As filed with the Securities and Exchange Commission on December 4, 1998.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
F&M BANCORP
(Exact name of registrant as specified in its charter)
MARYLAND 52-1316473
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
110 THOMAS JOHNSON DRIVE
FREDERICK, MARYLAND 21702
(Address of Principal Executive Offices including Zip Code)
MONOCACY BANCSHARES, INC. 1994 STOCK INCENTIVE PLAN
MONOCACY BANCSHARES, INC. 1997 INDEPENDENT DIRECTORS' STOCK OPTION PLAN
(Full title of the plan(s))
GORDON M. COOLEY, ESQ.
SECRETARY AND GENERAL COUNSEL
F&M BANCORP
110 THOMAS JOHNSON DRIVE
FREDERICK, MARYLAND 21702
(Name and address of agent for service)
(301) 694-4000
(Telephone number, including area code, of agent for service).
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF AMOUNT TO OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED * SHARE ** PRICE ** FEE **
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Common Stock,
$5.00 par value 90,538 N/A N/A $840.04
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*Represents the maximum number of shares available for issuance under the
Plan.
**The registration fee has been computed pursuant to Rule 457 (h)(1) under
the Securities Act of 1933, as amended, based on the average of the high
and low prices per share for the common stock of the Registrant as reported
on The Nasdaq National Market System on December 3, 1998 of $33 3/8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, filed with the Securities and Exchange
Commission (the "Commission") by the registrant, F&M Bancorp (the
"Company"), a Maryland corporation, File No. 0-12638, pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997 (the "1997 Form 10-K");
(2) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1998, June 30, 1998 and September 30, 1998;
(3) The Company's Current Reports on Form 8-K filed on
September 10, 1998 and November 20, 1998, respectively;
(4) The portions of the Company's Proxy Statement for its
Annual Meeting of Shareholders held on April 21, 1998 that have been
incorporated by reference in the 1997 Form 10-K; and
(5) The description of the common stock, par value $5.00 per
share, of the Company (the "Company Common Stock") set forth in the
Company's Registration Statement on Form 8-B filed pursuant to Section 12
of the Exchange Act, including any amendment or report filed for purposes
of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all such securities then
remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for
purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Company Common Stock offered
pursuant to this Registration Statement will be passed upon for the Company
by Gordon M. Cooley, General Counsel and Secretary of the Company. As of
the date of this document, Mr. Cooley beneficially owned 20,840 shares of
Company Common Stock and held options to purchase 2,277 shares of Company
Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Maryland General Corporation Law permits a corporation to
indemnify its present and former directors, among others, against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by them in connection with any proceeding to which they may be
made a party by reason of their services in those capacities, unless it is
established that (a) the act or omission of the director or officer was
material to the matter giving rise to such proceeding and (i) was committed
in bad faith or (ii) was the result of active and deliberate dishonesty; or
(b) the director actually received an improper personal benefit in money,
property, or services; or (c) in the case of any criminal proceeding, the
director had reasonable cause to believe that the act or omission was
unlawful. Maryland law permits a corporation to indemnify a present and
former officer to the same extent as a director. In addition to the
foregoing, a court of appropriate jurisdiction may under certain
circumstances order indemnification if it determines that the director or
officer is fairly and reasonably entitled to indemnification in view of all
of the relevant circumstances, whether or not the director or officer has
met the standards of conduct set forth in the preceding provisions or has
been adjudged liable on the basis that a personal benefit was improperly
received in a proceeding charging improper personal benefit to the director
or the officer. If the proceeding was an action by or in the right of the
corporation or involved a determination that the director or officer
received an improper personal benefit, however, no indemnification may be
made if the individual is adjudged liable to the corporation, except to the
extent of expenses approved by a court of appropriate jurisdiction. In
addition, the Maryland General Corporation Law permits a corporation to pay
or reimburse, in advance of the final disposition of a proceeding,
reasonable expenses (including attorney's fees) incurred by a present or
former director or officer made a party to the proceeding by reason of his
service in that capacity, provided that the corporation shall have received
(a) a written affirmation by the director or officer of his good faith
belief that he has met the standard of conduct necessary for
indemnification by the corporation; and (b) a written undertaking by or on
behalf of the director to repay the amount paid or reimbursed by the
corporation if it shall ultimately be determined that the standard of
conduct was not met.
The Company has provided for indemnification of directors,
officers, employees and agents in Article Eighth, Section (5) of its
charter, as amended. This provision reads as follows:
(5) The Corporation shall indemnify (a) its directors and
officers, whether serving the Corporation or at its request any other
entity, to the full extent required or permitted by the General Laws
of the State of Maryland now or hereafter in force, including the
advance of expenses under the procedures and to the full extent
permitted by law; (b) other employees and agents to such extent as
shall be authorized by the Board of Directors or the Corporation's
By-laws and be permitted by law. The foregoing rights of
indemnification shall not be exclusive of any other rights to which
those seeking indemnification may be entitled. The Board of Directors
may take such action as is necessary to carry out these
indemnification provisions and is expressly empowered to adopt,
approve and amend from time to time such by-laws, resolutions or
contracts implementing such provisions or such further
indemnification arrangements as may be permitted by law. No amendment
of the charter of the Corporation or repeal of any of its provisions
shall limit or eliminate the right to indemnification provided
hereunder with respect to acts or omissions occurring prior to such
amendment or repeal.
