exhibit104






 NON-COMPETITION AND NON-SOLICITATION AGREEMENT  THIS NON-COMPETITION AND NON-SOLICITATION AGREEMENT (this “Agreement”) is  being executed and delivered as of January 4, 2021, by Customers Bank, a Pennsylvania state chartered  bank and the sole stockholder of the Company (defined below) (the “Subject Party”) in favor of and for the  benefit of Megalith Financial Acquisition Corp., a Delaware corporation, which will be known after the  consummation of the transactions contemplated by the Merger Agreement (as defined below) as “BM  Technologies, Inc.” (including any successor entity thereto, the “Purchaser”), BankMobile Technologies,  Inc., a Pennsylvania corporation (the “Company”), and each of the Purchaser’s and/or the Company’s  respective Affiliates, successors and direct and indirect Subsidiaries (collectively with the Purchaser and  the Company, the “Covered Parties”).  Any capitalized term used, but not defined in this Agreement will  have the meaning ascribed to such term in the Merger Agreement.  WHEREAS, on August 6, 2020, (i) the Purchaser, (ii) MFAC Merger Subsidiary Inc., a  Pennsylvania corporation and a wholly-owned subsidiary of the Purchaser (“Merger Sub”), the Subject  Party, (iii) the Subject Party and (iv) the Company, entered into that certain Agreement and Plan of Merger  (as amended, including by the First Amendment to Agreement and Plan of Merger, dated November 2,  2020 and the Second Amendment to Agreement and Plan of Merger, dated December 8, 2020, the “Merger  Agreement”), pursuant to which, subject to the terms and conditions thereof, the Company merged with  and into Merger Sub, with Merger Sub continuing as the surviving entity (the “Merger”), and with the  Company’s stockholder receiving shares of the Purchaser’s common stock;  WHEREAS, as of the Closing Date, the Company provides a digital disbursement platform for  colleges, universities and other higher educational institutions, student banking services through the  disbursements platform, the T-Mobile Money product, white label digital banking services, and workplace  banking services to clients with 999 employees or less (the “Business”);  WHEREAS, in connection with, and as a condition to the execution and delivery of the Merger  Agreement and the consummation of the Merger and the other transactions contemplated thereby (the  “Transactions”), and to enable the Purchaser to secure more fully the benefits of the Transactions, including  the protection and maintenance of the goodwill and confidential information of the Company, the Purchaser  has required that the Subject Party enter into this Agreement;  WHEREAS, the Subject Party is entering into this Agreement in order to induce the Purchaser and  Merger Sub to consummate the Transactions, pursuant to which the Subject Party will directly or indirectly  receive a material benefit; and  WHEREAS, the Subject Party, as the former sole stockholder of the Company, has contributed to  the value of the Company and has obtained extensive and valuable knowledge and confidential information  concerning the business of the Company.   NOW, THEREFORE, in order to induce the Purchaser to consummate the Transactions, and for  other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the  Subject Party hereby agrees as follows:  1. Restriction on Competition.  (a) Restriction.  The Subject Party hereby agrees that during the period from the  Closing until the four (4) year anniversary of the Closing Date (the “Termination Date”), and such period  from the Closing until the Termination Date, the “Restricted Period”), the Subject Party will not, and will  cause its Affiliates not to, without the prior written consent of Purchaser (which may be withheld in its sole  





 






