CONSULTING AGREEMENT
--------------------
This Agreement is made and entered into as of November 1, 1991, by and
between Imperial Bank, a California banking corporation, ("Bank") and Robert S.
Muehlenbeck ("Consultant"), in connection with services to be provided to Bank
by Consultant in the identification and implementation of an opportunity to
raise capital for the benefit of Bank in connection with Bank's mortgage banking
and thrift and loan activities which may be consolidated into a new company.
Consultant has brought to the attention of Bank potential opportunities
from time to time and has expended his time, effort and funds towards defining
and perfecting such opportunities. Consultant has identified a specific
potential transaction involving the Bank's Mortgage Division and Thrift
subsidiary, and has performed sufficient market analysis and preliminary
feasibility studies at its own cost and risk to provide Bank with the
opportunity to assess the potential viability of the project. Consultant has
offered and Bank has agreed that Consultant will pursue the matter, in
coordination with designated Bank management, on a successful efforts basis with
Bank being responsible only to third party costs and an agreed amount of
overhead reimbursement absent the closing of a successful transaction.
In order to pursue opportunities in connection with Bank's mortgage banking
and thrift and loan activities and ongoing activities as hereinafter specified,
Bank desires to engage Consultant effective as of the date hereof, and
Consultant is willing to provide services to Bank involving the collection and
analysis of relevant information, preparation of marketing oriented materials,
selection of, negotiation with and coordination of appropriate professionals
(legal, accounting and investment banking) to assist in the process leading to a
potential securities offering or offerings ("Transaction") of a new company (the
"Company") to raise capital to the benefit of Bank, and to provide ongoing
advice and services with reference to the maximization of Bank's investment in
Company over an extended period of time.
In consideration of the mutual covenants and conditions hereof, the parties
agree as follows:
1. Bank hereby engages Consultant and Consultant hereby agrees to perform
services for Bank in connection with the Transaction and on an ongoing basis
hereafter.
2. In the event a Transaction is consummated within one year from the
date hereof, Bank shall pay to Consultant, in consideration of the services
rendered and to be rendered in formatting and organizing the Company, analyzing
and selecting financial alternatives, managing consultants and professionals,
and providing ongoing services involving oversight of and advice in reference to
Bank's investment in the Company for a period of ten (10) years from the date
hereof, a fee equal to $125,000 payable upon a Transaction, plus an incentive
fee of 2.5 percent of the realized pretax gains received by Bank when, as and if
realized by Bank from Bank's disposition of securities issued by the Company.
For purposes of this incentive fee, Bank shall be considered to have sold an
amount equal to 20% of any securities holdings of the Company after any initial
public offering as of January 1, 1997, 1998, 1999, 2000 and 2001, at a price
equal to the arithmetic average of the daily average stock price of the Company
as reported by the NASD during the preceding year, and Bank shall pay
compensation based on such presumed sale to the extent that actual sales of
Company securities by Bank during the preceding years have not been equal to or
greater than the volume of presumed sales specified.
3. In the event Bank distributes the securities of the Company to its
parent or an affiliate, and the recipient of the securities agrees to assume
Bank's fee obligations under this Agreement, no compensation shall be due
Consultant out of this Agreement as a result of such transfer so long as the
Bank remains secondarily liable for such payments. Any other distribution of
Company securities by Bank shall be considered a sale at the average price as
would be applicable to a presumed sale provided for above.
4. Bank agrees to cooperate with Consultant in the providing of its
services hereunder and Consultant shall be an independent contractor working
under the general direction of Bank, but without the requirement of dedicating
any particular personnel or specific hours of services in connection with this
Agreement. Bank acknowledges that Consultant or its affiliates are Directors of
Imperial Bank and/or Imperial Bancorp, Bank's parent, and that this relationship
has been disclosed to Bank and to the Boards of Directors of both Bank and
Imperial Bancorp, and this Agreement has been submitted to and approved by the
respective Boards of both corporations without the participation of either G.
