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EXHIBIT 10.7
PREORGANIZATION AGREEMENT
THIS AGREEMENT, dated this ______ day of __________, 1997, by and among
the undersigned as reflected by the attached signature pages (hereinafter
referred to individually as "Organizer" and collectively as the "Organizers").
W I T N E S S E T H:
WHEREAS, the Organizers intend to submit an application to the Office
of the Comptroller of the State of Florida (the "Comptroller") to procure a
charter for a community bank (the "New Bank") and to the Federal Deposit
Insurance Corporation (the "FDIC") to procure the insurance of the deposits of
the New Bank;
WHEREAS, the Organizers recognize that certain expenses will be
incurred in connection with the organization of the New Bank and the raising of
capital regarding same;
WHEREAS, the Organizers desire to provide for the sharing of such
expenses, to determine by agreement the initial investment of each Organizer in
the New Bank and to provide for certain other matters; and
WHEREAS, each Organizer has signed this Agreement upon the reliance of
each and every other Organizer signing this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants contained herein, and for other good and valuable
consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. ORGANIZERS TO BE SHAREHOLDERS OF THE NEW BANK. In the event that
preliminary approval to charter the New Bank is granted by the Comptroller
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and the application for insurance of the deposits of the New Bank is granted by
the FDIC, each of the Organizers shall make an initial investment in the New
Bank's capital stock in an amount indicated below his/her signature hereto. It
is understood and agreed that each Organizer's commitment for his or her initial
investment as indicated below his/her signature herein is binding subject to
such limitations, if any, as may be imposed by applicable regulatory
authorities. In the event a limitation is imposed as to any Organizer's initial
investment, then that Organizer's initial investment shall be reduced to such
amount. The purchase price for shares of the New Bank stock shall be $5.00 per
share. The maximum number of shares of capital stock which may be purchased by
an Organizer shall be 400,000 shares.
2. ORGANIZATION EXPENSES. Each Organizer shall advance a portion of his
or her initial investment in proportion to the aggregate initial investment of
all participating Organizers such that a working fund of $300,000.00 is
established.
3. CERTAIN ORGANIZERS TO BE INITIAL DIRECTORS OF NEW BANK; OFFICERS AND
DIRECTORS OF THE NEW BANK. Certain of the Organizers will be asked to be initial
directors of the New Bank in the event that a charter for the establishment of
the New Bank is granted by the Comptroller. The New Bank Board, in the event
that approval to become a bank is obtained from the Comptroller and the FDIC,
will consist of not more than twenty (20) members, of which two (2) seats are to
be reserved for Xxxxx X. Xxxxxx and Xxxx X. Xxxx. In the event that a charter
for the New Bank is granted, it is anticipated that the Board of Directors of
the New Bank shall elect Xxxxx X. Xxxxxx as Chairman and Chief Executive Officer
and Xxxx X. Xxxx as President and General Counsel of the New Bank.
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4. CONSULTANT'S FEES. Beginning on ____________, 1997, Xxxxx X. Xxxxxx
and Xxxx X. Xxxx, for services they shall render to the New Bank, including the
raising of the necessary funds and the processing of all aspects of the
application to meet the regulatory requirements of the Comptroller and FDIC,
shall each be paid a monthly consultant's fee of $7,000.00 until the date that
the New Bank commences business or until such time as the Organizers have been
notified that a charter for the New Bank will not be granted.
5. SUBSTITUTION OF ORGANIZERS. Each of the Organizers recognize that
his/her position as an Organizer, shareholder, director and/or officer of the
proposed New Bank is subject to approval by the Comptroller and the FDIC. In the
event that any Organizer is disapproved in any capacity whatsoever by the
Comptroller or the FDIC and is barred from participation in the future
operations of the proposed New Bank, then and in such event the Organizers
specifically agree as follows:
(a) Such Organizer shall withdraw immediately from
participation in all organizational activities and efforts of the remaining
Organizers, and shall take no action which would in any way jeopardize the
remaining Organizers' efforts to obtain a charter or FDIC insurance coverage for
the proposed New Bank.
