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As filed with the Securities and Exchange Commission on November 1, 1999
Registration No. 333-________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ATLANTIC AMERICAN CORPORATION
(Exact name of issuer as specified in its charter)
Georgia
58-1027114
(State or other jurisdiction of(I.R.S. Employer Identification No.)
incorporation or organization)
4370 Peachtree Road
Atlanta, Georgia 30319-3000
(Address of principal executive office)
ATLANTIC AMERICAN CORPORATION
1996 DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
Mr. Edward L. Rand, Jr.
Vice President and Treasurer
Atlantic American Corporation
4370 Peachtree Road
Atlanta, Georgia 30319-3000
(404) 266-5500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Mark L. Hanson, Esq.
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount to be maximum maximum Amount of
securities registered offering price aggregate registration
to be registered per share(1) offering fee(1)
price(1)
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Common Stock, 200,000 $2.625 $525,000 $145.95
$1.00 par value shares
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(1) In accordance with Rules 457(c) and (h) under the Securities Act of
1933, the maximum aggregate offering price and registration fee have been
computed as follows: the price per share of Common Stock of Atlantic American
Corporation has been based on the average of the high and low prices reported
for the Common Stock on the Nasdaq National Market on October 25th, 1999 (a date
within 5 business days prior to the date of filing this Registration Statement).
EXPLANATORY NOTE
In accordance with the Note to Part I of Form S-8, the information specified by
Part I has been omitted from this Registration Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The Company hereby incorporates by reference into this Registration
Statement the following documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998.
(b) All other reports filed with the Commission pursuant to Section
13(a) or 15 (d) of the Securities Exchange Act of 1934 (the
"Exchange Act") since December 31, 1998.
(c) The description of the Common Stock contained in the Company's
Registration Statement under the Exchange Act, as
amended.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities 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 a part hereof
from the date of filing such documents.
Item 4. Description of Securities.
Inapplicable
Item 5. Interests of Named Experts and Counsel.
Inapplicable.
Item 6. Indemnification of Directors and Officers.
Article 9 of the Bylaws of the Company provides that the Company
shall indemnify any of its directors, officers, employees or agents, or
any person serving at the Company's request as a director, officer,
employee or agent of another corporation or organization, against loss or
expense if it shall have been determined that the person indemnified acted
in good faith and in a manner he reasonably believed to be in or not
opposed to the general interests of the Company and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful, except that in proceedings to obtain a judgment in
favor of the registrant, indemnification would be limited to expenses
incurred in defense or settlement, and, in the case of adjudicated
negligence or misconduct, only if and to the extent approved by the court.
Such indemnification obligation is not be deemed exclusive of any other
right, in respect of indemnification or otherwise, to which any party may
be entitled under any other Bylaw provision or resolution approved by the
shareholders.
The Company has obtained directors' and officers' liability and
corporation reimbursement insurance. The insurance reimburses (a)
directors and officers for certain losses arising from claims and against
them in their capacities as such, or (b) the Company for amounts paid
where the Company is required or permitted to indemnify directors and
officers for such losses.
Item 7. Exemption from Registration Claimed.
Inapplicable.
Item 8. Exhibits.
4 Atlantic American Corporation 1996 Director Stock Option Plan
5 Opinion of Jones, Day, Reavis & Pogue (with respect to the legality
of the securities being registered)
23(a)Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5)
23(b)Consent of Arthur Andersen LLP, independent public accountants
23(c)Consent of Ernst & Young LLP, independent auditors
24 Power of Attorney (included as part of the signature page of this
Registration Statement)
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, as
amended (the "Securities Act"), each filing of the registrant's
annual report pursuant to Section 13(a) or Section 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 be
the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities 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 Commission 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.
(c) The undersigned registrant undertakes 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.
(d) The undersigned registrant undertakes 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.
(e) The undersigned registrant undertakes 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.
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 this Registration Statement 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 Atlanta, State of
Georgia, on the 29th day of October, 1999.
ATLANTIC AMERICAN CORPORATION
By: /s/ Edward L. Rand, Jr.
Edward L. Rand, Jr.
Vice President and Treasurer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints J. Mack Robinson and Hilton H. Howell, Jr.,
jointly and severally, his true and lawful attorneys-in-fact and agents, each
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 to
this Registration Statement, and to file the same, with 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 or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents, or his 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 below by the following persons in the
capacities and on the date indicated:
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Signature Title Date
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/s/ J. Mack Robinson Chairman of the Board October 29, 1999
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J. Mack Robinson
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/s/ Hilton H. Howell,Jr. President, Chief October 29, 1999
- ---------------------- Executive Officer
and Director
Hilton H. Howell, Jr.
