NON-COMPETE AGREEMENT
EXHIBIT
10.1
This
NONCOMPETE AGREEMENT (this
“Agreement”) dated this 13th day of November 2007, and effective as of the
Effective Date (as defined below) of the Merger (as defined below), is being
entered into by and among Oritani Financial Corp., a federally-chartered
mid-tier holding company (the “Company”), Oritani Savings Bank, a New
Jersey chartered savings bank and wholly-owned subsidiary of the company
(the“Bank”), and Xxxxxxx X. Xxxxx, Xx.
(“AMB”).
RECITALS
1. As
of the date of this Agreement, AMB is the President and Chief Executive Officer
of Greater Community Bancorp, Inc. (“GCB”) and Greater Community Bank (“GC
Bank”), whose principal offices are in Totowa, New Jersey. GCB has
entered into an Agreement and Plan of Merger by and between the Company and
GCB,
dated November 13, 2007 (the “Merger Agreement”), pursuant to which GCB will
merge with and into the Company and GC Bank will merge with and into the Bank
(collectively, the “Merger”).
2. Simultaneous
with the execution of the Merger Agreement, AMB has agreed to enter into this
Agreement to refrain from competing with the Company and/or the Bank for a
period of twelve (12) months.
In
consideration of the mutual promises, covenants, terms and conditions contained
in this Agreement, the parties agree as follows:
AGREEMENT
1. Definitions. As
used herein, the following terms shall have the meanings set forth
below:
“Bank”
means Oritani Savings Bank.
“Code” means
the Internal Revenue Code of 1986, as amended from time to time.
“Company”
means Oritani Financial Corp., a federally-charted holding company of the
Bank.
“Effective
Date” shall mean the date on which all transactions contemplated by the Merger,
including the Merger, have been completed and all necessary regulatory approvals
of the Merger have been obtained.
“Merger” means
the merger of GCB into the Company and the merger of GC Bank into the
Bank.
“Noncompete
Period” has the meaning set forth in Section 3 hereof.
“Notice” has
the meaning set forth in Section 5.7 hereof.
“Subsidiary” means
an entity in which the Bank or the Company directly or indirectly (i) owns
a majority of the common stock or equity; or (ii) has the power to vote or
direct the voting of sufficient securities to elect a majority of the
directors.
2. Payment.
In consideration of the commitments and covenants made herein by AMB, the Bank
agrees to pay to AMB a monthly payment of $35,416.67 (which shall be considered
non-employee compensation, from which no taxes shall be withheld, and which
shall be reported on IRS Form 1099; AMB shall be responsible for paying all
taxes due on account of the payments hereunder), in advance, for each month
during the twelve month Noncompete Period, for an aggregate payment of
$425,000.04.
3. Noncompetition
and
Nonsolicitation. (a) For
a period of twelve months following the Effective Date (the “Noncompete
Period”), AMB shall not directly or indirectly:
(i)
Be employed by, engaged in or participate in the ownership, management,
operation or control of, or act in any advisory or other capacity (such as
a
director or trustee) for, any Competing Entity (as hereinafter defined) that
is
headquartered or that has offices in the Territory (as hereinafter defined);
provided, however, that notwithstanding the foregoing, AMB may make solely
passive investments in any Competing Entity the common stock of which is
“publicly held” and of which AMB shall not own or control, directly or
indirectly, in the aggregate securities which constitute 5% or more of the
voting rights or equity ownership thereof;
(ii) solicit
or actively or knowingly divert any business of any Customer (as hereinafter
defined) from the Company or the Bank or assist any person, firm or corporation
in doing so or attempting to do so;
(iii) actively
or knowingly cause or seek to cause any person, firm or corporation to refrain
from dealing or doing business in the Territory with the Company or assist
any
person, firm or corporation in doing so;
(iv) assist
or advise any person, firm or corporation in connection with any commercial
or
commercial real estate loan to any person, firm or business
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(or
involving any guarantor) located or residing, or secured by property located,
within the Territory;
(v) solicit
deposits from any person, firm or corporation residing or located in the
Territory; or
(vi) solicit
for employment or advise or recommend to any other person that they employ
or
solicit for employment or retention as an employee or consultant, any person
who
is an employee of, or consultant to the Bank or the Company,
For
purposes of this Section, the term “Competing Entity” shall mean any entity
which is a savings bank, savings bank holding company, savings and loan
association, savings and loan holding company, credit union, bank or bank
holding company, or any mortgage or loan broker. The term
“Territory” shall mean Passaic County, Bergen County, Xxxxxx County or Xxxxxx
County, New Jersey. The term “Customer” shall mean any person or
entity AMB knows or should know (after reasonable inquiry) is an existing
customer of the Company or the Bank.
