EXHIBIT 99.1
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
C&S BANCORPORATION, INC.
AND
THE TATTNALL BANK
PURCHASE AND ASSUMPTION AGREEMENT
Page Number
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ARTICLE I TRANSFER OF ASSETS AND LIABILITIES......................................................................1
Section 1.1. Transferred Assets................................................................................1
Section 1.2. Purchase Price....................................................................................2
Section 1.3. Deposit Liabilities...............................................................................2
Section 1.4. Loans Transferred.................................................................................4
Section 1.5. Safe Deposit Business.............................................................................5
Section 1.6. Employee Matters..................................................................................5
Section 1.7. Records and Data Processing.......................................................................6
Section 1.8. Security..........................................................................................6
Section 1.9. Taxes and Fees; Proration of Certain Expenses; Allocation Form 8594...............................6
ARTICLE II CLOSING AND EFFECTIVE DATE.............................................................................7
Section 2.1. Dates.............................................................................................7
Section 2.2. Closing...........................................................................................7
Section 2.3. Post-Closing Adjustments..........................................................................9
ARTICLE III INDEMNIFICATION......................................................................................10
Section 3.1. Seller's Indemnification of Purchaser............................................................10
Section 3.2. Claims for Indemnity.............................................................................10
Section 3.3. Threshold for Indemnification....................................................................11
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER..............................................................11
Section 4.1. Corporate Organization...........................................................................11
Section 4.2. No Violation.....................................................................................11
Section 4.3. Corporate Authority..............................................................................12
Section 4.4. Enforceable Agreement............................................................................12
Section 4.5. Brokers..........................................................................................12
Section 4.6. Certain Loan Representations.....................................................................12
Section 4.7. [Reserved].......................................................................................13
Section 4.8. Absence of Material Adverse Change...............................................................13
Section 4.9. Litigation.......................................................................................13
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASER............................................................13
Section 5.1. Corporate Organization...........................................................................13
Section 5.2. No Violation.....................................................................................13
Section 5.3. Corporate Authority..............................................................................14
Section 5.4. Enforceable Agreement............................................................................14
Section 5.5. Brokers..........................................................................................14
ARTICLE VI OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE DATE..............................................14
Section 6.1. Full Access......................................................................................14
Section 6.2. Applications for Approval to Effect Purchase of Assets and Assumption of Liabilities.............15
Section 6.3. Conduct of Business; Maintenance of Properties...................................................15
Section 6.4. No Solicitation by Seller........................................................................15
Section 6.5. Further Actions..................................................................................16
Section 6.6. Fees and Expenses................................................................................16
Section 6.7. Breaches with Third Parties......................................................................16
Section 6.8. Insurance........................................................................................16
Section 6.9. Public Announcements.............................................................................16
Section 6.10. Further Negotiations............................................................................17
Section 6.11. Change of Name, Etc.............................................................................17
Section 6.12. Employment of Branch Manager....................................................................17
ARTICLE VII CONDITIONS TO PURCHASER'S OBLIGATIONS................................................................17
Section 7.1. Representations and Warranties True..............................................................17
Section 7.2. Obligations Performed............................................................................18
Section 7.3. No Adverse Litigation............................................................................18
Section 7.4. Regulatory Approval..............................................................................18
ARTICLE VIII CONDITIONS TO SELLER'S OBLIGATIONS..................................................................18
Section 8.1 Representations and Warranties True..............................................................18
Section 8.2. Obligations Performed............................................................................18
Section 8.3. No Adverse Litigation............................................................................19
Section 8.4. Regulatory Approval..............................................................................19
ARTICLE IX TERMINATION...........................................................................................19
Section 9.1. Methods of Termination...........................................................................19
Section 9.2. Procedure Upon Termination.......................................................................20
Section 9.3. Bust-up Fee......................................................................................20
ARTICLE X MISCELLANEOUS PROVISIONS...............................................................................20
Section 10.1. Amendment and Modification......................................................................20
Section 10.2. Waiver or Extension.............................................................................21
Section 10.3. Assignment......................................................................................21
Section 10.4. Confidentiality.................................................................................21
Section 10.5. Addresses for Notices, Etc......................................................................21
Section 10.6. Counterparts....................................................................................22
Section 10.7. Headings........................................................................................22
Section 10.8. Governing Law...................................................................................22
Section 10.9. Sole Agreement..................................................................................22
Section 10.10. Expenses.......................................................................................23
Section 10.11. Severability...................................................................................23
Section 10.12. Parties In Interest............................................................................23
PURCHASE AND ASSUMPTION AGREEMENT
THIS AGREEMENT, dated as of October 22, 2001 by and between C&S
Bancorporation, Inc., a Georgia corporation, having its principal office in
Savannah, Georgia ("Purchaser"), and The Tattnall Bank, a financial institution
chartered in Georgia having its principal office in Reidsville, Georgia
("Seller"):
WITNESSETH:
WHEREAS, Seller wishes to divest, upon the terms and conditions set
forth herein, certain assets and certain deposit and other liabilities of its
branch banking office located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the
"Branch"):
WHEREAS, Purchaser wishes to buy such assets and assume such
liabilities upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, Seller and Purchaser agree as follows:
ARTICLE I
TRANSFER OF ASSETS AND LIABILITIES
Section 1.1. Transferred Assets.
(a) As of the Effective Date (as defined in Section 2.1 below) and
upon the terms and conditions set forth herein, Seller will sell, assign,
transfer, convey and deliver to Purchaser, and Purchaser will purchase from
Seller, all of the following assets associated with the Branch and identified in
this Agreement and the Exhibits hereto, and not otherwise excluded from sale
pursuant to the provisions of Subsection 1.1(b) below:
(1) all safe deposit contracts and leases for the safe
deposit boxes located at the Branch as of the Effective Date (the "Safe Deposit
Leases");
(2) all loans transferred pursuant to Section 1.4; and
(3) all coins and currency located at the Branch on the
Effective Date (the "Coins and Currency").
(b) Excluded from the assets, properties and rights being
transferred, conveyed and assigned to Purchaser under this Agreement are the
assets listed on Exhibit 1.1(b) hereto, Seller's rights in and to the names "The
Tattnall Bank" and "Tattnall Bancshares, Inc.", and any of Seller's corporate
logos, trademarks, trade names, signs, paper stock, forms and other supplies
containing any such logos, trademarks or trade names (the "Excluded Assets") .
Seller shall coordinate with Purchaser to remove the Excluded Assets from the
Branch on or prior to the
Effective Date. Seller shall remove the Excluded Assets at its own cost and will
promptly repair any damage caused by Seller in removing the Excluded Assets.
