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EXHIBIT 10.13
FIRST PALM BEACH BANCORP, INC.
CHANGE OF CONTROL AGREEMENT
This AGREEMENT is made effective as of June 30, 1997, by and between
First Palm Beach Bancorp, Inc. (the "Holding Company"), a corporation organized
under the laws of the State of Delaware, with its office at 450 S. Australian
Avenue, West Palm Beach, Florida and Calvin L. Cearley, an individual residing
at 1384 Northampton Terrace, West Palm Beach, Florida 33414 ("Executive"). The
term "Association" refers to First Bank of Florida, the wholly-owned subsidiary
of the Holding Company.
WHEREAS, the Holding Company considers it essential to the best
interest of its stockholders to foster the continued employment of both its key
management personnel and the key management personnel of the Association; and
WHEREAS, the Board of Directors of the Holding Company recognizes that,
as is the case with many publicly-held corporations, the possibility of a Change
of Control of the Holding Company exists and that such possibility, and the
uncertainty and questions which it may raise among management of both the
Holding Company and the Association, may result in the departure or distraction
of management personnel to the detriment of the Holding Company and its
stockholders; and
WHEREAS, the Board of Directors of the Holding Company has determined
that appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Holding Company's and the
Association's management, including Executive, to their assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change of Control of the Holding Company;
NOW THEREFORE, in consideration of the mutual covenants, terms and
conditions herein set forth, the parties hereto agree as follows:
1. TERM OF AGREEMENT
(a) The initial term of this Agreement shall commence on June 30, 1997
and shall terminate on May 19, 2000, unless further extended in accordance with
the terms and conditions hereinafter set forth. On May 20, 1998 and on each May
20 thereafter ("Annual Anniversary Date"), the term of this Agreement shall be
extended automatically for an additional year, unless either the Board of
Directors of the Holding Company or Executive gives contrary written notice to
the other not less than 60 days in advance of such anniversary date. References
herein to the term of this Agreement shall refer both to the initial term and to
successive terms.
(b) During the term of Executive's employment with the Holding Company
and/or the Association, Executive shall perform such executive services for the
Holding Company and/or the Association as may be consistent with Executive's
title and may from time-to-time be assigned to Executive by the Holding
Company's or the Association's Board of Directors.
(c) During the term of Executive's employment with the Holding Company
and/or the Association, the Executive shall devote such time and effort to the
affairs and business of the Holding Company and/or the Association as the
Executive has customarily provided prior to the date hereof.
2. PAYMENTS TO EXECUTIVE UPON CHANGE OF CONTROL
(a) Upon the occurrence of a Change of Control of the Holding Company
(as hereinafter defined) followed at any time during the term of this Agreement
by the involuntary termination of Executive's employment other than a
Termination for Cause as defined in section 2 (c) hereof, or the voluntary
termination of Executive's employment for Good Reason (as hereinafter defined),
the provisions of section 3 shall apply. For purposes of this Agreement, "Good
Reason" shall mean (A) a failure by the Holding Company to comply with any
material provision of this Agreement, which failure has not been cured within
ten (10) days after notice of such noncompliance has been given by Executive to
the Holding Company; (B) the assignment to Executive of any duties inconsistent
with Executive's positions, duties, responsibilities and status with the Holding
Company and/or the Association immediately prior to the Change of Control of the
Holding Company, any removal of Executive from, or any failure to re-elect
Executive to, any of the positions previously held by Executive, or a change in
the Executive's reporting responsibilities, titles or offices as in effect
immediately prior to the Change of Control of the Holding Company, a reduction
by the Holding Company in the Executive's annual salary as in effect immediately
prior to Change of Control of the Holding Company, or as the same may be
increased from time-to-time, or the requirement that Executive be relocated to
an office which is more than 25 miles from the current
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principal executive office of the Holding Company, or the failure of the Holding
Company and/or the Association to continue in effect any bonus, benefit or
compensation plan, life insurance plan, health or accident plan or disability
plan in which Executive is participating at the time of Change of Control of the
Holding Company, or the taking of any action by the Holding Company which would
adversely affect Executive's participation in or materially reduce Executive's
benefits under any of such plans; or (c) any purported termination of
Executive's employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of paragraph 4 hereof (and for purposes of this
Agreement, no such purported termination shall be effective).
