Exhibit 6.1
FLORIDA SAVINGS BANK
THREE-YEAR EMPLOYMENT AGREEMENT
This AGREEMENT ("Agreement") is made effective as of June 30, 1998 by
and among Florida Savings Bank (the "Bank"), a federally chartered stock savings
bank, with its principal administrative office at, 0000 XX 000 Xxxxxx, Xxxxx,
Xxxxxxx, Xxxxxxx Savings Bancorp, Inc., a corporation organized under the laws
of the State of Florida, the holding company for the Bank (the "Holding
Company"), and Xxxxxx X. Xxxxxx ("Executive").
WHEREAS, the Bank wishes to assure itself of the services of Executive
for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Bank on a
full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, Executive agrees to
serve as President, Chief Operating Officer and Chief Lending Officer of the
Bank. Executive shall render administrative and management services to the Bank
such as are customarily performed by persons situated in a similar executive
capacity. During said period, Executive also agrees to serve as a member of the
Board of Directors of the Bank.
2. TERMS AND DUTIES.
(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. At the
end of the initial thirty-six (36) month term, the term of the Agreement shall
be extended for two (2) consecutive twenty-four (24) month terms unless
Executive elects not to extend the term of this Agreement by giving written
notice in accordance with Section 8 of this Agreement. The Board will review the
Agreement and Executive's performance annually for purposes of determining
whether to extend the Agreement and the rationale and results thereof shall be
included in the minutes of the Board's meeting. The Board shall give notice to
Executive as soon as possible after such review as to whether the Agreement is
to be extended.
(b) During the period of Executive's employment hereunder, except
for periods of absence occasioned by illness, 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 Bank 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 Bank, or materially affect the performance of Executive's
duties pursuant to this Agreement.
(c) Executive shall be entitled to three (3) weeks of vacation at
full pay for the first year of this Agreement. Commencing on the first
anniversary date of this Agreement, Executive shall be entitled to four (4)
weeks vacation for the duration of the term of this Agreement. The time for such
vacation shall be mutually agreed upon by the parties to this Agreement, and
must be taken within one (1) year after such vacation time is accrued. Executive
shall not be entitled to vacation pay in lieu of vacation, and any vacation time
not used shall be deemed waived, if said policy is instituted for all other
management level employees of the Bank.
(d) Notwithstanding anything herein to the contrary, Executive's
employment with the Bank may be terminated by the Bank or Executive during the
term of this Agreement, subject to the terms and conditions of this Agreement.
3. COMPENSATION AND REIMBURSEMENT.
(a) The Bank shall pay Executive as compensation a salary of
$104,000 per year ("Base Salary"). Base Salary shall include any amounts of
compensation deferred by Executive under any tax-qualified retirement or welfare
benefit plan or any other deferred compensation arrangement maintained by the
Bank. Such Base Salary shall be payable in accordance with the Bank's regular
payroll practices. During the period of this Agreement, Executive's Base Salary
shall be reviewed at least annually; the first such review will be made no later
than one year from the date of this Agreement. Such review shall be conducted by
the Board or by a Committee of the Board, delegated such responsibility by the
Board. The Committee or the Board may increase Executive's Base Salary. Any
increase in Base Salary shall become the "Base Salary" for purposes of this
Agreement. In addition to the Base Salary provided in this Section 3(a), the
Bank shall also provide Executive, at no premium cost to Executive, with all
such other benefits as are provided uniformly to permanent full-time employees
of the Bank. In addition, Executive shall be entitled to incentive compensation
and bonuses as provided in any plan or arrangement of the Bank in which
Executive is eligible to participate.
