**Exhibit 10.2**

 

**PHANTOM**

**STOCK APPRECIATION RIGHTS**

**PLAN**

 

**FIRST CAPITAL HOLDING CORPORATION**

**Fernandina Beach, Florida**

 

**October 20, 2004**

 

 

**Financial Institution Consulting Corporation**

**700 Colonial Road, Suite 102**

**Memphis, Tennessee 38117**

**WATS: 1-800-873-0089**

**FAX: (901) 684-7414**

**(901) 684-7400**

 

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**PHANTOM STOCK APPRECIATION RIGHTS PROGRAM**

 

This PhantomStock Appreciation Rights Plan (the “Plan”), effective as of the 20thday of October, 2004, formalizes the understanding by and between FIRST CAPITALBANK HOLDING CORPORATION (the “Holding Company”), a Florida corporation , FIRSTNATIONAL BANK OF NASSAU COUNTY (the “Bank”), a federally-chartered commercial bank,and certain officers, hereinafter referred to as “Participant(s)”, who shall beselected and approved by the Bank to participate in this Plan by execution of aPhantom Stock Appreciation Rights Agreement (“Agreement”) in a form provided bythe Bank and attached as Exhibit A hereto.

 

**W I T N E S S E T H :**

 

**WHEREAS**, theParticipants are employed by the Bank; and

 

**WHEREAS**, the Bankrecognizes the valuable services heretofore performed for it by suchParticipants and wishes to encourage continued service; and

 

**WHEREAS**, theParticipants wish to be assured that they will be entitled to a certain amountof additional compensation for some definite period of time or after terminationof employment and wish to provide their beneficiaries with benefits from andafter death; and

 

**WHEREAS**, the Bankand the Participants wish to provide the terms and conditions upon which theBank shall pay such additional compensation to the Participants at a specifiedtime or after a termination of service and/or death benefits to theirbeneficiaries after death; and

 

**WHEREAS**, the Bankand the Participants intend this Plan to be considered an unfunded arrangement,maintained primarily to provide supplemental income for such Participants,members of a select group of management or highly compensated employees of theBank, for tax purposes and for purposes of the Employee Retirement Income SecurityAct of 1974, as amended; and

 

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**WHEREAS**, the Bankhas adopted this Phantom Stock Appreciation Rights Plan which controls allissues relating to the award of Phantom Stock Appreciation Rights as describedherein.

 

**NOW, THEREFORE,** inconsideration of the premises and of the mutual promises herein contained, theBank and the Participants agree as follows:

 

**SECTION I**

**DEFINITIONS**

 

When usedherein, the following words and phrases shall have the meanings below unlessthe context clearly indicates otherwise:

 

1.1                                 “AccruedBenefit” means that portion of the Supplemental Benefit which is required to beexpensed and accrued under generally accepted accounting principles(GAAP).  For purposes of determining a Participant’sAccrued Benefit, the excess of the Fair Market Value of a specified number ofshares of Phantom Stock on the date the Phantom Stock Appreciation Right isexercised over the Fair Market Value of a share of Phantom Stock on the datethe Phantom Stock Appreciation Right was granted as set forth in the Agreement shallbe expensed and accrued over the period from the grant of the Phantom Stock AppreciationRight until the end of the Measurement Period.

 

1.2                                 “Act”means the Employee Retirement Income Security Act of 1974, as amended from timeto time.

 

1.3                                 “Administrator”means the Committee.

 

1.4                                 “Agreement”shall mean the Phantom Stock Appreciation Rights Agreement entered into betweenthe Bank and the Participant in connection with the grant of an Award to theParticipant.

 

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1.5                                 “Award”means the grant of Phantom Stock Appreciation Rights hereunder.

 

1.6                                 “Bank”means FIRST NATIONAL BANK OF NASSAU COUNTY and any successor thereto.

 

1.7                                 “Beneficiary”means the person or persons (and their heirs) designated as Beneficiary in theParticipant’s Agreement to whom the deceased Participant’s benefits arepayable.  If no Beneficiary is sodesignated, then the Participant’s Spouse, if living, will be deemed the Beneficiary.  If the Participant’s Spouse is not living,then the Children of the Participant will be deemed the Beneficiaries and willtake on a per stirpes basis.  If thereare no living Children, then the Estate of the Participant will be deemed theBeneficiary.

