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EXHIBIT 10.2
FIRST BANK OF FLORIDA
EMPLOYMENT AGREEMENT
This AGREEMENT is made effective as of May 20, 1997 by and between
First Bank of Florida (the "Association"), a federally chartered savings
institution, with its principal administrative office at 450 South Australian
Avenue, West Palm Beach, Florida, and Louis O. Davis, Jr., (the "Executive"),
residing at 127 Thornton Drive, Palm Beach Gardens, Florida 33418. Any reference
to "Holding Company" herein shall mean the Association's parent, First Palm
Beach Bancorp, Inc., or any successor thereto.
WHEREAS, Executive currently serves the Association in the capacity of
President and Chief Executive Officer; and
WHEREAS, the Association wishes to assure itself of the continued
availability of the services of Executive for the period provided in this
Agreement; and
WHEREAS, the Executive is willing to serve in the employ of the
Association on a full-time basis for said period on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and upon the other terms and conditions hereinafter
provided; the parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES
(a) During the period and upon the terms and conditions set forth
herein, Executive agrees to serve as President and Chief Executive Officer of
the Association. The Executive shall have such power, authority and
responsibility and shall perform such duties as are prescribed by or under the
By-Laws of the Association and as are customarily performed by persons situated
in a similar executive capacity, including, without limitation, the general
direction of all the business and affairs of the Association, the hiring and
supervision of all senior management personnel, and long-term strategic planning
for the Association, including growth by merger and acquisition. Failure to
reelect Executive as President and Chief Executive Officer without the consent
of the Executive shall constitute a breach of this Agreement by the Association.
(b) Executive's principal place of employment shall be at the
Association's executive offices at the address first above written, or at such
other location within a 25-mile radius thereof at which the Association shall
maintain its principal executive offices, or at such other location as the
Association and Executive may mutually agree upon. The Association shall provide
Executive at his principal place of employment with a private office,
secretarial services and other support services and facilities suitable to his
position with the Association and necessary or appropriate in connection with
the performance of his assigned duties under this Agreement. The Association
shall reimburse Executive for his ordinary and necessary business expenses,
including, without lim itation, fees for memberships in such clubs and
organizations as Executive and the Association shall mutually agree are
necessary and appropriate for business purposes, and his travel and
entertainment expenses incurred in connection with the performance of his duties
under this Agreement, in each case upon presentation to the Association of an
itemized account of such expenses in such form as the Association may reasonably
require.
2. TERM
(a) The period of Executive's employment under 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. Prior to the
first anniversary date of this Agreement, and on each anniversary date
thereafter (each an "Anniversary Date"), the Board of Directors of the
Association ("Board") shall review the terms of this Agreement and Executive's
performance of services hereunder and may, in the absence of objection from
Executive, approve an extension of the Employment Agreement. In such event, the
Employment Agreement shall be extended to the third anniversary of the relevant
Anniversary Date.
(b) For all purposes of this Agreement, the term "Remaining Unexpired
Employment Period" as of any date shall mean the period beginning on such date
and ending on the Anniversary Date on which the term of this Agreement (as
extended pursuant to section 2(a) of this Agreement) is then scheduled to
expire.
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(c) Nothing in this Agreement shall be deemed to prohibit the
Association at any time from terminating Executive's employment during the term
of this Agreement with or without notice for any reason; provided, however, that
the relative rights and obligations of the Association and Executive in the
event of any such termination shall be determined under this Agreement.
(d) During the period of his employment hereunder, except for periods
of absence occasioned by illness, holidays, reasonable vacation periods, and
reasonable leaves of absence, Executive shall devote substantially all his
business time, attention, skill, and efforts to the faithful performance of his
duties hereunder including activities and services related to the organization,
operation and management of the Association and participation in community and
civic organizations; provided, however, that, with the approval of the Board, as
evidenced by a resolution of such Board, from time-to-time, Executive may serve,
or continue to serve, on the Boards of Directors of, and hold any other offices
or positions in, companies or organizations, which, in such Board's judgment,
will not present any conflict of interest with the Association, or materially
affect the performance of Executive's duties pursuant to this Agreement.
Executive may also engage in personal business and investment activities which
do not materially interfere with the performance of his duties hereunder;
provided, however, that such activities are not prohibited under any code of
conduct or investment or securities trading policy established by the
Association and generally applicable to all similarly situated executives.
