EXHIBIT 10(VI)
STATE OF NORTH CAROLINA
COUNTY OF CATAWBA
CONFIDENTIALITY AND NON-COMPETE AGREEMENT
This Confidentiality and Non-Compete Agreement (the "Agreement") entered
into by and between Catawba Valley Bank, Hickory, North Carolina (the "Bank")
and Xxxxxx X. Xxxxxxxxx ("Employee") is made and entered into this the 31st day
of December, 2002.
W I T N E S S E T H:
WHEREAS, the expertise and experience of Employee and his relationships and
reputation in the financial institutions industry are extremely valuable to the
Bank; and
WHEREAS, it is in the best interests of the Bank and the shareholders of
its parent holding company, United Community Bancorp ("UCB"), to provide for the
continued loyalty of Employee; and
WHEREAS, Employee and the Bank have entered into an Employment Agreement
dated the date hereof providing for the employment of Employee for a two year
period of time.
NOW, THEREFORE, for and in consideration of the premises and mutual
promises, covenants and conditions hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which hereby is
acknowledged, the Bank and Employee hereby agree as follows:
1. Confidentiality. Employee hereby acknowledges and agrees that (i) in the
course of his service as an officer of the Bank, he will gain substantial
knowledge of and familiarity with the Bank's customers and its dealings with
them, and other information concerning the Bank's business, all of which
constitutes valuable assets and privileged information that is particularly
sensitive due to the fiduciary responsibilities inherent in the banking
business; and, (ii) in order to protect the Bank's interest in and to assure it
the benefit of its business, it is reasonable and necessary to place certain
restrictions on Employee's ability to compete against the Bank and on his
disclosure of information about the Bank's business and
customers. For that purpose, and in consideration of the Bank's agreements
contained herein, Employee covenants and agrees as provided below.
For the purposes of this Agreement, the following terms shall have the
meanings set forth below:
Customer. The term "Customer" means any Person with whom, as
of the effective date of termination of this Agreement or Employee's employment
with the Bank for any reason, the Bank has or has had a depository, loan and/or
other banking relationship.
Financial Institution. The term "Financial Institution"
means any federal or state chartered bank, savings bank, savings and loan
association or credit union, or any holding company for or corporation that owns
or controls any such entity, or any other Person engaged in the business of
making loans of any type or receiving deposits, other than the Bank.
Person. The term "Person" means any natural person or any
corporation, partnership, proprietorship, joint venture, limited liability
company, trust, estate, governmental agency or instrumentality, fiduciary,
unincorporated association or other entity.
(a) Confidentiality Covenant. Employee covenants and agrees that
any and all data, figures, projections, estimates, lists, files, records,
documents, manuals or other such materials or information (financial or
otherwise) relating to the Bank and its banking business, regulatory
examinations, financial results and condition, lending and deposit operations,
customers (including lists of the Bank's customers and information regarding
their accounts and business dealings with the Bank), policies and procedures,
computer systems and software, shareholders, employees, officers and directors
(herein referred to as "Confidential Information") are proprietary to the Bank
and are valuable, special and unique assets of the Bank's business to which
Employee will have access during his employment with the Bank. Employee agrees
that (i) all such Confidential Information shall be considered and kept as the
confidential, private and privileged records and information of the Bank, and
(ii) at all times during the term of his employment with the Bank and following
the termination of this Agreement or his employment for any reason, and except
(x) as shall be required in the course of the performance by Employee of his
duties on behalf of the Bank or otherwise pursuant to the direct, written
authorization of the Bank, (y) as required by law, or (z) in connection with
Employee's enforcement of the provisions of this Agreement, Employee will not:
divulge any
such Confidential Information to any other Person or Financial Institution;
remove any such Confidential Information in written or other recorded form from
the Bank's premises; or make any use of any Confidential Information for his own
purposes or for the benefit of any Person or Financial Institution other than
the Bank. However, following the termination of Employee's employment with the
Bank, this subparagraph (a) shall not apply to any Confidential Information
which then is in the public domain (provided that Employee was not responsible,
directly or indirectly, for permitting such Confidential Information to enter
the public domain without the Bank's consent), or which is obtained by Employee
from a third party which or who is not obligated under an agreement of
confidentiality with respect to such information.
