As filed with the Securities and Exchange Commission on February 3, 1998
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
FRANKLIN BANCORPORATION, INC.
(Exact name of registrant as specified in its charter)
Delaware 52-1632361
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1722 I (Eye) Street, N.W.
Washington, D.C. 20006
(202) 429-9888
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
Franklin Bancorporation, Inc.
Nondiscretionary Stock Option Plan
(Full Title of Plan)
---------------
Robert P. Pincus
President And Chief Executive Officer
Franklin Bancorporation, Inc.
1722 I (Eye) Street, N.W.
Washington, D.C. 20006
(202) 429-9888
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------
Copies to
ANDREA I. O'BRIEN
LAWRENCE T. YANOWITCH
TUCKER, FLYER & LEWIS, P.C.
1615 L STREET, N.W.; SUITE 400
WASHINGTON, D.C. 20036
(202) 452-8600
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each Amount Proposed Proposed maximum Amount of
class of securities to be maximum offering aggregate offering registration
to be registered registered price per share(1) price (1) fee (2)
<S> <C> <C> <C> <C>
Common Stock, $0.10 par value 100,000 $17.698 $1,769,765.50 $522.08
</TABLE>
(1) Estimated pursuant to Rule 457(c) and (h) solely for purposes of
calculating the amount of the registration fee. The proposed maximum
offering price per share was determined by calculating the weighted average
exercise price of (i) 23,500 shares of Common Stock being offered under
outstanding options at a weighted average exercise price of $9.285, and
(ii) 76,500 shares of Common Stock being offered at an exercise price of
$20.282 based on the average of the high and low prices per share of the
Common Stock on January 28, 1998, as reported on the NASDAQ Small Capital
Market.
(2) Calculated by dividing the proposed maximum aggregate offering price by the
amount to be registered.
---------------
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I have been
and/or will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). In accordance with
the instructions to Part I of Form S-8, such documents will not be filed with
the Securities and Exchange Commission (the "Commission") either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424 of the Securities Act. These documents and the documents incorporated
by reference pursuant to Item 3 of Part II of this registration statement, taken
together, constitute the prospectus as required by Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This registration statement registers shares of common stock ("Common
Stock") of Franklin Bancorporation, Inc., a Delaware corporation (the "Company"
or the "Registrant"), issued in connection with the Company's Nondiscretionary
Stock Option Plan.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company hereby incorporates by reference into this registration
statement the following documents and information heretofore filed by the
Company with the Commission:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 filed with the Commission on March 28,
1997.
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1997 (filed with the Commission on May
14, 1997), June 30, 1997 (filed with the Commission on August
14, 1997) and September 30 ,1997 (filed with the Commission on
November 14, 1997).
(c) The Company's Proxy Statement on Schedule 14A dated April 28,
1997 filed with the Commission on December 17, 1997.
(d) The Company's Current Report on Form 8-K dated December 16,
1997 filed with the Commission on December 29, 1997.
(e) The description of the Company's Common Stock contained in the
Company's registration statement on Form S-4 filed with the
Commission on August 24, 1994, as amended by Amendment No. 1
thereto filed with the Commission on October 24, 1994 and
Amendment No. 2 filed with the Commission on November 1, 1994,
as declared effective by the Commission on November 3, 1994
and all amendments and reports subsequently filed for the
purpose of updating that description.
<PAGE> 3
In addition, all documents and reports filed by the Company subsequent to
the date hereof 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 have been sold or which deregisters all securities remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to be part hereof from the date of filing of such documents or
reports. 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 or is
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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law permits a corporation to exonerate its
directors from personal liability to the corporation or its stockholders for
monetary damages for breach of fiduciary duty, other than (1) for any breach of
the duty of loyalty to the corporation or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (3) for willful or negligent violations of provisions
regarding the unlawful payment of dividends or unlawful stock repurchases or
redemptions, or (4) for any transaction from which the person derived an
improper personal benefit. This provision pertains only to breaches of duty by
directors in their capacity as directors (and not in any other corporate
capacity, such as officers) and limits liability only for breaches of fiduciary
duties under Delaware corporate law (and not for violation of other laws, such
as the federal securities laws). The Company's Certificate of Incorporation
exonerates the Company's directors from liability to the extent permitted by
this statutory provision.
