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EXHIBIT 10.2
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF THE PALM BEACHES
RECOGNITION AND RETENTION PLAN
FOR OUTSIDE DIRECTORS
ARTICLE I
ESTABLISHMENT OF THE PLAN
1.01 First Federal Savings and Loan Association of the Palm Beaches
hereby establishes the Recognition and Retention Plan (the "Plan") and related
Trust (the "Trust") upon the terms and conditions hereinafter stated in this
Recognition and Retention Plan.
ARTICLE II
PURPOSE OF THE PLAN
2.01 The purpose of the Plan is to recognize and retain Outside
Directors of experience and ability by providing such persons with a proprietary
interest in the Company as compensation for their contributions to the
Association and its Affiliates and as an incentive to make such contributions
and to promote the Association's growth and profitability in the future.
ARTICLE III
DEFINITIONS
The following words and phrases when used in this Plan with an initial
capital letter, unless the context clearly indicates otherwise, shall have the
meanings set forth below. Wherever appropriate, the masculine pronoun shall
include the feminine pronoun and the singular shall include the plural.
3.01 "Affiliate" means the Company and those subsidiaries of the
Association or Company which, with the consent of the Board, agree to
participate in this Plan.
3.02 "Association" means First Federal Savings and Loan Association of
The Palm Beaches.
3.03 "Beneficiary" means the person or persons designated by a
Recipient to receive any benefits payable under the Plan in the event of such
Recipient's death. Such person or persons shall be designated in writing on
forms provided for this purpose by the Committee and may be changed from time to
time by similar written notice to the Committee. In the absence of a written
designation, the Beneficiary shall be the Recipient's surviving spouse, if any
or if none, his estate.
3.04 "Board" means the Board of Directors of the Association
3.05 "Committee" means the Committee of the Board administering this
Plan, which shall be comprised of those members of the Executive Compensation
Committee of the Board of the Association who are "disinterested directors" as
that term is so defined under Rule l6b-3
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under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
promulgated by the Securities and Exchange Commission.
3.06 "Common Stock" means shares of the common stock, $.01 par value
per share, of the Company.
3.07 "Company" shall mean First Palm Beach Bancorp, Inc., the parent
holding company of the Association.
3.08 "Conversion" shall mean the conversion of the Association from the
mutual to stock form of organization and the acquisition of the Association by
the Company.
3.09 "Disability" means the permanent and total inability by reason of
mental or physical infirmity, or both, of an employee to perform the work
customarily assigned to him. Additionally, a medical doctor selected or approved
by the Board of Directors must advise the Committee that it is either not
possible to determine when such Disability will terminate or that it appears
probable that such Disability will be permanent during the remainder of said
participant's lifetime.
3.10 "Employee" means any person who is currently employed on a full
time basis by the Association or an Affiliate, including officers, but such term
shall not include Outside Directors.
3.11 "Outside Director" means a member of the Board of Directors of the
Association or the Company, who is not also an Employee including Subsequent
Outside Directors, Subsequent Chairmen and Vice Chairmen.
3.12 "Plan Shares" means shares of Common Stock held in the Trust and
issued or issuable to a Recipient pursuant to the Plan.
3.13 "Plan Share Award" means a right granted under this Plan to earn
Plan Shares.
3.14 "Plan Share Reserve" means the shares of Common Stock held by the
Trustee pursuant to Sections 5.03 and 5.04.
3.15 "Recipient" means an Outside Director who receives a Plan Share
Award under the Plan.
3.16 "Retirement" means retirement from employment or service which
constitutes normal retirement or early retirement under the deferred benefit
retirement plan maintained for the Association or by reaching age 65.
3.17 "Trust" means the trust created by the trust agreement between the
Trustee and the Association established to hold the Plan assets.
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3.18 "Trustee" means that person(s) or entity approved by the Board to
hold legal title to the Plan assets for the purposes set forth herein.
