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EXHIBIT 10.10
Consulting Agreement dated August 1, 1996 with Xxxxx X. Xxxxxxx
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AGREEMENT
THIS AGREEMENT is made and entered into as of August 1, 1996, by and
between Home Bank, F.S.B. (the "Bank"), a federally chartered thrift
institution, Xxxxxxxxxx Corporation (the "Corporation"), an Ohio corporation,
and Xxxxx X. Xxxxxxx ("Xxxxxxx"), an individual.
WHEREAS, the Bank is desirous of retaining the services of Shimrak to
perform Community Reinvestment Act of 1977 (CRA) activities; and
WHEREAS, Shimrak is willing to render such services, and the Bank is
willing to compensate him therefor, upon the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the covenants contained herein and
upon the other terms and conditions herein provided, the parties hereto agree as
follows:
1. DUTIES
During the term of this Agreement, Shimrak will provide support to the
CRA activities of the Board of Directors and management of the Bank.
It is understood and agreed by the parties that: (a) Shimrak, and not
the Bank, has control over the scheduling of hours for the performance of CRA
activities, (b) Shimrak is an independent contractor and not an employee of the
Bank and (c) Shimrak is responsible for payment of federal self-employment and
income taxes with respect to the compensation paid (as hereinafter defined).
Shimrak is required to fully document CRA activities on forms to be
proscribed by the Bank and deliver these documents to the CFO on a monthly
basis. CRA activities shall include, but not be limited to, assisting branch
managers with CRA presentations in conjunction with the Bank's Marketing Plan
for the Community Reinvestment Act in an effort to ascertain the credit needs of
local communities and to promote high visibility of the Bank and its resources
with local contacts such as:
- Cleveland Neighborhood Housing Services, City of Cleveland
Development Department, Neighborhood Progress, Inc., Cleveland
Housing Network, Community Action to Support Housing (CASH),
Near West Housing Development Corporation, Ohio City
Development Group, Tremont West Development, Detroit Shoreway
Development, and Buckeye Development Corporation and other
minority neighborhood housing groups.
- Minority brokers and realtors.
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2. TERM
The term of this Agreement shall be for a period of one (1) year
commencing on August 1, 1996.
3. COMPENSATION
In consideration of the CRA activities to be performed by Shimrak
pursuant to this Agreement, the Bank agrees to pay Shimrak for the term of this
Agreement within three days of submitting the documentation forms prescribed in
Paragraph 1. The hourly charge will not exceed fifty dollars ($50) per hour. The
maximum hours to be actually billed to the Bank on a monthly basis for CRA
activities may not exceed twenty (20) hours.
In addition, the Bank agrees to pay Shimrak for the term of this
agreement for new loans and deposits originated by Shimrak.
Shimrak will earn a commission for the solicitation and submission of
a saleable, residential, owner-occupied loan package, after it has been approved
by the Loan Committee, all monies paid, and the mortgage has been filed of
record. Commissions will not be paid on refinances of present Home Bank loans,
nor on end loans on Home Bank construction loans. Loans must be designated as
originated by Shimrak at time of application for commissions to be paid. The
amount of commission earned will be paid based on the types of products
originated:
a. Conventional first mortgage loans - 0.0025 (25 basis points).
b. Commercial real estate loans - 0.0025 (25 basis points).
c. Jumbo loans -0.0025 (25 basis points).
d. A flat $250 commission will be paid on any "Ten and Out" loan
approved and closed.
e. A flat $200 commission will be paid on any XxXxxxxx or 3/2 CRA
loan approved and closed.
f. Prime Time - there will be a flat fee of $25 paid for a new
Prime Time loan approved and closed.
g. MasterCard - there will be a flat fee of $25 paid for a new
MasterCard loan approved and closed.
Shimrak will earn a commission for the solicitation and the opening of
a new deposit account through his marketing efforts. Commissions will not be
paid on public funds, renewals of present Home Bank certificates of deposit, nor
transfers of existing Home Bank accounts to other Home Bank accounts. Deposits
must be designated as originated by Shimrak at time of opening for
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commissions to be paid. The amount of commission earned will be paid based on
the type of product originated:
a. Transaction accounts - there will be a flat fee of $25 paid for
a new transaction account.
b. Time deposit accounts - 0.0025 (25 basis points).