 

1.8                                 “BenefitEligibility Date” shall be the date on which a Participant is entitled toreceive the maximum Supplemental Benefit available under the Plan.  It shall be the 1st day of the monthfollowing the expiration of the Participant’s Measurement Period as designatedin his or her Agreement.

 

1.9           “Board” shall mean the Board of Directors of the Bank.

 

1.10                           “Cause”means, in connection with a Participant’s termination of service, theft orembezzlement from the Bank, conviction of the Participant of a crime of moralturpitude, stealing of trade secrets or intellectual property owned by theBank, any act by the Participant in competition with the Bank, issuance of anorder for removal of the Participant by the Bank’s regulator, or any other act,activity or conduct of a Participant which in the opinion of the Board isadverse to the best interests of the Bank.

 

1.11                           “Change in Control” meanseach of the events set forth in any one of the following paragraphs:

 

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(a)                                  any “Person” (as suchterm is used in Section 13(d) and 14(d) of the Securities Exchange Act of 1934(“Exchange Act”) as in effect as of the date of this Plan) other than (i) the HoldingCompany, (ii) a trustee or other fiduciary holding securities under an employeebenefit plan of the Holding Company, (iii) an underwriter temporarily holdingsecurities pursuant to an offering of such securities, or (iv) a corporationowned, directly or indirectly, by the shareholders of the Holding Company insubstantially the same proportions as their ownership of shares of the HoldingCompany (any such person is hereinafter referred to as “Person”), is or becomesthe “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act),directly or indirectly, of securities of the Holding Company representing morethan 20% of the combined voting power of the Holding Company’s then outstandingsecurities (not including the securities beneficially owned by such Person anysecurities acquired directly from the Holding Company);

 

(b)                                 there is consummated amerger or consolidation of the Holding Company with or into any othercorporation, other than a merger or consolidation which would result in theholders of the voting securities of the Holding Company outstanding immediatelyprior thereto holding securities which represent, in combination with theownership of any trustee or other fiduciary holding securities under anemployee benefit plan of the Holding Company, immediately after such merger orconsolidation, more than 60% of the combines voting power of the votingsecurities of either the Holding Company or the other entity which survivessuch merger or consolidation or the parent of the entity which survives suchmerger or consolidation;

 

(c)                                  the shareholders ofthe Holding Company approve any plan or proposal for the liquidation ordissolution of the Holding Company or an agreement for the sale or dispositionby the Holding Company of all or substantially all the Holding Company’sassets; or

 

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(d)                                 during any period oftwo consecutive years (not including any period prior to the date of theAgreement) individuals who at the beginning of such period constitute the Boardof Directors and any new director (other than a director designated by a personwho has entered into an agreement with the Holding Company to effect atransaction described in (a), (b), or (c) above) whose election by the Board ornomination for election by the Holding Company’s shareholders was approved by avote of at least two-thirds (2/3) of the directors then still in office whoeither were directors at the beginning of the period or whose election ornomination for election was previously so approved, cease for any reason toconstitute a majority thereof.

 

(e)                                  a notice of anapplication is filed with the Florida Board of Financial Institutions or theFederal Reserve Board or any other bank or thrift regulatory approval (ornotice of disapproval) is granted by the Federal Reserve, Florida Board ofFinancial Institutions, the OCC, the Federal Deposit Insurance Corporation, orany other regulatory authority for permission to acquire control of the Companyor any of its banking subsidiaries; provided tht if the application is filed inconnection with a transaction which has been approved by the Board, then the Changein Control shall not be deemed to occur until consummation of the transaction.

 

For purposes of this Plan, where a change incontrol of the Holding Company results from a series of related transactions,the change in control of the Holding Company shall be deemed to have occurredon the date of the consummation of the first such transaction.

 

For purposes of paragraph (a) above, theshareholders of another corporation (other than the Bank or a corporationdescribed in clause (iv) of paragraph (a)) shall be deemed to constitute aPerson.  Further, it is understood by theparties that the sale, transfer, or other disposition of a subsidiary of the HoldingCompany, other than First National Bank of Nassau County or its successor,shall not constitute a change in control of the giving rise to payments orbenefits under this Plan.

 

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1.12                           “Children”means the Participant’s children, or the issue of any deceased Children, thenliving at the time payments are due the Children under this Plan.  The term “Children” shall include bothnatural and adopted Children.

 

1.13                           “Committee”means the Committee appointed by the Board to administer the Plan.  The Committee shall consist of (i) two ormore non-employee directors of the Bank or (ii) the entire Board.

