Exhibit 10.2
COMMUNITY SAVINGS, F. A.
1995 RECOGNITION AND RETENTION PLAN
FOR EMPLOYEES AND OUTSIDE DIRECTORS
1. ESTABLISHMENT OF THE PLAN
Community Savings, F. A. hereby establishes the Association 1995
Recognition and Retention Plan (the "Plan") upon the terms and conditions
hereinafter stated in this Recognition Plan.
2. PURPOSE OF THE PLAN
The purpose of the Plan is to retain Employees and Outside Directors of
experience and ability by providing such persons with a proprietary interest in
the Association as compensation for their contributions to the Association and
its Affiliates and as an incentive to make such contributions and to promote the
Association's growth and profitability in the future.
3. DEFINITIONS
The following words and phrases when used in this Plan with an initial
capital letter, unless the context clearly indicates otherwise, shall have the
meanings set forth below. Wherever appropriate, the masculine pronoun shall
include the feminine pronoun and the singular shall include the plural:
"AFFILIATE" means any "parent corporation" or "subsidiary corporation"
of the Association, as such terms are defined in Section 424(e) and (f),
respectively, of the Code.
"ASSOCIATION" means Community Savings, F. A.
"AWARD" means the grant by the Committee of Restricted Stock, as
provided in the Plan.
"BENEFICIARY" means the person or persons designated by a Recipient to
receive any benefits payable under the Plan in the event of such Recipient's
death. Such person or persons shall be designated in writing on forms provided
for this purpose by the Committee and may be changed from time to time by
similar written notice to the Committee. In the absence of a written
designation, the Beneficiary shall be the Recipient's surviving spouse, if any,
or if none, his estate.
"BOARD" means the Board of Directors of the Association.
"CAUSE" shall mean personal dishonesty, willful misconduct, any breach
of fiduciary
duty involving personal profit, intentional failure to perform stated duties, or
the willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or a final cease-and-desist order, any of which
results in a material loss to the Association or an Affiliate.
"CHANGE IN CONTROL" means:
(1) a reorganization, merger, merger conversion, consolidation
or sale of all or substantially all of the assets of the Association, the
Company or the Stock Holding Company, or a similar transaction in which the
Association, the Company or the Stock Holding Company is not the resulting
entity;
(2) individuals who constitute the Incumbent Board of the
Association, the Company, or the Stock Holding Company cease for any reason to
constitute a majority thereof; or
(3) a change in control within the meaning of 12 C.F.R. ss.
574.4, as determined by the board of directors of the Association or the
Company;
(4) In the event that the Company converts to the Stock
Holding Company on a stand-alone basis, a "change in control" of the Association
or the Stock Holding Company (a) shall mean an event of a nature that would be
required to be reported in response to Item la of the current report on Form
8-K, as in effect on the date hereof, pursuant to Section 13 or l5(d) of the
Securities Exchange Act of 1934 (the "Exchange Act"), or results in a Change in
Control of the Association or the Stock Holding Company within the meaning of
the Home Owners' Loan Act of 1933 and the Rules and Regulations promulgated by
the Office of Thrift Supervision (or its predecessor agency), as in effect on
the date hereof, (b) without limitation shall be deemed to have occurred at such
time as (i) any "person" (as the term is used in Section 13(d) and 14(d) of the
Exchange Act) other than the Stock Holding Company is or becomes a "beneficial
owner" (as defined in Rule 13-d under the Exchange Act) directly or indirectly,
of securities of the Association representing 25% or more of the Association's
outstanding securities ordinarily having the right to vote at the election of
directors except for any securities of the Association received by the Stock
Holding Company in connection with the Reorganization and any securities
purchased by the Association's employee stock ownership plan and trust shall not
be counted in determining whether such plan is the beneficial owner of more than
25% of the Association's securities, (ii) a proxy statement soliciting proxies
from stockholders of the Association, by someone other than the current
management of the Association, seeking stockholder approval of a plan of
reorganization, merger or consolidation of the Stock Holding Company of the
Association or similar transaction with one or more corporations as a result of
which the outstanding shares of the class of securities then subject to the plan
or transaction are exchanged or converted into cash or property or securities
not issued by the Association or the Stock Holding Company, or (iii) a tender
offer is made for 25% or more of the voting securities of the Association and
the shareholders owning beneficially or
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of record 25% or more of the outstanding securities of the Association have
tendered or offered to sell their shares pursuant to such tender offer and such
tendered shares have been accepted by the tender offeror.
