As filed with the Securities and Exchange Commission on December 30, 1999.
Registration No. 333-
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------
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)
PATAPSCO VALLEY BANCSHARES, INC. INCENTIVE STOCK OPTION PLAN
PATAPSCO VALLEY BANCSHARES, INC. DIRECTORS' STOCK OPTION PLAN
PATAPSCO VALLEY BANCSHARES, INC. EMPLOYEE STOCK PURCHASE 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
<TABLE>
<CAPTION>
=============================================================================================
PROPOSED
TITLE OF PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE MAXIMUM AGGREGATE AMOUNT OF
REGISTERED REGISTERED * OFFERING PRICE OFFERING PRICE ** REGISTRATION FEE
PER SHARE** **
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------
Common Stock,
$5.00 par value 24,200 N/A N/A $135.00
=============================================================================================
</TABLE>
- ----------
* 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 28, 1999 of $21.125.
PART I. INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Omitted pursuant to the instructions and provisions of Form S-8
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN INFORMATION.
Omitted pursuant to the instructions and provisions of Form S-8
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, previously filed with the SEC by F&M
Bancorp, a Maryland corporation, File No. 0-12638, pursuant to the
Securities Exchange Act of 1934, are incorporated by reference in this
registration statement:
(1) F&M Bancorp's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998 (the "1998 Form 10-K");
(2) F&M Bancorp's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1999, June 30, 1999 and September 30, 1999;
(3) F&M Bancorp's Current Reports on Form 8-K filed (a) on
September 8, 1999, as amended on September 22, 1999 and October 25, 1999,
(b) on October 4, 1999,as on amended November 1, 1999, (c) on November 30,
1999, and (d) on December 15, 1999;
(4) The portions of F&M Bancorp's Proxy Statement for its
Annual Meeting of Stockholders held on April 20, 1999 that have been
incorporated by reference in the 1998 Form 10-K;
(5) The description of the common stock, par value $5.00 per
share, of F&M Bancorp set forth in the F&M Bancorp 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 descrip tion; and
(6) F&M Bancorp's final proxy statement-prospectus filed
November 5, 1999, pursuant to Rule 424(b) under the Securities Act of 1933.
All documents subsequently filed by F&M Bancorp pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment that indicates that all securities
offered by this registration statement 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 of this registration
statement from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference in this registration statement shall be deemed to be modified or
superseded for purposes of this registration statement to the extent
that a statement contained in this registration statement or in any other
subsequently filed document that also is incorporated or deemed to be
incorporated by reference in this registration statement 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 F&M Bancorp common stock
offered pursuant to this registration statement will be passed upon for
F&M Bancorp by Gordon M. Cooley, General Counsel and Secretary of F&M
Bancorp. As of the date of this document, Mr. Cooley beneficially owned
12,292 shares of F&M Bancorp common stock and held options to purchase
7,782 shares of F&M Bancorp common stock that are vested and options to
purchase 3,914 shares of F&M Bancorp common stock that are not vested.
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
(1) the act or omission of the director was material to the matter
giving rise to such proceeding and
(A) was committed in bad faith or
(B) was the result of active and deliberate dishonesty;
(2) the director actually received an improper personal benefit in
money, property, or services; or
(3) 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 paragraph or has been declared 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
corpora tion, 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 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
(1) 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
(2) 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.
F&M Bancorp 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 arrange ments 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
SEC such indemnifi cation 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 jurisdic
tion 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
(1) the director or officer actually receives an improper benefit
or profit in money, property, or services, for the amount of
the benefit or profit actually received, or
(2) 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.
F&M Bancorp 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, F&M Bancorp 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 F&M
Bancorp 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 administra tive 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.
F&M Bancorp 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 infor
mation 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 SEC 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) F&M Bancorp 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, F&M Bancorp has been advised that in the opinion of the SEC 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 F&M
Bancorp 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, F&M Bancorp 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, F&M
Bancorp 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
30th day of December, 1999.
F&M BANCORP
By: /s/ Faye E. Cannon
-----------------------------------------
Faye E. Cannon
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of F&M Bancorp
hereby severally and individually constitute and appoint each of Gordon M.
Cooley and Faye E. Cannon, our true and lawful attorney-in-fact and agent
(with full power of substitution and resubstitution in each case) of each
of us to execute in the name, place and stead of each of us, individually
and in any and all capacities, any and all amendments (including
post-effective amendments) to this registration statement on Form S- 8 and
all instruments necessary or advisable to enable said company to comply
with the Securities Act of 1933, as amended, and any rules, regulations or
requirements of the SEC in connection therewith and to file the same with
the SEC, and said attorney and agent to have power to act and to have 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 any of the undersigned might or could do in
person, and we hereby ratify and confirm all that the said
attorneys-in-fact and agents or each of them, shall do or cause to be done
by virtue hereof.
