EXHIBIT 10.11
NON-COMPETITION AGREEMENT
This Non-Competition Agreement (this "Agreement") is made and entered into
this 1st day of May 2001, by and among Xxxxx X. Xxxxxxxx ("the Executive") and
Xxxxxx River Bancorp, Inc., a Delaware corporation (the "Corporation").
WITNESSETH THAT:
WHEREAS, the Corporation is concurrently entering into a separate
consulting agreement with the Executive (the "Consulting Agreement");
WHEREAS, the Consulting Agreement only requires the Executive to provide
services to the Corporation and its affiliates on a part-time basis;
WHEREAS, the Corporation believes that there is substantial value to it in
precluding the Executive from providing services to the Corporation's
competitors; and
WHEREAS, the Corporation and the Executive have agreed to enter into this
Agreement to preclude the Executive from providing services to the Corporation's
competitors;
NOW, THEREFORE, in consideration of the promises and mutual covenants and
agreements hereinafter set forth, the parties agree as follows:
1. Effective Date. The "Effective Date" of this Agreement shall be the
date first written above.
2. Consideration. The Corporation or its affiliates shall pay to the
Executive (a) a lump sum cash amount of $200,000 on the Effective Date, and (b)
a lump sum cash amount of $250,000 on the fifth year anniversary of the date of
this Agreement. In the event the Executive dies prior to the fifth year
anniversary, the amount in Section 2(b) shall be paid to his estate.
3. Non-Competition.
(a) The Executive hereby agrees that for a period of five years
after the Effective Date, the Executive will not (i) engage directly or
indirectly in the banking or financial services business other than on behalf of
the Corporation or its affiliates within the Market Area (as hereinafter
defined), (ii) directly or indirectly own, manage, operate, control, be employed
by, or provide management, consulting or advisory service in any capacity to any
firm, corporation or other entity (other than the Corporation or its affiliates)
engaged directly or indirectly in the banking or
financial services business in the Market Area, or (iii) directly or indirectly
solicit or otherwise intentionally cause any employee, officer or member of the
respective Board of Directors of the Corporation or any of its affiliates to
engage in any action prohibited under (i) or (ii) of this Section 3(a); provided
that the ownership by the Executive as an investor of not more than five percent
of the outstanding shares of stock of any corporation whose stock is listed for
trading on any securities exchange or is quoted on the automated quotation
system of the National Association of Securities Dealers, Inc., or the shares of
any investment company as defined in Section 3 of the Investment Company Act of
1940, as amended, shall not in itself constitute a violation of the Executive's
obligations under this Section 3(a).
(b) The Executive acknowledges and agrees that irreparable injury
will result to the Corporation in the event of a breach of any of the provisions
of this Section 3 (the "Designated Provisions") and that the Corporation will
have no adequate remedy at law with respect thereto. Accordingly, in the event
of a breach of any Designated Provision, and in addition to any other legal or
equitable remedy the Corporation may have, the Corporation shall be entitled to
the entry of a preliminary and permanent injunction to restrain the violation or
breach thereof by the Executive or any affiliates, agents or any other persons
acting for or with the Executive in any capacity whatsoever.
(c) It is the desire and intent of the parties that the provisions
of this Section 3 shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any particular provision of this Section 3 shall be
adjudicated to be invalid or unenforceable, such provision shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of such
provision in the particular jurisdiction in which such adjudication is made. In
addition, should any court determine that the provisions of this Section 3 shall
be unenforceable with respect to scope, duration or geographic area, such court
shall be empowered to substitute, to the extent enforceable, provisions similar
hereto or other provisions so as to provide to the Corporation, to the fullest
extent permitted by applicable law, the benefits intended by this Section 3.
(d) As used herein, "Market Area" shall consist of each of the
counties in any state of the United States in which the Corporation or any of
its affiliates has a deposit-taking or lending office.
4. Notices. All notices, consents, waivers or other communications which
are required or permitted hereunder shall be in writing and deemed to have been
duly given if delivered personally or by messenger, transmitted by telex or
telegram, by express courier, or sent registered or certified mail, return
receipt requested, postage prepaid. All communications shall be addressed to the
appropriate address of each party as follows:
If to the Corporation:
Xxxxxx River Bancorp, Inc.
