As filed with Securities and Exchange Commission on April 3, 1998
Registration Statement No. 333-_____________
Registration Statement No. 33-55040
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-3
and
Post-Effective Amendment No. 2 to FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------
FCNB Corp
(Exact Name of Registrant as specified in its Charter)
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<S> <C> <C>
Maryland 6021 52-1479635
(State or Other Jurisdiction (Primary Standard (IRS Employer I.D. Number)
of Incorporation or Organization) Industrial Classification Code Number)
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7200 FCNB Court
Frederick, Maryland 21703
(301) 662-2191
(Address, including ZIP Code and Telephone Number, including Area Code of
Registrant's Principal Executive Offices)
A. Patrick Linton, President and Chief Executive Officer
FCNB Corp
7200 FCNB Court
Frederick, Maryland 21703
(301) 662-2191
(Name, Address, including ZIP Code and Telephone Number, including Area
Code, of Agent for Service)
Copies to:
David H. Baris, Esquire
Noel M. Gruber, Esquire
Kennedy, Baris & Lundy, L.L.P.
4719 Hampden Lane, Suite 300
Bethesda, Maryland 20814
(301) 654-6040
Approximate date of commencement of proposed sale to public: As soon as
practicable following effectiveness.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box [X]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box _____
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the securities Act registration statement number of the earlier effective
registration statement for the same offering _____
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering _____
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box _____
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CALCULATION OF REGISTRATION FEE(1)
=============================== ======================= ===================== ======================= ==================
Title of Each Class of Proposed Maximum Proposed Maximum Amount of
Securities Amount to be Offering Price Per Aggregate Offering Registration Fee
to be Registered Registered Unit Price
=============================== ======================= ====================== ======================= =================
<S> <C> <C> <C> <C> <C> <C> <C>
Common Stock, $1.00 par value $6,425,000(1)(2) $32.125(2) $6,425,000(1)(2) $1895.38
=============================== ======================= ====================== ======================= =================
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(1) Reflects newly registered shares to which this registration statement
relates. Excludes 11,338 shares previously registered on Registration
Statement No. 33-55040.
(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) upon the basis of the high and low prices
of the common stock of the registrant as reported on the NASDAQ
National Market System as of March 30, 1998.
The Prospectus to which this Registration Statement relates also relates to
Registration Statement No. 33-55040 previously filed by registrant.
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Prospectus
FCNB CORP
DIVIDEND REINVESTMENT
AND STOCK PURCHASE PLAN
211,338 Shares of Common Stock
($1.00 Par Value Per Share)
----------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------------------------------------------------
The date of this Prospectus is April 3, 1998
It is suggested that this Prospectus
be retained for future reference
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No person is authorized to give any information or to make any
representation other than those contained or incorporated by reference in this
Prospectus in connection with the offer contained in this Prospectus and, if
given or made, any such information or representation must not be relied upon as
having been authorized by FCNB Corp. Neither the delivery of this Prospectus nor
any sale made hereunder shall, under any circumstances, create any implication
that there has been no change in the affairs of FCNB Corp since the date hereof.
TABLE OF CONTENTS
PAGE
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Available Information..................................................... 3
Incorporation of Certain Documents by Reference........................... 3
FCNB Corp................................................................. 4
Description of Plan....................................................... 4
Purpose............................................................... 4
Advantages............................................................ 4
Administration........................................................ 4
Participation......................................................... 5
Optional Cash Investments............................................. 6
Purchases............................................................. 6
Costs................................................................. 7
Reports to Participants............................................... 8
Dividends............................................................. 8
Certificates for Shares............................................... 8
Changing Method of Participation and Withdrawal....................... 9
Other Information..................................................... 9
Use of Proceeds........................................................... 12
Legal Opinion............................................................. 12
Experts................................................................... 12
Securities and Exchange Commission Position on
Indemnification for Securities Act Liabilities......................... 12
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AVAILABLE INFORMATION
FCNB Corp (the "Company") is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Proxy statements, reports and other information
concerning the Company can be inspected and copied at the Commission's office at
450 Fifth Street, N.W., Washington, D.C. 20549 and the Commission's Regional
Offices in New York (7 World Trade Center, Suite 1300, New York, New York 10048)
and Chicago (Northwestern Atrium Center, 500 West Madison Street, Chicago,
Illinois 60661-2511), and copies of such material can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The Commission maintains an internet
web site that contains reports, proxy statements and other information regarding
issuers who report to the Commission. The address of that web site is
http://www.sec.gov. Such materials may also be inspected at the offices of the
National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006. This Prospectus does not contain all information set
forth in the Registration Statement and exhibits thereto which the Company has
filed with the Commission under the Securities Act of 1933 (the "Securities
Act") and to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are hereby
incorporated by reference herein:
(a) Annual Report on Form 10-K for the year ended December 31, 1997;
(b) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed April 24, 1987.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Common Stock offered hereby shall be deemed
to be incorporated by reference into this Prospectus and to be a part hereof
from the date of filing such documents.
