EXHIBIT 10.1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement"), dated as of June 21, 2005, is
made and entered into by and between Flagstar Bank, fsb ("Flagstar") and Xxxxxxx
X. Xxxxxx ("Xxxxxx").
RECITALS
WHEREAS, FLAGSTAR is a federally chartered stock savings bank
headquartered in Troy, Michigan and is a wholly owned subsidiary of Flagstar
Bancorp, Inc., a Michigan corporation ("Bancorp"); and
WHEREAS, Xxxxxx was previously employed by Flagstar and Bancorp as an
Executive Director and Chief Financial Officer, and has served on the Board of
Directors of both Flagstar and Bancorp; and
WHEREAS, Xxxxxx retired from the employ of both Flagstar and Bancorp,
and such resignation is effective as of June 20, 2005; and
WHEREAS, it has been determined by Xxxxxx, Flagstar and Bancorp that it
is in the best interest of all parties for Xxxxxx to also resign from the Board
of Directors of both Flagstar and Bancorp; and
WHEREAS, as a result of such resignations, Carrie's Continuous Service
(as such term is defined in the Bancorp 1997 Employees and Directors Stock
Option Plan, as amended and the 2000 Stock Incentive Plan) with Flagstar and
Bancorp shall cease on June 20, 2005; and
WHEREAS, Flagstar desires to consult with Xxxxxx, from time to time, on
the matters and affairs of Flagstar in order to assist in the transition to the
incoming Chief Financial Officer and Xxxxxx has agreed to be accessible for such
purposes from the date of this Agreement through March 2006.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties agree as follows:
1. Obligations of Xxxxxx; Independent Contractor. Xxxxxx shall
consult with and advise the incoming Chief Financial Officer with respect to the
business of Flagstar (the "Consulting Services"). Xxxxxx shall perform the
Consulting Services as reasonably requested, from time to time. This Agreement
shall not constitute or give rise to an employment relationship
between the parties, and all activities by Xxxxxx hereunder shall be carried on
by Xxxxxx as an independent contractor and not as an employee of Flagstar. It is
the intention of the parties that Xxxxxx shall be able to provide such services
by telephone and that the Consulting Services will not require Xxxxxx to be
present in Michigan.
2. Obligations of Flagstar. In consideration for Carrie's
obligations hereunder, Flagstar shall pay Xxxxxx a monthly fee of $60,000,
payable on the 1st of each month, with the first such payment being made on July
1, 2005 (the "Consulting Fees").
3. Expenses. In addition to any Consulting Fees that may be
payable to Xxxxxx hereunder, Flagstar shall reimburse Xxxxxx from time to time
for all reasonable out-of-pocket costs and expenses incurred by Xxxxxx in the
performance of the Consulting Services hereunder. Xxxxxx shall include a
reasonably detailed description of such expenses in accordance with Flagstar
practice.
4. Non-Disclosure of Confidential Information.
(a) Confidential Information. For the purposes
of this Agreement, "Confidential Information" shall mean all information
relating to the operations of Flagstar which has not been specifically
designated for release to the public and information regarding Flagstar, or any
affiliate, which was disclosed to Xxxxxx or known by him as a consequence of his
employment by Flagstar, whether or not pursuant to this Agreement, including
without limitation, trade secrets, business and strategic plans, pricing
information, financial data, customer and supplier information, either the fact
or content of negotiations in which such entities may be engaged, market
information, research and development, corporate personnel manuals and corporate
policies and procedures, marketing strategies, computer data bases and other
information that was developed by or originated with any such entity for its own
use, whether stored on hard copy, computer disc or any other medium. The
foregoing notwithstanding, "Confidential Information" shall not include any
information or materials already available to the public other than as a result
of the disclosure by Xxxxxx.
(b) Non-Disclosure. Xxxxxx agrees that, except
with the specific authorization of the Chief Executive Officer of Flagstar,
Xxxxxx shall not at any time during or after the term of this Agreement, make
use of or disclose to any person, corporation, or other entity, directly or
indirectly, for any purpose whatsoever, any Confidential Information, whether
prepared by Xxxxxx or otherwise coming into Carrie's possession or control;
provided, however, that any disclosure by Xxxxxx to a governmental agency as
required by law shall not constitute a breach of this Paragraph 4.
