EXHIBIT 10.28
As of August 1, 1997
Richard M. Greenwood
Fidelity Federal Bank,
A Federal Savings Bank
4565 Colorado Boulevard
Los Angeles, California 90039
Dear Mr. Greenwood:
Bank Plus Corporation (the "Company") and its principal subsidiary, Fidelity
Federal Bank, A Federal Savings Bank (the "Bank"), consider the establishment
and maintenance of a sound and vital management to be essential to protecting
and enhancing the best interests of the Company and its shareholders. In this
connection, the Company and the Bank recognize that, as is the case with many
publicly held corporations, the possibility of a change in control may arise and
that such possibility, and the uncertainty and questions which it may raise
among management of the Bank, may hinder the Bank's efforts to recruit qualified
management personnel and result in the departure or distraction of management
personnel, in each case to the detriment of the Company and the Bank and the
Company's shareholders. Accordingly, the Board of Directors of the Company (the
"Board") and the board of directors of the Bank have determined that appropriate
steps should be taken to reinforce and encourage the continued attention and
dedication of members of management of the Bank to their assigned duties without
distraction in circumstances arising from the possibility of a change in control
of the Company or the Bank. In particular, the Board believes it important,
should the Company or its shareholders receive a proposal for transfer of
control of the Company or the Bank, that you be able to assess and advise the
Board whether such proposal would be in the best interests of the Company and
its shareholders and to take such other action regarding such proposal as the
Board might determine to be appropriate, without being influenced by the
uncertainties of your own situation.
In order to induce you to remain in the employ of the Bank, this letter
agreement sets forth the benefits which the Bank agrees will be provided to you
in the event of a "change in control" of the Company or the Bank under the
circumstances described below.
1. RIGHT TO TERMINATE; AGREEMENT TO PROVIDE SERVICES.
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(a) Except as otherwise provided in paragraph (b) below, the Bank or you
may terminate your employment at any time, subject to the Bank's providing the
benefits hereinafter specified in accordance with the terms hereof.
As of August 1, 1997
Page 2
(b) In the event a tender offer or exchange offer is made by a Person (as
hereinafter defined) for more than 25% of the combined voting power of the
Company's outstanding securities ordinarily having the right to vote at
elections of directors ("Voting Securities"), including shares of the common
stock of the Company, you agree that you will not leave the employ of the Bank
(other than as a result of Disability or upon Retirement, as such terms are
hereinafter defined) and will render the services contemplated in the recitals
to this Agreement until such tender offer or exchange offer has been abandoned
or terminated or a change in control of the Company or the Bank, as defined in
Section 3 hereof, has occurred. For purposes of this Agreement, the term
"Person" shall mean and include any individual, corporation, partnership, group,
association or other "person", as such term is used in Section 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act"), other than the Company,
the Bank, any other subsidiary of the Company or any employee benefit plan(s)
sponsored by the Company, the Bank or any other subsidiary of the Bank.
2. TERM OF AGREEMENT.
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(a) This Agreement shall commence on August 1, 1997 and shall continue in
effect until July 31, 2000; provided, however, that commencing on August 1, 2000
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and each August 1 thereafter, the term of this Agreement shall be extended for
one additional year unless at least 90 days prior to such August 1st date, the
Bank or you shall have given notice that this Agreement shall not be extended;
and provided, further, that, notwithstanding the delivery of any such notice,
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this Agreement shall continue in effect for a period of twenty-four (24) months
after a change in control of the Company or the Bank, as defined in Section 3
hereof, if such change in control shall have occurred during the term of this
Agreement, as it may be extended by the first proviso set forth above.
