As Filed With the Securities and Exchange Commission On March 29, 2001
Registration Statement No. 333-57616
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Pre-Effective Amendment No. 2
to
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FULTON FINANCIAL CORPORATION
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(Exact name of registrant as specified in its charter)
Pennsylvania 6720 23-2195389
- ------------------------------- ---------------------------- ----------------
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
One Penn Square
Lancaster, Pennsylvania 17604
717-291-2411
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(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Rufus A. Fulton, Jr.
Chairman and Chief Executive Officer
One Penn Square
Lancaster, Pennsylvania 17604
717-291-2411
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Paul G. Mattaini, Esquire Charles J. Ferry, Esquire
Barley, Snyder, Senft & Cohen, LLC Rhoads & Sinon, LLP
126 East King Street One South Market Square, 12th Floor
Lancaster, Pennsylvania 17604-2893 Harrisburg, Pennsylvania 17108
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Approximate date of commencement of proposed sale of the securities to the
public: As soon as practicable after this Registration Statement becomes
effective.
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If the securities being registered on this Form are to be offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, 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 registration
statement for the same offering. | |
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box, and list Securities Act
registration statement number of the earlier effective registration statement
for the same offering. | |
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CALCULATION OF REGISTRATION FEE
Title Of Each Class Of Amount To Be Proposed Maximum Offering Proposed Maximum Aggregate Amount Of
Securities To Be Registered Registered(1) Price Per Unit (2)(3) Offering Price (2)(3) Registration Fee
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Common Stock, par value $2.50
per share (and associated **Previously Paid**
stock purchase rights)(4)
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The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until the registration statement shall
become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
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This pre-effective amendment is filed solely to correct a technical error in the
filing of Exhibit D to the Proxy Statement/Prospectus which is a part of this
Registration Statement.
EXHIBIT D
DISSENTERS' RIGHTS STATUTE
--------------------------
Subchapter D of Chapter 15 of the Pennsylvania Business Corporation Law of 1988
(S) 1571. Application and effect of subchapter
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(a) General rule.
Except as otherwise provided in subsection (b), any shareholder of a
business corporation shall have the right to dissent from, and to obtain payment
of the fair value of his shares in the event of, any corporate action, or to
otherwise obtain fair value for his shares, where this part expressly provides
that a shareholder shall have the rights and remedies provided in this
subchapter. See: Section 1906(c)(relating to dissenters rights upon special
treatment). Section 1930 (relating to dissenters rights). Section 1931(d)
(relating to dissenters rights in share exchanges). Section 1932(c) (relating to
dissenters rights in asset transfers). Section 1952(d) (relating to dissenters
rights in division). Section 1962(c) (relating to dissenters rights in
conversion). Section 2104(b) (relating to procedure). Section 2324 (relating to
corporation option where a restriction on transfer of a security is held
invalid). Section 2325(b) (relating to minimum vote requirement). Section
2704(c) (relating to dissenters rights upon election). Section 2705(d) (relating
to dissenters rights upon renewal of election). Section 2907(a) (relating to
proceedings to terminate breach of qualifying conditions). Section 7104(b)(3)
(relating to procedure).
