As filed with the Securities and Exchange Commission on November 8, 2001
Registration No. 333-50249
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERUS GROUP CO. IOWA 42-1458424
AMERUS CAPITAL II DELAWARE 42-6571888
AMERUS CAPITAL III DELAWARE 42-6571890
(Exact name of the (State or other jurisdiction of (I.R.S. Employer
Registrants as incorporation or organization) Identification
specified in their Number)
respective charters)
699 WALNUT STREET
DES MOINES, IOWA 50309-3948
(515) 362-3600
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(Address, including zip code, and telephone number, including
area code, of each Registrant's principal executive offices)
JAMES A. SMALLENBERGER
Senior Vice President and Secretary
AmerUs Group Co.
699 Walnut Street
Des Moines, Iowa 50309-3948
(515) 362-3600
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(Name, address, including zip code, and telephone number,
including area code, of agent for service for each Registrant)
Copy to:
JOSEPH K. HAGGERTY, ESQ.
Senior Vice President and General Counsel
AmerUs Group Co.
699 Walnut Street
Des Moines, IA 50309-3948
(515) 362-3600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement as determined by
the Registrants.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 of the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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2
EXPLANATORY NOTE
AmerUs Life Holdings, Inc., an Iowa corporation, and AmerUs Capital II and
AmerUs Capital III, each a statutory business trust formed under Delaware law,
together the "AmerUs Trusts," previously filed a Registration Statement on Form
S-3 (Registration No. 333-50249) with respect to Debt Securities, Preferred
Stock, Class A Common Stock, Purchase Contracts, Units, Warrants and Guarantees
of AmerUs Life Holdings, Inc. and Capital Securities of the AmerUs Trusts, all
of which are to be offered, in one or more offerings, on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act of 1933, as amended, for an
aggregate total public offering price not to exceed $750,000,000. Pursuant to
Rule 414 under the Securities Act, and the principles set forth in the
"no-action" letter, dated July 24, 2000, issued by the Securities and Exchange
Commission to AmerUs Life Holdings, Inc. and American Mutual Holding Company,
which was renamed AmerUs Group Co. (the "Company") and except as modified by
this amendment, the Company hereby expressly adopts Registration Statement No.
333-50249 as its own for all purposes under the Securities Act and the
Securities Exchange Act of 1934, as amended, as a result of the merger described
below.
Pursuant to the Agreement and Plan of Merger, dated December 17, 1999,
between AmerUs Life Holdings, Inc. and the Company, AmerUs Life Holdings, Inc.
merged with and into the Company, with the Company as the surviving corporation.
The merger became effective on September 20, 2000. As a result of the merger,
each share of Common Stock of AmerUs Life Holdings, Inc. issued prior to the
merger was automatically converted into one issued and fully paid and
nonassessable share of Common Stock of the Company. The merger and related
transactions are described in the Company's Registration Statement on Form S-4
(File No. 333-36992).
The applicable registration fees were paid at the time of the original
filing of Registration Statement No. 333-50249.
The following sections included in the prospectus which was part of
Post-Effective Amendment No. 2 to this Registration Statement are deleted from
this post-effective amendment:
- "Organizational Structure";
- "Organizational Chart";
- "Selected Consolidated Financial and Operating Data";
- "Risk Factors";
- "Reorganization and Recent Acquisitions";
- "Management's Discussion and Analysis of Results of Operations and
Financial Condition"; and
- "Business".
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SUBJECT TO COMPLETION, DATED ___________, 2001
PROSPECTUS
$750,000,000
AMERUS GROUP CO.
DEBT SECURITIES, PREFERRED STOCK, COMMON STOCK,
PURCHASE CONTRACTS, UNITS AND WARRANTS
AMERUS CAPITAL II
AMERUS CAPITAL III
CAPITAL SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED BY AMERUS GROUP CO.,
AS SET FORTH HEREIN
AmerUs Group Co., AmerUs Capital II and AmerUs Capital III will provide the
specific terms of these securities in supplements to this prospectus. You should
read this prospectus and the accompanying prospectus supplement carefully before
you make your investment decision.
THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT.
