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EXHIBIT 10.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") dated as of
___________, 1998 by and between First American National Bank, having its
principal offices in Nashville, Tennessee (hereinafter "FANB") and Xxxxxxx
Xxxxxxx, Xx. (hereinafter "Consultant");
W I T N E S S E T H:
WHEREAS, FANB is regularly engaged in the business of banking
and the providing of financial services; and
WHEREAS, The Middle Tennessee Bank ("MTB") has merged with
and into FANB; and
WHEREAS, Consultant formerly served Chairman of the Board of
Directors of MTB and was a principal shareholder of MTB and has significant
experience and expertise in the businesses of banking and providing of financial
services; and
WHEREAS, FANB wishes to engage Consultant to provide his
assistance and services to FANB for their mutual benefit and profit; and
WHEREAS, Consultant is willing to provide assistance and
services to FANB on the terms set out herein.
NOW, THEREFORE, premises considered, in consideration of the
mutual covenants set out below, and for other good and valuable consideration,
the receipt and sufficiency of which are acknowledged, the parties hereto
intending to be legally bound agree as follows:
1. ENGAGEMENT. FANB hereby retains Consultant for a term
commencing on the date hereof and ending on December 31, 2000 (the "Term") on
the terms and conditions set out in this Agreement; provided, however, that this
Agreement shall be of no force and effect until the occurrence of the Effective
Time of the merger of MTB with and into FANB pursuant to the Agreement and Plan
of Merger by and between FANB and MTB dated as of May 26, 1998.
2. SERVICES. Throughout the Term and in a manner commensurate
with his previous position with MTB, Consultant undertakes to provide his
personal advice and counsel to FANB and/or its affiliates, including without
limitation, First American Corporation ("FAC"), in connection with the business
of banking and financial services. Specifically, Consultant agrees to provide
his advice and counsel to FANB in connection with the ongoing operations of MTB
as one or more branches of FANB. Consultant further agrees to perform certain
duties in respect to the transition of MTB into one or more branches of FANB, to
assist in maintaining and developing customer relationships, as well as Board,
employee and community relationships, particularly including those originating
in Maury County, and such other projects as may from time to time be identified
by FANB. Such duties may include, without limitation,
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counsel and advice in connection with acquisitions or potential acquisitions to
be made by FANB or FAC and/or their affiliates, and, service as Senior Chairman
of FANB's Maury County Advisory Board of Directors. Consultant also agrees to
serve in such additional capacities as may be mutually agreed between Consultant
and FANB.
3. SCOPE OF SERVICE. The duties and obligations of Consultant
under this Agreement are neither exclusive nor full-time. Subject to the
provisions of Section 7 hereof, Consultant shall be free to pursue and conduct
all other business activities.
4. REMUNERATION. In consideration of the services to be
rendered by Consultant pursuant to this Agreement, FANB shall pay Consultant
annual fees of Fifty Thousand Dollars ($50,000.00). FANB shall pay one twelfth
(1/12) of such annual fees to Consultant monthly, on or before the last day of
each calendar month, throughout the Term. FANB shall also reimburse Consultant
for his reasonable and appropriate out-of-pocket travel and business expenses
incurred in rendering services hereunder in accordance with FANB's policies and
procedures relating to the reimbursement of such expenses. FANB shall also
provide to Consultant, at FANB's expense, continued use of office space
currently occupied by Consultant during the term of this Agreement.
5. TERMINATION. This Agreement, the Term hereof, and FANB's
duty to pay Consultant the remuneration set out herein may be terminated:
(a) Upon the written mutual agreement of Consultant
and FANB;
(b) For Cause, as that term is defined herein, but
only at the election of FANB. For these purposes, "Cause" shall mean a
good faith determination by the Board of Directors of FANB that (i) Consultant
has been convicted of a crime involving fraud, theft, embezzlement, or other
felony, (ii) Consultant knowingly or intentionally has breached any of the
material terms of this Agreement, or (iii) Consultant has committed a violation
of any laws and/or regulations applicable to FANB and/or its affiliates; or
(c) By FANB upon the death or total disability of
Consultant.
6. CONFIDENTIAL INFORMATION. Consultant acknowledges that in
the course of his engagement by FANB he will have access to confidential
proprietary information and data concerning the business of FANB and its
affiliates, collectively, the "Information", which FANB desires to protect.
Consultant understands that the Information, to the extent not otherwise
published or known generally, is confidential and proprietary, and agrees not to
reveal such Information to persons outside FANB; provided, however, that
Consultant may reveal, utilize, and otherwise employ the Information in any
manner required by law or as may be necessary in carrying out his duties
hereunder. If this Agreement is terminated for any reason, the obligations
contained in this Section 6 shall survive forever such termination.