(b) Notwithstanding anything in this Section 2 to the contrary:
(i) this Agreement shall terminate if you or the Bank terminate
your employment prior to a change in control;
(ii) the obligations of the Bank hereunder shall terminate for so
long as you are suspended and/or temporarily prohibited from participating in
the conduct of the Bank's affairs by a notice served under Section 8(e)(3) or
(g)(1) of the Federal Deposit Insurance Act (12 U.S.C. (S) 1818(e)(3) and
(g)(1)) as of the date of service of such notice unless stayed by appropriate
proceedings; provided that if the charges in the notice are dismissed, the Bank
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may in its discretion (A) pay you all or part of any payments within the terms
of this Agreement withheld while its obligations under this Agreement was
suspended and (B) reinstate (in whole or in part) any of its obligations which
were suspended;
(iii) the obligations of the Bank hereunder shall terminate if you
are removed and/or permanently prohibited from participating in the conduct of
the Bank's affairs by an order issued under Section 8(e)(4) or (g)(1) of the
Federal Deposit Insurance Act (12 U.S.C. (S) 1818(e)(4) or (g)(1));
August 1, 1997
Page 3
(iv) this Agreement shall terminate if the Bank is in default (as
defined in Section 3(x)(1) of the Federal Deposit Insurance Act); or
(v) this Agreement shall be terminated by the Director of the
Office of Thrift Supervision or his or her designee (the "Director"), except to
the extent that the Director determines that continuation of this Agreement is
necessary for the continued operation of the Bank, (A) at the time the Federal
Deposit Insurance Corporation or the Resolution Trust Corporation enters into an
agreement to provide assistance to or on behalf of the Bank under the authority
contained in Section 13(c) of the Federal Deposit Insurance Act or (B) at the
time the Director approves a supervisory merger to resolve problems related to
operation of the Bank or when the Bank is determined by the Director to be in
unsafe or unsound condition;
provided, however, that in the case of paragraphs (iii), (iv) and (v) of this
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Section 2(b), vested rights hereunder held by the Bank or you shall not be
affected by such termination.
3. CHANGE IN CONTROL. For purposes of this Agreement, a "change in control"
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shall be deemed to occur if (a) any "person" (as such term is defined in Section
3(a)(9) and as used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")), excluding the Company, the Bank or
any of the Company's other subsidiaries, a trustee or any fiduciary holding
securities under an employee benefit plan of the Company, the Bank or any of the
Company's other subsidiaries, an underwriter temporarily holding securities
pursuant to an offering of such securities or a corporation owned, directly or
indirectly, by shareholders of the Company in substantially the same proportion
as their ownership of the Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 25% or more of the combined voting power
of the Company's then outstanding securities ("Voting Securities of the
Company"); or (b) during any period of not more than two years, individuals who
constitute the Board as of the beginning of the period and any new director
(other than a director designated by a person who has entered into an agreement
with the Company to effect a transaction described in clause (a) or (b) of this
sentence) whose election by the Board or nomination for election by the
Company's shareholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at such time or
whose election or nomination for election was previously so approved, cease for
any reason to constitute a majority thereof; (c) the shareholders of the Company
approve a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the Voting Securities
of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into Voting Securities of
the surviving entity) at least 60% of the combined voting power of the Voting
Securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the shareholders of the Company approve a plan
of complete liquidation of the Company or any agreement for the sale or
disposition by the Company or all or substantially all of the Company's assets;
(d) a sale or sales or other disposition or dispositions by the Company which
results in the Company ceasing to beneficially "own" (within the meaning of Rule
13d-3 under the Exchange Act, directly or indirectly, more
August 1, 1997
Page 4
than 50% of the Voting Securities of the Bank; or (e) a sale or sales of all or
substantially all of the assets of the Bank, in a single transaction or series
of transactions, other than to a direct or indirect subsidiary of the Company;
or (f) a merger or other combination involving the Bank as a result of which the
Company ceases to beneficially own, directly or indirectly, more than 50% of the
Voting Securities of the Bank or the successor to the Bank.
4. TERMINATION FOLLOWING A CHANGE IN CONTROL. If any of the events described
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in Section 3 hereof constituting a change in control shall have occurred, you
shall be entitled to the benefits provided in Section 5 hereof. For purposes of
this Agreement:
(a) Disability. Termination by the Bank of your employment based on
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"Disability" shall mean termination because of your absence from your duties
with the Bank on a full time basis for one hundred eighty (180) consecutive days
as a result of your incapacity due to physical or mental illness, unless within
thirty (30) days after Notice of Termination (as hereinafter defined) is given
to you following such absence you shall have returned to the full time
performance of your duties.