AmerUs Group Co., AmerUs Capital II and AmerUs Capital III may offer
securities through underwriting syndicates managed or co-managed by one or more
underwriters, or directly to purchasers. The prospectus supplement for each
offering of securities will describe in detail the plan of distribution for that
offering. For general information about the distribution of securities offered,
please see "Plan of Distribution" in this prospectus.
AmerUs Group Co.'s common stock is listed on the New York Stock Exchange
under the trading symbol "AMH".
None of the Securities and Exchange Commission, any state securities
commission, the Iowa Commissioner of Insurance or any other regulatory body has
approved or disapproved of these securities or determined if this prospectus or
the accompanying prospectus supplement is truthful or complete. Any
representation to the contrary is a criminal offense.
The information in this prospectus is not complete and may be changed.
AmerUs Group Co., AmerUs Capital II and AmerUs Capital III may not sell these
securities until the registration statement filed with the Securities and
Exchange Commission is effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
The date of this prospectus is ______________, 2001
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AVAILABLE INFORMATION
AmerUs Group Co. (the "Company") is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended, and, in
accordance therewith, files reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information filed by
the Company with the Commission, including the Registration Statement of which
this prospectus is a part, can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549. Please call the Commission at 1-800-SEC-0330 for further information
on the operation of the public reference room. In addition, the Commission
maintains a Web site at http://www.sec.gov that contains reports, proxy and
information statements and other information regarding registrants, including
the Company, that file electronically with the Commission. The Company's reports
are also on file at the offices of the NYSE, 20 Broad Street, New York, N.Y.
10005.
The Company and the AmerUs Trusts have filed with the Commission a
Registration Statement on Form S-3 under the Securities Act of 1933, as amended,
with respect to the Securities offered hereby. This prospectus, which
constitutes part of the Registration Statement, does not contain all of the
information set forth in the Registration Statement and the exhibits thereto,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. Statements contained herein or in any prospectus supplement
concerning the provisions of any document do not purport to be complete and, in
each instance, are qualified in all respects by reference to the copy of such
document filed as an exhibit to the Registration Statement or otherwise filed
with the Commission. For further information with respect to the Company, the
AmerUs Trusts and the Securities, reference is hereby made to such Registration
Statement, including the exhibits thereto and the documents incorporated therein
by reference, which can be examined at the Commission's principal office, 450
Fifth Street, N.W., Washington, D.C. 20549, or copies of which can be obtained
from the Commission at such office upon payment of the fees prescribed by the
Commission.
No separate financial statements of the AmerUs Trusts have been included or
incorporated by reference herein. The Company does not consider such financial
statements material to holders of the Capital Securities because the AmerUs
Trusts are special purpose entities, have no operating history or independent
operations and are not engaged in, and do not propose to engage in, any activity
other than their holding as trust assets the Junior Subordinated Debt of the
Company and their issuance of the Capital Securities and Common Securities. The
AmerUs Trusts are statutory business trusts formed under the laws of the State
of Delaware. The Company, as of the date hereof, beneficially owns all of the
beneficial interests in each AmerUs Trust. The Company's and the AmerUs Trusts'
principal executive offices are located at 699 Walnut Street, Des Moines, Iowa
50309-3948, telephone number (515) 362-3600. For more information on the AmerUs
Trusts, see "Description of the Capital Securities of the AmerUs Trusts."
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company incorporates by reference the following documents previously
filed by the Company with the Commission:
1. Annual Report on Form 10-K for the fiscal year ended December 31,
2000;
2. Annual Report on Form 11-K for the fiscal year ended December 31,
2000;
3. Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001
and June 30, 2001;
4. Current Reports on Form 8-K filed on February 23, 2001, March 29, 2001
and May 23, 2001 and a Current Report on Form 8-K/A filed on July 23,
2001;
5. Proxy Statement for the Special Meeting of Shareholders Held on March
27, 2001; and
6. Proxy Statement for the Annual Meeting of Shareholders Held on May 10,
2001.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the offering made hereby shall be deemed to be incorporated by
reference in this prospectus or any prospectus supplement and to be part hereof
from the date of filing of such documents.
Any statement contained herein, or in a document all or a portion of which
is incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is 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 prospectus or any prospectus supplement. To the extent
that any proxy statement is incorporated by reference herein, such incorporation
shall not include any information contained in such proxy statement that is not,
pursuant to the Commission's rules, deemed to be "filed" with the Commission or
subject to the liabilities of Section 18 of the Exchange Act.
