Exhibit 10.6
NONDISCLOSURE AND NONCOMPETITION AGREEMENT
THIS NONDISCLOSURE AND NONCOMPETITION AGREEMENT ("AGREEMENT") is made
effective as of June 1, 2003, by and between Financial Pacific Company, a
Washington corporation (together with its affiliates, the "COMPANY") and Xxxx X.
Winter (the "EXECUTIVE"). The parties to this Agreement are referred to herein
collectively as the "PARTIES" and each individually as a "PARTY."
In consideration of the mutual covenants and agreements set forth
herein and other good and valuable consideration, and in recognition of the
Executive's past and continuing service to the Company and its subsidiaries as
the Company's President and Chief Executive Officer, the receipt and sufficiency
of which consideration is hereby acknowledged, the Parties agree as follows:
1. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
The Executive acknowledges that the trade secrets and other proprietary
information and data concerning the business or affairs of the Company and its
subsidiaries to which he has access while employed by the Company ("CONFIDENTIAL
INFORMATION") are the property of the Company and such subsidiaries. The
Executive agrees that he shall use the Confidential Information for the sole
purpose of performing his duties and responsibilities as the Company's President
and Chief Executive Officer and, except in performing such duties, shall not
disclose to any person or use for his own account any Confidential Information
without the prior written consent of the Company's Board of Directors, unless
and to the extent that the Executive can demonstrate that the Confidential
Information had become generally known to and available for use by the public,
prior to the Executive's disclosure, other than as a result of the Executive's
acts or failures to act. The Executive shall deliver to the Company, upon its
request made at any time, all memoranda, notes, plans, records, reports,
computer tapes and software tapes and software and other documents and data (and
copies thereof) relating to the Confidential Information or the business of the
Company and/or its subsidiaries and which he possesses or has under his control.
2. NONCOMPETITION; NONSOLICITATION
a. The Executive acknowledges that in the course of his
employment with the Company he has become familiar with the Company's
Confidential Information and that his services are of special, unique and
extraordinary value to the Company. The Executive agrees that from the date of
this Agreement until the Noncompete Termination Date (as defined below) (the
"NONCOMPETE PERIOD"), he shall not, directly or indirectly, own, manage,
control, participate in, consult with, render
services for, or in any manner engage in any business competing with the actual
business of the Company in the markets in which the Company actually does
business, including but not limited to commercial lending and leasing, anywhere
in the United States. Nothing contained in this Agreement shall prohibit the
Executive from being a passive owner of the outstanding stock of any class of
securities, so long as the Executive has no active direct or indirect
participation in the business of the issuer.
b. During the Noncompete Period, the Executive shall not
knowingly directly or indirectly (i) induce or attempt to induce any employee of
the Company to leave the employ of the Company, (ii) hire any person who was an
employee of the Company at any time during the 12 month period preceding the
termination of the Executive's employment, or (iii) to induce any customer,
broker, supplier, licensee, consultant or other business relation of the Company
to cease doing business with the Company, (including, without limitation, by
making any negative statements about the Company).
c. If, at the time of enforcement of this Section 2, a court
shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope and/or area determined by the court to be reasonable
under such circumstances shall be substituted for the stated duration, scope or
area.
d. In the event of a breach or a threatened breach by the
Executive of any of the provisions of this Section 2 or Section 1 above, the
Company, in addition and supplementary to other rights and remedies existing in
its favor, may apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive or other relief in order to enforce or
prevent any violations of the provisions hereof (without posting a bond or other
security).
e. The "NONCOMPETE TERMINATION DATE" shall be one year after the
effective date of the Executive's termination of employment for any reason
whatsoever, whether voluntary or involuntary (the "TERMINATION DATE").
3. COMPENSATION
a. In consideration of the Executive's covenants set forth in
this Agreement, and subject to the exceptions set forth in Section 3(b), the
Company shall pay the Executive the following (collectively, the "NONCOMPETE
PAYMENT"): (i) an amount equal to the Executive's annual base salary, which base
salary shall in no event be less than the annual base salary paid to the
Executive on the date of this Agreement, for the 12 months preceding the
Termination Date; plus (ii) 50% of the greater of: (a) the annual bonus paid by
the Company to the Executive in the
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Company's fiscal year ending December 31, 2003; or (b) the average annual bonus
paid by the Company to the Executive in the three fiscal years most recently
ended prior to the Termination Date. The Company shall withhold applicable taxes
on the Noncompete Payment, which shall be payable in 12 equal monthly
installments, in arrears, beginning on the last day of the month following the
Termination Date.