The Company's Certificate of Incorporation and Bylaws also provide that, to
the fullest extent permitted by law, the Company shall indemnify any person who
was or is a party, or threatened to be made a party to any threatened, pending
or completed action, suit or proceeding (whether civil, criminal,
administrative, or investigative) by reason of the fact that such person is or
was a promoter, director, advisory director or officer of the Company, and such
other persons as designated by the Board of Directors or stockholders and whom
the Corporation has the authority to indemnify under law, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Company and with respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. Such
<PAGE> 4
indemnification shall not be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Company, unless
(and only to the extent that) the Delaware Court of Chancery or the court in
which such action or suit was brought determines that, in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses that the Court of Chancery or such other court shall
deem proper. In addition, the Bylaws provide for advancement of expenses
incurred by an officer or director upon request, to the extent permitted by law.
The Delaware General Corporation Law permits a corporation to advance expenses
incurred by an officer or director in defending any action, suit or proceeding
upon receipt of an undertaking by or on behalf of the director or officer to
repay in the event that the director or officer is ultimately determined not to
be entitled to indemnification.
The Company maintains a liability insurance policy on behalf of all of its
directors and officers. Under this policy, directors and officers are insured
(and the Company is insured to the extent that it has properly indemnified its
directors and officers) against liability for claims incurred by reason of their
breach of duty, neglect, error, misstatement, misleading statement, omission or
act, in their capacities as directors and officers and solely by reason of their
status as directors and officers. However, directors and officers are not
insured against certain types of claims, including claims that arise out of a
gain of personal profit, a criminal or fraudulent act, the filing of a
registration statement, an offering by means of a prospectus, or an underwriting
agreement for the offer or sale of a security.
The Delaware General Corporation Law and Article 9 of the Certificate of
Incorporation of the Company specifically provide for the indemnification of
directors and officers, and the Delaware General Corporation Law permits the
adoption of indemnity agreements generally. The enforceability of certain
provisions of the indemnity agreements has not been tested in court, however,
and remains subject to considerations of state law and public policy. The
indemnity agreements were not implemented in response to any pending or
threatened litigation involving directors or officers.
Subject to the possibility of unenforceability referred to above, the
indemnity agreements constitute binding agreements of the Company, and the
Company would be unable to modify its indemnification policy unilaterally in a
way that is adverse to any party to an indemnity agreement. The Securities and
Exchange Commission takes the position that indemnification of directors and
executive officers against violations of the Securities Act is against public
policy and unenforceable. Accordingly, whenever an issuer registers securities
with the Commission it must execute an undertaking (a) to submit to a court any
such indemnification claim arising with respect to the registered securities for
a determination whether the clause is enforceable and (b) to be bound by the
court's decision. Accordingly, any claim made by a director or executive officer
of the Company for indemnification under an indemnity agreement with respect to
a claim subject to the Company's undertaking to the Commission would have to be
submitted to a court before final payment thereunder would be made to the
director or executive officer.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
<PAGE> 5
ITEM 8. EXHIBITS.
4.1 Franklin Bancorporation, Inc. Nondiscretionary Stock Option Plan
(incorporated by reference from Exhibit 10.19 to the Company's Form
10-K for fiscal year ended December 31, 1996 filed with the Commission
on March 28, 1997).
4.2 Article IV of the Certificate of Incorporation of Franklin
Bancorporation, Inc. (incorporated by reference from Exhibit 3 to the
Company's Registration Statement on Form S-4 Reg. No. 33-46835, filed
March 30, 1992 (the "1992 S-4")).
4.3 Bylaws of Franklin Bancorporation, Inc. (incorporated by reference
from Exhibit 3 to the 1992 S-4).
5.1 Opinion of Tucker, Flyer & Lewis regarding legality of securities
being registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Price, Waterhouse L.L.P.
