As filed with the Securities and Exchange Commission on July 24, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------
I.C.H. CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 43-6069928
- ------------------------------- ------------------------------
(State or Other Jurisdiction of (I.R.S. Employer Incorporation
or Organization) Identification Number)
9255 Towne Centre Drive, Suite 600, San Diego, California
(619) 587-8533 92121
- ---------------------------------------- ----------
(Address, including telephone number, of (Zip Code)
Principal Executive Offices)
I.C.H. CORPORATION 1997 DIRECTOR STOCK OPTION PLAN AND
I.C.H. CORPORATION 1997 EMPLOYEE STOCK OPTION PLAN, AS AMENDED
--------------------------------------------------------------
(Full Title of the Plans)
Copies to:
MR. JAMES R. ARABIA ROBERT H. DRECHSLER, ESQ.
Chief Executive Officer Pryor Cashman Sherman & Flynn LLP
I.C.H. Corporation 410 Park Avenue
9255 Towne Centre Drive, Suite 600 New York, New York 10022
San Diego, California 92121 (212) 421-4100
(619) 587-8533
--------------------------------------------------------------
(Names, addresses and telephone numbers of agents for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered* Per Share ** Offering Price Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,900,000 $4.25 $8,075,000.00 $2,382.13
($0.01 par value) shares
================================================================================
</TABLE>
* All of the securities registered hereby are issuable under the Plans. This
registration statement includes 1,400,000 shares of Common Stock, $.01 par value
per share (the "Common Stock"), with respect to which a registration fee of
$1,841.21 was paid with the filing of Registration Statement No. 333-49855, on
Form S-8, with the Securities and Exchange Commission (the "Commission") on
April 10, 1998. To date, none of such shares have been sold by selling
shareholders pursuant to the reoffer prospectus included in such previously
filed registration statement.
** Estimated, in accordance with Rule 457(c), solely for the purpose of
calculating the registration fee. The proposed Maximum Offering Price per Share
represents the average of the high and low prices as reported by the American
Stock Exchange on July 23, 1998.
<PAGE>
EXPLANATORY NOTES
Pursuant to General Instruction E of Form S-8, this registration statement
incorporates by reference Registration Statement No. 333-49855, on Form S-8,
filed with the Commission on April 10, 1998.
Included on the immediately following pages is a "reoffer prospectus" for
use by certain selling shareholders in connection with the reoffer and resale of
restricted securities pursuant to the Company's 1997 Employee Stock Option Plan,
as amended, and 1997 Director Stock Option Plan.
ii
<PAGE>
PROSPECTUS
- ----------
1,900,000 Shares
I.C.H. CORPORATION
Common Stock
---------------------
All of the 1,900,000 shares of common stock, $.01 par value per share (the
"Common Stock"), of I.C.H. Corporation (the "Company") offered hereby are
offered for the account of the shareholders described herein (the "Selling
Shareholders"). See "Selling Shareholders." The Company will not receive any
proceeds from the sale of such Common Stock by the Selling Shareholders. The
1,900,000 shares of Common Stock offered hereby are referred to herein as the
"Selling Shareholder Shares." All of the Selling Shareholder Shares are issuable
upon the exercise of options granted as of the date hereof or in the future.
Shares of Common Stock may be sold from time to time by the Selling
Shareholders, or by pledgees, donees, transferees or other successors in
interest. Such sales may be made on the American Stock Exchange (the "AMEX") or
other exchanges on which the Common Stock is then traded, in the
over-the-counter market, or otherwise at prices and at terms then prevailing or
at prices related to the then current market price, or in negotiated
transactions. The Selling Shareholder Shares may be sold in one or more of the
following transactions: (a) a block trade in which the broker or dealer so
engaged will attempt to sell the Selling Shareholder Shares as agent but may
position and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker or dealer as principal and resale by the
broker or dealer for its account pursuant to this Prospectus; (c) an exchange
distribution in accordance with the rules of the exchange; and (d) ordinary
brokerage transactions and transactions in which the broker solicits purchasers.
