CHANGE OF CONTROL AGREEMENT
Exhibit
10.8
THIS
CHANGE OF CONTROL AGREEMENT (“Agreement”) is made this 21st day
of
November
2002,
by and
among ATLANTIC BANCGROUP, INC. (“Company”), OCEANSIDE BANK (“Bank”) and
Xxxxx
X. Xxxxxxx
(“Executive”). The Bank and the Company are collectively referred to herein as
the “Employer.”
INTRODUCTION
To
encourage the Executive to remain an employee of the Employer and to protect
the
Executive in the event of a Change of Control, the Employer desires to provide
a
change of control benefit to the Executive.
AGREEMENT
The
Employer and the Bank agree as follows:
Article
1
Definitions
Whenever
used in this Agreement, the following words and phrases shall have the meanings
specified:
1.1
“Base
Annual Compensation”
shall
mean the Executive’s average annualized compensation paid by the Employer, which
was includible in the Executive’s gross income during the most recent five
taxable years ending before the date of the Change of Control. This definition
covers all amounts includible in compensation and defined as the Executive’s
“base amount” under Section 280G of the Code.
1.2
“Change
of Control”
means an
event 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 (“Exchange Act”) or any successor disclosure item; provided that,
without limitation, such a Change in Control (as set forth in 12 U.S.C. Section
1841(a)(2) of the Bank Holding Company Act of 1956, as amended) shall be deemed
to have occurred if any person (as such term is used in Sections 13(d) and
14(d)
of the Exchange Act), other than any person who on the date hereof is a director
or officer of the Employer: (i) directly or indirectly, or acting through one
or
more other persons, owns, controls, or has power to vote 25% or more of any
class of the then outstanding voting securities of the Company or the Bank;
or
(ii) controls in any manner the election of the directors of the Company or
the
Bank. For purposes of this Agreement, a “Change of Control” shall be deemed not
to have occurred in connection with a reorganization, consolidation, or merger
of the Company or the Bank where the stockholders of the Employer, immediately
before the consummation of the transaction, will own over 50% of the total
combined voting power of all classes of stock entitled to vote of the surviving
entity immediately after the transaction.
1.3
“Code”
means
the Internal Revenue Code of 1986, as amended.
1.4 “Termination
for Cause”
means
termination because of Employee’s personal dishonesty, incompetence, willful
misconduct, material breach of fiduciary duty, 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
other
conduct which reflects poorly on Employer, as determined by the Board of
Directors in its sole discretion. In determining “incompetence,” the acts or
omissions shall be measured against standards generally prevailing in the
banking industry. No act, or failure to act on Employee’s part, shall be
considered “willful” unless done, or omitted to be done, by Employee not in good
faith and without reasonable belief that his action or omission was in the
best
interest of Employer; provided that any act or omission to act on Employee’s
behalf in reliance upon advice or written opinion of Employer’s counsel shall
not be deemed to be willful.
1.5 “Termination
of Employment”
means
that the Executive ceases to be employed by the Employer for any reason
whatsoever (including a resignation by Executive) other than of Termination
for
Cause or by death.
Article
2
Change
of Control Benefits
2.1 Change
of Control Benefits.
In the
event of a Termination of Employment within the three years following a Change
of Control, the Employer shall pay or provide tot the Executive the Change
of
Control benefits as described in this Article 2.
2.2 Amount
of Cash Benefit.
The
Change of Control cash benefit shall be an amount equal to 2.99 times the
Executive’s Base Annual Compensation at the date of the Change of Control, such
benefit not to exceed the excess parachute payment provisions under Section
280G
of the Code.
2.3 Payment
of Cash Benefit.
At the
election of the Executive, the Employer shall pay the Change of Control benefit
provided herein in either: (i) a lump sum to the Executive within 60 days of
a
Termination of Employment; or (ii) in 36 equal monthly installments beginning
on
the 30th
day
following a Termination of Employment.
2.4 Additional
Benefit.
As an
additional Change of Control benefit, for six months following a Termination
of
Employment, Employer shall continue to provide any health insurance benefits
to
Executive and his or her dependents, which were provided as of the date of
the
Change of Control.
Article
3
General
Limitations
3.1 Excess
Parachute Payment.
Notwithstanding any provision of this Agreement to the contrary, the Employer
shall not pay any benefit under this Agreement to the extent the payment of
the
benefit would impose an excise tax under the excess parachute rules of Section
280G of the Code.
3.2
Termination
for Cause.
Notwithstanding any provision of this Agreement to the contrary, the Employer
shall not pay any benefit under this Agreement in the event of a Termination
for
Cause.
Article
4
Amendments
and Termination
This
Agreement may be amended or termination only by a written agreement signed
by
the Employer and the Executive.
Article
5
Miscellaneous
5.1 Binding
Effect.
This
Agreement shall bind the Employer and the Executive, and their respective
beneficiaries, survivors, executors, successors, administrators and
transferees.
5.2 No
Guarantee of Employment.
This
Agreement is not an employment policy or contract. It does not give the
Executive the right to remain an employee of the Employer, nor does it interfere
with the Employer’s right to discharge the Executive. It also does not require
the Executive to remain an employee nor interfere with the Executive’s right to
terminate his or her employment at any time.
5.3 Non-Transferability.
With the
exception of transfer by the laws of devise and dissent, benefits under this
Agreement may not be sold, transferred, assigned, pledged, attached or
encumbered in any manner, and any such purported elimination shall be null
and
void.
5.4
Tax
Withholding.
The
Employer shall withhold any taxes that are required to be withheld from the
benefits provided under this Agreement.
5.5 Applicable
Law.
The
Agreement and all rights hereunder shall be governed by the laws of the State
of
Florida, except to the extent preempted by the laws of the United States of
America and venue for any action hereunder shall lie in Xxxxx County,
Florida.
5.6 Unfunded
Arrangement.
The
Executive is a general unsecured creditor of the Bank for the payment of the
benefits under this Agreement. The benefits represent the mere promise by the
Employer to pay such benefits under this Agreement. The rights to benefits
are
not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by
creditors.
5.7 Entire
Agreement.
This
Agreement constitutes the entire agreement between the Employer and the
executive as to the subject matter hereof. No rights are granted to the
Executive by virtue of this Agreement other than those specifically set forth
herein.
5.8 Administration.
The
Employer shall have powers which are necessary to administer this Agreement,
including but not limited to establishing rules and prescribing any forms
necessary or desirable to administer this Agreement.
IN
WITNESS WHEREOF, the Employer and the Executive have executed this Agreement
as
of the date first written above.
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ATLANTIC
BANCGROUP, INC.
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By:
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/s/ Xxxxx X. Xxxxxxxx | |
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Its:
|
President | |
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OCEANSIDE
BANK
|
||
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By:
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/s/ Xxxxx X. Xxxxxxxx | |
|
Its:
|
President | |
|
EXECUTIVE
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||
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By:
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/s/ Xxxxx X. Xxxxxxx | |
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Print
Name:
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Xxxxx X. Xxxxxxx | |