(c) Injunctive Relief. Xxxxxx acknowledges that
Confidential Information, as it may exist from time to time, is a valuable and
unique asset of Flagstar, and that disclosure of any such Confidential
Information would cause substantial injury to Flagstar, and that any violation
of this Paragraph 4 would cause irreparable damage to Flagstar which damage
would be inadequately compensable in money damages, and Flagstar shall be
entitled to injunctive relief to prevent or terminate any breach or threatened
breach of this Paragraph 4, in addition to any monetary damages, sanctions or
other legal remedies available. The provisions of this Paragraph 4 shall survive
termination of this Agreement. Xxxxxx acknowledges and agrees
that his obligations of confidentiality hereunder are in addition to, and not in
limitation of or preemption of, all other obligations of confidentiality which
Xxxxxx owes to Flagstar under general legal or equitable principles. Xxxxxx
further acknowledges and agrees that the agreements set out above are necessary
for the protection of the legitimate business interests of Flagstar and are
reasonable in scope and content.
(d) Ownership Rights. Xxxxxx acknowledges and
agrees that Flagstar shall be the sole owner and holder of all right, title and
interest to all strategies, business plans, systems, forms, policy manuals,
marketing and public relations materials, marketing procedures and policies
developed by Xxxxxx during the term of this Agreement, and the Xxxxxx shall not
duplicate, photocopy, transcribe or remove any such information, records or
property. Xxxxxx acknowledges and agrees that upon termination of this
Agreement, or upon request by Flagstar, Xxxxxx shall turn over to Flagstar all
documents, files, office supplies and any other material or work product in
Carrie's possession or control containing all such strategies, business plans,
systems, forms, policy manuals, marketing and public relations materials,
marketing procedures and policies or which were otherwise created pursuant to or
derived from Carrie's services to Flagstar.
(e) Saving Provision. The parties agree and
stipulate that, based upon Flagstar's present business and plans for future
expansion, the covenants and agreements set out above in this Paragraph 4 are
reasonable in duration and scope and are fair and reasonably necessary for the
protection of the business, goodwill, Confidential Information, and other
protectable interests of Flagstar and its affiliates in light of all of the
facts and circumstances of the relationship between Xxxxxx and Flagstar, and
that the breach of the provisions of this Paragraph 4 would irreparably harm
Flagstar. In the event that any covenant, condition or other provision of this
Agreement is held to be inoperative, invalid, void or illegal by any court of
competent jurisdiction, the same shall be deemed severable from the remainder of
this Agreement and shall in no way affect, impair or invalidate any other
covenant, condition or other provisions of this Agreement. If such condition,
covenant or other provision shall be deemed invalid due to its scope or breadth,
it is the intention of the parties hereto that such covenant, condition or other
provision shall not thereby be terminated but shall be deemed amended to delete
therefrom or modify such provision or portion adjudicated to be invalid or
unenforceable or in the alternative such judicially substituted term may be
substituted therefor, and such covenant, condition or other provision shall be
deemed valid to the extent of the scope or breadth permitted by law.
5. Further Assurances. Each of the parties hereto agrees to
execute and deliver such other documents and to take such further actions as the
other party may reasonably deem necessary from time to time to carry out the
intent and purpose of this Agreement.
6. Arbitration. Any controversy, dispute or claim arising out
of or relating to this Agreement or the transactions contemplated hereby, shall
be referred to the American Arbitration Association for neutral binding
arbitration in accordance with its rules, and such arbitration shall be decided
in accordance with the terms of this Agreement and the substantive law of the
State of Michigan. The board of arbitrators shall convene at a place mutually
acceptable to the parties in the State of Michigan. The parties hereto agree to
accept the decision
of the board of arbitrators, and judgment upon any award rendered hereunder may
be entered in any court having jurisdiction hereof.
7. Termination. The term of this Agreement shall commence on
June 21, 2005 and shall continue until March 31, 2006.
8. No Third Party Beneficiaries. This Agreement is for the
benefit of Xxxxxx and Flagstar only and not for any other person.
9. Entire Agreement. This Agreement contains the entire
agreement between Flagstar and Xxxxxx regarding the matters contained herein and
correctly sets forth each party's rights and duties to each other as of the date
hereof. Any agreement or representation concerning the subject matter of this
Agreement or the duties of Xxxxxx or Flagstar in relation thereto not set forth
in this instrument is null and void.
10. Waiver, Modification and Xxxxxxxxx.Xx provision hereof may
be waived, modified or amended without the written agreement of each of the
parties hereto. Waiver of any one provision herein shall not be deemed to be a
waiver of any other provision herein.
11. Counterparts. This Agreement may be executed in
counterparts and such counterparts taken together shall constitute one and the
same agreement.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan.
13. Binding on Successor. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and each of their
successors (including by operation of law) and assigns, provided, however, that
Xxxxxx may not assign his rights under this Agreement.
14. Titles and Captions. Titles and captions contained in this
Agreement are inserted only as a matter of convenience and for reference and in
no way define, limit, extend or describe the scope of this Agreement or the
intent of any provision hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
Flagstar Bank, fsb
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
By: Xxxxxxx X. Xxxxxx
Its: Executive Vice President
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