(b) For the purposes of this Agreement, a "Change of Control" of the
Holding Company shall be (i) an event of a nature that results in a Change of
Control of the Association or the Holding 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 a Change of Control as set
forth under the Rules and Regulations of the OTS, the Board of Directors shall
substitute its judgment for that of the OTS), or (ii) a Change of Control of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), without regard to whether or not such
regulation actually applies; provided that, without limitation, such a Change of
Control shall be deemed to have occurred if (A) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act in effect on the date first
above written), other than the Holding Company or any person who on the date
hereof is a director or officer of the Holding Company, becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Holding Company (not including any securities
acquired directly from the Holding Company or its affiliates other than in
connection with the acquisition by the Holding Company or its affiliates of a
business) representing 20% or more of the combined voting power in the election
of directors of the Holding Company's then outstanding securities, (B) during
any period of not more than two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Holding
Company together with any new director (other than a director whose initial
assumption of office is in connection with any actual or threatened election
contest, including but not limited to a consent solicitation, relating to the
election of directors of the Holding Company) whose appointment or election by
the Board of Directors of the Holding Company or nomination for election by the
Holding Company's stockholders was approved or recommended by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
on the date hereof or whose appointment, election or nomination for election was
previously so approved or recommended, cease for any reason to constitute at
least a majority thereof, (c) the stockholders of the Holding Company approve a
merger or consolidation of the Holding Company or the Association with any other
corporation, other than (i) a merger or consolidation which would result in the
voting securities of the Holding Company outstanding immediately prior to such
merger or consolidation continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity or any
parent thereof) at least 60% of the combined voting power in the election of
directors of the securities of the Holding Company or such surviving entity or
any parent thereof outstanding immediately after such merger or consolidation,
or (ii) a merger or consolidation effected to implement a recapitalization of
the Holding Company (or similar transaction) in which no "person" is or becomes
the "beneficial owner," directly or indirectly, of securities of the Holding
Company (not including in the securities "beneficially owned" by such "person"
any securities acquired directly from the Holding Company or its affiliates
other than in connection with the acquisition by the Holding Company or its
affiliates of a business) representing 20% or more of the combined voting power
in the election of directors of the Holding Company's then outstanding
securities; or (i) the stockholders of the Holding Company approve a plan of
complete liquidation or dissolution of the Holding Company or an agreement for
the sale or disposition by the Holding Company of all or substantially all of
the Holding Company's assets, other than a sale or disposition by the Holding
Company of all or substantially all of the Holding Company's assets to an entity
which assumes the obligations set forth in this Agreement, and at least 60% of
the combined voting power in the election of directors of the voting securities
of which are owned by stockholders of the Holding Company in substantially the
same proportions as their ownership of the Holding Company immediately prior to
such sale.
A Change of Control of the Holding Company shall also include any event
described in this section 2 (b) if the term "Association" were substituted for
the term "Holding Company" each time it appears herein.
(c) The Executive shall not have the right to receive termination
benefits pursuant to Section 3 hereof upon Termination for Cause. "Termination
for Cause" for purposes of this Agreement shall mean willful misconduct, 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 any
material breach of this Agreement, in each case as measured against standards
generally prevailing at the relevant time in the savings and community banking
industry; PROVIDED, HOWEVER, that Executive shall not be deemed to have been
Terminated for Cause unless and until the following procedures shall have been
followed:
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(i) the Board shall adopt a resolution duly approved by
affirmative vote of a majority of the entire Board at a meeting called
and held for such purpose calling for Executive's Termination for Cause
and setting forth the purported grounds for such termination ("Proposed
Termination Resolution");
(ii) as soon as practicable, and in any event within five (5)
days, after adoption of such resolution, the Board shall furnish to
Executive a written notice of termination which shall be accompanied by
a certified copy of the Proposed Termination Resolution ("Notice of
Proposed Termination");
(iii) Executive shall be afforded a reasonable opportunity to
make oral and written presentations to the members of the Board, on his
own behalf, or through a representative, who may be his legal counsel,
to refute the grounds set forth in the Proposed Termination Resolution
at one or more meetings of the Board to be held no sooner than fifteen
(15) days and no later than thirty (30) days after the Executive's
receipt of the Proposed Termination Notice ("Termination Hearings");
and
(iv) within ten (10) days following the end of the Termination
Hearings, the Board shall adopt a resolution duly approved by
affirmative vote of a majority of the entire Board at a meeting called
and held for such purpose (A) finding that in the good faith opinion of
the Board the grounds for termination set forth in the Proposed
Termination Resolution exist and (B) terminating Executive's employment
("Termination Resolution"); and
(v) as promptly as practicable, and in any event within one
(1) business day after adoption of the Termination Resolution, the
Board shall furnish to the Executive written notice of termination,
which notice shall include a copy of the Termination Resolution and
specify an effective date of termination that is not later than the
date on which such notice is given.