Section 1.2. Purchase Price.
(a) As consideration for the purchase of the Branch, Purchaser
shall pay Seller a purchase price equal to the sum of the following:
(1) The sum of $370,000 as a fixed premium for the
Deposit Liabilities (as defined in Section 1.3(a) hereof);
(2) The value of the Loans (as defined in Section 1.4 (a)
hereof), including accrued interest, less all payments on the Loans made by
borrowers to Seller from the date hereof to the Closing Date; and
(3) The face amount of the Coins and Currency at the
Branch.
(b) In addition, Purchaser shall assume, as of the Effective Date,
all of the duties, obligations and liabilities of Seller relating to the Safe
Deposit Leases and the Deposit Liabilities (including all accrued interest
relating thereto); provided, that any cash items paid by Seller and not cleared
prior to the Effective Date shall be the responsibility of Seller, subject to
the terms of Section 1.3 below.
(c) Seller shall prepare a balance sheet (the "Pre-Closing Balance
Sheet") in accordance with generally accepted accounting principles consistently
applied ("GAAP") as of a date not earlier than 30 days prior to the Effective
Date (the "Pre-Closing Balance Sheet Date") reflecting the assets to be sold and
assigned hereunder and the liabilities to be transferred and assumed hereunder.
Seller agrees to pay to Purchaser at the Closing (as defined in Section 2.1
hereof), in immediately available funds, the excess amount, if any, of the
amount of Deposit Liabilities assumed by Purchaser pursuant to subsection (b)
above as reflected by the Pre-Closing Balance Sheet over the aggregate purchase
price computed in accordance with subsection (a) above, as reflected by the
Pre-Closing Balance Sheet. Purchaser agrees to pay Seller at the Closing, in
immediately available funds, the excess, if any, of the aggregate purchase price
computed in accordance with subsection (a) above, as reflected by the
Pre-Closing Balance Sheet over the amount of Deposit Liabilities assumed by
Purchaser pursuant to subsection (b) above as reflected by the Pre-Closing
Balance Sheet. Amounts paid at Closing shall be subject to subsequent adjustment
based on the Post-Closing Balance Sheet (as defined in Section 2.3 hereof).
Section 1.3. Deposit Liabilities.
(a) "Deposit Liabilities" shall mean all of Seller's duties,
obligations and liabilities relating to the deposit accounts, including
Individual Retirement Accounts, located at the Branch as of the Effective Date.
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(b) Except for those liabilities and obligations specifically
assumed by Purchaser under 1.2(b) above, Purchaser is not assuming any other
liabilities or obligations. Liabilities not assumed include, but are not limited
to, the following:
(1) Seller's cashier checks, letters of credit, money
orders, interest checks and expense checks issued prior to closing, consignments
of U. S. Government "E" and "EE" bonds and any and all traveler's checks;
(2) Liability or obligations with respect to any
litigation, suits, claims, demands or governmental proceedings;
(3) Deposit accounts associated with lines of credit
where the line of credit is excluded in accordance with Section 1.4(a); or
(4) Deposit accounts associated with qualified retirement
plans where Seller is the trustee of such plan or the sponsor of a prototype
plan used by such plan.
(c) Purchaser agrees to pay in accordance with law and customary
banking practices all properly drawn and presented checks, drafts and withdrawal
orders presented to Purchaser by mail, over the counter or through the check
clearing system of the banking industry, by depositors of the accounts assumed,
whether drawn on the checks, withdrawal or draft forms provided by Seller or by
Purchaser, and in all other respects to discharge, in the usual course of the
banking business, the duties and obligations of Seller with respect to the
balances due and owing to the depositors whose accounts are assumed by
Purchaser.
(d) If, after the Effective Date, any depositor, instead of
accepting the obligation of Purchaser to pay the Deposit Liabilities assumed,
shall demand payment from Seller for all or any part of any such assumed Deposit
Liabilities, Seller shall not be liable or responsible for making such payment.
Seller and Purchaser shall make arrangements to provide for the daily settlement
with immediately available funds by Purchaser of checks, drafts, withdrawal
orders, returns and other items presented to and paid by Seller within 60 days
after the Effective Date and drawn on or chargeable to accounts that have been
assumed by Purchaser.
(e) Purchaser shall (i) assign new account numbers to depositors
of assumed accounts, if needed, in the sole discretion of Purchaser, (ii) notify
such depositors, on or before the Effective Date, in a form and on a date
mutually acceptable to Seller and Purchaser, of Purchaser's assumption of
Deposit Liabilities, and (iii) furnish such depositors with checks on the forms
of Purchaser and with instructions to utilize Purchaser's checks and to destroy
unused check, draft and withdrawal order forms of Seller. (If Purchaser so
elects, Purchaser may offer to buy from such depositors their unused Seller
check, draft and withdrawal order forms.) In addition, Seller will notify its
affected customers by letter of the pending assignment of Seller's deposit
accounts to Purchaser, which notice shall be at Seller's cost and expense and
shall be in a form mutually agreeable to Seller and Purchaser. Seller shall
approve any correspondence of Purchaser with the customers of the Branch prior
to the Effective Date which approval shall not be unreasonably withheld.
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(f) Purchaser shall pay promptly to Seller an amount equivalent to
the amount of any checks, drafts or withdrawal orders credited to an assumed
account as of the Effective Date that are returned to Seller after the Effective
Date.
(g) On and after the Effective Date, Purchaser will assume and
discharge Seller's duties and obligations in accordance with the terms and
conditions and laws, rules and regulations that apply to the certificates,
accounts and other Deposit Liabilities assumed under this Agreement.
(h) On and after the Effective Date, Purchaser will maintain and
safeguard in accordance with applicable law and sound banking practices all
account documents, deposit contracts, signature cards, deposit slips, canceled
items and other records related to the Deposit Liabilities assumed under this
Agreement, subject to Seller's right of access to such records as provided in
this Agreement.
(i) Seller will render a final statement to each depositor of an
account assumed under this Agreement as to transactions occurring through the
Effective Date and will comply with all laws, rules and regulations regarding
tax reporting of transactions of such accounts through the Effective Date.
Seller will not impose periodic fees or blanket charges in connection with such
final statements.
(j) As of the Effective Date, Seller, at its expense, will notify
all Automated Clearing House ("ACH") originators of the transfers and
assumptions made pursuant to the Agreement. For a period of 90 days beginning on
the Effective Date, Seller will honor all ACH items related to accounts assumed
under this Agreement which are mistakenly routed or presented to Seller. Seller
will make no charge to Purchaser for honoring such items. Items mistakenly
routed or presented after the 90-day period should be returned to the presenting
party.