7. RESTRICTIONS. During the Term of this Agreement and for a
period of one (1) year thereafter, Consultant shall not, directly or indirectly,
participate or be actively involved in, own, manage, operate, control or
participate in the ownership, management, operation or control of, or be
connected as an officer, employee, partner, director or otherwise with, or have
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any financial interest in, or aid or assist anyone else in the conduct of, any
business which is in competition with FANB, FAC, or any subsidiary of either FAC
or FANB, in any geographic area where such business is now or hereafter
conducted; provided, however, that passive ownership of one percent (1%) or less
of the outstanding voting stock of any corporation which is publicly traded
shall not constitute a violation hereof.
8. ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding between Consultant and FANB with respect to the subject matter
hereof. There are no covenants, agreements, understandings, representations or
warranties, oral or written, between Consultant and FANB relating to the subject
matter of this Agreement other than those set forth herein.
9. WAIVER. No waiver of any right or remedy under any term of
this Agreement shall in any event be deemed to apply to any subsequent default
under the same or any other term contained herein.
10. SEVERABILITY. If any term or provision of this Agreement
shall be held invalid or unenforceable, the remainder of this Agreement, shall
be construed in all respects as if such invalid or unenforceable term or
provision were omitted. If it is determined that any term of this Agreement is
unenforceable because of the duration or the geographic scope of this term, the
duration or geographic scope of such term shall be reduced to the maximum time
and geographic scope permitted by applicable law, and as so reduced, such term
shall then be enforced.
11. NOTICES. Any notice or other communication required or
permitted to be given under this Agreement shall be in writing and deemed to be
properly given when delivered in person or three days after being sent by
certified or registered United States mail, return receipt required, postage
prepaid, addressed:
If to Consultant:
Xxxxxxx Xxxxxxx, Xx.
000 Xxxx 0xx Xxxxxx
Xxxxxxxx, XX 00000
If to FANB: With a copy to:
First American National Bank First American National Bank
First American Center First American Center
Nashville, TN 37237 Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx Attn.: General Counsel
Either party may change his or its address for notices hereunder from time to
time in the manner set forth above.
12. JOINT PREPARATION. This Agreement is to have been prepared
jointly by Consultant and FANB, and any uncertainty or ambiguity existing herein
shall not be interpreted against either party, but shall be interpreted
according to the rules of interpretation for arms-length agreements.
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13. RULES OF CONSTRUCTION. Unless the context otherwise
requires, words in the singular number include the plural, and in the plural
include the singular, words of the masculine gender include the feminine and the
neuter, and when the sense so indicates, words of the neuter gender may refer to
any gender. The names of the parties, the date, and the recitals set out above
written are all a part of this Agreement. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience; they
do not define, limit, construe, or describe the scope or intent of the
provisions of this Agreement.
14. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
either party hereto may execute this Agreement by signing one or more
counterparts.
15. ACTIONS CONTRARY TO LAW. Nothing contained in this
Agreement shall require Consultant or FANB to engage in any conduct or perform
any act contrary to law.
16. COSTS. In the event of a dispute between Consultant and
FANB involving the terms of this Agreement which results in the filing of suit,
the prevailing party shall be paid and reimbursed by the other for all costs and
expenses, including all defense costs, investigation costs, and reasonable
attorneys' fees, paid or incurred by such prevailing party in connection with
such dispute.
17. CHOICE OF LAW, JURISDICTION, VENUE. This Agreement is
entered into and is intended to be performed in the State of Tennessee and shall
be governed by the laws of this State. Any action, claim, or dispute relating to
the terms of this Agreement shall be brought in the appropriate state or federal
court physically located in Nashville, Davidson County, Tennessee.
18. AMENDMENT. This Agreement may be modified or amended only
upon the written agreement of Consultant and FANB.
19. INDEPENDENT CONTRACTOR. The parties hereto acknowledge
that Consultant will be an independent contractor of FANB retained to perform
the services described herein, and that, as such, FANB shall not be responsible
for the withholding of income taxes, FICA or other taxes. The parties hereto
further acknowledge that Consultant will not be deemed an employee of FANB for
any reason and that Consultant will not be entitled to participate in or receive
benefits under any employee benefit plans available to employees of FANB.
20. ASSIGNMENT. This Agreement shall be binding upon, inure
to the benefit of and be enforceable by each of FANB and its successors and
assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first mentioned above.
FIRST AMERICAN NATIONAL BANK
BY:__________________________
ATTEST:_____________________
TITLE:_______________________
CONSULTANT
ATTEST:_____________________ _____________________________
XXXXXXX XXXXXXX, XX.
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