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EXHIBIT 10.5
CONSULTING AGREEMENT
This is a CONSULTING AGREEMENT ("Agreement") entered into as of March
3, l997 (the "Commencement Date"), by and between MegaBank of Arapahoe
("MegaBank") and First Fidelity Service Corp., a Colorado corporation
("Consultant"). The parties agree as follows:
1. Engagement. MegaBank hereby engages Consultant and Consultant
hereby accepts the engagement to provide the Services (as such term is defined
below) to MegaBank pursuant to the provisions of this Agreement.
2. Term. This Agreement shall become effective as of the
Commencement Date and shall expire on March 3, 1998 (the "Term"); provided,
that unless terminated earlier as provided below, this Agreement shall
automatically renew for an additional one-year period, and at the option of
MegaBank and Consultant, may thereafter be extended for further one-year
periods on the same basis.
3. Consultant's Responsibilities. Xxxxxxx X. Xxxxxxxxx
("Principal"), a principal of Consultant is expected to personally perform the
majority of the Services. Consultant shall perform the following services as
are requested by MegaBank from time to time (the "Services"): (i) evaluation
of acquisition of new potential bank sites; (ii) consultation and assistance
with negotiation of real estate and other acquisitions and/or sales; (iii)
evaluation, supervision and oversight of construction projects; and (iv)
evaluation, consultation and assistance with negotiation of complex loan and
work out transactions, and (v) any other services as reasonably requested by
MegaBank.
4. Compensation. MegaBank will pay Consultant $5,000.00 per
month, pro rated for any partial months ("Compensation") for Consultant's
performance of the Services, which amount has been computed based upon an
assumption of the average number of hours Consultant will spend on a monthly
basis performing the services. If during any mouth, the Services which
Consultant performs require time in excess of the average hours which it
normally expends in rendering of the Services, it may xxxx MegaBank at an
agreed upon hourly rate for the additional time incurred. Payment of the
Compensation to Consultant shall be paid by MegaBank oil a monthly basis.
MegaBank shall also reimburse Consultant for Consultant's reasonable travel
expenses for travel approved in advance by MegaBank and any other reasonable
out-of-pocket expenses submitted from time to time with proper substantiation.
5. INDEPENDENT CONTRACTOR. MEGABANK AND CONSULTANT ACKNOWLEDGE
THAT PRINCIPAL IS A SHAREHOLDER OF MEGABANK AND SITS ON ITS BOARD OF DIRECTORS
OF DIRECTORS AND LOAN COMMITTEE. HOWEVER, THE PERFORMANCE OF THE SERVICES IN
ACCORDANCE WITH THIS CONSULTANT AGREEMENT ARE NOT RELATED TO OR IN ANY WAY
CONNECTED WITH PRINCIPAL'S OTHER POSITIONS AND CAPACITY AS A SHAREHOLDER, BOARD
MEMBER AND LOAN COMMITTEE MEMBER OF MEGABANK. IN CONNECTION WITH PERFORMANCE
OF THE SERVICES, CONSULTANT IS AN INDEPENDENT CONTRACTOR AND IS NOT AN
EMPLOYEE, MEMBER, DIRECTOR OR OFFICER OF MEGABANK. CONSULTANT SHALL PAY ALL
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FEDERAL, STATE AND OTHER INCOME TAXES DUE ON THE COMPENSATION RECEIVED UNDER
THIS AGREEMENT. WHILE THIS AGREEMENT IS IN EFFECT, MEGABANK SHALL PAY NO
AMOUNTS ON ACCOUNT OF CONSULTANT FOR PURPOSES OF SOCIAL SECURITY, UNEMPLOYMENT
INSURANCE, OR FEDERAL OR STATE WITHHOLDING TAXES AND MEGABANK SHALL NOT PROVIDE
ANY OTHER CONTRIBUTIONS OR BENEFITS FOR CONSULTANT WHICH MIGHT BE EXPECTED IN
AN EMPLOYER-EMPLOYEE RELATIONSHIP.
6. Termination.
a. Termination if no Default. This Agreement may be
terminated by either party by 30 days written notice given to the
other party at any time for any reason (other than a Default).
b. Termination in the event of Default. Either of the
following events are sometimes referred to as a "Default" and this
Agreement may be terminated at any time following a Default and the
giving of 10 days written notice specifying the nature of the Default.
