AMENDED & RESTATED EMPLOYMENT AGREEMENT BY AND BETWEEN FIRST PEOPLES BANK AND DAVID W. SKILES
AMENDED
& RESTATED
BY
AND BETWEEN
FIRST
PEOPLES BANK AND XXXXX X. XXXXXX
THIS
AMENDED & RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is entered
into this 5th day of September 2007, by and between First Peoples Bank (the
“Bank” or “Employer”) and Xxxxx X. Xxxxxx (“Employee”). Employer and
Employee are collectively referred to herein as the “Parties.”
RECITALS
WHEREAS,
Employer wishes to retain Employee as the Bank’s Chief Executive Officer and
President to perform the duties and responsibilities as are described in this
Agreement and as the Bank’s Board of Directors (“Board”) may assign to Employee
from time to time; and
WHEREAS,
Employee desires to serve as the Employer’s Chief Executive Officer and
President in accordance with the terms and provisions of this
Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereto represent, warrant, undertake,
covenant, and agree as follows:
OPERATIVE
TERMS
1.
Employment and Term. Employer shall employ
Employee pursuant to the terms of this Agreement to perform the services
specified in Section 2 herein. The term of employment under this
Agreement shall be for a period of three years, commencing on August 1, 2007
(“Effective Date”). On each anniversary of the Effective Date, this
Agreement shall be automatically renewed for one additional year until July
31,
2012, after which there will be no further renewals of this
Agreement. Either Party, however, may terminate the renewals of this
Agreement at any time by giving the other Party written notice of its intent
not
to renew. Upon such written notice, the Agreement shall expire at the
end of the remaining term.
The
Board
or its Compensation Committee shall, on at least an annual basis, review
Employee’s performance and this Agreement to determine if the Agreement’s
renewals should be continued. The Board’s or its Compensation
Committee’s decision shall be included in its meeting minutes.
2. Position,
Responsibilities, and Duties. During the term of this Agreement,
Employee shall devote all of his working time, attention, skill, and best
efforts to accomplish and faithfully perform all of the duties assigned to
Employee on a full-time basis. Employee shall, at all times, conduct himself
in
a manner that will reflect positively upon the Employer. Employee shall obtain
and maintain such licenses, certificates, accreditations, and professional
memberships and designations as the Employer may reasonably require. Employee
shall also have the specific duties prescribed in Schedule
A.
3.Compensation
and Benefits. During the term of this Agreement Employee
shall be compensated as described in Schedule B.
4.Payment
of Business Expenses. Employee is authorized to incur reasonable
expenses in performing his duties hereunder. Employer will reimburse Employee
for authorized expenses, according to the Employer’s established policies,
promptly after Employee’s presentation of an itemized accounting of such
expenditures.
5.
Illness or Incapacity.
(a)Duration: Employee
shall be paid his full Base Salary (as defined in Schedule B) for any
period of his illness or incapacity for up to six consecutive months; provided,
however, that Employer shall be responsible only for that portion of Employee’s
Base Salary which is not covered by any disability insurance provided through
the Employer. If Employee’s illness renders him unable to perform his duties
under this Agreement for a period longer than six consecutive months, at the
end
of such six-month period or any such time thereafter, Employer may terminate
Employee’s employment for Cause, as provided in Section 6(b). This
Agreement may be terminated by the Bank after any such six-month
period.
(b)
Continuation of Coverages: Notwithstanding
any contrary provision herein, following any termination of Employee’s
employment and this Agreement pursuant to Section 5(a), Employer will continue
to pay for any other life, health, and disability coverages for Employee
substantially identical to the coverages maintained prior to Employee’s
termination until the earlier of:
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(i)
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Employee’s
full time employment by another
Person;
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(ii)
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one
year after the date of such termination (with the exception of any
disability insurance coverage in place, which shall be governed by
the
terms of such policy); or
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(iii) the
date of Employee’s death.