(b) Exceptions.-- (1) Except as otherwise provided in paragraph (2), the holders
of the shares of any class or series of shares that, at the record date fixed to
determine the shareholders entitled to notice of and to vote at the meeting at
which a plan specified in any of section 1930, 1931(d), 1932(c) or 1952(d) is to
be voted on, are either: (i) listed on a national securities exchange; or (ii)
held of record by more than 2,000 shareholders; shall not have the right to
obtain payment of the fair value of any such shares under this subchapter. (2)
Paragraph (1) shall not apply to and dissenters rights shall be available
without regard to the exception provided in that paragraph in the case of: (i)
Shares converted by a plan if the shares are not converted solely into shares of
the acquiring, surviving, new or other corporation or solely into such shares
and money in lieu of fractional shares. (ii) Shares of any preferred or special
class unless the articles, the plan or the terms of the transaction entitle all
shareholders of the class to vote thereon and require for the adoption of the
plan or the effectuation of the transaction the affirmative vote of a majority
of the votes cast by all shareholders of the class. (iii) Shares entitled to
dissenters rights under section1906(c) (relating to dissenters rights upon
special treatment). (3) The shareholders of a corporation that acquires by
purchase, lease, exchange or other disposition all or substantially all of the
shares, property or assets of another corporation by the issuance of shares,
obligations or otherwise, with or without assuming the liabilities of the other
corporation and with or without the intervention of another corporation or other
person, shall not be entitled to the rights and remedies of dissenting
shareholders provided in this subchapter regardless of the fact, if it be the
case, that the acquisition was accomplished by the issuance of voting shares of
the corporation to be outstanding immediately after the acquisition sufficient
to elect a majority or more of the directors of the corporation.
(c) Grant of optional dissenters rights.--The bylaws or a resolution of the
board of directors may direct that all or a part of the shareholders shall have
dissenters rights in connection with any corporate action or other transaction
that would otherwise not entitle such shareholders to dissenters rights.
(d) Notice of dissenters rights.--Unless otherwise provided by statute, if a
proposed corporate action that would give rise to dissenters rights under this
subpart is submitted to a vote at a meeting of shareholders, there shall be
included in or enclosed with the notice of meeting: (1) a statement of the
proposed action and a statement that the shareholders have a right to dissent
and obtain payment of the fair value of their shares by complying with the terms
of this subchapter; and (2) a copy of this subchapter.
(e) Other statutes.--The procedures of this subchapter shall also be applicable
to any transaction described in any statute other than this part that makes
reference to this subchapter for the purpose of granting dissenters rights.
(f) Certain provisions of articles ineffective.--This subchapter may not be
relaxed by any provision of the articles.
(g) Cross references.--See sections 1105 (relating to restriction on equitable
relief), 1904 (relating to de facto transaction doctrine abolished)and 2512
(relating to dissenters rights procedure).
D-1
(S) 1572. Definitions
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The following words and phrases when used in this subchapter shall have the
meanings given to them in this section unless the context clearly indicates
otherwise: "Corporation." The issuer of the shares held or owned by the
dissenter before the corporate action or the successor by merger, consolidation,
division, conversion or otherwise of that issuer. A plan of division may
designate which of the resulting corporations is the successor corporation for
the purposes of this subchapter. The successor corporation in a division shall
have the sole responsibility for payments to dissenters and other liabilities
under this subchapter except as otherwise provided in the plan of division.
"Dissenter." A shareholder or beneficial owner who is entitled to and does
assert dissenters rights under this subchapter and who has performed every act
required up to the time involved for the assertion of those rights. "Fair
value." The fair value of shares immediately before the effectuation of the
corporate action to which the dissenter objects, taking into account all
relevant factors, but excluding any appreciation or depreciation in anticipation
of the corporate action. "Interest." Interest from the effective date of the
corporate action until the date of payment at such rate as is fair and equitable
under all the circumstances, taking into account all relevant factors, including
the average rate currently paid by the corporation on its principal bank loans.
(S) 1573. Record and beneficial holders and owners
- --------------------------------------------------
(a) Record holders of shares.
A record holder of shares of a business corporation may assert dissenters
rights as to fewer than all of the shares registered in his name only if he
dissents with respect to all the shares of the same class or series beneficially
owned by any one person and discloses the name and address of the person or
persons on whose behalf he dissents. In that event, his rights shall be
determined as if the shares as to which he has dissented and his other shares
were registered in the names of different shareholders.
