12.4 No Adverse Litigation................................................. 11
12.5 Regulatory Approvals.................................................. 11
SECTION 13
THE CLOSING
13.1 Time and Place........................................................ 11
SECTION 14
TERMINATION
14.1 Methods of Termination................................................ 11
14.2 Procedure Upon Termination............................................ 12
14.3 Automatic Termination................................................. 12
SECTION 15
MISCELLANEOUS
15.1 Entire Agreement...................................................... 12
15.2 Modifications and Waivers............................................. 12
15.3 No Broker or Finder................................................... 12
15.4 No Survival of Representations and Warranties......................... 12
15.5 Binding Effect........................................................ 12
15.6 Counterparts.......................................................... 12
15.7 Expenses.............................................................. 12
15.8 Notices............................................................... 12
15.9 Time of the Essence................................................... 13
15.10 Governing Law......................................................... 13
15.11 Headings.............................................................. 13
15.12 Severability.......................................................... 13
15.13 Public Announcements.................................................. 13
15.14 Assignability......................................................... 13
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Schedule A - Loans to be Acquired by Net.B@nk (Whereas Clause)
Schedule B - Other Assets to be Acquired by Net.B@nk (Whereas Clause)
Schedule C - Deposits and Other Liabilities to be Acquired by Net.B@nk
(Whereas Clause)
Exhibit A - Assumption of Liabilities (Section 3.3)
Exhibit B-1 - Preliminary Settlement Statements (Section 5.3)
Exhibit B-2 - Final Settlement Statement (Section 5.4)
Exhibit C - Seller's Compliance Certificate (Section 11.3)
Exhibit D - Purchaser's Compliance Certificate (Section 12.3)
Exhibit E - Notices (Section 15.8)
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PURCHASE AND ASSUMPTION AGREEMENT
This Purchase and Assumption Agreement (the "Agreement") is made and entered
into as of the 19th day of December, 1996 between PREMIER BANK, F.S.B. (the
"Seller" or "Premier"), a federal savings bank organized under the laws of the
United States, and FIRST ALLIANCE BANK (the "Purchaser" or the "Bank"), a
commercial bank organized under the laws of the State of Georgia:
WHEREAS, pursuant to that certain Amended and Restated Stock Purchase
Agreement, of even date herewith, between Net.B@nk, Inc. ("Net.B@nk") and First
Alliance/Premier Bancshares, Inc. ("Bancshares"), the sole shareholder of the
Seller, Net.B@nk has agreed to purchase all of the outstanding common stock of
Seller now owned by Bancshares;
WHEREAS, the (a) loans, (b) other assets and (c) deposits and other
liabilities which will be owned by Seller when it is acquired by Net.B@nk are
set forth on SCHEDULES A, B AND C, respectively;
WHEREAS, the Bank, as Purchaser, has agreed to purchase and assume, and the
Seller has agreed to sell, all of Premier's assets and liabilities which are not
being acquired by Net.B@nk as a result of its acquisition of the stock of
Premier;
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
covenants and provisions herein contained, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINED TERMS
1.1 DEFINED TERMS. The following terms used in this Agreement shall have
the meanings specified below:
(a) "Acquired Deposits" means all of the deposit liabilities of
Seller which are not to be acquired by Net.B@nk and which the Purchaser shall
assume at the Closing and shall also include Seller's routing and transit number
which is #▇▇▇▇▇▇▇▇▇.
(b) "Acquired Liabilities" means all of the liabilities, contingent
or otherwise, of Seller, however created or arising, other than the Acquired
Deposits and the liabilities to be owned by Net.B@nk which are set forth on
Exhibit C.
(c) "Branches" shall mean the offices of Seller.
(d) "Closing" means the closing of the purchase of the assets and
assumption of liabilities of the Branches, and "Closing Date" means the date on
which the Closing takes place.
(e) "Fixed Assets" means the Furniture, Fixtures and Equipment (as
defined below) and the Real Property (as defined below) which the Purchaser
shall purchase at Closing.
(f) "Furniture, Fixtures and Equipment" means the furniture, fixtures
and equipment in the Branches and elsewhere (including safe deposit boxes),
together with any
manufacturers' warranties which are assignable and are in effect, none of which
are to be acquired by Net.B@nk, and all of which the Purchaser shall purchase at
the Closing.
(g) "Purchased Assets" shall have the meaning set forth in Section
2.1.
(h) "Purchased Loans" means all of the loans of Seller which are not
to be acquired by Net.B@nk and which the Purchaser shall purchase at the
Closing.
(i) "Purchased Securities" means all of the securities of Seller,
which are not to be acquired by Net.B@nk and which the Purchaser shall purchase
at the Closing.
(j) "Real Property" means the real property and improvements located
thereon at the Branches, together with all easements and appurtenances belonging
thereto, and all intangible rights, licenses and permits pertaining thereto or
to the use thereof, which the Purchaser shall purchase at the Closing.
(k) "Schedules" referenced herein shall mean the Schedules so marked,
each of which has been initialed for identification by an officer of the
Purchaser, the Seller and Net.B@nk, and bound sets of which have been delivered
to the Seller, the Purchaser and Net.B@nk. Such Schedules are hereby
incorporated by reference herein and made a part hereof, and may be referred to
in this Agreement and in any other related instrument or document without being
attached hereto.
SECTION 2
TRANSFER OF ASSETS
2.1 ASSETS SOLD. On the terms and subject to the conditions of this
Agreement, at the Closing, the Seller shall transfer, convey, assign and deliver
to the Purchaser (without recourse, except as specifically provided in Section 3
and otherwise herein) the following assets (the Purchased Assets):
(a) The Purchased Loans and the Purchased Securities;
(b) All of the Seller's right, title and interest in the Fixed
Assets;
(c) All of the cash on hand at the Branches as of the Closing Date;
and
(d) All intangible assets, including, without limitation, all rights
to the name "Premier" and to the Premier Bank routing and transit number.