ARTICLE IV
ADMINISTRATION OF THE PLAN
4.01 Role of the Committee. The Plan shall be administered and
interpreted by the Committee, which shall have all of the powers allocated to it
in this and other Sections of the Plan. The interpretation and construction by
the Committee of any provisions of the Plan hereunder shall be final and
binding. The Committee shall act by vote or written consent of a majority of its
members. Subject to the express provisions and limitations of the Plan, the
Committee may adopt such rules, regulations and procedures as it deems
appropriate for the conduct of its affairs. The Committee shall report its
actions and decisions with respect to the Plan to the Board at appropriate
times, but in no event less than one time per calendar year. The Committee shall
recommend to the Board one or more persons or entity to act as Trustee in
accordance with the provision of this Plan and the terms of any trust agreement.
4.02 Role of the Board. The members of the Committee shall be appointed
or approved by, and will serve at the pleasure of, the Board. The Board may in
its discretion from time to time remove members from, or add members to, the
Committee, and may remove, replace or add any Trustee. The Board shall have all
of the powers allocated to it in this and other Sections of the Plan.
4.03 Limitation on Liability. No member of the Board or the Committee
shall be liable for any determination made in good faith with respect to the
Plan or any Plan Shares or Plan Share Awards granted under it. If a member of
the Board or the Committee is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of anything done or not
done by him in such capacity under or with respect to the Plan, the Association
shall indemnify such member against expense (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in the best interests of the
Association and its Affiliates and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
ARTICLE V
CONTRIBUTIONS; PLAN SHARE RESERVE
5.01 Amount and Timing of Contributions. The Association shall
contribute to the Trust an amount sufficient to purchase up to 74,200 shares of
Common Stock. The Trustee may hold and commingle contributions to the Plan and
earnings thereon with the assets of any other Recognition and Retention Plan
maintained by the Association. No contributions by Outside Directors shall be
permitted.
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5.02 Initial Investment. Any amounts held by the Trust prior to the
conversion of the Association from a mutual to a stock savings and loan
association, or until such amounts are invested in accordance with Section 5.03,
shall be invested by the Trustee in such interest-bearing account or accounts at
the Association as the Trustee shall determine to be appropriate.
5.03 Investment of Trust Assets Upon the Conversion; Creation of Plan
Share Reserve. Upon the conversion of the Association to a stock savings and
loan association, the Trustee shall invest all of the Trust's assets exclusively
in Common Stock except as otherwise provided below; provided, however, that the
Trust shall not invest in more than 74,200 shares of Common Stock, which shall
constitute the "Plan S are Reserve." In the event that all or a portion of the
designated number of the shares of Common Stock are not available for purchase
by the Trust in the Conversion, the Trustee in accordance with applicable rules
and regulations shall purchase shares of Common Stock in the open market or, in
the alternative, shall purchase authorized but unissued shares of the Common
Stock from the Company sufficient to fund the Plan Share Reserve. Any earnings
received with respect to Common Stock held in the Reserve shall be held in an
interest-bearing account. Any earnings received with respect to Common Stock
subject to a Plan Share Award shall be held in an interest-bearing account on
behalf of the individual Recipient.
5.04 Effect of Allocations. Returns and Forfeitures Upon Plan Share
Reserves. Upon the allocation of Plan Share Awards under Section 6.02, or the
decision of the Committee to return Plan Shares to the Association, the Plan
Share Reserve shall be reduced by the number of Shares subject to the Awards so
allocated or returned. Any Shares subject to an Award which may not be earned
because of a forfeiture by the Recipient pursuant to Section 7.01 shall be
returned (added) to the Plan Share Reserve.
ARTICLE VI
ELIGIBILITY; ALLOCATIONS
6.01 Eligibility. Outside Directors of the Association and its
Affiliates are eligible to receive Plan Share Awards.
6.02 Allocations.
(a) Each Outside Director serving in such capacity as of the date of
the Association's Conversion shall be granted a Plan Share Award of 10,600
Plan Shares (the "Fixed Award").
(b) Each individual who is first elected as an Outside Director
subsequent to the date of the Association's Conversion ("Subsequent Outside
Directors") shall be granted a Plan Share Award of 10,600 Plan Shares subject to
(a) above (the "Fixed Award"), as of the effective date of such election.