 

1.14                           “EffectiveDate” of this Plan shall be October 20, 2004.

 

1.15                           “Estate” means the estate ofthe Participant.

 

1.16                           “Executive”means a senior executive officer of the Bank who is selected to participate inthe Plan by the Board of Directors of the Bank.

 

1.17                           “FairMarket Value” means with respect to Phantom Stock Appreciation Rights, the fairmarket value of a share of Phantom Stock, as determined annually by anIndependent Appraiser.  The Fair MarketValue of a share of Phantom Stock on the date of grant shall be set forth inthe Agreement entered into between the Bank and the Participant.  On each Valuation Date during the MeasurementPeriod, the Independent Appraiser shall determine the Fair Market Value of ashare of Phantom Stock.

 

1.18                           “HoldingCompany” means FIRST CAPITAL BANK HOLDING CORPORATION.

 

1.19                           “IndependentAppraiser” means the independent third party appraiser designated by the Committeeto value the shares of Phantom Stock.

 

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1.20                           “InterestFactor” means monthly compounding or discounting, as applicable, at six percent(6%) per annum.

 

1.21                           “MeasurementPeriod” shall mean the period commencing on the date of grant of the PhantomStock Appreciation Rights over which the award is valued.  The Measurement Period for each grant shall beset forth in the Participant’s Agreement.

 

1.22                           “Participant”means an individual who has been granted an Award under this Plan and who hasexecuted an Agreement with respect to such Award.

 

1.23                           “PayoutPeriod” means the time frame during which certain benefits payable hereundershall be distributed.  Unless otherwiseindicated herein, payments shall be made in equal monthly installmentscommencing within thirty (30) days following the occurrence of the event whichtriggers distribution and continuing for the payout period specified in theparticipant’s Agreement.  If an electionis made by the Participant to receive benefit payments in a lump sum, thePayout Period shall be one (1) month.

 

1.24                           “PhantomStock” shall mean a hypothetical share of stock of the Holding Company correspondingin value at any particular time to that proportionate interest in the FairMarket Value of the Holding Company of one hypothetical share of stock, asdetermined by an Independent Appraiser.

 

1.25                           “PhantomStock Appreciation Right” shall mean the right of the Participant to receivethe Accrued Benefit equivalent to the increase in value of Phantom Stock overthe Measurement Period.

 

1.26                           “PlanYear” shall mean the calendar year.

 

1.27                           “Spouse”means the individual to whom the Participant is legally married at the time ofthe Participant’s death.

 

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1.28                           “SupplementalBenefit” means an annual amount (before taking into account federal andstate income taxes), equal to the annuitized value (using the Interest Factor)of the Accrued Benefit payable in monthly installments throughout the PayoutPeriod.

 

1.29                           “ValuationDate” means for purposes of the first Plan Year, June 30th,2004.  The Valuation Date shall beDecember 31st of every subsequent Plan Year.

 

**SECTION II**

**ELIGIBILITY AND PARTICIPATION**

 

2.1                                 Eligibilityand Participation 

 

(a)           Eligibility – Eligibility toparticipate in the Plan shall be limited to those employees of the Bank who aredesignated by the Board of Directors and who are members of a select group of managementand highly compensated employees within the meaning of Department of LaborRegulation Section 2520.104-23.

 

(a)           Participation- An Executive’s participation in the Plan shall be effective upon completionof an Agreement by the Executive and acceptance of the Agreement by theCommittee.  Participation in the Planshall continue until such time as the Executive terminates employment with theBank, and as long thereafter as the Executive is eligible to receive benefitsunder this Plan.

 

**SECTION III**

**PHANTOM STOCK APPRECIATION RIGHTS AWARDS**

 

3.1                                 Grantof Awards.  The Participants who aredesignated to participate in the Plan shall receive from the Committee grantsof Awards of Phantom Stock Appreciation Rights. The number of Awards shall be set forth on Exhibit B attachedhereto.  No director, officer, or otheremployee of the Bank shall have any right to be granted an Award under thisPlan, as all

 

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Awards grantedhereunder are granted in the sole and absolute discretion of the Committee asprovided herein.

 

3.2                                 SubsequentGrants.  If specifically authorizedby the Board, the Committee may grant additional awards hereunder to personspreviously receiving awards hereunder or to newly elected or appointeddirectors or officers of the Bank on terms established by the Board.

