Exhibit 10.2
FORM OF NON-COMPETITION AGREEMENT BETWEEN F.N.B. CORPORATION AND
WILLIAM C. SONNTAG
NON-COMPETITION AGREEMENT
This Non-Competition Agreement entered into as of this ____ day of______________
, 2004, by and between F.N.B. Corporation ("Corporation") and William Sonntag
("Sonntag").
WHEREAS, the Corporation contemplates the consummation of a merger pursuant to
an Agreement and Plan of Merger by and between the Corporation and Slippery Rock
Financial Corporation ("Merger"); and
WHEREAS, Sonntag is a well respected business person in the community; and
WHEREAS, the Corporation desires to avoid Sonntag using his expertise, community
relations and presence in the community to cause customers to cease doing
business with the Corporation and its subsidiaries.
NOW, THEREFORE, in consideration of the premises and covenants contained in this
Agreement and intending to be legally bound hereby, the parties agree as
follows:
1. RECITALS.
The parties incorporate the foregoing recitals by reference.
2. RESTRICTED PERIOD.
This Agreement will commence on the later of the date of consummation of the
Merger or approval of this Agreement by the Office of the Comptroller of the
Currency and the Federal Deposit Insurance Corporation, if necessary, and end
thirty-six (36) months later (the "Restricted Period"). The Corporation shall
use commercially reasonable efforts to obtain approvals of this Agreement by the
Office of the Comptroller of the Currency and the Federal Deposit Insurance
Corporation, if necessary.
3. PAYMENT.
In consideration for the non-competition and non-solicitation provisions set
forth below, the Corporation shall pay and provide to Sonntag __________
annually, which payment will be made in twenty-four (24) equal installments on
the 1st and 15th of every month.
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4. NON-COMPETITION.
4.01 For purposes of this Agreement, reference to the term "Competitive
Enterprise" shall mean any bank holding company, finance company or
insured depository institution (including an institution in the
organization stage or in the process of applying for or receiving
appropriate regulatory approval), including, without limitation, any
federal or state chartered bank, savings bank, savings and loan
association, credit union or other financial services provider or
non-banking affiliate thereof offering similar services or products as
those offered by the Corporation to its customers.
4.02 During the Restricted Period, Sonntag shall not:
(a) accept a position as director, employee, consultant, advisor or
agent of any Competitive Enterprise which is located in any county
in which the Corporation does business during the term of this
Agreement.
(b) acquire an ownership interest (individually or in concert with
others) in a Competitive Enterprise whereby said ownership interest
enables Sonntag to, directly or indirectly, in a substantial manner,
control, direct, influence, affect or impact the operations,
services or business activities of the Competitive Enterprise in any
county, in which the Corporation or its subsidiaries operate an
office during this Agreement.
5. NON-SOLICITATION.
During the term of this Agreement Sonntag shall not:
5.01 In any way, directly or indirectly, for the purpose of selling any product
or service that competes with a product or service offered by the
Corporation or its present subsidiaries or affiliates, solicit, divert, or
entice:
(a) any customer or existing business of the Corporation, with whom
Sonntag solicited, became aware of, or transacted business with
during Sonntag's engagement by the Corporation or its predecessors;
(b) any potential customer or business identified by the Corporation,
with whom Sonntag solicited, became aware of, or transacted business
with during Sonntag's engagement by the Corporation or its
predecessors;
5.02 Employ or assist in employing any present employee of the Corporation or
any of its affiliates (whether or not such employment is full time or is
pursuant to a written contract), for the purpose of having such employee
perform services for any
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Competitive Enterprise or other organization in competition with the
business of the Corporation or any of its present subsidiaries or
affiliates;
5.03 In any way, directly or indirectly, make any oral or written statement,
comments, or other communications designed or intended to impugn,
disparage or otherwise malign the reputation, ethics, competency, morality
or qualifications of the Corporation or any of its directors or employees
or customers.
6. CONFIDENTIALITY.
6.01 For purposes of this Agreement, "Proprietary Information" shall mean any
information relating to the business of the Corporation or any of its
present subsidiaries or affiliates that has not previously been publicly
released by authorized representatives of the Corporation or any
authorized representatives of any of its present subsidiaries or
affiliates, and shall include (but shall not be limited to) information
encompassed in all marketing and business plans, financial information,
costs, pricing information, customer and client lists and relationships
between the Corporation and dealers, distributors, sales representatives,
wholesalers, customers, clients, suppliers, and others who have business
dealings with the Corporation, and all methods, concepts, or ideas in or
reasonably related to the business of the Corporation or any of its
present subsidiaries or affiliates and not in the public domain.
6.02 Sonntag agrees to regard and preserve as confidential all Proprietary
Information that has been developed or obtained by Sonntag in the course
of Sonntag's engagement by the Corporation, its predecessors, subsidiaries
and affiliates, on or before the date of this Agreement, whether Sonntag
has such information in Sonntag's memory, writing, electronic media or
other physical form, including information maintained by Sonntag on any
computer, electronic device, or other personal property owned by Sonntag.
