EXHIBIT 10.1
OPERATING AGREEMENT
OF FCNB, L.L.C.
This Agreement is entered into as of December 15, 1998, among the
Organizers (as defined below) of a proposed new bank to be located in the
Martinsville area of Virginia (the "Bank").
RECITALS
1. The undersigned organizers of the Bank, and those who may hereafter
join in the execution of this agreement as additional organizers of the Bank at
the invitation of the original organizers (collectively, the "Organizers"), all
acting as members of FCNB, L.L.C. (the "venture"), having agreed to join
together for the purpose of preparing and filing an application with the
Virginia Bureau of Financial Institutions (the "Bureau") or with the U.S.
Comptroller of the Currency (the "OCC") to organize the Bank and, if deemed
desirable, with the Board of Governors of the Federal Reserve System to qualify
a holding company for the Bank.
2. The Organizers have agreed, acting as members of the venture, to
underwrite the organizational and pre-opening expenses of the Bank and holding
company, if deemed desirable, which are to be reimbursed out of the proceeds of
the initial capitalization of the Bank or holding company, as the case may be.
3. The Organizers desire to divide among themselves responsibility for
payment of such expenses in the event the proposed organization of the Bank is
unsuccessful.
STATEMENT OF AGREEMENT
In consideration of the premises, the Organizers hereby agree as
follows:
1. Each of the Organizers shall contribute $10,000 to an organizational
expense fund to be maintained by a treasurer elected by the Organizers. The
treasurer shall be elected by a majority of the votes cast by the Organizers,
with each Organizer casting one vote for each dollar that he has contributed to
the venture, except that no Organizer shall receive a vote for any dollar
contributed in excess of the contribution requested of such Organizer by the
venture. From time to time upon receiving at least three business days
notification from the treasurer, each of the Organizers will promptly contribute
additional funds to the venture for the purpose of paying organizational
expenses up to an aggregate amount so contributed not to exceed the dollar
amount set out beside his name below. In addition, each of the Organizers shall
execute a line of credit to be established by the venture, with each Organizer
assuming a pro rata portion of the liability under the line of credit based on
such Organizer's share of the total commitments of all the Organizers to
purchase stock as indicated below. The total liability of all Organizers
pursuant to the line of credit and the cash contributions together shall not
exceed $600,000, unless the Organizers by unanimous vote elect to raise the
ceiling. Organizational expenses shall not be incurred or committed if the total
amount at any time so incurred or committed together with those previously paid
shall exceed the ceiling established pursuant hereto.
2. The treasurer shall keep accurate books of account of his
collections and expenditures, and shall expend organizational funds only for
filing fees, legal and other professional and consulting fees, option or xxxxxxx
money on property selected for the Bank's premises, and other expenses
incidental to the organization and planning of the Bank and the holding company,
if one is organized to acquire and own the capital stock of the Bank. The books
of account maintained by the treasurer shall be open to inspection by any
Organizer at any reasonable time, and the treasurer shall furnish monthly
reports of his collections and expenditures to the Organizers.
3. It is contemplated that upon preliminary approval by the Bureau or
the OCC of the application to organize the Bank or sooner as may be required by
law or appropriate regulatory authorities, the initial capitalization will be
accomplished through a public offering of common stock of the Bank or the
holding company. Upon completion of the offering, it is contemplated that the
holding company or Bank will promptly reimburse the venture for the
organizational expenses advanced by it, and the venture shall then promptly make
pro rata distribution to the Organizers.
4. The venture shall be managed by the Organizers as a group, with all
business decisions (except as provided in paragraph 1 with respect to raising
the ceiling on the total liability of Organizers) to be made by majority vote of
the Organizers on the basis described in paragraph 1; provided that the
Organizers may delegate, by majority vote, any such decision(s) specifically or
generally to any person or persons as they may so choose and such decision(s)
when so delegated and made shall be fully binding on the Organizers.
5. Each of the Organizers contemplates that he will purchase a dollar
amount of stock as is set out beside his name below. This is a non-binding
statement of intent, and the stock of the Bank or holding company will be sold
only pursuant to a prospectus to be published after the Bank has received
preliminary approval to organize. If the application to organize does not
receive regulatory approval, or if the offering of stock is not successful in
raising the minimum capitalization required to open the Bank, or if the
Organizers by majority vote (on the basis described in paragraph 1) elect to
abandon the project, then the organizational expenses will be borne by the
Organizers. In the event the project is unsuccessful or abandoned, the
notwithstanding the provisions of paragraph 1, each Organizer will be
responsible for his pro rata portion of all organizational expenses paid, plus
those for which the Organizers have become liable, in the proportion that the
commitment of each Organizer bears to the total commitments of all of the
Organizers to purchase stock as indicated below. The amount of any deficit due
the organizational expense fund or any surplus from the expense fund which may
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be reimbursed to the Organizers shall be computed by the treasurer and shall be
promptly paid after rejection of the application or abandonment of the project.
