AMENDED AND RESTATED SERVICES AGREEMENT
EXHIBIT 10.3
AMENDED AND RESTATED SERVICES AGREEMENT
THIS AMENDED AND RESTATED SERVICES AGREEMENT (the “Agreement”) is entered into as of this 9th day of August, 2007, between the Federal Home Loan Bank of Atlanta (the “Bank”) and SJG Financial Consultants, LLC, a Georgia limited liability company (“Contractor”).
WHEREAS, the parties entered into that certain Services Agreement, dated as of April 23, 2007 (the “Original Services Agreement”), and the parties now wish to amend and restate the Original Services Agreement, together with the Indemnification Agreement, dated as of April 23, 2007 (“Indemnification Agreement”), among the Bank, Contractor and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇▇▇”);
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Bank and Contractor hereby agree as follows:
| 1. | Engagement |
Subject to the terms and conditions of this Agreement, the Bank hereby engages Contractor to perform the Services (defined below), and Contractor hereby accepts such engagement. Contractor’s relationship with the Bank will be strictly that of an independent contractor. Nothing in this Agreement should be construed to create a partnership, joint venture, employer-employee relationship, or promise of any future employment by the Bank or any affiliate thereof. Contractor is not the agent of the Bank and is not authorized to make any representation, contract, or commitment on behalf of the Bank except as is necessary in order for him to perform the Services. Contractor will not be entitled to any of the benefits or forms of compensation which the Bank may make available to its employees, including but not limited to bonuses, insurance, profit-sharing or retirement benefits, social security benefits, paid vacations or paid sick leave.
| 2. | Scope of Services |
Subject to the provisions of this Agreement, Contractor shall assign one of its employees, ▇▇▇▇▇▇▇▇▇, to perform the usual and customary duties of chief financial officer, and such other assignments as may be given to him by the president and chief executive officer of the Bank from time to time (the “Services”). ▇▇▇▇▇▇▇▇▇ will report directly to the president and chief executive officer of the Bank. During the term of this Agreement, Contractor shall cause ▇▇▇▇▇▇▇▇▇ to devote as much of his productive time, energy and abilities to the performance of the Services as is necessary for the performance of such Services in a timely and productive manner. The parties further expect that ▇▇▇▇▇▇▇▇▇ will conduct most of the Services at the principal office of the Bank. Contractor agrees to cause ▇▇▇▇▇▇▇▇▇ to behave in a responsible and professional manner at all times while performing the Services under this Agreement. The parties hereby agree and acknowledge that ▇▇▇▇▇▇▇▇▇ shall be the only employee of Contractor that is authorized by the parties to perform the Services on behalf of the Contractor hereunder.
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| 3. | Compensation; Taxes |
(a) The Bank shall pay Contractor $380,000 per year in twelve equal monthly installments (each such monthly installment, the “Base Fee”) for the Services provided to the Bank under this Agreement.
(b) The Contractor also shall be eligible to receive, in the Bank’s discretion, each calendar year, an incentive fee (“Incentive Fee”), determined as a percentage of the Base Fee paid to the Contractor for the immediately preceding calendar year, in an amount up to the maximum annual incentive compensation award opportunity available to an executive vice president of the Bank under the Bank’s Executive Incentive Compensation Plan for such immediately preceding calendar year.
(c) Contractor shall send the Bank an invoice for its Base Fee and expenses provided hereunder for the immediately preceding calendar month by the 15th day of the following calendar month. Contractor’s failure to send the Bank an invoice by such date shall not relieve the Bank of its obligation to pay Contractor for its performance of the Services. The Bank shall pay the invoice by the end of the calendar month in which such invoice is received.
(d) Contractor understands and agrees that, as an independent contractor, it is solely responsible for all taxes and other costs and expenses attributable to the compensation payable to and the Services provided by it under this Agreement. Contractor understands and agrees that it is obligated to pay federal, state and local income tax, if any, due on any monies paid to it pursuant to this Agreement, and Contractor represents that it has taken and will take any and all actions required to comply with all applicable federal, state and local laws pertaining to the same.
| 4. | Equipment and Expenses |
(a) The Bank shall supply Contractor with the equipment and support reasonably necessary to perform the Services under this Agreement, including office space for ▇▇▇▇▇▇▇▇▇ at the Bank’s principal office and access to facsimile, telephone, and internet services at such location.