Any person to whom a copy of this Prospectus is delivered may obtain
without charge, upon written or oral request, a copy of any and all of the
information that has been incorporated by reference herein (not including
exhibits to such information unless such exhibits are specifically incorporated
by reference into the information that the Prospectus incorporates). Requests
for such information should be directed to Office of the Secretary, FCNB Corp,
7200 FCNB Court, Frederick, Maryland 21703, telephone (301) 662-2191.
Any statement or information 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 Prospectus to the extent that a statement or
information contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement or information. Any such statement or information so
modified or superseded shall not be deemed to constitute a part of this
Prospectus, except as so modified or superseded.
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FCNB CORP
FCNB Corp (the "Company"), a Maryland corporation, is a bank holding
company registered under the Bank Holding Company Act of 1956, as amended. The
Company's principal subsidiary is engaged in a general commercial and retail
banking business, serving individuals and businesses in Frederick, Carroll,
Howard, Prince George's, Anne Arundel and Montgomery counties located in
Maryland.
The principal executive offices of the Company are located at 7200 FCNB
Court, Frederick, Maryland 21703 (telephone 301-662-2191).
DESCRIPTION OF THE PLAN
The following is a question and answer statement which constitutes the
provisions of the Company's Dividend Reinvestment and Stock Purchase Plan (the
"Plan"). The Plan has been authorized by the Company's Board of Directors and
will continue until terminated by the Company.
Purpose
1. What is the purpose of the Plan?
The purpose of the Plan is to provide holders of the Company's Common
Stock, $1.00 par value per share (the "Common Stock"), with a convenient
method of investing some or all of their cash dividends in shares of Common
Stock and of making optional cash investments in additional shares of
Common Stock. The shares of Common Stock acquired for participants in the
Plan ("Participants") will be purchased in the open market, on the Nasdaq
National Market System ("Nasdaq National Market") or in the
over-the-counter market, or in the event the Company is unable to purchase
a sufficient number of shares in the open market, directly from the
Company.
Advantages
2. What are the advantages of the Plan?
Participants in the Plan may have some or all of the cash dividends
paid on their shares of Common Stock automatically reinvested in additional
shares of Common Stock. The Company will contribute three percent of the
purchase price for shares purchased with reinvested dividends. Participants
may also make optional cash investments (a minimum of $20 and a maximum of
$2,500 per quarter) at any time, whether or not they elect to reinvest
dividends. The three percent contribution also applies to purchases of
shares with optional cash investments. Full investment of funds is possible
under the Plan, whether or not there is a sufficient amount to buy a whole
share, because the Plan permits fractions of shares to be credited to
Participants' accounts. In addition, participants will receive dividends in
respect of any fractional share. Participants avoid safekeeping
requirements and recordkeeping costs for shares credited to their accounts
through the free custodial service and reporting provisions of the Plan.
Statements of account will be furnished to Participants on a quarterly
basis to provide simplified recordkeeping.
Administration
3. Who administers the Plan?
American Stock Transfer & Trust Company (the "Agent"), a stock
transfer agent independent of, and not affiliated with, the Company,
administers the Plan for Participants, keeps records, sends statements of
4
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account to Participants, and performs other duties related to the Plan.
Shares purchased through the Plan will be registered in the name of the
Agent or its nominee as agent for Participants.
All inquiries and communications regarding the Plan should include
your account number and should be directed to the Agent at:
American Stock Transfer & Trust Company
Dividend Reinvestment Department
40 Wall Street
New York, New York 10005
(718) 921-8283
(800) 278-4353
Participation
4. Who is eligible to participate in the Plan?
All holders of record of shares of Common Stock are eligible to
participate in the Plan. In order to participate, beneficial owners whose
shares are registered in names other than their own (for instance, in the
name of a broker) must become shareholders of record by having the shares
indicated on the Authorization Form transferred into their own names.
Although shares purchased with reinvested dividends and optional cash
investments will be registered in the name of the Agent or its nominee,
shareholders may continue to hold those shares presently held by them in
their own names.
A shareholder will not be eligible to participate in the Plan if he
resides in a jurisdiction in which it is unlawful for the Company to permit
his participation. A shareholder's right to participate in the Plan is not
transferable apart from a transfer of his Common Stock to another person.
5. How does a shareholder elect to participate?
A shareholder may participate in the Plan at any time by completing
the Authorization Form and returning it to the Agent at the address set
forth in Question 3 above. A shareholder who does not wish to participate
in the Plan will continue to receive dividends, as declared, by check
without any further action on his part.
