<PAGE>
As filed with the Securities and Exchange Commission on January 13, 1998
Registration No. 333-42227
Registration No. 333-42227-01
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2
to
FORM S-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIDELITY BANKSHARES, INC. FIDELITY CAPITAL TRUST I
------------------------- ------------------------
(Exact name of registrant as (Exact name of registrant as
specified in its charter) specified in its charter)
<TABLE>
<S> <C> <C> <C>
Delaware 65-0717085 Delaware Applied For
------------------- --------------- --------------- ----------------
(State of Incorporation (I.R.S. Employer (State of Incorporation (I.R.S. Employer
or Organization) Identification Number) or Organization) Identification Number)
</TABLE>
218 Datura Street
West Palm Beach, Florida 33401-5679
(561) 659-9900
------------------------------------
(Address, including ZIP Code, and telephone number
including area code, of registrants' principal
executive offices)
Vince A. Elhilow
President and Chief Executive Officer
Fidelity Bankshares, Inc.
218 Datura Street
West Palm Beach, Florida 33401-5079
---------------------------------------
(Name, address, including ZIP Code, and telephone number,
including area code, of agent for service)
Copies to:
Alan Schick, Esq. Alison W. Miller, Esq.
Ned Quint, Esq. Michael I. Keyes, Esq.
Luse Lehman Gorman Pomerenk & Schick, P.C. Stearns Weaver Miller Weissler
5335 Wisconsin Avenue, N.W., Suite 400 Alhadeff & Sitterson, P.A.
Washington, D.C. 20015 150 West Flagler Street, Suite 2200
(202) 274-2000 Miami, Florida 33130
(305) 789-3200
- -------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC. As soon as
practicable after the effective date of this Registration Statement.
<PAGE>
If any of the securities being registered on this Form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box [_].
If the registrant elects to deliver its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(1)
of this Form, check the following box [X].
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering [_].
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering [_].
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box [_].
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Title of each class of security Amount to be offering price aggregate Amount of
to be registered(4) registered per share offering price registration fee(5)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Trust Preferred Securities, of Fidelity 2,875,000(1) $10.00 $28,750,000 $8,482
Capital Trust I
- ------------------------------------------------------------------------------------------------------------------------------------
Junior Subordinated Deferrable Interest 2,875,000 100% N/A N/A
Debentures of Fidelity Bankshares, Inc.(2)
- ------------------------------------------------------------------------------------------------------------------------------------
Fidelity Bankshares, Inc. Guarantee with N/A N/A N/A N/A
respect to Trust Preferred Securities(3)
- ------------------------------------------------------------------------------------------------------------------------------------
Total 2,875,000 $10.00 $28,750,000 $8,482
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes up to 375,000 additional Trust Preferred Securities which may be
acquired by the Underwriter to cover over-allotments, if any.
(2) The ___% Junior Subordinated Deferrable Interest Debentures (the "Junior
Subordinated Debentures") will be purchased by Fidelity Capital Trust I
with the proceeds of the sale of the Trust Preferred Securities (the
"Preferred Securities"). No separate consideration will be received for the
Junior Subordinated Debentures distributed upon any liquidation of Fidelity
Capital Trust I.
(3) No separate consideration will be received for the Fidelity Bankshares,
Inc. Guarantee (the "Guarantee").
(4) This Registration Statement is deemed to cover the Junior Subordinated
Debentures under the Indenture, the rights of holders of Preferred
Securities of Fidelity Capital Trust I under a trust agreement and the
rights of holders of the Preferred Securities under the Guarantee and the
Expense Agreement entered into by Fidelity Bankshares, Inc. as described
herein.
(5) Previously filed.