(b) Retirement. Termination by you or by the Bank of your employment based
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on "Retirement" shall mean termination on or after your attainment of age sixty-
five (65).
(c) Cause. Termination by the Bank of your employment for "Cause" shall
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mean termination upon (i) the willful and continued failure by you to perform
substantially your duties with the Bank (other than any such failure resulting
from your incapacity due to physical or mental illness) after a demand for
substantial performance is delivered to you by the Board or the executive
committee thereof, which specifically identifies the manner in which such body
believes that you have not substantially performed your duties, or (ii) your
willful dishonesty, incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, willful violation of any law, rule or regulation
(other than traffic violations or similar offenses) or final cease-and-desist
order, or material breach of any provision of this Agreement. For purposes of
this paragraph (c), no act, or failure to act, on your part shall be considered
"willful" unless done, or omitted to be done, by you in bad faith and without
reasonable belief that your action or omission was in, or not opposed to, the
best interests of the Bank. Any act, or failure to act, based upon authority
given pursuant to a resolution duly adopted by the Board or the board of
directors of the Bank or based upon the advice of counsel for the Company or the
Bank shall be conclusively presumed to be done, or omitted to be done, by you in
good faith and in the best interests of the Bank. It is also expressly
understood that your attention to matters not directly related to the business
of the Bank shall not provide a basis for termination for Cause so long as the
Board or the board of directors of the Bank has approved your engagement in such
activities. Notwithstanding the foregoing, you shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to you a
copy of a resolution duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the board of directors of the Bank at
a meeting called and held for the purpose (after reasonable notice to you and an
opportunity for you, together with your counsel, to be heard before the board of
directors of the Bank), finding that in the good faith opinion of the board of
directors of the Bank you were
August 1, 1997
Page 5
guilty of the conduct set forth above in (i) or (ii) of this paragraph (c) and
specifying the particulars thereof in detail.
(d) Good Reason. Termination by you of your employment for "Good Reason"
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shall mean termination based on:
(i) an adverse change in your status or position(s) as an executive
officer of the Bank, including, without limitation, any adverse change in your
status or position as a result of a diminution in your duties or
responsibilities (other than, if applicable, any such change directly
attributable to the fact that the Company is no longer publicly owned) or the
assignment to you of any duties or responsibilities which are inconsistent with
such status or position(s), or any removal of you from or any failure to
reappoint or reelect you to such position(s) (except in connection with the
termination of your employment for Cause, Disability or Retirement or as a
result of your death or by you other than for Good Reason);
(ii) a reduction by the Bank in your base salary;
(iii) the failure by the Company or the Bank to continue in effect
any Plan (as hereinafter defined) other than as a result of the normal
expiration of any such Plan, or the taking of any action, or the failure to act,
by the Bank which would adversely affect your continued participation in any of
such Plans on at least as favorable a basis to you or which would materially
reduce your benefits in the future under any of such Plans or deprive you of any
material benefit enjoyed by you unless such plan or material benefits were
applied to all other executives;
(iv) the failure by the Bank to provide and credit you with the
number of paid vacation days to which you are then entitled in accordance with
its normal vacation policy;
(v) the requirement by the Bank that you be based at an office that
is greater than 35 miles from where your office is located, except for required
travel on the business of the Bank to an extent substantially consistent with
the business travel obligations which you undertook;
(vi) the failure by the Company and the Bank to obtain from any
Successor (as hereinafter defined) the assent to this Agreement contemplated by
Section 6 hereof;
(vii) any purported termination by the Bank of your employment which
is not effected pursuant to a Notice of Termination satisfying the requirements
of paragraph (e) below (and, if applicable, paragraph (c) above); and for
purposes of this Agreement, no such purported termination shall be effective; or
(viii) any refusal by the Bank to continue to allow you to attend to
matters or engage in business or civic activities not directly related to the
business of the Bank which, as of
August 1, 1997
Page 6
the date of this agreement, you were permitted by the Board or the Board of
Directors of the Bank to attend to or engage in.
