EXHIBIT 10.2 AMENDED AND RESTATED EMPLOYMENT AGREEMENT AMONG THE COMPANY,
REPUBLIC SECURITY BANK AND ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AS DATED
JANUARY 27, 1999
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
"Agreement") is made and entered into as of January 27, 1999
by and among REPUBLIC SECURITY FINANCIAL CORPORATION, a business corporation
organized and operating under the laws of the State of Florida and having an
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Company"), REPUBLIC SECURITY BANK, a commercial bank organized and operating
under the laws of the State of Florida and having an office at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Bank"), and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, an individual residing at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(the "Executive"). The Agreement amends and restates in its entirety that
certain Employment Agreement by and between Republic Security Financial
Corporation and the Executive dated April 1, 1992, as amended February 1, 1998.
W I T N E S S E T H :
WHEREAS, the Executive has been elected as Senior Executive
Vice President and Chief Financial Officer of the Company and the Bank; and
WHEREAS, the Company and the Bank desire to assure for
themselves the continued availability of the Executive's services and the
ability of the Executive to perform such services with a minimum of personal
distraction in the event of a pending or threatened Change of Control (as
hereinafter defined); and
WHEREAS, the Executive is willing to serve the Company and the
Bank on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and conditions hereinafter set forth, the Company, the Bank and
the Executive hereby agree as follows:
SECTION 1. EMPLOYMENT.
The Company and the Bank agree to employ the Executive, and
the Executive hereby agrees to such employment, during the period and upon the
terms and conditions set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD; REMAINING UNEXPIRED EMPLOYMENT
PERIOD.
(a) The terms and conditions of this Agreement shall be and
remain in effect during the period of employment established under this section
2 ("Employment Period"). The Employment Period shall be for an initial term of
three years beginning on the date of this Agreement and ending on the third
anniversary date of this Agreement, plus such extensions, if any, as are
provided pursuant to section 2(b).
(b) Beginning on the date of this Agreement, the Employment
Period shall automatically be extended for one (1) additional day each day,
unless either the Company and the Bank, acting jointly, or the Executive, elects
not to extend the Agreement further by giving written notice to the other
parties, in which case the Employment Period shall end on the third anniversary
of the date on which such written notice is given. For all purposes of this
Agreement, the term "Remaining Unexpired Employment Period" as of any date shall
mean the period beginning on such date and ending on: (i) if a notice of
non-extension has been given in accordance with this section 2(b), the third
anniversary of the date on which such notice is given; and (ii) in all other
cases, the third anniversary of the date as of which the Remaining Unexpired
Employment Period is being determined. Upon termination of the Executive's
employment with the Company and the Bank for any reason whatsoever, any daily
extensions provided pursuant to this section 2(b), if not therefore
discontinued, shall automatically cease.
(c) Nothing in this Agreement shall be deemed to prohibit the
Company and the Bank from terminating the Executive's employment at any time
during the Employment Period with or without notice for any reason; PROVIDED,
HOWEVER, that the relative rights and obligations of the Company, the Bank and
the Executive in the event of any such termination shall be determined under
this Agreement.
SECTION 3. DUTIES.
The Executive shall serve as Senior Executive Vice President
and Chief Financial Officer of the Company and the Bank, having such power,
authority and responsibility and performing such duties as are prescribed by or
under the By-Laws of the Bank, or assigned by the Board of Directors of the
Company or the Bank or the President of the Company or the Bank, and otherwise
as are customarily associated with such position. The Executive shall devote his
full business time and attention (other than during weekends, holidays, approved
vacation periods, and periods of illness or approved leaves of absence) to the
business and affairs of the Company and the Bank and shall use his best efforts
to advance the interests of the Company and the Bank.
SECTION 4. CASH COMPENSATION.
