EXHIBIT 10.2
CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of the _____ day of _______,
1998, by and between American Community Bank, a North Carolina chartered bank
(the "Bank"), and Xxxxxxx X. Xxxx, Xx. ("Consultant")
Preliminary Statement
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The Bank desires to employ the consulting services of Consultant as set
forth herein and Consultant is willing to provide such services all pursuant to
the terms and conditions herein.
Statement of Agreement
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In consideration of the foregoing premises, the mutual promises herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties intending to be
legally bound, agree as follows:
1. Engagement. The Bank agrees to engage Consultant, and Consultant
agrees to provide consulting services to the Bank, as an independent contractor,
upon the terms and conditions herein set forth.
2. Term. The term of this Agreement shall commence on the date hereof,
and shall continue for one (1) year unless earlier terminated by mutual written
consent or in accordance with Section 6 below.
3. Duties of Consultant.
a. Consultant shall undertake and assume the responsibility of
performing for and on behalf of the Bank certain consulting services and/or such
other similar duties as may be reasonably assigned to Consultant by the Bank at
any time and from time to time related to the following: monitoring the
performance of the back-room computer service providers for the Bank, including,
but not limited to, supervision of the installation of computer hardware and
software systems, supervision of maintenance thereof, hiring and supervision of
computer staff, training, supervision of repair of computer system and
recommendations and implementation with respect to bankwide computer systems and
technology. For purposes of this Agreement, Consultant shall report to the Vice
Chairman of the Board of Directors and shall take assignments only from Xxxxx X.
Xxxxxx, President of the Bank or such other official of the Bank from time to
time designated in writing by Xx. Xxxxxx or by the Board of Directors of the
Bank.
b. Consultant covenants and agrees that at all times during
the term of this Agreement, Consultant shall be an independent contractor and
shall devote sufficient time and efforts to his duties to satisfy the needs of
the Bank and as the Bank reasonably directs.
c. Consultant further covenants and agrees that Consultant
will not, directly or indirectly, engage or participate in any activities at any
time during the term of this Agreement in
conflict with the best interests of the Bank and will conduct all Consultant's
activities in strict loyalty to the Bank.
4. Compensation. As compensation for the services to be rendered by
Consultant for the Bank under this Agreement, Consultant shall be compensated by
the Bank on the following basis:
a. Consulting Fee. $86,000 to be paid in equal monthly
installments in arrears.
b. Reimbursement for Expenses. Reimbursement of all reasonable
Bank business related expenses (including, without limitation, mileage, postage,
telephone, travel, and similar expenses) incurred by Consultant at the specific
direction of (and approved in writing in advance by) the Bank in the performance
of his duties hereunder.
Consultant shall be solely responsible for all federal and state
withholding taxes, if any, in respect of amounts paid pursuant to this Section
4. The compensation stated in this Section is intended to be the total
compensation paid to Consultant for his consulting services hereunder.
5. Secrecy. Consultant acknowledges that in and as a result of his
obligations hereunder, he will be making use of, acquiring and/or adding to
confidential information of a special and unique nature and value relating to
such matters of the business of the Bank, including, without limitation,
locations and lists of customers, and potential customers or contracts, vendor
relationships, sales and marketing materials and methods, proprietary
information, trade secrets, trademarks, systems, procedures, manuals,
confidential reports, records, credit information, operational expertise,
financial records and data, contracts, tax information, business plans and
prospects, advertising assignment, sales relationships and the nature and type
of services rendered by the Bank (all of which are deemed for all purposes
confidential and proprietary). As a material inducement to the Bank to enter
into this Agreement and to pay to Consultant the compensation stated in Section
4, Consultant covenants and agrees that he shall not, at any time during the
term of this Agreement, and for a period of three (3) years after the
termination of this Agreement, divulge or disclose for any purpose whatsoever
any confidential information that has been developed or obtained by, or
disclosed to, Consultant as a result of his services to the Bank or the Bank's
affiliates at any time before or after the date hereof. Such information already
in the public domain, in the accumulated form possessed by the Bank, is not
deemed confidential information for purposes of this Section 5, and the
restrictions of this Section 5 shall not apply to the extent that Consultant is
compelled by law or a court to disclose such information.
