Registration No. 333-
As filed with the Securities and Exchange Commission on September 9, 1998
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
F&M NATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
VIRGINIA 54-0857462
(State of Incorporation) (I.R.S. Employer Identification No.)
9 Court Square
Winchester, Virginia 22601
(540) 655-4200
(Address of principal executive office, including zip code)
F&M National Corporation
1998 Employee Stock Discount Plan
(Full Title of the Plan)
Alfred B. Whitt
President and Chief Financial Officer
F&M National Corporation
9 Court Square, Winchester, Virginia 22601
(540) 655-4200
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copy to:
George P. Whitley, Esq.
LeClair Ryan, A Professional Corporation
707 East Main Street, Eleventh Floor
Richmond, Virginia 23219
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered(1) offering price per share(2) aggregate offering price registration fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C>
Common Stock
($2.00 par value) 250,000 shares $26.69 $6,672,500 $1,968.39
</TABLE>
- ----------
(1)This Registration Statement also relates to such indeterminate number of
additional shares of Common Stock of the Registrant as may be issuable as a
result of a stock dividend, stock split, split-up, recapitalization or
similar event.
(2)Estimated solely for the purpose of calculating the registration fee. Based
on the average of the high and low prices of the Registrant's Common Stock on
the New York Stock Exchange on September 1, 1998.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1 Plan Information.
Not required to be filed.
Item 2 Registrant Information and Employee Plan Annual Information.
Not required to be filed.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3 Incorporation of Documents by Reference.
F&M National Corporation (the "Company") hereby incorporates by reference
into this registration statement the documents listed below which have been
filed with the Securities and Exchange Commission (the Commission").
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year
covered by the Annual Report referred to in (a) above.
(c) The description of the Company's Common Stock contained in its
Registration Statement on Form S-4 as filed with the Commission on
March 16, 1998 (File No. 333-47981).
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this registration statement and
shall be deemed to be part of this registration statement from the date of
filing of such documents.
Item 4 Description of Securities.
Not applicable.
<PAGE>
Item 5 Interests of Named Experts and Counsel.
Not applicable.
Item 6 Indemnification of Directors and Officers.
The laws of the Commonwealth of Virginia pursuant to which the Company is
incorporated permit it to indemnify its officers and directors against certain
liabilities with the approval of its shareholders. The articles of incorporation
of the Company, which have been approved by its shareholders, provide for the
indemnification of each director and officer (including former directors and
officers and each person who may have served at the request of the Company as a
director or officer of any other legal entity and, in all such cases, his or her
heirs, executors and administrators) against liabilities (including expenses)
reasonably incurred by him or her in connection with any actual or threatened
action, suit or proceeding to which he or she may be made party by reason of his
or her being or having been a director or officer of the Company, except in
relation to any action, suit or proceeding in which he or she has been adjudged
liable because of willful misconduct or a knowing violation of the criminal law.
The Company has purchased officers' and directors' liability insurance
policies. Within the limits of their coverage, the policies insure (1) the
directors and officers of the Company against certain losses resulting from
claims against them in their capacities as directors and officers to the extent
that such losses are not indemnified by the Company and (2) the Company to the
extent that it indemnifies such directors and officers for losses as permitted
under the laws of Virginia.
Item 7 Exemption from Registration Claimed.
Not applicable.
Item 8 Exhibits
5.0 Opinion of LeClair Ryan, A Professional Corporation, as to the
legality of the shares offered hereunder.
23.1 Consent of Yount, Hyde & Barbour, P.C., as accountants.
23.2 Consent of LeClair Ryan (included in Exhibit 5.0).
24.0 Powers of Attorney (included in Part II of this Registration
Statement).
99.1 F&M National Corporation 1998 Employee Stock Discount Plan.
99.2 Memorandum from President to employees introducing the 1998 Employee
Stock Discount Plan.
<PAGE>
99.3 Base Pay Payroll Deduction Authorization for the 1998 Employee
Stock Discount Plan.
Item 9 Undertakings.
The undersigned registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has 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
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant 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 registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Winchester, Commonwealth of Virginia on September 9,
1998.
F&M NATIONAL CORPORATION
By: /s/ Alfred B. Whitt
---------------------------------------------
Alfred B. Whitt, Vice Chairman and
President
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 on the dates indicated.
Each person whose signature appears below constitutes and appoints Alfred
B. Whitt and Charles E. Curtis, and each of them singly, as his or her true and
lawful attorneys-in-fact and agents, with full power of substitution, and for
him or her and in his or her name, place and stead, in any and all capacities,
to sign any and all registration statements or applications to the Securities
and Exchange Commission, the regulatory authorities of any state in the United
States or any other regulatory authorities as may be necessary to permit up to
250,000 shares of Common Stock of the Company to be offered in the United States
under the F&M National Corporation 1998 Employee Stock Discount Plan, including
without limitation any and all amendments or post-effective amendments to this
Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission or any other such regulatory authority, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite or necessary to be done to enable F&M National
Corporation to comply with the provisions of the Securities Act of 1933, and all
requirements of the Securities and Exchange Commission as well as all other
laws, rules and regulations relating to the offer and sale of securities, as
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
their or his or her substitute may lawfully do or cause to be done by virtue
hereof.