Executive may also serve as an officer or director of the Holding Company on
such terms and conditions as the Association and the Holding Company may
mutually agree upon, and such service shall not be deemed to materially
interfere with Executive's performance of his duties hereunder or otherwise to
result in a material breach of this Agreement.
3. COMPENSATION AND REIMBURSEMENT
(a) In consideration for the services to be rendered by Executive
hereunder, the Association shall pay Executive a salary at an initial annual
rate of $250,000 per year ("Base Salary"), payable in approximately equal
installments in accordance with the Association's customary payroll practices
for senior officers. The Board, or a Committee designated thereby, shall review
Executive's Base Salary at such times as it deems appropriate, but not less
frequently then once every twelve months, and the Board may, in its discretion,
approve an increase in Executive's Base Salary. Any such increase shall become
the "Base Salary" for purposes of this Agreement. In addition to Base Salary,
Executive may receive other cash compensation from the Association for services
hereunder at such times, in such amounts and on such terms and conditions as the
Board may determine from time to time. Base Salary shall include any amounts of
compensation deferred by Executive under a qualified plan maintained by the
Association.
(b) During the term of this Agreement, Executive shall be treated as
an employee of the Association and shall be eligible to participate in and
receive benefits under any and all qualified or non-qualified retirement,
pension, savings, profit-sharing or stock bonus plans, any and all group life,
health (including hospitalization, medical and major medical), dental, accident
and long-term disability insurance plans, professional financial planning
services and tax preparation programs and any other employee benefit and
compensation plans (including, but not limited to, any incentive compensation
plans or programs, ESOP, stock option and appreciation rights plans and
restricted stock plans) as may from time to time be maintained by, or cover
employees of, the Association, in accordance with the terms and conditions of
such employee benefit plans and programs and compensation plans and programs and
consistent with the Association's customary practices.
(c) In addition to the Base Salary provided for by paragraph (a) of
this section 3, the Association shall provide Executive with the perquisites
customarily provided to senior officers and may provide such additional
compensation in such form and such amounts as the Board may from time-to-time
determine.
4. TERMINATION OF EMPLOYMENT WITH SEVERANCE BENEFITS
(a) Executive shall be entitled to the severance benefits described
herein in the event that his employment with the Association terminates during
the term of this Agreement under any of the following circumstances:
(i) Executive's voluntary resignation from employment with the
Association within ninety (90) days following:
(A) the failure of the Board to appoint or re-appoint or
elect or re-elect Executive to the office described in section 1
of this Agreement (or a more senior office of the Association);
(B) if Executive is a member of the Board as of the date of
this Agreement, the failure of the stockholders of the
Association to elect or re-elect Executive or the failure of the
Board (or the nominating committee thereof) to nominate Executive
for such election or re-election;
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(C) the expiration of a thirty (30) day period following
the date on which Executive gives written notice to the
Association of its material failure, whether by amendment of the
Association's Organization Certificate or By-laws, action of the
Board or the Association's stockholders or otherwise, to vest in
Executive the functions, duties, or responsibilities prescribed
in section 1 of this Agreement, unless, during such thirty (30)
day period, the Association fully cures such failure; or
(D) the expiration of a thirty (30) day period following
the date on which Executive gives written notice to the
Association of its material breach of any term, condition or
covenant contained in this Agreement (including, without
limitation any reduction of Executive's rate of Base Salary in
effect from time to time and any change in the terms and
conditions of any compensation or benefit program in which
Executive participates which, alone or together with other
changes, has a material adverse effect on the aggregate value of
his total compensation package), unless, during such thirty (30)
day period, the Association fully cures such failure; or
(ii) the termination of Executive's employment with the
Association for any other reason not described in section 7; then,
subject to sections 15 and 16, the Association shall provide the
benefits and pay to Executive the amounts described in section 4(b).
