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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 14, 1998
Registration No. 333-______________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Resource Bancshares Mortgage Group, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 57-0962375
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7909 Parklane Road, Columbia, South Carolina 29223
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(Address of principal executive offices) (Zip code)
Amended and Restated Resource Bancshares Mortgage Group, Inc.
Omnibus Stock Award Plan
Resource Bancshares Mortgage Group, Inc. Formula Stock Option Plan
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(Full titles of the plans)
Edward J. Sebastian
Resource Bancshares Mortgage Group, Inc.
7909 Parklane Road
Columbia, South Carolina 29223
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (803) 741-3000
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price per aggregate offering registration
to be registered registered(1) share price fee
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<S> <C> <C> <C> <C>
Common stock, par
value $.01 per share 520,249 shares(2) $17.00(3) $8,844,233.00 $2,609.05
</TABLE>
(1) Together with an indeterminable number of additional shares which may
be necessary to adjust the number of shares reserved for issuance
pursuant to such plans as the result of any future stock split, stock
dividend or similar adjustment of the registrant's outstanding common
stock.
(2) The number of shares being registered represents the total number of
shares that have been reserved for issuance pursuant to the Amended and
Restated Resource Bancshares, Inc. Omnibus Stock Award Plan and the
Resource Bancshares Mortgage Group, Inc. Formula Stock Option Plan but
that have not been registered heretofore.
(3) Estimated pursuant to Rule 457(c) under the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee
based on the average of the high and low prices of Resource Bancshares
Mortgage Group, Inc. common stock as reported on The Nasdaq Stock
Market on January 12, 1998.
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INCORPORATION OF CONTENTS OF PRIOR REGISTRATION STATEMENT
Pursuant to General Instruction E of Form S-8, the contents of Registration
Statement No. 333-25885 are incorporated herein by reference. In addition,
the following information is included herein and supersedes the contents of
Registration Statement No. 333-25885:
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant hereby incorporates by reference in this registration
statement the following documents:
(a) The registrant's annual report on Form 10-K for the year
ended December 31, 1996.
(b) The registrant's quarterly reports on Form 10-Q for the
quarters ended March 31, 1997, June 30, 1997 and September 30, 1997.
(c) The registrant's current report on Form 8-K dated
April 18, 1997, filed with the Securities and Exchange Commission on
April 21, 1997.
(d) The description of the registrant's common stock, par
value $.01 per share, set forth in the registrant's registration statement on
Form 8-A dated May 18, 1993.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby 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 a part hereof from the date of filing of such
documents.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the common stock of the registrant offered hereby will
be passed on for the registrant by McNair Law Firm, P.A., Columbia, South
Carolina. John W. Currie, a director and the secretary of the registrant, is a
member of that firm. Mr. Currie and other members of that firm are stockholders
of the registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of the
State of Delaware empowers a corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
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Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Subsection (c) of Section 145 provides that to the extent a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
Other subsections of Section 145: (i) provide that indemnification
provided for by Section 145 shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled; (ii) provide that indemnification
provided for by Section 145 shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of such person's heirs,
executors and administrators; and (iii) empower the corporation to purchase and
maintain insurance on behalf of a director, officer, employee or agent of the
corporation, or any person who is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation would have the power to
indemnify him against such liabilities under Section 145. Paragraph (c) of
Article Seventh of the registrant's Restated Certificate of Incorporation, as
amended, contains a parallel provision.
Section 102(b)(7) of the General Corporation Law of the State of
Delaware provides that a certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to a corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the General Corporation Law of the State of Delaware
or (iv) for any transaction from which the director derived an improper personal
benefit. Paragraph (a) of Article Seventh of the registrant's Restated
Certificate of Incorporation, as amended, eliminates the personal liability of
the registrant's directors for monetary damages for breach of fiduciary duty
except to the extent that such elimination of liability is not permitted under
Delaware corporate law.
Paragraph (b) of Article Seventh of the registrant's Restated
Certificate of Incorporation, as amended, provides for indemnification of its
directors, officers, employees and other agents. The registrant also maintains
liability insurance for its directors and officers which provides for coverage
against loss from claims made against directors and officers in
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their capacity as such, including liabilities under the Securities Act of 1933,
as amended.
