CONSULTING AGREEMENT
This Agreement is
made and entered into as of March 11, 2006, by and between Bank of Marin, a
California corporation (the "Company") and W. Xxxxxx Xxxxxxxx, Jr. (hereinafter
referred to as "Consultant").
RECITALS
Consultant has, by
reason of his many years of experience in the banking business and particularly
in the banking business in Marin County, California and through his employment
with the Company, acquired a unique and valuable knowledge of the business of
the Company.
The Company wishes
to engage Consultant's expertise in order to facilitate the future growth and
prosperity of the Company.
Consultant is
desirous of making his expertise available to the Company on the terms set forth
below.
NOW, THEREFORE, in
consideration of the foregoing premises and of the mutual covenants contained
herein, and for other good and valuable consideration, receipt of which is
hereby acknowledged, the parties agree as follows:
1. Effectiveness. This
Agreement has been executed in connection with the Retirement Agreement and
Release of even date herewith between the Company and Consultant, and the
effectiveness of this Agreement is subject to the fulfillment by the parties' of
their obligations under the Retirement Agreement and Release.
2. Duties. The Company
retains Consultant and Consultant agrees to render reasonable bank related
services to the Company to the best of his ability, upon and subject to the
terms and conditions set forth herein. Consultant shall render such
consulting services to the Company as are requested by the Company from time to
time during the Consultation Period, as defined in Section 4
below. Consultant shall have no obligation to render any consulting
services to the Company unless requested pursuant to this
Agreement. Consultant will devote his utmost skill and knowledge to
the performance of consulting duties to the extent requested to provide
consulting services by the Company, but in no event to exceed sixteen (16) hours
in any one (1) month period, except that whenever Consultant does not provide
sixteen (16) hours of service in a month, the hours of service not provided
shall be carried forward and added to the maximum number of hours that may be
required in any subsequent month, except that not more than a cumulative current
total of thirty-two (32) hours may be carried forward at any time.
3. Independent Contractor.
Consultant is an independent contractor and it is understood and
agreed by Consultant and the Company that, as a result of entering into this
Agreement, the Company does not intend to appoint Consultant the agent, employee
or other legal representative of the Company and that Consultant shall have no
power or authority to assume, create or incur any liability or obligation of any
kind, express or implied, against or in the name of, or on behalf of the Company
in any transaction with a third party. Consultant shall not be
eligible to participate in any benefit plan or program available to Company
employees nor shall the Company be responsible for tax withholding or other
requirements imposed by federal or state law upon employees.
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4. Term. The Company hereby
retains Consultant's services, and Consultant accepts such retention, for the
period beginning July 1, 2006, and ending June 30, 2008, or such earlier date as
the parties mutually agree, unless terminated earlier pursuant to Section 7
below. Such term is herein referred to as the "Consultation
Period."
5. Compensation. Consultant
shall not be entitled to any compensation of any kind from the Company except
the Company shall pay to Consultant an annual consulting fee of $261,300,
payable in 12 equal monthly installments of $21,555 (the "Consulting
Fee"). The Consulting Fee during the term of this Agreement is due to
Consultant as consideration for Consultant committing to perform and performing
the duties required by Section 2 above.
6. Method of Work and Benefits.
Consultant shall not receive, and shall not be entitled to receive,
any benefits from the Company other than payment of the sums due under Section 5
above. Consultant shall not have an office at the Company premises
but may use available space and equipment necessary for him to discharge his
responsibilities within the Company premises or otherwise necessary when
undertaking consulting assignments outside the Company premises, i.e., cell
phone. Consultant shall determine his own working hours and methods
for carrying out the consulting assignments requested by the
Company.
7. Termination. This
Agreement and the services required of Consultant hereunder, shall terminate
prior to its expiration date under the following conditions:
(a)
Termination for Good
Cause. The Company
shall have "good cause" to terminate Consultant's relationship if Consultant
engages in the following:
(i)
any willful appropriation, destruction, or damage to property or funds
belonging to the Company or its employees, clients, or visitors;
(ii) sexual,
verbal or physical harassment or discrimination towards any employee, customer,
supplier, contractor or visitor of the Company;
(iii) dishonesty
in connection with the Company's business;
(iv) breach
of any of the provisions of Section 9 hereof;
(v) Consultant
fails or refuses to perform faithfully and diligently the consulting duties
described in Section 2 after fifteen (15) days written notice from the Company;
or
(vi) Consultant
fails or refuses to comply with the written policies, standards and regulations
of the Company which from time to time may be established, which failure or
refusal is not cured within fifteen (15) days after written notice thereof is
given by the Company.
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8. Payment Upon Termination for Good
Cause. In the event Consultant's relationship with the
Company is terminated for good cause, as set forth in Section 7(a), he shall
receive notice of termination and shall be entitled only to the compensation set
forth in Section 5 above prorated through the date of said notice. As
an independent contractor Consultant recognizes that he has no rights to other
benefits otherwise accruing to employees of the Company.
9. Covenants Regarding Competitive and Other
Businesses. Consultant covenants and agrees, and such
covenants and agreements are of the essence of this Agreement,
that:
(a) Protection of Confidential
Information. Consultant recognizes and acknowledges that
during his tenure as President and Chief Executive Officer of the Company, he
has dealt with and has had access to information relating to the Company’s
business which is not in the public domain, and that during his term as a
consultant to the Company hereunder he may deal with and have access to
additional information of that nature. With the exception of such
information that is included in public filings made with state or federal
agencies or associations or that otherwise falls into the category of
information generally known to the public, Consultant recognizes and stipulates
that information designated or treated by the Company as confidential
(“Confidential Information”) is a valuable and unique asset of the Company’s
business, developed and perfected over considerable time and at substantial
expense to the Company. Consultant agrees that he will not divulge,
disclose, or communicate to anyone, directly or indirectly, either during the
term of his consulting or thereafter, any Confidential Information of any kind,
nature, or description. The parties hereto acknowledge that any
breach of the terms of this subsection is a material breach of this
Agreement.