(b) Upon the termination of Executive's employment with the
Association under circumstances described in section 4(a) of this Agreement, the
Association shall pay and provide to Executive (or, in the event of his death,
to his estate):
(i) his earned but unpaid compensation (including, without
imitation, all items which constitute wages under applicable law and
the payment of which is not otherwise provided for under this Section
4(b)), as of the date of the termination of his employment with the
Association, 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 he is entitled as a former
employee under the employee benefit plans and programs and
compensation plans and programs maintained for the benefit of the
Association's officers and employees;
(iii) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long-term disability
insurance benefits, in addition to that provided pursuant to section
4(b)(ii), and after taking into account the coverage provided by any
subsequent employer, if and to the extent necessary to provide for
Executive, for the Remaining Unexpired Employment Period, coverage
equivalent to the coverage to which he would have been entitled under
such plans (as in effect on the date of his termination of employment,
or, if his termination of employment occurs after a Change of Control,
on the date of such Change of Control, whichever benefits are greater)
if he had continued work ing for the Association during the Remaining
Unexpired Employment Period at the highest annual rate of compensation
achieved during that portion of the term of this Agreement which is
prior to Executive's termination of employment with the Association,
it being understood that Executive's "qualifying event" for purposes
of continuation coverage under the Consolidated Budget Reconciliation
Act ("COBRA") shall occur at the expiration of this period;
(iv) within five (5) days following his termination of employment
with the Association, a lump sum payment, in an amount equal to the
salary that Executive would have earned if he had continued working
for the Association during the Remaining Unexpired Employment Period
at the highest annual rate of salary achieved during that portion of
the term of this Agreement which is prior to Executive's termination
of employment with the Association. Such lump sum is to be paid in
lieu of all other payments of salary provided for under this Agreement
in respect of the period following any such termination;
(v) within thirty (30) days following his termination of
employment with the Association, a lump sum payment in an amount equal
to the excess, if any, of:
(A) the present value of the aggregate benefits to which he
would be entitled under any and all qualified and non-qualified
defined benefit pension plans maintained by, or covering
employees of, the Association, if he were 100% vested thereunder
and had continued working for the Association during the Re
maining Unexpired Employment Period, 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 Unexpired Employment Period and by
adding to the compensation recognized under such plans for
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the year in which termination of employment occurs all amounts
payable under sections 4(b)(i), (iv) and (vi); over
(B) the present value of the benefits to which he 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 Code (as hereinafter defined) and a
discount rate, compounded monthly equal to the annualized rate of
interest prescribed by the Pension Benefit 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"); and
(vi) within five (5) days following his termination of employment
with the Association, the payments that would have been made to
Executive under any cash bonus or long-term or short-term cash
incentive compensation plan maintained by, or covering employees of,
the Association if he had continued working for the Association during
the Re maining Unexpired Employment Period and had earned in each
calendar year that ends during the Remaining Unexpired Employment
Period a bonus in an amount equal to the highest annual bonus or
incentive award actually paid to him in any calendar year ending
during the three-year period ending on the date of termination of
employment.
The Association and Executive hereby stipulate that the damages which may be
incurred by Executive following any such termi nation of employment are not
capable of accurate measurement as of the date first above written and that the
payments and benefits contemplated by this section 4(b) constitute reasonable
damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to Executive's efforts, if any, to
mitigate damages. The Association and Executive further agree that the
Association may condition the payments and benefits (if any) due under sections
4(b)(iii), (iv), (v), and (vi) on the receipt of Executive's resignation from
any and all positions which he holds as an officer, director or committee member
with respect to the Holding Company or the Association or any subsidiary or
affiliate of either of them.
5. TERMINATION UPON OR FOLLOWING A CHANGE OF CONTROL
(a) For the purposes of this Agreement, a "Change of Control" of the
Association shall be (i) an event of a nature that results in a Change of
Control of the Association 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 Association or any person who on the date hereof
is a director or officer of the Association, becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Association (not including any securities acquired directly
from the Association or its affiliates other than in connection with the
acquisition by the Association or its affiliates of a business) representing 20%
or more of the combined voting power in the election of directors of the
Association'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 Association 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
Association whose appointment or election by the Board of Directors of the
Association or nomination for election by the Association'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 or the Association approve a merger or
consolidation of the Association with any other corporation, other than (i) a
merger or consolidation which would result in the voting securities of the
Association's 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 Association 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 Association (or
similar transaction) in which no "person" is or becomes the "beneficial owner,"
directly or indirectly, of securities of the Association (not including in the
securities "beneficially owned" by such "person" any securities acquired
directly from the Association or its affiliates other than in connection with
the acquisition by the Association or its affiliates of a business) representing
20% or more of the combined voting power in the election of directors of the
Association's then outstanding securities; or (D) the stockholders of the
Association approve a plan of complete liquidation or dissolution of the
Association or an agreement
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for the sale or disposition by the Association of all or substantially all of
the Association's assets, other than a sale or disposition by the Association of
all or substantially all of the Association'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 Association in substantially the same proportions
as their ownership of the Association any immediately prior to such sale.
