CONSULTING AGREEMENT
Exhibit
10.2
THIS CONSULTING AGREEMENT
(“Agreement”) is made and entered into by and between X. XXXXX XXXXX, JR.
("Consultant"), and PAB BANKSHARES, INC. and THE PARK AVENUE BANK (the
“Companies”). Consultant and the Companies are sometimes
referred to together as the “parties” or individually as a “party.”
W
I T N E S S E T H:
WHEREAS, the Companies desire
to retain Consultant to provide certain services to the Companies, and
Consultant desires to provide such services to the Companies, all subject to the
terms and conditions set forth herein;
NOW THEREFORE, for and in
consideration of the premises, the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt, sufficiency
and adequacy of which are hereby acknowledged, the parties hereby agree as
follows:
1.
Engagement as an
Independent Contractor.
The
Companies hereby agree to engage Consultant as an independent contractor, and
Consultant hereby accepts such engagement as an independent contractor, upon the
terms and conditions set forth in this Agreement.
2.
Term.
(a) The
term of this Agreement shall commence on April 6, 2009 and shall expire on March
31, 2010 (“Term”), unless the Agreement is terminated before the expiration of
the Term pursuant to Section 2(b), (c), or (d) below.
(b) Notwithstanding
Section 2(a), if Consultant dies during the Term of this Agreement, the
Agreement shall terminate.
(c) Notwithstanding
Section 2(a), the Companies may terminate this Agreement at any time with or
without advance notice or cause by providing written notice to
Consultant.
(d) Notwithstanding
Section 2(a), Consultant may terminate this Agreement upon a material breach by
the Companies.
(e) Upon
termination of this Agreement by the Companies, Consultant shall be entitled to
payments in the amount, and under the terms, provided in Section 5
below. Upon payment of such sums, the Companies shall have no further
obligations under this Agreement except the obligations in Section 12 of this
Agreement.
3.
Services.
Subject
to the terms and conditions set forth in this Agreement, during the Term of this
Agreement, Consultant shall provide the following services (the “Services”) to
the Companies or their designated representatives:
1
Exhibit
10.2
(a) assist
with the Companies’ efforts to participate in certain government-sponsored
programs;
(b) assist
with the Companies’ interaction with various banking regulators, including, but
not limited to, the Georgia Department of Banking and Finance and the Board of
Governors of the Federal Reserve System;
(c) assist
with the Companies’ relationships with its borrowers, depositors, and other
customers;
(d) assist
with the Companies’ efforts to reduce their level of non-performing assets;
and
(e) assist
the Companies with such services as they may reasonably request from time to
time.
Consultant
shall provide the Services during the Term of this Agreement at the request of
the Companies, at an average level of no more than eight (8) hours per
week. Additionally, during the Term of this Agreement, Consultant
agrees to take no actions that in any way damage the public image or reputation
of the Companies or their affiliates or to knowingly assist, in any way, a
competitor of the Companies.
4.
Consultant as an
Independent Contractor.
In the
performance of this Agreement, both Consultant and the Companies will be acting
in their own separate capacities and not as agents, employees, partners, joint
venturers or associates of one another. It is expressly understood
and agreed that Consultant is an independent contractor of the Companies in all
manners and respects. The parties further agree that:
(a) Consultant
is not authorized to bind the Companies to any liability or obligation or to
represent that Consultant has any such authority.
(b) Consultant
may, at his own option, choose to perform his consulting services as part of a
single-member limited liability corporation or other corporate
entity.
(c) Consultant
may, at his option, obtain and maintain (at Consultant’s own cost) any required
insurance or other protection required for the performance of the Services under
this Agreement.
(d) Except
as provided in Section 5, Consultant shall be solely and exclusively responsible
and liable for all expenses, costs, liabilities, assessments, maintenance,
insurance, undertakings and other obligations incurred by Consultant at any time
and for any reason as a result of this Agreement or the performance of the
Services by Consultant.
(e) Consultant
shall be solely and exclusively responsible for obtaining and providing (at
Consultant’s own cost) whatever computer, training, software or other equipment
Consultant believes is necessary to complete the Services required under this
Agreement.
(f) Consultant
shall complete the Services required under this Agreement according to
Consultant’s own means and methods of work which shall be in the exclusive
charge and control of Consultant and which shall not be subject to the control
or supervision of Companies, except as to the results of the
work.