<PAGE>
Signature Capacity Date
/s/ W. M. Feltner Chairman of the Board
- ----------------------- and Chief Executive September 9, 1998
W. M. Feltner Officer and Director
(Principal Executive
Officer)
/s/ Alfred B. Whitt Vice Chairman, President September 9, 1998
- ----------------------- and Chief Financial
Alfred B. Whitt Officer and Director
(Principal Financial
Officer)
/s/ Charles E. Curtis Vice Chairman, Chief September 9, 1998
- ----------------------- Administrative Officer
Charles E. Curtis and Director
/s/ Frank Armstrong, III Director September 9, 1998
- -------------------------
Frank Armstrong, III
/s/ William H. Clement Director September 9, 1998
- ------------------------
William H. Clement
/s/ John R. Fernstrom Director September 9, 1998
- ------------------------
John R. Fernstrom
/s/ William R. Harris Director September 9, 1998
- ------------------------
William R. Harris
/s/ L. David Horner, III Director September 9, 1998
- -------------------------
L. David Horner, III
<PAGE>
/s/ Jack R. Huyett Director September 9, 1998
- -------------------------
Jack R. Huyett
/s/ George L. Romine Director September 9, 1998
- -------------------------
George L. Romine
/s/ J. D. Shockey, Jr. Director September 9, 1998
- ------------------------
J. D. Shockey, Jr.
/s/ Ronald W. Tydings Director September 9, 1998
- -------------------------
Ronald W. Tydings
/s/ Fred G. Wayland, Jr. Director September 9, 1998
- --------------------------
Fred G. Wayland, Jr.
Exhibit 5.0
(804) 343-4089
2994.024
September 9, 1998
F&M National Corporation
P. O. Box 2800
Winchester, Virginia 22604
Gentlemen:
We have acted as counsel to F&M National Corporation, a Virginia
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 to be filed by the Company with the
Securities and Exchange Commission (the "Registration Statement"), covering
250,000 shares of common stock, $2.00 par value (the "Common Stock"), which have
been reserved for issuance under the Company's 1998 Employee Stock Discount Plan
(the "Plan").
We have examined the Registration Statement and such corporate records,
certificates and other documents as we deemed necessary for the purpose of this
opinion, including the Company's Amended and Restated Articles of Incorporation
and Bylaws and all amendments thereto. For purposes of this opinion we have
assumed (i) the genuineness of the signatures of and, except with respect to the
Company, the authority and legal capacity of individuals signing all documents
on behalf of the parties thereto; (ii) the authenticity and accuracy of all
documents submitted to us as originals; and (iii) the conformity to original
documents of all documents submitted to us as copies or facsimiles.
Based upon and subject to the foregoing, it is our opinion that the
250,000 shares of Common Stock which are authorized for issuance under the Plan,
when issued or sold in accordance with the terms and provisions of the Plan,
will be duly authorized, legally issued, fully paid and non-assessable.
The foregoing assumes that all steps necessary to comply with the
registration requirements of the Securities Act of 1933, as amended, and with
applicable requirements of state laws regulating the offer and sale of
securities will be duly taken. We hereby consent to the filing of this opinion
with the Securities and Exchange Commission as an exhibit to the Registration
Statement.
LeClair Ryan, A Professional Corporation
By: /s/ George P. Whitley
-----------------------
George P. Whitley
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the use in this Registration Statement of our report on the
consolidated financial statements of F&M National Corporation and Subsidiaries
included herein.
YOUNT, HYDE & BARBOUR, P.C.
Winchester, Virginia
September 9, 1998
Exhibit 99.1
F & M NATIONAL CORPORATION
1998 EMPLOYEE STOCK DISCOUNT PLAN
Effective as of January 1, 1998
<PAGE>
TABLE OF CONTENTS
ARTICLE Page
I Definition of Terms.................................................1
II Eligibility and Participation.......................................3
III Funding.............................................................5
IV Offerings...........................................................7
V Options.............................................................8
VI Exercise of Options.................................................9
VII Cessation of Participation and Distribution of Accounts.............9
VIII Stock Issuance.....................................................10
IX Death Beneficiary..................................................11
X Plan Administration................................................12
XI Amendment and Termination of Plan..................................13
XII Miscellaneous......................................................14
XIII Adoption of the Plan...............................................15
<PAGE>
F & M NATIONAL CORPORATION
1998 EMPLOYEE STOCK DISCOUNT PLAN
ARTICLE I
Definition of Terms
The following words and terms as used herein shall have the meaning set
forth below, unless a different meaning is clearly required by the context:
1.1 "Account": The account maintained to record a Participant's Actual
Base Pay and Bonus payroll deduction contributions to the Plan.
1.2 "Actual Base Pay": The amount of an Eligible Employee's regular
straight-time cash earnings, overtime and shift premium, as an Eligible Employee
from the Employer, excluding payments for bonuses and other special payments,
commissions and other marketing incentive payments.
1.3 "Administrator": The Plan Administrator provided for in ARTICLE X.
1.4 "Affiliate": Any present or future corporation which would be a
"parent corporation" or a "subsidiary corporation" of the Plan Sponsor as those
terms are defined in Section 424 of the Code.
1.5 "Annual Base Pay Rate": With respect to an Offering, a Participant's
annual rate of Actual Base Pay as of January 1, but excluding overtime and shift
premium, determined by multiplying his normal weekly rate of such base pay (as
in effect on the January 1 of the calendar year for which the Offering is made)
by 52 or the hourly rate by 2,080, provided that, in the case of a part time
employee, such determination shall be made by multiplying such employee's hourly
rate by the number of his regularly scheduled hours of work as in effect on the
January 1 of the calendar year for which the Offering is made.
1.6 "Beneficiary": The person or persons designated by a Participant or
otherwise entitled pursuant to paragraph 9.2 to receive benefits under the Plan
attributable to such Participant after death of such Participant.
1.7 "Board": The present and any succeeding Board of Directors of the Plan
Sponsor, unless such term is used with respect to a particular Employer and its
Employees, in which event it shall mean the present and any succeeding Board of
Directors of that Employer.
1.8 "Bonus": Incentive pay available in cash from the Employer for
performance as an Eligible Employee, exclusive of prizes, awards, stock options,
stock awards and the like.
1.9 "Common Stock": The common stock, $2.00 par value, of the Plan
Sponsor.