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PART II: INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
<TABLE>
<CAPTION>
Amount
------
<S> <C> <C>
* Legal Fees and Expenses...................... $ 75,000
* Printing and Mailing......................... 25,000
* Accounting Fees and Expenses................. 55,000
* Marketing Fees and Expenses.................. 1,033,750
* Filing Fees.................................. 8,500
Nasdaq Listing Fee........................... 17,500
* Other Expenses............................... 20,000
----------
* Total........................................ $1,234,750
==========
</TABLE>
- --------------
* Estimated
Item 15. Indemnification of Directors and Officers
Article TENTH of the Certificate of Incorporation of Fidelity Bankshares,
Inc. (the "Company") provides for indemnification of directors and officers of
the Company as follows:
A. Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a Director or an Officer of the
Corporation or is or was serving at the request of the Corporation as a
Director, Officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a Director, Officer,
employee or agent or in any other capacity while serving as a Director, Officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as provided
in Section C hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
B. The right to indemnification conferred in Section A of this Article
TENTH shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the
Delaware General Corporation Law requires, an advancement of expenses incurred
by an indemnitee in his or her capacity as a Director of Officer (and not in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Section or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections A and B of this Article TENTH shall be
contract rights and such rights shall continue as to an indemnitee who has
ceased to be a Director, Officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article TENTH is not paid in
full by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring
II-1
<PAGE>
suit against the Corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) in any suit by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the indemnitee
has not met any applicable standard for indemnification set forth in the
Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article TENTH or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article TENTH shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, the Corporation's
Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect
itself and any Director, Officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article TENTH with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
Under the Trust Agreement of the Trust Issuer, Fidelity Bankshares, Inc.
will agree to indemnify each of the Trustees of the Trust Issuer or any
predecessor trustee for the Trust Issuer, and to hold harmless against, any
loss, damage, claim, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the Trust Agreement, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties under the Trust Agreement.
II-2
<PAGE>
Item 16. Exhibits and Financial Statement Schedules:
The exhibits and financial statement schedules filed as part of this
registration statement are as follows:
(a) List of Exhibits
<TABLE>
<S> <C>
1.1 Engagement letter between Fidelity Bankshares, Inc. and Ryan, Beck & Co.*
1.2 Form of Underwriting Agreement*
2 Plan of acquisition, reorganization, arrangement, liquidation or
succession**
3.1 Certificate of Incorporation of Fidelity Bankshares, Inc.**
3.2 Bylaws of Fidelity Bankshares, Inc.**
4.1 Form of Indenture with respect to Fidelity Bankshares, Inc.'s ____% Junior
Subordinated Deferrable Interest Debentures*
4.2 Form of Specimen ___% Junior Subordinated Deferrable Interest Debenture
(included as an exhibit to Exhibit 4.1)*
4.3 Certificate of Trust of Fidelity Capital Trust I*
4.4 Trust Agreement of Fidelity Capital Trust I*
4.5 Form of Amended and Restated Trust Agreement of Fidelity Capital Trust I*
4.6 Form of Guarantee Agreement for Fidelity Capital Trust I*
4.7 Form of Agreement as to Expenses and Liabilities (included as an exhibit
to Exhibit 4.5)*
4.8 Form of Certificate Evidencing Preferred Securities of Fidelity Capital
Trust I (included as an exhibit to Exhibit 4.5)
5.1 Opinion of Luse Lehman Gorman Pomerenk & Schick, P.C. as to the validity
of the Guarantee and the issuance of the ___% Junior Subordinated
Deferrable Interest Debentures to be issued by Fidelity Capital Trust I.*
5.2 Opinion of Morris, Nichols, Arsht & Tunnell as to the validity of the
Preferred Securities to be issued by Fidelity Capital Trust I
8.1 Tax Opinion of Luse Lehman Gorman Pomerenk & Schick, P.C.*
10.1 Employment Agreement with Vince A. Elhilow**
10.2 Severance Agreement with Richard D. Aldred**
10.3 Severance Agreement with Robert Fugate**
10.4 Severance Agreement with Joseph Bova**
10.5 1994 Stock Option Plan for Outside Directors**
10.6 1994 Incentive Stock Option Plan**
10.7 Recognition and Retention Plan for Employees**
</TABLE>
II-3
<PAGE>
<TABLE>
<S> <C>
10.8 Recognition Plan for Outside Directors**
12 Statements re: calculations of ratios*
13.1 Annual Report on Form 10-K for the Fiscal Year Ended December 31, 1996
(included in Part I of the Registration Statement)
13.2 Quarterly Report on Form 10-Q for the Fiscal Quarter Ended March 31,
1997***
13.3 Quarterly Report on Form 10-Q for the Fiscal Quarter Ended June 30,
1997****
13.4 Quarterly Report on Form 10-Q for the Fiscal Quarter Ended September 30,
1997 (included in Part I of this Registration Statement)*
23.1 Consent of Deloitte & Touche, LLP*
23.2 Consent of Luse Lehman Gorman Pomerenk & Schick, P.C. (set forth in
Exhibit 5.1)
23.3 Consent of Morris, Nichols, Arsht & Tunnell (set forth in Exhibit 5.2)
24 Power of attorney (set forth on the signature pages to this Registration
Statement)
25.1 Form T-1: Statement of Eligibility of The Bank of New York to act as
trustee under the Indenture*
25.2 Form T-1: Statement of Eligibility of The Bank of New York to act as
trustee under the Amended and Restated Trust Agreement*
25.3 Form T-1: Statement of Eligibility of The Bank of New York to act as
trustee under the Guarantee Agreement for Fidelity Capital Trust I*
27 Financial Data Schedule*****
</TABLE>
- --------------------
* Previously filed.
