CONSULTING AGREEMENT
CONSULTING AGREEMENT made and entered into as of this 24th day of December,
1996 by and between Beverly National Corporation, a Massachusetts corporation
having its principal place of business in Beverly, Massachusetts ("Company"),
and Xxxxx X. Xxxxxxxx of Wenham, Massachusetts.
W I T N E S S E T H T H A T:
WHEREAS, Xx. Xxxxxxxx is currently employed by the Company and has been
employed by the Company since March 15, 1984; and
WHEREAS, Xx. Xxxxxxxx has been employed by The Xxxxxxx National Bank, a
wholly-owned subsidiary of the Company (the "Bank"), over twenty-five years;
and
WHEREAS, Xx. Xxxxxxxx is scheduled to retire as an officer and employee of the
Company and its subsidiaries on June 30, 1999; and
WHEREAS, the services of Xx. Xxxxxxxx, her experience and knowledge of the
affairs of the Bank and the Company and her reputation and contacts in the
banking industry are valuable to the Company and its subsidiaries; and
WHEREAS, the Company desires to retain Xx. Xxxxxxxx as a consultant (in such
capacity, the "Consultant"), to advise the Company and its subsidiaries; and
WHEREAS, Consultant desires to be so retained.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Term. The period of this Consulting Agreement shall be deemed to
commence as of the date of Consultant's retirement from the Company and its
subsidiaries, and shall continue in effect through June 23, 2002. In the event
Consultant's employment with the Company and its subsidiaries terminates due to
her death, disability, or as a result of termination other than for "Cause" (as
defined in her Employment Agreement of even date), then this Consulting
Agreement shall not come into effect.
2. Consulting Services. Consultant shall provide such services, at such
time or times, as she shall agree with the President of the Company. It is
understood that Consultant has not agreed to be available on a full time or
regular basis, or for any particular number of hours. Consultant may provide
services to other businesses, subject to Sections 4, 5 and 6 hereof.
3. Fees. Consultant shall be paid a consulting fee of $20,000 per annum
(the "Consulting Fee"), prorated for portions of a year, payable monthly or as
otherwise agreed by Consultant and the Company. In addition, Company will
reimburse Consultant for her expenses. Consultant shall not be an employee of
the Company or its subsidiaries, and shall be solely responsible for the timely
payment of all income or other taxes due with respect to the Consulting Fee.
Consultant shall not be entitled to participate in the benefit programs
of the Company and its subsidiaries by virtue of this Consulting Agreement, but
nothing herein contained shall limit rights Consultant otherwise has with
respect to such benefit programs.
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4. Non-Competition. At all times during the term of this Consulting
Agreement and for a period of one (1) year thereafter, Consultant shall not,
directly or indirectly, as an employee of any person or entity (whether or not
engaged in business for profit), individual proprietor, partner, stockholder,
director, officer, joint venturer, investor, lender or in any other capacity
whatever (otherwise than as holder of less than ten (10) percent of any
securities publicly traded in the market) compete within (i) the City of
Beverly, Massachusetts, and the Town of Hamilton, Massachusetts, or (ii)
municipalities contiguous to the City of Beverly, Massachusetts, or the Town of
Hamilton, Massachusetts, or (iii) any other Cities or Towns in which the Bank
may locate during the term of this Consulting Agreement, with the business of
the Company or any of its subsidiaries, as such businesses are constituted at
any time during the term of this Consulting Agreement. For purposes of this
Section 4, Consultant's ownership of or employment by an institution doing
business in Beverly, Massachusetts, Xxxxxxxx, Massachusetts, in municipalities
contiguous to Beverly or Hamilton or in such other Cities or Towns, but having
its principal place of business elsewhere, shall not constitute competition
hereunder so long as Consultant does not solicit business in Beverly or
Xxxxxxxx, in such contiguous municipalities, or in such other Cities or Towns,
as the case may be.
5. No Solicitation of Employees. At all times during the term of this
Consulting Agreement and for a period of one (1) year thereafter, Consultant
shall not, directly or indirectly, employ, attempt to employ, recruit or
otherwise solicit, induce or influence to leave his or her employment any
employee of the Company or its subsidiaries.
6. No Disclosure of Information. Consultant shall not at any time divulge,
use, furnish, disclose or make accessible to anyone other than the Company or
any of its subsidiaries any knowledge of information with respect to
confidential or secret data, procedures or techniques of the Company or any of
its subsidiaries, provided, however, that nothing in this Section 6 shall
prevent the disclosure by Consultant of any such information which at any time
comes in to the public domain other than as a result of the violation of the
terms of this Section 6 by Consultant or which is otherwise lawfully acquired
by Consultant.