In effecting sales, brokers or dealers engaged by the Selling Shareholders may
arrange for other brokers or dealers to participate. Brokers or dealers may
receive commissions or discounts from Selling Shareholders in amounts to be
negotiated immediately prior to the sale. These brokers or dealers and any other
participating brokers or dealers, as well as certain pledgees, donees,
transferees and other successors in interest, may be deemed to be "underwriters"
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"), in connection with the sales. In addition, any securities covered by this
Prospectus that qualify for sale pursuant to Rule 144 under the Securities Act
may be sold under Rule 144 rather than pursuant to this Prospectus.
The aggregate proceeds to the Selling Shareholders from the sale of the
Selling Shareholder Shares will be the purchase price of the Selling Shareholder
Shares sold less the aggregate agents' commissions and underwriters' discounts,
if any. By agreement, the Company will pay substantially all of the expenses
incident to the registration of the Selling Shareholder Shares, except for
selling commissions associated with the sale of the Selling Shareholder Shares,
all of which will be paid by the Selling Shareholders.
The Common Stock is listed on the AMEX under the symbol "IH." The closing
price of the Common Stock as reported on the AMEX on July 23, 1998 was $4.25
per share.
- --------------------------------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
The date of this Prospectus is July 24, 1998.
<PAGE>
No dealer, salesperson or any other person has been authorized to give
any information or to make any representations other than those contained in
this Prospectus in connection with the offer made by this Prospectus and, if
given or made, such information or representations must not be relied upon as
having been authorized by the Company or the Selling Shareholders. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy, the securities offered hereby in any jurisdiction in which such offer or
solicitation is not authorized, or to any person to whom it is unlawful to make
such offer or solicitation. Neither the delivery of this Prospectus nor any sale
made hereunder shall, under any circumstances, create any implication that any
information contained therein is correct as of any time subsequent to the date
hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The Registration
Statement, the exhibits and schedules forming a part thereof and the reports,
proxy statements and other information filed by the Company with the Commission
in accordance with the Exchange Act can be inspected and copied at the
Commission's public reference section, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, and at the following regional offices of the Commission:
Seven World Trade Center, 13th Floor, New York, New York 10048 and Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material can also be obtained at prescribed rates by
writing to the public reference section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549. The Commission maintains a web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. The address of the
Commission's web site is: http://www.sec.gov. In addition, the Company's Common
Stock is listed on the American Stock Exchange (the "AMEX"), and similar
information concerning the Company can be inspected and copied at the offices of
the AMEX, 86 Trinity Place, 7th Floor, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-8 (the "Registration Statement") (of which this Prospectus is a part) under
the Securities Act with respect to the securities offered hereby. This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain portions of which have been omitted as permitted by the rules
and regulations of the Commission. Statements contained in this Prospectus as to
the contents of any contract or other document are not necessarily complete, and
in each instance reference is made to the copy of such contract or other
document filed as an exhibit to the Registration Statement, each such statement
being qualified in all respects by such reference and the exhibits and schedules
thereto. For further information regarding the Company and the securities
offered hereby, reference is hereby made to the Registration Statement and such
exhibits and schedules which may be obtained from the Commission at its
principal office in Washington, D.C. upon payment of the fees prescribed by the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company under the
Exchange Act with the Commission and are incorporated herein by reference:
a. The Company's Annual Report on Form 10-K (File No. 1-7697) for the
fiscal year ended December 31, 1997;
b. The Company's Current Report on Form 8-K (File No. 1-7697), dated
February 10, 1998;
c. The Company's Quarterly Report on Form 10-Q (file No. 1-7697) for the
fiscal quarter ended March 31, 1998; and
d. The Company's Proxy Statement relating to the Annual Meeting of
Stockholders held on May 29, 1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of this offering shall be deemed to be incorporated by
reference in this Prospectus and to be part hereof from the date of filing such
documents (provided, however, that the information referred to in Item 402(a)(8)
of Regulation S-K of the Commission shall not be deemed specifically
incorporated by reference herein).
2
<PAGE>
Any statement contained herein or in a document 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 the applicable prospectus supplement) 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.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such information, unless such exhibits are
specifically incorporated by reference in such information) will be provided
without charge to each person, including any beneficial owner of the securities
offered hereby to whom this Prospectus is delivered, upon written or oral
request. Requests should be made to the Chief Executive Officer of the Company
(telephone number: (619) 587-8533).
