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EXHIBIT 10.17
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 XXXXXX X. XXXXXXXX, an individual resident of the State of
Oklahoma, with mailing address of 00000 X. 000, Xxxxx, Xxxxxxxx 00000
("Xxxxxxxx") 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. Xxxxxxxx is employed and currently serves as the Chairman
of the Board of Directors and Chief Executive Officer 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 Xxxxxxxx, as
amended by that certain First Amendment to Employment Agreement dated November
6, 1998, by and between LFC, Bank and Xxxxxxxx, which are being further amended
and completely restated in that certain Amended and Restated Employment
Agreement being entered into by LFC, Bank and Xxxxxxxx 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 Xxxxxxxx contain any covenants whereby Xxxxxxxx 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 Xxxxxxxx with the Companies, or the possible
solicitation by Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx
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 Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx the cash
consideration described below and, in turn, Xxxxxxxx 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 Xxxxxxxx, as stated below, of the
covenants being granted by Xxxxxxxx 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 Xxxxxxxx, LFC, the Bank and Xxxxxxxx do hereby
mutually covenant and respectively agree as follows:
1. CONSIDERATION. As consideration and a material inducement
for Xxxxxxxx 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 Xxxxxxxx, 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 Xxxxxxxx to LFC or the Bank prior to the designated date of such
payment ("Closing Date"), in an amount sufficient to cause Xxxxxxxx to receive
as his consideration for entering herein the net amount of exactly, i.e., not
less and not more than Three Million and No/100 Dollars ($3,000,000.00) ("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 Xxxxxxxx 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,
Xxxxxxxx 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 Xxxxxxxx
by reason of the receipt thereof leaving him after such payment with the Net
Payment of exactly $3,000,000.00). The Gross Payment will initially be
calculated on the assumption that Xxxxxxxx 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 Xxxxxxxx hereunder, LFC
and the Bank further covenant and agree to indemnify and hold Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx
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 Xxxxxxxx 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 Xxxxxxxx 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, Xxxxxxxx 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 Xxxxxxxx the consideration described in
Section 1, above, and the obligation of Xxxxxxxx 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 Xxxxxxxx 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) Xxxxxxxx voluntarily resigns from his
employment by LFC or the Bank without "Good Reason," or (ii) Xxxxxxxx'x
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 Xxxxxxxx'x employment for either of the foregoing reasons. On the other hand,
if, prior to the consummation of a Change of
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Control: (i) Xxxxxxxx is terminated without "Cause" from his employment by LFC
or the Bank, in accordance with the provisions of Section 9(a) of his Employment
Agreement, or (ii) Xxxxxxxx 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 Xxxxxxxx'x employment for one of
those two said reasons, then, and in such event, Xxxxxxxx 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 Xxxxxxxx is an employee of LFC or the Bank, or,
as otherwise expressly provided in Section 2, above, in the period following the
termination of Xxxxxxxx'x 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, Xxxxxxxx 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
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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 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; provided, however, anything
herein to the contrary notwithstanding, Xxxxxxxx shall be specifically entitled
to conduct banking activities, or to own or operate a federal or state banking
association, or corporation, or a state or federal savings bank, or a savings
and loan association, or a state or federal credit union, or any other
depository institution whose operations and offices are limited solely to the
geographical area constituting Delaware County in the State of Oklahoma, or to
conduct or operate any of the other businesses or activities being conducted by
any of the Companies on the Closing Date, as long as such businesses or
activities are limited solely to the geographical area of Delaware County,
Oklahoma. In addition, Xxxxxxxx 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 Xxxxxxxx is an employee of LFC or the Bank, or,
as otherwise expressly provided in Section 2, above, in the period following the
termination of Xxxxxxxx'x 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, Xxxxxxxx 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 Xxxxxxxx, 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, Xxxxxxxx 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. Xxxxxxxx further
agrees that the foregoing covenant not to solicit shall apply during the entire
five (5) year period
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specified above in this Section 4, within the geographic area constituting the
State of Oklahoma, 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.
5. CONSTRUCTION AND INTERPRETATION OF AGREEMENT. Xxxxxxxx
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. Xxxxxxxx
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 XXXXXXXX'X BREACH OF THE COVENANTS GRANTED BY HIM FOR THE BENEFIT OF
THE COMPANIES IN THIS AGREEMENT. Xxxxxxxx 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, Xxxxxxxx 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
Xxxxxxxx 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
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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 Xxxxxxxx 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.
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 Xxxxxxxx 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 Xxxxxxxx, LFC and the Bank, and
their respective successors, assigns, heirs and personal representatives. No
assignment or other transfer by Xxxxxxxx of any right or obligation under this
Agreement shall operate to, or relieve, or discharge Xxxxxxxx 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 Xxxxxxxx at the address first set forth opposite
his name above, and to LFC and the Bank at the address first set forth opposite
their
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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, Xxxxxxxx and LFC and the Bank have each
caused this Agreement to be executed as of the date and year first above
written.
XXXXXXXX: /s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX, an Individual
LFC: LOCAL FINANCIAL CORPORATION,
a Delaware corporation
By: /s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: President
Date: January 30, 2001
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BANK: LOCAL OKLAHOMA BANK, N.A.,
a national banking association
By: /s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: President
Date: January 30, 2001
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