NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (the "Agreement") is made and entered
into as of January 31, 1996 by and between NATIONSBANK CORPORATION, a North
Carolina corporation ("NationsBank"), and XXXXX X. XXXXXXXX ("Executive").
W I T N E S S E T H:
WHEREAS, as of the date hereof, Executive is retiring from
NationsBank; and
WHEREAS, Executive has been employed by NationsBank for over thirty-two
years and during his period of employment has served NationsBank in numerous
executive capacities, including most recently as its Vice Chairman with
operational responsibility for many of NationsBank's business units; and
WHEREAS, Executive has acquired extensive knowledge of
NationsBank's business methods, customers and employees; and
WHEREAS, the parties hereto desire to enter into this Agreement
restricting the activities of Executive in retirement in an effort to protect
the Company's legitimate business interests;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein shall
have the meanings set forth below:
"Affiliate" means (i) any entity directly or indirectly
controlling (including without limitation an entity for which Executive serves
as an officer, director, employee, consultant or other agent), controlled by, or
under common control with Executive, and (ii) each other entity in which
Executive, directly or indirectly, owns any controlling interest or of which
Executive serves as a general partner.
"Agreement" means this Noncompetition Agreement, including any
amendments hereto made in accordance with paragraph 8(d) hereof.
"Company" means (i) NationsBank, (ii) any corporation,
partnership or other business entity that is, directly or indirectly, controlled
by or under common control with NationsBank and (iii) their respective
successors.
"Covenant Period" means the period beginning on the date of
the Agreement and ending on June 30, 2001, or if earlier, the date of
Executive's death.
2. Consideration. During the Covenant Period, so long as
Executive is complying with the terms and conditions of this Agreement, the
Company shall pay to Executive the sum of Thirty- Five Thousand Five Hundred
Dollars ($35,500) per month on the last day of each month commencing January 31,
1996.
3. Executive's Obligations in Connection with His
Termination of Employment with the Company.
(a) Nonsolicitation of Employees. During the
Covenant Period, Executive agrees not to hire, directly or indirectly, or entice
or participate in any efforts to entice to leave the Company's employ, any
person who was or is a "key employee" (as hereinafter defined) of the Company at
any time during the twelve (12) month period immediately preceding January 31,
1996. For purposes of this Agreement, "key employee" means an employee who has
an annualized rate of base salary equaling or exceeding fifty thousand dollars
($50,000).
(b) Noncompetition. During the Covenant Period,
Executive agrees not to engage in any manner, whether as an officer, employee,
owner, partner, stockholder, director, consultant or otherwise -- directly or
indirectly -- in any business which engages or attempts to engage, directly or
indirectly, in any business in which the Company engages within the United
States, as determined by NationsBank in its reasonable discretion; provided,
however, that Executive may (i) acquire an interest in a business entity so long
as such interest is a passive investment of Executive not exceeding five percent
(5%) of the total ownership interest in such entity or (ii) engage in any other
activities as approved in writing in advance by NationsBank.
(c) Trade Secrets and Confidential Information.
Executive hereby agrees that he will hold in a fiduciary capacity for the
benefit of the Company, and shall not directly or indirectly use or disclose any
Trade Secret, as defined hereinafter, that Executive may have acquired during
the term of his employment by the Company for so long as such information
remains a Trade Secret. The term "Trade Secret" as used in this Agreement shall
mean information including, but not limited to, technical or nontechnical data,
a formula, a pattern, a compilation, a program, a device, a method, a technique,
a drawing, a process, financial data, financial plans, product plans, or a list
of actual or potential customers or suppliers which derives economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use; and is the subject of reasonable efforts by the
Company to maintain its secrecy.
In addition to the foregoing and not in limitation thereof,
Executive agrees that during the Covenant Period he will
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hold in a fiduciary capacity for the benefit of the Company and shall not
directly or indirectly use or disclose, any Confidential or Proprietary
Information, as defined hereinafter, that Executive may have acquired (whether
or not developed or compiled by Executive and whether or not Executive was
authorized to have access to such Information) during the term of, in the course
of or as a result of his employment by the Company. The term "Confidential or
Proprietary Information" as used in this Agreement means any secret,
confidential or proprietary information of the Company not otherwise included in
the definition of "Trade Secret" above. The term "Confidential and Proprietary
Information" does not include information that has become generally available to
the public by the act of one who has the right to disclose such information
without violating any right of the Company.
