EXHIBIT 10
MATERIAL CONTRACTS
EXHIBIT 10.10
CONSULTING AGREEMENT
This Consulting Agreement ("Consulting Agreement") is dated as of the 1st
day of May 2001 by and between Xxxxxx River Bancorp, Inc. (the "Company") and
Xxxxx X. Xxxxxxxx (the "Consultant").
WITNESSETH:
WHEREAS, the Company desires to have the Consultant provide, and the
Consultant is willing to provide the Company with, the consulting services on
the terms and conditions set forth herein;
WHEREAS, the Board of Directors of the Company is of the opinion that the
consulting services of the Consultant will be of substantial value to the
Company; and
WHEREAS, to retain such Consultant's services, the Company and the
Consultant have agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and other good and valuable consideration, the parties hereto agree as follows:
1. Consultancy.
(a) Subject to the provisions of Section 1(e), below, the parties hereto
agree that, during the five-year period immediately following the date hereof
("Consulting Period"), the Consultant undertakes to provide his personal advice
and counsel to the Company and its subsidiaries in connection with the business
of the Company and its subsidiaries, including consulting with the Company
regarding the operations and customer relationships of the Company, providing
introductions to customers, serving as senior adviser to Xxxxxx River Bank &
Trust Company (the "Bank"), and providing general merger and acquisition advice
(collectively the "Consulting Services"), subject to the terms and conditions
which are set forth herein.
(i) In no event shall the Consultant be required to provide more
than 50 hours of Consulting Services in any calendar month during the Consulting
Period.
(ii) The Consultant shall provide such Consulting Services
commensurate with the Consultant's prior experience as may be reasonably
requested by the Chief Executive Officer of the Company from time to time and at
mutually agreeable times. Such Consulting Services may be provided in person,
telephonically, electronically or by correspondence.
(b) In consideration of the Consultant's agreement to provide Consulting
Services hereunder, during the Consulting Period, the Company shall, or shall
cause one of its subsidiaries to, pay the Consultant consulting fees at the rate
of $150,000 per annum, payable in monthly installments on the first business day
of each month during such Consulting Period, commencing May 1, 2001.
(c) The Company shall reimburse the Consultant or otherwise provide for or
pay for all reasonable expenses (including travel expenses) incurred by the
Consultant at the request of the Company, subject to such reasonable
documentation as may be established by the Board of Directors of the Company. If
such expenses are paid in the first instance by the Consultant, the Company
shall reimburse the Consultant therefor.
(d) During the Consulting Period, the Consultant shall be treated as an
independent contractor and shall not be deemed to be an employee of the Company
or any other affiliate of the Company.
(e) If the Consultant materially breaches the terms of this Agreement, the
Company shall provide written notice of such breach to the Consultant. If the
breach is not cured within 30 calendar days from when the Consultant receives
such notice, then the Company may terminate this Consulting Agreement by written
notice of termination provided to the Consultant. Thereafter, the Consultant
shall be entitled to no further compensation or benefits under the terms of this
Agreement.
2. Payment Obligation. Provided that the Consultant complies, in all
material respects, with his obligations pursuant to Section 1(a) hereof, the
Company's obligation to pay the Consultant the payments provided in Section 1(b)
hereof during the term of this Agreement shall be absolute and unconditional and
shall not be affected by any circumstances other than the Consultant's death,
including, without limitation, any purported termination of this Agreement,
other than pursuant to Section 1(e) hereof, set-off, counterclaim, recoupment,
defense or other right which the Company may have against the Consultant or
anyone else, and each and every such payment made or benefit provided shall be
final and the Company shall not seek to recover all or any part of any such
payment or benefit from the Consultant or from whomsoever may be entitled
thereto for any reason whatsoever. If the Consultant dies during the Consulting
Period, the Consulting Period shall terminate on the date of the Consultant's
death and no further consulting fees shall be payable pursuant to this
Agreement.
3. Acceleration of Payments in the Event of a Change in Control.
(a) In the event that there shall be a Change in Control (as defined
below) during the Consulting Period, then the Consultant may elect to have all
of the consulting fees owed to the Consultant for the remainder of the
Consulting Period under Section 1(b) hereof become immediately due and payable
to the Consultant, with the payment to be made to the Consultant upon completion
of the Change in Control. The Consultant shall continue to provide the
Consulting Services specified in Section 1(a) hereof during the remainder of the
Consulting Period, provided that (i) such obligation shall no longer include
providing general merger and acquisition advice; (ii) the number of hours
specified in Section 1(a)(i) hereof shall be limited to no more than 15 hours of
Consulting Services in any calendar month following the Change in Control; and
(iii) the Consulting Services shall be provided from such location as the
Consultant selects.
