Exhibit 10.8
AMENDED AND RESTATED SERVICES
AGREEMENT
THIS AMENDED AND RESTATED
SERVICES AGREEMENT (the
“ Agreement ”) originally entered into as
of this 9th day of August, 2007, and further amended as of
November 14, 2008, is 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 Steven
J. Goldstein (“ Goldstein ”);
NOW, THEREFORE
, for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Bank and Contractor hereby agree as
follows:
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.
Subject to the provisions of this
Agreement, Contractor shall assign one of its employees, Goldstein,
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 ”). Goldstein will report
directly to the president and chief executive officer of the Bank.
During the term of this Agreement, Contractor shall cause Goldstein
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 Goldstein will conduct most of the Services at
the principal office of the Bank. Contractor agrees to cause
Goldstein 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 Goldstein 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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(a) The Bank shall pay Contractor
$394,000 per year for the year beginning January 1, 2008, in
twelve equal monthly installments (each such monthly installment,
the “ Base Fee ”), for the Services
provided to the Bank under this Agreement. The Base Fee may be
amended at any time in writing by mutual agreement of the
parties.
(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.
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4.
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Equipment
and Expenses
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(a) The Bank shall supply Contractor
with the equipment and support reasonably necessary to perform the
Services under this Agreement, including office space for Goldstein
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.
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5.
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Representations and Warranties of
Contractor
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(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,
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disability, workers’
compensation insurance, and other contributions based on fees paid
to 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 Goldstein 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 Goldstein 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
Goldstein, 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 Goldstein is involved with, or supervises, on behalf of the
Bank.
(a) Contractor represents that it
has advised the Bank in writing prior to the date of signing this
Agreement of any of its or Goldstein’s 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 Goldstein’s performance of the
Services, or which would prevent Contractor or Goldstein from
carrying out the terms of this Agreement. Contractor affirms that
it shall, and it shall cause Goldstein 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, Goldstein agrees to comply
with the provisions of the Bank’s Code of Conduct, subject to
any exceptions or waivers granted thereunder in accordance
therewith.
(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 ”).
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(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 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.
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.
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9.
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Indemnification of the Bank
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(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 Sect