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EXHIBIT 10.15
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION
OF THE PALM BEACHES
CHANGE IN CONTROL AGREEMENT
This AGREEMENT is made effective as of September 25, 1996, by and
between First Federal Savings and Loan Association of the Palm Beaches (the
"Association"), a federally chartered savings institution, with its principal
administrative office at 215 S. Olive Avenue, West Palm Beach, Florida and
Linda O. Terrell ("Executive"). The Association is the wholly owned subsidiary
of First Palm Beach Bancorp, Inc. (the "Holding Company"), a corporation
organized under the laws of the State of Delaware.
WHEREAS, the Association recognizes the substantial contribution
Executive has made to the Association and wishes to protect the Executive's
position therewith for the period provided in this Agreement; and
WHEREAS, Executive has been elected to, and has agreed to serve in the
position of position for the Association, a position of substantial
responsibility;
NOW THEREFORE, in consideration of the contribution and
responsibilities of Executive, and upon the other terms and conditions
hereinafter provided, the parties hereto agree as follows:
1. TERM OF AGREEMENT.
The term of this Agreement shall be deemed to have commenced as of the
date first above written and shall continue for a period of thirty-six (36) full
calendar months thereafter. Commencing on the first anniversary date thereafter,
the Board of Directors of the Association ("Board") may extend this Agreement
for an additional year. The Board will review the Agreement and the Executive's
performance annually for purposes of determining whether to extend this
Agreement, and the results thereof shall be included in the minutes of the
Board's meeting.
2. PAYMENTS TO EXECUTIVE UPON CHANGE IN CONTROL.
(a) Upon the occurrence of a Change in Control of the Association or the
Holding Company (as herein defined) followed at any time during the term of this
Agreement by the voluntary or involuntary termination of Executive's employment,
other than for Cause, as defined in Section 2 (c) hereof, the provisions of
Section 3 shall apply. Upon the occurrence of a Change In Control, Executive
shall have the right to elect to voluntarily terminate his employment at any
time during the term of this Agreement following any demotion, loss of title,
office or significant authority, reduction in his annual compensation, or
relocation of his principal place of employment by more than 30 miles from its
location immediately prior to the Change in Control.
(b) For purposes of this Plan, a "Change in Control" of the Association or
Company shall mean an event 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
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Association or the Company within the meaning of the Home Owners' Loan Act of
1933 and the Rules and Regulations promulgated by the Office of Thrift
Supervision (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).
(c) Executive shall not have the right to receive termination benefits
pursuant to Section 3 hereof upon Termination for Cause. The term "Termination
for Cause" shall mean termination because of the Executive's personal
dishonesty, incompetence, willful misconduct, any breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, 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
material provision of this Agreement. In determining incompetence, the act or
omissions shall be measured against standards generally prevailing in the
savings institutions industry. Notwithstanding the foregoing, Executive shall
not be deemed to have been Terminated for Cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the Board of Directors of the
Association at a meeting of the Board of Directors of the Association at a
meeting of the Board called and held for that purpose (after reasonable notice
to the Executive and an opportunity for him, together with counsel, to be heard
before the Board at such meeting and which such meeting shall be held not more
than 30 days from the date of notice during which period Executive may be
suspended with pay), finding that in the good faith opinion of the Board, the
Executive was guilty of conduct justifying Termination for Cause and specifying
the particulars thereof in detail. The Executive shall not have the right to
receive compensation or other benefits for any period after Termination for
Cause. Any stock options or limited rights granted to Executive under any stock
option plan of the Association, the Company or any subsidiary or affiliate
thereof, shall become null and void effective upon Executive's receipt of Notice
of Termination for Cause and shall not be exercisable by Executive at any time
subsequent to such Termination for Cause.
3. TERMINATION BENEFITS.
(a) Upon the occurrence of a Change in Control, followed at any time
during the term of this Agreement by the voluntary or involuntary termination of
Executive's employment, other than for Termination for Cause, the Association
and the Company shall pay the Executive, or in the event of his subsequent
death, his beneficiary or beneficiaries, or his estate, as the case may be, as
severance pay or liquidated damages, or both, a sum equal to three (3) times his
then current annual salary. At the election of the Executive such payment may be
made in a lump sum or paid in equal installment installments during the
thirty-six (36) months following the Executive's termination. In the event that
no election is made, payment to the Executive will be made on a basis basis
during the remaining term of this Agreement.
