UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
| x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE |
| SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2002
| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE |
| SECURITIES EXCHANGE ACT OF 1934 |
Commission file number: 001-14319
RESOURCE BANKSHARES CORPORATION
(Exact name of Registrant as specified in its charter)
Virginia | 54-1904386 | |
(State or other jurisdiction of incorporation or organization) | (IRS Employer Identification No.) |
3720 Virginia Beach Blvd., Virginia Beach, Virginia | 23452 | |
(Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code:757-463-2265
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $1.50 par value
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yesx No¨
Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act).
Yes¨ Nox
The aggregate market value of voting stock held by non-affiliates of the registrant based on the closing sale price on March 6, 2003 as reported in TheWall Street Journal, was $ 71,353,238. For the purpose of the foregoing calculation only, directors and executive officers of the registrant have been deemed affiliates.
The number of shares outstanding of the registrant’s common stock as of March 6, 2003: 3,979,167
DOCUMENTS INCORPORATED BY REFERENCE
In accordance with General Instruction G(3) of Form 10-K, the information called for in Part III is incorporated by reference from the Company’s Proxy Statement to be filed no later than April 30, 2003, in connection with the Company’s 2003 Annual Meeting of Shareholders.
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K, or any amendment to this Form 10-K.¨
TABLE OF CONTENTS
PART I | ||
3. Legal Proceedings | 3 |
Item 3.Legal Proceedings
Resource Mortgage, a division of the Bank, historically has used facsimiles to disseminate product and interest rate information to mortgage brokers on a nationwide basis. The facsimile form of business communication is consistent with traditional industry practice because obtaining time sensitive information is critical in order for mortgage brokers to obtain the best possible interest rates for their customers.
On March 8, 2002, Cohen & Malad, LLP, an Indianapolis, Indiana law firm acting as plaintiff, filed a class action complaint in the Circuit/Superior Court of Marion County, Indiana against the Company and the Bank. The suit alleges that the Bank violated the Telephone Consumer Protection Act by sending unsolicited advertisements by facsimile without obtaining prior express invitation or permission to send the facsimiles. The Company believes that the facsimile allegedly received by the plaintiff was transmitted by a third party fax service provider retained by the Bank. Subsequently, the Company was dismissed as a party to the litigation but the lawsuit is still pending against the Bank.
The suit seeks certification of a class action to pursue statutory claims by recipients of unsolicited facsimiles and seeks monetary damages. Under the TCPA, recipients of unsolicited fax advertisements are entitled to damages of $500 per fax for inadvertent violations of the TCPA and $1,500 per fax for knowing or willful violations. Because the Bank’s mortgage division often uses third party fax service providers to disseminate product and interest rate information, the Bank has not yet been able to determine the number of faxes sent during the relevant class period. However, the Company expects the number to be significant.
The Bank is defending the lawsuit vigorously and has filed initial briefs and motions with the court. The court will not establish a trial date until ruling on dispositive motions. Initially, the Bank has filed a motion to dismiss the lawsuit on the grounds that the TCPA is unconstitutional. The motion to dismiss asserts that the TCPA is unconstitutional on several grounds, including violation of the First Amendment right to free commercial speech and violation of Eighth Amendment due process rights in connection with the TCPA’s penalty provisions.
The Bank is asserting additional constitutional and other defenses in the litigation. In particular, the Bank intends to contest vigorously class certification on the grounds that individual issues surrounding each facsimile preclude class certification. However, the Bank believes that courts in Marion County, Indiana recently have granted class certifications in other class action lawsuits filed under the TCPA. The Bank does not yet know whether the factual claims underlying these class action lawsuits are similar or dissimilar to the litigation to which the Bank is a party. If appropriate, the Bank also will explore vigorously possible causes of action against the fax service provider that transmitted the facsimile allegedly received by the plaintiff in the lawsuit.
The Bank has insurance coverage for any litigation costs associated with the lawsuit, including attorneys’ fees and expenses, subject to a policy limit of $3 million.
Because the Bank intends to defend the lawsuit vigorously, and because that defense includes the filing of various dispositive motions that will require court rulings in advance of a trial, the Bank cannot predict when the lawsuit will be resolved. In addition, because the plaintiff and the Bank will have the opportunity to appeal the trial court’s rulings on these dispositive motions, it is likely that the lawsuit will remain pending for the foreseeable future.
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
RESOURCE BANKSHARES CORPORATION |
/s/ Lawrence N. Smith |
Lawrence N. Smith President and Chief Executive Officer Date: 4/1/2003 |
/s/ Eleanor J. Whitehurst |
Eleanor J. Whitehurst Senior Vice President and Chief Financial Officer Date: 4/1/2003 |
In accordance with Exchange Act, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
* Thomas W. Hunt | Chairman of the Board | Date: 4/1/2003 | ||
/s/ Lawrence N. Smith Lawrence N. Smith | Chief Executive Officer (Principal Executive Officer) Director | Date: 4/1/2003 | ||
/s/ Eleanor J. Whitehurst Eleanor J. Whitehurst | Senior Vice President Chief Executive Officer
(Principal Financial and Accounting Officer) | Date: 4/1/2003 | ||
* Alfred E. Abiouness | Director | Date: 4/1/2003 | ||
* T.A. Grell, Jr. | President Director | Date: 4/1/2003 | ||
* Louis Ray Jones | Director | Date: 4/1/2003 | ||
* Arthur Russell Kirk | Director | Date: 4/1/2003 | ||
* Elizabeth A. Twohy | Director | Date: 4/1/2003 | ||
* Signed pursuant to power of attorney previously granted to Lawrence N. Smith.
CERTIFICATIONS
I, Lawrence N. Smith, Chief Executive Officer, certify that:
1. I have reviewed this annual report on Form 10-K/A of Resource Bankshares Corporation;
2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;
3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report;
4. The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
| a) | designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; |
| b) | evaluated the effectiveness of the registrant’s disclosure controls and procedures as of a date within 90 days prior to the filing date of this annual report (the “Evaluation Date”); and |
| c) | presented in this annual report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date; |
5. The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent function):
| a) | all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant’s ability to record, process, summarize and report financial data and have identified for the registrant’s auditors any material weaknesses in internal controls; and |
| b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal controls; and |
6. The registrant’s other certifying officers and I have indicated in this annual report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses.
Date: April 1, 2003 | /s/ Lawrence N. Smith | |||
Lawrence N. Smith |
I, Eleanor J. Whitehurst, Chief Financial Officer, certify that:
1. I have reviewed this annual report on Form 10-K/A of Resource Bankshares Corporation;
2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;
3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report;
4. The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
| a) | designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; |
| b) | evaluated the effectiveness of the registrant’s disclosure controls and procedures as of a date within 90 days prior to the filing date of this annual report (the “Evaluation Date”); and |
| c) | presented in this annual report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date; |
5. The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent function):
| a) | all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant’s ability to record, process, summarize and report financial data and have identified for the registrant’s auditors any material weaknesses in internal controls; and |
| b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal controls; and |
6. The registrant’s other certifying officers and I have indicated in this annual report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses.
Date: April 1, 2003 | /s/ Eleanor J. Whitehurst | |||
Eleanor J. Whitehurst |