4. Reasonable and Necessary Restrictions. Executive
acknowledges that the restrictions, prohibitions and other provisions of this
Agreement, including without limitation the Covenant Period, are reasonable,
fair and equitable in scope, term and duration, are necessary to protect the
legitimate business interests of NationsBank, and are a material inducement to
NationsBank to enter into this Agreement. Executive covenants that Executive
will not challenge the enforceability of this Agreement nor will Executive raise
any equitable defense to its enforcement.
5. Remedies. Executive acknowledges that the obligations
undertaken by Executive pursuant to this Agreement are unique and that
NationsBank likely will have no adequate remedy at law if Executive shall fail
to perform any of Executive's obligations hereunder, and Executive therefore
confirms that NationsBank's right to specific performance of the terms of this
Agreement is essential to protect the rights and interests of NationsBank.
Accordingly, in addition to any other remedies that NationsBank may have at law
or in equity, NationsBank shall have the right to have all obligations,
covenants, agreements and other provisions of this Agreement specifically
performed by Executive, and NationsBank shall have the right to obtain
preliminary and permanent injunctive relief to secure specific performance and
to prevent a breach or contemplated breach of this Agreement by Executive, and
Executive submits to the jurisdiction of the courts of the State of North
Carolina for this purpose. In addition, in the event Executive breaches any
provision of this Agreement, Executive shall forfeit and have no right to
receive any benefits under this Agreement from and after the date of such
breach.
6. Operations of Affiliates. Executive agrees that he will
refrain from (i) authorizing any Affiliate to perform or (ii) assisting in any
manner any Affiliate in performing any activities that would be prohibited by
the terms of this Agreement if they were performed by Executive.
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7. Withholding. Any payments to Executive hereunder
shall be less any applicable payroll or withholding taxes.
8. Miscellaneous Provisions.
(a) Binding Effect. Subject to any provisions
hereof restricting assignment, all covenants and agreements in this Agreement by
or on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors, assigns, heirs, and personal representatives. None of
the parties hereto may assign any of its rights under this Agreement or attempt
to have any other person or entity assume any of its obligations hereunder.
(b) Severability. If fulfillment of any provision
of this Agreement, at the time such fulfillment shall be due, shall transcend
the limit of validity prescribed by law, then the obligation to be fulfilled
shall be reduced to the limit of such validity; and if any clause or provision
contained in this Agreement operates or would operate to invalidate this
Agreement, in whole or in part, then such clause or provision only shall be held
ineffective, as though not herein contained, and the remainder of this Agreement
shall remain operative and in full force and effect.
(c) Governing Law. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto
shall be governed by and construed in accordance with the laws of the State of
North Carolina, not including the choice-of-law rules thereof.
(d) Amendment; Waiver. Except as otherwise
expressly provided in this Agreement, no amendment, modification or discharge of
this Agreement shall be valid or binding unless set forth in writing and duly
executed by each of the parties hereto. Any waiver by any party or consent by
any party to any variation from any provision of this Agreement shall be valid
only if in writing and only in the specific instance in which it is given, and
such waiver or consent shall not be construed as a waiver of any other provision
or as a consent with respect to any similar instance or circumstance.
(e) Headings. Paragraph and subparagraph headings
contained in this Agreement are inserted for convenience of reference only,
shall not be deemed to be a part of this Agreement for any purpose, and shall
not in any way define or affect the meaning, construction or scope of any of the
provisions hereof.
(f) Pronouns. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular or
plural, as the identity of the person or entity may require.
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(g) Execution in Counterparts. This Agreement may
be executed in two or more counterparts, none of which need contain the
signatures of all parties hereto and each of which shall be deemed an original.
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first set forth above.
NATIONSBANK CORPORATION
By: /s/ X. X. Xxxxxx
Name: X. X. Xxxxxx
Title: Executive Vice Pres.
"NationsBank"
/s/ Xxxxx X. Xxxxxxxx [SEAL]
Xxxxx X. Xxxxxxxx
"Executive"
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