2.2 DOCUMENTS OF TRANSFER. The sale, transfer, assignment and delivery of
the Purchased Assets shall be effected by the execution and delivery by the
Seller to the Purchaser of general warranty deeds, bills of sale, endorsements,
assignments and other instruments of transfer and conveyance reasonably
satisfactory in form and substance to counsel for the Seller and the Purchaser.
At the Closing, the Seller shall take steps necessary to put the Purchaser in
possession and operating control of the Purchased Assets, and shall deliver
keys, combinations, codes and other necessary
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access devices and information relating to the Branches. Good and marketable
fee simple title to the Real Property shall be conveyed. The Seller shall cause
all deeds to secure debt and other liens encumbering title to the Real Property
to be paid in full and cancelled of record at or before the Closing; in the
event the Seller fails to do so, the Purchaser may, at its option (without
obligation) cause the same to be paid and released of record, and the Purchaser
shall receive a credit against the Purchase Price for all amounts expended in
connection therewith.
2.3 BREACHES WITH THIRD PARTIES. Nothing in this Agreement shall
constitute an agreement to assign any claim, contract, license, lease,
commitment, sales order or purchase order or any claim or right or any benefit
arising thereunder or resulting therefrom if an attempted assignment thereof,
without the consent of a third party thereto, would constitute a breach thereof
or in any way affect the rights of the Purchaser or the Seller thereunder. If
such consent is not obtained, or if an attempted assignment thereof would be
ineffective or would affect the rights of the Seller thereunder so that the
Purchaser would not in fact receive all such rights, the Seller shall cooperate
with the Purchaser in any arrangement desired to provide for the benefits under
any such claims, contracts, licenses, leases, commitments, sales orders or
purchase orders, including enforcement at the cost and for the benefit of the
Purchaser of any and all rights of the Seller against a third party thereto
arising out of the breach or cancellation by such third party or otherwise. Any
transfer or assignment to the Purchaser or the Seller of any property or
property rights or any contract or agreement which shall require the consent or
approval of any third party, shall be made subject to such consent or approval
being obtained.
2.4 PAYMENTS ACCEPTED AFTER THE CLOSING. The Seller shall forward
promptly to the Purchaser:
(a) Any payments (properly endorsed without recourse as necessary)
which are accepted by it on or after the Closing Date that relate in any way to
the Purchased Loans and to provide sufficient information so that any such
payments may be properly applied; and
(b) Any notices or other correspondence which are received on or
after the Closing Date that relate in any way to the Purchased Loans.
SECTION 3
ASSUMPTION OF ACQUIRED DEPOSITS AND LIABILITIES
3.1 ACQUIRED DEPOSITS. At the Closing, the Purchaser shall assume and
agree to pay and discharge the Acquired Deposits. No assurance can be given by
the Seller that the present deposit customers of the Branches shall become or
continue to be customers of the Purchaser, the same being at the sole discretion
of the customers.
3.2 OVERDRAFTS. If any of the accounts which comprise the Acquired
Deposits are overdrawn as of the Closing, the Purchaser shall assume such
accounts without recourse to the Seller and shall pay the Seller the amount of
the overdrafts for those overdrawn accounts assumed.
-3-
3.3 DOCUMENTATION OF ASSUMPTION. At the Closing, the Purchaser shall
deliver to the Seller an undertaking substantially in the form of EXHIBIT A,
attached hereto and made a part hereof, under which the Purchaser shall assume
and agree to discharge and pay the Acquired Deposits and the Acquired
Liabilities.
3.4 ASSUMPTION SUBJECT TO CERTAIN TERMS. The Acquired Deposits being
assumed by the Purchaser pursuant to this Section shall be assumed in accordance
with the terms and conditions of the contracts of deposit and the laws, rules
and regulations applicable thereto.
3.5 PAYMENT OF ITEMS BY THE SELLER AFTER CLOSING. If, subsequent to the
assumption of Acquired Deposits pursuant to this Section, the Seller shall honor
any properly drawn check or withdrawal from a transferred account, the Purchaser
shall pay to the Seller any moneys so paid by the Seller to or for the benefit
or account of the said depositor but not in excess of collected funds in the
depositor's account.
3.6 PAYMENT OF ITEMS BY THE PURCHASER AFTER CLOSING. The Purchaser agrees
that it shall pay all properly drawn checks, drafts and withdrawal orders drawn
by the account holders of the depository accounts of customers of the Seller
assumed hereunder, to the extent that the collected balance of the account is
sufficient to permit payment thereof. The Purchaser will promptly forward to
the Seller (or its successor) any checks received by the Purchaser drawn by the
account holders of the depository accounts of customers of the Seller not
assumed hereunder for a period of 30 days following the Closing.
3.7 TRANSFER OF CREDITS BY THE SELLER. The Seller agrees that it shall
transfer to the Purchaser any deposits accepted by it after the Closing Date for
credit to transferred accounts, but the Seller shall be under no obligation to
accept such deposits.
3.8 THE SELLER NOT LIABLE TO PAY. In the event any deposit customer
(whose account has been transferred from the Seller to the Purchaser with the
Branches) instead of accepting the obligation of the Purchaser to pay the
deposit liabilities assumed, shall demand payment for all or any part of any
such assumed deposit liabilities, the Purchaser shall be liable or responsible
for making such payment.
3.9 THE PURCHASER RESPONSIBLE FOR RETURNED ITEMS. The Purchaser shall pay
promptly to the Seller an amount equal to the amount of any checks, drafts or
withdrawal orders credited to an assumed account as of the Closing Date which
are returned to the Seller after the Closing Date.
