Exhibit 6.1
Restated Employment Agreement between Florida Savings Bank
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXHIBIT 6.1
RESTATED
FLORIDA SAVINGS BANK
EMPLOYMENT AGREEMENT
This AGREEMENT ("Agreement") originally entered into June 30, 1998 and
restated effective as of July 1, 2002 by and among Florida Savings Bank (the
"Bank"), a federally chartered stock savings bank, with its principal
administrative office at, ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Savings
Bancorp, Inc., a corporation organized under the laws of the State of Florida,
the holding company for the Bank (the "Holding Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
("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 term of this Agreement shall be: (i) the initial term, consisting
of the period commencing on the date of this Agreement (the "Effective Date")
and ending on June 30, 2005; plus (ii) at the end of the initial term, the term
of the Agreement shall be extended for one (1) consecutive thirty-six (36) month
term (the "Extended Term"); plus (iii) any and all extensions of the Extended
Term made pursuant to this Section 2, 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 Executive's performance annually and
the results of such review 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 $140,000 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 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,
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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.
(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.
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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)
two (2) 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
shall not, in the aggregate, exceed three times Executive's Average Annual
Compensation (as defined herein) 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 shall not
be reduced in the event Executive obtains other employment following termination
of employment.
5. CHANGE IN CONTROL.
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(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 ▇▇▇▇▇▇▇ ▇▇▇▇▇
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
▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 ▇▇▇▇▇▇ ▇▇▇▇▇, 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.
(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
two (2) times Executive's Base Salary (as defined
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herein) provided, however, that any payment under this provision and subsection
5(d) below shall not exceed three (3) times Executive's Average Annual
Compensation. 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. 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.
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
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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.
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.
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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 in effect, between
Executive and the Holding Company ("Holding Company Agreement"), 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. In no event shall the Executive be entitled to or
shall receive payments under this Agreement which would duplicate payments owed
to or received by the Executive under the Holding Company 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.
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.
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(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.
(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.
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(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.
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.
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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 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
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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.
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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 15/th/ day of January, 2003.
ATTEST: FLORIDA SAVINGS BANK
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Corporate Secretary Chairman and Chief Executive Officer
[SEAL]
ATTEST: FLORIDA SAVINGS BANCORP, INC.
(Guarantor)
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Corporate Secretary Chairman and Chief Executive Officer
[SEAL]
WITNESS: EXECUTIVE
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