A Change of Control of the Association shall also include any event described in
this section 5(a) if the term "Holding Company" were substituted for the term
"Association"each time it appears herein.
(b) Subject to sections 15 and 16, Executive shall be entitled to the
payments and benefits contemplated by section 5(c) in the event of his
termination of employment with the Association following a Change of Control
under any of the circumstances described in section 4(a) of this Agreement or
under any of the following circumstances:
(i) resignation, voluntary or otherwise, by Executive at any time
during the term of this Agreement and within ninety (90) days
following his demotion, loss of title, office or significant authority
or responsibility, or following any material reduction in any element
of his compensation and benefits;
(ii) resignation, voluntary or otherwise, by Executive at any
time during the term of this Agreement and within ninety (90) days
following (A) any relocation of his principal place of employment
outside of a 25-mile radius of the principal place of employment
immediately prior to the Change of Control that would require a
relocation of his residence in order to be able to commute to such new
place of employment within a commuting time not in excess of the
greater of 60 minutes or Executive's commuting time prior to the
Change of Control or (B) any material adverse change in working
conditions at such principal place of employment; or
(iii) resignation, voluntary or otherwise, by Executive at any
time during the term of this Agreement following the failure of any
successor to the Association in the Change of Control to include
Executive in any compensation or benefit program maintained by it or
covering any of its executive officers, unless Executive is already
covered by a substantially similar plan of the Association which is at
least as favorable to him.
(c) Upon the termination of Executive's employment with the
Association following a Change of Control under circumstances described in
section 4(a) or section 5(b) of this Agreement, the Association shall pay and
provide to Executive (or, in the event of his death, to his estate):
(i) his 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
5(c)), as of the date of the termination of his employment with the
Association, 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 he is entitled as a former
employee under the employee benefit plans and programs and
compensation plans and programs maintained for the benefit of the
Association's officers and employees;
(iii) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long-term disability
insurance benefits, in addition to that provided pursuant to section
5(c)(ii), and after taking into account the coverage provided by any
subsequent employer, if and to the extent necessary to provide for
Executive, for a period of thirty-six (36) months following the
termination of Executive's employment (the "Payment Period"), coverage
equivalent to the coverage to which he would have been entitled under
such plans (as in effect on the date of his termination of employment,
or, if his termination of employment occurs after a Change of Control,
on the date of such Change of Control, whichever benefits are greater)
if he had continued working for the Association during the Payment
Period at the highest annual rate of compensation achieved during that
portion of the term of this Agreement which is prior to Executive's
termination of employment with the Association, it being understood
that Executive's "qualifying event" for purposes of continuation
coverage under COBRA shall occur at the expiration of this period;
(iv) within five (5) days following his termination of employment
with the Association, a lump sum payment, in an amount equal to the
salary that Executive would have earned if he had continued working
for the Association during the Payment Period at the highest annual
rate of salary achieved during that portion of the term of this
Agreement which is prior to Executive's termination of employment with
the Association. Such lump sum is to be paid
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in lieu of all other payments of salary provided for under this
Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of
employment with the Association, a lump sum payment in an amount equal
to the excess, if any, of:
(A) the present value of the aggregate benefits to which he
would be entitled under any and all qualified and non-qualified
defined benefit pension plans maintained by, or covering
employees of, the Association, if he were 100% vested thereunder
and had continued working for the Association during the Payment
Period, 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
Payment Period and by adding to the compensation recognized under
such plans for the year in which termination of employment occurs
all amounts payable under sections 5(c)(i), (iv) and (vi); over
(B) the present value of the benefits to which he 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 Code and a
discount rate, compounded monthly equal to the annualized rate of
interest prescribed by the Pension Benefit 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");
and
(vi) within five (5) days following his termination of employment
with the Association, the payments that would have been made to
Executive under any cash bonus or long-term or short-term cash
incentive compensation plan maintained by, or covering employees of,
the Association if he had continued working for the Association during
the Payment Period and had earned in each calendar year that ends
during the Payment Period a bonus in an amount equal to the highest
annual bonus or incentive award actually paid to him in any calendar
year ending during the three-year period ending on the date of
termination of employment.