In consideration for the services to be rendered by the
Executive hereunder, the Company and the Bank shall pay to Executive a salary at
an initial annual rate of ONE HUNDRED SEVENTY THOUSAND DOLLARS ($170,000),
payable in approximately equal installments in accordance with the Company's and
the Bank's customary payroll practices for senior officers. At least annually
during the Employment Period, the Board of Directors of the Company and the
Bank, or the Compensation Committees thereof, shall review the Executive's
annual rate of salary and may, in its discretion, approve an increase therein.
In no event shall the Executive's annual rate of salary under this Agreement in
effect at a particular time be reduced without his prior written consent. In
addition to salary, the Executive may receive other cash compensation from the
Company and the Bank for services hereunder at such times, in such amounts and
on such terms and conditions as the Board may determine from time to time. Such
amount shall generally be computed as a percentage (to be determined by the
mutual agreement of the Executive and the Company and the Bank) of the Company's
quarterly consolidated net income before taxes (excluding extraordinary items as
defined in APB #30 and excluding restructuring charges and other charges
relating to mergers, acquisitions or transactions of similar effect).
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
(a) During the Employment Period, the Executive shall be treated as an
employee of the Company and the Bank and shall be entitled to participate in and
receive benefits under any and all qualified or non-qualified retirement,
pension, savings, profit-sharing or stock bonus plans, any and all group life,
health (including hospitalization, medical and major medical), dental, accident
and long term disability insurance plans, and any other employee benefit and
compensation plans (including, but not limited to, any incentive compensation
plans or programs, stock option and appreciation rights plans and restricted
stock plans) as may from time to time be maintained by, or cover employees of,
the Company or the Bank, in accordance with the terms and conditions of such
employee benefit plans and programs and compensation plans and programs and
consistent with the Company's and the Bank's customary practices.
(b) The Company or the Bank shall own and pay the costs of premiums on
life insurance insuring the life of the Executive in an amount not less than
$200,000, and the Company or Bank shall designate the beneficiary of such policy
as such person or persons named by the Executive from time to time.
SECTION 6. INDEMNIFICATION AND INSURANCE.
(a) During the Employment Period, the Company and the Bank shall cause
the Executive to be covered by and named as an insured under any policy or
contract of insurance obtained by it to insure its directors and officers
against personal liability for acts or omissions in connection with service as
an officer or director of the Company and the Bank or service in other
capacities at the request of the Company or the Bank. The coverage provided to
the Executive pursuant to this section 6 shall be of the same scope and on the
same terms and conditions as the coverage (if any) provided to other officers or
directors of the Company and the Bank.
(b) To the maximum extent permitted under applicable law, during the
Employment Period, the Company and the Bank shall indemnify the Executive
against, and hold him harmless from, any costs, liabilities, losses and
exposures to the fullest extent and on the most favorable terms and conditions
that similar indemnification is offered to any director or officer of the
Company or the Bank or any subsidiary or affiliate of either of them.
SECTION 7. OTHER ACTIVITIES.
The Executive may serve as a member of the boards of directors
of such business, community and charitable organizations as he may disclose to
and as may be approved by the President of the Company or the Bank (which
approval shall not be unreasonably withheld); PROVIDED, HOWEVER, that such
service shall not materially interfere with the performance of his duties under
this Agreement. The Executive may also engage in personal business and
investment activities which do not materially interfere with the performance of
his duties hereunder; PROVIDED, HOWEVER, that such activities are not prohibited
under any code of conduct or investment or securities trading policy established
by the Company or the Bank and generally applicable to all similarly situated
executives.
SECTION 8. WORKING FACILITIES AND EXPENSES.
