EXHIBIT 99.2
STANDSTILL AGREEMENT
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THIS STANDSTILL AGREEMENT (this "Agreement"), dated
November 17, 1998, is made by and between FIRST MARINER BANCORP,
a Maryland corporation ("First Mariner") and XXXX BURNIE
BANCORP, a Maryland corporation ("Xxxx Burnie").
WHEREAS, contemporaneously with the execution of this
Agreement, First Mariner and Xxxx Burnie have entered into a
Stock Redemption Agreement pursuant to which Xxxx Burnie is
redeeming from First Mariner all securities of Xxxx Burnie owned
by First Mariner (the "Stock Redemption Agreement"); and
WHEREAS, pursuant to this Agreement, the parties desire to
agree on the manner of their future dealings with one another.
NOW, THEREFORE, in consideration of the promises and
covenants contained herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. Definitions: The following capitalized terms shall
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have the meanings specified in this Section 1.
(a) "Affiliate" means a person that directly or
indirectly controls or is controlled by, or is in common control
with, First Mariner, including, but not limited to, any director
or executive officer of First Mariner or any person that is the
Beneficial Owner of more than 10% of its outstanding Voting
Securities.
(b) "Associate" has the meaning set forth in
Section 12b-2 of the Securities Exchange Act of 1934, as
amended.
(c) "Beneficial Owner" of a Voting Security means
any person who beneficially owns such security within the
meaning of Rule 13d-3 promulgated under the Securities Exchange
Act of 1934, as amended.
(d) "Borrower" means any person or entity that
obtains a Loan.
(e) "Claim" means all manner of actions, causes of
action, suits, debts, covenants, accounts, trespasses,
contracts, agreements of damages, judgments, liabilities,
losses, costs, expenses and claims of any nature whatsoever, in
law or in equity, whether or not now or hereafter known,
suspected or claimed.
(f) "Voting Securities" mean the shares of common
and any other securities of Xxxx Burnie entitled to vote in the
election of directors, or securities convertible into, or
exercisable
or exchangeable for such common stock or other securities,
whether or not subject to the passage of time or other
contingencies.
(g) "Loan" means and includes any and all loans
and financial accommodations to any Borrower, however evidenced.
(h) "Solicitation" has the meaning set forth in
Rule 14a-1 promulgated under the Securities Exchange Act of
1934, as amended and shall include any action which causes a
person to become a participant in such a solicitation within the
meaning of Instruction 3 of Item 4 of Schedule 14A promulgated
under the Securities Exchange Act of 1934, as amended.
2.1 No Actions Regarding Xxxx Burnie's Voting
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Securities. From the date of this Agreement until November 17,
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2008 except as provided in Section 2.2, First Mariner shall not,
and shall cause each of its majority-owned subsidiaries and
shall use best efforts to cause its Affiliates and Associates
not to, directly or indirectly:
(a) acquire, offer, propose to acquire, agree to
acquire, purchase, or make a tender or exchange offer for any
Voting Securities of Xxxx Burnie such that First Mariner or such
Affiliate would become, as a result of such transaction, a
Beneficial Owner of Xxxx Burnie's Voting Securities.
(b) engage or participate in any Solicitation of
proxies or consents regarding Xxxx Burnie's Voting Securities or
induce or attempt to induce any other Person to initiate any
stockholder proposals, or otherwise communicate with Xxxx
Burnie's stockholders or others pursuant to Rule 14a-1(1)(2)(iv)
under the Securities Exchange Act of 1934, as amended.
(c) advise, seek to advise, encourage, seek to
encourage, influence or seek to influence any person or entity
with respect to the voting of any of Xxxx Burnie's Voting
Securities.
