CONSULTING AGREEMENT
Exhibit
10.1
THIS
CONSULTING AGREEMENT (this “Agreement”) is made this 7th day
of December, 2009 by and between FIRST UNITED CORPORATION, a Maryland
corporation, and FIRST UNITED BANK & TRUST, a Maryland-chartered trust
company (First United Corporation and First United Bank & Trust are
collectively referred to herein as the “Company”), and XXXXXX X. XXXXX
(“Consultant”). The Company and the Consultant are each sometimes
referred to herein as a “Party” and are sometimes collectively referred to
herein as the “Parties”.
Background
For 37
years, Consultant has been actively engaged in the management of the Company,
most recently as the President and Chief Risk Officer of the
Company. The Consultant is retiring from employment with the Company
effective December 15, 2009. After his retirement, beginning in 2010,
the Company desires to engage Consultant to assist the Company in ensuring a
smooth transition in the management of the Company, and Consultant desires to
provide such assistance, on the terms and conditions provided in this
Agreement.
NOW,
THEREFORE, in consideration of the mutual promises set forth herein and for
other good and valuable consideration, the receipt, adequacy, and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
Agreement
1. Engagement;
Acceptance. On the Effective Date (as defined below), the
Company hereby engages Consultant to provide consulting services to the Company,
and Consultant hereby accepts such engagement by the Company, on the terms and
conditions hereinafter set forth.
2. Term and
Services.
2.1 Commencing
on January 1, 2010 (the “Effective Date”) and continuing until April 30, 2010,
the Consultant shall provide such advice to the Company as the Company may
reasonably request from time to time for the purpose of assuring a smooth
transition of certain management functions the Company to other management
personnel, subject to the conditions set forth in this Section 2.
2.2 Consultant
shall not be required to devote a minimum amount of time to the performance of
Consultant’s duties hereunder and the performance of such duties will be
consistent with the other commitments that Consultant has from time to
time. In no event will the number of hours of service rendered by
Consultant under this Agreement approach or exceed the maximum number of hours
that Consultant may provide services to the Company without impairing the
separation from service which will result from the Consultant’s retirement from
the Company. The Parties acknowledge that that limit is 20% of the
average hours that Consultant worked for the Company during the 36 months prior
to the Consultant’s retirement from the Company.
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2.3 The
Company shall give Consultant reasonable advance notice of its request for
services hereunder, and Consultant shall use reasonable efforts to provide the
requested services in the timeframe requested by the Company.
2.4 Under no
circumstances shall Consultant be deemed an employee or partner of the Company
while this Agreement is in effect, nor shall Consultant be authorized to bind
the Company to any agreement or commitment in performing duties
hereunder.
3. Consulting Fee; Expense
Reimbursement.
3.1 First
United Corporation, for itself and for First United Bank & Trust, shall pay
Consultant, for being available to render services under this Agreement and for
all services which Consultant renders or may render under this Agreement, a
consulting fee in the amount of Twenty-Two Thousand Five Hundred Dollars
($22,500.00) (the “Fee”), which shall be paid in one lump sum on January 4,
2010.
3.2 The
Company will reimburse Consultant for reasonable expenses incurred at the
Company’s request in connection with the performance of Consultant’s services
hereunder.
4. Taxes.
4.1 Consultant
is solely responsible for, and shall pay and discharge when due, any and all
federal, state and local taxes levied on or measured by any and all of the Fee
paid by the Company to Consultant under this Agreement. Consultant
will properly file before the due date therefor, any and all federal, state and
local tax returns relating to any of such Fee, in accordance with all applicable
laws, rules and regulations.
4.2 Consultant
shall provide to the Company, promptly on request, written certification that
Consultant has paid all taxes due with respect to the Fee, which certification
shall include a copy of Consultant’s Schedule C or other appropriate tax form or
schedule reflecting the Fee (or applicable portion thereof). If the
Company’s tax return for any year is audited or contested, Consultant shall
provide to the Company, promptly on request, a true and complete copy of each
such tax return that may be relevant to such audit or contest; provided that the
Company shall maintain the same in confidence except as necessary to respond to
such audit or contest.
4.3 Consultant
shall indemnify and defend the Company and its shareholders, partners,
directors, officers, employees, agents and affiliates and hold them harmless
from and against any and all claims, losses, liabilities, damages and expenses
(including, without limitation, reasonable attorneys’ fees) suffered or incurred
by any of them directly or indirectly in connection with any of such
taxes.
5. No Other
Benefits. This Agreement shall not entitle Consultant to any
rights or benefits afforded to the Company’s employees, or to participate in any
medical, dental or other health plan, disability insurance, unemployment
insurance, worker’s compensation, pension plan, profit-sharing plan or life
insurance plan that the Company may have heretofore adopted or maintained or may
hereafter adopt or maintain. Consultant shall not be entitled to
receive from the Company any sick pay or vacation pay. Consultant is
responsible for providing, at Consultant’s own expense, worker’s compensation
and any other required insurance, as well as all licenses and permits, necessary
for Consultant to perform services hereunder.