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
President and Chief Executive Officer
If to the Executive:
Xxxxx X. Xxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
All such notices shall be deemed to have been given on the date delivered,
transmitted or mailed in the manner provided above.
5. Assignment. Neither party may assign this Agreement or any rights or
obligations hereunder without the consent of the other party.
6. Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New York, without giving
effect to the principles of conflict of law thereof. The parties hereby
designate Albany County, New York, to be proper jurisdiction and venue for any
suit or action arising out of this Agreement. Each of the parties consents to
personal jurisdiction in such venue for such a proceeding and agrees that he or
it may be served with process in any action with respect to this Agreement or
the transactions contemplated thereby by certified or registered mail, return
receipt requested, or to its registered agent for service of process in the
State of New York. Each of the parties irrevocably and unconditionally waives
and agrees, to the fullest extent permitted by law, not to plead any objection
that it may now or hereafter have to the laying of venue or the convenience of
the forum of any action or claim with respect to the Agreement or the
transactions contemplated thereby brought in the courts aforesaid.
7. Entire Agreement. This Agreement constitutes the entire understanding
between the Corporation and the Executive relating to the subject matter hereof.
Neither this Agreement nor any provisions hereof can be modified, changed,
discharged or terminated except by an instrument in writing signed by the party
against whom any waiver, change, discharge or termination is sought.
8. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any
section of this Agreement containing
any such provision held to be invalid, illegal or unenforceable) shall not in
any way be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any section of this Agreement
containing any such provisions held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
9. Arbitration. Subject to the right of each party to seek specific
performance (which right shall not be subject to arbitration), if a dispute
arises out of this Agreement, or the breach thereof, such dispute shall be
referred to arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association ("AAA"). A dispute subject to the
provisions of this section will exist if either party notifies the other party
in writing that a dispute subject to arbitration exists and states, with
reasonable specificity, the issue subject to arbitration (the "Arbitration
Notice"). The parties agree that, after the issuance of the Arbitration Notice,
the parties will try in good faith to resolve the dispute by mediation in
accordance with the Commercial Rules of Arbitration of AAA between the date of
the issuance of the Arbitration Notice and the date the dispute is set for
arbitration. If the dispute is not settled by the date set for arbitration, then
any controversy or claim arising out of this Agreement or the breach hereof
shall be resolved by binding arbitration and judgment upon any award rendered by
arbitrator(s) may be entered in a court having jurisdiction. Any person serving
as a mediator or arbitrator must have at least ten years' experience in
resolving commercial disputes through arbitration. In the event any claim or
dispute involves an amount in excess of $100,000, either party may request that
the matter be heard by a panel of three arbitrators; otherwise, all matters
subject to arbitration shall be heard and resolved by a single arbitrator. The
arbitrator shall have the same power to compel the attendance of witnesses and
to order the production of documents or other materials and to enforce discovery
as could be exercised by a United States District Court judge sitting in any
District Court in New York. In the event of any arbitration, each party shall
have a reasonable right to conduct discovery after the date of the Arbitration
Notice to the same extent permitted under New York law for matters involving
contractual disputes. Any provision in this Agreement to the contrary
notwithstanding, this section shall be governed by the Federal Arbitration Act
and the parties have entered into this Agreement pursuant to such Act.
10. Affiliation. A company will be deemed to be "affiliated" with the
Corporation according to the definition of "Affiliate" set forth in Rule 12b-2
of the General Rules and Regulations under the Securities Exchange Act of 1934,
as amended.
11. Headings. The section headings herein have been inserted for
convenience of reference only and shall in no way modify or restrict any of the
terms or provisions hereof.
IN WITNESS WHEREOF, the parties hereto executed or caused this Agreement
to be executed as of the day and year first above written.
XXXXXX RIVER BANCORP, INC.
Attest: By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
President and Chief Executive Officer
EXECUTIVE
Attest: By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