(d) seek, propose or make any public statements
with respect to, any merger, consolidation, business
combination, tender or exchange offer, sale or purchase of
assets, sale or purchase of securities, dissolution,
liquidation, restructuring, recapitalization or similar
transactions involving Xxxx Burnie or any of its Affiliates;
(e) form, join or in any way participate in any
"group" (within the meaning of Section 13d(3) of the Exchange
Act) with respect to Xxxx Burnie's Voting Securities;
(f) deposit any of Xxxx Burnie's Voting Securities
in any voting trust or subject any of Xxxx Burnie's Voting
Securities to any arrangement or agreement with respect to the
voting of any of Xxxx Burnie's Voting Securities;
(g) otherwise act, alone or in concert with
others, to control or seek to control or influence or seek to
influence the management, the Board or policies of Xxxx Burnie;
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(h) seek, alone or in concert with others, (a) to
call a meeting of stockholders of Xxxx Burnie, (b)
representation on the Board of Xxxx Burnie (the "Board"), or (c)
the removal of any member of the Board;
(i) support financially, or through the giving of
services or information except in response to a request by
governmental agency with jurisdiction or authority over First
Mariner, a validly issued subpoena or otherwise as required by
law, any entity or Person who is suing or contemplating suing
Xxxx Burnie or its Affiliates, or is conducting or contemplating
a Solicitation in opposition to a proposal by the Board or
management of Xxxx Burnie;
2.2 Acquisition of Xxxx Burnie. If there is an
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acquisition of Xxxx Burnie (acquisition is defined as a merger
of Xxxx Burnie or its subsidiary, the Bank of Xxxx Burnie,
wherein either Xxxx Burnie or the Bank of Xxxx Burnie is not the
surviving entity, an acquisition of substantially all of the
voting stock of Xxxx Burnie or the sale of substantially all of
the assets of Xxxx Burnie), as long as the acquiror of Xxxx
Burnie acted independently of and without any information,
assistance or involvement from First Mariner regarding any such
acquisition, the provisions of Section 2.1 shall not be
applicable to First Mariner regarding such acquiror or such
acquiror's securities. Notwithstanding the foregoing, if First
Mariner or its subsidiaries provides information or assistance
to any entity in response to a request by a governmental agency
with jurisdiction or authority over First Mariner, a validly
issued subpoena or otherwise as requried by law, First Mariner
shall not have breached the provisions of Section 2.1.
3. No Loans. From the date of this Agreement until
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November 17, 2008, First Mariner shall not, and shall cause its
Affiliates and Associates not to make any Loan if (a) Voting
Securities of Xxxx Burnie are used as collateral for the Loan;
(b) the Borrower expressly states First Mariner or the Affiliate
that the Borrower's intended use of the proceeds of the Loan is
to acquire or hold Voting Securities of Xxxx Burnie or (c) First
Mariner knows or should reasonably know that the intended use of
the proceeds of the Loan is to acquire or hold Voting Securities
of Xxxx Burnie.
4. Payment to First Mariner.
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(a) For Value Received, Xxxx Burnie promises to
pay to the order of First Mariner the principal amount of SIX
HUNDRED SEVENTY-FIVE THOUSAND FIVE HUNDRED TEN AND 12/100
DOLLARS ($675,510.12) (the "Principal Amount") without interest,
as follows: five (5) annual installments beginning on January
15, 1999 and continuing thereafter on the 15th day of January
every year for four (4) consecutive years, with the first such
installment being for One Hundred Fifty Thousand Dollars
($150,000), and each subsequent installment being for One
Hundred Thirty One Thousand Three Hundred Seventy Seven Dollars
and 53/100 ($131,377.53). Unless sooner paid, the entire unpaid
balance of the Principal Amount, plus all accrued and unpaid
default interest thereon, shall be due and payable in full on
January 15, 2003.
(b) Xxxx Burnie may prepay the Principal Amount in
whole or in part at any time and from time to time without
penalty. Any payments on account of this Section 4, when paid,
shall be applied (a) first to any costs, fees, late fees and
expenses due hereunder, (b) second to
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the payment of all interest (if any) then due on the unpaid
balance of the Principal Amount, and (c) third the balance shall
be applied in reduction of the unpaid balance of the Principal
Amount.