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6.
Termination for Other than Illness or
Incapacity.
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(a)Death:
This Agreement shall immediately terminate upon Employee’s death, in which
instance Employer shall pay to Employee’s estate any compensation accrued, but
not yet paid.
(b)
Termination for Cause: The Employer shall
have the right, at any time, upon written notice of termination satisfying
the
requirements of Section 8 herein, to terminate Employee’s employment hereunder,
including termination for Cause as determined by the Board of Directors. A
termination for Cause shall be effective immediately upon effectiveness of
a
notice of termination. For the purpose of this Agreement, termination for
“Cause” shall mean termination for:
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(i)
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personal
dishonesty resulting (directly or indirectly) in gain to or personal
enrichment of Employee at the expense of Employer, breach of fiduciary
duty, violation of any law, rule, or regulation (other than minor
traffic
violations or similar situations), violation of a final cease-and-desist
order, or personal default on indebtedness which is not corrected
within
10 days from the date of default;
and/or
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(ii)
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insubordination,
conduct unbecoming of a senior officer of a financial institution
which
could have a material negative reflection on the Employer, or materially
failing to perform the duties stated in Schedule A of this
Agreement (i.e., materially failing to perform the essential duties
of
Employee’s position).
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In
the
event Employee is terminated for Cause for one of the reasons listed in (i)
or
(ii), Employee shall have no right to compensation or other benefits for any
period after such date of termination, other than compensation which was
accrued, but not yet paid, and in the case of termination pursuant to Section
5,
the continuation of coverages as described in Section 5(b).
In
the
event Employee is terminated for Cause for one of the reasons listed in (ii),
Employee shall have five days to appeal such termination in writing to the
Board. If Employee fails to appeal the termination within such five day period,
such termination shall become final and non-appealable.
If
Employee does appeal a termination for Cause for one of the reasons listed
in
(ii), Employee and Employer shall follow the dispute resolution procedures
described in Section 13(a) herein.
(c) Other
Termination by Employer: If Employee is terminated by
Employer other than for Cause, Employee’s right to severance benefits under this
Agreement shall be as set forth in Sections 6(f) and 6(g) herein.
(d)
Termination for Good Reason: Employee may
terminate his employment hereunder for Good Reason by delivering a notice of
termination (as defined in Section 8). For purposes of this Agreement, “Good
Reason” shall mean a failure by the Bank to comply with any material provision
of this Agreement, which failure has not been cured within 15 business days
after a notice of such noncompliance has been given by the Employee to the
Bank.
In the event Employee terminates his employment for Good Reason, he shall be
entitled to severance benefits as set forth in Sections 6(f) and
6(g).
(e)Termination
by Employee: Employee may terminate his employment hereunder and
this Agreement for any reason, by providing ninety (90) days notice of
termination (as provided in Section 8). In such event, Employee shall have
no
right to compensation or other benefits after the date of termination, except
that for which is accrued but yet unpaid.
(f) Severance
Payment: If Employee is entitled to severance benefits
under Sections 6(c) or 6(d), Employee shall be paid, as severance, the total
current Base Salary (as defined in Schedule B) due for a period of 12
months from the date of Employee’s termination. Any such payments shall be made
in substantially equal semi-monthly installments on the 15th and last
days of
each month until paid in full, and shall only be paid subject to Employee’s
execution of a full release in favor of the Employer for any potential claims
related to this Agreement or to Employee’s employment with the
Employer.
(g) Additional
Severance Benefits: If Employee is entitled
to severance benefits under Sections 6(c) or 6(d), the Employer shall maintain
in full force and effect, for the continued benefit of the Employee any Employee
benefit plans and programs in which the Employee was entitled to participate
immediately prior to the date of termination for the shorter of:
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(i)
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one
year; or
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(ii)
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the
period of time ending on the date Employee becomes eligible for
participation in comparable plans provided by another
employer.
