EXHIBIT NO. 10.36
CONSULTING AGREEMENT
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This Consulting Agreement ("Agreement") is made and entered into as of
November 16, 1998, by and between Bank Plus Corporation ("Bank Plus") and
Fidelity Federal Bank, A Federal Savings Bank ("Fidelity") and Bank Plus Credit
Services Corporation ("BPCS"). (Bank Plus, Fidelity and BPCS together are
referred to as the "Company"), on the one hand, and X. X. Xxxxxx III
("Consultant"), on the other hand, with reference to the following facts:
RECITALS
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A. Consultant has previously served as an officer of Fidelity and BPCS;
B. Consultant, Bank Plus and BPCS have entered into a Release Agreement
dated November 16, 1998 (the "Release Agreement");
C. The Company has agreed to retain Consultant to provide consulting
services on the terms and subject to the conditions set forth in
this Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the above stated premises and other
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. RETENTION OF CONSULTANT. The Company hereby retains Consultant to
provide advice and consulting services to the Company and its affiliates (the
"Services"). The Services will include consultation and advice regarding, among
other things, (i) employment and human resources matters, (ii) litigation and
dispute resolution matters relating to the Company's and its affiliates'
relationships with affinity partners, strategic partners, customers and vendors,
and (iii) such other matters within Consultant's expertise as may be reasonably
requested from time to time by the Company.
2. TERM. The term of this Agreement shall commence as of the date
hereof and shall continue for a period of twelve (12) months, from December 1,
1998 to and including November 30, 1999, or until a change in control as defined
in Section 4.2 below.
3. DUTIES OF CONSULTANT. Consultant agrees to provide the Services to
the Company when and as reasonably required by the Company from time to time
during the term hereof, up to a maximum of forty (40) hours per calendar month.
In providing the Services, Consultant will report only to the following officers
of the Company: the Chief Executive Officer, the President, the Chief Financial
Officer, the General Counsel, the Director of the Risk Evaluation Group and the
Director of Human Resources. Any such services shall be performed only in
California, Oregon, Minnesota, Massachusetts, New York, Delaware and such other
states in which the Company has or is doing business. Reasonable notice shall be
provided to Consultant with respect to the Services to be rendered by him, and
all such Services shall relate to the matters described in Section 1 or matters
reasonably related thereto. The requirement to provide Services of up to 40
hours per calendar month shall be a monthly requirement and shall not be
cumulative. All travel time door-to-door and all telephone and /or meeting time
shall be included in the 40-hour monthly requirement. For example, if no
Services are required from Consultant during the first month of this Agreement,
the time required during the second month shall be 40 hours and not 80 hours. In
no event shall Consultant's failure to provide requested Services be deemed to
be a breach of this Agreement if Consultant believes in good faith that
performing such requested Services would violate a law or regulation to which
Consultant or the Company is subject.
4. COMPENSATION.
4.1. CONSULTING FEE. In consideration of Consultant's agreement to
provide the Services, the Company shall pay to Consultant a consulting fee in
the amount of $5,538.46 every two weeks. So long as Consultant is prepared to
provide Services under this Agreement and responds to reasonable requests to do
so, the Company shall pay the consulting fee specified in the preceding
sentence. Consultant shall not be obligated to transmit invoices to the Company
hereunder, but such fees shall be paid by check automatically mailed to
Consultant every two weeks.
4.2. CHANGE IN CONTROL. Upon the occurrence of change in control (as
defined below), the Company shall pay to Consultant, within thirty (30) days
following such change in control, as a lump sum payment, an amount equal to the
aggregate of all consulting fees that would have been payable under this Section
4 through the remaining term of this Agreement. Upon payment of such amount, the
neither the Company or Consultant shall have any further obligations under this
Agreement. For purposes of this Agreement, a "change in control" shall be deemed
to occur if (a) any "person" (as such term is defined in Section 3(a)(9) and as
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), excluding Bank Plus, Fidelity or any of Bank Plus' other
subsidiaries, a trustee or any fiduciary holding securities under an employee
benefit plan of Bank Plus, Fidelity or any of Bank Plus' other subsidiaries, an
underwriter temporarily holding securities pursuant to an offering of such
securities or a corporation owned, directly or indirectly, by shareholders of
Bank Plus in substantially the same proportion as their ownership of Bank Plus,
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of Bank Plus representing
25% or more of the combined voting power of Bank Plus' then outstanding
securities ("Voting Securities"); or (b) during any period of not more than two
years, individuals who constitute the Board of Directors of Bank Plus (the
"Board") as of the beginning of the period and any new director (other than a
director designated by a person who has entered into an agreement with Bank Plus
to effect a transaction described in clause (a) or (b) of this sentence) whose
election by the Board or nomination for election by Bank Plus' shareholders was
approved by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at such time or whose election or nomination
for election was previously so approved, cease for any reason to constitute a
majority thereof; or (c) the shareholders of Bank Plus approve a merger or
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consolidation of Bank Plus with any other corporation, other than a merger or
consolidation which would result in the Voting Securities of Bank Plus
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 60% of the combined voting power of the Voting
Securities of Bank Plus or such surviving entity outstanding immediately after
such merger or consolidation, or the shareholders of Bank Plus approve a plan of
complete liquidation of Bank Plus or any agreement for the sale or disposition
by Bank Plus or all or substantially all of Bank Plus' assets; or (d) a sale or
sales or other disposition or dispositions by Bank Plus which results in Bank
Plus ceasing to beneficially "own" (within the meaning of Rule 13d-3 under the
Exchange Act, directly or indirectly, more than 50% of the Voting Securities of
Fidelity; or (e) a sale or sales of all or substantially all of the assets of
Fidelity, in a single transaction or series of transactions, other than to a
direct or indirect subsidiary of Bank Plus; or (f) a merger or other combination
involving Fidelity as a result of which Bank Plus ceases to beneficially own,
directly or indirectly, more than 50% of the Voting Securities of Fidelity or
the successor to Fidelity.
