AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 22, 2003
REGISTRATION FILE NO. _____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RSI HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
North Carolina 56-1200363
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
28 EAST COURT STREET (29601)
POST OFFICE BOX 6847 (29606)
GREENVILLE, SOUTH CAROLINA
(864) 271-7171 (TELEPHONE)
----------------------------
(Address, including Zip code, and telephone number, including
area code, of registrant's principal executive offices)
RSI HOLDINGS, INC. AMENDED 2002 STOCK OPTION PLAN
-------------------------------------------------
(Full title of plans)
JOE F. OGBURN, CHIEF FINANCIAL OFFICER
RSI HOLDINGS, INC.
102 W. MARION STREET (28150)
POST OFFICE BOX 520 (28151)
SHELBY, NORTH CAROLINA
(704) 487-8977
---------------------------------------
(Name, address, and telephone number, including area code, of agent for service)
Copies to:
ANDREW B. COBURN, ESQ.
WYCHE, BURGESS, FREEMAN & PARHAM, P.A.
POST OFFICE BOX 728
GREENVILLE, SOUTH CAROLINA 29602-0728
(864) 242-8200 (TELEPHONE) (864) 235-8900 (FACSIMILE)
CALCULATION OF REGISTRATION FEE
---------------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Each Class Amount to Offering Price Aggregate Amount of
of Securities to be Registered be Registered Per Security Offering Price (1) Registration Fee
---------------------------------------------------------------------------------------------------------------------------------
Common Stock........ 2,500,000 shares $0.23 (1) $340,566.64 $27.55
---------------------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 457(h), the exercise price of $.07 is used for the purpose
of calculating the registration fee as to 1,156,667 issued shares, the
exercise price of $.077 is used for the purpose of calculating the
registration fee as to 300,000 issued shares, $.15 is used for the purpose of
calculating the registration fee as to 43,333 issued shares and the average of
the high and low prices as reported by the OTC Bulletin Board of $0.23 on
April 21, 2003 is used for purposes of calculating the registration fee as
to 1,000,000 unissued shares.
The Exhibit Index appears on Page 8 hereof.
PART I: INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not included in this Registration Statement but provided or to be
provided to the participants in the following plans (the "Plans") of RSI
Holdings, Inc. (the "Company") pursuant to Rule 428(b) of the Securities Act of
1933, as amended (the "Securities Act").
RSI Holdings, Inc. 2002 Stock Option Plan
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not included in this Registration Statement but provided or to be
provided to the Plan's participants pursuant to Rule 428(b) of the Securities
Act.
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents or portions thereof are hereby incorporated by
reference:
The Company's Annual Report on Form 10-KSB for the fiscal year ended
August 31, 2002, Commission File No. 0-18091.
The Company's Quarterly Report on Form 10-QSB for the period ended
November 30, 2002 filed on January 14, 2003, Commission File No.
0-18091.
The Company's Quarterly Report on Form 10-QSB for the period ended
February 28, 2003 filed on April 11, 2003, Commission File No.
0-18091.
All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended, since the end of the
Company's 2001 fiscal year.
The description of the Company's common stock contained in or
incorporated into the Company's registration statement on Form 8-A filed with
the Securities and Exchange Commission on November 3, 1989, Commission File No.
0-18091.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part thereof, from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
2
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Chapter 55, Article 8, Sections 51 through 58 the North Carolina
General Statutes, as amended, (the "Statutes") relating to permissible,
mandatory and court-ordered indemnification of directors of North Carolina
corporations in certain instances, are set forth in Exhibit 99.2 of this
Registration Statement and are incorporated herein by reference.
Article VII of the Company's Bylaws provides as follows:
"Section 1: Indemnification of Directors and Officers. Each
director and officer of the Corporation shall be indemnified by the
Corporation against expenses reasonably incurred by him in connection
with any action, suit or proceeding to which he may be made a party by
reason of his being or having been a director or officer of the
Corporation (whether or not he continues to be a director or officer
at the time of incurring such expenses), except in relation to matters
as to which he shall finally be adjudged in such suit, action or
proceeding to be personally liable. The foregoing right of
indemnification shall not be exclusive of other rights to which any
director or officer may be entitled as a matter of law."
The Articles of Amendment to the Articles of Incorporation of the
registrant filed with the North Carolina Secretary of State's office on November
15, 1989 provide as follows:
Article X - "To the fullest extent permitted by the North
Carolina Business Corporation Act as it exists or may hereafter by
amended, a director of the Corporation shall not be liable to the
Corporation or any of its shareholders for monetary damages for breach
of duty as a director."
Article XII - "(a) Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, site
or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that
he or she, or person of whom he or she is the legal representative, is
or was a director or officer, 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 of a partnership, joint venture, trust
or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or
in any other capacity while serving as a director, officer, employee
or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the North Carolina Business
Corporation Act, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to
such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however,
that, except as provided in paragraph (b) of this Article XII, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such
person authorized by the board of directors of the Corporation. The
right to indemnification conferred in this Article shall be a contract
right and shall include the right to be paid by the Corporation the
reasonable expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the
North Carolina Business Corporation Act requires, the payment of such
expenses incurred by a person in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such person, to repay all amounts so
advanced if it shall ultimately be determined that such person is not
3
entitled to be indemnified under this Article or otherwise. The
Corporation may, by action of its board of directors, provide
indemnification to employees and agents of the Corporation with the
same scope and effect as the foregoing indemnification of directors
and officers.
