Fair Referral Agreement Review

Is this a fair agreement?

THIS CRESCENT REFERRAL AGREEMENT (this “Agreement”), dated as of the latest date set forth on the signature page attached hereto (the “Effective Date”), is entered into by and between Crescent Financial Inc. (“Crescent”) and the undersigned referral partner (the “Referral Partner,” and together with Crescent, the “Parties,” and each, a “Party”). WHEREAS, Crescent is in the business of providing various financial technology services (collectively, the “Services”), including, without limitation, contracting with several licensed banks (“Banking Partners”) to offer high-yield business checking accounts (each, a “Checking Account”); and WHEREAS, Crescent desires to engage Referral Partner to introduce to Crescent businesses and other organizations which are potential leads for Checking Accounts (“Customers”), and Referral Partner desires to accept such engagement. NOW, THEREFORE, in consideration of the premises set forth above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: *. Engagement. a) Crescent hereby engages Referral Partner, and Referral Partner hereby accepts such engagement, to act as Crescent’s non-exclusive referral partner during the Term (as defined below), solely in accordance with the terms and conditions of this Agreement. Crescent may, in its sole discretion, engage any other person or company as a referral partner. b) Referral Partner shall introduce Crescent to Customers, and perform such other responsibilities as reasonably directed by Crescent, including forwarding Checking Account documentation and related marketing materials provided by Crescent. c) The prices, terms, and conditions under which Crescent offers or sells any Services shall be determined by Crescent in its sole discretion. Nothing in this Agreement shall obligate Crescent to actually offer or sell any Services or consummate any transaction with any Customer. Crescent may terminate any negotiations or discussions at any time and has the right not to proceed with the provision of Services without any liability or obligation to pay compensation to Referral Partner under Section 2or otherwise. d) Referral Partner acknowledges and agrees that Crescent maintains contractual relationships with various Banking Partners, which are essential to the business operations contemplated by this Agreement. In recognition of these relationships and to facilitate compliance with any regulatory obligations, Referral Partner agrees, upon request from Crescent, to promptly provide any information, documentation, or assistance reasonably required by Crescent or any Banking Partner to satisfy regulatory compliance obligations, including those related to anti-money laundering, know your customer (KYC) requirements, or other applicable legal and regulatory standards. e) Referral Partner shall defend, indemnify, and hold harmless Crescent, and any of its directors, officers, and shareholders, against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorney fees, fees and the costs of enforcing any right to indemnification under this Agreement, incurred by Crescent awarded in a final judgment, arising out or resulting from any claim of a third party related to its obligations under this Agreement. f) CRESCENT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. CRESCENT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. CRESCENT DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF CRESCENT’S SERVICES OR AGAINST INFRINGEMENT. CRESCENT DOES NOT WARRANT THAT CRESCENT’S SERVICES ARE ERROR-FREE OR THAT THE OPERATION OF CRESCENT’S SERVICES WILL BE SECURE OR UNINTERRUPTED. REFERRAL PARTNER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF CRESCENT TO ANY THIRD PARTY. *. Compensation. Crescent will pay to Referral Partner, as full compensation for the services rendered hereunder, a referral fee (the “Referral Fee”). The Referral Fee will be payable by Crescent quarterly in arrears. The Referral Fee shall be an amount equal to the percentage, specified on Schedule I (attached hereto) of Crescent’s net income derived from the service fees actually collected by Crescent from the Banking Partners and directly attributable to the average daily balance of the Checking Account for each Customer introduced by Referral Partner to Crescent hereunder (each, a “Referred Customer” and such income, “Net Income”). For clarity, a “Referred Customer” shall only refer to a business or organization introduced to Crescent by Referral Partner with which Crescent has no pre-existing or current business relationship. A “Referred Customer” is characterized by its intention of a business relationship with Crescent specifically through the opening and funding of a Checking Account. *. Independent Contractor. Referral Partner is an independent contractor of Crescent, and this Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between Referral Partner and Crescent for any purpose. Referral Partner has no authority (and shall not hold itself out as having authority) to bind Crescent and Referral Partner shall not make any agreements or representations on Crescent’s behalf. Without limiting the above, Crescent will not be responsible for withholding or paying any income, payroll, Social Security or other federal, state or local taxes, making any insurance contributions, including unemployment or disability, or obtaining worker’s compensation insurance on Referral Partner’s behalf. Referral Partner shall be responsible for, and shall indemnify Crescent against, all