As filed with the Securities and Exchange Commission on December 18, 2002
Registration No. ____________
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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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AMERUS GROUP CO.
(Exact Name of Registrant as specified in its Charter)
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IOWA 42-1458424
---- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
699 WALNUT STREET
DES MOINES, IOWA 50309-3948
(Address of principal executive offices)
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ALL*AMERUS SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(Full title of the plan)
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JOSEPH K. HAGGERTY, SENIOR VICE PRESIDENT AND GENERAL COUNSEL
AmerUs Group Co., 699 Walnut Street
Des Moines, Iowa 50309-3948 -- (515) 362-3600
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
========================================= ================== ====================== ======================= =======================
Proposed Maximum Proposed Maximum
Title of Each Class of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered (2) Unit Price Registration Fee
----------------------------------------- ------------------ ---------------------- ----------------------- -----------------------
All*AmerUs Supplemental Executive
Retirement Plan Obligations (1) $30,000,000 100% $30,000,000 $2,760.00
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(1) The All*AmerUs Supplemental Executive Retirement Plan Obligations are
unsecured obligations of AmerUs Group Co. to make distributions in the future in
accordance with the terms of the All*AmerUs Supplemental Executive Retirement
Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from the registration statement in accordance with Rule 428 under the
Securities Act of 1933, as amended, and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by AmerUs Group Co. (the "Company") are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001 filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2002, June 30, 2002 and September 30, 2002 filed under
the Exchange Act;
(c) The Company's Current Reports on Form 8-K filed under the Exchange
Act on February 6, 2002, February 21, 2002, March 1, 2002, May 9, 2002, August
7, 2002, August 12, 2002, November 6, 2002, November 13, 2002 and December 5,
2002 and a Report on Form 8-K/A filed under the Exchange Act on March 19, 2002;
and
(d) The description of the Common Stock, no par value, of the Company
(the "Common Stock") which is contained in the Company's Registration on Form
S-4 filed under the Exchange Act on May 12, 2000, including any amendments or
reports filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act, after the date of this registration statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, are deemed to be incorporated by reference into this
registration statement and to be a part hereof from the respective dates of
filing of such documents (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document 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 registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The following description of the All*AmerUs Supplemental Retirement
Plan Obligations is qualified in its entirety by reference to the complete text
of the plan set forth as Exhibit 4.3 to this registration statement.
Select executives whose compensation under the All*AmerUs Savings &
Retirement Plan is limited due to Internal Revenue Service ("IRS") imposed
compensation limits may participate in the All*AmerUs Supplemental Executive
Retirement Plan (the "SERP"). The All*AmerUs Savings & Retirement Plan is
referred to in this registration statement as the "401(k) Plan."
In order to enroll, participants in the SERP must complete such forms
and make such elections as the Company's Benefit and Pension Committee (the
"Committee") may require. In particular, participants must give written consent
for the additional pretax deferrals permitted by the SERP. Any participant who
fails to consent, or who consents only in part, will have his benefits under the
SERP reduced accordingly. Upon commencement of participation in the SERP, a
bookkeeping account (the "SERP Account") will be established for a participant.
The SERP Account will be divided into subaccounts corresponding to those under
the 401(k) Plan. Participants will receive an amount equal to the amount that
would have been credited to such participant pursuant to the 401(k) Plan had no
IRS imposed compensation limits been applied. Participants are vested in the
subaccounts under the SERP at the same rate and in the same manner as he or she
vests in the corresponding subaccounts under the 401(k) Plan.
Participants may elect, on a hypothetical basis, to invest their SERP
Account under the SERP in the investment options available to participants under
the 401(k) Plan. A participant's investment in the SERP is independent of such
participant's investment elections under the 401(k) Plan and the All*AmerUs
Excess Benefit Plan. Each participant SERP Account is credited with the
investment return, including losses, that it would have earned had the SERP
Account actually been invested according to the participant's direction in the
401(k) Plan. If a participant fails to make an investment election under the
SERP, the SERP Account of such participant will receive the performance it would
have received had it been invested in the default option under the 401(k) Plan.