For purposes of this Agreement, "Plan" shall mean any compensation plan such as
an incentive, stock option or restricted stock plan or any employee benefit plan
such as a thrift, pension, profit sharing, medical, disability, accident, life
insurance plan or a relocation plan or policy or any other plan, program or
policy intended to benefit employees of the Bank.
(e) Notice of Termination. Any purported termination by the Bank or by you
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shall be communicated by written Notice of Termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon.
(f) Date of Termination. "Date of Termination" shall mean (i) if your
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employment is to be terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that you shall not have returned to the
performance of your duties on a full-time basis during such thirty (30) day
period), (ii) if your employment is to be terminated by the Bank for Cause or by
you pursuant to Sections 4(d)(vi) and 6 hereof or for any other Good Reason, the
date specified in the Notice of Termination, or (iii) if your employment is to
be terminated by the Bank for any reason other than Cause, the date specified in
the Notice of Termination, which in no event shall be a date earlier than ninety
(90) days after the date on which a Notice of Termination is given, unless an
earlier date has been expressly agreed to by you in writing either in advance
of, or after, receiving such Notice of Termination. In the case of termination
by the Bank of your employment for Cause, if you have not previously expressly
agreed in writing to the termination, then within thirty (30) days after receipt
by you of the Notice of Termination with respect thereto, you may notify the
Bank that a dispute exists concerning the termination, in which event the Date
of Termination shall be the date set either by mutual written agreement of the
parties or by the arbitrators in a proceeding as provided in Section 14 hereof.
During the pendency of any such dispute, the Bank will continue to pay you your
full compensation in effect just prior to the time the Notice of Termination is
given and until the dispute is resolved in accordance with Section 14.
5. COMPENSATION UPON A CHANGE IN CONTROL; OTHER AGREEMENTS.
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(a) Subject to Section 8 hereof, if a change in control, as defined in
Section 3 above, shall have occurred, then the Bank shall pay to you, no later
than the fifth business day thereafter, without regard to any contrary
provisions of any Plan (other than any deferral election pursuant to the
Company's Deferred Compensation Plan), an amount in cash equal to 3.0 times the
sum of (I) your annual salary as in effect immediately prior to the change in
control, plus (II) the average of the annual bonus to which you were entitled
for the Bank's three fiscal years ended prior to the change in control, plus
(III) an amount equal to the matching contribution you would have received under
the Bank's 401(k) plan if you had made the maximum contribution under such plan
during the year in which the Date of Termination occurs.
August 1, 1997
Page 7
(b) If, within twenty-four (24) months after a change in control shall have
occurred, your employment by the Bank shall be terminated (i) by the Bank other
than for Cause, Disability or Retirement or (ii) by you for Good Reason, then
the Bank shall maintain in full force and effect, for the continued benefit of
you and your dependents for a period terminating on the earliest of (x) 36
months after the Date of Termination, (y) the commencement date of equivalent
benefits from a new employer or (z) your attainment of age sixty-five (65), all
insured and self-insured employee health and welfare benefit Plans in which you
were entitled to participate immediately prior to the Date of Termination,
provided that your continued participation is possible under the general terms
and provisions of such Plans (and any applicable funding media) and you continue
to pay an amount equal to your regular contribution under such plans for such
participation. If, at the end of three years after the Termination Date, you
have not reached your sixty-fifth birthday and you have not previously received
or are not then receiving equivalent benefits from a new employer, the Bank
shall arrange, at its sole cost and expense, to enable you to convert your and
your dependents' coverage under such Plans to individual policies or programs
upon the same terms as employees of the Bank may apply for such conversions. In
the event that your participation in any such Plan is barred, the Bank shall, at
its sole cost and expense, arrange to have issued for the benefit of you and
your dependents individual policies of insurance providing benefits
substantially similar (on an after-tax basis) to those which you otherwise would
have been entitled to receive under such Plans pursuant to this paragraph (d)
or, if such insurance is not available at a reasonable cost to the Bank, the
Bank shall provide you and your dependents with equivalent benefits (on an
after-tax basis). You shall not be required to pay any premiums or other
charges in an amount greater than that which you would have paid in order to
participate in such Plans.