Notwithstanding, the foregoing, a "Change in Control" of
the Association or the Company shall not be deemed to have occurred if the
Company ceases to own at least 51 % of all outstanding shares of stock of the
Association in connection with a conversion of the Company from mutual to stock
form.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITTEE" means the Stock Benefits Committee of the Board which shall
consist of at least three Outside Directors of the Association, all of whom are
and must be "disinterested directors," as that term is defined under Rule 16b-3
of the Securities Exchange Act of 1934.
"COMPANY" means ComFed, M. H. C., the mutual holding company of the
Association.
"COMMON STOCK" means shares of the common stock, par value of $1.00 per
share, of the Association.
"CONTINUOUS SERVICE" means the absence of any interruption or
termination of service as an Employee of the Association. Service shall not be
considered interrupted in the case of sick leave, military leave or any other
leave of absence approved by the Association or in the case of transfers between
payroll locations of the Association or between the Association, its parent, its
subsidiaries or its successor.
"CONVERSION TRANSACTION" means the conversion of the Company from the
mutual to stock form of organization either on a stand-alone basis or in the
context of a merger conversion, as provided by regulations of the Office of
Thrift Supervision ("OTS").
"DIRECTOR" means any director of the Association or an Affiliate.
"DISABILITY" means the permanent and total inability by reason of
mental or physical infirmity, or both, of an employee to perform the work
customarily assigned to him. Additionally, a medical doctor selected or approved
by the Board must advise the Committee that it is either not possible to
determine when such Disability will terminate or that it appears probable that
such Disability will be permanent during the remainder of said Participant's
lifetime.
"EFFECTIVE DATE" shall be the date of execution of this Plan.
"EMPLOYEE" means any person who is employed by the Association or its
Affiliates,
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including officers.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"INCUMBENT BOARD" means, in the case of (i) the Company or the Stock
Holding Company, or (ii) the Association, the Board of Directors of the Company
or the Association, respectively, on the date hereof, provided that any person
becoming a director subsequent to the date hereof whose election was approved by
a vote of at least three-quarters of the directors comprising the Incumbent
Board, or whose nomination for election by members or stockholders was approved
by the same nominating committee serving under an Incumbent Board, shall be
considered as though he were a member of the Incumbent Board.
"OFFERING" means the initial public offering by the Association of up
to 49.9% of the number of shares of Common Stock that will be outstanding after
such Offering.
"OUTSIDE DIRECTOR" means any nonemployee director of the Association or
an Affiliate.
"PLAN" means the Community Savings, F. A. 1995 Recognition and
Retention Plan of the Association.
"RECIPIENT" means an Employee or Director of the Association who
receives a Restricted Stock Award under this Plan.
"REORGANIZATION" means the reorganization of Community Savings, F. A.
as a stock savings association and the establishment of the Company as its
mutual holding company parent.
"RESTRICTED PERIOD" means the period of time selected by the Committee
for the purpose of determining when restrictions are in effect under Section 6
hereof with respect to Restricted Stock awarded under the Plan.
"RESTRICTED STOCK" means shares which have been contingently awarded to
a Recipient by the Committee subject to the restrictions referred to in Section
6 hereof, so long as such restrictions are in effect.
"STOCK HOLDING COMPANY" means the holding company resulting from a
stock conversion of the Company in a Conversion Transaction.
