CONSULTING AGREEMENT
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This CONSULTING AGREEMENT ("Agreement") is made and entered into as of
March 31, 2001 ("Effective Date") by and between BIG FOOT FINANCIAL CORP., a
corporation organized and existing under the laws of the State of Illinois and
having its executive offices at 0000 XXX, Xxxx Xxxxx, Xxxxxxxx 00000-0000
("Corporation") and XXXXXX X. XXXXXX, residing at 0000 Xxxx Xxxx Xxxxx, Xxxxxxx
Xxxx, Xxxxxxxx 00000 ("Consultant").
W I T N E S S E T H :
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WHEREAS, the Corporation is a savings and loan holding company of
which Fairfield Savings Bank, F.S.B., a savings bank organized and operating
under the federal laws of the United States ("Bank"), is a wholly-owned
subsidiary; and
WHEREAS, the Consultant is an executive of the Corporation and the
Bank and is familiar with its business, operations and properties; and
WHEREAS, the Consultant has expressed an interest in retiring and, in
connection therewith, withdrawing from the day-to-day management of the Company
and the Bank; and
WHEREAS, the Consultant, the Corporation and the Bank have determined
that it is in their mutual best interest to provide for an orderly transition of
management responsibilities by assuring that the successor management team has
continuing access, during a transition period, to the Consultant's wisdom,
experience and knowledge of the Bank and its operations; and
WHEREAS, the Consultant is willing to make his services available to
the Corporation on the terms and conditions hereinafter set forth;
NOW, THEREFORE, the Corporation and the Consultant hereby agree as
follows:
SECTION 1. ENGAGEMENT; PERIOD OF ENGAGEMENT.
The Corporation offers to engage the Consultant, and the Consultant
hereby accepts such engagement, to provide services to the Corporation as a
consultant for a period of five (5) years beginning on the Effective Date and
ending on the day before the fifth anniversary of the Effective Date or, if
earlier, the date of termination of this Agreement in accordance with section 6
hereof ("Period of Engagement").
SECTION 2. EXTENT OF SERVICES.
(a) During the Period of Engagement, the Consultant shall do or hold
himself available to do the following:
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(i) The Consultant shall hold himself available during regular
business hours to perform such services in connection with the ownership,
maintenance and operation of the businesses and assets of the Corporation
and its affiliates as the Corporation may reasonably request; PROVIDED,
HOWEVER, that the Corporation shall have no obligation to avail itself of
the Consultant's services. The Corporation may, in its sole and absolute
discretion, engage other employees or independent contractors to perform
any or all of the services for which the Consultant is available under this
section 2(a)(i).
(ii) In addition to the services, if any, to be provided pursuant to
section 2(a)(i) of this Agreement, the Consultant may serve as a
non-employee director of the Corporation or the Bank and receive
compensation therefor in the manner in effect from time to time for
non-employee directors of the Corporation and the Bank, as applicable. If,
and for such portion of the Period of Engagement as the Consultant shall
serve as a non-employee director of the Corporation or the Bank, he shall
hold the positions and titles of Chairman of the Board of Directors of the
Corporation ("Board") and Chairman of the Board of Directors of the Bank
("Bank Board"), but such positions and titles shall not accord him the
status or authority of an employee or officer of the Corporation or the
Bank. As Chairman of the Board and Bank Board, the Consultant shall preside
over board meetings and serve as a liaison between management and the
boards. Termination of service as a non-employee director of either board
for any reason whatsoever shall, concurrently and without any further act
or deed on the part of the Consultant or the Corporation, extinguish the
Consultant's position and title as Chairman of such board but shall not
otherwise affect his engagement as a consultant.
The Corporation shall not require the Consultant to perform services under this
Agreement on more than ten (10) business days or for more than 100 hours in a
calendar quarter. The Consultant may perform services, as an employee or
independent contractor, other than for the Corporation to the extent that the
performance of such services does not impair the Consultant's availability to
perform services for the Corporation as contemplated by this Agreement or
contravene the provisions of section 5 of this Agreement.
