As filed with the Securities and Exchange Commission on February 14, 1997
Registration No. 333-______________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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DIGNITY PARTNERS, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-165263
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1700 Montgomery Street, Suite 250
San Francisco, California 94111
(Address of principal executive offices, including zip code)
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Dignity Partners, Inc. 1995 Stock Option Plan
(Full Title of the Plan)
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Alan B. Perper
President
1700 Montgomery Street, Suite 250
San Francisco, California 94111
(415) 394-9469
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
============== ============= ================ ================ ============
Title of Amount to be Proposed maximum Proposed maximum Amount of
securities registered offering price aggregate registration
to be per share (1) offering price fee
registered (1)
- -------------- ------------- ---------------- ---------------- ------------
Common Stock,
par value
$.01 per share 350,000 $2.609375 $913,282 $277
- -------------- ------------- ---------------- ---------------- ------------
(1) Estimated solely for purposes of calculating the amount of the registration
fee, pursuant to Rule 457(h) under the Securities Act of 1933, on the basis of
the average of the high and low prices of such securities reported in the
consolidated reporting system on February 11, 1997.
<PAGE>
PART II
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Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents previously filed with the Securities and
Exchange Commission by Dignity Partners, Inc. (the "Company" or the
"Registrant") are incorporated herein by reference: (a) the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995; (b) the
Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996,
June 30, 1996 and September 30, 1996; (c) the Company's Current Reports on Form
8-K dated March 13, 1996, March 15, 1996, July 16, 1996, October 9, 1996,
November 5, 1996, December 16, 1996 and December 19, 1996; and (d) the
description of the Company's Common Stock, $.01 par value, contained under the
caption "Description of Capital Stock" in the Prospectus dated February 14, 1996
relating to the Company's S-1 Registration Statement (Registration No.
33-98708), which description is incorporated by reference in the Company's Form
8-A Registration Statement (File No. 0-27736), and all amendments and reports
filed for the purpose of updating that description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated herein by reference and to be part hereof from the
date of filing of such documents.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
The Company's Second Amended and Restated Certificate of Incorporation
(the "Certificate") provides that, to the fullest extent permitted by the
Delaware General Corporation Law (the "GCL"), no director shall be personally
liable to the Company or any stockholder for monetary damages for or with
respect to any acts or omissions in the performance of his or her duties as a
director. The GCL currently permits the removal of personal liability for
monetary damages for breach of fiduciary duty as a director, except for
liability: (i) arising under Section 174 of the GCL from payment of dividends or
approval of a stock purchase in violation the GCL; (ii) for any breach of the
duty of loyalty to the Company or its stockholders; (iii) for acts or omissions
not in good faith or which involve intentional misconduct or a violation of law;
or (iv) for any transaction from which the director derived an improper personal
benefit. While the Certificate provides protection for breaches of duties by
directors, under the current GCL, the director's duty of care is not eliminated.
Accordingly, the Certificate, under the current GCL, will not affect the
availability of equitable remedies, such as an injunction, based on a director's
breach of the duty of care. The provisions of the Certificate described above
will apply to officers of the Company only if they are directors of the Company
and are acting in their capacity as directors, and will not apply to officers of
the Company who are not directors.
In addition, the Certificate provides that the Company shall indemnify
its officers and directors, and any employee who serves as an officer, director,
employee or agent of any
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other corporation or entity at the Company's request,
to the fullest extent permitted by the GCL. Under the GCL, directors and
officers as well as employees and individuals may be indemnified against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suit and proceedings, whether
civil,criminal, administrative or investigative (other than an action by or in
the right of the corporation as a derivative action) if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation,and with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. The
Certificate also permits the Company to adopt By-Laws and enter into contracts
providing for indemnification.
The Company maintains a $5 million director and officer liability
insurance policy covering the Company's officers and directors.
Item 8. Exhibits
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4.1 Second Amended and Restated Certificate of Incorporation,
incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1, Registration No. 33-98708.
4.2 Amended and Restated Bylaws, incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement on Form
S-1, Registration No. 33-98708.
4.3 Dignity Partners, Inc.1995 Stock Option Plan, incorporated by
reference to Exhibit 10.1 to the Company's Registration
Statement on Form S-1, Registration No. 33-98708.
4.4 Amendment No. 1 to Dignity Partners, Inc. 1995 Stock Option
Plan.