(c) Except as specifically provided in paragraph (b) above, the amount of
any payment provided for in this Section 5 shall not be reduced, offset or
subject to recovery by the Bank by reason of any compensation earned by you as
the result of employment by another employer after the Date of Termination, or
otherwise.
(d) In the event that you become entitled to the payments provided by
paragraph (a) above (the "Agreement Payments"), if any of the Agreement Payments
will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the
Internal Revenue Code (the "Code") (or any similar tax that may hereafter be
imposed), the Company shall pay to you at the time specified in paragraph (e)
below an additional amount (the "Gross-up Payment") such that the net amount
retained by you, after deduction of any Excise Tax on the Total Payments (as
hereinafter defined) and any federal, state and local income tax and Excise Tax
upon the Gross-up Payment provided for by this paragraph (d) but before
deduction for any federal, state or local income tax on the Agreement Payments,
shall be equal to the sum of (i) the Total Payments and (ii) an amount equal to
the product of any deductions disallowed because of the inclusion of the Gross-
up Payment in your adjusted gross income and the highest applicable marginal
rate of federal income taxation for the calendar year in which the Gross-up
Payment is to be made.
For purposes of determining whether any of the Agreement Payments will
be subject to the Excise Tax and the amount of such Excise Tax, (i) any other
payments or benefits
August 1, 1997
Page 8
received or to be received by you in connection with a change in control of the
Company or the Bank or your termination of employment (whether pursuant to the
terms of this Agreement or any other plan, arrangement or agreement with the
Company, the Bank, any person whose actions result in a change of control or any
person affiliated with the Company or such person) (which, together with the
Agreement Payments, shall constitute the "Total Payments") shall be treated as
"parachute payments" within the meaning of Section 280G(b)(2) of the Code, and
all "excess parachute payments" within the meaning of Section 280G(b)(1) of the
code shall be treated as subject to the Excise Tax, unless the Company's public
accounting firm as of the date immediately prior to the change of control (the
"Accounting Firm") determines that such other payments or benefits (in whole or
in part) do not constitute parachute payments, or such excess parachute payments
(in whole or in part) represent reasonable compensation for services actually
rendered within the meaning of Section 280G(b)(4) of the Code in excess of the
base amount within the meaning of Section 280G(b)(3) of the Code or are
otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments
which shall be treated as subject to the Excise Tax shall be equal to the lesser
of (x) the total amount of the Total Payments or (y) the amount of excess
parachute payments within the meaning of Section 280G(b)(1) of the Code (after
applying clause (i), above), and (z) the value of any non-cash benefits or any
deferred payment or benefit shall be determined by the Accounting Firm in
accordance with the principles of Sections 280G(d)(3) and (4) of the Code. The
Accounting Firm shall provide detailed supporting calculations to the Bank and
you within fifteen (15) business days of the receipt of notice from the Bank or
you that there has been an Agreement Payment, or such earlier time as is
requested by the Bank. In the event that the Accounting firm is serving as
accountant or auditor for the individual, entity or group effecting the change
in control, you may appoint another nationally recognized public accounting firm
to make the determinations required hereunder (which accounting firm shall then
be referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Bank and the Bank shall enter into
any agreement requested by the Accounting Firm in connection with the
performance of its services hereunder.