3.10 ACQUIRED LIABILITIES. At the Closing, the Purchaser shall assume and
agree to pay and discharge the Acquired Liabilities.
SECTION 4
ASSUMPTION OF RISKS
4.1 INSURANCE POLICIES. Effective on the Closing Date, the Seller shall
discontinue its insurance coverage currently maintained in connection with the
Branches. The Purchaser shall be
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responsible for all casualty and liability insurance protection for the
Branches' premises and the activities conducted there as of the Closing Date.
4.2 PERSONS AND PROPERTY. As of the Closing Date, the Seller shall
discontinue providing the security for persons and property in and around the
Branches' premises it may have provided previous to the Closing Date.
SECTION 5
PURCHASE PRICE AND SETTLEMENT
5.1 PURCHASE PRICE. The purchase price to be paid by the Purchaser to the
Seller at the Closing for the Purchased Assets shall be (a) an amount equal to
the outstanding principal balance of the Purchased Loans plus the accrued and
unpaid interest on the Purchased Loans, (b) the fair market value of the
Purchased Securities as of the day immediately preceding the Closing Date,(c)
the book value of the Fixed Assets, and (d) any cash on hand at the Branches
(the "Purchase Price").
5.2 PAYMENT OF ACQUIRED DEPOSITS AND ASSUMPTION OF ACQUIRED LIABILITIES BY
THE SELLER.
(a) The deposit liabilities to be paid by the Seller to the Purchaser
at the Closing shall be an amount equal to the aggregate principal balance of
the Acquired Deposits and accrued interest thereon less the aggregate amount of
overdrafts for any overdrawn accounts assumed by the Purchaser at the Closing
pursuant to Section 3.2 of this Agreement.
(b) The Acquired Liabilities to be assumed by the Purchaser at the
Closing shall be valued at an amount equal to the amount of the Acquired
Liabilities shown on the Premier balance sheet on the Closing Date.
(c) The Seller shall deduct the Purchase Price to be paid to it by
the Purchaser pursuant to Section 5.1 of this Agreement from the amount provided
for in Section 5.2(a) hereof and shall pay such net amount by wire transfer of
funds to the Purchaser. Such wire transfer of funds shall be received by the
Purchaser by noon of the next business day following the Closing Date.
5.3 PRELIMINARY SETTLEMENT. The amount of cash to be received by and from
the Purchaser at the Closing shall be calculated in accordance with Section 5.1
and Section 5.2 of this Agreement and the Preliminary Settlement Statement
attached hereto and made a part hereof as EXHIBIT B-1. At the Closing, the
Seller shall deliver to the Purchaser a copy of the Preliminary Settlement
Statement set forth as EXHIBIT B-1 hereto which shall set forth the computation
of the cash due to or from the Seller.
5.4 FINAL SETTLEMENT. Not more than thirty (30) calendar days following
the Closing Date, the parties shall make a final settlement by making any pro
rata adjustments provided for in Section 5.5 of this Agreement. Such
calculations shall be set forth on the Final Settlement Statement attached
hereto and made a part hereof as EXHIBIT B-2.
-5-
5.5 INTEREST PAID AND EARNED AS OF THE CLOSING DATE. All of the accrued
but unpaid interest earned on the Purchased Loans on the Closing Date shall be
paid by the Purchaser to the Seller and all of the accrued but unpaid interest
earned on the Acquired Deposits or owing on any of the Acquired Liabilities on
the Closing Date shall be paid by the Seller to the Purchaser. Following the
Closing Date, all of the interest earned on the Purchased Loans shall be paid to
the Purchaser and all of the interest paid on the Acquired Deposits shall be the
obligation of the Purchaser.
SECTION 6
ACCESS TO THE BRANCHES' PROPERTIES AND RECORDS AND DUE DILIGENCE
6.1 ACCESS AND CONFIDENTIAL TREATMENT. From and after the date of this
Agreement until the Closing, the Seller shall afford to the agents and
representatives of the Purchaser full access, during normal business hours and
upon reasonable notice, to all assets, properties, books, records, information
and materials (including market surveys) relating to the Branches, the Purchased
Loans and the Acquired Deposits, and the Seller shall furnish representatives of
the Purchaser during such period with all such information concerning the
affairs of the Branches as the Purchaser may reasonably request.
6.2 THE PURCHASER'S DUE DILIGENCE. The Purchaser shall have the right to
conduct in good faith a due diligence investigation concerning the Branches, the
Acquired Deposits and the Purchased Assets and to satisfy itself that such
matters are not materially and adversely different from the facts and conditions
represented by the Seller.
6.3 RECORDKEEPING AND ACCESS FOLLOWING THE CLOSING. The Purchaser shall
preserve and safely keep, for as long as may be required by applicable law, all
of the files, books of account and records delivered to the Purchaser at the
Closing with the Branches for the joint benefit of itself and the Seller, and it
shall permit the Seller or its representatives, at any reasonable time and at
the Seller's expense to inspect, make extracts from or copies of, any such
files, books of account or records as the Seller shall deem reasonably
necessary. Following the Closing, the Seller shall permit the Purchaser or its
representatives, at any reasonable time and at the Purchaser's expense to
inspect, make extracts from or copies of any nonconfidential files, books of
account or records in the Seller's possession containing information concerning
the Branches, the Acquired Deposits and the Purchased Loans.
SECTION 7
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as disclosed in writing by the Seller to the Purchaser and acceptable
to the Purchaser, the Seller represents and warrants to the Purchaser as
follows:
7.1 CORPORATE ORGANIZATION. The Seller is a federal savings bank duly
organized, validly existing and in good standing under the laws of the United
States.
