CONSULTING AGREEMENT
Exhibit 10.1
THIS CONSULTING AGREEMENT (the “Agreement”) is made and entered into as of this 16th
day of April, 2008, and effective as of April 1, 2008 by and between Citizens Business Bank, a
California banking corporation (the “Bank”) and X. Xxxx Xxxxx (“Consultant”).
WHEREAS, Consultant is a director of the Bank and its former President and Chief Executive
Officer;
WHEREAS, Consultant and the Bank wish to enter into this agreement pursuant to which
Consultant will perform certain services on behalf of the Bank separate and apart from Consultant’s
service as a director.
NOW, THEREFORE, in consideration of the mutual covenants and representations contained herein,
and for good and valuable consideration the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Consulting Services to Be Provided. The Bank hereby retains Consultant as of the
Effective Date to perform consulting services to the Bank as directed by the Board of Directors or
Chief Executive Officer of the Bank, including but not limited to (a) representing and promoting
the goodwill of the Bank, (b) promoting the continued profitability of the Bank by making, among
other things, periodic promotional calls on customers and prospective customers and (c) providing
consultation on banking matters (collectively, the “Services”). The services to be
performed hereunder by Consultant shall only be provided by Consultant himself.
2. Term. The term of this Agreement shall commence on the date hereof and continue
for a period of two years thereafter, subject to earlier termination as set forth herein. (the
“Term”).
3. Remuneration.
(a) Fee. During the Term, the Bank shall pay to Consultant, for the performance of the
Services, a fee of Seven Thousand Seven Hundred Fifty-six Dollars ($7,756) per month, payable at
the end of the month.
(b) Automobile. During the Term, Consultant shall have the use of a Bank-owned
automobile as determined by the Bank in consultation with Consultant.
4. Termination. This Agreement shall terminate automatically on the date of
Consultant’s death or Disability, as defined below. The Bank may also terminate this Agreement for
Cause, as defined below. For purposes of this Agreement, “Disability” shall mean
Consultant’s inability to perform the essential duties hereunder, as reasonably determined by the
Board of Directors of Bank, due to Consultant’s medically determinable mental or physical
disability for a period of 90 consecutive days or 120 days in any 12 month period. “Cause”
shall mean: (a) Consultant’s material violation of (i) any state or federal banking or securities
laws, or of the Bylaws, rules, policies or procedures of the Bank or (ii) of the rules or
regulations of the California Commissioner of Financial Institutions, the Federal Deposit Insurance
Corporation, the Federal Reserve Board of Governors, or any other regulatory agency or governmental
authority having jurisdiction over the Bank, or (b) Consultant’s conviction of (i) any felony
or (ii) any crime involving moral turpitude or a fraudulent or dishonest act. The provisions of
Section 5 through 7 of this Agreement shall survive any such termination.
5. Non-solicitation. During the period of time ending on the later to occur of (i)
termination of Consultant’s service on the Board of Directors or the Bank or (ii) expiration of the
Term, Consultant shall not, directly or indirectly, without the prior written consent of the Bank,
on behalf of any “depository institution” as that term is defined in 12 C.F.R. Section 348.2 and
any parent, subsidiary or affiliate thereof, solicit or aid in the solicitation of customers or
prospective customers for Financial Services, as defined below, or induce or attempt to induce any
person (including any entity) who is a customer, prospective customer, supplier, distributor,
officer or employee of the Bank during the Term to terminate such person’s relationships with, or
to take any action that would be disadvantageous, to, the Bank. “Financial Services” shall mean the
origination, purchasing, selling and servicing of commercial, real estate, residential,
construction and consumer loans and the solicitation and provision of deposit services and services
related thereto and shall also mean acting as an executor, administrator, guardian or conservator
of estates for persons other than family members, assignee, receiver, depositary, trustee,
custodian, or any other fiduciary or representative capacity for any purpose permitted by law,
acting as transfer agent or registrar for corporate stocks, buying and selling securities for the
account of customers, or accepting and executing any trust business permitted by any law.
6. Confidentiality. Consultant agrees that he will not at any time during the term of
this Agreement, or at any time thereafter for any reason, in any fashion, form or manner, either
directly or indirectly, divulge, disclose or communicate to any person, firm, corporation or other
business entity, in any manner whatsoever, any confidential information or trade secrets concerning
the business of the Bank, including, without limiting the generality of the foregoing, the
techniques, methods or systems of its operation or management, any information regarding its
financial matters, or any other material information concerning the business of the Bank (including
customer lists), any of its customers, governmental relations, customer contacts, underwriting
methodology, loan program configuration and qualification strategies, marketing strategies and
proposals, its manner of operation, its plans or other material data, or any other information
concerning the business of the Bank, its subsidiaries or affiliates, and the Bank’s goodwill. The
provisions of this Section 6 shall not apply to (i) information disclosed in the performance of the
Services based on his good faith belief that such a disclosure is in the best interests of Bank;
(ii) information that is, at the time of the disclosure, public knowledge; (iii) information
disseminated by the Bank to third parties in the ordinary course of business; (iv) information
lawfully received by Consultant from a third party who, based upon inquiry by Consultant, is not
bound by a confidential relationship to the Bank or otherwise improperly received the information;
or (v) information disclosed under a requirement of law or as directed by applicable legal
authority having jurisdiction over Consultant.
