exv10w12






Exhibit 10.12




CONSULTING AGREEMENT




     This Agreement (this “Agreement”) is entered into as of the ___day of ___, 2008 by and
between United Business Holdings, Inc. (the “Company”) having its principal place of business in
San Diego, California and Karen Brassfield, 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 Company’s 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) December 31, 2008; (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 she has been unable to perform his or her 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 or her 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 Chief Operating 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 thirteen thousand
five hundred forty-one dollars and sixty-six cents ($13,541.66) per month (prorated for any partial
month), which shall be paid in arrears in two installments of six thousand seven hundred seventy
dollars and eighty-three cents ($6,770.83) each on the 15th and 30th day of
each calendar month.



               (b) Automobile. The Company shall provide a monthly allowance for automobile expenses
in the amount of $500 payable monthly (pro rated for any partial month), in arrears, on the
1st business day of each month. The Consultant shall have no obligation to account for
his or her monthly automobile expenses.




	©	 	Copyright 2006 — All Rights Reserved

Jenkens & Gilchrist, P.C.




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               (c) Medical Benefits. The Company shall reimburse the Consultant, not less frequently
than monthly, upon presentment of appropriate documentation the amount paid by the Executive to
continue, without interruption, family medical benefits coverages under COBRA.



               (d) Deductions. All such compensation shall be payable without deduction for federal
income, social security, or state income taxes or any other amounts.



               (e) 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, equal to six months of
consulting fees. The Termination Payment due pursuant to this Section 3(e) shall be the
Consultant’s exclusive remedy upon termination by the Company for any reason other than “for
cause.”



          4. Duties. The Consultant shall render services conscientiously and shall devote his
or her 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 or her
services hereunder; provided, any such reimbursement in excess of $5,000 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-employee relationship.




          7. Covenant Not to Compete. The Consultant hereby acknowledges and recognizes the
highly competitive nature of the Company’s business and accordingly agrees that, during the term of
this Agreement, the Consultant will not, except as provided in Paragraph 4 hereof, 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 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,



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               (b) assist others in engaging in any of the business activities prohibited to the Consultant
under clause (a) above, or



               (c) induce employees of the Company to engage in any activities hereby prohibited to the
Consultant or to terminate their employment.



          The term of this restriction shall be extended for a period of time equal to any period of
time during which the Consultant violates or fails to observe the provisions of this paragraph.




          8. No Disclosure of Confidential Information. The Consultant acknowledges that the
Company’s trade secrets and private processes, as they may exist from time to time, and
confidential information concerning the formation and development of the Bank, the Bank’s planned
products, technical information regarding the Bank, and data concerning potential customers of and
investors in the Bank are valuable, special, and unique assets of the Company, access to and
knowledge of which are essential to the performance of the Consultant’s duties under this
Agreement. In light of the highly competitive nature of the industry in which the business of the
Company is conducted, the Consultant further agrees that all knowledge and information described in
the preceding sentence not in the public domain and heretofore or in the future obtained by the
Consultant as a result of his or her engagement by the Company shall be considered confidential
information. In recognition of this fact, the Consultant agrees that the Consultant will not,
during or after the term of this Agreement, disclose any of such secrets, processes, or information
to any person or other entity for any reason or purpose whatsoever, except: (a) as required by
subpoena or court order, in which case Consultant shall give Company at least 10 days’ notice; or
(b) as necessary in the performance of the Consultant’s duties as a consultant to the Company and
then only upon a written confidentiality agreement in such form and content as requested by the
Company from time to time. Consultant shall not make use of any of such secrets, processes or
information for Consultant’s own purposes or for the benefit of any person or other entity (except
the Company and its subsidiaries, if any) under any circumstances during or after the term of this
Agreement. Consultant acknowledges that all such confidential information is property of the
Company and/or the Bank and agrees that upon Consultant’s termination all such confidential
information shall be returned to the Company within twenty-four (24) hours of such termination.




          9. Remedies. The Consultant acknowledges and agrees that the Company’s remedy at law
for a breach or threatened breach of any of the provisions of Paragraphs 7 and 8 of this Agreement
would be inadequate. In recognition thereof, if the Consultant breaches or threatens to breach any
provision of Paragraphs 7 and 8 of this Agreement, the Company shall be entitled to equitable
relief in the form of specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy which may then be available in addition to any of its
remedies at law. Nothing herein shall prohibit the Company from pursuing any other right or remedy
available to it for such breach or threatened breach.




          10. Employment Agreement. It is anticipated that the Consultant and the Bank will
enter into an Employment Agreement having a term of not less than three years, in a form
satisfactory to each of the Consultant and the Bank in their reasonable discretion, subject to the
approval of such form by the Bank’s primary regulators and modifications to such form as may be
required by the regulators, which Employment Agreement shall be effective as of the date on which
the California Department of Financial Institutions issues the Certificate of Authority to the Bank
and the Federal Deposit Insurance Corporation issues approval for Insurance of Accounts.




          11. Assignment. This Agreement is a personal one, being entered into in reliance upon
and in consideration of the personal skill and qualifications of Consultant. Consultant shall
therefore not voluntarily or by operation of law assign or otherwise transfer the obligations
incurred on its



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part pursuant to the terms of this Agreement without the prior written consent of
Company. Any attempted assignment or transfer by Consultant of its obligations without such
consent shall be wholly void.




          12. Modification of Agreement. This Agreement may be modified by the parties hereto
only by a written supplemental agreement executed by both parties.




          13. Notice. Any notice required or permitted to be given hereunder shall be
sufficient if in writing, and if sent by any nationally recognized courier service providing for
receipt of delivery, registered or certified mail, postage prepaid, or by fax followed by such
mail, addressed as follows:




               If to Company:



	 	 	 	 	 
	 

	 	 

	 	 
	 

	 	 

	 	 
	 

	 	 

Attention: Chairman of the Board
	 	 






               If to Consultant:



	 	 	 	 	 
	 

	 	Karen Brassfield	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 

	 	 

	 	 





or to such other address as the parties hereto may specify, in writing, from time to time.




          14. Waiver of Breach. The waiver by either party of any breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent breach.




          15. Entire Agreement. This Agreement contains the entire agreement of the parties
relating to the subject matter of this Agreement and supersedes any prior written or oral
arrangements with respect to the Consultant’s engagement by the Company.




          16. Successors, Binding Agreement. Subject to the restrictions on assignment
contained herein, this Agreement shall inure to the benefit of and be enforceable by the
Consultant’s personal or legal representatives, executors, administrators, heirs, distributees,
devisees, and legatees.




          17. Validity. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this Agreement, which
shall remain in full force and effect.




          18. Applicable Law. This Agreement shall be governed by and construed in accordance
with the domestic laws of the State of California.




          19. Headings. The headings of the paragraphs of this Agreement are for convenience
only and shall not control or affect the meaning or construction or limit the scope or intent of
any of the provisions of this Agreement.




          20. Voluntary Agreement. The parties hereto acknowledge that each has had an
opportunity to consult with an attorney or other counselor concerning the meaning, import, and
legal




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significance of this Agreement, and each has read this Agreement, as signified by their
respective signature hereto, and each is voluntarily executing the same after, if sought, advice of
counsel for the purposes and consideration herein expressed.




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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set
forth above.



	 	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	Print Name: Karen Brassfield
	 
	 	 	 	 
	 

	 	 	 	“Consultant”
	 
	 	 	 	 
	 	 	United Business Holdings, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	“Company”







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