(d) For purposes of section 2(c), no act or failure to act on the part
of Executive shall be considered "willful" unless it is done, or omitted to be
done, by Executive in bad faith or without reasonable belief that Executive's
action or omission was in the best interests of the Holding Company. Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board or based upon the written advice of counsel for the Holding Company
shall be conclusively presumed to be done, or omitted to be done, by Executive
in good faith and in the best interests of the Holding Company.
3. TERMINATION BENEFITS
(a) If Executive is terminated by the Holding Company other than in a
Termination for Cause pursuant to paragraph 2 (c) hereof, or Executive
terminates employment for Good Reason, in either case after a Change of Control
of the Holding Company as defined in paragraph 2(b) hereof, then in lieu of any
further salary payments to Executive for periods subsequent to the date of
termination, the Holding Company shall pay as severance to Executive an amount
equal to one time the sum of (A) the higher of Executive's base salary in effect
immediately prior to the occurrence of the event or circumstance upon which the
Notice of Termination is based and Executive's annual base salary in effect
immediately prior to the Change of Control of the Holding Company, plus (B) the
higher of the highest annual bonus or incentive payment earned by or accrued in
respect of Executive in respect of any of the one year immediately preceding
that in which the Date of Termination occurs or the highest annual bonus or
incentive payment so earned in respect of any of the one year immediately
preceding that in which the Change of Control of the Holding Company occurs.
Such payment shall be made in a lump sum within five days of the date of
termination of Executive's employment.
(b) Upon the occurrence of a Change of Control of the Holding Company
followed at any time during the term of this Agreement by Executive's voluntary
(for Good Reason) or involuntary termination of employment, other than a
Termination for Cause, the Holding Company shall, for one year or until
Executive obtains employment which provides substantially similar benefits,
provide Executive and anyone entitled to claim under or through Executive all
benefits under any life or other insurance or death benefit plan, medical, group
hospitalization, dental, disability insurance or other future or present similar
group employee benefit plan or program of the Holding Company or Association for
which executive officers are eligible, to the same extent as if Executive had
continued to be an employee of the Holding Company or Association during such
period and such benefits shall, to the extent not paid under any such plan or
program, be paid by the Holding Company. The payments and benefits described in
the preceding sentence shall be paid to Executive's beneficiaries by testate or
intestate succession in the event of Executive's death during the period during
which such payments and benefits are being provided. Executive's "qualifying
event" for purposes of continuation coverage under the Consolidated Budget
Reconciliation Act ("COBRA") shall occur at the expiration of such one year
period.