Section 1.4. Loans Transferred.
(a) Seller will transfer to Purchaser on the Effective Date,
subject to the terms and conditions of this Agreement, all of Seller's right,
title and interest in (including collateral relating thereto) performing loans
maintained, serviced and listed in Seller's general ledger as loans of the
Branch (collectively the "Loans") including those set forth on Exhibit
1.4(a)(1); provided, that the Loans do not include the loans listed on Exhibit
1.4(a)(2) which will remain the property of Seller.
(b) Purchaser will become the beneficiary of credit life insurance
written on direct consumer installment loans.
(c) In connection with the transfer of any Loans requiring notice
to the borrower, Purchaser and Seller agree to comply with all notice and
reporting requirements of the Loan documents or of any law or regulation.
(d) All Loans transferred to Purchaser shall be valued at their
Net Book Value as
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reflected on the financial statements of Seller prepared in accordance with GAAP
as of the Effective Date, such value to include accrued interest.
(e) On and after the Effective Date, Purchaser will be responsible
for maintaining and safeguarding all Loan files, documents and records related
to the Loans in accordance with applicable law and sound banking practices.
(f) If the balance due on any Loan purchased pursuant to this
Section 1. 4 has been reduced by Seller as a result of a payment by check
received prior to the Effective Date, which item is returned after the Effective
Date, the asset value represented by the Loan transferred shall be
correspondingly increased and an amount in cash equal to such increase shall be
paid by Purchaser to Seller promptly upon demand.
(g) The standard "dragnet" provisions of security documents which
secure or are contained in other promissory notes made or held by Seller not
constituting the Loans being acquired by Purchaser shall not reach collateral
for a Loan transferred to Purchaser hereunder.
Section 1.5. Safe Deposit Business.
(a) On and after the Effective Date, Purchaser will assume and
discharge Seller's obligations with respect to the safe deposit box business at
the Branch in accordance with the terms and conditions of contracts or rental
agreements related to such business, and Purchaser will maintain all facilities
reasonably necessary for the use of such safe deposit boxes by persons entitled
to use them.
(b) On and after the Effective Date, Purchaser shall maintain and
safeguard the records related to such safe deposit box business, and Purchaser
shall be responsible for granting access to and protecting the contents of safe
deposit boxes at the Branch.
Section 1.6. Employee Matters.
(a) Purchaser shall exercise its best efforts to hire all
employees employed by Seller at the Branch at the Effective Date (the
"Employees"), in their then current functional positions at each Branch with
remuneration not less than current levels and benefits generally equivalent to
current levels. Employees shall receive credit for their prior service with
Seller under Purchaser's benefit plans and policies, including its vacation and
sick leave policies. As of the Effective Date, the Employees and their
dependents, if any, previously covered under Seller's health insurance plan
shall be covered under Purchaser's health insurance plan without being subject
to any preexisting condition limitations or exclusions provided such Employees
have been employed by Seller for 12 consecutive months prior to the Effective
Date except those excluded under Seller's health insurance plan.
(b) Seller makes no representations or warranties about whether
any of the Employees will remain employed at the Branch after the Effective
Date. Seller will use its best efforts to maintain the Employees as employees of
Seller at the Branch until the Effective Date. Any
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Employee whose employment shall be terminated for any reason prior to the
Effective Date or who shall elect not to be an employee of Purchaser shall be
dealt with by Seller in its sole and absolute discretion. Seller agrees that,
for a period of 24 months after the Effective Date, it will not solicit for
employment any Employee who remains employed by Purchaser.
(c) No employee of the Branch is a third party beneficiary of this
Agreement.
Section 1.7. Records and Data Processing.
(a) On and after the Effective Date, Purchaser shall become
responsible for maintaining the files, documents and records referred to in this
Agreement. Purchaser will preserve and safekeep them as required by applicable
law and sound banking practice for the joint benefit of Seller and Purchaser.
After the Effective Date, Purchaser will permit Seller and its representatives,
for reasonable cause, at reasonable times and upon reasonable notice and at
Seller's expense, to examine, inspect, copy and reproduce any such files,
documents or records as Seller deems reasonably necessary.
(b) On and after the Effective Date, Seller will permit Purchaser
and its representatives, for reasonable cause, at reasonable times and upon
reasonable notice and at Purchaser's expense, to examine, inspect, copy and
reproduce files, documents or records retained by Seller regarding the assets
and liabilities transferred under this Agreement as Purchaser deems reasonably
necessary.
Section 1.8. Security.
On and after the Effective Date, Purchaser shall be solely responsible
for the security of and insurance on all persons and personal property located
in or about the Branch except such real and personal property leased by
Purchaser from Seller as set forth in Section 2.2(b)(i) of this Agreement.
Section 1.9. Taxes and Fees; Proration of Certain Expenses; Allocation Form
8594.
(a) Purchaser shall not be responsible for, or have any liability
with respect to, sales, transfer, income or similar taxes arising out of this
transaction, if any, and Seller agrees that it shall pay, or represents that it
has paid, in a timely manner any and all such taxes. Purchaser shall not be
responsible for any income tax liability of Seller arising from the business or
operations of the Branch on or before the Effective Date, and Seller shall not
be responsible for any tax liabilities of Purchaser arising from the business or
operations of the Branch after the Effective Date. Utility payments, telephone
charges, salaries, deposit insurance premiums, other ordinary operating expenses
not covered by the Lease of the Branch and other expenses related to the
liabilities assumed or assets purchased hereunder shall be prorated between the
parties as of the Effective Date. To the extent any such item has been prepaid
by Seller for a period extending beyond the Effective Date, there shall be a
proportionate monetary adjustment in favor of Seller.
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(b) Seller and Purchaser shall allocate the total consideration
paid pursuant to this Agreement, including the deposit base intangible asset and
other identifiable intangible assets acquired by Purchaser pursuant to this
Agreement, in accordance with Section 1060 of the Internal Revenue Code of 1986,
as amended. Accordingly, within 120 days after the Closing, Seller shall provide
Purchaser copies of the form 8594 and any required exhibits thereto (the "Asset
Acquisition Statement") setting forth the allocation of the total consideration.
Within 20 days after receipt of the Asset Acquisition Statement (or any proposed
revision thereof required to report any updated information), Purchaser shall
propose any changes to Seller or shall indicate its concurrence with the Asset
Acquisition Statement which concurrence shall not be unreasonably withheld.