For purposes of determining the amount of the Gross-up Payment, you
shall be deemed to (1) pay federal income taxes at the highest marginal rate of
federal income taxation for the calendar year in which the Gross-up Payment is
to be made, (2) pay the applicable state and local income taxes at the highest
marginal rate of taxation for the calendar year in which the Gross-up Payment is
to be made, net of the maximum reduction in federal income taxes which cold be
obtained from deduction of such state and local taxes (determined without regard
to limitations on deductions based upon the amount of your adjusted gross
income), and (3) have otherwise allowable deductions for federal income tax
purposes at least equal to those disallowed because of the inclusion of the
Gross-up Payment in you adjusted gross income. In the event that the Excise Tax
is subsequently determined to be less than the amount taken into account
hereunder at the time the Gross-up Payment is made, you shall repay to the Bank
at the time that the amount of such reduction in Excise Tax is finally
determined the portion of the Gross-up Payment attributable to such reduction
(plus the portion of the Gross-up Payment attributable to the Excise Tax and
federal and state and local income tax imposed on the portion of the Gross-up
Payment being repaid by you if such repayment results in a reduction in Excise
Tax and/or a
August 1, 1997
Page 9
federal and state and local income tax deduction), plus interest on the amount
of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In
the event that the Excise Tax is determined to exceed the amount taken into
account hereunder at the time the Gross-up Payment is made (including by reason
of any payment the existence or amount of which cannot be determined at the time
of the Gross-up Payment), the Bank shall make an additional gross-up payment in
respect of such excess (plus any interest payable with respect to such excess at
the rate provided in Section 1274(b)(2)(B) of the Code) at the time that the
amount of such excess is finally determined.
(e) The Gross-up Payment or portion thereof provided for in paragraph (d)
above shall be paid not later than the thirtieth day following payment of any
amounts under paragraph (a) above; provided, however, that if the amount of such
Gross-up Payment or portion thereof cannot be finally determined on or before
such day, the Bank shall pay to you on such day an estimate, as determined in
good faith by the Bank, of the minimum amount of such payments and shall pay the
remainder of such payments (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be
determined, but in no event later than the forty-fifth day after payment of any
amounts under paragraph (a) above. In the event that the amount of the
estimated payments exceeds the amount subsequently determined to have been due,
such excess shall constitute a loan by the Bank to you, payable on the fifth day
after demand by the Bank (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code).
6. SUCCESSORS; BINDING AGREEMENT.
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(a) The Company and the Bank will seek, by written request at least five
business days prior to the time a Person becomes a Successor (as hereinafter
defined), to have such Person by agreement in form and substance satisfactory to
you, assent to the fulfillment of the Bank's obligations under this Agreement.
Failure of such Person to furnish such assent by the later of (i) three business
days prior to the time such Person becomes Successor or (ii) two business days
after such Person receives a written request to so assent shall constitute Good
Reason for termination by you of your employment if a change in control occurs
or has occurred. For purposes of this Agreement, "Successor" shall mean any
Person that succeeds to, or has the practical ability to control (either
immediately or with the passage of time), the Bank's business directly, by
merger or consolidation, or indirectly, by purchase of the Voting Securities of
the Company or the Bank or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable by your
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If you should die while any amount would
still be payable to you hereunder if you had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to your devisee, legatee or other designee or, if there
be no such designee, to your estate.
August 1, 1997
Page 10
(c) For purposes of this Agreement, the "Bank" and the "Company" shall
include any corporation or other entity which is the surviving or continuing
entity in respect of any merger, consolidation or form of business combination
in which the Bank or the Company, respectively, ceases to exist.
7. FEES, EXPENSES AND INTEREST; MITIGATION.
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(a) The Bank shall reimburse you, on a current basis, for all reasonable
legal fees and related expenses incurred by you in connection with the Agreement
following a change in control of the Bank, including, without limitation, (i)
all such fees and expenses, if any, incurred in contesting or disputing any
termination of your employment or (ii) your seeking to obtain or enforce any
right or benefit provided by this Agreement, in each case, regardless of whether
or not your claim is upheld by a court of competent jurisdiction; provided,
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however, you shall be required to repay any such amounts to the Bank to the
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extent that a court issues a final and non-appealable order setting forth the
determination that the position taken by you was frivolous or advanced by you in
bad faith. In addition to the fees and expenses provided herein, you shall also
be paid interest on any disputed amount ultimately paid to you at the prime rate
announced by the Bank from time to time from the date payment should have been
made until paid in full.
(b) You shall not be required to mitigate the amount of any payment the
Bank becomes obligated to make to you in connection with this Agreement, by
seeking other employment or otherwise.
