CONSULTING SERVICES AGREEMENT
Exhibit
10.23
This
Consulting Services Agreement (“Agreement”) is
entered into as of December 31, 2009 by and between Xxxx Xxxx (the “Consultant”) and
First Federal Savings Bank of Iowa, together with its affiliates and
subsidiaries (the “Bank”).
WHEREAS, Consultant has separated or
will separate from employment with Bank effective December 31, 2009 (the “Employment Termination
Date”) pursuant to a duly executed Resignation, Settlement, and Release
Agreement (the “Departure
Agreement”); and the Bank has therein agreed to engage Consultant to
provide such services on the terms and conditions set forth below.
NOW
THEREFORE, in consideration of the promises and of the mutual covenants,
conditions and agreements contained herein, the parties agree as
follows:
ARTICLE
ONE
CONSULTING
SERVICES
1.1 Engagement. Effective on the
day immediately following the Employment Termination Date, Bank hereby agrees to engage
Consultant and Consultant agrees to advise Bank in the areas of finance and with
respect to other matters consistent with his background and experience, as
requested by Bank (the “Services”). With
respect to the Services that Consultant will provide, Consultant will receive
assignments only from the Bank’s CEO & Chairman, or his designee or
successor.
1.2 Location. The Services
shall generally be performed remotely. Consultant shall primarily
provide his advice through correspondence, e-mail, and telephone
calls. However, the Bank may, in its discretion, request that the
Services be performed at its headquarters or another facility.
1.3 No Other
Authority. Consultant shall
not represent or purport to represent Bank in any manner whatsoever to any third
party, unless permitted to do so pursuant to specific written authorization of
Bank’s CEO & Chairman. Consultant shall have no authority to bind
Bank in any way.
1.4 Departure
Agreement. If Consultant
does not execute or timely revokes the Departure Agreement, then this Agreement
is automatically rescinded by mutual agreement of the parties.
ARTICLE
TWO
COMPENSATION
2.1 Compensation. In consideration
of Consultant’s performance of the Services outlined in Section 1, above, Bank
will pay Consultant the sum of one hundred dollars (U.S. $100) per hour in
arrears after the end of each biweekly period, within 15 calendar days following
the receipt of invoices (the “Consulting
Fee”). The Services shall not exceed 60 hours in a calendar
month (and shall not exceed 125 hours in any calendar quarter), and Consultant
agrees not to submit invoices for Consulting Fees for Services above such limit,
except in the event that the Bank’s CEO & Chairman has authorized a specific
excess in writing beforehand. Each Consulting Fee payment shall be
treated as a separate payment for purposes of Treasury Regulations Sections
1.409A-1(b)(4)(F) and 1.409A-2(b)(2), and is intended to be exempt from Section
409A as a short-term deferral.
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2.2 Invoicing. Consultant will
provide Bank with biweekly invoices for the performance of
Services. Invoices will set forth the actual number of hours and the
dates on which Consultant worked during the calendar month and a detailed
description of all Services provided during the month. All invoices
and receipts must be sent (via mail or e-mail) directly to the Bank’s CEO &
Chairman, at its West Des Moines office.
2.3 Taxes. Bank shall issue
to Consultant an IRS Form 1099-MISC reporting the amount paid for Services
provided under this Agreement, and Consultant understands that he is responsible
to pay, according to law, his income and other related self-employment
taxes. Consultant further understands that he may be liable for
self-employment (Social Security and Medicare) taxes to be paid by him according
to law. Consultant will retain sole responsibility for the income and
self-employment taxes due on all taxable income arising under this Agreement,
and will indemnify and hold Bank harmless from any and all state or federal
income taxes or Social Security and Medicare tax liabilities and/or penalties,
costs and expenses of any kind that may arise because of a challenge by tax
authorities of Consultant’s treatment as an independent
contractor. In the event that any federal, state and/or local taxing
authority seeks to collect from Bank any employment taxes, additions to tax or
any interest due to Consultant’s reclassification as an employee, Consultant
hereby agrees to provide a signed IRS Form 4669 (Statement of Payments Received)
to Bank for purposes of its seeking abatement of any assessed Federal income
taxes and Consultant further agrees to reimburse Bank for any taxes, additions
to tax and/or interest not otherwise abated by the taxing
authority.
