EXHIBIT 10.1.2
CONSULTING AGREEMENT WITH
XXXXXXX X. XXXXX
AGREEMENT entered into and effective this 1st day of August, 2001, by
and between Eagle Bancshares, Inc. ("Eagle"); Xxxxxx Federal Bank ("Xxxxxx"),
collectively referred to as the "Bank", and Xxxxxxx X. Xxxxx ("Xxxxx" or the
"Consultant").
WHEREAS, Xxxxx has heretofore been employed by Xxxxxx as its Chief
Executive Officer ("CEO"), pursuant to an Employment Agreement dated March 25,
1997;
WHEREAS, Xxxxx has voluntarily resigned his employment as CEO and his
positions on the Boards of Directors of Xxxxxx, and all subsidiary corporations
of Xxxxxx effective January 30, 2001;
WHEREAS, Xxxxx has voluntarily resigned from his positions as
Secretary/Treasurer of Eagle; as President of Eagle Bancshares Capital Group,
Inc., as Chief Financial Officer and as a member of the Board of Directors of
XxxxXxxx.xxx, and any and all other positions with Eagle or any subsidiary
corporation unless expressly provided for herein; and
WHEREAS, Xxxxx shall continue to serve on the Board of Director of
Eagle through the end of this term;
WHEREAS, the Board of Directors of Eagle and Xxxxxx (the "Board")
believe it is in the best interest of the Bank to enter into this Agreement with
Xxxxx in order to assure a transition period for management of Xxxxxx and gain
Xxxxx'x expertise in developing long term strategic planning for Eagle;
WHEREAS, the parties desire by this writing to set forth the terms of
an seventeen (17) month independent contractor consulting relationship between
Eagle and Xxxxx.
NOW, THEREFORE, for good and valuable consideration, including the
promises and covenants made herein, it is AGREED as follows:
1. DEFINED TERMS
When used anywhere in this Agreement, the following terms shall have
the meaning set forth herein.
(a) "Eagle" shall mean Eagle Bancshares, Inc.;
(b) "Xxxxxx" shall mean Xxxxxx Federal Bank;
(c) "Disability" shall mean a physical or mental
infirmity which impairs the Consultant's ability to
substantially perform his duties under this Agreement for a
period of 60 consecutive days.
(d) "Effective Date" shall mean the effective resignation
date referenced in paragraph 2 of this Agreement.
(e) "Just Cause" shall mean, in the good faith
determination of Eagle's Board of Directors, the Consultant's
personal dishonesty, incompetence, willful misconduct,
intentional failure to perform assigned duties, willful
violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease-and-desist
order, or material breach of any provision of this Agreement.
The Consultant shall have no right to receive any compensation
or other benefits for any period after termination for just
cause. No act, or failure to act, on the Consultant's part
shall be considered "willful" unless he has acted, or failed
to act, with an absence of good faith and without a reasonable
belief that his action or failure to act was in the best
interest of Eagle.
2. RESIGNATION OF EMPLOYMENT. Xxxxx has submitted and
Xxxxxx has accepted his voluntary resignation from employment
as CEO of Xxxxxx, to be effective on January 30, 2001. Xxxxx
has also submitted, and Xxxxxx has accepted, his resignation
from the Boards of Directors of Xxxxxx and all subsidiary or
affiliated corporations. Xxxxx further understands and agrees
that, by this Agreement, he forever waives any claim or right
to reinstatement to his former positions of employment or
Boards of Director membership with the
Bank or any of its related entities. Xxxxx expressly
acknowledges the voluntariness of his resignation, and his
full and complete understanding that said resignation
precludes him from recovering the severance compensation
provided by his contract of employment.
3. CONSULTING PERIOD AND PURPOSE. The Consultant shall
render such consulting services for Eagle as may be requested
beginning on the effective date of this Agreement. Eagle
hereby retains the Consultant and the Consultant hereby
accepts Eagle as his client under this Agreement, for the
period commencing on the Effective Date and ending December
31, 2002 (or such earlier date as is determined in accordance
with this Agreement). The purpose of the consulting agreement
shall be for Xxxxx to assist Eagle in its development and
implementation of long range strategic planning for Eagle and
its subsidiary and affiliated entities.
(a) Xxxxx shall report directly to C.
Xxxx Xxxxxxx, the Chairman of Eagle on all consulting
matters, and shall not contact other employees of
Eagle or Xxxxxx regarding the issues on which he is
consulting unless directed to do so by Xxxxxxx. This
limitation shall only apply to communications
relating to business matters on which Xxxxx is
consulting and
shall not limit his ability to communicate on person
non-business matters with employees of the Bank.