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/s/ Edward L. Rand, Jr. Vice President and October 29, 1999
- ----------------------- Treasurer (Principal
Edward L. Rand, Jr. Financial and
Accounting Officer)
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/s/ Edward E. Elson Director October 29, 1999
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Edward E. Elson
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/s/ Harold K. Fischer Director October 29, 1999
- ---------------------
Harold K. Fischer
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/s/ Samuel E. Hudgins Director October 29, 1999
- ---------------------
Samuel E. Hudgins
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/s/ D. Raymond Riddle Director October 29, 1999
- ----------------------
D. Raymond Riddle
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/s/ Harriett J. Director October 29, 1999
Robinson
Harriett J. Robinson
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/s/ Scott G. Thompson Director October 29, 1999
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Scott G. Thompson
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/s/ William H. Whaley, Director October 29, 1999
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M.D.
William H. Whaley, M.D.
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/s/ Dom H. Wyant Director October 29, 1999
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Dom H. Wyant
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/s/ Mark C. West Director October 29, 1999
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Mark C. West
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Exhibit Index
Page
4 Atlantic American Corporation 1996 Director Stock Option Plan
5 Opinion of Jones, Day, Reavis & Pogue (with respect to the legality of
the securities
being registered)
23(a) Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5)
23(b) Consent of Arthur Andersen LLP, independent public accountants
23(c) Consent of Ernst & Young LLP, independent auditors
24 Power of Attorney (included as part of the signature page of this
Registration Statement)
EXHIBIT 4
As Approved on
May 6, 1997
ATLANTIC AMERICAN CORPORATION
1996 Director Stock Option Plan
1. Purpose. The purpose of this Plan is to attract and retain
directors for Atlantic American Corporation, a Georgia corporation (the
"Corporation"), and to provide such persons with incentives and rewards for
superior performance.
2. Definitions. As used in this Plan:
"Board" means the Board of Directors of the Corporation.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Committee" means the committee of the Board described in Section
3 of the Plan.
"Director" means a member of the Board.
"Disability" means the condition of an Optionee which renders such
Optionee unable to engage in any substantial gainful activities by reason
of any medically determinable physical or mental impairment that can be
expected to result in death or that has lasted or can be expected to last
for a continuous period of not less than twelve (12) months. An Optionee
will not be considered to be subject to a Disability until he furnishes a
certification from a practicing physician in good standing to the effect
that such Director meets the criteria described in this definition.
"Eligible Directors" mean all Directors except for those who are
employees of the Corporation or any Subsidiary of the Corporation.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Fair Market Value" means the greater of (i) the stated par value of
the Stock or (ii) the arithmetic mean of the highest and lowest sale
prices of the shares of the Corporation's Stock as reported on The Nasdaq
Stock Market's National Market System on (a) the relevant date for
valuation or (b) if there are no such sales on such date, the nearest
preceding date upon which such sales took place.
"Option" means an option to purchase shares of Stock, granted
pursuant to the Plan and subject to the terms and conditions described in
the Plan.
"Optionee" means a Director who has been granted an Option
pursuant to the Plan.
"Plan" means the Atlantic American Corporation 1996 Director Stock
Option Plan, as amended from time to time pursuant to Section 7.
"Stock" means the Corporation's common stock, par value $.01 per
share.
"Subsidiary" means any corporation in which the Corporation owns or
controls directly or indirectly more than 50 percent of the total combined
voting power represented by all classes of stock issued by such
corporation at the time of such grant.
3. Administration. The Plan will be administered by a committee
comprised of not less than two Directors, each of whom is a Non-Employee
Director as that term is defined under Rule 16b-3 of the Securities Exchange Act
of 1934, as amended (the "Committee"). Notwithstanding the foregoing, grants of
Options will be automatic as described in Section 5, and the Committee will have
no authority, discretion or power to determine the terms of the Options to be
granted, the number of shares of Stock to be issued thereunder or the time at
which such Options are to be granted, or to establish the duration and nature of
Options, except in the sense of administering the Plan subject to the provisions
of the Plan. The Committee will have the power to interpret the Plan, to
determine all questions thereunder and to adopt and amend such rules and
regulations for the administration of the Plan as they may deem desirable. Any
interpretation, determination, or other action made or taken by the Committee
will be final, binding and conclusive. None of the members of the Committee may
be personally liable for any interpretation, determination or other action made
in good faith with respect to the Plan or the Options.
4. Shares Subject to the Plan.
(a) Class. The shares that are to be made the subject of Options
granted under the Plan will be the Corporation's Stock, which may be
authorized but unissued shares or treasury shares. In connection with the
issuance of Stock under the Plan, the Corporation may repurchase Stock in
the open market or otherwise.