** Filed as exhibits to the Company's Registration Statement on Form S-4
under the Securities Act of 1933, filed with the Securities and Exchange
Commission on December 12, 1996 (Registration No. 333-17737). All of such
previously filed documents are hereby incorporated herein by reference in
accordance with Item 601 of Regulation S-K.
*** Filed with the Securities and Exchange Commission on May 13, 1997.
**** Filed with the Securities and Exchange Commission on August 14, 1997.
***** Filed as exhibits to the Company's Form 10-K under the Securities Act of
1934, filed with Securities and Exchange Commission on March 28, 1997.
All of such previously filed documents are hereby incorporated herein by
reference in accordance with Item 601 of Regulation S-K.
(b) Financial Statement Schedules
No financial statement schedules are filed because the required
information is not applicable or is included in the consolidated financial
statements or related notes.
II-4
<PAGE>
Item 17. Undertakings
Each of the undersigned Registrant hereby undertakes:
(a) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of Fidelity Bankshares, Inc.'s annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrants pursuant to the foregoing provisions, or otherwise,
the Registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrants of expenses incurred or paid by a director, officer or controlling
person of the Registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrants will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the questions whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(c)(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrants pursuant to Rule 424 (b) (1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Fidelity
Bankshares, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-2 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in West Palm Beach, Florida on the 12th day of January, 1998.
FIDELITY BANKSHARES, INC.
By: /s/ Vince A. Elhilow
------------------------------------
Vince A. Elhilow
President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of Fidelity Bankshares,
Inc. (the "Company") hereby severally constitute and appoint Vince A. Elhilow as
our true and lawful attorney and agent, to do any and all things in our names in
the capacities indicated below which said Vince A. Elhilow may deem necessary or
advisable to enable the Company to comply with the Securities Act of 1933, and
any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with the registration statement on Form S-2 relating
to the offering of the Company's Preferred Securities, including specifically,
but not limited to, power and authority to sign for us in our names in the
capacities indicated below the registration statement and any and all amendments
(including post-effective amendments) thereto; and we hereby approve, ratify and
confirm all that said Vince A. Elhilow shall do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and as of the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Vince A. Elhilow President, Chief Executive January 12, 1998
- ---------------------------- Officer and Director (Principal
Vince A. Elhilow Executive Officer)
/s/ Richard D. Aldred Executive Vice President, Chief January 12, 1998
- ---------------------------- Financial Officer and Treasurer
Richard D. Aldred (Principal Financial and
Accounting Officer)
/s/ Joseph B. Shearouse, Jr. Chairman of the Board January 12, 1998
- ----------------------------
Joseph B. Shearouse, Jr.
/s/ Keith D. Beaty Director January 12, 1998
- ----------------------------
Keith D. Beaty
/s/ F. Ted Brown, Jr. Director January 12, 1998
- ----------------------------
F. Ted Brown, Jr.
</TABLE>
II-6
<PAGE>
<TABLE>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Christopher H. Cook
- ----------------------------
Christopher H. Cook Director January 12, 1998
/s/ Donald E. Warren Director January 12, 1998
- ----------------------------
Donald E. Warren
</TABLE>
II-7
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, Fidelity
Capital Trust I certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-2 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in West Palm Beach, Florida, on the 12th day of January
1998.
