CHANGE IN CONTROL AGREEMENT

Exhibit 10.5

CHANGE IN CONTROL AGREEMENT

AGREEMENT by and between Colonial BancGroup, Inc., a Delaware corporation (the "Company"), and                      (the "Employee"), dated as of the          day of                      , 20          .

WHEREAS, the Board of Directors of the Company (the "Board") recognizes the possibility that a Change in Control (as hereinafter defined) of the Company could occur and that such an event could result in significant distraction of the Company’s key personnel because of the uncertainties inherent in such a situation; and

WHEREAS, the Board has determined that it is essential and in the best interest of the Company and its stockholders to be able to retain the services of the Employee notwithstanding the possibility of a Change in Control and to ensure the Employee’s continued dedication and efforts in such an event without undue concern for the Employee’s personal financial and employment security;

NOW, THEREFORE, in consideration of the respective agreements of the parties set forth herein, it is hereby agreed as follows:

1. Certain Definitions.

• (a) "Accrued Compensation" shall mean the sum of: (i) the Employee’s annual base salary through the Termination Date, to the extent not theretofore paid, (ii) reimbursement (in accordance with the Company’s expense reimbursement policy) for reasonable and necessary business expenses incurred by the Employee on behalf of the Company prior to the Termination Date, (iii) Employee’s accrued and unused vacation pay (in accordance with the Company’s vacation policy) to the extent not theretofore paid, and (iv) bonuses and incentive compensation, prorated through the Termination Date, to which the Employee is entitled under the terms of applicable bonus or incentive plans or awards maintained by the Company.

  (b) "Affiliate" shall mean any entity directly or indirectly, controlled by, controlling or under common control with the Company or any corporation or other entity acquiring, directly or indirectly, all or substantially all the assets and business of the Company, whether by operation of law or otherwise.

  (c) "Base Amount" shall mean the Employee’s annual base salary at the rate in effect at the date hereof or, if greater, at any time thereafter, determined without regard to any salary reduction or deferred compensation elections made by the Employee.

  (d) "Bonus Amount" shall mean the highest bonus or bonuses paid or payable to Employee under the Company’s Management Team Incentive Plan (or such similar

  successor plan as may be adopted by the Company and in which the Employee is a participant) in respect of any of the three (3) full fiscal years ended prior to the Termination Date or, if greater, the three (3) full fiscal years ended prior to the Change in Control.

  (e) "Cause" shall include, but is not limited to the Following:

  • • (i) the willful and continued failure of the Employee to perform substantially the Employee’s reasonably assigned duties with the Company or any of its Affiliates (other than any such failure resulting from incapacity due to physical or mental illness), which failure continued for a period of at least thirty (30) days after a written demand for substantial performance, signed by a duly authorized officer of the Company, has been delivered to the Employee specifying the manner in which the Employee has failed substantially to perform, or

      (ii) the Employee’s breach of fiduciary duty involving personal profit, commission of a felony or a crime involving fraud or moral turpitude, or material breach of any provision of this Agreement, or

      (iii) the willful engaging by the Employee in illegal conduct or gross misconduct which is materially injurious to the Company.

  Notwithstanding the foregoing, no termination of the Employee’s employment shall be for Cause until (i) there shall have been delivered to the Employee a copy of a written notice, signed by a duly authorized officer of the Company, indicating that the Employee was guilty of the conduct described in this Section 1(e) and specifying the particulars thereof in detail, and (ii) the Employee shall have been provided an opportunity to be heard in person by the Personnel and Compensation Committee of the Board.

  For purposes of this provision, no act or failure to act, on the part of the Employee, shall be considered "willful" unless it is done, or omitted to be done, by the Employee in bad faith or without reasonable belief that the Employee’s action or omission was legal, proper, and in the best interests of the Company. Any act, or failure to act, based upon authority and directives given pursuant to a resolution duly adopted by the Board or upon the lawful instructions of a senior officer of the Company or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Employee in good faith and in the best interests of the Company. Notwithstanding anything set forth in this Agreement to the contrary, no failure to perform by the Employee after a Notice of Termination is given to the Company by the Employee shall constitute Cause for the purposes of this Agreement.

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• (f) " Change in Control " shall mean any of the following events:

  • • (i) the acquisition by any "Person" (as the term "person" is used for the purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of direct or indirect beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of the combined voting power of the then-outstanding securities of the Company entitled to vote in the election of directors (the "Voting Securities"); or

      (ii) individuals who, as of the date hereof, constitute the Board (the "Incumbent Directors") cease for any reason to constitute at least a majority of the Board; provided, however , that any individual becoming a director subsequent to the date hereof whose election, or nomination for election, was approved by a vote of at least a majority of the Incumbent Directors then on the Board, or the Nominating and Corporate Governance Committee of the Board, shall be an Incumbent Director, unless such individual is initially elected or nominated as a director of the Company as a result of an actual or threatened election contest with respect to the election or removal of directors ("Election Contest") or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board ("Proxy Contest"), including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest; or

      (iii) The consummation of a merger, consolidation, reorganization, statutory share exchange, or similar form of corporate transaction involving the Company, the sale or other disposition of all or substantially all of the Company’s assets, or the acquisition of assets or stock of another entity by the Company (each a "Business Combination"), unless such Business Combination is a "Non-Control Transaction." A "Non-Control Transaction" is a Business Combination immediately following which the following conditions are met:

      • (A) the stockholders of the Company immediately before such Business Combination own, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then-outstanding voting securities entitled to vote in the election of directors of the corporation resulting from such Business Combination (including, without limitation, a corporation that as a result of such Business Combination owns the Company or all of substantially all of the Company’s assets or stock either directly or through one or more subsidiaries) (the "Surviving Corporation") in substantially the same proportion as their ownership of the Company Voting Securities immediately before such Business Combination;

        (B) at least a majority of the members of the board of directors of the Surviving Corporation were Incumbent Directors at the time of the Board’s approval of the execution of the initial Business Combination agreement; and

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• • • • (C) no person other than (i) the Company or any of its subsidiaries, (ii) the Surviving Corporation or its ultimate parent corporation, or (iii) any employee benefit plan (or related trust) sponsored or maintained by the Company immediately prior to such Business Combination beneficially owns, directly or indirectly, fifty percent (50%) or more of the combined voting power of the Surviving Corporation’s then-outstanding voting securities entitled to vote in the election of directors; or

      (iv) Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.

  Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any Person (the "Subject Person") acquired Beneficial Ownership of more than the permitted amount of the outstanding Voting Securities as a result of the acquisition of Voting Securities by the Company which, by reducing the number of Voting Securities outstanding, increases the proportional number of shares Beneficially Owned by the Subject Person, provided that if a Change in Control would occur (but for the operation of this sentence) and after such acquisition of Voting Securities by the Company, the Subject Person becomes the Beneficial Owner of any additional Voting Securities, then a Change in Control shall occur.

  (g) "Company" shall mean Colonial BancGroup, Inc. its successors and assigns.

  (h) "Disability" shall mean that the Employee has become eligible to receive benefits under any group long-term disability plan or policy maintained by the Company or any of its Affiliates that is by its terms applicable to the Employee.

  (i) "Effective Date" shall mean the first date on which a merger is consummated.

  (j) "Good Reason" shall mean the occurrence, after a Change in Control, of any of the following events or conditions:

  • • (i) a material adverse change in the Employee’s status, position or responsibilities as in effect immediately prior to such Change in