<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
(Amendment No. _____)*
Capital Bancorp
---------------
(Name of Issuer)
Common Stock, $1.00 par value per share
(Title of Class of Securities)
139734107
--------------
(CUSIP Number)
Jackson W. Moore
President
Union Planters Corporation
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
(901) 580-2877
--------------
(Name, Address and Telephone Number
of Person Authorized to Receive
Notices and Communications)
August 12, 1997
-----------------------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-l(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
THE INFORMATION REQUIRED ON THE REMAINDER OF THIS COVER PAGE SHALL NOT BE
DEEMED TO BE "FILED" FOR THE PURPOSE OF SECTION 18 OF THE SECURITIES EXCHANGE
ACT OF 1934 ("ACT") OR OTHERWISE SUBJECT TO THE LIABILITIES OF THAT SECTION OF
THE ACT BUT SHALL BE SUBJECT TO ALL OTHER PROVISIONS OF THE ACT (HOWEVER, SEE
THE NOTES).
Page 1 of 12
<PAGE> 2
<TABLE>
<S> <C>
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CUSIP No.: 139734107
----------------
- ------------------------------------------------------------------------------------------------------
1. Name of Reporting Person: Union Planters Corporation
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S.S. or I.R.S. Identification No. of Above Person:
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I.R.S. Identification No. 62-0859007
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2. Check the Appropriate Box if a Member of a Group (See Instructions):
a. [ ] b. [ ]
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3. SEC Use Only
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4. Source of Funds (see Instructions): [WC; OO]
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5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e): [ ]
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6. Citizenship or Place of Organization: Tennessee
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7. Sole Voting Power: *
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Number of
Shares Beneficially 8. Shared Voting Power: 0*
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Owned by
Each Reporting 9. Sole Dispositive Power: *
-------------------------------------------
Person With
10. Shared Dispositive Power: 0*
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- ------------------------------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person: *
-------------------------------
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12. Check Box if the Aggregate Amount in Row 11 Excludes Certain Shares
(See Instructions): [ ]
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13. Percent of Class Represented by Amount in Row 11: 16.6%**
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14. Type of Reporting Person (See Instructions): CO
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</TABLE>
Page 2 of 12
<PAGE> 3
* The shares that are the subject of this filing are purchasable by Union
Planters Corporation ("UPC") upon exercise of an option (the "Option") issued
to UPC on August 12, 1997, and described in Item 4 of this report. Prior to
the exercise of the Option, UPC is not entitled to any rights as a shareholder
of Capital Bancorp ("Capital") as to the shares covered by the Option. The
Option may only be exercised upon the happening of certain events referred to
in Item 4, none of which has occurred as of the date hereof. UPC expressly
disclaims beneficial ownership of any of the shares of common stock of Capital
which are purchasable by UPC upon exercise of the Option.
** The percentage indicated represents the percentage of the total
outstanding shares of common stock of Capital as of July 31, 1997, taking into
consideration the 1,510,500 shares of Capital common stock that would be issued
pursuant to the Option. For the reasons discussed in the footnote above, UPC
expressly disclaims beneficial ownership of any of the shares of common stock
of Capital which are purchasable by UPC upon exercise of the Option.
Page 3 of 12
<PAGE> 4
ITEM 1. SECURITY AND ISSUER.
This statement relates to the common stock of Capital, $1.00 par value
per share ("Capital Common Stock"). Capital is a Florida corporation whose
principal executive offices are located at 1221 Brickell Avenue, Miami, Florida
33131.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is being filed by UPC, a Tennessee chartered bank
holding company whose principal executive offices are located at 7130 Goodlett
Farms Parkway, Memphis, Tennessee 38018.
To the best of UPC's knowledge, during the last five years, neither
UPC nor any of its directors or executive officers has been convicted in any
criminal proceedings (excluding traffic violations or similar misdemeanors) nor
has UPC or any of its directors or executive officers been a party to any civil
proceeding of a judicial or administrative body of competent jurisdiction
resulting in a judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Attached hereto is an appendix to Item 2 setting forth certain
additional information concerning the directors and executive officers of UPC.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
It is presently anticipated that shares of Capital Common Stock as
described in Item 4 would be purchased with working capital funds of UPC.
ITEM 4. PURPOSE OF TRANSACTION.