The SERP obligations (the "Registered Obligations") registered
hereunder are general, unsecured obligations of the Company and cannot be sold,
transferred, assigned or encumbered in any manner, either voluntarily or
involuntarily. The SERP is unfunded for purposes of the Internal Revenue Code of
1986 (the "Code") and the Employee Retirement Income Security Act of 1974
("ERISA").
Participants will receive distributions as soon as administratively
feasible upon termination of employment with the Company. The Committee will
determine in which of the following forms the participant's benefits will be
paid: (i) a single cash sum, (ii) periodic installments paid monthly, quarterly,
or annually over a period designated by the Committee, (iii) periodic
installments paid monthly, quarterly, or annually in a dollar amount specified
by the Committee, (iv) a joint and 50% survivor annuity for the lives of the
participant and spouse, which is purchased from a life insurance company with
the proceeds of the participant's SERP Account, or (v) an annuity for the
participant's life, which is purchased from a life insurance company with the
proceeds of the participant's SERP Account.
The Company reserves the right to amend or discontinue the SERP at any
time.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters in connection with the Registered Obligations
offered hereby will be passed upon for the Company by Joseph K. Haggerty, Esq.,
Senior Vice President, General Counsel of the Company. As of December 18, 2002,
Mr. Haggerty beneficially owns 31,362 shares of the Common Stock and has current
exercisable options to purchase 22,500 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 490.832 of the Iowa Business Corporation Act (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, for 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 believe
the individual's conduct was unlawful.
The indemnity provisions under Section 490.851 do 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 proceedings 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 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.
The Company's Bylaws provide that the Company shall indemnify and
advance expenses to any person who was or is a party to or is threatened to be
made a party to any threatened, pending or completed claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative (including
a grand jury proceeding) and whether formal or informal, by reason of the fact
that such person (i) is or was a director or officer of the Company or any of
its subsidiaries, whether before or after the conversion of the Company from a
mutual insurance holding company to a stock company, or (ii) while a director or
officer of the Company or any of its subsidiaries, whether before or after the
conversion of the Company from a mutual insurance holding company, is or was
serving at the request of the Company as a director, officer, employee, agent,
partner or trustee (or in a similar capacity) of another corporation,
partnership, joint venture, trust, other enterprise, or employee benefit plan,
to the maximum extent it is permitted to do so by Part E of Division VIII of the
IBCA. An amendment to the IBCA will be adopted and applied only to the extent
that such amendment permits the Company to provide broader indemnification than
previously permitted prior to such amendment. The Bylaws provide for
indemnification of such person against reasonable expenses (including attorneys'
fees), judgments, fines, penalties, including an excise tax assessed with
respect to an employee benefit plan, and amounts paid in settlement actually and
reasonably incurred by such person in connection with such claim, action, suit
or proceeding or any appeal thereof. However, entitlement to such
indemnification is conditional upon the Company being afforded the opportunity
to participate directly on behalf of such person in such claim, action, suit or
proceeding or any related settlement discussions. Entitlement to indemnification
with respect to any settlement or other nonadjudicated disposition is further
conditional upon the prior approval by the Company of the proposed settlement or
nonadjudicated disposition. Such approval shall be made (a) by the Board of
Directors by majority vote of a quorum consisting of directors not at the time
parties to the claim, action, suit or proceeding, or (b) by special legal
counsel selected by the Board of Directors by majority vote of a quorum
consisting of directors not at the time parties to the claim, action, suit, or
proceeding, or, if the requisite quorum of the full board cannot be obtained
therefor, by a majority vote of the full board, in which selection of counsel
directors who are parties may participate. The Bylaws also provide that the
Company shall indemnify a person for costs and expenses incurred in connection
with successfully establishing in any action or proceeding his or her right to
indemnification by the Company. Except as limited by the IBCA, the
indemnification and advancement of expenses provisions of the Bylaws are not
exclusive of any other rights to which a person seeking indemnification or
advancement of expenses may be entitled under any other bylaw, agreement, vote
of shareholders or disinterested directors, law or otherwise.