(b) The term "Change in Control" shall mean the occurrence of any of the
following events:
(i) approval by the shareholders of the Company of a transaction that
would result in the reorganization, merger or consolidation of the Company, with
one or more other persons, other than a transaction following which:
(A) at least 51% of the equity ownership interests of the entity
resulting from such transaction are beneficially owned (within the meaning of
Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended
("Exchange Act")) in substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) at least 51% of the outstanding
equity ownership interests in the Company; and
(B) at least 51% of the securities entitled to vote generally in the
election of directors of the entity resulting from such transaction are
beneficially owned (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) in substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) at least 51% of the securities
entitled to vote generally in the election of directors of the Company;
(ii) the acquisition of all or substantially all of the assets of the
Company or beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 25% or more of the outstanding securities of the
Company entitled to vote generally in the election of directors by any person or
by any persons acting in concert, or approval by the shareholders of the Company
of any transaction which would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Company or the Bank, or
approval by the shareholders of the Company of a plan for such liquidation or
dissolution;
(iv) the occurrence of any event if, immediately following such event, at
least 50% of the members of the Company Board do not belong to any of the
following groups:
(A) individuals who were members of the Company Board as of the date
of this Consulting Agreement; or
(B) individuals who first became members of the Company Board after
the date of this Consulting Agreement either:
(1) upon election to serve as a member of the Company Board by
affirmative vote of three-quarters of the members of such Board, or of a
nominating committee thereof, in office at the time of such first election; or
(2) upon election by the shareholders of the Company Board to
serve as a member of the Company Board, but only if nominated for election by
affirmative vote of three-quarters of the members of such Board, or of a
nominating committee thereof, in office at the time of such first nomination;
provided that such individual's election or nomination did not result from an
actual or threatened election contest (within the meaning of Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other actual or threatened
solicitation of proxies or consents (within the meaning of Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) other than by or on behalf of
the Company Board; or
(v) any event which would be described in Section 3(b)(i), (ii), (iii) or
(iv) if the term "Bank" were substituted for the term "Company" therein and the
term "Bank Board" were substituted for the term "Company Board" therein.
In no event, however, shall a Change in Control be deemed to have occurred as a
result of the acquisition of securities or assets of the Company, the Bank, or a
subsidiary of either of them by the Company, the Bank or any subsidiary of
either of them, or by any employee benefit plan maintained by any of them. For
purposes of this Section 3(b), the term "person" shall have the meaning assigned
to it under Sections 13(d)(3) or 14(d)(2) of the Exchange Act.
4. Successors and Assigns. This Consulting Agreement will inure to the
benefit of and be binding upon the Consultant and the Company, including any
successor to the Company by merger or consolidation or any other change in form
or any other person or firm or corporation to which all or substantially all of
the assets and business of the Company may be sold or otherwise transferred.
This Consulting Agreement may not be assigned by any party hereto without the
consent of the other party.
5. Notices. Any communication to a party required or permitted under this
Consulting Agreement, including any notice, direction, designation, consent,
instruction, objection or waiver, shall be in writing and shall be deemed to
have been given at such time as it is delivered personally, or five (5) days
after mailing if mailed,
postage prepaid, by registered or certified mail, return receipt requested,
addressed to such party at the address listed below or at such other address as
one such party may by written notice specify to the other party or parties, as
applicable:
If to the Consultant:
Xxxxx X. Xxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
If to the Company:
Xxxxxx River Bancorp, Inc.
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
President and Chief Executive Officer
6. Severability. A determination that any provision of this Consulting
Agreement is invalid or unenforceable shall not affect the validity or
enforceability of any other provision hereof.
7. Waiver. Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition. A waiver of any provision of this Consulting Agreement
must be made in writing, designated as a waiver, and signed by the party against
whom its enforcement is sought. Any waiver or relinquishment of any right or
power hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
8. Counterparts. This Consulting Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Consulting Agreement.
9. Governing Law. This Consulting Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York.
10. Headings. The headings of sections in this Consulting Agreement are
for convenience of reference only and are not intended to qualify the meaning of
any section. Any reference to a section number shall refer to a section of this
Consulting Agreement, unless otherwise stated.
IN WITNESS WHEREOF, the Company and the Consultant have entered into this
Consulting Agreement as of the day and year first above written.
XXXXXX RIVER BANCORP, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, President and
Chief Executive Officer
CONSULTANT
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