2
Exhibit
10.2
(g) Consultant
shall not be subject to the Companies’ employee personnel policies and
procedures. Except as a former employee of the Companies, or pursuant
to any Employment Termination Agreement with the Companies, or as required by
law, Consultant also shall not be eligible to receive any employee benefits or
participate in any employee benefit plan sponsored by the Companies, including,
but not limited to, any retirement plan, insurance program, disability plan,
medical benefits plan or any other fringe benefit program sponsored and
maintained by the Companies for their employees.
(h)
The Companies and Consultant acknowledge and agree that Consultant shall not
provide the Services to the Companies on a full-time basis. Nothing
in this Agreement shall prevent Consultant from engaging in other activities for
and on behalf of other clients during the Term of this Agreement, provided that
those services (i) are not inconsistent or incompatible with Consultant’s
obligations under this Agreement, including Section 6 of this Agreement, and
(ii) do not violate the Employment Termination Agreement between Consultant and
the Companies.
5.
Compensation.
(a) As
payment for the Services rendered pursuant to this Agreement, the Companies
shall pay, and Consultant shall accept, a fee of one hundred-fifty dollars
($150) per each hour that Consultant provides the Services. The fee
for any partial hour that Consultant provides the Services shall be determined
by multiplying one hundred-fifty dollars ($150) by a fraction of which the
numerator is the number of minutes in the period and the denominator is sixty
(60).
(b) Consultant
shall be reimbursed by the Companies for reasonable business expenses incurred
in providing the Services, including mileage, airfare, hotels, meals, and
parking, in accordance with Section 20 below, provided that those expenses are
approved by at least one of the Companies in advance and Consultant submits
receipts for those expenses to the Companies in a timely manner.
(c) Consultant
shall invoice The Park Avenue Bank on a monthly basis for hours worked and
reimbursable expenses for the preceding month. All invoices shall be
directed to:
The Park
Avenue Bank
Attention:
Xxxxxx X. Xxxxxxx
0000
Xxxxx Xxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxx 00000
Payment
to Consultant for hours worked and reimbursable expenses shall be made no later
than 15 days after receipt of such invoice.
(d) Consultant
hereby acknowledges and agrees that Consultant shall be solely responsible for
all of Consultant’s withholding taxes, social security taxes, unemployment
taxes, and workers’ compensation insurance premiums, if
any. Consultant hereby agrees to indemnify and hold harmless the
Companies from any liability for, and any and all federal, state and local taxes
or assessments of any kind arising out of or in connection with any fee paid by
the Companies to Consultant.
3
Exhibit
10.2
6.
Confidentiality.
(a) For
purposes of this Agreement, the following terms shall have the following
respective meanings:
(i) “Confidential
Information” shall mean all valuable, proprietary and confidential
information belonging to or pertaining to the Companies that does not constitute
a “Trade Secret” of the Companies and that is not generally known by or
available to the Companies’ competitors but is generally known only to the
Companies and those of its employees, independent contractors, clients or agents
to whom such information must be confided for internal business
purposes.
(ii) “Trade Secrets” shall
mean the “trade secrets” of the Companies as defined under applicable
law.
(b) During
the performance of his duties hereunder, Consultant will be exposed to certain
Trade Secrets and Confidential Information. Consultant acknowledges
and agrees that the Trade Secrets and Confidential Information represent a
substantial investment by the Companies and that any disclosure or use of any of
such Trade Secrets or Confidential Information, except as otherwise authorized
in this Agreement, or any other violation of the confidentiality provisions of
this Section 6, would be wrongful and could cause immediate and irreparable
injury to the Companies.
(c) Except as required to perform his
obligations under this Agreement, Consultant hereby covenants and agrees that
Consultant shall regard and treat Trade Secrets and all Confidential Information
as strictly confidential and wholly-owned by the Companies and shall not, for
any reason, in any fashion, either directly or indirectly, use, sell, lend,
lease, distribute, license, give, transfer, assign, show, disclose, disseminate,
reproduce, copy, misappropriate or otherwise communicate any such item or
information to any third party entity for any purpose other than in accordance
with this Agreement or as required by applicable law: (i) with regard
to any Confidential Information, during the Term of this Agreement and for a
period of three (3) years thereafter, and (ii) with regard to any Trade Secret,
at any time during which such information constitutes a trade secret under
applicable law.
7.
Ownership
of Work Product.