(b) In the performance of any services required of him hereunder, the
Consultant shall have exclusive control over the manner of performance of such
services, including, without limitation: the selection, supervision and
compensation of personnel, if any, in addition to the Consultant to be involved
in the performance of such services; the selection of methods, procedures,
strategies and equipment to be employed in the performance of such services; and
determination of the places and dates at which such services will be performed.
SECTION 3. COMPENSATION.
(a) In consideration for the availability of the Consultant's services
hereunder, as well as for any services to be provided hereunder, the Corporation
shall pay to the Consultant a retainer at the monthly rate of NINE THOUSAND TWO
HUNDRED AND SIXTY-SEVEN DOLLARS ($9,267), payable monthly, the first such
payment to be made on the first business day of the first calendar month
following the Effective Date; PROVIDED, HOWEVER, that no payment shall be made
for
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any month after the month in which this Agreement terminates, except as provided
in section 6 hereof.
(b) The Consultant's employment as a common law employee of the Bank
and the Corporation shall terminate on the Effective Date, and such termination
shall be treated as a voluntary resignation due to retirement for purposes of
the Employment Agreement between the Consultant and the Bank and the separate
Employment Agreement between the Consultant and the Corporation. Thereafter, the
Consultant shall continue to receive such compensation and benefits for which he
may be eligible as a former employee but shall not otherwise be eligible to
participate in the employee benefit and compensation plans of the Bank or the
Corporation.
(c) For so long as the Consultant performs services for the Bank or
the Corporation in any capacity as an employee, director or consultant, he shall
not be deemed to have incurred a termination of service or a retirement for
purposes of determining the vesting of the stock options and restricted stock
awarded to him under the Big Foot Financial Corp. 1997 Recognition and Retention
Plan or the Big Foot Financial Corp. 1997 Stock Option Plan.
(d) The compensation provided under this section 3 shall be in
addition to and not in substitution for any compensation or benefits which the
Consultant may be eligible to receive under the compensation and benefit
programs in effect for non-employee directors of the Bank or the Corporation. In
addition to participation in the compensation and benefit programs generally
applicable to non-employee directors, the Corporation shall, for so long as the
Consultant remains a non-employee director of the Corporation, reimburse him for
the premium costs he incurs to purchase group health insurance coverage for
himself and his spouse under any group health plan maintained by the Corporation
or the Bank for the benefit of non-employee directors. In the event of a change
in control (as such term is defined in the Big Foot Financial Corp. 1997
Recognition and Retention Plan) while the Consultant is serving as a
non-employee director of the Corporation, the Corporation shall provide the
Consultant and his spouse, at the Corporation's expense for so long as either of
them shall live, continued health insurance coverage on terms and conditions no
less favorable than those in effect for them immediately prior to the occurrence
of the change in control.
SECTION 4. EXPENSES.
(a) The Corporation shall provide the Consultant with office
facilities and secretarial and other support services on its premises to the
extent required to perform the consulting services contemplated herein, as
determined by the Corporation in its discretion.
(b) If, in connection with the performance of service hereunder at the
request of the Corporation, the Consultant incurs out-of-pocket costs for
reasonable expenses of a type for which other providers of professional services
to the Corporation would be reimbursed by the Corporation, he shall be entitled
to reimbursement therefor by the Corporation in accordance with the standards
and procedures in effect from time to time for expense reimbursements to the
Corporation's professional advisors.
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SECTION 5. CONFIDENTIALITY; NONSOLICITATION; COVENANT NOT TO COMPETE.
