EXHIBIT 10.11
AGREEMENT AND PLAN OF SHARE EXCHANGE
AMONG
OLD FLORIDA BANK
AND
OLD FLORIDA BANKSHARES, INC.
TABLE OF CONTENTS
Page
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ARTICLE I - THE SHARE EXCHANGE ...................................................................... 1
Section 1.1 Consummation of Share Exchange; Closing Date .................................. 1
Section 1.2 Effect of Share Exchange ...................................................... 2
Section 1.3 Directors and Officers ........................................................ 3
Section 1.4 Articles of Incorporation and Bylaws .......................................... 3
ARTICLE II - CONVERSION OF BANK SHARES .............................................................. 3
Section 2.1 Manner of Conversion of the Bank Shares ....................................... 3
Section 2.2 The Bank Stock Options and Related Matters .................................... 4
Section 2.3 Fractional Shares ............................................................. 4
Section 2.4 Effectuating Conversion ....................................................... 5
Section 2.5 Laws of Escheat ............................................................... 6
Section 2.6 The Company Shares ............................................................ 6
ARTICLE III - CONDITIONS TO THE OBLIGATIONS OF THE BANK
AND THE COMPANY ............................................................... 6
Section 3.1 Conditions to Obligation to Close ............................................. 7
(a) Conditions to Obligation of the Company ....................................... 7
(b) Conditions to Obligation of the Bank .......................................... 7
ARTICLE IV - TERMINATION ............................................................................ 8
Section 4.1 Termination ................................................................... 8
(a) Termination of Agreement ...................................................... 8
(b) Effect of Termination ......................................................... 9
ARTICLE V - MISCELLANEOUS ........................................................................... 9
Section 5.1 Miscellaneous ................................................................. 9
(a) Survival ...................................................................... 9
(b) No Third Party Beneficiaries .................................................. 9
(c) Entire Agreement .............................................................. 9
(d) Successors and Assigns ....................................................... 10
(e) Counterparts ................................................................. 10
(f) Headings ..................................................................... 10
(g) Governing Law ................................................................ 10
(h) Amendments and Waivers ....................................................... 10
(i) Severability ................................................................. 10
(j) Expenses ..................................................................... 11
(k) Construction ................................................................. 11
(l) Jurisdiction and Venue ....................................................... 11
(m) Remedies Cumulative .......................................................... 11
AGREEMENT AND PLAN OF SHARE EXCHANGE
AMONG
OLD FLORIDA BANK
AND
OLD FLORIDA BANKSHARES, INC.
This Agreement and Plan of Share Exchange (the "Agreement") is dated as
of the 12th day of March, 2001, by and among Old Florida Bank, a state banking
corporation (the "Bank") and Old Florida Bankshares, Inc., a Florida corporation
(the "Company").
BACKGROUND
The respective Boards of Directors of the Bank and the Company deem it
in the best interests of the Bank and the Company, respectively, that the
Company acquire by operation of law all of the issued and outstanding capital
stock of the Bank pursuant to this Agreement (the "Share Exchange") and the
Boards of Directors of the parties have approved this Agreement and the Share
Exchange.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, representations, warranties and agreements herein contained, the
parties agree as follows:
ARTICLE I
THE SHARE EXCHANGE
Section 1.1 Consummation of Share Exchange; Closing Date. (a) Subject
to the provisions hereof, all of the issued and outstanding shares of capital
stock of the Bank shall be acquired by the Company (which has heretofore and
shall hereinafter be referred to as the "Share Exchange") pursuant to Sections
607.1102 through 607.1106 of the Florida Business Corporation Act (the "FBCA"),
and Section 658.30 of the Florida Financial Institutions Code (the "Florida
Code") and the existence of the Bank shall continue after the Effective Time of
the Share Exchange (as defined below). The Share Exchange shall become effective
on the date and at the time on which the Share Exchange is deemed effective by
each of the Regulatory Authorities (as defined below) and appropriate Articles
of Share Exchange are filed with the appropriate authorities (such time is
hereinafter referred to as the "Effective Time of the Share Exchange"). Subject
to the terms and conditions hereof, unless otherwise agreed upon by the Bank and
the Company, the Effective Time of the Share Exchange shall occur on the 10th
business day following the later to occur of (i) the effective date (including
the expiration of any applicable waiting period) of the last required Consent
(as defined below) of any Regulatory Authority (as defined below) having
authority over the
transactions contemplated pursuant to this Agreement, (ii) the date on which the
shareholders of the Bank approve the transactions contemplated by this
Agreement, and (iii) the date of the satisfaction or waiver of all other
conditions precedent to the transactions contemplated by this Agreement. As used
in this Agreement, "Consent" shall mean a consent, approval, authorization,
waiver, clearance, exemption or similar affirmation by any person pursuant to
any contract, permit, law, regulation or order, and "Regulatory Authorities"
shall mean, collectively, the Florida Department of Banking and Finance (the
"Florida Department"), the Office of Thrift Supervision ("OTS"), the Federal
Trade Commission (the "FTC"), the United States Department of Justice (the
"Justice Department"), the Board of Governors of the Federal Reserve System (the
"FRB"), the Federal Deposit Insurance Corporation (the "FDIC"), the National
Association of Securities Dealers, Inc., all national securities exchanges and
the Securities and Exchange Commission (the "SEC").