7.2 CORPORATE AUTHORITY TO CARRY ON BUSINESS. The Seller has the
requisite corporate power and authority to carry on its business as the same is
now being conducted.
-6-
7.3 CORPORATE AUTHORITY TO ENTER INTO THIS AGREEMENT. The Seller has the
requisite corporate power and authority to enter into and to perform this
Agreement and the transactions contemplated by this Agreement, and to sell,
transfer, assign and deliver the Purchased Assets to the Purchaser and to vest
in the Purchaser good and marketable title to the Purchased Assets.
7.4 EXECUTION AND DELIVERY; ENFORCEABILITY. The execution, delivery and
performance of this Agreement and the transactions contemplated by this
Agreement by the Seller have been duly and validly authorized by all requisite
corporate action, and this Agreement is binding and enforceable against the
Seller in accordance with its terms.
7.5 STATUS OF THE ACQUIRED DEPOSITS. All of the Acquired Deposits were
obtained and remain in material compliance with all applicable laws and
regulations, and are properly documented in a manner materially consistent with
such laws and regulations and with good banking practices.
7.6 STATUS OF THE PURCHASED LOANS.
(a) The Seller is the sole owner of each Purchased Loan except for
those Purchased Loans in which participation interests have been sold. No
Purchased Loan has been pledged or encumbered, except as collateral for Acquired
Liabilities to be assumed by Purchaser. The principal balance of each Purchased
Loan as shown on the Seller's books and records is true and correct as of the
last date shown thereon.
(b) To the best knowledge of the Seller: (i) each Purchased Loan is a
valid loan and was made and remains in compliance in all material respects with
all applicable laws and regulations, (ii) each Purchased Loan is properly
documented in a manner consistent with applicable laws and regulations and with
good working practice and all purported signatures on and executions of any
document in connection with such loan are genuine and (iii) all loan
documentation has been actually signed or executed by all necessary parties, and
the Seller has custody of all documents or microfilm records thereof related to
such loan.
(c) All Purchased Loans (and any notes, other evidences of
indebtedness or security agreements associated therewith) transferred at the
Closing by the Seller to the Purchaser shall be transferred without recourse and
without any warranties or representations as to the collectability of any such
loans, the value of the collateral securing same or the creditworthiness of any
of the obligors.
7.7 STATUS OF THE PURCHASED SECURITIES. All of the Purchased Securities
were acquired and remain in material compliance with all applicable laws and
regulations, and are properly documented in a manner materially consistent with
such laws and regulations and with good banking practices.
7.8 NO VIOLATIONS. The execution, delivery and performance of this
Agreement and the transactions contemplated by this Agreement do not and shall
not violate any provision of law to which the Seller is subject and do not and
shall not conflict with or result in the violation or breach of any condition or
provision of, or constitute a default under, any contract, right, lease (except
as previously disclosed to the Purchaser and with respect to which the Seller
shall obtain the necessary consents),
-7-
pledge, lien, security interest, instrument, indenture, mortgage, charge,
encumbrance, agreement, order, writ, injunction, decree or judgment to which the
Seller is a party or which is binding on the Seller or to which any of the
property or assets of the Seller is subject. No consent, license, approval or
authorization of or designation, declaration or filing with any governmental
authority or other person or entity is required on the part of the Seller (other
than as provided for or contemplated hereby) in connection with the execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated by this Agreement. The Seller is not in default under
any lease, agreement, contract, commitment or other obligation which the
Purchaser is assuming or which affects the property rights being transferred to
the Purchaser.
7.9 NO ADVERSE LITIGATION. Except as previously disclosed to the
Purchaser, there is no investigation, action, arbitration, suit, proceeding or
claim pending or threatened against the Seller with respect to, or adversely
affecting, the Branches or the Purchased Assets or the Acquired Deposits or the
consummation of the transactions contemplated by this Agreement before or by any
federal, state, municipal or other governmental department, commission, board,
agency or instrumentality, domestic or foreign, nor does there exist any basis
or grounds for any such investigation, action, arbitration, suit, proceeding or
claim.
7.10 LIMITATIONS OF WARRANTIES. Except as may be expressly represented or
warranted in this Agreement by the Seller, the Seller makes no representations
or warranties whatsoever, express or implied, with regard to any Purchased
Asset, any Acquired Deposits or any other liability or obligation being assumed
by the Purchaser, and all Fixed Assets are sold and conveyed in "AS IS"
condition, with no warranties by the Seller as to their future performance or
condition.
SECTION 8
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Except as disclosed in writing by the Purchaser to the Seller and acceptable
to the Seller, the Purchaser represents and warrants to the Seller as follows:
8.1 CORPORATE ORGANIZATION. The Purchaser is a commercial bank validly
existing and in good standing under the laws of the State of Georgia.
8.2 CORPORATE AUTHORITY TO CARRY ON BUSINESS. The Purchaser has the
requisite corporate power and authority to carry on its business as the same is
now being conducted.
8.3 CORPORATE AUTHORITY TO ENTER THIS AGREEMENT. The Purchaser has full
corporate power and authority to enter into and to perform this Agreement and
the transactions contemplated by this Agreement.
8.4 EXECUTION AND DELIVERY; ENFORCEABILITY. The execution, delivery and
performance of this Agreement by the Purchaser have been duly and validly
authorized by all requisite corporate action, and this Agreement is binding and
enforceable against the Purchaser in accordance with its terms.
