EXHIBIT 17(b)
FORM OF NON-COMPETE AGREEMENT
This NON-COMPETE AGREEMENT (the "Agreement"), made this ___ day of
August, 2005, by and between Shay Assets Management, Inc. ("SAMI"), a Florida
corporation, having offices at 000 X. Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
and [[Co-operative Bank Investment Fund (d/b/a Bank Investment Fund) ("BIF"), a
corporation organized pursuant to a special act of the Commonwealth of
Massachusetts (Massachusetts Acts of 1984, Chapter 482, as amended), having
offices at 00 Xxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000] / [Xxxxxxx X. Xxxxx,
Xx./Xxxxx X. Xxxxx/Xxxxxxxxx Xxx, an individual residing at _____ (the
"Officer").]]
WHEREAS, SAMI and Asset Management Fund, an investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), advised by SAMI, has entered into an Agreement and Plan of
Reorganization, [dated the date hereof] (the "Plan of Reorganization"), with
[BIF/Bank Investment Fund ("BIF")], an investment company registered under the
1940 Act [for which the Officer serves as an officer], providing for the
reorganization of Fund One and Liquidity Fund, each a series of BIF, into Short
U.S. Government Fund and Money Market Fund, each a series of Asset Management
Fund, respectively.
NOW THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and sufficient of which are hereby
acknowledged, the parties hereto agree as follows:
1. Non-Compete.
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(a) Scope of Non-Compete Agreement.
(i) [BIF/The Officer] agrees that for a period of five
years from the Closing Date (as defined in the Plan
of Reorganization) (the "Covenant Period"), [BIF and
any of its affiliates/the Officer] shall not,
directly or indirectly, or through any affiliate, act
as or render services to an investment adviser,
investment sub-adviser, principal underwriter or
distributor of any open-end or closed-end investment
company registered under the 1940 Act that markets
itself for investment by banks, savings associations
or credit unions anywhere in the United States of
America, or otherwise be involved in the investment
management, underwriting or distributing of any such
investment company (a "Competing Business").
(ii) During the Covenant Period, [BIF or any of its
affiliates/the Officer] shall not, directly or
indirectly (including, without limitation, either
alone or as a partner, director, officer, employee,
joint venturer or stockholder of, or as a consultant
or other independent contractor to or agent or
representative for, any company, business, individual
or other entity (including BIF)), hire or solicit any
employee of, or independent contractor or consultant
to, SAMI or any of its affiliates or request any
employee of, or independent contractor or consultant
to, SAMI or any of its affiliates to leave the employ
of or cease consulting for SAMI or such affiliates,
provided that this restriction shall not apply to
persons providing
exclusively clerical or ministerial functions to SAMI
or any of its affiliates; solicit or request any
employee of, or consultant or independent contractor
to, SAMI or any of its affiliates to become a
shareholder, partner, member, officer or employee of,
or consultant or independent contractor to, any
Competing Business; solicit or request any Competing
Business to employ any employee of or consultant to
SAMI or any of its affiliates; or solicit or request
any customer or client of SAMI or any shareholder of
an investment company managed by SAMI to become a
customer, client or shareholder of a Competing
Business.
(iii) If [BIF/the Officer] violates the provisions of
Section 1(a)(i) or (ii) above, the Covenant Period
shall be extended by the number of months during
which [BIF/the Officer] was in violation thereof.
(b) Compensation.
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For the agreement not to compete under this Section 1, SAMI
(or an affiliate) shall pay [BIF/the Officer], and subject to
the consummation of the transactions contemplated by the Plan
of Reorganization, [$2,500] in cash as an advance against the
compensation payable under this Section 1(b). [BIF/The
Officer] shall earn such advance payment by complying with
this Agreement during the Covenant Period. In the event that
this Agreement is breached during the Covenant Period, in
addition to any other remedies to which SAMI shall be entitled
(including specific performance of this Agreement through the
end of the Covenant Period), such advance shall be immediately
repayable. On the date of such breach, [BIF/the Officer] shall
pay SAMI an amount equal to the product of (i) [$41.67] and
(ii) the number of full or partial months remaining until the
end of the Covenant Period. In all other cases, the
compensation advance shall be deemed earned at the end of the
Covenant Period.
(c) Early Termination.
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If the transactions contemplated by the Plan of Reorganization
are not consummated, this Agreement shall terminate effective
with the termination of the Plan of Reorganization.
2. Equitable Remedies.
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The restrictions contained in this Agreement are necessary for the
protection of the business goodwill of SAMI and its affiliates and are
considered by [BIF/the Officer] to be reasonable for such purpose.
[BIF/The Officer] agrees that any breach of this Agreement is likely to
cause SAMI substantial and irrevocable damage and therefore, in the
event of any such breach, [BIF/the Officer] agrees that SAMI, in
addition to such other remedies which may be available, shall be
entitled to specific performance and other injunctive relief, without
bond.
3. Severability; Reformation.
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If any provision of this Agreement is held invalid by a court, the
remaining provisions will nonetheless be enforced according to their
terms. Further, if any provision is held to be over broad, a court may
modify that provision to the extent necessary to make the provision
enforceable according to applicable law, and enforce the provision as
modified.
4. Assignment.
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This Agreement and the rights and obligations of the parties hereunder
may not be assigned or delegated by either party, except that SAMI
shall have the right to assign this Agreement to an affiliate of SAMI.
This Agreement shall inure to the benefit of the successors, heirs,
executors, personal representatives, administrators and permitted
assigns of SAMI and of [BIF/the Officer].
5. Headings.
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Headings and sub-headings are for convenience only and shall not be
deemed to be part of this Agreement.
6. Amendments; Waiver.
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This Agreement may be amended or modified in whole or in part, only by
an instrument in writing signed by all parties hereto. Any waiver by
either party to this Agreement of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any
subsequent breach of the same or any other provision hereof.
7. Notices.
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Any notices or other communications required hereunder shall be in
writing and shall be deemed given when delivered in person, when sent
by overnight courier or by facsimile provided that confirmation of
receipt is received, or when mailed, by certified or registered
first-class mail, postage pre-paid, return receipt requested, addressed
to the appropriate address set forth on the first page of this
Agreement, or to such other address as either party shall have notified
the other in accordance with the provisions of this Section 7.
8. Counterparts.
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This Agreement may be executed in two or more counterparts, each of
which shall constitute an original and all of which shall be deemed a
single agreement.
9. Governing Law.
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This Agreement shall be construed in accordance with and governed for
all purposes by the laws and public policy of the State of Illinois. In
enforcing such governing laws and public policy, any court of competent
jurisdiction shall afford all relief which an Illinois court would
afford under the circumstances.
10. Entire Agreement.
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This Agreement constitutes the sole and entire agreement of the parties
as to the matters set forth herein and supersedes any previous
agreements, understandings and arrangements between the parties hereto.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete
Agreement as of the date and year first above written.
[CO-OPERATIVE BANK INVESTMENT FUND
(D/B/A BANK INVESTMENT FUND)
By:
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Name:
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Title: ]
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[Officer]
SHAY ASSETS MANAGEMENT, INC.
By:
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Name: Xxxxxx X. Xxxx, Xx.
Title: President