7.Termination of Consulting Agreement. This Consulting Agreement shall
terminate on the earliest to occur of the following:
(a) The expiration of the term hereof;
(b) Consultant's death;
(c) At the election of the Company, for Cause, as
hereinafter defined, after ten (10) business days' prior written notice of the
basis therefor to Consultant if during such period Consultant shall not have
cured the basis therefor. For purposes of this Consulting Agreement, the
Company shall be deemed to have "Cause" to terminate this Consulting Agreement
only if:
(i) Consultant is convicted by a court of competent
jurisdiction of any criminal offense involving
dishonesty or breach of trust;
(ii) Consultant shall commit an act of fraud materially
evidencing bad faith toward the Company or any of
its subsidiaries;
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(iii) Consultant fails to substantially perform the
duties as agreed by Consultant and the President of
the Company (other than any such failure resulting
from Consultant's incapacity due to physical or
mental illness) after a demand for substantial
performance is delivered to Consultant by the
President which specifically identifies the manner
in which such officer believes that Consultant has
not substantially performed such duties, making
reference to this provision of the Consulting
Agreement.
It is understood that in consideration of Consultant's agreement to be bound
hereby, the Company agrees to pay the Consulting Fee through the term hereof,
even if Consultant is unable to perform services due to physical or mental
illness or condition.
8. Payments Upon Termination of Consulting Agreement or Default by Company.
Upon termination of this Consulting Agreement, Consultant shall be entitled to
receive the Consulting Fee through the date of termination. If Company
purports to terminate Consultant other than for Cause, or in the event Company
fails to make any payment hereunder when due, or breaches any other term or
provision hereof, Consultant shall be entitled to receive, in a lump sum, the
Consulting Fee through the end of the term of this Consulting Agreement.
9. Notices. Notices under this Consulting Agreement shall be in writing and
shall be mailed by registered or certified mail, effective upon receipt,
addressed as follows:
(a) To the Company: Beverly National Corporation
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
(b) To the Consultant: Xxxxx X. Xxxxxxxx
000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Either party may by notice in writing change the address to which notices to
it or her are to be addressed hereunder.
10. Arbitration. Any dispute or controversy arising under or in connection
with this Consulting Agreement shall be settled exclusively by arbitration in
Boston, Massachusetts, in accordance with the rules of the American Arbitration
Association then in effect. Notwithstanding the pendency of any such dispute
or controversy, the Company will pay Consultant promptly an amount equal to her
full Consulting Fee in effect when the notice giving rise to the dispute was
given (including, but not limited to, expense reimbursement. Amounts paid
underthis Section 10 are in addition to all other amounts due under this
Consulting Agreement and shall not be offset against or reduce any other
amounts due under this Consulting Agreement. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that
Consultant shall be entitled to seek specific performance of her right to be
paid as specified in this Section 10.
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11. Miscellaneous.
(a) Legal Fees. The Company shall pay to Consultant all reasonable legal
fees and expenses incurred by her in contesting or disputing any termination of
this Consulting Agreement or in seeking to obtain or enforce any right or
benefit provided by this Consulting Agreement, provided that the final
resolution of such matter principally is in Consultant's favor.
(b) Entire Agreement. This Consulting Agreement constitutes the entire
Consulting Agreement between the parties and may not be changed except by a
writing duly executed and delivered by the Company and Consultant in the same
manner as the Consulting Agreement. This Consulting Agreement does not in any
way limit Consultant's rights under any pension, profit sharing or similar
programs of the Company or its subsidiaries, under agreements of Consultant and
the Company including the Employment Agreement of even date and the
Supplemental Executive Retirement Agreement executed on or about the date
hereof, or Consultant's rights under any other benefit, program or agreement
applicable to Consultant, including without limitation the Retiree Medical
Benefit Policy ofthe Bank adopted December 28, 1993.
(c) Governing Law. This Consulting Agreement is governed by and shall be
construed in accordance with the laws of the Commonwealth of Massachusetts.
(d) Binding Effect; Non-Assignability. This Consulting Agreement shall be
binding upon the Company and inure to the benefit of the Company and its
successors. Neither this Consulting Agreement nor any rights arising hereunder
may be assigned or pledged by the Company or Consultant. This Consulting
Agreement shall inure to the benefit of and be enforceable by Consultant's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
IN WITNESS WHEREOF, the parties hereto have executed the within instrument as
a sealed document as of the date first above written.
ATTEST BEVERLY NATIONAL CORPORATION
/s/ Xxxx X. Good III /s/ Xxxxxxxx X. Xxxxx
___________________________ By:________________________
Chairman, Compensation President
Committee of the Board
of Directors
/s/ Xxxxx X. Xxxxxxxx
___________________________
Xxxxx X. Xxxxxxxx
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