Pursuant to an Agreement and Plan of Merger, dated as of August 12,
1997 (the "Agreement"), by and between UPC and Capital, and in consideration
thereof, Capital issued an option to UPC on August 12, 1997 (the "Option") to
purchase, under certain conditions, up to 1,510,500 shares of Capital Common
Stock subject to adjustment under certain circumstances at a purchase price of
$40.50 per share, subject to adjustment pursuant to anti-dilution provisions
(the "Purchase Price"). The Option was issued to UPC pursuant to a Stock
Option Agreement, dated as of August 12, 1997 (the "Option Agreement"), between
UPC and Capital. The Option is not effective until the earlier to occur of (i)
expiration of the termination right set forth in Section 10.1(f) of the
Agreement, without prior exercise of such right by UPC and (ii) delivery by UPC
of written notice to Capital to the effect that UPC has waived its right to
terminate the Agreement pursuant to Section 10.1(f).
The Agreement provides, among other things, for the merger of Capital
with a newly-formed, wholly-owned, first-tier subsidiary of UPC, with Capital
as the corporation surviving from the merger (the "Merger"). Upon consummation
of the Merger, which is subject to the approval of the Capital shareholders,
regulatory approvals, and the satisfaction or waiver of various other terms and
conditions, each share of Capital Common Stock (excluding shares held by
Capital, or UPC, or any of their respective subsidiaries, in each case other
than in a fiduciary capacity or as a result of debts previously contracted)
issued and outstanding shall be converted into and exchanged for .8525 of a
share, subject to possible adjustment under certain circumstances as set forth
in the Agreement, of the common stock of UPC, $5.00 par value per share, and
associated stock purchase rights ("UPC Common Stock") (the "Exchange Ratio").
Page 4 of 12
<PAGE> 5
Under the Agreement, Capital has the right to terminate the Agreement
at any time commencing two days after the Determination Date (as defined in the
Agreement) if (i) the Average Closing Price (as defined in the Agreement) of
UPC Common Stock is less than the product of .80 and the Starting Price (as
defined in the Agreement), and (ii) (a) the quotient obtained by dividing the
Average Closing Price by the Starting Price (such number being referred to
herein as the "UPC Ratio") shall be less than (b) the quotient obtained by
dividing the Index Price on the Determination Date by the Index Price (as
defined in the Agreement) on the Starting Date (as defined in the Agreement)
and subtracting 0.15 from the quotient. UPC has the right to elect to adjust
the Exchange Ratio in accordance with the terms of the Agreement, and thereby
eliminate Capital's right to terminate the Agreement.
In addition, UPC can terminate the Agreement at any time before
September 12, 1997, pursuant to standards included in the Agreement based upon
a due diligence investigation of Capital.
If (i) UPC is not in material breach of the Option Agreement or the
Agreement, and (ii) no injunction against delivery of the shares covered by the
Option is in effect, UPC may exercise the Option in whole or in part, at any
time and from time to time following the happening of certain events (each a
"Purchase Event") and prior to the termination of the Option, including, among
others:
(A) Capital shall have authorized, recommended, publicly proposed
or publicly announced an intention to authorize, recommend or
propose, or entered into an agreement with any person (other
than UPC or any subsidiary of UPC) to effect (each an
"Acquisition Transaction") (1) a merger, consolidation or
similar transaction involving Capital or its subsidiaries
(with certain exceptions), (2) the sale, lease, exchange or
other disposition of 25 percent or more of the consolidated
assets of Capital and its subsidiaries, or (3) the issuance,
sale or other disposition or 25 percent or more of the voting
securities of Capital or any of its subsidiaries; or
(B) any third party (other than to UPC or any subsidiary of UPC
or the group consisting of Abel Holtz, Fana Holtz, Daniel M.
