FORM OF CONSULTING AGREEMENT
Exhibit
10.9
THIS
CONSULTING AGREEMENT (this “Agreement”), dated as of the ____ day of __________,
2008, is made by and among FIRST CLOVER LEAF FINANCIAL CORP., a Maryland
corporation (“Holding Company”), FIRST CLOVER LEAF BANK, FSB, a federal savings
bank (the “Bank”), and XXXX X. XXXXX, an individual with a principal residence
in the State of Illinois (“Consultant”).
Recitals
A. Holding
Company has entered into that certain Agreement and Plan of Merger (the “Merger
Agreement”), dated April 30, 2008, by and among Holding Company and Partners
Financial Holdings, Inc. (“Partners”) pursuant to which it is contemplated that
Partners will be acquired by Holding Company. Concurrently, Partners
Bank (“Partners Bank”) will be merged into Bank.
B. It
is a condition to Partners’ obligations under the Merger Agreement that Holding
Company cause the delivery of this Agreement to Partners.
C.
Consultant served as President and Chief Executive Officer of Partners and
Partners Bank prior to the Merger.
D. Holding
Company desires to have Consultant’s experience, expertise, services and advice
available to it and the Bank further desires to retain Consultant’s services to
assist in the transition of ownership and management following the merger of
Partners Bank into Bank by retaining Consultant as a consultant for the term
described in Section 1, subject to the terms and conditions of this Agreement,
and Consultant desires to serve Holding Company and Bank in such
capacity.
E. As
described in Sections 7 and 8 below, Holding Company desires that Consultant
avoid other business activities that may create a conflict, or the appearance of
a conflict between his role as a consultant to Holding Company and Bank and such
other activities, and Consultant desires to avoid creating a conflict or the
appearance of such a conflict.
F. Holding
Company and Consultant desire to set forth the terms of their agreement
concerning Consultant consulting services for Holding Company and Bank and the
restrictions of Consultant.
Agreement
NOW,
THEREFORE, in consideration of the foregoing and of the mutual promises herein
contained the receipt and sufficiency of which are hereby acknowledged, and as
an inducement material for Holding Company and Partners to engage in the Merger
the parties hereto agree as follows:
1. Engagement as
Consultant. Subject to the terms and conditions set forth
herein, effective as of the effective time (“Effective Time”) of the merger of
Partners Bank into Bank, the Bank hereby engages Consultant as a consultant and
advisor of the Bank to assist in the transition of ownership and management of
the Bank following the Merger and Consultant hereby accepts such engagement as a
consultant and advisor of the Bank. The term of this Agreement shall
commence on the Effective Time and shall continue for a term of 18 months (the
“Consulting Period”).
2. Duties of
Consultant.
(a) Consultant’s
duties as a consultant hereunder shall be to furnish to the Bank, on a regular
basis not to exceed 30 hours per week during regular business hours, subject to
the terms hereof, such advisory and consulting services in connection with the
business of the Bank as may from time to time be requested by the Chief
Executive Officer of the Bank after the Effective Time. The intent
hereof is to make the benefit of Consultant’s experience, abilities and
knowledge available to the Bank during the Consulting Period in order to assist
the transition of borrowing and depository relationships of Partners Bank to the
Bank.
(b) Consultant
shall make himself available, as an independent contractor, to render such
services on a reasonable basis. The Parties anticipate that
Consultant shall perform Consultant’s services on site at the Bank’s
facilities. The Bank shall provide reasonable office space, general
office supplies and such reasonable administrative staff support as requested by
Consultant. During the term of consultancy, Consultant shall be
reimbursed for all reasonable and necessary expenses incurred by him in
discharging his obligations hereunder, including but not limited to travel and
entertainment expenses and access to any athletic tickets possessed by the Bank;
provided such expenses are timely submitted and documented, in accordance with
the expense reimbursement policy of the Bank. Any additional or
unusual expenses or materials needed by Consultant in connection with the
performance of services hereunder shall be provided by the Bank but only if
approved in writing in advance by the Bank.
