EXHIBIT 10.8
FIRST BANK OF FLORIDA
EMPLOYEE STOCK OWNERSHIP PLAN
(EFFECTIVE JANUARY 1, 1993;
AMENDED AND RESTATED EFFECTIVE APRIL 1, 1995)
AMENDMENT NO. 3
1. Section 16 - Effective as of November 18, 1997, a new Section 16 of the Plan
shall be added which shall read in its entirety as follows:
Section 16. Change of Control
16.1 Definition of Change of Control; Pending Change of Control
(a) A Change of Control shall be deemed to have occurred upon the happening
of any of the following events:
(i) any event upon which any "person" (as such term is used in
sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than (A) a trustee or other fiduciary holding securities
under an employee benefit plan maintained for the benefit of employees of
First Palm Beach Bancorp, Inc.; (B) a corporation owned, directly or
indirectly, by the stockholders of First Palm Beach Bancorp, Inc. in
substantially the same proportions as their ownership of stock of First
Palm Beach Bancorp, Inc.; or (C) any group constituting a person in which
employees of First Palm Beach Bancorp, Inc. are substantial members,
becomes the "beneficial owner" (as defined in Rule 13d-3 promulgated under
the Exchange Act), directly or indirectly, of securities issued by First
Palm Beach Bancorp, Inc. representing 20% or more of the combined voting
power of all of First Palm Beach Bancorp, Inc.'s then outstanding
securities; or
(ii) any event upon which the individuals who on the Effective Date
were members of the Board of Directors of First Palm Beach Bancorp, Inc.,
together with individuals whose election by such Board or nomination for
election by First Palm Beach Bancorp, Inc.'s stockholders was approved by
the affirmative vote of at least two-thirds of the members of such Board
then in office who were either members of such Board on the Effective Date
or whose nomination or election was previously so approved, cease for any
reason to constitute a majority of the members of such Board, but
excluding, for this purpose, any such individual whose initial assumption
of office is in connection with an actual or threatened election contest
relating to the election of directors of First Palm Beach Bancorp, Inc. (as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended; or
(iii) the consummation of either:
(A) a merger or consolidation of First Palm Beach Bancorp, Inc.
with any other corporation, other than a merger or consolidation
following which both of the following conditions are satisfied:
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(I) either (1) the members of the Board of Directors of
First Palm Beach Bancorp, Inc. immediately prior to such merger
or consolidation constitute at least a majority of the members of
the governing body of the institution resulting from such merger
or consolidation; or (2) the shareholders of First Palm Beach
Bancorp, Inc. own securities of the institution resulting from
such merger or consolidation representing 60% or more of the
combined voting power of all such securities then outstanding in
substantially the same proportions as their ownership of voting
securities of First Palm Beach Bancorp, Inc. before such merger
or consolidation; and
(II) the entity which results from such merger or
consolidation expressly agrees in writing to assume and perform
First Palm Beach Bancorp, Inc.'s obligations under the Plan; or
(B) a complete liquidation of First Palm Beach Bancorp, Inc. or
an agreement for the sale or disposition by First Palm Beach Bancorp,
Inc. of all or substantially all of its assets; or
(iv) any event that would be described in section 16.1 if "First Bank
of Florida" were substituted for "First Palm Beach Bancorp, Inc." therein;
In no event, however, shall the transaction by which First Bank of Florida
converted from a mutual institution to a stock institution, or any transaction
by which a company wholly owned by First Bank of Florida becomes the parent
company of First Bank of Florida, be deemed a Change of Control.