(b) Beneficial owners of shares.--A beneficial owner of shares of a business
corporation who is not the record holder may assert dissenters rights with
respect to shares held on his behalf and shall be treated as a dissenting
shareholder under the terms of this subchapter if he submits to the corporation
not later than the time of the assertion of dissenters rights a written consent
of the record holder. A beneficial owner may not dissent with respect to some
but less than all shares of the same class or series owned by the owner, whether
or not the shares so owned by him are registered in his name.
(S) 1574. Notice of intention to dissent.
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If the proposed corporate action is submitted to a vote at a meeting of
shareholders of a business corporation, any person who wishes to dissent and
obtain payment of the fair value of his shares must file with the corporation,
prior to the vote, a written notice of intention to demand that he be paid the
fair value for his shares if the proposed action is effectuated, must effect no
change in the beneficial ownership of his shares from the date of such filing
continuously through the effective date of the proposed action and must refrain
from voting his shares in approval of such action. A dissenter who fails in any
respect shall not acquire any right to payment of the fair value of his shares
under this subchapter. Neither a proxy nor a vote against the proposed corporate
action shall constitute the written notice required by this section.
(S) 1575. Notice to demand payment
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(a) General rule.
If the proposed corporate action is approved by the required vote at a
meeting of shareholders of a business corporation, the corporation shall mail a
further notice to all dissenters who gave due notice of intention to demand
payment of the fair value of their shares and who refrained from voting in favor
of the proposed action. If the proposed corporate action is to be taken without
a vote of shareholders, the corporation shall send to all shareholders who are
entitled to dissent and demand payment of the fair value of their shares a
notice of the adoption of the plan or other corporate action. In either case,
the notice shall: (1) State where and when a demand for payment must be sent and
certificates for certificated shares must be deposited in order to obtain
payment. Inform holders of uncertificated shares to what extent transfer of
shares will be restricted from the time that demand for payment is received. (3)
Supply a form for demanding payment that includes a request for certification of
the date on which the shareholder, or the person on whose behalf the shareholder
dissents, acquired beneficial ownership of the shares. (4) Be accompanied by a
copy of this subchapter.
(b) Time for receipt of demand for payment.--The time set for receipt of the
demand and deposit of certificated shares shall not be less than 30 days from
the mailing of the notice.
D-2
(S) 1576. Failure to comply with notice to demand payment, etc.
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(a) Effect of failure of shareholder to act.
- --------------------------------------------
A shareholder who fails to timely demand payment, or fails (in the case of
certificated shares) to timely deposit certificates, as required by a notice
pursuant to section 1575(relating to notice to demand payment) shall not have
any right under this subchapter to receive payment of the fair value of his
shares.
(b) Restriction on uncertificated shares.--If the shares are not represented by
certificates, the business corporation may restrict their transfer from the time
of receipt of demand for payment under effectuation of the proposed corporate
action or the release of restrictions under the terms of section 1577(a)
(relating to failure to effectuate corporate action).
(c) Rights retained by shareholder.--The dissenter shall retain all other rights
of a shareholder until those rights are modified by effectuation of the proposed
corporate action.
(S) 1577. Release of restrictions or payment for shares
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(a) Failure to effectuate corporation action.
- ---------------------------------------------
Within 60 days after the date set for demanding payment and depositing
certificates, if the business corporation has not effectuated the proposed
corporate action, it shall return any certificates that have been deposited and
release uncertificated shares from any transfer restrictions imposed by reason
of the demand for payment.
(b) Renewal of notice to demand payment.--When uncertificated shares have been
released from transfer restrictions and deposited certificates have been
returned, the corporation may at any later time send a new notice conforming to
the requirements of section 1575 (relating to notice to demand payment), with
like effect.