4. ADMINISTRATION OF THE PLAN.
4.01 ROLE OF THE COMMITTEE. The Plan shall be administered and
interpreted by the Committee, which shall have all of the powers allocated to it
in this and other Sections of
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the Plan. The interpretation and construction by the Committee of any provisions
of the Plan or of any Restricted Stock Award granted hereunder shall be final
and binding. The Committee shall act by vote or written consent of a majority of
its members. Subject to the express provisions and limitations of the Plan, the
Committee may adopt such rules, regulations and procedures as it deems
appropriate for the conduct of its affairs. The Committee shall report its
actions and decisions with respect to the Plan to the Board at appropriate
times, but in no event less than one time per calendar year.
4.02 ROLE OF THE BOARD. The members of the Committee shall be
appointed or approved by, and will serve at the pleasure of, the Board. The
Board may in its discretion from time to time remove members from, or add
members to, the Committee. The Board shall have all of the powers allocated to
it in this and other Sections of the Plan, may take any action under or with
respect to the Plan which the Committee is authorized to take, and may reverse
or override any action taken or decision made by the Committee under or with
respect to the Plan, PROVIDED, HOWEVER, that except as provided in Section 6.05,
the Board may not revoke any Restricted Stock Award except in the event of
Revocation for Cause, or with respect to unearned Restricted Stock Awards in the
event a Recipient of a Restricted Stock Award voluntarily terminates employment
with the Association.
4.03 PLAN ADMINISTRATION RESTRICTIONS. This Plan is intended to
comply with Rule 16b-3 under the Securities Exchange Act of 1934.
Notwithstanding any term to the contrary appearing in this Plan, unless
permitted by Rule 16b-3(c)(2)(ii), subsequent to the establishment of the Plan,
the Committee, and the Board of Directors shall not have the authority to
determine the amount and price of securities to be awarded and/or timing of
awards to Outside Directors which terms shall be set forth in the Plan. To the
extent any provision of the Plan or action by Plan administrators fails to
comply with this Section, such provision or action shall be deemed null and void
to the extent permitted by law and deemed advisable by the Board of Directors.
4.04 LIMITATION ON LIABILITY. No member of the Board or the
Committee shall be liable for any determination made in good faith with respect
to the Plan or any Restricted Stock Awards granted under it. If a member of the
Board or the Committee is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of anything done or not
done by him in such capacity under or with respect to the Plan, the Association
shall indemnify such member against expense (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in the best interests of the
Association and its Affiliates and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful,
provided, however, that the provisions of 12 C.F.R. Section 545.121 shall apply
to any indemnification made pursuant to this Section and any such
indemnification shall be consistent therewith.
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5. ELIGIBILITY; Awards
5.01 ELIGIBILITY. Employees and Outside Directors of the
Association and its Affiliates are eligible to receive Restricted Stock Awards.
5.02 AWARDS TO EMPLOYEES. The Committee may determine which of the
Employees referenced in Section 5.01 will be granted Restricted Stock Awards and
the number of Shares covered by each Award; PROVIDED, HOWEVER, that in no event
shall any Awards be made that will violate the Plan, the Charter, Bylaws or Plan
of Reorganization from Mutual Savings Association to Mutual Holding Company and
Stock Issuance Plan of the Association or any applicable federal or state law or
regulation. Shares of Restricted Stock which are awarded by the Committee shall,
on the date of the Award, be registered in the name of the Recipient and
transferred to the Recipient, in accordance with the terms and conditions
established under this Plan. The total number of shares that will be awarded or
reserved for Employees under this Plan shall be three percent (3 %) of the
shares issued in the Offering. In the event Restricted Stock is forfeited for
any reason, the Committee, from time to time, may determine which of the
Employees referenced in Section 5.01 will be granted additional Restricted Stock
Awards to be awarded from forfeited Restricted Stock. In selecting those
Employees to whom Restricted Stock Awards will be granted and the number of
Restricted Stock covered by such Awards, the Committee shall consider the
position and responsibilities of the eligible Employees, the length and value of
their services to the Association and its Affiliates, the compensation paid to
the Employees and any other factors the Committee may deem relevant, and the
Committee may request the written recommendation of the Chief Executive Officer
and other senior executive officers of the Association and its Affiliates. All
allocations by the Committee shall be subject to review, and approval or
rejection, by the Board.