1.10 "Code": The Internal Revenue Code of 1986, as amended.
<PAGE>
1.11 "Eligible Employee": Any person who is employed as a common law
employee by the Employer, who is customarily employed more than 20 hours per
week and who is customarily employed for more than 5 months in a calendar year.
1.12 "Employee": Any person considered a common law employee of the
Employer or any Affiliate.
1.13 "Employer": The Plan Sponsor and each other employer heretofore or
hereafter executing or adopting the Plan with the consent of the Administrator
as a participating Employer, collectively unless the context otherwise
indicates, for as long as it remains a participating Employer; and with respect
to any Employee, any one or more of such Employers by which he is at any time
employed. The Administrator shall maintain a list of all such Employers who are,
from time to time, participating Employers in the Plan.
1.14 "Market Value": The closing price of Common Stock on a designated
date or the nearest prior business day on which trading occurred on the New York
Stock Exchange; provided, however, that if the Common Stock is not admitted to
trading on any of the aforesaid dates for which closing prices of the Common
Stock are to be determined, then fair market value of the Common Stock on that
date, as determined on such basis as shall be established or specified for the
purpose by the Administrator.
1.15 "Offering": An offering of Common Stock pursuant to the Plan.
1.16 "Offering Commencement Date": January 1 of the calendar year for
which an Offering is made.
1.17 "Offering Termination Date": December 31 of the calendar year
for which an Offering is made.
1.18 "Participant": An Eligible Employee who is eligible and who elects to
participate in the Plan for so long as he is considered a Participant as
provided in ARTICLE II.
1.19 "Plan": The Plan as contained herein or duly amended which shall be
known as the "F & M National Corporation 1998 Employee Stock Discount Plan".
1.20 "Plan Sponsor": F & M National Corporation, a Virginia
corporation.
<PAGE>
ARTICLE II
Eligibility and Participation
2.1 Eligibility and Date of Participation.
2.1(a) Each Eligible Employee who has completed a 6 month Period of
Service as of the Offering Commencement Date for an Offering and who is an
Eligible Employee on such Offering Commencement Date shall be eligible to
participate in the Offering.
2.1(b) An Eligible Employee who meets the requirements of subparagraph
2.1(a) with respect to an Offering shall become a Participant for that Offering
by filing an authorization for a payroll deduction from his Actual Base Pay with
the Administrator on or before the date set therefor by the Administrator, which
date shall be prior to the first pay day in the Offering period. Payroll
deductions from Actual Base Pay for a Participant shall commence on the
applicable Offering Commencement Date when his authorization for a payroll
deduction from Actual Base Pay becomes effective and shall end on the Offering
Termination Date of the Offering in question to which such authorization is
applicable unless sooner terminated by the Participant as provided in the Plan.
2.1(c) An individual who becomes a Participant shall be or remain a
Participant for so long as he remains an Eligible Employee who has a payroll
deduction authorization in force and thereafter while he is entitled to future
benefits under the terms of the Plan.
2.2 Restrictions on Participation. Notwithstanding any provisions of
the Plan to the contrary, no Eligible Employee shall be granted an option to
participate in the Plan:
(i) if, immediately after the grant, such employee would own stock,
and/or hold outstanding options to purchase stock, possessing 5% or more
of the total combined voting power or value of all classes of stock of the
Plan Sponsor (for purposes of this paragraph, the rules of Section 424(d)
of the Code shall apply in determining stock ownership); or
(ii) which permits his rights to purchase stock under all employee
stock purchase plans of the Plan Sponsor and all Affiliates to accrue at a
rate which exceeds $25,000 in fair market value of the stock (determined
at the time such option is granted) for each calendar year in which such
option is outstanding (this limitation shall be interpreted to comply with
Section 423(b)(8) of the Code).
2.3 Leave of Absence.
2.3(a) For purposes of participation in the Plan, a person on a Leave of
Absence shall be deemed to be an employee for such Leave of Absence and such
employee's employment shall be deemed to have terminated at the end of such
Leave of Absence unless such employee shall have returned to regular employment
with the Employer at the end of such Leave of Absence. Termination by the
Employer of any employee's Leave of Absence, other than termination of such
Leave of Absence on return to employment, shall terminate an employee's
employment for all purposes of the Plan and shall terminate such employee's
participation in the Plan and right to exercise any option granted under the
Plan.
<PAGE>
2.3(b) If a Participant goes on a Leave of Absence, the Participant shall
have the right to elect (i) to discontinue his participation in the Plan as
provided in paragraph 7.1 or (ii) remain a Participant in the Plan during such
Leave of Absence, authorizing deductions to be made from any payments by the
Employer to the Participant during such Leave of Absence. If the Participant's
Leave of Absence ends by his return to employment as an Eligible Employee and he
has not elected to discontinue his participation in the Plan, his elected
payroll deductions shall recommence.
2.3(c) A Participant on a Leave of Absence shall, subject to the election
made by the Participant pursuant to subparagraph 2.3(b), continue to be a
Participant and to be considered an Eligible Employee for purposes of the Plan
so long as he is on continuous Leave of Absence.
2.4 Special Definitions and Rules.
2.4(a) For purposes hereof, the following terms shall have the following
meanings:
(i) "Leave of Absence": A leave of absence authorized by an
Employer. For purposes of participation in the Plan, a leave of absence
shall in any event be considered ended on the 91st day thereof unless the
person's right to reemployment is guaranteed by law or by contract.
(ii) "Period of Service": A period of continuous employment as an
Employee, including Leaves of Absence.
2.4(b) The Administrator is authorized to treat service with any
organization as service with an Affiliate if substantially all the operating
assets of that organization are acquired by the Plan Sponsor or an Affiliate.