The Company will provide without charge to each person to whom this
prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the documents incorporated herein by reference (other than
exhibits to such documents unless such exhibits are specifically incorporated by
reference into such documents). Any such request should be directed to James A.
Smallenberger, Senior Vice President and Secretary, AmerUs Group Co., 699 Walnut
Street, Des Moines, Iowa 50309-3948 (telephone number (515) 362-3600).
6
AMERUS GROUP CO.
The Company is a holding company whose subsidiaries are engaged in the
business of marketing, underwriting and distributing a broad range of individual
life insurance and annuity products to individuals and businesses in 50 states,
the District of Columbia and the U.S. Virgin Islands. It also owns a real estate
management company through which it conducts limited real estate management,
development, syndication and marketing activities. The Company has two
reportable operating segments: Life Insurance and Annuities. The Life Insurance
segment's primary product offerings consist of whole life, universal life and
term life insurance policies. The primary product offerings of the Annuity
segment are individual fixed and variable annuities.
Our principal executive office is located at 699 Walnut Street, Des Moines,
Iowa 50309-3948. Our telephone number is (515) 362-3600.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's ratio of earnings to fixed
charges for the six months ended June 30, 2001.
Six Months Ended
June 30, 2001
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Ratio of Earnings to Fixed Charges (1) 1.34
(1) For purposes of computing the ratio of earnings to combined fixed charges
and preferred stock dividends, "earnings" consists of income from operations
before federal income taxes, fixed charges and pre-tax earnings required to
cover preferred stock dividend requirements. "Fixed charges" consist of interest
expense on debt and amortization of debt expense.
DESCRIPTION OF CAPITAL STOCK
GENERAL
The Company is authorized to issue 250,000,000 shares of capital stock, of
which 20,000,000 shares is preferred stock, no par value, and 230,000,000 is
common stock, no par value. In addition, 4,315,000 shares of common stock are
reserved for issuance or available for grant under the Company's stock plans and
for exercise of the Company's warrants. The Company is also authorized to issue
shares of preferred stock on such terms as determined by the Company's board of
directors.
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COMMON STOCK
Each share of common stock entitles its holder to one vote per share on all
matters upon which stockholders are entitled to vote (including election of
directors, mergers, sales of assets other than in the regular course of
business, dissolution and amendments to the articles of incorporation). The
shares of common stock are subject to the relative rights, preferences,
qualifications and limitations of any class or series of preferred stock. There
is no provision in the Company's articles of incorporation permitting cumulative
voting in the election of directors.
PREFERRED STOCK
The Company's board is authorized, subject to any limitations prescribed by
law, from time to time to issue up to an aggregate of 20,000,000 shares of
preferred stock in one or more series, each of such series to have such voting
powers, full or limited, or no voting powers, and such designations, preferences
and relative, participating, optional or other special rights, and such
qualifications, limitations or restrictions thereof, as shall be, determined by
the Company's board in a resolution or resolutions providing for the issue of
such preferred stock; provided, however, that no preferred stock may have more
than one vote per share. Thus, any series may, if so determined by the Company's
board, have full or limited voting rights with the common stock, be convertible
into common stock or another security of the Company, and have such other
relative rights, preferences and limitations as the Company's board shall
determine. As a result, any class or series of preferred stock could have rights
which would adversely affect the rights of the holders of the common stock. The
shares of any class or series of preferred stock need not be identical. The
issuance of a new series of preferred stock, while providing desirable
flexibility in connection with possible acquisitions or other corporate
purposes, could have the effect of making it more difficult for a third party to
acquire, or discouraging a third party from acquiring, a majority of the
outstanding voting stock of the Company.
INDEMNIFICATION AND LIMITATION OF LIABILITY
The Company's articles of incorporation provide that no director of the
Company is liable to the Company or its stockholders for monetary damages for
any breach of fiduciary duty as a director, except to the extent otherwise
required by the Iowa Business Corporation Act ("IBCA"). This provision does not
prevent stockholders from obtaining injunctive or other equitable relief against
directors nor does it shield directors from liability under Federal or state
securities laws. In addition, the articles of incorporation provide that the
Company will, to the maximum extent permitted by law, indemnify any person who
incurs any loss by reason of the fact that he or she is or was or has agreed to
be a director or officer of the Company or while a director or officer of the
Company is or was serving at the request of the Company as a director, officer,
partner, trustee, employee or agent of any corporation, partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, subject to such person having met the standards of conduct
required for such indemnification under Iowa law.
