EXHIBIT 10.6
FORM OF NON-COMPETITION AGREEMENT BETWEEN VECTRA BANK COLORADO, NATIONAL
ASSOCIATION AND XXXXXX X. XXXXX
This NON-COMPETITION AGREEMENT (this "Agreement") made and entered into
this [ ] day of [ ], 2001, by and between XXXXXX X. XXXXX, an adult resident of
the State of Colorado ("White") and VECTRA BANK COLORADO, NATIONAL ASSOCIATION,
a national banking association organized under the laws of the United States
("Vectra Bank") (White and Vectra Bank together being referred to herein as the
"Parties")
WITNESSETH THAT:
WHEREAS, the Agreement and Plan of Reorganization (the "Plan") dated as
of July 10, 2001 by and among Zions Bancorporation, a Utah corporation having
its principal office in Salt Lake City, Utah ("Zions Bancorp"), Vectra Bank,
Minnequa Bancorp, Inc., a Colorado corporation having its principal office in
Pueblo, Colorado (the "Company"), The Minnequa Bank of Pueblo, a banking
corporation organized under the laws of the State of Colorado (the "Bank"), and
White provides that the Bank will be merged with and into Vectra Bank;
WHEREAS, White is associated with various persons and entities who among
themselves have beneficial ownership of and voting control over shares of the
Company that constitute in the aggregate in excess of 78 percent of the
outstanding voting stock of the Company, and the Company has beneficial
ownership and voting control over all of the outstanding voting stock of the
Bank;
WHEREAS, Vectra Bank is unwilling to consummate the transactions
contemplated by the Plan unless, among other conditions as provided in the Plan,
White shall have executed and delivered this Agreement;
WHEREAS, White is willing to give up his rights to compete with Vectra
Bank as provided in this Agreement in exchange for, among other things, Vectra
Bank's consummating the transactions contemplated by the Plan;
WHEREAS, the Parties acknowledge that this Agreement is reasonably
necessary to protect the value of the assets of the Bank being acquired by
Vectra Bank pursuant to the Plan, including, without limitation, the goodwill of
the Bank, and to protect the legitimate business interests of Vectra Bank; and
WHEREAS, the Parties acknowledge that the goodwill of the Bank has been
developed in large part due to the efforts, oversight, knowledge, skills and
expertise of White;
NOW, THEREFORE, incorporating the foregoing recitals herein, for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the Parties hereto agree as
follows:
1. NON-COMPETITION.
(a) White hereby agrees that during the Restricted Period (as
hereinafter defined), White will not (i) engage in the banking business other
than on behalf of Zions Bancorp or Vectra Bank or their affiliates within the
Market Area (as hereinafter defined), (ii) directly or indirectly own, manage,
operate, control, be employed by, or provide management or consulting services
in any capacity to any firm, corporation, or other entity (other than Zions
Bancorp or Vectra Bank or their affiliates) engaged in the banking business in
the Market Area, or (iii) directly or indirectly solicit or otherwise
intentionally cause any employee, officer, or member of the respective Boards of
Directors of Vectra Bank or any of its affiliates to engage in any action
prohibited under (i) or (ii) of this section 1(a); provided that the ownership
by White as an investor of not more than five percent of the outstanding shares
of stock of any corporation whose stock is listed for trading on any securities
exchange or is quoted on the automated quotation system of the National
Association of Securities Dealers, Inc., or the shares of any investment company
as defined in section 3 of the Investment Company Act of 1940, as amended, shall
not in itself constitute a violation of White's obligations under this section
1(a).
(b) As used herein, "Market Area" shall mean Pueblo County, Colorado.
(c) As used herein, "Restricted Period" shall mean the period of time
beginning with and including the Effective Date (as defined in the Plan) and
ending with and including the third anniversary of the Effective Date.
(d) The Parties agree that the scope of the Market Area, as set forth in
section 1(b) of this Agreement, is reasonable, and the Parties further agree
that the duration of the Restricted Period, as set forth in section 1(c) of this
Agreement, is reasonable.
