NONCOMPETE AGREEMENT
This Noncompete Agreement is entered into as of this 17th day of June,
2002, by and between Xxxxxx X. Xxxx (the "Executive") and Xxxxxxxx & Ilsley
Corporation ("M&I").
Recitals
The Executive entered into a letter agreement dated June 17, 2002 (the
"Letter Agreement") with M&I Xxxxxxxx & Xxxxxx Bank or an affiliate thereof (the
"Bank") governing his employment with the Bank, a wholly-owned subsidiary of
M&I. Such Letter Agreement will be null and void and of no further effect if the
merger between Mississippi Valley Bancshares, Inc. ("MVB") and M&I (the
"Merger") does not occur. In connection with the Merger, the Executive's stock
in MVB will be converted into cash, M&I common stock or a combination thereof,
at his election. A condition of the effectiveness of the Letter Agreement is
that Executive execute this Noncompete Agreement in order to protect (i) the
confidential and competitively-valuable information Executive has obtained in
his many years of employment with MVB and its affiliates, (ii) the customer and
other business relationships he has cultivated during that period on behalf of
MVB, and (iii) the goodwill of the business he has helped to develop.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Confidentiality, Non-Solicitation and Non-Competition Provisions. In
consideration for continued employment and the opportunity to continue to
develop, preserve and enhance customer goodwill and relationships, Executive
agrees to act in accordance with each of the following provisions, which
Executive acknowledges to be severable and independent of one another. MVB, M&I
and their Affiliates are hereinafter jointly referred to as the "Company."
"Affiliates" shall mean any corporation, partnership, limited liability company
or other business entity which, directly or indirectly through one or more
intermediaries, are controlled by M&I or MVB. The term "control" means the
power, directly or indirectly, to vote 50% or more of the securities which have
ordinary voting power in the election of directors (or individuals filling any
analogous positions).
(a) Confidentiality. Executive agrees that he will not, directly or
indirectly, use or disclose any Confidential Information of the Company
except for use in connection with his duties for the Company. For purposes
of this Agreement, "Confidential Information" is defined as all non-Trade
Secret information possessed by the Executive about the Company and its
business activities, which (i) is not generally known (other than as a
result of disclosure by him in violation of this paragraph (a) and is used
or is useful in the conduct of the business of the Company, (ii) confers or
tends to confer a competitive advantage over one who does not possess the
information, or (iii) derives independent economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by, proper means by other persons who can obtain
economic value from its disclosure or use. "Trade Secret" has the meaning
assigned in the Missouri Uniform Trade Secrets Act. Nothing in this
restriction shall be deemed to limit Executive's obligations to treat Trade
Secrets of the Company in the manner contemplated by the Missouri Uniform
Trade Secrets Act, and Executive agrees to take all reasonable steps to
protect such Trade Secrets in accordance with applicable law. If Executive
is requested or becomes legally required or compelled (by oral questions,
interrogatories, requests for information or documents, subpoena, civil or
criminal investigative demand, or similar process) or is required by a
governmental body to make any disclosure that is prohibited or otherwise
constrained by this Agreement, Executive will provide the Company with
prompt notice of such request so that it may seek an appropriate protective
order or other appropriate remedy. Subject to the foregoing, Executive may
furnish that portion (and only that portion) of the Confidential
Information that he is legally compelled or are otherwise required to
disclose.
(b) Return of Company Property. Executive agrees that all memoranda,
notes, records, papers, financial models, programs, flow charts, work
papers, source codes, computer codes, designs, software, data and other
documents and all copies thereof relating to the operations or business of
the Company, some of which may have been prepared by him, and all objects
associated therewith in any way obtained by him in connection with the
performance of his duties hereunder shall be the exclusive property of the
Company. Executive shall not, except for the Company's use, copy or
duplicate any of the aforementioned, nor remove them from the Company's
facilities, nor use any information concerning them, in each case, except
for the Company's benefit, either during his employment or thereafter.
Executive agrees that he will deliver the original and all copies of all of
the aforementioned that may be in his possession to the Company on
termination of his employment, or at any other time on the request of the
Company.
(c) Non-Solicitation of Customers. During his employment by the
Company and for three years after the date of the termination of the
Executive's employment with the Company (the "Termination Date"), Executive
agrees not to solicit, entice or encourage any Customer of the Company so
as to cause or attempt to cause such Customer not to do business with the
Company, to materially diminish its business with the Company, or to
purchase a material amount of products or services sold by the Company from
any source other than the Company. For purposes of this paragraph,
"Customer" shall mean any person or business (i) which purchased a material
amount of products or services from the Company during the one (1) year
period preceding the Termination Date and (ii) with whom Executive had
contact on behalf of the Company during such one (1) year period, other
than a general mailing sent to a broad-based group under Executive's
signature.