(c) In the event that First Mariner breaches its
obligations hereunder, Xxxx Burnie shall have the right to
withhold payment of and to offset against any amount due
hereunder. The exercise of this right of offset shall be deemed
as payment of the Principal Amount in the amount of the offset,
and in no event shall the exercise of this right of offset ever
be deemed nonpayment of the Principal Amount.
(d) Upon the occurrence of a default hereunder
and/or after the maturity of the obligations of Xxxx Burnie
under this Section 4 (whether by acceleration, declaration,
extension or otherwise), Xxxx Burnie promises to pay to First
Mariner whenever demanded by First Mariner, interest on the
unpaid balance of the Principal Amount and all other amounts
then and thereafter due and payable hereunder at a per annum
rate of interest equal to the lesser of fifteen percent (15%)
per annum or the highest rate permitted by law, from the date of
such default for so long as such default continues to exist, or,
from the date of such maturity until payment in full of the
unpaid balance of the Principal Amount, and all accrued and
unpaid interest thereon and all other amounts due and payable
hereunder. Interest on the unpaid Principal Amount shall be
computed on the basis of a 360-day year and the actual number of
days that have elapsed.
(e) Xxxx Burnie promises to pay, at the option of
First Mariner, a "late fee" equal to five percent (5%) of any
scheduled payment required by this Section 4, if such payment is
made more than five (5) days after the due date thereof, but
such five (5) day period shall not be construed as in any way
extending the due date of any payment. The "late fee" is
imposed for the purpose of defraying First Mariner's expenses
incident to handling such delinquent payment. This charge shall
be in addition to, and not in lieu of, any other remedy First
Mariner may have and is in addition to any fees and charges of
any agents or attorneys that First Mariner may employ upon any
default hereunder, whether authorized herein or by law. Such
"late fee" if not previously paid, shall, at the option of First
Mariner, be added to and become part of the next succeeding
payment to be made pursuant to this Section 4.
(f) Upon the occurrence of the failure of Xxxx
Burnie to pay as and when due and payable in accordance with
this Agreement any portion of the Principal Amount and such
failure continues unremedied for ten (10) days thereafter or
upon the occurrence of any other default or event of default
hereunder, which default or event of default remains uncured for
ten (10) days after written notice thereof, First Mariner may,
as its option, accelerate the maturity of the obligations of
Xxxx Burnie under this Section 4 and declare the unpaid balance
of the Principal Amount then outstanding together with interest
accrued and unpaid thereon to be immediately due and payable,
then and in that event the entire balance of the Principle
Amount then outstanding together with interest accrued and
unpaid thereon shall be immediately due and payable by Xxxx
Burnie to First Mariner. Xxxx Burnie and all endorsers,
guarantors, and other parties who may now or in the future be
primarily or secondarily liable for the payment of the
indebtedness evidenced by this Section 4 hereby severally waive
presentment, protest and demand, notice of protest, notice of
demand and of dishonor and non-payment of this Agreement and
expressly agree that the obligations of Xxxx Burnie
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under this Section 4 or any payment hereunder may be extended
from time to time without in any way affecting the liability of
Xxxx Burnie, such guarantors and endorsers.
(g) All payments and prepayments of the unpaid
balance of the Principal Amount, interest thereon and any other
amounts payable hereunder shall be paid in lawful money of the
United States of America in immediately available funds to First
Mariner at 0000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, or
at such other place as First Mariner may at any time or from
time to time designate in writing to Xxxx Burnie.
(h) Xxxx Burnie promises to pay First Mariner on
demand by First Mariner all costs and expenses incurred by First
Mariner in connection with the collection and enforcement of
this Agreement, including, without limitation, all reasonable
attorney's fees and expenses and all court costs.