5.1 Opinion of Jones, Day, Reavis & Pogue.
23.1 Consent of Jones, Day, Reavis & Pogue (set forth in their
opinion filed as Exhibit 5.1 to this Registration Statement).
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney.
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
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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 the aggregate, represent a fundamental change in the
information set forth in the registration statement; (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement; provided, however, that paragraph
(A)(1)(i) and (A)(1)(ii) do not apply if the registration statement is on Form
S-8 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 Securities
Exchange Act of 1934 that are incorporated by reference 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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. 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 provisions described in Item 6 of this
registration statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California, on February 12,
1997.
DIGNITY PARTNERS, INC.
By: /s/Alan B. Perper
----------------------
Alan B. Perper
President
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 February 12, 1997.
* Director; Chairman of the Board of Directors
- ------------------------------
Bradley N. Rotter
/s/Alan B. Perper Director; President
- ------------------------------
Alan B. Perper (Principal Executive Officer)
* Director; Executive Vice President, Treasurer
- ------------------------------
John Ward Rotter Secretary and Chief Financial Officer
(Principal Financial and Accounting Officer)
* Director
- ------------------------------
Stephen T. Bow
* Director
- ------------------------------
Paul A. Volberding
* The undersigned by signing his name hereunto has hereby signed this
Registration Statement on behalf of the above-named directors and/or officers,
on February 12, 1997, pursuant to a power of attorney executed on behalf of each
such director and/or officer and filed with the Securities and Exchange
Commission as Exhibit 24.1 to this Registration Statement.
By: /s/Alan B. Perper
----------------------
Alan B. Perper
5
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EXHIBIT INDEX
Exhibit Sequential
No. Description Page Number
- ------- ----------- -----------
4.1 Second Amended and Restated Certificate of
Incorporation, incorporated by reference to Exhibit
3.1 to the Company's Registration Statement on Form
S-1, Registration No. 33-98708.
4.2 Amended and Restated Bylaws, incorporated by
reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-1, Registration
No. 33-98708.
4.3 Dignity Partners, Inc. 1995 Stock Option Plan,
incorporated by reference to Exhibit 10.1 to the
Company's registration statement on Form S-1,
Registration No. 33-98708.
4.4 Amendment No. 1 to Dignity Partners, Inc. 1995
Stock Option Plan.
5.1 Opinion of Jones, Day, Reavis & Pogue.
23.1 Consent of Jones, Day, Reavis & Pogue (set forth in
their opinion filed as Exhibit 5.1 to this
Registration Statement).
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney.
6
Exhibit 4.4
AMENDMENT NO. 1 TO
DIGNITY PARTNERS, INC. 1995 STOCK OPTION PLAN
(Adopted by the Compensation Committee
and the Board of Directors on February 12, 1997)
A. The definition of "Committee" contained in Section 2 of the Dignity
Partners, Inc. 1995 Stock Option Plan is hereby amended and restated to read in
its entirety as follows:
"Committee" means the committee of the Board, as the case may
be, administering the Plan pursuant to the provisions of Section 11(a).
B. Section 4(j) of the Dignity Partners, Inc. 1995 Stock Option Plan is
hereby amended and restated to read in its entirety as follows:
(j) Each grant shall be evidenced by an agreement, which shall (I) be
executed on behalf of the Corporation by any officer thereof and
delivered to and accepted by the Optionee, (II) contain such terms and
provisions as the Committee may determine consistent with this Plan,
and (III) specify the manner in which the Options granted thereunder
may be transferred and the persons entitled to exercise such Options.
Any such agreement may provide that the Option shall not be
transferable other than by will or the laws of descent and
distribution.
C. Section 11(a) of the Plan is amended and restated to read in its
entirety as follow:
(a) This Plan shall be administered (i) by a committee of the Board
which is comprised solely of two or more Non-Employee Directors (as
that term is defined in Rule 16b-3), or (ii) at any time that such a
committee does not exist and cannot be created, by the entire Board (in
which case all references in the Plan to the Committee shall refer to
the Board).
D. Section 12(a) of the Plan is hereby amended and restated to read in its
entirety as follows:
(a) This Plan may be amended from time to time by the Committee;
provided, however, that except as provided in Section 6, no such
amendment shall increase the number of Common Shares specified in
Section 3(a).
