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EXHIBIT 10(r)
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into by and between
National City Bancshares, Inc. (the "Company") and Xxxxxx X. Xxxx ("Independent
Contractor").
RECITALS
A. The Company desires to retain Independent Contractor to render certain
consulting services under the terms and conditions of this Agreement.
B. Independent Contractor agrees to perform certain consulting services
for the Company under the terms and conditions of this Agreement.
AGREEMENT
In consideration of the covenants and promises herein provided, the
actions taken pursuant thereto, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and
Independent Contractor agree as follows:
1. Engagement of Independent Contractor. The Company hereby retains
Independent Contractor, and Independent Contractor hereby accepts such
engagement, to render consulting services on the terms and conditions
hereinafter expressed.
2. Description of Services. The services to be provided by Independent
Contractor will include working on the transition of the managerial
responsibilities which Independent Contractor previously performed for the
Company, assisting in the integration of new members of the management team,
advising the Company on its disclosure requirements, preparing for the annual
meeting of shareholders and performing other projects or assignments designated
by the Company's Board of Directors or its Chief Executive Officer.
3. Term of Agreement. The term of this Agreement shall be for a period of
five (5) months beginning effective as of January 1, 2000, subject, however, to
earlier termination as provided in Section 4 of this Agreement.
4. Termination. Either party may terminate this Agreement at any time for
any reason (or no reason) by giving the other party written notice of
termination.
5. Compensation. The Company will compensate Independent Contractor on a
monthly fee basis at the rate of Five Thousand Dollars ($5,000.00) per month,
payable within ten (10) days after the end of each month during the consulting
engagement. If this Agreement is terminated during the course of a month,
Independent Contractor will be compensated for such month on a prorated basis
calculated by multiplying $5,000 times a fraction the numerator of which is the
number of days elapsed in the month at the time of termination and the
denominator of which is the total number of days in the month of termination.
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6. Relationship of the Parties. The Company and Independent Contractor
understand and agree that all the services to be provided by Independent
Contractor under this Agreement shall be performed by him as an independent
contractor and not as an employee of the Company. Nothing in this Agreement
shall prevent Independent Contractor from performing services for other
individuals or businesses other than the Company, except to the extent such
other services are inconsistent with the services contemplated under this
Agreement. Independent Contractor acknowledges and agrees that he is not
eligible to participate in any employee benefit programs or plans of the Company
as an active employee but shall continue to have all rights as a retiree of the
Company under such programs or plans.
7. Independent Contractor's Discretion. Independent Contractor shall
exercise his discretion and independent judgment in providing services to the
Company, including selecting procedures, materials, working hours and other
incidents of his performance of services under this Agreement.
8. Liability. The Company and Independent Contractor acknowledge and
agree that the services to be performed by Independent Contractor under this
Agreement are to be performed by him at his own risk and that Independent
Contractor assumes all responsibility for any damages or injuries that may
result from Independent Contractor's performance of services under this
Agreement. Independent Contractor agrees to indemnify and hold harmless the
Company, its affiliates and its officers, its employees and its agents from any
and all liability for any loss or claims based upon, arising out of or in any
manner connected with Independent Contractor's rendering of services under this
Agreement.
9. Taxes. The Company and Independent Contractor acknowledge and agree
that Independent Contractor will be solely and completely responsible for any
and all taxes due and owing to any governmental entity or agency (local, state
and/or federal) on any monies or compensation received by Independent Contractor
from the Company under this Agreement.
10. Compliance with Legal Obligations. Independent Contractor shall pay
all taxes arising from his receipt of compensation under this Agreement,
including but not limited to any self-employment taxes. Independent Contractor
agrees and covenants that, in rendering services to the Company under this
Agreement, he shall comply with all legal requirements of any kind, including
but not limited to any laws or regulations relating to employment matters.
11. No Agency or Authority. The Company and Independent Contractor
understand and agree that Independent Contractor is not an agent of the Company,
and Independent Contractor agrees that he will not represent to any third party
that he is an agent of the Company. Further, the Company and Independent
Contractor understand and agree that Independent Contractor has no authority to
bind the Company or to incur any obligations or expenses on behalf of the
Company.