7. Arbitration. Any dispute or controversy arising under or in connection with this
Agreement, the inception or termination of Consultant’s services, including issues raised regarding
the Agreement’s formation, interpretation or breach, shall be settled exclusively by binding
arbitration in accordance with the Commercial Rules of the American Arbitration Association
(“AAA”). The arbitration will be conducted in San Bernardino County. The arbitrator shall
have no authority to add to or to modify this Agreement, shall apply all applicable
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law, and shall have no lesser and no greater remedial authority than would a court of law
resolving the same claim or controversy. The arbitrator shall issue a written decision that
includes the essential findings and conclusions upon which the decision is based, which shall be
signed and dated. Consultant and the Bank shall each bear their own respective costs and attorneys’
fees incurred in conducting the arbitration and shall split equally the fees and administrative
costs charged by the arbitrator and AAA. Judgment may be entered on the arbitrator’s award in any
court having jurisdiction.
8. Waiver of Breach. Any waiver of any breach of this Agreement shall not be
construed to be a continuing waiver or consent to any subsequent breach on the part either of
Consultant or of the Bank. No delay or omission in the exercise of any power, remedy, or right
herein provided or otherwise available to any party shall impair or affect the right of such party
thereafter to exercise the same. Any extension of time or other indulgence granted to a party
hereunder shall not otherwise alter or affect any power, remedy or right of any other party, or the
obligations of the party to whom such extension or indulgence is granted except as specifically
waived.
9. Non-Assignment; Successors. Neither party hereto may assign his or its rights or
delegate his or its duties under this Agreement without the prior written consent of the other
party; provided, however, that: (i) this Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the Bank upon any sale of all or substantially all of the Bank’s
assets, or upon any merger, consolidation or reorganization of the Bank with or into any other
corporation, all as though such successors and assigns of the Bank and their respective successors
and assigns were the Bank; and (ii) this Agreement shall inure to the benefit of and be binding
upon the heirs, assigns or designees of Consultant to the extent of any payments due to it
hereunder. As used in this Agreement, the term “Bank” shall be deemed to refer to any such
successor or assign of the Bank referred to in the preceding sentence.
10. Severability. To the extent any provision of this Agreement or portion thereof
shall be invalid or unenforceable, it shall be considered deleted therefrom (but only for so long
as such provision or portion thereof shall be invalid or unenforceable) and the remainder of such
provision and of this Agreement shall be unaffected and shall continue in full force and effect to
the fullest extent permitted by law if enforcement would not frustrate the overall intent of the
parties (as such intent is manifested by all provisions of the Agreement including such invalid,
void, or otherwise unenforceable portion).
11. Retention. Consultant is retained by the Bank only for the purposes and to the
extent set forth in this Agreement, and Consultant’s relationship to the Bank shall be that of an
independent contractor. Consultant shall not be considered under this Agreement as having employee
status or as being entitled to participate in any Bank employee benefit plans.
12. Taxes. Consultant acknowledgs that no federal or state withholding taxes, FICA,
SDI, or other employee payroll taxes or deductions are made with respect to compensation paid to
Consultant pursuant to this Agreement. Consultant is responsible for all such taxes, and agrees to
report for federal and state income tax purposes all such compensation, and to pay all
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taxes due thereon and to indemnify, defend and hold the Bank harmless in the event that any
claims are made by any taxing authority, by reason of Consultant’s failure to properly pay any and
all taxes which are due in relation to the services provided pursuant to this Agreement.
13 Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will constitute one and the same
instrument.
14 Governing Law. This Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of California, without giving effect to the choice of law
principles thereof.
15 Entire Agreement. This Agreement constitutes the entire agreement by the Bank and
Consultant with respect to the subject matter hereof and merges and supersedes any and all prior
discussions, negotiations, agreements or understandings between Consultant and the Bank with
respect to the subject matter hereof, whether written or oral. This Agreement may be amended or
modified only by a written instrument executed by Consultant, Consultant and the Bank. With regard
to such amendments, alterations, or modifications, facsimile signatures shall be effective as
original signatures. Any amendment, alteration, or modification requiring the signature of more
than one party may be signed in counterparts.
16 Further Actions. Each party agrees to perform any further acts and execute and
deliver any further documents reasonably necessary to carry out the provisions of this Agreement.
17 No Third Party Beneficiaries. This Agreement and each and every provision hereof
is for the exclusive benefit of the parties and not for the benefit of any third party.
18 Headings. The headings in this Agreement are inserted only as a matter of
convenience, and in no way define, limit, or extend or interpret the scope of this Agreement or of
any particular provision hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
CITIZENS BUSINESS BANK |
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By: | /s/ Xxxxxxxxxxx X. Xxxxx | |||
Xxxxxxxxxxx X. Xxxxx, President and Chief | ||||
Executive Officer | ||||
CONSULTANT: |
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By: | /s/ X. Xxxx Wiley | |||
X. Xxxx Xxxxx | ||||
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