6. When will participation begin?
If the Authorization Form is received by the Agent at least 2 business
days before the record date for a dividend, reinvestment will begin with
that dividend payment. For example, in order to invest the quarterly
dividend paid to holders of record at January 30, 1998, the Authorization
Form must have been received by the Agent no later than January 28, 1998.
If the Authorization Form was received after January 28, 1998, then
reinvestment would begin with the next dividend payment date. See Question
8 for information concerning optional cash investments.
7. What does the Authorization Form provide?
The Authorization Form allows each shareholder to authorize the
reinvestment of dividends paid on some or all shares registered in his name
in additional shares of Common Stock, and to purchase additional shares
with optional cash investments. A shareholder may elect to make optional
cash investments even if he does not elect to have dividends reinvested.
5
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The Agent will use the cash dividends, plus any optional cash
investments received from a Participant, to purchase additional shares of
Common Stock. Cash dividends on shares of Common Stock credited to a
Participant's account under the Plan are always automatically reinvested
whether purchased with reinvested dividends or optional cash investments.
Optional Cash Investments
8. Who is eligible to make optional cash investments?
Participants who have submitted an appropriately completed
Authorization Form, whether or not they have authorized the reinvestment of
dividends, are eligible to make optional cash investments. The Agent will
apply any optional cash investments to the purchase of shares of Common
Stock for the account of the Participant.
If a shareholder chooses to participate by optional cash investments
only, the Company will continue to pay cash dividends on shares registered
in the Participant's name in the usual manner, and the Agent will apply any
optional cash investments to the purchase of additional shares of Common
Stock for the Participant's account under the Plan. Dividends payable on
shares of Common Stock credited to the account of the Participant under the
Plan will be automatically reinvested in additional shares of Common Stock.
An initial optional cash investment may be made by a shareholder when
enrolling in the Plan by enclosing a check with the Authorization Form.
Thereafter, optional cash investments may be made by the use of the cash
investment form included with the quarterly statement sent to Participants
by the Agent. Optional cash investments must be received by the Agent at
least 2 business days, but not more than thirty calendar days, before the
applicable dividend payable date in order to be invested. See Question 10.
Checks for optional cash investments must be made payable to "American
Stock Transfer & Trust Company, Agent."
9. What are the limitations on making optional cash investments?
Optional cash investments cannot be less than $20 or more than $2,500
per calendar quarter. The same amount need not be sent each quarter and
there is no obligation to make an optional cash investment in every
quarter.
10. When will optional cash investments received by the Agent be invested?
Optional cash investments received at least two business days, but not
more than thirty calendar days before a dividend payable date will be held
by the Agent and applied to the purchase of shares at the same time that
dividend reinvestment purchases are made. Any optional cash investment
received less than two business days before the dividend payable date, or
more than thirty calendar days before the dividend payable date, will be
returned, without interest, to the shareholder without being invested in
additional shares of common stock.
Since no interest will be paid on funds held by the Agent, each
Participant is urged to mail any optional investment check so that it
reaches the Agent shortly before the second business day prior to the
dividend payable date.
Purchases
11. How many shares of Common Stock will be purchased for Participants?
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Each Participant's account will be credited with a number of shares,
including fractional shares computed to three decimal places, equal to the
total amount to be invested (the amount of cash dividends reinvested,
optional cash investments, and the Company's 3% contribution) divided by
the applicable purchase price per share (see Question 12).
12. What will be the price of shares of Common Stock purchased under the
Plan?
Shares of Common Stock will be purchased with reinvested dividends and
optional cash investments under the Plan at such times as the Agent may
determine, as promptly as possible after a dividend payment date, and in no
event later than 30 days from the dividend payment date. No interest will
be paid on funds held by the Agent under the Plan. For the purposes of
making purchases, the Agent will commingle the dividends to be reinvested
and optional cash investments of all Participants, and the per share price
for shares purchased for each Participant's account will be the average
price of all shares purchased with the funds available. For purchases made
on the Nasdaq National Market or in the over-the-counter market, such
prices will include a dealer mark-up or a brokerage commission.
Participants will therefore indirectly bear the cost of such mark-up or
commission.
If shares are purchased directly from the Company, the price for such
purchases will be established in one of two ways. If the purchases for a
particular investment period include purchases both on the Nasdaq National
Market or in the over-the-counter market and from the Company, the per
share price to be paid to the Company will be equal to the average price
paid for shares on the Nasdaq National Market or in the over-the-counter
market. If the purchases for an investment period are to be made solely
from the Company, the per share price will be equal to the average of the
daily market prices quoted for the Common Stock for the three trading days
on which quotes were published preceding the dividend payment date. For
this purpose, the daily market price will be the mean between the highest
bid quotation and the lowest ask quotation. If the Company elects to have
the Agent purchase shares from the Company, it must notify the Agent at
least ten days prior to the dividend payment date for the particular
investment period.