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Provided,
however, that the Employee’s continued participation in the Employer’s benefit
plans and programs is possible under the general terms and provisions of such
plans and programs.
(h)Termination
Resulting from Change-in-Control: In the event of Employee’s
termination resulting from a Change-in-Control (as defined in Schedule
B), Employee shall be entitled to the Change-in-Control payment set forth
in Schedule B.
7.Regulatory
Provisions. Employer and Employee acknowledge that the laws and
regulations governing the Parties require that the employment of Employee be
governed by certain standards contained in those laws and regulations. To that
end, the Parties agree to be bound by the following provisions:
(a)
Suspension/Temporary Prohibition: If the
Employee is suspended and/or temporarily prohibited from participating in the
conduct and affairs of the Bank by a notice served under Sections 8(e) or (g)(1)
of the Federal Deposit Insurance Act (12 U.S.C. §1818(e)(3) and (g)(1)),
Employer’s obligations under this Agreement shall be suspended as of the date of
such service unless stayed by appropriate proceedings. If the charges and the
notice are dismissed, Employer may in its discretion:
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(i)
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pay
the Employee all or part of his compensation withheld while the
obligations under this Agreement are suspended;
and/or
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(ii)
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reinstate
(in whole or part) any of Employer’s obligations which were
suspended.
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(b)Permanent
Prohibition: If the Employee is removed and/or permanently
prohibited from participating in the conduct and affairs of the Bank by an
order
issued under Sections 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act
(12
U.S.C. §1818(e)(4) or (g)(1)), all of Employer’s obligations under this
Agreement shall terminate as of the effective date of the order, but the
Employee’s vested rights, if any shall not be affected.
(c)
Default Under FDIA: If the Bank is in default
(as defined in Section 3(x)(1) of the Federal Deposit Insurance Act), all
obligations under this Agreement shall terminate as of the date of default,
but
this subsection of this Agreement shall not affect the Employee’s vested rights
if any.
8.Notice
of Termination.
(a)Specificity:
Any termination of Employee’s employment by Employer or by Employee shall be
communicated by written notice of termination to the other Party. For
purposes of this Agreement, a “notice of termination” shall mean a dated notice
which shall:
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(i)
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indicate
the specific relevant termination provision in the
Agreement;
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(ii)
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set
forth in reasonable detail the facts and circumstances claimed to
provide
a basis for termination of Employee’s employment under the provision;
and
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(iii)
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set
forth the date of termination, which shall be not less than 30 days
nor
more than 45 days after such notice of termination is given, unless
another Section of the Agreement requires or permits a different
effective
date.
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(b)Delivery
of Notices: All notices or resignations given or required to be
given herein shall be in writing, sent by United States first-class certified
or
registered mail, postage prepaid, by way of overnight carrier, or by hand
delivery. If to Employee (or to the Employee’s spouse or estate upon the
Employee’s death) notice shall be sent to Employee’s last-known address, and if
to Employer, notice shall be sent to the Employer’s corporate headquarters. All
such notices shall be deemed made five days after having been deposited in
the
mail if sent via first-class certified or registered mail, or upon delivery
if
by hand delivery or if sent via overnight carrier. Either Party, by notice
in
writing, may change or designate the place for receipt of all such
notices.
9.Post-Termination
Obligations. After Employee’s termination, Employer shall pay to
Employee such payments and benefits as are required pursuant to this Agreement;
provided, however, any such payments shall be subject to Employee’s
post-termination cooperation. Such cooperation shall include the
following:
(a)
Employee shall furnish such information and assistance as may be
reasonably required by Employer in connection with any litigation or settlement
of any dispute between Employer and a customer or other third parties (including
without limitation serving as a witness in court or other
proceedings);
(b)
Employee shall provide such information or assistance to Employer
in
connection with any regulatory examination by any state or federal regulatory
agency;
(c)
Employee shall keep the Employer’s trade secrets and other proprietary
or confidential information secret to the fullest extent practicable, subject
to
compliance with all applicable laws;
(d)
Employee shall return any and all of Employer’s property, including,
but not limited to, keys, credit cards, manuals, and other written materials;
and
(e)
Employee shall execute a full release of all potential claims related
to this Agreement or to Employee’s employment with the Employer in favor of the
Employer.