 

3.3                                 PhantomStock Agreements.  All Awards shallbe evidenced by an Agreement between the Participant, the Bank, and the HoldingCompany.  Such Agreement shall state thenumber of Phantom Stock Appreciation Rights awarded to the Participant, shallbe signed by a designated officer or director of the Bank and the HoldingCompany and shall incorporate by reference the terms of the Plan.

 

3.4                                 Conversionof Phantom Stock Appreciation Rights to Supplemental Benefit.  On the last day of the Measurement Period,the Fair Market Value of the Phantom Stock shall be finally determined.  At the Benefit Eligibility Date, theParticipant’s Accrued Benefit shall be annuitized (using the Interest Factor)and paid in the form of the Supplemental Benefit over the Payout Period.

 

**SECTION IV**

**BENEFITS**

 

4.1                                 SupplementalBenefit.  If the Participant is inservice with the Bank until reaching the end of his or her Measurement Period,the Participant shall be entitled to the Supplemental Benefit.  Such benefit shall commence on theParticipant’s Benefit Eligibility Date and shall be payable in monthlyinstallments throughout the Payout Period. In the event the Participant dies at any time after his or herSupplemental Benefit becomes payable, but prior to completion of all such paymentsdue and owing hereunder, the Bank shall pay to the Participant’s Beneficiarythe monthly installments or, a continuation of the monthly installments, forthe remainder of the Payout Period.  TheParticipant’s Beneficiary may

 

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request inwriting that, within sixty (60) days of the Participant’s death, the amountpayable be paid in a lump sum.  The Boardof Directors, acting in its sole discretion within sixty (60) days of receivingsuch request, may approve such request and if approved the lump sum paymentwill be made within thirty (30) days of such approval.

 

4.2                                 DeathPrior to end of Measurement Period. If the Participant dies prior to the end of his or her Measurement butwhile employed at the Bank, the Participant’s Beneficiary shall be entitled to hisvested Accrued Benefit.  The annuitizedvalue (using the Interest Factor) of the Participant’s vested Accrued Benefitshall commence within thirty (30) days of the Participant’s death and shall bepayable in monthly installments throughout the Payout Period.  The Participant’s Beneficiary may request inwriting that, within sixty (60) days of the Participant’s death, the amountpayable be paid in a lump sum.  The Boardof Directors, acting in its sole discretion within sixty (60) days of receivingsuch request, may approve such request and if approved the lump sum paymentwill be made within thirty (30) days of such approval.

 

For thesepurposes, during the first five Plan Years of the Plan the Participant shallvest in his Accrued Benefit as follows: one-third (1/3) after thirty-six (36) months; one-third (1/3) afterforty-eight (48) months; and one-third (1/3) after sixty (60)months,  such that the Participant is fully vested inhis Accrued Benefit after five (5) Plan Years as a participant in this Plan.

 

4.3                                 Voluntaryor Involuntary Termination Other Than for Cause.  If the Participant’s employment with the Bankis voluntarily or involuntarily terminated prior to the end of his or her MeasurementPeriod, for any reason including Disability and following a Change in Control,but excluding termination for Cause or the Participant’s death, the Participantshall be entitled to his or her vested Accrued Benefit rather than theSupplemental Benefit.  Such benefit willbe paid out over the Payout Period beginning immediately or, in the Board’ssole discretion, in a lump sum within thirty (30) days of termination ofservice.

 

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For thesepurposes, during the first five Plan Years of the Plan the Participant shallvest in his Accrued Benefit as follows: one-third (1/3) after thirty-six (36) months; one-third (1/3) afterforty-eight (48) months; and one-third (1/3) after sixty (60)months,  such that the Participant is fully vested inhis Accrued Benefit after five (5) Plan Years as a participant in this Plan.

 

4.5                                 Terminationfor Cause.  If the Participant isterminated for Cause, all benefits under this Plan shall be forfeited and thisPlan shall become null and void.

 

4.6                                 AdditionalDeath Benefit - Burial Expense.  Inaddition to the above-described benefits, upon the Participant’s death, theParticipant’s Beneficiary shall be entitled to receive a one-time lump sumdeath benefit in the amount of Ten Thousand ($10,000.00) Dollars.  This benefit shall be provided specificallyfor the purpose of providing payment for burial and/or funeral expenses of theParticipant.  Such death benefit shall bepayable within thirty (30) days of the Participant’s death.  The Participant’s Beneficiary shall not beentitled to such benefit under this Plan if the Participant is terminated forCause prior to death.