The Executive's principal place of employment shall be at the
Company's and the Bank's executive offices at the address first above written,
or at such other location within Palm Beach County or Broward County, Florida at
which the Bank shall maintain its principal executive offices, or at such other
location as the Company, the Bank and the Executive may mutually agree upon. The
Company and the Bank shall provide the Executive at his principal place of
employment with a private office, secretarial services and other support
services and facilities suitable to his positions with the Company and the Bank
and necessary or appropriate in connection with the performance of his assigned
duties under this Agreement. The Bank shall provide to the Executive for his
exclusive use an automobile owned or leased by the Bank and appropriate to his
position, to be used in the performance of his duties hereunder. All costs of
operation, maintenance and insurance shall be paid by the Bank. The Executive
shall account for the use and expenses of the automobile in accordance with the
policies and procedures of the Bank in effect from time to time. The Bank shall
reimburse the Executive for his ordinary and necessary business expenses,
including, without limitation, all expenses associated with his business use of
the aforementioned automobile, fees for memberships in such clubs and
organizations as the Executive and the Bank shall mutually agree are necessary
and appropriate for business purposes, and his travel and entertainment expenses
incurred in connection with the performance of his duties under this Agreement,
in each case upon presentation to the Bank of an itemized account of such
expenses in such form as the Bank may reasonably require.
SECTION 9. TERMINATION OF EMPLOYMENT WITH SEVERANCE BENEFITS.
(a) The Executive shall be entitled to the severance benefits
described herein in the event that his employment with the Company and the Bank
terminate during the Employment Period under any of the following circumstances:
(i) the Executive's voluntary resignation from employment
with the Company and the Bank within ninety (90) days following:
(A) the failure of the Board of Directors of the Company or
the Bank to appoint or re-appoint or elect or re-elect the
Executive to the offices of Senior Executive Vice President
and Chief Financial Officer (or a more senior office, if any)
of the Company and the Bank;
the expiration of a thirty (30) day period following the date
on which the Executive gives written notice to the Company and
the Bank of its material failure, whether by amendment of the
Company's or the Bank's Articles of Incorporation or By-laws,
action of the Company's or the Bank's Board of Directors or
the Company's or the Bank's stockholders or otherwise, to vest
in the Executive the functions, duties, or responsibilities
prescribed in section 3 of this Agreement as of the date
hereof;
(C) the expiration of a thirty (30) day period following the
date on which the Executive gives written notice to the
Company or the Bank of its material breach of any term,
condition or covenant contained in this Agreement (including,
without limitation, any reduction of the Executive's rate of
base salary in effect from time to time and any change in the
terms and conditions of any compensation or benefit program in
which the Executive participates which, either individually or
together with other changes, has a material adverse effect on
the aggregate value of his total compensation package),
unless, during such thirty (30) day period, the Company or the
Bank cures such failure in a manner determined by the
Executive, in his discretion, to be satisfactory; or
(D) the relocation of the Executive's principal place of
employment, without his written consent, to a location outside
of Palm Beach County or Broward County, Florida; or
(E) the failure of the stockholders of the Company or Bank to
elect or re-elect the Executive to the Board of Directors of
the Company or the Bank, respectively, or the failure of the
Board of Directors of the Company or the Bank (or the
nominating committees thereof) to nominate the Executive for
such election or re-election;
(ii) the termination of the Executive's employment with the
Company or the Bank for any other reason not described in section
10(a).
In such event, the Company or the Bank (in such proportions as they may mutually
agree upon) shall provide the benefits and pay to the Executive the amounts
described in section 9(b).