(b) The Bank shall reimburse Contractor for reasonable and documented expenses incurred by Contractor in the performance of the Services, in accordance with the Bank’s normal policies and procedures. Contractor shall not be reimbursed for meal costs while performing the Services at the Bank’s principal office, commuting costs or other expenses associated with the normal performance of the Services at the Bank’s principal office on a daily basis.
| 5. | Representations and Warranties of Contractor |
(a) Contractor represents that it shall have control over the means of providing the Services identified herein. Contractor agrees to accept exclusive liability for complying with all applicable state and federal laws governing self-employed individuals and employers, including but not limited to obligations such as payment and withholding of taxes, social security, disability, workers’ compensation insurance, and other contributions based on fees paid to
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Contractor under this Agreement. Contractor agrees to provide to the Bank a certificate of workers’ compensation insurance or confirmation of exemption.
(b) Contractor commits to perform, and to cause ▇▇▇▇▇▇▇▇▇ to perform, the Services ethically and honestly and in a competent and efficient manner using their best efforts to accomplish the objectives of the Bank. Contractor agrees to perform, and to cause ▇▇▇▇▇▇▇▇▇ to perform, all Services in strict compliance with any and all applicable federal, state, and local laws, regulations and guidelines known to Contractor, and in accordance with any other relevant professional or other standards known to Contractor. Contractor agrees, and agrees to cause ▇▇▇▇▇▇▇▇▇, to act ethically and honestly with respect to reports and documents that the Bank files with, or submits to, the United States Securities and Exchange Commission, and other regulatory filings and public communications, for which preparation Contractor or ▇▇▇▇▇▇▇▇▇ is involved with, or supervises, on behalf of the Bank.
| 6. | Conflicts of Interest |
(a) Contractor represents that it has advised the Bank in writing prior to the date of signing this Agreement of any of its or ▇▇▇▇▇▇▇▇▇’▇ relationship with any third parties, including members and competitors of the Bank, or other legal obstacles that would present a conflict of interest with Contractor’s or ▇▇▇▇▇▇▇▇▇’▇ performance of the Services, or which would prevent Contractor or ▇▇▇▇▇▇▇▇▇ from carrying out the terms of this Agreement. Contractor affirms that it shall, and it shall cause ▇▇▇▇▇▇▇▇▇ to, advise the Bank of any such conflicts of interest, legal or ethical obstacles or other violations of this Agreement that arise during the term of this Agreement. In such event, the Bank shall have the option to terminate this Agreement without further liability to Contractor other than the obligation to pay for Services actually rendered as of the date of such termination. Contractor further agrees to refrain from making any recommendations or taking any actions that would elevate its interests, or the interests of any client, over the interests of the Bank.
(b) During the term of his appointment as an officer of the Bank, ▇▇▇▇▇▇▇▇▇ agrees to comply with the provisions of the Bank’s Code of Conduct, subject to any exceptions or waivers granted thereunder in accordance therewith.
| 7. | Term and Termination |
(a) The term of this Agreement shall begin on April 23, 2007, and continue until April 23, 2008, unless earlier terminated as provided for herein, and shall be automatically extended for additional one-year terms (the “Term”), on April 23 of each year, unless either party gives notice, in writing, to the other party prior to such renewal date that it does not wish to extend such Term.
(b) The Bank may terminate this Agreement at any time prior to the end of the Term by giving written notice to Contractor. If this Agreement is terminated by the Bank, the Bank shall have no continuing financial obligation to Contractor other than (i) to pay the Base Fee for Services actually performed by Contractor through the date of termination to the extent not theretofore paid; and (ii) to reimburse Contractor for any expenses incurred by Contractor in accordance with the provisions of this Agreement (collectively, the “Accrued Obligations”).