2  discretion), anywhere in the United States or in any other markets in which the Covered Parties are engaged,  or are actively contemplating to become engaged, in the Business as of the Closing Date or during the  Restricted Period (the “Territory”), directly or indirectly engage in the Business (other than through a  Covered Party) or own, manage, finance or control, or participate in the ownership, management, financing  or control of, or become engaged or serve as an officer, director, member, partner, employee, agent,  consultant, advisor or representative of, a business or entity (other than a Covered Party) that engages in  the Business (a “Competitor”).  Notwithstanding the foregoing, (i) a request by the Subject Party for prior  written consent to engage in white label digital banking services with identified customers within the  Territory shall not be unreasonably withheld, conditioned or delayed and (ii) the Subject Party and its  Affiliates may own passive investments of no more than two percent (2%) of any class of outstanding equity  interests in a Competitor that is publicly traded, so long as the Subject Party and its Affiliates and immediate  family members are not involved in the management or control of such Competitor (“Permitted  Ownership”).  (b) Acknowledgment.  The Subject Party acknowledges and agrees, that (i) the Subject  Party possesses knowledge of confidential information of the Company and the Business, (ii) the Subject  Party’s execution of this Agreement is a material inducement to Purchaser to consummate the Transactions  and to realize the goodwill of the Company, for which the Subject Party and/or its Affiliates will receive a  substantial direct or indirect financial benefit, and that the Purchaser would not have entered into the Merger  Agreement or consummated the Transactions but for the Subject Party’s agreements set forth in this  Agreement, (iii) it would impair the goodwill of the Company and reduce the value of the assets of the  Company and cause serious and irreparable injury if the Subject Party were to use its ability and knowledge  by engaging in the Business in competition with a Covered Party, and/or to otherwise breach the obligations  contained herein and that the Covered Parties would not have an adequate remedy at law because of the  unique nature of the Business, (iv) the Subject Party and its Affiliates have no intention of engaging in the  Business (other than through the Covered Parties) during the Restricted Period other than through Permitted  Ownership, (v) the relevant public policy aspects of restrictive covenants, covenants not to compete and  non-solicitation provisions have been discussed, and every effort has been made to limit the restrictions  placed upon the Subject Party to those that are reasonable and necessary to protect the Covered Parties’  legitimate interests, (vi) the Covered Parties conduct and intend to conduct the Business everywhere in the  Territory and compete with other businesses that are or could be located in any part of the Territory, (vii)  the foregoing restrictions on competition are fair and reasonable in type of prohibited activity, geographic  area covered, scope and duration, (viii) the consideration provided to the Subject Party under this  Agreement and the Merger Agreement is not illusory, and (ix) such provisions do not impose a greater  restraint than is necessary to protect the goodwill or other business interests of the Covered Parties.  2. No Solicitation; No Disparagement.  (a) No Solicitation of Employees and Consultants.  The Subject Party agrees that,  during the Restricted Period, the Subject Party will not, and will not permit its Affiliates to, without the  prior written consent of the Purchaser (which may be withheld in its sole discretion), either on its own  behalf or on behalf of any other Person (other than, if applicable, a Covered Party in the performance of the  Subject Party’s duties on behalf of the Covered Parties), directly or indirectly:  (i) hire or engage as an  employee, independent contractor, consultant or otherwise any Covered Personnel (as defined below); (ii)  solicit, induce, encourage or otherwise knowingly cause (or attempt to do any of the foregoing) any Covered  Personnel to leave the service (whether as an employee, consultant or independent contractor) of any  Covered Party; or (iii) in any way interfere with or attempt to interfere with the relationship between any  Covered Personnel and any Covered Party; provided, however, the Subject Party and its Affiliates will not  be deemed to have violated this Section 2(a) if any Covered Personnel voluntarily and independently solicits  an offer of employment from the Subject Party or its Affiliate (or other Person whom any of them is acting  on behalf of) by responding to a general advertisement or solicitation program conducted by or on behalf  





 