Upon
submission of proper receipts, Employer shall promptly reimburse Employee for
any reasonable expenses incurred by Employee in complying with the provisions
of
this Section.
10. Indebtedness.
If during the term of this Agreement, Employee becomes indebted to Employer,
for
any reason, Employer may, at its election, set off and collect any sums due
Employer out of any amounts which Employer may owe Employee pursuant to the
terms of this Agreement. Furthermore, upon the termination of this Agreement,
all sums owed to Employer by Employee shall become immediately due and payable.
Employee shall pay all expenses and Attorneys’ Fees actually or necessarily
incurred by Employer in connection with any collection proceeding for Employee’s
indebtedness. Notwithstanding any of the foregoing, any indebtedness to
Employer, secured by a mortgage on Employee’s residence shall not be subject to
the foregoing provisions, but shall be governed by the loan documents evidencing
such indebtedness.
11. Maintenance
of Trade Secrets and Confidential Information. Employee shall use
his best efforts and utmost diligence to guard and protect all of the Employer’s
trade secrets and confidential information. Employee shall not, either during
the term, or after termination, of this Agreement, for whatever reason, use
in
any capacity, or divulge or disclose in any manner, to any person, the identity
of Employer’s customers, methods of operation, marketing or promotional methods,
processes, techniques, systems, formulas, or programs, trade secrets, or other
confidential information relating to Employer’s business. Upon
termination of this Agreement or Employee’s employment, for any reason, Employee
shall immediately return and deliver to Employer all records and papers and
all
materials which bear employment trade secrets or confidential
information.
12. Competitive
Activities.
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(a)Limitation
on Outside Activities: Employee agrees that during the term
of this Agreement, except with the express consent of the Board,
Employee
will not, directly or indirectly, engage in, participate in, become
a
director of, render advisory or other services to, become employed
by, or
make any financial investment in any firm, corporation, business
entity,
or business enterprise competitive with or to any business of the
Employer. Notwithstanding the foregoing, Employee shall not be precluded
or prohibited from owning passive investments, including investments
in
the securities of other financial institutions. Employee, however,
shall
be prohibited from making any investments or commitments of time,
accepting any positions or participating in any activities, which
cause
Employee to devote time to such investments, commitments, positions,
or
activities, which interfere with Employee’s position with and obligations
to the Bank.
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(b) Agreement
Not to Compete: Employee acknowledges that by virtue of his
employment with Employer, Employee will acquire an intimate knowledge
of
the activities and affairs of the Bank, including trade secrets and
other
confidential matters. Employee, therefore, agrees that during
the term of this Agreement, and for a period of six months following
the
termination of Employee’s employment hereunder, Employee shall not become
employed, directly or indirectly, whether as an employee, independent
contractor, consultant, or otherwise, with any federally-insured
financial
institution, financial holding company, bank holding company, or
other
financial services provider located in St. Lucie County, Florida,
or any
other county wherein a branch office of the Bank is located or
contemplated, or with anyone whose intent it is to organize another
such
company or entity located in any of the above described
counties.
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(c) Non-solicitation: Employee
further agrees that for a period of six months following the termination
of Employee’s employment hereunder for any reason, Employee shall not,
directly or indirectly:
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(i)
solicit the business of any then current customer (e.g., borrower
or
depositor) of the Bank, regardless of whether or not Employee was
responsible for generating such customer’s business for the Bank;
or
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(ii)
solicit any employees of Employer.
