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EXHIBIT 10.2.2
AMENDED AND RESTATED
AGREEMENT
AMONG
XXX XXXXX
RDB FAMILY LIMITED PARTNERSHIP
XXXXXX X. XXX, XX.
J. XXXXXX XXXX
XXXXXX X. XXXXX
XXXX X. XXX
X. XXXXXXXX XXXXXX
AND
XXXXXX X. XXXXX
AS THE AUGUSTA GROUP
AND
GEORGIA-CAROLINA BANCSHARES, INC.
DATED AS OF SEPTEMBER 30, 1998
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TABLE OF CONTENTS
Page
ARTICLE I OFFER FOR SALE OF COMMON STOCK
1.1 Structure of Offering...................................................2
1.2 Regulatory Approval and Proposed Purchase of Common Stock by
Augusta Group......................................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY
2.1 Due Incorporation and Qualification.....................................2
2.2 Outstanding Capital Stock...............................................3
2.3 Options or Other Rights.................................................3
2.4 Title to Common Stock...................................................3
2.5 Authority of the Company................................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE AUGUSTA
GROUP...................................................................3
ARTICLE IV CONTINUED APPOINTMENT OF DIRECTORS AND OFFICERS
4.1 Continued Appointment of Xxxxx X. Xxxxxxxx, Xx. as Chairman
of the Company's Board of Directors.....................................4
4.2 Continued Appointment of Xxxx X. Xxx as Chairman of the Bank's
Board of Directors......................................................4
4.3 Continued Appointment of Xxxxxxx X. Xxxxxxxxx as President and CEO
of the Company..........................................................4
4.4 Continued Appointment of Xxxxxxx Xxxxxx, Xx. as President and CEO
of the Bank.............................................................4
ARTICLE V CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARTIES
5.1 Compliance with Securities Laws.........................................4
5.2 Regulatory Approvals and Filings........................................5
ARTICLE VI MISCELLANEOUS
6.1 Survival of Representations and Warranties..............................5
6.2 Publicity...............................................................5
6.3 Knowledge...............................................................5
6.4 Standard for Representations and Warranties.............................5
6.5 Gender..................................................................5
6.6 Expenses................................................................6
6.7 Entire Agreement........................................................6
(i)
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6.8 Waivers and Consents....................................................6
6.9 Notices.................................................................6
6.10 Rights of Third Parties.................................................8
6.11 Headings................................................................8
6.12 Governing Law...........................................................8
6.13 Parties in Interest.....................................................8
6.14 Counterparts............................................................8
6.15 Severability............................................................8
Exhibit A - Amendment No. 1 to that certain Employment Agreement between the
Bank, the Company and Xxxxxxx X. Xxxxxxxxx
(ii)
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AMENDED AND RESTATED
AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT (the "Agreement"), dated as of the
30th day of September, 1998, is made and entered into by and among XXX XXXXX,
RDB FAMILY LIMITED PARTNERSHIP, XXXXXX X. XXX, XX., J. XXXXXX XXXX, XXXXXX X.
XXXXX, XXXX X. XXX, X. XXXXXXXX XXXXXX, and XXXXXX X. XXXXX (collectively, the
"Augusta Group"), and GEORGIA-CAROLINA BANCSHARES, INC. ("the Company"). Unless
expressly stated otherwise herein, this Agreement shall be deemed to supersede
all prior warranties, representations, covenants and agreements between the
parties hereto.
