Exhibit 10.1
NON-COMPETITION AND VOTING AGREEMENT
This Non-Competition Agreement and Voting Agreement ("NON-COMPETITION
AGREEMENT"), dated as of July 14, 2005, is made by and among Glacier Bancorp,
Inc. ("GLACIER") First Security Bank of Missoula, ("FSB-MISSOULA"); Xxxxxxxx
Falls Holding Co. ("TFHC"); First State Bank ("FSB-XXXXXXXX FALLS"); and Xxxxxx
X. Xxxxxx and Xxxxxx Xxxxxxxx, each of whom is a director, officer and
controlling shareholder of TFHC and the FSB-Xxxxxxxx Falls.
RECITALS
A. Glacier, TFHC, FSB-Missoula, and FSB-Xxxxxxxx Falls have entered into a
Plan and Agreement of Merger (the "MERGER AGREEMENT") dated as of the date
hereof, pursuant to which TFHC will merge with and into Glacier and
FSB-Xxxxxxxx Falls will merge with and into FSB-Missoula (the
"TRANSACTION").
B. The parties to this Non-Competition Agreement believe that the future
success and profitability of FSB-Missoula and Glacier in Xxxxxxx County,
Montana, following the Transaction require that neither Xxxxxx X. Xxxxxx
nor Xxxxxx Xxxxxxxx be affiliated in any substantial way with a Competing
Business (as defined herein) for a reasonable period of time after closing
of the Transaction and/or termination of his status as a consultant to
FSB-Missoula.
AGREEMENT
In consideration of the parties' performance under the Merger Agreement,
the parties agree as follows:
1. DEFINITIONS. Capitalized terms not defined in this Non-Competition
Agreement have the meaning assigned to those terms in the Merger
Agreement. The following definitions also apply to this Non-Competition
Agreement:
a. Combined Entity. "COMBINED ENTITY" means Glacier and FSB-Missoula,
after giving effect to the Transaction.
b. Competing Business. "COMPETING BUSINESS" means any financial
institution or trust company (including without limitation, any
start-up or other financial institution or trust company in
formation) or holding company thereof that competes or will compete
within the Covered Area with the Combined Entity or any of its
subsidiaries or affiliates.
c. Covered Area. "COVERED AREA" means Xxxxxxx County, Montana.
d. Term. "TERM" means the period of time beginning on the Effective
Date and ending on the later of (i) three years after the Effective
Date or (ii) two years following termination of status as a
consultant to FSB-Missoula.
2. PARTICIPATION IN COMPETING BUSINESS. Except as provided in Section 5 or 6,
during the Term neither Xxxxxx X. Xxxxxx nor Xxxxxx Xxxxxxxx may become
involved with a Competing Business or serve, directly or indirectly, a
Competing Business in any manner, including without limitation, (a) as a
shareholder, member, partner, director, officer, manager, investor,
organizer, founder, employee, consultant, agent, or representative, or (b)
during the organization and pre-opening phases in the formation of a
Competing Business.
3. NO SOLICITATION. During the Term, neither Xxxxxx X. Xxxxxx nor Xxxxxx
Xxxxxxxx may, directly or indirectly, solicit or attempt to solicit (a)
any employees of the Combined Entity or any of its subsidiaries or
affiliates to participate, as an employee or otherwise, in any manner in a
Competing Business, or (b) any customers of the Combined Entity or its
subsidiaries or affiliates to transfer their business to a Competing
Business. Solicitation prohibited under this section includes solicitation
by any means, including, without limitation, meetings, letters or other
mailings, electronic communications of any kind, and internet
communications.
4. CONFIDENTIAL INFORMATION. During and after the Term, neither Xxxxxx X.
Xxxxxx nor Xxxxxx Xxxxxxxx will disclose any confidential information of
the Combined Entity or its subsidiaries or affiliates obtained by him
regarding the Combined Entity except in accordance with a judicial or
other governmental order.
5. OUTSIDE COVERED AREA. Nothing in this Non-Competition Agreement prevents
Xxxxxx X. Xxxxxx or Xxxxxx Xxxxxxxx from becoming involved with, as a
shareholder, member, partner, director, officer, manager, investor,
organizer, founder (including the pre-opening phases in the formation of a
Competing Business), employee, consultant, agent, representative, or
otherwise, with a Competing Business that has no operations in the Covered
Area.
6. PASSIVE INTEREST. Notwithstanding anything to the contrary contained
herein, nothing in this Non-Competition Agreement shall prevent Xxxxxx X.
Xxxxxx or Xxxxxx Xxxxxxxx from owning 5% or less of any class of security
of a Competing Business.
7. VOTING AND OTHER MATTERS. Each of Xxxxxx X. Xxxxxx and Xxxxxx Xxxxxxxx
will vote or cause to be voted all shares of TFHC's common stock that he
beneficially owns, with power to vote or direct the voting (the "SHARES"),
in favor of approval of the Merger Agreement and the Transaction.
8. NO TRANSFER. Until the earlier of the consummation of the Transaction or
the termination of the Merger Agreement, neither Xxxxxx Xxxxxxxx nor
Xxxxxx X. Xxxxxx will sell, permit a lien or other encumbrance to be
created with respect to, or grant any proxy in respect of (except for
proxies solicited by the board of directors of TFHC in connection with
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TFHC's shareholders' meeting at which the Transaction is presented for
shareholder approval) any Shares, unless all other parties to any such
sale or other transaction enter into an agreement in form and substance
satisfactory to Glacier embodying the benefits and rights contained in
this Non-Competition Agreement.
9. REMEDIES. Any breach of this Non-Competition Agreement by Xxxxxx X. Xxxxxx
or Xxxxxx Xxxxxxxx will entitle the Combined Entity, together with its
successors and assigns, to injunctive relief and/or specific performance,
as well as to any other legal or equitable remedies they may be entitled
to.
10. GOVERNING LAW AND ENFORCEABILITY. This Non-Competition Agreement is
governed by, and will be interpreted in accordance with, the laws of the
State of Montana. If any court determines that the restrictions set forth
in this Non-Competition Agreement are unenforceable, then the parties
request such court to reform these provisions to the maximum restrictions,
term, scope or geographical area that such court finds enforceable.
11. INDIVIDUAL OBLIGATIONS. The obligations of each of Xxxxxx X. Xxxxxx or
Xxxxxx Xxxxxxxx under this Non-Competition Agreement are intended to be
several and not joint.
12. COUNTERPARTS. The parties may execute this Non-Competition Agreement in
one or more counterparts, including facsimile counterparts. All the
counterparts will be construed together and will constitute one Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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This Noncompetition and Voting Agreement is signed as of July 14, 2005:
GLACIER BANCORP, INC. XXXXXXXX FALLS HOLDING CO.
By /s/ Xxxxxxx X. Xxxxxxxx By /s/ Xxxxxx X. Xxxxxx
----------------------------------- ----------------------------------
Xxxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxx
President & Chief Executive Officer President & Chief Executive Officer
FIRST SECURITY BANK OF MISSOULA FIRST STATE BANK
By /w/ Xxxxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxx
---------------------------------- -----------------------------------
Chief Executive Officer Xxxxxx X. Xxxxxx
President & Chief Executive Officer
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx Xxxxxxxx
------------------------------------- --------------------------------------
Xxxxxx X. Xxxxxx Xxxxxx Xxxxxxxx
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