(b) Executive shall be entitled to participate in any employee
benefit plans, arrangements and perquisites substantially equivalent to those in
which Executive was participating or otherwise deriving benefit from immediately
prior to the beginning of the term of this Agreement, and the Bank will not,
without Executive's prior written consent, make any changes in such plans,
arrangements or perquisites which would materially adversely affect Executive's
rights or benefits thereunder; except to the extent such changes are made
applicable to all Bank employees on a non-discriminatory basis. Without limiting
the generality of the
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foregoing provisions of this Subsection (b), Executive shall be entitled to
participate in or receive benefits under all plans relating to stock options,
restricted stock awards, stock purchases, pension, thrift, supplemental
retirement, profit-sharing, employee stock ownership, group life insurance,
medical and other health and welfare coverage, education, cash or stock bonuses
that are now or hereafter made available by the Bank to its senior executives
and key management employees, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and arrangements. The
Bank agrees that it will institute a group health insurance plan, the benefits
of which shall be extended to Executive. The Bank agrees to pay all costs for
Executive's benefits and his dependents' participation in any benefit programs
established for which Executive is eligible, including, but not limited to, the
benefit plans listed in this paragraph. In addition to any other life insurance
purchased by the Bank, in its discretion, the Bank agrees to purchase a
renewable term life insurance policy on the life of Executive, the fact amount
of which shall be $500,000.00 and payable to a beneficiary of Executive's choice
subject, however, to Executive's ability to pass a physical examination by the
insurance carrier which does not have a substantial and material effect on the
premium amount, assuming standard rates of a nonsmoker. The insurance carrier
shall be chosen in the sole discretion of Executive and premiums on the policy
shall be paid by the Bank so long as Executive's employment is not terminated
pursuant to the provisions of this Agreement. Nothing paid to Executive under
any such plan or arrangement will be deemed to be in lieu of other compensation
to which Executive is entitled under this Agreement.
(c) The Bank shall pay or reimburse Executive for all reasonable
travel and other reasonable expenses incurred by Executive performing his
obligations under this Agreement and may provide such additional compensation in
such form and such amounts as the Board may from time to time determine. During
the term of this Agreement, the Bank shall provide Executive with a new
automobile. The Bank agrees to pay for all insurance required to be carried in
connection with the automobile's operations, including but not limited to
combined single limit liability coverage in the amount of $300,000 and uninsured
motorists coverage in the amount of $300,000. Executive agrees that the Bank
shall either buy or lease said automobile in its sole discretion. The Bank
agrees to reimburse Executive for any reasonable and necessary automobile
expenses including repairs and gas conditioned upon Executive's presentation of
proper vouchers for such expenses incurred by him in operating the automobile.
Upon termination of employment, Executive shall return the automobile to the
Bank.
The Bank agrees to obtain memberships in one local social club and one
local country club for the benefit of Executive subject to the approval of the
Chairman of the Board. Any reasonable expenses incurred at such clubs in order
to promote the business of the Bank shall be reimbursed by the Bank upon the
presentation of proper vouchers and such sums with other similar type expenses
not to exceed the limitations set forth by the Bank in its financial budget.
Executive's ability to enjoy the benefits of such memberships shall terminate
upon the termination of employment for cause. If termination is without cause,
all dues will be paid for one (1) year after termination. No expense
reimbursements other than membership dues or fees will be paid for the one (1)
year.