4.3. REIMBURSEMENT OF EXPENSES. During the term of this Agreement,
the Company shall pay or reimburse Consultant for all reasonable travel,
telephone and other necessary expenses (in accordance with Company's current
expense policy) incurred by Consultant in connection with the performance of the
Services upon presentation of adequate and appropriate documentation of such
expenses.
5. TERMINATION OF AGREEMENT. Upon termination of this Agreement,
Consultant will surrender to the Company all documents, records, and work
developed for the Company during the term of this Agreement, and Consultant will
return to the Company any proprietary or confidential information received from
the Company during the term of this Agreement.
6. PROPRIETARY AND CONFIDENTIAL INFORMATION. Consultant agrees that any
proprietary or confidential information communicated or delivered to Consultant
by the Company or relating to any business affairs of the Company or any of the
Company's customers shall be held in confidence and will not be misappropriated
or disclosed by Consultant except as required by law and regulations of such
state, federal or other governmental regulatory authorities, agencies or
commissions as have jurisdiction over the affairs and businesses of the Company.
Further, Consultant recognizes that since the Company may suffer irreparable
damage from any wrongful misappropriation or disclosure of such proprietary or
confidential information, money damages may be inadequate and the Company shall
be entitled to injunctive relief against such wrongful misappropriation or
disclosure. Such injunctive relief shall be in addition to, and in no way a
limitation of, any and all other remedies the Company may have in law or in
equity for the enforcement of this Agreement.
7. INDEPENDENT CONTRACTOR. It is understood and agreed by the parties
hereto that Consultant is an independent contractor and that neither party is,
nor shall be considered to be, an agent, distributor or representative of the
other. Neither party shall act or represent itself, directly or by implication,
as an agent of the other or in any manner assume or create any obligation on
behalf of, or in the name of, the other. This Agreement is not intended, and
shall not be construed, to create the relationship of agent, servant, employee,
partnership, joint venture or association as between Consultant and the Company.
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Consultant further understands that Consultant will not receive Workers'
Compensation benefits for any injuries arising from or in connection with the
furnishing of the Services hereunder. As Consultant is an independent
contractor, the Company is not responsible to withhold, and is not withholding,
any taxes from compensation paid to Consultant. Consultant hereby waives any
claims against the Company for the alleged creation of an employer/employee
relationship, state and federal payroll withholding, FICA, SDI or any other
employee benefit claims in connection with the provision of the Services.
8. MISCELLANEOUS.
8.1. NOTICES. All notices and other communications required or
permitted under this Agreement shall be in writing, served personally on,
delivered by telecopier, or mailed by certified or registered mail to the party
charged with receipt thereof. Notices and other communications served by mail
shall be deemed given hereunder five (5) days after deposit of such notice or
communication in an official post office as certified or registered mail with
postage prepaid and duly addressed to the party to whom such notice or
communication is to be given, in the case of (a) the Company, at: X.X. Xxx 0000,
Xxxxxxxx, XX 00000, Attention: Chief Executive Officer, with a copy to the
General Counsel, or in the case of (b) Consultant, at: 0000 XX Xxxxx Xxxxx
Xxxxxxxxx, #00, Xxxxxxxxx, Xxxxxx 00000. Provided, however, that the standard of
"reasonable notice" shall apply to instances in which the Company requests
Services from Consultant.
8.2. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES; AMENDMENT. This
Agreement constitutes the entire agreement between the parties respecting the
subject matter of this Agreement and supersedes all prior understandings and
agreements, whether oral or in writing, between the parties respecting the
subject matter of this Agreement. There are no third party beneficiaries to this
Agreement, and this Agreement may be amended at any time only by a writing,
referring to this Agreement, executed by Consultant and the Company.
8.3. CHOICE OF LAW. This Agreement shall be governed by the
laws of the State of California applicable to contracts entirely performed and
made in California.
8.4. ASSIGNMENT. Neither party shall assign or transfer this
Agreement, or any rights or obligations arising hereunder, without the prior
written consent of the other. A change of control of either party hereto
constitutes an assignment requiring the consent of the other party.
8.5. SEVERABILITY. If any term, covenant, condition or provision of
this Agreement, or the application thereof to any person or circumstance, shall
to any extent be held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, covenants, conditions or
provisions of this Agreement or the application thereof to any person or
circumstance, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
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8.6. BINDING EFFECT. Subject to Subsection 8.4 hereof, the terms and
conditions of this Agreement shall be binding upon and inure to the benefit of
and be enforceable by the successors and assigns of the respective parties
hereto.
8.7. CAPTIONS AND COUNTERPARTS. The captions of the sections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part of this Agreement. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same Agreement.
8.8. ATTORNEYS' FEES. In the event of any disputes as to the rights
and obligations of the parties hereto, or the enforcement thereof, the
prevailing party shall be entitled to receive its reasonable attorneys' fees, in
addition to any other remedy to which it may be entitled.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
BANK PLUS CORPORATION X. X. XXXXXX III
By: /S/ XXXX X. XXXXX /S/ X.X. XXXXXX III
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Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
FIDELITY FEDERAL BANK,
A FEDERAL SAVINGS BANK
By: /S/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
BANK PLUS CREDIT SERVICES CORPORATION
By: /S/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
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