The Common Stock is thinly traded, and transactions in the Common
Stock may be infrequent. For this reason, depending on the number of shares
involved, purchases on the Nasdaq National Market or in the
over-the-counter market to satisfy the requirements of the Plan may have a
significant effect on prevailing market prices, which could result in the
payment of higher prices for shares than would be the case were the Plan
not in effect.
13. May a shareholder purchase shares through the Plan but have dividends
on those shares sent directly to him?
No. The purpose of the Plan is to provide the Participant with a
convenient method of purchasing shares of Common Stock and having the
dividends on those shares reinvested. Accordingly, dividends paid on shares
held in the Plan will be automatically reinvested in additional shares of
Common Stock. A Participant may, of course, receive certificates for full
shares accumulated in his account under the Plan at any time by sending a
written request to the Agent. When certificates are issued to the
Participant, future dividends on these shares will be treated in accordance
with the Participant's instructions as indicated by his Authorization Form.
Costs
14. Is there any expense charged to Participants in connection with
participation in the Plan?
No. There are no service charges. All costs of administration of the
Plan will be paid by the Company.
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Reports to Participants
15. How will Participants be advised of purchases of stock?
As soon as practicable after each purchase, all Participants will
receive a statement of account. These statements are the Participant's
continuing record of the cost basis of shares and should be retained for
tax purposes. Participants also will receive quarterly statements of
account as well as copies of the same communications sent to all other
shareholders, including the quarterly reports, annual report, notice of
annual meeting and proxy statement, and income tax information for
reporting dividends paid.
Dividends
16. Will Participants be credited with dividends on shares held in their
accounts under the Plan?
Yes. The Company pays dividends, as declared, to the record holders of
all its shares of Common Stock. As the record holder for Participants, the
Agent will receive dividends for all Plan shares held on the record date.
It will credit such dividends to Participants' accounts in the Plan on the
basis of full and fractional shares held in their respective accounts, and
will reinvest such dividends in additional shares.
Certificates for Shares
17. Will stock certificates be issued for shares of Common Stock
purchased?
No. Certificates for shares of Common Stock purchased under the Plan
will not be issued to Participants. The number of shares credited to an
account under the Plan will be shown on the Participant's statement of
account. This additional service protects against loss, theft or
destruction of stock certificates.
However, certificates for any number of shares, up to the total number
of full shares credited to an account under the Plan, will be issued upon
written request of a Participant. This request should be mailed to the
Agent. Any remaining full shares and all fractional shares will continue to
be credited to the Participant's account.
Shares credited to the account of a Participant under the Plan may not
be pledged. A Participant who wishes to pledge such shares must request
that a certificate for such shares be issued in his name.
Certificates for fractional shares will not be issued.
18. In whose name will accounts be maintained and certificates registered
when issued?
An account will be maintained in each Participant's name as shown on
the shareholder records at the time the Participant joins the Plan. When
issued, certificates for full shares will be registered in the account
name.
Upon written request, certificates also can be registered and issued
in names other than the account name, subject to compliance with any
applicable laws and the payment by the Participant of any applicable taxes,
provided that the request bears the signatures of the Participant and the
signature is guaranteed by a financial institution or brokerage firm,
having membership in good standing, in a recognized guarantee program
(Securities Transfer Agent Medallion Program, New York Stock Exchange
Medallion Signature Program or Stock Exchanges Medallion Program). No
guarantee will be accepted if the aggregate value of the transaction
exceeds the authorized limit as defined in the program.
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Changing Method of Participation and Withdrawal
19. How does a Participant change his method of participation?
A Participant may change his method of participation at any time by
completing a new Authorization Form and returning it to the Agent. The
change will apply as of the dividend record date that is two or more
business days after the Agent receives the new Authorization Form.
20. May a Participant withdraw from the Plan?
Yes. The Plan is entirely voluntary and a Participant may withdraw at
any time.
If the request to withdraw is received by the Agent at least two
business days prior to any record date, the amount of the dividend, and any
optional cash investment which would otherwise have been invested, will be
paid as soon as practicable to the withdrawing Participant. Thereafter, all
dividends will be paid in cash. A shareholder may elect to re-enroll in the
Plan at any time.
21. How does a Participant withdraw from the Plan?
In order to withdraw from the Plan, a Participant must notify the
Agent in writing that he wishes to withdraw. Written notice should be
mailed to the Agent. When a Participant withdraws from the Plan, or upon
termination of the Plan by the Company, a certificate for full shares
credited to the Participant's account under the Plan will be issued and a
cash payment will be made for any fraction of a share.
Upon withdrawal from the Plan, the Participant may, if he desires,
request the Agent to sell all of the shares, both full and fractional,
credited to his account in the Plan. If the Participant requests that his
shares be sold, the Agent will place a sell order, within five business
days after receipt of the request, through an independent brokerage firm
selected by the Agent. The Participant will receive the proceeds of the
sale less any brokerage commissions and any transfer tax.