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Employee
hereby agrees that the duration of the anti-competitive covenants set forth
herein are reasonable, and that the geographic scope is not unduly
restrictive.
13.
Remedies for Breach.
(a)Mediation:
The Parties agree that, except for the specific remedies for injunctive relief
as contained in Section 13(b), in the event a dispute arises between the
parties, the parties agree that they shall participate in at least four hours
of
mediation with a Florida Supreme Court Mediator prior to commencing any
litigation over any controversy or claim arising out of or relating to this
Agreement or any breach hereof, including, without limitation, any claim that
this Agreement or any portion hereof is invalid, illegal, or otherwise voidable.
Employer agrees to bear the costs of the mediation. The mediation shall take
place at a mutually agreeable site in St. Lucie County, Florida.
(b)
Injunctive Relief: The Parties acknowledge
and agree that the services to be performed by Employee are special and unique
and that money damages cannot fully compensate Employer in the event of
Employee’s violation of the provisions of Sections 11 and 12 of this Agreement.
Thus, in the event of a breach of any of the provisions of such Sections,
Employee agrees that Employer, upon application to a court of competent
jurisdiction, shall be entitled to an injunction restraining Employee from
any
further breach of the terms and provisions of such Sections. Should Employer
prevail in an action seeking such an injunction, Employee shall pay all costs
and Attorneys’ Fees incurred by Employer in and relating to obtaining such
injunction. Employee’s sole remedy, in the event of the wrongful entry of such
injunction, shall be the dissolution of such injunction and recovery of
Attorneys’ Fees. Employee hereby waives any and all claims for damages by reason
of the wrongful issuance of any such injunction.
(c)
Cumulative Remedies: Notwithstanding any other provision of this
Agreement, the injunctive relief described in Section 13(b) herein and all
other
remedies provided for in this Agreement which are available to Employer as
a
result of Employee’s breach of this Agreement, are in addition to and shall not
limit any and all remedies existing at law or in equity which may also be
available to Employer.
14.
Assignment. This Agreement shall inure to the
benefit of and be binding upon the Employee, and to the extent applicable,
his
heirs, assigns, executors, and personal representatives, and to the Employer,
and to the extent applicable, its successors and assigns, including, without
limitation, any Person which may acquire control of all or substantially all
of
the Company’s assets and business, or with or into which the Company may be
consolidated or merged, and this provision shall apply in the event of any
subsequent merger, consolidation, or transfer.
15. Attorneys’
Fees. In the event that any claim or controversy
hereunder is the subject of any litigation or mediation between the Parties,
the
prevailing Party shall be entitled to an award of all reasonable costs,
including Attorneys’ Fees.
16.
Miscellaneous.
(a)Amendment
of Agreement: Unless as otherwise provided herein, this Agreement
may not be modified or amended except in writing signed by the
Parties.
(b)Certain
Definitions: For purposes of this Agreement, the following terms
whenever capitalized herein shall have the following meanings:
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(i)
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“Person”
shall mean any natural person, corporation, partnership (general
or
limited), trust, association, or any other business
entity.
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(ii)
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“Attorneys’
Fees” shall include the reasonable legal fees and disbursements charged
by
attorneys and their related travel and lodging expenses, court costs,
paralegal fees, etc. incurred in arbitration, mediation, settlement
negotiations, discovery, trial, appeal, or bankruptcy
proceedings.
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(c)
Headings for Reference Only: The headings of
the Sections and the Subsections herein are included solely for convenient
reference and shall not control the meaning or the interpretation of any of
the
provisions of this Agreement.
(d)Governing
Law/Jurisdiction: This Agreement shall be construed in accordance
with and governed by the laws of the State of Florida. Any litigation involving
the Parties and their rights and obligations hereunder shall be brought in
the
appropriate court in St. Lucie County, Florida.
(e)Severability:
If any of the provisions of this Agreement shall be held invalid
for any reason, the remainder of this Agreement shall not be affected thereby
and shall remain in full force and effect in accordance with the remainder
of
its terms.
