Exhibit 10.6
CHANGE IN CONTROL
AGREEMENT
This Change in Control Agreement
(“Agreement”) is entered into as of the 1st day of
April, 2009, by and among FIRST CAPITAL BANK (the
“Bank”), and
,
(the “Officer”).
1. Purpose.
The Bank recognizes that the
possibility of a Change in Control (as defined herein) may arise
and that may result in distraction or departure of management which
would be to the detriment of the Bank. Accordingly, the Board of
Directors of the Bank (the “Bank’s Board”) has
determined that appropriate steps should be taken to encourage the
continued attention of management so that Officer can assess and
advise the Board on proposed transactions without being influenced
by uncertainties on management’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 Officer and the Bank, the Officer shall not have any
right to be retained in the employ of the Bank prior to or after a
Change in Control. Accordingly, the Officer 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 Officer 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 Officer
has received full payment of the amount to which Officer 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 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 30% or more of
the then outstanding shares of common stock of the Bank or First
Capital Bancorp, Inc., the sole shareholder of the Bank (the
“Holding Company”); provided, however, that the
following acquisitions shall not constitute a Change in Control:
(i) any acquisition directly from the Bank or the Holding
Company (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 the Holding Company, 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 Bank’s Board or the Holding
Company’s Board of Directors (in either case, an
“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 or the Holding
Company’s shareholders, was approved by a vote of at least
two-thirds of the directors then
comprising the Incumbent Board of the applicable
company shall be considered as though such individual were a member
of such 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 Incumbent
Board; or
(c) Approval by the shareholders of
the Bank or the Holding Company of either (1) a
reorganization, merger, share exchange or consolidation of the Bank
or the Holding Company by, with or into any other corporation or
(2) the sale or disposition of all or substantially all of the
assets of the Bank or the Holding Company (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 50% 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 common stock
of the Bank or the Holding Company, as applicable, immediately
prior to the Reorganization in substantially the same proportions
as their ownership, immediately prior to such transaction, of such
outstanding common stock;
(ii) no Person (excluding any
employee benefit plan (or related trust) of the Bank or the Holding
Company, as applicable) 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 of the Bank
or the Holding Company, as applicable, 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 Officer’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
Officer, (B) by the Bank for Cause or Disability or
(C) by the Officer other than for Good Reason (all as such
capitalized terms are hereinafter defined), Officer shall be
entitled to receive payment from the Bank in an amount equal to one
(1) times Officer’s annual base salary immediately
preceding the Date of Termination, which amount shall be paid in
equal installments payable on the Bank’s regular pay days,
over the next twelve (12) months, without interest, beginning
on the next pay day following the later to occur of the Change in
Control or the Termination Date, or as otherwise permitted under
the regulations promulgated under Section 409A of the Internal
Revenue Code (the “Code”).
(b) Disability . Termination
by the Bank of the Officer’s employment based on
“Disability” shall mean termination because of the
Officer’s inability to perform Officer’s duties
with
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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 Officer’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 Officer’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 Officer 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
Officer with respect to the Bank or any subsidiary or affiliate
thereof.
(d) Good Reason . The Officer
shall be entitled to terminate Officer’s 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 Officer’s annual base salary;
(ii) the failure by the Bank to pay
to the Officer any portion of Officer’s compensation or to
pay to the Officer any portion of an installment of deferred
compensation under any deferred compensation program of the Bank
within 10 days of the date such compensation is due (it being
understood and agreed that each annual bonus shall be paid no later
than the end of the third month of the year next following the year
for which the annual bonus is awarded, unless the Officer shall
elect to defer the receipt of such annual bonus);
(iii) the Bank’s requiring the
Officer to be based at any office that is greater than thirty-five
(35) miles from where the Officer’s office was
previously located, except for required travel on the Bank’s
business to an extent substantially consistent with the business
travel obligations which the Officer undertook on behalf of the
Bank prior to such time;
(iv) the failure by the Bank to
obtain an agreement reasonably satisfactory to the Officer from any
successor to assume and agree to perform this Agreement;
or
(v) the failure by the Bank to
continue in effect any Plan (as hereinafter defined) in which the
Officer is participating (or Plans providing the Officer with at
least substantially similar benefits) other than as a result of the
normal expiration of any such Plan in accordance with its terms, or
the taking of any action, or the failure to act, by the Bank which
would adversely affect the Officer’s continued participation
in any of such Plans on at least as favorable a basis to the
Officer as previously in place, or which would materially reduce
the Officer’s benefits in the future under any of such Plans
or deprive the Officer of any material benefit enjoyed by the
Officer. For purposes of this Agreement, “Plan” shall
mean any compensation plan or any employee benefit plan such as a
thrift, pension, profit sharing, medical, disability, accident,
life insurance plan or a relocation plan or policy or any other
plan, program or policy of the Bank intended to benefit
employees.
Notwithstanding the foregoing, prior
to the Officer’s voluntary termination for Good Reason, the
Officer must give the Bank written notice of the existence of any
condition set forth in clause (i) – (vi) above
within 90 days of such initial existence and the Bank shall have 30
days
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from the date of such notice in which to cure
the condition giving rise to Good Reason, if curable. If during
such 30-day period, the Bank cures the condition giving rise to
Good Reason, no benefits shall be due under Section 4(a) of
this Agreement with respect to such occurrence. If, during such
30-day period, the Bank fails or refuses to cure the condition
giving rise to Good Reason, the Employee shall be entitled to
benefits under Section 4(a) of this Agreement upon such
termination; provided such termination occurs within 24
