rsos8.htm
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM S-8
 
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
RESOURCE CAPITAL CORP.
(Exact name of registrant as specified in its charter)
 
 
                 
   
Maryland
  
  
  
20-2287134
  
  
   
(State or other jurisdiction
of incorporation or organization)
  
  
  
(I.R.S. Employer
Identification No.)
  
  
         
   
712 Fifth Ave., 12th Floor, New York, New York
  
  
  
10019
  
  
   
(Address of Principal Executive Offices)
  
  
  
(Zip Code)
  
  
 
 
Resource Capital Corp. Amended and Restated 2007 Omnibus Equity Compensation Plan
(Full title of the plan)
 
 
Jonathan Z. Cohen
Chief Executive Officer
712 Fifth Ave., 12th Floor
New York, New York 10019
 (Name and address of agent for service)


(212) 506-3870
 (Telephone number, including area code, of agent for service)
 
Copy to:
Mark E. Rosenstein, Esquire
Ledgewood
1900 Market Street, Suite 750
Philadelphia, PA 19103
(215) 731-9450
 

 
 
 


 
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
 
 
Large accelerated filer   ¨
  
Accelerated filer                           þ
  
Non-accelerated filer     ¨
  
Smaller Reporting Company       ¨
  
(Do not check if a smaller reporting company)
      
                                                                                                                                       
 
CALCULATION OF REGISTRATION FEE
 
 
Title of securities to be registered
  
Amount to be
registered(1)
  
Proposed maximum
offering price
per share(2)
  
Proposed maximum
aggregate offering
price(2)
  
Amount of
registration fee
Common Stock, par value $0.001 per share
  
3,400,000
  
$5.36
  
$18,224,000
  
$2,116.00
 

(1)
In addition, pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this registration statement also shall be deemed to cover an indeterminate number of additional common units issuable in the event the number of outstanding units of the registrant is increased by split, reclassification, dividend or the like.
 
(2)
Estimated solely for purposes of determining the registration fee in accordance with Rule 457(h) under the Securities Act of 1933 based upon the average of the high and low sales prices of the registrant’s common units as reported on the New York Stock Exchange on August 19, 2011.

 

 
 
 
 
PART I
 
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
 
ITEM 1.
PLAN INFORMATION.
 
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this registration statement in accordance with the Explanatory Note to Part I of Form S-8 and Rule 428(b)(1) under the Securities Act of 1933.
 
ITEM 2.
REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
 
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this registration statement in accordance with the Explanatory Note to Part I of Form S-8 and Rule 428(b)(1) under the Securities Act of 1933.

PART II
 
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
ITEM 3.
INCORPORATION OF DOCUMENTS BY REFERENCE.
 
The following documents of the registrant filed with the SEC are incorporated by reference in this registration statement:
 
 
●
  
Annual Report on Form 10-K for the fiscal year ended December 31, 2010.
 
 
●
  
Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2011 and June 30, 2011.
 
 
●
  
Current Reports on Form 8-K filed on January 6, 2011, February 7, 2011, February 15, 2011, March 2, 2011, March 24, 2011, March 30, 2011, July 13, 2011 and August 11, 2011.
 
 
●
  
The description of our common stock contained in our Registration Statement on Form 8-A filed January 25, 2006.
 
All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered pursuant to this registration statement have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof 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.
 
ITEM 6.
INDEMNIFICATION OF DIRECTORS AND OFFICERS.
 
Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active or deliberate dishonesty established by a final judgment as being material to the cause of action. The registrant’s charter contains a provision which limits the liability of its directors and officers to the maximum extent permitted by Maryland law.
 
 
 
 
 
The registrant’s charter also authorizes it, to the maximum extent permitted by Maryland law, to obligate the company to indemnify any present or former director or officer or any individual who, while a director or officer of the company and at the request of the company, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner or trustee, from and against any claim or liability to which that individual may become subject or which that individual may incur by reason of his or her or her service in any such capacity and to pay or reimburse his or her reasonable expenses in advance of final disposition of a proceeding.
 
The registrant’s bylaws obligate the company, to the maximum extent permitted by Maryland law, to indemnify any present or former director or officer or any individual who, while a director or officer of the company and at the request of the company, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner or trustee and who is made, or threatened to be made, a party to the proceeding by reason of his or her service in that capacity from and against any claim or liability to which that individual may become subject or which that individual may incur by reason of his or her service in any such capacity and to pay or reimburse his or her reasonable expenses in advance of final disposition of a proceeding. The registrant’s charter and bylaws also permit the company to indemnify and advance expenses to any individual who served a predecessor of the company in any of the capacities described above and any employee or agent of the company or a predecessor of the company.
 
Maryland law requires a corporation (unless its charter provides otherwise, which the registrant’s charter does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made, or threatened to be made, a party by reason of his or her service in such capacity, or in the defense of an issue, claim or matter in any such proceeding. Maryland law permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made, or are threatened to be made, a party by reason of their service in those or other capacities unless it is established that:
 
 
●
  
the act or omission of the director or officer was material to the matter giving rise to the proceeding and (i) was committed in bad faith or (ii) was the result of active and deliberate dishonesty; or
 
 
●
  
the director or officer actually received an improper personal benefit in money, property or services; or
 
 
●
  
in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.
 
A court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed standard of conduct or was adjudged liable on the basis that personal benefit was improperly received. However, under Maryland law, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that personal benefit was improperly received, unless in either case a court orders indemnification and then only for expenses. In addition, Maryland law permits a corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of:
 
 
●
  
a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation and
 
 
●
  
a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the standard of conduct was not met.
 
ITEM 7.
EXEMPTION FROM REGISTRATION CLAIMED.
 
Not applicable.
 
 
 
 
 
 
ITEM 8.
EXHIBITS.
 