(b) The closing of the Share Exchange (the "Closing") shall
take place at the principal offices of the Bank at 10:00 a.m. local time on the
day that the Effective Time of the Share Exchange occurs, or such other date,
time and place as the parties may agree (the "Closing Date"). Subject to the
provisions of this Agreement, at the Closing there shall be delivered to each of
the parties hereto the opinions, certificates and other documents and
instruments required to be so delivered pursuant to this Agreement.
Section 1.2 Effect of Share Exchange. From and after the Effective Time
of the Share Exchange:
(a) All issued and outstanding capital stock of the Bank,
subject to the rights of dissent prescribed by law, shall immediately, by
operation of law, and without any further conveyance or transfer, become the
property of the Company.
(b) The business presently conducted by the Bank shall,
subject to the actions of the Board of Directors and Officers of the Bank,
continue to be conducted by the Bank as a wholly-owned subsidiary of the
Company.
(c) The Bank shall continue to have all the rights,
privileges, immunities and powers and shall be subject to all the duties and
liabilities of a banking corporation organized under the laws of Florida, as the
Bank had immediately prior to the Effective Time of the Share Exchange. No
rights or obligations of the Bank shall be affected or impaired by the Share
Exchange.
(d) The shareholders of the Bank as of the Effective Time of
the Share Exchange shall have the rights set forth in Article II hereof.
Section 1.3 Directors and Officers. From and after the Effective Time
of the Share Exchange and until their successors shall be duly elected and
qualified, the directors and officers of the Bank shall be those individuals who
were serving in such capacities immediately prior to the Effective Time of the
Share Exchange.
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Section 1.4 Articles of Incorporation and Bylaws. The Articles of
Incorporation and Bylaws under which the Bank will operate following the
Effective Time of the Share Exchange shall, subject to the actions of the board
of directors and shareholders of the Bank, be those Articles of Incorporation
and Bylaws under which the Bank operated immediately prior to the Effective Time
of the Share Exchange.
ARTICLE II
CONVERSION OF BANK SHARES
Section 2.1 Manner of Conversion of the Bank Shares. Subject to the
provisions hereof, as of the Effective Time of the Share Exchange and by virtue
of the Share Exchange and without any further action on the part of the holder
of any shares of common stock of the Bank, par value $5.00 per share (the "the
Bank Shares"):
(a) All the Bank Shares which are held by the Bank as treasury
stock, if any, shall be canceled and retired and no consideration shall be paid
or delivered in exchange therefor.
(b) Subject to the terms and conditions of this Agreement,
including, without limitation, Section 2.3 hereof and except with regard to
Dissenting Bank Shares (as hereinafter defined), each Bank Share outstanding
immediately prior to the Effective Time of the Share Exchange shall be converted
into the right to receive one share of common stock of the Company, par value
$.0l per share (the "Company Shares"). The applicable amount of the Company
Shares issuable in the Share Exchange for each Bank Share pursuant to this
Section, as may be adjusted as provided herein, shall be hereinafter referred to
as the "Conversion Ratio." The Conversion Ratio, including the number of the
Company Shares issuable in the Share Exchange, shall be subject to an
appropriate adjustment in the event of any stock split, reverse stock split,
dividend payable in the Company Shares, reclassification or similar distribution
whereby the Company issues Company Shares or any securities convertible into or
exchangeable for the Company Shares without receiving any consideration in
exchange therefor, provided that the record date of such transaction is a date
after the date of this Agreement and prior to the Effective Time of the Share
Exchange.