Seller and Purchaser shall endeavor in good faith to resolve any differences
within 20 days after Seller's receipt of Purchaser's notice of any proposed
changes. The parties agree to file the Asset Acquisition Statement with their
respective federal income tax returns in accordance with the instructions to
Form 8594.
ARTICLE II
CLOSING AND EFFECTIVE DATE
Section 2.1. Dates.
The purchase of assets and assumption of liabilities provided for in
this Agreement shall occur at a closing (the "Closing") to be held at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, at 10:00 a.m. local time within 31 business days
following the date of all approvals by regulatory agencies and after all
statutory waiting periods have expired, or at such other place, time or date on
which the parties shall mutually agree. The effective date of this Agreement
(the "Effective Date") shall be 6:00 p.m. local time on the business day on
which the Closing occurs.
Section 2.2. Closing.
(a) All actions taken and documents delivered at the Closing shall
be deemed to have been taken and executed simultaneously, and no action shall be
deemed taken nor any document delivered until all have been taken and delivered.
(b) At the Closing, subject to all the terms and conditions of
this Agreement, Seller shall deliver to Purchaser, at the Branch:
(1) A 12 month lease duly executed by Seller of the
Branch's premises, including furniture, fixtures and equipment located at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ at a rate of $15,000 per month, in
substantially the form attached hereto as Exhibit 2.2(b)(1) (the "Lease");
(2) A limited warranty ▇▇▇▇ of sale, in substantially the
form attached hereto as Exhibit 2.2(b)(2) (the "▇▇▇▇ of Sale"), transferring to
Purchaser all of Seller's interest in the Loans;
(3) An Assignment and Assumption Agreement, in
substantially the form attached hereto as Exhibit 2.2(b)(3) (the "Assignment and
Assumption Agreement"), assigning Seller's interest in the Safe Deposit Leases,
and in the Deposit Liabilities);
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(4) Consents from third persons that are required to
effect the assignments set forth in the Assignment and Assumption Agreement;
(5) Seller's keys to the safe deposit boxes and Seller's
records related to the safe deposit box business at the Branch;
(6) Seller's files and records related to and evidencing
the Loans;
(7) Seller's records related to the deposit accounts
assumed by Purchaser;
(8) Immediately available funds in the net amount shown
as owing to Purchaser by Seller on the Closing Statement, if any;
(9) The Coins and Currency;
(10) Assignments in recordable form of the documents which
collateralize the loans transferred pursuant to Section 1.4;
(11) Such of the other assets to be purchased as shall be
capable of physical delivery;
(12) A certificate of a proper officer of Seller, dated
the Effective Date, certifying to the fulfillment of all conditions which are
the obligation of Seller and that all of the representations and warranties of
Seller set forth in this Agreement remain true and correct in all material
respects on the Effective Date;
(13) Certified copies of (A) the Articles of Incorporation
and Bylaws of Seller and (B) a resolution of the Board of Directors of Seller,
or its Executive Committee, approving the sale of the Branch contemplated
hereby;
(14) Such certificates and other documents as Purchaser
and its counsel may reasonably require to evidence the receipt by Seller of all
necessary corporate and regulatory authorizations and approvals for the
consummation of the transactions provided for in this Agreement;
(15) A Closing Statement, substantially in the form
attached hereto as Exhibit 2.2(b)(4) (the "Closing Statement"); and
(16) Seller shall prepare at its expense and deliver to
Purchaser magnetic media records in Seller's field format as of the Closing
Date, which records shall contain the information related to the items described
in subsections (b)(6) and (b)(7) above. Such updated records shall be delivered
at such time after Closing as agreed to by the parties.
(c) At the Closing, subject to all the terms and conditions of
this Agreement, Purchaser shall deliver to Seller:
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(1) The Lease duly executed by Purchaser;
(2) The Assignment and Assumption Agreement;
(3) A certificate and receipt acknowledging the delivery
and receipt of possession of the property and records referred to in this
Agreement;
(4) Immediately available funds in the net amount shown
as owing to Seller by Purchaser on the Closing Statement, if any;
(5) A certificate of a proper officer of Purchaser, dated
the Effective Date, certifying to the fulfillment of all conditions which are
the obligation of Purchaser and that all of the representations and warranties
of Purchaser set forth in this Agreement remain true and correct in all material
respects on the Effective Date;
(6) Certified copies of (A) the Articles of Incorporation
and Bylaws of the Purchaser and (B) a resolution by the Board of Directors, or
its Executive Committee, of Purchaser approving the purchase of the Branch
contemplated hereby;
(7) Such certificates and other documents as Seller and
its counsel may reasonably require to evidence the receipt of Purchaser of all
necessary corporate and regulatory authorizations and approvals for the
consummation of the transactions provided for in this Agreement; and
(8) The Closing Statement.
(d) All instruments, agreements and certificates described in this
Section 2.2 shall be in form and substance reasonably satisfactory to the
parties' respective legal counsel.
Section 2.3. Post-Closing Adjustments.
(a) Not later than 15 business days after the Effective Date (the
"Post-Closing Balance Sheet Delivery Date"), Seller shall deliver to Purchaser a
balance sheet dated as of the Effective Date and prepared in accordance with
GAAP reflecting the assets sold and assigned and the liabilities transferred and
assumed hereunder (the "Post-Closing Balance Sheet"). Additionally, Seller shall
deliver to Purchaser a list of loans purchased, individually identified by
account number, which list shall be appended to the ▇▇▇▇ of Sale. Seller shall
afford Purchaser and its accountants and attorneys the opportunity to review all
work papers and documentation used by Seller in preparing the Post-Closing
Balance Sheet. Within 15 business days following the Post-Closing Balance Sheet
Delivery Date (the "Adjustment Payment Date"), Seller or Purchaser, as the case
may be, shall effect the transfer of any funds as may be necessary to reflect
changes in such assets and liabilities between the Pre-Closing Balance Sheet and
the Post-Closing Balance Sheet together with interest thereon computed from the
Effective Date to the Adjustment Payment Date at the applicable Federal Funds
Rate (as hereinafter defined).
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(b) In the event that a dispute arises as to the appropriate
amounts to be paid to either party on the Adjustment Payment Date, each party
shall pay to the other on such Adjustment Payment Date all amounts other than
those as to which a dispute exists. Any disputed amounts retained by a party
which are later found to be due to the other party shall be paid to such other
party promptly upon resolution with interest thereon from the Adjustment Payment
Date to the date paid at Federal Funds Rate.
