EXHIBIT B NON-COMPETITION AGREEMENT RELATED TO THE SALE OF GOODWILL
EXHIBIT
B
RELATED
TO THE SALE OF GOODWILL
_____________________
This
Non-Competition Agreement Related to the Sale of Goodwill (this
“Agreement”) is entered into as of January 28, 2008, by and among Jacksonville
Bancorp, Inc., a Florida corporation (“JBI”), and the undersigned, an individual
residing in the State of Florida (“Seller”).
RECITALS
Whereas,
in
contemplation of the merger of Heritage Bancshares, Inc., a Florida corporation
(“HBI”), with and into JBI pursuant to the terms of that certain Agreement and
Plan of Merger by and between JBI and HBI dated as of January 28, 2008 (the
“Merger Agreement”), Seller and JBI desire to enter into this Agreement
effective as of the “Closing” (as defined in the Merger Agreement);
Whereas,
pursuant to the Merger Agreement, Seller will sell all of Seller’s “HBI Common
Stock” (as defined in the Merger Agreement) for the consideration to be paid to
HBI stockholders in connection with the Merger;
Whereas,
pursuant to the Merger Agreement, JBI shall cause Seller’s HBI Common Stock to
be purchased for the consideration to be paid to HBI stockholders in connection
with the Merger;
Whereas,
Seller
recognizes that the goodwill of HBI is a material asset that JBI is acquiring
under the Merger Agreement, and that JBI is paying additional consideration
under the Merger Agreement in recognition of the goodwill of HBI; and
Whereas,
in
consideration of JBI’s payment of consideration under the Merger Agreement in
recognition of the value of the goodwill of HBI, Seller has agreed to be bound
by the restrictive covenants set forth in this Agreement to ensure that JBI
derives the benefit of the goodwill of HBI that JBI is purchasing pursuant
to
the Merger Agreement.
Now,
Therefore,
in
consideration of the promises and covenants herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, JBI and the Seller agree as follows:
AGREEMENT
1. Seller
Acknowledges the Sale of Goodwill.
Seller
acknowledges that the promises and restrictive covenants that Seller is
providing in this Agreement are reasonable and necessary for the protection
of
HBI to be acquired by JBI pursuant to the Merger Agreement and JBI’s legitimate
interests in the transactions contemplated by the Merger Agreement. Seller
acknowledges that, in connection with the consummation of the transactions
contemplated by the Merger Agreement, all of Seller’s equity interests in HBI
will be purchased or otherwise acquired by JBI. Seller further acknowledges
that
Seller is selling all of Seller’s equity interests in HBI in connection with the
transactions contemplated by the Merger Agreement and that the goodwill of
HBI
was a material consideration in JBI’s decision to enter into the transactions
contemplated by the Merger Agreement. Seller acknowledges that if Seller were
to
engage in a “Competitive Business” (as defined below) subsequent to the
consummation of the transactions contemplated by the Merger Agreement, such
competition would materially and adversely affect the value of HBI acquired
by
JBI in the transactions contemplated by the Merger Agreement.
2. Restrictive
Covenants Related to Non-Competition.
Seller
agrees as follows:
(a) Non-Competition.
Effective as of the Effective Time and until the second anniversary of the
Effective Time (such period, the “Restricted Period”), Seller will not, directly
or indirectly:
(i) engage
in, enter the employ, or have any interest in, directly or indirectly (either
as
executive, partner, director, officer, consultant, principal, agent or
employee), any other bank or financial institution or any entity which either
accepts deposits or makes loans (whether presently existing or subsequently
established), or that is in the process of organizing a bank planning to do
business, in Clay County, Florida and/or any county that is contiguous to Clay
County, Florida (a “Competitive Business”);
(ii) enter
the
employ of, or render any service to, any “Person” (as defined in the Merger
Agreement), or any division or controlled or controlling affiliate of any
Person, who or which is a Competitive Business; or
(iii) acquire
a
financial interest in, or otherwise become actively involved with, any
Competitive Business, directly or indirectly, as an individual, partner,
stockholder, officer, director, principal, agent, employee, trustee or
consultant.