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 Securities 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 of whether such indemnification by it
is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
The Maryland General Corporation Law authorizes a Maryland
corporation to limit by provision in its charter the liability of directors
and officers to the corporation or to its stockholders for money damages
except to the extent that (i) the director or officer actually received an
improper benefit or profit in money, property, or services, for the amount
of the benefit or profit actually received, or (ii) a judgment or other
final adjudication adverse to the director or officer is entered in a
proceeding based on a finding in the proceeding that the director's or
officer's action, or failure to act, was the result of active and
deliberate dishonesty and was material to the cause of action adjudicated
in the proceeding.
The Company has limited the liability of its directors and
officers for money damages in Article Eighth, Section (6) of its charter.
This provision reads as follows:
(6) To the fullest extent permitted by Maryland statutory or
decisional law, as amended or interpreted, no director or officer of
this Corporation shall be personally liable to the Corporation or its
stockholders for money damages. No amendment of the charter of the
Corporation or repeal of any of its provisions shall limit or
eliminate the benefits provided to directors and officers under this
provision with respect to any act or omission which occurred prior to
such amendment or repeal.
As permitted under Section 2-418 (k) of the Maryland General
Corporation Law, the Company has purchased and maintains insurance on
behalf of its directors and officers against any liability asserted against
such directors and officers in their capacities as such, whether or not the
Company would have the power to indemnify such persons under the provisions
of Maryland law governing indemnification.
Section 8(k) of the Federal Deposit Insurance Act (the "FDI
Act") provides that the Federal Deposit Insurance Corporation (the "FDIC")
may prohibit or limit, by regulation or order, payments by any insured
depository institution or its holding company for the benefit of directors
and officers of the insured depository institution, or others who are or
were "institution-affiliated parties," as defined under the FDI Act, in
order to pay or reimburse such person for any liability or legal expense
sustained with regard to any administrative or civil enforcement action
which results in a final order against the person. The FDIC has adopted
regulations prohibiting, subject to certain exceptions, insured depository
institutions, their subsidiaries and affiliated holding companies from
indemnifying officers, directors or employees for any civil money penalty
or judgment resulting from an administrative or civil enforcement action
commenced by any federal banking agency, or for that portion of the costs
sustained with regard to such an action that results in a final order or
settlement that is adverse to the director, officer or employee.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. REQUIRED UNDERTAKINGS.
The Company 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, as amended (the "Securities
Act");
(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
Exchange Act that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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 that 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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) 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) - (g) Not applicable.
(h) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Company 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
Company will, unless in 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 Securities Act and will be governed by the final
adjudication of such issue.
(i) - (j) Not applicable.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing this Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, there
unto duly authorized, in the City of Frederick, State of Maryland, on this
4th day of December, 1998.
F&M BANCORP
By: /s/ Faye E. Cannon
Faye E. Cannon
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
We, the undersigned officers and directors of F&M Bancorp
hereby severally and individually constitute and appoint Gordon M. Cooley
and Faye E. Cannon, and each and either of them, his or her true and lawful
attorney-in-fact and agent for him or her and in his or her name, place and
stead, in any and all capacities, to sign this Registration Statement on
Form S-8 to be filed with the Securities and Exchange Commission, and any
and all instruments and documents filed as part of or in connection with or
supplements or amendments thereto covering the offering and issuance of
Company Common Stock pursuant to such Registration Statement, as so amended
or supplemented, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that the
said attorneys-in-fact and agents or any of them, shall do or cause to be
done by virtue hereof.
NAME TITLE DATE
/s/ Faye E. Cannon President, Chief Executive December 4, 1998
______________________ Officer and Director
Faye E. Cannon (Principal
Executive Officer)
/s/ David L. Spilman Treasurer (Principal December 4, 1998
______________________ Financial
David L. Spilman and Accounting Officer)
/s/ R. Carl Benna Director December 4, 1998
______________________
R. Carl Benna
/s/ Howard B. Bowen Director December 4, 1998
______________________
Howard B. Bowen
/s/ John D. Brunk Director December 4, 1998
_______________________
John D. Brunk
/s/ Beverly B. Byron Director December 4, 1998
_______________________
Beverly B. Byron
/s/ Martha E. Church Director December 4, 1998
_______________________
Martha E. Church
/s/ Albert H. Cohen Director December 4, 1998
_______________________
Albert H. Cohen
/s/ Maurice A. Gladhill Director December 4, 1998
_______________________
Maurice A. Gladhill
/s/ Charles W. Hoff, III Director December 4, 1998
_______________________
Charles W. Hoff, III
/s/ James K. Kluttz Director December 4, 1998
_______________________
James K. Kluttz
_______________________ Director December 4, 1998
Charles A. Nicodemus
/s/ Richard W. Phoebus Director December 4, 1998
_______________________
Richard W. Phoebus
/s/ H. Deets Warfield Director December 4, 1998
_______________________
H. Deets Warfield
/s/ John C. Warfield Director December 4, 1998
_______________________
John C. Warfield
/s/ Thomas R. Winkler Director December 4, 1998
_______________________
Thomas R. Winkler
EXHIBIT INDEX
Exhibit
Number Exhibit Description
4.1 Articles of Incorporation of the Company with all
Articles of Amendment (incorporated by reference
to Exhibit 3.1 of the Company's Quarterly Report
on Form 10-Q for the period ended June 30,
1997).
