EXHIBIT 99(d)
AGREEMENT
This Agreement, made as of this 23rd day of June, 1998, between FCNB Corp,
a Maryland corporation ("FCNB"), its wholly owed subsidiary, FCNB Bank, a
Maryland commercial bank (the "Bank") and each of the persons listed on Schedule
A attached hereto and made a part hereof (collectively the "Shareholders" and
individually, each a "Shareholder").
WHEREAS, FCNB, the Bank and Capital Bank, National Association, a national
banking association ("Capital"), have entered into an Agreement and Plan of
Reorganization and Merger dated as of the date hereof, (the "Merger Agreement"),
pursuant to which all of the outstanding shares of Capital Common Stock will be
exchanged for shares of FCNB Common Stock, in accordance with the terms of the
Merger Agreement; and
WHEREAS, the Shareholders collectively own, or possess the right to vote or
direct the voting of, an aggregate of 246,682 shares of Capital Common Stock,
and individually own, or possess the right to vote or direct the voting of, the
number of shares of Capital Common Stock set forth opposite their names on
Schedule A; and
WHEREAS, the Shareholders collectively own, or possess the power to dispose
of or to direct the disposition of 246,682 shares of Capital Common Stock, and
individually own, or possess the power to dispose of or direct the disposition
of, the number of shares of Capital Common Stock set forth opposite their names
on Schedule A; and
WHEREAS, the Shareholders collectively have the right to acquire 54,500
shares of Capital Common Stock pursuant to the exercise of options issued and
outstanding pursuant to the Capital Option Plans, and individually possess the
right to acquire pursuant to the exercise of options outstanding pursuant to the
Capital Option Plans, the number of shares of Capital Common Stock set forth
opposite their names on Schedule A; and
WHEREAS, as a material inducement for FCNB and the Bank to enter into the
Merger Agreement and consummate the transactions contemplated thereby, the
Shareholders have agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth herein and in the Merger Agreement, and intending to be
legally bound hereby, the parties agree as follows:
1. Representations and Warranties of Shareholders. Each of the Shareholders
individually represents and warrants as follows: That he is now, and at all
times until the Effective Time of the Merger will be, the owner, of record or
beneficially, or possesses and will possess the right to vote or direct the
voting of all of the shares of Capital Common Stock set forth opposite his name
on Schedule A, and possesses or will possess the power to dispose of or direct
the disposition of all of the shares of Capital Common Stock set forth opposite
his name on Schedule A. Shareholder has, and through the Effective Time will
continue to have, the sole right and power to vote and/or dispose of, or to
direct the voting or disposition of all of the shares of Capital Common Stock
set forth opposite his name on Schedule A. Shareholder has full right, power and
authority to enter into, deliver and perform this Agreement. This Agreement has
been duly executed and delivered by Shareholder, and constitutes the legal,
valid and binding obligation of Shareholder, and is enforceable in accordance
with its terms.
2. Covenants of Shareholders. (a) Each Shareholder agrees that he shall
vote all of his shares of Capital Common Stock in favor of the Merger Agreement
and the transactions contemplated thereby and against any merger, consolidation,
share exchange, business combination, sale of all or substantially all assets,
or other extraordinary corporate transaction involving Capital other than the
Merger. Each Shareholder also agrees that, except as provided in Section 5.1(k),
Section 5.3 or Section 6.17 of the Merger Agreement, until the termination of
the Merger Agreement in accordance with its terms, he shall use his best efforts
to cause the consummation of the Merger.
(b) Each Shareholder agrees that until the termination of the Merger Agreement
in accordance with its terms, he shall not, without the prior written consent of
FCNB, directly or indirectly tender or permit the tender into any
tender or exchange offer, or sell, transfer, hypothecate, grant a security
interest in or otherwise dispose of or encumber any of his shares of Capital
Common Stock, or any options to acquire Capital Common Stock issued and
outstanding pursuant to the Capital Option Plans.
(c) Each Shareholder agrees that until the termination of the Merger Agreement
in accordance with its terms, he shall not, without the prior written consent of
FCNB, directly or indirectly exercise any of his Capital Options to acquire
shares of Capital Common Stock, except that any Shareholder may exercise any
Capital Incentive Option prior to the Effective Time if he shall determine in
consultation with FCNB that treatment of such Capital Incentive Options in
accordance with the provisions of Section 2.1 of the Merger Agreement will
subject such Shareholder to recognition of gain or income (for purposes other
than alternative minimum tax) in respect of all or any portion of such Capital
Incentive Options or the shares of FCNB Common Stock received in exchange
therefore.
(d) Each Shareholder agrees that he shall not, and he shall not authorize,
direct, induce, or encourage any other person, including but not limited to any
holder of Capital Common Stock, or any officer, employee or director of Capital
to, solicit from any third party any inquiries or proposals relating to the
disposition of Capital's business or assets, or the acquisition of Capital's
voting securities, or the merger of Capital with any person other than FCNB or
the Bank, or except as provided in Section 5.1(k) or Section 6.17 of the Merger
Agreement, provide any such person with information or assistance or negotiate
or conduct any discussions with any such person in furtherance of such inquiries
or to obtain a proposal.
3. Additional Shares and Options. Notwithstanding anything to the contrary
contained herein, this Agreement shall apply to all shares of Capital Common
Stock which a Shareholder currently has the sole right and power to vote and/or
dispose of, or to direct the voting or disposition of, and all such shares of
Capital Common Stock which any Shareholder may hereafter acquire, and all
Capital Options which any Shareholder may currently own or hereafter acquire.
4. Termination. This Agreement shall terminate upon the termination of the
Merger Agreement in accordance with its terms.
5. Governing Law. This Agreement shall be governed in all respects by the
law of the State of Maryland.
6. Assignment. This Agreement may not be assigned by any Shareholder
without the prior written consent of FCNB and the Bank. This Agreement may not
be assigned by FCNB or the Bank without the written consent of the Shareholders.
7. Scope of Agreement. The parties hereto acknowledge and agree that
Agreement shall not confer upon FCNB any right or ability to acquire any of the
shares of Capital Common Stock other than in connection with the Merger and
pursuant to the Registration Statement contemplated by the Merger Agreement.
8. Defined Terms. Capitalized terms used and not defined herein and defined
in the Merger Agreement shall have the meaning ascribed to them in the Merger
Agreement.
9. Counterparts. 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:
----------------------------
A. Xxxxxxx Xxxxxx, President
& Chief Executive Officer
_________________________ ________________________
_________________________ ________________________
_________________________ ________________________
_________________________ ________________________
_________________________ ________________________
_________________________ ________________________
SCHEDULE A
Common Stock Owned or Common Stock Owned or
Which Have the Right to Which Have the Power to Options to Acquire
Name Vote or Direct Voting Dispose or Direct Disposition Common Stock
--------------- --------------------- ----------------------------- ---------------------
Xxxxxxx X. Xxxxxx 87,684 87,684 14,000
Xxxxxx Xxxxxxxxx 22,000 22,000 3,500
Xxxxxxxx Xxxxxxxx 979 979 5,500
Xxxxxx Xxxxx 6,889 6,889 7,500
Xxx Xxxxxx 25,241 25,241 3,500
Xxxxxx Xxxxx 7,800 7,800 5,500
Xxxxxx Xxxxxxxx 25,517 25,517 0
Xxxxxx Xxxxxx 9,656 9,656 7,500
Xxxxx Xxxxxxxx, Jr. 60,916 60,916 7,500
Total 246,682 246,682 54,500
