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Exhibit
10.3
TABLE OF
CONTENTS
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Page
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ARTICLE I
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DEFINITIONS |
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1 |
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ARTICLE II
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PROVISION
OF SERVICES |
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2 |
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Section 2.1
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Provision of Services
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2 |
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Section 2.2
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Standards for Performance of Services
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3 |
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Section 2.3
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Personnel and Resources
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3 |
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Section 2.4
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Engagement of Third-Party Providers
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3 |
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Section 2.5
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Use of Services
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3 |
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Section 2.6
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Access
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3 |
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Section 2.7
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Other Activities
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4 |
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Section 2.8
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No Obligation on Part of Company
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4 |
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ARTICLE III
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ENDURANCE
PERSONS |
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4 |
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Section 3.1
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Relationship
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4 |
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Section 3.2
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Non-Solicitation
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4 |
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Section 3.3
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Non-Solicitation by Endurance
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4 |
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ARTICLE IV
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PAYMENT |
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5 |
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Section 4.1
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Services
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5 |
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Section 4.2
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Third Party Expenses
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5 |
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Section 4.3
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Taxes
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5 |
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Section 4.4
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Payment
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5 |
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Section 4.5
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Documentation
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5 |
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ARTICLE V
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TERM AND
TERMINATION |
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5 |
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Section 5.1
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Consulting Term
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5 |
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Section 5.2
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Termination Upon Breach
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6 |
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Section 5.3
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Effect of Termination
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6 |
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ARTICLE VI
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LIABILITIES |
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6 |
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Section 6.1
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Disclaimer of Warranty
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6 |
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Section 6.2
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Limitation of Liability
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6 |
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Section 6.3
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Consequential and Other Damages
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6 |
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Section 6.4
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Force Majeure
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7 |
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Section 6.5
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No Liability for the Company or Third-Parties
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7 |
-i-
TABLE OF
CONTENTS
(continued)
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Page
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Section 6.6
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Indemnification
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7 |
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ARTICLE VII
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CONFIDENTIALITY |
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7 |
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Section 7.1
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Confidential Information
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7 |
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Section 7.2
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Confidentiality Obligations
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Section 7.3
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Exceptions
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8 |
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Section 7.4
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Remedies
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8 |
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ARTICLE VIII
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ENDURANCE’S REPRESENTATIONS AND WARRANTIES |
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9 |
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Section 8.1
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Due Incorporation, etc
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9 |
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Section 8.2
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Due Authorization
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9 |
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ARTICLE IX
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THE
COMPANY’S REPRESENTATIONS AND WARRANTIES |
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9 |
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Section 9.1
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Due Incorporation, etc
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9 |
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Section 9.2
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Due Authorization
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10 |
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ARTICLE X
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MISCELLANEOUS |
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10 |
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Section 10.1
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Amendment
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10 |
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Section 10.2
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Notices
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10 |
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Section 10.3
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Payments in Dollars
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11 |
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Section 10.4
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Waivers
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11 |
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Section 10.5
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Assignment
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12 |
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Section 10.6
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No Third-Party Beneficiaries
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12 |
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Section 10.7
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Severability
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12 |
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Section 10.8
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Entire Understanding
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12 |
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Section 10.9
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Relationship of Parties
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12 |
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Section 10.10
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Applicable Law
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12 |
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Section 10.11
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Joint Participation in Drafting
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12 |
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Section 10.12
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Arbitration
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12 |
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Section 10.13
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Interpretation
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14 |
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Section 10.14
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Counterparts
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14 |
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Section 10.15
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Facsimile or Electronic Signatures
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14 |
-ii-
EXECUTION
COPY
CONSULTING
AGREEMENT
This CONSULTING AGREEMENT
(this “ Agreement ”), dated as of this 6th day
of April, 2005 (the “ Effective Date ”), is by
and between The Peoples BancTrust Company, Inc., an Alabama
business corporation and bank holding company (the “
Company ”), and Endurance Capital Management Company,
L.P., a Delaware limited partnership (“ Endurance
”). The Company and Endurance are sometimes hereinafter
referred to individually as a “Party” and collectively
as the “Parties.”
WHEREAS, the Company desires
that Endurance provide Services (as defined below) to the Company
from time to time, and Endurance is willing to provide Services to
the Company, subject to the terms and conditions set forth
herein;
NOW, THEREFORE, in
consideration of the premises and mutual covenants, agreements and
provisions and subject to the terms and conditions set forth
herein, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this
Agreement, capitalized terms have the meanings specified
below.
“ Affiliate
” shall mean, with respect to any specified Person, any other
Person which, directly or indirectly, controls, is under common
control with, or is controlled by, such specified
Person.