3  of the Subject Party or its Affiliate (or such other Person whom any of them is acting on behalf of) that is  not targeted at such Covered Personnel or Covered Personnel generally, so long as such Covered Personnel  is not hired.  For purposes of this Agreement, “Covered Personnel” shall mean any Person who is or was  an employee, consultant or independent contractor of the Covered Parties, as of the Closing Date, at any  time during the Restricted Period and as of the relevant time of determination.  (b) Non-Solicitation of Customers and Suppliers.  The Subject Party agrees that,  during the Restricted Period, the Subject Party and its Affiliates will not, without the prior written consent  of the Purchaser (which may be withheld in its sole discretion), individually or on behalf of any other Person  (other than, if applicable, a Covered Party in the performance of the Subject Party’s duties on behalf of the  Covered Parties), directly or indirectly:  (i) solicit, induce, encourage or otherwise knowingly cause (or  attempt to do any of the foregoing) any Covered Customer (as defined below) to (A) cease being, or not  become, a client or customer of any Covered Party with respect to the Business or (B) reduce the amount  of business of such Covered Customer with any Covered Party, or otherwise alter such business relationship  in a manner adverse to any Covered Party, in either case, with respect to or relating to the Business; (ii)  knowingly interfere with or disrupt (or attempt to interfere with or disrupt) the contractual relationship  between any Covered Party and any Covered Customer; (iii) divert any business with any Covered  Customer relating to the Business from a Covered Party; (iv) solicit for business, provide services to, engage  in or do business with, any Covered Customer for products or services that are part of the Business; or (v)  interfere with or disrupt (or attempt to interfere with or disrupt), any Person that was a vendor, supplier,  distributor, agent or other service provider of a Covered Party at the time of such interference or disruption,  for a purpose competitive with a Covered Party as it relates to the Business.  For purposes of this Agreement,  a “Covered Customer” shall mean any Person who is or was an actual customer or client (or prospective  customer or client with whom a Covered Party actively marketed or made or taken specific action to make  a proposal) of a Covered Party, as of the Closing Date, at any time during the Restricted Period and as of  the relevant time of determination.  (c) Non-Disparagement.  The Subject Party agrees that from and after the Closing until  the Second (2 nd ) anniversary of the end of the Restricted Period, the Subject Party and its Affiliates will  not, directly or indirectly engage in any conduct that involves the making or publishing (including through  electronic mail distribution or online social media) of any written or oral statements or remarks (including  the repetition or distribution of derogatory rumors, allegations, negative reports or comments) that are  disparaging, deleterious or damaging to the integrity, reputation or good will of one or more Covered Parties  or their respective management, officers, employees, independent contractors or consultants.   Notwithstanding the foregoing, subject to Section 3 below, the provisions of this Section 2(c) shall not  restrict the Subject Party from providing truthful testimony or information in response to a subpoena or  investigation by a Governmental Authority or in connection with any legal action by the Subject Party  against any Covered Party under this Agreement, the Merger Agreement or any other Ancillary Document  that is asserted by the Subject Party in good faith.  3. Confidentiality.  From and after the Closing Date, the Subject Party will, and will cause  its Representatives to, keep confidential and not (except, if applicable, in the performance of the Subject  Party’s duties on behalf of the Covered Parties) directly or indirectly use, disclose, reveal, publish, transfer  or provide access to, any and all Covered Party Information without the prior written consent of the  Purchaser (which may be withheld in its sole discretion).  As used in this Agreement, “Covered Party  Information” means all material and information relating to the business, affairs and assets of any Covered  Party, including material and information that concerns or relates to such Covered Party’s bidding and  proposal, technical, computer hardware or software, administrative, management, operational, data  processing, financial, marketing, sales, human resources, business development, planning and/or other  business activities, regardless of whether such material and information is maintained in physical,  electronic, or other form, that is:  (A) gathered, compiled, generated, produced or maintained by such  





 