(b) Upon the occurrence of a Change in Control of the Association or the
Company followed at any time during the term of this Agreement by the
Executive's voluntary or involuntary termination of employment, other than for
Termination for Cause, the Association shall cause to be continued life,
medical, dental and disability coverage substantially identical prior to his
severance, except to the extent
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such coverage may be changed in its application to all Association employees.
Such coverage and payments shall cease upon expiration of thirty-six (36)
months.
(c) As of the effective date of this Agreement, and annually as of the
first business day of January or soon thereafter, Executive shall make the
election referred to in Section 3(a) hereof with respect to whether the amounts
payable under said Section 3(a) shall be paid in a lump sum or on a basisbasis.
Such election shall be irrevocable for the year for which such election is made
and shall continue in effect until the Executive has made his next annual
election.
(d) Notwithstanding the preceding paragraphs of this Section 3, in no
event shall the aggregate payments or benefits to be made or afforded to
Executive under said paragraphs (the "Termination Benefits") constitute an
"excess parachute payment" under Section 280G of the Code or any successor
thereto, and in order to avoid such a result Termination Benefits will be
reduced, if necessary, to an amount (the "Non-Triggering Amount"), the value of
which is one dollar ($1.00) less than an amount equal to three (3) times
Executive's "base amount", as determined in accordance with said Section 280G.
The allocation of the reduction required hereby among the Termination Benefits
provided by the preceding paragraphs of this Section 3 shall be determined by
the Executive.
4. NOTICE OF TERMINATION.
(a) Any purported termination by the Association, or by the Executive
shall be communicated by Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a written
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
(b) "Date of Termination" shall mean the date specified in the Notice of
Termination which, in the instance of Termination for Cause, shall be immediate.
5. SOURCE OF PAYMENTS.
It is intended by the parties hereto that all payments provided in this
Agreement shall be paid in cash or check from the general funds of the
Association. The Company, however, guarantees payment and provision of all
amounts and benefits due hereunder to the Executive and, if such amounts and
benefits due from the Association are not timely paid or provided by the
Association, such amounts and benefits shall be paid or provided by the Company.
6. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior agreement between the Association and Executive,
except that this Agreement shall not affect or operate to reduce any benefit or
compensation inuring to Executive of a kind elsewhere provided. No provision of
this Agreement shall be interpreted to mean that Executive is subject to
receiving fewer benefits than those available to him without reference to this
Agreement.
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Nothing in this Agreement shall confer upon the Executive the right to
continue in the employ of the Association or shall impose on the Association any
obligation to employ or retain the Executive in its employ for any period.
7. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of the
Executive, the Association, and their respective successors and assigns.
8. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
9. REQUIRED REGULATORY PROVISIONS.
(a) The Board of Directors may terminate the Executive's employment at any
time, but any termination by the Board of Directors, other than Termination for
Cause, shall not prejudice the Executive's right to compensation or other
benefits under this Agreement. The Executive shall not have the right to receive
compensation or other benefits for any period after Termination for Cause as
defined in Section 2 hereinabove.
(b) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Association's affairs by a
notice served under Section 8(e)(3) or 8(g)(1) of the Federal Deposit Insurance
Act (12 U.S.C. ss.1818(c)(3) or (g)(1)), the Association's obligations under
this contract shall be suspended as of the date of service, unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, the
Association may in its discretion (i) pay the Executive all or part of the
compensation withheld while their contract obligations were suspended and (ii)
reinstate (in whole or in part) any of the obligations which were suspended.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Association's affairs by an order issued
under Section 8(e)(4) or 8(g)(1) of the Federal Deposit
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Insurance Act (12 U.S.C. ss.1818(c)(4) or (g)(1)), all obligations of the
Association under this contract shall terminate as of the effective date of the
order, but vested rights of the contracting parties shall not be affected.
(d) If the Association is in default as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act, all obligations of the Association under this
contract shall terminate as of the date of default, but this paragraph shall not
affect any vested rights of the contracting parties.