Section 6.04(a) of an agreement of merger (the "Merger Agreement")
dated as of April 18, 1997 among the registrant, Resource Bancshares
Corporation, a South Carolina corporation, and RBC Merger Sub, Inc., a South
Carolina corporation, provides that for six years after the effective time of
the merger (the "Effective Time"), the registrant may not amend, repeal, or
otherwise modify the indemnification provisions of its Certificate of
Incorporation or Bylaws in any manner that would adversely affect the rights
thereunder of individuals who at or at any time prior to the Effective Time were
directors, officers, employees, fiduciaries or agents of the registrant.
The Effective Time occurred on December 31, 1997.
In addition, Section 6.04(d) of the Merger Agreement requires the
registrant to indemnify each of its current and former directors and officers
determined as of the Effective Time (each, an "Indemnified Party") in connection
with claims arising out of or pertaining to matters existing or occurring at or
prior to the Effective Time, whether asserted or claimed prior to, at or after
the Effective Time, to the fullest extent that the registrant would have been
permitted under Delaware law and its charter documents as in effect on the date
of the Merger Agreement to indemnify such Indemnified Parties. Section 6.04(d)
also provides for the registrant to advance expenses as incurred to the fullest
extent permitted under applicable law, so long as the Indemnified Party to whom
expenses are advanced provides an undertaking to repay such advances if it is
ultimately determined pursuant to a final, nonappealable judgment by a court of
competent jurisdiction that the Indemnified Party is not entitled to
indemnification.
To the extent that Section 6.04(d) of the Merger Agreement does not
serve to indemnify any Indemnified Party, Section 6.04(e) of the Merger
Agreement requires the registrant, for six years after the date of the Merger
Agreement, to indemnify each Indemnified Party in connection with the
transactions contemplated by the Merger Agreement; provided that the registrant
is not required to indemnify any Indemnified Party pursuant to Section 6.04(e)
if it is determined that the Indemnified Party acted in bad faith and not in a
manner that the Indemnified Party believed to be in or not opposed to the best
interests of the registrant.
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ITEM 8. EXHIBITS.
Exhibit No.
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4.1 Restated Certificate of Incorporation of the registrant
(incorporated by reference to Exhibit 3.3 of the registrant's
Registration Statement No. 33-53980)
4.2 Certificate of Amendment of Certificate of Incorporation of
the registrant (filed herewith)
4.3 Amended and Restated Bylaws of the registrant (incorporated by
reference to Exhibit 3.4 of the registrant's Registration
Statement No. 33-53980)
4.4 Form of certificate evidencing shares of the registrant's
common stock, par value $.01 per share (incorporated by
reference to Exhibit 4.1 of the registrant's Registration
Statement No. 33-53980)
4.5 Amended and Restated Resource Bancshares Mortgage Group, Inc.
Omnibus Stock Award Plan (incorporated by reference to Exhibit
99.1 of the registrant's Registration Statement No. 333-29245)
4.6 Resource Bancshares Mortgage Group, Inc. Formula Stock Option
Plan (incorporated by reference to Exhibit 10.36 of the
registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1995)
4.7 First Amendment to Resource Bancshares Mortgage Group, Inc.
Formula Stock Option Plan (incorporated by reference to
Exhibit 99.8 of the registrant's Registration Statement No.
333-29245)
5 Opinion of McNair Law Firm, P.A., regarding the legality of
the securities registered hereunder (filed herewith)
23.1 Consent of Price Waterhouse LLP (filed herewith)
23.2 Consent of McNair Law Firm, P.A. (included in Exhibit 5)
24 Power of Attorney (included in "SIGNATURES" section hereof)
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 the City of Columbia, State of South Carolina, on January 14,
1998.
RESOURCE BANCSHARES MORTGAGE GROUP, INC.
By: /s/ Edward J. Sebastian
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Edward J. Sebastian, Chairman
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Edward J. Sebastian and David W.
Johnson, Jr., and each of them acting individually, as his attorneys-in-fact,
each with full power of substitution, for him in any and all capacities, to sign
any and all amendments to this registration statement and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorney to any and all amendments
to said registration statement.