Holtz and Javier J. Holtz (the "Family"), provided that no
member of the Family increases his or her beneficial ownership
of outstanding Capital Common Stock (other than as a result of
exercise of options outstanding as of the date of the Option
Agreement) such that the aggregate beneficial ownership of the
Family as of the date of the Option Agreement increases by
more than 1%) acquires, or obtains the right to acquire,
beneficial ownership of 25 percent or more of the outstanding
shares of Capital Common Stock;
provided, the Option will terminate upon the earliest of: (i) the Effective
Time; (ii) termination of the Agreement (other than as a result of a willful
breach of any representation or warranty or breach of any covenant by Capital
(each a "Default Termination")) prior to the occurrence of a Purchase Event or
a Preliminary Purchase Event (as defined below) (A) the commencement by any
third party of a tender or exchange offer to purchase 25 percent or more of the
outstanding shares of Capital Common Stock, or (B) the occurrence of certain
circumstances surrounding the failure of the shareholders of Capital to approve
the Agreement, the failure to hold a meeting of the Capital shareholders to
approve the Agreement, or the withdrawal or modification in a manner adverse to
UPC, of the recommendation of Capital's Board of Directors with respect to the
Agreement (each a "Preliminary Purchase Event"); (iii) 12 months after the
termination of the Agreement by UPC pursuant to a Default Termination; or (iv)
12 months after termination of the Agreement following the occurrence of a
Purchase Event or a Preliminary Purchase Event.
Page 5 of 12
<PAGE> 6
The Agreement also sets forth that:
(i) A holder's (including UPC's) Total Profit relating to
the Option may not exceed $18 million and, if it otherwise would
exceed such amount, the holder, at its sole election, shall either (A)
reduce the number of shares of Capital Common Stock subject to the
Option, (B) deliver to Capital for cancellation Option Shares
previously purchased by UPC, (C) pay cash to Capital, or (D) any
combination of the foregoing, so that the holder's actually realized
Total Profit shall not exceed $18 million after taking into account
the foregoing actions; and
(ii) the Option may not be exercised for a number of
shares of Capital Common Stock as would, as of the date of exercise,
result in a Notional Total Profit of more than $18 million; provided,
that nothing in this clause (ii) shall restrict any exercise of the
Option permitted hereby on any subsequent date.
For purposes of the Agreement, the term "Total Profit" shall mean the
aggregate sum (prior to the payment of taxes) of the following: (i) the amount
received by the holder pursuant to Capital's repurchase of the Option (or any
portion thereof) pursuant to terms set forth in the Agreement; (ii) (A) the
amount received by the holder pursuant to Capital's repurchase of Option Shares
under the Agreement, less (B) the holder's purchase price for such Option
Shares; (iii) (A) the net cash amounts received by the holder pursuant to the
sale of Option Shares (or any other securities into which such Option Shares
shall be converted or exchanged) to any unaffiliated person, less (B) the
holder's purchase price of such Option Shares; and (iv) any amounts received by
the holder on the transfer of the Option (or any portion thereof) to any
unaffiliated person.
For purposes of the Agreement, the term "Notional Total Profit" with
respect to any number of shares of Capital Common Stock as to which UPC may
propose to exercise the Option shall be the Total Profit determined as of the
date of such proposed exercise, assuming that the Option were exercised on such
date for such number of shares and assuming that such shares, together with all
other Option Shares held by UPC and its affiliates as of such date, were sold
for cash at the closing sale price per share of Capital Common Stock as quoted
on the Nasdaq National Market (or, if Capital Common Stock is not then quoted
on the Nasdaq National Market, the highest bid price per share as quoted on the
principal trading market or securities exchange on which such shares are traded
as reported by a recognized source chosen by UPC) as of the close of business
on the preceding trading day (less customary brokerage commissions).
At the request of UPC at any time, beginning on the first occurrence
of certain events (each a "Repurchase Event"), including, among others, the
acquisition by a third party of 50 percent or more of the outstanding shares of
Capital Common Stock, and ending upon the earlier of 12 months immediately
thereafter or termination of the Option, Capital will repurchase from UPC (i)
the Option, and (ii) all shares of Capital Common Stock purchased by UPC
pursuant to the Option Agreement, at a specified price.
Upon the occurrence of certain events set forth in the Option
Agreement generally relating to the merger of Capital with, or sale by Capital
of substantially all of its assets to, a third party (other than UPC or a
subsidiary of UPC), the Option must be converted into, or exchanged for, an
option, at the election of UPC, of another corporation or Capital (the
"Substitute Option"). The terms of any such Substitute Option are set forth in
the Option Agreement.
A copy of the Agreement, including the Option Agreement but excluding
certain other exhibits, is incorporated by reference herein as Exhibit 1, and
the foregoing summary is qualified in its entirety by reference thereto.
Page 6 of 12
<PAGE> 7
ITEM 5. INTEREST IN SECURITIES OF CAPITAL.