(i) By accepting payment after the due date of any
amount payable under the terms of this Agreement, First Mariner
shall not be deemed to have waived the right either to require
prompt payment when due of all other amounts payable under the
terms of this Agreement or to declare a default for the failure
to effect such prompt payment of any such other amount. No
course of dealing or conduct shall be effective to amend,
modify, waive, release or change any provision of this
Agreement.
5. First Mariner Release. Except as provided in
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Section 7 of this Agreement and except for any Claim that arises
as a result of the breach by Xxxx Burnie of any covenant,
representation or warranty of Xxxx Burnie set forth in this
Agreement or in the Stock Redemption Agreement, First Mariner
does hereby remise, release, acquit and forever discharge Xxxx
Burnie and its successors and assigns, its wholly owned
Subsidiary and all stockholders, directors, officers, employees
and agents of Xxxx Burnie, of and from all Claims which First
Mariner ever had, now has, or which First Mariner can, shall or
may have or allege against Xxxx Burnie or any such stockholder,
director or officer from the beginning of the world to the date
hereof, upon or by reason of any matter, cause or thing
concerning or relating in any way whatsoever to First Mariner
and Xxxx Burnie's relationship with one another.
6. Xxxx Burnie Release. Except as provided in Section 7
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of this Agreement and except for any Claim that arises as a
result of the breach by First Mariner of any covenant,
representation or warranty of First Mariner set forth in this
Agreement or in the Stock Redemption Agreement, Xxxx Burnie does
hereby remise, release, acquit and forever discharge First
Mariner and its successors and assigns, its wholly-owned
subsidiaries and all stockholders, directors, officers employees
and agents of Xxxx Burnie, of and from all Claims which Xxxx
Burnie ever had, now has, or which Xxxx Burnie can, shall or may
have or allege against First Mariner or any such stockholder,
director or officer, from the beginning of the world to the date
hereof, upon or by reason of any matter, cause or thing
concerning or relating in any way whatsoever to Xxxx Burnie and
First Mariner's relationship with one another.
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7. Indemnification.
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(a) First Mariner's Indemnification. First
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Mariner shall indemnify and hold harmless Xxxx Burnie, each
officer, director, employee or agent thereof, and their
respective estates, successors and assigns (each an "Indemnified
Party") from and against any and all claims, losses, damages,
liabilities, costs or expenses (including without limitation,
settlement costs and any legal or other expenses for
investigating or defending any actions or threatened actions)
suffered or incurred as the result of the breach by First
Mariner of any covenant, representation or warranty of First
Mariner set forth in this Agreement.
(b) First Mariner's Defense of Actions. In
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connection with any claim that Xxxx Burnie believes gives rise
to indemnity hereunder resulting from or arising out of any
claim or legal proceeding by a person who is not a party to this
Agreement, at its sole cost and expense except as noted below,
First Mariner shall, upon written notice to Xxxx Burnie, assume
the defense of such claim or legal proceeding, to the extent
that First Mariner gives notice to Xxxx Burnie with respect to
all material elements thereof and sets forth that the claim is
one that gives rise to indemnity under Section 7(a). When First
Mariner assumes the defense of any such claims or legal
proceedings, First Mariner shall take all steps necessary in the
defense or settlement thereof and shall hold Xxxx Burnie
harmless from and against any losses, damages, expenses or
liability caused by or arising out of any settlement approved by
First Mariner or any judgment in connection with such claim or
legal proceeding. Xxxx Burnie agrees that it will cooperate
with First Mariner in the defense of any such action, the
defense of which is assumed by First Mariner. Xxxx Burnie shall
have the right to employ separate counsel in any such action and
to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of Xxxx Burnie unless:
(i) the employment thereof has been specifically authorized by
First Mariner in writing; or (ii) First Mariner has failed to
assume the defense of such action or to employ counsel
reasonably satisfactory to Xxxx Burnie. Except with the consent
of Xxxx Burnie, First Mariner shall not consent to the entry of
any judgment arising from any such claim or legal proceeding
which, in each case, does not include as an unconditional term
thereof the delivering by the claimant or the plaintiff to Xxxx
Burnie of a release from all liability in respect thereof,
unless First Mariner has actually paid to Xxxx Burnie the full
amount of such judgment or settlement. If First Mariner does
not assume the defense of any claim or litigation, Xxxx Burnie
may defend against such claim or litigation in such manner as it
may deem appropriate, including, but not limited to, settling
such claim or litigation, after giving notice of the same to
First Mariner, on such terms as Xxxx Burnie may deem
appropriate. First Mariner will promptly reimburse Xxxx Burnie
in accordance with the provisions hereof.