(b) A Pending Change of Control shall be deemed to have occurred upon the
happening of any of the following events:
(i) approval by the stockholders of First Palm Beach Bancorp, Inc. of
a transaction, or a plan for the consummation of a transaction, which, if
consummated, would result in a Change of Control;
(ii) approval by the Board of Directors of First Palm Beach Bancorp,
Inc. of a transaction, or a plan for the consummation of a transaction,
which, if consummated, would result in a Change of Control;
(iii) the commencement of a tender offer (within the meaning of
Section 14(d)(i) of the Securities Exchange Act of 1934, as amended) for
securities issued by First Palm Beach Bancorp, Inc., which, if completed,
would result in a Change of Control;
(iv) the furnishing or distribution of a proxy statement or other
document, whether or not in opposition to management, soliciting proxies,
consents or authorizations (within the meaning of section 14 of the
Securities Exchange Act of 1934, as amended) in respect of securities
issued by First Palm Beach Bancorp, Inc. in favor of any election,
transaction or other action which, if effected, would result in a Change of
Control; or
(v) any event which would be described in Sections 16.1(b)(i), (ii),
(iii) or (iv) if "First Bank of Florida" were substituted for "First Palm
Beach Bancorp, Inc." therein.
16.2 Vesting on Change of Control.
Notwithstanding any other provision of the Plan, upon the effective date of
a Change of Control, the Account of each person who would then, upon termination
of the Plan, be entitled to a benefit, shall be fully vested and nonforfeitable.
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16.3 Repayment of Stock Obligations.
(a) Notwithstanding any other provision of the Plan, upon the occurrence of
a Change of Control, the Committee shall direct the Trustee to sell a sufficient
number of shares of Stock to repay any outstanding Stock Obligations in full.
The proceeds of such sale shall be used to repay such Stock Obligations. After
repayment of the Stock Obligations, all remaining shares of Stock which had been
unallocated (or the proceeds from the sale thereof, if applicable) shall be
allocated among the accounts of all Participants who were employed by an
Employer on the effective date of such Change of Control. Such allocation of
Shares or proceeds shall be credited as of the date on which the Change of
Control occurs to the Accounts of each Participant who has not had a termination
of participation under section 2.3 as of such date, in proportion to the balance
credited to their Accounts immediately prior to such allocation. If any amount
cannot be allocated to such Participant's in the year of such Change of Control
as a result of the limitations of section 415 of the Code, the amounts will be
allocated in subsequent years to those persons who shared in the allocation and
who continue to be Participants in the Plan until all such amounts are allocated
to such Participants.
(b) In the event that the application of section 415 of the Code prevents
the allocation of all of the Stock or other assets released from the Loan
Repayment Account as provided in Section 16.3(a) as of the effective date of the
Change of Control, each Participant who shares in the allocation shall be
entitled to receive a supplemental benefit payment directly from the Company.
The supplemental benefit payment to each such Participant shall be an amount
equal to the excess of:
(i) the total amount of Stock or other property that would be
allocated to such Participant's Accounts under Section 16.3(a) if Section
415 of the Code did not apply; over
(ii) the total of Stock or other property actually allocated to such
Participant's Accounts under Section 16.3(a).
Such payment (without offset for any allocations which may occur under this Plan
subsequent to the Change of Control) shall be made as soon as practicable, but
in any event within ten (10) business days, after the effective date of the
Change of Control. This Section 16.3(b) shall be treated as a separate,
non-qualified "excess benefit plan" within the meaning of section 3(34) of ERISA
and shall be interpreted, administered and enforced in a manner consistent with
this intention. To the extent that any Participant is entitled to the same or a
similar payment under any other non-qualified plan, program or arrangement of
the Employer, any payment under this Section 16.3(b) shall be coordinated with
the payments under such other non-qualified programs, plan or arrangements in
such manner as shall be determined by the Committee to be necessary to prevent
the duplication of benefits.
16.4 Plan Termination After Change of Control.
Notwithstanding any other provision of the Plan, after repayment of the
loan and allocation of Stock or proceeds as provided in Section 16.2, the Plan
shall be terminated and all amounts shall be distributed as soon as practicable.
16.5 Amendment of Section 16.
Notwithstanding any other provision of the Plan, Section 16 of the Plan may
not be amended after the earliest date after November 18, 1997 on which a Change
of Control or Pending Change of Control occurs unless required by the Internal
Revenue Service as a condition to the continued treatment of the Plan as a
tax-qualified plan under section 401(a) of the Code.
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