W I T N E S S E T H :
WHEREAS, the Company is a bank holding company owning one hundred
percent (100%) of the issued and outstanding common stock of First Bank of
Georgia, a Georgia state bank (the "Bank");
WHEREAS, the Company proposes, subject to the terms and conditions
stated in an underwriting agreement (the "Underwriting Agreement"), to issue and
to sell to the underwriters named in Schedule I to the Underwriting Agreement
(the "Underwriters") (i) an aggregate of 430,000 shares of common stock, par
value $.001 per share (the "Common Stock"), of the Company on a firm commitment
basis (the "Firm Shares"), (ii) up to 310,000 shares of the Common Stock that
were subscribed for and subsequently withdrawn by participants in a best efforts
offering conducted by the Company on a standby firm commitment basis (the
"Standby Shares"), and (iii) at the election of the Underwriters, up to 111,000
additional shares of the Common Stock (the "Optional Shares") solely to cover
overallotments, if any (the Firm Shares, the Standby Shares and the Optional
Shares that the Underwriters elect to purchase are collectively referred to as
the "Shares");
WHEREAS, certain members of the Augusta Group desire to purchase the
Common Stock, subject to the review of a prospectus and certain other conditions
as set forth in this Agreement, having an aggregate value greater than or equal
to $560,000; and
WHEREAS, the Augusta Group desires to have certain persons represent
its interests on the Boards of Directors of the Company and the Bank;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto covenant and agree as follows:
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ARTICLE I
OFFER FOR SALE OF COMMON STOCK
1.1 Structure of Offering. (a) On February 19, 1998, the Company's
Registration Statement on Form SB-2 (File No. 333-41547), registering 740,741
shares of the Common Stock in connection with a best efforts offering undertaken
by certain directors and officers of the Company (the "Best Efforts Offering")
was declared effective by the Securities and Exchange Commission (the
"Commission"). The Best Efforts Offering commenced on February 19, 1998 and, as
of August 18, 1998, had resulted in the receipt of subscription funds
("Subscription Funds") for 310,000 shares of the Common Stock from approximately
265 subscribers (the "Initial Subscribers"). As of August 18, 1998, all
Subscription Funds had been deposited into an escrow account.
(b) Although, by its terms, the Best Efforts Offering
could be extended without modification through February 14, 1999, the Company
has elected, prior to that date, to restructure the plan of distribution of the
Best Efforts Offering and to issue and to sell to the Underwriters the Shares.
1.2 Regulatory Approval and Proposed Purchase of Common Stock by
Augusta Group. The Augusta Group shall file all necessary applications and make
such other filings with the appropriate state and federal bank regulatory
agencies as are necessary to approve the purchase of the Common Stock by the
Augusta Group and each of the members thereof, and shall present proof of such
regulatory approval(s) to the Company. Upon the Company's satisfaction that all
necessary regulatory approval(s) have been obtained, and subject to the review
of a prospectus, Xxxxxx X. Xxx, Xx., J. Xxxxxx Xxxx, Xxxx X. Xxx and Xxxxxx X.
Xxxxx shall purchase Common Stock having an aggregate value greater than or
equal to $560,000, each of the aforementioned individuals agreeing to separately
purchase Common Stock having a value of not less than $50,000.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
As an inducement to the Augusta Group to enter into this Agreement and
to consummate the transactions contemplated hereby, and with the knowledge that
the Augusta Group shall rely thereon, the Company, represents and warrants to
the Augusta Group the following as of the date of this Agreement:
2.1 Due Incorporation and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Georgia, and has the corporate power and lawful authority to own
and operate its properties and assets, to carry on its business
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as now being conducted, and to execute and deliver this Agreement and to perform
the terms hereof. The Company has taken all corporate action necessary to
authorize the execution and delivery of this Agreement.
2.2 Outstanding Capital Stock. The Company's authorized, issued
and outstanding capital stock is as disclosed in the Company's Registration
Statement on Form SB-2 (File No. 333-62493) (the "Registration Statement") filed
with the Commission on August 28, 1998. All of the issued and outstanding shares
of the capital stock of the Company are duly authorized and are validly issued,
fully paid and non-assessable from all taxes, liens and charges with respect to
the issue thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue).
2.3 Options or Other Rights. Except as disclosed in the
Registration Statement, there are no outstanding rights, subscriptions,
warrants, conversion rights, calls, unsatisfied preemptive rights, commitments,
options or other agreements or rights of any kind pursuant to which any person
or entity has the right or option to purchase or otherwise to receive from the
Company any shares of the Common Stock or any other security of the Company and
there is no outstanding security of any kind convertible into or redeemable or
exchangeable for any shares of the Common Stock of the Company.
2.4 Title to Common Stock. The Company has full power and
authority to convey free and clear of all liens, encumbrances, equities,
restrictions, claims and obligations of every kind, all of the shares of the
Common Stock contemplated to be issued pursuant to the Registration Statement
and, upon delivery of and payment for such Common Stock as herein provided, all
subscribers therefor will acquire good and marketable title thereto, free and
clear of all liens, encumbrances, equities, restrictions, claims and obligations
of every kind.
