EXHIBIT 10.2
FORM OF NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT ("Agreement") is entered into as of
___________ __, 2003 by and among Washington Federal, Inc. (the "Company"),
Washington Federal Savings and Loan Association (the "Association"), United
Savings and Loan Bank (the "Bank") and ______________ (the "Director").
RECITALS
WHEREAS, Director has been employed by the Bank;
WHEREAS, pursuant to the terms of an Agreement and Plan of Merger,
dated as of May 19, 2003, by and among the Company, the Association and the Bank
(the "Merger Agreement"), the Company has agreed to acquire the Bank and to
merge it with and into the Association, and the Merger Agreement includes a
condition to closing that the Director enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants of the parties contained herein, the parties hereto, intending to be
legally bound, agree as follows:
1. ENTIRE AGREEMENT. This Agreement supersedes in all respects
all prior and contemporaneous agreements, contracts, representations,
understandings, promises and arrangements, whether written or oral, between the
parties with respect to the subject matter provided hereby. No amendment,
modification, or waiver of this Agreement shall be valid or binding unless it is
in writing and signed by the party against which or whom enforcement of any
waiver, amendment, change, modification, extension, or discharge is sought.
Moreover, no valid waiver of any provision of this Agreement at any time shall
be deemed a waiver of such provision at any other time, nor of any other
provision of this Agreement at such time or any other time.
2. DEFINITIONS. The following words and terms shall have the
meanings set forth below for the purposes of this Agreement:
(a) AFFILIATE. Affiliate of any person or entity means
any stockholder or person or entity controlling, controlled by or under common
control with such person or entity, or any director, officer or key executive of
such entity or any of their respective relatives. For purposes of this
definition, "control," when used with respect to any person or entity, means the
power to direct the management and policies of such person or entity, directly
or indirectly, whether through ownership of voting securities, by contracting or
otherwise; and the terms "controlling" and "controlled" have meanings that
correspond to the foregoing.
(b) EFFECTIVE TIME. "Effective Time" shall have the
meaning set forth in the Merger Agreement.
(c) COMPETING BUSINESS. "Competing Business" shall mean
any business, enterprise or other entity that as one of its businesses or
activities, is engaged in the business of
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banking (including, without limitation, the acceptance of deposits and the
making of loans) or a permitted non-banking activity in which the Bank is
directly or indirectly engaged within the counties of King and ▇▇▇▇▇▇ in the
State of Washington.
(d) CONFIDENTIAL AND PROPRIETARY INFORMATION.
"Confidential and Proprietary Information" shall mean any and all (i)
confidential or proprietary information or material not in the public domain
about or relating to the business, operations, assets or financial condition of
the Bank or any Affiliate of the Bank or any of the Banks' or any such
Affiliate's trade secrets; and (ii) information, documentation or material not
in the public domain by virtue of any action by or on the part of the Director,
the knowledge of which gives or may give the Bank or any Affiliate of the Bank
an advantage over any person not possessing such information. For purposes
hereof, the term "Confidential and Proprietary Information" shall not include
any information or material (i) that is known to the general public other than
due to a breach of this Agreement by the Director or (ii) was disclosed to the
Director by a person who the Director did not reasonably believe was bound to a
confidentiality or similar agreement with the Bank or any Affiliate.
3. TERMINATION OF SERVICE AS A DIRECTOR. Director's service as
a director of the Bank shall terminate effective as of the Effective Time.
4. RESTRICTIONS RESPECTING COMPETING BUSINESSES, CONFIDENTIAL
INFORMATION, ETC.
(a) The Director acknowledges and agrees that by virtue
of the Director's position and involvement with the business and affairs of the
Bank, the Director has developed substantial expertise and knowledge with
respect to all aspects of the Bank's business, affairs and operations and has
had access to all significant aspects of the business and operations of the Bank
and to Confidential and Proprietary Information.
(b) The Director hereby covenants and agrees that, until
_________ __, 2006 (the date which is the third anniversary of the Effective
Time), unless otherwise authorized by the Company or the Association in writing,
the Director shall not, directly or indirectly, under any circumstance: (i)
disclose to any other person or entity any Confidential and Proprietary
Information, other than pursuant to applicable law, regulation or subpoena or
with the prior written consent of the Company or the Association; (ii) act or
fail to act so as to impair the confidential or proprietary nature of any
Confidential and Proprietary Information; (iii) use any Confidential and
Proprietary Information; or (iv) offer or agree to, or cause or assist in the
inception or continuation of, any such disclosure, impairment or use of any
Confidential and Proprietary Information. The Director hereby agrees and
confirms that Director has returned all documents, records and other items
containing any Confidential and Proprietary Information to the Bank (regardless
of the medium in which maintained or stored).