No Restricted Stock shall be earned unless the Employee maintains
Continuous Service with the Association or any Affiliate until the restrictions
lapse.
5.03 AWARDS TO OUTSIDE DIRECTORS. Each Outside Director serving on
the Board of Directors of the Association or its Affiliate on the Effective Date
shall be issued a Restricted Stock Award equal to 4,750 shares of Restricted
Stock. The total number of shares that will be awarded or reserved for Outside
Directors under this Plan shall be one percent (1%) of the shares issued in the
Offering.
Any person who becomes an Outside Director of the Association
subsequent to the date of approval of this Plan by stockholders shall receive an
Award of Restricted Stock equal to 100 shares, subject to availability.
No Restricted Stock shall be earned by an Outside Director unless the
Outside Director maintains continuous service with the Association or Affiliates
until the restrictions lapse.
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5.04 MANNER OF AWARD. As promptly as practicable after a
determination is made pursuant to Section 5.02 that a Restricted Stock Award has
been granted, the Committee shall notify the Recipient in writing of the grant
of the Award, the number of shares of Restricted Stock covered by the Award, and
the terms upon which the Restricted Stock subject to the Award may be earned.
Upon notification of an Award of Restricted Stock, the Recipient shall execute
and return to the Association a restricted stock agreement setting forth the
terms and conditions under which the Recipient shall earn the Restricted Stock
(the "Restricted Stock Agreement"), together with a stock power endorsed in
blank. Thereafter, the Recipient's Restricted Stock and stock power shall be
deposited with an escrow agent specified by the Association (the "Escrow
Agents") who shall hold such Restricted Stock under the terms and conditions set
forth in the Restricted Stock Agreement. Each certificate in respect of shares
of Restricted Stock Awarded under the Plan shall be registered in the name of
the Recipient.
5.05 TREATMENT OF FORFEITED SHARES. In the event shares of
Restricted Stock are forfeited by a Recipient hereunder, such shares shall be
returned to the Association and shall be held and accounted for by the
Association pursuant to the terms of the Plan until such time as the Committee
re-awards such shares to another Recipient, in accordance with the terms of the
Plan and the applicable state and federal laws, rules and regulations.
6. TERMS AND CONDITIONS OF RESTRICTED STOCK
The Committee shall have full and complete authority, subject to the
limitations of the Plan, to grant awards of Restricted Stock and, in addition to
the terms and conditions contained in paragraphs 6.01 through 6.09 of this
Section 6, to provide such other terms and conditions (which need not be
identical among Recipients) in respect of such Awards, and the vesting thereof,
as the Committee shall determine.
6.01 GENERAL RULES. Unless the Committee shall specifically state
to the contrary at the time a Restricted Stock Award is granted, Restricted
Stock shall be earned by an Employee at the rate of twenty percent (20%) of the
aggregate number of shares covered by the Award at the end of each full twelve
months of consecutive employment with the Association or an Affiliate after the
date of grant of the Award; PROVIDED, HOWEVER, that the Committee may provide
for a less or more rapid earnings rate than set forth herein for any or all
Awards awarded subsequent to the date of this Plan, subject to the prior written
approval of the OTS, and provided further, that no shares shall be earned for
any year in which the Association is not meeting all of its fully phased-in
capital requirements. Restricted Stock Awards granted to Outside Directors shall
be earned by an Outside Director at the rate of twenty percent (20%) of the
aggregate number of shares covered by the Award at the end of each full twelve
months of consecutive employment with the Association or an Affiliate after the
date of grant of the Award. Subject to any such other terms and conditions as
the Committee shall provide, shares of Restricted Stock may not be sold,
assigned, transferred, pledged or otherwise encumbered by the Recipient, except
as hereinafter provided, during the Restricted Period. The Committee shall have
the
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authority, in its discretion, to accelerate the time at which any or all of the
restrictions shall lapse with respect to shares issued to Employees, or to
remove any or all of such restrictions, whenever it may determine that such
action is appropriate by reason of changes in applicable tax or other laws or
other changes in circumstances occurring after the commencement of such
Restricted Period.