3. Independent Contractor
Status. It is hereby acknowledged and understood that
Consultant shall be an independent contractor. Nothing contained in this
Agreement shall be construed so as to create an employment relationship between
Consultant and Bank. Consultant will not be eligible for any pension,
bonus, vacation pay, sick pay, or other fringe benefits that Bank may provide to
its employees. All responsibility for the withholding of funds for
social security taxes, federal and state income taxes, or any other tax with
respect to Consultant’s services hereunder shall be the sole and absolute
obligation of Consultant.
4. Consulting
Fee. In consideration of the consulting services to be
rendered by Consultant throughout the Consulting Period, the Bank shall pay to
Consultant an annual rate of $175,000, paid monthly at such times as the Bank
shall determine. By virtue of Consultant’s status as an independent
contractor, all payments hereunder shall be made without any withholding for
federal income tax purposes and on an annual basis the Bank shall deliver an IRS
Form 1099 to Consultant.
5. Bonus. In
consideration of retention of borrowing and depository relationships of Partners
Bank as well as the generation of new and additional business for the Bank
during the
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Consulting
Period, the Bank shall pay bonuses upon such terms and subject to meeting such
goals as set forth in Appendix A, attached hereto and made a part hereof by this
reference.
6. Termination for disability
or death.
(a) The
Bank or Consultant may terminate this Agreement after having established
Consultant's Disability. For purposes of this Agreement, "Disability"
means a physical or mental infirmity that impairs Consultant's ability to
substantially perform his duties under this Agreement and that impairs
Consultant's ability to substantially perform his duties under this Agreement
for a period of ninety (90) consecutive days). The Board of the Bank
shall determine in good faith, based upon competent medical advice and other
factors that they reasonably believe to be relevant, whether or not Consultant
is and continues to be disabled for purposes of this Agreement. As a
condition to any benefits, the Board may require Consultant to submit to such
physical or mental evaluations and tests as it deems reasonably appropriate, at
the Bank's expense.
(b) In
the event of such Disability, Consultant's obligation to perform services under
this Agreement will terminate. In the event of such termination,
Consultant shall receive his Consulting Fee, as defined in Section 4, at the
rate in effect on the Date of Termination for a period of three (3) months
following the Date of Termination by reason of Disability.
(c) In
the event of Consultant's death during the term of this Agreement, this
Agreement shall terminate.
7. Covenant of
Confidentiality.
(a) Consultant
acknowledges that, in and as a result of Consultant’s engagement hereunder,
Consultant will be making use of, acquire knowledge of and/or add to
confidential or proprietary information relating to the Bank and its affiliates,
including, without limitation, the Bank’s lists of customers and accounts,
systems, procedures, policies, manuals, advertising, marketing plans, marketing
strategies, trade secrets, business plans, financial data, strategies, methods
of conducting business, price lists, formulas, processes, procedures, standards,
know-how, manuals, techniques, technology, confidential reports, and all other
information, knowledge, or data of any kind or nature relating to the products,
services, or business of the Bank or any subsidiary, parent or other affiliate
of the Bank (collectively, “Confidential Information”), provided further that
the term Confidential Information in this Agreement shall be interpreted
coextensively with, and not broader than, the term “trade secret” as defined in
Section 2(d) of the Illinois Trade Secrets Act and coextensively with the
confidential obligations of bank employees and directors under federal banking
regulations. Consultant covenants and agrees that Consultant shall
not, at any time during or following the term of Consultant’s engagement by the
Bank, directly or indirectly, except in furtherance of the Bank’s business and
in accordance with the Bank’s policies, use, disseminate, divulge or disclose,
for any purpose whatsoever, any Confidential Information.
(b) Upon
termination of Consultant’s engagement by the Bank, whether such termination was
by Consultant or the Bank, all documents, records, notebooks, and similar
repositories of or documents containing any Confidential Information with
respect
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to
Holding Company, Bank, Partners or Partners Bank, including all existing copies
or extractions thereof, then in Consultant’s possession or in Consultant’s
control, whether prepared by Consultant or others, shall be the sole property of
the Bank. Upon termination, all documents, records, notebooks, and
similar repositories of or documents containing any Confidential Information,
including all existing copies, extractions thereof or renderings created
therefrom, shall be promptly returned to the Bank and all duplications retained
by Consultant in paper or electronic form shall immediately be
destroyed.