such taxes or contributions, including penalties and interest. Referral Partner shall be solely responsible for all costs or expenses that it may incur in the performance of its activities under this Agreement. Any persons employed or engaged by Referral Partner in connection with the performance of Referral Partner’s obligations hereunder shall be Referral Partner’s employees or contractors and Referral Partner shall be fully responsible for them and indemnify Crescent against any claims made by or on behalf of any such employees or contractors. *. Confidentiality and Publicity. a) All non-public, confidential, or proprietary information of Crescent, including, but not limited to, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, and rebates, disclosed by Crescent to Referral Partner, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement, as well as the terms and conditions and the existence of this Agreement is confidential, solely for the use of performing thisAgreementand may not be disclosed or copied unless authorized by Crescent in writing. Upon Crescent’s request, Referral Partner shall promptly return all documents and other materials received from Crescent. Crescent shall be entitled to injunctive relief for any violation of this Section4. This Section * shall not apply to information that is: (a) in the public domain; (b) known to the Referral Partner at the time of disclosure; or (c) rightfully obtained by the Referral Partner on a non-confidential basis from a third party. b) Referral Partner shall not (orally or in writing) publicly disclose or issue any press or make any other public statement, or otherwise communicate with the media, concerning the existence of this Agreement or the subject matter hereof, without the prior written approval of Crescent, except to the extent that Referral Partner (based upon the reasonable advice of counsel) is required to make a public disclosure or filing with respect to the subject matter of this Agreement by applicable law. *. Term and Termination. a) Crescent is entering into this Agreement with its full intention to have a long and prosperous relationship with Referral Partner and has no intention on terminating this Agreement unless due to a Cause event described in Section *(d) below. However, for the purposes of this Agreement, the Parties desire to set forth a one year initial term which will have an automatic renewal, subject to the following. The term of this Agreement commences on the date of this Agreement and continues for a period of one year, unless and until earlier terminated as provided under this Agreement (the “Initial Term”). Upon expiration of the Initial Term, this Agreement automatically renews for additional successive one year terms unless and until either Party provides a Notice of nonrenewal at least ten days prior to the end of the then-current term, or unless and until earlier terminated as provided under this Agreement (each, a “Renewal Term” and together with the Initial Term, the “Term”). b) The expiration or termination of this Agreement does not affect any rights or obligations that are to survive the expiration or termination of this Agreement or were incurred by either Party before the expiration or termination (except as expressly provided herein). On the expiration or termination of this Agreement, Referral Partner shall cease to represent itself as Crescent’s authorized agent, referral partner, or other similar designation. c) Notwithstanding anything to the contrary, following the expiration or termination of this Agreement, Crescent shall be obligated to make four (and only four) additional Referral Fee payments with respect to each Referred Customer; provided, however, no Referral Fee payments shall be made following the termination of this Agreement if this Agreement is terminated by Crescent with Cause (as defined in Section *(d) below). d) Either Party (the “Terminating Party”) may terminate this Agreement at any time by giving written notice to the other Party (the “Non-Terminating Party”) upon any of the following events, as determined by the Terminating Party in its reasonable discretion determined in good faith (a termination of this Agreement pursuant to this provision shall be referred to as a termination with “Cause”): i) the Non-Terminating Party materially breaches any provision of this Agreement; ii) the Non-Terminating Party (or any of its principal owners) willfully engages in dishonesty, illegal conduct, or gross misconduct, which in any case, is injurious to the Terminating Party or its affiliates; iii) the Non-Terminating Party (or any of its principal owners) is found to have embezzled or misappropriated funds, or committed fraud, whether or not related to the Non- Terminating Party or this Agreement; iv) the Non-Terminating Party (or any of its principal owners) is convicted of or pleads guilty or nolo contendere to a crime that constitutes a felony (or state law equivalent) or a crime that constitutes a misdemeanor involving moral turpitude; or v) the Non-Terminating Party (or any of its principal owners) engages in conduct that brings or is reasonably likely to bring the Terminating Party negative publicity or into public disgrace, embarrassment, or disrepute. e) In addition to any remedies that may be provided in this Agreement, either Party may terminate this Agreement with immediate effect upon Notice to the other Party, if the other Party: (i) fails to pay any amount when due under this Agreement and such failure continues for 30 days after the other Party’s receipt of Notice of nonpayment; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. *. Miscellaneous. a) All notices, requests, consents, claims, demands, waivers, summons and other legal process, and other similar types of communications hereunder (each, a “Notice”) must be in writing and addressed to the relevant Party at the mailing or email address set forth on the signature page to this Agreement (or to such other mailing or email address that may be designated by the receiving Party from time to time in accordance with this Section *(a). