STATE OF NORTH CAROLINA EXHIBIT 10.13
COUNTY OF FORSYTH
CONSULTING AGREEMENT AND CONTRACT
THIS AGREEMENT, made and entered into this 24th day of April, 1998, by
and between Wachovia Corporation ("Wachovia") and Xxxx X. Xxxxxx, Xx. of
Xxxxxxx County, North Carolina (the "Consultant").
RECITALS:
The Consultant is a former Chief Executive Officer and Chairman of the
Board of Wachovia who acquired special competency in and an intimate knowledge
of Wachovia's financial service activities, lines of business, markets and
customers. Consultant is one of the most highly regarded bankers in the United
States and has received national recognition on many occasions for his
management, professional, and financial skills. Wachovia desires to engage the
Consultant to render advisory consulting services to Wachovia, and such other
subsidiaries and affiliates of Wachovia as may be engaged from time to time in
the financial services business, as an independent businessman and professional
from April 24, 1998 through November 23, 2003. Wachovia and the Consultant deem
it in their best interests to execute this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the Consultant and Wachovia mutually agree as follows:
ARTICLE 1. CONSULTATION SERVICES
Wachovia hereby engages the Consultant as an independent contractor to
render, as requested by Wachovia, and the Consultant hereby agrees to render
when so requested, consulting and advisory services for Wachovia during the term
of this Agreement. Such services shall be rendered by the Consultant with regard
to matters which are in the special competence, knowledge and experience of the
Consultant gained during the period of his former employment with Wachovia and
based upon his independent knowledge and expertise in the general area of public
policy and financial services. Wachovia and the Consultant mutually understand
and agree that such services shall not require the Consultant to be active in
the day-to-day operations of Wachovia, and that he shall be free to render said
services in such manner as he shall deem advisable; provided, however, that the
Consultant will be expected to render consulting and other professional services
for which he is uniquely qualified to Wachovia on an as-needed basis.
ARTICLE 2. NATURE OF CONSULTING SERVICES AND NON-COMPETITION
The Consultant will perform consulting and advisory services on behalf of
and as may reasonably be requested by Wachovia with respect to matters relating
to new business, general banking matters, public policy, economics, and issues
related to the financial services industry.
It is anticipated that the specific projects or problems with regard to
which such advisory or consulting services are to be rendered by the Consultant
shall be determined by Wachovia, and that the Consultant shall devote reasonable
time to rendering such services for Wachovia and shall render such services in a
reasonably diligent and timely manner. Notwithstanding the immediately preceding
sentence, such services are to be rendered on a part-time basis at such time or
times as shall be convenient to the Consultant. In carrying out the foregoing
provisions of this Article 2, the following specific rules shall apply:
(A) The Consultant is being engaged as an independent professional for his
knowledge, talents, and specialized skills. Wachovia shall not issue any
formal or structured schedule of services to be rendered by the
Consultant, or of assignments for the Consultant;
(B) The Consultant shall be free to render services in such manner and
form as he shall deem advisable, and Wachovia shall not exert or attempt
to exert any control, direction, or supervision over the Consultant with
regard to the manner, details, or means through which he renders such
services, nor shall Wachovia issue detailed work orders or instruction
with regard to the services to be rendered;
(C) Wachovia shall not establish or attempt to establish any work schedule
for the Consultant, or otherwise prescribe or attempt to prescribe the
number of hours which the Consultant must work during any given period or
with regard to any project or problem referred to him;
(D) The Consultant cannot be discharged by Wachovia except in accordance
with the terms of this contract;
(E) In providing the independent professional services set forth herein,
Consultant shall have the sole responsibility for determining the
personnel resources required by him to provide the services set forth
herein. He may hire or employ the services of others at his discretion,
but he shall be solely responsible for assigning work to those individuals
and compensating them, and Wachovia shall not have any responsibility or
control over these individuals. Funds paid to the Consultant under the
terms of this Agreement may be utilized in any lawful manner he determines
to provide and fund the services required.
(F) Wachovia acknowledges that the Consultant may serve clients other than
Wachovia, and hold himself out to the public as generally available to
provide similar consulting services. Provided, however, that Consultant
shall not provide consulting services to any other financial institution
or engage in any business that competes with Wachovia as an officer,
employee, advisor, consultant, partner, or principal shareholder. Any work
performed under the terms of this Agreement by the Consultant for Wachovia
may involve
confidential, sensitive and proprietary information, and it shall be
treated as such by the Consultant. The Consultant agrees that all such
confidential, sensitive and proprietary information will not be disclosed
by the Consultant to any third person or entity, or utilized in any other
manner by the Consultant except in the performance of the obligations
under this Agreement.
