Consulting and Non-Executive Chairman Agreement, dated January 24, 2020, by and between AAC Holdings, Inc. and Michael Cartwright
Exhibit 10.2
CONSULTING AND NON-EXECUTIVE CHAIRMAN AGREEMENT
This CONSULTING AND NON-EXECUTIVE CHAIRMAN AGREEMENT (this “Agreement”), dated as of January 24, 2020, is made and entered into by and between AAC Holdings, Inc. (the “Company”) and Michael Cartwright (the “Consultant”).
WITNESSETH:
WHEREAS, the Consultant desires to retire as Chief Executive Officer of the Company but continue to serve as Chairman of the Company’s Board of Directors (the “Board”), effective as of January 24, 2020 (the “Effective Date”), and to provide consulting services to the Company following the Effective Date on the terms set forth herein; and
WHEREAS, the parties desire to enter into this Agreement and to set forth their respective rights and obligations regarding the Consultant’s consulting arrangement and service as Chairman of the Board.
NOW, THEREFORE, in consideration of the premises and the agreements of the parties set forth in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. Resignation. The Consultant hereby resigns as Chief Executive Officer of the Company as of the Effective Date. Other than as set forth in this Agreement, the Consultant’s employment and all other relationships with the Company and its affiliates and subsidiaries of the Company (the “Subsidiaries”) shall cease as of the Effective Date. The Consultant agrees to resign as a sole member, sole manager, manager and/or director of any and all of the Subsidiaries and as an officer of any such Subsidiaries. Further, the Consultant agrees to cooperate with the Company, as set forth in Section 14, in filling such vacancies and/or electing and qualifying the Consultant’s successor for each of the subsidiaries. The Consultant and the Company hereby agree and confirm that he is not resigning from the Board and shall continue to serve as Chairman of the Board on the terms set forth herein.
2. Chairman of Board.
(a) The Company hereby retains the Consultant to serve as Chairman of the Board. The Consultant shall perform such duties and responsibilities as are normally related to such position, including but not limited to facilitating communications among the Company and the Board and executive management, and the Consultant hereby agrees to use his best efforts to provide such services (the “Chairman Services”). The Consultant shall comply with the statutes, rules, regulations and orders of any governmental or quasi-governmental authority, which are applicable to the performance of the Chairman Services, and the Company’s rules, regulations, and practices as they may from time-to-time be adopted or modified.
1
(b) The Consultant may be employed by another company, may serve on other boards of directors or advisory boards, and may engage in any other business activity (whether or not pursued for pecuniary advantage), as long as such outside activities do not violate the Consultant’s obligations under this Agreement, including but not limited to Sections 6 and 8, or the Consultant’s fiduciary obligations to the Company’s stockholders.
(c) The Consultant shall serve as Chairman of the Board of Directors at the pleasure of the Board. For the avoidance of doubt, the Consultant may be removed as Chairman of the Board at any time, either with or without cause, by the affirmative vote of a majority of the directors of the Board in office at the time.
3. Consulting.
(a) On the Effective Date, the Company agrees to retain the Consultant as a senior level consultant to provide the services described herein from the Effective Date until the second anniversary of the Effective Date (the “Consulting Period”).
(b) The Consultant shall provide the following consulting services to the Company (the “Consulting Services”):
| (i) | Assist management in developing the Company’s strategy and business plan for presentation to and approval by the Board; |
| (ii) | Assist management in identifying business opportunities for the Company; |
| (iii) | Assist management in identifying strategic relationships and further developing the Company’s brand; and |
| (iv) | Such services as may reasonably be requested by the Company’s Chief Executive Officer or Board from time to time. |
(c) The Consulting Services will be performed at such times as are reasonably requested by the Company after reasonable consultation with the Consultant. The Consultant shall provide the Consulting Services in such location as may be reasonable and convenient to the Consultant; provided that the Consultant may be required to travel in connection with his performance of the Consulting Services as reasonably requested by the Company.
