EX-10.5



 





Exhibit 10.5




NON-COMPETITION AGREEMENT




     THIS NON-COMPETITION AGREEMENT (this “Agreement”) is made this 31st day of December,
2007 by and between Commerce Bank/North, a New Jersey chartered bank (other than CIS (as defined
below), the “Seller” and, together with its parents, subsidiaries and affiliates, and their
successors and assigns, “Commerce”), and George E. Norcross, III (the “Restricted
Person”).



     WHEREAS, pursuant to that certain Stock Purchase Agreement (the “Stock Purchase
Agreement”), dated as of the date of this Agreement, by and among Seller, Commerce Bancorp,
Inc. (“Bancorp”), Commerce Insurance Services, Inc. (“CIS”) and General American
Holdings, Inc. (“Buyer”), Buyer will acquire all of the outstanding capital stock of CIS;
and



     WHEREAS, in connection with the transactions contemplated by the Stock Purchase Agreement (the
“Transaction”), certain individuals are required to enter into non-competition agreements
with Seller, in which they will agree to not compete with Commerce’s current and future banking
business and not solicit Commerce’s banking employees, representatives, agents, customers, vendors,
joint venturers or licensors.



     NOW, THEREFORE, in consideration of the mutual covenants, promises and representations
contained herein, and for other good and valuable consideration, and intending to be legally bound,
the parties hereto agree as follows:



     1. Consideration. For the Restricted Person’s execution of this Agreement and the
promises contained herein, (x) Bancorp shall pay to the Restricted Person the “Change in Control
Payment” payable pursuant to that certain employment agreement
with Bancorp, dated October 2, 2007,
as amended as of the date hereof, and (y) Seller shall pay the Restricted Person $4,000,000 in a
lump sum cash payment on the later of (i) Closing Date (as defined in the Stock Purchase Agreement)
and (ii) January 2, 2008. The Restricted Person acknowledges and agrees that the foregoing
payments represent adequate consideration for the Restricted Person’s entering into, and being
bound by, this Agreement.



     2. Confidential Information. The Restricted Person agrees that the Restricted Person
shall not, directly or indirectly, use, make available, sell, disclose or otherwise communicate to
any natural person, corporation, partnership, trust, estate, joint venture, sole proprietorship,
association, cooperative or other entity (any of the foregoing, a “Person”), any business and
technical information or trade secrets, nonpublic, proprietary or confidential information,
knowledge or data relating to Commerce or its banking businesses (including, but not limited to,
client lists, referral lists, employee lists, financial data, marketing programs and other
specialized facts regarding customers of Commerce), which was obtained by the Restricted Person
during the Restricted Person’s employment by Commerce (or any predecessor thereof). The foregoing
shall not apply to information that (A) was known to the public prior to its disclosure to the
Restricted Person; (B) becomes generally known to the public subsequent to disclosure to the
Restricted Person through no act of the Restricted Person or any representative of the Restricted
Person; or (C) the Restricted Person is required to disclose by applicable law, regulation or legal
process (provided that the Restricted Person provides Commerce with













 







reasonable prior notice of the contemplated disclosure and cooperates with Commerce at its
expense in seeking a protective order or other appropriate protection of such information if
requested by Commerce).



     3. Non-Competition. The Restricted Person agrees that for a period of five (5) years
following the Closing Date (the “Restricted Period”), the Restricted Person will not,
directly or indirectly, on his own behalf or for the benefit of any Person, establish, engage or
participate in or otherwise perform work in or provide advice with respect to any business of
Commerce (other than the business of CIS and any services performed by the Restricted Person
pursuant to any marketing or similar agreement that may be entered into by and between Seller,
Bancorp, or their affiliates and the Restricted Person for the benefit of any of Seller, Bancorp or
their affiliates) in any geographic area in which Commerce now or in the future conducts its
business. The foregoing shall not prohibit the Restricted Person from owning as a shareholder less
than 5% of the outstanding voting stock of an issuer whose stock is publicly traded. For the
avoidance of doubt, the provisions of this Section 3 shall not restrict the Restricted Person from
performing services of any kind that customarily fall within the meaning of the term “insurance
business.”



     4. Non-Solicitation. During the Restricted Period, the Restricted Person agrees that
the Restricted Person shall not, directly or indirectly, on his own behalf or for the benefit of
any Person, (A) solicit, aid or induce any employee, representative or agent of Commerce (other
than any current or former employee, representative or agent of CIS, excluding for a period of
twelve months after the Closing Date any personal lines of business employees whose employment was
transferred from CIS to Seller prior to the Closing Date pursuant to the Stock Purchase Agreement)
to leave such employment or retention or to accept employment with or render services to or with
any other Person unaffiliated with Commerce or hire or retain any such employee, representative or
agent, or take any action to materially assist or aid any other Person in identifying, hiring or
soliciting any such employee, representative or agent, or (B) interfere, or aid or induce any other
Person in interfering, with the relationship between Commerce and any of its active or prospective
customers, vendors, joint venturers or licensors, including inducing any of the foregoing to leave
an existing relationship with Commerce (other than any active customer, vendor, joint venturer or
licensor of CIS as in existence as of the Closing Date).



