As filed with the Securities and Exchange Commission on March 31, 2004
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FIRST MARINER BANCORP
(Exact Name of Registrant as Specified in Its Charter)
Maryland 52-1834860
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
3301 Boston Street
Baltimore, Maryland 21224
(410) 342-2600
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
FIRST MARINER BANCORP
2003 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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Eugene A. Friedman
3301 Boston Street
Baltimore, MD 21224
(410) 342-2600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Abba David Poliakoff, Esquire
Michele L. Bresnick, Esquire
Gordon, Feinblatt, Rothman,
Hoffberger & Hollander, LLC
233 E. Redwood Street
Baltimore, Maryland 21202
(410) 576-4067
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CALCULATION OF REGISTRATION FEE
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Title of Shares to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price Per Aggregate Offering Registration Fee
Share(2) Price(1)(2)
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Common Stock,
par value $.05 per share 100,000 $18.74 $1,874,000 $237.44
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(1) Plus such additional number of Shares as may become issuable by operation
of the anti-dilutional provisions of the plan.
(2) Estimated solely for purposes of determining the registration fee. The
proposed maximum aggregate offering price per Share has been computed
pursuant to Rule 457(h) based upon the average of the high and low prices
of the Common Stock as reported by Nasdaq NMS on March 26, 2004.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in Part I (plan information and
registrant information) will be sent or given to employees as specified by Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"). Such
documents need not be filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Securities and Exchange Commission (the "SEC") allows us to
"incorporate by reference" certain information we file with them, which means
that we can disclose important information to you by referring you to those
documents. The information incorporated by reference is an important part of
this Registration Statement, and information that we file subsequently with the
SEC pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act") will 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 and will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Sections 13(a), 13(c), 14,
and 15(d) of the Exchange Act (except information that is "furnished" under
Items 9 or 12 of Form 8-K), until such time as this registration statement is no
longer in effect:
(i) Annual Report on Form 10-K for the fiscal year ended December 31,
2003;
(ii) Quarterly Report on Form 10-Q for the quarters ended March 31,
2003, June 30, 2003 and September 30, 2003;
(iii) The description of the Company's Common Stock, $.05 par value
per share (the "Common Stock"), under the caption "Description of Registrant's
Securities to be Registered" in the Registrant's Registration Statement on Form
8-A (Registration No. 0-21815) filed with the SEC on December 3, 1996.
Item 4. Description of Shares.
Not applicable
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Maryland General Corporation Law permits a corporation to
indemnify its present and former directors, 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 a party by reason of
their services in those capacities, unless it is established that:
(1) the act or omission of the director was material to the matter
giving rise to such proceeding and
(A) was committed in bad faith or
(B) was the result of active and deliberate dishonesty;
(2) the director actually received an improper personal benefit in
money, property, or services; or
(3) in the case of any criminal proceeding, the director had
reasonable cause to believe that the act or omission was
unlawful.
Maryland law permits a corporation to indemnify a present and former officer to
the same extent as a director.
In addition to the foregoing, a court of appropriate jurisdiction may
under certain circumstances order indemnification if it determines that the
director or officer is fairly and reasonably entitled to indemnification in view
of all of the relevant circumstances, whether or not the director or officer has
met the standards of conduct set forth in the preceding paragraph or has been
declared liable on the basis that a personal benefit improperly received in a
proceeding charging improper personal benefit to the director or the officer. If
the proceeding was an action by or in the right of the corporation or involved a
determination that the director or officer received an improper personal
benefit, however, no indemnification may be made if the individual is adjudged
liable to the corporation, except to the extent of expenses approved by a court
of appropriate jurisdiction.
The Maryland General Corporation Law additionally permits a
corporation to pay or reimburse, in advance of the final disposition of a
proceeding, reasonable expenses incurred by a present or former director or
officer made a party to the proceeding by reason of his service in that
capacity, provided that the corporation shall have received
(1) a written affirmation by the director or officer of his good
faith belief that he has met the standard of conduct necessary
for indemnification by the corporation; and
(2) a written undertaking by or on behalf of the director to repay
the amount paid or reimbursed by the corporation if it shall
ultimately be determined that the standard of conduct was not
met.
The Company has provided for indemnification of directors, officers,
employees and agents in Article Eleventh, Section 2 of its Articles of
Incorporation, as amended and restated ("Articles"). This provision reads as
follows:
(2) To the maximum extent permitted by Maryland law, the Corporation
shall indemnify its currently acting and its former directors against
any and all liabilities and expenses incurred in connection with their
services in such capacities, and shall indemnify its currently acting
and its former officers to the full extent that indemnification shall
be provided to directors, and may indemnify, to the same extent,
persons who serve and have served, at its request as a director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture or other enterprise. The Corporation shall
advance expenses to its directors and officers and the other persons
referred to above to the extent permitted by Maryland law. This
indemnification of directors and officers shall also apply to
directors and officers who are also employees, in their capacity as
employees. The Board of Directors may by By-Law, resolution or
agreement make further provision for indemnification of employees and
agents to the extent permitted by Maryland law.
As provided in Article Eleventh, Section 3 of the Articles, neither
the repeal or amendment of Article Eleventh shall eliminate or reduce the
protection afforded to any person under the foregoing Section 2 with respect to
any act or omission that shall have occurred prior to such repeal or amendment.