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(c) Upon the termination of Executive's employment other than a
Termination for Cause, or if Executive terminates employment for Good Reason, in
either case after a Change of Control of the Holding Company occurs, the Holding
Company shall pay and provide to Executive (or, in the event of the Executive's
death, to Executive's estate):
(i) Executive's earned but unpaid compensation (including,
without limitation, all items which constitute wages under applicable
law and the payment of which is not otherwise provided for under this
section 3) as of the Date of Termination (as hereinafter defined), such
payment to be made at the time and in the manner prescribed by law
applicable to the payment of wages but in no event later than thirty
(30) days after termination of employment;
(ii) the benefits, if any, to which Executive is entitled as a
former employee under the employee benefit plans and programs and
compensation plans and programs maintained for the benefit of the
Holding Company's or Association's officers and employees;
(iii) within thirty (30) days following Executive's
termination of employment, a lump sum payment in an amount equal to the
excess, if any, of:
(A) the present value of the aggregate benefits to
which Executive would be entitled under any and all qualified
and non-qualified defined benefit pension plans maintained by,
or covering employees of, the Holding Company or the
Association, if Executive were 100% vested thereunder and had
continued working for the Holding Company or the Association
during the remaining term of this Agreement, such benefits to
be determined as of the date of termination of employment by
adding to the service actually recognized under such plans an
additional period equal to the remaining term of this
Agreement and by adding to the compensation recognized under
such plans for the year in which termination of employment
occurs all amounts payable under sections 3(a), 3(b) and
3(c)(i); over
(B) the present value of the benefits to which
Executive is actually entitled under such defined benefit
pension plans as of the date of his termination;
where such present values are to be determined using the mortality
tables prescribed under section 415(b)(2)(E)(v) of the Internal Revenue
Code of 1986, as amended (the "Code") and a discount rate, compounded
monthly, equal to the annualized rate of interest prescribed by the
Pension Benefits Guaranty Corporation for the valuation of immediate
annuities payable under terminating single-employer defined benefit
plans for the month in which the Executive's termination of employment
occurs ("Applicable PBGC Rate");
(d) Executive shall not be required to mitigate the amount of any
payment provided for in section 3 of this Agreement by seeking other employment
or otherwise. Further, the amount of any payment or benefit provided for in this
Agreement shall not be reduced by any compensation earned or benefits received
by Executive as the result of employment by another employer, by retirement
benefits, by offset against any amount claimed to be owed by Executive to the
Holding Company, or otherwise.
(e) (A) Notwithstanding any other provisions of this
Agreement, in the event that any payment or benefit received
or to be received by Executive in connection with a Change of
Control of the Holding Company or the termination of the
Executive's employment (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the
Holding Company or the Association, any person whose actions
result in a Change of Control of the Holding Company or any
person affiliated with the Holding Company or the Association
or such person) (all such payments and benefits, including the
payments and benefits provided under this Agreement (the
"Severance Payments"), being hereinafter called "Total
Payments") would not be deductible (in whole or part), by the
Holding Company, an affiliate or a person making such payment
or providing such benefit as a result of Section 280G of the
Code, then, to the extent necessary to make such portion of
the Total Payments deductible (and after taking into account
any reduction in the Total Payments provided in such other
plan, arrangement or agreement), the cash Severance Payments
shall first be reduced (if necessary, to zero), and all other
Severance Payments shall thereafter be reduced (if necessary,
to zero); PROVIDED, HOWEVER, that Executive may elect (at any
time prior to the delivery of a Notice of Termination
hereunder) to have the noncash Severance Payments reduced (or
eliminated) prior to any reduction of the cash Severance
Payments.
(B) For purposes of the limitation contained in
Subsection (A) of this section 3(e), (i) no portion of the
Total Payments the receipt or enjoyment of which Executive
shall have effectively waived in writing prior to the delivery
of a Notice of Termination shall be taken into account, (ii)
no portion of the Total Payments shall
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be taken into account which, in the opinion of tax counsel
("Tax Counsel") reasonably acceptable to Executive and
selected by the accounting firm which was, immediately prior
to the Change of Control of the Holding Company, the Holding
Company's independent auditor (the "Auditor"), does not
constitute a "parachute payment" within the meaning of Section
280G(b) (2) of the Code, including by reason of Section
280G(b) (4) (A) of the Code, (iii) the Severance Payments
shall be reduced only to the extent necessary so that the
Total Payments (other than those referred to in clauses (i) or
(ii)) in their entirety constitute reasonable compensation for
services actually rendered within the meaning of Section
280G(b) (4) (B) of the Code or are otherwise not subject to
disallowance as deductions by reason of Section 280G of the
Code, in the opinion of Tax Counsel, and (iv) the value of any
noncash benefit or any deferred payment or benefit included in
the Total Payments shall be determined by the Auditor in
accordance with the principles of Sections 280G(d) (3) and (4)
of the Code.