The Association and Executive hereby stipulate that the damages which may be
incurred by Executive following any such termi nation of employment following a
Change of Control are not capable of accurate measurement as of the date first
above written and that the payments and benefits contemplated by this section
5(c) constitute reasonable damages under the circumstances and shall be payable
without any requirement of proof of actual damage and without regard to
Executive's efforts, if any, to mitigate damages. The Association and Executive
further agree that the Association may condition the payments and benefits (if
any) due under sections 5(c)(iii), (iv), (v), and (vi) on the receipt of
Executive's resignation from any and all positions which he holds as an officer,
director or committee member with respect to the Association or the Holding
Company or any subsidiary or affiliate of either of them.
6. TERMINATION UPON RETIREMENT
Termination of Executive based on "Retirement" shall mean termination
in accordance with the Association's retirement policy or in accordance with any
retirement arrangement established with Executive's consent with respect to him.
Upon termination of Executive upon Retirement, Executive shall be entitled to
all benefits under any retirement plan of the Association and other plans to
which Executive is a party and this Agreement shall be terminated.
7. TERMINATION WITHOUT ADDITIONAL ASSOCIATION LIABILITY
In the event that Executive's employment with the Association shall
terminate during the term hereof on account of:
(a) the discharge of Executive for "cause," which, for purposes of
this Agreement shall mean personal dishonesty, incompetence, 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 discharged 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;
(b) Executive's voluntary resignation from employment with the
Association for reasons other than those specified in section 4(a)(i) or section
5(b);
(c) Executive's death; or
(d) a determination that Executive is eligible for long-term
disability benefits under the Association's long-term disability insurance
program or, if there is no such program, under the federal Social Security Act;
then the Association shall have no further obligations under this Agreement,
other than the payment to the Executive (or, in the event of his death, to his
estate) of his earned but unpaid salary as of the date of the termination of his
employment, and the provision of such other benefits, if any, to which he is
entitled as a former employee under the employee benefit plans and programs and
compensation plans and programs maintained by, or covering employees of, the
Association.
(e) For purposes of section 7(a), 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 Association. 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 Association
shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Association.
8. NOTICE
(a) Any purported termination by the Association or by Executive shall
be communicated by Notice of Termination to the other party hereto. Except in a
termination for cause, such 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 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.
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9. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement shall
be subject to Executive's compliance with paragraph (b) of this Section 9 during
the term of this Agreement and for one (1) full year after the expiration or
termination hereof.
(b) Executive shall, upon reasonable notice and at the Association's
expense, furnish such information and assistance to the Association as may
reasonably be required by the Association in connection with any litigation in
which it or any of its subsidiaries or affiliates is, or may become, a party.