(a) During the Period of Engagement and at all times thereafter, the
Consultant, except as previously authorized by the Corporation in writing, shall
keep confidential and shall refrain from using or disclosing for the benefit of
any person or entity other than the Corporation or its affiliates any document
or information obtained in the course of performing services under this
Agreement or as an officer, employee, or director of the Corporation or the Bank
prior to the Effective Date. The preceding sentence shall not apply to the use
or disclosure of any such document or information: (i) on or following the date
on which such information or document is first readily ascertainable from public
or published information or trade sources; or (ii) in connection with any
judicial or administrative investigation, inquiry or proceeding to the extent
compelled pursuant to applicable law and as to which, unless expressly
prohibited by applicable law, the Consultant has given advance notice to the
Corporation.
(b) The Consultant acknowledges that during the course of his
employment with the Corporation or the Bank and performance of service for the
Corporation under this Agreement he may develop or otherwise acquire papers,
files or other records involving or relating to confidential or secret plans,
design information of any kind, devices, material, research, new product
development, customers or customer lists. All such papers, files and other
records shall be the exclusive property of the Corporation and shall, together
with any and all copies thereof, be returned to the Corporation upon the
earliest to occur of the termination of this Agreement, the expiration of the
Period of Engagement, and a request by the Corporation for the return thereof.
(c) The Consultant hereby covenants and agrees that, during the Period
of Engagement and at all times thereafter, he shall not, without the written
consent of the Corporation, either directly or indirectly:
(i) 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 Corporation or
any affiliate to terminate his or her employment and accept employment or
become affiliated with, or provide services for compensation in any
capacity whatsoever to, any entity that directly or indirectly competes
with this Corporation in any market area in which it is then active;
(ii) provide any information, advice or recommendation with respect to
any such officer or employee of any entity engaged or to be engaged in the
same or a competing business with the Corporation or any affiliate 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
Corporation or any affiliate to terminate his or her employment and accept
employment or become affiliated with, or provide services for compensation
in any capacity whatsoever to, any entity that directly or indirectly
competes with the Corporation or any affiliate in any market area in which
it is then active;
(iii) solicit, provide any information, advice or recommendation or
take any other action intended, or that a reasonable person acting in like
circumstances
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would expect, to have the effect of causing any customer of the Corporation
or any affiliate to terminate an existing business or commercial
relationship with the Corporation or any affiliate.
(iv) engage or participate in, assist or have interest in, directly or
indirectly, any business or enterprise which is directly or substantially
in competition with the present or presently contemplated business or
prospects of the Corporation or its affiliates within the territories in
which the Corporation or its affiliates are operating, engaged in starting
operations or acquiring new operations;
(v) take any action as a result of which the relations between the
Corporation and its affiliates and their customers or others are impaired
or which is otherwise detrimental to the business of the Corporation and
its affiliates as then conducted.
The Consultant acknowledges that the businesses of the Corporation and its
affiliates include, but are not limited to, the acceptance of deposits in all
territories located within a one hundred (100) mile radius of any branch office
of any banking subsidiary of the Corporation, the origination of residential and
commercial mortgage loans in any state in which the Corporation or any of its
subsidiaries maintains a loan production facility or has a contractual
relationship with one or more mortgage brokers for the origination or referral
for origination of mortgage loans and that the entities that compete
substantially, directly or indirectly, with the Corporation and its affiliates
include, but are not limited to any entity which solicits or accepts deposits
within a one hundred (100) mile radius of any branch office of any banking
subsidiary of the Corporation and any person or entity that originates mortgage
loans or solicits mortgage loans for origination by others in any state in which
the Corporation or any of its subsidiaries maintains a loan production facility
or has a contractual relationship with one or more mortgage brokers for the
origination or referral for origination of mortgage loans.
(d) The duties and obligations imposed on the Consultant under this
section 5 are intended to be in addition to, and not in limitation or exclusion
of, any duties and obligations which the Consultant may owe to the Corporation
or its affiliates under applicable law. This section 5 shall be construed and
enforced so as to give effect to this intent. The Consultant hereby stipulates
that the Corporation has a legitimate business interest in restricting the
Consultant's activities in the manner provided herein, and that the compensation
paid to him hereunder is adequate compensation to him for the imposition and
observance of such restrictions.