ARTICLE
THREE
REPRESENTATIONS
AND COVENANTS
3.1 Consultant’s
Representations. Consultant represents
and warrants:
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(a)
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that
compensation provided under the terms of this Agreement is consistent with
fair market value for arm’s length transactions of this type, and that the
services to be performed under the Agreement do not and will not involve
the counseling or promotion of a business arrangement or other activity
that violates any applicable law;
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(b)
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solely
for purposes of applying Treasury Regulations Section 1.409A-1(h)(1), that
Consultant worked an average of more than 40 hours per week during the
period of his employment at Bank;
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(c)
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that
Consultant has not entered into any agreement, whether written or oral,
that conflicts with the terms of this
Agreement;
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(d)
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that
Consultant has the full power and authority to enter into this Agreement;
and
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(e)
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that
Consultant has no financial or personal interests that would prevent
Consultant from performing and completing the Services in an objective and
non-biased manner.
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3.2 Consultant’s
Covenants. Consultant:
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(a)
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shall
act as an independent consultant with no authority to obligate Bank by
contract or otherwise and not as an employee or officer of
Bank;
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(b)
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shall
not, during the term of this Agreement and for one year thereafter,
without the written consent of the Bank, directly or indirectly, (a)
solicit, offer employment to, or take any other action intended, or that a
reasonable person acting in like circumstances would expect, to have the
effect of causing any officer or employee of the Bank, its holding
company, or any affiliate, as of the date of this Agreement, of either of
them, to terminate his or her employment and accept employment or become
affiliated with, or provide services for compensation in any capacity
whatsoever to, any savings bank, savings and loan association, bank, bank
holding company, savings and loan holding company, or other institution
engaged in the business of accepting deposits and making loans, doing
business in any city, town or county in which the Bank or its holding
company has an office or has filed an application for regulatory approval
to establish an office, determined as of the date of this Agreement; (b)
provide any information, advice or recommendation with respect to any such
officer or employee of any savings bank, savings and loan association,
bank, bank holding company, savings and loan holding company, or other
institution engaged in the business of accepting deposits and making
loans, doing business in any city, town or county in which the Bank or its
holding company has an office or has filed an application for regulatory
approval to establish an office, determined as of the date of this
Agreement, that is intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any officer or
employee of the Bank, its holding company, or any affiliate, as of the
date of this Agreement, of either of them, to terminate his or her
employment and accept employment or become affiliated with, or provide
services for compensation in any capacity whatsoever to, such savings
bank, savings and loan association, bank, bank holding company, savings
and loan holding company, or other institution engaged in the business of
accepting deposits and making loans; or (c) solicit, provide any
information, advice or recommendation or take any other action intended,
or that a reasonable person acting in like circumstances would expect, to
have the effect of causing any customer of the Bank to terminate an
existing business or commercial relationship with the
Bank;
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(c)
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shall
not, during the term of this Agreement, enter into any other agreement,
whether written or oral, which would conflict with Consultant’s
obligations under Articles 3 and 6 of this
Agreement;
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(d)
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shall
not assign or subcontract performance of this Agreement or any of the
Services to any person, firm, company or organization without Bank’s prior
written consent;
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(e)
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agrees
to timely perform the Services;
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(f)
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agrees
to utilize and provide Bank with accurate and complete data in rendering
the Services; and
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(g)
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agrees
to return all Bank property in Consultant’s custody or control, upon
termination of this Agreement.
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ARTICLE
FOUR
INDEPENDENT
CONSULTANT STATUS
4.1 Independent
Consultant. Consultant is
being engaged by Bank as an independent consultant and not as an employee, and
as such, will have no authority to obligate Bank by contract or
otherwise.
4.2 No
Withholding.
No amount will be
deducted or withheld from Bank’s payment to Consultant for federal, state or
local taxes. No FICA taxes, FUTA taxes, SDI or state unemployment
taxes will be payable by Bank on Consultant’s behalf. Consultant will
be solely responsible for making appropriate filings and payments to the
appropriate governmental taxing authorities, including payments of all income
taxes and self-employment taxes due on compensation received
hereunder.
4.3 Benefits. Consultant shall
not claim the status, perquisites or benefits of a Bank employee and agrees to
hold Bank harmless from any claim or other assertion (by Consultant or his
beneficiaries) to the contrary. Consultant agrees that Consultant is
not eligible for coverage or to receive any benefit under any Bank employee
benefit plan or employee compensation arrangement, except as set forth in the
Departure Agreement. Even if Consultant were to become or be deemed
to be a common-law employee of Bank, Consultant still shall not be eligible for
coverage or to receive any benefit under any Bank employee benefit plan or any
employee compensation arrangement with respect to any period during which Bank
classified Consultant as a consultant, except as set forth in the Departure
Agreement. Consultant further agrees that if Consultant is injured
while performing work for Bank hereunder, Consultant will not be covered for
such injury under Bank’s insurance policies, including under any Worker’s
Compensation coverage provided by Bank for its employees, and that Consultant is
solely responsible for providing Worker’s Compensation insurance for
Consultant’s employees, if any.
