Exhibit 10.4
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (the "AGREEMENT") is made and entered
into as of ___________, 2002, by and between Washington Trust Bancorp, Inc.
(the "COMPANY") and Xxxxxxx X. Xxxxxxxx, Xx. (the "EXECUTIVE").
WITNESSETH:
WHEREAS, the Company and First Financial Corp., (the "SELLER") have
entered into an Agreement and Plan of Merger dated as of November 12, 2001
(the "MERGER AGREEMENT") pursuant to which Seller will merge with and into
Buyer (the "MERGER");
WHEREAS, the Executive is currently the Chairman, Chief Executive
Officer and President of the Seller and the parties acknowledge that the
Executive has considerable knowledge, business contacts and expertise
relating to the business of the Company, which knowledge, contacts and
expertise, if used in competition with the Company would substantially harm
the business and financial prospects of the Company;
WHEREAS, the execution of this Agreement is a condition precedent to
the Company's obligations to consummate the Merger
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and other good valuable consideration, the parties hereto agree as
follows:
1. AGREEMENT CONSIDERATION
In consideration for execution of this Agreement and the Executive's
performance of the covenants of the Executive contained herein, the Company
agrees to pay to the Executive $840,000.00 within two (2) business days
following consummation of the Merger. It is understood and agreed that the
execution and delivery of this Agreement by the Executive is a material
inducement to the willingness of the Company to enter into the Merger Agreement
and to consummate the transactions contemplated thereby.
2. NON-COMPETE
The Executive agrees that during the three-year period following
consummation of the Merger, the Executive will not, directly or indirectly, (i)
become a director, officer, employee, principal, agent, consultant or
independent contractor of any insured depository institution, trust company or
parent holding company of any such institution or company which has an office in
Rhode Island, Massachusetts or Connecticut (a "COMPETING BUSINESS"); PROVIDED,
HOWEVER, that this provision shall not prohibit the Executive from owning bonds,
non-voting preferred stock or up to two percent (2%) of the outstanding common
stock of any such entity if such common stock is publicly traded; PROVIDED,
FURTHER, HOWEVER, that this provision shall not prohibit the Executive from
owning the common stock or from serving as a director of the Company or any of
its subsidiaries, (ii) solicit or induce, or cause others to solicit or induce,
any employee of the Company or any of its subsidiaries to leave the employment
of such entities or (iii) solicit (whether by mail, telephone, personal meeting
or any other means) any customer of the
Company or any of its subsidiaries to transact banking business with any other
entity, whether or not a Competing Business, or to reduce or refrain from doing
any banking business with the Company or its subsidiaries, or interfere with or
damage (or attempt to interfere with or damage) any banking relationship between
the Company or its subsidiaries and any such customers.
3. CONFIDENTIALITY
Except as required by law or regulation (including without limitation
in connection with any judicial or administrative process or proceeding), the
Executive shall keep secret and confidential and shall not disclose to any third
party (other than the Company or its subsidiaries) in any fashion or for any
purpose whatsoever any information regarding the Company, Seller or any of their
respective subsidiaries, which is not available to the general public to which
he had access at any time during the course of his employment by Seller or its
subsidiaries, including without limitation, any such information relating to:
business or operations, plans, strategies, prospects or objectives; products,
technology, processes or specifications; research and development, operations or
plans; customers and customer lists; distribution, sales, service, support and
marketing practices and operations; financial condition, results of operations
and prospects; operational strengths and weaknesses; and personnel and
compensation policies and procedures.
4. INJUNCTIVE RELIEF; REMEDIES
The Executive agrees that damages at law will be an insufficient remedy
to the Company in the event that the Executive violates any of the provisions of
Sections 2 or 3, and that the Company may apply for and, upon the requisite
showing, have injunctive relief in any court of competent jurisdiction to
restrain the breach of threatened or attempted breach of or otherwise to
specifically enforce any of the covenants contained in Section 2 or 3. The
Executive also agrees that such remedies shall be in addition to any and all
remedies, including damages, available to the Company against the Executive for
such breaches or threatened or attempted breaches.
5. RELEASE
(a) For, and in consideration of the commitments made herein by the
Company, the Executive, for himself and for his heirs, successors and assigns,
does hereby release completely and forever discharge the Company and its
subsidiaries, affiliates, stockholders, attorneys officers, directors, agents
and employees, successors and assigns, and any other party associated with the
Company (the "RELEASED PARTIES"), to the fullest extent permitted by applicable
law, from any and all claims, rights, demands, actions, liabilities,
obligations, causes of action of any and all kind, nature and character
whatsoever, know or unknown, in any way connected with his employment by Seller
or any of its subsidiaries (including in each case predecessors thereof) either
as a director, officer or employee, or in connection with the termination of
such employment. Notwithstanding the foregoing, the Executive does not release
the Company from any obligations of the Company, Seller or any of their
respective subsidiaries to the Executive under (i) any employee benefit plan,
agreement or arrangement of Seller or the Company or any of their respective
subsidiaries, whether or not referred to in this Agreement, pursuant to which
the Executive is entitled to any benefits or payments, (ii) the Merger Agreement
and (iii) this Agreement.