-8-
8.5 NO VIOLATIONS. The execution, delivery and performance of this
Agreement and the transactions contemplated by this Agreement do not and shall
not violate any provision of law to which the Purchaser is subject and do not
and shall not conflict with or result in the violation or breach of any
condition or provision of, or constitute a default under, any contract, right,
lease, pledge, lien, security interest, instrument, indenture, mortgage, charge,
encumbrance, agreement, order, writ, injunction, decree or judgment to which the
Purchaser is a party or which is binding on the Purchaser or to which any of the
property or assets of the Purchaser is subject. No consent, license, approval
or authorization of or designation, declaration or filing with any governmental
authority or other person or entity is required on the part of the Purchaser
(other than as provided by or contemplated hereby) in connection with execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated by this Agreement.
8.6 NO ADVERSE LITIGATION. There is no investigation, action,
arbitration, suit, proceeding or claim pending or threatened against or
affecting the Purchaser that might materially and adversely affect or might
impair the consummation of the transactions contemplated by this Agreement
before or by any federal, state, municipal or other governmental department,
commission, board, agency or instrumentality, domestic or foreign, nor does
there exist any basis or grounds for any such investigation, action,
arbitration, suit, proceeding or claim.
SECTION 9
ADDITIONAL UNDERTAKINGS OF THE SELLER
9.1 CONDUCT OF BUSINESS PENDING CLOSING. From the date of this Agreement
to the Closing Date, the Seller shall:
(a) Use its best efforts to promote the successful operations of the
Branches and avoid any act that would materially and adversely affect the value
of the Purchased Assets;
(b) Operate the business of the Branches only in an ordinary and
usual businesslike manner consistent with safe and sound banking practices and
the Seller's ordinary course of business;
(c) Not discriminate against the Branches with respect to
advertising, products offered, or staffing and operations support;
(d) Seek the concurrence of the Purchaser prior to hiring or
replacing any manager of the Branches; and
(e) Not take any action which would cause any representation or
warranty to be untrue as if made at the Closing Date.
9.2 DOCUMENTATION AT THE CLOSING AND FURTHER ASSURANCES. At the Closing,
the Seller shall transfer, assign and deliver to the Purchaser all existing
records, books, papers, collateral and agreements of the Seller relating to the
Purchased Assets and the Acquired Deposits including but not limited to
signature cards, orders, contracts, deposit slips, cancelled checks, withdrawal
orders and
-9-
records of accounts. The Seller agrees that it shall, at the Closing and at any
time and from time to time after the Closing, upon request of the Purchaser do,
execute, acknowledge and deliver, or cause to be done, executed, acknowledged
and delivered, all such further acts, deeds, assignments, transfers,
conveyances, powers of attorney and assurances as may be required for the better
assigning, transferring, granting, conveying, assuring and confirming to the
Purchaser, or to its successors and assigns, or for aiding and assisting in
collecting and reducing to possession, any or all of the Purchased Assets and
the Acquired Deposits and the performance of any or all obligations of the
Seller hereunder.
SECTION 10
ADDITIONAL UNDERTAKINGS OF THE PURCHASER
10.1 THE PURCHASER'S CONTACT WITH CUSTOMERS. Prior to the Closing, the
Purchaser at its expense may notify the customers of the Branches of the pending
transfer of his, her or its deposit account or loan. The Purchaser agrees to
use its best efforts to work with deposit customers of the Branches in securing
new checks, deposit slips and other items with the routing and code numbers of
the Purchaser prior to the Closing Date.
10.2 REGULATORY FILINGS. The Purchaser shall file all necessary filings,
applications and notices concerning the transactions contemplated by this
Agreement with the appropriate regulatory authorities by February 15, 1997.
SECTION 11
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASER
The obligation of the Purchaser to close under this Agreement shall be
subject to the following conditions (all or any of which may be waived, in whole
or in part, by the Purchaser).
11.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties made by the Seller in this Agreement shall have been true and correct
when made and shall be true and correct on and as of the Closing Date with the
same force and effect as though such representations and warranties had been
made on and as of such date.
11.2 OBLIGATIONS PERFORMED. The Seller shall have performed all covenants
and obligations and complied with all conditions required by this Agreement to
be performed or complied with by it on or before the Closing Date.
11.3 CERTIFICATE OF COMPLIANCE. The Seller shall have executed and
delivered to the Purchaser a certificate of compliance substantially in the form
and substance of EXHIBIT C attached hereto and made a part hereof, dated as of
the Closing Date.
11.4 NO ADVERSE LITIGATION. No action, suit or proceeding shall have been
instituted or threatened against the Seller or the Purchaser by or before any
court or governmental agency to restrain or prohibit, or to obtain damages in
respect of, or which is related to or arises out of, this
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Agreement or the consummation of the transactions contemplated hereby which in
the opinion of the Purchaser makes it inadvisable to proceed to the Closing
under this Agreement.
11.5 REGULATORY APPROVALS. The Purchaser shall have obtained, from all
necessary governmental and regulatory authorities, all necessary consents to and
authorizations and approvals of this Agreement and the transactions contemplated
by this Agreement and the related transfer of ownership and control of all
licenses, permits or other governmental authorizations necessary to carry on all
aspects of the business of the Branches.
SECTION 12
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SELLER
The obligation of the Seller to close under this Agreement shall be subject
to the following conditions (all or any of which may be waived, in whole or in
part, by the Seller except Section 12.5):
12.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties made by the Purchaser in this Agreement shall have been true and
correct when made and shall be true and correct on and as of the Closing Date
with the same force and effect as though such representations and warranties had
been made on and as of such date.
12.2 OBLIGATIONS PERFORMED. The Purchaser shall have performed all
covenants and obligations and complied with all conditions required by this
Agreement to be performed or complied with by it on or before the Closing Date.
12.3 CERTIFICATE OF COMPLIANCE. The Purchaser shall have executed and
delivered to the Seller a certificate in substantially the form and substance of
EXHIBIT D attached hereto and made a part hereof, dated as of the Closing Date.