(c) Contractor may terminate this Agreement at any time prior to the end of the Term for any reason by giving written notice to the Bank. If Contractor terminates this Agreement, or if
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the Agreement is not renewed or extended at the end of the Term, the Bank shall have no continuing financial obligation to Contractor other than to pay the Accrued Obligations.
| 8. | Right of Review |
During the Term, and for a period of one year after the termination of this Agreement for any reason whatsoever, the Bank and/or its representatives at reasonable times agreed to by Contractor, and upon reasonable written notice to Contractor, shall have the right to review all contracts, correspondence, books, accounts, files, and records of Contractor directly relating to Contractor’s performance of the Services or the compensation he received therefore.
| 9. | Indemnification of the Bank |
(a) Contractor shall defend, indemnify, and hold harmless the Bank from and against all liabilities, claims, losses, costs, fines, expenses, penalties and damages of any type (including reasonable attorneys’ fees and costs) arising out of actions taken (or failed to be taken) by Contractor in its performance of the Services that are determined by a court of competent jurisdiction to be grossly negligent, intentionally reckless or with willful disregard to the consequences of the Bank or other parties.
(b) The Bank shall promptly notify Contractor of any third party claim or potential claim that could give rise to a claim for indemnification under this Section 10. Contractor shall have the right to assume the defense of any such third party claim with counsel of its choice reasonably satisfactory to the Bank at any time within 15 days after the Bank has given Contractor notice of the third party claim; provided, however, that the Bank may retain separate co-counsel at its sole cost and expense, unless the Bank and Contractor have reasonably concluded that there may be a conflict of interest between them in the conduct of such defense, or the Contractor shall have failed to diligently pursue such defense, in which case the reasonable fees and expenses of the Bank’s counsel shall be paid by the Contractor. The Bank may participate in the defense of any third party claim against it, and the Contractor shall not settle any such claim in any manner that would impose any penalty or limitation on the Bank, or could damage its reputation, without the Bank’s prior written consent.
(c) The indemnification obligations of the Contractor hereunder shall continue in full force and effect in accordance with their terms upon termination of this Agreement if the acts or omissions resulting in indemnification liability to the Bank occurred during the Term in which this Agreement was in effect.
| 10. | Indemnification of Contractor and ▇▇▇▇▇▇▇▇▇ |
(a) Indemnity. Subject to the provisions of Subsection (c) hereof, the Bank shall defend, hold harmless and indemnify each of the Contractor and ▇▇▇▇▇▇▇▇▇ (hereinafter collectively referred to as “Indemnitee”) in any threatened, pending or completed action, suit or proceeding, whether formal or informal and whether civil, criminal, administrative, arbitrative or investigative (any of the foregoing being a “Proceeding”), by reason of the fact that it or he is or was (a) performing the usual and customary duties of chief financial officer of the Bank, (b) serving at the request of the Bank as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other entity or as a member of any committee or
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council, or (c) named in a report filed by the Bank under the Securities Exchange Act of 1934, from and against all costs, liabilities, obligations, expenses (including reasonable attorneys’ fees), judgments, fines (including an excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement actually and reasonably incurred by it or him in connection with such Proceeding, to the fullest extent permitted by the laws of the State of Georgia and, to the extent not inconsistent therewith, Federal laws (including without limitation the Federal Home Loan Bank Act), as currently in effect or as they may hereafter be amended.
(b) Insurance Policies.
(i) In the reasonable business judgment of the Bank’s Board of Directors, the Bank may purchase and maintain, for its own benefit and for the benefit of Indemnitee, one or more valid, binding and enforceable policy or policies of directors and officers insurance (“D&O Insurance”). It is the express intent of the Bank that ▇▇▇▇▇▇▇▇▇ be an “Executive” and thus an “Insured Person” for the purpose of the D&O Insurance.
(ii) In the reasonable business judgment of the Board of Directors, but without limiting the full discretion of the Board of Directors to create or not create a fund or to otherwise secure or not secure the Bank’s indemnification obligations under this Agreement, the Board of Directors may create a fund of any nature, which may, but need not, be irrevocable or under the control of a trustee, or otherwise secure or insure in any manner its obligations to indemnify and advance expenses to the Indemnitee and to other officers and directors of the Bank, whether arising under or pursuant to this Agreement or any similar agreement or otherwise. The Indemnitee shall be an intended beneficiary of any such fund or arrangement.