FIDELITY CAPITAL TRUST I
By: /s/ Vince A. Elhilow
-------------------------------------
Vince A. Elhilow
Administrative Trustee
By: /s/ Richard D. Aldred
-------------------------------------
Richard D. Aldred
Administrative Trustee
By: /s/ Christopher H. Cook
-------------------------------------
Christopher H. Cook
Administrative Trustee
We, the undersigned administrative trustees of Fidelity Capital Trust
I (the "Trust Issuer") hereby severally constitute and appoint Vince A. Elhilow
as our true and lawful attorney and agent, to do any and all things in our names
in the capacities indicated below which said Vince A. Elhilow may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933,
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with the registration statement on Form S-2 relating
to the offering of the Trust Issuer's Preferred Securities, including
specifically, but not limited to, power and authority to sign for us in our
names in the capacities indicated below the registration statement and any and
all amendments (including post-effective amendments) thereto; and we hereby
approve, ratify and confirm all that said Vince A. Elhilow shall do or cause to
be done by virtue thereof.
FIDELITY CAPITAL TRUST I
By: /s/ Vince A. Elhilow
-------------------------------------
Vince A. Elhilow
Administrative Trustee
By: /s/ Richard D. Aldred
-------------------------------------
Richard D. Aldred
Administrative Trustee
By: /s/ Christopher H. Cook
-------------------------------------
Christopher H. Cook
Administrative Trustee
II-8
<PAGE>
As filed with the Securities and Exchange Commission on January 13, 1998.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
EXHIBITS
TO
REGISTRATION STATEMENT
ON
FORM S-2
--------------------
FIDELITY BANKSHARES, INC.
FIDELITY CAPITAL TRUST I
================================================================================
<PAGE>
EXHIBIT INDEX
=============
<TABLE>
<S> <C>
1.1 Engagement letter between Fidelity Bankshares, Inc. and Ryan, Beck & Co.*
1.2 Form of Underwriting Agreement*
2 Plan of acquisition, reorganization, arrangement, liquidation or
succession**
3.1 Certificate of Incorporation of Fidelity Bankshares, Inc.**
3.2 Bylaws of Fidelity Bankshares, Inc.**
4.1 Form of Indenture with respect to Fidelity Bankshares, Inc.'s ____% Junior
Subordinated Deferrable Interest Debentures*
4.2 Form of Specimen ___% Junior Subordinated Deferrable Interest Debenture
(included as an exhibit to Exhibit 4.1)*
4.3 Certificate of Trust of Fidelity Capital Trust I*
4.4 Trust Agreement of Fidelity Capital Trust I*
4.5 Form of Amended and Restated Trust Agreement of Fidelity Capital Trust I*
4.6 Form of Guarantee Agreement for Fidelity Capital Trust I*
4.7 Form of Agreement as to Expenses and Liabilities (included as an exhibit to
Exhibit 4.5)*
4.8 Form of Certificate Evidencing Preferred Securities of Fidelity Capital
Trust I (included as an exhibit to Exhibit 4.5)*
5.1 Opinion of Luse Lehman Gorman Pomerenk & Schick, P.C. as to the validity of
the Guarantee and the issuance of the ___% Junior Subordinated Deferrable
Interest Debentures to be issued by Fidelity Capital Trust I.*
5.2 Opinion of Morris, Nichols, Arsht & Tunnell as to the validity of the
Preferred Securities to be issued by Fidelity Capital Trust I.