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12. Non-Disclosure of Confidential Information and Return of Property.
a. Independent Contractor covenants and agrees that any and all data
and information about the Company's business that comes to Independent
Contractor's attention by reason of Independent Contractor's rendering
services to the Company under this Agreement that is designated confidential
or is not generally known to or readily ascertainable by others
("Confidential Information") will be received by Independent Contractor in
confidence. Independent Contractor agrees to keep confidential and not to
disclose any such Confidential Information to any other person or entity of
any kind except the Company or the Company's authorized representatives.
Independent Contractor further agrees to use such Confidential Information
only in the course of Independent Contractor's rendering of services under
this Agreement.
b. Independent Contractor further covenants and agrees that any and
all documents and records (including all electronic or computer data) and
copies of records including, but not limited to, records or copies of records
pertaining to the operations, finances, business plans, products, services,
customers, prospective customers or business of the Company that are made or
received by Independent Contractor in the course of his rendering services to
the Company under this Agreement that are not readily available to others are
confidential. Independent Contractor agrees to keep confidential and not to
disclose any such records or copies of records to anyone except the Company
and its authorized representatives. Independent Contractor also agrees to use
such records and copies of records and the information contained in them only
in the course of rendering his services to the Company under this Agreement.
Independent Contractor further agrees that all records and copies of records
of the Company are and shall remain the property of the Company and agrees to
keep such documents subject to the Company's control, and to return promptly
to the Company all records, copies of records and all other property of the
Company that are in Independent Contractor's possession or under his control
or custody at the termination of this Agreement.
13. Governing Law, Jurisdiction and Venue. The Company and Independent
Contractor acknowledge and agree that this Agreement shall be construed and
enforced in accordance with the laws of the State of Indiana, without regard to
principles of conflict of laws. The parties agree that any legal action relating
to this Agreement shall be commenced and maintained exclusively before any
appropriate state court of record in Vanderburgh County, Indiana, or, if
necessary because of a federal question mandating jurisdiction in the federal
courts is involved, the United States District Court for the Southern District
of Indiana, Evansville Division, and the parties hereby submit to the
jurisdiction of such courts and waive any right to challenge or otherwise raise
questions of personal jurisdiction or venue in any action commenced or
maintained in such courts.
14. Entire Agreement and Amendments. This Agreement constitutes the
entire agreement of the parties and supersedes and cancels all previous written
or oral agreements or representations relating to the subject matter hereof.
This Agreement may not be amended, supplemented or modified except by a written
document signed by the Company and Independent Contractor.
15. Successors. This Agreement shall inure to the benefit of and may be
enforced by the Company, its successors and assigns, and shall be binding upon
Independent Contractor, his executors, administrators, heirs and other
successors in interest. Independent Contractor's rights and obligations under
this Agreement are not assignable.
16. Notices. All notices under this Agreement shall be hand delivered to
the other party or sent via first-class United States Mail, postage prepaid, at
the following respective addresses unless the party notifies the other party in
writing of a change of address:
If to Independent Contractor: Xxxxxx X. Xxxx
0000 X. Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
If to the Company: National City Bancshares, Inc.
000 Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attn.: Chief Executive Officer
Any mailed notice shall be deemed delivered and effective as of the date
of mailing.
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17. Non-Waiver. The failure of any party to insist in any one or more
instances upon such performance of any of the provisions of this Agreement or to
pursue its rights hereunder shall not be construed as a waiver of any such
provisions or the relinquishment of any such rights.
IN WITNESS WHEREOF, The Company and Independent Contractor have executed
this Agreement intending it to become effective as of January 1, 2000.
NATIONAL CITY BANCSHARES, INC.
By: /s/ Xxxxxxx X. Xxx /s/ Xxxxxx X. Xxxx
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Xxxxxxx X. Xxx, Xxxxxx X. Xxxx
Chairman of the Board and
Chief Executive Officer
Date: 12/21/99 Date: 12/21/99
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(the "Company") ("Independent Contractor")