(b) Notwithstanding
the
foregoing limit in paragraph (a), AMB may engage, as an owner, partner,
principal, employee, agent, or consultant, in the following activities, but
not
for, or in conjunction or coordination with, a Competing Entity that is
headquartered or that has offices in the Territory: insurance and
securities brokerage and advisory business; portfolio management; estate
planning; accounting, tax and auditing advisory services; provided that AMB
in
connection therewith does not solicit or assist in the solicitation of any
Customer or attempt to do so, except solely with respect to providing tax and
auditing advisory services which may be provided without
limitation.
4.
Confidential Information and
Cooperation.
4.1. As
used herein, the term “Confidential Information and Materials” refers to all
information regarding GCB, GC Bank, the Bank or the Company, or any of their
affiliates (collectively, the “Company Related Entities”), AMB obtained in
connection with his position as President and Chief Executive Officer of GCB
and
GC Bank and in connection with the merger of GC Bank into the Bank and the
merger of GC Bank into the Bank, not generally known outside the Company Related
Entities and which belongs to, is used by or is in the possession of the Company
Related Entities, including without limitation information concerning the
products, strategic plans, pricing, cost data and cost structures, training
methods and programs, executive performance and compensation information,
computer pass wording, recruiting, know-how, research and development, operation
or financial status of the Company, the names or addresses of any of the
Company’s customers, borrowers and depositors, any information
concerning or obtained from such customers, borrowers and
depositors and other confidential technical or business
information and data and any background data that suggest any of the foregoing
plans and programs. Confidential Information shall not include any
information that AMB can demonstrate is in the public domain by means other
than
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disclosure
by AMB, but shall include non-public compilations, combinations or
analyses of otherwise public information.
4.2 AMB
hereby acknowledges that all of the Confidential Information and Materials
are
and shall continue to be the exclusive proprietary property of the Company
or
the Bank, whether or not prepared in whole or in part by AMB and whether or
not
disclosed to or entrusted to the custody of AMB. Notwithstanding the
foregoing, AMB shall be permitted to retain his Rolodex, contacts list, and
calendar.
4.3 AMB
agrees that AMB will not, for one (1) year following the Effective Date,
disclose any Confidential Information or Materials of the Company, in whole
or
in part, to any person or entity outside the Company or the Bank, for any reason
or purpose whatsoever, unless the Company shall have given its written consent
to such disclosure. The restrictions set forth in this paragraph are in addition
to and not in lieu of any obligations of AMB provided by law with respect to
the
Company’s Confidential Information and Materials, including any obligations AMB
may owe under statutes governing trade secrets.
4.4 During
the sixty (60) day period immediately following the Effective Date, AMB shall,
upon reasonable notice, furnish such information and assistance to the Company
or the Bank as may reasonably be requested by the Company or the Bank in
connection with the transition of his former duties and responsibilities as
President and Chief Executive Officer of GCB and GCB Bank and the merger of
GCB
into the Company and GC Bank into the Bank. Such assistance shall be
limited to reasonable inquiries and shall not involve the performance of any
services or attendance at any meetings unless mutually agreed to by the
parties.
5.
Miscellaneous.
5.1. Governing
Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New Jersey.
5.2. Entire
Agreement; Amendments. This Agreement contains the
entire understanding of the parties with respect to AMB refraining to provide
services and the non-disclosure of Confidential Information. There
are no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter hereof other than those
expressly set forth herein. This Agreement shall supersede any
existing oral or written agreement between AMB and the Bank and/or the Company
regarding AMB refraining from providing services. This Agreement may not be
altered, modified, or amended except by a written instrument signed by the
parties hereto.
