Consulting Agreement
1. Identification
This Consulting Agreement (the "Agreement"), dated February 18, 2005, is
entered into by and between Yardville National Bancorp, a New Jersey-chartered
corporation ("Company"), and Xxxxxxxx Xxxxxxx, an independent contractor
("Consultant").
2. Recitals
2.1. Consultant has experience in the businesses in which the Company and
its wholly owned subsidiary, The Yardville National Bank (the "Bank"), are
engaged.
2.2. The Company desires to engage Consultant as an independent contractor
to render advice and guidance in connection with the business of the Company.
3. Term
3.1. Subject to the terms and conditions set forth in Article 7 and
elsewhere herein, Consultant's service under this Agreement shall commence on
the date hereof and expire at the close of business on January 31, 2006 (the
"Term").
4. General Terms
4.1. Nature of Agreement. The parties acknowledge and agree that Consultant
will be retained by the Company as an independent contractor, and not as an
employee. Consultant's duties will be limited to those assigned to him by the
Company's management. Consultant shall be subject to all securities laws and
regulations applicable to consultants of this nature, which includes, but is not
limited to, disclosure and xxxxxxx xxxxxxx laws and regulations.
4.2. Duties and Services. During the Term and on a non-exclusive basis,
Consultant agrees to perform such reasonable consulting services in the areas of
acquisition and growth opportunities, as requested by management of the Company.
Consultant shall not be entitled to attend meetings with the Company's
management or the Board of Directors unless Consultant's presence is requested
by the Company. The Company shall provide Consultant with such information and
documentation that it deems, in its sole discretion, applicable to the services
requested of the Consultant. The contact individuals at the Company for the
Consultant shall be Xxxxxxx X. Xxxx, President/CEO and, in his absence, Xxxxxxx
X. Xxxx, SVP/Strategic Planning Officer. Except as specifically set forth
herein, or as directed by the Company, it is agreed that Consultant shall have
no authority to act on behalf of the Company or the Bank.
4.3. Board Seat. The Company will consider Consultant for a future Board
seat in accordance with Company policies regarding nominations and nomination
criteria.
5. Compensation
5.1. Compensation for Services. Subject to Consultant's adherence to the
terms and conditions of this Agreement, Consultant shall be paid a retainer
amount equal to $20,000 payable in installments of $5,000 at the end of each
quarter of fiscal 2005. Additionally, subject to the terms and conditions of
this Agreement, Consultant shall be paid a monthly fee of $1,000 during the
twelve (12) months of the Term. The first monthly payment shall be due on the
effective date of this Agreement and subsequent payments shall be made on the
first day of the next eleven (11) months thereafter (or the first business day
next following such date) until a total of twelve (12) payments are made to
Consultant.
Notwithstanding any other provision of this Agreement, if the Agreement is
terminated prior to the expiration of the Term, Consultant shall only be
entitled to compensation to the extent provided in Article 7.
5.2. No Withholding. Because Consultant is retained as the Company's
independent contractor and not as an employee, the Company and Consultant
acknowledge and agree that no federal or state taxes, social security
contributions or other deductions shall be made by the Company from the payments
made to Consultant pursuant to this Article 5, and that Consultant will remain
solely liable for the payment of all such taxes. Consultant further acknowledges
that the Company will report compensation paid pursuant to this Agreement on a
Form 1099 at the end of each year in which Consultant's services were provided.
Consultant expressly covenants to make such tax payments as may be required by
applicable law and to indemnify and hold the Company and the Bank harmless from
and against any liability the Company or the Bank may incur as a consequence of
Consultant's failure to make such payments.
6. Benefits
6.1. No Additional Benefits. Consultant shall receive no additional
benefits hereunder, and Consultant acknowledges that the Company shall not be
responsible for providing Consultant with health insurance, pension benefits or
any other benefits.
7. Termination
7.1. This Agreement shall terminate in the following circumstances:
(a) Upon the death of Consultant;
(b) Upon the termination of Consultant by the Company with
Cause; or (c) By mutual agreement of the parties hereto.
7.2. For purposes of this Agreement, termination for "Cause" shall mean
termination of Consultant's services by the Company on account of (i) fraud,
misappropriation or embezzlement by Consultant in connection with the business
of the Company; (ii) violation of any law, rule or regulation (other than
traffic offenses or similar offenses) that would reflect adversely on the
Company, any felony conviction, any violation of law involving moral turpitude,
or any violation of securities law; or (iii) a breach of the provisions of this
Agreement.
7.3. Upon the termination of this Agreement, Consultant shall be entitled
only to compensation paid through such date, and to no other payments or
benefits.
8. Confidential Information; Non-Use; Restrictions
8.1. Non-Disclosure of Confidential Information. As used herein,
"Confidential Information" means any and all information affecting or relating
to the business of the Company or the Bank, including without limitation,
financial data, customer lists and data, licensing arrangements, business
strategies, pricing information or product development materials. "Confidential
Information" does not include information that is in the public domain,
information that is generally known in the trade, or information that Consultant
can prove he acquired wholly independently of his relationship with the Company.
Consultant shall not, at any time during the Term or thereafter, directly or
indirectly, disclose or furnish to any other person, firm or corporation any
Confidential Information, except as required by a subpoena (in which event
Consultant shall give prior written notice to the Company and shall cooperate
with the Company and Company's counsel in complying with such legal
requirements). Promptly upon the expiration or termination of Consultant's
engagement hereunder for any reason or whenever the Company so requests,
Consultant shall surrender to the Company all documents, drawings, work papers,
lists, memoranda, records and other data (including all copies) constituting or
pertaining in any way to any of the Confidential Information.