(G) The Consultant shall in no way be considered or act in such a manner
so that he might be considered to be an employee or an agent of Wachovia,
nor shall the Consultant have any direct or indirect or ostensible
authority to bind Wachovia in any legal relationship or matter.
ARTICLE 3. TERM
The term of this Agreement shall begin on April 24, 1998 and end on
November 23, 2003. This Agreement shall terminate on November 23, 2003, or in
the event of the death or disability of the Consultant prior to that date, on
the date of such death or disability. The term "disability" shall mean the
permanent and total inability of the Consultant, by reason of physical or mental
infirmity, or both, to render the advisory and consulting services specified
herein.
ARTICLE 4. CONSULTING FEE
Wachovia shall pay the Consultant for the services rendered pursuant to
this Contract on the following basis. From April 24, 1998 through and including
April 23, 2000, Wachovia shall pay to Consultant the sum of seventeen thousand
five hundred dollars ($17,500.) per month. From April 24, 2000 through and
including November 23, 2003, Wachovia shall pay to Consultant the sum of ten
thousand dollars ($10,000.) per month. All such monthly payments are payable at
the end of each calendar month during which this Agreement is in effect. In
addition, the Consultant will be reimbursed for all reasonable out-of-pocket
traveling and other expenses incurred by the Consultant in performing his
obligations under this Agreement upon presentation by him, from time to time, of
an itemized account of such expenditures. This itemized account shall be in such
form as is satisfactory to the Control Department of Wachovia. Such reimbursable
expenses shall be subject to approval of the Chief Executive Officer of Wachovia
Corporation.
ARTICLE 5. BENEFITS
The Consultant shall not be entitled to participate as an employee in any
retirement plans or other benefit plans provided by Wachovia for its employees,
except to the extent that such participation results from the Consultant's prior
services as an employee or as a former chief executive officer of Wachovia. The
Consultant will not be considered an employee of Wachovia for any purpose.
ARTICLE 6. INCOME TAX WITHHOLDING
Wachovia shall not withhold federal or state income taxes or employment
taxes for payments made to the Consultant on account of the services to be
rendered hereunder.
ARTICLE 7. GENERAL PROVISIONS
(a) Nonassignability. Neither this Agreement nor any right or interest
hereunder shall be assignable by the Consultant, his beneficiaries, or legal
representatives. However, the Consultant shall have the right to assign certain
work to his employees or agents as previously set forth herein.
(b) No Attachment. Except as required by law, no right to receive payments
under this Agreement shall be subject to alienation, sale, assignment,
encumbrance, charge, pledge or hypothecation or to execution, attachment, levy
or similar process or assignment by operation of law, and an attempt, voluntary
or involuntary, to effect any such action shall be null, void and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and inure to
the benefit of, the Consultant and Wachovia and their respective permitted
successors and assigns. This Agreement shall be binding upon any acquiror of
Wachovia.
ARTICLE 8. MODIFICATION AND WAIVER
(a) Amendment of Agreement. This Agreement may not be modified or amended
except by an instrument in writing signed by the parties hereto.
(b) Waiver. No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel against the enforcement of any
provisions of this Agreement, except by written instrument of the party charged
with such waiver, and each such waiver shall operate only as to the specific
term or condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than that specifically waived.
ARTICLE 9. SEVERABILITY
If, for any reason, any provision of this Agreement is held invalid, such
invalidity shall not affect any other provision of this Agreement not held so
invalid, and each such other provision shall to the full extent consistent with
law continue in full force and effect. If any provision of this Agreement shall
be held invalid in part, such invalidity shall in no way affect the rest of such
provision not held so invalid, and the rest of such provision, together with all
other provisions of this Agreement, shall to the full extent consistent with law
continue in full force and effect.
ARTICLE 10. HEADINGS
The headings of Articles herein are included solely for convenience of
reference and shall not control the meaning or interpretation of any of the
provisions of this Agreement.
ARTICLE 11. GOVERNING LAW
This Agreement has been executed and delivered in the State of North
Carolina and its validity, interpretation, performance and enforcement shall be
governed by the laws of said state.
IN WITNESS WHEREOF, Wachovia has caused this Agreement to be executed and
its seal to be affixed hereunto by its officers thereunto duly authorized, and
the Consultant has signed and sealed this Agreement, all on the day and year
first above written.
WACHOVIA CORPORATION
By ______________________________________
X. X. Xxxxx, Xx. , Chairman of the Board
President, and Chief Executive Officer
Attest:
_____________________
Xxxxxxx X. XxXxxxxxxx
Assistant Secretary
CONSULTANT
______________________________(SEAL)
Xxxx X. Xxxxxx, Xx.