Notwithstanding the preceding, no Plan Share Award shall be made under this Plan
to any Subsequent Outside Director who at any previous time was an employee of
either the Company or the Association and in such capacity was eligible for a
Plan Share Award under the Association's Recognition and Retention Plan for
officers and employees.
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(c) Each Director Emeritus serving in such capacity as of the date o t
e Association's conversion shall be granted a Plan Share Award of 5,300 Plan
Shares t e "Fixed Award"I. If sufficient Plan Shares are not available under the
Plan for a Fixed Award to be made to a Subsequent Outside Director and
thereafter Plan Shares become available through forfeiture or by reason of the
purchase of additional shares of Common Stock by the Plan Trustee, such
Subsequent Outside Director(s) shall then receive a Plan Share Award, sharing
pro rata among each such Subsequent Outside Directors the number of Plan Shares
then available under the Plan. The date of Award shall be the date such Plan
Shares become available.
6.03 Form of Allocation. As promptly as practicable after a
determination is made pursuant to Section 6.02 that a Plan Share Award has been
granted, the Committee shall notify the Recipient in writing of the grant of the
Plan Share Award. Such notice shall include the number of Plan Shares covered by
the Award, and the terms upon which the Plan Shares subject to the Award may be
earned. The date on which the Committee so notifies the Recipient shall be
considered the date of grant of the Plan Share Award. The Committee shall
maintain records as to all grants of Plan Share Awards under the Plan.
ARTICLE VII
EARNING AND DISTRIBUTION OF PLAN SHARES; VOTING RIGHTS
7.01 Earning Plan Shares; Forfeitures.
(a) General Rules. Plan Shares subject to an Award shall be earned by a
Recipient at the rate of thirty-three and one-third percent (33 1/3%) of the
aggregate number of shares covered by the Award at the end of each full twelve
months of consecutive service with the Association or an Affiliate after the
date of grant of the Award. If an Outside Director who has not reached
Retirement is not renominated, reelected or otherwise discontinues service on
the Board prior to the third anniversary of the date of grant of an Award for
any reason (except as specifically provided in Subsections (b) and (c) below),
the Recipient shall forfeit the right to earn any Shares subject to the Award
which have not theretofore been earned.
In determining the number of Plan Shares which are earned, fractional
shares shall be rounded down to the nearest whole number, provided that such
fractional shares shall be aggregated and earned, on the third anniversary of
the date of grant.
(b) Exception for Terminations Due to Death. Disability and Retirement.
Notwithstanding the general rule contained in Section 7.01(a) above, Plan Shares
subject to a Plan Share Award held by a Recipient whose service as an Outside
Director with the Association or an Affiliate terminates due to death,
Disability or Retirement, or any part thereof which have not theretofore been
earned, shall be deemed earned as of the Recipients' last day of service as an
Outside Director with the Association or an Affiliate. Provided, however, that
if the Recipient's service terminates due to Retirement within one year of the
date of the Conversion, the shares earned by the Recipient may not be disposed
of by the Recipient during the one-year period following the Conversion.
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(c) Exception for Terminations After a Change in Control.