(c) Each outstanding Bank Share, the holder of which has
perfected dissenters' rights in accordance with the provisions of Section
607.1301 through 607.1320 of the FBCA (the "Dissent Provisions") and has not
effectively withdrawn or lost such holder's right to such appraisal (the
"Dissenting Bank Shares"), shall not be converted into or represent a right to
receive the Company Shares issuable in the Share Exchange but the holder thereof
shall be entitled only to such rights as are granted by the Dissent Provisions.
The Bank shall give the Company prompt notice upon receipt by the Bank of any
written objection to the Share Exchange and any written demands for payment of
the fair or appraised value of the Bank Shares, and of withdrawals of such
demands, and any other instruments provided to the Bank pursuant to the Dissent
Provisions (any shareholder duly making such demand being hereinafter called a
"Dissenting Shareholder"). Each Dissenting Shareholder who becomes entitled,
pursuant to the Dissent Provisions, to payment of fair value of
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any Bank Shares held by such Dissenting Shareholder shall receive payment
therefor from the Surviving Bank (but only after the amount thereof shall have
been agreed upon or at the times and in the amounts required by the Dissent
Provisions) and all of such Dissenting Shareholder's Bank Shares shall be
canceled. If any Dissenting Shareholder shall have failed to perfect or shall
have effectively withdrawn or lost such right to demand payment of fair or
appraised value, the Bank Shares held by such Dissenting Shareholder shall
thereupon be deemed to have been converted into the right to receive the
consideration to be issued in the Share Exchange as provided by this Agreement.
Section 2.2 The Bank Stock Options and Related Matters. As of the
Effective Time of the Share Exchange, all rights with respect to the Bank Shares
issuable pursuant to the exercise of stock purchase options ("the Bank Options")
granted by the Bank and which are outstanding at the Effective Time of Share
Exchange shall be converted into options for the Company Shares (the "Share
Exchange Options") in compliance with any restrictions contained in the plan or
agreement, if any, under which such the Bank Options were issued. Each holder of
a Bank Option shall have the right to acquire as of the Effective Time of the
Share Exchange a number of Company Shares equal to the product (rounded up to
the next whole share) of (i) the number of Bank Shares covered by such Bank
Option immediately prior to the Effective Time of the Share Exchange and (ii)
the Conversion Ratio; and the exercise price per share of the Company Shares at
which such the Bank Option is exercisable shall be an amount (rounded up to the
next whole cent) computed by dividing (i) the exercise price per share of the
Bank Shares at which such the Bank Option is exercisable immediately prior to
the Effective Time of the Share Exchange by (ii) the Conversion Ratio.
Section 2.3 Fractional Shares. Notwithstanding any other provision of
this Agreement, each holder of Bank Shares converted pursuant to the Share
Exchange who would otherwise have been entitled to receive a fraction of a
Company Share (after taking into account all certificates delivered by such
holder), shall receive, in lieu thereof, cash (without interest) in an amount
equal to such fractional part of such the Company Share, multiplied by the book
value per Bank Share as of the end of the calendar month immediately preceding
or occurring on the Effective Time of the Share Exchange. No such holder shall
be entitled to dividends, voting rights or any other rights as a shareholder in
respect of any fractional share.
Section 2.4 Effectuating Conversion. (a) The Company, or such other
institution as the Company may designate, shall serve as the exchange agent (the
"Exchange Agent"). The Exchange Agent may employ sub-agents in connection with
performing its duties. After the Effective Time of the Share Exchange, the
Company shall cause the Exchange Agent to deliver the consideration to be paid
by the Company for the Bank Shares, along with the appropriate cash payment in
lieu of fractional interests in the Company Shares. As promptly as practicable
after the Effective Time of the Share Exchange, the Exchange Agent shall send or
cause to be sent to each former holder of record of the Bank Shares transmittal
materials (the "Letter of Transmittal") for use in exchanging their certificates
formerly representing the Bank Shares for the consideration provided for in this
Agreement. The Letter of Transmittal shall contain instructions with respect to
the surrender of certificates representing the Bank Shares and the receipt of
the consideration contemplated by this
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Agreement and shall require each holder of the Bank Shares to transfer good and
marketable title to such Bank Shares to the Company, free and clear of all
liens, claims and encumbrances.