 

4.8                                 Non-CompetitionDuring and After Service with the Bank.

 

(a)                                  Inconsideration of the agreements of the Bank contained herein and of thepayments to be made by the Bank pursuant hereto, each Participant shall agreethat, so long as he or she remains in the service of the Bank, he or she willnot actively engage, either directly or indirectly, in any business or other activitywhich is or may be deemed to be in any way competitive with or adverse to thebest interests of the business of the Bank unless the Participant’sparticipation therein has been consented to, in writing, by the Board ofDirectors.

 

(b)           The Participantexpressly agrees that, as consideration for the covenants of the Bank containedherein and as a condition to the performance by the Bank of its obligationshereunder, from and after any voluntary or involuntary termination ofemployment, other than a termination of employment in connection with a Changein Control

 

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pursuant toSubsection 4.5, and continuing throughout the entire Payout Period, as providedherein, he or she will not, without the prior written consent of the Bank,become associated with, in the capacity of an employee, officer, principal,agent, trustee, or director or in any other capacity whatsoever, any enterpriseconducted in the trading area of the business of the Bank which enterprise is,or may be deemed to be, competitive with any business carried on by the Bank asof the date of the termination of the Participant’s service or employment.

 

(c)                                  Inthe event of a termination of the Participant’s employment or service relatedto a Change in Control pursuant to Subsection 4.4, paragraph (b) of thisSubsection 4.10 shall cease to be a condition to the performance by the Bank ofits obligations under this Plan.

 

**SECTION V**

**BENEFICIARY DESIGNATION**

 

TheParticipant shall make an initial designation of primary and secondaryBeneficiaries upon execution of his or her Agreement and shall have the rightto change such designation, at any subsequent time, by submitting to theAdministrator in substantially the form attached as Exhibit C to this Plan, awritten designation of primary and secondary Beneficiaries.  Any Beneficiary designation made subsequentto execution of the Agreement shall become effective only when receipt thereofis acknowledged in writing by the Administrator.

 

**SECTION VI**

**PARTICIPANT’S RIGHT TO ASSETS**

 

The rights ofthe Participant, any Beneficiary, or any other person claiming through theParticipant under this Plan, shall be solely those of an unsecured generalcreditor of the Bank.  The Participant,the Beneficiary, or any other person claiming through the Participant, shallonly have the

 

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right to receive from the Bankthose payments so specified under this Plan. The Participant agrees that he or she, his or her Beneficiary, or anyother person claiming through him or her shall have no rights or interestswhatsoever in any asset of the Bank, including any insurance policies orcontracts which the Bank may possess or obtain to informally fund this Plan.  Any asset used or acquired by the Bank inconnection with the liabilities it has assumed under this Plan, unlessexpressly provided herein, shall not be deemed to be held under any trust forthe benefit of the Participant or his or her Beneficiaries, nor shall any assetbe considered security for the performance of the obligations of the Bank.  Any such asset shall be and remain a general,unpledged, and unrestricted asset of the Bank.

 

**SECTION VII**

**RESTRICTIONS UPON FUNDING**

 

The Bank shallhave no obligation to set aside, earmark or entrust any fund or money withwhich to pay its obligations under this Plan. The Participant, his or her Beneficiaries or any successor in interestto him or her shall be and remain simply a general unsecured creditor of theBank in the same manner as any other creditor having a general claim formatured and unpaid compensation.  TheBank reserves the absolute right in its sole discretion to either purchaseassets to meet its obligations undertaken by this Plan or to refrain from thesame and to determine the extent, nature, and method of such assetpurchases.  Should the Bank decide topurchase assets such as life insurance, mutual funds, disability policies orannuities, the Bank reserves the absolute right, in its sole discretion, toterminate such assets at any time, in whole or in part.  At no time shall the Participant be deemed tohave any lien, right, title or interest in or to any specific investment or toany assets of the Bank.  If the Bankelects to invest in a life insurance, disability or annuity policy upon thelife of the Participant, then the Participant shall assist the Bank by freelysubmitting to a physical examination and by supplying such additionalinformation necessary to obtain such insurance or annuities.

