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EXHIBIT 10.18
CHANGE OF CONTROL NON-
COMPETITION/NON-SOLICITATION AGREEMENT
THIS CHANGE OF CONTROL NON-COMPETITION/NON-SOLICITATION
AGREEMENT ("Agreement"), is made and entered into as of the 30th day of January,
2001, by and between XXX X. XXXXXX, an individual resident of the State of
Oklahoma, with mailing address of 0000 Xxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxx
00000 ("Norton") and LOCAL FINANCIAL CORPORATION, a Delaware corporation
("LFC"), and its wholly-owned subsidiary bank, LOCAL OKLAHOMA BANK, N.A., a
national banking association ("Bank"), both with address of 0000 X. X. 00xx
Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000 (LFC and Bank, together with their
respective subsidiaries and other affiliates, now existing or hereafter formed,
shall sometimes herein be referred to collectively as the "Companies").
RECITALS:
A. LFC is a one-bank holding company which owns all of the
issued and outstanding stock of Bank. Bank is engaged in the commercial banking
business in the State of Oklahoma, with principal offices in Oklahoma City,
Oklahoma, and branch locations at various sites all in the State of Oklahoma.
Bank currently has one wholly owned operating subsidiary corporation, Local
Securities Corporation.
X. Xxxxxx is employed and currently serves as the President of
LFC and of the Bank pursuant to the terms and conditions of that certain
Employment Agreement dated effective as of September 8, 1997, by and between
LFC, Bank and Norton, as amended by that certain First Amendment to Employment
Agreement dated November 6, 1998, by and between LFC, Bank and Norton, which are
being further amended and completely restated in that certain Amended and
Restated Employment Agreement being entered into by LFC, Bank and Norton
contemporaneously with this Agreement (herein collectively referred to as the
"Employment Agreement"). Neither the Employment Agreement nor any other existing
agreement between the Companies and Norton contain any covenants whereby Norton
agrees, after consummation of a Change of Control (as that term is defined below
in this Agreement), of LFC and/or the Bank: (i) not to compete with the
Companies, or (ii) not to solicit from the Companies any of their respective
employees and customers.
C. Accordingly, in order to protect LFC and the Bank against
the possible competition of Norton with the Companies, or the possible
solicitation by Norton of the existing customers and/or employees of the
Companies after the consummation of a Change of Control of LFC or the Bank, and
in order to protect the value of the good will of the businesses of the
Companies after a change of control, for the benefit of a potential future
acquiror of the Companies, the Board of Directors of LFC and the Bank,
respectively, deem it necessary and appropriate to induce Norton to enter into
this Agreement and thereby obtain his covenants not to compete with, or to
solicit the customers or employees of, the Companies after the consummation of a
Change of Control of LFC or the Bank. The respective Board of Directors of LFC
and the Bank each believe that the obtaining of these covenants from Norton for
the benefit of the Companies may make the
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Companies more attractive and valuable to a potential future acquirer or merger
partner of LFC or the Bank.
D. In addition, the respective Board of Directors of LFC and
the Bank each further believe that their agreement to pay Norton substantial
consideration to induce him to grant the covenants not to complete and not to
solicit for the benefit of the Companies, which are set forth herein (which
consideration will not be paid to Norton by the Companies unless and until such
time as a Change of Control of the Companies has, in fact, been consummated in
the future while he is still employed by the Companies, or as otherwise provided
herein), is a form of additional compensation to him which will align his
interests more closely with those of the shareholders of LFC.
E. Accordingly, LFC, the Bank and Norton are desirous of
entering into this Agreement in order to formalize the terms and conditions
pursuant to which, upon the consummation of a Change of Control in either or
both LFC and the Bank, LFC and the Bank will pay to Norton the cash
consideration described below and, in turn, Norton will grant to the Companies,
and their respective successors and assigns, at such time, for their benefit and
protection, the covenant not to compete and the covenant not to solicit
described below, for the period of time and covering the geographical area set
forth below.