     5. Reformation. If it is determined by a court of competent jurisdiction in any State
that any restriction in Section 3 or 4 is excessive in duration or scope or is unreasonable or
unenforceable under the laws of that State, it is the intention of the parties that such
restriction may be modified or amended by the court to render it enforceable to the maximum extent
permitted by the laws of that State. The Restricted Person acknowledges and agrees that it is the
Restricted Person’s intention and the intention of Commerce that the provisions of this Agreement
will be enforced to the fullest extent permissible under the laws and public policies of each
jurisdiction in which such enforcement is sought.



     6. Tolling. In the event of any violation of the provisions of Sections 3 or 4, the
Restricted Person acknowledges and agrees that the Restricted Period will be extended by a period
of time equal to the period of such violation, it being the intention that the running of the
Restricted Period will be tolled during any period of such violation.



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     7. Enforcement. The Restricted Person acknowledges and agrees that Commerce’s
remedies at law for a breach or threatened breach of any of the provisions of Sections 3 or 4
hereof would be inadequate and that any such breach or threatened breach will cause irreparable
injury to Commerce, and that money damages will not provide an adequate remedy to Commerce. In
recognition of this fact, the Restricted Person agrees that, in the event of such a breach or
threatened breach, in addition to any remedies at law, Commerce, without necessity of posting any
bond or providing independent evidence of irreparable injury, shall be entitled to obtain equitable
relief in the form of specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy which may then be available.



     8. Acknowledgement. The Restricted Person acknowledges that the Restricted Person is
fully aware of the restrictions that this Agreement places upon the Restricted Person’s future
employment or contractual opportunities with someone other than Commerce and agrees that the
restrictions in Sections 3 and 4 are necessary and reasonable for the protection of Commerce’s
legitimate business interests. The Restricted Person also acknowledges that the scope, duration
and geographic limitations contained in Sections 3 and 4 are necessary and reasonable given the
nature of Commerce’s businesses and services, and the Restricted Person agrees not to challenge the
necessity, reasonableness or enforceability of the covenants contained in Section 3 or 4 in the
future.



     9. Severability. To the extent that any provision of this Agreement or portion
thereof shall be invalid or unenforceable, it shall be considered deleted therefrom and the
remainder of such provision and of this Agreement shall be unaffected and shall continue in full
force and effect.



     10. Jurisdiction and Governing Law. Jurisdiction over disputes with regard to this
Agreement will be exclusively in the Superior Court, Chancery or Law Division, Camden County, New
Jersey, or the United States District Court for the District of New Jersey, Camden Vicinage, and
this Agreement will be construed, interpreted and enforced in accordance with and governed by the
laws of the State of New Jersey, without giving effect to the choice of law principles thereof.



     11. Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of Commerce, its successors and assigns. The Restricted Person’s obligations under
this Agreement shall not be assignable by the Restricted Person.



     12. Entire Agreement. This Agreement constitutes the entire agreement by the Seller
and the Restricted Person with respect to the subject matter hereof, and supersedes any and all
prior agreements or understandings between the Restricted Person and the Seller with respect to the
subject matter hereof, whether written or oral. This Agreement may be amended or modified only by
a written instrument executed by the Restricted Person and the Seller.



     13. Third Party Beneficiaries. Each Person identified within the meaning of the term
“Commerce” as defined above in this Agreement will be a third party beneficiary to this Agreement,
with full rights to enforce this Agreement and the matters documented herein.



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     14. Counterparts. This Agreement may be executed (including by facsimile transmission
confirmed promptly thereafter by actual delivery of executed counterparts) with counterpart
signature pages or in counterparts, each of which together constitute one and the same instrument.



[Next page is the signature page.]




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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written
above.



	 	 	 	 	 
	 

	 	COMMERCE BANK/NORTH	 	 
	 
	 	 	 	 
	 

	 	/s/ Douglas J. Pauls
 

Name: Douglas J. Pauls
	 	 
	 

	 	Title: Chief Financial Officer	 	 
	 
	 	 	 	 
	 

	 	RESTRICTED PERSON	 	 
	 
	 	 	 	 
	 

	 	/s/ George E. Norcross, III	 	 
	 

	 	 	 	 
	 

	 	Name: George E. Norcross, III	 	 







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