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Exhibit
10.3
AMENDED AND
RESTATED
CHANGE IN CONTROL
AGREEMENT
This Amended and Restated
Agreement (“Agreement”) is entered into as of the 15th
day of September, 2006, by and between FIRST CAPITAL BANK (the
“Bank”) and WILLIAM W. RANSON (the
“Executive”) and replaces the Change in Control
Agreement between the parties dated as of 15 th , April, 2004.
1.
Purpose
The establishment and
maintenance of a quality management team is important in protecting
and enhancing the best interests of the Bank and its shareholders.
The Bank recognizes that the possibility of a Change in Control (as
defined herein) may arise and the uncertainty and questions which
it may raise among management may result in the departure or
distraction of management personnel to the detriment of the Bank
and its shareholders. Accordingly, the Board of Directors of the
Bank (the “Board”) has determined that appropriate
steps should be taken to reinforce and encourage the continued
attention and dedication of certain members of the management of
the Bank to their assigned duties without distraction in
circumstances arising from the possibility of a Change in Control
of the Bank. In particular, the Board believes it important, should
the Bank or its shareholders receive a proposal for transfer of
control of the Bank, that the Executive be able to assess and
advise the Board whether such proposal would be in the best
interests of the Bank and its shareholders and to take such other
action regarding such proposal as the Board might determine to be
appropriate, without being influenced by the uncertainties of the
Executive’s own situation. Nothing in this Agreement shall be
construed as creating an express or implied contract of employment
and, except as otherwise agreed in writing between the Executive
and the Bank, the Executive shall not have any right to be retained
in the employ of the Bank prior to or after a Change in Control of
the Bank. Accordingly, the Executive is an “at will”
employee of the Bank, and either party may terminate such
employment at any time for any reason, with our without cause,
subject to the provisions of this Agreement.
2. Term of
Agreement
The term of this Agreement
shall be deemed to have commenced on the date hereof (the
“Commencement Date”) and shall continue in effect until
the date that is six (6) months following the Termination Date
(as such term is hereinafter defined). Notwithstanding the
foregoing, in the event Executive becomes entitled to receive a
payment from the Bank in connection with a Change in Control
pursuant to Section 4 of this Agreement, this Agreement shall
continue in effect until such time as Executive has received full
payment of the amount to which Executive is entitled under
Section 4(a) of this Agreement.
3. Change in
Control
No benefits shall be payable
hereunder unless there shall have been a Change in Control of the
Bank as set forth below. For the purposes of this Agreement, a
“Change in Control” shall mean:
(a) The acquisition by an
individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) (a
“Person”), of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
the then outstanding shares of common stock of the Bank (the
“Outstanding Bank Common Stock”); provided, however,
that the following acquisitions shall not constitute a Change in
Control: (i) any acquisition directly from the Bank (excluding
an acquisition by virtue of the exercise of a conversion
privilege), (ii) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Bank, or
(iii) any acquisition by any corporation pursuant to a
transaction described in subsection (c) of this Section 3
if, upon consummation of the transaction, all of the conditions
described in subsection (c) are satisfied;
(b) Individuals who, as of
the date hereof, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute a majority of such
Board; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for
election by the Bank’s shareholders, was approved by a vote
of at least two-thirds of the directors then comprising the
Incumbent Board shall be considered as though such individual were
a member of the Incumbent Board, but excluding for this purpose any
such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the
Board; or
(c) Approval by the
shareholders of the Bank of either (1) a reorganization,
merger, share exchange or consolidation of the Bank by, with or
into any other corporation or (2) the sale or disposition of
all or substantially all of the assets of the Bank (any of the
foregoing transactions, a “Reorganization”); provided,
however, that approval by the shareholders of a Reorganization
shall not constitute a Change in Control if, upon consummation of
the Reorganization, each of the following conditions is
satisfied:
(i) more than 60% of the then
outstanding shares of common stock of the corporation resulting
from the Reorganization is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were beneficial owners of the outstanding Bank Common
Stock immediately prior to the Reorganization in substantially the
same proportions as their ownership, immediately prior to such
transaction, of the outstanding Bank Common Stock;
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(ii) no Person (excluding any
employee benefit plan (or related trust) of the Bank) beneficially
owns, directly or indirectly, 20% or more of either (1) the
then outstanding shares of common stock of the corporation
resulting from the transaction or (2) the combined voting
power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors;
and
(iii) at least a majority of
the members of the board of directors of the corporation resulting
from the Reorganization were members of the Incumbent Board at the
time of the execution of the initial agreement providing for the
Reorganization.
4. Termination in
Connection with Change in Control
(a) Termination
Payment . In the event Executive’s employment with the
Bank terminates or is terminated during (i) the six
(6) months immediately preceding a Change in Control, or
(ii) the six (6) months immediately following a Change in
Control, unless such termination in either case is or was
(A) because of the death of the Executive, (B) by the
Bank for Cause or Disability or (C) by the Executive other
than for Good Reason (all as such capitalized terms are hereinafter
defined), Executive shall be entitled to receive payment from the
Bank in an amount equal to two and 99/100 (2.99) times
Executive’s base salary immediately preceding the Date of
Termination, which amount shall be paid, at the Bank’s
option, either (x) in a lump sum, or (y) in equal
installments payable on the Bank’s regular pay days, over the
next thirty-six (36) months, without interest, beginning on
the next pay day following the later to occur of the Change in
Control or the Termination Date.
(b) Disability .
Termination by the Bank of the Executive’s employment based
on “Disability” shall mean termination because of the
Executive’s inability to perform his duties with the Bank on
a full time basis for 120 consecutive days or a total of at least
180 days in any twelve month period as a result of the
Executive’s incapacity due to physical or mental illness (as
determined by an independent physician selected by the
Board).
(c) Cause .
Termination by the Bank of the Executive’s employment for
“Cause” shall mean termination for (i) gross
incompetence, gross negligence, willful misconduct in office or
breach of a material fiduciary duty owed to the Bank or any
subsidiary or affiliate thereof; (ii) conviction of a felony,
a crime of moral turpitude or commission of an act of embezzlement
or fraud against the Bank or any subsidiary or affiliate thereof;
(iii) any material breach by the Executive of a material term
of this Agreement, including, without limitation, material failure
to perform a substantial portion of his duties and responsibilities
hereunder, or (iv) deliberate dishonesty or disloyalty of the
Executive with respect to the Bank or any subsidiary or affiliate
thereof.
(d) Good Reason . The
Executive shall be entitled to terminate his employment for
“Good Reason” as defined below. For purposes of this
Agreement, termination for “Good Reason” shall mean
termination based on:
(i) a material reduction by
the Bank in the Executive’s base salary;
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(ii) the failure by the Bank
to pay to the Executive any portion of his compensation or to pay
to the Executive any portion of an installment of deferred
compensation under any deferre
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