4  Covered Party through its Representatives, or provided to such Covered Party by its suppliers, service  providers or customers; and (B) intended and maintained by such Covered Party or its Representatives,  suppliers, service providers or customers to be kept in confidence.  The obligations set forth in this Section  3 will not apply to any Covered Party Information where the Subject Party can prove that such material or  information: (i) is known or available through other lawful sources not bound by a confidentiality agreement  with, or other confidentiality obligation to, any Covered Party; (ii) is or becomes publicly known through  no violation of this Agreement or other non-disclosure obligation of the Subject Party or any of its  Representatives; (iii) is already in the possession of the Subject Party at the time of disclosure through  lawful sources not bound by a confidentiality agreement or other confidentiality obligation as evidenced by  the Subject Party’s documents and records; or (iv) is required to be disclosed pursuant to an order of any  administrative body or court of competent jurisdiction (provided that (A) the applicable Covered Party is  given reasonable prior written notice, (B) the Subject Party cooperates (and causes its Representatives to  cooperate) with any reasonable request of any Covered Party to seek to prevent or narrow such disclosure  and (C) if after compliance with clauses (A) and (B) such disclosure is still required, the Subject Party and  its Representatives only disclose such portion of the Covered Party Information that is expressly required  by such order, as it may be subsequently narrowed).  4. Representations and Warranties.  The Subject Party hereby represents and warrants, to  and for the benefit of the Covered Parties as of the date of this Agreement and as of the Closing Date, that:  (a) the Subject Party has full power and capacity to execute and deliver, and to perform all of the Subject  Party’s obligations under, this Agreement; and (b) neither the execution and delivery of this Agreement nor  the performance of the Subject Party’s obligations hereunder will result directly or indirectly in a violation  or breach of any agreement or obligation by which the Subject Party is a party or otherwise bound.  By  entering into this Agreement, the Subject Party certifies and acknowledges that the Subject Party has  carefully read all of the provisions of this Agreement, and that the Subject Party voluntarily and knowingly  enters into this Agreement.  5. Remedies.  The covenants and undertakings of the Subject Party contained in this  Agreement relate to matters which are of a special, unique and extraordinary character and a violation of  any of the terms of this Agreement may cause irreparable injury to the Covered Parties, the amount of which  may be impossible to estimate or determine and which cannot be adequately compensated.  The Subject  Party agrees that, in the event of any breach or threatened breach by the Subject Party of any covenant or  obligation contained in this Agreement, each applicable Covered Party will be entitled to seek the following  remedies (in addition to, and not in lieu of, any other remedy at law or in equity or pursuant to the Merger  Agreement or the other Ancillary Documents that may be available to the Covered Parties, including  monetary damages), and a court of competent jurisdiction may award:  (i) an injunction, restraining order  or other equitable relief restraining or preventing such breach or threatened breach, without the necessity  of proving actual damages or posting bond or security, which the Subject Party expressly waives; and (ii)  recovery of the Covered Party’s attorneys’ fees and costs incurred in enforcing the Covered Party’s rights  under this Agreement.  The Subject Party hereby consents to the award of any of the above remedies to the  applicable Covered Party in connection with any such breach or threatened breach.  The Subject Party  hereby acknowledges and agrees that in the event of any breach of this Agreement, any value attributed or  allocated to this Agreement (or any other non-competition agreement with the Subject Party) under or in  connection with the Merger Agreement shall not be considered a measure of, or a limit on, the damages of  the Covered Parties.    6. Survival of Obligations.  The expiration of the Restricted Period will not relieve the  Subject Party of any obligation or liability arising from any breach by the Subject Party of this Agreement  during the Restricted Period.  The Subject Party further agrees that the time period during which the  covenants contained in Section 1 and Section 2 of this Agreement will be effective will be computed by  





 






