Exhibit 10.21
CONSULTING AGREEMENT
Agreement made this 5th day of January, 2006 by and between AM&M Financial
Services, Inc., a corporation with offices at 179 Sully's Trail, Suite 200,
Pittsford, New York 14534 ("Parent"), Achzet Family Enterprises, Inc., a
corporation with offices at 9570 Cypress Hammock Circle, Suite 202, Bonita
Springs, Florida 34135 ("Consultant"). The principal of Consultant, Russell K.
Achzet ("Achzet"), is signing this Agreement for the purpose of binding himself
to the provisions of this Agreement that are expressly intended to be binding on
him personally.
WHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of
November 21, 2005 (the "Merger Agreement"), among Tompkins Trustco, Inc.
("Tompkins"), AM&M Merger Corp., Russell K. Achzet the principal of the
Consultant, and the other shareholders of Parent, Tompkins has acquired
ownership of Parent; and
WHEREAS, it is a condition to the Closing (as defined in the Merger
Agreement) that the Consultant shall have entered into this Consulting Agreement
(the "Agreement"); and
WHEREAS, Parent, on its own behalf and through other entities owned or
controlled by it (collectively the "Companies") is engaged in the business of
providing financial planning, tax compliance, money management, marketing of
insurance policies and annuity contracts, sales of securities and such other
businesses as may be designated by Parent; and
WHEREAS, the Consultant has experience in one or more of the foregoing
products and services; and
WHEREAS, the Consultant is willing to be retained by the Companies and the
Companies are willing to retain the Consultant on the terms and conditions
hereinafter set forth,
NOW, THEREFORE, and in consideration of the mutual promises, covenants and
conditions contained herein, the parties agree as follows:
1. Services. During the term of this Agreement, as set forth in
Section 8, Consultant shall provide the Companies with the services described in
Schedule A attached to and made part of this Agreement (the "Services").
Consultant shall perform the Services at such times and such places as may be
mutually agreed by Consultant and the President of the Parent, provided that
Consultant understands that time is of the essence in the execution of the
Parent's business plan and Consultant will perform the Services as expeditiously
as practicable. Consultant shall perform the Services in a manner consistent
with best industry practices and standards for similar professional consulting
work.
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2. Relationship of the Parties. Neither this Agreement nor the
relations between the parties hereto shall constitute or be deemed to be that of
a partnership, joint venture, or principal and agent relationship. It is
understood and agreed that Consultant is an independent contractor and that
Consultant shall perform the Services under the general direction of the Parent
as to the result of such activity, but that Consultant shall determine, in
Consultant's sole discretion, the manner and means by which the Services are
accomplished, subject to the express conditions that Consultant shall at all
times comply with applicable law. The Parent expressly acknowledges that it has
no right or authority to control the manner or means by which the Services are
accomplished. It is also expressly understood that Consultant is not an agent or
an employee of, and has no authority whatsoever to bind, any of the Companies,
by contract or otherwise.
3. Employment Taxes and Benefits. Consultant acknowledges and
agrees that it shall be the obligation of Consultant to report as
self-employment income all compensation received by Consultant pursuant to this
Agreement and Consultant agrees to indemnify the Parent and hold it harmless to
the extent of any obligation imposed by law on the Parent to pay any withholding
taxes, social security, unemployment or disability insurance or similar items as
a result of any payments made to Consultant by the Parent pursuant to this
Agreement.
4. Consultant's Time. Consultant shall make Achzet available to
perform all Services hereunder, at such times as may reasonably be required by
the Parent and agreed between the parties. Achzet will provide the Services as
requested by the Parent, with as few breaks in service as practicable (but
recognizing necessary vacation time), unless otherwise specified in a schedule
mutually agreed upon by the Parent and Consultant.
5. Other Assignments. Consultant (and Achzet) may perform
assignments for Achzet-Monaghan, Inc. d/b/a 457 Plan Service Group ("457") which
do not interfere with Consultant's performance of the Services hereunder,
provided that 457 continues to engage in substantially the same business it has
been engaged in.
6. Special Obligations and Duties. To the extent that Consultant
provides financial planning, financial consulting, money management, income tax
planning/preparation and similar services for one of the Companies, then
Consultant shall, in the rendering of the Services, comply in all respects with
the terms and conditions set forth in Schedule B, attached hereto and made a
part hereof.