2. CONSIDERATION. White agrees to give up his rights to compete with
Vectra Bank as provided in this Agreement in exchange for the following
consideration:
(a) Vectra Bank's consummation of the transactions contemplated by the
Plan (including, without limitation, the value paid for the acquisition of the
goodwill of the Bank), as set forth in the Plan; and
(b) Vectra Bank's agreement to pay to White $1,000,000, such payment to
be made by Vectra Bank to the account of White at a time and in a manner as
shall be agreed to by Vectra Bank and White or, in the absence of such
agreement, at the end of the Restricted Period by wire transfer.
3. INJUNCTIVE RELIEF. White acknowledges and agrees that irreparable
injury will result to Vectra Bank in the event of a breach of any of the
provisions of section 1 of this Agreement (the "Designated Provisions") and that
Vectra Bank will have no adequate remedy at law with respect thereto.
Accordingly, in the event of a material breach of any Designated Provision, and
in addition to any other legal or equitable remedy Vectra Bank may have, Vectra
Bank shall be entitled to the entry of a preliminary and permanent injunction
(including, without limitation, specific performance) by a court of competent
jurisdiction in Denver County, Colorado, or elsewhere, to restrain the violation
or breach thereof by White or any affiliates, agents, or any other persons
acting for or with White in any capacity whatsoever, and White submits to the
jurisdiction of such court in any such action.
4. SEVERABILITY. It is the desire and intent of the Parties that the
provisions of this Agreement (including, without limitation the scope, duration
and geographic area of the covenant not to compete set forth in section 1 of
this Agreement) shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought, in order to protect the value of the assets of the Bank being acquired
by Vectra Bank pursuant to the Plan, including, without limitation, the goodwill
of the Bank. Accordingly, the parties agree to the following:
(a) If any provision or provisions of this Agreement shall be
adjudicated to be invalid, illegal, or unenforceable for any reason whatsoever,
the validity, legality, and enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of any section of this
Agreement containing any such provision held to be invalid, illegal, or
unenforceable) shall not in any way be affected or impaired thereby; and to the
fullest extent possible, the provisions of this Agreement (including, without
limitation, each portion of any section of this Agreement containing any such
provisions held to be invalid, illegal, or unenforceable) shall be construed so
as to give effect to the intent manifested by the provision held invalid,
illegal, or unenforceable.
(b) In addition, if any provision of this Agreement (including, without
limitation the scope, duration and geographic area of the covenant not to
compete set forth in section 1 of this Agreement) shall be adjudicated to be
invalid, illegal or unenforceable for any reason whatsoever, such adjudicatory
body or court shall be empowered to delete or modify such provision so as to
provide to the Parties, to the fullest extent permitted by applicable law, the
maximum benefits intended by such provision.
(c) If any particular provision of this Agreement shall be adjudicated
to be invalid or unenforceable in a particular jurisdiction and such provision
shall be deleted or modified by an adjudicatory body or court, such deletion or
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modification shall apply only with respect to the operation of such provision in
the particular jurisdiction about which such adjudication is made.
5. REPRESENTATIONS AND WARRANTIES.
(a) White represents and warrants to Vectra Bank that his execution,
delivery, and performance of this Agreement will not result in or constitute a
breach of or conflict with any term, covenant, condition, or provision of any
commitment, contract, or other agreement or instrument, including, without
limitation, any employment agreement, to which White is or has been a party.
(b) White shall indemnify, defend, and hold harmless Vectra Bank for,
from, and against any and all losses, claims, suits, damages, expenses, or
liabilities, including court costs and counsel fees, which Vectra Bank has
incurred or to which Vectra Bank may become subject, insofar as such losses,
claims, suits, damages, expenses, liabilities, costs, or fees arise out of or
are based upon any failure of any representation or warranty of White in section
5(a) of this Agreement to be true and correct when made.