(b) Upon the termination of the Executive's employment with
the Company and the Bank under circumstances described in section 9(a) of this
Agreement, the Company and the Bank (in such proportions as they may mutually
agree upon) shall pay and provide to the Executive (or, in the event of his
death following such termination, to his estate):
(i) his earned but unpaid compensation as of the date of the
termination of his employment with the Company and the Bank, such
payment to be made at the time and in the manner prescribed by law
applicable to the payment of wages but in no event later than thirty
(30) days after termination of employment;
(ii) the benefits, if any, to which he is entitled as a former
employee under the employee benefit plans and programs and compensation
plans and programs maintained for the benefit of the Company's or the
Bank's officers and employees;
(iii) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long term disability
insurance benefits, in addition to that provided pursuant to section
9(b)(ii), and after taking into account the coverage provided by any
subsequent employer, if and to the extent necessary to provide for the
Executive, for a period of three years from the date his employment
terminates, coverage equivalent to the coverage to which he would have
been entitled under such plans (as in effect on the date of his
termination of employment, or, if his termination of employment occurs
after a Change of Control, on the date of such Change of Control,
whichever benefits are greater), if he had continued working for the
Company and Bank during the Remaining Unexpired Employment Period at
the highest annual rate of compensation achieved during that portion of
the Employment Period which is prior to the Executive's termination of
employment with the Company and the Bank;
(iv) within thirty (30) days following his termination of
employment with the Company and the Bank, a lump sum payment in an
amount equal to the salary that the Executive would have earned if he
had continued working for the Company and the Bank for a period of
three years from the date his employment terminates at the highest
annual rate of salary achieved during that portion of the Employment
Period which is prior to the Executive's termination of employment with
the Company and the Bank, such lump sum to be paid in lieu of all other
payments of salary provided for under this Agreement in respect of the
period following any such termination;
(v) within thirty (30) days following his termination of
employment with the Company and the Bank, a lump sum payment in an
amount equal to the excess, if any, of:
(A) the present value of the aggregate benefits to
which he would be entitled under any and all qualified and
non-qualified defined benefit pension plans maintained by, or
covering employees of, the Company or the Bank, if he were
100% vested thereunder and had continued working for the
Company and the Bank for a period of three years from the date
his employment terminates, such benefits to be determined as
of the date of termination of employment by adding to the
service actually recognized under such plans an additional
period equal to the Remaining Unexpired Employment Period and
by adding to the compensation recognized under such plans for
the most recent year recognized all amounts payable under
sections 9(b)(i), (iv), and (vii); over
(B) the present value of the benefits to which he is
actually entitled under such defined benefit pension plans as
of the date of his termination;
where such present values are to be determined using the mortality
tables prescribed under section 415(b)(2)(E)(v) of the Code and a
discount rate, compounded monthly, equal to the annualized rate of
interest prescribed by the Pension Benefit Guaranty Corporation
for the valuation of immediate annuities payable under terminating
single-employer defined benefit plans for the month in which the
Executive's termination of employment occurs ("Applicable PBGC Rate");
(vi) within thirty (30) days following his termination of
employment with the Company and the Bank, a lump sum payment in an
amount equal to the present value of the additional employer
contributions (or if greater in the case of a leveraged employee stock
ownership plan or similar arrangement, the additional assets allocable
to him through debt service, based on the fair market value of such
assets at termination of employment) to which he would have been
entitled under any and all qualified and non-qualified defined
contribution plans maintained by, or covering employees of, the Company
or the Bank, as if he were 100% vested thereunder and had continued
working for the Company and the Bank for a period of three years from
the date his employment terminates at the highest annual rate of
compensation achieved during that portion of the Employment Period
which is prior to the Executive's termination of employment with the
Company and the Bank, and making the maximum amount of employee
contributions, if any, required under such plan or plans, such present
value to be determined on the basis of a discount rate, compounded
using the compounding period that corresponds to the frequency with
which employer contributions are made to the relevant plan, equal to
the Applicable PBGC Rate;
(vii) within thirty (30) days following his termination of
employment with the Company and the Bank, a lump sum payment in an
amount equal to three times the higher of (A) the highest cash
incentive compensation or bonus (annualized, if paid for a period other
than annually) paid to the Executive during or accrued with respect to
the Executive for either (i) any of the two years immediately preceding
that in which, or (ii) the year in which, Executive's employment with
the Company and the Bank terminates, or (B) the highest cash incentive
compensation or bonus (annualized, if paid for a period other than
annually) so paid or accrued in respect of either (x) any of the two
years immediately preceding that in which, or (y) the year in which, a
Change of Control (as hereinafter defined) occurs.
The Company, the Bank and the Executive hereby stipulate that the
damages which may be incurred by the Executive following any such termination of
employment are not capable of accurate measurement as of the date first above
written and that the payments and benefits contemplated by this section 9(b)
constitute reasonable damages under the circumstances and shall be payable
without any requirement of proof of actual damage and without regard to the
Executive's efforts, if any, to mitigate damages. The Company, the Bank and the
Executive further agree that the Company and the Bank may condition the payments
and benefits (if any) due under sections 9(b)(iii), (iv), (v), (vi) and (vii) on
the receipt of the Executive's resignation from any and all positions which he
holds as an officer, director or committee member with respect to the Company,
the Bank or any subsidiary or affiliate of either of them.
