Exhibit 10.4
December 31, 2008
Mr. John Presley
533 Sleepy Hollow Road
Richmond, Virginia 23229
Employment
Agreement
Dear John:
This is to confirm our agreement
regarding your employment as Chief Executive Officer and Managing
Director of First Capital Bancorp, Inc. (“Bancorp”).
Bancorp and its wholly-owned subsidiary, First Capital Bank
(“FCB”), are collectively referred to herein as (the
“Bank”).
1. Title and Duties . You
will serve as Chief Executive Officer and Managing Director of
Bancorp and will carry out such duties as are normally attendant to
such positions and such other duties as may be designated by the
Board of Directors of the Bank. Although you will be jointly
responsible with Robert G. Watts, Jr. (“Watts”) for the
day-to-day operations of the Bank, it is contemplated that the
primary focus of your duties will be the Bank’s M & A
activity, income generation from present and new business lines,
and capital needs activities as described on Exhibit A
attached hereto.
2. Term . The initial term of
this Agreement shall commence on October 20, 2008, and shall
continue until terminated in accordance with the provisions of this
Agreement. You will serve as an “at will” employee of
the Bank and either party may terminate this Agreement at any time
for any reason, with or without cause. If the Bank terminates this
Agreement “for cause”, as hereinafter defined, it shall
be entitled to terminate the Agreement immediately upon providing
you with written notice thereof. If the Bank terminates this
Agreement “without cause”, as hereinafter defined, it
shall provide to you at least thirty (30) days prior written
notice. If you wish to terminate this Agreement for any reason, you
agree to provide the Bank at least thirty (30) days prior
written notice.
For the purposes of this Agreement,
termination “for cause” shall mean termination by the
Bank for any one or more of the following reasons:
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(1)
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your willful
misconduct, as determined by the Board of Directors of the Bank, in
its reasonable discretion;
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(2)
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your conviction
of a felony;
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(3)
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any act or
omission by you involving dishonesty, as determined by the Board of
Directors of the Bank, in its reasonable discretion;
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(4)
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any disloyalty
by you to the Bank, as determined by the Board of Directors of the
Bank, in its reasonable discretion;
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(5)
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any breach by
you of Section 5 of this Agreement; or
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Mr. John Presley
December 31, 2008
Page 2
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(6)
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any act or
omission by you causing damage to the reputation of the Bank, as
determined by the Board of Directors of the Bank, in its reasonable
discretion.
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For the purposes of this Agreement,
termination “without cause” shall mean any termination
by the Bank other than “for cause”.
3. Compensation .
(a) Base Salary . During the
term of this Agreement, you will receive a base salary of Two
Hundred Thousand Dollars ($200,000.00) per year, paid in bi-weekly
installments. Your annual base salary shall be subject to
adjustment at the discretion of the Board of Directors of the
Bank.
(b) Bonus Compensation . In
addition to the base salary provided above, you will be eligible
for bonus compensation in accordance with the foregoing:
(i) An annual incentive bonus in an
amount equal to 2% of the Bank’s annual net after tax
earnings up to $2,000,000.00 in such earnings shall be split
equally between you and Watts; and
(ii) An incentive bonus in an amount
equal to 3% of the Bank’s annual net after tax earnings in
excess of $2,000,000.00 in such earnings up to $3,000,000.00 in
such earnings shall be split equally between you and Watts;
and
(iii) The Bank’s Board of
Directors shall have the right and discretion to establish
additional incentive payments and other discretionary bonus
payments in connection with Bank earnings and attainment of other
performance goals, subject to the approval of the Board’s
Compensation Committee, adjustment and approval of financial
performance versus budget, and traditional “shareholder
value” measurements.
(c) Stock Option . You will
be entitled to receive a stock option (the “Option”) to
purchase 20,000 shares of Bancorp’s common stock under
Bancorp’s 2000 Stock Option Plan. The Option will vest pro
rata over a three-year period and will be evidenced by a Stock
Option Agreement between you and Bancorp.
(d) Compensation Upon
Termination .
(i) Subject to the provisions of
Sections 3(d)(ii) and 3(d)(iii) below, in the event the Bank
terminates your employment without cause, the Bank shall be
obligated to continue to pay you your base salary for a period of
twelve (12) months after termination, subject to the right of
the Board of Directors of the Bank to reduce such time period (but
not below six (6) months) in its reasonable discretion. In the
event the Bank terminates your employment for cause, or, subject to
the provisions of Section 3(d)(ii) below, if you elect to
terminate your employment, you shall be entitled to receive your
base salary only through the date of termination.
Mr. John Presley
December 31, 2008
Page 3
(ii) Notwithstanding anything set
forth in Section 3(d)(i) above to the contrary, in the event
the Bank or any successor entity to the Bank terminates your
employment without cause, or if you terminate your employment as a
result of a material change in your duties or
