EXHIBIT 10.6
EXECUTION COPY
December 19, 2002
Seacoast Financial Services Corporation
Xxx Xxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, President and CEO
RE: NONCOMPETITION AGREEMENT
Gentlemen:
I am writing to confirm the arrangement we have agreed upon with respect to
certain assurances you have requested me to provide to Seacoast Financial
Services Corporation and its affiliates ("YOU" or the "COMPANY"). I am a
stockholder of and have served as Executive Vice-President and Chief Operating
Officer of Bay State Bancorp, Inc. ("SELLER") and have served as President and
Chief Operating Officer of Bay State Federal Savings Bank ("SELLER BANK"),
Seller Bank's banking subsidiary. As you know, Seller is about to enter into an
Agreement and Plan of Merger dated as of the date hereof (the "MERGER
AGREEMENT") pursuant to which Seller will be acquired by the Company.
Capitalized terms used and not defined in this Agreement shall have the meanings
defined in the Merger Agreement.
We have agreed as follows:
1. BACKGROUND. I have served as Executive Vice-President and Chief
Operating Officer of Seller since its organization in 1998. In addition, I have
served as Chief Operating Officer of Seller Bank since 1997 and as President
since 2000. During my tenure, Seller Bank converted from a mutual to a stock
institution and has achieved substantial growth. As a result of my employment I
have acquired unique and substantial knowledge concerning the business of
providing banking services in the highly competitive market area served by
Seller Bank (the "BUSINESS"), as well as confidential and proprietary
information concerning the Business and Seller. In order to induce you to enter
into the Merger Agreement, you have requested me to provide you with certain
agreements and assurances. By means of this Agreement, I am providing you with
those agreements and assurances.
2. NONCOMPETITION AND NONSOLICITATION.
2.1 NONCOMPETITION. During the three-year period after the Effective
Date of the Merger ("NONCOMPETITION PERIOD") I will not (a) alone, or as a
member, employee, agent, consultant, advisor, independent contractor, partner,
officer, director, stockholder, investor, lender or guarantor of any
corporation, partnership or other entity, or in any other capacity, directly or
indirectly compete in Massachusetts or Rhode Island with the business conducted
by the Seller, the Seller Bank, the Company, either of the Company's banks, or
any affiliate of any
of the foregoing, or (b) directly or indirectly become a director, officer,
employee, principal, agent, consultant or independent contractor of any insured
depository institution, trust company or parent holding company of any such
institution or company which has an office in Massachusetts or Rhode Island (a
"COMPETING BUSINESS") other than the Company or any of its subsidiaries,
provided, however, that this provision shall not prohibit me from owning bonds,
non-voting preferred stock or up to two percent (2%) of the outstanding common
stock of any such entity if such common stock is publicly traded.
2.2 NONSOLICITATION. During the Noncompetition Period, I will not
(i) solicit or induce, or cause others to solicit or induce, any employee of the
Company or any of its subsidiaries to leave the employment of such entities,
(ii) hire or attempt to hire any employee of the Company or any of its
subsidiaries or assist in such hiring by any other Person, or (iii) solicit or
encourage (whether by mail, telephone, personal meeting or any other means) any
customer of the Company or any of its subsidiaries to transact business with any
other entity, whether or not a Competing Business, or to reduce or refrain from
doing any business with the Company or its subsidiaries, or interfere with or
damage (or attempt to interfere with or damage) any relationship between the
Company or its subsidiaries and any such customers.
2.3 CONSIDERATION. In consideration of my obligations under this
Section 2, you have agreed to pay me $233,333 per year, payable no less often
than monthly in arrears.
3. NO DISCLOSURE OF CONFIDENTIAL INFORMATION. I shall not, directly or
indirectly, use any Confidential Information (as hereinafter defined), or
disclose to anyone outside of the Company any such Confidential Information. The
term "CONFIDENTIAL INFORMATION" as used throughout this Agreement shall mean all
names of customers of Seller, the Company or any affiliate of either
("AFFILIATED PERSON") and all trade secrets, proprietary information and other
data or information (and any tangible evidence, record or representation
thereof), whether prepared, conceived or developed by a consultant or employee
of any Affiliated Person (including myself) or received by an Affiliated Person
from an outside source, which is in the possession of any Affiliated Person
(whether or not the property of any Affiliated Person) and which is maintained
in secrecy or confidence by any Affiliated Person or which might permit any
Affiliated Person or its customers to obtain a competitive advantage over
competitors who do not have access to such trade secrets, proprietary
information, or other data or information. Notwithstanding the foregoing, the
term Confidential Information shall not apply to information which any
Affiliated Person (other than myself) has voluntarily disclosed to the public
without restriction or which has otherwise lawfully entered the public domain. I
understand that an Affiliated Person from time to time has in its possession
information which represents information which is claimed by others to be
proprietary and which such Affiliated Person has agreed to keep confidential. I
agree that all such information shall be Confidential Information for purposes
of this Agreement.
