Exhibit 10.34
CONSULTING AGREEMENT
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This Consulting Agreement (this "Agreement") is made and entered into
as of September 21, 1998, by and between Bank Plus Corporation ("Bank Plus") and
Fidelity Federal Bank, A Federal Savings Bank ("Fidelity") (Bank Plus and
Fidelity together referred to as the "Company"), on the one hand, and Xxxxxxx X.
Xxxxxxxxx ("Consultant"), on the other hand, with reference to the following
facts:
RECITALS
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A. Consultant has previously served as an officer and a director
of Bank Plus and Fidelity;
B. Consultant, Fidelity and Bank Plus have entered into the
letter agreement dated September 19, 1998 (the "Severance
Agreement"), the terms and conditions of which are
incorporated in this Agreement by reference;
C. Pursuant to the Severance Agreement, the Company has agreed to
retain Consultant to provide consulting services on the terms
and subject to the conditions set forth in this Agreement and
in the Severance 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 in
accordance with the Severance Agreement (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. To the extent that any term in this Agreement shall be
deemed or interpreted to be inconsistent with the terms and conditions of the
Severance Agreement, the Severance Agreement shall govern and shall supercede
such inconsistent term in this Agreement.
2. TERM. The term of this Agreement shall commence as of the date
hereof and shall continue for a period of twenty-four (24) months or until a
change in control as defined in Section 4.3 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 ten (10) hours per 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 and Delaware unless
Consultant agrees to perform Services elsewhere. 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 10
hours per month shall be a monthly requirement and shall not be cumulative. 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 10 hours and
not 20 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 $16,154.00 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 automatically
every two weeks.
4.2. COMPUTER AND OTHER EQUIPMENT. In order to facilitate the
provision by Consultant of the Services, Consultant may retain and use, at no
cost to Consultant, a desktop computer and a computer printer/facsimile machine
to be provided by the Company. Upon the termination of this Agreement,
Consultant shall be entitled to purchase such equipment from the Company for a
purchase price equal to the fully depreciated book value of such equipment.
4.3. 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 Company shall have no 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
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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 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.
4.4. REIMBURSEMENT OF EXPENSES. During the term of this
Agreement, the Company shall pay or reimburse Consultant for all reasonable
travel, telephone and other expenses paid or incurred by Consultant in
connection with the performance of the Services upon presentation of appropriate
documentation of such expenses. In addition, if significant expenses are
anticipated for travel, including airfare and hotel charges, Consultant may
obtain an advance from the Company upon any reasonable request made by
Consultant.
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.
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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.
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 personal injuries of any type and nature, the
alleged creation of an employee/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: Xxxxxxx X. Xxxxxxxxx,
00000 Xxxx Xxxxxxx, Xxxxxxxxx, XX 00000.
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.
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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.
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 XXXXXXX X. XXXXXXXXX
By: /S/ XXXX XXXXX /S/ XXXXXXX X. XXXXXXXXX
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Name: Xxxx Xxxxx
Title: Chief Executive Officer
FIDELITY FEDERAL BANK,
A Federal Savings Bank
By: /S/ XXXX XXXXX
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Name: Xxxx Xxxxx
Title: Chief Executive Officer
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