12.4 NO ADVERSE LITIGATION. No action, suit or proceeding shall have been
instituted or threatened against the Seller or the Purchaser by or before any
court or governmental agency to restrain or prohibit, or to obtain damages in
respect of, or which is related to or arises out of, this Agreement or the
consummation of the transactions contemplated hereby which in the opinion of the
Seller makes it inadvisable to proceed to the Closing under this Agreement.
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12.5 REGULATORY APPROVALS. The Seller shall have obtained, from all
necessary governmental and regulatory authorities, all necessary consents to and
authorizations and approvals of this Agreement and the transactions contemplated
by this Agreement and the related transfers of ownership and control of all
licenses, permits or other governmental authorizations necessary to carry on all
aspects of the business of the Branches.
SECTION 13
THE CLOSING
13.1 TIME AND PLACE. The Closing of this Agreement shall take place as
soon as practicable after the parties have received all required approvals from
their respective regulatory authorities, but not later than as of March 31,
1997. The Closing shall be held at an hour and location to be agreed upon by
the parties hereto prior to the date set for the Closing.
SECTION 14
TERMINATION
14.1 METHODS OF TERMINATION. This Agreement may be terminated in any of
the following ways:
(a) At or prior to the Closing, by the mutual consent in writing of
the Purchaser and the Seller;
(b) At the Closing, by the Purchaser in writing, if the conditions
set forth in Section 11 of this Agreement shall not have been met by the Seller
or waived in writing by the Purchaser;
(c) At the Closing, by the Seller in writing, if the conditions set
forth in Section 12 of this Agreement shall not have been met by the Purchaser
or waived in writing by the Seller; or
(d) By the Seller or the Purchaser in writing at any time after any
of the regulatory authorities has denied or has indicated its intent to deny any
application of the Purchaser for approval of the transaction(s) contemplated
herein.
14.2 PROCEDURE UPON TERMINATION. In the event of termination pursuant to
Section 14.1 hereof, written notice thereof shall forthwith be given to the
other party, and this Agreement shall terminate upon receipt of such notice
immediately unless an extension is consented to by the party having the right to
terminate.
14.3 AUTOMATIC TERMINATION. Unless mutually extended by the Board of
Directors (or any duly authorized Committee of the Board) of the Purchaser and
the Seller, and any provision of this Agreement to the contrary notwithstanding,
this Agreement shall terminate, and the purchase, sale, and assumption
contemplated hereby shall be abandoned, automatically and without action on the
part
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of either party, and without liability of either party to the other party,
unless the purchase, sale and assumption contemplated hereby is consummated as
of or before March 31, 1997.
SECTION 15
MISCELLANEOUS
15.1 ENTIRE AGREEMENT. This Agreement, including any exhibits and
schedules hereto, represents the entire agreement of the parties relating to the
subject matter hereof. All prior negotiations between the parties are merged
into this Agreement and there are no understandings or agreements other than
those incorporated herein.
15.2 MODIFICATIONS AND WAIVERS. This Agreement may not be modified except
by an instrument in writing duly executed by the parties. Any waiver must be in
writing.
15.3 NO BROKER OR FINDER. The Purchaser and the Seller each represents and
warrants to the other that no broker or finder has acted for it in connection
with this Agreement or the transactions contemplated hereby.
15.4 NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties set forth in this Agreement shall not survive the Closing Date.
15.5 BINDING EFFECT. All terms of this Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and permitted assigns.
15.6 COUNTERPARTS. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
15.7 EXPENSES. Each party shall bear its own out-of-pocket expenses
incurred in connection with this Agreement and all transactions contemplated
hereunder.
15.8 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed, certified, return receipt requested, with postage prepaid,
to the other party at its respective address reflected on EXHIBIT E attached
hereto, and shall be effective when delivered or when the first attempt is made
to deliver the same by mail, whichever is earlier.
15.9 TIME OF THE ESSENCE. The parties hereto acknowledge that time is of
the essence with respect to the performance of this Agreement.
15.10 GOVERNING LAW. Except to the extent governed by federal law, this
Agreement shall be construed in accordance with the laws of the State of Georgia
applicable to agreements made and to be performed in Georgia.
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15.11 HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation hereof. The
use of the singular in this Agreement shall be deemed to be or include the
plural (and vice versa), whenever appropriate.
15.12 SEVERABILITY. If any provision of this Agreement is invalid or
unenforceable, the balance of this Agreement shall remain in effect.
15.13 PUBLIC ANNOUNCEMENTS. The parties hereto agree that all public
announcements relating to this Agreement or to the transactions contemplated
hereby, including announcements to employees, shall be made only as may be
agreed upon in advance by the parties hereto.
15.14 ASSIGNABILITY. The rights of the Purchaser in and to this Agreement
and the transactions contemplated hereunder shall be assignable by the Purchaser
only with the Seller's prior consent.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be executed by their duly authorized officers and their corporate
seals to be affixed hereto as of the day and year first above written.
SELLER:
ATTEST: PREMIER BANK, F.S.B.
___________________________________
Secretary By:_____________________________________
Name:___________________________________
[SEAL] Title:__________________________________
PURCHASER:
ATTEST: FIRST ALLIANCE BANK
___________________________________
Secretary By:___________________________________
Name:_________________________________
[SEAL]
Title:________________________________
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SCHEDULE A
The loans which will be acquired by Net.B@nk, Inc., pursuant to that certain
Amended and Restated Stock Purchase Agreement of even date herewith, between
Net.B@nk, Inc. and First Alliance/Premier Bancshares, Inc., shall consist of the
following:
1. Five Million Dollars ($5,000,000.00) in mortgage loans held for sale
to be more particularly identified at Closing.