4. Compensation. The Consultant shall, as of the Effective Date, be entitled to receive the following from the Company:
(a) For the performance of the Consulting Services (the “Consulting Fees”):
| (i) | For the period commencing as of the Effective Date through and including January 31, 2020, Consulting Fees shall be $22,575, payable upon execution of this Agreement; |
2
| (ii) | For the month of February, 2020, $ 100,000; |
| (iii) | For the months of March 2020 through July 2020, $75,485 per month, and |
| (iv) | Commencing August, 2020 and for each month thereafter for the remaining term of this Agreement, $50,000 per month (except the last month shall be prorated consistent with the amount provided herein). |
The amounts outlined in (ii) through (iv) shall be payable on the first business day of each applicable calendar month.
(b) As a fee for service on the Board and as Chairman of the Board, $250,000 per year (“Chairman Compensation”). The Chairman Compensation shall be paid in four quarterly installments of $62,500, payable on the last business day of each calendar quarter. The compensation in this subsection (b) shall be in lieu of all other Board cash compensation; provided, however, that the Consultant shall be entitled to any equity compensation otherwise payable to Board members in connection with their service on the Board. To the extent that any termination of services occurs mid-calendar quarter, said Chairman Compensation shall be prorated for that calendar quarter.
(c) All reasonable and necessary business expenses incurred by the Consultant in the performance of the Consulting Services and Chairman Services shall be promptly reimbursed by the Company in accordance with the Company’s standard expense reimbursement policies.
5. Status. The Consultant acknowledges and agrees that his status at all times during the Consulting Period shall be that of an independent contractor. This Agreement shall not be construed to create any association, partnership, joint venture, employee or agency relationship between the Consultant and the Company for any purpose, other than as set forth in this Agreement. Neither party has authority (and shall not hold himself or itself as having authority) to bind the other party. Neither party shall make any agreements or representations on the other party’s behalf without the other party’s prior written consent. Subject to the foregoing, the Consultant will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by the Company to its employees, and the Company will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining workers’ compensation insurance on Consultant’s behalf.
3
6. Non-Competition & Non-Solicitation Restrictions. During the Consulting Period or for so long as Consultant Serves as the Chairman of the Board, the Consultant shall not, directly or indirectly, do any of the following:
| (a) | engage in any activities, whether as an employer, partner, director, officer, employee, agent, independent contractor, consultant, salesperson, or any other capacity in competition with the Company within the contiguous United States; or |
| (b) | solicit or attempt to solicit any employee, independent contractor, director, agent or other service provider of the Company or of any of its divisions, subsidiaries or affiliates to terminate his, her or its relationship with the Company or such affiliate. |
For purposes hereof, “affiliate” shall mean any entity which, directly or indirectly, controls or is controlled by, or is under common control with the Company.
7. Non-Disparagement. The Consultant agrees and covenants that the Consultant will not at any time make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning the Company or its businesses, or any of its employees, officers, directors, and existing and prospective clients, customers, suppliers, investors and other associated third parties. This Section 7 does not, in any way, restrict or impede the Consultant from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order. The Consultant shall promptly provide written notice of any such order to the Company. The Company agrees and covenants that it shall direct its officers and directors to refrain from making any defamatory or disparaging remarks, comments, or statements concerning the Consultant.
8. Confidentiality. Without the express written consent of the Company, the Consultant shall not at any time (either during or after the termination of the Consulting Services) use (other than for the benefit of the Company) or disclose to any other business entity proprietary or confidential information concerning the Company, any of their affiliates, or any of its officers. The Consultant shall not disclose any of the Company’s or the Company’s affiliates’ trade secrets or inventions of which Consultant has gained knowledge during his employment with the Company. This paragraph shall not apply to any such information that: (1) the Consultant is required to disclose by law; (2) has been otherwise disseminated, disclosed, or made available to the public, provided that, such disclosure is through no direct or indirect fault of the Consultant or person(s) acting on the Consultant’s behalf; or (3) was obtained after his employment with the Company ended and from some source other than the Company, which source was under no obligation of confidentiality
9. Effect of Breach by Consultant. The Consultant agrees that a breach of any obligation in Sections 6, 7, or 8, the Company shall be entitled, in addition to any other right or remedy available to it (including, but not limited to, an action for damages), to a temporary or permanent injunction or other equitable relief restraining such breach or a threatened breach and to specific performance of such provisions, and the Consultant hereby consents to the issuance of such injunction and to the ordering of specific performance or other equitable relief, without the necessity of showing any actual damages, and without the requirement of the Company to post any bond or other security.
