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Exhibit 10.4
Form of Consent
Letter
______________________
First Capital Bancorp, Inc.
4222 Cox Road, Suite 200
Glen Allen, VA 23060
Dear
:
First Capital Bancorp, Inc. (the
“ Company ”) anticipates entering into a
Securities Purchase Agreement (the “ Securities Purchase
Agreement ”), with the United States Department of
Treasury (“ Treasury ”) that provides for the
Company’s participation in the Treasury’s TARP Capital
Purchase Program (the “ CPP ”). If the Company
does not participate or ceases at any time to participate in the
CPP, this letter shall be of no further force and
effect.
For the Company to participate in
the CPP and as a condition to the closing of the investment
contemplated by the Securities Purchase Agreement, the Company is
required to establish specified standards for incentive
compensation to its senior executive officers and its next five
most highly-compensated employees and to make changes to its
compensation agreements. To comply with these requirements, and in
consideration of the benefits that you will receive as a result of
the Company’s participation in the CPP, you agree as
follows:
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(1)
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No Golden
Parachute Payments . The
Company is prohibiting any golden parachute payment to you during
any “CPP Covered Period.” A “ CPP Covered
Period ” is any period during which any obligation from
financial assistance provided under the CPP remains
outstanding.
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(2)
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Recovery of
Bonus and Incentive Compensation . Any bonus and incentive compensation paid to
you during a CPP Covered Period is subject to recovery or
“clawback” by the Company if the payments were based on
materially inaccurate financial statements or any other materially
inaccurate performance metric criteria.
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(3)
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Compensation
Program Amendments . Each
of the Company’s compensation, bonus, incentive and other
benefit plans, arrangements and agreements (including golden
parachute, severance and employment agreements) (collectively,
“ Benefit Plans ”) with respect to you is hereby
amended to the extent necessary to give effect to provisions
(1) and (2) and you agree to execute any such amendments
as maybe necessary to implement the agreements contained in this
letter.
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(4)
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Benefit Plan
Review. In addition, the
Company is required to review its Benefit Plans to ensure that they
do not (a) encourage senior executive officers to take
unnecessary and excessive risks that threaten the value of the
Company, (b) encourage manipulation of the Company’s
reported earnings to enhance
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compensation of any employees or
(c) comm
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