(c) Payment of fair value of shares.--Promptly after effectuation of the
proposed corporate action, or upon timely receipt of demand for payment if the
corporate action has already been effectuated, the corporation shall either
remit to dissenters who have made demand and (if their shares are
certificated)have deposited their certificates the amount that the corporation
estimates to be the fair value of the shares, or give written notice that no
remittance under this section will be made. The remittance or notice shall be
accompanied by: (1) The closing balance sheet and statement of income of the
issuer of the shares held or owned by the dissenter for a fiscal year ending not
more than 16 months before the date of remittance or notice together with the
latest available interim financial statements. (2) A statement of the
corporation's estimate of the fair value of the shares. (3) A notice of the
right of the dissenter to demand payment or supplemental payment, as the case
may be, accompanied by a copy of this subchapter.
(d) Failure to make payment.--If the corporation does not remit the amount of
its estimate of the fair value of the shares as provided by subsection(c), it
shall return any certificates that have been deposited and release
uncertificated shares from any transfer restrictions imposed by reason of the
demand for payment. The corporation may make a notation on any such certificate
or on the records of the corporation relating to any such uncertificated shares
that such demand has been made. If shares with respect to which notation has
been so made shall be transferred, each new certificate issued therefor or the
records relating to any transferred uncertificated shares shall bear a similar
notation, together with the name of the original dissenting holder or owner of
such shares. A transferee of such shares shall not acquire by such transfer any
rights in the corporation other than those that the original dissenter had after
making demand for payment of their fair value.
(S) 1578. Estimate by dissenter of fair value of shares
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(a) General rule.
- -----------------
If the business corporation gives notice of its estimate of the fair value
of the shares, without remitting such amount, or remits payment of its estimate
of the fair value of a dissenter's shares as permitted by section 1577(c)
(relating to payment of fair value of shares) and the dissenter believes that
the amount stated or remitted is less than the fair value of his shares, he may
send to the corporation his own estimate of the fair value of the shares, which
shall be deemed a demand for payment of the amount or the deficiency.
(b) Effect of failure to file estimate.--Where the dissenter does not file his
own estimate under subsection (a) within 30 days after the mailing by the
corporation of its remittance or notice, the dissenter shall be entitled to no
more than the amount stated in the notice or remitted to him by the corporation.
(S) 1579. Valuation proceedings generally
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(a) General rule.
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Within 60 days after the latest of: (1) effectuation of the proposed
corporate action; (2) timely receipt of any demands for payment under section
1575(relating to notice to demand payment); or (3) timely receipt of any
estimates pursuant to section 1578(relating to estimate by dissenter of fair
value of shares);if any demands for payment remain unsettled, the business
corporation may file in court an application for relief requesting that the fair
value of the shares be determined by the court.
(b) Mandatory joinder of dissenters.--All dissenters, wherever
D-3
residing, whose demands have not been settled shall be made parties to the
proceeding as in an action against their shares. A copy of the application shall
be served on each such dissenter. If a dissenter is a nonresident, the copy
maybe served on him in the manner provided or prescribed by or pursuant to
42Pa.C.S. Ch. 53 (relating to bases of jurisdiction and interstate and
international procedure)./1/
(c) Jurisdiction of the court.--The jurisdiction of the court shall be plenary
and exclusive. The court may appoint an appraiser to receive evidence and
recommend a decision on the issue of fair value. The appraiser shall have such
power and authority as may be specified in the order of appointment or in any
amendment thereof.
(d) Measure of recovery.--Each dissenter who is made a party shall be entitled
to recover the amount by which the fair value of his shares is found to exceed
the amount, if any, previously remitted, plus interest.
(e) Effect of corporation's failure to file application.--If the corporation
fails to file an application as provided in subsection (a), any dissenter who
made a demand and who has not already settled his claim against the corporation
may do so in the name of the corporation at any time within 30days after the
expiration of the 60-day period. If a dissenter does not file an application
within the 30-day period, each dissenter entitled to file an application shall
be paid the corporation's estimate of the fair value of the shares and no more,
and may bring an action to recover any amount not previously remitted.