Notwithstanding
the foregoing, nothing contained in this Section 2(a) shall prohibit Seller
from
(i) investing, as a passive investor, in any bank or other financial institution
engaged, directly or indirectly, in a Competitive Business, provided that
Seller’s beneficial ownership of any class of such company’s securities does not
exceed five percent (5%) of the outstanding securities of such class and (ii)
rendering professional legal advisory services to a Competitive Business in
such
Seller’s capacity as an attorney.
(b) Non-Solicitation
of Customers.
During
the Restricted Period, Seller will not, whether on Seller’s own behalf or on
behalf of or in conjunction with any person, directly or indirectly solicit
or
assist in soliciting the business of or any investment from any client,
prospective client, investor or customer of HBI, to the extent such business
or
investment being so solicited could be considered a Competitive Business
(collectively, the “Customers”).
Notwithstanding
the foregoing, Seller shall not be prohibited from providing professional
services of any kind, to any person who may be a Customer, if Seller’s
relationship with such person arose or arises out of activities undertaken
by
Seller outside the scope of Seller’s service with HBI and Seller does not
otherwise interfere with such person’s relationship with HBI as a Customer of
HBI.
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(c) Non-Interference
with Business Relationships.
During
the Restricted Period, Seller will not interfere with, or attempt to interfere
with, business relationships (whether formed before, on or after the date of
this Agreement) between HBI, on the one hand, and any of its
Customers.
(d) Non-Solicitation
of Employees.
During
the Restricted Period, Seller will not, whether on Seller’s own behalf or on
behalf of or in conjunction with any person, directly or
indirectly:
(i) solicit
or encourage any employee of HBI to leave the employment of HBI; or
(ii) hire
any
such employee who was employed by HBI as of the Closing or who left the
employment of HBI coincident with, or within one-year prior to or after, the
Closing.
3. Injunctive
Relief.
The
remedy at law for any breach of Section 2 of this Agreement is and will be
inadequate, and in the event of a breach or threatened breach by Seller of
any
of the above provisions of this Agreement, JBI and successors, without proving
actual damages, shall be entitled to an injunction restraining Seller from
violating the provisions of Section 2 of this Agreement. Nothing herein
contained shall be construed as prohibiting JBI or its successors from pursuing
any other remedies available to it or them for such breach or threatened breach,
including without limitation the recovery of monetary damages from
Seller.
4. General
Provisions.
(a) Successors
and Assigns.
This
Agreement shall bind and shall inure to the benefit of JBI and any and all
of
its successors and assigns, whether by merger, consolidation, transfer of
substantially all assets or similar transaction.
(b) Reasonable
Covenants.
It is
expressly understood and agreed that although Seller and JBI consider the
restrictions contained in Section 2 of this Agreement to be reasonable, if
a final judicial determination is made by a court of competent jurisdiction
that
the time or territory or any other restriction contained in this Agreement
is an
unenforceable restriction against Seller, the provisions of this Agreement
shall
not be rendered void but shall be deemed amended to apply as to such maximum
time and territory and to such maximum extent as such court may judicially
determine or indicate to be enforceable (provided that in no event shall any
such amendment broaden the time period or scope of any restriction herein).
Alternatively, if any court of competent jurisdiction finds that any restriction
contained in this Agreement is unenforceable, and such restriction cannot be
amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained herein.
(c) Certain
Definitions.
Capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the Merger Agreement. The term “Heritage Bancshares, Inc.”
shall be deemed to refer to any successor entity thereto.
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(d) Waiver
of Breach.
The
waiver by JBI of a breach of any provision of this Agreement by Seller shall
not
operate or be construed as a waiver of any subsequent breach by
Seller.
(e) Amendment.
Any
amendment or modification of this Agreement will be effective only if it is
in
writing, signed by the party to be charged.
(f) Governing
Law.
The
validity of this Agreement and the interpretation and performance of all of
its
terms shall be governed exclusively by the laws of the State of Florida
regardless of the forum.
(g) Prevailing
Party.
In the
event of any Action arising out of or resulting from this Agreement, the
prevailing party shall be entitled to recover its costs and expenses (including
reasonable attorneys’ fees and expenses) incurred in connection
therewith.
(h) Counterparts.
This
Agreement may be executed on separate counterparts, any one of which need not
contain signatures of more than one party, but all of which taken together
shall
constitute one and the same agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
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JACKSONVILLE
BANCORP, INC.
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| By: |
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Xxxxxxx X. Xxxxx, III
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President and Chief Executive Officer
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SELLER
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