4. BASE COMPENSATION. The Bank agrees to pay Xxxxx
during the term of this consulting a professional fee for the
seventeen (17) month consultancy equal to the amount of
severance he would have been due under his Employment
Agreement which is Fifteen Thousand Seven Hundred Ninety Two
and 13/100 ($15,792.13) Dollars, payable on a monthly basis on
the fifteenth of each month. Xxxxx shall pay $792.13 to Xxxxxx
Federal Bank to continue his COBRA benefits by the twentieth
(20th) day of each month he is receiving said benefits. If
Xxxxx elects to cancel those benefits, then the monthly
consultant fee shall be reduced to Fifteen Thousand
($15,000.00) Dollars per month. If Xxxxx obtains new full time
employment that, in Eagle's judgment, creates a conflict of
interest with the Bank's operations, Eagle may terminate this
Agreement by giving 30 days written notice. Upon termination,
Xxxxx will be paid the balance of monies, if any, due under
this Agreement in lump sum fashion.
5. MEZZANINE PORTFOLIO MANAGER POSITION. The Bank is
contemplating the sale of its mezzanine loan portfolio
("Portfolio").
Xxxxx has indicated interest in the position of Manager for
the recovery of the loans in the Portfolio. In the event the
Portfolio is sold and Xxxxx is hired for a management position
by the acquiring entity, paragraph four (4) above shall be
amended as follows: Xxxxx'x acceptance of the position will
negate the Bank's obligation to retain Xxxxx as a consultant.
The Bank's obligation to pay Xxxxx any remaining monthly
payments due on the consultancy agreement shall be reduced by
the amount of monies he earns as the Portfolio Manager or in
some equivalent position. If Xxxxx earns $15,000.00 per month
or more, once his total income earned as Portfolio Manager (or
an equivalent position) is divided by the remaining months
left on the consultant agreement, then Xxxxxx shall not owe
any additional severance to Xxxxx. However, in the event Xxxxx
is terminated without cause from the management position by
the entity or entities acquiring the Portfolio, Xxxxxx agrees
to pay Xxxxx as a consultant from the date of said termination
(or from the date his severance pay from the Portfolio Manager
position is exhausted) until December 31, 2001. The monthly
amount paid for his consulting services shall be Fifteen
Thousand ($15,000.00) Dollars per month. These payments are to
be in full and final satisfaction of any and all liability the
Bank
has or may have to Xxxxx through the date that severance
payments are concluded.
6. LOYALTY; NONCOMPETITION.
(a) Except for illnesses and reasonable
leaves of absence, the Consultant shall be available
to Eagle to devote his business time, attention,
skill and efforts to the faithful performance of all
assigned consultations. From time to time, Consultant
may seek the written authorization of Eagle to serve
on other boards of directors, and hold offices or
positions in, companies or organizations which will
not present any conflict of interest with Eagle,
Xxxxxx or any of their subsidiaries or affiliates,
and will not violate any applicable statute or
regulation. During the consultancy provided for under
this Agreement, the Consultant shall not engage in
any business or activity or in conflict with the
business affairs or interests of Eagle or Xxxxxx.
7. TERMINATION OR SUSPENSION UNDER FEDERAL LAW. If the
Consultant is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order
issued under Sections 8(e)(4) or 8(g)(1) of the Federal
Deposit Insurance Act
(FDIA") (12 U.S.C. 1818(e)(4) and (g)(1)), all obligations of
the Bank under this Agreement shall terminate, as of the
effective date of the order, but vested rights of the parties
shall not be affected.
(a) If the Bank is in default (as defined in Section
3(x)(1). of FDIA), all obligations, under this
Agreement shall terminate as of the date of default;
however, this Paragraph shall not affect the vested
rights of the parties.
(b) If a notice served under Section
8(e)(3) or (g)(1) of the FDIA (12 U.S.C. 1818(e)(3)
or (g)(1)) suspends and/or temporarily prohibits the
Employee from participating in the conduct of the
Bank's affairs, the Bank's obligations under this
Agreement shall be suspended as of the date of such
service, unless stayed by appropriate proceedings. If
the
(c) Any payments made to the Consultant
pursuant to this Agreement, or otherwise, are subject
to and conditioned upon their compliance with both 12
U.S.C. Section 1828(k) and any regulations
promulgated thereunder, and Regulatory Bulletin 27A,
but only to the extent required thereunder on the
date any payment is required pursuant to this
Agreement.
