This Non-Competition Agreement (this Agreement), dated as of March 3, 2020, is entered into by Evans Bancorp, Inc., a New York corporation (Parent), and Kevin D. Maroney (Executive).
WHEREAS, Parent, FSB Bancorp, Inc., a Maryland corporation (Target), and MMS Merger Sub, Inc., a Maryland corporation (Merger Sub) have entered into an Agreement and Plan of Reorganization, dated as of December 19, 2019 (the Merger Agreement), pursuant to which (i) Merger Sub will merge with and into Target, with Target continuing as the surviving corporation and wholly-owned subsidiary of Parent; (ii) immediately thereafter, Target will merge with and into Parent, with Parent as the surviving corporation; and (iii) immediately thereafter, Fairport Savings Bank, a wholly-owned subsidiary of Target (Target Bank), will merge with and into Evans Bank, N.A., a national banking association and wholly-owned subsidiary of Parent (Parent Bank), with Parent Bank as the surviving bank (the Transaction);
WHEREAS, Executive is the President and Chief Executive Officer of Target Bank and has entered into an Employment Agreement with Target Bank, effective as of January 1, 2018 (the Employment Agreement);
WHEREAS, in connection with the Transaction, Executives employment with Target and Target Bank shall be terminated and Executive shall become a member of Parents Board of Directors (the Termination);
WHEREAS, Executive will receive substantial consideration as a result of the Transaction and the Termination, including change of control benefits pursuant to the terms of Section 5(b) of the Employment Agreement (the Change of Control Payments), the accelerated payout of Executives benefit under Targets Supplemental Executive Retirement Plan, and the acceleration of Executives stock options and other incentive equity awards that would otherwise be unvested as of the date that the Transaction is consummated (such date, the Closing Date); and
WHEREAS, this Agreement shall become effective on the Closing Date, but if, for any reason, the Transaction shall not close in accordance with the terms of the Merger Agreement, this Agreement shall be null and void.
In consideration of the mutual promises set forth below and other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, Parent and Executive agree as follows:
1. Restrictive Covenants.
1.1. Non-Competition. For a period of two years following the Termination (the Restricted Period), Executive shall not, directly or indirectly, as an officer, director, employee, agent, adviser, consultant, principal, partner, investors or any other capacity, provide services to any savings bank, savings and loan association, savings and loan holding company, credit union, bank or bank holding company, insurance company or agency, mortgage or loan broker or any other entity that competes with the business of Parent or its subsidiaries within 25 miles of any locations in which Parent Bank, as successor to Target Bank, has business operations or has filed an application for regulatory approval to establish an office (the Territory). Executives passive investment of not more than 3% of a publicly traded entity shall not be deemed a violation of this Section 1.1.