8.2. Non-Use. Consultant shall not, during the Term or thereafter, solicit
or cause to be solicited the disclosure of, or use or disclose, any Confidential
Information for any purpose whatsoever.
8.3. Restrictions. During the Term, Consultant will not support, initiate
or participate in any litigation or proxy contest against the Company or the
Bank.
9. Obligation Regarding Voting
9.1. Obligation Regarding Voting. To the extent permitted by law,
Consultant must vote or cause to be voted Company stock beneficially owned by
Consultant in favor of Company proposals and Company nominees during the Term.
The obligations of this Section 9.1 shall terminate upon termination of this
Agreement.
10. Publicity
10.1 Publicity. Promptly upon the execution and delivery of this Agreement,
the Company shall issue a press release disclosing the material terms and
provisions of this Agreement, which press release shall be subject to the prior
review and comment of the Consultant.
11. Public Statements; Litigation
11.1. Public Statements; Litigation. Unless required by law or court order,
from and after the date hereof, until and through the Term, Consultant shall
not, directly or indirectly:
(a) make any statement (except as to capital or equity raises in
excess of $15,000,000.00), public or otherwise, in opposition to, or that
would reflect negatively against, the Company or the Bank, the Board of
Directors of the Company or the Bank, or any of the officers of the Company
or the Bank;
(b) cause, discuss, cooperate or otherwise aid in the preparation of
any press release or other publicity other than filings required by
securities laws concerning the Company or the Bank or its operations
without prior approval of the Company unless required by law, in which case
notice of such requirement shall be given to the Company;
(c) directly or indirectly participate or act in concert with any
affiliate, group or other person to participate, by encouragement or
otherwise, in any litigation against the Company or the Bank, or any of
their respective officers or directors; or
(d) provide, or act in concert with any person to provide, any funds
or services, to any person in support of any activity by such person that
would be a violation of the provisions of this Section 11 if undertaken by
the Consultant.
12. Breach; Restriction
12.1. Breach of Provisions. In the event that Consultant shall breach any
of the provisions of this Agreement, or in the event that any such breach is
threatened by Consultant, in addition to and without limiting or waiving any
other remedies available to the Company at law or in equity, the Company shall
be entitled to immediate injunctive relief in any court, domestic or foreign,
having the capacity to grant such relief, without the necessity of posting a
bond, to restrain any such breach or threatened breach and to enforce the
provisions of this Agreement. Consultant acknowledges and agrees that there is
no adequate remedy at law for any such breach or threatened breach and, in the
event that any action or proceeding is brought seeking injunctive relief,
Consultant shall not use as a defense thereto that there is an adequate remedy
at law. If such action for injunctive relief is brought by the Company, the
prevailing party in such action shall be entitled to reimbursement of its
reasonable attorney's fees and court costs from the other party.
12.2. Reasonable Restrictions. The parties acknowledge that the foregoing
restrictions, as set forth in Articles 8, 9, 10 and 11 are under all of the
circumstances reasonable and necessary for the protection of the Company and its
businesses.
13. Miscellaneous
13.1. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives, heirs,
distributees, successors and assigns; provided that the rights and obligations
of the parties hereto shall not be assignable.
13.2. Notices. Any notice provided for herein shall be in writing and shall
be deemed to have been given or made when personally delivered or three (3) days
following deposit for mailing by first class registered or certified mail,
return receipt requested, or if delivered by facsimile transmission, upon
confirmation of receipt of the transmission, to the Consultant, at his address
maintained in the records of the Company, or, to the Company, at its executive
offices.
13.3. Severability. If any provision of this Agreement, or portion thereof,
shall be held invalid or unenforceable by a court of competent jurisdiction,
such invalidity or unenforceability shall attach only to such provision or
portion thereof, and shall not in any manner affect or render invalid or
unenforceable any other provision of this Agreement or portion thereof, and this
Agreement shall be carried out as if any such invalid or unenforceable provision
or portion thereof were not contained herein. In addition, any such invalid or
unenforceable provision or portion thereof shall be deemed, without further
action on the part of the parties hereto, modified, amended or limited to the
extent necessary to render the same valid and enforceable.
13.4. Enforcement. The parties may seek, from a court of competent
jurisdiction, provisional remedies or injunctive relief in support of their
respective rights and remedies hereunder.
13.5. Waiver. No waiver by a party hereto of a breach or default hereunder
by the other party shall be considered valid unless in writing signed by such
first party, and no such waiver shall be deemed a waiver of any subsequent
breach or default of the same or any other nature.
13.6. Entire Agreement. This Agreement sets forth the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
any and all prior agreements or understanding between the Company and
Consultant, whether written or oral, fully or partially performed relating to
any or all matters covered by and contained or otherwise dealt with in this
Agreement.
13.7. Amendment. No modification, change or amendment of this Agreement or
any of its provisions shall be valid unless in writing and signed by the party
against whom such claimed modification, change or amendment is sought to be
enforced.
13.8. Applicable Law. This Agreement, and all of the rights and obligations
of the parties in connection with the employment relationship established
hereby, shall be governed by and construed in accordance with the substantive
laws of the State of New Jersey without giving effect to principles relating to
conflicts of law. If there is a lawsuit, the parties agree to submit to the
jurisdiction of the Courts of Xxxxxx County, New Jersey.
13.9. Counterparts. Thus Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
Attest: YARDVILLE NATIONAL BANCORP
/s/ Xxxxxx X. X'Xxxxxxx By: /s/ Xxxxxxx X. Xxxx
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Title: President/CEO
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CONSULTANT
/s/ Xxxxx Xxxxxxx /s/ Xxxxxxxx Xxxxxxx
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Witness Xxxxxxxx Xxxxxxx
