EXHIBIT 5.1
[Letterhead of Ward and Smith, P.A.]
August 25, 1998
Fidelity BancShares (N.C.), Inc.
100 South Main Street
Fuquay-Varina, North Carolina 27526
RE: Our File 88-1308(D)
Ladies and Gentlemen:
We have acted as counsel to Fidelity BancShares (N.C.), Inc. ("BancShares") in
connection with the preparation of a Registration Statement on Form S-1,
including the form of Prospectus contained therein (the "Registration
Statement"), which has been filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act"), for purposes of
registering under the Act (i) BancShares' issuance and sale to FIDBANK Capital
Trust I (the "Issuer Trust") of up to $23,000,000 in ___% Junior Subordinated
Debentures (the "Junior Subordinated Debentures") pursuant to the terms of a
certain Junior Subordinated Indenture proposed to be entered into by and between
BancShares and Bankers Trust Company, as Trustee thereunder, in the form filed
as Exhibit 4.6 to the Registration Statement (the "Junior Subordinated
Indenture"), (ii) the issuance and sale by the Issuer Trust of up to $23,000,000
aggregate liquidation amount of ___% Capital Securities (the "Capital
Securities"), and (iii) the issuance by BancShares of its guarantee of the
Capital Securities pursuant to and to the extent provided in a certain Guarantee
Agreement proposed to be entered into by and between BancShares and Bankers
Trust Company, as Guarantee Trustee thereunder, in the form filed as Exhibit 4.5
to the Registration Statement (the "Guarantee Agreement").
In connection with rendering the opinions set forth in this letter, we have
examined or relied upon copies of the following documents:
1. the Registration Statement and the Prospectus contained therein;
2. the form of Junior Subordinated Indenture filed as Exhibit 4.6 to
the Registration Statement;
3. the form of Junior Subordinated Debentures contained as an exhibit
to the Junior Subordinated Indenture; and
4. the form of Guarantee Agreement filed as Exhibit 4.5 to the
Registration Statement.
In rendering the opinions set forth in this letter, we have also examined the
minutes of proceedings of BancShares' Board of Directors and such certificates
of public officials, records and other certificates and instruments as we have
deemed necessary for the purposes of the opinions expressed herein.
In delivering this letter, we have assumed (i) the authenticity of all documents
submitted to us as originals and the conformity to the original or certified
copies of all documents submitted to us as conformed or reproduction copies,
(ii) that the minutes of proceedings of BancShares Board of Directors are
accurate and complete and contain minutes of all actions pertaining to the
Junior Subordinated Indenture, the Junior Subordinated Debentures, the Guarantee
Agreement, and the transactions described therein, (iii) that the final,
executed versions of all relevant documents, including the Junior Subordinated
Indenture, the Junior Subordinated Debentures and the Guarantee Agreement, will
be identical in all material respects to the versions reviewed by us, and (iv)
that the Junior Subordinated Debentures will be issued and sold on the terms
described in the Junior Subordinated Indenture and the Registration Statement.
Based upon and subject to the foregoing, as well as the qualifications set forth
in subsequent portions of this letter, we are of the opinion as of this date
that, (i) when the Registration Statement has become effective, and upon
compliance with the pertinent provisions of the Act and the Trust Indenture Act
of 1939, as amended, and compliance with the securities or "blue sky" laws of
various jurisdictions in which the Capital Securities will be offered or sold,
(ii) when the Junior Subordinated Indenture and the Guarantee Agreement have
been properly executed and delivered by BancShares and by the Trustee and the
Guarantee Trustee, respectively, and (iii) when the Junior Subordinated
Debentures have been executed, authenticated and delivered in accordance with
the terms of the Junior Subordinated Indenture, then the Junior Subordinated
Debentures and the Guarantee Agreement will be valid, binding and legal
obligations of BancShares.
In rendering the opinions set forth above, we have assumed, without
independent verification, that
1. The parties to the Junior Subordinated Indenture, the Guarantee Agreement
and the Junior Subordinated Debentures have the corporate power and
authority to execute, deliver and perform their respective obligations
thereunder;
2. No event will take place subsequent to the date hereof that would cause
any action taken in connection with the Junior Subordinated Indenture, the
Junior Subordinated Debentures, the Guarantee Agreement, or the
transactions described therein to fail to comply with any law, rule,
regulation, order, judgment, decree or duty, or that would permit any
party to cancel, rescind, or otherwise avoid any act;
3. All certificates of public officials have been properly given and are
accurate and complete;
4. There has been no mutual mistake of fact, fraud, duress or undue influence
in connection with the Junior Subordinated Indenture, the Junior
Subordinated Debentures, the Guarantee Agreement, or the transactions
described therein, and the conduct of the parties to such documents has
complied with any requirement of good faith, fair dealing and
conscionability;
5. There are no agreements or understandings, or any usage of trade or course
of dealing, among the parties that, in any case, would define, supplement
or qualify the terms of the Junior Subordinated Indenture, the Junior
Subordinated Debentures, the Guarantee Agreement, or the transactions
described therein.
In addition, all opinions and statements set forth in this letter are expressly
limited and qualified as follows:
(1) The opinions expressed herein are limited to matters of North Carolina law
and the federal laws of the United States of America. We point out that
the Junior Subordinated Indenture, the Junior Subordinated Debentures and
the Guarantee Agreement are governed by New York law. We are not admitted
to practice in New York, and we have assumed for purposes of the opinions
expressed herein that the laws of such other jurisdiction conform to the
laws of North Carolina.
(2) Our opinions are limited to the matters expressly stated herein, and no
opinion may be inferred or implied beyond the matters expressly stated.
(3) The enforceability of all or various provisions of the Junior Subordinated
Indenture, the Junior Subordinated Debentures and the Guarantee Agreement
may be limited by (i) the effect of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect
relating to or limiting the enforcement of creditors' rights generally,
(ii) general principles of equity and applicable laws or court decisions
limiting the availability of specific performance, injunctive relief and
other equitable remedies, and (iii) federal and/or state bank holding
company, commercial bank, savings bank, thrift institution and deposit
insurance laws and regulations, and the application of principles of
public policy underlying such laws and regulations.
(4) We express no opinion herein as to the enforceability of any choice of law
or indemnification provisions contained in the Junior Subordinated
Indenture, the Junior Subordinated Debentures or the Guarantee
Agreement.
(5) Except as otherwise expressly specified herein, the opinions herein are
limited to matters in existence as of the date hereof, and we undertake no
responsibility to revise or supplement this letter or the opinions herein
to reflect any change in the law or facts.
We consent to the filing of this opinion as an exhibit to the Registration
Statement. We also consent to the reference to Ward and Smith, P.A. under the
caption "Legal Matters" in the Registration Statement.
Yours truly,
/s/ WARD AND SMITH, P.A.