8
CERTAIN PROVISIONS OF THE ARTICLES OF INCORPORATION AND BYLAWS OF THE COMPANY
The following discussion is a summary of certain provisions of the articles
of incorporation and bylaws of the Company relating to stockholder voting
rights, advance notice requirements and other provisions which may be deemed to
have an "anti-takeover" effect. In addition to these provisions, the inability
of the holders of the common stock to elect a majority of the Company's board at
any one annual meeting may also deter attempts to effect, or prevent the
consummation of, a change in control of the Company. These and other provisions
affect stockholder rights and should be given careful attention.
ISSUANCE OF COMMON STOCK, PREFERRED STOCK AND OTHER RIGHTS
The Company believes that its ability to issue, by action of a majority of
the Company's board, and without stockholder consent, the authorized, but
unissued shares of common stock, shares of preferred stock and other rights
provide the Company with the flexibility necessary to meet its future needs
without experiencing the time delay of having to seek stockholder approval.
Unissued shares of common stock and preferred stock are issuable from time to
time for any corporate purpose, including, without limitation, stock splits,
stock dividends, employee benefit and compensation plans, acquisitions and
public or private sales for cash as a means of raising capital. It is possible
that the board might use its authority to issue common stock, preferred stock or
other rights in a way that could deter or impede the completion of a tender
offer or other attempt to gain control of the Company of which the board does
not approve. The Company does not have any plans or commitments to use its
authority to effect any such issuance, but reserves the right to take any action
in the future which the board deems to be in the best interests of the
stockholders and the Company under the circumstances. It is not possible to
state the actual effect of any issuance of preferred stock upon the rights of
holders of common stock because the board has not determined any issuance price
or prices, terms or rights relating to preferred stock. However, such effects
might include (i) restrictions on common stock dividends if preferred stock
dividends have not been paid; (ii) dilution of the voting power and equity
interest of existing holders of common stock to the extent that any preferred
stock series has voting rights or would acquire voting rights upon the
occurrence of certain events (such as the failure to pay dividends for a
specified period) or that any preferred stock series is convertible into common
stock; and (iii) current holders of common stock not being entitled to share in
the Company's assets upon liquidation, dissolution or winding-up until
satisfaction of any liquidation preferences granted to any series of preferred
stock.
BOARD OF DIRECTORS
The articles of incorporation provide that the number of company directors
are determined pursuant to the bylaws, but will not be less than seven or more
than 21 directors (subject to the rights of the holders of any series of
preferred stock). The bylaws provide that the exact number of directors is to be
determined from time to time by the affirmative vote of a majority of the entire
Board at any meeting of the board, a majority of the entire board constitutes a
quorum for the transaction of
9
business, and subject to certain exceptions, at any meeting at which a quorum is
present the affirmative vote of a majority of the directors present constitutes
the act of the board. The board is divided into three classes, designated
Classes I, II and III, which are as nearly equal in number as possible. At each
annual meeting of stockholders following such initial classification and
election, the respective successors of each class shall be elected for
three-year terms, and each director holds office until such annual meeting and
until his or her successor is elected and qualified, unless the director dies,
resigns, is disqualified or is removed from office. Thus, approximately
two-thirds of the members of the board of directors at any time have had prior
board experience. With such a staggered board of directors, at least two annual
meetings are normally required to effect a change in the composition of a
majority of the board of directors. Under the IBCA and the Company's articles of
incorporation, and subject to the rights of the holders of any series of
preferred stock, a majority of the board of directors though less than a quorum,
or the sole remaining director, may fill vacancies on the board of directors or
newly created directorships resulting from any increase in the authorized number
of directors. The bylaws provide that the holders of a majority of shares then
entitled to vote if an election of directors were held may remove any director
or the entire board of directors, with or without cause.
