CAPITAL PURCHASE PROGRAM COMPLIANCE AGREEMENT
This Capital Purchase Program Compliance
Agreement (this “Agreement”) is entered into as of this 5th day of
December, 2008, by and among FPB Bancorp, Inc., a Florida corporation (the
“Corporation”), First Peoples Bank, a Florida state-chartered bank and
wholly-owned subsidiary of the Corporation (the “Bank”) and _______________ (the
“Executive”). The Corporation and the Bank are referred to in this Agreement
individually and together as the “Employer.”
WHEREAS, as a condition to
participation in the U.S. Department of the Treasury’s Troubled Assets Relief
Program (“TARP”) Capital Purchase Program (“CPP”), the compensation arrangements
of the Employer’s senior executive officers must comply with the U.S. Department
of the Treasury’s rules and guidance governing executive compensation of
participants in the CPP, which rules and guidance are currently set forth in
interim final rules appearing at 31 C.F.R. Part 30, as the rules and guidance
may be supplemented or amended from time to time after the date of this
Agreement; and
WHEREAS, the Executive is or
may be a senior executive officer, as that term is defined in the U.S.
Department of the Treasury’s rules and guidance governing executive compensation
of participants in the CPP.
NOW THEREFORE, in
consideration of these premises, the mutual covenants contained herein, and
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows.
ARTICLE
I
CAPITAL
PURCHASE PROGRAM COMPLIANCE
1.1. Recovery of Bonus and Incentive
Compensation. Any bonus or incentive compensation paid to the Executive
under any compensation arrangement between the Executive and the Employer shall
be subject to recovery by the Employer and shall be repaid by the Executive to
the Employer if, in the judgment of the Employer’s board of directors or the
board committee having jurisdiction over executive compensation, the
compensation was based on materially inaccurate financial statements or on any
other materially inaccurate performance criteria. The compensation shall be
repaid by the Executive to the Employer within 30 days after written demand by
the Employer or as soon thereafter as is practicable. The Executive’s
obligations under this section 1.1 shall survive termination of this Agreement
and shall be effective for as long as the Employer is a participant in and is
subject to the U.S. Department of the Treasury’s CPP rules and guidance, with
debt or equity of the Employer held by the U.S. Department of the Treasury. The
Executive’s obligations under this section 1.1. shall expire when the Employer
is no longer a participant in and subject to the CPP rules and guidance,
provided that the Executive shall have repaid all amounts for which a repayment
demand has been made by the Employer. The bonus and incentive compensation
subject to recovery by the Employer under this section 1.1 includes but is not
limited to cash compensation and stock option or other equity-based
compensation and any other bonus or incentive compensation paid under
any compensation arrangement between the Executive and the Employer, including
but not limited to an employment agreement, severance agreement, non qualified
deferred compensation agreement, equity-based award agreement, or short-term or
long-term incentive award or performance award arrangement, whether written or
unwritten and whether existing on the date of this Agreement or entered into
hereafter, which are referred to individually or collectively hereinafter as a
“Compensation Arrangement” or “Compensation Arrangements.”
1.2 Modification of Compensation
Arrangements. Despite any contrary provisions within any Compensation
Arrangement between the Executive and the Employer, the Employer’s board of
directors and the board committee having jurisdiction over executive
compensation shall have the authority unilaterally and without the Executive’s
consent to modify the Compensation Arrangements, including but not limited to
reducing or eliminating severance benefits payable under the arrangements, if in
the board’s or committee’s sole judgment the modification is necessary to comply
with the U.S. Department of the Treasury’s rules and guidance governing
executive compensation of participants in the CPP, which rules and guidance are
currently set forth in interim final rules appearing at 31 C.F.R. Part 30 (as
the rules and guidance may be supplemented or amended from time to time after
the date of this Agreement, referred to hereinafter as the “CPP Rules”). The
board or committee’s power to modify Compensation Arrangements shall be
effective for termination of the Executive’s employment occurring while the
Employer is subject to the CPP Rules. The board or committee’s action modifying
any Compensation Arrangements may but need not be in the form of a written
amendment or supplement of a Compensation Arrangement or in the form of a duly
adopted resolution. The board or committee’s power to modify Compensation
Arrangements shall expire when the Employer is no longer a participant in and
subject to the CPP Rules. Loss of the Employer’s compensation deduction
resulting from application of the CPP Rules shall not be a basis for
modification of Compensation Arrangements under this Section 1.2.
1.3 Waiver. The Executive hereby
acknowledges and agrees that, for as long as the Employer is a participant in
and is subject to the rules and guidance issued under the CPP, with debt or
equity held by the U.S. Department of the Treasury, the Employer will be bound
by the executive compensation and corporate governance requirements of section
1111 of the Emergency economic Stabilization Act of 2008 and any implementing
guidance or regulations issued by the Secretary of the U.S. Department of the
Treasury. The Executive hereby grants to the U.S. Department of the Treasury a
waiver releasing the U.S. Department of the Treasury from any claims that the
Employer or the Executive may otherwise have as a result of the issuance of any
regulations modifying the terms of benefits plans, arrangements, and agreements
to eliminate any provisions that would not be in compliance with the executive
compensation and corporate governance requirements of section 111 of the
Emergency Economic Stabilization Act of 2008 and any implementing guidance or
regulations issued by the Secretary of the Treasury.
continued
ARTICLE
2
MISCELLANEOUS
2.1 Successors and Assigns. This
agreement shall be binding upon the Employer and any successor to the Employer,
including any persons acquiring directly or indirectly all or substantially all
of the business or assets of the Employer by purchase, merger, consolidation,
reorganization, or otherwise, But this Agreement and the Employer’s obligations
under this Agreement are not otherwise assignable, transferable, or delegable by
the Employer.
2.2 Notices. Any notice under this
Agreement shall be deemed to have been effectively made or given in writing and
personally delivered, delivered by mail properly addressed in a sealed envelope,
postage prepaid by certified or registered mail, delivered by a reputable
overnight delivery service, or sent by facsimile. Unless otherwise changed by
notice, notice shall be properly addressed to the Executive if addressed to the
address of the Executive on the books and records of the Employer at the time of
the delivery of such notice, and properly addressed to the Employer if addressed
to FPB Bancorp, Inc., 0000 XX Xxxx Xx. Lucie Boulevard, Port St. Lucie, Florida
34952, Attention: Corporate Secretary.
2.3 Captions and Counterparts. The
captions in this Agreement are solely for convenience. The captions do not
define, limit, or describe the scope or intent of this Agreement. This Agreement
may be executive in several counterparts, each of which shall be deemed to be an
original but all of which together shall constitute one and the same
instrument.
2.4 Amendment and Waiver. Except
for modification of this Agreement made under section 1.2 for the purpose of
complying with the CPP Rules, whether the modifications are made by the
Employer’s board of directors or by the board committee having jurisdiction over
executive compensation, this Agreement may not be amended, released, discharged,
abandoned, changed, or modified, except by an instrument in writing signed by
each of the parties hereto. The failure of any party hereto to enforce at any
time any of the provisions of this Agreement shall not be construed to be a
waiver of any such provision nor affect the validity of this Agreement or any
part thereof or the right of any party thereafter to enforce each and every such
provision. No waiver of a breach of this Agreement shall be held to be a waiver
of any other or subsequent breach.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first written
above.
EXECUTIVE
FIRST PEOPLES BANK
_________________________
By: _____________________________
Xxxxx
X. Xxxxxx
Chief
Executive Officer
FPB BANCORP, INC.
By: _____________________________
Xxxxx
X. Xxxxxx
Chief
Executive Officer