8. Restrictive
Covenant. Through Consultant’s engagement by the Bank,
Consultant will acquire additional and intimate knowledge about the customers,
financial data, price, and business negotiations and business techniques of the
Bank, as they may now exist or as they may be developed in the future.
Consultant acknowledges and agrees that pursuant to this Agreement Consultant
may perform services for firms, corporations, and other associations and
business enterprises and individuals, families, and trusts which Consultant may
solicit as clients and customers of the Bank (“Customers”), and in so doing, has
and will utilize the Bank’s ideas, techniques and expertise in establishing an
even greater rapport with such customers.
In order
to avoid the inadvertent disclosure of the Bank’s confidential matters, and as
consideration for all of the benefits provided to Consultant hereunder and in
further consideration of the Merger Consideration received by Consultant
pursuant to the Merger Agreement, Consultant hereby covenants and agrees
that:
(a) Noncompetition.
(i) During
Consultant’s Consulting Period with the Bank and for a period of two (2) years
after the termination of Consultant’s engagement by the Bank (the “Period”),
whether such termination is by the Bank or by the Consultant or is for any or no
reason, Consultant agrees that Consultant will not directly or indirectly
(whether as an owner, operator, employee, officer, director, manager,
consultant, agent, independent contractor, or otherwise) participate in the
ownership, management, financing, operation or control of, or be employed by any
bank, savings and loan, credit union, or other financial institution or provide
banking, lending, credit, or other services similar to those performed by the
Bank as of the Effective Time (the “Restricted Business”) within any city, town
or county of the State of Illinois in which Bank has an office or has filed an
application for regulatory approval to establish an office, throughout the terms
of this Agreement (the “Restricted Area”).
(ii) The
constraint set forth above in Section 5(a)(i) shall not prevent Consultant
from making passive investments, not to exceed 5% of the total equity ownership,
in any publicly traded enterprise engaged in the Restricted Business within the
Restricted Area, as measured by the date of investment by
Consultant.
(b) Nonsolicitation. Consultant
agrees that during the Period, Consultant shall not:
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(i) Directly
or indirectly (A) solicit for employment or attempt to hire any individual
then employed by Bank or any of the affiliated or related entities,
subsidiaries, holding companies, or otherwise of the Bank (the “Bank Related
Entities”) or any former employee employed by the Bank or Bank Related Entities
during the one-year period after such former employee has voluntarily terminated
his or her employment with the Bank or any of the Bank Related Entities, or
(B) encourage any employee of the Bank or any of the Bank Related Entities
to terminate his or her employment with the Bank or such Bank Related Entity for
any reason; or
(ii)
Directly or indirectly (A) solicit any Customer, client or
entity having a business relationship with the Bank or any affiliate or
subsidiary of the Bank, which is a prospect of the Bank or any affiliate or
subsidiary of the Bank that has had contact with the Bank or any affiliate or
subsidiary of the Bank during the Consulting Period, or which Consultant has
actively pursued on behalf of the Bank or any affiliate or subsidiary of the
Bank, or (B) contact any such Customer, client or prospect for the purpose
of encouraging such Customer, client or prospect to terminate its business
relationship with the Bank or any affiliate or subsidiary of the
Bank.
9. Reasonableness of
Restrictions.
(a) Consultant
has carefully read and considered the provisions of Sections 7 and 8 hereof
and, having done so, agrees that the restrictions set forth therein (including,
but not limited to, the time period of restriction and the geographical areas of
restriction set forth in Section 8 hereof) are fair and reasonable and are
reasonably required for the protection of the interests of the
Bank.
(b) Consultant
represents that Consultant’s experience, capabilities, and personal assets are
such that this Agreement does not deprive Consultant from either earning a
livelihood in the unrestricted business activities which remain open to
Consultant or from otherwise adequately and appropriately supporting Consultant
and Consultant’s family.