SCHEDULE B
The remaining assets to be acquired by Net.B@nk, Inc., pursuant that certain
Amended and Restated Stock Purchase Agreement of even date herewith, between
Net.B@nk, Inc. and First Alliance/Premier Bancshares, Inc. shall consist of the
following:
1. The Federal Stock Charter of Premier Bank, FSB (Charter Number 6205);
2. One Hundred Thousand Dollars ($100,000.00) in capital which will be
paid to First Alliance/Premier Bancshares, Inc. at book value in
connection with the consummation of the Amended and Restated Stock
Purchase Agreement; and
3. Other miscellaneous assets, to be more particularly identified at
Closing.
SCHEDULE C
The Deposits and Other Liabilities to be acquired by Net.B@nk, Inc., pursuant
that certain Amended and Restated Stock Purchase Agreement of even date
herewith, between Net.B@nk, Inc. and First Alliance/Premier Bancshares, Inc.
shall consist of Five Million Dollars ($5,000,000.00) in certificates of deposit
to be more particularly identified at Closing.
EXHIBIT A
ASSUMPTION OF LIABILITIES
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, First Alliance Bank (the "Purchaser"), pursuant to SECTION 3.3 of
the Purchase and Assumption Agreement , between the Purchaser and Premier Bank,
FSB (the "Seller"), dated December 19, 1996 (the "Agreement"), has executed and
delivered this Assumption of Liabilities. Unless otherwise defined herein, all
capitalized terms used in this Assumption of Liabilities shall have the meanings
attributed to them in the Agreement.
From and after the close of business on the Closing Date, the Purchaser
hereby assumes and agrees to pay and discharge the following liabilities of the
Seller originated at or otherwise attributable to the Branches.
(a) The Acquired Deposits being transferred by the Seller, with accrued
interest, as of the date shown below; and
(b) All Acquired Liabilities, including, without limiting the generality
of the foregoing, all leases of personal property, assigned, sold, transferred
and delivered to Purchaser.
This Assumption of Liabilities shall not create in any third parties
(including, but not limited to, holders of the Acquired Deposits or the Acquired
Liabilities) (a) any rights or remedies against the Purchaser which such parties
did not have against the Seller prior to the execution and delivery of this
Assumption of Liabilities with respect to the Acquired Deposits or the Acquired
Liabilities other than for payment of principal and accrued interest as of the
date hereof, and interest hereafter accrued in accordance with the terms of the
Acquired Deposits.
IN WITNESS WHEREOF, the Purchaser acting through its duly authorized
officers has executed this Assumption of Liabilities in accordance with . of the
Agreement, this _____ day of __________, 1997.
ATTEST: FIRST ALLIANCE BANK
___________________________________ By:________________________________
Secretary Name:______________________________
Title:_____________________________
[SEAL]
Accepted this _____ day of __________, 1997.
PREMIER BANK, F.S.B.
By:________________________________________
Name:______________________________________
Title:_____________________________________
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EXHIBIT B-1
PRELIMINARY SETTLEMENT STATEMENT
Pursuant to SECTION 5.3 of that certain Purchase and Assumption Agreement,
between First Alliance Bank (the "Purchaser") and Premier Bank, FSB (the
"Seller"), dated December 19, 1996 (the "Agreement"), the Seller hereby delivers
this Preliminary Settlement Statement to the Purchaser. Unless otherwise
defined herein, all capitalized terms used in this Preliminary Settlement
Statement shall have the meanings attributed to them in the Agreement.
The Seller and the Purchaser agree that the following is the computation
of the cash due to the Purchaser (or if negative, to the Seller) in settlement
at the Closing:
Total Acquired Deposits assumed by
the Purchaser at the Closing (including
accrued interest) $_________
MINUS: Aggregate amount of overdrafts for any
overdrawn accounts assumed by the
Purchaser at the Closing $__________
Net Acquired Deposits assumed by the
Purchaser at the Closing $__________
Plus: All Acquired Liabilities $__________
MINUS: The Purchase Price:
An amount equal to the outstanding
principal balance of the Purchased
Loans plus the accrued and unpaid
interest on the Purchased Loans
(net of reserve allocable to the
Purchased Loans) $_________
An amount equal to the fair market
value of the Purchased Securities $_________
An amount equal to the book value of
the Fixed Assets $_________
Any cash on hand at the Branches $_________
The Purchase Price $_________
EQUALS: Net cash due to Purchaser (or if
negative, to Seller) $_________
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The Seller and the Purchaser agree that the above computation is based on
the general ledger balances, other financial information available and estimates
made therefrom at the Closing and all figures and computations herein shall be
subject to adjustment to the extent the parties deem appropriate. The Purchaser
and the Seller agree that there shall be a Final Settlement Statement,
containing all necessary or required adjustments to this Preliminary Settlement
Statement, made and delivered by the Seller (and to be reviewed and agreed to by
the Purchaser) within thirty (30) calendar days following the Closing Date. The
form and substance of the Final Statement can be found at EXHIBIT B-2 of the
Agreement.
The Seller and the Purchaser agree that the computation as set forth above
has been done in accordance with the Agreement and that the Final Settlement
Statement shall be calculated and delivered in accordance with the Agreement.
IN WITNESS WHEREOF, the Purchaser and the Seller acting through their duly
authorized officers have executed this Preliminary Settlement Statement in
accordance with SECTION 5.3 of the Agreement, this _____ day of __________,
1997.
PREMIER BANK, F.S.B.