6. Termination. Notwithstanding any other provision hereof, the Bank or
Consultant may terminate this Agreement for any reason by giving to the other
party thirty (30) days advance written notice of the intent to terminate. At the
effective date of such termination, all of Consultant's duties to provide
consulting services under Section 3 of this Agreement, and all of the Bank's
obligations to make payments under Section 4 of this Agreement shall terminate
and be thereafter null and void. In the event that the effective date of such
termination by Consultant
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is any time other than the end of a monthly payment period, any compensation
paid to Consultant shall be paid on a pro rata basis to the date of termination.
7. Independent Contractor. It is mutually understood and agreed that
Consultant shall be and at all times shall act and perform as an independent
contractor. Consultant shall have no authority to bind the Bank in any capacity
except as the Bank may expressly authorize Consultant in writing hereafter. As
an independent contractor, Consultant shall be responsible for the payment of
all applicable federal, state and local taxes.
8. Assignment. This Agreement and any rights hereunder are personal to
Consultant and shall not be assigned or otherwise transferred by Consultant.
Neither this Agreement nor any rights hereunder may be assigned or otherwise
transferred by the Bank, except to any person, corporation, company, or
partnership controlling, controlled by, or under common control with the Bank,
or in connection with the acquisition, merger, or the sale of substantially all
of the assets of the Bank.
9. Indemnity. To the fullest extent permitted by law, Consultant shall
indemnify and hold harmless the Bank against all claims, damages, losses
(including but not limited to loss of attorney's fees) arising our of or
resulting from the performance of the services covered by this Agreement caused
in whole or in part by any negligent, intentional, or willful act or omission of
Consultant or his agents. In the event that such claim, damage, loss or expense
arises, Consultant as additional consideration for this Agreement, agrees to
set-off and recoupment against the compensation described in Section 4 for the
amount of such claim, damage, loss or expense.
10. Burden and Benefit. This Agreement shall inure to the benefit of
and be binding upon the Bank's successors and assigns and Consultant's heirs,
personal and legal representatives, successors, and assigns.
11. Severability. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any one or more of the
provisions of this Agreement shall not affect the validity and enforceability of
the other provision.
12. Usage. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Term such as "hereof", "hereunder",
"hereto", "herein", and words of similar import shall refer to this Agreement in
its entirety and all references shall refer to specified portions of this
Agreement, unless the context clearly requires otherwise.
13. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of North Carolina.
14. Notice. Any notice, approval, consent, or other communication
provided for or permitted hereunder shall be in writing, signed by an authorized
representative of the sender and addressed to the respective party at the
address set forth below:
CONSULTANT: Xxxxxxx X. Xxxx, Xx.
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0000 Xxxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
BANK: American Community Bank
0000 Xxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
A party may change its respective address by notice in writing given to
the other party to this Agreement. Any notice, approval, consent, or other
communication shall be effective upon the first to occur of the following: (i)
when delivered to the party to whom such notice, approval, consent, or other
communication is being given, or (ii) three (3) business days after being
deposited in the U.S. Mail, certified, return receipt requested.
15. Entire Agreement. This Agreement contains the entire agreement and
understanding by and between the Bank and Consultant with respect to the
consulting services of Consultant, and no representatives, promises, agreements,
or understandings, written or oral, not contained herein related to such
services shall be of any force or effect. No change or modification of this
Agreement shall be valid or binding unless it is in writing and signed by the
party intended or bound. No waiver of any provision of this Agreement shall be
valid unless it is in writing and signed by the party against whom the waiver is
sought to be enforced. No valid waiver of any provision of this Agreement at any
time shall be deemed a waiver of any other provision of this Agreement at such
time or at any other time.
In Witness Whereof, the Bank and Consultant have duly executed this
Consulting Agreement to be legally binding and effective as of the day and year
first above written.
AMERICAN COMMUNITY BANK
By: __________________________
Xxxxx X. Xxxxxx, President
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Xxxxxxx X. Xxxx, Xx.
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