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As filed with the Securities and Exchange Commission on March 1, 2001
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
UNION FINANCIAL BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 57-1001177
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
203 WEST MAIN STREET
UNION, SOUTH CAROLINA 29379
(Address, including zip code,
of registrant's principal executive offices)
UNION FINANCIAL BANCSHARES, INC. 2001 STOCK OPTION PLAN
(Full Title of the Plan)
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DWIGHT V. NEESE COPIES TO:
PRESIDENT, CHIEF EXECUTIVE PAUL M. AGUGGIA, ESQUIRE
OFFICER AND DIRECTOR AARON M. KASLOW, ESQUIRE
UNION FINANCIAL BANCSHARES, INC. MULDOON MURPHY & FAUCETTE LLP
203 WEST MAIN STREET 5101 WISCONSIN AVENUE, N.W.
UNION, SOUTH CAROLINA 29379 WASHINGTON, DC 20016
(864) 427-9000 (202) 362-0840
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As
soon as practicable after this Registration Statement
becomes effective.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, check the following box. / X /
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Title of each Class of Amount to be Proposed Purchase Estimated Aggregate Registration
Securities to be Registered Registered(1) Price Per Share Offering Price Fee
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Common Stock 125,000
$.01 par Value Shares (2) $9.02(3) $1,127,383 $282
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(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Union Financial Bancshares, Inc. 2001 Stock Option Plan (the "Plan") as
the result of a stock split, stock dividend or similar adjustment of the
outstanding common stock of Union Financial Bancshares, Inc., pursuant to 17
C.F.R. Section 230.416(a).
(2) Represents the total number of shares currently reserved or available for
issuance as options pursuant to the Plan.
(3) Weighted average price determined by the exercise price of $9.06 per share
at which options for 39,715 shares under the Plan have been granted to date
and by $9.00 per share, the market value of the Common Stock on February 22,
2001 as determined by the Nasdaq System reported closing sales price as
reported in THE WALL STREET JOURNAL, for the 85,285 shares for which options
have not yet been granted under the Plan.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT") AND 17 C.F.R. SECTION 230.462.
Number of Pages: 13
Exhibit Index begins on Page 10
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UNION FINANCIAL BANCSHARES, INC.
PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The documents containing the information for the Union Financial
Bancshares, Inc. (the "Company" or the "Registrant") 2001 Stock Option Plan (the
"Plan") required by Part I of the Registration Statement will be sent or given
to the participants in the Plan as specified by Rule 428(b)(1). The document is
not filed with the Securities and Exchange Commission (the "SEC") either as a
part of this Registration Statement or as a prospectus or prospectus supplement
pursuant to Rule 424 in reliance on Rule 428.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the SEC are incorporated
by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
September 30, 2000, which includes the consolidated balance sheets of Union
Financial Bancshares, Inc. and subsidiaries as of September 30, 2000 and 1999,
and the related consolidated statements of income, shareholders' equity and cash
flows for each of the years in the three-year period ended September 30, 2000,
together with the related notes (File No. 1-5735) filed with the SEC.
(b) The description of the Company's common stock contained in the
Company's Form 8-A (File No. 1-5735), as filed with the SEC pursuant to Section
12(g) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule
12b-15 promulgated thereunder.
(c) All documents filed by the Registrant pursuant to Section 13(a) and
(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which deregisters all securities then
remaining unsold.
ANY STATEMENT CONTAINED IN THIS REGISTRATION STATEMENT, OR IN A DOCUMENT
INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE HEREIN, SHALL BE DEEMED
TO BE MODIFIED OR SUPERSEDED FOR PURPOSES OF THIS REGISTRATION STATEMENT TO THE
EXTENT THAT A STATEMENT CONTAINED HEREIN, OR IN ANY OTHER SUBSEQUENTLY FILED
DOCUMENT WHICH ALSO IS INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE
HEREIN, MODIFIES OR SUPERSEDES SUCH STATEMENT. ANY SUCH STATEMENT SO MODIFIED OR
SUPERSEDED SHALL NOT BE DEEMED, EXCEPT AS SO MODIFIED OR SUPERSEDED, TO
CONSTITUTE A PART OF THIS REGISTRATION STATEMENT.
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ITEM 4. DESCRIPTION OF SECURITIES
The common stock to be offered pursuant to the Plan has been registered
pursuant to Section 12 of the Exchange Act. Accordingly, a description of the
common stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
The validity of the common stock offered hereby has been passed upon by
Muldoon Murphy & Faucette LLP, Washington, D.C., special counsel to the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL"), inter alia,
empowers a Delaware 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 such person 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, or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to
the best interest of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the person's conduct was
unlawful. Similar indemnity is authorized for such person against expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of any such threatened, pending or completed action or
suit if such person 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 provided
further that (unless a court of competent jurisdiction otherwise provides) such
person shall not have been adjudged liable to the corporation. Any such
indemnification may be made only as authorized in each specific case upon a
determination by the shareholders or disinterested directors or by independent
legal counsel in a written opinion that indemnification is proper because the
indemnitee has met the applicable standard of conduct.