 

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**SECTION VIII**

**ALIENABILITY AND ASSIGNMENT PROHIBITION**

 

Neither theParticipant nor any Beneficiary under this Plan shall have any power or rightto transfer, assign, anticipate, hypothecate, mortgage, commute, modify orotherwise encumber in advance any of the benefits payable hereunder, nor shallany of said benefits be subject to seizure for the payment of any debts,judgments, alimony or separate maintenance owed by the Participant or his orher Beneficiary, nor be transferable by operation of law in the event ofbankruptcy, insolvency or otherwise.  Inthe event the Participant or any Beneficiary attempts assignment,communication, hypothecation, transfer or disposal of the benefits hereunder,the Bank’s liabilities shall forthwith cease and terminate.

 

**SECTION IX**

**ADMINISTRATION**

 

9.1                                 NamedFiduciary and Administrator.  TheBank shall name a Committee of the Board of Directors as the Named Fiduciaryand Administrator of this Plan.  TheCommittee shall consist of not less than three persons.  The Committee shall have the authority tomake, amend, interpret and enforce all appropriate rules and regulations forthe administration of this Plan, as may arise in connection with the Plans.  A majority vote of the Committee membersshall control any decision.

 

9.2                                 Agents.  The Committee may, from time to time, employother agents and delegate to them such administrative duties as it sees fit,and may from time to time consult with counsel who may be counsel to the Bank.

 

9.3                                 BindingEffect of Decisions.  The decision oraction of the Committee in respect of any question arising out of or inconnection with the administration, interpretation and

 

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application ofthe Plans and the rules and regulations promulgated hereunder shall be finaland conclusive and binding upon all persons having any interest in the Plans.

 

9.4                                 Indemnityof Committee.  The Bank shallindemnify and hold harmless the members of the Committee against any and allclaims, loss, damage, expense or liability arising from any action or failureto act with respect to this Plan, except in the case of gross negligence orwillful misconduct.

 

**SECTION X**

**CLAIMS PROCEDURE AND ARBITRATION**

 

10.1                           ClaimsProcedure.  In the event that benefitsunder this Plan are not paid to the Participant (or to his or her Beneficiaryin the case of the Participant’s death) and such claimants feel they areentitled to receive such benefits, then a written claim must be made to theCommittee within sixty (60) days from the date payments are refused.  The Bank and its Board of Directors shallreview the written claim and, if the claim is denied, in whole or in part, theyshall provide in writing, within ninety (90) days of receipt of such claim,their specific reasons for such denial, reference to the provisions of thisPlan or the Agreement upon which the denial is based, and any additionalmaterial or information necessary to perfect the claim.  Such writing by the Bank and its Board ofDirectors shall further indicate the additional steps which must be undertakenby claimants if an additional review of the claim denial is desired.

 

If claimantsdesire a second review, they shall notify the Committee in writing within sixty(60) days of the first claim denial. Claimants may review this Plan, the Agreement or any documents relatingthereto and submit any issues and comments, in writing, they may feelappropriate.  In its sole discretion, theCommittee shall then review the second claim and provide a written decisionwithin sixty (60) days of receipt of such claim.  This decision shall

 

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state thespecific reasons for the decision and shall include reference to specificprovisions of this Plan or the Agreement upon which the decision is based.

 

10.2                           Arbitration.  If claimants continue to dispute the benefitdenial based upon completed performance of this Plan and the  Agreement or the meaning and effect of theterms and conditions thereof, then claimants may submit the dispute tomediation in the state of Florida, administered by the American Arbitration Association(“AAA”)(or a mediator selected by the parties) in accordance with the AAA’s CommercialMediation Rules.  If mediation is notsuccessful in resolving the dispute, it shall be settled by arbitrationadministered by the AAA under its Commercial Arbitration Rules, and judgment onthe award rendered by the arbitrator(s) may be entered in any court havingjurisdiction thereof.

 

**SECTION XI**

**MISCELLANEOUS**

 

11.1                           Incapacityof Recipient.  In the event theParticipant is declared incompetent and a conservator or other person legallycharged with the care of his or her person or Estate is appointed, any benefitsunder the Plans to which such Participant is entitled shall be paid to suchconservator or other person legally charged with the care of his or her personor Estate.