SECTION 10. TERMINATION WITHOUT ADDITIONAL COMPANY OR BANK
LIABILITY.
(a) In the event that the Executive's employment with the
Company and the Bank shall terminate during the Employment Period on account of:
(i) the discharge of the Executive for "cause," which, for
purposes of this Agreement (I) prior to a Change of Control (as
hereinafter defined) shall mean: (A) gross negligence or willful
misconduct by the Executive in connection with his employment hereunder
or the business of the Company and the Bank; (B) the Executive's
misappropriation of the Company's or the Bank's assets or property; (C)
the Executive willfully fails or refuses to perform his duties under
this Agreement, or fails to comply with any material term, covenant or
condition contained herein; (D) the Executive breaches his fiduciary
duties to the Company or the Bank for personal profit; or (E) the
Executive's willful breach or violation of any law, rule or regulation
(other than traffic violations or similar offenses), or final cease and
desist order in connection with his performance of services for the
Company or the Bank; and (II), upon and after a Change of Control,
shall mean (A) the Executive intentionally engages in dishonest conduct
in connection with his performance of services for the Company or the
Bank resulting in his conviction of a felony; (B) the Executive is
convicted of, or pleads guilty or NOLO CONTENDERE to, a felony or any
crime involving moral turpitude; (C) the Executive willfully fails or
refuses to perform his duties under this Agreement and fails to cure
such breach within sixty (60) days following written notice thereof
from the Company or the Bank; (D) the Executive breaches his fiduciary
duties to the Company or the Bank for personal profit; or (E) the
Executive's willful breach or violation of any law, rule or regulation
(other than traffic violations or similar offenses), or final cease and
desist order in connection with his performance of services for the
Company or the Bank;
(ii) the Executive's voluntary resignation from employment
with the Company and the Bank for reasons other than those specified in
section 9(a) or 11(b);
(iii) the Executive's death; or
(iv) a determination that the Executive is eligible for
long-term disability benefits under the Bank's long-term disability
insurance program or, if there is no such program, under the federal
Social Security Act;
then the Company and the Bank shall have no further obligations under this
Agreement, other than the payment to the Executive (or, in the event of his
death, to his estate) of his earned but unpaid compensation as of the date of
the termination of his employment, and the provision of such other benefits, if
any, to which he is entitled as a former employee under the employee benefit
plans and programs and compensation plans and programs maintained by, or
covering employees of, the Company or the Bank; PROVIDED, HOWEVER, that, in the
event of the Executive's death, the Company or the Bank shall pay to his estate
an amount equal to three months' cash compensation within thirty days of the
appointment of the executor of such estate.
SECTION 11. TERMINATION UPON OR FOLLOWING A CHANGE OF CONTROL
(a) A Change of Control ("Change of Control") shall be deemed
to have occurred upon the happening of any of the following events:
(i) approval by the stockholders of the Company of a
transaction that would result in the reorganization, merger or
consolidation of the Company with one or more other persons, other than
a transaction following which:
(A) at least 50.1% of the common stock or equity
ownership interests of the entity resulting from such
transaction are beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) in substantially the
same relative proportions by persons who, immediately prior to
such transaction, beneficially owned (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) at least 50.1%
of the outstanding common stock or equity ownership interests
in the Company; and
At least 50.1% of the combined voting power of the
securities entitled to vote generally in the election of
directors of the entity resulting from such transaction are
beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) in substantially the same
relative proportions by persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) at least 50.1% of
the combined voting power of the securities entitled to vote
generally in the election of directors of the Company; and
No person, or persons acting in concert, beneficially own
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) 20% or more of the outstanding common stock or
equity ownership interests in, or 20% or more of the combined
voting power of the securities entitled to vote generally in
the election of directors of, the entity resulting from such
transaction; and
At least a majority of the members of the board of
directors of the entity resulting from such transaction are
individuals who were described in sections 11(a)(iv)(A) or (B)
of this Agreement as of the date of execution of the initial
definitive agreement providing for such transaction (or, if
earlier, as of the date on which the Board of Directors of the
Company authorized such transaction).