THE COMPANY
I.C.H Corporation (the "Company"), a Delaware corporation, is the
post-reorganization successor to I.C.H. Corporation ("Old ICH"). On October 10,
1995, Old ICH and three of its wholly-owned subsidiaries filed voluntary
petitions for relief under Chapter 11 of Title 11 of the United States
Bankruptcy Code (the "Code") in the United States Bankruptcy Court for the
Northern District of Texas, Dallas Division (the "Bankruptcy Court"). Old ICH's
First Amended Joint Plan of Reorganization under Chapter 11 was confirmed by
the Bankruptcy Court on February 7, 1997 and the Company emerged from bankruptcy
effective as of February 19, 1997.
On April 30, 1997, the Company acquired all of the outstanding capital
stock of Sybra, Inc. ("Sybra"), the second largest franchisee of Arby's
restaurants in the United States. The aggregate purchase price was approximately
$39.8 million which included the repayment of $23.7 million of Sybra
indebtedness and an additional $2 million of acquisition indebtedness due to the
seller within two years. Concurrently with the Company's acquisition of Sybra,
Sybra entered into a sale/leaseback transaction on 61 of its restaurant sites
with U.S. Restaurant Properties, Inc.
As of May 15, 1997, the Company, through its wholly-owned subsidiaries,
operated 163 Arby's restaurants clustered in five operating regions. Those
restaurants generated approximately $111.7 in revenue during 1997. Through
another wholly-owned subsidiary, Perry Park Resorts, Inc., the Company also
owned and operated a planned real estate development consisting of approximately
2,600 acres ("Perry Park") located in Owenton, Kentucky. Perry Park includes an
18-hole golf course, clubhouse, restaurant, salable lots, several lakes,
additional platted but undeveloped lots and unimproved acreage.
USE OF PROCEEDS
The shares of Common Stock offered hereby are being registered for the
account of the Selling Shareholders and, accordingly, the Company will not
receive any proceeds from the sale of the Selling Shareholder Shares by the
Selling Shareholders.
SELLING SHAREHOLDERS
The shares of Common Stock offered by this Prospectus are to be acquired by
directors and/or officers of the Company and its subsidiaries (the "Selling
Shareholders") pursuant to the Company's 1997 Director Stock Option Plan and
1997 Employee Stock Option Plan, as amended. Each Selling Shareholder will
receive all of the net proceeds from the sale of his or her respective Selling
Shareholder Shares offered hereby. The following table sets forth certain
information regarding the ownership of the Company's Common Stock by the Selling
Shareholders as of July 23, 1998. The number of shares of Common Stock
outstanding will not change as a result of the offering, nor will the number of
shares owned or percentage of ownership of any persons other than the Selling
Shareholders change as a result thereof. There is no assurance that any of the
Selling Shareholders will offer for sale or sell any or all of the Common Stock
offered by them pursuant to this Prospectus.
3
<PAGE>
<TABLE>
<CAPTION>
Number of Shares Number of Shares to
Owned Prior to Number of Shares be Owned After
Name and Position with Company Offering(1) Registered Hereby Offering(2)
- ------------------------------ ---------------- ----------------- -----------
<S> <C> <C> <C>
James R. Arabia, Chairman of the
Board, Chief Executive Officer and 176,269(3) 176,000 269
President
David A. Brainard, Senior Vice
President and Chief Financial 79,000 60,000 19,000
Officer
John A. Bicks, Senior Vice
President, General Counsel, 65,000(4) 60,000 5,000
Secretary and Director
Kenneth E. Giddens, Director 51,400 45,000 6,400
Carl D. Robinson, Director 81,000 45,000 36,000
Raymond L. Steele, Director 25,000 25,000 --
Robert H. Drechsler, Director 52,000 40,000 12,000
Timothy Scott, Director 25,000 25,000 --
------- ------- ------
TOTALS 554,669 476,000 78,669
======= ======= ======
</TABLE>
- -------------------------------
(1) Includes shares of Common Stock underlying options.
(2) Assumes all shares registered hereunder will be sold.
(3) Does not include 15,070 shares of Common Stock owned by a trust for the
benefit of Mr. Arabia's wife. Mr. Arabia is neither the trustee nor a
beneficial owner of the trust and therefore disclaims beneficial
ownership of such shares.
(4) Does not include 4,107 shares of Common Stock held by Mr. Bick's wife of
which Mr. Bicks disclaims beneficial ownership.