22. What happens to a fraction of a share when a Participant withdraws
from the Plan?
When a Participant withdraws from the Plan, a cash adjustment
representing any fraction of a share will be mailed directly to the
Participant. The cash payment will be based on the average market price of
a share determined pursuant to the market quote formula set forth in
Question 12 above.
Other Information
23. What happens when a Participant sells or transfers all of the shares
registered in his name (i.e., those that are not held in his Plan
account)?
If a Participant disposes of all shares of stock registered in his
name, the Agent will, unless otherwise instructed by the Participant,
continue to reinvest the dividends on the shares credited to his account
under the Plan.
24. If the Company offers additional shares of Common Stock or other
securities through a rights offering, how will the rights be handled
with respect to shares credited to a Participant's account under the
Plan?
In a rights offering, rights issued with respect to shares held in the
Plan will be issued to a Participant in his own name. Therefore, a
Participant will directly receive a total number of rights based upon the
aggregate shares held of record in his name and the whole shares credited
to his account under the Plan.
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25. What happens if the Company issues a stock dividend or declares a
stock split?
Any stock dividend or split shares distributed by the Company on
shares credited to the account of a Participant under the Plan will be
added to his account. Stock dividends or split shares distributed on shares
held directly by a Participant will be mailed to him in the same manner as
to shareholders who are not participating in the Plan.
26. How will a Participant's shares held under the Plan be voted at
meetings of shareholders?
If shares registered in the name of a Participant are voted by him on
any matter submitted to a meeting of shareholders, the Agent will vote any
full shares held in the Participant's account under the Plan in accordance
with the voting instruction in the Participant's proxy for the shares
registered in his name. If no shares are registered in a Participant's
name, shares credited to the Participant's account under the Plan will be
voted in accordance with instructions given on an instruction form which
will be furnished to the Participant. If the Participant desires to vote in
person at the meeting, a proxy for shares credited to his account under the
Plan may be obtained upon written request received by the Agent at least 15
days before the meeting.
If no voting instruction is set forth on a properly signed and
returned proxy card or instruction form, with respect to any item thereon,
all of a Participant's shares -- those registered in his name, if any, and
those credited to his account under the Plan -- will be voted (in the same
manner as for non-participating shareholders who return proxies and do not
provide instructions) in accordance with the recommendations of the
Company's management. If the proxy card or instruction form is not
returned, or if it is returned unsigned, none of the Participant's shares
will be voted unless the Participant votes in person.
27. What are the Federal income tax consequences of participation in the
Plan?
Cash dividends paid by the Company on its Common Stock are taxable as
ordinary income to the holders of such shares, even though, to the extent a
shareholder participates in the Plan, such dividends are not actually
received by the shareholder, but instead are reinvested in Common Stock.
The amount of dividend income realized for federal income tax purposes is
equal to the full fair market value of the shares of Common Stock acquired
under the Plan through reinvested dividends, although such Common Stock is
acquired under the Plan at a discount as a result of the Company's 3%
contribution. Participants who make optional cash investments through the
Plan will be treated as receiving dividend income for tax purposes equal to
the difference between the fair market value of the stock purchased with
the optional cash investment, and the amount of the optional cash
investment. Thus, each Participant will be taxed on the amount of the
discount applicable to shares purchased for the Participant's account.
Also, with regard to either the reinvestment of dividends, or the purchase
of additional Common Stock as a result of optional cash investments, to the
extent the Company pays any brokerage fees, commissions or service charges
("Other Charges") in connection with the purchase of Common Stock under the
Plan, such Other Charges will be taxable to Participants as additional
dividends.
A Participant's tax basis in shares of Common Stock acquired under the
Plan through the reinvestment of dividends will be equal to the amount
treated as a dividend to such Participant, which is the fair market value
of such shares on the dividend payment date plus applicable Other Charges.
The tax basis of shares of Common Stock acquired under the Plan through
optional cash investments will be the amount of the optional cash
investment, plus the difference between the optional cash investment and
the fair market value of the shares purchased, and any Other Charges
treated as a dividend with respect to the shares.
There are no income tax consequences at the time certificates for full
shares accumulated in a Participant's account are issued to the
Participant.
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When, at the request of a Participant, the Agent sells shares of
Common Stock credited to a Participant's account or distributes cash with
respect to a fractional share interest to a Participant, gain or loss will
be realized by the Participant in an amount equal to the difference between
the proceeds received and the Participant's tax basis in the shares or
fractional shares sold. If the shares are capital assets in the
Participant's hands, such gain or loss will be capital gain or loss.