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), certified or registered mail (in each case, return receipt requested, postage prepaid), or email. A Notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the Notice has complied with the requirements of this Section *(a). b) This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of laws provisions of such State. c) This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. This Agreement, and each of the terms and provisions hereof, may only be amended, modified, waived, or supplemented by an agreement in writing signed by each Party.If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. d) Referral Partner shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Crescent, which shall not be unreasonably withheld. Notwithstanding the foregoing; provided, however, that Referral Partner may assign its rights, in whole, without such consent and upon ten (*) days prior written notice to Crescent, to one of its wholly owned subsidiaries or affiliates. Any purported assignment or delegation in violation of this Section shall be null and void. Crescent may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without Referral Partner’s consent. This Agreement will inure to the benefit of and be binding upon each of the Parties and each of their respective permitted successors and permitted assigns.The Parties do not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns. e) This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together constitutes one and the same agreement. Delivery of an executed counterpart of this Agreement electronically or by facsimile shall be effective as delivery of an original executed counterpart of this Agreement. f) The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a “Dispute”), in accordance with this Section *(f). The procedures set forth in this Section *(f) shall be the exclusive mechanism for resolving any Dispute that may arise from time to time and Section *(f) precedent to litigation of the Dispute. i) A Party shall send written notice to the other party of any Dispute (“DisputeNotice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves, including not fewer than three negotiation sessions attended by an executive officer of each Party with authority to settle such Dispute. In the event that such Dispute is not resolved on an informal basis within 60 days after a Party delivers the Dispute Notice to the other Party (the last day of such time period, the “Escalation to Mediation Date”), either Party may initiate mediation under Section *(f)(ii). ii) Subject to Section *(f)(i), the Parties may, at any time after the Escalation to Mediation Date, submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service, and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. iii) The Parties further agree that all offers, promises, conduct, and statements, whether oral or written, made in the course of the mediation by any of the Parties, their agents, employees, experts, and attorneys, and by the mediator and any employees of the mediation service, are confidential, privileged, and inadmissible for any purpose, including impeachment, in any litigation, arbitration or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. iv) If the Parties cannot resolve a Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within 120 days after the Escalation to Mediation Date, either Party may file suit in a court of competent jurisdiction; provided, that, each of the Parties irrevocably and unconditionally waive, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal action, proceeding, cause of action, or counterclaim arising out of or relating to this Agreement, or the transactions contemplated hereby. HB: *-*-*.* [SIGNATURE PAGE FOLLOWS] * IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date set forth below. CRESCENT: CRESCENT FINANCIAL INC. By: \ZxilKe\________________l Name: \19GEGp\ Title: \101IkJ\__ Date: \Z1udg69\_ Address: \Z2kdBW2\_ Email: \1tO4c1\ REFERRAL PARTNER: Company Name (if applicable): \Z1ud9fy\_ Optional By: \qCRiX\_________________l Sign Required - Sign HereRequired - Sign Here Name: Nicholas Cunningham \Z2vnKN5\ Title: \kARhC\ Optional Date: */*/* \QBXEO\ Address: \Z16FiWp\_ Optional Email: nick@thriveadvisorysolutions.com \ZAO0gr\ [SIGNATURE PAGE TO CRESCENT REFERRAL AGREEMENT] SCHEDULE I REFERRAL FEE SCHEDULE Time Period [*] Referral Fee [*] Year * *% Year * *% Year * *% [*] “Time Period” means, for purposes of this Schedule I, the Referral Fee payments made by Crescent with respect to each Referred Customer. Year One shall refer to Referral Fee payments one through four. Year Two shall refer to Referral Fee payments five through eight. Year Three shall refer to Referral Fee payments nine and greater. [*] “Referral Fee” means, for purposes of this Schedule I, an amount equal to the specified percentage of Crescent’s Net Income.

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