Notwithstanding the general rule contained in Section 7.01(a) above, all Plan
Shares subject to a Plan Share Award held by a Recipient whose service on the
Board of Directors of the Association or an Affiliate terminates (or in the case
of any director, such director is not renominated or reelected to serve on the
Board of Directors of the Association or the Company) following a Change in
Control of the Association or Company, shall be deemed earned as of the
Recipient's last day of service as an Outside Director with the Association or
an Affiliate. A "Change in Control of the Association or the Company" is defined
as a Change in Control of a nature that: (i) would be required to be reported in
response to Item 1(a) of the current report on Form 8-K, as in effect on the
date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act"); or (ii) results in a Change in Control of the
Association or the Company within the meaning of the Home Owners' Loan Act of
1933, as amended, and the Rules and Regulations promulgated by the Office of
Thrift Supervision ("OTS") (or its predecessor agency), as in effect on the date
hereof (provided, that in applying the definition of change in control as set
forth under the rules and regulations of the OTS, the Board shall substitute its
judgment for that of the OTS); or (iii) without limitation such a Change in
Control shall be deemed to have occurred at such time as (a) any "person" (as
the term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Association or the Company
representing 20% or more of the combined voting power of the Association's or
the Company's outstanding securities except for any securities of the
Association purchased by the Company in connection with the conversion of the
Association to the stock form and any securities purchased by any tax qualified
employee benefit plans of the Association; or (b) individuals who constitute the
Board on the date hereof (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided that any person becoming a
director subsequent to the date hereof whose election was approved by a vote of
at least three-quarters of the directors comprising the Incumbent Board, or
whose nomination for election by the Company's stockholders was approved by the
same Nominating Committee serving under an Incumbent Board, shall be, for
purposes of this clause (b), considered as though he were a member of the
Incumbent Board; or (c) a plan of reorganization, merger, consolidation, sale of
all or substantially all the assets of the Association or the Company or similar
transaction has been approved by the Incumbent Board and the shareholders, or
otherwise occurs upon which the Board so notifies the OTS of such occurrence,
and in which the Association or Company is not the resulting entity.
(d) Revocation for Misconduct. Notwithstanding anything hereinafter to
the contrary, the Board may by resolution immediately revoke, rescind and
terminate any Plan Share Award, or portion thereof, previously awarded under
this Plan, to the extent Plan Shares have not been delivered thereunder to the
Recipient, whether yet earned, in the case of an Outside Director who is
discharged from the Association or an Affiliate for cause (as hereinafter
defined), or who is discovered after termination of employment to have engaged
in conduct that would have justified termination for cause. "Cause" shall mean
termination because of personal dishonesty, willful misconduct, any breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, or the willful violation of any law, rule or regulation
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(other than traffic violations or similar offenses) which result in a material
loss to the Association or final cease and desist order.
7.02 Accrual of Dividends. Whenever Plan Shares are paid to a Recipient
or Beneficiary under Section 7.03, such Recipient or Beneficiary shall also be
entitled to receive, with respect to each Plan Share paid, an amount equal to
any cash dividends and a number of shares of Common Stock equal to any stock
dividends, declared and paid with respect to a share of Common Stock between the
date the relevant Plan Share Award was granted and the date the Plan Shares are
being distributed. There shall also be distributed an appropriate amount of net
earnings, if any, of the Trust with respect to any cash dividends so paid out.
7.03 Distribution of Plan Shares.
(a) Timing of Distributions. General Rule. Except as provided in
Subsection (b) below, Plan Shares shall be distributed to the Recipient or his
Beneficiary, as the case may be, as soon as practicable after they have been
earned.
(b) Form of Distribution. All Plan Shares, together with any shares
representing stock dividends, shall be distributed in the form of Common Stock.
One share of Common Stock shall be given for each Plan Share earned and payable.
Payments representing accumulated cash dividends (and earning thereon) shall be
made in cash.
7.04 Voting of Plan Shares. After a Plan Share Award has been granted,
the Recipient shall be entitled to direct the Trustee as to the voting of the
Plan Shares which are covered by the Plan Share Award and which have not yet
been earned and distributed to him pursuant to Section 7.03, subject to rules
and procedures adopted by the Committee for this purpose. All shares of Common
Stock held by the Trust as to which Recipients are not entitled to direct, or
have not directed, the voting, shall be voted by the Trustee in the same
proportion as Plan Shares which have been awarded and voted.
ARTICLE VIII
MISCELLANEOUS
8.01 Adjustments for Capital Changes. In the event of any change in the
outstanding shares of Common Stock of the Company by reason of any stock
dividend or split, recapitalization, merger, consolidation, spin-off,
reorganization, combination or exchange of shares, or other similar corporate
change, or other increase or decrease in such shares effected without receipt or
payment of consideration by the Company, the Committee shall adjust the
aggregate number of Plan Shares available for issuance pursuant to the Plan and
shall adjust the number of shares to which any Plan Share Award relates to
prevent dilution or enlargement of the rights granted to the Recipient under the
Plan.
