Registration Statement No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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FREDERICK COUNTY BANCORP, INC.
(Exact Name of Registrant as Specified in its Charter)
Maryland 20-0049496
(State or Other Jurisdiction of (IRS Employer I.D. Number)
Incorporation or Organization)
30 West Patrick Street, Frederick, Maryland 21701
(Address of Principal Executive Offices) (Zip Code)
FREDERICK COUNTY BANCORP, INC. 2001 STOCK OPTION PLAN
(Full Title of Plan)
William R. Talley, Jr.
Frederick County Bancorp, Inc.
7 North Market Street
Frederick, Maryland 21701
301.620.1400
(Name, Address, and Telephone Number of Agent for Service)
Copies to:
Noel M. Gruber, Esquire
Kennedy, Baris & Lundy, L.L.P.
Suite P-15
4701 Sangamore Road
Bethesda, Maryland 20816
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering per Aggregate Offering Amount of
Registered Registered Share(1) Price(1) Registration Fee
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Common Stock,
$.01 par value 58,476(3) $39.875 $2,331,730.50 $295.43
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(1) Estimated in accordance with Rule 457(h)(1) under the Securities
Act of 1933 solely for purposes of calculating the registration fee,
based, with respect to unissued options, on the average of the bid and
ask prices for the common stock on April 26, 2004.
(2) Previously, on registration statement no. 333-111761, 71,524
shares of common stock of the registrant were registered for issuance
pursuant to the exercise of options issued under the 2001 Stock Option
Plan. This registration statement registers an additional 58,476 shares
for issuance pursuant to options granted under the plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with Securities and Exchange Commission
are hereby incorporated by reference herein:
(1) The Annual Report on Form 10-KSB for the year ended December 31,
2003 of Frederick County Bancorp, Inc.;
(2) The Current Reports on Form 8-K filed on February 10, 2004 and
April 13, 2004 of Frederick County Bancorp; and
(3) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act by Frederick County Bancorp, Inc. since the end of
the year covered in its Annual Report referred to in (1) above.
All documents filed by Frederick County Bancorp, Inc. pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
subsequent to the date hereof, and prior to the filing of a post-effective
amendment hereto which indicates that all securities offered hereby shall have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
As the securities to be issued pursuant to this registration statement
are registered under Section 12 of the Securities Exchange Act of 1934, this
item is inapplicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Articles of Incorporation of Frederick County Bancorp, Inc. provide
that to the fullest extent permitted and in the manner prescribed by the
Maryland General Corporation Law ("MGCL") and any other applicable law,
Frederick County Bancorp shall indemnify a director or officer of Frederick
County Bancorp who is or was a party to any proceeding (whether civil, criminal,
administrative or investigative, threatened, pending or completed, a
"proceeding") by reason of the fact that he is or was such a director or officer
or is or was serving at the request of Frederick County Bancorp as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise. The Board of Directors is
empowered, by majority vote of a quorum of disinterested directors, to contract
in advance to indemnify any director or officer. Under the MGCL, Frederick
County Bancorp generally has the power to indemnify its present and former
directors, officers, agents and employees, or persons serving as such in another
entity at Frederick County Bancorp's request, against expenses (including
attorneys' fees) and liabilities incurred by them in any action, suit, or
proceeding to which they are, or are threatened to be made, a party by reason of
their serving in such positions, so long as they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
Frederick County Bancorp, or in the case of a criminal proceeding, had no
reasonable cause to believe their conduct was unlawful. In respect of suits by
or in the right of Frederick County Bancorp, the indemnification is generally
limited to expenses (including attorneys' fees) and is not available in respect
of any claim where such person is adjudged liable to Frederick County Bancorp,
unless the court determines that indemnification is appropriate. To the extent
such person is successful in the defense of any suit, action or proceeding,
indemnification against expenses (including attorneys' fees) is mandatory.
Frederick County Bancorp has the power to purchase and maintain insurance for
such persons and indemnification. The indemnification provided by the MGCL and
the Articles of Incorporation is not exclusive of other rights to
indemnification which any person may otherwise be entitled under any bylaw,
agreement, shareholder or disinterested director vote, or otherwise.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
As no restricted securities are to be reoffered or resold pursuant to
this registration statement, this item is inapplicable.
ITEM 8. EXHIBITS.
Exhibit Number Description
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4 Frederick County Bancorp, Inc. 2001 Stock Option Plan (1)
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 McGladrey & Pullen, LLP
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(1) Incorporated by reference to exhibit of same number to Registration
Statement on Form S-8 No. 333-111761.
ITEM 9. 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 determining 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.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that 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 Frederick, State of Maryland, on April 26, 2004.
FREDERICK COUNTY BANCORP, INC.
By: /s/ Martin S. Lapera
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Martin S. Lapera, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Emil D. Bennett Director April 26, 2004
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Emil D. Bennett
/s/ John N. Burdette Director April 26, 2004
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John N. Burdette
Director April , 2004
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J. Denham Crum
/s/ George E. Dredden, Jr. Director April 26, 2004
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George E. Dredden, Jr.
Director April , 2004
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William S. Fout
/s/ William J. Kissner Director April 26, 2004
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William J. Kissner
/s/ Martin S. Lapera President, Chief Executive Officer April 26, 2004
- ---------------------------------- and Director (Principal Executive Officer)
Martin S. Lapera
/s/ Kenneth G. McCombs Director April 26, 2004
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Kenneth G. McCombs
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/s/ Farhad Memarsadeghi Director April 26, 2004
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Farhad Memarsadeghi
/s/ Raymond Raedy Director April 26, 2004
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Raymond Raedy
/s/ William R. Talley, Jr. Executive Vice President, Chief April 26, 2004
- ---------------------------------- Financial Officer (Principal Financial
William R. Talley, Jr. and Accounting Officer)
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