The Maryland General Corporation Law authorizes a Maryland corporation
to limit by provision in its charter the liability of directors and officers to
the corporation or to its stockholders for money damages except to the extent:
(1) the director or officer actually receives an improper benefit or
profit in money, property, or services, for the amount of the
benefit or profit actually received, or
(2) a judgment or other final adjudication adverse to the director or
officer is entered in a proceeding based on a finding in the
proceeding that the director's or officer's action, or failure to
act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding.
The Company has limited the liability of its directors and officers
for money damages in Article Eleventh, Section 1 of the Articles. This provision
reads as follows:
(1) Directors and officers of the Corporation shall not be liable
to the Corporation or its stockholders for money damages. The purpose
of this limitation of liability is to limit liability to the maximum
extent that the liability of directors and officers of Maryland
corporations is permitted to be limited by Maryland law. This
limitation on liability shall apply to events which occurred during
the term of office of any director or officer whether or not such
director or officer is serving as such at the time of any proceeding
in which liability is asserted commences.
As provided in Article Eleventh, Section 3 of the Articles, neither
the repeal or amendment of Article Eleventh shall eliminate or reduce the
protection afforded to any person under the foregoing Section 3 with respect to
any act or omission that shall have occurred prior to such repeal or amendment.
As permitted under Section 2-418(k) of the Maryland General
Corporation Law, the Company has purchased and maintains insurance on behalf of
its directors and officers against any liability asserted against such directors
and officers in their capacities as such, whether or not the Company would have
the power to indemnify such persons under the provisions of Maryland law
governing indemnification.
Section 8(k) of the Federal Deposit Insurance Act (the "FDI Act")
provides that the Federal Deposit Insurance Corporation (the "FDIC") may
prohibit or limit, by regulation or order, payments by any insured depository
institution or its holding company for the benefit of directors and officers of
the insured depository institution, or others who are or were
"institution-affiliated parties," as defined under the FDI Act, in order to pay
or reimburse such person for any liability or legal expense sustained with
regard to any administrative or civil enforcement action which results in a
final order against the person. The FDIC has adopted regulations prohibiting,
subject to certain exceptions, insured depository institutions, their
subsidiaries and affiliated holding companies from indemnifying officers,
directors or employees for any civil money penalty or judgment resulting from an
administrative or civil enforcement action commenced by any federal banking
agency, or for that portion of the costs sustained with regard to such an action
that results in a final order or settlement that is adverse to the director,
officer or employee.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted of directors and officers of First
Mariner pursuant to the foregoing provisions or otherwise, we have been advised
that, although the validity and scope of the governing statute has not been
tested in court, in the opinion of the SEC, such indemnification is against
public policy as expressed in such Act and is, therefore, unenforceable. In
addition, indemnification may be limited by state securities laws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description of Exhibits
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5.1 Opinion of Gordon, Feinblatt, Rothman, Hoffberger &
Hollander, LLC as to legality of Shares to be issued **
10.1 First Mariner Bancorp 2003 Employee Stock Purchase Plan **
23.1 Consent of Gordon, Feinblatt, Rothman, Hoffberger &
Hollander, LLC (included in their opinion in Exhibit 5)
23.2 Consent of Stegman & Company **
24 Power of Attorney (included on Signatures Page)
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** Filed herewith
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.
(ii) to reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information
in the 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 the Registrant does not need to make post-effective
amendments with respect to the information set forth in paragraphs (i) and (ii)
above if the information is incorporated by reference from periodic reports
filed by the Registrant under the Exchange Act.
(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 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.
(c) 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.
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 Form S-8
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Baltimore, State of Maryland, on the 31st day of
March, 2004.
FIRST MARINER BANCORP
By:/s/ Edwin F. Hale, Sr.
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Edwin F. Hale, Sr., Chairman and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Edwin F. Hale, Sr. and Joseph A. Cicero,
and each of them individually, his true and lawful attorney-in-fact and agent,
with full power of substitution and revocation, 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 on Form S-8, 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 either of them, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in their
capacities as indicated below on March 31, 2004.
/s/ Edwin F. Hale, Sr. /s/ Mark A. Keidel
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Edwin F. Hale Sr., Chief Executive Officer Mark A. Keidel, Chief Financial
and Director Officer
/s/ Joseph A. Cicero /s/ George H. Mantakos
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Joseph A. Cicero, President and George H. Mantakos, Executive
Director Vice President and Director
/s/ Barry B. Bondroff /s/ Bruce H. Hoffman
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Barry B. Bondroff, Director Bruce H. Hoffman, Director
/s/ John Brown /s/ Hector Torres
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John Brown, Director Hector Torres, Director
/s/ Thomas L. Bromwell /s/ James P. O'Connor
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Thomas L. Bromwell, Director James P. O'Conor, Director
/s/ Edith B. Brown /s/ John J. Oliver
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Edith B. Brown, Director John J. Oliver, Director
/s/ Stephen A. Burch /s/ Patricia Schmoke
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Stephen A. Burch, Director Patricia Schmoke, Director
/s/ Rose M. Cernak /s/ Hanan Y. Sibel
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Rose M. Cernak, Director Hanan Y. Sibel, Director
/s/ Howard Friedman /s/ Leonard Stoler
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Howard Friedman, Director Leonard Stoler, Director
/s/ Michael R. Watson
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Michael R. Watson, Director
Exhibit Index
Exhibit
Number Description of Exhibits
5.1 Opinion of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC as
to legality of Shares to be issued **
10.1 First Mariner Bancorp 2003 Employee Stock Purchase Plan**
23.1 Consent of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC
(included in their opinion in Exhibit 5)
23.2 Consent of Stegman & Company **
24 Power of Attorney (included on Signatures Page)
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** Filed herewith