b. If (i) the Executive dies, (ii) the Executive's employment
with the Company is terminated as the result of a Liquidating Event within the
meaning of Section 10, and the assignee employs the Executive as a senior
executive officer with aggregate compensation that is substantially equal to or
greater than the compensation being paid by the Company to the Executive
immediately prior to the Liquidating Event and assumes the Company's rights and
obligations hereunder, (iii) the Company terminates the Executive's employment
for Cause, or (iv) if the Company liquidates without distributing assets to its
shareholders or files for protection under applicable bankrutcy or insolvency
laws, the Company shall have no obligation to pay the Noncompete Payment to the
Executive (or his heirs and representatives). Upon the occurrence of an event
described in clause (iv) of the preceding sentence, the Executive shall be
released from his obligations under Section 2 of this Agreement. For the
purposes of this Agreement, "CAUSE" shall mean (A) the Executive's conviction
for or plea of nolo contendere to a felony or a crime involving moral turpitude
or the Executive's conviction for or plea of nolo contendere to any other act or
omission involving dishonesty or fraud with respect to the Company, (B)
following the Executive's receipt of written notice of such failure, substantial
and repeated failure by the Executive to perform duties appropriate to the
Executive's role as the President and Chief Executive Officer of the Company as
reasonably assigned by the Company's Board of Directors, (C) gross negligence or
willful misconduct by the Executive with respect to the Company, or (D) a breach
by the Executive of this Agreement which, if susceptible of cure, has not been
cured within ten business days after notice of the breach has been delivered to
the Executive (any such notice shall specify the specific nature of the breach
and, if such breach is curable, the manner in which the Company requires such
breach to be cured).
4. REPRESENTATIONS AND COVENANTS
4.1 BY EXECUTIVE. The Executive hereby represents and warrants to
the Company that (i) the execution, delivery and performance of this Agreement
by the Executive does not and shall not conflict with, breach, violate or cause
a default under any contract, agreement, instrument, order, judgment or decree
to which that Executive is a party or by which he is bound, (ii) the Executive
is not a party to or bound by any employment or noncompetition agreement with
any other person or entity, and (iii) upon the execution and delivery of this
Agreement by both Parties, this
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Agreement shall be the valid and binding obligation of the Executive,
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable insolvency, bankruptcy, reorganization, moratorium or
other similar laws affecting creditors' rights generally and applicable
equitable principles (whether considered in a proceeding at law or in equity).
The Executive hereby acknowledges and represents that he has consulted with
independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
4.2 BY COMPANY. The Company hereby represents and warrants to the
Executive that: (i) the person signing this Agreement on behalf of the Company
has full power, authority, and Company consent to sign this Agreement on behalf
of the Company; and (ii) subject to Section 10, this Agreement shall be binding
on the Company and any successors and/or assigns.
5. NOTICES
Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery, two business days
after deposit with a reputable overnight courier service or seven days after
mailing in the United States Post Office certified mail, postage prepaid, return
receipt requested, addressed to the other Party hereto at his or its address
number shown below:
If to the Company: Financial Pacific Company
0000 Xxxxx 000xx Xxx
Xxxxx 000
Xxxxxxx Xxx, XX 00000
If to the Executive: Xxxx X. Winter
00000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
or such other address or to the attention of such other person as the recipient
Party shall have specified by prior written notice to the sending Party.
6. SEVERABILITY
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any
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applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision or any other jurisdiction,
but this Agreement shall be reformed, construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein.
7. COMPLETE AGREEMENT
This Agreement embodies the complete agreement and understanding
between the Parties with respect to its subject matter and supersedes and
preempts any prior understandings, agreements or representations by or between
the Parties, written or oral, which may have related to the subject matter
thereof in any way.
8. NO STRICT CONSTRUCTION
The language used in this Agreement shall be deemed to be the language
chosen by the Parties hereto to express their mutual intent, and no rule of
strict construction shall be applied against any Party.
9. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original and both of which taken together shall constitute one
and the same document.
10. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of
the Parties and their respective successors and assigns; provided, however, that
neither Party may assign or delegate any of its rights, duties or obligations
under this Agreement without the prior written consent of the other Party; and
provided, further, that the Company may, without the Executive's consent, assign
the Agreement in connection with (i) the transfer or sale of all or
substantially all of the assets of the Company, or (ii) a merger, consolidation
or other capital transaction involving the Company (either, a "LIQUIDATING
EVENT"), provided that, in either such case, the Executive becomes a senior
executive officer of the assignee with aggregate compensation that is
substantially equal to or greater than the compensation being paid to the
Executive by the Company immediately prior to the Liquidating Event.
Notwithstanding such assignment, the Company shall remain liable as co-obligor
for all payment obligations hereunder.
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11. GOVERNING LAW
All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by, and
construed in accordance with, the laws of the State of Washington, without
giving effect to any choice of law or conflict of law rules or provisions
(whether of the State of Washington or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Washington.
12. AMENDMENT AND WAIVER
The provisions of this Agreement may be amended or waived only with the
prior written consent of the Company and the Executive, and no course of conduct
or failure or delay in enforcing any provision of this Agreement shall affect
the validity, binding effect or enforceability of this Agreement.
13. ATTORNEY FEES
If it shall be necessary for a Party to employ an attorney to enforce
its rights pursuant to this Agreement because of the default of the other Party,
the defaulting Party shall reimburse the non-defaulting Party for its reasonable
attorneys' fees and court costs, including costs and attorneys' fees for
arbitration, litigation, and any appeal therefrom.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first written above.
FINANCIAL PACIFIC COMPANY
By: /s/ Xxxxx X. Xxxx
---------------------------------
Its Authorized Officer
/s/ Xxxx X. Winter
------------------------------------
XXXX X. WINTER
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