Whether the capital gain or loss realized is long-term or short-term
depends upon the holding period of the shares giving rise to the gain or
loss. In general, if the holding period is more than one year, such capital
gain or loss will be long-term. A Participant's holding period for shares
of Common Stock purchased under the Plan will begin on the day following
the day on which such shares were credited to the Participant's account.
In the case of those Participants whose dividends are subject to
United States income tax withholding, the Agent applies an amount equal to
the cash dividends payable to such Participant, less the amount of tax
required to be withheld, to the purchase of shares of Common Stock for the
Participant's account. The statements confirming purchases made for such
Participants will indicate the amount of tax withheld.
The foregoing is only a summary description of the principal federal
income tax consequences of participation in the Plan. For further
information as to tax consequences of participation in the Plan, including
state, local and foreign taxation, each Participant should consult with his
own tax adviser.
28. May the Plan be changed or discontinued?
The Company reserves the right to make modifications to the Plan or to
suspend or terminate the Plan at any time. Any such modification,
suspension or termination will be announced to both participating and
non-participating shareholders.
29. What is the responsibility of the Agent under the Plan?
In administering the Plan, the Agent will not be liable for any act
done or any omission to act in good faith, including, without limitation,
any claim of liability arising out of failure to terminate a Participant's
account upon the Participant's death prior to receipt of written notice of
such death. The Agent may not create a lien on any funds, securities or
other property held under the Plan.
The Participant should recognize that the Agent cannot assure him of a
profit or protect him against a loss on the shares purchased for him under
the Plan in accordance with his instructions as indicated on the
Authorization Form. It is up to each Participant to make his own decision
regarding the purchase or sale of any shares for his account under the
Plan.
30. Who interprets and regulates the Plan?
The Company reserves the right to interpret and regulate the Plan as
may be necessary or desirable in connection with the operation of the Plan.
31. When can purchases or sales of Common Stock be temporarily curtailed?
Temporary curtailment or suspension of purchases or sales of Common
Stock may be made at any time when such purchases or sales would in the
Agent's judgment contravene, or be restricted by, applicable regulations,
interpretations or orders of the Securities and Exchange Commission, any
other governmental commission, agency or instrumentality, any court,
securities exchange or the National Association of Securities Dealers, Inc.
The Agent shall not be accountable, or otherwise liable, for failure to
make purchases or sales at such times and under such circumstances.
11
<PAGE>
32. Can Participants in the Plan deposit certificates representing their
other shares of Common Stock into their account under the Plan?
Yes. Participants who wish to do so may deposit with the Agent
certificates representing shares of Company Common Stock now or hereafter
registered in their name for credit to their accounts under the Plan. There
is no charge for such deposit, and by making such deposit, such
Participants will be relieved of the responsibility for the loss, theft or
destruction of deposited certificates. Shares resulting from future stock
splits or stock dividends will automatically be credited to Participants'
accounts. Cash dividends and cash in lieu of fractional shares on stock
splits and stock dividends in respect of deposited shares will
automatically be reinvested in additional shares of Common Stock. A record
of the number of shares deposited will appear on Participants' periodic
account statements.
Shares may be removed from deposit at any time in the same manner as
shares resulting from dividend reinvestment or optional cash purchases. The
certificates received upon withdrawal of shares will not be the same
certificates deposited.
In order to deposit shares represented by certificates in an account
under the Plan, a Participant should mail the certificates to the Agent,
together with instructions directing the Agent to deposit the shares in the
Participant's account under the Plan. Certificates may be deposited only in
an account bearing the same registration. An instruction form can be
obtained from the Agent or the Company. Certificates SHOULD NOT BE
ENDORSED. Until received by the Agent, the Participant will bear the risk
of loss, therefore it is recommended that certificates be sent by
registered mail, return receipt requested, and properly insured.
USE OF PROCEEDS
In the event any shares of Common Stock are purchased under the Plan from
the Company, the proceeds received by the Company will be used for general
corporate purposes.
LEGAL OPINION
Certain matters with respect to the legality of the issuance of the shares
of Common Stock offered hereby have been passed upon for the Company by Kennedy,
Baris & Lundy, L.L.P., 4719 Hampden Lane, Suite 300, Bethesda, Maryland, 20814.
EXPERTS
The consolidated financial statements of the Company incorporated by
reference herein have been audited by Keller Bruner & Company, L.L.C.,
independent auditors, for the periods indicated in their report thereon which is
included in the Annual Report on Form 10-K for the year ended December 31, 1996.
The financial statements examined by Keller Bruner & Company, L.L.C. have been
incorporated herein by reference in reliance on their report given on their
authority as experts in accounting and auditing.
SECURITIES AND EXCHANGE COMMISSION POSITION
ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
The Articles of Incorporation of the Company provide for the
indemnification of its officers and directors under certain circumstances.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 (the "Act") may be permitted to directors, officers or persons controlling
the Company pursuant to such provisions, the Company has been informed 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.
