Exhibit 10.11
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into as of
May 6, 2003, by and between KANKAKEE BANCORP, INC., a Delaware corporation (the
"Company"), and XXXXX X. XXXXXXXXX (the "Consultant").
RECITALS
WHEREAS, the Company is exploring a certain proposed merger or acquisition
opportunity and desires the expertise the Consultant can provide in connection
with the opportunity; and
WHEREAS, the Consultant has agreed to provide his services to the Company
on the terms and conditions hereinafter set forth;
NOW, THEREFORE, effective as of May 6, 2003, the Company and the Consultant
hereby agree as follows:
AGREEMENTS
1. Engagement, Period of Engagement.
(a) The Company offers to engage the Consultant and the Consultant
hereby accepts such engagement, to provide services to the Company as a
consultant for the period established under this Section 1 (the "Period of
Engagement"). The Period of Engagement commences on May 6, 2003 and shall end on
September 15, 2003.
(b) Notwithstanding anything contained herein to the contrary, the
Period of Engagement shall end upon any termination of this Agreement pursuant
to Section 5.
2. Services. During the Period of Engagement, the Consultant shall provide
the following services:
(a) perform financial analyses of the Company and any organization with
which the Company may merge or which the Company may acquire;
(b) advise the Company as to the structure and form of any proposed
merger or acquisition;
(c) be a liaison with the Company's attorneys and accountants with
respect to any proposed merger or acquisition;
(d) be the overall coordinator for the Company concerning the proposed
merger or acquisition, including matters of systems integration and personnel
integration; and
(e) make such presentations and reports to the Board of Directors of the
Company (the "Board") and the Chairman of the Board (the "Chairman") as and when
the Board or the Chairman may request.
3. Compensation. In consideration for any services to be provided under
Section 2, the Company shall pay to the Consultant a consulting fee of Two
thousand five hundred dollars ($2,500.00) per week, payable within ten (10)
business days of the end of each month in which services are rendered hereunder
by the Consultant to the Company. Within five (5) business days of the end of
each month, the Consultant shall provide to the Company a report detailing the
services provided during the previous month by the Consultant pursuant to this
Agreement, such report to be in form and content reasonably acceptable to the
Company.
4. Expenses. If in connection with the performance of service hereunder at
the request of the Company, the Consultant incurs out-of-pocket costs for
expenses for travel, meals and lodging or other reasonable expenses of a type
for which other providers of professional services to the Company would be
reimbursed by the Company, the Consultant shall be entitled to reimbursement
therefor by the Company in accordance with the reasonable standards and
procedures established by the Company and communicated to the Consultant.
5. Termination of Agreement. This Agreement and the Period of Engagement
established hereunder shall terminate immediately upon the occurrence of any of
the following events: (i) the Consultant's death; (ii) the Consultant's material
breach of the Consultant's obligations under Section 2 and subsequent failure to
substantially cure such breach after notice of such breach; or (iii) the
Consultant's voluntary termination, upon thirty (30) days written notice to the
Company, of this Agreement. Following the termination of this Agreement, the
Company shall have no further obligations hereunder. The provisions of Sections
6 and 7 shall survive the termination of this Agreement.
6. Nonsolicitation. In consideration of the compensation to be paid to the
Consultant pursuant to Section 3, the Consultant hereby covenants and agrees
that for a period of twelve (12) months following the termination of this
Agreement for any reason, the Consultant will not directly or indirectly
(including, without limitation, any action by any corporation, partnership or
other entity for which the Consultant acts as officer, employer, or consultant
or in which the Consultant directly or indirectly holds a shareholder or other
ownership position greater than five percent(5%)) offer employment to, hire,
engage or assist another in offering employment to, hiring or engaging (without
regard to whether it would be in competition with the Company's business) a
person who is or was an employee, commissioned sales person or consultant or who
performed similar services of or for the Company at any time during the then
preceding twelve (12) month period or undertake any business with or solicit the
business of any person, firm or company who shall have been a customer of the
Company during the then preceding twelve (12) month period, in any such case
without the prior written consent of the Company.
7. Confidential Information. The Consultant shall maintain Confidential
Information (as defined below) in strict confidence and secrecy and shall not at
any time, directly or indirectly, use, publish, make lists of, communicate,
divulge or disclose to any person or business entity or use for any purpose any
Confidential Information or assist any third parties in doing so, except on
behalf of and for the benefit of the Company. The Consultant agrees, upon demand
by the Company, to promptly return all Confidential Information (including any
copies, extracts thereof or materials reflecting any such information) which is
in the Consultant's possession.