(b) Aggregate Amount. Subject to Section 8(a), the total number
of shares of Stock authorized for issuance pursuant to Options granted
under the Plan will not exceed 200,000 shares. If any outstanding Option
expires or terminates prior to exercise for any reason, then the Stock
allocable to the unexercised portion of such Option will not be charged
against the limitation of this Section 4(b) and may again become the
subject of an Option granted under the Plan.
5. Terms, Conditions and Form of Options. Each Option granted under
the Plan must be evidenced by a written agreement (the "Agreement") in such form
as the Committee will from time to time approve, which Agreement must comply
with and be subject to the following terms and conditions:
(a) Option Grants. Each Eligible Director will be granted an
Option to purchase 5,000 shares of Stock on the date of adoption of this
Plan by the Board. Each person who is first elected to the Board after the
date of adoption of this Plan by the Board, and who is an Eligible
Director, will be automatically granted, on the date such person first
takes office as a Director and without further action by the Board, an
Option to purchase 5,000 shares of Stock. In addition, on the date of the
first regular meeting of the Board following the annual meeting of the
Corporation's stockholders in each year (commencing in the year after
which the Plan becomes effective pursuant to Section 8(e)), each Eligible
Director on such date will automatically be granted an Option to purchase
1,000 shares of Stock, without further action by the Board.
(b) Exercise Period. Each Option, unless terminated, will become
exercisable to the extent of 100% of the Stock subject thereto commencing
six months after the date of grant; provided, that the Optionee has
continuously served as a Director through such date; provided further,
however, that any Option granted pursuant to the Plan will become
exercisable in full upon the Optionee's death or Disability. Options will
terminate five years from the date of grant; provided, however, that in
the event any Eligible Director ceases to be a Director for any reason
other than death or Disability, all Options granted to such Eligible
Director under this Plan will terminate 90 days following the date such
Eligible Director ceases to be a Director. To the extent exercisable, an
Option may be exercised in full or in part.
(c) Exercise Price. The price per share of Stock at which an
Option may be exercised will be equal to the Fair Market Value on the date
the Option is granted pursuant to Section 5(a).
(d) Exercise Procedure. Options may be exercised (in full or in
part) from time to time by written notice to the Corporation at its
principal office specifying the number of shares of Stock with respect to
which the Option is being exercised and accompanied by payment of the
exercise price for the shares with respect to which the Option is being
exercised (a) in cash, or by check acceptable to the Corporation, (b) by
transfer to the Corporation of shares of Stock that have been owned by the
Optionee for more than six months prior to the date of exercise and that
have a Fair Market Value on the date of exercise equal to such exercise
price, or (c) by a combination of such methods of payment. The requirement
of payment in cash will be deemed satisfied if the Optionee has made
arrangements satisfactory to the Corporation with a broker who is a member
of the National Association of Securities Dealers, Inc. to sell on the
exercise date a sufficient number of the shares of Stock being purchased
so that the net proceeds of the sale transaction will at least equal the
exercise price of the shares of Stock being purchased, and pursuant to
which the broker undertakes to deliver the full exercise price to the
Corporation not later than the date on which the sale transaction will
settle in the ordinary course of business.
(e) Options Non-Transferable. No option granted under the Plan
may be transferable other than by will or the laws of descent and
distribution without the prior approval of the Committee. No interest of
any Optionee under the Plan may be subject to attachment, execution,
garnishment, sequestration, the laws of bankruptcy or any other legal or
equitable process. Except as provided by the Committee in the case of a
transferable option, during the lifetime of the Optionee, Options will be
exercisable only by the Optionee who received them or, in the event of the
Optionee's incapacity, including incapacity on account of Disability, by
the Optionee's guardian or legal representative acting in a fiduciary
capacity.
(f) Death of Optionee. Except as provided by the Committee in
the case of a transferable option, in the case of death, Options may be
exercised by the person or persons to whom the Optionee's rights under the
Option pass by will or applicable law or, if no person has such rights, by
the Optionee's executors or administrators.
(g) No Rights as Shareholder. No Optionee will have any rights
as a shareholder with respect to any shares subject to Options prior to
the date of issuance to such person of a certificate or certificates for
such shares.