4. TERMINATION OF AGREEMENT
This Agreement may be terminated by the Bank at any time with cause and
upon thirty (30) days' written notice to Shimrak without cause.
5. TERMINATION FOR CAUSE
x. Xxxxxxx shall have no right to receive compensation or other
benefits under this Agreement for any period after the date of termination for
Cause. For purposes of this Agreement, termination for "Cause" shall mean only
the following events:
i. personal dishonesty;
ii. incompetence;
iii. material breach of any provision of this Agreement;
iv. breach of a fiduciary duty involving personal gain or
profit;
v. intentional failure to perform stated duties;
vi. willful violation of any law, rule, regulation (other than
a law, rule or regulation relating to a traffic violation
or similar offense) or final cease-and-desist order; or
vii. willful misconduct.
b. i. for purposes of Paragraph 5(a)(ii), "incompetence" shall
mean Shimrak's inability to perform his duties hereunder
due to insufficient knowledge or skills.
ii. for purposes of Paragraph 5(a)(vi) and 5(a)(vii), no act,
or failure to act, on Shimrak's part shall be considered
"willful" unless he has acted, or failed to act, with an
absence of good faith and without a reasonable belief that
his action or failure to act was in the best interest of
the Bank.
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iii. for purposes of Paragraph 5(a)(vi), a cease-and-desist
order shall not become final until exhaustion or lapse of
all administrative and judicial appeal rights in relation
thereto.
e. This Agreement shall not be deemed to have been terminated for
Cause unless there shall have been delivered to Shimrak a copy of a resolution
duly adopted by the affirmative vote of not less than a majority of the entire
membership of the Board of Directors of the Bank specifying the particulars
thereof in detail.
d. If Shimrak is unable to perform his duties hereunder by reason
of his disability or death, the Bank shall be obligated only to continue to pay
Shimrak up to the date of his disability or death.
e. If Shimrak is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, the Bank's
obligations under the Agreement shall be suspended as of the date of service
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Bank may in its discretion (i) pay Shimrak all or part of the
compensation withheld while its contract obligations were suspended, and (ii)
reinstate (in whole or in part) any of its obligations which were suspended.
f. If Shimrak is permanently removed and/or prohibited from
participating in the conduct of the Bank's affairs by an order or notice served
under Section 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act, all
obligations of the Bank under this Agreement shall terminate as of the effective
date of the order, but vested rights of the parties shall not be affected.
g. If the Bank is in default as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act, all obligations of the Bank under this Agreement
shall terminate, as of the date of default, but this provision shall not affect
any vested rights of the agreeing parties.
h. All obligations of the Bank under this Agreement shall be
terminated except to the extent that the continuation of the Agreement is
necessary for the continued operation of the Bank by the Director of the Office
of Thrift Supervision (the "OTS") (i) at the time the Federal Deposit Insurance
Corporation (the "FDIC") or the Resolution Trust Corporation enters into an
agreement to provide assistance to or on behalf of the Bank under the authority
contained in Section 13(c) of the Federal Deposit Insurance Act, or (ii) at the
time the Director of the OTS approves a supervisory merger to resolve problems
related to the operation of the Bank or when the Bank is determined by the
Director of the OTS to be in an unsafe and unsound condition. Any rights of the
parties that have already vested, however, shall not be affected by such
actions.
6. PROPRIETARY INFORMATION
Shimrak agrees that the knowledge of the business activities and plans
for business activities of the Corporation and the Bank and affiliates thereof
are confidential, valuable, special and unique asset of the business of the
Corporation and the Bank. Shimrak's knowledge of information concerning the
Corporation and the Bank of which a third party has both knowledge and an
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unrestricted right to that knowledge is not subject to this Paragraph 6. Shimrak
will not at any time, whether during or subsequent to the termination of this
Agreement, disclose any knowledge of the past, present, planned or considered
business activities of the Corporation and the Bank or affiliates thereof to any
person, any confidential information obtained by him, except as required by any
court, supervisory authority or administrative agency. Notwithstanding the
foregoing, Shimrak may disclose any knowledge of banking, financial and/or
economic principles, concepts or ideas which are not solely and exclusively
derived from the business plans and activities of the Corporation and the Bank.