(f)Entire
Agreement: This Agreement and all other documents incorporated or
referred to herein, contain the entire agreement of the Parties and there are
no
representations, inducements, or other provisions other than those expressed
in
writing herein. No modification, waiver, or discharge of any provision or any
breach of this Agreement shall be effective unless it is in writing signed
by
both Parties. A Party’s waiver of the other Party’s breach of any provision of
this Agreement, shall not operate, or be construed, as a waiver of any
subsequent breach of that provision or of any other provision of this
Agreement.
(g)
Waiver: No course of conduct by Employer or
Employee and no delay or omission of Employer or Employee to exercise any right
or power given under this Agreement shall:
(i)
impair the subsequent exercise of any right or power; or
(ii)
be
construed to be a waiver of any default or any acquiescence in, or consent
to,
the curing of any default while any other default shall continue to exist,
or be
construed to be a waiver of such continuing default or of any other right or
power that shall theretofore have arisen. Any power and/or remedy granted by
law
and by this Agreement to any Party hereto may be exercised from time to time,
and as often as may be deemed expedient. All such rights and powers shall be
cumulative to the fullest extent permitted by law.
(h)
Pronouns: As used herein, words in the
singular include the plural, and the masculine include the feminine and neuter
gender, as appropriate.
(i)
Recitals: The Recitals set forth at the
beginning of this Agreement shall be deemed to be incorporated into this
Agreement by this reference as if fully set forth herein and this Agreement
shall be interpreted with reference to and in light of such
Recitals.
(j)
Amendment and Restatement: This Agreement
amends and completely restates any other employment agreements previously
entered into by and between Employee and Employer. By executing this
Agreement, Employee completely releases the Bank from any obligations under
any
such other agreements.
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first written above.
EMPLOYEE FIRST
PEOPLES BANK
/s/
Xxxxx X.
Xxxxxx By: /s/
Xxxx X. Xxxxxx
Xxxxx
X.
Xxxxxx Xxxx
X. Xxxxxx
Chairman
of the Board
SCHEDULE
A
Employee’s
duties shall specifically include, but not be limited
to:
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1.
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providing
leadership and guidance with regards to the Bank’s activities so as to
ensure the short-term and long-term profitability of the Bank, and
the
equitable treatment and development of Bank
employees;
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2.
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making
recommendations to the Board on a wide range of subjects,
including: officer appointments and changes in organization;
lending activities; new or redesigned services; annual operating
budget;
salary and benefit administration; and physical renovations and
acquisitions;
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3.
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developing,
in conjunction with the Board and its committees, ongoing short and
long
term plans;
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4.
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proposing
new policies and procedures to accomplish strategic plan objectives
more
efficiently;
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5.
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providing
direct supervision over the Chief Lending Officer, Chief Financial
Officer, and Chief Operations
Officer;
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6.
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Overseeing
the Bank’s marketing efforts to increase the business of the Bank,
including increasing the Bank’s fee and interest
income;
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7.
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maintaining
a high quality management and employee
team;
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8.
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meeting
regularly with officers and other key staff, communicating policies
and
goals, and delegating responsibility for daily operations and
administration;
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9.
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keeping
the Board of Directors informed of financial results of operations,
the
status of business, banking competition, and new business
developments;
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10.
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developing,
reviewing, and proposing revisions to the Bank’s budgets to ensure that
its goals and objectives are being
met;
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11.
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monitoring
the Bank’s capital position and identifying and evaluating capital raising
alternatives;
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12.
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identifying
and evaluating branching opportunities for the
Bank;
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13.
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evaluating
the job performance of the Bank’s officers and reporting on such
performance to the Board;
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14.
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serving
as a member of the Board of Directors and on such Board committees
as the
Board may designate from
time-to-time;
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15.
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making
recommendations to the Board regarding salary adjustments and performance
bonuses for the Bank’s officers;
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16.