NOW, THEREFORE, in consideration of the above Recitals, of the
payments to be made by LFC and the Bank to Norton, as stated below, of the
covenants being granted by Norton for the benefit and protection of the
Companies, as stated below, and of the other mutual covenants and agreements
herein contained and for such other good and valuable consideration set forth in
this Agreement, the receipt and sufficiency of which is hereby acknowledged by
each of LFC, the Bank and Norton, LFC, the Bank and Norton do hereby mutually
covenant and respectively agree as follows:
1. CONSIDERATION. As consideration and a material inducement
for Norton to execute and enter into this Agreement and for him to thereby grant
the covenants set forth below for the benefit and protection of the Companies,
LFC and the Bank agree to pay to Norton, within ten (10) business days after the
consummation of a Change of Control (as that term is defined and subject to the
conditions set forth in Section 2, below), of either LFC or the Bank, a gross
payment ("Gross Payment") by wire transfer of immediately available funds
pursuant to the wire transfer instructions to be provided, at such time, by
Norton to LFC or the Bank prior to the designated date of such payment ("Closing
Date") in an amount sufficient to cause Norton to receive as his consideration
for entering herein the net amount of exactly, i.e., not less and not more than
Six Hundred Fifty Thousand and No/100 Dollars ($650,000.00) ("Net Payment")
(i.e., after payment by him of all personal federal, state and local income or
excise tax liability incurred by him by reason of the receipt of the total
consideration to be paid to him under this Section 1, i.e., the Gross Payment).
The amount of the Gross Payment will be calculated at the time the payment is to
be paid on the basis of paying Norton a sufficient amount of monies to enable
him to fully pay all of his federal and Oklahoma personal income tax liability
generated by his receipt of the Gross Payment (as determined by applying the
then highest currently applicable rate of federal and Oklahoma personal income
tax to
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the Gross Payment) such that, after the payment in full of all such taxes,
Norton will retain a remaining balance therefrom in an amount at least equal to
the Net Payment (i.e., the Gross Payment shall be sufficient to pay all of the
federal and state personal income tax liability to be incurred by Norton by
reason of the receipt thereof leaving him after such payment with the Net
Payment of exactly $650,000.00). The Gross Payment will initially be calculated
on the assumption that Norton will not have to pay any federal excise tax
liability imposed on him for "Excess Parachute Payments" pursuant to Section
280G of the Internal Revenue Code of 1986 ("Code"), or any successor section
thereto, by reason of his receipt of that payment. Accordingly, consistent with
the purpose and intent of the parties under this Section 1, and as an integral
part of the consideration to be paid to Norton hereunder, LFC and the Bank
further covenant and agree to indemnify and hold Norton harmless from, and to
fully and promptly pay, any and all federal excise tax liability, and any and
all unanticipated additional personal federal or Oklahoma income tax liability,
that may be incurred by Norton by reason of the receipt of the Gross Payment
(including any form of taxes which cannot currently be anticipated), to include,
without limitation the unanticipated imposition of the federal excise tax on
"Excess Parachute Payments" pursuant to Section 280G of the Code. The liability
of LFC and the Bank to indemnify and hold Norton harmless from the payment of
any such unanticipated additional federal excise tax or any unanticipated
additional federal or state personal income taxes so incurred by him, as
provided for in the preceding sentence, shall be limited to the payment by LFC
or the Bank of whatever amount of such additional tax liability is necessary in
order to cause Norton to be able to retain the full amount of the Net Payment,
after the payment in full of all such applicable federal excise taxes, or any
additional personal federal and state income taxes so incurred by him. The
foregoing obligation shall include, specifically, the payment by LFC and the
Bank to Norton of all amounts necessary to enable him to pay any additional
amount of federal and state personal income taxes which are required to be paid
by reason of his receipt from LFC or the Bank of the amount needed to pay such
unanticipated federal excise taxes, or unanticipated additional personal federal
and state income taxes, as provided above in this Section 1, such that, in all
events, Norton will retain the full amount of the Net Payment after the payment
by him of all such taxes.
