Exhibit 10.2


 


Non-Solicitation Agreement


 


By and between


 


Scott Galit and MetaBank


 


Dated February 8,
2010


 


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NON-SOLICITATION AGREEMENT


 


This
Non-Solicitation Agreement is dated February 8, 2010, by and between Scott
Galit (“Employee”) and MetaBank (“MetaBank”), a corporation.


 


WHEREAS,
during the course of employment or association with MetaBank, Employee has
received certain confidential and proprietary materials and highly sensitive
information; and


 


WHEREAS,
MetaBank provided the foregoing with the intention and understanding that it
would be kept in confidence by Employee; and


 


WHEREAS,
to preserve the value and usefulness of the foregoing, and in consideration of
Two Hundred Thirty Thousand Four Hundred Eighty and 77/100 Dollars
($230,480.77), MetaBank requires this Agreement from Employee providing certain
covenants not to solicit MetaBank’s customers;


 


NOW
THEREFORE, in consideration of the foregoing, Employee hereby promises and
agrees as follows:


 


1.             Definitions.  For purposes of this Agreement, the following
terms shall have the following meaning:


 


(a)                                  “Customer”
means any person or entity that is doing business with MetaBank on the
Determination Date.


 


(b)                                 “Determination
Date” means the date of termination or severance of the employment relationship
between Employee and MetaBank.


 


2.           Non-Solicitation.  Employee, either personally or on behalf of
another person or entity,  hereby
covenants and agrees to not directly or indirectly divert business from MetaBank
or solicit (or attempt to solicit) any Customers of MetaBank in connection with
prepaid debit card or credit card services or related services, or otherwise
divert or attempt to divert any existing business of MetaBank existing as of
the date of this Agreement or the Determination Date, anywhere within the
United States, while this Agreement remains in effect and within the one
(1)-year period following the Determination Date, for so long as MetaBank
continues to carry on a like business therein.


 


3.             Representations of Employee.  Employee expressly represents and warrants as
follows:


 


(a)                                  If Employee obtains or
commences employment (whether full-time or part-time) with any other employer
during the one (1)-year period following the Determination Date, Employee will
provide such new employer with a copy of this Agreement, and Employee agrees
that MetaBank may provide copies of this Agreement to such new employer.  Employee agrees that MetaBank shall have the
right to inform any such new employer of Employee’s obligations hereunder.


 

















 


(b)                                 The restrictions and
limitations contained in this Agreement are reasonable as to scope and duration
and are necessary to protect MetaBank’s trade secrets and confidential
information and to preserve for MetaBank the competitive advantage derived from
maintaining confidentiality and restricted competition by Employee.


 


4.             Enforcement and Remedy.  Employee expressly agrees that its violation
of this Agreement shall entitle MetaBank to the recovery of damages and injunctive
relief.  MetaBank shall be entitled to
any and all further or other rights and remedies available at law or in equity,
without the requirement of posting a bond. 
If a legal action is instituted to enforce the provisions of this
Agreement, or any part thereof, MetaBank shall be entitled to recovery of
reasonable attorneys’ fees and costs, including discovery costs, as determined
by the Court.


 


5.             Severability.  In the event that any of the restrictions and
limitations contained in this Agreement are deemed to be unenforceable or to
otherwise exceed any time, geographic or other limitations permitted by
applicable law, the provisions of this Agreement shall be reformed to the
maximum extent permitted by applicable law, and each provision determined to be
unenforceable or not in compliance with applicable law shall be deemed severed
from the remaining terms and conditions of this Agreement, which shall remain
in full force and effect.


 


6.             Waiver.  Failure of either party to insist upon the
strict performance of any of the covenants or conditions of this Agreement or
to exercise any right or option herein conferred in any one or more instances
shall not be construed as a waiver or relinquishment for the future of any such
covenants, conditions, rights or options, but the same shall remain in full
force and effect.  The doing of any party
of any act or thing which it is not obligated to do hereunder shall not be
deemed to impose any obligation upon it to do any such act or thing in the
future or in any way change or alter any provision of this Agreement.


 


7.             Successors.  This Agreement shall inure to the benefit of
both MetaBank and Employee, and their respective successors and assigns.


 


8.             Assignment.  This
Agreement is a personal services contract and Employee may not assign his
duties and obligations hereunder.


 


9.             Amendment.  No change, waiver, modification or amendment
to this Agreement, or any covenant, condition or limitation herein contained,
shall be valid unless the same shall be in writing and signed by the parties
hereto.


 


10.           Choice of Law / Consent to
Jurisdiction.  This Agreement shall
be deemed to have been executed and delivered from the State of South Dakota,
and the rights of obligations of the parties hereunder shall be construed and
enforced in accordance with and governed by the laws of the State of South
Dakota without regard to the principles of conflicts of law.  Employee agrees that any lawsuit arising
directly or indirectly or otherwise in connection with, out of or related to
this Agreement may be litigated only in the courts whose situs is within the
State of South Dakota, and Employee specifically waives any right Employee may
have to transfer or


 


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change
venue of any such litigation, and herby consents and submits to the
jurisdiction of any courts located within the State of South Dakota.


 


11.           Construction.  This Agreement and all of the words, terms
and provisions hereof shall be construed in accordance with their usual and
ordinary meanings and not in favor of or against either party hereto.  As required by the context in the
construction of this Agreement, pronouns of the masculine gender shall be
deemed to include the feminine gender, pronouns of the neuter gender shall be
deemed to include the masculine and feminine gender, and words and phrases in
the singular shall be deemed to include the plural, and vice versa.


 


12.           Headings.  The headings herein have been inserted for
convenient reference only and shall not be construed as limiting or defining
the substantive terms of this Agreement.


 


13.           Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed an original, and all of which,
taken together, shall constitute one and the same Agreement.


 


14.           Attorneys’ Fees.  If litigation is commenced to enforce this
Agreement, the party who substantially prevails in such litigation shall be
entitled to the recovery of reasonable attorneys’ fees, costs and expenses
(including deposition and other discovery expenses), which recovery shall be
enforceable by judgment of the court.


 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
the day and year first above written.


 


	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
  /s/ Scott Galit

  
	
   

  	
  Scott
  Galit

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  METABANK

  
	
   

  	
   

  
	
   

  	
  By

  	
  Brad
  C. Hanson

  
	
   

  	
   

  	
  Brad C. Hanson,
  Executive Vice President of Meta Financial Group and MetaBank and President
  of Meta Payments Systems

  



 


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