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 30TH DAY OF DECEMBER, 1999.
NAME CAPACITY
- ---- --------
/s/ Faye E. Cannon President, Chief Executive Officer and
- ------------------ Director (Principal Executive Officer)
Faye E. Cannon Controller and Vice President
/s/ Anne K. Wright (Principal Financial and Accounting
- ------------------ Officer)
Anne K. Wright
/s/ R. Carl Benna Director
- -------------------
R. Carl Benna
/s/ Howard B. Bowen Director
- -------------------
Howard B. Bowen
/s/ John D. Brunk Director
- ----------------------------
John D. Brunk
/s/ Beverly B. Byron Director
- ---------------------------
Beverly B. Byron
/s/ Martha E. Church Director
- --------------------------
Martha E. Church
/s/ Albert H. Cohen Director
- ---------------------------
Albert H. Cohen
/s/ Maurice A. Gladhill Director
- --------------------------
Maurice A. Gladhill
/s/ Donald R. Hull Director
- -------------------------------
Donald R. Hull
/s/ Charles W. Hoff, III Director
- -----------------------------
Charles W. Hoff, III
/s/ James K. Kluttz Director
- -------------------------------
James K. Kluttz
/s/ Richard W. Phoebus Director
- ------------------------
Richard W. Phoebus
/s/ H. Deets Warfield Director
- --------------------------
H. Deets Warfield
/s/ Thomas R. Winkler Director
- ------------------------
Thomas R. Winkler
EXHIBIT INDEX
Exhibit
Number Exhibit Description
------- -------------------
4.1 Articles of Incorporation of F&M Bancorp with
all Articles of Amend ment (incorporated by
reference to Exhibit 3.1 of F&M Bancorp's
Quarterly Report on Form 10-Q for the period ended
June 30, 1997).
4.2 Bylaws of F&M Bancorp (incorporated by reference
to Exhibit 3.2 of F&M Bancorp's Quarterly Report
on Form 10-Q for the period ended September 30, 1997).
5.1 Opinion of Gordon M. Cooley, General Counsel to
F&M Bancorp.
23.1 Consent of Arthur Andersen LLP, Washington, D.C.
23.2 Consent of Stegman & Company, Baltimore, Maryland
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
December 30, 1999
Board of Directors
F&M Bancorp
110 Thomas Johnson Drive
Frederick, Maryland 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 "SEC") on the date hereof (the "Registration
Statement") relating to the registration and issuance by the Company of an
aggregate of up to 24,200 shares of common stock, par value $5.00 per share
(the "Common Stock"), of the Company pursuant to the Patapsco Valley
Bancshares, Inc. Incentive Stock Option Plan, the Patapsco Valley
Bancshares, Inc. Directors' Stock Option Plan, and the Patapsco Valley
Bancshares, Inc. Employee Stock Option Plan (the "Plans").
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
(the "Act").
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 adoption of the Plans 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 SEC 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
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
----------------------------------------
As independent public accountants, we hereby consent to the
incorporation by reference of our report dated July 28, 1999 relating to
the consolidated balance sheets of F&M Bancorp and its subsidiaries as of
December 31, 1998 and 1997 and the related consolidated statements of
income, changes in stockholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1998. This report is
included in the Registration Statement on Form S-8 regarding the Patapsco
Valley Bancshares, Inc. Incentive Stock Option Plan, the Patapsco Valley
Bancshares, Inc. Directors' Stock Option Plan and the Patapsco Valley
Bancshares, Inc. Employee Stock Option Plan.
/s/ ARTHUR ANDERSEN LLP
--------------------------
ARTHUR ANDERSEN LLP
Washington, D.C.
December 29, 1999
Exhibit 23.2
CONSENT TO INDEPENDENT AUDITORS
-------------------------------
We consent to the incorporation by reference in this Registration
Statement on Form S- 8 of F&M Bancorp of our report dated January 23, 1998
on the consolidated financial statements of Monocacy Bancshares, Inc. as of
December 31, 1997 and 1996, and for each of the three years in the period
ended December 31, 1997, which report is incorporated by reference from
Monocacy's Annual Report on Form 10-K for the year ended December 31, 1997.
/s/ STEGMAN & COMPANY
------------------------
STEGMAN & COMPANY
Baltimore, Maryland
December 30, 1999
