EXHIBIT 99(g)
This Agreement, made as of this 23rd day of June, 1998, by and among FCNB
Corp, a Maryland corporation ("FCNB"), and Xxxxxxx X. Xxxxxx, an individual
resident in the District of Columbia ("Xxxxxx").
WHEREAS, Xxxxxx is the currently serving President and Chief Executive
Officer of Capital Bank, National Association ("Capital"); and
WHEREAS, FCNB, its wholly owned subsidiary FCNB Bank (the "Bank") and
Capital have entered into an Agreement and Plan of Reorganization and Merger, of
even date herewith (the "Merger Agreement"), pursuant to which Capital will be
merged with and into the Bank, and each share of Capital Common Stock will be
converted into shares of FCNB Common Stock as set forth in the Merger Agreement;
and
WHEREAS, as a condition of FCNB's and the Bank's obligations under the
Merger Agreement and as a material inducement to FCNB and the Bank to enter into
the Merger Agreement, FCNB has requested that Xxxxxx agree to the termination of
his existing employment agreement with Capital, originally entered into on
November 5, 1991, and as amended to date (the "Employment Agreement"), effective
as of the Effective Time of the Merger; and
WHEREAS, FCNB, the Bank and Xxxxxx desire to enter into this Agreement to
effect the termination of such Employment Agreement and to set forth the amounts
which Xxxxxx shall be entitled to receive in severance and other compensation
and benefits following the Effective Time,
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein and in the Merger Agreement, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. At the Effective Time, the Employment Agreement shall be terminated and
of no further force or effect, and Xxxxxx shall have no further rights or
obligations thereunder except with respect to the payment of Base Salary for the
period ending at the Effective Time, neither FCNB nor the Bank shall have any
rights or obligations thereunder.
2. (a) FCNB agrees that at the Effective Time it shall pay Xxxxxx, or shall
cause the Bank to pay Xxxxxx, a lump sum payment equal to that portion of
Xxxxxx'x base salary, at a rate of $175,000 per year, which would have been
payable during the period from the Effective Time until December 31, 1998. If
the Effective Time shall not occur during 1998, Xxxxxx shall not be entitled to
any payment under this subsection (a).
(b) FCNB agrees that during the first week of January 1999 it shall pay Xxxxxx,
or shall cause the Bank to pay Xxxxxx, a lump sum payment of $185,000, provided,
however, that if the Effective Time shall not occur prior to January 1, 1999,
then, in lieu of such payment, the FCNB shall pay Xxxxxx of shall cause the Bank
to pay Xxxxxx, a lump sum payment equal to that portion of Xxxxxx'x base salary,
at a rate of $185,000 per year, which would have been payable during the period
from the Effective Time until December 31, 1999.
(c) FCNB agrees that at the time of payment of the amount set forth in
subsection (b) above, it shall pay Xxxxxx, or shall cause the Bank to pay
Xxxxxx, a lump sum payment equal to the product of $500 multiplied by the number
of months beginning the month after the month in which the Effective Time occurs
through December 1999, plus $10,000.
3. FCNB agrees that it shall pay Xxxxxx, or shall cause the Bank to pay
Xxxxxx, additional bonus compensation as follows:
Amount Time Payable
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$141,000 First week of January 1999
$50,000 First week of January 2000
4. FCNB agrees that it shall pay Xxxxxx, or cause the Bank to pay Xxxxxx,
change in control severance compensation in the amount of $100,000, payable
during the first week of January 2000.
5. All compensation payable to Xxxxxx pursuant to this Agreement shall be
subject to deduction and withholding of all necessary Social Security, income
and withholding taxes and any other sums required by law or authorized by
Xxxxxx.
6. FCNB agrees that it shall cause Xxxxxx to be provided with coverage
under all of the FCNB welfare benefit plans, including but not limited to life,
health, dental, vision and long term disability insurance (not its 401(k) or
pension or retirement programs or plans, or cash, stock or option incentive
plans), from the Effective Time until December 31, 1999, to the same extent as
if he were a senior executive officer of FCNB.
7. Xxxxxx shall have no obligation hereunder to perform any services for
FCNB or the Bank in order to receive the compensation and benefits set forth
herein.
8. Xxxxxx'x rights hereunder to receive the payments set forth in Section 4
hereof shall terminate in the event of a material breach of the provisions of
the agreement of even date herewith, among FCNB, the Bank and Xxxxxx in his
capacity as a director of Capital, with respect to Xxxxxx'x activities in
competition with FCNB and the Bank (the "Non-Compete"). Upon any such material
breach, neither FCNB nor the Bank shall be required to make such payment if it
is due at or subsequent to the date of such breach. Xxxxxx shall have no
obligation to disgorge any payment made under Section 4 as a result of any
subsequent breach of the Non-Compete. Xxxxxx'x obligations with respect to
activities in competition with FCNB and the Bank shall be governed solely by the
Non-Compete. Nothing contained herein shall be construed as a limitation on or
waiver of, any remedies, at law or equity, which FCNB or the Bank may have under
the Non-Compete.
9. This Agreement constitutes the entire agreement among the parties with
respect to the subject matter hereto, superseding all prior understandings and
agreements, written and oral.
10. This Agreement shall be governed by and construed in accordance with
the laws of the State of Maryland.
11. Any illegality, invalidity or unenforceability of any provision hereof
in any jurisdiction shall not invalidate or render illegal or unenforceable in
such jurisdiction the remaining provisions hereof and shall not invalidate or
render illegal or unenforceable such provision in any other jurisdiction. In the
event that the scope or duration of any provision hereof shall be found to be
unenforceable in any jurisdiction, then such provision shall be interpreted to
provide for the broadest scope or longest duration which would be enforceable in
such jurisdiction.
12. Capitalized terms used and not defined herein and defined in the Merger
Agreement shall have the meaning ascribed to them in the Merger Agreement.
13. This Agreement may be executed in one or more counterparts, each of
which shall be an original, and all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day first above written.
FCNB CORP
By:
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A. Xxxxxxx Xxxxxx, President
& Chief Executive Officer
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Xxxxxxx X. Xxxxxx