12
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Registration Fee................................ $ 594
Transfer Agent and Custodian Fees and Expenses... $ 3,000
Accounting....................................... $ 3,000
Printing......................................... $ 3,000
Legal............................................ $ 12,500
Blue Sky......................................... $ 4,000
Miscellaneous.................................... $ 1,406
---------
Total...................................... $ 27,500
=========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles of Incorporation and Bylaws of FCNB provide for the
indemnification of the officers and directors of FCNB to the fullest extent
permitted by the Maryland General Corporation Law (the "MGCL"), and for the
indemnification of other persons to the extent permitted by law and as
determined by the Board of Directors. The MGCL provides, in general, that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation, who was, is or is threatened to be made a defendant or
respondent to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he served as a
director, officer, employee or agent of the corporation, or served at the
corporation's request in any capacity of another enterprise or employee benefit
plan, unless (i) the act or omission giving rise to the liability of such person
was material to the matter giving rise to the proceeding and (a) was committed
in bad faith or (b) was the result of active and deliberate dishonesty; (ii) the
director received an improper personal benefit in money, property or services;
or (iii) in the case of any criminal proceeding, such person had reasonable
cause to believe the act or omission was unlawful. Notwithstanding the
foregoing, no indemnification shall be authorized in the case of any proceeding
by or in the right of the corporation, if the person has been adjudged liable to
the corporation, except that a court may order indemnification against expenses
(including attorney fees) only. The indemnification is mandatory in the case of
success, on the merits or otherwise, in the defense of any proceeding.
Indemnification is against judgements, penalties, fines, settlements, and
reasonable expenses actually incurred (including attorney's fees) in connection
with the proceeding. A corporation has the power to purchase and maintain
insurance or maintain other arrangements in respect of such indemnification. The
indemnification provided by the MGCL is not exclusive of other rights to
indemnification to which any person may otherwise be entitled.
ITEM 16. EXHIBITS.
Number Description
------ -----------
4(a) FCNB Dividend Reinvestment and Stock Purchase Plan, as set
forth in full in the Prospectus, to which reference is
hereby made
4(b) Dividend Reinvestment and Stock Purchase Plan Authorization
Form, incorporated by reference to Exhibit 4.2 to original
filing of FCNB's Registration Statement (No. 33-55040) on
Form S-3
5 Opinion of Kennedy, Baris & Lundy, L.L.P.
23(a) Consent of Kennedy, Baris & Lundy, L.L.P., included in
Exhibit 5
-R-3-
<PAGE>
Number Description
------ -----------
23(b) Consent of Keller Bruner & Company, L.L.C.
99 Form of Share Deposit Authorization
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes that it will:
(1) file, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to: (i) include any
prospectus required by section 10(a)(3) of the Securities Act of 1933 (the
"Act"); (ii) 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 in the registration statement; and (iii)
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.
(2) for purposes of determining any liability under the Act, treat each
post-effective amendment as a new registration statement relating to the
securities offered, and the offering of the securities at that time to be the
initial bona fide offering.
(3) file a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the registrant's annual
report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 (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.
-R-4-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Frederick,
State of Maryland on March 31, 1998.
FCNB CORP
By: /s/ A. Patrick Linton
-------------------------------
A. Patrick Linton, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ George B. Callan, Jr.
- - - --------------------------
George B. Callan, Jr. Director March 31, 1998
- - - -------------------------
Miles M. Circo Director ____________, 199___
/s/ Shirley Collier
- - - -------------------------
Shirley Collier Director March 31, 1998
/s/ Clyde C. Crum
- - - --------------------------- Chairman of the Board of Directors March 31, 1998
Clyde C. Crum
/s/ James S.Grimes
- - - --------------------------
James S. Grimes Director March 31, 1998
/s/ Bernard L. Grove, Jr.
- - - --------------------------
Bernard L. Grove, Jr. Director March 31, 1998
/s/ Gail T. Guyton
- - - -------------------------
Gail T. Guyton Director March 31, 1998
/s/ F.L. Hewitt, III
- - - ------------------------
F. L. Hewitt, III Director March 31, 1998
/s/ A. Patrick Linton
- - - ------------------------ President, Chief Executive Officer
A. Patrick Linton Director March 31, 1998
/s/ Jacob R.Ramsburg
- - - ------------------------
Jacob R. Ramsburg Director March 31, 1998
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
- - - --------------------------
Ramona C. Remsberg Director ____________, 199___
/s/ Kenneth D.Rice
- - - --------------------------
Kenneth D. Rice Director March 31, 1998
/s/ Rand D. Weinberg
- - - --------------------------
Rand D. Weinberg Director March 31, 1998
/s/ DeWalt J. Williard, Jr.