The 1,510,500 shares of Capital Common Stock which are purchasable by
UPC upon exercise of the Option are equal to approximately 19.9 percent of
Capital Common Stock, based on the 7,562,131 shares of Capital Common Stock
issued and outstanding on July 31, 1997 before taking into consideration the
1,510,500 shares of Capital Common Stock that would be issued pursuant to the
Option.
The Option contains anti-dilution provisions which provide that the
number of shares of Capital Common Stock issuable upon exercise of the Option
and the Purchase Price will be adjusted upon the happening of certain events,
including the payment of a stock dividend or other distribution in Capital
Common Stock or the subdivision or reclassification of Capital Common Stock, as
set forth in the Option Agreement. If any additional shares of Capital Common
Stock are issued after the date of the Option Agreement other than those
described in the preceding sentence and shares issued upon exercise of the
Option, the number of shares subject to the Option (taking into account the
shares previously issued pursuant to the Option), shall be adjusted so that
such number of shares following such issuance shall continue to equal 19.9
percent of the number of shares of Capital Common Stock then issued and
outstanding.
UPC expressly disclaims any beneficial ownership of the shares of
Capital Common Stock which are purchasable by UPC upon exercise of the Option
because the Option is exercisable only in the circumstances referred to in Item
4 above, none of which has occurred as of this date.
Other than as set forth in this Item 5, to the best of UPC's knowledge
(i) neither UPC nor any subsidiary or affiliate of UPC or any of its or their
executive officers or directors beneficially owns any shares of Capital Common
Stock, and (ii) there have been no transactions in the shares of Capital Common
Stock effected during the past 60 days by UPC, nor to the best of UPC's
knowledge, by any subsidiary or affiliate of UPC or any of its or their
executive officers or directors.
No other person is known by UPC to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the sale
of, the Capital Common Stock obtainable by UPC upon exercise of the Option.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF CAPITAL.
Other than the Agreement, including the Option Agreement, a copy of
which (excluding certain exhibits) is incorporated by reference herein, to the
best of UPC's knowledge there are at present no contracts, arrangements,
understandings or relationships (legal or otherwise) among the persons named in
Item 2 above and between such persons and any person with respect to any
securities of Capital, except as described in the following paragraph.
In connection with entering into the Agreement, UPC also requested
that each member of the Board of Directors of Capital (including Daniel M.
Holtz, Fana Holtz, Hugh F. Culverhouse, Jr., Russell W. Galbut, Craig L. Platt,
Jeffrey H. Porter, Leon J. Simkins, and Gerald M. Stern) enter into a support
agreement (the "Support Agreement") with UPC agreeing (i) not to transfer,
sell, assign, convey, or encumber any of the shares of Capital Common Stock
which the director owns (the "Shares"), except for transfers (a) by operation
of law, by will, pursuant to the laws of descent and distribution or as
required by law, (b) to UPC, pursuant to the terms of the Agreement, or (c)
where the transferee agrees in writing to be bound by the terms of the Support
Agreement, (ii) to vote (or cause to be voted) all of the Shares over which the
director has voting authority (other than in a fiduciary capacity) in favor of
the Agreement at any meeting of shareholders of Capital called to vote on the
Agreement, (iii) to surrender the certificate or certificates representing the
Shares over which the director has dispositive authority to UPC upon
consummation of the Merger, and (iv) to vote all of the Shares over
Page 7 of 12
<PAGE> 8
which the director has voting authority (other than in a fiduciary capacity)
against (a) any merger agreement, share exchange, or merger (other than the
Merger and the Agreement), consolidation, combination, sale of substantial
assets, merger, recapitalization, dissolution, liquidation or winding-up or (b)
any amendment of Capital's Articles of Incorporation or Bylaws or other
proposal or transaction involving Capital or any of its subsidiaries, which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent, or nullify the Merger or the transactions contemplated
thereby.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The Agreement and the Option Agreement are incorporated by reference
to Exhibits 2.1 and 2.2 of the Current Report on Form 8-K, dated August 12,
1997, filed by Union Planters Corporation (Commission File No. 1-10160). The
form of the Support Agreement is included as Exhibit 2.3 to this Schedule 13D.
Page 8 of 12
<PAGE> 9
SIGNATURE.