8.02 Amendment and Termination of Plan. The Board may, by resolution,
at any time amend or terminate the Plan and Trust; provided that Section 6.02
and 7.01 shall not be amended
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more than once every six months other than to comport with the Internal Revenue
Code of 1986, as amended, or the Employee Retirement Income Security Act of
1974, as amended, or the rules thereunder. Except as provided in Section 8.08
hereof, rights and obligations under any Plan Share Award granted before an
amendment shall not be altered or impaired by such amendment without the written
consent of the Recipient. If the Plan becomes qualified under Rule 16(b)-3 of
the rules and regulations promulgated under the Exchange Act and an amendment
would require shareholder approval under such rule 16(b)-3 to retain the Plan's
qualification, then such amendment shall be presented to shareholders for
ratification, provided, however, that the failure to obtain shareholder
ratification shall not affect the validity of this Plan as so amended and the
Plan Share Awards granted thereunder. The power to amend or terminate shall
include the power to direct the Trustee to return to the Association all or any
part of the assets of the Trust, including shares of Common Stock held in the
Plan Share Reserve, as well as shares of Common Stock and other assets subject
to Plan Share Awards but not yet earned by the Recipients to whom they are
allocated; provided that any shares of Common Stock held by the Trust as part of
its assets must be disposed of by the Trustee prior to returning the proceeds
representing such assets to the Company. However, the termination of the Trust
shall not affect a Recipient's right to earn Plan Share Awards and to the
distribution of Common Stock relating thereto, including earnings thereon, in
accordance with the terms of this Plan and the grant by the Committee or Board.
8.03 Nontransferable. Plan Share Awards and rights to Plan Shares shall
not be transferable by a Recipient, and during the lifetime of the Recipient,
Plan Shares may only be earned by and paid to the Recipient who was notified in
writing of the Award by the Committee pursuant to Section 6.03.
8.04 Service Rights. Neither the Plan nor any grant of a Plan Share
Award or Plan Shares hereunder nor any action taken by the Trustee, the
Committee or the Board in connection with the Plan shall create any right on the
part of any Outside Director to continue in the service of the Association or an
Affiliate thereof, or the Company.
8.05 Voting and Dividend Rights. No Recipient shall have any voting or
dividend rights or other rights of a shareholder in respect of any Plan Shares
covered by a Plan Share Award, except as expressly provided in Sections 7.02 and
7.04 above, prior to the time said Plan Shares are actually distributed to him.
8.06 Governing Law. The Plan shall be governed by Florida law, except
to the extent not pre-empted by the laws of the United States.
8.07 Effective Date. This Plan is effective as of the effective date of
the conversion of the Association from the mutual to capital stock form of
organization. Following Conversion, the Plan shall be presented to shareholders
of the Company for ratification for purposes of (i) obtaining favorable
treatment under Section 16(b) of the Securities Exchange Act of 1934; and, if
applicable, (ii) maintaining (if listed) listing on the NASDAQ National Market;
provided,
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however, that the failure to obtain shareholder ratification will not affect the
validity of the Plan and the Plan Share Awards thereunder.
8.08 Compliance with Section 16. If this Plan is qualified under Rule
ss.240.16b-3 of the Exchange Act Rules, transactions under this Plan are
intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the Exchange Act. To the extent any provisions of the Plan fail
to so comply, it shall be deemed null and void, to the extent permitted by law.
8.09 Term of Plan. This Plan shall remain in effect until the earlier
of (1) 21 years from the Effective Date, (2) termination by the Board of
Directors of the Company, or (3) the distribution of all assets of the Trust.
Termination of the Plan shall not affect any Plan Share Awards previously
granted, and such Awards shall remain valid and in effect until they have been
earned and paid, or by their terms expire or are forfeited.
IN WITNESS WHEREOF, the Association has established this Plan effective
to be executed by its duly authorized executive officer and the corporate seal
to be affixed and duly attested, effective as of the_______ day of
______________,1993.
By:
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Attest:
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