8. RELEASE. Xxxxx, for himself, his agents, assigns,
heirs, executors, administrators and personal representatives,
hereby fully, finally and forever releases and discharges the
Bank, including but not limited to all of their present and
former managers, officers, employees, agents, representatives,
directors, assigns, successors, predecessors, boards,
subsidiaries, affiliates, and benefit plans from any and all
claims, demands, actions, causes of action, suits, damages,
losses, costs, expenses and attorneys' fees and all claims of
any kind and every character whatsoever, whether known or
unknown, which he has or may have against any or all of them
growing out of, or arising from, or pertaining to any
contract, transaction, dealing, employment relationship,
conduct, act or omission, including but not limited to, wages,
compensation, bonuses, benefits, or any other matters or
things occurring or existing at any time prior to the
execution of the Agreement.
Without in any way limiting the foregoing, the above claims
waived and released by Xxxxx include any possible or alleged
claims under the United States Constitution, the Constitution
of the State of Georgia, the Americans with Disabilities Act,
42 U.S.C.ss.12101, et seq.; the Rehabilitation Act, 29
U.S.C.ss.701 et seq.; the Family and
Medical Leave Act, 29 U.S.C.ss.2601 et seq.; the Fair Labor
Standards Act, 29 U.S.C.ss.201 et seq.; 42 U.S.C.ss.1981,
1981a, 1983, 1985 and 1988; the Age Discrimination in
Employment Act (ADEA), 29 U.S.C.ss.621 et seq.; Title VII of
the civil Rights Act of 1964, as amended, 42 U.S.C.ss.2000e et
seq.; the Civil Rights Act of 1991; the employee Retirement
Income Security Act of 1974, 29 U.S.C.ss.1001 et seq. (as
amended); the Consolidated Omnibus Budget Reconciliation Act
of 1985, 29 U.S.C.ss.1161 et seq., and any possible or alleged
claims for front pay, back pay, fringe benefits, interest,
compensatory or punitive damages, including claims under
federal, state or local law.
9. COOPERATION AND CONFIDENTIALITY: Xxxxx shall fully
cooperate with the Bank on all pending or subsequently filed
litigation matters, including but not limited to Prime Group,
Inc., Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx x. Xxxxxx Federal Bank,
Civil Action No. 97-RCCV-1128. This cooperation may include
deposition testimony, trial testimony and preparation and
assisting counsel in trial preparation. Xxxxx acknowledges he
has received and will continue to receive confidential
financial information protected by the attorney client
privilege and will maintain the confidentiality of that
information. The willful or intentional breach of the
confidentiality of attorney
client information or other confidential financial information
Xxxxx has knowledge of as a result of his employment with
Eagle and Xxxxxx will result in the termination of this
Agreement.
(a) The Bank will continue to indemnify
Xxxxx for all acts for which insurance coverage is
provided by way of the error and omissions policy of
insurance maintained for the benefit of all officers
and directors of the Bank. The scope and amount of
indemnification shall be coterminous with the
coverage provided by the insurance policy.
10. FEDERAL INCOME TAX WITHHOLDING . The Bank may
withhold all federal and state income or other taxes from any
benefit payable under this Agreement as shall be required
pursuant to any law or government regulation or ruling.
11. SUCCESSORS AND ASSIGNS.
(a) Bank. This Agreement shall not be assignable by the Bank,
provided that this Agreement shall inure to the benefit of and be
binding upon any corporate or other successor of the Bank which shall
acquire, directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of the Bank.
(b) Consultant. Since the Bank is contracting for the
unique and personal skills possess by Xxxxx, he shall be precluded from
assigning or delegating his rights or duties hereunder; provided,
however, that nothing in this paragraph shall preclude (i) the
Consultant from designating a beneficiary to receive any compensation
payable hereunder upon his death, or (ii) the executors,
administrators, or other legal representatives of Xxxxx or his estate
from assigning any rights hereunder to the person or persons entitled
thereunto.
12. AMENDMENTS. No amendments or additions to this
Agreement shall be binding unless made in writing and signed
by all of the parties, except as herein otherwise specifically
provided.
13. APPLICABLE LAW. Except to the extent preempted by
Federal law, the laws of the State of Georgia shall govern
this Agreement in all respects, whether as to its validity,
construction, capacity, performance or otherwise.
14. SEVERABILITY. The provisions of this Agreement shall
be deemed severable and the invalidity or unenforceability of
any provision shall not affect the validity or enforceability
of the other provisions hereof.
15. ENTIRE AGREEMENT. This Agreement, together with any
understanding or modifications thereof as agreed to in writing
by the
parties, shall constitute the entire agreement between the
parties hereto and shall supersede any prior agreement between
the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first hereinabove written.
ATTEST EAGLE BANCSHARES, INC.
/s/ Xxxxx Xxxxxxxx /s/ C. Xxxx Xxxxxxx
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Secretary
C. XXXX XXXXXXX
Chairman, Board of Directors
WITNESS
/s/ A. Xxx Xxxxx /s/ Xxxxxxx X. Xxxxx, Xx.
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XXXXXXX X. XXXXX, XX.