2.5 Authority of the Company. The Company has full power and legal
capacity to execute and deliver this Agreement and the other agreements required
to be executed and delivered by the Company hereunder and, subject to the
receipt of approvals, if any, required under applicable banking regulation, to
carry out the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE AUGUSTA GROUP
As an inducement to the Company to enter into this Agreement and to
consummate the transactions contemplated hereby, and with the knowledge that the
Company shall rely thereon, the members of the Augusta Group, jointly and
severally, represent and warrant to the Company that this Agreement when
executed and delivered by the Augusta Group will constitute a valid and legally
binding obligation of the Augusta Group and each of them, enforceable in
accordance with its terms, subject to (i) laws of general application relating
to bankruptcy, insolvency, and relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief, and other equitable remedies.
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ARTICLE IV
CONTINUED APPOINTMENT OF DIRECTORS AND OFFICERS
4.1 Continued Appointment of Xxxxx X. Xxxxxxxx, Xx. as Chairman of
the Company's Board of Directors. Following the execution of this Agreement by
the parties hereto, Xxxxx X. Xxxxxxxx, Xx. shall continue to serve as the
Chairman of the Company's Board of Directors until the Company's next annual
meeting of shareholders and until his successor is elected and qualified by the
Company's Board of Directors.
4.2 Continued Appointment of Xxxx X. Xxx as Chairman of the Bank's
Board of Directors. Following the execution of this Agreement by the parties
hereto, Xxxx X. Xxx shall continue to serve as the Chairman of the Bank's Board
of Directors until the Bank's next annual meeting of the sole shareholder and
until his successor is elected and qualified by the Bank's Board of Directors.
4.3 Continued Appointment of Xxxxxxx X. Xxxxxxxxx as President and
CEO of the Company. Following the execution of this Agreement by the parties
hereto, Xxxxxxx X. Xxxxxxxxx shall continue to serve as the President and Chief
Executive Officer of the Company, which position shall continue to report to,
and be under the direct supervision of, the Executive Committee of the Bank, and
to enter into that certain Amendment No. 1 to that certain employment agreement
with the Bank and Company dated October 6, 1997, in substantially the form and
upon the terms as set forth in Exhibit A hereto.
4.4 Continued Appointment of Xxxxxxx Xxxxxx, Xx. as President and
CEO of the Bank. Following the execution of this Agreement by the parties
hereto, Xxxxxxx Xxxxxx, Xx. shall continue to serve as the President and Chief
Executive Officer of the Bank, which position shall continue to report to, and
be under the direct supervision of, the Executive Committee of the Bank.
ARTICLE V
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARTIES
5.1 Compliance with Securities Laws. The Company shall not be
under any obligation to complete the transactions contemplated under this
Agreement unless and until the Company shall have satisfied all requirements
under any federal or state securities laws necessary for the offer and sale of
the Shares.
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5.2 Regulatory Approvals and Filings. The Company shall not be
under any obligation to complete the transactions contemplated under this
Agreement unless and until the Company or the Augusta Group, as the case may be,
shall have made all filings and registrations with and obtained all approvals
from all federal and state bank regulatory agencies respecting the transactions
contemplated herein which approvals shall be in full force and effect and all
waiting periods required by law shall have expired. In addition, if the Company
or the Augusta Group shall have received notification from any state or federal
bank regulatory agency which in the reasonable judgment of the Company is
materially adverse to the transactions contemplated herein and which requires
the Company to undertake to make any filing or to take other measures which are
unduly onerous to the Company, the Company shall not be under any obligation to
complete that transaction contemplated by this Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Survival of Representations and Warranties. All of the
representations and warranties of the Company and the Augusta Group contained in
this Agreement shall survive the termination of this Agreement.
6.2 Publicity. Except as otherwise required by law or applicable
stock exchange rules, none of the parties hereto shall issue any press release
or make any other public statement, in each case relating to or in connection
with or arising out of this Agreement or the matters contained herein, without
obtaining the prior written approval of all parties hereto as to the contents
and manner of presentation and publication thereof.
6.3 Knowledge. Where any representation or warranty contained in
this Agreement is expressly qualified by reference to the knowledge, information
or belief of the party or parties making such representation or warranty, each
of the representing or warranting parties confirms that he has made due and
diligent inquiry as to the matters that are the subject of such representations
and warranties.