10. NON-COMPETITION
(a) Upon any termination of Executive's employment hereunder pursuant
to section 4 hereof, Executive agrees not to compete with the Association and/or
the Holding Company for a period of one (1) year following such termination in
any city, town or county in which the Association and/or the Holding Company has
an office or has filed an application for regulatory approval to establish an
office, determined as of the effective date of such termination, except as
agreed to pursuant to a resolution duly adopted by the Board. Executive agrees
that during such period and within said cities, towns and counties, Executive
shall not work for or advise, consult or otherwise serve with, directly or
indirectly, any entity whose business materially competes with the depository,
lending or other business activities of the Association and/or the Holding
Company. The parties hereto, recognizing that irreparable injury will result to
the Association and/or the Holding Company, its business and property in the
event of Executive's breach of this Subsection 10(a) agree that in the event of
any such breach by Executive, the Association and/or the Holding Company will be
entitled, in addition to any other remedies and damages available, to an
injunction to restrain the violation hereof by Executive, Executive's partners,
agents, servants, employers, employees and all persons acting for or with
Executive. Executive represents and admits that in the event of the termination
of his employment pursuant to section 4 hereof, Executive's experience and
capabilities are such that Executive can obtain employment in a business engaged
in other lines and/or of a different nature than the Association and/or the
Holding Company, and that the enforcement of a remedy by way of injunction will
not prevent Executive from earning a livelihood. Nothing herein will be
construed as prohibiting the Association and/or the Holding Company from
pursuing any other remedies available to the Association and/or the Holding
Company for such breach or threatened breach, including the recovery of damages
from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Association and
affiliates thereof, as it may exist from time-to-time, is a valuable, special
and unique asset of the business of the Association. Executive will not, during
or after the term of his employment, disclose any knowledge of the past,
present, planned or considered business activities of the Association or
affiliates thereof to any person, firm, corporation, or other entity for any
reason or purpose whatsoever. Notwithstanding the foregoing, Executive may
disclose any knowledge of banking, financial and/or economic principles,
concepts or ideas which are not solely and exclusively derived from the business
plans and activities of the Association. In the event of a breach or threatened
breach by Executive of the provisions of this section 10, the Association will
be entitled to an injunction restraining Executive from disclosing, in whole or
in part, the knowledge of the past, present, planned or considered business
activities of the Association or affiliates thereof, or from rendering any
services to any person, firm, corporation, other entity to whom such knowledge,
in whole or in part, has been disclosed or is threatened to be disclosed.
Nothing herein will be construed as prohibiting the Association from pursuing
any other remedies available to it for such breach or threatened breach,
including the recovery of damages from Executive.
11. SOURCE OF PAYMENTS; GUARANTEE
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Association. 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
in accordance with this Agreement as and when due without any requirement of
presentment, demand of payment, protest or notice of dishonor or nonpayment.
12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS
(a) This Agreement contains the entire understanding between the
parties hereto and supersedes any prior employment agreement between the
Association or any predecessor of the Association and Executive (including
without limitation that certain Employment Agreement between the Association and
Executive dated , 1993), except that this Agreement shall not affect or operate
to reduce any benefit or compensation inuring to the 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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(b) The termination of Executive's employment during the term of this
Agreement or thereafter, whether by the Association or by Executive, shall have
no effect on the rights and obligations of the parties hereto under the
Association's qualified or non-qualified retirement, pension, savings, ESOP,
thrift, profit-sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long-term
disability insurance plans or such other employee benefit plans or programs, or
compensation plans or programs, as may be maintained by, or cover employees of,
the Association from time to time.
13. 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 affected any such action shall be null,
void, and of no effect.
14. MODIFICATION AND WAIVER
(a) Except for increases in the Base Salary as provided for in section
3(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 as to any act other
than that specifically waived.
15. LIMITATION PROVISIONS
(a) Notwithstanding anything herein contained to the contrary, in no
event shall the aggregate amount of compensation payable to Executive under
section 4(b) or section 5(c) hereof (exclusive of amounts described in section
4(b)(i) or (ii) or 5(c)(i)or (ii)), exceed three times Executive's average
annual total compensation for the last five consecutive calendar years to end
prior to his termination of employment with the Association (or for his entire
period of employment with the Association if less than five calendar years).
(b) (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 Association or the termination of 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 Association 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 Association, an affiliate or a person
making such payment or providing such benefit as a result of
Section 280G of the Internal Revenue Code of 1986, as amended
(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 15(b), (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 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 Association,
the Association'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
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(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 Association
in applying the terms of this section 15(b), 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
Association 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 15(b) (A) hereof, and the benefits under section
5(c)(iii) hereof which remain payable after the application of
section 15(b) hereof are thereafter reduced pursuant thereto
because of the receipt by Executive of substantially similar
benefits, the Association 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 15(b) 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.
16. REQUIRED REGULATORY PROVISIONS
The following provisions are included for the purpose of complying with
various laws, rules and regulations applicable to the Association:
(a) Notwithstanding anything herein contained to the contrary, 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 (e)(3) or (g)(1), the Association's prospective 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.
(b) Notwithstanding anything herein contained to the contrary, 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 Insurance Act (12 U.S.C. ss.1818 (e)(4) or
(g)(1)), all prospective 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.
(c) Notwithstanding anything herein to the contrary, if the Association
is in default as defined in Section 3(x)(1) (12 U.S.C. 1813 (x)(1)) of the
Federal Deposit Insurance Act, as amended by the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, all prospective 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 parties hereto.