LIMITATIONS ON CALLING SPECIAL MEETINGS OF STOCKHOLDERS
Under Iowa law, special meetings of stockholders may be called by the board
of directors or by such other persons as may be authorized by the articles of
incorporation, the bylaws or Section 490.702(1)(b) of the IBCA. The notice for a
special meeting must set forth the purpose or purposes of the meeting and,
except as otherwise required by law or the articles of incorporation, no
business may be transacted at any special meeting of stockholders other than the
items of business stated in the notice.
ADVANCE NOTICE REQUIREMENTS
The bylaws establish advance notice procedures with regard to (i) the
nomination, other than by or at the direction of the board, of candidates for
election to the board (the "Nomination Provision") and (ii) certain business to
be brought before an annual meeting of stockholders of the Company (the
"Business Provision"). The Nomination Provision, by requiring advance notice of
nominations by stockholders, affords the board a meaningful opportunity to
consider the qualifications of the proposed nominees and, to the extent deemed
necessary or desirable by the board, to inform stockholders about such
qualifications. The Business Provision, by requiring advance notice of business
proposed to be brought before an annual meeting, provides a more orderly
procedure for conducting annual meetings of stockholders and provides the board
with a meaningful opportunity prior to the meeting to inform stockholders, to
the extent deemed necessary or desirable by the board, of any business proposed
to be conducted at such meeting, together with any recommendation of the board.
The Business Provision does not affect the right of stockholders to make
stockholder proposals for inclusion in proxy statements for the Company's annual
meetings of stockholders pursuant to the rules of the Commission. In addition,
neither the Nomination Provision nor the Business Provision will prevent any
stockholder or stockholders holding at least 10% of the shares entitled to vote
on a particular matter from requesting a special meeting with respect to such
matter as described above in "Limitations
10
on Calling Special Meetings of Stockholders". Although these bylaw provisions do
not give the board any power to approve or disapprove of stockholder nominations
for the election of directors or of any other business desired by stockholders
to be conducted at an annual meeting, they may make it difficult for a third
party to conduct a solicitation of proxies to elect its own slate of directors
or otherwise attempt to obtain control of the Company, even if such a
solicitation or attempt might be beneficial to the Company and its stockholders.
AMENDMENT OF ARTICLES OF INCORPORATION AND BYLAWS
Except to the extent the articles of incorporation or bylaws otherwise
provide, the board may, upon the affirmative vote of a majority of the entire
board, amend or repeal any bylaw, provided that the stockholders may specify
particular provisions of the bylaw which may not be amended or repealed by the
board. The articles of incorporation may be amended with the affirmative vote of
the holders of a majority of the outstanding voting securities of the Company
having the right to vote generally in the election of directors. Under Iowa law,
certain proposed amendments to the articles of incorporation which adversely
affect the rights of a particular class of stock must be approved by a majority
of such class.
STATE STATUTORY PROVISIONS
Any merger or acquisition of the Company by another entity or the
acquisition or attempted acquisition of more than 10% of the stock of the
Company is subject to regulatory approval by the Iowa, Indiana, New York,
Arizona and Kansas insurance commissioners. Section 490.1108 of the IBCA
provides that in considering acquisition proposals, directors may consider, in
addition to the consideration of the effects of any action on stockholders, the
effects on the Company's employees, suppliers, creditors, customers and the
communities in which it operates, as well as the long-term and short-term
interests of the Company. Consideration of any or all community interest factors
is not a violation of the business judgement rule, even if the directors
reasonably determine that effects on a community or other factors outweigh the
financial or other benefits to the Company or a stockholder or group of
stockholders. Section 490.624A of the IBCA also includes authorization of
"poison pills" which include, without limitation, terms and conditions of stock
rights or options issued by a corporation that preclude or limit the exercise,
transfer or receipt of stock rights by persons owning or offering to acquire a
specified number or percentage of a corporation's outstanding shares.
In addition, prior to and for a period of five years following the
effective date of the conversion, the Iowa insurance laws provide that a person,
other than the reorganized company, an employee benefit plan or employee benefit
trust sponsored by the reorganized company, or as otherwise specifically
provided for in the plan of conversion, shall not directly or indirectly acquire
or offer to acquire the beneficial ownership of more than five percent of any
class of voting security of the reorganized company, and a person, other than
the reorganized company or other than an employee benefit plan or employee
benefit trust sponsored by the reorganized company, who acquires five percent or
more of any class of voting security of the reorganized company prior to the
conversion or as specifically provided for in the plan of conversion, shall not
directly or indirectly acquire or offer to
11
acquire the beneficial ownership of additional voting securities of the
reorganized company, unless the acquisition is approved by the Iowa Insurance
Commissioner as not being contrary to the interests of the policyholders of the
reorganized company or its life insurance company subsidiary and by the board of
directors of the reorganized company.
