CONSULTING AGREEMENT
Exhibit 10.4.2
This Consulting Agreement is entered into by and between the Federal Home Loan Bank Des Moines
(the “Bank”) and Xxxx Xxxxxxxx (“Xxxxxxxx”) to set forth the terms and conditions through which
Xxxxxxxx will provide consulting services to the Bank.
RECITALS
WHEREAS, the Bank has determined that it is in the Bank’s best interest to retain a consultant
to provide special assistance to the new President and Chief Executive Officer of the Bank; and
WHEREAS, Xxxxxxxx has previously served as a member of the Board of Directors of the Bank and
as Acting President and Chief Executive Officer of the Bank prior to the employment of the Bank’s
new President and Chief Executive Officer, and Xxxxxxxx has specific knowledge and insight
regarding the Bank as a result of such prior service to the Bank; and
WHEREAS, the Bank desires to retain Xxxxxxxx as an independent contractor to assist the Bank’s
President and Chief Executive Officer with respect to certain matters that require immediate and
concentrated attention;
NOW THEREFORE, in consideration of the mutual agreements contained herein, the Parties hereto
agree as follows:
1. DESCRIPTION OF SERVICES. Xxxxxxxx will provide consulting services to the Bank (referred to
collectively as the “Services”) as requested by the President and Chief Executive Officer.
2. PERFORMANCE OF SERVICES. Xxxxxxxx shall determine the manner in which the Services are
performed, and the Bank will rely on Xxxxxxxx to work as many hours as may be reasonably necessary
to fulfill Xxxxxxxx’x obligations under this Consulting Agreement.
3. CONSULTING FEE. The Bank will pay Xxxxxxxx a total consulting fee of Thirty Thousand Dollars
($30,000) for the Services Xxxxxxxx provides through June 30, 2006. Said consulting fee shall be
paid in full upon execution of this Consulting Agreement. After June 30, 2006, Xxxxxxxx shall
provide Services from time to time as may be requested by the President and Chief Executive Officer
at a rate of $1,500.00 per day.
4. INDEPENDENT CONTRACTOR, TAXES. Xxxxxxxx agrees and understands that he is being retained as an
independent contractor, and not as an employee, and that the Bank will not make any federal, state,
or local tax withholding or deductions from the consulting fee paid to him. Xxxxxxxx agrees and
understands that as an independent contractor he is solely responsible to pay any and all federal,
state or local taxes that apply to the consulting fee described herein, and that the Bank shall not
withhold taxes of any kind from the consulting fee. Xxxxxxxx agrees to indemnify and hold the Bank
harmless concerning any tax liability the Bank
or Xxxxxxxx may incur as a result of the Bank’s treatment of Xxxxxxxx as an independent contractor.
5. EXPENSE REIMBURSEMENT. The Bank shall reimburse Xxxxxxxx for all reasonable “out-of-pocket”
expenses Xxxxxxxx incurs that are reasonably associated with Xxxxxxxx’x performance of the Services
described in paragraph one of this Consulting Agreement.
6. SUPPORT SERVICES. The Bank will provide Xxxxxxxx with office space, secretarial support, and
office supplies to the extent necessary for Xxxxxxxx to perform the Services. The Bank shall have
sole discretion to determine the amount and nature of the support service, if any, that are
required under this paragraph.
7. TERM. This Consulting Agreement shall remain in force and effect from June 1, 2006 until
thereafter terminated by either party as provided herein.
8. BENEFITS. The parties agree and stipulate that Xxxxxxxx is an independent contractor and not a
Bank employee and Xxxxxxxx understands that he is not entitled to any employee benefits. The Bank
will not, therefore, provide any fringe benefits to Xxxxxxxx, including, but not limited to, health
insurance benefits, paid vacations, severance, or any of the other non-wage benefits typically paid
or provided to Bank employees. In addition, the Bank shall not make any contributions to any
qualified benefit plan on Xxxxxxxx’x behalf, including contributions to the following Bank
sponsored plans: the Pentegra Defined Contribution Plan for Financial Institutions, the Pentegra
Defined Benefit Plan for Financial Institutions, and the Benefit Equalization Plan.
9. INJURIES. Xxxxxxxx acknowledges Xxxxxxxx’x obligations to obtain appropriate insurance coverage
for the benefit of Xxxxxxxx. Unless caused by the Bank’s negligence, Xxxxxxxx waives any rights to
recovery from the Bank for any injuries or damages of any kind that Xxxxxxxx may sustain while
performing Services under this Consulting Agreement. Because Xxxxxxxx is not a Bank employee, the
Bank will not obtain workers’ compensation insurance for Xxxxxxxx, and Xxxxxxxx agrees to maintain
any workers’ compensation insurance that may be required by law.