(c) Xxxx Burnie's Indemnification. Xxxx Burnie
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shall indemnify and hold harmless First Mariner, each officer,
director, employee or agent thereof, and their respective
estates, successors and assigns (each an "Indemnified Party")
from and against any and all claims, losses, damages,
liabilities, costs or expenses (including, without limitation,
settlement costs and any legal or other expenses for
investigating or defending any actions or threatened actions)
suffered or incurred (1) as the result of any claim that arises
as a result of the breach by Xxxx Burnie of any covenant,
representation or warranty of Xxxx Burnie set forth in this
Agreement or (2) as the result of any derivative claim asserted
by any stockholder of Xxxx Burnie on behalf of Xxxx Burnie that
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is in any way related to the execution and performance of this
Agreement or the Stock Redemption Agreement to be entered into
by the parties contemporaneously with this Agreement or the
transactions contemplated hereby and thereby.
(d) Xxxx Burnie's Defense of Actions Obligations.
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In connection with any claim that First Mariner believes gives
rise to indemnify hereunder resulting from or arising out of any
claim or legal proceeding by a person who is not a party to this
Agreement, at its sole cost and expense except as noted below,
Xxxx Burnie shall, upon written notice to First Mariner, assume
the defense of such claim or legal proceeding, to the extent
that Xxxx Burnie gives notice to First Mariner and sets forth
that the claim is one that gives rise to indemnity under Section
7(c). When Xxxx Burnie assumes the defense of any such claim or
legal proceeding, Xxxx Burnie shall take all steps necessary in
the defense or settlement thereof and shall hold First Mariner
harmless from and against any losses, damages, expenses or
liability caused by or arising out of any settlement approved by
the indemnifying party or any judgment in connection with such
claim or legal proceeding. First Mariner agrees that it will
cooperate with Xxxx Burnie in the defense of any such action,
the defense of which is assumed by Xxxx Burnie. First Mariner
shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, for claims
under Section 7(c)(1) but the fees and expenses of such counsel
shall be at the expense of First Mariner unless: (i) the
employment thereof has been specifically authorized by the
indemnifying party in writing; or (ii) the indemnifying party
has failed to assume that defense of such action or to employ
counsel reasonably satisfactory to the Indemnified Party. First
Mariner shall also have the right to employ separate counsel and
to participate in the defense thereof for claims against First
Mariner under Section 7(c)(2). The fees and expenses of such
counsel for claims under Section 7(c)(2) shall be paid in 50%
equal shares by First Mariner and Xxxx Burnie on monthly bills
submitted by counsel until Xxxx Burnie's payments in the
aggregate equal $50,000.00 for all such claims. Xxxx Burnie's
responsibility for fees and expenses of separate counsel
employed by First Mariner shall in no event exceed $50,000.00 in
the aggregate, regardless of the number of claims. Except with
the consent of First Xxxxxxx, Xxxx Burnie shall not consent to
the entry of any judgment arising from any such claim or legal
proceeding which, in each case, does not include as an
unconditional term thereof the delivering by the claimant or the
plaintiff to First Mariner of a release from all liability in
respect thereof, unless Xxxx Burnie has actually paid to First
Mariner the full amount of such judgment or settlement. If Xxxx
Burnie does not assume the defense of any claim or litigation,
First Mariner may defend against such claim or litigation in
such manner as it may deem appropriate, including, but not
limited to, settling such claim or litigation, after giving
notice of the same to Xxxx Burnie, on such terms as First
Mariner may deem appropriate. Xxxx Burnie will promptly
reimburse First Mariner in accordance with the provisions
hereof.