(b) At the Effective Time of the Share Exchange, the stock
transfer books of the Bank shall be closed as to holders of the Bank Shares
immediately prior to the Effective Time of the Share Exchange and no transfer of
the Bank Shares by any such holder shall thereafter be made or recognized and
each outstanding certificate formerly representing Bank Shares shall, without
any action on the part of any holder thereof, no longer represent Bank Shares.
If, after the Effective Time of the Share Exchange, certificates are properly
presented to the Company, such certificates shall be exchanged for the
consideration contemplated by this Agreement into which the Bank Shares
represented thereby were converted in the Share Exchange.
(c) In the event that any holder of Bank Shares is unable to
deliver the certificate which represents such holder's Bank Shares, the Company,
in the absence of actual notice that any Bank Shares theretofore represented by
any such certificate have been acquired by a bona fide purchaser, may, in its
discretion, deliver to such holder the consideration contemplated by this
Agreement and the amount of cash representing fractional Company Shares to which
such holder is entitled in accordance with the provisions of this Agreement upon
the presentation of all of the following:
(i) An affidavit or other evidence to the reasonable
satisfaction of the Company that any such certificate has been lost, wrongfully
taken or destroyed;
(ii) Such security or indemnity as may be reasonably
requested by the Company to indemnify and hold the Company harmless; and
(iii) Evidence to the satisfaction of the Company
that such holder is the owner of the Bank Shares theretofore represented by each
certificate claimed by such holder to be lost, wrongfully taken or destroyed and
that such holder is the person who would be entitled to present each such
certificate for exchange pursuant to this Agreement.
(d) In the event that the delivery of the consideration
contemplated by this Agreement and the amount of cash representing fractional
Company Shares are to be made to a person other than the person in whose name
any certificate representing the Bank Shares surrendered is registered, such
certificate so surrendered shall be properly endorsed (or accompanied by an
appropriate instrument of transfer), with the signature(s) appropriately
guaranteed, and otherwise in proper form for transfer, and the person requesting
such delivery shall pay any transfer or other taxes required by reason of the
delivery to a person other than the registered holder of such certificate
surrendered or establish to the satisfaction of the Company that such tax has
been paid or is not applicable.
(e) No holder of the Bank Shares shall be entitled to receive
any dividends or distributions declared or made with respect to the Company
Shares with a record date before the
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Effective Time of the Share Exchange. Neither the consideration contemplated by
this Agreement, any amount of cash representing fractional Company Shares nor
any dividend or other distribution with respect to the Company Shares where the
record date thereof is on or after the Effective Time of the Share Exchange
shall be paid to the holder of any unsurrendered certificate or certificates
representing the Bank Shares as provided for by this Agreement. Subject to
applicable laws, following surrender of any such certificate or certificates,
there shall be paid to the holder of the certificate or certificates then
representing the Company Shares issued in the Share Exchange, without interest
at the time of such surrender, the consideration contemplated by this Agreement,
the amount of any cash representing fractional Company Shares and the amount of
any dividends or other distributions with respect to the Company Shares to which
such holder is entitled as a holder of the Company Shares.
Section 2.5 Laws of Escheat. If any of the consideration due or other
payments to be paid or delivered to the holders of the Bank Shares is not paid
or delivered within the time period specified by any applicable laws concerning
abandoned property, escheat or similar laws, and if such failure to pay or
deliver such consideration occurs or arises out of the fact that such property
is not claimed by the proper owner thereof, the Company shall be entitled to
dispose of any such consideration or other payments in accordance with
applicable laws concerning abandoned property, escheat or similar laws. Any
other provision of this Agreement notwithstanding, none of the Bank, or the
Company, nor any other person acting on their behalf shall be liable to a holder
of the Bank Shares for any amount paid or property delivered in good faith to a
public official pursuant to and in accordance with any applicable abandoned
property, escheat or similar law.
Section 2.6 The Company Shares. The one Company Share issued and
outstanding at the Effective Time of the Share Exchange shall be cancelled and
thus shall not be outstanding after the Share Exchange.
ARTICLE III
CONDITIONS TO THE OBLIGATIONS OF THE BANK AND THE COMPANY
Section 3.1 Conditions to Obligation to Close.