5.3. No
Waiver. The failure of a party to insist upon
strict adherence to any term of this Agreement on any occasion shall not be
considered a waiver of such party’s rights or deprive such party of the right
thereafter to insist upon strict adherence to that term or any other term of
this Agreement.
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5.4. Assignment.This
Agreement shall not be assignable by law or otherwise without the prior written
consent of the other party thereto; provide, however, that this Agreement may
be
assigned by the Bank or the Company by operation of law by reason of a merger
or
similar transaction.
5.5 Successors;
Binding Agreement. This Agreement shall inure to the
benefit of and be binding upon personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of AMB
and successors and assigns of the Bank. Other than the Bank and AMB,
and, subject to Section 5.5 hereof, their respective successors and
assigns, there are no intended beneficiaries of this Agreement.
5.6 Relationship
of the Parties. AMB shall not be considered as having an
employee status vis-à-vis the Bank or the Company, or by virtue of this
Agreement shall not be entitled to participate in any plans, arrangements or
distributions of the Bank or the Company pertaining to or in connection with
any
pension, bonus, welfare benefits, or similar benefits for employees of the
Bank.
5.7. Notice.
(a) Each notice or other
communication to the Bank under this Agreement shall be directed as follows
or
to such other address as the Bank may have furnished to AMB in writing in
accordance herewith:
Xxxxx
X. Xxxxx
President
and Chief Executive
Officer
Oritani
Financial Corp.
000
Xxxxxxx Xxxxxx
Xxxxxxxx
xx Xxxxxxxxxx, Xxx
Xxxxxx 00000
Facsimile
No: (000)
000-0000
(b) Each
notice or other communication to AMB under this Agreement shall be directed
to
AMB’s home address on file with the Bank or to such other address as AMB may
have furnished to the Bank in writing in accordance herewith.
(c) Each
notice or other communication under this Agreement shall be deemed given and
shall be effective: (i) if given by prepaid overnight courier, upon receipt;
(ii) if given by United States mail, postage prepaid, upon the earlier of actual
receipt or five (5) business days after deposit with the United States postal
service, and (iii) if given by email or facsimile, upon successful
transmission during business hours as evidenced by a read receipt or a
telecopier-generated written confirmation.
5.8 Disputes. In
the event payment(s) due to AMB under this Agreement are not timely made, and
it
is determined that AMB is entitled to such payments, then in addition to the
payment(s), AMB shall be entitled to recover interest on the amount due (at
the
prime rate as published in The Wall Street Journal from time to time)
along with reasonable costs and attorneys’ fees.
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5.9. Counterparts. This
Agreement may be executed in one or more counterparts (including by facsimile),
each of which shall be deemed to be an original, but all of which shall
constitute one and the same instrument.
5.
10 Severability. If
any provision of this Agreement is held to be invalid or unenforceable by a
court of competent jurisdiction, such holding shall not invalidate any of the
other provisions of this Agreement. The parties intend that any such
provision shall be severed from this Agreement and that the remaining provisions
of this Agreement shall be enforced to the full extent permitted by
law.
5.11 Captions
and Sections. The captions to the sections, subsections
and clauses of this Agreement are inserted for convenience only and shall be
ignored in interpreting the provisions thereof. Each reference to a
section includes a reference to all subsections and clauses thereof except
where
the context clearly does not so permit.
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IN
WITNESS WHEREOF,
the parties hereto have duly executed this Agreement effective as of as of
the
date first above written.
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ORITANI
SAVINGS BANK
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AMB
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/s/
Xxxxx X. Xxxxx
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/s/
Xxxxxxx X. Xxxxx, Xx.
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Xxxxx
X. Xxxxx
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Xxxxxxx
X. Xxxxx, Xx.
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ORITANI
FINANCIAL CORP.
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/s/
Xxxxx X. Xxxxx
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Xxxxx
X. Xxxxx
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