EXHIBIT 10.2
CDC DIRECTOR NON-COMPETITION AGREEMENT
This CDC Director Non-Competition Agreement ("NON-COMPETITION AGREEMENT"),
dated as of April 20, 2006, is made by and among CITIZENS DEVELOPMENT COMPANY
("CDC"), GLACIER BANCORP, INC. ("GLACIER") and the undersigned, each of whom is
a director of CDC who is not party to an employment agreement with a subsidiary
of CDC and/or Glacier (the "DIRECTORS").
RECITALS
A. Glacier and CDC have entered into a Plan and Agreement of Merger (the
"MERGER AGREEMENT") dated as of the date hereof, pursuant to which (i) CDC
will merge (the "MERGER") with and into a Montana corporation to be formed
by Glacier ("HOLDINGS"), (ii) CDC's subsidiaries, Citizens State Bank,
First Citizens Bank of Billings, First National Bank of Lewistown, Western
Bank of Chinook, N.A., and First Citizens Bank, N.A. (each, a "CDC BANK"
and collectively, the "CDC BANKS") will become subsidiaries of Holdings,
and (iii) following a transition period, the CDC Banks will be merged with
and into Glacier's other subsidiary banks.
B. The parties to this Non-Competition Agreement believe that the future
success and profitability of Glacier, the CDC Banks and the CDC Banks'
successors (collectively, the "COMBINED ENTITY") require that the
Directors not be affiliated in any substantial way with a Competing
Business (as defined herein) for a reasonable period of time after closing
of the Merger.
AGREEMENT
In consideration of the parties' performance under the Merger Agreement,
each Director agrees 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. Competing Business. "COMPETING BUSINESS" means any commercial bank
(including without limitation, any start-up or other commercial bank
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.
b. Covered Area. "COVERED AREA" means the state of Montana.
c. Term. "TERM" means, with respect to each Director, the period of
time beginning on the Effective Date and ending two (2) years after
the Effective Date. If the Merger Agreement is terminated for any
reason, this Non-Competition Agreement shall be void.
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2. PARTICIPATION IN COMPETING BUSINESS. Except as provided in Section 5 or 6,
during the Term, no Director 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, no Director 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, no Director may
disclose any confidential information of the Combined Entity or its
subsidiaries or affiliates obtained by such person while serving as a
director of CDC except in accordance with a judicial or other governmental
order.
5. OUTSIDE COVERED AREA. Nothing in this Non-Competition Agreement prevents a
Director from becoming involved with, as a shareholder, member, partner,
director, officer, manager, investor, organizer, founder, employee,
consultant, agent, representative, or otherwise, a Competing Business that
has no operations in the Covered Area.
6. PASSIVE INTEREST. Nothing in this Non-Competition Agreement prevents a
Director from owning 5% or less of any class of security of a Competing
Business.
7. REMEDIES. Any breach of this Non-Competition Agreement by a Director 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 to which they may be entitled.
8. 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. Venue
of any legal action or proceeding between the parties related to this
Non-Competition Agreement shall be in Yellowstone County, Montana, and the
parties each consent to the personal jurisdiction of the courts of the
State of Montana and the federal courts located in Montana. Each Director
agrees not to claim that Yellowstone County, Montana is an inconvenient
place for trial.
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9. INDIVIDUAL OBLIGATIONS. The obligations of each of the Directors under
this Non-Competition Agreement are intended to be several and not JOINT.
10. 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.
The parties have signed this CDC Director Non-Competition Agreement as of April
20, 2006:
GLACIER BANCORP, INC. CITIZENS DEVELOPMENT COMPANY
By /s/ Xxxxxxx X. Xxxxxxxx By /s/ Xxxx Comes
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Xxxxxxx X. Xxxxxxxx Xxxx Comes
President & Chief Executive Officer President
DIRECTORS:
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
/s/ Xxxx XxXxxx
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Xxxx XxXxxx
/s/ Xxx Xxxxxxxxx
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Xxx Xxxxxxxxx
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