4
10. Termination of Consulting Services. This Agreement shall terminate upon the following circumstances:
| (a) | Termination Without Cause. Both the Consultant and the Company may terminate the Consulting Services under this Agreement at any time for any reason, no reason, or without cause by providing at least sixty (60) days prior written notice to the other and subject to the provisions of this Agreement. It is expressly understood that the Consultant’s employment is strictly “at will.” |
| (b) | Termination for Cause. This Agreement may be terminated at any time by the Company for Cause. “Cause” for this purpose shall mean and be strictly limited to the following: |
| (i) | Consultant’s willful failure to perform the Consultant’s duties (other than any such failure resulting from Disability as defined herein); |
| (ii) | Consultant’s willful failure to comply with any valid and legal directive of the Board; |
| (iii) | Commission of any material act of fraud or dishonesty by the Consultant against the Company or its affiliates; |
| (iv) | Consultant’s conviction of or plea of guilty or nolo contendere to a crime that constitutes a felony (or state law equivalent) or a crime that constitutes a misdemeanor involving moral turpitude; |
| (v) | Consultant’s embezzlement, misappropriation, or fraud, whether or not related to the Consultant’s employment with or engagement by the Company; |
| (vi) | Consultant’s material violation of the Company’s written policies or codes of conduct, including but not limited to written policies related to discrimination, harassment, performance of illegal or unethical activities, and ethical misconduct; or |
| (vii) | Any material breach of any provision of this Agreement, which the Consultant fails to cure within fifteen (15) days of the Consultant’s receipt of written notice thereof. |
5
| (c) | Termination Upon Death/Disability. This Agreement may be terminated by the Company upon the Consultant’s death or Disability. “Disability” shall mean Employee is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months; or is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees or directors of the Company. |
| (d) | Effect of Termination. |
| (i) | If the Consultant’s employment is terminated by the Company for Cause, or if the Consultant resigns, the Company shall pay the Consultant’s compensation only through the last day of the period during which the Consultant is employed by the Company and, except as may otherwise be expressly provided in this Agreement or in any Benefit Plan, the Company shall have no further obligation to Employee. |
| (ii) | If the Consultant’s employment is terminated by the Company other than for Cause, including any discharge without Cause, liquidation or dissolution of the Company, or a termination caused by death or Disability, the Company will pay the Consultant (or his estate) the Consulting Fees within 60 days, in one lump sum, due and owing and otherwise payable through the end of the Consulting Period, and any expenses owing for periods prior to and including the date of termination of the Consulting Services. |
| (iii) | For the avoidance of doubt, the termination of the Consulting Services hereunder shall in no way effect the Consultant’s Chairman Services, provided that the Consultant remains eligible to serve as Chairman of the Board pursuant to Section 2. |
| (e) | Effect of Termination of Board Service. Notwithstanding anything contained in this Agreement, if the Consultant is not reappointed to a position on the Board, such event will not act as a termination or breach of the Consulting Agreement by the Company. |
11. Assignability. The Consultant may not assign or transfer this Agreement or any of the Consultant’s rights, duties or obligations hereunder. The Company may assign this Agreement to any person or entity acquiring all or substantially all of the assets (by merger or otherwise) of the Company so long as such person, entity or affiliate assumes the Company’s obligations hereunder.
12. Severability. If any one or more of the provisions of this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions and other application thereof shall not in any way be affected or impaired.
6
13. Applicable Law. This Agreement and any disputes arising out of or related to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Tennessee applicable to contracts made and to be performed entirely therein, without giving effect to its conflicts of laws principles or rules, to the extent such principles or rules would require or permit the application of the laws of another jurisdiction. Should any litigation, arbitration or other proceeding be commenced between the parties concerning the rights or obligations of the parties under this Agreement, the prevailing party shall be entitled to its or his reasonable sum as and for his attorneys’ fees in such proceeding.