(ii) the acquisition of all or substantially all of the assets
of the Company or beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of the
outstanding securities or of the combined voting power of the
outstanding securities of the Company entitled to vote generally in the
election of directors by any person or by any persons acting in
concert, or approval by the stockholders of the Company of any
transaction which would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Company, or
approval by the stockholders of the Company of a plan for such
liquidation or dissolution; or
(iv) the occurrence of any event if, immediately following
such event, at least 50% of the members of the board of directors of
the Company do not belong to any of the following groups:
(A) individuals who were members of the Board of the
Company on the date of this Agreement; or
(B) individuals who first became members of the Board
of the Company after the date of this Agreement either:
(I) upon election to serve as a member of
the Board of directors of the Company by affirmative
vote of three-quarters of the members of such Board,
or of a nominating committee thereof, in office at
the time of such first election; or
(II) upon election by the stockholders of
the Company to serve as a member of the Board of the
Company, but only if nominated for election by
affirmative vote of three-quarters of the members of
the board of directors of the Company, or of a
nominating committee thereof, in office at the time
of such first nomination;
PROVIDED, HOWEVER, that such individual's election or
nomination did not result from an actual or threatened
election contest (within the meaning of Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents
(within the meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) other than by or on behalf
of the Board of the Company; or
(v) any event which would be described in section 11(a)(i),
(ii), (iii) or (iv) if the term "Bank" were substituted for the term
"Company" therein.
In no event, however, shall a Change of Control be deemed to
have occurred as a result of any acquisition of securities or assets of the
Company, the Bank, or a subsidiary of either of them, by the Company, the Bank,
or a subsidiary of either of them, or by any employee benefit plan maintained by
any of them. For purposes of this section 11(a), the term "person" shall have
the meaning assigned to it under sections 13(d)(3) or 14(d)(2) of the Exchange
Act.
(b) In the event of a Change of Control, the Executive shall
be entitled to the payments and benefits contemplated by section 9(b) in the
event of his termination of employment with the Bank under any of the
circumstances described in section 9(a) of this Agreement or under any of the
following circumstances:
(i) resignation, voluntary or otherwise, by the Executive at
any time during the Employment Period following his demotion, loss of
title, office or significant authority or responsibility, or following
any reduction in any element of his package of compensation and
benefits;
(ii) resignation, voluntary or otherwise, by the Executive at
any time during the Employment Period following any relocation of his
principal place of employment or any change in working conditions at
such principal place of employment which the Executive, in his
reasonable discretion, determines to be embarrassing, derogatory or
otherwise adverse;
(iii) resignation, voluntary or otherwise, by the Executive at
any time during the Employment Period following the failure of any
successor to the Company or the Bank in the Change of Control to
include the Executive in any compensation or benefit program maintained
by it or covering any of its executive officers, unless the Executive
is already covered by a substantially similar plan of the Company or
the Bank which is at least as favorable to him; or
(iv) resignation, voluntary or otherwise, for any reason
whatsoever within 90 days following the effective date of the Change of
Control, PROVIDED, HOWEVER, that if the Change of Control is of the
type described in Section 11(a) (1), such 90 day period shall not be
deemed to commence until the actual consummation of the transaction
approved by the stockholders.
SECTION 12. TAX LIMITATIONS.