(d) Notwithstanding anything herein to the contrary, all prospective
obligations of the Association under this Agreement shall be terminated, except
to the extent determined that continuation of this Agreement is necessary for
the continued operation of the Association, (I) by the Director of the Office of
Thrift Supervision (or his designee), or the Federal Deposit Insurance
Corporation, at the time FDIC enters into an agreement to provide assistance to
or on behalf of the Association under the authority contained in Section 13(c)
(12 U.S.C. ss.1823 (c)) of the Federal Deposit Insurance Act; or (ii) by the
Director of the Office of Thrift Supervision ("OTS") (or his designee) at the
time the Director (or his designee) approves a supervisory merger to resolve
problems related to the operations 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.
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(e) Notwithstanding anything herein to the contrary, any payments made
to Executive by the Association, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
ss.1828(k) and any regulations promulgated thereunder.
If and to the extent that any of the foregoing provisions shall cease
to be required by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
17. 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.
18. HEADING 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.
19. 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), but only to the extent not
preempted by federal law.
20. INDEMNIFICATION FOR ATTORNEYS' FEES
The Association shall indemnify, hold harmless and defend Executive
against reasonable costs, including legal fees, in curred by him in connection
with or arising out of any action, suit or proceeding in which he may be
involved, as a result of his ef forts, in good faith, to defend or enforce the
terms of this Agreement; provided, however, that Executive shall have
substantially prevailed on the merits pursuant to a judgment, decree or order of
a court of competent jurisdiction or of an arbitrator in an arbitration
proceeding, or in a settlement. For purposes of this Agreement, any settlement
agreement which provides for payment of any amounts in settlement of the
Association's obligations hereunder shall be conclusive evidence of Executive's
entitlement to indemnification hereunder, and any such indemnification payments
shall be in addition to amounts payable pursuant to such settlement agreement,
unless such settlement agreement expressly provides otherwise. This provision
shall be inoperative if and to the extent that, but only if and to the extent
that, it shall be determined that compliance herewith would violate any
applicable law or regulation.
21. INDEMNIFICATION AND INSURANCE
(a) During the term of this Agreement and for a period of six (6) years
thereafter, the Association shall cause Executive to be covered by and named as
an insured under any policy or contract of insurance obtained by it to insure
its directors and officers against personal liability for acts or omissions in
connection with service as an officer or director of the Association or service
in other capacities at the request of the Association. The coverage provided to
Executive pursuant to this section 21 shall be of the same scope and on the same
terms and conditions as the coverage (if any) provided to other officers or
directors of the Association.
(b) To the maximum extent permitted under applicable law, during the
term of this Agreement and for a period of six (6) years thereafter, the
Association shall indemnify, and shall cause its subsidiaries and affiliates to
indemnify Executive against and hold him harmless from any costs, liabilities,
losses and exposures to the fullest extent and on the most favorable terms and
conditions that similar indemnification is offered to any director or officer of
the Association or any subsidiary or affiliate thereof.
This section 21(b) shall not be applicable where section 20 is applicable.
22. 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 Association and its successors and assigns, including any successor by
merger or consolidation or any other per son or firm or corporation to which all
or substantially all of the assets and business of the Association may be sold
or otherwise transferred. Failure of the Association to obtain from any
successor its express written assumption of the Association's obligations
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hereunder at least sixty (60) days in advance of the scheduled effective date of
any such succession shall be deemed a material breach of this Agreement unless
cured within ten (10) days after notice thereof by Executive to the Association.
SIGNATURES
IN WITNESS WHEREOF, First Bank of Florida and First Palm Beach Bancorp, Inc.
have caused this Agreement to be executed by their duly authorized officers, and
Executive has signed this Agreement, as of the day and year first above written.
ATTEST: FIRST BANK OF FLORIDA
/s/ John C. Trammel By: /s/ R. Randy Guemple
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Secretary Duly Authorized Officer
SEAL
ATTEST: FIRST PALM BEACH BANCORP, INC.
(Guarantor)
/s/ Elaine P. Gerboc By: /s/ R. Randy Guemple
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SEAL
WITNESS:
/s/ Carol A. Patton By: /s/ Louis O. Davis, Jr.
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Executive
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