(c) The Federal Funds Rate shall be the weighted mean of the high
and low rates quoted for Federal Funds in the Money Rates Column of The Wall
Street Journal adjusted as such mean may increase or decrease during the period
between the Effective Date and the Adjustment Payment Date.
ARTICLE III
INDEMNIFICATION
Section 3.1. Seller's Indemnification of Purchaser.
Seller shall indemnify, hold harmless and defend Purchaser from and
against any breach by Seller of any representation or warranty contained herein
and all claims, losses, liabilities, demands and obligations, including
reasonable attorneys' fees actually incurred and expenses, arising out of any
actions, suits or proceedings commenced prior to the Effective Date (other than
proceedings to prevent or limit the consummation of this transaction) relating
to operations at the Branch; and, except as otherwise provided in this
Agreement, Seller shall further indemnify, hold harmless and defend Purchaser
from and against all claims, losses, liabilities, demands and obligations,
including reasonable attorneys' fees actually incurred and expenses, real estate
taxes, intangibles and franchise taxes, sales and use taxes, social security and
unemployment taxes, all accounts payable and operating expenses (including
salaries, rents and utility charges) incurred by Seller prior to the Effective
Date and which are claimed or demanded on or after the Effective Date, or which
arise out of any actions, suits or proceedings commenced on or after the
Effective Date and which relate to operations at the Branch prior to the
Effective Date.
Section 3.2. Claims for Indemnity.
(a) A claim for indemnity under Section 3.1 of this Agreement may
be made by Purchaser at any time prior to 60 months after the Effective Date by
the giving of written notice thereof to Seller. Such written notice shall set
forth in reasonable detail the basis upon which such claim for indemnity is
made. In the event that any such claim is made within such prescribed 60 month
period, the indemnity relating to such claim shall survive until such claim is
resolved. Claims not made within such 60 month-period shall cease and no
indemnity shall be made therefor.
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(b) In the event that any person or entity not a party to this
Agreement shall make any demand or claim or file or threaten to file any
lawsuit, which demand, claim or lawsuit may result in any liability, damage or
loss to Purchaser of the kind for which Purchaser is entitled to indemnification
pursuant to Section 3.1 hereof, then, after written notice is provided by
Purchaser to Seller of such demand, claim or lawsuit, Seller shall have the
option, at its cost and expense, to retain counsel for Purchaser to defend any
such demand, claim or lawsuit. In the event that Seller shall fail to respond
within five days after receipt of such notice of any such demand, claim or
lawsuit, then Purchaser shall retain counsel and conduct the defense of such
demand, claim or lawsuit as it may in its discretion deem proper, at the cost
and expense of Seller. In effecting the settlement of any such demand, claim or
lawsuit, Purchaser shall act in good faith, shall consult with Seller and shall
enter into only such settlement as Seller shall approve (which will be implied
if Seller does not respond within ten days after its receipt of the notice of
such settlement offer).
Section 3.3. Threshold for Indemnification.
Notwithstanding anything to the contrary contained in this Article III,
no indemnification shall be required to be made by Seller until the aggregate
amount of all such claims by Purchaser exceeds $10,000. Once such aggregate
amount exceeds $10,000, Purchaser shall thereupon be entitled to indemnification
for all amounts of such claims.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows, which
representations and warranties shall survive the Effective Date for a period of
36 months:
Section 4.1. Corporate Organization.
Seller is a state chartered bank, duly organized, validly existing and
in good standing under the laws of the State of Georgia. Seller has the
corporate power and authority to own its properties, to carry on its business as
currently conducted and to effect the transactions contemplated herein.
Section 4.2. No Violation.
The Branch has been operated in all material respects in accordance
with applicable laws, rules and regulations. Neither the execution and delivery
of this Agreement, nor the consummation of the transactions contemplated herein,
will violate or conflict with (i) Seller's Articles of Incorporation or Bylaws,
(ii) any material provision of any material agreement or any other material
restriction of any kind to which Seller is a party or by which Seller is bound,
(iii) any material statute, law, decree, regulation or order of any governmental
authority, or (iv) any material provision which will result in a default under,
or which cause the acceleration of the maturity of, any material obligation or
loan to which Seller is a party.
11
Section 4.3. Corporate Authority.
The execution and delivery of this Agreement, and the consummation of
the transactions contemplated herein, have been duly authorized by Seller's
Board of Directors (or the Executive Committee thereof). No further corporate
authorization is necessary for Seller to consummate the transactions
contemplated hereunder.
Section 4.4. Enforceable Agreement.
This Agreement has been duly authorized, executed and delivered by
Seller and is the legal, valid and binding agreement of Seller, enforceable in
accordance with its terms.
Section 4.5. Brokers.
All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Seller and Purchaser, and there has
been no participation or intervention by any other person, firm or corporation
employed or engaged by or on behalf of Seller in such a manner as to give rise
to any valid claim against Seller or Purchaser for a brokerage commission,
finder's fee or like commission.
Section 4.6. Certain Loan Representations.
Seller represents and warrants to Purchaser as of the date of this
Agreement with respect to each of the Loans as follows: (i) all Loans and all
related documentation, including but not limited to promissory notes, loan
agreements, and security interests, have been made and executed in the ordinary
course of business, contain genuine signatures of the named parties thereto, and
are in full force and effect; (ii) all payments of principal and/or interest on
the Loans are current (not more than 30 days past due as to principal and/or
interest); (iii) to the best of Seller's knowledge and belief, none of the
obligors, including borrowers and or guarantors, on any Loan is involved in any
pending case or proceeding under any provision of the United States Bankruptcy
Code, (iv) no material disputes, offsets, counterclaims or other discrepancies
exist, are pending, have been threatened in writing, or apply to any of the
Loans, none of the Loans is the subject of any pending or written threats of
litigation, have been classified by any bank regulator or outside or internal
auditor as "loss," "doubtful," "substandard" or "special mention" or have been
placed on non-accrual by Seller on its books; (v) the rate of interest and all
other fees, commissions, and charges imposed on each Loan are duly authorized by
law and not in excess of any maximum allowed by applicable law; (vi) all
requirements of applicable state or federal laws or regulations (including,
without limitation, the Truth-in-Lending Act and the Equal Credit Opportunity
Act and Regulations Z and B promulgated thereunder) have been properly and
timely complied with in connection with each such Loan; and (vii) each security
instrument (including without limitation, each deed of trust, deed to secure
debt, mortgage, assignment, pledge and security agreement) taken or granted in
connection with any such Loan creates a valid and enforceable security interest
in the property described therein which has been duly perfected and has the
priority reflected in the loan file relating to such Loan subject as to
enforceability to the subsequent application of bankruptcy or similar laws.