(b) Surrender of Documents.
Upon termination of his consulting duties for any reason, Consultant
will immediately surrender to the Company all Confidential Information of the
Company in his possession, including all correspondence, written memoranda,
computer files, diagrams, books, records and notebooks, as well as any and all
other tangible Confidential Information, and all copies thereof, relating in any
way to the business of the Company, whether prepared by Consultant or by
others.
(c Non-Competition. Although
Consultant is free to accept other consulting engagements during the term of
this Agreement, Consultant will at all times devote reasonable time and effort
to the duties described in Section 2 above and Consultant expressly agrees that
during the term of his engagement by the Company he will not, without the prior
written consent of the Company, be interested or involved, directly or
indirectly. in any form, fashion, or manner, as a partner, officer, director,
stockholder owning or controlling in excess of ten percent (10%) of the
outstanding shares or equity, advisor, employee, consultant, agent, or in any
other form or capacity, in any other bank or financial institution in the
California counties of Marin, Sonoma or San Francisco.
(d) Non-Solicitation. During
the term of his consulting and for six months thereafter, Consultant agrees that
he will not, directly or indirectly, either for himself or for any other person,
firm, company or corporation (i) call upon, solicit, divert, or attempt to
solicit or divert business from any person, firm or corporation which was a
customer of the Company during Consultant's consulting with the Company or prior
employment with the Company or (ii) solicit or induce any of the Company's
employees to terminate their employment relationship with the Company, or any
subcontractor to terminate any business relationship with the Company, in either
case, for any reason.
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(e) Enforcement of Covenants.
If, at the time of enforcement of any of the provisions of this Agreement,
a court shall hold that the period, scope or geographical area of the
restrictions stated herein are unreasonable under the circumstances then
existing, the parties agree that the maximum period, scope or area reasonable
under such circumstances shall be substituted for the period, scope or area
stated herein, with respect to the enforcement of such provisions then at
issue.
10. Life
Insurance. Employer shall be entitled, at its expense
and for its benefit, to obtain life insurance with respect to Employee during
the Consultation Period, and Employee shall, to the extent requested by
Employer, cooperate with Employer in obtaining such coverage.
11. General Provisions.
(a) Payments. All
payments due to Consultant pursuant to the terms of this Agreement shall be
delivered in person or by electronic deposit as directed by Consultant in
writing, with the first payment due July 31, 2006.
(b) Assignability. This
Agreement is for the personal services of Consultant and as such is not
assignable by Consultant to or assumable by any other party without the consent
of the Company. The Company may assign this Agreement to any
successor in interest to the Company or to any other entity controlling,
controlled by or under common control with the Company or buy out the remaining
term of this Consulting Agreement.
(c) Notices. Any notices
to be given hereunder by either party to the other may be affected by either
personal delivery in writing, or by mail, registered or certified, postage
prepaid, with a return receipt requested. Mailed notices shall be
addressed to the other party to the address appearing beneath the party's
signature on this Agreement, but each party may change its address by written
notice in accordance with this Section 11(c). Notice delivered
personally shall be deemed communicated as of the date of delivery.
(d) Entire
Agreement. Consultant acknowledges receipt of this
Agreement and agrees that this Agreement represents the entire agreement with
the Company concerning the subject matter hereof.
(e) Severability. If any
provision of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions shall nevertheless
continue in full force without being impaired or invalidated in any
way.
(f)
No
Waiver. Either party's failure to enforce any provision
of this Agreement shall not in any way be construed as a waiver of any such
provision, or prevent that party from thereafter enforcing each and every other
provision of this Agreement.
(g) Applicable Law. This
Agreement shall be interpreted, construed, governed and enforced in accordance
with the laws of the State of California.
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(h) Amendments. No
amendment or modification of the terms of this Agreement shall be valid unless
in writing and signed by the parties thereto.
(i)
Arbitration. If a
dispute or controversy arises regarding the performance of either party under
the terms of this Agreement or regarding the enforceability of any terms of this
Agreement, then the parties agree that such dispute or controversy shall be
resolved by binding arbitration in Marin County, California in accordance with
the Commercial Arbitration Rules of the American Arbitration Association or such
other rules or arbitrator as the parties mutually agree. A judgment
upon any decision of the arbitrator may be entered in any court having
jurisdiction thereof. The costs of the arbitration shall be borne
equally by the parties. The prevailing party in any such proceeding
shall be entitled to recover a sum equal to its reasonable attorneys' fees
incurred.
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/s/WRG
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/s/X.X.
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Consultant
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The
Company
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Initials
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Initials
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IN
WITNESS WHEREOF, this Consulting Agreement has been executed and delivered by
and on behalf of the parties hereto as of the first day above
written.
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THE
CONSULTANT
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THE
COMPANY
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BANK OF
MARIN
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/s/ W. Xxxxxx
Xxxxxxxx, Jr.
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By:
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/s/ Xxxxxx
X'Xxxxxxx Xxxxx
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X. Xxxxxx
Xxxxxxxx, Jr.
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Its:
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Chairman of
Board
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Address:
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000 Xx.
Xxxxxxx Xxxxxx
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Xxxxxx, XX
00000
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Address:
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00 Xxxxxx
Xxxx.
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Xxxxx Xxxxxx,
XX 00000
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