 

11.2                           UnclaimedBenefit.  The Participant shall keepthe Bank informed of his or her current address and the current address of hisor her Beneficiaries.  The Bank shall notbe obligated to search for the whereabouts of any person.  If the location of the Participant is notmade known to the Bank as of the date upon which any payment of any benefitsmay first be made, the Bank shall delay payment of the Participant’s benefitpayment(s) until the location of the Participant is made known to the Bank;however, the Bank shall only be obligated to hold such benefit payment(s) forthe Participant until the expiration of thirty-six (36) months.  Upon expiration of the thirty-six (36) monthperiod, the Bank may discharge its obligation by payment to the Participant’sBeneficiary.  If the location of theParticipant’s Beneficiary is not

 

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made known tothe Bank by the end of an additional two (2) month period following expirationof the thirty-six (36) month period, the Bank may discharge its obligation bypayment to the Participant’s Estate.  Ifthere is no Estate in existence at such time or if such fact cannot bedetermined by the Bank, the Participant and his or her Beneficiary(ies) shallthereupon forfeit any rights to the balance, if any, of any benefits providedfor such Participant and/or Beneficiary under this Plan.

 

11.3                           Limitationson Liability.  Notwithstanding any ofthe preceding provisions of the Plans, no individual acting as an employee oragent of the Bank, or as a member of the Board of Directors shall be personallyliable to the Participant or any other person for any claim, loss, liability orexpense incurred in connection with the Plans.

 

11.4                           Gender.  Whenever in this Plan words are used in themasculine or neuter gender, they shall be read and construed as in themasculine, feminine or neuter gender, whenever they should so apply.

 

11.5                           Effecton Other Corporate Benefit Plans. Nothing contained in this Plan shall affect the right of the Participantto participate in or be covered by any qualified or non-qualified pension,profit sharing, group, bonus or other supplemental compensation or fringebenefit Plan constituting a part of the Bank’s existing or future compensationstructure.

 

11.6                           Suicide.  Notwithstanding anything to the contrary inthis Plan, the benefits otherwise provided herein shall not be payable and thisPlan shall become null and void if the Participant’s death results fromsuicide, whether sane or insane, within twenty-four (24) months after theexecution of his or her Agreement.

 

11.7                           Inurement.  This Plan shall be binding upon and shallinure to the benefit of the Bank, its successors and assigns, and theParticipant, his or her successors, heirs, executors, administrators, andBeneficiaries.

 

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11.8                           TaxWithholding.  The Bank may withholdfrom any benefits payable under this Plan all federal, state, city, or othertaxes as shall be required pursuant to any law or governmental regulation thenin effect.

 

11.9                           Headings.  Headings and sub-headings in this Plan areinserted for reference and convenience only and shall not be deemed a part ofthis Plan.

 

11.10                     NoEffect on Employment or Director Rights. Nothing contained herein will confer upon a Participant the right to bein the employ or service of the Bank nor limit the right of the Bank todischarge or otherwise deal with the Participant without regard to theexistence of the Plans.

 

11.11                     StateLaw.  The Plans are establishedunder, and will be construed according to, the laws of the State of Florida, tothe extent such laws are not preempted by the Act and valid regulationspublished thereunder.

 

11.12                     Severability.  In the event that any of the provisions ofthis Plan or portion thereof, are held to be inoperative or invalid by anycourt of competent jurisdiction, then: (1) insofar as is reasonable, effectwill be given to the intent manifested in the provisions held invalid orinoperative, and (2) the validity and enforceability of the remainingprovisions will not be affected thereby.

 

**SECTION XII**

**AMENDMENT/REVOCATION**

 

This Planshall not be amended, modified or revoked at any time, in whole or part,without the mutual written consent of the Participant and the Bank, and suchmutual consent shall be required even if the Participant is no longer employedby the Bank.

 

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**SECTION XIII**

**EXECUTION**

 

13.1                           ThisPlan sets forth the entire understanding of the parties hereto with respect tothe transactions contemplated hereby, and any previous Plans or understandingsbetween the parties hereto regarding the subject matter hereof are merged intoand superseded by this Plan.

 

13.2                           ThisPlan shall be executed in triplicate, each copy of which, when so executed anddelivered, shall be an original, but all three copies shall together constituteone and the same instrument.

 

 

**[Remainder of page left intentionally blank]**

 

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IN WITNESSWHEREOF, the Bank has caused this Plan to be executed on this 20th dayof October, 2004.

 

 
| WITNESS | FIRST CAPITAL HOLDING CORPORATION     |
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| WITNESS | FIRST  NATIONAL BANK OF NASSAU COUNTY |
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