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(d) In addition to the foregoing, while Executive is serving as a
member of the Board of Directors, he shall be entitled to the standard
director's fee, as established by the Bank, to the same extent as other
directors of the Bank.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein
defined) during Executive's term of employment under this Agreement, the
provisions of this Section shall apply. As used in this Agreement, an "Event
of Termination" shall mean and include any one or more of the following: (i) the
termination by the Bank of Executive's full-time employment hereunder for any
reason other than a termination governed by Section 5(a) hereof, or Termination
for Cause, as defined in Section 7 hereof; (ii) Executive's resignation from
the Bank's employ upon any (A) failure to elect or reelect or to appoint or to
reappoint Executive as President and Chief Operating Officer and Chief Lending
Officer, unless consented to by Executive, (B) a material change in Executive's
function, duties or responsibilities, which change would cause Executive's
position to become one of lesser responsibility, importance or scope from the
position and attributes thereof described in Section 1 above, unless consented
to by Executive, (C) relocation of Executive's principal place of employment by
more than 30 miles from its location at the effective date of this Agreement,
unless consented to by Executive, (D) a material reduction in the benefits and
perquisites to Executive from those being provided as of the effective date of
this Agreement, unless consented to by Executive, (E) a liquidation or
dissolution of the Bank or Holding Company, or (F) breach of this Agreement by
the Bank. Upon the occurrence of any event described in clauses (A), (B), (C),
(D), or (E) above, Executive shall have the right to elect to terminate his
employment under this Agreement by resignation upon not less than sixty (60)
days prior written notice given within six full months after the event giving
rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 8, the Bank shall be obligated to pay
Executive, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be a sum equal to the sum of: (i)
one (1) times Executive's Base Salary in accordance with Section 3(a) of this
Agreement and (ii) all benefits, including health insurance coverage in
accordance with Section 3(b) for a period of one (1) year from the Date of
Termination; provided, however, that any payments pursuant to this subsection
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shall not, in the aggregate, exceed three times Executive's average annual
compensation for the five most recent taxable years that Executive has been
employed by the Bank or such lesser number of years in the event that Executive
shall have been employed by the Bank for less than five years. In the event the
Bank is not in compliance with its minimum capital requirements or if such
payments pursuant to this subsection (b) would cause the Bank's capital to be
reduced below its minimum regulatory capital requirements, such payments shall
be deferred until such time as the Bank or successor thereto is in capital
compliance. At the election of Executive, which election is to be made prior to
an Event of Termination, such payments shall be made in a lump sum as of
Executive's Date of Termination. In the event that no election is made, payment
to Executive will be made on a monthly basis in approximately equal installments
during the remaining term of the Agreement. Such payments
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shall not be reduced in the event Executive obtains other employment following
termination of employment.
5. CHANGE IN CONTROL.
(a) For purposes of this Agreement, a "Change in Control" of the
Bank or Holding Company shall mean an event of a nature that: (i) results in
a Change in Control of the Bank or the Holding Company within the meaning of
the Home Owners' Loan Act of 1933, as amended, the Federal Deposit Insurance
Act and the Rules and Regulations promulgated by the Office of Thrift
Supervision ("OTS") (or its predecessor agency), as in effect on the date hereof
(provided, that in applying the definition of change in control as set forth
under the rules and regulations of the OTS, the Board shall substitute its
judgment for that of the OTS); or (ii) without limitation such a Change in
Control shall be deemed to have occurred at such time as (A) any "person" (as
the term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of voting securities of the Bank or the Holding Company
representing 50% or more of the Bank's or the Holding Company's outstanding
voting securities or right to acquire such securities except for any voting
securities of the Bank purchased by the Holding Company and any voting
securities purchased by any employee benefit plan of the Bank or the Holding
Company, or (B) if Xxxxxxx Xxxxx transfers or sells 80% or more of his initial
stock ownership in the Bank or the Holding Company, except that this clause
shall not apply upon the death of Xxxxxxx Xxxxx, or (C) individuals who
constitute the Board on the date hereof (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof, 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 the Holding Company's stockholders
was approved by the same Nominating Committee serving under an Incumbent Board,
shall be, for purposes of this clause (C), considered as though he were a member
of the Incumbent Board, or (D) a plan of reorganization, merger, consolidation,
sale of all or substantially all the assets of the Bank or the Holding Company
or similar transaction occurs in which the Bank or Holding Company is not the
resulting entity; provided, however, that such an event listed above will be
deemed to have occurred or to have been effectuated upon the receipt of all
required regulatory approvals not including the lapse of any statutory waiting
periods. For purposes of this Section 5, the acquisition of 10% or more of the
voting securities of the Holding Company or the Bank by Xxxxxx Xxxxx, either
directly or indirectly, subsequent to the effective date of this Agreement will
not constitute a Change in Control and, as such, the Executive will not be
entitled payments set forth in Section 5(b) and 5(c) hereof.