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Section 4.7. [Reserved].
Section 4.8. Absence of Material Adverse Change.
Since June 30, 2001 and through the Effective Date, except as
specifically contemplated by this Agreement, there has not been (i) any change
in the condition (financial or otherwise), results of operations, business,
prospects, assets, or liabilities of either Seller or the Branch or with respect
to the manner in which Seller conducts its business or operations that could
result in a material adverse effect on either Seller or the Branch; (ii) any
breach, default, or termination under any material agreement by Seller; (iii)
any increase in the benefits under, or the establishment or amendment of, any
bonus, insurance, severance, deferred compensation, pension, retirement, profit
sharing, or other employee benefit plan, or any increase in the compensation
payable or to become payable to officers, managers or employees of the Branch;
(iv) the termination of employment of any officer, manager, or employee of the
Branch; or (v) any other transaction, agreement or commitment entered into or
affecting the Branch's business, operations, assets, or liabilities except in
the ordinary course of business.
Section 4.9. Litigation.
There are no pending or, to Seller's knowledge, threatened, lawsuits,
administrative proceedings, arbitrations, reviews, or formal or informal
complaints or investigations by any individual, corporation, partnership,
governmental body, or other entity against or relating to the Branch or any of
its officers, managers or employees that could have a material adverse effect on
Seller or the Branch and its business and operations.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows, which
representations and warranties shall survive the Effective Date for a period of
36 months:
Section 5.1. Corporate Organization.
Purchaser is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Georgia. Purchaser has the
corporate power and authority to own the properties being acquired, and upon
approval of the formation of its contemplated wholly-owned commercial bank
subsidiary by state and federal regulators, to assume the liabilities being
transferred and to effect the transactions contemplated herein.
Section 5.2. No Violation.
Upon approval of the formation of Purchaser's wholly-owned commercial
bank subsidiary by state and federal regulators, neither the execution and
delivery of this Agreement will violate or conflict with (i) the Articles of
Incorporation or Bylaws of Purchaser, (ii) any material provision of any
material agreement or any other material restriction of any kind to
13
which Purchaser is a party or by which Purchaser is bound, (iii) any material
statute, law, decree, regulation or order of any governmental authority, or (iv)
any material provision which will result in a default under, or cause the
acceleration of the maturity of, any material obligation or loan to which
Purchaser is a party.
Section 5.3. Corporate Authority.
The execution and delivery of this Agreement, and the consummation of
the transactions contemplated herein, have been duly authorized by the Board of
Directors (or Executive Committee) of Purchaser. No further corporate
authorization on the part of Purchaser is necessary to consummate the
transactions contemplated hereunder.
Section 5.4. Enforceable Agreement.
This Agreement has been duly, authorized, executed and delivered by
Purchaser and is the legal, valid and binding agreement of Purchaser enforceable
in accordance with its terms.
Section 5.5. Brokers.
All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Seller and Purchaser, and there has
been no participation or intervention by any other person, firm or corporation
employed or engaged by or on behalf of Purchaser in such a manner as to give
rise to any valid claim against Seller or Purchaser for a brokerage commission,
finder's fee or like commission.
ARTICLE VI
OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE DATE
Section 6.1. Full Access.
Seller shall afford to the officers and authorized representatives of
Purchaser, upon prior notice and subject to Seller's normal security
requirements, access to the properties, books and records pertaining to the
Branch in order that Purchaser may have full opportunity to make reasonable
investigations, at reasonable times without interfering with the normal business
and operations of the Branch, or the affairs of Seller relating to the Branch.
The officers of Seller shall furnish Purchaser with such additional financial
and operating data and other information as to its business and properties at
the Branch, or where otherwise located, as Purchaser may, from time to time,
reasonably request and as shall be available, including, without limitation,
information required for inclusion in all governmental applications necessary to
effect this transaction. Nothing in this Section 6.1 shall require Seller to
breach any obligation of confidentiality or to reveal any proprietary
information, trade secrets or marketing or strategic plans. Records, including
credit information, relating to the Loans will be made available for review by
Purchaser no later than ten days after the execution of this Agreement.
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Section 6.2. Applications for Approval to Effect Purchase of Assets and
Assumption of Liabilities.
Within 30 days following the execution of this Agreement, Purchaser
shall prepare and file applications required by law with the appropriate
regulatory authorities for approval to purchase and assume the aforesaid assets
and liabilities to establish a branch bank at the location of the Branch, and to
effect in all other respects the transactions contemplated herein. Purchaser
shall process such applications in a diligent manner and on a priority basis and
to provide Seller promptly with a copy of such applications as filed (except for
any confidential portions thereof) and all material notices, orders, opinions,
correspondence and other documents with respect thereto, and to use its best
efforts to obtain all necessary regulatory approvals on the date hereof.
Purchaser shall promptly notify Seller upon receipt by Purchaser of notification
of any significant development with respect to any application or that any
application provided for hereunder has been denied. Seller shall provide such
assistance and information to Purchaser as shall be reasonably necessary for
Purchaser to comply with the requirements of the applicable regulatory
authorities.
Section 6.3. Conduct of Business; Maintenance of Properties.
From the date hereof until the Effective Date, Seller covenants that it
will:
(a) Carry on the business of the Branch substantially in the same
manner as on the date hereof, use all reasonable efforts to preserve intact its
current business organization and preserve its business relationships with
depositors, customers and others having business relationships with it and whose
accounts will be retained at the Branch;
(b) Cooperate with and assist Purchaser in assuring the orderly
transition of the business of the Branch to Purchaser from Seller;
(c) Maintain the Branch in its current condition, ordinary wear
and tear excepted; and
(d) Not change its deposit rates and terms for customers of the
Branch other than routine changes consistently followed by its other branches
within the State of Georgia.
Section 6.4. No Solicitation by Seller.
For a period of 60 months after the Effective Date, Seller shall not:
(a) Specifically target and solicit customers of the Branch
utilizing any customer or mailing list which consists primarily of customers of
the Branch; provided, however, these restrictions shall not restrict general
mass mailings, statement stuffers and other similar communications directed to
all the current customers of Seller or Seller's affiliates, or to the public or
newspaper, radio or television advertisements of a general nature or otherwise
prevent Seller from taking such actions as may be required to comply with any
applicable federal or state laws, rules or regulations; or
15
(b) Own or operate, directly or indirectly, a facility or
facilities which accepts deposits or extends credit or both in Chatham County,
Georgia.