10. CONFIDENTIALITY. Xxxxxxxx agrees and understands that during the term of this Consulting
Agreement, Xxxxxxxx may learn, or otherwise be given access to, Confidential Information concerning
the Bank. To the extent Xxxxxxxx learns, or obtains access to, Confidential Information of the
Bank, Xxxxxxxx agrees to follow, and shall be governed by, all existing laws, regulations, and Bank
policies regarding the disclosure or dissemination of Confidential Information. Xxxxxxxx
acknowledges that the existing laws, regulations and Bank policies on regarding the unauthorized
disclosure or dissemination of Confidential Information may change and, to the extent they do
change, Xxxxxxxx agrees to follow and be governed by such changed laws, regulations and policies.
As used in this Section, “Confidential Information” shall mean any information relating to the
business or affairs of the Bank or its customers, including but not limited to, information
relating to financial statements, identities of members and potential members, employees,
suppliers, software tools, business methods, equipment, programs, methodologies, strategies and
information, analyses, reports, models, calculations,
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profit margins, exam findings, Board of Directors matters, or other proprietary information used by
the Bank in connection with its business; provided, however, that Confidential Information shall
not include any information which is in the public domain or becomes known in the industry through
no wrongful act on the part of Xxxxxxxx. Xxxxxxxx acknowledges that the Confidential Information
is vital, sensitive, confidential and proprietary to the Bank.
11. INTELLECTUAL PROPERTY. Xxxxxxxx agrees that he will not personally obtain any right, title, or
interest in any intellectual property he or anyone else develops during the performance of the
Services, and that the Bank shall maintain all ownership interest in all such intellectual
property. For purposes of this Consulting Agreement, intellectual property shall include all
copyrightable works and all ideas, discoveries, inventions, applications for patents, and patents.
12. RETURN OF RECORDS. Upon termination of this Consulting Agreement, Xxxxxxxx shall deliver to
the Bank, all records, notes, data, memoranda, models, and equipment of any nature that are in
Xxxxxxxx’x possession or under Xxxxxxxx’x control that are the Bank’s property or relate to the
Bank’s business.
13. NO AUTHORITY TO BIND THE BANK. Xxxxxxxx has no authority to enter into contracts or agreements
on behalf of the Bank during the term of the Consulting Agreement, and this Consulting Agreement
shall not be construed as creating any type of partnership between the parties.
14. ENTIRE AGREEMENT. This Consulting Agreement contains the entire agreement of the parties and
there are no other promises or conditions in any other agreement whether oral or written. This
Consulting Agreement supersedes any prior written or oral agreements between the parties concerning
the Services described herein
15. AMENDMENT. This Consulting Agreement may be modified, amended, or extended if the amendment is
made in writing and is signed by both parties.
16. SEVERABILITY. If any provision of this Consulting Agreement shall be held to be invalid or
unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.
If a court finds that any provision of this Consulting Agreement is invalid or unenforceable, but
that by limiting such provision it would become valid and enforceable, then such provision shall be
deemed to be written, construed, and enforced as so limited.
17. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this
Consulting Agreement shall not be construed as a waiver or limitation of that party’s right to
subsequently enforce and compel strict compliance with every provision of this Consulting
Agreement.
18. APPLICABLE LAW. This Consulting Agreement shall be governed by the laws of the State of Iowa.
Venue for any action to enforce this Agreement shall be in the Iowa District Court for Polk County,
or the United States District Court for the Southern District of Iowa if federal jurisdiction
exists.
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19. EXECUTION. This Consulting Agreement may be executed with duplicate original counterparts with
faxed signatures, each of which shall constitute an original and which together shall constitute
one and the same document.
20. TERMINATION. Either party may terminate this Agreement for any reason at any time by giving
written notice to the other party. Upon termination of this Consulting Agreement, the Bank will be
liable to Xxxxxxxx only for amounts payable under this Consulting Agreement that accrue before the
effective date of termination.
FEDERAL HOME LOAN BANK DES MOINES
By:
|
/s/ Xxxxxxx X. Xxxxxxx | Date: 6-1-06 | ||||
Xxxxxxx X. Xxxxxxx, President and Chief | ||||||
Executive Officer | ||||||
XXXX XXXXXXXX | ||||||
By:
|
/s/ Xxxx X. Xxxxxxxx | Date: 5-31-06 | ||||
Xxxx Xxxxxxxx |
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