EXHIBIT 10.5
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 Marge Riley
(“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 Executive Vice President and Chief
Operating Officer 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 hereof, 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 her 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 and one half 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