(b) If a Change in Control has occurred pursuant to Section 5(a) or
the Board has determined that a Change in Control has occurred, Executive shall
be entitled to the benefits provided in paragraphs (c), and (d) of this Section
5 upon his subsequent termination of employment during the twelve month period
beginning on the effective date of the Change in Control due to: (1) Executive's
dismissal or (2) Executive's voluntary resignation following any demotion, loss
of title, office or significant authority or responsibility, material reduction
in annual compensation or benefits or relocation of his principal place of
employment by more than 30 miles from its location immediately prior to the
Change in Control, unless such termination is because of his death, disability,
retirement or termination for Cause.
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(c) Upon Executive's entitlement to benefits pursuant to Section
5(b), the Bank shall pay Executive, or in the event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be, a sum equal to
one (1) times Executive's Average Annual Compensation (as defined herein) for
the five (5) most recent taxable years that Executive has been employed by the
Bank or such lesser number of years in the event that Executive shall have been
employed by the Bank for less than five (5) years. Such "Average Annual
Compensation" shall include all taxable income paid by the Bank, including but
not limited to, Base Salary, commissions, and bonuses, as well as contributions
on Executive's behalf to any pension and/or profit sharing plan, retirement
payments, directors or committee fees and fringe benefits paid or to be paid to
Executive in any such year and payment of any expense items without
accountability or business purpose or that do not meet the Internal Revenue
Service requirements for deductibility by the Bank; provided, however, that any
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payment under this provision and subsection 5(d) below shall not exceed three
(3) times Executive's average annual compensation. In the event the Bank is not
in compliance with its minimum capital requirements or if such payments would
cause the Bank's capital to be reduced below its minimum regulatory capital
requirements, such payments shall be deferred until such time as the Bank or
successor thereto is in capital compliance. At the election of Executive, which
election is to be made prior to a Change in Control, such payment shall be made
in a lump sum as of Executive's Date of Termination. In the event that no
election is made, payment to Executive will be made in approximately equal
installments on a monthly basis over a period of twelve (12) months following
Executive's termination. Such payments shall not be reduced in the event
Executive obtains other employment following termination of employment.
(d) Upon Executive's entitlement to benefits pursuant to Section
5(b), the Bank will cause to be continued life, medical, dental and disability
coverage substantially identical to the coverage maintained by the Bank for
Executive prior to his termination at no premium cost to Executive, except to
the extent that such coverage may be changed in its application for all Bank
employees on a non-discriminatory basis. Such coverage and payments shall cease
upon the expiration of twelve (12) months following the Date of Termination.
6. CHANGE OF CONTROL RELATED PROVISIONS
Notwithstanding the provisions of Section 5, in no event shall the
aggregate payments or benefits to be made or afforded to Executive under said
paragraphs (the "Termination Benefits") constitute an "excess parachute payment"
under Section 280G of the Internal Revenue Code of 1986, as amended, or any
successor thereto, and in order to avoid such a result, Termination Benefits
will be reduced, if necessary, to an amount (the "Non-Triggering Amount"), the
value of which is one dollar ($1.00) less than an amount equal to three (3)
times Executive's "base amount", as determined in accordance with said Section
280G. The allocation of the reduction required hereby among the Termination
Benefits provided by Section 5 shall be determined by Executive.
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7. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of
Executive's personal dishonesty, incompetence, willful misconduct, any breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order or material
breach of any provision of this Agreement. Notwithstanding the foregoing,
Executive shall not be deemed to have been Terminated for Cause unless and until
there shall have been delivered to him a Notice of Termination which shall
include a copy of a resolution duly adopted by the affirmative vote of not less
than a majority of the members of the Board at a meeting of the Board called and
held for that purpose (after reasonable notice to Executive and an opportunity
for him, together with counsel, to be heard before the Board), finding that in
the good faith opinion of the Board, Executive was guilty of conduct justifying
Termination for Cause and specifying the particulars thereof in detail.