ATTEST: By:_______________________________
Name:_____________________________
Title:____________________________
___________________________________
Secretary
[SEAL]
FIRST ALLIANCE BANK
ATTEST: By:_______________________________
Name:_____________________________
Title:____________________________
___________________________________
Secretary
[SEAL]
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EXHIBIT B-2
FINAL SETTLEMENT STATEMENT
Pursuant to SECTION 5.4 of that certain Purchase and Assumption Agreement,
between First Alliance Bank (the "Purchaser") and Premier Bank, FSB (the
"Seller"), dated December 19, 1996 (the "Agreement"), the Seller hereby delivers
this Final Settlement Statement to the Purchaser. Unless otherwise defined
herein, all capitalized terms used in this Final Settlement Statement shall have
the meanings attributed to them in the Agreement.
The Seller and the Purchaser agree that the following is the final
computation of the cash due to (or from) the Purchaser in settlement of the
Purchase of the Branches:
Cash due to the Purchaser from the Seller
Total Acquired Deposits and Acquired
Liabilities assumed by the Purchaser
after the Closing Date (including
accrued interest) $________
PLUS: Deposits accepted by the Seller after
the Closing Date for deposit in
accounts assumed by the Purchaser at
the Closing and not previously
delivered to the Purchaser by the
Seller
$________
PLUS: Pro-rata Expenses*
Expenses accrued by the Seller but
unpaid prior to the Closing Date $________
MINUS: Expenses incurred after the Closing
Date but prepaid by the Seller $________
Net Pro-Rata Expenses $____________
PLUS: Other Adjustments (if any) $____________
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PLUS: Aggregate amount of any checks,
drafts or withdrawal orders which
had been credited to an account
assumed by the Purchaser as of the
Closing Date but were returned to
the Seller after the Closing Date
and have not been previously paid
by the Purchaser to the Seller $____________
PLUS: Other Adjustments (if any) $____________
EQUALS: Cash due to/from Purchaser $____________
*Including property taxes, rents, utility payments and similar expenses relating
to the physical plant of the Branches and other expenses relating to the
Acquired Deposits.
IN WITNESS WHEREOF, the Purchaser and the Seller acting through their
duly authorized officers have executed this Final Settlement Statement in
accordance with SECTION 5.4 of the Agreement, this _____ day of __________,
1997.
PREMIER BANK, F.S.B.
ATTEST: By:______________________________
Name:____________________________
Title:___________________________
___________________________________
Secretary
[SEAL]
FIRST ALLIANCE BANK
ATTEST: By:_______________________________
Name:_____________________________
Title:____________________________
___________________________________
Secretary
[SEAL]
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EXHIBIT C
SELLER'S COMPLIANCE CERTIFICATE
Premier Bank, FSB (the "Seller") hereby certifies that:
(1) The representations and warranties made by the Seller in SECTION 7 of
the Purchase and Assumption Agreement, between the Seller and First
Alliance Bank, dated December 19, 1996 (the "Agreement"), are true and
correct as of the date hereof.
(2) The Seller has complied with or satisfied the conditions required by
SECTION 11 of the Agreement to be complied with or satisfied by it prior to
or as of the date hereof.
IN WITNESS WHEREOF, the Seller has caused this Certificate to be executed
by its duly authorized officers and its seal to be affixed hereto as of the
_____ day of __________, 1997.
PREMIER BANK, F.S.B.
By:_______________________________
Name:_____________________________
Title:____________________________
ATTEST:
___________________________________
Secretary
[SEAL]
EXHIBIT D
PURCHASER'S COMPLIANCE CERTIFICATE
First Alliance Bank (the "Purchaser") hereby certifies that:
(1) The representations and warranties made by the Purchaser in SECTION 8
of the Purchase and Assumption Agreement, between Premier Bank, F.S.B. and
Purchaser, dated December 19, 1996 (the "Agreement"), are true and correct
as of the date hereof.
(2) The Purchaser has complied with or satisfied the conditions required
by SECTION 12 of the Agreement to be complied with or satisfied by it prior
to or as of the date hereof.
IN WITNESS WHEREOF, the Seller has caused this Certificate to be executed
by its duly authorized officers and its seal to be affixed hereto as of the
_____ day of __________, 1997.
FIRST ALLIANCE BANK
By:_______________________________
Name:_____________________________
Title:____________________________
ATTEST:
___________________________________
Secretary
[SEAL]
EXHIBIT E
NOTICES
1. ADDRESSES:
FOR SELLER:
Premier Bank, FSB
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
WITH COPY TO:
Womble, Carlyle, ▇▇▇▇▇▇▇▇▇ & Rice, PLLC
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
FOR PURCHASER:
First Alliance Bank
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
P. O. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
[NOTE: THE INFORMATION ON THIS PAGE HAS BEEN SUPERSEDED BY
INFORMATION PROVIDED IN SCHEDULES TO EXHIBIT 1 OF THE AMENDED AND RESTATED STOCK
PURCHASE AGREEMENT]
Pro Forma
Figures in Thousands
Purchase of Premier Bank, FSB, Marietta, Georgia ("Premier")
PREMIER
ASSETS
Cash and due from Banks $1,400
Investments 0
Net Loans 0
Fixed Assets 0
Other Assets 0
TOTAL
ASSETS $1,400
------
LIABILITIES
AND CAPITAL
Deposits 1,000
Other Liabilities 100
---
TOTAL
LIABILITIES $1,100
------
Common Stock 300
Surplus 0
Retained Earnings 0
TOTAL
CAPITAL $300
----
TOTAL
LIABILITIES
AND
CAPITAL $1,400
------
Premier Bancshares, Inc. will sell Premier after a corporate reorganization
where Premier will transfer essentially all assets and liabilities and effect
a return of capital. For purposes of this transaction, it is assumed that OIG
will acquire the capital account totaling $300,000. Total assets will include
$1,300,000 in cash and cash equivalents, and total liabilities will include
deposits of $1,000,000. Actual figures at closing may differ. AIB will
purchase the capital for the book value of the capital accounts plus
$200,000. The transaction assumes purchase accounting.
EXHIBIT 2