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coordinating
with the Bank’s attorneys, accountants, and other service providers to the
extent necessary to further the business of the Bank, keeping in
compliance with government laws and regulations, and otherwise keeping
the
Bank in as good a financial and legal posture as possible;
and
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17.
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any
other reasonable job-related duties or responsibilities that the
Board may
require from time to time.
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SCHEDULE
B
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1.
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Base
Salary: Employee shall receive an annual salary of
$165,000 (“Base Salary”). Employer may adjust the Base Salary at times
based upon the Board’s evaluation of Employee’s performance. In no event,
however, will the Base Salary be reduced without Employee’s written
concurrence.
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2.
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Performance
Bonuses: Employee may receive an annual performance
bonus at the discretion of the Board which shall not exceed 40% of
the
Base Salary.
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3.
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Vacation:
Employee is entitled to five weeks paid vacation time per year on
a
non-cumulative basis.
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4.
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Medical
Benefits and Other Plans: Employee shall be permitted to
participate in all medical and healthcare benefit plans provided
by
Employer to its other employees.
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5.
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Continuing
Education: Employer will reimburse Employee for
admission or attendance fees for pre-approved educational meetings
or
seminars offered by such organizations as the Florida Bankers
Association.
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6.
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Automobile
Allowance: Employee shall receive $550 per month for an
automobile allowance.
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7.
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Stock
Options: Employee shall be eligible to participate in
FPB Bancorp Inc.’s 2005 Stock Compensation Plan in the capacities of both
an employee and a director.
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8.
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Executive
Deferred Compensation: Employee
shall be compensated by the Employer a matching contribution of up
to 2.5%
of Employee’s Base Salary, pursuant to the Executive Deferred Compensation
Agreement entered into by and between the Employee and Employer,
dated
December 23, 2005.
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9.
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Split
Dollar Benefit: Employer shall be entitled to
life insurance benefits, $200,000 payable to Employee upon death,
provided
by the Employer, in accordance with the terms of the Split-Dollar
Agreement entered into by and between Employee and Employer dated
February
15, 2006.
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10.
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11.
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Other
Benefits: Employee shall be entitled to such
further benefits as described in the Bank’s Employee Manual, as may be
amended from time to time in the discretion of the
Bank.
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12.
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Change-in-Control
Payment: Upon a Change-in-Control of the Employer or FPB
Bancorp, Inc., Employee shall be entitled to a payment of 2.5 times
the
average of his Base Salary for the five years preceding the year
in which
the Change-in-Control occurs, in addition to any other benefits provided
for in this Agreement. A Change-in-Control of the Employer shall
mean the
first to occur of any one or more of the
following:
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(i)
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any
transaction, whether by merger, consolidation, asset sale,
recapitalization, reorganization, combination, stock purchase, tender
offer, reverse stock split, or otherwise, which results in the acquisition
of, or beneficial ownership (as such term is defined under rules
and
regulations promulgated under the Securities Exchange Act of 1934,
as
amended) by any person or entity or any group of persons or entities
(other than the group consisting of a majority of the directors currently
serving on the Board of Directors as of the date of this Agreement)
“acting in concert,” as contemplated by Section 225.41 of the Federal
Reserve Board’s Regulation Y, of 25% or more of the outstanding shares of
common stock of the Employer or FPB Bancorp, Inc., Employer’s parent
holding company, (referred collectively as the
“Company”);
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(ii)
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the
sale of all or substantially all of the assets of the
Company;
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(iii)
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the
liquidation of the Company or a material amount of Company’s
assets;
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(iv)
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a
change in the majority of the members of the Company’s Boards of
Directors, other than through new directors nominated or appointed
by the
Company’s respective Nominating Committees or Boards of Directors;
or
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(v)
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the
takeover or control of all or substantially all of the operations
of the
Company, through any of the means specified
above.
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