(a) Notwithstanding any other provision of this Agreement, in
the event that any payment or benefit received or to be received by the
Executive in connection with a Change of Control of the Bank or the Company or
the termination of the Executive's employment (whether pursuant to the terms of
this Agreement or any other plan, arrangement or agreement with the Company or
the Bank, any person whose actions result in a Change of Control of the Company
or any person affiliated with the Company or the Bank 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 in part) by the Company, the Bank, an
affiliate or a person making such payment or providing such benefit as a result
of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"),
then, to the extent necessary to make such portion of the Total Payments
deductible (and after taking into account any reduction in the Total Payments
provided in such other plan, arrangement or agreement), the cash Severance
Payments shall first be reduced (if necessary, to zero); provided, however, that
the Executive may elect (at any time prior to the payment of amounts payable
hereunder) to have the noncash severance payments reduced (or eliminated) prior
to any reduction of the cash Severance Payments.
(b) For purposes of the limitation contained in subsection (a)
of this section 12, (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 of employment 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
the Executive and selected by the accounting firm which was, immediately prior
to the Change of Control of the Company or the Bank, the Company'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 280(G)(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 the Executive and the Bank and the Company in applying the terms of
this section 12, the aggregate "parachute payments" paid to of for the
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 the Executive shall have an obligation to pay the Bank upon demand an
amount equal to the sum of (i) the excess of the aggregate "parachute payments"
paid to or for the Executive's benefit over the aggregate "parachute payments"
that could have been paid to or for the 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 (a) hereof, and
the benefits under section 8(b)(iii) which remain payable after the application
of this section 12 are thereafter reduced pursuant thereto because of the
receipt by the Executive of substantially similar benefits, the Bank shall, at
the time of such reduction, pay to the Executive the lowest of (a) the amount of
the decrease made in the Severance Payments pursuant to this section 12, (b) the
amount of the subsequent reduction in such benefits, or (c) the maximum amount
which can be paid to the Executive without being, or causing any other payment
to be, nondeductible by reason of Section 280G of the Code.
SECTION 13. CONFIDENTIALITY.
Unless he obtains the prior written consent of the Company and
the Bank, the Executive shall keep confidential and shall refrain from using for
the benefit of himself, or any person or entity other than the Company or any
entity which is a subsidiary of the Company or of which the Company is a
subsidiary, any material document or information obtained from the Company, or
from its parent or subsidiaries, in the course of his employment with any of
them concerning their properties, operations or business (unless such document
or information is readily ascertainable from public or published information or
trade sources or has otherwise been made available to the public through no
fault of his own) until the same ceases to be material (or becomes so
ascertainable or available); provided, however, that nothing in this section 13
shall prevent the Executive, with or without the Company's consent, from
participating in or disclosing documents or information in connection with any
judicial or administrative investigation, inquiry or proceeding to the extent
that such participation or
disclosure is required under applicable law.
SECTION 14. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
The termination of the Executive's employment during the term
of this Agreement or thereafter, whether by the Bank or by the Executive, shall
have no effect on the rights and obligations of the parties hereto under the
Bank's qualified or non-qualified retirement, pension, savings, 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 Bank from time to time.
SECTION 15. HEALTH AND MAJOR MEDICAL INSURANCE
(a) Notwithstanding anything herein to the contrary, upon the
first to occur of (i) a Change of Control (excluding a Change of Control in
connection with which Executive enters into any employment agreement with the
Company or the acquiring entity with a term of at least three years), (ii)
termination of Executive's employment hereunder by the Company or Bank other
than for cause, or (iii) termination of Executive's employment by reason of
retirement at age 65 (or at age 55 through age 64 provided that a majority of
the Board of Directors of the Company confirms that this subsection 15(a) shall
be effective in connection with the retirement), the Company or the Bank shall
thereafter provide Executive with health and major medical insurance through the
date on which Executive shall be eligible to receive Medicare (or any successor
governmental health insurance program) and, after such eligibility date,
Medicare supplemental insurance for life. The Company or the Bank shall not
provide such health and medical insurance during any period, after a termination
of Executive's employment by the Company or Bank other than for cause, during
which Executive is employed by an employer which provides health and major
medical insurance in which Executive is qualified to participate. If insurance
is provided to Executive under this subsection 15(a), the Company's or the
Bank's obligation to provide Executive any such health or major medical
insurance otherwise referred to in this Agreement shall terminate.