Notwithstanding, the foregoing, such restrictions shall be void and of
no further effect in the event Seller or substantially all of its assets are
acquired by an entity with then existing commercial banking operations in
Chatham County, Georgia.
Section 6.5. Further Actions.
The parties hereto shall execute and deliver such instruments and take
such other actions as the other party may reasonably require in order to carry
out the intent of this Agreement.
Section 6.6. Fees and Expenses.
Purchaser shall be responsible for the costs of its attorneys' and
accountants' fees and expenses, recording costs, and other expenses arising in
connection therewith. Seller shall be responsible for its attorneys' and
accountants' fees and expenses, transfer fees, and documentary stamps, related
to this transaction.
Section 6.7. Breaches with Third Parties.
Nothing in this Agreement shall constitute an agreement to assign or
the assignment of any material claim, contract, license, lease, commitment,
sales order or purchase order or any material claim or right or any benefit
arising thereunder or resulting therefrom if an assignment or an attempted
assignment thereof, without the consent of a third party thereto, would
constitute a breach thereof or materially affect the rights of Purchaser or
Seller thereunder; and any transfer or assignment to the Purchaser or Seller of
any material 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.
Section 6.8. Insurance.
On the Effective Date, Seller will continue its insurance coverage
maintained in connection with the Branch and the activities conducted thereon.
Purchaser shall be responsible for insurance protection, other than fire and
extended coverage, for the activities conducted thereon immediately following
the Effective Date. Pending the Closing, risk of loss shall be the
responsibility of Seller.
Section 6.9. Public Announcements.
Seller and Purchaser agree that, from the date hereof, neither shall
make any public announcement or public comment regarding this Agreement or the
transactions contemplated herein without first consulting with the other party
hereto and reaching an agreement upon the substance and timing of such
announcement or comment. Seller acknowledges that the transaction is a material
transaction as to Purchaser so as to result in the necessity of an
16
immediate public announcement by it. Further, Seller and Purchaser acknowledge
the sensitivity of this transaction to the Employees and no announcements or
communications with these Employees shall be made without the prior approval of
Seller.
Section 6.10. Further Negotiations.
Each party recognizes and acknowledges that between the date of this
Agreement and the Effective Date, each will expend a great deal of time and
expense in proceeding in good faith to close the transaction. Accordingly,
neither Purchaser nor Seller will conduct, initiate or continue any discussions
or negotiations or enter into any understanding, arrangements or agreements with
any other party or entity in connection with the matters set forth herein prior
to the Effective Date.
Section 6.11. Change of Name, Etc.
Promptly after the Effective Date, Purchaser will (i) change the name
on all documents and facilities relating to the Branch to Purchaser's name, (ii)
notify all customers of the Branch as of the Effective Date of the consummation
of the transactions contemplated by this Agreement, and (iii) provide all
appropriate notices to the FDIC, the Georgia Department of Banking and Finance
and any other appropriate regulatory authorities required from Purchaser as a
result of the consummation of these transactions. As soon as practicable and, in
any event, no later than 30 calendar days after the Effective Date, Purchaser
will issue new checks, draft forms, loan coupon books and deposit slips
reflecting its transit and routing number to customers of the Branch able to
access accounts through either checks or drafts. Purchaser shall use its best
efforts to encourage these customers to begin using these checks and cease using
checks bearing Seller's name.
Section 6.12. Employment of Branch Manager.
Seller has employed ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as Branch Manager at a compensation
package acceptable to Purchaser. ▇▇. ▇▇▇▇▇ shall have such operational authority
typically granted to Seller's other branch managers and shall continue in the
employ of Seller up to and including the Closing Date.
ARTICLE VII
CONDITIONS TO PURCHASER'S OBLIGATIONS
The obligation of Purchaser to complete the transactions contemplated
in this Agreement are conditioned upon fulfillment, on or before the Effective
Date, of each of the following conditions:
Section 7.1. Representations and Warranties True.
The representations and warranties made by Seller in this Agreement
shall be true in all material respects on and as of the Effective Date as though
such representations and warranties
17
were made at and as of such time, except for any changes permitted by the terms
hereof or consented to by Purchaser.
Section 7.2. Obligations Performed.
Seller shall (i) deliver or make available to Purchaser those items
required by Section 2.2 hereof and (ii) perform and comply in all material
respects with all obligations and agreements required by this Agreement to be
performed or complied with by it prior to or on the Effective Date.
Section 7.3. No Adverse Litigation.
On the Effective Date, no action, suit or proceeding shall be pending
or threatened against Seller which is reasonably likely to (i) materially and
adversely affect the business, properties and assets of the Branch, or (ii)
materially and adversely affect the transactions contemplated herein.
Section 7.4. Regulatory Approval.
Purchaser shall have received all necessary regulatory approvals of the
transactions provided in this Agreement, a Permit to Begin Business from the
Georgia Department of Banking and Finance regarding its contemplated bank
subsidiary, all notice and waiting periods required by law to pass shall have
passed, no proceeding to enjoin, restrain, prohibit or invalidate such
transactions shall have been instituted or threatened, and any conditions of any
regulatory approval shall have been met.
ARTICLE VIII
CONDITIONS TO SELLER'S OBLIGATIONS
The obligation of Seller to complete the transactions contemplated in
this Agreement are conditioned upon fulfillment, on or before the Effective
Date, of each of the following conditions:
Section 8.1. Representations and Warranties True.
The representations and warranties made by Purchaser in this Agreement
shall be true in all material respects at and as of the Effective Date as though
such representations and warranties were made at and as of such time, except for
any changes permitted by the terms hereof or consented to by Seller.
Section 8.2. Obligations Performed.
Purchaser shall (i) deliver to Seller those items required by Section
2.2 hereof, and (ii) perform and comply in all material respects with all
obligations and agreements required by this Agreement to be performed or
complied with by it prior to or on the Effective Date.
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Section 8.3. No Adverse Litigation.
On the Effective Date, no action, suit or proceeding shall be pending
or threatened against Purchaser or Seller which might materially and adversely
affect the transactions contemplated hereunder.
Section 8.4. Regulatory Approval.
Purchaser shall have received from the appropriate regulatory
authorities approval of the transactions contemplated herein, all notice and
waiting periods required by law to pass shall have passed, no proceeding to
enjoin, restrain, prohibit or invalidate such transactions shall have been
instituted or threatened, and any conditions of any regulatory approval shall
have been met.