Louis Graziadio III or Robert Muehlenbeck.
5. Any provision of this Agreement which is prohibited or unenforceable
in any applicable jurisdiction shall, as to such jurisdiction, not be in effect
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction. No amendment or
waiver of any provision of this Agreement, nor consent to any departure by
either party therefrom, shall in any event be effective unless the same shall be
in writing and signed by an authorized representative of the other party and any
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which it is given. All rights and remedies of the
parties hereunder shall, except as otherwise specifically provided herein, be
cumulative and non-exclusive of any rights or remedies which either may have
under any other agreement or instrument, by operation of law, or otherwise. This
Agreement shall become effective when it is executed by both parties and
thereafter shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns, except that Consultant shall not have
the right to assign its rights, obligations or interests hereunder with the
prior written consent of Bank. Consultant's obligation to provide continuing
services hereunder shall terminate upon the death or permanent disability of
Consultant. This Agreement shall be governed by and construed in accordance with
the laws of the State of California applicable to contracts made and performed
in said State.
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6. In the event of any dispute arising out of or in connection with this
Agreement, and any documents executed pursuant hereto, the prevailing party, in
addition to any other amounts which it may be entitled to, shall be entitled to
recover from the other party reasonable attorneys' fees and court costs as shall
be awarded in the resolution of such dispute.
This Agreement is executed by or on behalf of the parties by duly
authorized representatives as of the date first set forth above.
IMPERIAL BANK
By: /s/Norman P. Creighton
------------------------------------------
Norman P. Creighton, President and Chief
Executive Officer
/s/Robert S. Muehlenbeck
------------------------------------------
Robert S. Muehlenbeck
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CONSULTING AGREEMENT
--------------------
This Agreement is made and entered into as of November 1, 1991, by and
between Imperial Bank, a California banking corporation, ("Bank") and Second
Southern Corp. ("Consultant"), in connection with services to be provided to
Bank by Consultant in the identification and implementation of an opportunity to
raise capital for the benefit of Bank in connection with Bank's mortgage banking
and thrift and loan activities which may be consolidated into a new company.
Consultant has brought to the attention of Bank potential opportunities
from time to time and has expended his time, effort and funds towards defining
and perfecting such opportunities. Consultant has identified a specific
potential transaction involving the Bank's Mortgage Division and Thrift
subsidiary, and has performed sufficient market analysis and preliminary
feasibility studies at its own cost and risk to provide Bank with the
opportunity to assess the potential viability of the project. Consultant has
offered and Bank has agreed that Consultant will pursue the matter, in
coordination with designated Bank management, on a successful efforts basis with
Bank being responsible only to third party costs and an agreed amount of
overhead reimbursement absent the closing of a successful transaction.
In order to pursue opportunities in connection with Bank's mortgage banking
and thrift and loan activities and ongoing activities as hereinafter specified,
Bank desires to engage Consultant effective as of the date hereof, and
Consultant is willing to provide services to Bank involving the collection and
analysis of relevant information, preparation of marketing oriented materials,
selection of, negotiation with and coordination of appropriate professionals
(legal, accounting and investment banking) to assist in the process leading to a
potential securities offering or offerings ("Transaction") of a new company (the
"Company") to raise capital to the benefit of Bank, and to provide ongoing
advice and services with reference to the maximization of Bank's investment in
Company over an extended period of time.
In consideration of the mutual covenants and conditions hereof, the parties
agree as follows:
1. Bank hereby engages Consultant and Consultant hereby agrees to perform
services for Bank in connection with the Transaction and on an ongoing basis
hereafter.
2. Consultant will be reimbursed for its costs in connection with providing
the services hereunder on the basis of a payment of $12,500 per month for the
time commitment of Consultant, it's employees and affiliates from the date
hereof through the consummation of a Transaction or notice from Bank to
Consultant to terminate its services. Consultant shall bill Bank monthly,
including a detail of any ordinary and necessary out-of-pocket expenses incurred
by Consultant in addition to its normal overhead cost, which costs shall be paid
by Bank in addition to the monthly amount specified above.