6.02 CONTINUOUS SERVICE; FORFEITURE. Except as provided in Section
6.04 hereof, if a Recipient ceases to maintain Continuous Service for any reason
(other than death or Disability as provided in Section 6.03), unless the
Committee shall otherwise determine, all shares of Restricted Stock theretofore
awarded to such Recipient and which at the time of such termination of
Continuous Service are subject to the restrictions imposed by Section 6.01 shall
upon such termination of Continuous Service be forfeited and returned to Trust.
6.03 EXCEPTION FOR TERMINATION DUE TO DEATH OR DISABILITY.
Notwithstanding the general rule contained in Section 6.01, Restricted Stock
awarded to a Recipient whose employment with the Association or an Affiliate
terminates due to death or Disability, or any part thereof that has not
theretofore been earned, shall be deemed earned as of the Recipient's last day
of employment with the Association or an Affiliate.
6.04 EXCEPTION FOR TERMINATIONS AFTER A CHANGE IN CONTROL.
Notwithstanding the general rule contained in Section 6.01, all Restricted Stock
subject to a Restricted Stock Award held by a Recipient whose employment as an
Employee or service as an Outside Director of the Association or an Affiliate
terminates following a Change in Control of the Association or the Company shall
be deemed earned as of the Recipient's last day of employment or service with
the Association or an Affiliate.
6.05 REVOCATION FOR CAUSE. Notwithstanding anything hereinafter to
the contrary, the Board may by resolution immediately revoke, rescind and
terminate any Restricted Stock Award, or portion thereof, previously awarded
under this Plan, to the extent Restricted Stock has not been redelivered by the
Escrow Agent to the Recipient, whether or not yet earned, in the case of an
Employee whose employment is terminated by the Association or an Affiliate for
Cause, or who is discovered after termination of employment to have engaged in
conduct that would have justified termination for Cause.
6.06 RESTRICTED STOCK LEGEND. Each certificate in respect of shares
of Restricted Stock awarded under the Plan shall be registered in the name of
the Recipient and deposited by the Recipient, together with a stock power
endorsed in blank, with the Escrow Agent and shall bear the following (or a
similar) legend:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) contained in the Community Savings, F. A. 1995 Recognition
and Retention Plan. Copies of such Plan are on file in the offices of
the Secretary of Community Savings, F. A., 660 North U.S. Highway One,
North Palm Beach, Florida 33408-1808. "
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6.07 PAYMENT OF DIVIDENDS. After a Restricted Stock Award has been
granted but before such Award has been earned, the Recipient shall receive any
cash dividends or stock dividend paid with respect to such shares. Unless the
Recipient has made an election under Section 83(b) of the Code, any dividends so
paid on shares which have not yet been earned by the Recipient shall be treated
as compensation income to the Recipient when paid.
6.08 VOTING OF RESTRICTED SHARES. After a Restricted Stock Award
has been granted, the Recipient as owner of such shares shall have the right to
vote such shares.
6.09 DELIVERY OF EARNED SHARES. At the expiration of the
restrictions imposed by Section 6.01, the Escrow Agent shall redeliver to the
Recipient (or where the relevant provision of Section 6.02 applies in the case
of a deceased Recipient, to his Beneficiary, the certificate(s) and stock power
deposited with it pursuant to Section 6.04 and the shares represented by such
certificate(s) shall be free of the restrictions referred to Section 6.01.