(d) Non-Solicitation of Employees. During his employment with the
Company and for three years after the Termination Date, the Executive will
not induce or attempt to induce any employee of the Company to terminate
his/her employment with or reduce the hours he/she works for the Company,
except in the normal course of
discharging his employment responsibilities. In addition, for three years
following the Termination Date, Executive will not hire any managerial
employees of the Company, except that Executive may hire Xxxxx Xxxxxx.
(e) General Non-Competition Provisions. During his employment with the
Company and for three years after the Termination Date, Executive agrees
not to directly or indirectly perform services of the type performed by
Executive for the Company for any competitor of the Company and any
affiliate of the Company with whom Executive worked and about whom
Executive was given access to any confidential or competitively-valuable
information, where the services Executive provides directly relate to or
benefit any of the competitor's business activities within 100 miles of St.
Louis, Missouri unless M&I has first consented in writing thereto. In
addition, during his employment with the Company and for three years after
the Termination Date, Executive agrees not to engage, directly or
indirectly, in any business which is substantially similar to or competes
with the business of the Company, either as a proprietor, partner,
employee, agent, owner (or in the case of a publicly-traded company, a
greater than five percent shareholder), partner, officer, director,
independent contractor, or otherwise, within 100 miles of St. Louis,
Missouri unless M&I has first consented in writing thereto.
(f) Acknowledgements/Consequences of Breach. Executive acknowledges
that irreparable and incalculable injury will result to the Company, its
business or properties, in the event of a breach by Executive of any of the
restrictions set forth in this Section 1. Executive therefore agrees that,
in the event of any such actual, impending or threatened breach, the
Company will be entitled, in addition to any other remedies, to temporary
and permanent injunctive relief (without the necessity of posting a bond or
other security) restraining the violation or further violation of such
restrictions by Executive.
(g) Survival After Termination. Executive specifically agrees that
this Section 1 shall survive the termination of this Agreement and the
termination of Executive's employment with the Company.
(h) Notice to Prospective Employers and the Company. Executive agrees
to give written notice and a copy of this Agreement to any future
prospective employer prior to accepting any such employment if the position
will commence prior to the expiration of the three-year period after the
Termination Date. Executive also agrees to give written notice to the
Company of Executive's intention to accept a position with any future
prospective employer if the position will commence prior to the expiration
of the three-year period after the Termination Date. The latter notice
shall include the name and address of the prospective employer, the
position, duties and responsibilities of the position, and the name of
Executive's new supervisor.
2. Invalidity of Provisions. In the event that any provision of this
Agreement is adjudicated to be invalid or unenforceable under applicable law,
the validity or enforceability of the remaining provisions shall be unaffected.
To the extent that any provision of this Agreement
is adjudicated to be invalid or unenforceable because it is overbroad, the
provision shall not be void but rather shall be limited only to the extent
required by applicable law and enforced as so limited; provided, however, that
with respect to Section 1, which is of the essence of this Agreement, any such
invalid or unenforceable provision shall be modified by the court in the manner
most favorable to the Company, yet acceptable to the court, and enforced in
accordance with said modification.
3. General Provisions.
(a) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the Company, its successors and assigns. The
term "Company" as used herein shall include such successors and assigns.
The term "successors and assigns" as used herein shall mean a corporation
or other entity acquiring all or substantially all of the assets and
business of the Company (including this Agreement) whether by operation of
law or otherwise.
(b) Amendment. This Agreement may not be amended or modified except by
written instrument executed by M&I and Executive.
(c) Governing Law. This Agreement and the rights and obligations
hereunder shall be governed by and construed in accordance with the laws of
the State of Missouri without giving effect to its principles of conflicts
of laws.
(d) No Waiver. No waiver by either party at any time of any breach of
the other party of, or compliance with, any condition or provision of this
Agreement to be performed by the other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same time or any
prior or subsequent time.
(e) No Merger. If the Merger does not occur, this Agreement will be
null and void and of no further effect.
(f) Counterparts. This Agreement may be executed in counterparts, both
of which, when taken together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXXXXXX & XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx, Chief Executive Officer
EXECUTIVE
/s/ Xxxxxx X. Xxxx
---------------------------------
Xxxxxx X. Xxxx
MW630468_1.DOC
