Exhibit E
STANDSTILL AGREEMENT
THIS STANDSTIILL 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 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 Securities.
From the date of this Agreement until November 17, 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(l)(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;
(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;
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(i) support financially, or through the giving of services or
information except in response to a request by a 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 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 required by law, First Mariner shall not have
breached the provisions of Section 2.1.
3. No Loans. From the date of this Agreement until 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 to 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.
(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 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
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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, at 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 Principal 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 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,
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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 to 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 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 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.
7. Indemnification.
(a) First Mariner's Indemnification. First 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
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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 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 claim 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 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 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. In
connection with any claim that First Mariner 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, Xxxx Burnie shall, upon written notice to First Mariner, assume
the defense
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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 the 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 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 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.
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8. Publicity and Confidentiality Agreement. Each of 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.
(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 to 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)).
(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 representation,
warranty or covenant made by a party in this Agreement, each party expressly
disclaims and shall not be deemed
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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 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 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.
13. Miscellaneous.
(a) Expenses and Taxes. Etc. All expenses 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 assigned by
any party hereto without the prior written consent of the other party.
(c) Binding on Successors and Assigns. This 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
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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 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 executed in, and
shall be governed by the laws of the State of Maryland, without regard to
principles 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
therein.
(f) Survival of Covenants, Representations and 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 execution of
this Agreement, the parties will execute joint stipulations of dismissals with
prejudice (and any other documents necessary to effectuate the terms of Sections
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 Xx.
00-000 0, xxxxxxx xx xxx Xxxxxx Xxxxxx Court of Appeals for the Fourth Circuit
(the "XxXxxxxxxx'x Litigation"); (2) Xxxx Burnie Bancorp et al. v. First Mariner
Bancorp, PHC 836, September Term 1998, pending in the Court of Special Appeals
of Maryland and (3) Xxxx Burnie Bancorp, et al. v. First Mariner Bancorp, et
al., Civil No. C- 9844772, pending in the Circuit Court for Xxxx Arundel County.
(h) Headings. The 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.
(i) Notices. All notices, claims, certificates, 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
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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 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 in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(l) Construction. This Agreement has been 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 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 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,
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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)
------------------------------------- -------------------------------------
XXXX BURNIE BANCORP
/s/ Xxxx Xxxxx By: /s/ F. Xxxxxxx Xxxxxx, Xx. (SEAL)
------------------------------------- -------------------------------------
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EXHIBIT A
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