7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
In the event of any change in the outstanding shares subsequent to the
effective date of the Plan by reason of any reorganization (other than the
Reorganization), recapitalization, stock split, stock dividend, combination or
exchange of shares, merger, consolidation or any change in the corporate
structure or shares of the Association, the maximum aggregate number and class
of shares as to which Awards may be granted under the Plan shall be
appropriately adjusted by the Committee, whose determination shall be
conclusive. Any shares of stock or other securities received, as a result of any
of the foregoing, by a Recipient with respect to Restricted Stock shall be
subject to the same restrictions and the certificate(s) or other instruments
representing or evidencing such shares or securities shall be legended and
deposited with the Association in the manner provided in Section 6.06 hereof.
8. ASSIGNMENTS AND TRANSFERS
No Award nor any right or interest of a Recipient under the Plan in any
instrument evidencing any Award under the Plan may be assigned, encumbered or
transferred except, in the event of the death of a Recipient, by will or the
laws of descent and distribution.
9. EMPLOYEE RIGHTS UNDER THE PLAN
No Employee shall have a right to be selected as a Recipient nor,
having been so selected, to be selected again as a Recipient and no Employee or
other person shall have any claim or right to be granted an Award under the Plan
or under any other incentive or similar plan of the Association or any
Affiliate. Neither the Plan nor any action taken thereunder shall be construed
as giving any Employee any right to be retained in the employ of the Association
or any Affiliate.
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10. WITHHOLDING TAX
Upon the termination of the Restricted Period with respect to any
shares of Restricted Stock (or at any such earlier time, if any, that an
election is made by the Employee under Section 83(b) of the Code, or any
successor provision thereto, to include the value of such shares in taxable
income), the Association shall have the right to require the Employee or other
person receiving such shares to pay the Association the amount of any taxes
which the Association is required to withhold with respect to such shares, or,
in lieu thereof, to retain or sell without notice, a sufficient number of shares
held by it to cover the amount required to be withheld. The Association shall
have the right to deduct from all dividends paid with respect to shares of
Restricted Stock the amount of any taxes which the Association is required to
withhold with respect to such dividend payments.
11. TREATMENT OF RESTRICTED STOCK IN THE EVENT OF CONVERSION
TRANSACTION
In the event that the Company converts to stock form in a Conversion
Transaction, any Restricted Stock shall be exchanged into shares of Common Stock
of the Stock Holding Company, PROVIDED, HOWEVER, that if for any reason such
shares are not to be exchanged, the Stock Holding Company shall, simultaneously
with the closing of the Conversion Transaction, purchase Restricted Stock for
cash equal to the fair market value of such Restricted Stock or Shares. Any
exchange of shares or cash payment for shares shall be subject to applicable
federal and state regulations and, if necessary, subject to the approval of the
appropriate regulatory authorities.
12. AMENDMENT OR TERMINATION
The Board of Directors of the Association may amend, suspend or
terminate the Plan or any portion thereof at any time, but (except as provided
in Section 6 hereof) no amendment shall be made without approval of the
stockholders of the Association which shall (i) materially increase the
aggregate number of shares with respect to which Awards may be made under the
plan, (ii) materially increase the aggregate number of shares which may be
subject to Awards to Recipients who are not Employees or (iii) change the class
of persons eligible to participate in the Plan; PROVIDED, HOWEVER, that no such
amendment, suspension or termination shall impair the rights of any Recipient,
without his consent, in any Award theretofore made pursuant to the Plan.
13. GOVERNING LAW
The Plan shall be governed by the laws of the State of Florida.
14. TERM OF PLAN
The Plan shall become effective upon its adoption by the Board of
Directors of the Association, following the approval of the Plan by
stockholders. It shall continue in effect for a term of fifteen years unless
sooner terminated under Section 12 hereof.
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