No indemnity pursuant to this Agreement shall be made by the Bank:
(i) to the extent of any liability for which any Indemnittee is paid pursuant to any D&O Insurance;
(ii) if a final judgment or other final adjudication by a court having jurisdiction in the matter shall determine that such indemnity is not lawful;
(iii) in respect to remuneration paid to any Indemnitee, if a final judgment or other final adjudication by a court having jurisdiction in the matter shall determine that such remuneration was not lawful;
(iv) for acts or omissions that involve fraud, intentional misconduct or a knowing violation of law by any Indemnitee; or
(v) for any conduct for which any Indemnitee is adjudged liable on the basis that it or he improperly received a personal benefit.
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(d) Notification and Defense of Claim
(i) Promptly after receipt by Indemnitee of notice of the commencement of any Proceeding, Indemnitee will, if a claim in respect thereto is to be made against the Bank under this Agreement, notify the Bank of the commencement thereof. Such notification shall include all documents and other information necessary for the Bank to determine whether Indemnitee is entitled to indemnification and reasonably available to Indemnitee. The failure so to notify the Bank will not relieve the Bank from any liability except to the extent that the Bank is prejudiced by such failure. With respect to any such Proceeding as to which Indemnitee so notifies the Bank:
(1) the Bank will be entitled to participate therein at its own expense; and
(2) except as otherwise provided below, to the extent that it may wish, the Bank may assume the defense thereof.
(ii) After notice from the Bank to Indemnitee of its election to assume the defense thereof, the Bank will not be liable to Indemnitee under this Agreement or otherwise for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel of his choosing in such Proceeding but the fees and expenses of such counsel incurred after notice from the Bank of its assumption of the defense thereof shall be at the expense of Indemnitee unless (i) the employment of counsel by Indemnitee has been authorized in writing by the Bank, (ii) the Bank and Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Bank and Indemnitee in the conduct of the defense of such Proceeding, or (iii) the Bank shall have failed or refused to employ counsel to assume the defense of such Proceeding, or shall have failed to diligently pursue such defense, in each of which cases the reasonable fees and expenses of Indemnitee’s counsel shall be paid by the Bank.
(iii) The Bank shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding without its prior written consent. The Bank, without Indemnitee’s prior written consent, shall not settle any such Proceeding in any manner which would in any way impose any penalty or limitation on Indemnitee, or if the terms of any such settlement, directly or indirectly, could damage or affect the business or personal reputation of Indemnitee. Neither the Bank nor Indemnitee will unreasonably withhold his or its consent to any proposed settlement.
(iv) If the Bank and Indemnitee employ the same legal counsel in connection with a Proceeding and there develops a conflict of interest between the Bank and Indemnitee in the conduct of the defense of such Proceeding, then Indemnitee agrees to employ different counsel (the reasonable fees and expenses of which shall be paid by the Bank) and to take all actions reasonably necessary to allow the Bank to continue to employ the counsel employed by both the Bank and Indemnitee prior to such conflict arising.
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Unless Indemnitee otherwise elects, reasonable fees and expenses incurred in defending any Proceeding will be paid by the Bank in advance of the final disposition of such Proceeding upon receipt of a written agreement from Indemnitee in form and substance satisfactory to the Bank agreeing to repay any advances if it shall be ultimately determined that it or he is not entitled to be indemnified by the Bank under this Agreement.
(f) Determination of Entitlement to Indemnification
Following notification by Indemnitee to the Bank of the commencement of a Proceeding pursuant to Subsection (d)(i) of this Agreement, unless ordered by a court of competent jurisdiction, the determination of whether Indemnitee is entitled to indemnification pursuant to this Agreement shall be made by the following person or persons: (a) if there are two or more Disinterested Directors (as defined below), then at the Bank’s option, and with notice to Indemnitee of the method for determination chosen by the Bank, (i) by the Board of Directors by a majority vote of all of the Disinterested Directors (a majority of whom shall for such purpose constitute a quorum), (ii) by a majority of the members of a committee of two or more Disinterested Directors appointed by a vote described in the preceding clause (i), or (iii) by special legal counsel selected in the manner described in the preceding clause (i); or (b) if there are fewer than two Disinterested Directors, by special legal counsel selected by the Board of Directors (in which selection directors who do not qualify as Disinterested Directors may participate). “Disinterested Director” means a member of the Board of Directors who both (i) is not a party to the Proceeding giving rise to the indemnification claim and (ii) does not have a familial, financial, professional or employment relationship with Indemnitee, which relationship would, in the circumstances, reasonably be expected to exert an influence on the judgment of such member of the Board of Directors when voting on the decision being made.