6. NOTICES. All notices, consents, waivers, or other communications
which are required or permitted hereunder shall be in writing and deemed to have
been duly given if delivered personally or by messenger, transmitted by telex or
telegram, by express courier, or sent by registered or certified mail, return
receipt requested, postage prepaid. All communications shall be addressed to the
appropriate address of each Party as follows:
If to Vectra Bank:
Vectra Bank Colorado, National Association
0000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0-0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxxx
President and Chief Executive Officer
With a required copy to:
Xxxxx X. Xxxxxx, Esq.
Duane, Morris & Heckscher LLP
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
If to White:
Xx. Xxxxxx X. Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxx, Xxxxxxxx 00000
With a required copy to:
Xxxxxx X. Banner, Esq.
Banner, Xxxxxx, Xxxxxx & Xxxxxx, P.C.
Xxxx Xxxxxx Xxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
All such notices shall be deemed to have been given on the date delivered,
transmitted, or mailed in the manner provided above.
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7. ASSIGNMENT. Neither Party may assign this Agreement or any rights or
obligations hereunder without the consent of the other Party.
8. GOVERNING LAW. This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Colorado, without giving
effect to the principles of conflict of law thereof. The Parties hereby
designate Denver County, Colorado to be the proper jurisdiction and venue for
any suit or action arising out of this Agreement. Each of the Parties consents
to personal jurisdiction in each of such venues for such a proceeding and agrees
that he or it may be served with process in any action with respect to this
Agreement or the transactions contemplated thereby by certified or registered
mail, return receipt requested, or to its registered agent for service of
process in the State of Colorado. Each of the Parties irrevocably and
unconditionally waives and agrees, to the fullest extent permitted by law, not
to plead any objection that it may now or hereafter have to the laying of venue
or the convenience of the forum of any action or claim with respect to this
Agreement or the transactions contemplated thereby brought in the courts
aforesaid.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
between Vectra Bank and White relating to the subject matter of this Agreement.
Any previous agreements or understandings between the Parties hereto or between
White and the Bank or any of its affiliates or Vectra Bank or any of its
affiliates regarding the subject matter of this Agreement are merged into and
superseded by this Agreement. Neither this Agreement nor any provisions of this
Agreement can be modified, changed, discharged, or terminated except by an
instrument in writing signed by the Party against whom any waiver, change,
discharge, or termination is sought.
10. COSTS OF LITIGATION. In the event litigation is commenced to enforce
any of the provisions of this Agreement, or to obtain declaratory relief in
connection with any of the provisions of this Agreement, the prevailing Party
shall be entitled to recover reasonable attorneys' fees. In the event this
Agreement is asserted in any litigation as a defense to any liability, claim,
demand, action, cause of action, or right asserted in such litigation, the Party
prevailing on the issue of that defense shall be entitled to recovery of
reasonable attorneys' fees.
11. AFFILIATION. A company will be deemed to be "affiliated" with Zions
Bancorp, Vectra Bank, or the Bank according to the definition of "Affiliate" set
forth in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended.
12. PAYMENTS CONTRARY TO LAW. Anything in this Agreement to the contrary
notwithstanding, this Agreement is not intended and shall not be construed to
require any payment to White which would violate any federal or state statute or
regulation, including without limitation the "golden parachute payment
regulations" of the Federal Deposit Insurance Corporation codified to Part 359
of title 12, Code of Federal Regulations.
13. HEADINGS. The section and subsection headings herein have been
inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions of this Agreement.
14. CAPITALIZED TERMS. Capitalized terms used herein and not defined
herein shall have the meanings assigned to such terms in the Plan.
IN WITNESS WHEREOF, the Parties hereto executed or caused this
Agreement to be executed as of the day and year first above written.
VECTRA BANK COLORADO, NATIONAL
ASSOCIATION
By: _____________________________
Xxxxx X. Xxxxxxxxx
President and Chief Executive Officer
XXXXXX X. XXXXX
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