(C) If it is established pursuant to a final
determination of a court or an Internal Revenue Service
proceeding that, notwithstanding the good faith of Executive
and the Holding Company in applying the terms of this section
3(e), the aggregate "parachute payments" paid to or for
Executive's benefit are in an amount that would result in any
portion of such "parachute payments" not being deductible by
reason of section 280G of the Code, then Executive shall have
an obligation to pay the Holding Company upon demand an amount
equal to the sum of (i) the excess of the aggregate "parachute
payments" paid to or for Executive's benefit over the
aggregate "parachute payments" that could have been paid to or
for Executive's benefit without any portion of such "parachute
payments" not being deductible by reason of section 280G of
the Code; and (ii) interest on the amount set forth in clause
(i) of this sentence at 120% of the rate provided in section
1274 (b) (2) (B) of the Code from the date of Executive's
receipt of such excess until the date of such payment. If the
Severance Payments shall be decreased pursuant to section 3(e)
(A) hereof, and the benefits under section 3 (b) hereof which
remain payable after the application of section 3 (e) hereof
are thereafter reduced pursuant thereto because of the receipt
by Executive of substantially similar benefits, the Holding
Company shall, at the time of such reduction, pay to Executive
the lowest of (a) the amount of the decrease made in the
Severance Payments pursuant to section 3 (e) hereof, (b) the
amount of the subsequent reduction in such benefits, or (c)
the maximum amount which can be paid to Executive without
being, or causing any other payment to be, nondeductible by
reason of section 280G of the Code.
4. NOTICE OF TERMINATION
(a) Any purported termination by the Holding Company or by the
Executive shall be communicated by Notice of Termination to the other party
hereto. Said Notice of Termination shall be provided to Executive not less than
thirty (30) days prior to Executive's Date of Termination. For purposes of this
Agreement, a "Notice of Termination" shall mean a dated written notice which
shall (i) indicate the specific termination provision in this Agreement relied
upon; (ii) set forth in detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated and (iii) specify a date of termination, which shall be not less than
thirty (30) days nor more than ninety (90) days after such Notice of Termination
is given, except in the case of a Termination for Cause, in which case the
Notice of Termination may specify a date of termination as of the date of such
Notice of Termination.
(b) "Date of Termination" shall mean the date specified in the Notice
of Termination.
5. GUARANTEE
The Holding Company hereby irrevocably and unconditionally guarantees
to Executive the payment of all amounts, and the performance of all other
obligations, due from the Association pursuant to that certain Change of Control
Agreement of even date herewith between the Association and Executive as and
when due without any requirement of presentment, demand of payment, protest or
notice of dishonor or nonpayment.
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 Holding Company and
Executive (including without limitation that certain Change of Control Agreement
between the Holding Company and Executive dated as of [ ],1997), 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.
Nothing in this Agreement shall confer upon the Executive the right to continue
in the employ of the Holding Company or shall impose on the
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Holding Company any obligation to employ or retain Executive in its employ for
any period, but any termination following a Change of Control shall be subject
to the terms and conditions hereof.
7. NO ATTACHMENT
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.
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. REINSTATEMENT OF BENEFITS UNDER ASSOCIATION AGREEMENT
In the event Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Association's affairs by a notice described
in section 9 of that certain Change of Control Agreement between Executive and
the Association dated May 20, 1997 (the "Association Agreement") during the term
of this Agreement and a Change of Control, as defined herein, occurs, the
Holding Company will assume the obligation to pay and Executive will be entitled
to receive all of the termination benefits provided for under section 3 of the
Association Agreement upon the notification of the Holding Company of the
Association's receipt of a dismissal of charges in such notice.
10. REQUIRED REGULATORY PROVISION
Notwithstanding anything herein contained to the contrary, any payments
made to Executive by the Holding Company pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
ss.1828(k).
11. NON-DUPLICATION
Any compensation or benefits provided to Executive pursuant to the
Association Agreement shall be applied to offset the obligations of the Holding
Company hereunder, it being intended that this Agreement set forth the aggregate
compensation and benefits payable to Executive for all services to the Holding
Company and all of its direct or indirect subsidiaries.
12. 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.
13. 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.
14. GOVERNING LAW
The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by the laws of the State of Florida (without regard
to the conflict of laws principles thereof), except to the extent preempted by
Federal law.
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15. PAYMENT OF COSTS AND LEGAL FEES
Following a Change of Control of the Holding Company, Executive shall
be entitled to reimbursement for all reasonable costs, including attorney's
fees, in challenging any termination of his employment, in seeking to enforce
any of her rights hereunder, or in connection with any tax audit or proceeding
to the extent attributable to the application of Section 4999 of the Code to any
payment or benefit provided hereunder, provided that Executive shall not be
entitled to such reimbursement if the Holding Company proves, by clear and
convincing evidence, that Executive proceeded in such action in bad faith.