Executive shall not have the right to receive compensation or other benefits for
any period after the Date of Termination for Cause. During the period beginning
on the date of the Notice of Termination for Cause pursuant to Section 8 hereof
through the Date of Termination for Cause, stock options granted to Executive
under any stock option plan shall not be exercisable nor shall any unvested
awards granted to Executive under any stock benefit plan of the Bank, the
Holding Company or any subsidiary or affiliate thereof, vest. At the Date of
Termination for Cause, such stock options and related limited rights and any
unvested awards shall become null and void and shall not be exercisable by or
delivered to Executive at any time subsequent to such Termination for Cause.
8. NOTICE.
(a) Any purported termination by the Bank or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean the date specified in the
Notice of Termination (which, in the case of a Termination for Cause, shall not
be less than thirty days from the date such Notice of Termination is given.).
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Date of Termination shall
be the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected) and,
provided further, that the Date of Termination shall be extended by a notice of
dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence.
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Notwithstanding the pendency of any such dispute, in the event Executive is
terminated for reasons other than Termination for Cause, the Bank will continue
to pay Executive his Base Salary in effect when the notice giving rise to the
dispute was given until the earlier of: 1) the resolution of the dispute in
accordance with this Agreement or 2) the expiration of the remaining term of
this Agreement as determined as of the Date of Termination. Amounts paid under
this Section are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this
Agreement.
9. POST-TERMINATION OBLIGATIONS.
All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with this Section 9 for one (1) full year
after the earlier of the expiration of this Agreement or termination of
Executive's employment with the Bank. Executive shall, upon reasonable notice,
furnish such information and assistance to the Bank as may reasonably be
required by the Bank in connection with any litigation in which it or any of its
subsidiaries or affiliates is, or may become, a party.
10. SOURCE OF PAYMENTS.
(a) All payments provided in this Agreement shall be timely paid in
cash or check from the general funds of the Bank. The Holding Company, however,
unconditionally guarantees payment and provision of all amounts and benefits due
hereunder to Executive and, if such amounts and benefits due from the Bank are
not timely paid or provided by the Bank, such amounts and benefits shall be paid
or provided by the Holding Company.
(b) Notwithstanding any provision herein to the contrary, to the
extent that payments and benefits, as provided by this Agreement, are paid to or
received by Executive under the Employment Agreement dated June 30, 1998,
between Executive and the Holding Company, such compensation payments and
benefits paid by the Holding Company will be subtracted from any amounts due
simultaneously to Executive under similar provisions of this Agreement. Payments
pursuant to this Agreement and the Holding Company Agreement shall be allocated
in proportion to the services rendered and time expended on such activities by
Executive as determined by the Holding Company and the Bank on a quarterly
basis.
11. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to Executive of
a kind elsewhere provided. No provision of this Agreement shall be interpreted
to mean that Executive is subject to receiving fewer benefits than those
available to him without reference to this Agreement.
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12. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit
of, Executive and the Bank and their respective successors and assigns.
13. 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 as to any act other
than that specifically waived.
14. REQUIRED PROVISIONS.
In the event any of the foregoing provisions of this Section 14 are in
conflict with the terms of this Agreement, this Section 14 shall prevail.
(a) The Bank may terminate Executive's employment at any time, but
any termination by the Bank, other than Termination for Cause, shall not
prejudice Executive's right to compensation or other benefits under this
Agreement. Executive shall not have the right to receive compensation or other
benefits for any period after Termination for Cause as defined in Section 7
hereinabove.
(b) If Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank'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. (S) 1818(e)(3) or (g)(1); the Bank 's obligations under this contract
shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank may in its
discretion: (i) pay 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.
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(c) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank'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.
(S) 1818(e)(4) or (g)(1), all obligations of the Bank under this contract shall
terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act, 12 U.S.C. (S) 1813(x)(1) all obligations of the
Bank under this contract shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting parties.