2.4(c) For purposes hereof, service with any organization which becomes an
Affiliate shall be considered as service with the Affiliate even though such
service occurs before the date the organization becomes an Affiliate.
<PAGE>
ARTICLE III
Funding
3.1 Payroll Deduction.
3.1(a) At the time a Participant files his authorization for payroll
deduction from his Actual Base Pay for an Offering, he shall elect to have
deductions made form his Actual Base Pay on each payday during the period he is
a Participant and an Eligible Employee with respect to an Offering at a fixed
rate of 2% to 15%, inclusive but in whole percentages, of his Actual Base Pay.
3.1(b) During November of a calendar year for which an Eligible Employee
is a Participant, the Participant may also file an authorization for payroll
deduction from his Bonus payable in December of the year. The maximum amount of
this authorization shall be the lesser of:
(i) his Bonus for the calendar year payable in December, or
(ii) 15% of his Annual Base Pay Rate for the Offering, reduced by
his Actual Base Pay payroll deductions under the Plan for the calendar
year.
3.1(c) A Participant may discontinue his participation in the Plan by
filing a written notice thereof with the Administrator, but no other change in
an elected payroll deduction can be made by a Participant during an Offering.
3.1(d) A Participant may not make any separate cash payment to the
Plan.
3.1(e) If the number of shares of Common Stock for which options are
granted to a Participant is limited by reason of the maximum number of shares
which may be issued under paragraph 4.2, the Administrator may reduce the
maximum percentage of Actual Base Pay which may be contributed to the Plan
accordingly.
3.2 Participant Accounts. All payroll deduction contributions made by or
for a Participant shall be credited to his Account under the Plan. A
participant's Account is a bookkeeping account maintained by one or more
Employers designated by the Administrator to reflect a Participant's
contributions accumulated under the Plan.
3.3 Adjustments to Participant Accounts. Each Participant's Account shall
be appropriately credited for contributions and any interest provided under the
Plan and debited for option exercise costs and distributions from the Account to
the Participant or his Beneficiary.
<PAGE>
3.4 Interest on Participant Accounts.
3.4(a) No interest normally will be paid or allowed on any money paid into
the Plan or credited to the Account of any Participant; provided, however, that
interest shall be paid on any and all money which is distributed to a
Participant or his Beneficiary pursuant to the provisions of subparagraph 4.2(c)
or paragraph 7.1, 7.2 or 7.3.
3.4(b) Distributions which are credited with interest shall bear simple
interest during the period from the beginning of the month immediately following
the month of withholding or other payment to the end of the month immediately
preceding in which a return is made at the regular passbook savings account
rates in effect at the beginning of each month at the F & M Bank - Winchester,
Winchester, Virginia, during the applicable period or, if such rates are not
published or otherwise available for such purpose, at the regular passbook
savings account rates in effect at the beginning of each month during such
period at another major commercial bank in the Commonwealth of Virginia selected
by the Administrator.
3.4(c) Where the amount distributed represents an excess amount in a
Participant's Account after such Account has been applied to the purchase of
Common Stock, the Participant's Account balance shall be deemed to have been
applied first toward purchase of Common Stock under the Plan, so that interest
shall be paid on the last withholdings during the period which results in the
excess amount.
3.5 Plan Costs and Expenses. All costs and benefits under and expenses
of the Plan, including reasonable legal, accounting, and other fees and expenses
incurred in the establishment, amendment, administration and termination of the
Plan, shall be paid by the Employers from their general assets in such manner
and proportions as the Plan Sponsor shall determine.
3.6 Status of Employer Obligations under the Plan.
3.6(a) The Employers' obligation under the Plan shall be an unfunded
obligation payable solely from the general assets of the Employer and subject to
the claims of the Employer creditors. Each Participant, his Beneficiary and any
other person having or claiming a right to payment hereunder or to any interest
under the Plan shall rely solely on the unsecured promise of the Employer to
make payments or issue Common Stock due hereunder. Each Participant, his
Beneficiary, and any other person having or claiming a right to payments under
the Plan shall have the right to enforce such claim against the Employer in the
same manner as an unsecured creditor of the Employer. Nothing contained in the
Plan shall be deemed to create a trust of any kind. All amounts received or held
by the Employer under the Plan may be used by the Employer for any corporate
purpose and the Employer shall not be obligated to segregate such amounts.
<PAGE>
3.6(b) Nothing contained herein shall be deemed to give any Participant or
Beneficiary any interest in any specific part of the assets of the Employer or
any legal or equitable rights other than his right to receive benefits in
accordance with the provisions of the Plan.
ARTICLE IV
Offerings
4.1 Offerings. Offering shall be made on a calendar year basis.
4.2 Shares Available for Offerings.
4.2(a) The Administrator shall determine the number of shares, if any, of
Common Stock to be issued in connection with any Offering, subject to the limits
provided in the Plan. If the Administrator takes no action regarding the number
of shares available for any Offering, the maximum number shall be considered
available.
4.2(b) The maximum number of shares of Common Stock which shall be issued
under the Plan and the maximum number of shares issued with respect to any
Offering shall, subject to adjustment upon changes in capitalization of the Plan
Sponsor as provided in paragraph 4.3, be:
o From January 1, 1998 to December 31, 1998: 50,000 shares
o From January 1, 1999 to December 31, 1999: 50,000 shares plus
shares available for but unissued after the preceding year's Offering,
whether offered or not.
o From January 1, 2000 to December 31, 2000: 50,000 shares plus
shares available for but unissued after prior Offerings, whether offered
or not.
o From January 1, 2001 to December 31, 2001: 50,000 shares plus
shares available for but unissued after prior Offerings, whether offered
or not.
o From January 1, 2002 to December 31, 2002: 50,000 shares plus
shares available for but unissued after prior Offerings, whether offered
or not.