23.3 Consent of Tucker, Flyer & Lewis (included in Exhibit 5.1).
24.1 Power of Attorney (included on pages 8-9).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement 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.
(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 post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering. The undersigned
Registrant 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
Section 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.
<PAGE> 6
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of Registrant
pursuant to the Delaware General Corporation Law, the Certificate of
Incorporation or the Bylaws of Registrant, indemnification agreements entered
into between Registrant and its officers and directors, or otherwise, Registrant
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 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
hereunder, Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act, as amended, the
Registrant certifies that it has reasonable grounds to believe it meets all of
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Washington, District of Columbia on February 3, 1998.
FRANKLIN BANCORPORATION, INC.
By: /s/Robert P. Pincus
---------------------------------
Robert P. Pincus
President and Chief Executive Officer
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert P. Pincus, his true and lawful
attorney-in-fact, each acting alone, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign any and all amendments including post-effective amendments to
this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorneys-in-fact or
their substitutes, each acting alone, may lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Robert P. Pincus
- -------------------------
Robert P. Pincus President, Chief Executive Officer February 2, 1998
and Director (Principal Executive
Officer)
/s/ Diane M. Begg
- -------------------------
Diane M. Begg Senior Vice President, Chief February 2, 1998
Financial Officer and Assistant
Secretary (Principal Financial and
Accounting Officer)
/s/ Joseph R. Schuble
- -------------------------
Joseph R. Schuble Director and Chairman of the Board February 2, 1998
of Directors
/s/ Joseph B. Gildenhorn
- -------------------------
Joseph B. Gildenhorn Director February 2, 1998
/s/ George Chopivsky, Jr.
- -------------------------
George Chopivsky, Jr. Director February 2, 1998
<PAGE> 9
/s/ Stephen S. Haas
- -------------------------
Stephen S. Haas Director February 2, 1998
/s/ Susan B. Hepner
- -------------------------
Susan B. Hepner Director February 2, 1998
/s/ H. Peter Larson, III
- -------------------------
H. Peter Larson, III Director February 2, 1998
/s/ Gant Redmon
- -------------------------
Gant Redmon Director February 2, 1998
/s/ James C. Stearns
- -------------------------
James C. Stearns Director February 2, 1998
<PAGE> 10
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION PAGE
4.1 Franklin Bancorporation Nondiscretionary Stock Option Plan
(incorporated by reference from Exhibit 10.19 to the Company's
Form 10-K for the fiscal year ended December 31, 1996 filed
with the Commission on March 28, 1997).
4.2 Article IV of the Certificate of Incorporation of Franklin
Bancorporation, Inc. (incorporated by reference from Exhibit 3
to the Company's Registration Statement on Form S-4. Reg. No.
33-46835, filed March 30, 1992 (the "1992 S-4")).
4.3 Bylaws of Franklin Bancorporation, Inc. (incorporated by
reference from Exhibit 3 to the 1992 S-4).
5.1 Opinion of Tucker, Flyer & Lewis regarding legality of securities 11
being registered.
23.1 Consent of Cooper & Lybrand, L.L.P. 14
23.2 Consent of Price, Waterhouse L.L.P. 15
23.3 Consent of Tucker, Flyer & Lewis (included in Exhibit 5.1).
24.1 Power of Attorney (included on pages 8-9).
February 2, 1998
Board of Directors
Franklin Bancorporation, Inc.
1800 K Street, N.W.
Suite 929
Washington, D.C. 20006
Ladies and Gentlemen:
We have acted as counsel to Franklin Bancorporation, Inc., a Delaware
corporation (the "Company"), in connection with its registration, pursuant to a
registration statement of Form S-8 filed on or about the date hereof (the
"Registration Statement"), of 100,000 shares (the "Shares") of Common Stock, par
value $0.10 per share (the "Common Stock"), of the Company, issuable upon the
exercise of options granted under the Franklin Bancorporation, Inc.
Nondiscretionary Stock Option Plan (the "Plan"). This letter is furnished to you
pursuant to the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R.
Section 229.601(b)(5), in connection with such registration.