(b) The Company and the Bank shall not be obligated to provide
any insurance pursuant to subsection 15(a) to the extent that the cost thereof
exceeds the amount which would accrue at the rate of $7,700 per annum from
October 1, 1995. In the event the cost of such insurance exceeds such accrual,
Executive, at his option, may continue the insurance by paying, at his own
expense, the amount in excess of such accrual.
SECTION 16. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding
upon the Executive, his legal representatives and testate or intestate
distributees, and the Company and the Bank and their respective 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 Company or the Bank may be
sold or otherwise transferred.
SECTION 17. NOTICES.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent,
instruction, objection or waiver, shall be in writing and shall be deemed to
have been given at such time as it is delivered personally, or five (5) days
after mailing if mailed, postage prepaid, by registered or certified mail,
return receipt requested, or one (1) day after it is sent by reputable overnight
delivery service, addressed to such party at the address listed below or at such
other address as one such party may by written notice specify to the other
party:
If to the Executive:
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If to the Company:
Republic Security Financial Corporation
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman & CEO
If to the Bank:
Republic Security Bank
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman & CEO
SECTION 18. INDEMNIFICATION FOR ATTORNEYS' FEES.
The Bank shall indemnify, hold harmless and defend the
Executive against reasonable costs, including legal fees, incurred by him in
connection with or arising out of any action, suit or proceeding in which he may
be involved, as a result of his efforts, in good faith, to defend or enforce the
terms of this Agreement.
SECTION 19. SEVERABILITY.
A determination that any provision of this Agreement is
invalid or unenforceable shall not affect the validity or enforceability of any
other
provision hereof.
SECTION 20. WAIVER.
Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
SECTION 21. COUNTERPARTS.
This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
SECTION 22. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Florida applicable to contracts
entered into and to be performed entirely within the State of Florida.
SECTION 23. HEADINGS AND CONSTRUCTION.
The headings of sections in this Agreement are for convenience
of reference only and are not intended to qualify the meaning of any section.
Any reference to a section number shall refer to a section of this Agreement,
unless otherwise stated.
SECTION 24. ENTIRE AGREEMENT; MODIFICATIONS.
This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and supersedes in its entirety any and
all prior agreements, understandings or representations relating to the subject
matter hereof, provided, however, that any options granted to the Executive in
any agreement entered into prior to the date hereof in any agreement styled as
an Employment Agreement shall remain available for exercise by the Executive in
accordance with the terms thereof. No modifications of this Agreement shall be
valid unless made in writing and signed by the parties hereto.
SECTION 25. SURVIVAL.
The provisions of sections 6, 9, 10, 11, 12, 13, 14, 18, 20,
22, 26, 27 and 28 shall survive the expiration of the Employment Period or
termination of this Agreement.
SECTION 26. EQUITABLE REMEDIES.
The Company, the Bank and the Executive hereby stipulate that
money damages are an inadequate remedy for violations of sections 6(a), or 13 of
this Agreement and agree that equitable remedies, including, without
limitations, the remedies of specific performance and injunctive relief, shall
be available with respect to the enforcement of such provisions.
SECTION 27. REQUIRED REGULATORY PROVISION.
(a) Notwithstanding anything herein contained to the contrary,
any payments to the Executive by the Company or the Bank, 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, 12 U.S.C.
ss.1828(k), and any regulations promulgated thereunder.
(b) Nothing in this Agreement shall be construed to subject
the Bank or its assets to any contractual obligation undertaken by the Company
hereunder or to liability for any breach by the Company.
IN WITNESS WHEREOF, the Company and the Bank have caused this
Agreement to be executed and the Executive has hereunto set his hand, all as of
the day and year first above written.
REPUBLIC SECURITY FINANCIAL CORPORATION
By:
Name: _________________________________________
Title: _________________________________________
REPUBLIC SECURITY BANK
By: ____________________________________________
Name: _________________________________________
Title: _________________________________________
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