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EXHIBIT 10.8
FIRST BANK OF FLORIDA
CHANGE OF CONTROL 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 administrative office at 450 S. Australian Avenue, West
Palm Beach, Florida and Rita Groton, an individual residing at 6252 Floridian
Circle, Lake Worth, Florida 33463 ("Executive"). The term "Holding Company"
refers to First Palm Beach Bancorp, Inc., the Association's parent, a
corporation organized under the laws of the State of Delaware, or any successor
thereto.
WHEREAS, the Association considers it essential to the best interest of
its stockholder to foster the continued employment of its key management
personnel; and
WHEREAS, the Board of Directors of the Association recognizes that, as
is the case with subsidiaries of many publicly-held corporations, the
possibility of a Change of Control of the Holding Company or the Association
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 Association and its stockholder; and
WHEREAS, the Board of Directors of the Association has determined that
appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of members of 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 or the Association;
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 May 20,
1997 and shall terminate on May 19, 2000, unless further extended in accordance
with the terms and conditions hereinafter set forth. 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 (the "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 this Agreement. In such event, this Agreement shall be extended to
the third anniversary of the relevant Anniversary Date.
(b) Notwithstanding anything herein contained to the contrary, the
Executive's employment with the Association may be terminated at any time;
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.
(c) During the period of Executive's employment that falls during
the term of this Agreement and following a Change of Control of the Association
(as hereinafter defined), Executive shall: (a) devote her full business time and
attention (other than during holidays, vacation periods, and periods of illness,
disability or approved leave of absence) to the business and affairs of the
Association and use her best efforts to advance the Association's interests; (b)
serve in the position to which Executive is appointed by the Association, which
shall be the position that Executive held on the day before the Change of
Control of the Association occurred or any higher office at the Association to
which she may subsequently be appointed; and (c) subject to the direction of the
Board and the By-laws of the Association, have such functions, duties,
responsibilities and authority commonly associated with such position.
2. PAYMENTS TO EXECUTIVE UPON CHANGE OF CONTROL
(a) Upon the occurrence of a Change of Control of the Association
(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 by 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 Association to comply with any material
provision of this Agreement, which failure has not been cured within ten (10)
days after
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notice of such noncompliance has been given by Executive to the Association; (B)
the assignment to Executive of any duties inconsistent with Executive's
positions, duties, responsibilities and status with the Association immediately
prior to the Change of Control of the Association, 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
Association, a reduction by the Association in the Executive's annual salary as
in effect immediately prior to Change of Control of the Association, 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 principal
executive office of the Association, or the failure of 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 Association, or the taking of any action
by the Association 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
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 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 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 Holding Company 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 immediately prior to such sale.
A Change of Control of the Association shall also include any event described in
this section 2 (b) if the term "Holding Company" were substituted for the term
"Association" 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 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
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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:
(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
her own behalf, or through a representative, who may be her 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
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 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 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.
3. TERMINATION BENEFITS
(a) If Executive's employment is terminated by the Association 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 Association 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 Association shall pay as severance to Executive an amount equal
to three (3) 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 Association, 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 three years immediately
preceding that in which the Change of Control of the Association 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 Association
followed at any time during the term of this Agreement by Executive's voluntary
(for Good Reason) or involuntary (other than a Termination for Cause)
termination of employment, the Association shall, for three years 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 Association for which executive
officers are eligible, to the same extent as if Executive had continued to be an
employee of the Association during such period and such benefits shall, to the
extent not paid under any such plan or program, be paid by the Association. 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.
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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.
(c) Upon the involuntary termination of Executive's employment with
the Association other than a Termination for Cause, or if Executive terminates
employment for Good Reason, in either case after a Change of Control of the
Association occurs, the Association shall pay and provide to Executive (or, in
the event of 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 the Date of Termination;
(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
Association's officers and employees;
(iii) within thirty (30) days following the Date of
Termination, 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 Association, if Executive were
100% vested thereunder and had continued working for the
Association during the remaining term of this Agreement, such
benefits to be determined as of the Date of Termination 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 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 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
Association, 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 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 Association,
any person whose actions result in a Change of Control of the
Association or any person affiliated with 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
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.
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(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 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 (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
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 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 3(e)
(A) hereof, and the benefits under clause (i) of the third
sentence of 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 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 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 Association 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. SOURCE OF PAYMENTS; GUARANTEE
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 Holding Company, however, hereby irrevocably and
unconditionally guarantees to Executive payment of all amounts, and the
performance of all other obligations, due from the Association in accordance
with the terms of this Agreement 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
(a) This Agreement contains the entire understanding between the
parties hereto and supersedes any prior agreement between the Association and
Executive (including without limitation that certain Change of Control Agreement
between the Holding
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Company and Executive dated as of June 30, 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.