4.2(c) If the total number of shares for which options are exercised on
any Offering Termination Date exceeds the maximum number of shares for the
applicable Offering, the Administrator shall make a pro rata allocation of the
shares available for delivery and distribution in as nearly a uniform manner as
shall be practicable and as it shall determine to be equitable, and the balance
of each Participant's Account under the Plan shall be returned to him as
promptly as possible.
<PAGE>
4.3 Adjustment upon Changes in Capitalization or Other Events.
4.3(a) If, while any option is outstanding, the outstanding shares of
Common Stock have increased, decreased, changed into, or been exchanged for a
different number of kind of shares or securities of the Plan Sponsor through
reorganization, merger, recapitalization, reclassification, stock split, reverse
stock split, stock dividend or similar transaction, appropriate and
proportionate adjustments may be made by the Administrator in the number and/or
kind of shares which are subject to purchase under outstanding options and on
the option exercise price or prices applicable to such outstanding options. In
addition, in any such event, the number and/or kind of shares which may be
offered in the Offerings described in paragraph 4.2 shall also be
proportionately adjusted.
4.3(b) Upon the dissolution or liquidation of the Plan Sponsor, or upon a
reorganization, merger, or consolidation of the Plan Sponsor with one or more
corporations as a result of which the Plan Sponsor is not the surviving
corporation and the Plan is not continued by corporate succession, or upon a
sale of substantially all of the property or stock of the Plan Sponsor to
another corporation, the holder of each option then outstanding under the Plan
will thereafter be entitled to receive at the next Offering Termination Date
upon the exercise of such option for each share as to which such option shall be
exercised, as nearly as reasonably may be determined, the cash, securities
and/or property which a holder of one share of the Common Stock was entitled to
receive upon and at the time of such transaction. The Board shall take such
steps in connection with such transactions as it shall deem necessary to assure
that the provisions of this subparagraph shall thereafter be applicable, as
nearly as reasonably may be determined, in relation to the said cash, securities
and/or property as to which such holder of such option might thereafter be
entitled to receive.
ARTICLE V
Options
5.1 Number of Option Shares Granted. On the Offering Commencement Date of
each Offering, a Participant with respect to that Offering shall be deemed to
have been granted an option to purchase a maximum number of whole shares of
Common Stock (rounded to the nearest whole share) equal to (i) 15% multiplied by
(ii) the Participant's Annual Base Pay Rate for the Offering and then (iii)
divided by 85% of the Market Value of the Common Stock on the applicable
Offering Commencement Date. If the aggregate shares to be purchased by all
Participants for an Offering exceeds the maximum number permitted in paragraph
4.2, the number of shares shall be reduced pro rata so that the maximum is not
exceeded.
5.2 Option Price. The option price of Common Stock purchased with a
Participant's Account for an Offering shall be the lesser of:
(i) 85% of the Market Value of the Common Stock on the Offering
Commencement Date; or
<PAGE>
(ii) 85% of the Market Value of the Common Stock on the Offering
Termination Date.
5.3 Non-Transferability of Option. During a Participant's lifetime,
options held by the Participant under the Plan shall not be transferable and
shall only be exerciseable by the Participant.
5.4 Participant's Interest in Optioned Stock. The Participant will have
no interest in Common Stock covered by his option until such option has been
exercised and certificates therefor have been issued.
ARTICLE VI
Exercise of Options
6.1 Automatic Exercise. A Participant's option for the purchase of Common
Stock with his Account attributable to his contributions with respect to any
Offering will be deemed to have been exercised automatically on the Offering
Termination Date applicable to such Offering, and there shall be purchased that
number of full shares of Common Stock which the balance in his Account at that
time will purchase at the applicable option price (but not in excess of the
number of shares for which options have been granted to the him pursuant to
paragraph 5.1). Any balance in his Account which is not used to purchase Common
stock at that time will be returned to him.
6.2 Fractional Shares. Fractional shares will not be issued under the Plan
for any Offering and any balance in a Participant's Account which would have
been used to purchase fractional shares will be returned to the Participant or,
if the Participant is deceased, to his Beneficiary, promptly following the
termination of the Offering in question, without interest.
6.3 Delivery of Common Stock. As promptly as practicable after the
Offering Termination Date of each Offering, the Plan Sponsor or the
Administrator will deliver to each Participant or his Beneficiary, as
appropriate, the Common Stock purchased upon exercise of his option.
6.4 Cancellation of Options. Options granted to a Participant which are
not exercised at the Offering Termination Date of an Offering shall thereupon be
canceled.
ARTICLE VII
Cessation of Participation and Distribution of Accounts
7.1 Voluntary Cessation of Participation.
7.1(a) By written notice to the Administrator, at any time prior to the
Offering Termination Date applicable to any Offering, a Participant may elect to
discontinue his participation in the Offering and withdraw the entire balance of
his Account at such time. In such event, he shall cease to be a Participant with
respect to the Offering upon the filing of the written notice.
<PAGE>
7.1(b) If a Participant elects to discontinue his participation in an
Offering as provided in subparagraph 7.1(a), the entire balance credited to his
Account will then be paid to him promptly after receipt of his notice by the
Administrator, and no further payroll deductions (whether from Actual Base Pay
or Bonus) will be made from his pay for such Offering.
7.1(c) A Participant's withdrawal from any Offering will not have any
effect upon his eligibility to participate in any succeeding Offering or in any
similar plan which may hereafter be adopted by the Plan Sponsor or any
Affiliate.
7.2 Termination of Employment Generally. Upon termination of the
Participant's employment as an Eligible Employee for any reason (including
death), whether voluntarily or involuntarily, other than for retirement as
provided in paragraph 7.3, or in the event of the Participant's death after
retirement bur before the Offering Termination Date for an Offering, the balance
in the Participant's Account will be returned to him or, in the case of his
death, to his Beneficiary.