(b) For and in consideration of the commitments made herein by the
Executive, including without limitation the releases in paragraph (a) above, the
Company, for itself, and for its successors and assigns does hereby release
completely and forever discharge the Executive and his heirs, successors and
assigns, to the fullest extent permitted by applicable law, from any and all
claims, rights, demands, actions, liabilities, obligations, causes of action of
any and all kind, nature and character whatsoever, known or unknown, in any way
connected with the Executive's employment by Seller or any of its subsidiaries
(including predecessors thereof), either as a director, officer or employee.
Notwithstanding anything in the foregoing to the contrary, the Company does not
release the Executive from claims arising out of any breach by the Executive of
(i) any law or regulation by the Executive during the term of and related to his
employment by Seller or any of its subsidiaries (including predecessors
thereof), either as a director, officer or employee, or (ii) this Agreement.
6. NO DISPARAGEMENT.
The Executive agrees that he shall not, directly or indirectly, make
any statement (whether orally, in writing or through any other media), or take
any other action, if such statement, or action is intended or could reasonably
be expected to disparage the Company, or any of its affiliates or to adversely
affect the reputation or business or credit standing of the Company or any of
its affiliates.
7. REPRESENTATIONS AND WARRANTIES
The Company and the Executive represent and warrant to each other that
they have carefully read this Agreement and consulted with respect thereto with
their respective counsel and that each of them fully understands the content of
this Agreement and its legal effect. Each party hereto also represents and
warrants that this Agreement is a legal, valid and binding obligation of such
party which is enforceable against it in accordance with its terms.
8. SUCCESSORS AND ASSIGNS
This Agreement will inure to the benefit of and be binding upon the
Executive and his heirs, successors and assigns, and upon the Company, including
any successor to the Company by merger or consolidation or any other change in
form or any other person or firm or corporation to which all or substantially
all of the assets and business of the Company may be sold or otherwise
transferred. This Agreement may not be assigned by any party hereto without the
consent of the other party.
9. NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally, telecopied (with confirmation),
or delivered by an express courier (with confirmation) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
if to the Company, to:
Washington Trust Bancorp, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, President
and Xxxx X. Xxxxxx, Chief Executive Officer
with copies to:
Xxxxxxx Procter LLP
Exchange Place
Boston, MA 02109-2881
Attn: Xxxx X. Xxx, P.C.
and Xxxx X. Xxxxxxxx, Esq.
and
if to the Executive, to
Xxxxxxx X. Xxxxxxxx, Xx.
00 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx, XX 00000
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
and Xxxxxxx X. Xxxxxxxx, Esq.
10. WITHHOLDING
The Company may withhold from any amounts payable under this Agreement
such Federal, state, local or foreign taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
11. ENTIRE AGREEMENT; SEVERABILITY
(a) This Agreement incorporates the entire understanding between the
parties relating to the subject matter hereof, recites the sole consideration
for the promises exchanged and supersedes any and all prior agreements, both
written and oral, between the Company and the Executive or the Seller and the
Executive, in either case with respect to the subject hereof. In reaching this
Agreement, no party has relied upon any representation or promise except those
set forth herein.
(b) Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of
this Agreement or affecting the validity or enforceability of any of the terms
and provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable. In all such cases, the
parties shall use their reasonable best efforts to substitute a valid, legal and
enforceable provision which, insofar as practicable, implements the original
purposes and intents of this Agreement.
12. WAIVER
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
13. COUNTERPARTS
This Agreement may be executed in counterparts, all of which shall be
considered one and the same agreement and shall become effective when
counterparts have been signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign the same
counterpart.
14. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Rhode Island applicable to agreements
made and entirely to be performed within the jurisdiction.
15. HEADINGS
The headings of sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section. Any
reference to a section number shall refer to a section of this Agreement, unless
otherwise stated.
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IN WITNESS WHEREOF, the Company and the Executive have caused this
Agreement to be executed as of the date first above written.
WASHINGTON TRUST BANCORP, INC.
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By:
Title:
EXECUTIVE:
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Xxxxxxx X. Xxxxxxxx, Xx.
NONCOMPETITION AGREEMENT