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
UNION PLANTERS CORPORATION
Date: August 22, 1997 By: /s/ M. KIRK WALTERS
--- --------------------------------------
M. Kirk Walters
Senior Vice President, Treasurer, and
Chief Accounting Officer
Page 9 of 12
<PAGE> 10
APPENDIX TO ITEM 2
<TABLE>
<CAPTION>
Principal occupation or employment,
Position with Union name of business, principal business,
Name Planters Corporation and principal business address
- ----------------------- ---------------------- -------------------------------------
<S> <C> <C>
Albert M. Austin Director Chairman
Cannon, Austin And Cannon, Inc. (real
estate)
6685 Poplar Avenue, #200
Germantown, TN 38138
Edgar H. Bailey Vice Chairman Vice Chairman
Union Planters Corporation
6200 Poplar Avenue, HQ4
Memphis, TN 38119
Marvin E. Bruce Director Director and Chairman
TBC Corporation
(marketer/distributor of auto
replacement products)
476 West Racquet Club Place
Memphis, TN 38117
George W. Bryan Director Senior Vice President
Sara Lee Corporation
(Meat Group Division, meat processor
and packagor)
Suite 300
8000 Centerview Parkway
Cordova, TN 38018
James E. Harwood Director President
Sterling Equities
(provider of advisory services and
capital to small businesses)
Suite 124
845 Crossover Lane
Memphis, TN 38117
Parnell S. Lewis, Jr. Director President
Anderson-Tully Company
1242 North Second Street
Memphis, TN 38101
</TABLE>
Page 10 of 12
<PAGE> 11
<TABLE>
<CAPTION>
Principal occupation or employment,
Position with Union name of business, principal business,
Name Planters Corporation and principal business address
- ----------------------- ---------------------- -------------------------------------
<S> <C> <C>
C. J. Lowrance, III Director President
Lowrance Brothers & Company, Inc.
(planter)
Highway 61
Driver, AR 72329
Jackson W. Moore President and CEO President and Chief Operating Officer
Union Planters Corporation
7130 Goodlett Farms Parkway
Memphis, TN 38018
Stanley D. Overton Director Chairman
Union Planters Bank Of Middle
Tennessee, N.A. (Bank)
401 Union Street
Nashville, TN 37219
J. W. Parker Executive Vice President Executive Vice President and Chief
and Chief Financial Financial Officer
Officer Union Planters Corporation
Executive Vice President, UPNB
7130 Goodlett Farms Parkway
Memphis, TN 38018
Benjamin W. Rawlins, Jr. Chairman of the Board Chairman of the Board, Chief Executive
Officer, CEO of UPNB
Union Planters Corporation
7130 Goodlett Farms Parkway
Memphis, TN 38018
V. Lane Rawlins Director President
University of Memphis
Memphis, TN 38152
Donald F. Schuppe Director DFS Service Company
6448 Winfrey Place
Memphis, TN 38120
Mike P. Sturdivant Director President
Due West Gin Co., Inc. (cotton
ginning); Investor, Chairman,
Executive (various entities)
P.O. Box 230
Glendora, MS 38928
</TABLE>
Page 11 of 12
<PAGE> 12
<TABLE>
<CAPTION>
Principal occupation or employment,
Position with Union name of business, principal business,
Name Planters Corporation and principal business address
- ----------------------- ---------------------- -------------------------------------
<S> <C> <C>
Richard A. Trippeer, Jr. Director President
R.A. Trippeer, Inc. (investments)
Suite 300
5865 Ridgeway Center Parkway
Memphis, TN 38120
M. K. Walters Senior Vice President Senior Vice President, Chief
and Chief Accounting Accounting Officer, Treasurer
Officer Union Planters Corporation
Senior Vice President, UPNB
7130 Goodlett Farms Parkway
Memphis, TN 38018
Spence L. Wilson Director President
Kemmons Wilson, Inc.
(provider of management advisory
services and venture capital,
developer of residential and
commercial real estate, and thrift
hold company)
1629 Winchester Road
Memphis, TN 38116
</TABLE>
Page 12 of 12
<PAGE> 1
EXHIBIT 2.3
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT ("Agreement") is made and entered into as
of the 12th day of August 1997, by and between the undersigned, ______________,
a resident of __________, Florida, and Union Planters Corporation, a
corporation organized and existing under the laws of the State of Tennessee
("UPC").