(e) Notification. Whenever any claim shall arise
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for indemnification hereunder, the Indemnified Party shall
notify the indemnifying party promptly after such Indemnified
Party has actual knowledge of the facts constituting the basis
for such claim, except that in the event of any claim for
indemnification hereunder, resulting from or in connection with
any claim or legal proceedings by a third party, such
Indemnified Party shall give prompt notice to the indemnifying
party of such claim or the commencement of legal proceedings in
respect of which recovery may be sought against the indemnifying
party pursuant to the provisions of this Article VI. The notice
to
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the indemnifying party shall specify, if known, the amount or an
estimate of the amount of the liability arising therefrom. The
failure to notify the indemnifying party shall only relieve the
indemnifying party from liability hereunder to the extent that
it is actually prejudiced thereby and shall not relieve the
indemnifying party of any liability which it may otherwise have
to an indemnified party. The Indemnified Party shall not settle
or compromise any such claim without the prior written consent
of the indemnifying party unless suit shall have been instituted
against the Indemnified Party and the indemnifying party shall
have failed, within fifteen (15) days after notice of
institution of the suit to take control of such suit as provided
in Sections 7(b) and 7(d), respectively.
8. Publicity and Confidentiality Agreement. Each of
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the parties hereto agrees that it may not issue any press
release with respect to the transactions contemplated by this
Agreement without the prior written consent of the other party,
which consent may be given or withheld in the sole discretion of
the requested party, provided that nothing herein shall restrict
any party hereto from making any public announcement or other
disclosure required under the federal securities laws or by the
rules of any securities exchange or inter-dealer quotation
system on which its securities may be traded or listed. So long
as this Agreement remains in effect, neither Xxxx Burnie nor
First Mariner nor their respective affiliates shall make any
public statement or issue any press release concerning the
subject matter of this Agreement or the Stock Redemption
Agreement which contains derogatory information or statements
regarding the other or their affiliates or directors or
executive officers. The parties hereby agree that the
Confidentiality Agreement entered into by the parties hereto on
or about November 2, 1998, is hereby terminated and is of no
further force or effect as of the date of this Agreement.
9. Equitable Remedies: Remedies for Certain Breaches.
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(a) The parties acknowledge and agree that money
damages would not be a sufficient remedy for any breach or
threatened breach of the provisions of Sections 2, 3, 7 or 8,
and that the non-breaching party shall be entitled to specific
performance and injunctive (preliminary or permanent) or other
equitable relief as remedies for any breach of any such section.
Such remedies shall not be deemed to be the exclusive remedies
but shall be in addition to all other remedies available at law
or in equity, including the remedies set forth in Section 9(b)
of this Agreement. Each party waives any requirement for the
securing or posting of any bond in connection with any such
remedy.
(b) In the event First Mariner breaches any of the
provisions of Section 2 or 3 of this Agreement, such date of
breach being defined herein as the "Breach Date," First Mariner
shall be obligated, in addition to any other damages, to pay
Xxxx Burnie that amount of money (the "Breach Amount")
determined by multiplying the Principal Amount by a fraction,
the numerator of which shall be the amount determined by
subtracting from 120 the number of full months, beginning on the
date of this Agreement, for which First Mariner was in
compliance with its obligations pursuant to the provisions of
Section 2 and 3 hereof, and the numerator which shall be 120.
For example, if First Mariner breaches its obligations under
Section 2 or 3 in the 61 month after the date of this Agreement,
First Mariner shall owe Xxxx Burnie $337,755 ($675,510 *((120-
60)/120)).