All work
product, property, data, documentation, information or materials conceived,
discovered, developed or created by Consultant in performing the Services
pursuant to this Agreement (collectively, the “Work Product”) shall be owned
exclusively by the Companies. To the greatest extent possible, any
Work Product shall be deemed to be a “work made for hire” (as defined in the
United States Copyright Act, 17 U.S.C.A. §101 et seq., as amended) and
owned exclusively by the Companies. Consultant hereby unconditionally
and irrevocably transfers and assigns to the Companies all right, title and
interest in or to any Work Product. To the extent the Work Product is
deemed to be other than a “work made for hire,” Consultant hereby assigns all
right, title and interest in and to the Work Product to the Companies and agrees
to execute all documents requested by the Companies to confirm such
assignment.
4
Exhibit
10.2
8.
Remedies.
The
parties represent and agree that any disclosure or use of any Trade Secrets or
Confidential Information by Consultant except as otherwise permitted under this
Agreement or authorized by the Companies in writing, or any other violation of
Section 6, would be wrongful and cause immediate, significant, continuing and
irreparable injury and damage to Companies that is not fully compensable by
monetary damages. Should Consultant breach or threaten to breach any
provision of Section 6, the Companies shall be entitled to obtain immediate
relief and remedies in a court of competent jurisdiction (including but not
limited to damages, preliminary or permanent injunctive relief and an accounting
for all profits and benefits arising out of Consultant’s breach), cumulative of
and in addition to any other rights or remedies to which Companies may be
entitled by this Agreement, at law or in equity.
9.
Return of
Materials.
Immediately
upon termination of the Agreement, or at any point before or after that time
upon the specific request of Companies, the Consultant shall return to the
Companies, all written or descriptive materials of any kind belonging or
relating to the Companies or their affiliates, including, without limitation,
any Work Product, Confidential Information and Trade Secrets, in Consultant’s
possession or control.
10. Laws, Regulations, and
Public Ordinances.
Consultant
shall comply with all federal, state, and local statutes, regulations, and
public ordinances governing his work hereunder and shall indemnify, defend and
hold the Companies harmless from any and all liability, damage, cost, fine,
penalty, fee and expense arising from Consultant’s failure to do
so.
11. Notices.
All
notices required, necessary or desired to be given pursuant to this Agreement
shall be in writing and shall be effective when delivered or on the third day
following the date upon which such notice is deposited, postage prepaid, in the
United States mail, certified return receipt requested, and addressed to the
party at the address set forth below:
|
If
to Consultant:
|
If
to the Companies:
|
|
|
X.
Xxxxx Xxxxx, Jr.
000
Xxxxxxx Xxxxx
XxXxxxxxx,
Xxxxxxx 00000
|
Attention: Xxxxxx
X. Xxxxxxx
The
Park Avenue Bank
0000
Xxxxx Xxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxx 00000
|
5
Exhibit
10.2
12. Indemnification.
The
Companies shall indemnify and defend Consultant against any and all future
claims and civil actions arising out of his work as a consultant pursuant to
this Agreement. Any indemnification provided to Consultant under this
Paragraph 12 shall be on the same terms and to the same extent as the
indemnification provided under the Companies’ bylaws to the Companies’ officers
and directors.
13. Waiver of
Breach.
The
waiver by any party to this Agreement of a breach of any provision, section or
paragraph of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of the same, or of a different provision, section or
paragraph, by any party hereto.
14. Assignment by
Consultant.
Consultant
may not assign, transfer or subcontract any of its rights or obligations under
this Agreement to any party without the prior written consent of the
Companies. Consultant’s obligations under this Agreement shall be
binding on Consultant’s successors and permitted assigns (if
any). Any assignment, transfer or subcontracting in violation of this
provision shall be void.
15. Governing Law and Consent to
Jurisdiction.
This
Agreement shall be construed and enforced in accordance with the laws of the
State of Georgia. In addition, the parties consent to personal
jurisdiction and venue solely within the State of Georgia and waive all
otherwise possible objections thereto. The parties agree that they
will not file any action arising out of this Agreement other than in the United
States District Court for the Southern District of Georgia, Valdosta Division or
the state or superior courts of Lowndes County, Georgia.