7.3 Termination of Employment Due to Retirement. Subject to the provisions
of paragraph 7.2, upon termination of a Participant's employment because of his
retirement under the Plan Sponsor's qualified Retirement Plan, the Participant
shall have the right to elect, by written notice given to the Administrator
prior to the earlier of the Offering Termination Date or the expiration of a
period of 60 days commencing with the date of his retirement, either:
(i) to withdraw the entire balance in his Account, or
(ii) to exercise his option for the purchase of Common Stock on the
Offering Termination Date coinciding with or next following the date of
his retirement for the purchase of the number of full shares of Common
Stock which the accumulated balance in his Account at the Offering
Termination Date will purchase at the applicable option price, and any
excess in his Account will be returned to him.
In the event that no such written notice of election shall be duly
received by the Administrator, the Participatn shall automatically be deemed to
have elected under alternative (ii) to exercise his option.
ARTICLE VIII
Stock Issuance
8.1 Issuance of Common Stock Certificates.
8.1(a) As soon as practicable after the exercise of an option, the
Administrator shall notify the Plan Sponsor and the Plan Sponsor shall deliver
to the Participant or, if the Participant is deceased, his Beneficiary,
certificates representing the shares purchased thereunder.
<PAGE>
8.1(b) Stock certificates to be delivered to a Participant under the Plan
will be registered in the name of the Participant or, if the Participant so
directs by written notice to the Administrator prior to the Offering Termination
Date applicable thereto, in the names of the Participant and one such other
person as may be designated by the Participant, as joint tenants with rights of
survivorship or as tenants by the entireties, to the extent permitted by
applicable law.
8.2 Restrictions on Exercise. The Board may, in its discretion, require as
conditions to the exercise of any option and issuance of any shares that the
shares of Common Stock reserved for issuance upon th exercise of the option
shall have been duly listed, upon official notice of issuance, upon a stock
exchange, and that either:
(i) a Registration Statement under the Securities Act of 1933, as
amended, with respect to said shares shall be effective, or
(ii) the Participant shall have represented at the time of purchase,
in form and substance satisfactory to the Plan Sponsor, that it is his
intention to purchase the shares for investment and not for resale or
distribution.
ARTICLE IX
Death Beneficiary
9.1 Disposition of Plan Benefits after Death. Upon the death of a
Participant and upon receipt by the Administrator of proof of the Participant's
death and the determination and identity of the Participant's Beneficiary, the
Administrator shall deliver such Common Stock and/or cash to such Beneficiary as
is due under the Plan.
9.2 Beneficiary Designation.
9.2(a) Each Participant shall have the right to notify the Administrator
in writing of any designation of a Beneficiary to receive, if alive, benefits
under the Plan in the event of his death. Such designation may be changed from
time to time by notice in writing to the Administrator.
9.2(b) If a Participant dies without having designated a Beneficiary, or
if the Beneficiary so designated has predeceased the Participant or cannot be
located by the Administrator within one year after the date when the
Administrator commenced making a reasonable effort to locate such Beneficiary,
then his surviving spouse, or if none, then his estate shall be deemed to be his
Beneficiary.
9.2(c) Any Beneficiary designation may include multiple, contingent or
successive Beneficiaries and may specify the proportionate distribution to each
Beneficiary. If a Beneficiary shall survive the Participant, but shall die
before the entire benefit payable to such Beneficiary has been distributed, then
absent any other provision by the Participant, the unpaid amount of such benefit
shall be distributed to the estate of the deceased Beneficiary. If multiple
Beneficiaries are designated, absent provisions by the Participant, those named
or the survivors of them shall share equally any benefits payable under the
Plan. Any Beneficiary shall be entitled to disclaim any benefit otherwise
payable to him under the Plan.
<PAGE>
ARTICLE X
Plan Administration
10.1 Appointment of Plan Administrator.
10.1(a) The Plan Sponsor may appoint two or more persons to serve as the
Plan Administrator (the "Administrator") for the purpose of carrying out the
duties specifically imposed on the Administrator by the Plan and the Code. Upon
the death, resignation or removal of a person serving as, or on a committee
which is, the Administrator, the Plan Sponsor may, but need not, appoint a
successor. The persons shall form an administrative committee for the Plan. The
committeemen serving as Administrator shall serve for indefinite terms at the
pleasure of the Plan Sponsor, and may, by thirty (3) days prior written notice
to the Plan Sponsor, terminate such appointment.
10.1(b) Unless otherwise determined by the Plan Sponsor, the Management
Compensation and Stock Option Committee of the Board shall be the Plan
Administrator.
10.2 Authority of Administrator. Subject to the express provisions of the
Plan, the Administrator shall have plenary authority in its discretion to
interpret and construe any and all provisions of the Plan, to adopt rules and
regulations for administering the Plan, and to make all other determinations
deemed necessary or advisable for administering the Plan. The Administrator's
determination on the foregoing matters shall be conclusive.
10.3 Rules Governing the Operation of the Administrator. The
Administrator shall select one of its members as its Chairman. The Administrator
may appoint a Secretary and shall make such rules and regulations for the
conduct of its business as it shall deem advisable. The Administrator shall hold
its meetings at such times and places as it shall deem advisable and may hold
telephonic meetings. A majority of its members shall constitute a quorum. All
determinations of the Administrator shall be made by a majority of its members.
The Administrator may correct any defect or omission or reconcile any
inconsistency in the Plan, in the manner and to the extent it shall deem
desirable. Any decision or determination reduced to writing and signed by all of
the members of the Administrator shall be as fully effective as if it has been
made by a majority vote at a meeting duly called and held. No person serving as,
or on a committee constituting, the Administrator who is a Participant shall
take any part as the Administrator in any discretionary action in connection
with his participation as an individual. Such action shall be taken by the
remaining members of the Administrator, if any, or otherwise by the Plan
Sponsor.