(b) The withdrawing Organizer shall be entitled to receive
from the remaining Organizers (if the New Bank is approved by the appropriate
regulatory authorities) an amount equivalent to his/her pro rata share of the
organization expense monies remaining and unused at the time of his or her
withdrawal as an Organizer.
(c) Except for payment of the pro rata share of the remaining
and unused organization expense monies as specified in subparagraph (b) above,
the remaining Organizers shall not be liable for any other expenses or damages
incurred by the withdrawing Organizer in connection with this Agreement among
the Organizers of the proposed New Bank.
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(d) In the event that any other individual becomes an
Organizer in substitution for the withdrawing Organizer at any time prior to the
date the New Bank commences business, such individual shall agree in writing to
be bound by all terms and conditions of this Agreement and shall become a party
hereto.
(e) In the event the New Bank should be disapproved by any
appropriate regulatory authority based upon an Organizer's background, which
background information had not previously been disclosed to the other
Organizers, then such disqualified Organizer shall be liable for all expenses
incurred by the Organizers, including, but not limited to, their initial
deposit, in filing for approval.
6. MISCELLANEOUS.
(a) Any and all notices or other communications under or
relating to this Agreement shall be in writing and the same be deemed given when
personally served, or when sent by certified mail, return receipt requested,
postage and fees prepaid, and addressed to the appropriate party at his address
set forth beneath his signature hereto, or to such substitute address notice of
which shall be previously have been given pursuant hereto by a party to all
other parties hereto.
(b) This Agreement has been made and entered into in the State
of Florida, and shall be construed in accordance with and governed by the laws
of the State of Florida, as amended from time to time.
(c) Each Organizer recognizes the inherent risk associated
herein and understands that if the charter or insurance coverage is denied, each
Organizer will receive back only their pro rata share of monies remaining in the
organization expense account after all organizing expenses and expenses related
to closing down the organizational project are paid.
(d) This Agreement constitutes the entire agreement among the
parties hereto and any additions, changes or corrections thereof must be in
writing executed by all the parties hereto or their successors, transferees and
assigns.
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(e) This Agreement is binding upon each signatory and such
signatory's heirs and executors, and except as otherwise provided herein or by
operation of law, this Agreement shall not be transferred, assigned, sold or in
any manner hypothecated or pledged by any party unless written consent to such
act is first obtained from all other parties hereto.
(f) If any portion of this Agreement be legally adjudicated
invalid or unenforceable, the parties hereto do covenant and agree that such
portion or portions are absolutely and completely severable from all other
portions of this Agreement and such other provisions shall constitute the
agreement of the parties.
(g) Except as otherwise provided herein, the rights and
remedies of each party provided in this Agreement are cumulative to each other
and to any rights or remedies available to such party at law or in equity. No
failure on the part of any party hereto to exercise, and no delay in exercising,
any right shall operate as waiver thereof, nor shall any single or partial
exercise by such party of any right preclude any other future exercise thereof
or the exercise of any other right, except as otherwise provided.
(h) Attached hereto as an exhibit A is a pro forma of
organizational expenses.
(i) All Organizers hereby agree that upon commencement of
business of the New Bank, the New Bank shall sponsor and approve an incentive
stock option plan (the "Plan") for the purpose of attracting qualified banking
professionals and providing shareholder value added incentive compensation. The
Plan shall, by its terms, reserve an aggregate of 250,000 shares of the New
Bank's common stock for issuance thereunder.
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IN WITNESS WHEREOF, the parties hereto have signed and sealed this Agreement on
the date set forth below their signatures hereto, effective as of the date above
written.
_______________________ Signature______________________________
Witness
Initial Investment_____________________
Address________________________________
________________________________
Date___________________________________