(c) In
the event that any of the provisions of Sections 7 and 8 shall be held to
be invalid or unenforceable, the remaining provisions shall nevertheless
continue to be valid and enforceable as though the invalid or unenforceable
parts had not been included therein. In the event that any provision
of Section 8 relating to time period and/or areas of restriction shall be
declared by a court of competent jurisdiction to exceed the maximum time period
or areas such court deems reasonable and enforceable, said time period and/or
areas of restriction shall be deemed to become and thereafter be the maximum
time period and/or areas which such court deems reasonable and
enforceable.
10. Delegation of Duties and
Assignment of Rights.
(a) Consultant
may not delegate the performance of any of Consultant’s obligations or duties
hereunder, or assign any rights hereunder. Any such purported delegation or
assignment shall
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be
void. The Bank may assign all of its rights and obligations under
this Agreement in writing, without prior notice to or consent of Consultant, to
a person or entity acquiring the principal assets used or useful in the
operation of the Bank’s business or portion thereof for which Consultant is
involved or stock of the Bank or otherwise gained control
thereof. Such assignment shall not be effective until such time as
the Bank provides written notice to Consultant of the assignment.
(b) In
the event of an assignment by the Bank, each reference in this Agreement to the
Bank shall include the assignee from and after the date of such
assignment. In the event the assignment occurs after a Change in
Control (as hereinafter defined) of the Bank, this Agreement shall remain in
full force and effect; provided, however, the Restricted Area shall remain as
defined immediately prior to the Change in Control. The term Change
in Control shall have the meaning as set forth in the Bank Holding Company Act
of 1956, as amended, and in the regulations promulgated thereunder.
11. Governing
Law. The construction and interpretation of this Agreement
shall at all times and in all respects be governed by the laws of the State of
Illinois.
12. Severability. The
provisions of this Agreement shall be deemed severable, and the invalidity or
unenforceability of any one or more of the provisions hereof shall not affect
the validity and enforceability of the other provisions hereof.
13. Notices. Any
notice required to be given hereunder shall be sufficient and deemed given when
in writing, and sent by certified or registered mail, return receipt requested,
first-class postage prepaid, or by courier service, to the parties hereto at the
addresses set forth on the signature page hereto.
14. Remedies. Consultant
acknowledges and agrees that a breach by Consultant of the provisions of this
Agreement will cause the Bank irreparable injury and
damage. Consultant, therefore, expressly agrees that the Bank shall
be entitled to injunctive and other equitable relief to prevent a breach of this
Agreement, or any part thereof by Consultant, or by Consultant’s partners,
agents, representatives, servants, employers, employees and/or any and all
persons directly or indirectly acting for or with Consultant, and to secure its
enforcement, in addition to any other remedy to which the Bank might be
entitled. Any and all of the Bank’s remedies for the breach of this
Agreement shall be cumulative and the pursuit of one remedy shall not be deemed
to exclude any and all other remedies with respect to the subject matter
hereof.
15. Advice of
Counsel. Consultant acknowledges he has read this Agreement
and any attached exhibits, understands their terms and signs the Agreement
voluntarily of his own free will, without coercion or duress, and with full
understanding of the significance and binding effect of the
Agreement. Consultant further acknowledges he has been advised by
Holding Company that it is in his best interests to be represented by counsel
with respect to the execution of this Agreement and to thoroughly discuss all
aspects of this Agreement with his attorney. Consultant has been
represented by counsel of his own choosing in connection with the negotiation
and execution of this Agreement. The terms of this Agreement have
been freely and equally negotiated between the parties hereto; and no term or
provision hereof shall be construed against either party due to such party’s
drafting of any such term or provision.
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16. Entire Agreement;
Waiver. This Agreement contains the entire agreement and understanding by
and between the Bank and Consultant with respect to the engagement of Consultant
herein referred to, and no representations, promises, agreements or
understandings, written or oral, not herein contained shall be of any force or
effect. This Agreement supersedes any prior employment or consulting agreement
or change in control agreement to which Consultant is a party, except that the
Management Continuity Agreement shall remain in full force and effect,
specifically including the restrictive covenants contained therein, which shall
be in addition to and not in lieu of the restrictive covenants contained in this
Agreement. No change or modification hereof shall be valid or binding unless the
same is in writing and signed by the party intended to be bound. No
waiver of any provision of this Agreement shall be valid unless the same is in
writing and signed by the party against whom such waiver is sought to be
enforced. No valid waiver of any provision of or breach of this
Agreement at any time shall be deemed a waiver of any other provision or
subsequent breach of this Agreement at such time or will be deemed a valid
waiver of such provision or subsequent breach at any other time.