<PAGE>
ARTICLE XI
Amendment and Termination of Plan
11.1 Amendment and Termination.
11.1(a) The Plan may be amended or terminated in whole or in part at any
time by action of the Board; provided, however, that the Board shall not,
without the approval of the stockholders of the Plan Sponsor, (i) increase the
maximum number of shares which may be issued under any Offering (except pursuant
to paragraph 4.3), (ii) increase the maximum percentage of a Participant's
Annual Base Pay Rate or Actual Base Pay that can be contributed to the Plan,
(iii) reduce the price per share at which Common Stock may be sold, (iv) amend
the requirement as to the class of employees eligible to purchase Common Stock
under the Plan (other than by designating Affiliates which may become
participating Employers), or (v) permit the issuance of Common Stock before
payment therefor in full.
11.1(b) No termination, modification, or amendment of the Plan may,
without the consent of the affected Participant then having an option under the
Plan to purchase Common Stock, adversely affect the rights of such Participant
under such option to use his then Account balance (without further increase or
contribution) to exercise such option in accordance with the Plan.
11.2 Termination Events with Respect to Employers Other Than the Plan
Sponsor.
11.2(a) The Plan shall terminate with respect to any Employer other than
the Plan Sponsor, and such Employer shall automatically cease to be a
participating Employer in the Plan and its employees shall cease to be
considered Eligible Employees, upon the happening of any of the following
events:
(i) Action by its Board or the Board terminating the Plan as to it
and specifying the date of such termination. Notice of such termination
shall be delivered to the Administrator and the Plan Sponsor.
(ii) Its ceasing to be an Affiliate.
11.2(b) Notwithstanding the foregoing provisions of this Article XII, the
merger or liquidation of any Employer or the consolidation of two (2) or more of
the Employers shall not cause the Plan to terminate with respect to the merging,
liquidating or consolidating Employers, provided that the Plan has been adopted
or is continued by and has not terminated with respect to the surviving or
continuing Employer.
<PAGE>
ARTICLE XII
Miscellaneous
12.1 Governing Law. The Plan shall be construed, enforced and administered
in accordance with the laws of the Commonwealth of Virginia, and any federal law
preempting the same.
12.2 Employment Rights. Participation in the Plan shall not give any
Employee the right to be retained in the Employer's employ nor, upon dismissal
or upon his voluntary termination of employment, to have any right or interest
under the Plan other than as herein provided.
12.3 Effect of Plan. The provisions of the Plan shall, in accordance with
its terms, be binding upon, and inure to the benefit of, all successors of each
Participant, including, without limitation, such Participant's estate and the
executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of such
Participant.
12.4 Conclusiveness of Employer Records. The records of the Employer with
respect to age, service, employment history, compensation, absences, illnesses
and all other relevant matters shall be conclusive for purposes of the
administration of the Plan.
12.5 Alienation. Except as may be provided in the Plan in the event of a
Participant's death, no Account balance and no option to purchase Common Stock
granted hereunder shall be subject in any manner to alienation, whether by
voluntarily or involuntarily, by sale, anticipation, transfer, assignment,
pledge, encumbrance, garnishment, attachment, execution or levy of any kind. Any
such attempted assignment shall be without effect, except that the Administrator
may in its discretion treat such act as an election to cease participation and
withdraw funds in accordance with paragraph 7.1.
12.6 Notices and Elections. All notices required to be given in writing
and all elections required to be made in writing, under any provision of the
Plan, shall be invalid unless made on such forms as may be provided or approved
by the Administrator and, in the case of a notice or election by a Participant
or Beneficiary, unless dated and executed by the Participant or Beneficiary
giving such notice or making such election.
12.7 Delegation of Authority. Whenever the Plan Sponsor or any Employer is
permitted or required to perform any act, such act may be performed by its Chief
Executive Officer, its President or its Board of Directors or by any person duly
authorized by any of the foregoing.
12.8 Purpose and Construction. The Plan is intended to provide a method
whereby Eligible Employees of the Plan Sponsor and other Employers an
opportunity to acquire a proprietary interest in the Plan Sponsor through the
purchase of shares of Common Stock. It is intended that the Plan qualify as an
"employee stock purchase plan" under Section 423 of the Code. The provisions of
the Plan shall be construed so as to extend and limit participation in a manner
consistent with the requirements of Section 423 of the Code.
<PAGE>
ARTICLE XIII
Adoption of the Plan
13.1 Establishment and Effectiveness of the Plan. The Plan shall become
effective as of January 1, 1998, subject to the approval by the holders of the
majority of the Common Stock present and represented at a special or annual
meeting of the shareholders of the Plan Sponsor held on or before November 1,
1998. If the Plan is not so approved, the Plan shall not become effective and
all funds received by the Employer shall be returned to Participants without
interest.
13.2 Adoption by Additional Employers. Any corporation which is an
Affiliate and which, with the consent of the Administrator and the approval of
its Board of Directors, desires to adopt the Plan, may do so by executing an
adoption agreement in a form authorized by the Administrator.
<PAGE>
F&M NATIONAL CORPORATION
1998 EMPLOYEE STOCK DISCOUNT PLAN
Execution Page
IN WITNESS WHEREOF, the Plan Sponsor, pursuant to the resolution duly
adopted by its Board of Directors, has caused its name to be signed to this F&M
National Corporation 1998 Employee Stock Discount Plan by its duly authorized
officer with its corporate seal hereunto affixed and attested by its Secretary
or Assistant Secretary, as of the day and year below written.