Sonntag shall not, without written authorization from the Corporation, use
for Sonntag's benefit or purposes, nor disclose to others, at any time,
during the Restricted Period, except as required by the conditions of
Sonntag's engagement by the Corporation, any Proprietary Information. This
prohibition shall not apply after the Proprietary Information has been
voluntarily disclosed to the public, independently developed and disclosed
by others, or otherwise enters the public domain through lawful means.
7. REMEDIES.
In addition to any other rights and remedies the Corporation may have if Sonntag
violates this Agreement, the Corporation and Sonntag agree as follows:
(a) It is understood and agreed by and between the parties hereto that a
breach by Sonntag of the covenants set out in Sections 4 and 5 of
this Agreement is likely
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to cause the Corporation great and irreparable injury and damage.
Sonntag hereby expressly agrees that the Corporation shall be
entitled to the remedies of injunction, specific performance and
other equitable relief to prevent a breach of Sections 4 and 5 of
this Agreement by Sonntag. This provision shall not, however, be
construed as a waiver of any of the remedies which the Corporation
may have for damages or otherwise.
(b) The Corporation will have no obligation to make any payments under
this Agreement.
8. SUCCESSORS, ASSIGNS, ETC.
(a) This Agreement shall be binding upon, and shall inure to the benefit
of, Sonntag and the Corporation and its successors and assigns.
(b) If Sonntag dies during the Restricted Period, this Agreement shall
terminate and the Corporation will have no obligations to make any
further payments to the heirs, legal representatives, beneficiaries,
or estate of Sonntag.
9. NOTICES.
9.01 All notices, consents, requests, demands and other communications required
or permitted hereunder:
(a) shall be in writing;
(b) shall be sent by messenger, certified or registered U.S. mail, a
reliable express delivery service or facsimile (with a copy sent by
one of the foregoing means), charges prepaid as applicable, to the
appropriate address(es) or number(s) set forth below; and
(c) shall be deemed to have been given on the date of receipt by the
addressee (or, if the date of receipt is not a business day, on the
first business day after the date of receipt), as evidenced by (i) a
receipt executed by the addressee (or a responsible person in his or
her office), the records of the person delivering such communication
or a notice to the effect that such addressee refused to claim or
accept such communication, if sent by messenger, U.S. mail or
express delivery service, or (ii) a receipt generated by the
sender's facsimile voucher showing that such communication was sent
to the appropriate number on a specified date.
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9.02 All such communications shall be sent to the following addresses or
numbers, or to such other addresses or numbers as any party may inform the
others by giving five (5) business days' prior notice:
If to F.N.B. Corporation: If to William Sonntag:
Stephen J. Gurgovits
One F.N.B. Boulevard, 6th Floor
Hermitage, PA 16148
Facsimile: 724-983-3515
With Copy to:
Legal Department
One F.N.B. Boulevard, 1st Floor
Hermitage, PA 16148
Facsimile: 724-983-3349
10. GOVERNMENTAL REGULATION.
Nothing contained in this Agreement shall be interpreted, construed or applied
to require the commission of any act contrary to law and whenever there is any
conflict between any provision of this Agreement and any statute, law ordinance,
order or regulation, the latter shall prevail; but in such event any such
provision of this Agreement shall be curtailed and limited only to the extent
necessary to bring it within applicable legal requirements.
11. ARBITRATION.
Any dispute or controversy as to the validity, interpretation, construction,
application or enforcement of, or otherwise arising under or in connection with
this Agreement, shall be submitted at the request of either party hereto for
resolution and settlement through arbitration in Pennsylvania in accordance with
the rules then prevailing of the American Arbitration Association. Any award
rendered therein shall be final and binding on each of the parties hereto and
their heirs, executors, administrators, successors and assigns, and judgment may
be entered thereon in any court having jurisdiction. The foregoing provisions of
this paragraph shall not be deemed to limit the rights and remedies reserved to
the Corporation under and pursuant to Section 7 hereof which rights and remedies
may be pursued through arbitration.
12. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the Commonwealth of Pennsylvania, without giving effect to its conflicts of laws
principles.
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13. DIVISIBILITY.
Should a court or arbitrator declare any provision hereof to be invalid, such
declaration shall not affect the validity of the Agreement as a whole or any
part thereof, other than the specific portion declared to be invalid.
14. HEADINGS.
The headings to the Sections and paragraphs hereof are placed herein for
convenience of reference only and in case of any conflict the text of this
Agreement, rather than the headings, shall control.
15. ENTIRE AGREEMENT; AMENDMENT.
This Agreement sets forth the entire understanding of the parties in respect of
the subject matter contained herein and supersedes all prior agreements,
arrangements and understandings relating to the subject matter and may only be
amended by a written agreement signed by both parties hereto or their
duly-authorized representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date first above written.
WITNESS:
______________________________
William Sonntag
ATTEST:
F.N.B. Corporation
______________________________ By:
Secretary Name:
Title:
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