7. Compensation and Expenses.
(a) Consultant shall be compensated by the Companies for
all services to be rendered pursuant to this Agreement, by payment to Consultant
as follows (the "Compensation"):
For the year Monthly Compensation
------------ --------------------
2006 $9,000
2007 6,500
2008 3,500
2009 3,500
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The Compensation shall be paid in accordance with the normal practices of each
of the Companies paying such Compensation. The Board of Directors of Parent
shall have the right to increase the Compensation from time to time.
Compensation payable hereunder shall be paid by such entity or entities
comprising the Companies as the Chief Executive Officer of Parent shall
determine.
(b) Consultant's reasonable expenses incurred for its
Services shall be reimbursed to Consultant upon submission of substantiation of
those expenses in accordance with the Parent's policies, and the Parent shall
provide reasonable administrative support services required in performing the
Services.
8. Term.
(a) This Agreement shall commence as of the date hereof and
shall, continue until terminated on or after January 1, 2010 or as otherwise
provided herein.
(b) Parent may terminate this Agreement immediately and
without notice upon the occurrence of any of the following, which shall
constitute "Cause": (i) Consultant's or Achzet's bankruptcy or involvement as a
debtor in proceedings for protection against creditors; (ii) discipline of
Consultant or Achzet by any regulatory authority, which is based on an express
finding in an adjudicative proceeding in which Consultant or Achzet had the
opportunity to be heard or by consent decree, that Consultant or Achzet acted
dishonestly or fraudulently, or loss or suspension for 90 days or more of
Consultant's or Achzet's license or registration required to engage in the
business of selling insurance or securities, or entry of an order by the
Securities and Exchange Commission barring Consultant or Achzet from being
associated with any registered investment advisor; (iv) Consultant or Achzet
engages in fraud, embezzlement, theft or any other crime involving moral
turpitude; or (v) Consultant's or Achzet's failure, in any material respect, to
comply with any terms or conditions of this Agreement or the Companies'
Policies, in each case after receipt of written notice and being furnished the
opportunity to cure.
(c) This Agreement shall terminate immediately upon
Consultant's dissolution or Achzet's death.
9. Confidentiality. During the term of this Agreement, Consultant
and Achzet will have access to and gain knowledge concerning various aspects of
the business of the Companies, particularly information concerning trade
secrets, trade information, business methods (including, but not limited to, the
multi-asset, multi-style, and multi-manager method of Wealth Management), sales
standards, processes and techniques, know-how, financial information, sales
prospects, customer lists, sponsor lists, marketing lists, properties,
investors, broker/dealers and sales persons of the Companies, and other valuable
and confidential information (the "Confidential Information"). Consultant and
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Achzet acknowledge that the Confidential Information is proprietary,
confidential, unique and valuable, and was developed by the Companies at great
cost over a long period of time and that its unauthorized disclosure or use
could cause irreparable losses to the Companies. Consultant and Achzet agree
that, except as required by Consultant's and Achzet's duties with the Companies,
Consultant and Achzet will not at any time use or disclose to any one, during or
after the term of this Agreement, any Confidential Information of the Companies.
10. Non-Solicitation. Except for actions allowed pursuant to
Section 5 above, Consultant and Achzet agree that for a period equal to five (5)
years after the Closing Date (as that term is defined in the Merger Agreement)
(the "Restricted Period"), Consultant and Achzet will not, directly or
indirectly, for himself/herself or for any other person, firm, partnership,
corporation or other entity: (i) solicit, cause or induce any client or customer
of the Companies or their affiliates to purchase services or products which
compete, directly or indirectly, with the products sold or services rendered by
any of the Companies or its affiliates (being defined for these purposes as any
companies acquired by one or more of them after the date hereof); (ii) provide
services or products which compete, directly or indirectly, with the products
sold or services rendered by any of the Companies or their affiliates, to any
person who was a client or customer of the Companies during the term of this
Agreement; (iii) do anything to cause, persuade or encourage anyone to reduce,
discontinue or terminate any contract, service or product of any kind whatsoever
furnished by any of the Companies or any of their affiliates; or (iv) do
anything to cause, persuade or encourage any employee of any of the Companies or
any of their affiliates to either terminate employment with such company or
affiliate or sell or solicit services or products on behalf of any other entity
which are competitive with the services or products rendered or sold by the any
of the Companies or their affiliates. This section is not applicable to
personally owned policies or investments, nor those of immediate family members
of Achzet. It is agreed that "solicit," "induce," "cause," "persuade," and
"encourage" do not include general advertising or the maintenance of a website
or similar form of communication.