(c) The Director covenants and agrees that until
_________ __, 2006, the Director will not, directly or indirectly, manage,
operate, or control, any Competing Business. The Director further covenants and
agrees that, until _______ __, 2006, the Director shall not, directly or
indirectly, induce or influence any customer or other person that had a business
relationship with the Bank, or any Affiliate of the Bank, to discontinue or
reduce the extent of
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such relationship with the Association, as successor to the Bank. For purposes
of this Agreement, the Director shall be deemed directly or indirectly to be
managing, operating or controlling a Competing Business if he is engaged or
interested in that business as a stockholder, director, officer, or executive,
agent, partner, individual proprietor, consultant, advisor or otherwise, but not
if the Director's interest is limited solely to the ownership of not more than
5% of the securities of any class of equity securities of a corporation or other
person whose shares are listed or admitted to trade on a national securities
exchange or are quoted on Nasdaq or a similar means if Nasdaq is no longer
providing such information.
(d) The Director covenants and agrees that until
_________ __, 2006, the Director shall not, directly or indirectly, solicit to
employ for himself or others any employee of the Bank or any Affiliate of the
Bank as of the date of the cessation of the Director's service as a director
with the Bank, or to solicit any such employee to leave the employment of the
Association, as successor to the Bank, or join the employee of another, then or
at a later time.
(e) It is the intention of the parties hereto that the
foregoing covenants be fully enforceable in accordance with their terms and the
provisions hereof shall be interpreted so as to be enforceable to the maximum
extent permitted by applicable law, and limited or reduced solely as necessary
to comply with applicable law. To the extent that any obligation to refrain from
competing within an area for a period of time as provided herein is held invalid
or unenforceable, it shall, to the extent (and only to the extent) that it is
invalid or unenforceable, be deemed void ab initio. The remaining obligations
imposed by the provisions hereof shall be enforceable as if such invalid or
unenforceable provisions had not been included herein and shall be construed, to
the extent possible, such that the purpose of the foregoing covenants, as
intended by the parties hereto, can be achieved in a lawful manner.
(f) The parties agree that nothing in this Agreement
shall be construed to limit or negate the common law of torts, confidentiality,
trade secrets, fiduciary duty and obligations where such laws provide the
Company or the Association with any broader, further or other remedy or
protection than those provided herein.
(g) Because the breach of any of the provisions of this
Section 4 will result in immediate and irreparable injury to the Company or the
Association for which the Company or the Association will not have an adequate
remedy at law, the Company or the Association shall be entitled, in addition to
all other rights and remedies, to seek a degree of specific performance of the
restrictive covenants contained in this Section 4 and to a temporary and
permanent injunction enjoining such breach, without posting bond or furnishing
similar security.
5. CONSIDERATION. This Agreement is being entered into by the
Director as a condition to closing of the transactions contemplated by the
Merger Agreement and other good and valuable consideration, the sufficiency of
which is hereby acknowledged.
6. ASSIGNMENT; BINDING AGREEMENT. This Agreement and the
rights and obligations hereunder shall not be assignable by any party without
the written consent of the other party, other than an assignment from the
Company or the Association to any subsidiary, or an assignment by the Company,
by operation of law or otherwise, in connection with any merger or consolidation
of the Company with or into another entity. The rights and obligations of each
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party under this Agreement shall be binding upon, and shall inure to the benefit
of, the successors and permitted assigns of such party.
7. SEVERABILITY. The provisions of this Agreement shall be
deemed severable, and the invalidity or enforceability of any or more of these
provisions shall not affect the validity or enforceability of the other
provisions.
8. APPLICABLE LAW. This Agreement shall, at all times and in
all respects, be governed by, construed and interpreted in accordance with the
laws of the State of Washington, without regard to its conflicts of law rules.
9. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which together shall constitute one instrument.
The parties hereto understand and agree that the terms of this
agreement shall be kept confidential. The parties hereby agree that, except as
required by law or in the normal course of business and as set forth herein,
neither this Agreement nor the terms thereof shall be published, communicated or
disclosed to others. Director may communicate the terms of this Agreement to his
financial and/or tax advisors. It is the responsibility of each party hereto to
make sure that the person or persons to which such party discloses any of the
terms of this Agreement keep such terms confidential.
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
as of the date first written above.
WASHINGTON FEDERAL, INC.
By: __________________________________
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
WASHINGTON FEDERAL SAVINGS AND
LOAN ASSOCIATION
By: __________________________________
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
UNITED SAVINGS AND LOAN BANK
By: __________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive Officer
DIRECTOR
By: __________________________________
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