SECTION 6. TERMINATION OF AGREEMENT.
This Agreement and the Period of Engagement established hereunder
shall terminate immediately upon the occurrence of any of the following events:
(a) the Consultant's death; (b) a determination by the Corporation, on the basis
of competent medical evidence (access to which shall not be unreasonably
withheld by the Consultant), that the Consultant is mentally or physically
unable to perform the services which may be required of him hereunder; (c) the
Consultant's breach of his obligations under sections 2, 5, 7 or 9 hereof; or
(d) a determination by the Corporation, acting in good faith, that the
Consultant has been convicted of a felony or has engaged in illegal, dishonest
or morally reprehensible conduct resulting in material injury to the Corporation
or its businesses or reputation. Upon termination of the Agreement upon the
occurrence of events described in section
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6(a) or (b) the Consultant (or in the event of his death, his estate) shall be
deemed to have accrued the right to continue to receive monthly retainer
payments in the amount provided under section 3(a) through the fifth anniversary
of the Effective Date and shall continue to be bound by sections 5, 7, and 9 of
this Agreement but shall otherwise have no further obligations hereunder.
Following the termination of this Agreement under any other circumstances, the
Corporation shall have no further obligations hereunder, but the Consultant
shall continue to be bound by the provisions of sections 5, 7 and 9.
SECTION 7. NO EMPLOYMENT RELATIONSHIP CREATED.
The relationship between the Corporation and the Consultant shall be
that of client and independent contractor. The Corporation shall not assume, and
specifically disclaims, any obligations of an employer to an employee which may
exist under applicable law. The Consultant shall not have any of the rights of
an employee with respect to the Corporation, and specifically waives any and all
such rights. The Consultant hereby agrees to take any and all such actions as
the Corporation may reasonably request in order to establish that no employment
relationship exists between the parties. The Consultant shall be treated as an
independent contractor for all purposes of federal, state and local income taxes
and payroll taxes. In the event that it shall be determined that the Corporation
is liable for the payment of taxes or the provision of statutorily mandated
benefits with respect to the Consultant on account of his engagement hereunder,
all amounts which the Corporation is required to pay for such taxes or benefits,
or both, shall be deducted from the compensation otherwise payable to the
Consultant.
SECTION 8. RIGHT TO SPECIFIC PERFORMANCE.
The Consultant hereby agrees that any breach of his covenants and
agreements under sections 5, 7 or 9 of this Agreement will cause irreparable
injury to the Corporation for which the Corporation has no adequate remedy at
law. Therefore, the Consultant agrees that each and every covenant and agreement
set forth in section 5, 7 and 9 shall, in addition to and not by way of
limitation of any other remedy (including money damages) which may be available,
be specifically enforceable against him by any party entitled to enforcement
thereof.
SECTION 9. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding upon the
Consultant, his legal representatives and testate or intestate distributees, and
the Corporation, and their respective successors and assigns, including, in the
case of the Corporation, any successor by merger or consolidation or a statutory
receiver or any other person or firm or corporation to which all or
substantially all of the respective assets and business of the Corporation may
be sold or otherwise transferred. Notwithstanding the foregoing, the
availability of the personal services of the Consultant is an integral part of
this Agreement. The Consultant's duty of performance hereunder shall not be
subject to assignment, and the rights, if any, of the Consultant hereunder shall
inure to the benefit of his legal representatives and testate or intestate
distributees only to the extent that such rights shall have accrued prior to the
date of the Consultant's death or legal incapacity.
SECTION 10. NOTICES.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5)
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days after mailing if mailed, postage prepaid, by registered or certified mail,
return receipt requested, addressed to such party at the address listed below or
at such other address as one such party may by written notice specify to the
other party:
If to the Consultant:
Xxxxxx X. Xxxxxx
0000 Xxxx Xxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxx 00000
If to the Corporation:
Big Foot Financial Corp.