3. In the event a Transaction is consummated within one year from the date
hereof, Bank shall pay to Consultant, in consideration of the services rendered
and to be rendered in formatting and organizing the Company, analyzing and
selecting financial alternatives, managing consultants and professionals, and
providing ongoing services involving oversight of and advice in reference to
Bank's investment in the Company for a period of ten (10) years from the date
hereof, a fee equal to $175,000 payable upon a Transaction, plus an incentive
fee of 2.5 percent of the realized pretax gains received by Bank when, as and if
realized by Bank from Bank's disposition of securities issued by the Company.
For purposes of this incentive fee, Bank shall be considered to have sold an
amount equal to 20% of any securities holdings of the Company after any initial
public offering as of January 1, 1997, 1998, 1999, 2000 and 2001, at a price
equal to the arithmetic average of the daily average stock price of the Company
as reported by the NASD during the preceding year, and Bank shall pay
compensation based on such presumed sale to the extent that actual sales of
Company securities by Bank during the preceding years have not been equal to or
greater than the volume of presumed sales specified.
4. In the event Bank distributes the securities of the Company to its
parent or an affiliate, and the recipient of the securities agrees to assume
Bank's fee obligations under this Agreement, no compensation shall be due
Consultant out of this Agreement as a result of such transfer so long as the
Bank remains secondarily liable for such payments. Any other distribution of
Company securities by Bank shall be considered a sale at the average price as
would be applicable to a presumed sale provided for above.
5. Bank agrees to cooperate with Consultant in the providing of its
services hereunder and Consultant shall be an independent contractor working
under the general direction of Bank, but without the requirement of dedicating
any particular personnel or specific hours of services in connection with this
Agreement. Bank acknowledges that Consultant or its affiliates are Directors of
Imperial Bank and/or Imperial Bancorp, Bank's parent, and that this
relationship has been disclosed to Bank and to the Boards of Directors of both
Bank and Imperial Bancorp, and this Agreement has been submitted to and approved
by the respective Boards of both corporations without the participation of
either G. Louis Graziado III or Robert Muehlenbeck.
6. Any provision of this Agreement which is prohibited or unenforceable
in any applicable jurisdiction shall, as to such jurisdiction, not be in effect
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction. No amendment or
waiver of any provision of this Agreement, nor consent to any departure by
either party therefrom, shall in any event be effective unless the same shall be
in writing and signed by an authorized representative of the other party and any
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which it is given. All rights and remedies of the
parties hereunder shall, except as otherwise specifically provided herein, be
cumulative and non-exclusive of any
2
rights or remedies which either may have under any other agreement or
instrument, by operation of law, or otherwise. This Agreement shall become
effective when it is executed by both parties and thereafter shall be binding
upon and inure to the benefit of the parties and their respective successors and
assigns, except that Consultant shall not have the right to assign its rights,
obligations or interests hereunder with the prior written consent of Bank.
Consultant's obligation to provide continuing services hereunder shall terminate
upon the death or permanent disability of G. Louis Graziadio, III. This
Agreement shall be governed by and construed in accordance with the laws of the
State of California applicable to contracts made and performed in said State.
7. In the event of any dispute arising out of or in connection with this
Agreement, and any documents executed pursuant hereto, the prevailing party, in
addition to any other amounts which it may be entitled to, shall be entitled to
recover from the other party reasonable attorneys' fees and court costs as shall
be awarded in the resolution of such dispute.
This Agreement is executed by or on behalf of the parties by duly
authorized representatives as of the date first set forth above.
IMPERIAL BANK
By: /s/ Norman P. Creighton
----------------------------------------
Norman P. Creighton, President and Chief
Executive Officer
SECOND SOUTHERN CORP.
By: /s/ G. Louis Graziadio, III
----------------------------------------
G. Louis Graziadio, III
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