2. EFFECTIVENESS OF AGREEMENT; DEFINITION OF CHANGE OF
CONTROL. This Agreement including, specifically, without limitation, the
obligation of LFC and the Bank to pay to Norton the consideration described in
Section 1, above, and the obligation of Norton to grant the covenants not to
compete and not to solicit for the benefit and protection of the Companies, as
set forth and described in Sections 3 and 4 of this Agreement, below, shall not
be effective and enforceable by the respective parties hereto unless and until a
Change of Control of LFC or the Bank, as that term is defined below in this
Section 2, has been consummated while Norton is employed by LFC or the Bank
(except as otherwise provided below in this Section 2). If, prior to the
consummation of a Change of Control, (i) Norton voluntarily resigns from his
employment by LFC or the Bank without "Good Reason," or (ii) Norton's employment
by LFC or the Bank is terminated for "Cause" by LFC or the Bank, in either case,
in accordance with the provisions of Section 9(a) of his Employment Agreement
(to which reference is hereby made), as amended and restated this same date,
then, and in either of which events, this Agreement shall be null, void and of
no further force and effect as of the effective date of the termination of
Norton's employment for either of the foregoing reasons. On the other hand, if,
prior to the consummation of a Change of Control: (i) Norton is terminated
without "Cause" from his employment by LFC or the Bank, in
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accordance with the provisions of Section 9(a) of his Employment Agreement, or
(ii) Norton resigns his employment with LFC or the Bank for "Good Reason," as
that term is defined in Section 9(b) of his Employment Agreement, and, if, after
the termination of his employment under either of those circumstances, a Change
of Control shall then occur to either LFC or the Bank, which Change of Control
is the culmination of substantial negotiations with regard thereto which
commenced at any time prior to the first anniversary of the effective date of
the termination of Norton's employment for one of those two said reasons, then,
and in such event, Norton shall be (x) entitled to be paid the full amount of
the consideration provided for above in Section 1 of this Agreement after that
said Change of Control is so consummated (just as if he had still been employed
on that date) and (y) obligated to honor his covenants not to compete and not to
solicit granted by him for the benefit and protection of LFC and the Bank, as
set forth below in Sections 3 and 4 of this Agreement. For all purposes in this
Agreement, the term "Change of Control" shall mean the occurrence of any of the
following events:
(a) the consummation of any agreement of merger,
statutory share exchange or consolidation pursuant to which either LFC,
or the Bank, is merged or consolidated into, or more than eighty
percent (80%) of the outstanding shares of LFC's or the Bank's common
stock are acquired by, another corporation, partnership, limited
liability company, limited liability partnership, or any other business
entity; or
(b) another corporation or such other business entity
is merged or consolidated into LFC, or the Bank, in circumstances under
which the outstanding shares of LFC's or the Bank's common stock are
converted into or exchanged for cash or securities of another such
corporation or entity which was not a wholly-owned subsidiary of LFC or
the Bank at all times within one (1) year prior to the said merger or
consolidation; or
(c) (i) the consummation of sale of fifty percent
(50%) or more of the issued and outstanding common stock of the Bank by
LFC; or (ii) fifty percent (50%) or more of the issued and outstanding
common stock of LFC is acquired by persons (including corporations or
any other form of business entity) who are acting in concert; or (iii)
the consummation of the sale of all or substantially all of the assets
of the Bank by LFC, or of LFC by the Bank.
3. COVENANT OF NON-COMPETITION. If a Change of Control of LFC
or the Bank is consummated while Norton is an employee of LFC or the Bank, or,
as otherwise expressly provided in Section 2, above, in the period following the
termination of Norton's employment by LFC or the Bank in fulfillment of
substantial negotiations for a Change of Control commenced at any time prior to
the first anniversary of that termination, Norton expressly covenants and
agrees, for a period of five (5) years commencing with the Closing Date of the
consummation of such Change of Control of LFC or the Bank and terminating on the
fifth (5th) anniversary of such Closing Date, that neither he, nor any
corporation, partnership, limited liability company, limited liability
partnership, trust, or any other entity owned or controlled by him, shall,
either directly or indirectly, compete with, or own, manage, operate, control,
lend to, consult with, engage or participate in the ownership, management,
operation or control, or be connected with, whether as director, officer,
employee, agent, consultant or otherwise, any person, partnership, trust,
limited liability company, limited
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liability partnership, or other entity or corporation which is in competition in
any respect with the Companies within the geographic area constituting the State
of Oklahoma, by engaging in any banking activities or other business activities
comparable to any business being conducted by any of the Companies as of the
Closing Date of the consummation of the said Change of Control of LFC or the
Bank, to include, specifically, without limitation, accepting deposits or making
loans or otherwise being involved in any manner with any state or federal
banking association, or state or federal savings bank, or savings and loan
association, or state or federal credit union, or any other depositary
institution, or involved in any manner with any other business which is in any
way in competition with any of the businesses being conducted at such time by
any of the Companies in the State of Oklahoma. Norton will be permitted,
anything in this Agreement to the contrary notwithstanding, to own no more than
five percent (5%) of a class of equity securities issued by any aforesaid
competitor of LFC or the Bank, respectively, which is publicly traded and
registered under the provisions of Section 12 of the Securities Exchange Act of
1934.