11. Remedies.
1. Consultant and Achzet acknowledge and agree that all
restrictions contained in Sections 9 and 10 above are necessary and fundamental
to the protection of the business of the Companies and that a breach by
Consultant or Achzet of any covenant or provision contained therein would result
in damages to the Companies. Except as expressly provided in subsection 2 below,
in the event of any breach or threatened breach of this Agreement by Consultant
or Achzet, Parent and/or the Companies shall be entitled to an injunction
restraining such breach without showing or approving the actual damage sustained
or to be sustained. This remedy, and all other remedies provided in this
Agreement shall, except as otherwise expressly provided in subsection 2 below,
be cumulative and the exercise or non-exercise of this remedy shall not preclude
any other remedy at law or in equity. If any covenant or provision contained in
Section 9 or 10 is determined to be void and unenforceable in whole or in part,
the parties agree that it shall not affect or impair the enforceability or
validity of any other covenant or provision or any part thereof.
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2. Subject to Section 5 above, in the event that,
notwithstanding the provisions of Section 10 above, if Consultant or Achzet
renders services or sells competitive products to any customer or client of the
Companies after the termination of this Agreement and prior to the expiration of
the Restrictive Period, then Consultant or Achzet shall compensate the Companies
by paying the Companies on demand, the amounts set forth below. These amounts
will be payable if the Companies determine, in their sole discretion, to pursue
a claim for damages, rather than injunctive relief (or if any application for
injunctive relief is denied):
1. In the case of a client for which the Companies
have performed services for a period of twelve months or more as of
the date on which the Consultant or Achzet commences rendering such
services, an amount equal to:
(1) 100% of the gross fees billed to such
client by the Companies during the twelve month period immediately
preceding the date of termination of Consultant's employment with
the Companies, plus
(2) 100% of the average, annual product
commissions earned from such client, based on the twenty four month
period immediately preceding the date of termination; or
2. In the case of a client for which the Companies
have performed services for a period of less than twelve months as
of the date on which the Consultant commences rendering such
services, an amount equal to the greater of:
(1) 50% of the gross fees billed to such client
by Achzet, Consultant or his/its employer or any other person with
whom he/it is associated or affiliated, plus 50% of the product
commissions earned from such client, in each case during the twelve
month period beginning with the termination of the Consultant's
Agreement with the Companies; or
(2) Four times the total gross fee billings of
the Companies to such client.
It is agreed and acknowledged by the parties hereto that, because of the
speculative nature of computing lost business profits arising out of
Consultant's or Achzet's breach of the limitations contained in this Agreement,
the payment prescribed above is reasonable in amount, and shall constitute
liquidated damages, and is not a penalty in the event of such breach.
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12. Hold Harmless. Consultant shall indemnify and hold harmless
the Companies against any loss, damage, claim or proceeding arising from
Consultant's gross negligence or willful misconduct in connection with the
Services.
13. Miscellaneous.
(a) This Agreement and the schedules and exhibits attached
hereto constitute the entire agreement between the parties with respect to the
Consultant and supersedes any previous agreements. To the extent that any of the
terms and conditions of this Agreement may be inconsistent with the terms and
conditions of any agreement that Consultant and Achzet may have with any
insurance company with which any of the Companies is licensed, then the terms
and conditions of that other agreement shall control with respect to such
matter. The exception to this provision is that all renewal/service fees from
policies sold on leads generated from activities of any of the Companies shall
belong to the Companies. Consultant and Achzet agree to cooperate with the
Companies in assigning the renewal/service fees to the Companies, if they have
been written in Consultant's or Achzet's name.
(b) This Agreement may be amended only in writing signed by
the parties hereto.
(c) All notices hereunder shall be in writing and delivered
or mailed to the addresses of the parties provided herein or as may be specified
in writing from time to time.