“ Bank ”
shall mean The Peoples Bank and Trust Company, an Alabama banking
corporation.
“ Budget ”
shall have the meaning set forth in Section 2.1 hereto.
“ Business Day
” shall mean any day of the year other than (a) any Saturday
or Sunday or (b) any other day on which the Bank or banks located
in New York, New York are generally closed for business.
“ Company
” shall have the meaning set forth in the preamble
hereto.
“ Confidential
Information ” shall have the meaning set forth in
Section 7.1 hereto.
“ Effective Date
” shall have the meaning set forth in the preamble
hereto.
“ Endurance
” shall have the meaning set forth in the preamble
hereto.
“ Endurance
Person ” shall mean those employees and consultants of
Endurance and its Affiliates who are individuals, and are providing
or assisting in the providing of Services.
“ Exchange Act
” shall mean the Securities Exchange Act of 1934.
“ Force Majeure
Event ” shall have the meaning set forth in Section
6.4 hereto.
“ FRB ”
shall mean the Board of Governors of the Federal Reserve
System.
“ Governmental
Authority ” shall mean the government of the United
States or any foreign country or any state or political subdivision
thereof or any entity, body or authority exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, including any quasi-governmental entity
established to perform such functions.
“ Indemnified
Persons ” shall have the meaning set forth in Section
6.6 hereto.
“ Non-Solicitation
Period ” shall have the meaning set forth in Section
3.2 hereto.
“ Person ”
shall mean any individual, corporation, proprietorship, firm,
partnership, limited partnership, limited liability company, trust,
association or other entity, as well as any syndicate or group that
would be deemed to be a person under Section 13(d) of the Exchange
Act.
“ Services
” shall mean those investment banking and financial
consulting services that may be provided by Endurance to the
Company under this Agreement as agreed upon in writing by the
Parties.
“ Taxes ”
shall mean all taxes, charges, fees, duties, levies or other
assessments (including income, gross receipts, net proceeds, ad
valorem, turnover, real and personal property (tangible and
intangible), sales, use, franchise, excise, goods and services,
value added, stamp, user, transfer, fuel, excess profits,
occupational, interest equalization, windfall profits, severance,
payroll, unemployment and social security taxes) which are imposed
by any Governmental Authority, and such term shall include any
interest, penalties or additions to tax attributable
thereto.
“ Term ”
shall have the meaning set forth in Section 5.1
hereto
ARTICLE II
PROVISION OF
SERVICES
Section 2.1 Provision of
Services . From time to time during the Term, the Company may
request in writing that Endurance perform one or more of the
Services. Such request shall contain in reasonable detail the
description, scope and timeframe of the particular Services
requested to be performed. Upon receipt of such request, Endurance
will prepare a budget setting forth the fully-allocated costs, fees
and expenses (both internal and external) expected to be incurred
by Endurance or its Affiliates in providing the requested Services,
and a timetable for the provision of the requested Services (in
each such case, the “Budget” or a
“Budget”). Endurance will use commercially reasonable
efforts to provide, or will cause its Affiliates to use
commercially reasonable efforts to provide, to the Company the
Services so requested by the Company. At any time and from time to
time, Endurance shall notify the Company within 10 Business Days
after it determines, reasonably and in good faith, that the
requested Services cannot be provided for the cost or in accordance
with the timetable set forth in the Budget. Endurance and the
Company shall cooperate in good faith to alter the scope of the
Services or the Budget therefor or to take such other actions as
are necessary to enable Endurance to
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complete the provision of the requested
Services in a manner that is mutually satisfactory to Endurance and
the Company. Endurance will not be obligated to provide any
services other than the Services specifically set forth in each
such request.
Section 2.2 Standards for
Performance of Services . Endurance shall provide the Services
to the Company in the same manner and with the same level of
promptness, skill and care as which Endurance performs comparable
services for itself and other Persons. Endurance and its Affiliates
will provide the Services to the Company using substantially the
same systems and procedures used to provide comparable services to
itself and other Persons from time to time.
Section 2.3 Personnel and
Resources . The Company acknowledges that Endurance shall not
be required to devote its full time and attention to providing the
Services, but rather shall devote such time and attention, and
designate such individuals, as Endurance deems appropriate for the
performance of the Services. Endurance shall have no obligation to
assign any particular individuals to the task of performing
Services for the Company, and shall not be required to hire
additional personnel, engage additional third-party providers or
procure additional equipment or technology to provide the Services.