ARTICLE
FIVE
TERM
AND TERMINATION
This Agreement shall terminate, not
earlier than February 1, 2010, upon written notice by either party to the other
party.
ARTICLE
SIX
CONFIDENTIALITY
The Consultant acknowledges that in
connection with its services hereunder, Consultant and his or her employees
and/or agents (if any), will be privy to information concerning the services,
products, business methods, trade secrets, clients, and the business and affairs
of the Company (the "Confidential
Information") all of which is vital, sensitive, confidential and
proprietary to the Company. The Consultant agrees that it as well as
any and all employees and/or agents shall not, at any time, whether during the
term of this Agreement or after its termination, disclose to any third party, or
use for the benefit of itself or any third party, any Confidential
Information. The Consultant's obligations with respect to particular
Confidential Information shall terminate only when it becomes generally known to
the public other than through a breach by it or employees and/or agents of the
obligations hereunder. The Consultant agrees that irreparable injury
will result to the Company if it or its employees and/or agents breaches any of
the terms of this Article, and that in the event of any actual or threatened
breach of this Article, the Company will have no adequate remedy at
law. The Consultant further agrees that in such event, the Company
shall be entitled to immediate injunctive and other equitable relief without
bond and without the necessity of showing actual monetary
damages. Nothing herein shall affect any other right or remedy that
the Company may have as a result of such breach or threatened breach, including
the recovery of any damages which it is able to prove. In the event
the Consultant is subpoenaed in connection with any litigation or investigation
involving the Company or any affiliate, the Consultant will immediately notify
the Company and shall give the Company an opportunity to respond to such notice
before taking any action or making any decision in connection with such
subpoena. The Company will pay the Consultant for reasonable time (at
the rates and under the terms and conditions set forth in Article 2 above) and
will reimburse him for out of pocket expenses incurred as a result of such
cooperation (provided that all such reimbursements shall be requested and paid
within three months after being incurred). Nothing herein shall
prevent the Consultant from communicating with or participating to the extent
legally required in any government investigation.
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ARTICLE
SEVEN
MISCELLANEOUS
7.1 Waiver. None of the terms
of this Agreement may be waived except by an express agreement in writing signed
by the party against whom enforcement of such waiver is sought. The
failure or delay of either party in enforcing any of its rights under this
Agreement shall not be deemed a continuing waiver of such right.
7.2 Entire
Agreement. This Agreement
represents the final, complete, and exclusive embodiment of the entire agreement
and understanding between Bank and Consultant concerning Consultant’s consulting
services to Bank, and supersedes and replaces any and all agreements and
understandings concerning Consultant’s consulting services to Bank.
7.3 Amendments. This Agreement
may not be released, discharged, amended or modified in any manner except by an
instrument in writing signed by Consultant and Bank’s CEO &
Chairman.
7.4 Assignment. Bank has
specifically contracted for the Services of Consultant and, therefore,
Consultant may not assign or delegate Consultant’s obligations under this
Agreement, either in whole or in part, without the prior written consent of
Bank. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors, and administrators of the parties
hereto.
7.5 Severability. If any provision
of this Agreement is, becomes, or is deemed invalid, illegal or unenforceable in
any jurisdiction, such provision shall be deemed amended to conform to the
applicable laws so as to be valid and enforceable, or, if it cannot be so
amended without materially altering the intention of the parties hereto, it
shall be stricken and the remainder of this Agreement shall remain in full force
and effect.
7.6 Headings. Article and
Section headings contained in the Agreement are included for convenience only
and are not to be used in construing or interpreting this
Agreement.
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7.7 Governing
Law. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Iowa or of Consultant’s legal residence if that is other than Iowa.
7.8 Notices. All notices
required or permitted to be given under this Agreement must be in writing and
may be given by any method of delivery which provides evidence or confirmation
of receipt, including but not limited to personal delivery, express courier
(such as Federal Express) and prepaid certified or registered mail with return
receipt requested.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement by proper persons thereunto duly
authorized.
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FIRST
FEDERAL SAVINGS BANK OF IOWA
By: /s/ Xxxxx X.
Xxxxxxx
Its CEO & Chairman
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CONSULTANT
Signature: /s/ Xxxx
Xxxx
Printed
Name: Xxxx Xxxx
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Date:
January 5, 2010
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Date:
January 5, 2010
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