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EXHIBIT
10.4
FIRST PEOPLES
BANK
AMENDED &
RESTATED
CHANGE IN CONTROL
AGREEMENT
THIS AMENDED &
RESTATED CHANGE IN CONTROL AGREEMENT
(“Agreement”) is entered into by and between First
Peoples Bank (“Employer”) and Stephen J. Krumfolz
(“Employee”).
WHEREAS, in
recognition of Employee’s prior and continuing contribution
to Employer, Employer wishes to protect Employee’s position
therewith in the manner provided in the Agreement in the event of a
Change in Control of either the Employer or its holding company,
FPB Bancorp, Inc. (“FPB”).
NOW, THEREFORE,
in consideration of Employee’s position as the
Employer’s Senior Vice President and SBA Commercial Lender
and Employee’s contribution and responsibilities, Employer
hereby agrees to provide Employee with certain severance benefits
as specifically provided herein.
SECTION 1 –
DEFINITIONS
(a) “Change in
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 Employer or FPB: (i) directly or
indirectly, or acting in concert 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 Employer or FPB; or
(ii) controls in any manner the election of the directors of
Employer or FPB. For purposes of this Agreement, a “Change in
Control” shall be deemed not to have occurred in connection
with a reorganization, consolidation, or merger of Employer or FPB
whereby the stockholders of Employer or FPB, 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.
(b) Termination for
“just cause” means termination because of
Employee’s personal dishonesty, incompetence,
insubordination, misconduct or conduct which negatively reflects
upon the Employer, breach of fiduciary duty, intentional failure to
perform stated duties, willful violation of any law, rule, or
regulation (other than minor traffic violations or similar
offenses), or final cease-and desist order. 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 Employee’s 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.
(c) “Protected
Period” means the term of this Agreement and six months
following termination hereof if Employee is employed by Employer at
the time Employee first learns of a potential Change in Control,
which is in fact later consummated.
SECTION 2 – TERM OF
AGREEMENT
This Agreement shall remain
in effect for two years commencing on August 1, 2007, and
terminating on July 31, 2009, unless extended or terminated in
accordance with the terms and conditions set forth in
Section 8 herein.
SECTION 3 – PAYMENTS
TO EMPLOYEE UPON CHANGE IN CONTROL
If Employer terminates
Employee’s employment without “just cause,”
Employee shall be entitled to receive the termination benefits
described in Section 4 herein, if a Change in Control has
occurred within the Protected Period. Employee shall also be
entitled to receive such termination benefits described in
Section 4 herein, if within 90 days of a Change in Control
Employee elects to terminate his employment.
SECTION 4 –
TERMINATION BENEFITS
(a) Upon a termination
described in Section 3, Employer or its successor(s) shall pay
Employee, or in the event of Employee’s subsequent death,
Employee’s estate, as severance pay, a sum equal to two years
of Employee’s “highest annual base salary.” For
purposes of this Agreement, Employee’s “highest annual
base salary” shall mean the Employee’s highest base
salary, plus Employee’s average annual bonus during the three
years immediately preceding Employee’s termination. Such
payment shall be made in one lump sum payment within ten business
days of such a termination of employment.
(b) Upon a termination
described in Section 3, Employer or its successor(s) shall
continue to provide life, health, and disability coverage
(“Coverage”) comparable to the coverage maintained by
Employer for Employee prior to Employee’s severance. Such
Coverage shall cease upon the earlier of Employee obtaining new
employment and receiving Coverage through another employer, which
provides comparable coverage, or six-m
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