In connection with the opinion expressed herein, we have reviewed the
following documents:
1. an executed copy of the Registration Statement;
2. a copy of the Plan;
3. the Articles of Incorporation of the Company, filed on
October 31, 1988 and any amendments thereto;
4. the Bylaws of the Company and any amendments thereto;
5. the resolutions of the Board of Directors of the Company,
adopted at the meeting held on June 19, 1996, relating to,
among other things, the approval of the Plan;
6. the resolutions of the Board of Directors of the Company
adopted and the meeting held on January 28, 1998 relating to
among other things, the filing of the Registration Statement;
and
<PAGE> 12
7. the resolutions of the stockholders of the Company, adopted at
the meeting held on June 19, 1996, relating to, among other
things, the approval of the Plan.
In addition, we have examined and are familiar with originals or copies,
certified or otherwise identified to our satisfaction, of such other documents
as we have deemed necessary or appropriate as a basis for the opinions set forth
below.
In our examination, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies, and the authenticity of the
originals of such copies. As to questions of fact material to the opinions
expressed below, we have relied upon the accuracy of all representations,
warranties and certifications of the Company contained in the documents referred
to in this opinion letter. As to any facts material to this opinion which we did
not independently establish or verify, we have relied upon statements and
representations of officers and other representatives of the Company and others.
During the course of our discussions with corporate officers and representatives
and our review of the documents specified above in connection with the
preparation of this opinion, no facts were disclosed to us which causes us to
conclude that any such statement or representation is untrue.
In reliance on the foregoing, and subject for all purposes and in all
respects to the assumptions, limitations, qualifications, disclaimers, and
exceptions set forth herein, it is our opinion that, as of the date hereof:
1. The Shares to be issued upon the exercise of the stock options are
validly authorized.
2. Assuming (a) the Shares so issuable will be validly authorized on the
dates of exercise, (b) on the dates of exercise, the stock options will have
been duly executed, issued, and delivered, will constitute the legal, valid, and
binding obligations of the Company, and will (subject to applicable bankruptcy,
insolvency, and other laws affecting the enforceability of creditors' rights
generally) be enforceable as to the Company in accordance with their terms and
the terms of the Plan, (c) no change occurs in the applicable law or the
pertinent facts, and (d) the stock options are exercised in accordance with
their terms and the terms of the Plan, the Shares so issuable will be validly
issued, fully paid, and nonassessable.
The foregoing opinions are limited in all respects and for all purposes
solely to the General Corporation Law of the State of Delaware. While certain
members of this firm are admitted in other jurisdictions, we have not examined
the laws of any jurisdictions or consulted with members of the firm who are
admitted in other jurisdictions with respect to the laws of any such
jurisdictions.
<PAGE> 13
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on or about the date of this letter, and should not be quoted, relied
on or referred to by, nor may copies be delivered to, any other person or used
for any other purpose without the express prior written consent of this Firm in
each instance.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to
the Registration Statement. In giving this consent, we do not thereby admit that
we are an "expert" within the meaning of the Securities Act of 1933, as amended.
Respectfully submitted,
TUCKER, FLYER & LEWIS
a professional corporation
By:/s/ Tucker, Flyer & Lewis
----------------------------
CONSENT OF INDEPENDENT ACCOUNTS
We consent to the incorporation by reference in the registration statement
on Form S-8 (File No. 333-_____) of Franklin Bancorporation, Inc. pertaining to
the Franklin Bancorporation, Inc. Director's Stock Option Plan of our
report dated February 7, 1997, on our audits of the consolidated financial
statements of Franklin Bancorporation as of December 31, 1996 and 1995 and for
the years then ended, which report is included in the Franklin Bancorporation,
Inc. 1996 Form 10-K.
\S\
COOPERS & LYBRAND L.L.P.
Washington, D.C.
January 30, 1998
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 3, 1995, which appears on
page 58 of the 1996 Annual Report to the Board of Directors and Shareholders of
Franklin Bancorporation, Inc., which is incorporated by reference in Franklin
Bancorporation, Inc.'s Annual Report on Form 10-K for the year ended December
31, 1996.
\S\
Washington, D.C.
January 30, 1998