5  excluding from such computation any time during which the Subject Party is in violation of any provision  of such Sections.  7. Miscellaneous.  (a) Notices.  All notices, consents, waivers and other communications hereunder shall  be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by facsimile or  other electronic means, with affirmative confirmation of receipt, (iii) one Business Day after being sent, if  sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being  mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the  applicable party at the following addresses (or at such other address for a party as shall be specified by like  notice):  If to Purchaser (or any other Covered Party), to:  BM Technologies, Inc.   201 King of Prussia Road, Suite 350  Radnor, PA 19087  Attn: Board of Directors    with a copy (that will not constitute notice) to:   Nelson Mullins Riley & Scarborough  101 Constitution Avenue, NW, Suite 900  Washington, DC 20001  Attn: Jonathan H. Talcott, Esq.   Facsimile No.: (202) 689-2862   Telephone No.: (202) 689-2806   Email: jon.talcott@nelsonmullins.com     and  Ellenoff Grossman & Schole LLP  1345 Avenue of the Americas, 11th Floor  New York, New York 10105  Attn: Matthew A. Gray, Esq.  Facsimile No.: (212) 370-7889  Telephone No.: (212) 370-1300  Email: mgray@egsllp.com  If to the Subject Party, to:  the address below the Subject Party’s name on the signature page to this Agreement.  (b) Integration and Non-Exclusivity.  This Agreement, the Merger Agreement and the  other Ancillary Documents contain the entire agreement between the Subject Party and the Covered Parties  concerning the subject matter hereof.  Notwithstanding the foregoing, the rights and remedies of the  Covered Parties under this Agreement are not exclusive of or limited by any other rights or remedies which  they may have, whether at law, in equity, by contract or otherwise, all of which will be cumulative (and not  alternative).  Without limiting the generality of the foregoing, the rights and remedies of the Covered  Parties, and the obligations and liabilities of the Subject Party and its Affiliates, under this Agreement, are  in addition to their respective rights, remedies, obligations and liabilities (i) under the laws of unfair  competition, misappropriation of trade secrets, or other requirements of statutory or common law, or any  applicable rules and regulations and (ii) otherwise conferred by contract, including the Merger Agreement  and any other written agreement between the Subject Party or its Affiliate and any of the Covered Parties.   Nothing in the Merger Agreement will limit any of the obligations, liabilities, rights or remedies of the  Subject Party or the Covered Parties under this Agreement, nor will any breach of the Merger Agreement  





 






6  or any other agreement between the Subject Party or its Affiliate and any of the Covered Parties limit or  otherwise affect any right or remedy of the Covered Parties under this Agreement.  If any term or condition  of any other agreement between the Subject Party or its Affiliate and any of the Covered Parties conflicts  or is inconsistent with the terms and conditions of this Agreement, the more restrictive terms will control  as to the Subject Party or its Affiliate, as applicable.  (c) Severability; Reformation.  Each provision of this Agreement is separable from  every other provision of this Agreement.  If any provision of this Agreement is found or held to be invalid,  illegal or unenforceable, in whole or in part, by a court of competent jurisdiction, then (i) such provision  will be deemed amended to conform to applicable laws so as to be valid, legal and enforceable to the fullest  possible extent, (ii) the invalidity, illegality or unenforceability of such provision will not affect the validity,  legality or enforceability of such provision under any other circumstances or in any other jurisdiction, and  (iii) the invalidity, illegality or unenforceability of such provision will not affect the validity, legality or  enforceability of the remainder of such provision or the validity, legality or enforceability of any other  provision of this Agreement.  The Subject Party and the Covered Parties will substitute for any invalid,  illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid,  legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.  Without  limiting the foregoing, if any court of competent jurisdiction determines that any part hereof is  unenforceable because of the duration, geographic area covered, scope of such provision, or otherwise, such  court will have the power to reduce the duration, geographic area covered or scope of such provision, as  the case may be, and, in its reduced form, such provision will then be enforceable.  The Subject Party will,  at a Covered Party’s request, join such Covered Party in requesting that such court take such action.  (d) Amendment; Waiver.  This Agreement may not be amended or modified in any  respect, except by a written agreement executed by the Subject Party, the Purchaser and Disinterested  Director Majority (or their respective permitted successors or assigns).  No waiver will be effective unless  it is expressly set forth in a written instrument executed by the waiving party (and if such waiving party is  a Covered Party, the Disinterested Director Majority) and any such waiver will have no effect except in the  specific instance in which it is given.  Any delay or omission by a party in exercising its rights under this  Agreement, or failure to insist upon strict compliance with any term, covenant, or condition of this  Agreement will not be deemed a waiver of such term, covenant, condition or right, nor will any waiver or  relinquishment of any right or power under this Agreement at any time or times be deemed a waiver or  relinquishment of such right or power at any other time or times.  (e) Dispute Resolution.  Any dispute, difference, controversy or claim arising in  connection with or related or incidental to, or question occurring under, this Agreement or the subject matter  hereof (other than applications for a temporary restraining order, preliminary injunction, permanent  injunction or other equitable relief or application for enforcement of a resolution under this Section 7(e)) (a  “Dispute”) shall be governed by this Section 7(e).  A party must, in the first instance, provide written notice  of any Disputes to the other parties subject to such Dispute, which notice must provide a reasonably detailed  description of the matters subject to the Dispute.  Any Dispute that is not resolved may at any time after the  delivery of such notice immediately be referred to and finally resolved by arbitration pursuant to the then- existing Expedited Procedures of the Commercial Arbitration Rules (the “AAA Procedures”) of the  American Arbitration Association (the “AAA”).  Any party involved in such Dispute may submit the  Dispute to the AAA to commence the proceedings after the Resolution Period.  To the extent that the AAA  Procedures and this Agreement are in conflict, the terms of this Agreement shall control.  The arbitration  shall be conducted by one arbitrator nominated by the AAA promptly (but in any event within five (5)  Business Days) after the submission of the Dispute to the AAA and reasonably acceptable to each party  subject to the Dispute, which arbitrator shall be a commercial lawyer with substantial experience arbitrating  disputes under acquisition agreements.  The arbitrator shall accept his or her appointment and begin the  arbitration process promptly (but in any event within five (5) Business Days) after his or her nomination  