6. If any Organizer shall at any time determine to abandon the project,
upon written notice to the treasurer of his decision he shall be entitled to a
refund of any contribution made to the venture, provided that such refund shall
be made at the same time that the other Organizers are reimbursed for their
contributions. Such an abandoning Organizer shall remain liable for his pro rata
portion of any loans (whether or not made prior to the notice of abandonment)
made under a line of credit established prior to the treasurer's receipt of the
notice of abandonment described above, except to the extent that the institution
issuing the line of credit and the remaining Organizers agree to release such
Organizer from liability for loans made after receipt of such notice. In
addition, if the Organizers are not fully reimbursed for their contributions, an
abandoning Organizer shall be entitled to a refund of a pro rata portion of his
contributions based on such Organizer's share of the total commitments of all
the Organizers to purchase stock as indicated below. If the Organizers are
required to contribute additional funds to satisfy the line of credit, any
abandoning Organizer shall be required to contribute additional funds to satisfy
such Organizer's liability under the line of credit to the extent the abandoning
Organizer remains liable as described above.
7. This Agreement may be executed by the Organizers in two or more
counterparts, each of which shall be an original but all of which shall
constitute one and the same instrument.
8. This Agreement will remain open for execution by additional
Organizers who are invited to join the venture by the unanimous consent of the
existing Organizers.
9. This Agreement shall be governed by Virginia law (excluding only
Virginia conflict of law principles) and each party hereto waives any objection
to personal jurisdiction or venue with respect to any action or suit which may
be brought based in whole or part on this Agreement in any state or federal
court located in Virginia.
10. Except as provided in this Agreement, no Organizer shall be
required under any circumstances to contribute or lend any money to the venture.
IN WITNESS WHEREOF, the Organizers have executed this Agreement as of
the date first written above.
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Name and Address Date Anticipated Stock Purchase
(Telephone Number)
Xxxxxx X. Xxxxxx 12-22-98 $100,000
P. O. Xxx 0000
Xxxxxxxxxxxx, XX 00000 ---------------------------
(000) 000-0000 (Signature)
X. X. Xxxxxxx, Xx. 12/15/98 $100,000
Xxx 000
Xxxxxxx, XX 00000 ---------------------------
(000) 000-0000 (Signature)
X. X. Xxxxxx, Xx. 1/14/99 $100,000
P. X. Xxx 000
Xxxxxxx, XX 00000 ---------------------------
(000) 000-0000 (Signature)
Xxxxxxx X. Xxxxxx 1/14/99 $40,000
Xxx 000
Xxxxxxxxxxxx, XX 00000 ---------------------------
(000) 000-0000 (Signature)
Xxxxxx X. Xxxxx 1/14/99 $50,000
0000 Xx. Xxx.
Xxxxxxx, XX 00000 ---------------------------
(000) 000-0000 (Signature)
Xxxxxxxx X. Xxxxxxx Resigned $100,000
P. O. Xxx 000
Xxxxx, XX 00000 ---------------------------
(000) 000-0000 (Signature)
Xxxxxxx X. Xxxxxx 1/14/99 $60,000
P. X. Xxx 000
Xxxxxxx, XX 00000 ---------------------------
(000) 000-0000 (Signature)
Xxxxxx X. Xxxxxxx Resigned $100,000
P. X. Xxx 000
Xxxxxxx, XX 00000 ---------------------------
(Signature)
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Xxxxxxx X. Xxxxxx, Xx. Resigned $100,000
P. O. Xxx 0000
Xxxx Xxxxx, XX 00000
_________________ ---------------------------
(Signature)
Xxxxxx X. Xxxx 12/18/98 $100,000
P. O. Xxx 000
Xxxxxxxx, XX 00000 ---------------------------
(000) 000-0000 (Signature)
X. X. XxXxxxxx 12/18/98 $100,000
0000 Xxxxxxxxx Xxxx XX
Xxxxxxx, XX 00000 ---------------------------
(Signature)
Xxxxx X. Xxxxxx Xx. 1/14/99 $100,000
000 Xxxxxx Xx
Xxxxxxxxxxxx, XX 00000 ---------------------------
(Signature)
Xxx X. Xxxxxxxx 1/14/99 $25,000
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000 ---------------------------
(Signature)
Xxxxxxxx Xxxxxxx ___________ $50,000
Xxxxxxxxx Xx.
Xxxxxxx, XX 00000 ---------------------------
(Portland) (000)-000-0000 (Signature)
Xxxxxxx Xxxxxx ___________ $50,000
000 Xxxxxxxx Xx
Xxxxxxxxxxxx, XX 00000 ---------------------------
(Signature)
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