(e) All obligations under this contract shall be terminated, except to the
extent determined that continuation of the contract is necessary for the
continued operation of the institution: (i) by the Director of the Office of
Thrift Supervision (or his or her designee) 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 Association under the
authority contained in Section 13(c) of the Federal Deposit Insurance Act; or
(ii) by the Director of the Office of Thrift Supervision (or his or her
designee) at the time the Director (or his or her designee) approves a
supervisory merger to resolve problems related to operation of the Association
or when the Association is determined by the Director to be in an unsafe or
unsound condition. Any rights of the parties that have already vested, however,
shall not be affected by such action.
(f) Any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
ss.1828(k).
10. REINSTATEMENT OF BENEFITS UNDER SECTION 9(b).
In the event the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Association's affairs by a notice described
in Section 9(b) hereof (the "Notice") during the term of this Agreement and a
Change in Control, as defined herein, occurs, the Association will assume its
obligation to pay and the Executive will be entitled to receive all of the
termination benefits provided for under Section 3 of this Agreement upon the
Association's receipt of a dismissal of charges in the Notice.
11. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
12. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
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13. GOVERNING LAW.
The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by Florida law but only to the extent not preempted
by Federal law.
14. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by the Executive within
fifty (50) miles from the location of the Association's main office, in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Executive shall be entitled to seek
specific performance of his right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in connection
with this Agreement.
15. PAYMENT OF COSTS AND LEGAL FEES.
All reasonable costs and legal fees paid or incurred by the Executive
pursuant to any dispute or question of interpretation relating to this Agreement
shall be paid or reimbursed by the Association (which payments are guaranteed by
the Company pursuant to Section 5 hereof) if Executive is successful on the
merits pursuant to a legal judgment, arbitration or settlement.
16. INDEMNIFICATION.
The Association shall provide Executive (including his or her legal
representatives, successors and assigns) with coverage under a standard
directors' and officers' liability insurance policy at its expense, or in lieu
thereof, shall indemnify Executive (including his or her legal representatives,
successors and assigns) for reasonable costs and expenses incurred by Executive
in defending or settling any judicial or administrative proceeding, or
threatened proceeding, whether civil, criminal or otherwise, including any
appeal or other proceeding for review.
Indemnification by the Association shall be made only upon the final
judgment on the merits in the favor of Executive, in case of final judgment
against Executive or in the case of final judgment against Executive or in the
case of final judgment in favor of Executive other than on the merits, if a
majority of the disinterested directors of the Association determine Executive
was acting in good faith within the scope of Executive's employment or authority
in accordance with 12 C.F.R. Section 545.121(c)(iii).
Any such indemnification of Executive must conform with the notice
provisions of 12 C.F.R. Part 545.121(c)(iii) to indemnify Executive to the
fullest for such expenses and liabilities to include, but not be limited to,
judgments, court costs and attorneys' fees and the cost of reasonable
settlements, such settlements to be approved by the Board of Directors of the
Association, if such action is brought against Executive in his or her capacity
as an officer or director of the Association,
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however, shall not extend to matters as to which Executive is finally adjudged
to be liable for willful misconduct in the performance of his or her duties.
17. SUCCESSOR TO THE ASSOCIATION.
The Association shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Association, expressly and
unconditionally to assume and agree to perform the Association's obligations
under this Agreement, in the same manner and to the same extent that the
Association would be required to perform is no such succession or assignment had
taken place.
18. SIGNATURES.
IN WITNESS WHEREOF, First Federal Savings and Loan Association of the Palm
Beaches and First Palm Beach Bancorp, Inc. have caused this Agreement to be
executed by its duly authorized officer, and Executive has signed this
Agreement, on the 25th of September, 1996.
ATTEST: FIRST FEDERAL SAVINGS AND LOAN
ASSOCIATION OF THE PALM BEACHES
/s/ John C. Trammel BY /s/ Louis O. Davis, Jr.
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Secretary
SEAL
ATTEST: FIRST PALM BEACH BANCORP, INC.
(Guarantor)
/s/ Elizabeth Cook /s/ Louis O. Davis, Jr.
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SEAL
WITNESS:
/s/ Elizabeth Cook BY: /s/ Linda O. Terrell
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Executive
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