8. TAXES. All payments to be made to you under this Agreement will be subject
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to required withholding of federal, state and local income and employment taxes.
9. OTHER LIMITATIONS ON PAYMENTS. Any payments made to you pursuant to this
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Agreement, or otherwise, are subject to and conditioned upon their compliance
with 12 U.S.C. (S) 1828(k) and any regulations promulgated thereunder.
10. SURVIVAL. The respective obligations of, and benefits afforded to, the
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Bank and you as provided in Sections 5, 6(b), 7, 8, 9, 14 and 15 of this
Agreement shall survive termination of this Agreement.
11. NOTICE. For the purposes of this Agreement, notices and all other
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communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid and addressed, in the
case of the Bank, to the address set forth on the first page of this Agreement
or, in the case of the undersigned employee, to the address set forth below his
signature, provided that all notices to the Bank shall be directed to the
attention of the Company and President of the Bank, with a copy to the Secretary
of the Bank, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
August 1, 1997
Page 11
12. MISCELLANEOUS. No provision of this Agreement may be modified, waived or
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discharged unless such modification, waiver or discharge is agreed to in a
writing signed by you and the President and General Counsel of the Bank. No
waiver by either party hereto at any time of any breach by the other party
hereto of, or of compliance with, any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time. No agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which
are not expressly set forth in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of California applied without regard to conflict of laws principles.
13. VALIDITY. The invalidity or unenforceability of any provision of this
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Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
14. ARBITRATION. Any dispute or controversy arising under or in connection
-----------
with this Agreement shall be settled exclusively by arbitration in the County of
Los Angeles, State of California by three arbitrators in accordance with the
rules of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrators' award in any court having jurisdiction; provided,
--------
however, that you shall be entitled to seek specific performance of your right
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to be paid until the Date of Termination during the pendency of any dispute or
controversy arising under or in connection with this Agreement. The Bank shall
bear all costs and expenses arising in connection with any arbitration
proceeding pursuant to this Section 14.
15. EMPLOYEE'S COMMITMENT. You agree that subsequent to your period of
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employment with the Bank, you will not at any time communicate or disclose to
any unauthorized person, without the written consent of the Bank, any
proprietary processes of the Company and the Bank or any other subsidiary of the
Company or other confidential information concerning their business, affairs,
products, suppliers or customers which, if disclosed, would have a material
adverse effect upon the business or operations of the Company, the Bank and the
other subsidiaries, taken as a whole; it being understood, however, that the
obligations of this Section 15 shall not apply to the extent that the aforesaid
matters (a) are disclosed in circumstances where you are legally required to do
so or (b) become generally known to and available for use by the public
otherwise than by your wrongful act or omission.
16. RELATED AGREEMENTS. To the extent that any provision of any other
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agreement between the Company, the Bank or any of the other subsidiaries of the
Company and you shall limit, qualify or be inconsistent with any provision of
this Agreement, then for purposes of this Agreement, while the same shall remain
in force, the provision of this Agreement shall control and such provision of
such other agreement shall be deemed to have been superseded, and to be of no
force or effect, as if such other agreement had been formally amended to the
extent necessary to accomplish such purpose.
August 1, 1997
Page 12
17. COUNTERPARTS. This Agreement may be executed in several counterparts, each
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of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
If this letter correctly sets forth our agreement on the subject matter hereof,
kindly sign and return to the Bank the enclosed copy of this letter which will
then constitute our agreement on this subject.
Sincerely,
FIDELITY FEDERAL BANK,
A FEDERAL SAVINGS BANK
By: /s/ James F. Stutz
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Name: James F. Stutz
Title: President and Chief Operating Officer
Agreed to this 13th day
of August, 1997.
/s/ Richard M. Greenwood
- --------------------------------------------
Richard M. Greenwood
The payment of all obligations and liabilities of Fidelity Federal Bank, A
Federal Savings Bank under this Agreement, is specifically guaranteed by Bank
Plus Corporation.
BANK PLUS CORPORATION
By: /s/ William L. Sanders
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Name: William L. Sanders
Title: EVP, Chief Financial Officer