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IN
WITNESS WHEREOF, Holding Company, the Bank and Consultant have duly executed
this Agreement as of the day and year first above written.
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BANK:
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CONSULTANT:
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FIRST
CLOVER LEAF BANK, FSB
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By
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Name:
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Xxxx
X. Xxxxx
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Title:
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HOLDING
COMPANY:
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By
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Name:
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Title:
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Appendix
A
Xxxx
Xxxxx Consulting Agreement
Bonus
Arrangement
Bonus
pool of $200,000
Any bonus
will be paid at the end of the 18 month Consulting Agreement, and the date of
termination of the agreement will be the “Measurement Date”
Calculation of Bonus Pool
Payout: The amount of the payment from the bonus pool will be calculated
as follows:
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·
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At
the closing of the merger, the aggregate dollar amount (based on a
three-month average) of the sum of Partners' gross loans receivable
(exclusive of loan loss reserves and/or purchase accounting adjustments)
plus deposits exclusive of purchase accounting adjustments will be the
“Initial Measurement Amount”... at March 31, 2008, using a three month
average, the Initial Measurement Amount would have been approximately
$172.5 million consisting of gross loans of $90.2 million and deposits of
$82.3 million
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·
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At
the closing of the merger and during the term of the Consulting Agreement,
all Partners’ loans and deposits (including new loan and deposit
relationships brought to FCLF by Xxxx Xxxxx and additional loans and
deposits of Partners clients brought to FCLF by Xxxx Xxxxx) and all new
FCLF loans and deposits principally generated by Xx. Xxxxx will be
separately flagged in the FCLF systems and such information shall be made
available to Xx. Xxxxx
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·
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At
the Measurement Date, the amount of the bonus pool payment will be based
on the ratio of the aggregate dollar amount of the flagged loans and
deposits (based on a three-month average), determined in the same manner
as at the closing of the merger, in comparison to the aggregate Initial
Measurement Amount as follows:
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o
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100%
or greater
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$200,000
(full bonus pool payout)
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o
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80%
or less
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no
payout
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o
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80.1%
to 99.9%
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bonus
paid out proportionally
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·
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In
the event of a Change in Control (as defined in the Consulting Agreement),
Xx. Xxxxx shall receive any bonus payment that would be payable to him
based on the above schedule assuming, for purposes of a determining any
potential bonus payment upon a Change in Control only, that the effective
date of such Change in Control is the Measurement
Date.
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·
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If,
after 12 months, the Consulting Agreement is terminated pursuant to
Section 6(a) or Section 6(b) thereof due to the disability of Xx. Xxxxx,
Xx. Xxxxx shall be entitled to the greater of (i) half of any bonus
payment that would be payable to him based on the above schedule assuming,
for purposes of determining any potential bonus payment upon disability
only, that the date of disability is the Measurement Date, such one-half
bonus payment to be reduced by (x) the amount of the consulting fees
incurred in the 90-day period after such disability as contemplated by
Section 6(a) of the Consulting Agreement
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and (y) the amount of any payment Xx. Xxxxx would
be entitled to receive pursuant to Section 6(b) of the Consulting Agreement; or
(ii) such consulting fees and payment as Xx. Xxxxx would be entitled to receive
pursuant to Sections 6(a) and 6(b) of the Consulting Agreement.
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·
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If,
after 12 months, the Consulting Agreement is terminated pursuant to
Section 6(c) thereof due to the death of Xx. Xxxxx, Xx. Xxxxx’x estate
shall be entitled to half of any bonus payment that would be payable to
him based on the above schedule assuming, for purposes of determining any
potential bonus payment upon death only, that the date of death is the
Measurement Date.
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Payment of Additional
Bonus: If the ratio of the aggregate dollar amount of the flagged loans
and deposits exceeds the Initial Measurement Amount, then Xx. Xxxxx will be
eligible for an additional bonus payout as determined by the FCLF Board of
Directors in the same manner as FCLF lending and business development
staff
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