The defaulting party may elect to cure the Default within 10 days
following receipt of the Default Notice to cure the Default. If the
Default is not cured within said 10-day period, this Agreement will
automatically terminate.
(i) Insolvency. In the event a petition in
bankruptcy is filed by or against Consultant, or in the event that either party
shall make an assignment for the benefit of creditors or seek protection or
otherwise avail itself or himself of any insolvency laws.
(ii) Breach. Breach by either party of any of the
undertakings or agreements set forth herein.
In the event of any termination of this Agreement, and except for the
pro rata Compensation due to Consultant as of the date of termination which
shall be paid pursuant to the terms of this Agreement, all other terms of this
Agreement shall
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not survive any such termination and the parties hereto shall be relieved of
their respective obligations hereunder.
7. General.
a. Assignment. This Agreement and all rights hereunder shall be
assignable by MegaBank, to another entity or person, in its sole and exclusive
discretion. Consultant shall have no right to assign this Agreement or any
rights and obligations hereunder, except to another entity in which Principal
is a controlling party, it being expressly understood and agreed that MegaBank
is relying on Principals direct involvement in the performance of the Services.
b. Notices. All notices provided for in this Agreement shall be
in writing and shall be either delivered personally or mailed by United States
registered or certified mail, return receipt requested, postage prepaid, at the
addresses set forth below or at such other addresses as Consultant or MegaBank
may specify thereafter in writing.
c. Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, such holding shall in no way
affect any other provision of this Agreement, which shall remain in full force
and effect as if such provision held to be invalid had never been included
herein.
d. Parties Bound. The rights and obligations of MegaBank and
Consultant under this Agreement shall inure to the benefit of and shall be
binding upon their successors.
e. No Waiver. No waiver of any provision of or default under
this Agreement shall affect the right of MegaBank or Consultant thereafter to
enforce said provision or to exercise any right or remedy in the event of
another default, whether or not similar.
f. Captions. The captions throughout this Agreement are for
convenience only, and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or meaning
of this Agreement.
g. Mediation. In the event that a dispute arises between the
parties hereto concerning the provisions of this agreement or any other matter
relating to this agreement, the parties agree to enter into mediation in good
faith in an attempt to resolve all disputes prior to proceeding to litigation
or arbitration. Such mediation shall be binding upon the parties, and shall be
conducted by a mutually agreed upon independent and qualified mediator and
shall be conducted in the Denver, Colorado metropolitan area. The parties
shall share the cost of the mediator. If the parties are unable to agree on a
mediator within thirty (30) days after the request for mediation by either
party, then either party may apply to the chief or presiding judge of the
District Court of Arapahoe County, Colorado or the United States District Court
of Colorado, for the appointment of a mediator.
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h. Attorneys' Fees. If either MegaBank or Consultant is required
to commence an action or proceeding against the other in order to enforce the
provisions hereof, the prevailing party therein shall be entitled to recover
all reasonable costs and expenses incurred in connection therewith, including
reasonable attorneys' fees.
i. Amendments. All amendments or modifications to this Agreement
shall be in writing and signed by the parties hereto.
j. Governing law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
k. Entire Agreement. This Agreement represents the entire
agreement between the parties as to the subject matter hereof and supersedes
all prior and contemporaneous negotiations, agreements, representations and
understandings.
IN WITNESS WHEREOF, the parties have executed this Consulting
Agreement as of the day and year first above written.
MEGABANK OF ARAPAHOE
By: /s/ Xxxxx X. Xxxxx
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Title: President
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0000 X. Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
FIRST FIDELITY SERVICE CORP.,
a Colorado corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, its President
0000 X. Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
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STATE OF COLORADO )
) ss.
COUNTY OF ARAPAHOE )
The foregoing instrument was acknowledged before me this 1st day of
March, 1997, by Xxxxx X. Xxxxx as President on behalf of MegaBank of Arapahoe.
Witness my hand and official seal.
My commission expires 12/16/99.
/s/ Xxxxxx X. Park
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Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF ARAPAHOE )
The foregoing instrument was acknowledged before me this 1st day of
March, 1997, by Xxxxxxx X. Xxxxxxxxx as President on behalf of First Fidelity
Service Corporation, a Colorado corporation.
Witness my hand and official seal.
My commission expires: 12/16/99.
/s/ Xxxxxx X. Park
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Notary Public
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