The Exhibits furnished as part of this registration statement on Form S-8 are identified in the Exhibit Index immediately following the signature pages of this registration statement. Such Exhibit Index is incorporated herein by reference.
 
ITEM 9.
UNDERTAKINGS.
 
Undertakings required by Item 512(a) of Regulation S-K
 
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, as amended (the “Securities Act”);
 
 
(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 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
 
 
(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 information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”) that are incorporated by reference in the registration statement.

 
 
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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 SEC by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement,
 
 
(2)
That, for the purpose of determining any liability under the Securities Act, 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.
 
Undertakings required by Item 512(b) of Regulation S-K
 
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 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 the initial bona fide offering thereof.
 
 
 
 
 
 
Undertakings required by Item 512(h) of Regulation S-K
 
Insofar as indemnification for liabilities arising under the Securities Act may be permitted for 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 SEC such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.


 
 
 


 

SIGNATURES
 
The Registrant.  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 New York, State of New York, on August 23, 2011.
 
 
RESOURCE CAPITAL CORP.
  
       
 
By:
/s/ DAVID J. BRYANT  
    Name:  David J. Bryant   
   
Title:    Chief Financial Officer, Chief Accounting Officer
     and Treasurer
  
       
 
POWER OF ATTORNEY
 
Each person whose signature appears below constitutes and appoints Jonathan Z. Cohen, David J. Bryant and Michael S. Yecies, and each or any one of them, his 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 and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits 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 connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, 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 on the dates indicated. This document may be executed by the signatories hereto on any number of counterparts, all of which shall constitute one and the same instrument.
 
 
  /S/    STEVEN J. KESSLER    Chairman of the Board   August 23, 2011
Steven J. Kessler
  
    
 
     
  /S/    JONATHAN Z. COHEN  
President, Chief Executive Officer and Director (principal executive officer)
   August 23, 2011
Jonathan Z. Cohen
  
 
  
 
     
  /S/    EDWARD E. COHEN  
Director
   August 23, 2011
Edward E. Cohen
  
 
  
 
     
 /S/    DAVID J. BRYANT
  
Senior Vice President, Chief Financial Officer, Chief Accounting
 
August 23, 2011
David J. Bryant
  
 Officer and Treasurer (principal financial and accounting officer)  
 
     
 /S/    WALTER T. BEACH  
Director
   August 23, 2011
Walter T. Beach
  
 
  
 
     
 /S/    WILLIAM B. HART  
Director
   August 23, 2011
William B. Hart
  
 
  
 
     
 /S/    GARY ICKOWICZ  
Director
    August 23, 2011
Gary Ickowicz
  
 
  
 
     
 /S/    MURRAY S. LEVIN    Director    August 23, 2011
Murray S. Levin
  
    
 
     
 /S/    P. SHERRILL NEFF  
Director
   August 23, 2011
P. Sherrill Neff
  
    
 
 

 
 
 

EXHIBIT INDEX
 
 
 
The following exhibits are filed herewith:
 
EXHIBIT
  
DOCUMENT
     
4.1
  
Form of Certificate for Common Stock for Resource Capital Corp.(1)
   
4.2(a)
  
Junior Subordinated Indenture between Resource Capital Corp. and Wells Fargo Bank, N.A., dated May 25, 2006.(2)
   
4.2(b)
  
Amendment to Junior Subordinated Indenture and Junior Subordinated Note due 2036 between Resource Capital Corp. and Wells Fargo Bank, N.A., dated October 26, 2009 and effective September 30, 2009.(4)
   
4.3(a)
  
Amended and Restated Trust Agreement among Resource Capital Corp., Wells Fargo Bank, N.A., Wells Fargo Delaware Trust Company and the Administrative Trustees named therein, dated May 25, 2006.(2)
   
4.3(b)
  
Amendment to Amended and Restated Trust Agreement and Preferred Securities Certificate among Resource Capital Corp., Wells Fargo Bank, N.A. and the Administrative Trustees named therein, dated October 26, 2009 and effective September 30, 2009.(4)
   
4.4
  
Amended Junior Subordinated Note due 2036 in the principal amount of $25,774,000, dated October 26, 2009.(4)
   
4.5(a)
  
Junior Subordinated Indenture between Resource Capital Corp. and Wells Fargo Bank, N.A., dated September 29, 2006.(3)
   
4.5(b)
  
Amendment to Junior Subordinated Indenture and Junior Subordinated Note due 2036 between Resource Capital Corp. and Wells Fargo Bank, N.A., dated October 26, 2009 and effective September 30, 2009.(4)
   
4.6(a)
  
Amended and Restated Trust Agreement among Resource Capital Corp., Wells Fargo Bank, N.A., Wells Fargo Delaware Trust Company and the Administrative Trustees named therein, dated September 29, 2006.(3)
   
4.6(b)
  
Amendment to Amended and Restated Trust Agreement and Preferred Securities Certificate among Resource Capital Corp., Wells Fargo Bank, N.A. and the Administrative Trustees named therein, dated October 26, 2009 and effective September 30, 2009.(4)
   
4.7
  
Amended Junior Subordinated Note due 2036 in the principal amount of $25,774,000, dated October 26, 2009.(4)
     
5.1
  
Opinion of DLA Piper US LLP as to legality of the securities being registered
     
23.1
  
Consent of Grant Thornton LLP
     
23.2
  
Consent of DLA Piper US LLP (contained in Exhibit 5.1)
     
24.1
  
Power of Attorney (contained as part of signature pages to this registration statement)
(1)
Filed previously as an exhibit to the Company’s registration statement on Form S-11, Registration No. 333-126517.
(2)
Filed previously as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2006.
(3)
Filed previously as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2006.
(4)
Filed previously as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2009.