6. Compliance with Other Laws and Regulations. The Plan, the grant
and exercise of Options under the Plan, and the obligation of the Corporation to
transfer shares under such Options will be subject to all applicable federal and
state laws, rules and regulations, including those related to disclosure of
financial and other information to Optionees, and to any approvals by any
government or regulatory agency as may be required. The Corporation will not be
required to issue or deliver any certificates for shares of Stock prior to (a)
the listing of such shares on any stock exchange or The Nasdaq Stock Market's
National Market System on which the Stock may then be listed, where such listing
is required under the rules or regulations of such exchange or system, and (b)
the compliance with applicable federal and state securities laws and regulations
relating to the issuance and delivery of such certificates; provided, however,
that the Corporation will make all reasonable efforts to so list such shares and
to comply with such laws and regulations.
7. Amendment and Discontinuance. The Board may from time to time
amend, suspend or discontinue the Plan. No amendment or termination of the Plan
shall adversely affect any outstanding Option without the consent of the
Optionee.
8. General Provisions.
(a) Adjustments in Event of Change in Stock. The Committee will
make or provide for such adjustments in the number of shares of Stock
covered by outstanding Options, the exercise price of any such Options,
and the kind of shares (including shares of another issuer) covered
thereby, as the Committee in good faith determines to be equitably
required in order to prevent dilution or expansion of the rights of
Optionees that otherwise would result from (a) any stock dividend, stock
split, combination of shares, recapitalization or other change in the
capital structure of the Corporation, or (b) any merger, consolidation,
spin-off, spin-out, split-off, split-up, reorganization, partial or
complete liquidation or other distribution of assets, issuance of warrants
or other rights to purchase securities or any other corporate transaction
or event having an effect similar to any of the foregoing. The Committee
will also make or provide for such adjustments in the maximum number of
shares of Stock specified in Section 4(b) of the Plan and the number of
shares of Stock specified in Section 5(a) of the Plan as the Committee may
in good faith determine to be appropriate in order to reflect any
transaction or event described in this Section 8(a).
(b) No Right to Continue as a Director. Neither the Plan, the
granting of an Option nor any other action taken pursuant to the Plan may
constitute or be evidence of any agreement or understanding, express or
implied, that the Corporation will retain a Director for any period of
time or at any particular rate of compensation.
(c) ERISA. The Plan is not an employee benefit plan that is
subject to the provisions of ERISA and the provisions of Section 401(a) of
the Code are not applicable to the Plan.
(d) Non-Statutory Stock Options. All Options granted under the
Plan will be non-statutory options not entitled to special tax treatment
under Section 422 of the Code.
(e) Effective Date of the Plan. The Plan will take effect upon
its adoption by the Board. Any grants, however, will be null and void in
the event that stockholder approval of the Plan is not obtained within
twelve (12) months of such effective date.
(f) Governing Law. The Plan and all interpretations and
determinations made and actions taken pursuant hereto will be governed by
the laws of the State of Georgia without regard to the choice of law
provisions thereof.
(g) Variation of Pronouns. All pronouns and any variations
thereof contained herein will be deemed to refer to masculine, feminine,
neuter, singular or plural, as the identity of the person or persons may
require.
EXHIBIT 5
JONES, DAY, REAVIS & POGUE
3500 Suntrust Plaza
303 Peachtree Street
Atlanta, GA 30308
October 29, 1999
Atlantic American Corporation
4370 Peachtree Road
Atlanta, Georgia 30319
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel for Atlantic American Corporation, a
Georgia corporation (the "Company"), in connection with the registration under
the Securities Act of 1933, as amended, pursuant to a Registration Statement on
Form S-8, of 200,000 shares (the "Shares") of the Company's Common Stock, par
value $1.00 per share, issuable pursuant to the Company's 1996 Director Stock
Option Plan (the "Plan").
We have examined such documents, records and matters of law as we
have deemed necessary for purposes of rendering this opinion. Based upon and
subject to the foregoing, we are of the opinion that the Shares have been duly
authorized and, when issued in accordance with the Plan at not less than the par
value of the Shares, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Company's Registration Statement on Form S-8.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
JONES, DAY, REAVIS & POGUE
CONSENT OF ARTHUR ANDERSEN LLP
INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated March 26, 1999,
incorporated by reference in Atlantic American Corporation's Form 10-K for
the year ended December 31, 1998, and to all references to our firm
included in this Registration Statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
October __, 1999
EXHIBIT 23 (c)
CONSENT OF ERNST & YOUNG LLP
INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of Atlantic American Corporation, with respect
to the 1996 Director Stock Option Plan, of our report dated September 7, 1999,
with respect to the combined financial statements of Association Casualty
Insurance Company and Association Risk Management General Agency, Inc., included
in Atlantic American Corporation's Current Report on Form 8-K/A dated September
14, 1999.
Austin, Texas /s/ Ernst & Young LLP
October 27, 1999