- - - --------------------------
DeWalt J. Willard, Jr. Director March 31, 1998
/s/ Mark A. Severson
- - - -------------------------- Senior Vice President, Treasurer,
Mark A. Severson Principal Financial and March 31, 1998
Accounting Officer
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Number Description
------ -----------
4(a) FCNB Dividend Reinvestment and Stock Purchase Plan, as set
forth in full in the Prospectus, to which reference is
hereby made
4(b) Dividend Reinvestment and Stock Purchase Plan Authorization
Form, incorporated by reference to Exhibit 4.2 to original
filing of FCNB's Registration Statement (No. 33-55040) on
Form S-3
5 Opinion of Kennedy, Baris & Lundy, L.L.P.
23(a) Consent of Kennedy, Baris & Lundy, L.L.P., included in
Exhibit 5
23(b) Consent of Keller Bruner & Company, L.L.C.
99 Form of Share Deposit Authorization
<TABLE>
<CAPTION>
EXHIBIT 5
<S> <C> <C>
KENNEDY, BARIS & LUNDY, L.L.P.
ATTORNEYS AT LAW
SEVENTH FLOOR
1225 NINETEENTH STREET, NW
TEXAS OFFICE: WASHINGTON, DC 20036 MARYLAND OFFICE:
SUITE 1775 (202) 835-0313 SUITE 300
112 EAST PECAN STREET FAX: (202) 835-0319 4719 HAMPDEN LANE
SAN ANTONIO, TX 78205 BETHESDA, MD 20814
(210) 228-9500 (301) 654-6040
FAX: (210) 228-0781 FAX: (301) 654-1733
</TABLE>
April 2, 1998
Board of Directors
FCNB Corp
7200 FCNB Court
Frederick, Maryland 21703
Gentlemen:
As special legal counsel to FCNB Corp (the "Company"), we have participated
in the preparation of the combined Registration Statement on Form S-3 and
Post-Effective Amendment No. 2 to the Company's Registration Statement on Form
S-3, to be filed with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, relating to the issuance of shares (the
"Shares") of the Company's Common Stock pursuant to the Company's Dividend
Reinvestment and Stock Purchase Plan (the "Plan").
As counsel to the Company, we have examined such corporate records,
certificates and other documents of the Company, and made such examinations of
law and other inquiries of such officers of the Company, as we have deemed
necessary or appropriate for purposes of this opinion. Based upon such
examinations we are of the opinion that the Shares, when issued in accordance
with the provisions of the Plan, will be duly authorized, validly issued, fully
paid and non-assessable shares of the Common Stock of the Company.
We hereby consent to the inclusion of this opinion as an exhibit to the
Registration Statement on Form S-3 filed by the Company and to the reference to
our firm contained.
Sincerely,
/s/ Kennedy, Baris & Lundy, L.L.P.
----------------------------------
EXHIBIT 23(b)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Form S-3 of
FCNB Corp (the "Company") of our report, dated January 23, 1998, on the
consolidated financial statements of the Company for the year ended December 31,
1997, which appears on page 45 of the Company's 1997 Annual Report to
Shareholders included in the Company's annual report on Form 10-K for the year
ended December 31, 1997.
/s/ Keller Bruner & Company, L.L.C.
-------------------------------------
Frederick, Maryland
April 2, 1998
EXHIBIT 99
FCNB CORP DIVIDEND REINVESTMENT PLAN
SHARE DEPOSIT AUTHORIZATION
TO: American Stock Transfer and Trust Company
Dividend Reinvestment Department
40 Wall Street, 46th Floor
New York, New York 10005
Gentlemen:
Enclosed please find certificates, identified below, all of which are
registered in the name set forth below, representing an aggregate of
________________ shares of FCNB Common Stock. The shares represented by these
certificates are hereby submitted to you for deposit in my account under the
FCNB Corp Dividend Reinvestment Plan, in accordance with the provisions of the
Plan, as described in the Plan Prospectus dated ___________, 1998.
Account Number: _________________________________
Registered Name of Shares and Account:
-----------------------------------------
-----------------------------------------
Account Address:
-----------------------------------------
-----------------------------------------
CERTIFICATE NUMBER NUMBER OF SHARES
- - - -------------------------------------- ----------------------------------
- - - -------------------------------------- ----------------------------------
- - - -------------------------------------- ----------------------------------
- - - -------------------------------------- ----------------------------------
- - - -------------------------------------- ----------------------------------
- - - -------------------------------------- ----------------------------------
- - - -------------------------------------- ----------------------------------
- - - -------------------------------------- ----------------------------------
- - - -------------------------------------- ----------------------------------
- - - -------------------------------------- ----------------------------------
TOTAL SHARES
Signature(s): _______________________________________________________________
Date: _____________________________________________
PLEASE DO NOT ENDORSE CERTIFICATES TO BE DEPOSITED