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/ Edward J. Sebastian Director, Chairman January 14, 1998
- -------------------------- and Chief Executive
Edward J. Sebastian Officer (principal
executive officer)
/s/ Steven F. Herbert Senior Executive Vice January 14, 1998
- -------------------------- President and Chief
Steven F. Herbert Financial Officer
(principal financial
and accounting officer)
/s/ John C. Baker Director January 14, 1998
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John C. Baker
/s/ Stuart M. Cable Director January 14, 1998
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Stuart M. Cable
/s/ John W. Currie Director and January 14, 1998
- -------------------------- Secretary
John W. Currie
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/s/ Boyd M. Guttery Director January 14, 1998
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Boyd M. Guttery
/s/ David W. Johnson, Jr. Director and January 14, 1998
- -------------------------- Vice Chairman
David W. Johnson, Jr.
Director
- --------------------------
Robin C. Kelton
/s/ John O. Wolcott Director January 14, 1998
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John O. Wolcott
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EXHIBIT 4.2
CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF THE REGISTRANT
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
RESOURCE BANCSHARES MORTGAGE GROUP, INC.
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RESOURCE BANCSHARES MORTGAGE GROUP, INC., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation") hereby certifies:
FIRST: That the Board of Directors of the Corporation duly adopted the
following resolution proposing and declaring advisable an amendment to the
Certificate of Incorporation of the Corporation increasing the number of
authorized shares of Common Stock, par value $.01 per share, of the Company from
Twenty-Five Million (25,000,000) to Fifty Million (50,000,000):
"RESOLVED, that the Company amend its Certificate of
Incorporation by deleting in its entirety the first paragraph of the
Fourth Article of the Certificate of Incorporation and substituting in
lieu thereof the following:
FOURTH: (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is
55,000,000 shares, consisting of 50,000,000 shares of Common
Stock, par value $.01 per share, and 5,000,000 shares of
Preferred Stock, par value $.01 per share."
SECOND: That the amendments have been adopted by an affirmative vote of
a majority of the stockholders of the Corporation in accordance with the
provisions of Section 242(b)(2) of the General Corporation Law of the State of
Delaware.
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IN WITNESS WHEREOF, the Corporation has caused its duly authorized
officers to execute this Certificate as of this 31st day of December, 1997.
RESOURCE BANCSHARES MORTGAGE
GROUP, INC.
By: /s/ Edward J. Sebastian
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Name: Edward J. Sebastian
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Title: Chairman and Chief
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Executive Officer
Attest: /s/ John W. Currie
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Name: John W. Currie
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Title: Secretary
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EXHIBIT 5
OPINION OF MCNAIR LAW FIRM, P.A. REGARDING LEGALITY
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January 14, 1998
Resource Bancshares Mortgage Group, Inc.
7909 Parklane Road
Columbia, SC 29223
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Resource Bancshares Mortgage Group, Inc.
(the "Company") in the preparation of a registration statement on Form S-8 (the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission covering a total of 520,249 shares of $.01 par value common stock
(the "Common Stock") which may be issued pursuant to the terms of the Company's
Amended and Restated Omnibus Stock Award Plan and Formula Stock Option Plan
(collectively, the "Plans").
In so acting, we have examined and relied upon such records, documents
and other instruments as in our judgment are necessary or appropriate in order
to express the opinion hereinafter set forth and have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies.
Based on the foregoing, we are of the opinion that the Common Stock,
when issued and delivered against payment in full in accordance with the terms
of the Plans, will be duly and validly issued, fully paid and nonassessable.
We hereby consent to the reference to our firm in the Registration
Statement under the heading "Interests of Named Experts and Counsel" and to the
use of this opinion as an exhibit to the Registration Statement. By giving this
consent, we do not thereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the general rules and regulations promulgated thereunder.
Very truly yours,
McNAIR LAW FIRM, P.A.
By: /s/ John W. Currie
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A Member of the Firm
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EXHIBIT 23.1
CONSENT OF PRICE WATERHOUSE LLP
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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, 1997, which appears on
page 56 of the 1996 Annual Report to Shareholders of Resource Bancshares
Mortgage Group, Inc., which is incorporated by reference in Resource Bancshares
Mortgage Group, Inc.'s Annual Report on Form 10-K for the year ended December
31, 1996.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Columbia, South Carolina
January 12, 1998