(b) Covenant Not to Compete. Employee acknowledges that the Bank
has invested substantial time, money and resources in the development of its
business, its competitive strategy, and the development of its Customers and
that during the course of Employee's employment with the Bank, Employee has had
and will have access to the Bank's information in that regard. Employee further
acknowledges that the Bank's business is to provide financial services and that
the relevant market for the Bank's business is Xxxxxx County, North Carolina and
contiguous counties. In recognition of this, Employee covenants and agrees that,
during the period commencing on the date hereof and ending on (i) the second
anniversary of the date hereof, or (ii) in the event the Employment Agreement is
terminated by Employee prior to the second anniversary of the date hereof, other
than as a result of a breach of the Employment Agreement by the Bank or UCB, the
second anniversary of the date of such termination of the Employment Agreement,
Employee will not, directly or indirectly (i) provide in the Bank's relevant
market, as set forth above, financial services or become employed in any manner
by any Financial Institution; or (ii) otherwise compete with the Bank.
(c) Remedies for Breach. Employee understands and agrees that a
breach or violation by him of the covenants contained in this Agreement will be
deemed a material breach of this Agreement and will cause irreparable injury to
the Bank, and that it would be difficult to ascertain the amount of monetary
damages that would result from any such violation. In the event of Employee's
actual or threatened breach or violation of the covenants contained in this
Agreement, the Bank shall be entitled to bring a civil action seeking an
injunction restraining Employee from violating or continuing to violate those
covenants or from any threatened violation thereof, or for any other legal or
equitable relief relating to the breach or
violation of such covenant. Employee agrees that, if the Bank institutes any
action or proceeding against Employee seeking to enforce any of such covenants
or to recover other relief relating to an actual or threatened breach or
violation of any of such covenants, Employee shall be deemed to have waived the
claim or defense that the Bank has an adequate remedy at law and shall not urge
in any such action or proceeding the claim or defense that such a remedy at law
exists. However, the exercise by the Bank of any such right, remedy, power or
privilege shall not preclude the Bank or its successors or assigns from pursuing
any other remedy or exercising any other right, power or privilege available to
it for any such breach or violation, whether at law or in equity, including the
recovery of damages, all of which shall be cumulative and in addition to all
other rights, remedies, powers or privileges of the Bank.
Notwithstanding anything contained herein to the contrary,
Employee agrees that the provisions of this Agreement and the remedies provided
herein for a breach by Employee shall be in addition to, and shall not be deemed
to supersede or to otherwise restrict, limit or impair the rights of the Bank
under the Trade Secrets Protection Act contained in Article 24, Chapter 66 of
the North Carolina General Statutes, or any other state or federal law or
regulation dealing with or providing a remedy for the wrongful disclosure,
misuse or misappropriation of trade secrets or other proprietary or confidential
information.
(d) Survival of Covenants. Employee's covenants and agreements
and the Bank's rights and remedies provided for in this Agreement shall survive
any termination of this Agreement or Employee's employment with the Bank.
2. Term and Consideration. As consideration for Employee's covenants and
agreements under this Agreement, the Bank hereby agrees to pay Employee the sum
of Thirty Thousand Dollars and 00/100 ($30,000.00) upon the execution of this
Agreement and an identical sum upon the first anniversary of the date of this
Agreement; the aggregate amount of $60,000.00 payable to Employee hereunder
shall be deemed to be earned by Employee ratibly over the two year period
commencing on the date hereof. In the event of the breach by Employee of his
covenants pursuant to Section 1(b) of this Agreement, Employee shall repay to
the Bank any amounts paid by the Bank to Employee pursuant to the immediately
preceding sentence that relate to any period following the date of such breach.
3. Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to the transactions described herein and supersedes any and
all other oral or written agreements heretofore made, and there are no
representations or inducements by or to, or any agreements between, any of the
parties hereto other than those contained herein in writing.
[Signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement under seal and
in such form as to be binding as of the day and year first hereinabove written.
CATAWBA VALLEY BANK
By: /s/ R. Xxxxx Xxxxx
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R. Xxxxx Xxxxx, President and CEO
ATTEST:
/s/ Xxxxxx Xxxxxx
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Secretary
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx [SEAL]