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For purposes of this Agreement, "Confidential Information" shall include,
but not be limited to, materials, records, data or trade secrets regarding the
assets, condition, business, financial information, business affairs, business
matters or other matters related to the Company and to its direct and indirect
subsidiaries and affiliates which the Consultant has knowledge of as a result of
the Consultant's services for the Company. Confidential Information shall not
include information that becomes generally available to the public other than as
a result of disclosure by the Consultant. Nothing in this Agreement modifies or
reduces the Consultant's obligations to comply with applicable laws related to
trade secrets, confidential information or unfair competition.
8. No Employment Relationship Created. The relationship between the Company
and the Consultant shall be that of client and independent contractor. The
Company shall not assume, and specifically disclaims, any obligations of an
employer to an employee which may exist under applicable law. The Consultant
shall be treated as an independent contractor for all purposes of federal, state
and local income taxes and payroll taxes and the Company shall report on the
appropriate IRS Form 1099 all compensation paid to the Consultant. The
Consultant shall be responsible for payment of all taxes, including federal,
state and local taxes, arising out of the Consultant's activities in accordance
with this Agreement, including by way of illustration, but not limitation,
federal and state personal income tax and social security tax, all as may be
required by applicable law or regulation. The Consultant shall have the full
authority to select the means, manner and method of performing the services to
be performed under this Agreement. The Consultant shall not be considered by
reason of the provisions of this Agreement or otherwise as being an employee of
the Company. The Consultant shall not be eligible to participate in any employee
benefit plans offered by the Company or any of its subsidiaries to their
respective employees.
9. Successors and Assigns. This Agreement will inure to the benefit of and
be binding upon the Consultant, the Consultant's legal representatives and
testate or intestate distributees, and the Company, and its successors and
assigns, including, in the case of the Company, 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
Company may be sold or otherwise transferred. The Consultant may not assign any
of his rights under this Agreement without the prior written consent of the
Company. Except as expressly provided herein, nothing in this Agreement shall be
construed to give any person other than the parties to this Agreement any legal
or equitable right, remedy or claim under or with respect to this Agreement or
any provision of this Agreement.
10. Waiver. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power or privilege, and no single or partial exercise of any such right, power
or privilege will preclude any other or further exercise of such right, power or
privilege or the exercise of any other right, power or privilege.
11. Modification. This Agreement may only be amended by a written agreement
executed by both parties.
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12. Notices. All notices and other communications under this Agreement must
be in writing and will be deemed to have been duly given if delivered by hand or
by nationally recognized overnight delivery service (receipt requested) or
mailed by certified mail (return receipt requested) with first class postage
prepaid:
(a) if to the Company, to:
Kankakee Bancorp, Inc.
000 X. Xxxxxxxx Xxx.
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chairman of the Board
with a copy to:
Xxxx X. Xxxxxxxxx, Esq.
Barack, Xxxxxxxxxx
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
(b) if to Consultant, to:
Xx. Xxxxx X. Xxxxxxxxx
0000 Xxxxxx Xx., Xxx. 0X
Xxxxxx, XX 00000
or to such other person or place as either party shall furnish to the other in
writing. Except as otherwise provided herein, all such notices and other
communications shall be effective: (x) if delivered by hand, when delivered; (y)
if mailed in the manner provided in this Section, five (5) business days after
deposit with the United States Postal Service; or (z) if delivered by overnight
express delivery service, on the next business day after deposit with such
service.
13. Entire Agreement. This Agreement and any documents executed by the
parties pursuant to this Agreement and referred to herein constitute a complete
and exclusive statement of the entire understanding and agreement of the parties
hereto with respect to their subject matter and supersede all other prior
agreements and understandings, written or oral, relating to such subject matter
between the parties.
14. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement. Without limiting the
generality of the foregoing, if the scope of any provision contained in this
Agreement is too broad to permit enforcement to its full extent, but may be made
enforceable by limitations thereon, such provision shall be enforced to the
maximum extent permitted by law, and the Consultant hereby agrees that such
scope may be judicially modified accordingly.
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15. Counterparts. This Agreement and any amendments hereto may be executed
in any number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Company 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.
KANKAKEE BANCORP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxxx
Chairman of the Board
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