Section 490.1110 of the IBCA also imposes a 3 year moratorium on business
combinations with any person owning 10% or more of the outstanding voting stock
of the corporation and its affiliate unless (1) the transaction or acquisition
in which the stockholder became a 10% or more stockholder is approved in advance
by the board, (2) after becoming a 10% or more stockholder, the stockholder
owned at least eighty-five percent of the corporation's outstanding voting stock
not owned by directors and officers, and by employee stock plans that do not
allow individual employees to decide confidentially whether to tender their
shares, or, (3) at or after the time the stockholder became a 10% or more
stockholder, the business combination is approved by the board and authorized by
the holders of two-thirds of the outstanding voting stock not held by the 10% or
more stockholder.
The foregoing provisions of state law could have the effect of delaying,
deferring or preventing a change in control of the Company if the board of
directors determines that a change of control is not in the best interests of
the Company, its stockholders and other constituencies. In addition, the
regulatory restrictions on the acquisition of securities of the Company may also
deter attempts to effect, or prevent the consummation of, a change in control of
the Company.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Previously disclosed in the original Registration Statement. Any
additional expenses will be disclosed in the applicable Prospectus Supplement.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 490.832 of the IBCA provides that a corporation's articles of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director, provided that the provision
does not eliminate or limit the liability of a director for a breach of the
director's duty of loyalty to the corporation or its shareholders, for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, or a transaction from which the director derives an improper
personal benefit, or under Section 490.833 of the IBCA. Further, Section 490.851
of the IBCA provides that a corporation may indemnify its directors against
liabilities and reasonable expenses incurred by reason of such person serving in
the capacity of director, if such person has acted in good faith and in a manner
reasonably believed by the individual to be in, or not opposed to, the best
interests of the corporation, and in any criminal proceeding if such person had
no reasonable cause to
12
believe the individual's conduct was unlawful. The indemnity provisions under
Section 490.851 shall not apply (i) in the case of actions brought by or in the
right of the corporation in which the director was adjudged liable to the
corporation, or (ii) in connection with any other proceeding charging improper
personal benefit to the director, whether or not involving action in the
director's official capacity, in which the director was adjudged liable on the
basis that impersonal benefit was improperly received by the director. In
addition, Section 490.852 of the IBCA provides mandatory indemnification of
reasonable expenses incurred by a director who successfully defends any action
in which the director was a party because the director is or was a director of
the corporation. Finally, Section 490.856 of the IBCA provides that, unless
otherwise provided in a corporation's articles of incorporation: (i) an officer
of the corporation who is not a director is entitled to mandatory
indemnification under Section 490.852 of the IBCA and is entitled to apply for
court-ordered indemnification under Section 490.854 of the IBCA in each case to
the same extent as a director, (ii) the corporation may indemnify and advance
expenses under Section 490.852 to an officer, employee, or agent of the
corporation who is not a director to the same extent as to a director, and (iii)
a corporation may also indemnify and advance expenses to an officer, employee,
or agent who is not a director to the extent, consistent with law, that may be
provided by its articles of incorporation, bylaws, general or specific action of
its board of directors, or contract.
The Company's Articles of Incorporation provide that no director of
the Company will be liable to the Company or its shareholders for monetary
damages for any breach of fiduciary duty as a director, except to the extent
otherwise required by the IBCA. This provision will not prevent shareholders
from obtaining injunctive or other equitable relief against directors nor will
it shield directors from liability under Federal or state securities laws. In
addition, the Articles of Incorporation provide that the Company will to the
maximum extent permitted by law, indemnify a person who incurs any loss by
reason of the fact that he or she is or was or has agreed to be a director or
officer of the Company or while a director or officer of the Company is or was
serving at the request of the Company as a director, officer, partner, trustee,
employee or agent of any corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, subject to
such person having met the standards of conduct required for such
indemnification under Iowa law.