0000 XXX
Xxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxx Xxxxxxxx & Xxxx
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. Xxxxxx Xxxxxx, Esq.
SECTION 11. SEVERABILITY.
A determination that any provision of this Agreement, in whole or in
part, is invalid or unenforceable shall not affect the validity or
enforceability of any other provision hereof or of any part of the provision in
question not determined to be unenforceable.
SECTION 12. WAIVER.
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
SECTION 13. COUNTERPARTS.
This Agreement may be executed in two (2) or more counterparts, each
of which shall be deemed an original, and all of which shall constitute one and
the same Agreement.
SECTION 14. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Illinois without giving effect to the
conflict of law principles of such laws. Notwithstanding anything herein
contained to the contrary, any payments to the Consultant by the Corporation,
whether pursuant to this Agreement or otherwise, are subject to and conditioned
upon
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their compliance with section 18(k) of the Federal Deposit Insurance Act, 12
U.S.C.ss.1828(k), and any regulations promulgated thereunder.
SECTION 15. HEADINGS AND CONSTRUCTION.
The headings of sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section. Any
reference to a section number shall refer to a section of this Agreement, unless
otherwise stated.
SECTION 16. ENTIRE AGREEMENT; MODIFICATIONS.
This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or rep resentations relating to the subject matter
hereof; PROVIDED, HOWEVER, that this instrument shall not supersede the
Employment Agreements entered into on December 19, 1997, by and between the
Corporation and the Consultant and the Bank and the Consultant (as the same may
have been amended from time to time), it being understood and agreed that such
Employment Agreements remain in full force and effect to the extent that the
provisions thereof survive the termination of the Consultant's services as a
common law employee of the Bank and the Corporation in a voluntary resignation.
No modifications of this Agreement shall be valid unless made in writing and
signed by the parties hereto.
SECTION 17. DISPUTE RESOLUTION.
Any controversy or claim arising out of or relating to this Agreement,
or the breach hereof, shall be settled by arbitration in accordance with the
Commercial Rules of the American Arbitration Association and judgment upon the
award rendered by the arbitral tribunal may be entered in any court having
jurisdiction thereof. The arbitration shall be held in Chicago, Illinois, or at
such other place as may be selected by mutual agreement. The arbitration shall
be conducted before a panel of three neutral arbitrators, all of whom shall be
members of the Bar of the State of Illinois, actively engaged in practice of law
for at least ten (10) years. Within fifteen (15) days after the commencement of
the arbitration, each party shall select one person to act as arbitrator, and
the two selected shall select a third arbitrator within ten (10) days after
their appointment; if the arbitrators selected by the parties hereto are unable
or fail to agree upon the third arbitrator, the third arbitrator shall be
selected by the President of the American Arbitration Association or his
designee. Either party may, without inconsistency with this Agreement, seek from
a court any interim or provisional relief that may be necessary to protect the
rights or property of that party pending the arbitral tribunal's determination
of the merits of the controversy. Neither party nor the arbitrators may disclose
the existence, content, or results of any arbitration hereunder without the
prior written consent of both parties. The prevailing party shall be entitled to
an award of reasonable attorneys' fees.
SECTION 18. SURVIVAL.
Any provision of this Agreement which contemplates the taking of
action or the performance of duty after the Period of Engagement, including, but
not limited to, the provisions of sections 5, 7, 8, 9 and 18 of this Agreement,
shall survive the termination of this Agreement and the expiration of the Period
of Engagement.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement
to be executed and the Consultant has hereunto set his hand, all as of the day
and year first above written.
____________________________________
Xxxxxx X. Xxxxxx
BIG FOOT FINANCIAL CORP.
By:_________________________________
Title:______________________________
ATTEST:
By_________________________________
SECRETARY