In the event of a breach or threatened breach by Shimrak of the provisions of
this Paragraph 6, the Bank and/or the Corporation, or any duly authorized
officer thereof, will be entitled to a temporary restraining order or an
injunction restraining Shimrak from disclosing, in whole or in part, the
knowledge of the past, present, planned or considered business activities of the
Bank or affiliates thereof, or from rendering any services to any person, firm,
corporation or other entity to whom such knowledge, in whole or in part, has
been disclosed or is threatened to be disclosed. Nothing herein will be
construed as prohibiting the Bank from pursuing any other remedies available to
the Bank for such breach or threatened breach, including the recovery of damages
from Shimrak.
7. REPORTING
Shimrak agrees to provide the CFO a monthly billing on which hours
billed are supported by reporting forms which will be provided.
8. NON-SOLICITATION
Shimrak agrees that during the term of this Agreement and for a period
of two (2) years after the termination of this Agreement he will not directly or
indirectly:
a. Solicit, divert or take away any of the customers, business or
patronage of the Bank or the Corporation or their respective subsidiaries or
affiliates; or
b. Induce or attempt to influence any employee of the Bank or the
Corporation or their respective subsidiaries or affiliates to terminate his or
her employment therewith.
c. In the event of a breach or threatened breach by Shimrak of the
provisions of this Paragraph 8, the Bank and/or the Corporation, or any duly
authorized officer thereof, will be entitled to a temporary restraining order or
injunction.
9. NOTICES
All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered by hand
or mailed, certified or registered mail, return receipt requested, with postage
prepaid, to the following addresses or to such other address as either party may
designate by like notice.
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a. If to the Bank, to:
Home Bank, F.S.B.
Terminal Tower
00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000-0000
Attention: Board of Directors
b. If to the Corporation, to:
Xxxxxxxxxx Corporation
Terminal Tower
00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000-0000
Attention: Board of Directors
c. If to Shimrak, to:
Xxxxx X. Xxxxxxx
00000 Xxxxxxx'x Xxxx
Xxxxxxxx, Xxxx 00000
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
10. AMENDMENTS
No amendments or additions to this Agreement shall be binding unless in
writing and signed by both parties, except as herein otherwise provided.
11. PARAGRAPH HEADINGS
The paragraph headings used in this Agreement are included solely for
convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
12. SEVERABILITY
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
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13. GOVERNING LAW
This Agreement shall, except to the extent that Federal law (including
any law, rule, or regulation of the OTS or the FDIC) shall be deemed to apply,
be governed by and construed and enforced in accordance with the laws of Ohio.
14. NO ASSIGNMENTS
Neither the Bank nor Shimrak may assign or delegate any of its
respective rights or obligations hereunder without first obtaining the written
consent of the other party.
15. ARBITRATION
Except for injunctive relief or a temporary restraining order under
Paragraph 6 or Paragraph 8 hereof, in the event of any dispute, controversy,
question or disagreement between the parties hereto as to the application,
meaning, construction or interpretation of any provision of this Agreement, such
dispute, controversy, question or disagreement shall be submitted to arbitration
at Cleveland, Ohio, by and under the rules of the American Arbitration
Association (or any successor thereto) then pertaining to commercial
arbitration, and judgment upon any award made under such arbitration proceeding
may be entered in any court having jurisdiction thereof and shall be final. It
is specifically understood and agreed by and between the parties that such
arbitration shall be the sole and exclusive remedy available to the parties and
the parties further waive any rights they may have to any other remedies save
and except such arbitration.
IN WITNESS WHEREOF, the parties have put their hands as of the date
first written above.
XXXXXXXXXX CORPORATION HOME BANK, F.S.B.
By: /s/ Xxxxxxx X. Valerian By: /s/ Xxxxxxx X. Valerian
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Xxxxxxx X. Valerian Xxxxxxx X. Valerian
Chairman, President and President and Chief Executive Officer
Chief Executive Officer
And: /s/ Xxxxxxx X. Xxxxx And: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Executive Vice President Executive Vice President
Attest: /s/ Xxxxx X. Xxxxxx Attest: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx
Secretary Secretary
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, an individual
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