Any such indemnification and advancement of expenses provided under
Section 145 shall 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.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who 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 or enterprise,
as a director, officer, employee or agent of another corporation or 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 otherwise have the power to indemnify him under Section 145.
In addition, pursuant to the Agreement and Plan of Merger, dated as of
July 1, 1999, by and between Union Financial Bancshares, Inc. and South Carolina
Community Bancshares, Inc. ("Community"), the Registrant has agreed that, for a
period of six years following the effective time of the merger, the Registrant
will indemnify and hold harmless each present and former director and officer of
Community or its direct or indirect subsidiaries, and each officer or employee
of Community or its direct or indirect subsidiaries who is
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serving or has served as a director or trustee of another entity expressly at
Community's request or direction, with respect to matters existing or occurring
at or prior to the effective time of the merger, whether asserted or claimed
prior to, at or after the effective time. The Registrant also has agreed in the
merger agreement to maintain, for a period of three years following the
effective time of the merger, the directors' and officers' liability insurance
coverage maintained by Community (or substantially equivalent coverage under
substitute policies) with respect to any claims arising out of any actions or
omissions occurring at or prior to the effective time of the merger.
In accordance with the DGCL (being Chapter 1 of Title 8 of the Delaware
Code), Articles 17 and 18 of the Registrant's Certificate of Incorporation
provide for the indemnification of directors, officers, and other employees as
described below:
Article XVII. Indemnification
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Article XVII of the Union Financial Certificate of Incorporation provides
for the indemnification of any person who is or was a director, officer, or
employee of the Company and any person who served at the Company's request as a
director, officer, employee, agent, partner or trustee of another corporation,
partnership, joint venture, trust or other enterprise.
In the case of a threatened, pending or completed action or suit by or in
the right of the Company against such a person (i.e., a derivative suit), the
Company will indemnify him for expenses (including attorneys' fees but excluding
amounts paid in settlement) actually or reasonably incurred by him in connection
with the defense or settlement, provided he is successful on the merits or
otherwise; or if he acted in good faith in the transaction that is the subject
of the suit or action and in a manner he reasonably believed to be in the best
interest of the Company. This includes, but is not limited to, the taking of any
and all actions in connection with the Company's response to any tender offer or
any offer or proposal of another party to engage in a business combination not
approved by the board of directors. However, he will not be indemnified in
respect of any claim, issue or matter as to which he has been adjudged liable to
the Company unless (and only to the extent that) the court in which the suit was
brought determines, upon application, that despite the adjudication but in view
of all the circumstances, he is fairly and reasonably entitled to indemnity for
such expenses as the court deems proper.
In the case of a threatened, pending or completed suit, action or
proceeding (whether civil, criminal, administrative or investigative), other
than a suit by or in the right of the Company (i.e., a nonderivative suit),
against an indemnified person by reason of his holding a position with the
Company, he will be indemnified only if he is successful on the merits or
otherwise, or if he acted in good faith in the transaction that is the subject
of the nonderivative suit and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the Company, including, but not limited
to, the taking of any and all actions in connection with the Company's response
to any tender offer or any offer or proposal of another party to engage in a
business combination not approved by the board of directors, and, with respect
to any criminal action or proceeding, he had no reasonable cause to believe his
conduct was unlawful. The termination of a nonderivative suit by judgment,
order, settlement, conviction, or upon a plea of NOLO CONTENDERE or its
equivalent will not, in itself, create a presumption that the person failed to
satisfy the foregoing standard.
A determination that the indemnified party has met the standards required
for indemnification in derivative and nonderivative suits may be made by a
court, or, except in relation to the standard for a finding of good faith action
in a shareholder derivative suit, by (1) the board of directors by a majority
vote of a quorum consisting of Company directors not parties to the legal
proceeding; or (2) independent legal counsel
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(appointed by a majority of the disinterested directors of the Company, whether
or not a quorum) in a written opinion; or (3) the stockholders of the Company.
Anyone making a determination as to whether a party has met the standards
required for indemnification may determine that a person has met the standard as
to some matters but not as to others, and may reasonably prorate amounts to be
indemnified.
The Company may pay in advance any expenses (including attorneys' fees)
that may become subject to indemnification if (1) the board of directors
authorizes the specific payment and (2) the person receiving the payment
undertakes in writing to repay the same if it is ultimately determined that he
is not entitled to indemnification.
The indemnification and advancement of expenses provided for in the
preceding paragraphs is not exclusive of any other rights to which a person may
be entitled by law or otherwise.
The indemnification provided by Article XVII of the Union Financial
Certificate of Incorporation will be deemed to be a contract between the Company
and the persons entitled to indemnification thereunder, and any repeal or
modification will not affect any rights or obligations then existing, and the
indemnification and advance payment provided for above will continue as to a
person who has ceased to hold a position with the Company, and will inure to his
heirs, executors and administrators.
