As Filed with the Securities and Exchange Commission on December 18, 1998
Registration No. 333-
UNITED STATES
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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LINCOLN HERITAGE CORPORATION
(Exact name of registrant as specified in charter)
TEXAS
(State or other jurisdiction of incorporation or organization)
36-3427454
(I.R.S. Employer Identification Number)
1250 Capital of Texas Highway
Austin, Texas 78746
(Address of principal executive offices) (Zip Code)
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LINCOLN HERITAGE CORPORATION
1998 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
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Nicholas M. Powling
President and Chief Executive Officer
Lincoln Heritage Corporation
1250 Capital of Texas Highway
Building 3, Suite 100
Austin, Texas 78746
(Name and address of agent for service)
Telephone: (512) 328-0075
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Copies to:
THOMAS A. LITZ, ESQ. HOWARD A. WITTNER, ESQ.
Thompson Coburn Wittner, Poger, Rosenblum,
One Mercantile Center Spewak and Maylack, P.C.
St. Louis, Missouri 63101 7700 Bonhomme Avenue, Suite 400
Telephone: (314) 552-6000 St. Louis, Missouri 63105
Fax: (314)552-7000 Telephone: (314)862-3535
Fax: (314)862-5741
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================ ----------- ---------- ------------------ ==================
Title of Amount Offering Proposed Maximum Proposed Maximum
Securities to to be Price Per Aggregate Amount of
be Registered Registered Share(1) Offering Price(1) Registration Fee
================ =========== ========== ================== ==================
<S> <C> <C> <C> <C>
Common Stock, 1,200,000 $5.31250 $6,375,000 $1,772
$0.01 par value shares
================ =========== ========== ================== =================
<FN>
<F1> Estimated solely for purposes of computing the Registration Fee pursuant to
the provisions of Rule 457(h)(1), and based upon the average of the high and low
prices of the Common Stock, $0.01 par value, of Lincoln Heritage Corporation as
reported by the Pacific Exchange on December 11, 1998.
</FN>
</TABLE>
<PAGE>
The undersigned Registrant hereby files this Registration Statement on
Form S-8 (the "Registration Statement") to register 1,200,000 shares of Lincoln
Heritage Corporation ("Lincoln Heritage") common stock, $0.01 par value (the
"Common Stock"), for issuance to participants under the Lincoln Heritage
Corporation 1998 Long-Term Incentive Plan (the "Plan").
Item 3. Incorporation of Documents by Reference.
The following documents filed by Lincoln Heritage with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated herein by reference:
(a) The financial statements and the notes thereto set forth at
pages F-1 through F-26 in Lincoln Heritage's Prospectus, dated
October 27, 1998 (File No. 333-50525) filed pursuant to Rule
424(b)(1) of the Act.
(b) Lincoln Heritage's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1998.
(c) The description of the Common Stock, set forth in Item 1 of
Lincoln Heritage's Registration Statement on Form 8-A, dated
April 24, 1998 (File No. 001-14067), as amended by Form 8-A/A
dated August 6, 1998, and any amendment or report filed for
the purpose of updating such description, incorporating by
reference Lincoln Heritage's Registration Statement on Form
S-1, dated April 20, 1998 (Registration No. 333-50525), and
any amendment or report filed for the purpose of updating such
description.
All documents filed by Lincoln Heritage pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof 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 remaining unsold,
shall be deemed to be incorporated by reference herein and made a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated herein by reference 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 subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 6. Indemnification of Directors and Officers.
Section 2.02-1 of the Texas Business Corporation Act provides generally
and in pertinent part that a Texas corporation may indemnify its directors and
officers against expenses (if the person is found liable to the corporation or
on the basis that improper benefit was improperly received by the person) or
against expenses, judgments, fines and settlements (in all other cases) actually
and reasonably incurred by them in connection with any action, suit or
proceeding if, in connection with the matters in issue, 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, in connection with any criminal suit or
proceeding, if in connection with the matters in issue, they had no reasonable
cause to believe their conduct was unlawful. Section 2.02-1 does not permit
indemnification when the person is found liable for willful or intentional
misconduct in the performance of his duty to the Corporation. Section 2.02-1
further permits a Texas corporation to grant to its directors and officers
additional rights of indemnification not inconsistent with the Texas Business
Corporation Act through bylaw provisions, agreements, votes of shareholders or
interested directors or otherwise, to purchase indemnity insurance on behalf of
such indemnifiable persons and to advance to such indemnifiable persons expenses
incurred in defending a suit or proceeding upon receipt of certain undertakings.
Article 11 of the Company's Amended and Restated Articles of
Incorporation provides that, subject to certain exceptions, the Company shall
indemnify, to the fullest extent permitted by law, any person who is or was a
director or executive officer of the Company or any subsidiary, and may
indemnify, subject to certain exceptions and to the extent that the Board of
Directors deems appropriate and as set forth in the Bylaws or a resolution, any
person who is or was a non-executive officer, or employee or agent of the
Company or any subsidiary or who is or was serving at the request of the Company
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise (including an employee benefit plan)
against any and all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement incurred by such person in connection with any civil,
criminal, administrative or investigative action, suit, proceeding or claim
(including any action by or in the right of the Company or a subsidiary) by
reason of the fact that such person is or was serving in such capacity. In
addition, Article 11 authorizes the Company to purchase insurance for itself or
any person to whom indemnification is or may be available against any liability
asserted against such person in, or arising out of, such person's status as
director, officer, employee or agent of the Company, any of its subsidiaries or
another corporation, partnership, joint venture, trust or other enterprise
(including an employee benefit plan) which such person is serving at the request
of the Company. Article 11 also authorizes the Company, to the extent that the
Board of Directors deems appropriate, to make advances of expenses to an
indemnifiable person upon the receipt by the Company of a written undertaking by
such person to repay any amounts advanced in the event that it is ultimately
determined that such person is not entitled to such indemnification.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to such provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in such Act and is therefore unenforceable.