As permitted by and in accordance with Section 490.857 of the IBCA,
the Company maintains a directors' and officers' liability insurance policy to
insure against losses arising from claims made against its directors and
officers, subject to the limitations and conditions as set forth in the
policies. In addition, the Company has entered into indemnification agreements
with its directors and certain of its executive officers providing for the
indemnification of such persons as permitted by the Company's Articles of
Incorporation and Iowa law.
The defined terms used, but not defined, in the following paragraphs of
this section have the meanings provided in the Declaration of Trust, which is
incorporated herein by reference. The Declaration for each of AmerUs Capital II
and AmerUs Capital III (the "Trusts") provides that no Property Trustee or any
of its Affiliates, Delaware Trustee or any of its Affiliates, or any officer,
director, shareholder, member, partner, employee, representative, custodian,
nominee or agent of the Property Trustee or the Delaware Trustee (each a
"Fiduciary Indemnified Person"), and no
13
Administrative Trustee, Affiliate of any Administrative Trustee, or any officer,
director, shareholder, member, partner, employee, representative or agent of any
Administrative Trustee or any Affiliate thereof, or any employee or agent of any
of the Trusts or any of their Affiliates (each a "Company Indemnified Person")
shall be liable, responsible or accountable in damages or otherwise to any of
such Trusts or any officer, director, shareholder, partner, member,
representative, employee or agent of any such Trust or its Affiliates or to any
holder of Capital Securities for any loss, damage or claim incurred by reason of
any act or omission performed or omitted by such Fiduciary Indemnified Person or
Company Indemnified Person in good faith on behalf of any of such Trusts and in
a manner such Fiduciary Indemnified Person or Company Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Fiduciary Indemnified Person or Company Indemnified Person by such Declaration
or by law, except that a Fiduciary Indemnified Person or Company Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of
such Fiduciary Indemnified Person's or Company Indemnified Person's gross
negligence or willful misconduct with respect to such acts or omissions.
The Declaration for each of such Trusts also provides that to the full
extent permitted by law, the Company shall indemnify any Company Indemnified
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 any such Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of any such Trust, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. Each of the Declarations also provides that to the full
extent permitted by law, the Company shall indemnify any Company Indemnified
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of any such
trust to procure a judgment in its favor by reason of the fact that such person
is or was a Company Indemnified Person against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of any such trust and except that no such indemnification shall
be made in respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to any such trust
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem proper. The
Declaration for each such AmerUs Trust further provides that expenses (including
attorneys' fees) incurred by a Company Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding referred to
in the immediately preceding two sentences shall be paid by the Company in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such Company Indemnified Person to
14
repay such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Company as authorized in any such Declaration.
The Declaration for each Trust also provides that the Company shall
indemnify each Fiduciary Indemnified Person against any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts under
any such Trust, including the costs and expenses (including reasonable legal
fees and expenses) of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its powers or
duties thereunder.
ITEM 16. EXHIBITS
The following exhibits are filed herewith or incorporated by reference
as part of this Registration Statement.
EXHIBIT NO. DESCRIPTION
----------- -----------
5.1 Opinion of Joseph K. Haggerty, Esq., Senior Vice President and
General Counsel, regarding the legality of the securities being
issued hereunder.
12 Computation of Ratios of Earnings to Fixed Charges.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Powers of Attorney (contained on the signature page).
ITEM 17. 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 aggregate, represent a fundamental change
in the information set
15
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 Commission 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.
(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 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.
(c) The undersigned registrant hereby undertakes to supplement the
prospectus, after the expiration of the subscription period, to set forth the
results of the subscription offer, the transactions by the underwriters during
the subscription period, the amount of unsubscribed securities to be purchased
by the underwriters, and the terms of any subsequent reoffering thereof. If any
public offering by the underwriters is to be made on terms differing from those
set forth on the cover page of the prospectus, a post-effective amendment will
be filed to set forth the terms of such offering.
(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 Securities Act of 1933 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
16
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 of 1933 and will be
governed by the final adjudication of such issue.
(i) The undersigned registrant undertakes that for purposes of determining
any liability under the Securities Act of 1933, the information omitted from the
form of prospectus filed as part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this registration statement as of the time it was declared effective.