(a) Conditions to Obligation of the Company. The obligation of
the Company to consummate the transactions to be performed by it in connection
with the Closing are subject to satisfaction of the following conditions:
(i) This Agreement and the Share Exchange shall have
received the requisite approval of the shareholders of the Bank and the number
of Dissenting the Bank Shares shall not exceed 5% of the number of the Bank
Shares issued and outstanding immediately prior to the Effective Time of the
Share Exchange;
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(ii) The parties shall have procured all approvals,
authorizations and Consents, including but not limited to all necessary
consents, authorizations and approvals of Regulatory Authorities which, with
respect to those from the Regulatory Authorities, shall not contain provisions
which (A) unduly impair or restrict the operations, or would have a material
adverse effect on the condition, of the Company, or (B) render consummation of
the Share Exchange unduly burdensome, in each case as determined in the
reasonable discretion of the Company;
(iii) No action, suit, or proceeding shall be pending
or threatened before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction wherein an unfavorable judgment,
order, decree, stipulation, injunction, or charge could (A) prevent consummation
of any of the transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (C) affect adversely the right after the Effective Time of the
Share Exchange of the Bank to own, operate, or control substantially all of the
assets and operations of the Bank and/or the Company to own, operate, or control
substantially all of the assets and operations of the Bank (and no such
judgment, order, decree, stipulation, injunction, or charge shall be in effect);
(iv) The Company shall have received an opinion
satisfactory in form and substance to it to the effect that, under applicable
provisions of the Internal Revenue Code of 1986, as amended, no gain or loss
will be recognized for federal income tax purposes by the Bank, the Company or
the shareholders of the Bank who receive Company Shares in the Share Exchange,
and as to the such other matters as the Company shall deem desirable (the "Tax
Opinion"); and
(v) The Company may waive any condition specified in
this Section at or prior to the Closing.
(b) Conditions to Obligation of the Bank. The obligations of
the Bank to consummate the transactions to be performed by it in connection with
the Closing is subject to satisfaction of the following conditions:
(i) This Agreement and the Share Exchange shall have
received the requisite approval of the shareholders of the Bank and the number
of Dissenting the Bank Shares shall not exceed 5% of the number of the Bank
Shares issued and outstanding immediately prior to the Effective Time of the
Share Exchange;
(ii) The parties shall have procured all of the third
party approvals, authorizations and Consents, including but not limited to all
necessary consents, authorizations and approvals of Regulatory Authorities
which, with respect to those from the Regulatory Authorities, shall not contain
provisions which (A) unduly impair or restrict the operations, or would have a
material adverse effect on the condition, of the Company, or (B) render
consummation of the Share Exchange unduly burdensome, in each case as determined
in the reasonable discretion of the Bank;
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(iii) No action, suit, or proceeding shall be pending
or threatened before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction wherein an unfavorable
judgment, order, decree, stipulation, injunction, or charge could (A) prevent
consummation of any of the transactions contemplated by this Agreement, (B)
cause any of the transactions contemplated by this Agreement to be rescinded
following consummation, or (C) affect adversely the right after the Effective
Time of the Share Exchange of the Bank, to own, operate, or control
substantially all of the assets and operations of the Bank (and no such
judgment, order, decree, stipulation, injunction or charge shall be in effect);
and
(iv) The Bank shall have received the Tax Opinion in a
form reasonably satisfactory to the Bank.
The Bank may waive any condition specified in this Section at or prior
to the Closing.
ARTICLE IV
TERMINATION
Section 4.1 Termination.
(a) Termination of Agreement. Any of the parties may terminate
this Agreement with the prior authorization of its Board of Directors (whether
before or after approval of its or any other party's shareholders) as provided
below:
(i) The parties may terminate this Agreement by mutual
written consent at any time prior to the Effective Time of the Share Exchange;
(ii) The Company may terminate this Agreement by giving
written notice to the Bank at any time prior to the Effective Time of the
Share Exchange in the event the Bank is in breach, and the Bank may terminate
this Agreement by giving written notice to the Company at any time prior to the
Effective Time of the Share Exchange in the event the Company is in breach, of
any representation, warranty, or covenant contained in this Agreement in any
material respect. Each party shall have the right to cure any such breach, if
such breach is capable of being cured, within 15 days after receipt of written
notice of such breach or within any such longer period mutually agreed to in
writing by the parties hereto ("Cure Period"); provided, however, that in no
event shall the Cure Period extend beyond March 31,2002;
(iii) If a material adverse development shall have
occurred affecting the condition of the Company, the Bank may terminate this
Agreement by giving written notice to the Company;
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(iv) If a material adverse development shall have
occurred affecting the condition of the Bank, the Company may terminate this
Agreement by giving written notice to the Bank; and
(v) Any party may terminate this Agreement by giving
written notice to the other parties at any time after March 31,2002 if the
Effective Time of the Share Exchange has not yet then occurred and such
termination was approved by a two-thirds vote of such party's full Board of
Directors.
