Exhibit 10.2
CONSULTING
AGREEMENT
THIS CONSULTING AGREEMENT
(“Agreement”) is made
and entered into by and between M. BURKE WELSH, JR. ("Consultant"),
and PAB BANKSHARES, INC. and THE PARK AVENUE BANK (the
“Companies”). Consultant and the
Companies are sometimes referred to together as the
“parties” or individually as a
“party.”
W I T N E S S E T
H:
WHEREAS , the Companies desire to retain Consultant to
provide certain services to the Companies, and Consultant desires
to provide such services to the Companies, all subject to the terms
and conditions set forth herein;
NOW THEREFORE , for and in consideration of the premises, the
mutual covenants and agreements contained herein, and for other
good and valuable consideration, the receipt, sufficiency and
adequacy of which are hereby acknowledged, the parties hereby agree
as follows:
1.
Engagement as an Independent Contractor
.
The Companies hereby agree to engage Consultant
as an independent contractor, and Consultant hereby accepts such
engagement as an independent contractor, upon the terms and
conditions set forth in this Agreement.
(a) The
term of this Agreement shall commence on April 6, 2009 and shall
expire on March 31, 2010 (“Term”), unless the Agreement
is terminated before the expiration of the Term pursuant to Section
2(b), (c), or (d) below.
(b) Notwithstanding
Section 2(a), if Consultant dies during the Term of this Agreement,
the Agreement shall terminate.
(c) Notwithstanding
Section 2(a), the Companies may terminate this Agreement at any
time with or without advance notice or cause by providing written
notice to Consultant.
(d) Notwithstanding
Section 2(a), Consultant may terminate this Agreement upon a
material breach by the Companies.
(e) Upon
termination of this Agreement by the Companies, Consultant shall be
entitled to payments in the amount, and under the terms, provided
in Section 5 below. Upon payment of such sums, the
Companies shall have no further obligations under this Agreement
except the obligations in Section 12 of this Agreement.
Subject to the terms and conditions set forth in
this Agreement, during the Term of this Agreement, Consultant shall
provide the following services (the “Services”) to the
Companies or their designated representatives:
Exhibit 10.2
(a) assist
with the Companies’ efforts to participate in certain
government-sponsored programs;
(b) assist
with the Companies’ interaction with various banking
regulators, including, but not limited to, the Georgia Department
of Banking and Finance and the Board of Governors of the Federal
Reserve System;
(c) assist
with the Companies’ relationships with its borrowers,
depositors, and other customers;
(d) assist
with the Companies’ efforts to reduce their level of
non-performing assets; and
(e) assist
the Companies with such services as they may reasonably request
from time to time.
Consultant shall provide the Services during the
Term of this Agreement at the request of the Companies, at an
average level of no more than eight (8) hours per
week. Additionally, during the Term of this Agreement,
Consultant agrees to take no actions that in any way damage the
public image or reputation of the Companies or their affiliates or
to knowingly assist, in any way, a competitor of the
Companies.
4.
Consultant as an Independent Contractor
.
In the performance of this Agreement, both
Consultant and the Companies will be acting in their own separate
capacities and not as agents, employees, partners, joint venturers
or associates of one another. It is expressly understood
and agreed that Consultant is an independent contractor of the
Companies in all manners and respects. The parties
further agree that:
(a) Consultant
is not authorized to bind the Companies to any liability or
obligation or to represent that Consultant has any such
authority.
(b) Consultant
may, at his own option, choose to perform his consulting services
as part of a single-member limited liability corporation or other
corporate entity.
(c) Consultant
may, at his option, obtain and maintain (at Consultant’s own
cost) any required insurance or other protection required for the
performance of the Services under this Agreement.
(d) Except
as provided in Section 5, Consultant shall be solely and
exclusively responsible and liable for all expenses, costs,
liabilities, assessments, maintenance, insurance, undertakings and
other obligations incurred by Consultant at any time and for any
reason as a result of this Agreement or the performance of the
Services by Consultant.
(e) Consultant
shall be solely and exclusively responsible for obtaining and
providing (at Consultant’s own cost) whatever computer,
training, software or other equipment Consultant believes is
necessary to complete the Services required under this
Agreement.
(f) Consultant
shall complete the Services required under this Agreement according
to Consultant’s own means and methods of work which shall be
in the exclusive charge and control of Consultant and which shall
not be subject to the control or supervision of Companies, except
as to the results of the work.
Exhibit 10.2
(g) Consultant
shall not be subject to the Companies’ employee personnel
policies and procedures. Except as a former employee of
the Companies, or pursuant to any Employment Termination Agreement
with the Companies, or as required by law, Consultant also shall
not be eligible to receive any employee benefits or participate in
any employee benefit plan sponsored by the Companies, including,
but not limited to, any retirement plan, insurance program,
disability plan, medical benefits plan or any other fringe benefit
program sponsored and maintained by the Companies for their
employees.
(h)
The Companies and Consultant acknowledge and agree that Consultant
shall not provide the Services to the Companies on a full-time
basis. Nothing in this Agreement shall prevent
Consultant from engaging in other activities for and on behalf of
other clients during the Term of this Agreement, provided that
those services (i) are not inconsistent or incompatible with
Consultant’s obligations under this Agreement, including
Section 6 of this Agreement, and (ii) do not violate the Employment
Termination Agreement between Consultant and the
Companies.
(a) As
payment for the Services rendered pursuant to this Agreement, the
Companies shall pay, and Consultant shall accept, a fee of one
hundred-fifty dollars ($150) per each hour that Consultant provides
the Services. The fee for any partial hour that
Consultant provides the Services shall be determined by multiplying
one hundred-fifty dollars ($150) by a fraction of which the
numerator is the number of minutes in the period and the
denominator is sixty (60).
(b) Consultant
shall be reimbursed by the Companies for reasonable business
expenses incurred in providing the Services, including mileage,
airfare, hotels, meals, and parking, in accordance with Section 20
below, provided that those expenses are approved by at least one of
the Companies in advance and Consultant submits receipts for those
expenses to the Companies in a timely manner.
(c) Consultant
shall invoice The Park Avenue Bank on a monthly basis for hours
worked and reimbursable expenses for the preceding
month. All invoices shall be directed to:
Attention: Donald J. Torbert
Payment to
Consultant for hours worked and reimbursable expenses shall be made
no later than 15 days after receipt of such invoice.
(d) Consultant
hereby acknowledges and agrees that Consultant shall be solely
responsible for all of Consultant’s withholding taxes, social
security taxes, unemployment taxes, and workers’ compensation
insurance premiums, if any. Consultant hereby agrees to
indemnify and hold harmless the Companies from any liability for,
and any and all federal, state and local taxes or assessments of
any kind arising out of or in connection with any fee paid by the
Companies to Consultant.
Exhibit 10.2
(a) For
purposes of this Agreement, the following terms shall have the
following respective meanings:
(i) “
Confidential Informatio