(d) In the event of any breach or threatened breach of this
Agreement by Consultant, Parent and/or the Companies shall, except as otherwise
expressly provided in Section 11, be entitled to an injunction restraining such
breach without showing or approving the actual damage sustained or about to be
sustained. This remedy, and all other remedies provided in this Agreement, shall
be cumulative and the exercise or non-exercise of this remedy shall not preclude
any other remedy at law or in equity.
(e) No waiver by any party or any of the Companies of any
right or privilege in the event of any default or failure of performance of
another party hereunder shall affect the waiving party's rights or privileges in
the event of a further default or failure of performance by another party.
(f) This Agreement shall be governed by the laws of the
State of Florida and the invalidity or unenforceability of any one provision of
this Agreement shall in no way affect the validity or enforceability of any
other provision. Any action or proceeding brought by either party against the
other arising out of or related to the Agreement shall be brought only in a
state court of competent jurisdiction located in the County of Monroe, State of
New York, or the Federal District Court for the Western District of New York
located in Monroe County, and the parties hereby consent to the personal
jurisdiction of said courts.
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(g) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, and to their respective heirs, executors,
administrators, successors and permitted assigns.
IN WITNESS WHEREOF, this Agreement has been executed as of the year and
date first above written.
AM&M FINANCIAL SERVICES, INC.
By: /s/ THOMAS J. ROGERS
Its: Vice President
ACHZET FAMILY ENTERPRISES, INC.
By: /s/ RUSSELL K. ACHZET
Its: President
Russell K. Achzet is signing this Agreement
in order to bind himself to the provisions
of this Agreement which are expressly
intended to be binding on him personally.
/s/ RUSSELL K. ACHZET
Russell K. Achzet
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SCHEDULE A - SERVICES
Consultant, through its principal Russell K. Achzet, shall provide the
Companies with the following Services, as requested and agreed to, in accordance
with the Consulting Agreement to which this Schedule A is attached:
>> Advice for such of Parent's Committees as Parent may request
>> Assistance, as requested and agreed, in providing financial
planning, financial consulting, money management, income tax
planning/preparation, and similar services for some clients of
the Companies
>> Assistance, as requested and agreed, in finding prospective
clients and building relationships for the Companies with
prospective and actual clients. In connection with this
obligation, and unless otherwise agreed in writing between the
parties, Achzet agrees to maintain his membership at Locust
Hill Country Club at least until December 31, 2009.
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SCHEDULE B - FINANCIAL PLANNING AND RELATED SERVICES
Services rendered pursuant to this Schedule B shall be rendered under the
supervision and control of AM&M Planners, Inc., herein (i.e., in this Schedule
B) called the "Company."
1. Fees. All fee revenue resulting from the performance of
services by Consultant hereunder on behalf of financial planning clients or on
behalf of the Company itself, including speaking honoraria, teaching fees,
salaries, etc., from and after the date hereof, shall be the sole property of
the Company and shall be paid directly to the Company or, if paid to Consultant,
shall be promptly remitted to the Company in the manner directed by the Company.
2. Compliance with Laws. Consultant shall comply with all rules
and regulations of any federal or state authorities that may apply to the
services rendered by Consultant. Any investment advisory agreement shall be
subject to the prior review and approval of the Company and shall comply as
necessary with the provisions of the Investment Advisors Act of 1940 (the "Act")
and the regulations promulgated thereunder. Consultant shall maintain in good
standing all professional licenses and memberships necessary for the performance
of services hereunder.
3. Obligations of the Associate upon Termination. Upon any
termination of this Agreement, Consultant agrees that Consultant and Achzet
will: (i) cease and desist any further development of financial planning on
behalf of the Company's clients; (ii) cooperate with the Company in its
continuing delivery of services to clients that Consultant or Achzet has
rendered services to hereunder; and (iii) consents to the continuing use of
Consultant's and Achzet's name and picture in any of the Company advertising or
materials for up to 6 months after such termination.
4. Maintenance of Records. Consultant hereby agrees to prepare
and maintain, at the offices of the Company and in conformity with any
requirements of the Company, books and records related to the services rendered
hereunder, which books and records shall comply with all applicable laws and
regulations, including by way of illustration, the Act and the regulations
promulgated thereunder.
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