(b) Effect of Termination. If any party terminates this
Agreement pursuant to Section 4(a) above, all obligations of the parties
hereunder shall terminate without any liability of any party to any other party
(except for any liability of any party then in breach); provided, however, that
the expense provisions in 5(j) below, shall survive any such termination.
ARTICLE V
MISCELLANEOUS
Section 5.1 Miscellaneous.
(a) Survival. None of the representations, warranties, and
covenants of the parties (other than the provisions in Article II above
concerning issuance of the Company Shares) shall survive the Effective Time of
the Share Exchange.
(b) No Third Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any person other than the parties and their
respective successors and permitted assigns; provided, however, that the
provisions in Article II above concerning issuance of the Company Shares are
intended for the benefit of the Bank shareholders.
(c) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the parties and
supersedes any prior understandings, agreements, or representations by or among
the parties, written or oral, that may have related in any way to the subject
matter hereof.
(d) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. No party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other parties.
(e) Counterparts. This Agreement may be executed in one or
more 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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(f) Headings. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to principles of conflict of laws.
(h) Amendments and Waivers. To the extent permitted by law,
the parties may amend any provision of this Agreement at any time prior to the
Effective Time of the Share Exchange by a subsequent writing signed by each of
the parties upon the approval of their respective Boards of Directors; provided,
however, that after approval of this Agreement by a party's shareholders, there
shall be made no amendment in the Conversion Ratio in a manner that adversely
affects the economic value of the Share Exchange to such shareholders without
their further approval. No amendment of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by all of the parties. No
waiver by any party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
(i) Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the remaining terms and provision
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. If the final judgment of a
court of competent jurisdiction declares that any term or provision hereof is
invalid or unenforceable, the parties agree that the court making the
termination of invalidity or unenforceability shall have the power to reduce the
scope, duration, or area of the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provisions with a
term or provisions that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified after the expiration of the
time within which the judgment may be appealed.
(j) Expenses. Each party shall bear its own expenses in
connection with the negotiation and execution of this Agreement and the
implementation and effectiveness of the Share Exchange. Notwithstanding the
foregoing, if any legal action or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any provision of this Agreement, the
successful or prevailing party or parties shall be entitled to recover
reasonable attorneys' fees, sales and use taxes, court costs and all expenses
even if not taxable as court costs (including, without limitation, all such
fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy
and post-judgment proceedings), incurred in that action or proceeding, in
addition to any other relief to which such party or parties may be entitled.
Attorneys' fees shall include, without limitation, paralegal fees, investigative
fees,
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administrative costs, sales and use taxes and all other charges billed by the
attorney to the prevailing party.
(k) Construction. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any party.
Any reference to any federal, state, local or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder, unless
the context otherwise requires.
(l) Jurisdiction and Venue. The parties acknowledge that a
substantial portion of negotiations and anticipated performance and execution
of this Agreement occurred or shall occur in the County where the main office of
the Bank is located, and that, therefore, without limiting the jurisdiction or
venue of any other federal or state courts, each of the parties irrevocably and
unconditionally (a) agrees that any suit, action or legal proceeding arising out
of or relating to this Agreement may be brought in a state or federal court of
record in the County where the main office of the Bank is located; (b) consents
to the jurisdiction of each such Court in any suit, action or proceeding; (c)
waives any objection which it may have to the laying of venue of any such suit,
action or proceeding in any of such courts; and (d) agrees that service of any
court paper may be effected on such party by mail, as provided in this
Agreement, or in such other manner as may be provided under applicable laws or
court rules in said state.
(m) Remedies Cumulative. Except as otherwise expressly
provided herein, no remedy herein conferred upon any party is intended to be
exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise. No single
or partial exercise by any party of any right, power or remedy hereunder shall
preclude any other or further exercise thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written, each by its President and Chief Executive
Officer pursuant to a resolution of its Board of Directors.
OLD FLORIDA BANKSHARES, INC. OLD FLORIDA BANK
/s/ Larry W. Johnson /s/ Larry W. Johnson
- ----------------------------- --------------------------------
By: Larry W. Johnson By: Larry W. Johnson
President and Chief President and Chief
Executive Officer Executive Officer
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