8.1 Tax Opinion of Luse Lehman Gorman Pomerenk & Schick, P.C.*
10.1 Employment Agreement with Vince A. Elhilow**
10.2 Severance Agreement with Richard D. Aldred**
10.3 Severance Agreement with Robert Fugate**
10.4 Severance Agreement with Joseph Bova**
10.5 1994 Stock Option Plan for Outside Directors**
10.6 1994 Incentive Stock Option Plan**
10.7 Recognition and Retention Plan for Employees**
10.8 Recognition Plan for Outside Directors**
12.1 Statements re: calculations of ratios*
13.1 Annual Report on Form 10-K for the Fiscal Year Ended December 31, 1996
(included in Part I of the Registration Statement)
</TABLE>
<PAGE>
<TABLE>
<S> <C>
13.2 Quarterly Report on Form 10-Q for the Fiscal Quarter Ended March 31,
1997***
13.3 Quarterly Report on Form 10-Q for the Fiscal Quarter Ended June 30,
1997****
13.4 Quarterly Report on Form 10-Q for the Fiscal Quarter Ended September 30,
1997 (included in Part I of this Registration Statement)*
23.1 Consent of Deloitte & Touche, LLP*
23.2 Consent of Luse Lehman Gorman Pomerenk & Schick, P.C. (set forth in Exhibit
5.1)
23.3 Consent of Morris, Nichols, Arsht & Tunnell (set forth in Exhibit 5.2)
24 Power of attorney (set forth on the signature pages to this Registration
Statement)
25.1 Form T-1: Statement of Eligibility of The Bank of New York to act as
trustee under the Indenture*
25.2 Form T-1: Statement of Eligibility of The Bank of New York to act as
trustee under the Amended and Restated Trust Agreement*
25.3 Form T-1: Statement of Eligibility of The Bank of New York to act as
trustee under the Guarantee Agreement for Fidelity Capital Trust I*
27 Financial Data Schedule*****
</TABLE>
- --------------------
* Previously filed.
** Filed as exhibits to the Company's Registration Statement on Form S-4
under the Securities Act of 1933, filed with the Securities and Exchange
Commission on December 12, 1996 (Registration No. 333-17737). All of such
previously filed documents are hereby incorporated herein by reference in
accordance with Item 601 of Regulation S-K.
*** Filed with the Securities and Exchange Commission on May 13, 1997.
**** Filed with the Securities and Exchange Commission on August 14, 1997.
***** Filed as an exhibit to the Company's Form 10-K under the Securities Act
of 1934, filed with Securities and Exchange Commission on March 28, 1997.
Such previously filed document is hereby incorporated herein by reference
in accordance with Item 601 of Regulation S-K.
<PAGE>
EXHIBIT 5.2
[Letterhead of Morris, Nichols, Arsht & Tunnell]
January 12, 1998
Fidelity Capital Trust I
c/o Fidelity Bankshares, Inc.
218 Datura Street
West Palm Beach, Florida 33401
Re: Fidelity Capital Trust I
------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to Fidelity Capital Trust I,
a Delaware statutory business trust (the "Trust"), and Fidelity Bankshares,
Inc., a Delaware corporation (the "Company"), in connection with certain
matters relating to the creation of the Trust and the proposed issuance of
Preferred Securities therein to beneficial owners pursuant to and as described
in Registration Statement Nos. 333-42227 and 333-42227-01 (and the Prospectus
forming a part thereof) on Form S-2 filed with the Securities and Exchange
Commission (the "Commission") by the Trust and the Company on December 15, 1997,
as amended by Pre-Effective Amendments No. 1 and No. 2 thereto (as so amended,
the "Registration Statement"). Capitalized terms used herein and not otherwise
herein defined are used as defined in the form of Amended and Restated
Declaration of Trust of the Trust attached as an exhibit to the Registration
Statement (the form of Amended and Restated Declaration of the Trust is referred
to herein as the "Governing Instrument").
In rendering this opinion, we have examined and relied upon copies of
the following documents in the forms provided to us: the Certificate of Trust of
the Trust as filed in the Office of the Secretary of State of the State of
Delaware (the "State Office") on December 10, 1997 (the "Certificate"); the
Declaration of Trust of the Trust dated as of December 10, 1997 (the "Original
Governing Instrument"); the form of Indenture to be entered into between the
Company and The Bank of New York, as Trustee; the form of Preferred Securities
Guarantee Agreement to be entered into between the Company and The Bank of New
York, as Trustee; the form of the Underwriting Agreement to be entered into
among the Company, the
<PAGE>
Fidelity Capital Trust I
c/o Fidelity Bankshares, Inc.