The Company may purchase and maintain insurance on behalf of any person
who holds or who has held any position subject to indemnification, against any
liability incurred by him in any such position, or arising out of his status as
such, whether or not the Company would have the power to indemnify him against
liability under the preceding paragraphs.
If Article XVII or any portion of it is invalidated on any ground, then
the Company will nevertheless indemnify each director, officer, employee and
agent of the Company as to costs, charges, and expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement with respect to any
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, including a shareholder derivative suit, to the full extent
permitted by any remaining applicable portion of Article XVII and to the full
extent permitted by applicable law.
Article XVIII. Elimination of Directors' Liability
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A director of the Company will not be personally liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except: (1) for any breach of the director's duty of loyalty to the
Company or its stockholders; (2) for acts or omissions not made in good faith or
which involve intentional misconduct or a knowing violation of law; (3) under
Section 174 of the DGCL; or (4) for any transaction from which a director
derived an improper personal benefit. If the DGCL is amended to further
eliminate or limit the personal liability of directors, then the liability of a
director of the Company will be eliminated or limited to the fullest extent
permitted by the DGCL, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. LIST OF EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds generally to
Exhibit Table in Item 601 of Regulation S-B):
4 Stock Certificate of Union Financial Bancshares, Inc.1
5 Opinion of Muldoon Murphy & Faucette LLP as to the legality of
the common stock to be issued
10 Union Financial Bancshares, Inc. 2001 Stock Option Plan2
23.0 Consent of Muldoon Murphy & Faucette LLP (contained in the
opinion included in Exhibit 5)
23.1 Consent of Elliott, Davis & Company, L.L.P.
24 Power of Attorney is located on the signature pages
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1 Incorporated herein by reference from the Exhibit of the same number contained
in the Company's Registration Statement filed with the SEC.
2 Incorporated herein by reference from Appendix B to the Proxy Statement on
Form DEF 14A filed with the SEC on December 22, 2000.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To 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;
(ii) Reflect in the Prospectus any facts or events which,
individually or together, represent a fundamental change in
the information in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective registration statement; and
(iii) Include any additional or changed material information on the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement unless the
information required by (i) and (ii) is contained in periodic
reports filed by the Registrant pursuant to Section 13 or
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15(d) of the Exchange Act that are incorporated by reference
into this Registration Statement.
(2) For determining liability under the Securities Act, to treat each
post-effective amendment as a new Registration Statement of the
securities offered, and the offering of the securities at that time
to be the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the Offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's or the Plan's annual report
pursuant to Section 13(a) or 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 Securities
Act of 1933 (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 whether such
indemnification by it is against public policy as expressed in the Act 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, 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 Union, South Carolina, on February 20, 2001.
UNION FINANCIAL BANCSHARES, INC.
By: /s/ Dwight V. Neese
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Dwight V. Neese
President, Chief Executive Officer and
Director
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 date indicated.
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below (other than Mr.Neese) constitutes and appoints Dwight V. Neese as the true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to sign any or all amendments to the Form S-8 Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the U.S. Securities and Exchange Commission,
respectively, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and things requisite and
necessary to be done as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Name Title Date
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/s/ Carl L. Mason Chairman of the Board February 20, 2001
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Carl L. Mason
/s/ Dwight V. Neese President, Chief Executive February 20, 2001
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Dwight V. Neese (principal executive officer)
/s/ Richard H. Flake Executive Vice President and February 20, 2001
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Richard H. Flake (principal financial and
accounting officer)
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/s/ Mason G. Alexander Director February 20, 2001
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Mason G. Alexander
/s/ James W. Edwards Director February 20, 2001
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James W. Edwards
/s/ William M. Graham Director February 20, 2001
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William M. Graham
/s/ Louis M. Jordan Director February 20, 2001
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Louis M. Jordan
/s/ John S. McMeekin Director February 20, 2001
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John S. McMeekin
/s/ Philip C. Wilkins Director February 20, 2001
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Philip C. Wilkins
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EXHIBIT INDEX
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Sequentially
Numbered
Page
Exhibit No. Description Method of Filing Location
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4 Stock Certificate of Incorporated herein by reference from the Exhibit --
Union Financial of the same number contained in the Registrant's
Bancshares, Inc. Registration Statement filed with the SEC.
10 Union Financial Incorporated herein by reference from Appendix B --
Bancshares, Inc. 2001 to the Proxy Statement on Form DEF 14A filed
Stock Option Plan with the SEC on December 22, 2000.
5 Opinion of MMF Filed herewith. 11
23.0 Consent of MMF Contained in Exhibit 5. --
23.1 Consent of Elliot, Filed herewith. 13
Davis & Company,
LLP
24 Power of Attorney Located on the signature page. --
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