4. ALL CONFIDENTIAL INFORMATION PROPERTY OF THE COMPANY. I agree that all
originals and all copies of materials containing, representing, evidencing,
recording, or constituting any Confidential Information, however and whenever
produced (whether by myself or others), shall be the sole property of the
Company.
5. INJUNCTIVE RELIEF. I fully understand and agree that money damages
alone will not adequately compensate the Company for breach of any of the
covenants and agreements herein.
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Therefore, I agree and understand that in the event of the breach or threatened
breach of any such covenant or agreement, in addition to all other remedies
available to the Company, at law, in equity or otherwise, the Company shall be
entitled to injunctive relief compelling specific performance of, or other
compliance with, the terms of this Agreement, and I hereby consent to the entry
of an order requiring me to refrain from activities inconsistent with this
Agreement.
6. SEVERABILITY. The parties hereby request that any court which may be
requested to enforce this Agreement do so in accordance with its specific terms.
However, if it should for some reason be contrary to public policy to effectuate
the intentions of the parties in interpreting this Agreement, the parties have
agreed as follows:
6.1 In the event that any provision of this Agreement shall be
determined to be unenforceable by any court of competent jurisdiction by reason
of its extending for too great a period of time or over too large a geographic
area or over too great a range of activities, it shall be interpreted to extend
only over the maximum period of time, geographic area or range of activities as
to which it may be enforceable.
6.2 If, after application of the immediately preceding Section, any
provision of this Agreement shall be determined to be invalid, illegal or
otherwise unenforceable by any court of competent jurisdiction, the validity,
legality and enforceability of the other provisions of this Agreement shall not
be affected thereby. Any invalid, illegal or unenforceable provision of this
Agreement shall be severable, and after any such severance, all other provisions
hereof shall remain in full force and effect.
7. NOTICES. Any notice given pursuant to this Agreement shall be in
writing and shall be sufficiently given if personally delivered or sent by
registered or certified mail, return receipt requested, postage prepaid, to the
parties at their addresses set forth in this Agreement or to such other address
as any party may hereafter designate to the others by like notice. Notices shall
be deemed given when personally delivered, or, if mailed, on the earlier of (i)
the third day after being deposited in the mails as aforesaid and (ii) the date
on which received. The foregoing provisions shall not, however, prohibit the
giving of actual written notice in any other manner.
8. ENTIRE AGREEMENT/MODIFICATION/WAIVER. This Agreement sets forth the
entire understanding between the parties relating to the subject matter hereof
and supersedes all prior correspondence, conversations and memoranda or other
writings between them with respect to such subject matter. No promises,
covenants or representations of any character or nature other than those
expressly stated herein have been made to induce either party to enter into this
Agreement. Neither this Agreement nor any part hereof may be modified, amended,
terminated, waived or discharged except by a writing duly signed by the party
sought to be bound. Failure by the Company to insist upon strict compliance with
any of the terms, covenants, or conditions hereof shall not be deemed a waiver
of such terms, covenants or conditions.
9. SURVIVAL OF TERMS. This Agreement shall be binding upon me, my heirs,
legal representatives, assigns and designees, irrespective of the duration of my
relationship with the Company, the reasons for the termination of my
relationship with the Company, or the amount of my compensation. Except as
otherwise provided herein, my obligations hereunder shall survive the
termination of my relationship with the Company.
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10. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the substantive laws of The Commonwealth of
Massachusetts without regard to its principles of conflicts of laws. This
Agreement is executed under seal.
11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other party, it being understood that both parties
need not sign the same counterpart.
12. INTERPRETATION. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13. EFFECTIVENESS. Notwithstanding anything herein to the contrary, the
effectiveness of this Agreement shall be subject to consummation of the Merger
in accordance with the terms of the Merger Agreement, as the same may be amended
by the parties thereto in accordance with its terms.
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Please confirm that the foregoing represents our mutual understanding by
signing and returning to me a copy of this Agreement.
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Agreed to and Accepted:
SEACOAST FINANCIAL SERVICES CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
President and CEO
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