14. Cooperation. The parties agree that certain matters in which the Consultant will be involved in related to this Agreement and during the Consulting Period may necessitate the Consultant’s cooperation in the future. Accordingly, following the execution of this Agreement and the termination of the Consulting Services for any reason, to the extent reasonably requested by the Board, the Consultant shall cooperate with the Company in connection with matters arising out of the Agreement and the Consulting Services; provided that, the Company shall make reasonable efforts to minimize disruption of the Consultant’s other activities. The Company shall reimburse the Consultant for reasonable expenses incurred in connection with such cooperation and shall pay the Consultant a mutually agreed upon reasonable hourly fee in connection with activities which are performed by Consultant hereunder.
15. Legal Fees. Within 5 days following the Effective Date, the Company shall reimburse the Consultant for all legal and other professional fees actually and reasonably incurred by the Consultant in connection with the negotiations and preparations of this Agreement up to a maximum of $25,000.
16. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, all of which shall together constitute one and the same Agreement. One or more counterparts of this Agreement may be delivered by facsimile or photographic copy of the signed counterpart, with the intention that delivery by such means shall have the same effect as delivery of an original counterpart thereof.
17. Notices. All notices required or permitted under this Agreement shall be in writing, may be made by personal delivery or facsimile transmission, effective on the day of such delivery or receipt of such transmission, or may be mailed by registered or certified mail, effective two (2) days after the date of mailing, addressed as follows:
| To the Company: | AAC Holdings, Inc. | |
| 200 Powell Place | ||
| Brentwood, TN 37027 | ||
| Attn: Chief Executive Officer |
7
| With a copy to: | Greenberg Traurig, LLP | |
| Attn: David Kurzweil | ||
| 3333 Piedmont Road NE | ||
| Suite 2500 | ||
| Atlanta, Georgia 30305 | ||
| Email: ***@*** | ||
| or such other person or address as designated in writing to the Consultant. | ||
| To Consultant: | Michael Cartwright, in person, or at his known residence address, or to such other address as designated by him in writing to the Company | |
18. Waiver, Modification, and Interpretation. No provisions of this Agreement may be modified, waived, or discharged unless such waiver, modification, or discharge is agreed to in a writing signed by the Consultant and an appropriate officer of the Company empowered to sign the same by the Board. No waiver by either party at any time of any breach by the party of, or compliance with, any condition or provision of this Agreement to be performed by the other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same time or at any prior to subsequent time. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of Tennessee. Except as provided in, any action brought to enforce or interpret this Agreement shall be maintained exclusively in the state and federal courts located in Nashville, Tennessee.
19. Interpretation. The headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of any provision of this Agreement. No provision of this Agreement shall be interpreted for or against any party hereto on the basis that such party was the draftsman of such provision; and no presumption or burden of proof shall arise disfavoring or favoring any party by virtue of the authorship of any of the provisions of this Agreement.
20. Invalidity of Provisions. If a court of competent jurisdiction shall declare that any provision of this Agreement is invalid, illegal, or unenforceable in any respect, and if the rights and obligations of the Parties to this Agreement will not be materially and adversely affected thereby, in lieu of such illegal, invalid, or unenforceable provision the court may add as a part of this Agreement a legal, valid, and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision as is possible. If such court cannot so substitute or declines to so substitute for such invalid, illegal, or unenforceable provision, (i) such provision will be fully severable; (ii) this Agreement will be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof; and (iii) the remaining provisions of this Agreement will remain in full force and effect and not be affected by the illegal, invalid, or unenforceable provision or by its severance herefrom. The covenants contained in this Agreement shall each be construed to be a separate agreement independent of any other provision of this Agreement, and the existence of any claim or cause of action of the Consultant against the Company, predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of any of said covenants.
8
21. Entire Agreement; Amendment. This Agreement constitutes the full and complete understanding and agreement of the parties hereto with respect to the Consultant’s retirement and engaging the Consultant as a consultant to the Company on the Effective Date. This Agreement may not be changed or amended orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.
[Signatures contained on following page.]
9
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the day and year first above written.
| AAC HOLDINGS, INC. | ||
| By: | /s/ Andrew W. Mcwilliams | |
| Name: | Andrew W. Mcwilliams | |
| Title: | Chief Executive Officer | |
| By: | /s/ Michael Cartwright | |
| Name: | Michael Cartwright | |
10
