EXHIBIT
10.17
EXECUTION
COPY
NON-COMPETITION
AGREEMENT
THIS NON-COMPETITION AGREEMENT
(this “Agreement”) is
made, entered into and effective as of this 29 th
day of December, 2005 by and among TIB BANK , a
bank chartered under the laws of the State of Florida (the
“Bank”), TIB FINANCIAL CORP ., a
Florida corporation and the sole shareholder of the Bank
(“Parent”), and NOVA INFORMATION SYSTEMS,
INC ., a Georgia corporation
(“NOVA”).
BACKGROUND AND
PURPOSE
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The Bank and
NOVA are in the business of providing point of sale based credit
card, debit card, and other card-based transaction processing
services and electronic payment and settlement services (including
the sale or lease of products and services related thereto) to
merchants, financial institutions (including associate banks),
independent sales organizations, and other similar customers (the
“Merchant Bankcard Business”).
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The Bank is a
party to certain “Merchant Agreements” in connection
with the Merchant Bankcard Business.
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The Bank has
sold to NOVA, and NOVA has purchased from the Bank, all of the
Bank's assets relating to the Bank's Merchant Bankcard Business,
including but not limited to Merchant Agreements, pursuant to the
Merchant Asset Purchase Agreement among NOVA, Parent and the Bank
dated as of even date herewith (the “Purchase
Agreement”).
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In connection
with the Purchase Agreement, NOVA has assumed certain obligations
of the Bank.
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In connection
with and as a fundamental part of the Purchase Agreement, the Bank,
Parent and NOVA have entered into the Marketing and Sales Alliance
Agreement dated as of even date herewith (the "Marketing
Agreement").
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NOVA
engages in the Merchant Bankcard Business in the
United States of America, and NOVA and its assigns will continue to
develop and expand its Merchant Bankcard Business throughout the
United States of America.
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As a condition
precedent to the entering into of the Purchase Agreement and the
Marketing Agreement, and in order to protect the goodwill and other
value of the Assets Sold (as defined in the Purchase Agreement) and
to protect the legitimate business interests of NOVA, NOVA has
required the Bank and Parent to enter into this
Agreement.
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THE
AGREEMENT
NOW,
THEREFORE , for and
in consideration of the premises and the mutual covenants and
agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as
follows:
ARTICLE
I
DEFINITIONS
1.1
Definitions
. The following capitalized terms,
when used in this Agreement, shall have the following
definitions:
“Assets Sold”
shall have the meaning given to it in the
Purchase Agreement.
"Knowledge" shall have the meaning given to it in the
Purchase Agreement
"Merchant" shall have the meaning given to it in the
Purchase Agreement
"Merchant Bankcard Business"
shall have the meaning given to it in Recital A
of this Agreement.
"Merchant Services"
shall have the meaning given to it in the
Marketing Agreement
"Payment Network
" shall have the meaning given to it in the
Marketing Agreement.
"Person" means any of a natural person, corporation,
partnership, firm, association, limited liability company, trust,
estate or other entity of any kind.
“Referred Merchant"
shall have the meaning given to it in the
Marketing Agreement
"Restricted Party"
means the Bank, Parent and their respective
subsidiaries and affiliates in existence from time to
time.
ARTICLE
II
RESTRICTIVE COVENANTS OF THE
BANK AND PARENT
2.1
Non-Solicitation . During the term of this Agreement (including
any extensions or renewals hereof) and for two (2) years
thereafter, no Restricted Party shall, directly or indirectly,
whether individually, in partnership, jointly, or in conjunction
with, or on behalf of, any person, firm, partnership, corporation,
or unincorporated association or entity of any kind:
(a) solicit or contact any Merchant or Referred
Merchant, for the purpose of directly or indirectly providing or
receiving Merchant Services anywhere in the United
States.
(b) employ or engage, or seek to employ or engage,
any person who is or was at any time during the term of this
Agreement an employee of NOVA, unless such person voluntarily
resigns from employment with NOVA without any direct or indirect
solicitation, promise, arrangement, agreement or inducement from or
on behalf of any Restricted Party; or
(c) either orally or in writing, take any action
which disparages NOVA (including its management, directors or
officers) or its practices or which materially disrupts or impairs
its normal operations, or, unless required by law, voluntarily
provide assistance or information to any person or entity pursuing
any claim, charge, or complaint against NOVA or to any other person
or entity which, to the Knowledge of such Restricted Party, is
adverse to NOVA.
2.2
Non-Competition . During the term of this Agreement (including
any extensions or renewals hereof), subject to earlier termination
as provided in Section 3.1 below, no Restricted Party shall,
directly or indirectly, whether individually, in partnership,
jointly, or in conjunction with, or on behalf of any person, firm,
partnership, corporation, or unincorporated association or entity
of any kind:
(a) engage or participate, directly or indirectly,
in the Merchant Bankcard Business anywhere in the United States,
except for the benefit of NOVA as specifically provided in, and in
strict compliance with the terms of, the Marketing Agreement (and
subject to the provisions of Article III thereof); or
(b) provide Merchant Services in the United States
to any person or entity, or facilitate, refer, solicit, or
otherwise participate or engage in the provision of Merchant
Services anywhere in the United States to any person or entity,
directly or indirectly, including by sponsoring any Person into or
with any Credit Card Association or EFT Network, except for the
benefit of NOVA as specifically provided in, and in strict
compliance with the terms of, the Marketing Agreement (and subject
to the provisions of Article III thereof).
2.3
No Branding or Use of Name
or Marks . Except
for the benefit of NOVA as specifically provided in, and in
compliance with terms of, the Marketing Agreement (including
Section 2.5 thereof), and without limiting the generality of the
covenants set forth in Section 2.1 and 2.2 hereof, no party shall
use or be allowed to use any of the Bank's trade names, trademarks,
or service marks, or otherwise publicize in any manner any
affiliation with, or sponsorship or endorsement by, the Bank or any
of its affiliates in connection with the Merchant Bankcard
Business.
2.4
Acknowledgments . Each of Parent and the Bank acknowledges and
agrees that the restrictions set forth in Sections 2.1, 2.2 and 2.3
hereof are reasonable and necessary to protect the legitimate
business interests of NOVA, and are reasonable and necessary to
protect the goodwill and other value of the Assets Sold, the
Merchant Bankcard Business of NOVA, and the benefits bargained for
by NOVA under the Purchase Agreement and the Marketing Agreement.
Each of Pare
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