On even date herewith, Parent and Capital Bancorp, a corporation
organized and existing under the laws of the State of Florida ("Capital"), have
entered into an Agreement and Plan of Merger (the "Merger Agreement"). The
Merger Agreement generally provides for the merger of Capital with a subsidiary
of UPC (the "Merger") and the conversion of the issued and outstanding shares
of the $1.00 par value common stock ("Capital Common Stock") into shares of the
$5.00 par value common stock of UPC and attached preferred stock purchase
rights. The Merger Agreement is subject to the affirmative vote of the
shareholders of Capital, the receipt of certain regulatory approvals, and the
satisfaction of other conditions.
The undersigned is a member of the Board of Directors of Capital
and is the owner of _________ shares of Capital Common Stock and has rights by
option or otherwise to acquire _________ additional shares of Capital Common
Stock (collectively, the "Shares"). In order to induce UPC to enter into the
Merger Agreement, the undersigned is entering into this Agreement with UPC to
set forth certain terms and conditions governing the actions to be taken by the
undersigned solely in the undersigned's capacity as a shareholder of Capital
with respect to the Shares until consummation of the Merger.
NOW, THEREFORE, in consideration of the transactions contemplated
by the Merger Agreement and the mutual promises and covenants contained herein,
the parties agree as follows:
1. Without the prior written consent of UPC, which consent
shall not be unreasonably withheld, the undersigned shall not transfer, sell,
assign, convey, or encumber any of the Shares during the term of this Agreement
except for transfers (i) by operation of law, by will, pursuant to the laws of
descent and distribution or as required by law, (ii) to UPC pursuant to the
terms of the Merger Agreement or (iii) where the transferee agrees in writing
to be bound by the terms of this Agreement. Without limiting the generality of
the foregoing, the undersigned shall not grant to any party any option or right
to purchase the Shares or any interest therein.
2. Except as otherwise provided in this Agreement or as
required by law, the undersigned intends to, and will, vote (or cause to be
voted) all of the Shares over which the undersigned has voting authority
(other than in a fiduciary capacity) in favor of the Merger Agreement and the
Merger at any meeting of shareholders of Capital called to vote on the Merger
Agreement or the Merger or the adjournment thereof or in any other circumstance
upon which a vote, consent, or other approval with respect to the Merger
Agreement or the Merger is sought. Further, the undersigned intends to, and
will, surrender the certificate or certificates representing the Shares over
which the undersigned has dispositive authority to UPC upon consummation of the
Merger as described in the Merger Agreement and hereby waives any rights of
appraisal, or rights to dissent from the Merger, that the undersigned may have.
<PAGE> 2
3. Except as otherwise provided in this Agreement or as
required by law, at any meeting of shareholders of Capital or at any
adjournment thereof or any other circumstances upon which the vote, consent, or
other approval of Capital shareholders is sought, the undersigned will vote (or
cause to be voted) all of the Shares over which the undersigned has voting
authority (other than in a fiduciary capacity) (i) against any merger
agreement, share exchange, or merger (other than the Merger Agreement and the
Merger), consolidation, combination, sale of substantial assets, merger,
recapitalization, dissolution, liquidation, or winding-up of or by Capital or
(ii) any amendment of Capital's Articles of Incorporation or By-laws or other
proposal or transaction involving Capital or any of its subsidiaries, which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent, or nullify the Merger, the Merger Agreement, or any of the
other transactions contemplated thereby.
4. The undersigned acknowledges and agrees that UPC could not
be made whole by monetary damages in the event of any default by the
undersigned of the terms and conditions set forth in this Agreement. It is
accordingly agreed and understood that UPC, in addition to any other remedy
which it may have at law or in equity, shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and specifically to enforce
the terms and provisions hereof in any action instituted in any court of the
United States or in any state having appropriate jurisdiction.
5. The covenants and obligations set forth in this Agreement
shall expire and be of no further force and effect on the date on which the
Merger Agreement is terminated under Section 10.1 thereof.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the undersigned as of the day and year first above written.
As to the undersigned,
signed in the presence of:
- ------------------------------- ------------------------------------------
Name:
--------------------------
(Please print or type)
UNION PLANTERS CORPORATION
By:
-------------------------------------
Jackson W. Moore
President and Chief Operating Officer
-2-