(b) If a claim under paragraph (a) of this Article XII is not paid in
full by the Corporation within thirty days after a written claim has
been received by the Corporation, the claimant may at anytime
thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the
claimant shall be entitled to be paid also the reasonable expense of
prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for reasonable
expense incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the North
Carolina Business Corporation Act for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the
Corporation (including its board of directors, independent legal
counsel or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable
standard conduct set forth in the North Carolina Business Corporation
Act, nor an actual determination by the Corporation (including its
board of director, independent legal counsel or its stockholders) that
the claimant has not met such applicable standard of conduct, shall be
a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition
conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute,
provision of the Articles of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation
or another Corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against
such expense, liability or loss under the North Carolina Business
Corporation Act."
The Plan provides for indemnification of the members of the Committee,
defined in the Plan as the compensation committee of the Company's board of
directors which administers the Plan, as follows:
"In addition to such other rights of indemnification as they may have
as members of the Board, the members of the Committee shall, to the fullest
extent permitted by law, be indemnified by the Company against the reasonable
expenses, including attorneys' fees and costs, actually and necessarily incurred
in connection with the investigation and defense of any action, suit or
proceeding, or in connection with any appeal therein, to which they or any of
them may be a party by reason of any action taken or failure to act under, or in
connection with, the Plan or any Option granted thereunder, and against all
amounts paid by them in settlement thereof (provided such settlement is approved
by independent legal counsel selected by the Company) or paid by them in
satisfaction of a judgment in any such action, suit or proceeding, except in
relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such Committee member is liable for gross negligence or
misconduct in the performance of his or her duties; provided that within 60 days
after institution of any such action, suit or proceeding the Board member shall
in writing offer the Company the opportunity, at its own expense, to handle and
defend the same."
4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Articles of Incorporation, as amended: Incorporated by reference
to Exhibits 3.2 and 3.2.2 to the Registration Statement on Form S-4 of
RSI Corporation and Porter Brothers, Inc, File No. 33-30247 (the "Form
S-4").
4.2 Articles of Amendment and Certificate of Reduction of Capital of
Porter Brothers, Inc.: Incorporated by reference to Exhibit 4.1 to the
Form 8-K filed by the Company on November 28, 1989, File No. 0-18091.
4.3 Articles of Amendment to the Articles of Incorporation dated June 10,
2002.
4.4 Bylaws of the Company: Incorporated by reference to Exhibit 3.2.1 of
the Form S-4.
4.7 Specimen certificate for common stock of the Company: Incorporated by
reference to Exhibit 4.1.2 of the Form S-4.
5.1 Opinion of Wyche, Burgess, Freeman & Parham, P.A. regarding legality
of shares of RSI Holdings, Inc.
23.1 Consent of Elliott Davis, LLC.
23.2 Consent of Wyche, Burgess, Freeman & Parham, P.A.: contained in
Exhibit 5.1.
24.1 Power of Attorney: Contained on the signature page of this
Registration Statement.
99.1 RSI Holdings, Inc. Amended 2002 Stock Option Plan.
99.2 Chapter 55, Article 8, Sections 51 through 58 of the North Carolina
General Statutes, as amended.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To 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 set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
5
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) To 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 and will
be governed by the final adjudication of such issue.
6
SIGNATURES
Pursuant to the requirements of the Securities Act, RSI Holdings, Inc.
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 Greenville, State of South Carolina, on April 14,
2003.
RSI HOLDINGS, INC.
By: /s/ Buck A. Mickel
Buck A. Mickel
President & Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Buck A. Mickel and Joe F. Ogburn and each
of them, as true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for him or her and in his or her name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same,
with all annexes thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all which said attorneys-in-fact and
agents or any of them, or their or his or her substitute or substitutes, may
lawfully do, or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and as of the dates indicated:
SIGNATURE TITLE DATE
/s/ Buck A. Mickel President and Chief Executive Officer April 14, 2003
Buck A. Mickel Chairman of the Board of Directors
(Principal Executive Officer)
/s/ Joe F. Ogburn Chief Financial Officer, April 17, 2003
Joe F. Ogburn Secretary, Treasurer and Director
(Principal Accounting and Financial Officer)
/s/ C. C. Guy Director April 21, 2003
C. C. Guy
/s/ Charles M. Bolt Director April 15, 2003
Charles M. Bolt
/s/ Charles C. Mickel Director April 14, 2003
Charles C. Mickel
7
INDEX TO EXHBITS CONTAINED HEREIN
Exhibit
4.3 Articles of Amendment to the Articles of Incorporation dated June 10,
2002.
5.1 Opinion of Wyche, Burgess, Freeman & Parham, P.A. regarding legality
of shares of RSI Holdings, Inc.
23.1 Consent of Elliott Davis, LLC.
23.2 Consent of Wyche, Burgess, Freeman & Parham, P.A.: Contained in
Exhibit 5.1.
24.1 Power of Attorney: Contained on the signature page of this
Registration Statement.
99.1 RSI Holdings, Inc. Amended 2002 Stock Option Plan.
99.2 Chapter 55, Article 8, Sections 51 through 58 of the North Carolina
General Statutes, as amended.
8