Date: February 19, 1998 F&M NATIONAL CORPORATION,
Plan Sponsor and participating Employer
By: /s/ Alfred B. Whitt
-------------------------
Alfred B. Whitt
Its: President, Vice Chairman and CFO
Attest:
/s/ Michael L. Bryan
- -----------------------
Michael L. Bryan
Its: Secretary
Exhibit 99.2
MEMO: EMPLOYEES OF F&M NATIONAL CORPORATION AND ALL
SUBSIDIARIES
FROM. ALFRED B. WHITT, PRESIDENT, VICE CHAIRMAN AND CHIEF
FINANCIAL OFFICER
DATE: __________ __, 1998
F&M National Corporation's Board of Directors has approved a Section 423
employee stock purchase plan. The name of the plan is the F&M National
Corporation 1998 Employee Stock Discount Plan. This plan is effective for 1998
through 2002. Under the plan, you may purchase F&M National Corporation common
stock at a 15% discount.
Attached to this memo are the following:
1. Prospectus for the plan.
2. Base Pay Payroll Deduction Authorization form.
A brief "Summary" of the plan appears below:
F&M NATIONAL CORPORATION
1998 EMPLOYEE STOCK DISCOUNT PLAN
WHEN AM I ELIGIBLE?
You are eligible to participate in the F&M National Corporation 1998
Employee Stock Discount Plan for a calendar year if you were continuously
employed since the immediate preceding July 1 and you customarily work more than
20 hours per week and more than 5 per year.
Thus, you will be eligible for 1998 if you were at work on July 1, 1997
and continued to work until January 1, 1998. Also, as of January 1, 1998, you
must customarily work more than 20 hours per week and more than 5 months per
year.
HOW DO I ENROLL IN THE PLAN?
You may enroll as a participant in the plan for a calendar year by
completing and returning the Base Pay Payroll Deduction Authorization form on
which you elect to make base pay payroll deductions to the plan for the year.
<PAGE>
For 1998, you must return the Base Pay Payroll Deduction Authorization
form no later than ____________ __, 1998 in order to participate for 1998.
WHAT AMOUNT MAY I CONTRIBUTE?
You may make contributions to the plan of 2% to 15% of your base pay
(including overtime and shift premiums), beginning with the January __, 1998 pay
day (and for later years, beginning with the first pay day in the year). In
addition, if you enroll in the plan and are still making base pay payroll
contributions, you may direct that all or part of any bonus received be
contributed to the plan (subject to limits in the plan). There is no matching
contribution for this plan.
MAY I STOP MY CONTRIBUTIONS TO THE PLAN?
You may request that your contributions for a year be returned to you at
any time prior to the end of the calendar year. In that event, you may not make
any more contributions to the plan for that year.
HOW MUCH STOCK CAN I PURCHASE IN A YEAR?
Subject to the limits in the plan, you may purchase that number of whole
shares (rounded to the nearest share) of stock equal to 15% of your annual base
pay rate at January 1 (annualized base pay without overtime or shift premiums)
divided by 85% of the per share market price at that time. Stated another way,
you can purchase approximately that number of shares equal to 17.65% of your
annual base pay rate divided by the January 1 market price.
WHAT PRICE WILL I PAY?
The purchase price of stock for a calendar year will be 85% of whichever
is lower: the market price at the beginning of the year, or the market price at
the end of the year. Thus, you are normally will receive an immediate 15% gain
and, perhaps, even more.
All stock purchases for a year will occur as of December 31 of the year.
Any contributions of a year which are not used to purchase stock will be
refunded to you.
WHAT IS THE TAX TREATMENT?
Normally, there is no taxable amount for federal income tax purposes until
the stock is sold or otherwise transferred. If the stock is sold or transferred,
the value of the discount normally is taxed as ordinary income at that time.
Other tax rules may apply. Please refer to the Prospectus for a more
complete summary of the applicable federal income tax rules applicable to the
plan.
<PAGE>
MAY I SELL MY STOCK?
While F&M hopes you will continue as a shareholder/owner, there are no
restrictions that prevent you from selling your stock at any time after you
receive the stock certificate.
ARE THERE ANY LIMITATIONS WHICH MAY PREVENT ME FROM BUYING STOCK UNDER THE PLAN?
There are a number of special rules which may limit or eliminate your
right to buy stock under the plan. Normally, if your employment with F&M ends
before the end of the calendar year for which you are participating, your
contributions will be returned to you and you may not buy stock for that year.
Other limits also apply.
Please refer to the Prospectus for a more complete summary of the
limitations and special rules applicable under the plan.
Exhibit 99.3
F&M NATIONAL CORPORATION 1998 EMPLOYEE STOCK DISCOUNT PLAN
Base Pay Payroll Deduction Authorization
Participant's Name: _______________________ Soc. Sec. No.: _______________
Calendar Year Effective: __________________
I elect to contribute _____% [Insert whole percentage from 2% to 15%,
inclusive, or 0% if no contribution is desired] of my base pay (base salary or
wages plus overtime and shift premium) each pay period as a base pay payroll
deduction contribution to the F&M National Corporation 1998 Employee Stock
Discount Plan. This election is effective for the above Calendar Year.
I understand that:
1. This election will not be effective unless it is timely filed with the
Plan Administrator in accordance with the Plan's requirements.
2. My contribution election will remain in force for the above Calendar
Year so long as I am a regular employee, unless terminated by me (which I may do
at any time by filing a written notice with the plan administrator of the Plan
at least 5 days in advance).
3. My elected contribution may be limited or reduced by the Plan
Administrator in order to comply with contributions or other limitations imposed
under the Plan.
4. This election is subject to all of the terms and conditions of the
Plan, whether currently or hereafter adopted.
5. This election supersedes any prior election by me under the Plan.
Date: _____________ Participant's Signature:______________________________
- --------------------------------------------------------------------------------
Date Received: ________ For Plan Administrator:___________________________
- --------------------------------------------------------------------------------
