Exhibit 10.6
CONSULTING
AGREEMENT
This CONSULTING
AGREEMENT (the “ Agreement ”) is entered into as
of the 11 th day of October, 2007, by and
between VENTURE ONE HOLDINGS, INC. (the “ Company
”), a corporation organized under the laws of the State of
California, and Kirk Colburn, an adult individual residing in the
State of California (the “ Consultant
”).
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
formation of a proposed new bank (the “ Bank ”),
upon the terms and conditions hereinafter set forth.
2. Term . The
term of this Agreement shall be effective as of October 11
th
, 2007 (the “
Commencement Date ”), and shall terminate on the
earlier of (i) March 31, 2008; (ii) the date on
which the Bank opens for business following the receipt of (and
satisfaction of all conditions to opening for business under) its
authorization to commence its banking business from the appropriate
chartering authority (“ Certificate of Authority
”) and approval of its application for deposit insurance from
the Federal Deposit Insurance Corporation (“FDIC”);
(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 Company gives written
notice to the Consultant that it is terminating this Agreement
“for cause” as hereafter defined; (v) the death of
the Consultant; (vi) the Company determines, after
consultations with its advisors, that the Consultant is not likely
to be accepted by the relevant bank regulatory authorities as a
candidate to be Chief Financial Officer of the Bank; (vii) the
Company notifies the Consultant that his services are terminated in
the sole discretion of the Company; or (viii) the Consultant
resigns from or otherwise terminates his consultancy under this
Agreement. As used herein, “for cause” shall mean
receipt by the Company of any notification from any banking
authority relevant to the planned formation of the Bank, which may
include without limitation, the FDIC, the Office of the Comptroller
of the Currency (“ OCC ”), or the California
Department of Financial Institutions (“ DFI ”)
depending on the type of charter applied for, indicating that the
Consultant would not be an acceptable candidate to be Chief
Financial Officer of the Bank, or the Consultant’s:
(a) conviction of a felony; (b) breach of fiduciary duty;
(c) fraud; (d) dishonesty; (e) use of illegal drugs;
or (f) breach of a material term of this Agreement.
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) Signing Bonus . On the
Commencement Date the Company shall pay the Consultant a signing
bonus of Twenty Thousand Dollars ($20,000.00).
(b) Consulting
Fee . The Company shall pay the Consultant the sum of Eleven
Thousand Eight Hundred and Seventy-Five Dollars ($11,875.00) per
month (prorated for any partial month), which shall be paid in
arrears in two installments of Five Thousand Nine Hundred and
Thirty-Seven Dollars and Fifty Cents ($5,937.50) each on the
15 th and 30 th day of each calendar
month.
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(c) Deductions . All such
compensation shall be payable without deduction for federal income,
social security, or state income taxes or any other amounts. The
Consultant acknowledges and agrees that the Company shall not
withhold any taxes from such compensation, except as required by
law. Accordingly, the Consultant shall be solely responsible for
all income taxes arising out of the payment of such compensation,
and the Consultant shall indemnify the Company against any and all
taxes, assessments and penalties arising out of the payment of such
compensation.
(d) Severance . If this
Agreement is terminated the Consultant shall be entitled to no
further compensation of any kind under this Agreement.
4. Duties . The Consultant
shall render services conscientiously and shall devote his full
time, attention, efforts and abilities in furtherance of the
organizational and business activities of the Company and the Bank,
including without limitation obtaining regulatory approvals, site
acquisition and development activities, personnel matters and
capital raising activities, and such other tasks and
responsibilities that are consistent with that of a the Consultant
engaged to assist in the formation or acquisition of a proposed
bank, as the Company’s board of directors/organizers or a
committee thereof, or the proposed CEO of the Bank shall assign
from time to time. These services shall be performed 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 or a
committee thereof. The Consultant may not, without the prior
written consent of the Company, render services directly or
indirectly, of a business or commercial nature, to any other person
or organization during the term of this Agreement.
5. Expenses . The Consultant
shall be reimbursed by the Company for all reasonable business
expenses paid by the Consultant during the performance of his
services hereunder; provided however, that any such reimbursement
shall require the prior written approval of the Company’s
board of directors, a committee thereof, the chairman of the board
or his designee or the proposed CEO of the Bank. The
Company’s obligation to reimburse the Consultant pursuant to
this section shall be subject to the presentation to the
Company’s board of directors, a committee thereof, the
chairman or his designee, or the proposed CEO of the Bank, 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 the Consultant is acting as an
independent contractor in performing services hereunder. The
Company shall have no obligation to carry worker’s
compensation insurance or any health or accident insurance to cover
the Consultant. The Company shall have no obligation to pay any
contributions to social security, unemployment insurance, federal
or state withholding taxes, nor to provide any other contributions
or benefits which might be expected in an employer-employee
relationship.
7. Covenant Not to Compete .
The Consultant hereby acknowledges and recognizes the highly
competitive nature of the Bank’s business and accordingly
agrees that, during and for the period commencing with the date
hereof and ending on the termination of this Agreement the
Consultant will not directly or indirectly:
(a) engage in any business activity
related to the business of banking or financial services, or the
formation of any entity for the purpose of engaging in such a
business (other than on behalf of the Company to the extent that
the Consultant is then in
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the employ of or consulting for the
Company), whether such engagement is as an officer, director,
proprietor, employee, partner, member, investor (other than as a
passive investor in less than one percent (1%) of the
outstanding capital stock of a publicly traded corporation),
consultant, advisor, agent or other participant in another
business,
(b) assist others in engaging in any
of the business activities prohibited to the Consultant under
clause (a) above, or
(c) induce employees or consultants
of the Company or any proposed employees or consultants of the Bank
to engage in any activities hereby p