(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.
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. REQUIRED REGULATORY PROVISIONS
The following provisions are included for the purposes of complying
with various laws, rules and regulations applicable to the Association:
(a) Notwithstanding anything herein contained to the contrary, in no
event shall the aggregate amount of compensation payable to Executive hereunder
(exclusive of amounts described in section 3(c) (i) and (ii)) exceed one time
Executive's average annual total compensation for the last five consecutive
calendar years to end prior to her termination of employment with the
Association (or for her entire period of employment with the Association if less
than five calendar years).
(b) Notwithstanding anything herein contained to the contrary, any
payments to Executive by the Association, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with section
18(k) of the Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C. ss.1828(k),
and any regulations promulgated thereunder.
(c) Notwithstanding anything herein contained to the contrary, if
Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the affairs of the Association pursuant to a
notice served under section 8(e)(3) or 8(g)(i) of the FDI Act, 12 U.S.C.
ss.1818(e)(3) or 1818(g)(i), the Association's obligations under this Agreement
shall be suspended as of the date of service of such notice, unless stayed by
appropriate proceedings. If the charges in such notice are dismissed, the
Association, in its discretion, may (i) pay to Executive all or part of the
compensation withheld while the Association's obligations hereunder were
suspended and (ii) reinstate, in whole or in part, any of the obligations which
were suspended.
(d) 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)(i) of the FDI Act, 12 U.S.C. ss.1818(e)(4) or (g)(i), all prospective
obligations of the Association under this Agreement shall terminate as of the
effective date of the order, but vested rights and obligations of the
Association and Executive shall not be affected.
(e) Notwithstanding anything herein contained to the contrary, if
the Association is in default (within the meaning of section 3(x)(i) of the FDI
Act, 12 U.S.C. ss.1813(x)(i), all prospective obligations of the Association
under this Agreement shall terminate as of the date of default, but vested
rights and obligations of the Association and Executive shall not be affected.
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(f) Notwithstanding anything herein contained to the contrary, all
prospective obligations of the Association hereunder shall be terminated, except
to the extent that a continuation of this Agreement is necessary for the
continued operation of the Association: (I) by the Director of the Office of
Thrift Supervision ("OTS") or her designee or the Federal Deposit Insurance
Corporation ("FDIC"), at the time the FDIC enters into an agreement to provide
assistance to or on behalf of the Association under the authority contained in
section 13 (c) of the FDI Act, 12 U.S.C. ss.1823(c); (ii) by the Director of the
OTS or her designee at the time such Director or designee approves a supervisory
merger to resolve problems related to the operation of the Association or when
the Association is determined by such Director to be in an unsafe or unsound
condition. The vested rights and obligations of the parties shall not be
affected.
If and to the extent that any of the foregoing provisions shall cease to be
required or by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
10. 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.
11. 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.
12. 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.
13. PAYMENT OF COSTS AND LEGAL FEES
The Association shall indemnify, hold harmless and defend Executive
against reasonable costs, including legal fees, in curred by Executive in
connection with or arising out of any action, suit or proceeding in which
Executive may be involved, as a re sult of Executive's efforts, 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.
14. INDEMNIFICATION
The Association shall provide Executive (including her 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 her heirs, executors and administrators) to the fullest extent
permitted under applicable law and as provided in the Association's Charter
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 her having been a director or officer of the
Association (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.
15. SUCCESSORS AND ASSIGNS
This Agreement will inure to the benefit of and be binding upon
Executive, her legal representatives and testate or intestate distributees, and
the Association 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
Association may be sold or otherwise transferred.
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16. 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 if no such succession or assignment had
taken place.
IN WITNESS WHEREOF, First Bank of Florida has caused this Agreement to be
executed by its duly authorized officer, and Executive has signed this
Agreement, as of the 20th day of May, 1997.
ATTEST: FIRST BANK OF FLORIDA
/s/ John C. Trammel By: /s/ Louis O. Davis, Jr.
- ------------------------------- --------------------------------
Secretary
WITNESS:
/s/ Marcia R. Sund /s/ Rita Groton
- ------------------------------- --------------------------------
Executive
SEAL
As to the Guarantee:
FIRST PALM BEACH BANCORP, INC.
By: /s/ Louis O. Davis, Jr.
--------------------------------
ATTEST:
/s/ Carol A. Patton
--------------------------------
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