6.4 Standard for Representations and Warranties. No representation
or warranty of the Company or the Augusta Group contained in this Agreement
shall be deemed untrue or incorrect, and no party hereto shall be deemed to have
breached a representation or warranty as a consequence of the existence of any
fact, circumstance or event, individually or taken together with all other
facts, circumstances or events inconsistent with any representation or warranty
made in Article II by the Company or Article III by the Augusta Group of this
Agreement, unless such inconsistent fact, circumstance, or event has had or is
expected to have a material adverse effect on the other party.
6.5 Gender. All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the identity of the person
or persons may require.
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6.6 Expenses. The Augusta Group and the Company shall pay their
own respective expenses, including the fees and disbursements of their
respective counsel in connection with the negotiation, preparation and execution
of this Agreement and the consummation of the trans actions contemplated hereby;
provided, however, that if the transactions contemplated by this Agreement are
not completed as a consequence of the withdrawal of either party to this
Agreement otherwise than as expressly provided for herein or due to any other
intentional act in material contravention of this Agreement by either of the
parties hereto, such withdrawing or intentionally acting party (the "Breaching
Party") shall reimburse the other party (the "Nonbreaching Party") for all
expenses incurred by the Nonbreaching Party with respect to the transactions
contemplated by this Agreement, including the preparation of this Agreement and
all ancillary documents thereto and the enforcement of this provision.
6.7 Entire Agreement. This Agreement, including all schedules and
exhibits hereto, constitutes the entire agreement of the parties with respect to
the subject matter hereof, supersedes all prior agreements, negotiations or
letters of intent, and may not be modified, amended or terminated except by a
written instrument specifically referring to this Agreement signed by each of
the parties hereto.
6.8 Waivers and Consents. All waivers and consents given hereunder
shall be in writing. No waiver by any party hereto of any breach or anticipated
breach of any provision hereof by any other party shall be deemed a waiver of
any other contemporaneous, preceding or succeeding breach or anticipated breach,
whether or not similar, on the part of the same or any other party.
6.9 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given only if and when (i)
personally delivered or (ii) three (3) business days after mailing, postage
prepaid, by certified mail or (iii) when delivered (as evidenced by a receipt)
by a nationally recognized overnight delivery service, addressed in each case as
follows:
(a) If to the Company to:
First Bank of Georgia
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopy Number: 000-000-0000
Attention: Xxxxxxx Xxxxxx, Xx.
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copy to counsel:
Xxxxx, Xxxxxxxx & Xxxxxxx, LLP
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxx 0000, Promenade II
Xxxxxxx, Xxxxxxx 00000-0000
Telecopy Number: 000-000-0000
Attention: Xxxxxx X. Xxxxxxxx
(b) If to the Augusta Group to:
Xxx Xxxxx
RDB Family Limited Partnership
000 Xxxxxxxx Xxxxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxxx X. Xxx, Xx.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
J. Xxxxxx Xxxx
1202 First Union Bank Building
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxx
X.X. Xxx 000000
Xxxxxxx, Xxxxxxx 00000
Xxxx X. Xxx
000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
X. Xxxxxxxx Xxxxxx
0000 Xxxx Xxx
Xxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Each party may change its address for the giving of notices and communications
to it, and/or copies thereof, by written notice to the other parties in
conformity with the foregoing.
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6.10 Rights of Third Parties. All conditions of the obligations of
the parties hereto, and all undertakings herein, are solely and exclusively for
the benefit of the parties hereto and their respective successors,
representatives and permitted assigns, and no other person or entity shall have
standing to require satisfaction of such conditions or to enforce such
undertakings in accordance with their terms, or be entitled to assume that any
party hereto will refuse to consummate the purchase and sale contemplated hereby
in the absence of strict compliance with any or all thereof, and no other person
or entity shall, under any circumstances, be deemed a beneficiary of such
conditions or undertakings, any or all of which may be freely waived in whole or
in part, by mutual consent of the parties hereto at any time, if in their sole
discretion they deem it desirable to do so.
6.11 Headings. The Table of Contents and Article and Section
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
6.12 Governing Law. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the laws of the
State of Georgia.
6.13 Parties in Interest. This Agreement may not be transferred,
assigned, pledged or hypothecated by the Augusta Group or any one of them, other
than by operation of law or with the consent of the Company. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, successors and permitted
assigns.
6.14 Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
6.15 Severability. In case any provision in this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this agreement under seal
as of the date first above written.
