Exhibit 99.4
CONSULTING AGREEMENT
This Agreement
(this “Agreement”) is entered into as of the 31st day
of August, 2007, by and between Solera National Bancorp, Inc. (the
“Company”) f/k/a Patria Corporation , and Solera
National Bank, corporations organized under the laws of the State
of Delaware and the State of Colorado, respectively, and Paul M.
Ferguson, an adult individual residing in the State of Colorado
(the “Consultant”).
WHEREAS, the
Company and the Consultant executed an agreement effective the 1
st day
of November, 2006 which agreement expired by its terms on April 1,
2007; and
WHEREAS, the
Company and the Consultant executed an additional agreement
effective the 1 st day
of April, 2007 which agreement expired by its terms on June 30,
2007; and
WHEREAS, the
Company and the Consultant executed an additional agreement
effective the 30th day of June, 2007 which agreement expired by its
terms on August 31, 2007; and
WHEREAS , the
Company desires to enter into this Agreement with the Consultant to
retain the services of the Consultant on the terms and conditions
as provided herein,
NOW, THEREFORE , in
consideration of the mutual promises and covenants set forth in
this Agreement, the parties hereto agree as follows:
1.
Engagement . The
Company hereby engages the Consultant and the Consultant hereby
agrees to render, at the request of the Company, independent
advisory and consulting services for the Company in connection with
the organization of a proposed bank (the “Bank”), upon
the terms and conditions hereinafter set forth.
2.
Term . The term of
this Agreement shall begin as of the date of this Agreement and
shall terminate on the earlier of (i) September 12, 2007; (ii) the
date on which the Bank receives (and satisfies all conditions to
opening for business under) its authorization to commence its
banking business (the “Certificate of Authority”) from
the Office of the Comptroller of the Currency and approval of
Insurance of Accounts from the Federal Deposit Insurance
Corporation; (iii) the date on which the Company advises the
Consultant that it has abandoned its effort to obtain the
Certificate of Authority; (iv) the date on which the Consultant
receives written notice from the Company that it is terminating
this Agreement “for cause” as hereafter defined; or (v)
the death or disability of the Consultant (as used herein, the
disability of the Consultant shall be deemed to have occurred when
he has been unable to perform his services under this Agreement for
a period of forty-five (45) consecutive days or the Consultant has
made any claim under any disability insurance policy.) As used
herein, “for cause” shall be defined as follows:
(i) the Consultant’s failure to use diligent and good faith
efforts to perform the services requested by the Company under this
Agreement (which failure is not cured within five (5) days
following written notice to the Consultant); (ii) the
Consultant’s willful misconduct or gross negligence in the
performance of his services hereunder; (iii) the Consultant’s
conviction of a crime or involvement in any conduct which could, in
the judgment of the Company, adversely impact on the reputation of
the Company or the Bank or the prospects of the Bank receiving its
Certificate of Authority; (iv) receipt by the Company of any
notification from the Office of the Comptroller of the Currency or
the Federal Deposit Insurance Corporation indicating that the
Consultant would not be an acceptable candidate to be President
& Chief Executive Officer of the Bank.
3.
Compensation .
During the term of this Agreement, as compensation for all services
rendered by the Consultant under this Agreement, the Company shall
pay the Consultant the following amounts:
(a)
Consulting Fee . The
Company shall pay the consultant the sum of sixteen thousand two
hundred fifty dollars ($16,250.00) per month (prorated for any
partial month), which shall be paid in arrears in two installments
of eight thousand one hundred twenty-five dollars ($8,125.00) each
on the 15 th and
30 th day
of each calendar month.
(b)
Deductions . All
such compensation shall be payable without deduction for federal
income, social security, or state income taxes or any other
amounts.
(c)
Termination Payment.
If, for any reason, other than a termination by the Company for
Cause, the Company terminates this Agreement during its term and
without the Employment Agreement referenced in Paragraph 10 of this
Agreement becoming effective, Consultant will be entitled to
receive a lump sum payment, payable on the date of termination, of
not less than the greater of (i) one-half of the fees which would
have been payable for the remaining term of this Agreement from the
date of termination or (ii) $70,000.
4.
Duties . The
Consultant shall render services conscientiously and shall devote
his full time, attention, efforts and abilities to the
establishment of the Bank, including without limitation obtaining
regulatory approvals, site development activities, personnel
matters and capital raising activities, at such times during the
term hereof and in such manner as reasonably requested by the
Company, and performed at such places and at such times as are
reasonably convenient to the Company and the Consultant. The
Consultant shall observe all policies and directives promulgated
from time to time by the Company’s Board of
Directors.
5.
Expenses . The
Consultant shall be reimbursed by the Company for all reasonable
business expenses which were incurred by the Consultant during the
performance of his services hereunder; provided, any such
reimbursement in excess of $250 in any month shall require the
prior written approval of the Company’s Board of Directors or
a committee thereof; provided however that any expenses set forth
in the organizational budget shall be deemed to be approved unless
the Company’s Board of Directors makes an express
determination to the contrary prior to the time at which the
expense is incurred. The Company’s obligation to
reimburse the Consultant pursuant to this paragraph shall be
subject to the presentation to the Company’s Board of
Directors or a committee thereof by the Consultant of an itemized
account of such expenditures, together with supporting vouchers, in
accordance with any policies of the Company in effect from time to
time.
6.
Independent Contractor .
It is expressly agreed that Consultant is acting as an
independent contractor in performing services hereunder. The
Company shall carry no worker’s compensation insurance or any
health or accident insurance to cover Consultant. The Company
shall not pay any contributions to Social Security, unemployment
insurance, federal or state withholding taxes, nor provide any
other contributions or benefits which might be expected in an
employer-employer relationship.
7.
Covenant Not to Compete .
The Consultant hereby acknowledges and recognizes the
highly
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