The Bank’s indemnification obligations under this Agreement shall remain in effect for the Term of this Agreement. All agreements and obligations of the Bank and Indemnitee contained in this Agreement shall continue thereafter so long as Indemnitee is or becomes subject to any Proceeding instituted with regard to acts or omissions on the part of Indemnitee while performing the usual and customary duties of chief financial officer of the Bank, or while serving at the request of the Bank as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other entity or as a member of any committee or council, if such acts or omissions occurred during the Term in which this Agreement was in effect.
(h) Reliance
The Bank has entered into the indemnification obligations under this Agreement in order to induce Indemnitee to perform the usual and customary duties of chief financial
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officer of the Bank, and acknowledges that Indemnitee is relying upon this Agreement with respect thereto.
Any amendment to or repeal of the bylaws of the Bank relating to indemnification of officers and directors shall not affect in any way the Bank’s agreements and obligations under this Agreement or alter the indemnification provided to Indemnitee under this Agreement.
(j) Payments
Any payment required to be made pursuant to the indemnification provisions of this Agreement shall be made as promptly as practicable after the obligation to make the payment and the amount of the payment have been determined.
| 11. | Assignment |
No assignment by Contractor of this Agreement or any of its rights, duties or obligations hereunder, shall be binding on the Bank without the Bank’s prior written consent.
| 12. | Entire Agreement |
Other than the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated as of April 11, 2007, between the Bank and Contractor, this Agreement contains the entire agreement of the parties relating to the provision of Services, and except for such Confidentiality Agreement, it supersedes all prior agreements and understandings between the parties related to this subject matter, including the Original Services Agreement and the Indemnification Agreement.
| 13. | No Alteration, Change or Amendment Without Signed Writing |
This Agreement may not be altered, changed or amended except by a writing signed by each of the parties hereto.
| 14. | Waiver |
The waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver by the waiving party of any subsequent similar or other breach by the other party.
| 15. | Governing Law |
This Agreement shall be construed according to the laws of Georgia.
| 16. | Jurisdiction and Venue |
Any proceedings or actions commenced hereunder shall be brought exclusively in any state or federal court within ▇▇▇▇▇▇ County, Georgia.
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| 17. | Execution in Counterparts |
This Agreement may be executed in any number of counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document.
| 18. | Acknowledgement of Opportunity to Review and Rules of Construction |
The parties acknowledge that they have had an opportunity to review each and every provision contained in this Agreement and to submit the same to legal counsel for review and comment. Based on the foregoing, the parties agree that any rule of construction that a contract be construed against the drafter will not be applied in the interpretation and construction of this Agreement.
| 19. | Severability |
The invalidity or unenforceability of any provisions of this Agreement, whether in whole or in part, shall not in any way affect the validity and/or enforceability of any other provision of this Agreement. Any invalid or unenforceable provision shall be deemed severable to the extent of any such invalidity or unenforceability.
| 20. | Third Party Beneficiaries |
Other than ▇▇▇▇▇▇▇▇▇, there are no third party beneficiaries of this Agreement, and no party other than the Bank and Contractor shall have any legal rights hereunder, except for ▇▇▇▇▇▇▇▇▇ pursuant to the indemnification provisions applicable to him.
| 21. | Limitation of Liability |
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, GUARANTEE, PRODUCT LIABILITY OR STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF SUCH PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER FOR ANY REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY THE OTHER PARTY.
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| 22. | Notices |
Any and all notices referred to herein shall be in writing and shall be deemed to have been given when personally delivered or when mailed, registered or certified mail, postage prepaid, to the following addresses:
To the Bank:
Attn: President and Chief Executive Officer
Federal Home Loan Bank of Atlanta
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
Attn: General Counsel
Federal Home Loan Bank of Atlanta
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Contractor and ▇▇▇▇▇▇▇▇▇:
SJG Financial Consultants, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
[Signatures appear on following page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives.
| FEDERAL HOME LOAN BANK OF ATLANTA | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and Chief Executive Officer | ||
| SJG FINANCIAL CONSULTANTS, LLC | ||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Manager | ||
| FOR PURPOSES OF SECTION 6(b) AND SECTION 10 ONLY: |
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ |
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