GEORGIA-CAROLINA BANCSHARES, INC.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Chairman of the Board
Attest: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Title: President and Chief Executive Officer
[CORPORATE SEAL]
AUGUSTA GROUP MEMBERS:
/s/ Xxx Xxxxx
--------------------------------------------
Xxx Xxxxx
RDB Family Limited Partnership
By: /s/ Xxx Xxxxx
--------------------------------------------
General Partner
/s/ Xxxxxx X. Xxx, Xx.
--------------------------------------------
Xxxxxx X. Xxx, Xx.
/s/ J. Xxxxxx Xxxx
--------------------------------------------
J. Xxxxxx Xxxx
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxx X. Xxx
--------------------------------------------
Xxxx X. Xxx
/s/ X. Xxxxxxxx Xxxxxx
--------------------------------------------
X. Xxxxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Xxxxxx X. Xxxxx
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EXHIBIT A
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This Agreement (the "Agreement"), dated as of the 30th day of
September, 1998, is made and entered into by and among First Bank of Georgia,
Thomson, Georgia, a bank chartered under the laws of the State of Georgia (the
"Bank"), Georgia-Carolina Bancshares, Inc., a corporation chartered under the
laws of the State of Georgia (the "Company") and Xxxxxxx X. Xxxxxxxxx, an
individual residing in Richmond County, Georgia (the "Executive").
W I T N E S S E T H :
WHEREAS, the Bank, the Company and the Executive entered into an
Employment Agreement dated October 6, 1997 (the "Employment Agreement"); and
WHEREAS, the Bank, the Company and the Executive desire to amend the
Employment Agreement;
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants herein contained, the parties hereto agree as follows:
1. Section 3.2(B)(5) of the Employment Agreement shall be deleted
in its entirety.
2. Sections 4 through 12 of the Employment Agreement shall be
renumbered as Sections 5 through 13, respectively.
3. Between Section 3.3 and Section 5 (formerly Section 4 of the
Employment Agreement) the following shall be added:
"4. STOCK OPTIONS. Upon the closing of the Company's
registered public offering of 740,000 shares of common stock,
$.001 par value per share (the "Common Stock"), pursuant to
that certain Registration Statement on Form SB-2 (File No.
333- 62493), the Executive shall be granted an option (the
"Option") to purchase a number of shares of Common Stock equal
to 2.5% of the number of shares of Common Stock sold in such
offering up to a maximum of 15,750 shares of Common Stock at
an exercise price of $13.50 per share. The Option shall become
exercisable in one-fourth (1/4) increments as follows:
(A) Upon the date of grant;
(B) At the end of the calendar year when the
Bank's average assets exceed $100 million;
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(C) At the end of the calendar year when the
Bank's average assets exceed $150 million; and
(D) At the end of the calendar year when the
Bank's average assets exceed $200 million.
The Option shall expire on the tenth anniversary of the
date of grant; provided, however, that in the event of the
termination of employment of the Executive, the Executive
shall have ninety (90) days to exercise all of the then
presently exercisable options. On the ninety-first day after
the termination of employment of the Executive, all
unexercised options shall terminate."
4. Section 5 (formerly Section 4 of the Employment Agreement)
shall be amended such that all references to "Section 4" contained therein shall
mean Section 5.
5. Section 5(D) (formerly Section 4(D) of the Employment
Agreement) shall be deleted in its entirety and the following substituted in
lieu thereof:
"(D) Notwithstanding anything to the contrary set forth
in this Section 5, a "change in control" shall not include any
sale of Common Stock by the Company in connection with the
registered public offering of 740,000 shares of Common Stock
pursuant to that certain Registration Statement on Form SB-2
(File No. 333-62493)."
6. Section 6 (formerly Section 5 of the Employment Agreement)
shall be amended such that the reference to Paragraph 5(ii) contained therein
shall mean Section 5.
7. Section 2.1(D) of the Employment Agreement shall be amended
such that all references to "Paragraph 6" contained therein shall mean Section
6.
8. Except as otherwise specifically set forth herein, all of the
other terms and conditions of the Employment Agreement shall remain in full
force and effect as originally written without amendment or modification.
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IN WITNESS WHEREOF, the Bank, the Company and the Executive have
executed and delivered this Agreement as of the date first above written.
"Bank"
FIRST BANK OF GEORGIA
By:
--------------------------
Title: Chairman
"Company"
GEORGIA-CAROLINA BANCSHARES, INC.
By:
--------------------------
Title: Chairman
"Executive"
-----------------------------------
Xxxxxxx X. Xxxxxxxxx
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