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(c) The rights and remedies of the parties under
this Agreement shall be cumulative and concurrent and may be
pursued and exercised singularly, successively or concurrently
at the sole discretion of the exercising party and may be
exercised as often as such party shall deem necessary or
desirable, and the nonexercise by a party of any such rights and
remedies in any particular instance shall not in any way
constitute a waiver or release thereof in that or any subsequent
instance.
10. No Reliance. Except as expressly set forth in any
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representation, warranty or covenant made by a party in this
Agreement, each party expressly disclaims and shall not be
deemed to have made any representation, warranty or covenant,
express or implied, to the other party, in connection with or
related to the transactions contemplated by this Agreement.
11. No Admission of Liability. The parties agree that
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no provision of this Agreement or act required by this Agreement
shall be construed as an admission of any obligation or
liability by any party hereto.
12. Authority to Enter Agreement. Each party represents
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and warrants to the other that:
(a) it has all necessary corporate power and
authority to enter into and perform its obligations under this
Agreement and the execution, delivery and performance of this
Agreement by it has been duly authorized and approved by its
Board of Directors;
(b) neither the execution and delivery of this
Agreement by it, nor the consummation of the transactions
contemplated hereby, will, with or without notice or the passage
of time or both, result in (a) a violation of or a conflict with
any provision of its charter or bylaws; (b) except as disclosed
in writing to the other party, a breach of, or a default under,
the terms or provisions of any contract, agreement, note, bond,
mortgage, indenture, lease, license, permit or other instrument
to which it is a party, or (c) to its knowledge, a violation by
it of any statute, rule, regulation, ordinance, code, order,
judgment, writ, injunction, decree or award;
(c) any consents, approvals or authorizations of,
or declarations, filings or registrations with, any governmental
or regulatory authority required to be made or obtained by it in
connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby have been made or obtained; and
(d) there is no claim, action, suit or proceeding
pending or, to its knowledge, threatened against it or any of
its properties which seeks to prohibit, restrict or delay or
would have the effect of prohibiting, restricting or delaying
the consummation of the transactions contemplated by this
Agreement.
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13. Miscellaneous.
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(a) Expenses and Taxes, Etc. All expenses
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incurred by First Mariner or Xxxx Burnie in connection with this
Agreement and the transactions contemplated hereby shall be
borne by the party incurring such expenses, including, but not
limited to, all professional expenses.
(b) Non-Assignability. This Agreement may not be
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assigned by any party hereto without the prior written consent
of the other party.
(c) Binding on Successors and Assigns. This
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Agreement shall inure to the benefit of and bind the respective
successors and permitted assigns of the parties hereto. Except
as otherwise expressly provided herein, nothing expressed or
referred to in this Agreement is intended or shall be construed
to give any person other than the parties to this Agreement or
their respective successors or permitted assigns any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein, it being the
intention of the parties to this Agreement that this Agreement
shall be for the sole and exclusive benefit of such parties or
such successors and assigns and not for the benefit of any other
person.
(d) Entire Agreement. This Agreement and the
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Stock Redemption Agreement contains the entire understanding of
the parties with respect to the subject matter of such
Agreements. This Agreement and the Stock Redemption Agreement
supersede all prior agreements and understandings between the
parties with respect to their subject matter. This Agreement
may be amended only by a written instrument duly executed by the
parties. Any condition to a party's obligations hereunder may
be waived in writing by such party to the extent permitted by
law.
(e) Applicable Law. This Agreement is being
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executed in, and shall be governed by the laws of the State of
Maryland, without regard to principals of conflict of laws. The
parties hereby submit to the jurisdiction and venue of the
courts of Maryland, and any legal or equitable action to enforce
this or any related agreements may only be brought in the
circuit courts herein.
(f) Survival of Covenants, Representations and
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Warranties.
---------- The covenants, representations and warranties given
by the parties hereto and contained herein shall survive this
Agreement.