(e) All obligations of the Bank under this contract shall be
terminated, except to the extent determined that continuation of the contract is
necessary for the continued operation of the institution: (i) by the Director of
the OTS (or his designee), the FDIC or the Resolution Trust Corporation, at the
time the FDIC enters into an agreement to provide assistance to or on behalf of
the Bank under the authority contained in Section 13(c) of the Federal Deposit
Insurance Act, 12 U.S.C. (S) 1823(c); or (ii) by the Director of the 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 Bank or when the
Bank is determined by the Director to be in an unsafe or unsound condition. Any
rights of the parties that have already vested, however, shall not be affected
by such action.
(f) Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C. Section
1828(k) and 12 C.F.R. Section 545.121 and any rules and regulations promulgated
thereunder.
15. REINSTATEMENT OF BENEFITS UNDER SECTION 15(b).
In the event Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice described in
Section 15(b) hereof (the "Notice") during the term of this Agreement and a
Change in Control, as defined herein, occurs, the Bank will assume its
obligation to pay and Executive will be entitled to receive all of the
termination benefits provided for under Section 5 of this Agreement upon the
Bank's receipt of a dismissal of charges in the Notice.
16. 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.
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17. 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.
18. GOVERNING LAW.
The validity, interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of Florida without regards
to principles of conflicts of law of this state, but only to the extent not
superseded by federal law.
19. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by Executive within fifty
(50) miles from the location of the Bank, in accordance with the rules of the
American Arbitration Bank then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of his right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
In the event any dispute or controversy arising under or in connection
with Executive's termination is resolved in favor of Executive, whether by
judgment, arbitration or settlement, Executive shall be entitled to the payment
of all back-pay, including salary, bonuses and any other cash compensation,
fringe benefits and any compensation and benefits due Executive under this
Agreement.
20. PAYMENT OF COSTS AND LEGAL FEES.
All reasonable costs and legal fees paid or incurred by Executive
pursuant to any dispute or question of interpretation relating to this Agreement
shall be paid or reimbursed by the Bank if Executive is successful on the merits
pursuant to a legal judgment, arbitration or settlement.
21. INDEMNIFICATION.
(a) The Bank shall provide Executive (including his heirs,
executors and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense and shall indemnify
Executive (and his heirs, executors and administrators) as permitted under
federal law against all expenses and liabilities reasonably incurred by him in
connection with or arising out of any action, suit or proceeding in which he may
be involved by reason of his having been a director or officer of the Bank
(whether or not he continues to be a director or officer at the time of
incurring such expenses or liabilities), such expenses and
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liabilities to include, but not be limited to, judgments, court costs and
attorneys' fees and the cost of reasonable settlements.
(b) Any payments made to Executive pursuant to this Section are
subject to and conditioned upon compliance with 12 U.S.C. Section 1828(k) and
12 C.F.R. Section 545.121 and any rules or regulations promulgated thereunder.
22. SUCCESSOR TO THE BANK
The Bank 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 Bank or the Holding Company,
expressly and unconditionally to assume and agree to perform the Bank's
obligations under this Agreement, in the same manner and to the same extent that
the Bank would be required to perform if no such succession or assignment had
taken place.
- 12 -
SIGNATURES
IN WITNESS WHEREOF, Florida Savings Bank and Florida Savings Bancorp,
Inc. have caused this Agreement to be executed and their seals to be affixed
hereunto by their duly authorized officers and directors, and Executive has
signed this Agreement, on the 2nd day of March, 1999.
ATTEST: FLORIDA SAVINGS BANK
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxx
----------------------------- ------------------------------------
Xxxxxxx Xxxxx
Chairman and Chief Executive Officer
[SEAL]
ATTEST: FLORIDA SAVINGS BANCORP, INC.
(Guarantor)
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxx
----------------------------- ------------------------------------
Xxxxxxx Xxxxx
Chairman and Chief Executive Officer
[SEAL]
WITNESS: EXECUTIVE
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
----------------------------- ------------------------------------
Xxxxxx X. Xxxxxx