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6. Confidential
Information
6.1 Consultant
acknowledges and agrees that Consultant has had and will have access to, and has
and will become acquainted with, various trade secrets and other proprietary and
confidential information of the Company, its subsidiaries and its other
affiliates (“Confidential Information”). For this purpose,
“Confidential Information” means and includes any and all of the following now
or hereafter owned by the Company, its subsidiaries and/or its other affiliates
(as used in the remainder of this Section 6, the term “Company” means First
United Corporation, First United Bank & Trust, and their subsidiaries and
affiliates): financial and operating data and other proprietary and
confidential information; marketing data; equipment; devices; patterns;
electronically recordable data or concepts; computer programs, software and
hardware; software and hardware enhancements, modifications and improvements;
databases; mask works; inventions; designs; formulas; processes; compilations of
information; books; papers; records; documents; files; specifications; names,
addresses, names of agents and employees, buying habits, practices and needs
(and the Company’s assessment thereof) of the Company’s existing and potential
customers, marketing data and methods, operating practices and related data and
information; prices the Company obtains or has obtained or at which it sells,
has sold or intends to sell its products or services; information relevant to
pricing or bidding, including methods or procedures for preparing bids;
information regarding the financial condition of the Company; compensation paid
to the Company’s consultants and employees and other terms of engagement or
employment; names, addresses, practices, methods and other information regarding
the Company’s existing and potential joint venture partners, licensees,
licensors, vendors and suppliers; and any of the foregoing that may have been or
may be conceived, originated, discovered or developed by the Company or
Consultant or any other consultants or employees of the Company while engaged or
employed by the Company or on the basis of or using any Confidential
Information.
6.2 Consultant
acknowledges and agrees that the Confidential Information is regularly used or
contemplated to be used in the business of the Company, is owned by the Company
and is held in strict confidence by the Company and that Consultant will regard
and protect the Confidential Information as trade secrets and confidential
information owned by the Company. Nevertheless, “Confidential
Information” excludes any of the foregoing (a) that is now publicly known or
hereafter becomes publicly known without any breach of a duty of
confidentiality, (b) that an authorized executive officer of the Company has
authorized for public dissemination, (c) that is or hereafter becomes known to
or possessed by Consultant other than through either disclosure or delivery by
the Company or the performance of services to the Company at any time before, on
or after the date hereof, or (d) that is hereafter learned or obtained by
Consultant from sources having no duty of confidentiality.
6.3 Consultant
represents, warrants and agrees that, except as required by the Company in the
course of Consultant’s engagement with the Company, Consultant will not at any
time, whether during or after Consultant’s engagement by the Company, without
the specific written consent of the Company in the particular case, directly or
indirectly use or authorize others to use, or disclose or communicate to any
person or entity, any Confidential Information, for any
purpose. Consultant further agrees that Consultant will immediately
and fully inform the Company of any actual or suspected disclosure to or use by
any third party of any Confidential Information of which Consultant gains
knowledge.
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7. Notices. Any
notice, consent, demand or other communication to be given under or in
connection with this Agreement shall be in writing and shall be deemed duly
given and received when delivered personally, two business days after being
deposited for next-day delivery with a nationally recognized overnight delivery
service, or three days after being mailed by first class mail, charges or
postage prepaid, properly addressed, if to the Company, at its principal office,
and, if to Consultant, at Consultant’s address set forth following Consultant’s
signature below. Either Party may change such address from time to
time by notice hereunder to the other.
8. Governing
Law. This Agreement and the transactions contemplated hereby,
and all disputes between the Parties under or relating to this Agreement or the
facts and circumstances leading to its execution, whether in contract, tort or
otherwise, shall be governed by, and this Agreement shall be construed and
interpreted in accordance with, the laws of the State of Maryland, without
reference to conflict of laws principles.
9. Assignment. Consultant
shall not assign this Agreement or any rights hereunder or delegate any duties
hereunder without the prior consent of the Company, and any attempted or
purported assignment or delegation by Consultant without the Company’s consent
shall be void. This Agreement shall otherwise bind and inure to the
benefit of the Parties hereto and their respective successors and
assigns.
10. Counterparts. This
Agreement may be executed in two counterparts, each of which shall be deemed an
original but both of which together shall constitute one and the same
instrument.
11. Entire
Agreement. This Agreement contains the entire agreement of the
Parties with respect to the subject matter of this Agreement, and supersedes all
prior or contemporaneous negotiations, correspondence, understandings and
agreements, whether written or oral, between the Parties, regarding the subject
matter of this Agreement. This Agreement may not be amended or
modified except by a written instrument signed by both Parties.
[SIGNATURES
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[SIGNATURE
PAGE]
IN
WITNESS WHEREOF, this Agreement has been duly executed by or on behalf of the
Parties as of the date first above written.
| CONSULTANT: | THE COMPANY: | |||
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/s/Xxxxxx
X. Xxxxx
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FIRST
UNITED CORPORATION
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Xxxxxx
X. Xxxxx
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By: /s/ Xxxxxxx X. Xxxxx
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| Address: | Xxxxxxx X. Xxxxx, Chairman/CEO | |||
| FIRST UNITED BANK & TRUST | ||||
| By: /s/ Xxxxxxx X. Xxxxx | ||||
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Xxxxxxx X. Xxxxx, Chairman/CEO
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