 






7  and acceptance by the parties subject to the Dispute.  The proceedings shall be streamlined and efficient.   The arbitrator shall decide the Dispute in accordance with the substantive law of the State of New York.   Time is of the essence.  Each party shall submit a proposal for resolution of the Dispute to the arbitrator  within twenty (20) days after confirmation of the appointment of the arbitrator.  The arbitrator shall have  the power to order any party to do, or to refrain from doing, anything consistent with this Agreement, the  Ancillary Documents and applicable Law, including to perform its contractual obligation(s); provided, that  the arbitrator shall be limited to ordering pursuant to the foregoing power (and, for the avoidance of doubt,  shall order) the relevant party (or parties, as applicable) to comply with only one or the other of the  proposals.  The arbitrator's award shall be in writing and shall include a reasonable explanation of the  arbitrator's reason(s) for selecting one or the other proposal.  The seat of arbitration shall be in New York  County, State of New York.  The language of the arbitration shall be English.  (f)  Governing Law; Jurisdiction.  This Agreement shall be governed by, construed  and enforced in accordance with the Laws of the State of New York without regard to the conflict of laws  principles thereof.  Subject to Section 7(e), all Actions arising out of or relating to this Agreement shall be  heard and determined exclusively in any state or federal court located in New York, New York (or in any  appellate courts thereof) (the “Specified Courts”).  Subject to Section 7(e), each party hereto hereby (a)  submits to the exclusive jurisdiction of any Specified Court for the purpose of any Action arising out of or  relating to this Agreement brought by any party hereto, (b) irrevocably waives, and agrees not to assert by  way of motion, defense or otherwise, in any such Action, any claim that it is not subject personally to the  jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution,  that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this  Agreement or the transactions contemplated hereby may not be enforced in or by any Specified Court and  (c) waives any bond, surety or other security that might be required of any other party with respect thereto.   Each party agrees that a final judgment in any Action shall be conclusive and may be enforced in other  jurisdictions by suit on the judgment or in any other manner provided by Law or in equity.  Each party  irrevocably consents to the service of the summons and complaint and any other process in any other action  or proceeding relating to the transactions contemplated by this Agreement, on behalf of itself, or its  property, by personal delivery of copies of such process to such party at the applicable address set forth in  Section 7(a).  Nothing in this Section 7(f) shall affect the right of any party to serve legal process in any  other manner permitted by Law.  (g) WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO HEREBY  WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY  HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY  ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE  TRANSACTIONS CONTEMPLATED HEREBY.  EACH PARTY HERETO (A) CERTIFIES THAT NO  REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR  OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION,  SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND  THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,  AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION  7(g).  ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS  SECTION 7(g) WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH  PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.  (h) Successors and Assigns; Third Party Beneficiaries.  This Agreement will be  binding upon the Subject Party and the Subject Party’s estate, successors and assigns, and will inure to the  benefit of the Covered Parties, and their respective successors and assigns.  No Covered Party may assign  any or all of its rights under this Agreement, at any time, in whole or in part, to any Person without first  obtaining the consent or approval of the Subject Party (which consent shall not be unreasonably withheld,  