For the purpose of determining any liability under the Securities Act of 1933,
each post-effective amendment that contains a form of prospectus 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.
(j) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act ("Act") in accordance
with the rules and regulations prescribed by the Commission under section 305(b)
2 of the Act.
17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 3 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Des Moines, State of Iowa,
as of the 31st day of October, 2001.
By: /s/ Roger K. Brooks
--------------------------
Roger K. Brooks
Chairman of the Board, President and
Chief Executive Officer
We, the undersigned officers and directors of AmerUs Group Co. hereby
severally and individually constitute and appoint Thomas C. Godlasky and James
A. Smallenberger, and each of them, the true and lawful attorneys and agents of
each of us to execute in the name, place and stead of each of us (individually
and in any capacity stated below) any and all amendments to the Registration
Statement on Form S-3, File No. 333-50249 (the "Registration Statement") under
the Securities Act of 1933, as amended, including this Post-Effective Amendment
No. 3 and any other post-effective amendments and all documents and instruments
necessary or advisable in connection therewith including, without limitation, a
registration statement under Rule 462, and to file the same with the Securities
and Exchange Commission, each of said attorneys and agents to have the power to
act with or without the others and to have full power and authority to do and
perform in the name and on behalf of each of the undersigned every act
whatsoever necessary or advisable to be done on the premises as fully and to all
intents and purposes of any of the undersigned might or could do in person, and
we hereby ratify and confirm our signatures as they may be signed by or said
attorneys and agents or each of them to any and all such amendments and
instruments.
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 3 to the Registration Statement has been signed by
the following persons in the capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Roger K. Brooks Director, Chairman of the October 31, 2001
--------------------------- Board, President and Chief
Roger K. Brooks Executive Officer (Principal
Executive Officer)
/s/ Thomas C. Godlasky Executive Vice President and October 31, 2001
--------------------------- Chief Investment Officer
Thomas C. Godlasky (Principal Financial Officer)
18
/s/ Brenda J. Cushing Senior Vice President and October 31, 2001
--------------------------- Controller (Principal Accounting
Brenda J. Cushing Officer)
/s/ John R. Albers Director October 31, 2001
---------------------------
John R. Albers
/s/ Joseph A. Borgen Director October 31, 2001
---------------------------
Joseph A. Borgen
/s/ Malcolm Candlish Director October 31, 2001
---------------------------
Malcolm Candlish
/s/ Alecia A. DeCoudreaux Director October 19, 2001
---------------------------
Alecia A. DeCoudreaux
/s/ Thomas F. Gaffney Director October 31, 2001
---------------------------
Thomas F. Gaffney
/s/ Ralph W. Laster, Jr. Director October 31, 2001
---------------------------
Ralph W. Laster, Jr.
/s/ John W. Norris, Jr. Director October 31, 2001
---------------------------
John W. Norris, Jr.
/s/ Andrew J. Paine, Jr. Director October 31, 2001
---------------------------
Andrew J. Paine, Jr.
/s/ Jack C. Pester Director October 31, 2001
---------------------------
Jack C. Pester
/s/ John A. Wing Director October 31, 2001
---------------------------
John A. Wing
/s/ F. A. Wittern, Jr. Director October 31, 2001
---------------------------
F. A. Wittern, Jr.
19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, AmerUs Capital
II certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 3 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Des Moines, State of
Iowa, on October 31, 2001.
AMERUS CAPITAL II
By: AMERUS GROUP CO., as sponsor
By: /s/ Thomas C. Godlasky
----------------------------------
Thomas C. Godlasky
Executive Vice President and
Chief Investment Officer
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, AmerUs Capital
III certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 3 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Des Moines, State of
Iowa, on October 31, 2001.
AMERUS CAPITAL III
By: AMERUS GROUP CO., as sponsor
By: /s/ Thomas C. Godlasky
----------------------------------
Thomas C. Godlasky
Executive Vice President and
Chief Investment Officer
20
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
5.1 Opinion of Joseph K. Haggerty, Esq., Senior Vice President and
General Counsel, regarding the legality of the securities being
issued hereunder.
12 Computation of Ratios of Earnings to Fixed Charges.
23.1 Consent of Counsel (contained on Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (contained on the signature page).
21