Item 8. Exhibits.
See Exhibit Index located at page 6 hereof.
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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
hereof), 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 this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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 (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 foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing 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 Austin, State of Texas, on December
18, 1998.
LINCOLN HERITAGE CORPORATION
By /s/ Nicholas M. Powling
Nicholas M. Powling, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ Nicholas M. Powling President and
- -------------------------- Chief Executive Officer December 18, 1998
Nicholas M. Powling
Principal Executive Officer
/s/ Clifton Mitchell Executive Vice President- December 18, 1998
- -------------------------- Actuarial and Director
Clifton Mitchell
Principal Financial and
Accounting Officer
/s/ Brent D. Cassity Chairman of the Board December 14, 1998
- --------------------------
Brent D. Cassity
/s/ Randall K. Sutton Director December 14, 1998
- -------------------------
Randall K. Sutton
/s/ Howard A. Wittner Director December 14, 1998
- -------------------------
Howard A. Wittner
/s/ Mark A. Turken Director December 15, 1998
- --------------------------
Mark A. Turken
/s/ Paul J. Gallant Director December 14, 1998
- ------------------------
Paul J. Gallant
<PAGE>
<TABLE>
EXHIBIT INDEX
<CAPTION>
Exhibit No.
<S> <C>
4.1 Lincoln Heritage Corporation's Registration Statement on Form 8-A,
dated April 24, 1998 (File No. 001-14067), as amended by Form 8-A/A,
dated August 6, 1998, is incorporated herein by reference.
5.1 Opinion of Wittner, Poger, Rosenblum, Spewak and Maylack, P.C.
as to the legality of the securities being registered.
10.1 Lincoln Heritage Corporation 1998 Long-Term Incentive Plan, filed as
Exhibit 10.1 to Amendment No. 7 to Lincoln Heritage Corporation's
Registration Statement on Form S-1 (File No. 333-50525), is
incorporated herein by reference.
23.1 Consent of Killman, Murrell and Company, P.C. with respect to the
financial statements of Lincoln Heritage Corporation.
23.2 Consent of Wittner, Poger, Rosenblum, Spewak and Maylack, P.C.
(included in Exhibit 5.1).
</TABLE>
[WITTNER, POGER, ROSENBLUM, SPEWAK & MAYLACK, P.C. LETTERHEAD]
December 18, 1998
Lincoln Heritage Corporation
1250 Capital of Texas Highway
Building 3, Suite 100
Austin, Texas 78746
Re: Form S-8 1,200,000 Shares of Lincoln Heritage Corporation Common
Stock, $0.01 Par Value
Ladies and Gentlemen:
We refer you to the Registration Statement on Form S-8 filed by Lincoln
Heritage Corporation (the "Company") on December 18, 1998 (the "Registration
Statement") with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended, pertaining to the proposed issuance by the
Company of up to 1,200,000 shares of common stock, $0.01 par value (the
"Shares"), of the Company, for issuance to optionees under the Lincoln Heritage
Corporation 1998 Long Term Incentive Plan (the "Plan"). In rendering the
opinions set forth herein, we have examined such corporate records of the
Company, such laws and such other information as we have deemed relevant,
including the Company's Amended and Restated Articles of Incorporation and
Bylaws, as amended and currently in effect, the resolutions adopted by the
Company's Board of Directors relating to the Plan, certificates received from
state officials and statements we have received from officers and
representatives of the Company. In delivering this opinion, we assumed the
genuineness of all signatures; the authenticity of all documents submitted to us
as originals; the conformity to the originals of all documents submitted to us
as certified, photostatic or conformed copies; the authenticity of the originals
of all such latter documents; and the correctness of statements submitted to us
by officers and representatives of the Company.
We do not purport to be experts in the laws of any state or jurisdiction
other than the State of Missouri and the Federal laws of the United States of
America, to the extent applicable.
Based only on the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing
under the laws of the State of Texas. As to the opinion
contained in this paragraph 1 relating to "existence", we rely
solely on a Certificate of the Secretary of State of Texas
dated December 15, 1998 which is attached hereto; and
2. The Shares to be issued by the Company pursuant to the
Registration Statement, when issued by the Company in
accordance with the Plan, will be validly issued, fully paid
and nonassessable.
This opinion is issued only with respect to the present status of the
law and we undertake no obligation or responsibility to update or supplement the
opinion with respect to changes in the law or future events.
We consent to the filing of this opinion solely as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Wittner, Poger, Rosenblum, Spewak & Maylack, PC
<PAGE>
The State of Texas
SECRETARY OF STATE
IT IS HEREBY CERTIFIED that
Articles of Incorporation of
LINCOLN HERITAGE CORPORATION
File No. 00783034-00
were filed in this office and a certificate of incorporation was issued to this
corporation, and no certificate of dissolution is in effect and the corporation
is currently in existence.
IN TESTIMONY WHEREOF, I have hereunto
signed my name officially and caused to be
impressed hereon the Seal of State at my
office in the City of Austin, on
December 15, 1998.
/s/ Alberto R. Gonzales
Alberto R.Gonzales MAC
Secretary of State
[KILLMAN, MURRELL & COMPANY, P.C LETTERHEAD]
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation of our reports dated March 11, 1998,
which are incorporated in this Registration on Form S-8, dated
December 18, 1998, of of Lincoln Heritage Corporation.
/s/ Killman, Murrell & Company, P.C.
Killman, Murrell & Company, P.C.
December 18, 1998