 






8  conditioned or delayed).  The Subject Party agrees that the obligations of the Subject Party under this  Agreement are personal and will not be assigned by the Subject Party.  Each of the Covered Parties are  express third party beneficiaries of this Agreement and will be considered parties under and for purposes  of this Agreement.  (i) Disinterested Director Majority Authorized to Act on Behalf of Covered Parties.   The parties acknowledge and agree that the Disinterested Director Majority is authorized and shall have the  sole right to act on behalf of Purchaser and the other Covered Parties under this Agreement, including the  right to enforce the Purchaser’s rights and remedies under this Agreement.  Without limiting the foregoing,  in the event that the Subject Party serves as a director, officer, employee or other authorized agent of a  Covered Party, the Subject Party shall have no authority, express or implied, to act or make any  determination on behalf of a Covered Party in connection with this Agreement or any dispute or Action  with respect hereto.  (j) Construction.  The Subject Party acknowledges that the Subject Party has been  represented by counsel, or had the opportunity to be represented by counsel of the Subject Party’s choice.   Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not  be applied in the construction or interpretation of this Agreement.  Neither the drafting history nor the  negotiating history of this Agreement will be used or referred to in connection with the construction or  interpretation of this Agreement.  The headings and subheadings contained in this Agreement are for  reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  In  this Agreement: (i) the words “include,” “includes” and “including” when used herein shall be deemed in  each case to be followed by the words “without limitation”; (ii) the definitions contained herein are  applicable to the singular as well as the plural forms of such terms; (iii) whenever required by the context,  any pronoun shall include the corresponding masculine, feminine or neuter forms, and the singular form of  nouns, pronouns and verbs shall include the plural and vice versa; (iv) the words “herein,” “hereto,” and  “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a  whole and not to any particular Section or other subdivision of this Agreement; (v) the word “if” and other  words of similar import when used herein shall be deemed in each case to be followed by the phrase “and  only if”; (vi) the term “or” means “and/or”; and (vii) any agreement or instrument defined or referred to  herein or in any agreement or instrument that is referred to herein means such agreement or instrument as  from time to time amended, modified or supplemented, including by waiver or consent and references to  all attachments thereto and instruments incorporated therein.  (k) Counterparts.  This Agreement may be executed in one or more counterparts, and  by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be  an original but all of which taken together shall constitute one and the same agreement.  A photocopy,  faxed, scanned and/or emailed copy of this Agreement or any signature page to this Agreement, shall have  the same validity and enforceability as an originally signed copy.  (l) Effectiveness.  This Agreement shall be binding upon the Subject Party upon the  Subject Party’s execution and delivery of this Agreement, but this Agreement shall only become effective  upon the consummation of the Transactions.  In the event that the Merger Agreement is validly terminated  in accordance with its terms prior to the consummation of the Transactions, this Agreement shall  automatically terminate and become null and void, and the parties shall have no obligations hereunder.   [Remainder of Page Intentionally Left Blank; Signature Page Follows]  





 






{Signature Page to Non-Competition Agreement}    IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Non-Competition  and Non-Solicitation Agreement as of the date first written above.  Subject Party:  Customers Bank  By:  /s/ Richard Ehst  Name: Richard Ehst   Title:   President and Chief Executive Officer  Address for Notice:  Address:   701 Reading Avenue   West Reading, PA 19611  Attn: Carla Leibold, CFO  484-923-8802   cleibold@customersbank.com     





 






{Signature Page to Non-Competition Agreement}    Acknowledged and accepted as of the date first written above:  The Purchaser:   MEGALITH FINANCIAL ACQUISITION CORP.  By: /s/ A.J. Dunklau  Name: A.J. Dunklau   Title: Chief Executive Officer    The Company:  BANKMOBILE TECHNOLOGIES, INC.  By: /s/ Luvleen Sidhu  Name: Luvleen Sidhu   Title: Chief Executive Officer