Endurance’s obligation to provide the Services is subject to
the continued availability of personnel, necessary third-parties,
equipment and technology used by Endurance in its current business
and to provide (or cause to be provided) similar services to itself
and other Persons, and, notwithstanding anything herein to the
contrary, Endurance may cease providing (or causing to be provided)
Services for which the third-party providers, third-party
equipment, third-party technology or third-party services used by
Endurance to provide such Services are no longer available upon
comparable terms as were available immediately prior to the
Effective Date. In the event that the Company and Endurance have
agreed to the provision of Services as contemplated by Article
II , Endurance shall use commercially reasonable efforts to
perform such Services within the Budget and timetable agreed to by
Endurance and the Company as such Budget and timetable may be
amended from time to time by the mutual agreement of Endurance and
the Company.
Section 2.4 Engagement of
Third-Party Providers . With the prior written consent of the
Company, and subject to Section 4.2 , Endurance shall be
able to engage such accountants, legal counsel, appraisers and
other third party advisers as Endurance shall deem necessary,
advisable or appropriate in connection with the performance of the
Services.
Section 2.5 Use of
Services . The Company will not resell any Services to any
third-party or otherwise use the Services in any way other than in
connection with the conduct of its own business.
Section 2.6 Access .
The Company will make available on a timely basis to Endurance or
its Affiliates all information and materials reasonably requested
by Endurance and its Affiliates to enable Endurance or its
Affiliates to provide the Services. The Company will give Endurance
and its Affiliates reasonable access, during regular business hours
and at such other times as are reasonably required, to the premises
and systems on which the Company conducts business to the extent
necessary for Endurance or its Affiliates to provide the
Services.
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Section 2.7 Other
Activities . Subject to the requirements of Article VII
, nothing in this Agreement shall prevent Endurance or any of its
Affiliates from engaging in any business (including business
activities competitive with those of the Company and its
Affiliates) or rendering services of any kind to itself or to any
other Person (including competitors of the Company and its
Affiliates).
Section 2.8 No Obligation
on Part of Company . It is expressly acknowledged, understood
and agreed that the Company shall have no obligation to engage
Endurance to provide any Services hereunder, and that this
Agreement shall in no way restrict or limit the right or ability of
the Company to engage any other Person to provide similar or
alternative services at any time during the term of this
Agreement.
ARTICLE III
ENDURANCE
PERSONS
Section 3.1
Relationship . The Company and Endurance agree that any
Endurance Persons providing Services shall be employees or
consultants of Endurance or its Affiliates and not of the Company.
The Company and Endurance further agree that, with respect to any
Endurance Person, without limiting this Article III and
Section 4.4 hereof, Endurance or its Affiliates shall have
sole responsibility for all matters relating to the maintenance of
personnel and payroll records, the withholding and payment of
federal, state and local income and payroll taxes, the payment of
workers’ compensation and unemployment compensation
insurance, salaries, wages and pension, welfare and other fringe
benefits and the conduct of all other matters relating to the
employment or engagement as a consultant of Endurance Persons.
Endurance or its Affiliates shall have sole responsibility for all
employment or consultant engagement decisions regarding Endurance
Persons. Neither the Company nor Endurance shall represent to any
third-party that any Endurance Person is an employee or consultant
of the Company.
Section 3.2
Non-Solicitation . The Company agrees that, during the
period beginning on the date hereof and ending on the date which is
three (3) years after the end of the Term (the “
Non-Solicitation Period ”), the Company shall not, and
shall not permit any of its Affiliates to, directly or indirectly,
hire as an employee or consultant, solicit for employment or a
consulting relationship, or encourage to leave his or her
employment or consulting relationship with Endurance or any
Affiliate of Endurance, any employee or consultant of Endurance or
any of its Affiliates who is involved in any way in the provision
of Services at any time during the Term; provided ,
however , that this Section 3.2 shall not apply to
(a) any employee or consultant who has been laid off by, or who has
been terminated by, Endurance or any Affiliate of Endurance (unless
such termination involves a simultaneous hiring of such employee or
consultant by Endurance or another Affiliate of Endurance) or (b)
any employee or consultant who has voluntarily resigned from his or
her employment or consulting relationship with Endurance or any
Affiliate of Endurance in accordance with the terms of his or her
employment or consulting agreement with Endurance or such Affiliate
and such resignation occurred more than twelve (12) months prior to
any such hiring, solicitation or encouragement.
Section 3.3
Non-Solicitation by Endurance . Endurance agrees that,
during the Non-Solicitation Period, Endurance shall not, and shall
not permit any of its Affiliates to, directly or
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indirectly, solicit for employment or a
consulting relationship, or encourage to leave his or her
employment or consulting relationship with the Company or any
Affiliate of the Company, any employee or consultant of the Company
or any of its Affiliates; provided, however, that this Section
3.3 shall not apply to (a) any employee or consultant who has
been laid off by, or who has been terminated by, the Company or any
Affiliate of the Company (unless such termination involves a
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