Executive shall also be entitled to post-judgment interest at the then-current
prime rate charged by Citibank, NA or any successor thereto, on any money
judgment obtained. Amounts paid pursuant to this section shall be in addition to
all rights to which Executive is otherwise entitled under this Agreement.
16. INDEMNIFICATION
The Holding Company shall provide Executive (including his heirs,
executors and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense, or in lieu thereof, shall
indemnify Executive (and his heirs, executors and administrators) to the fullest
extent permitted under Delaware law and as provided in the Holding Company's
Certificate of Incorporation against all expenses and liabilities reasonably
incurred by Executive in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his having been a director
or officer of the Holding Company (whether or not he continues to be a director
or officer at the time of incurring such expenses or liabilities), such expenses
and liabilities to include, but not be limited to, judgments, court costs and
attorneys' fees and the cost of reasonable settlements.
17. SUCCESSOR AND ASSIGNS
This Agreement will inure to the benefit of and be binding upon
Executive, his legal representatives and testate or intestate distributees and
the Holding Company and its successors and assigns, including any successor by
merger or consolidation or a statutory receiver or any other person or firm or
corporation to which all or substantially all of the assets and business of the
Holding Company may be sold or otherwise transferred.
18. SUCCESSOR TO THE HOLDING COMPANY
The Holding Company 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 or the Holding
Company, expressly and unconditionally to assume and agree to perform the
Holding Company's obligations under this Agreement, in the same manner and to
the same extent that the Holding Company would be required to perform if no such
succession or assignment had taken place.
IN WITNESS WHEREOF, First Palm Beach Bancorp, Inc. has caused this Agreement to
be executed by its duly authorized officer, and Executive has signed this
Agreement, as of the 30th day of June, 1997.
ATTEST: FIRST PALM BEACH BANCORP, INC.
/s/ Elizabeth Cook By: /s/ Louis O. Davis, Jr.
- ----------------------------- -----------------------------
Assistant Secretary
WITNESS:
/s/ Karen Good /s/ Calvin Cearley
- ----------------------------- -----------------------------
Executive
SEAL
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RIDER TO FIRST PALM BEACH BANCORP, INC.
CHANGE IN CONTROL AGREEMENT
This Rider, effective as of June 30, 1997, amends that certain First Palm Beach
Bancorp, Inc. Change in Control Agreement dated as of June 30, 1997 (the "Change
in Control Agreement") by and between First Palm Beach Bancorp, Inc. (the
"Holding Company") and Calvin L. Cearley ("Executive").
In consideration of the covenants and agreements herein set forth, the parties
hereto agree as follows:
1. The term of this Rider shall commence on June 30, 1997 and shall terminate on
January 1, 1998, provided that Executive's employment shall not therefore have
been terminated for good reason or other than in a Termination for Cause
following a Change in Control (as defined in the Change in Control Agreement),
in which event this Rider shall remain in effect until all obligations have been
performed.
2. During the term of this Rider, paragraph 3(d) of the Change in Control
Agreement shall be of no force and effect, and the following shall be
substituted therefor:
"To the extent that the Termination Benefits to be made or afforded to
Executive constitute "excess parachute payments" subject to the excise
tax imposed under Section 4999 of the Internal Revenue Code of 1986, as
amended, Executive shall be entitled to an additional payment
sufficient to restore Executive to the same after-tax position
Executive would have had if the excise tax had not been imposed."
3. This Rider shall terminate and be of no further force and effect on January
1, 1998. At such time as this Rider terminates, paragraph 3(d) of the Change in
Control Agreement shall become and shall be effective for the remainder of the
term (including the initial and successive terms) of the Change in Control
Agreement.
4. All other terms and conditions of the Change in Control Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, First Palm Beach Bancorp, Inc. has caused this Agreement to
be executed by its duly authorized officer, and Executive has executed this
Agreement, as of the day and year first above written.
ATTEST: FIRST PALM BEACH BANCORP, INC.
/s/ Elizabeth Cook By: /s/ Louis O. Davis, Jr.
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Assistant Secretary
WITNESS
/s/ Karen Good /s/ Calvin Cearley
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Executive
SEAL
135