16. Severability.
The
unenforceability or invalidity of any particular provision of this Agreement
shall not affect its other provisions, and to the extent necessary to give such
other provisions effect, they shall be deemed severable. The judicial body
interpreting this Agreement shall be authorized and instructed to rewrite any of
the sections which are enforceable as written in such a fashion so that they may
be enforced to the greatest extent legally possible. Consultant
acknowledges and agrees that the covenants and agreements contained in this
Agreement shall be construed as covenants and agreements independent of each
other or any other contract between the parties hereto and that the existence of
any claim or cause of action by Consultant against the Companies, whether
predicted upon this Agreement or any other contract, shall not constitute a
defense to the enforcement by the Companies of said covenants and
agreements.
17. Interpretation.
Should a
provision of this Agreement require judicial interpretation, it is agreed that
the judicial body interpreting or construing the Agreement shall not apply the
assumption that the terms hereof shall be more strictly construed against one
party by reason of the rule of construction that an instrument is to be
construed more strictly against the party which itself or through its or its
agents prepared the agreement, it being agreed that all parties and/or their
agents have participated in the preparation hereof. The headings
contained herein are for the convenience of the parties only and shall not be
interpreted to limit or affect in any way the meaning of the language contained
in this Agreement.
6
Exhibit
10.2
18. Survival.
Notwithstanding
any expiration or termination of this Agreement, the provisions of Sections 6 –
13 and 15 – 19 hereof shall survive and remain in full force and effect, as
shall any other provision hereof that, by its terms or reasonable interpretation
thereof, sets forth obligations that extend beyond the termination of this
Agreement.
19. Entire Agreement, Binding
Nature.
This
Agreement embodies the entire agreement of the parties and supersedes all prior
agreements between the parties hereto relating to the subject matter hereof
(except as to any Employment Termination Agreement executed between Consultant
and the Companies). This Agreement may not be modified or amended
except by a written instrument signed by both Consultant and an authorized
representative of one of the Companies. This Agreement shall be
binding on and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
20. Reimbursements. To the
extent they constitute deferred compensation under Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), the amount of expenses eligible
for reimbursement under this Agreement, or in-kind benefits provided, during one
calendar year may not affect the expenses eligible for reimbursement, or in-kind
benefits to be provided, in any other calendar year. Any such
reimbursement of an eligible expense shall be made promptly after proper
substantiation of such expense, but in no event later than the last day of the
calendar year following the calendar year in which the expense was
incurred. The right to reimbursement or in-kind benefits is not
subject to liquidation or exchange for any other benefit.
21. 409A.
Notwithstanding
the foregoing, for purposes of Section 409A of the Code, the parties agree that
Consultant will have a “separation from service” within the meaning of Section
409A of the Code on the Termination Date because it is reasonably anticipated
that the level of bona fide services Consultant will perform for the Companies
or their affiliates after such date pursuant to this Agreement or otherwise will
permanently decrease to no more than twenty percent (20%) of the average level
of bona fide services that Consultant performed for the Companies over the
immediately preceding thirty-six (36) month period (or such lesser period as the
Consultant provided services to the Companies).
Notwithstanding
any other provision of this Agreement, it is intended that any payment or
benefit which is provided pursuant to, or in connection with, this Agreement
that is considered to be deferred compensation subject to Section 409A of the
Code shall be provided and paid in a manner, and at such time, as complies with
the applicable requirements of Section 409A of the Code. For purposes
of this Agreement, all rights to payments and benefits hereunder shall be
treated as rights to receive a series of separate payments and benefits to the
fullest extent allowed by Section 409A of the Code. Notwithstanding the
foregoing, neither the Companies, nor any of their affiliates, nor any of their
officers, directors, employees or representatives shall be liable to Consultant
if any payments or benefits provided hereunder are considered deferred
compensation or for any interest, taxes or penalties resulting from
non-compliance with Section 409A of the Code.
7
Exhibit
10.2
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement this _6th___ day of
_____April_______,
2009.
|
“COMPANIES”
|
“CONSULTANT”
|
|||
|
PAB
Bankshares, Inc.
|
X.
Xxxxx Xxxxx, Jr.
|
|||
|
By:
|
/s/ Xxxxxxxx Xxxxxx, Jr.
|
/s/ X. Xxxxx Xxxxx, Jr.
|
||
|
Its:
|
Vice Chairman
|
Witnessed By: |
/s/ Xx X.
Xxxxxxx
|
|
|
The
Park Avenue Bank
|
||||
|
By:
|
/s/ Xxxxxxxx Xxxxxx, Jr.
|
|||
|
Its:
|
Vice Chairman
|
|||
8