4. COVENANT OF NON-SOLICITATION. If a Change of Control of LFC
or the Bank is consummated while Norton is an employee of LFC or the Bank, or,
as otherwise expressly provided in Section 2, above, in the period following the
termination of Norton's employment by LFC or the Bank in fulfillment of
substantial negotiations for a Change of Control commenced at any time prior to
the first anniversary of that termination, Norton further expressly covenants
and agrees, for a period of five (5) years commencing with the Closing Date of
the consummation of such Change of Control of LFC or the Bank and terminating on
the fifth (5th) anniversary of such Closing Date, that, neither he, nor any
corporation, partnership, limited liability company, limited liability
partnership, trust or any other entity owned or controlled by him shall, either
directly or indirectly, intentionally solicit business from, divert business
from, or attempt to convert to other methods of using the same type of
financial, banking or other types of business services or activities which are
being provided by any of the Companies during said period of time, any client,
customer, depositor or other account of any of the Companies, and, in addition,
during the above term of this covenant, shall not, directly or indirectly,
solicit for employment or employ any person who is, or was, during the two (2)
years previous to when Norton, or his affiliates, seeks to so employ him/her, an
employee of any of the Companies, without the express prior written consent of
the Companies by whom said individual is, or was, so employed. In addition,
during said period of time, Norton agrees not to disparage by word, action, deed
or otherwise the business reputation, financial condition, or, in any other
regard, the operation and ownership of any of the Companies. Norton further
agrees that the foregoing covenant not to solicit shall apply during the entire
five (5) year period specified above in this Section 4, within the geographic
area constituting the entire United States of America, without exception. For
purposes of the application of the foregoing covenant not to solicit, the terms
"customer, depositor, client or account" shall mean any person or entity, any
corporation, joint venture, partnership, limited liability company, limited
liability partnership, individual or other legal entity who maintained a deposit
relationship or had a loan account with the Bank, or otherwise transacted
business in any material respect with any of the Companies, within the two (2)
year period prior to the Closing Date of the consummation of the Change of
Control of LFC or the Bank, or which maintains a loan or a deposit account with
the Bank, or any of the Companies, or transacts any business with any of the
Companies, at any time during the five (5) year term of this covenant not to
solicit, as specified in this Section 4, above.
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5. CONSTRUCTION AND INTERPRETATION OF AGREEMENT. Norton
covenants and agrees that he has carefully read and considered the provisions
and scope of the covenants he has made in Sections 3 and 4, above, in this
Agreement and has been advised by his legal counsel concerning the meaning and
effect of all aspects of this Agreement and, specifically, of the covenants not
to compete and not to solicit set forth in Sections 3 and 4, above. Norton
agrees that the restrictions set forth in this Agreement as to the time period
and the geographic area restrictions of the non-competition and non-solicitation
covenants set forth above in Sections 3 and 4 of this Agreement, respectively,
are fair and reasonable and are reasonably required for the benefit of and the
protection of the interests of the Companies and of the good will of the
Companies which any person or entity that purchases or merges with LFC or the
Bank will acquire in the Companies by reason thereof. In the event that,
notwithstanding the foregoing, any of the provisions of this Agreement shall be
held to be invalid or unenforceable, the remaining provisions thereof shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable provision had not been included therein. In the event that any of
the above provisions relating to the time period and/or geographical area of the
restrictions imposed by said covenants in Sections 3 and 4, above, shall be
declared by a court of competent jurisdiction to exceed the maximum time period
or geographical area such court deems reasonable and enforceable, said time
period and/or geographical area of restriction shall be deemed to become and
thereafter be the maximum time period and/or geographical area which such court
deems reasonable and enforceable under the applicable law.