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 its Articles of Incorporation
and Iowa law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference
as part of this Registration Statement:
Exhibit
Number Description of Exhibit
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4.1 Amended and Restated Articles of Incorporation of the Company,
incorporated herein by reference to Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q dated November 14, 2000.
4.2 Amended and Restated Bylaws of the Company, incorporated herein by
reference to Exhibit 3.2 to the Company's Annual Report on Form 10-K,
filed on March 15, 2002.
4.3* All*AmerUs Supplemental Executive Retirement Plan.
5* Opinion of Joseph K. Haggerty, Esq., Senior Vice President and
General Counsel of the Company as to the legality of the securities
being registered.
23.1* Consent of Joseph K. Haggerty, Esq., Senior Vice President and
General Counsel of the Company (included in his opinion filed as
Exhibit 5).
23.2* Consent of Ernst & Young LLP.
23.3* Consent of KPMG LLP.
24* Powers of Attorney (included on signature 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 of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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.
(c) 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.
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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Des Moines, State of Iowa, on this 30th day of
November, 2002.
AmerUs Group Co.
By /s/ Melinda S. Urion
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Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of AmerUs Group Co. hereby
severally constitute and appoint Thomas C. Godlasky, James A. Smallenberger and
Melinda S. Urion, and each of them singly, our true and lawful attorneys, with
full power to them and each of them singly, to sign for us in our names and in
the capacities indicated below, all pre-effective and post-effective amendments
to this registration statement, and generally to do all things in our names and
on our behalf in such capacities to enable the Company to comply with the
provisions of the Securities Act of 1933, and all requirements of the Securities
and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on this 30th day of November, 2002.
Names Capacity
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By /s/ Roger K. Brooks Chairman, President, Chief
----------------------------- Executive Officer and Director
Roger K. Brooks
By /s/ Melinda S. Urion Executive Vice President and Chief
----------------------------- Financial Officer
Melinda S. Urion
By /s/ Brenda J. Cushing Senior Vice President and
----------------------------- Controller
Brenda J. Cushing
By /s/ John R. Albers Director
-----------------------------
John R. Albers
By /s/ David A. Arledge Director
-----------------------------
David A. Arledge
By Director
-----------------------------
Malcolm Candlish
By /s/ Alecia A. DeCoudreaux Director
-----------------------------
Alecia A. DeCoudreaux
By Director
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Thomas F. Gaffney
By /s/ John W. Norris, Jr. Director
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John W. Norris, Jr.
By /s/ Andrew J. Paine, Jr. Director
-----------------------------
Andrew J. Paine, Jr.
By /s/ Jack C. Pester Director
-----------------------------
Jack C. Pester
By Director
-----------------------------
John A. Wing
By /s/ F.A. Wittern, Jr. Director
-----------------------------
F.A. Wittern, Jr.
INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
Exhibit
Number Description of Exhibit
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4.1 Amended and Restated Articles of Incorporation of the Company,
incorporated herein by reference to Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q dated November 14, 2000.
4.2 Amended and Restated Bylaws of the Company, incorporated herein by
reference to Exhibit 3.2 to the Company's Annual Report on Form 10-K,
filed on March 15, 2002.
4.3* All*AmerUs Supplemental Executive Retirement Plan.
5* Opinion of Joseph K. Haggerty, Esq., Senior Vice President and
General Counsel of the Company as to the legality of the securities
being registered.
23.1* Consent of Joseph K. Haggerty, Esq., Senior Vice President and
General Counsel of the Company (included in his opinion filed as
Exhibit 5).
23.2* Consent of Ernst & Young LLP.
23.3* Consent of KPMG LLP.
24* Powers of Attorney (included on signature page).
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* Filed herewith.