(S) 1580. Costs and expenses of valuation proceedings
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(a) General rule
- ----------------
The costs and expenses of any proceeding under section 1579 (relating to
valuation proceedings generally), including the reasonable compensation and
expenses of the appraiser appointed by the court, shall be determined by the
court and assessed against the business corporation except that any part of the
costs and expenses may be apportioned and assessed as the court deems
appropriate against all or some of the dissenters who are parties and whose
action in demanding supplemental payment under section 1578(relating to estimate
by dissenter of fair value of shares) the court finds to be dilatory, obdurate,
arbitrary, vexatious or in bad faith.
(b) Assessment of counsel fees and expert fees where lack of good faith appear.
- -- Fees and expenses of counsel and of experts for the respective parties may be
assessed as the court deems appropriate against the corporation and in favor of
any or all dissenters if the corporation failed to comply substantially with the
requirements of this subchapter and may be assessed against either the
corporation or a dissenter, in favor of any other party, if the court finds that
the party against whom the fees and expenses are assessed acted in bad faith or
in a dilatory, obdurate, arbitrary or vexatious manner in respect to the rights
provided by this subchapter.
(c) Award of fees for benefits to other dissenters.--If the court finds that the
services of counsel for any dissenter were of substantial benefit to other
dissenters similarly situated and should not be assessed against the
corporation, it may award to those counsel reasonable fees to be paid out of the
amounts awarded to the dissenters who were benefited.
D-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Pre-Effective Amendment to Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Lancaster, Commonwealth of Pennsylvania, on March 29, 2001.
FULTON FINANCIAL CORPORATION
By: /s/ Rufus A. Fulton, Jr.
------------------------------------
Rufus A. Fulton, Jr., Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Pre-
Effective Amendment to Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
SIGNATURE CAPACITY DATE
*
- ------------------------------
Jeffrey A. Albertson Director March 29, 2001
*
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James R. Argires, M.D. Director March 29, 2001
*
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Donald W. Bowman, Jr. Director March 29, 2001
* Senior Vice President and
- ------------------------------ Controller (Principal
Beth Ann L. Chivinski Accounting Officer) March 29, 2001
*
- ------------------------------
Harold D. Chubb Director March 29, 2001
*
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William H. Clark, Jr. Director March 29, 2001
*
- ------------------------------
Craig A. Dally Director March 29, 2001
*
- ------------------------------
4
SIGNATURE CAPACITY DATE
Frederick B. Fichthorn Director March 29, 2001
Chairman of the Board,
* Chief Executive Officer,
- ------------------------------ and Director (Principal
Rufus A. Fulton, Jr. Executive Officer) March 29, 2001
*
- ------------------------------
Eugene H. Gardner Director March 29, 2001
*
- ------------------------------
Robert D. Garner Director March 29, 2001
*
- ------------------------------
Charles V. Henry, III Director March 29, 2001
*
- ------------------------------
Robert J. Hess Director March 29, 2001
*
- ------------------------------
Carolyn R. Holleran Director March 29, 2001
*
- ------------------------------
Clyde W. Horst Director March 29, 2001
*
- ------------------------------
Samuel H. Jones, Jr. Director March 29, 2001
*
- ------------------------------
Donald W. Lesher, Jr. Director March 29, 2001
*
- ------------------------------
Joseph J. Mowad, M.D. Director March 29, 2001
Senior Executive Vice
* President and Chief
- ------------------------------ Financial Officer
Charles J. Nugent (Principal Financial March 29, 2001
Officer)
*
- ------------------------------
Mary Ann Russell Director March 29, 2001
*
- ------------------------------
John O. Shirk Director March 29, 2001
5
SIGNATURE CAPACITY DATE
*
- ------------------------------ President, Chief Operating
R. Scott Smith, Jr. Officer and Director March 29, 2001
*
- ------------------------------
James K. Sperry Director March 29, 2001
*
- ------------------------------
Kenneth G. Stoudt Director March 29, 2001
*by /s/ William R. Colmery
------------------------------------
William R. Colmery, Attorney-in-fact
6