E. Section 11(f) of the Plan is amended and restated to read in its
entirety as follows:
(f) To the extent that any provisions of this Plan would prevent any
Option that was intended to qualify as a Tax-qualified Option from so
qualifying, any such provision shall be null and void with respect to
any such Option; provided, however, that any such provision shall
remain in effect with respect to other Options, and there shall be no
further effect on any provision of this Plan.
EXHIBIT 5.1
Jones, Day, Reavis & Pogue
77 West Wacker
Chicago, Illinois 60601
Telephone: 312-782-3939
Facsimile: 312-782-8585
February 12, 1997
Dignity Partners, Inc.
1700 Montgomery Street, Suite 250
San Francisco, California 94111
Re: Dignity Partners, Inc. 1995 Stock Option Plan
---------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for Dignity Partners, Inc., a
Delaware corporation (the "Company"), in connection with the adoption of the
Dignity Partners, Inc. 1995 Stock Option Plan, as amended by Amendment No. 1
thereto (the "Option Plan"). We have examined such documents, records and
matters of law as we have deemed necessary for purposes of this opinion, and
based thereupon we are of the opinion that the shares of Common Stock, par value
$.01 per share, that may be issued or transferred and sold pursuant to the
Option Plan will be, when issued or transferred and sold in accordance with the
Option Plan and upon the Company's receipt of legal consideration therefor, duly
authorized, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement on Form S-8 filed by the Company to effect
registration under the Securities Act of 1933 of the shares to be issued and
sold pursuant to the Option Plan.
Very truly yours,
/s/JONES, DAY, REAVIS & POGUE
Exhibit 23.2
KPMG PEAT MARWICK LLP
THREE EMBARCADERO CENTER
SAN FRANCISCO, CA 94111
The Board of Directors
Dignity Partners, Inc.:
We consent to incorporation by reference in this registration statement (Dignity
Partners, Inc. 1995 Stock Option Plan) on Form S-8 of Dignity Partners, Inc. and
into the prospectus related to such registration statement of our report dated
March 11, 1996, relating to the consolidated balance sheets of Dignity Partners,
Inc. as of December 31, 1994 and 1995, and the related consolidated statements
of operations, stockholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1995, which report appears in the December
31, 1995 annual report on Form 10-K of Dignity Partners, Inc. We also consent
to the use of our name in the prospectus related to such registration statement.
/s/KPMG PEAT MARWICK LLP
San Francisco, California
February 13, 1997
EXHIBIT 24.1
POWER OF ATTORNEY
The undersigned, as an officer and/or director of Dignity Partners, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint Alan B.
Perper as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-8 relating to
the registration of shares of the Company's Common Stock, par value $.01 per
share, pursuant to the Company's 1995 Stock Option Plan, as amended, and any and
all amendments (including post-effective amendments) to such Registration
Statement, and to file the same, with exhibits and schedules thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing necessary or desirable to be done in and
about the premises, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 12th day of February, 1997.
/s/Bradley N. Rotter
----------------------
Bradley N. Rotter
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
The undersigned, as an officer and/or director of Dignity Partners, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint Alan B.
Perper as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-8 relating to
the registration of shares of the Company's Common Stock, par value $.01 per
share, pursuant to the Company's 1995 Stock Option Plan, as amended, and any and
all amendments (including post-effective amendments) to such Registration
Statement, and to file the same, with exhibits and schedules thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing necessary or desirable to be done in and
about the premises, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 12th day of February, 1997.
/s/John Ward Rotter
----------------------
John Ward Rotter
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
The undersigned, as an officer and/or director of Dignity Partners, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint Alan B.
Perper as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-8 relating to
the registration of shares of the Company's Common Stock, par value $.01 per
share, pursuant to the Company's 1995 Stock Option Plan, as amended, and any and
all amendments (including post-effective amendments) to such Registration
Statement, and to file the same, with exhibits and schedules thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing necessary or desirable to be done in and
about the premises, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 12th day of February, 1997.
/s/Stephen T. Bow
----------------------
Stephen T. Bow
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
The undersigned, as an officer and/or director of Dignity Partners, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint Alan B.
Perper as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-8 relating to
the registration of shares of the Company's Common Stock, par value $.01 per
share, pursuant to the Company's 1995 Stock Option Plan, as amended, and any and
all amendments (including post-effective amendments) to such Registration
Statement, and to file the same, with exhibits and schedules thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing necessary or desirable to be done in and
about the premises, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 12th day of February, 1997.
/s/Paul A. Volberding
----------------------
Paul A. Volberding