ARTICLE IX
TERMINATION
Section 9.1. Methods of Termination.
This Agreement may be terminated in any of the following ways:
(a) by either Purchaser or Seller, in writing 5 days in advance of
such termination, if the Closing has not occurred by January 2, 2002;
(b) at any time on or prior to the Effective Date by the mutual
consent in writing of Purchaser and Seller;
(c) on the Effective Date, by Purchaser in writing if the
conditions set forth in Article VII of this Agreement shall not have been met by
Seller or waived in writing by Purchaser;
(d) on the Effective Date, by Seller in writing if the conditions
set forth in Article VIII of this Agreement shall not have been met by Purchaser
or waived in writing by Seller;
(e) any time on or prior to the Effective Date, by Purchaser or
Seller in writing if the other shall have been in breach of any representation
and warranty in any material respect (as if such representation and warranty had
been made on and as of the date hereof and on the date of the. notice of breach
referred to below), or in breach of any covenant, undertaking or obligation
contained herein, and such breach has not been cured by the earlier of 30 days
after the giving of notice to the breaching party of such breach or the
Effective Date;
(f) by Seller in writing at any time after any applicable
regulatory authority has denied approval of any application of Purchaser for
approval of the transactions contemplated herein; or
(g) in accordance with the termination provisions of Section 9.2
hereof.
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Section 9.2. Procedure Upon Termination.
In the event of termination pursuant to Section 9.1 hereof, and except
as otherwise stated therein, written notice thereof shall be given to the other
party, and this Agreement shall terminate immediately upon receipt of such
notice unless an extension is consented to by the party having the right to
terminate.
If this Agreement is terminated as provided herein,
(a) each party will return all documents, work papers and other
materials of the other party, including photocopies or other duplications
thereof, relating to this transaction, whether obtained before or after the
execution hereof, to the party furnishing the same;
(b) all information received by either party hereto with respect
to the business of the other party (other than information which is a matter of
public knowledge or which has heretofore been published in any publication for
public distribution or filed as public information with any governmental
authority) shall not at any time be used for any business purpose by such party
or disclosed by such party to third persons; and
(c) Seller shall have the right to sell and Purchaser shall be
obligated to purchase any or all of the loans made or approved by Seller to
customers of the Branch provided such loans are approved by the parties and are
made or approved during the period beginning October 1, 2001 and ending on the
date this Agreement is terminated.
Section 9.3. Bust-up Fee.
If prior to the Effective Date, this Agreement is terminated by either
party as a result of the other party's willful breach of such party's
representations, warranties or agreements set forth herein of this Agreement,
such party shall pay to the non-breaching party as its sole and exclusive remedy
resulting from such termination, an amount in cash equal to the sum of: (i) the
reasonable direct costs and expenses incurred by or on behalf of the
non-breaching party in connection with the transactions contemplated by this
Agreement, plus, (ii) the sum of $25,000.00, which sum represents compensation
for the non-breaching party's loss as the result of the transactions
contemplated by this Agreement not being consummated.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. Amendment and Modification.
The parties hereto, by mutual consent of their duly authorized
officers, may amend, modify and supplement this Agreement in such manner as may
be agreed upon by them in writing.
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Section 10.2. Waiver or Extension.
Except with respect to required approvals of the applicable
governmental authorities, either party, by written instrument signed by a duly
authorized officer, may extend the time for the performance of any of the
obligations or other acts of the other party and may waive (i) any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto, or (ii) compliance with any of the undertakings,
obligations, covenants or other acts contained herein.
Section 10.3. Assignment.
This Agreement and all of the provisions hereof shall be binding upon,
and shall inure to the benefit of, the parties hereto and their permitted
assigns, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by either of the parties hereto without
the prior written consent of the other.
Section 10.4. Confidentiality.
Seller and Purchaser covenant and agree that all information received
by either of them with respect to the business of the other (other than
information which is a matter of public knowledge or which has heretofore been
published in any publication for public distribution or which has heretofore or
which is hereafter filed as public information with any governmental authority)
shall not at any time be used for any business purpose or disclosed by such
party to third persons other than such party's employees, representatives or
agents. This covenant and agreement shall survive the consummation of the
transactions contemplated herein.
Section 10.5. Addresses for Notices, Etc.
All notices, requests, demands, consents and other communications
provided for hereunder and under the related documents shall be in writing and
mailed (by registered or certified mail, return receipt requested), telegraphed,
telexed, telecopied or personally delivered (with receipt thereof acknowledged)
to the applicable party at the address indicated below:
If to Seller: E. Bert Register, III, Chief Executive Officer
The Tattnall Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
FAX: 912/▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, PC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: 912/▇▇▇-▇▇▇▇
21
If to Purchaser: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
C&S Bancorporation, Inc.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: 912/▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Bouhan, ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇
FAX: 912/▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
FAX: 404/▇▇▇-▇▇▇▇.
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other party complying as to delivery with the terms
of this Section.
Section 10.6. Counterparts.
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 10.7. Headings.
The headings of the Sections and Articles of this Agreement are
inserted for convenience only and shall not constitute a part thereof.
Section 10.8. Governing Law.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Georgia.
Section 10.9. Sole Agreement.
This Agreement and the exhibits and attachments hereto represent the
sole agreement between the parties hereto respecting the matters addressed
herein and all prior or contemporaneous written or oral proposals, agreements in
principle, representations, warranties and understandings between the parties
are superseded hereby and merged herein.
22
Section 10.10. Expenses.
Except as otherwise provided in this Agreement, all legal, accounting
and other costs and expenses incurred in connection with the execution, delivery
and performance of this Agreement and of the transactions contemplated hereby
shall be borne and paid by the party incurring such costs and expenses, and
neither party shall be obligated for any cost or expense incurred by the other
party.
Section 10.11. Severability.
If any provision of this Agreement is invalid or unenforceable, the
balance of this Agreement shall remain in effect.
Section 10.12. Parties In Interest.
Nothing in this Agreement, express or implied, is intended or shall be
construed to confer upon or give to any person (other than the parties hereto,
their successors and permitted assigns) any rights or remedies under or by
reason of this Agreement, or any term, provision, condition, undertaking,
warranty, representation, indemnity, covenant or agreement contained herein.
[Remainder of page left intentionally blank.]
23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers as of the date first written
above.
"SELLER"
THE TATTNALL BANK
By: /s/ E. Bert Register, III
------------------------------------------
E. Bert Register, III, Chief Executive Officer
"PURCHASER"
C&S BANCORPORATION, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
24