4.2 Bylaws of the Company (incorporated by reference
to Exhibit 3.2 of the Company's Quarterly Report
on Form 10-Q for the period ended September 30, 1997).
5.1 Opinion of Gordon M. Cooley, General Counsel to
the Company.
23.1 Consent of Arthur Andersen, LLP, Washington, D.C.
23.2 Consent of Smith Elliott Kearns & Company, LLC,
Hagerstown, MD.
23.3 Consent of Gordon M. Cooley (included in Exhibit
5.1 hereto).
24.1 Powers of Attorney (see signature page to this
Registration Statement).
Exhibit 5.1
[F&M Bancorp Letterhead]
December 3, 1998
Board of Directors
F&M Bancorp
110 Thomas Johnson Drive
Frederick, MD 21702
Re: F&M Bancorp
Registration Statement on Form S-8
Gentlemen and Mesdames:
I have acted as General Counsel to F&M Bancorp, a Maryland
corporation (the "Company"), in connection with the preparation of a
Registration Statement of the Company on Form S-8 filed with the Securities
and Exchange Commission (the "Commission") on the date hereof (the
"Registration Statement") relating to the registration and issuance by the
Company of an aggregate of up to 90,538 shares of common stock, par value
$5.00 per share (the "Common Stock"), of the Company pursuant to the
Monocacy Bancshares Inc. 1994 Stock Incentive Plan and the Monocacy
Bancshares, Inc. 1997 Independent Directors' Stock Option Plan (such plans,
as amended pursuant to the provisions of the Merger Agreement (as defined
below) relating to the terms of the options granted thereunder, the
"Plans") which were assumed by the Company pursuant to the Agreement and
Plan of Merger, dated as of September 4, 1998 (the "Merger Agreement"), by
and between the Company and Monocacy Bancshares, Inc., a Maryland
Corporation.
This opinion is delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as
amended.
In connection with this opinion, I have examined originals or
copies, certified or otherwise identified to my satisfaction, of (i) the
Registration Statement, (ii) the Plans, (iii) the form of certificates to
be used to represent the shares of Common Stock, (iv) the Articles of
Incorporation and Bylaws of the Company, as amended to date, (v)
resolutions adopted by the Board of Directors of the Company relating to
the Merger Agreement and the issuance of the shares of Common Stock
pursuant thereto and related matters, and (vi) such other documents as I
have deemed necessary or appropriate as a basis for the opinions set forth
below.
In my examination, I have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of
all documents submitted to me as originals, the conformity to original
documents of all documents submitted to me as certified, conformed or
photostatic copies, and the authenticity of originals of such copies. As
to any facts material to this opinion which I did not independently
establish or verify, I have relied upon statements or representations of
officers and other representatives of the Company and others.
I am admitted to the bar in the State of Maryland, and express no
opinion as to the laws of any other jurisdiction.
Based upon and subject to the foregoing, and assuming the due
execution and delivery of certificates representing the shares of Common
Stock in the form examined by me, I am of the opinion that the shares of
Common Stock to be issued by the Company pursuant to the Plans, when issued
in accordance with the terms of the Plans, will be duly authorized, validly
issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion with the
Commission as Exhibit 5.1 to the Registration Statement. I also consent to
the reference to me under the caption "Interests of Named Experts and
Counsel" in the Registration Statement. In giving such consent I do not
thereby admit that I am in the category of persons whose consent is
required under Section 7 of the Act.
Very truly yours,
/s/ Gordon M. Cooley
Gordon M. Cooley
General Counsel
Exhibit 23.1
[Arthur Andersen LLP Letterhead]
Report of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation
by reference of our report dated January 20, 1998 relating to the
consolidated balance sheets of F&M Bancorp and its subsidiaries as of
December 31, 1997 and 1996 and the related consolidated statements of
income, changes in shareholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1997. This report is
included in the Registration Statement filed on Form S-8, which is to be
filed on December 3, 1998 regarding F&M Bancorp's registration of common
stock in connection with the 1994 Stock Incentive Plan and 1997 Independent
Directors' Stock Option Plan of Monocacy Bancshares, Inc.
/s/ Arthur Andersen LLP
Washington, D.C.
December 3, 1998
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 of
our report dated February 16, 1996 included in F & M Bancorp's Form 10-K
for the year ended December 31, 1997 and to all references to our firm
included in this registration statement.
/s/ Smith Elliott Kearns & Company, LLC
SMITH ELLIOTT KEARNS & COMPANY, LLC
Hagerstown, Maryland
December 3, 1998