6. THE COMPANIES' ENTITLEMENT TO EQUITABLE REMEDIES IN THE
EVENT OF NORTON'S BREACH OF THE COVENANTS GRANTED BY HIM FOR THE BENEFIT OF THE
COMPANIES IN THIS AGREEMENT. Norton hereby specifically covenants and agrees
that a breach by him of the foregoing covenant not to compete with the
Companies, as set forth in Section 3, above, and/or of the foregoing covenant
not to solicit the customers, clients or employees of the Companies, as set
forth in Section 4, above, would result in irreparable harm to the Companies
which would be difficult, if not impossible, to ascertain, and thus that there
would not be an adequate remedy at law available to the Companies in such event
by reason of that fact. As a result, Norton specifically agrees that in the
event of any such breach by him under this Agreement, any of the Companies, or
their respective successors or assigns, shall have the right to enforce the
covenants set forth in Sections 3 and 4 of this Agreement, above, respectively,
by injunction or by such other appropriate proceeding in equity. In addition, if
Norton shall breach any of the terms of this Agreement, any of the Companies, or
their respective successors and assigns, if they so elect, shall also be
entitled to recover from him the court costs, expenses and reasonable attorneys'
fees incurred by any of the Companies in connection with enforcing their
respective rights hereunder and/or pursuing any remedies available to them in
enforcing such rights, whether at law or in equity.
7. ENTIRETY. This Agreement embodies the entire agreement
between Norton and LFC and the Bank with respect to the matters described
herein, and there have been and there are no other agreements, representations
or warranties between the parties hereto with regard to the subject matter of
this Agreement other than those set forth herein and in the Employment Agreement
to which reference has been made herein.
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8. MODIFICATION, WAIVER. The terms of this Agreement cannot be
changed, modified, amended, released or discharged orally, but only by an
agreement in writing by and between Norton and LFC and the Bank which, on the
part of LFC and the Bank, has been specifically approved, in advance, by their
respective Board of Directors.
9. COUNTERPARTS; AUTHORIZATIONS. Any number of counterparts of
this Agreement may be executed and each such counterpart shall be deemed an
original instrument, but all such counterparts together shall constitute but one
and the same instrument. Each counterpart, when executed, shall be binding for
all purposes hereof, on the executed party, his or its respective heirs,
personal representatives, successors and assigns. The execution and delivery of
this Agreement by LFC and the Bank and the performance of their respective
obligations hereunder have been duly and specifically authorized by the Board of
Directors of LFC and the Bank, respectively.
10. LAW, JURISDICTION AND VENUE. This Agreement shall be
construed by, and enforced under and in accordance with, and shall be governed
by, federal law to the extent applicable and otherwise by the laws and decisions
of the State of Oklahoma and shall be enforceable in the state courts of
Oklahoma County, Oklahoma, which shall have exclusive venue of any actions
brought with regard to this Agreement.
11. SUCCESSORS AND ASSIGNS; LACK OF ASSIGNABILITY - NO THIRD
PARTY BENEFIT. This Agreement shall be fully binding upon and shall inure to the
benefit of and be enforceable by and against Norton, LFC and the Bank, and their
respective successors, assigns, heirs and personal representatives. No
assignment or other transfer by Norton of any right or obligation under this
Agreement shall operate to, or relieve, or discharge Norton in any manner, from
any covenant, obligation, term or condition of this Agreement. Nothing expressed
or referred to in this Agreement, whether express or implied, is intended to
convey upon any person, other than the parties hereto, and their respective
heirs, personal representatives, successors and assigns, any rights or remedies
under or by reason of this Agreement or any provision hereof.
12. NOTICES. All communications and notices provided for under
this Agreement shall be in writing and shall be deemed to have been given if
mailed postage prepaid (registered or certified United States Mail, return
receipt requested) addressed to Norton at the address first set forth opposite
his name above, and to LFC and the Bank at the address first set forth opposite
their names above, until some other address shall have been given in writing by
one party to the other parties hereto in a manner complying with the
requirements of this Section 12.
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IN WITNESS WHEREOF, Norton and LFC and the Bank have each
caused this Agreement to be executed as of the date and year first above
written.
NORTON: /s/ Xxx X. Xxxxxx
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XXX X. XXXXXX, an Individual
LFC: LOCAL FINANCIAL CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board of
Directors and Chief Executive
Officer
Date: January 30, 2001
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BANK: LOCAL OKLAHOMA BANK, N.A.,
a national banking association
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board of
Directors and Chief Executive
Officer
Date: January 30, 2001
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