January 12, 1998
Page 2
Trust and Ryan, Beck & Co., Inc. and the Price Determination Agreement related
thereto (collectively, the "Underwriting Agreement"); the Registration
Statement; and a certification of good standing of the Trust obtained as of a
recent date from the State Office. In such examinations, we have assumed the
genuineness of all signatures, the conformity to original documents of all
documents submitted to us as drafts or copies or forms of documents to be
executed and the legal capacity of natural persons to complete the execution of
documents. We have further assumed for purposes of this opinion: (i) the due
formation or organization, valid existence and good standing of each entity
(other than the Trust) that is a party to any of the documents reviewed by us
under the laws of the jurisdiction of its respective formation or organization;
(ii) the due authorization, execution and delivery by, or on behalf of, each of
the parties thereto of the above-referenced documents; (iii) that the Company,
the Bank of New York, the Bank of New York (Delaware) and the Administrative
Trustees will duly authorize, execute and deliver the Governing Instrument, and
all other documents contemplated thereby or by the Registration Statement to be
executed in connection with the issuance by the Trust of Preferred Securities,
prior to the first issuance of Preferred Securities; (iv) that no event has
occurred subsequent to the filing of the Certificate, or will occur prior to the
first issuance of Preferred Securities, that would cause a dissolution or
liquidation of the Trust under the Original Governing Instrument or the
Governing Instrument; (v) that the activities of the Trust have been and will be
conducted in accordance with the Original Governing Instrument or the Governing
Instrument, as applicable, and the Delaware Business Trust Act, 12 Del. C.
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(S)(S) 3801 et seq. (the "Delaware Act"); (vi) that each Holder of Preferred
-- ---
Securities has, or prior to the first issuance of the Preferred Securities will
have, made payment of the required consideration therefor and received a
Preferred Securities Certificate in consideration thereof in accordance with
the terms and conditions of the Governing Instrument, the Registration Statement
and the Underwriting Agreement and that the Preferred Securities are otherwise
issued and sold in accordance with the terms, conditions, requirements and
procedures set forth in the Governing Instrument, the Registration Statement and
the Underwriting Agreement; and (vii) that the documents examined by us are in
full force and effect, express the entire understanding of the parties thereto
with respect to the subject matter thereof and have not been amended,
supplemented or otherwise modified, except as herein referenced. We have not
reviewed any documents other than those identified above in connection with this
opinion, and we have assumed that there are no other documents that are contrary
to or inconsistent with the opinions expressed herein. No opinion is expressed
with
<PAGE>
Fidelity Capital Trust I
c/o Fidelity Bankshares, Inc.
January 12, 1998
Page 3
respect to the requirements of, or compliance with, federal or state securities
or blue sky laws. We have not participated in the preparation of the
Registration Statement or any other offering material relating to the Preferred
Securities, and we assume no responsibility for their contents. As to any fact
material to our opinion, other than those assumed, we have relied without
independent investigation on the above-referenced documents and certificates
and on the accuracy, as of the date hereof, of the matters therein contained.
Based on and subject to the foregoing, and limited in all respects to
matters of Delaware law, it is our opinion that:
1. The Trust is a duly created and validly existing statutory
business trust in good standing under the laws of the State of Delaware.
2. The Preferred Securities, upon issuance, will constitute validly
issued and, subject to the qualifications set forth in paragraph 3 below, fully
paid and non-assessable beneficial interests in the assets of the Trust.
3. Under the Delaware Act and the terms of the Governing Instrument,
each Preferred Security Holder, in such capacity, will be entitled to the same
limitation of personal liability as that extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware; provided, however, we express no opinion with respect to the
liability of any Preferred Security Holder of the Trust who is, was or may
become a named Trustee of the Trust. We note that pursuant to the Governing
Instrument, Preferred Security Holders may be obligated to make payments or
provide indemnity or security under the circumstances set forth therein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "VALIDITY OF
SECURITIES" in the Prospectus forming a part thereof. In giving this consent,
we do not thereby admit that we come within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended,
or the rules and regulations of the Commission thereunder. This opinion speaks
only as of the date hereof and is based on our understandings and assumptions as
to present facts, and on our review of the above-referenced documents and the
application of Delaware law as the same exist as of the date hereof, and we
undertake no obligation to update or supplement this opinion after the date
hereof for the benefit of any person or entity with
<PAGE>
Fidelity Capital Trust I
c/o Fidelity Bankshares, Inc.
January 12, 1998
Page 4
respect to any facts or circumstances that may hereafter come to our attention
or any changes in facts or law that may hereafter occur or take effect. This
opinion is intended solely for the benefit of the addressees hereof in
connection with the matters contemplated hereby and may not be relied on by any
other person or entity or for any other purpose without our prior written
consent.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL
/s/Morris, Nichols, Arsht & Tunnell