(g) Dismissal of Claims. Contemporaneous with the
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execution of this Agreement, the parties will execute joint
stipulations of dismissals with prejudice (and any other
documents necessary to effectuate the terms of Section 5 or 6 of
this Agreement), substantially in the form of Exhibit A,
attached hereto and incorporated by reference herein, with
respect to all existing litigation between the parties,
including, but not limited to, the following three pending
lawsuits: (1) XxXxxxxxxx'x Inc. v. First Mariner Bank, CA No.
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98-257 1, pending in the United States Court of Appeals for the
Fourth Circuit (the "XxXxxxxxxx'x Litigation"); (2) Xxxx Burnie
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Bancorp et al v. First Mariner Bancorp, PHC 836, September Term
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1998, pending in the Court of Special Appeals of Maryland and
(3) Xxxx Burnie Bancorp, et al v. First Marinier Bancorp, et
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al., Civil No. C-9844772, pending in the Circuit Court for Xxxx
Arundel County.
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(h) Headings. The article and section headings
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contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of
this Agreement.
(i) Notices. All notices, claims, certificates,
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requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given upon
delivery personally, or three days after deposit if by mail
(registered or certified mail postage prepaid, return receipt
requested) or one day after deposit if by overnight courier
service, as follows:
(1) If to First Mariner: 0000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: President
with copy to: Ober, Kaler, Xxxxxx & Xxxxxx
A Professional Corporation
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxxxxx, Xx., Esq.
(2) If to Xxxx Burnie: 000 Xxxxx Xxxxxxx
X.X. Xxx 000
Xxxx Xxxxxx, Xxxxxxxx 00000
Attn: F. Xxxxxxx Xxxxxx, Xx.,
President
with copy to: Price Gielen, Esquire
Neuberger, Quinn, Gielen, Rubin &
Gibber, P.A.
00xx Xxxxx
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Addresses may be changed by notice in writing signed by the
addressee.
(j) Severability. A determination that any
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provision of this Agreement is invalid or unenforceable shall
not affect the validity or enforceability of any other provision
hereof. In the event it shall be determined by any court or
governmental agency or authority that any provision of this
Agreement is invalid for any reason, such provision shall be
considered to be modified to the extent required to cure such
invalidity.
(k) Counterparts. This Agreement may be executed
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in several counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
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(l) Construction. This Agreement has been
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prepared by all parties hereto, and the language used herein
shall not be construed in favor of or against any particular
party.
(m) No Waiver. No delay or failure on the part of
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any party to (i) insist upon the strict performance of any of
the terms of this Agreement or (ii) exercise any rights or
remedies hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right or remedy hereunder
preclude any subsequent exercise thereof or the exercise of any
other right or remedy at any later time or times.
(n) WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES
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TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH IT MAY
BE A PARTY, ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS
AGREEMENT. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER
CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL
PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST
PARTIES WHO ARE NOT PARTIES HERETO. THIS WAIVER IS KNOWINGLY,
WILLINGLY AND VOLUNTARILY MADE BY EACH PARTY, AND EACH HEREBY
REPRESENTS THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN
MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR
TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. EACH PARTY FURTHER
REPRESENTS THAT IT HAS HAD THE OPPORTUNITY TO BE REPRESENTED IN
THE EXECUTION OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER
BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND
THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL.
(o) The Parties' Understanding. The parties to this
--------------------------
Agreement have carefully read the foregoing, know and understand
the content and meaning of all provisions herein, and have
executed the same as their own free act after consultation with
their attorneys. The parties intend to be legally bound by this
Agreement.
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IN WITNESS WHEREOF, each of the parties hereto have caused
this Agreement to be duly executed under seal as of the day and
year first above written.
WITNESS: FIRST MARINER BANCORP
/s/Xxxxx X. Xxxxxxxxxxx, Xx. By:/s/ Xxxxxx X. Xxxxxx (SEAL)
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XXXX BURNIE BANCORP
/s/ Xxxx X. Xxxxx, Xx. By:/s/ F. Xxxxxxx Xxxxxx, Xx.(SEAL)
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