4
<PAGE>
Information regarding each Selling Shareholder's current relationship with
the Company or the Company's predecessors and affiliates and such relationships,
if any, within the past three years is set forth below:
James R. Arabia serves as the Chairman of the Board, President and Chief
Executive Officer of the Company.
David A. Brainard serves as Senior Vice President and Chief Financial Officer of
the Company.
John A. Bicks serves as the Senior Vice President, General Counsel and Secretary
and as a Director of the Company.
Kenneth E. Giddens serves as a Director of the Company.
Carl D. Robinson serves as a Director of the Company.
Raymond L. Steele serves as a Director of the Company.
Robert H. Drechsler serves as a Director of the Company.
Timothy Scott serves as a Director of the Company.
PLAN OF DISTRIBUTION
The Selling Shareholder Shares may be sold from time to time by the Selling
Shareholders, or by pledgees, donees, transferees or other successors in
interest. Such sales may be made on the AMEX or other exchanges on which the
Common Stock is traded, in the over-the-counter market, or otherwise at prices
and at terms then prevailing or at prices related to the then current market
price, or in negotiated transactions. The Selling Shareholder Shares may be sold
in one or more of the following transactions: (a) a block trade in which the
broker or dealer so engaged will attempt to sell the Selling Shareholder Shares
as agent but may position and resell a portion of the block as principal to
facilitate the transaction; (b) purchases by a broker or dealer as principal and
resale by the broker or dealer for its account pursuant to this Prospectus; (c)
an exchange distribution in accordance with the rules of the exchange; and (d)
ordinary brokerage transactions and transactions in which the broker solicits
purchasers. In effecting sales, brokers or dealers engaged by the Selling
Shareholders may arrange for other brokers or dealers to participate. Any broker
or dealer to be utilized by a Selling Shareholder will be selected by such
Selling Shareholder. Brokers or dealers will receive commissions or discounts
from Selling Shareholders in amounts to be negotiated immediately prior to the
sale. These brokers or dealers and any other participating brokers or dealers,
as well as certain pledgees, donees, transferees and other successors in
interest, may be deemed to be "underwriters" within the meaning of Section 2(11)
of the Securities Act in connection with the sales. In addition, any securities
covered by this Prospectus that qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
Prospectus.
Upon the Company being notified by a Selling Shareholder that any material
arrangement has been entered into with a broker-dealer for the sale of Selling
Shareholder Shares through a block trade, special offering, exchange
distribution or secondary distribution or a purchase by a broker or dealer, a
supplemental prospectus will be filed, if required, pursuant to Rule 424(c)
under the Securities Act, disclosing: (i) the name of each such Selling
Shareholder and of the participating broker-dealer(s), (ii) the number of
Selling Shareholder Shares involved, (iii) the price at which such Selling
Shareholder Shares were sold, (iv) the commissions paid or discounts or
concessions allowed to such broker-dealer(s), where applicable, (v) that such
broker-dealer(s) did not conduct any investigation to verify the information set
out or incorporated by reference in this Prospectus and (vi) other facts
material to the transaction.
The Selling Shareholders reserve the sole right to accept and, together
with any agent of the Selling Shareholders, to reject in whole or in part any
proposed purchase of the Selling Shareholder Shares. The Selling Shareholders
will pay any sales commissions or other seller's compensation applicable to such
transactions.
To the extent required, the amount of the Selling Shareholder Shares to be
sold, purchase prices, public offering prices, the names of any agents, dealers
or underwriters, and any applicable commissions or discounts with respect to a
5
<PAGE>
particular offer will be set forth by the Company in a prospectus supplement
accompanying this Prospectus or, if appropriate, a post-effective amendment to
the Registration Statement. The Selling Shareholders and agents who execute
orders on their behalf may be deemed to be underwriters as that term is defined
in Section 2(11) of the Securities Act and a portion of any proceeds of sales
and discounts, commissions or other seller's compensation may be deemed to be
underwriting compensation for purposes of the Securities Act.
Offers and sales of shares of the Common Stock have not been registered or
qualified under the laws of any country, other than the United States. To comply
with certain states' securities laws, if applicable, the Selling Shareholder
Shares will be offered or sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states the Selling
Shareholder Shares may not be offered or sold unless they have been registered
or qualified for sale in such states or an exemption from registration or
qualification is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person
engaged in a distribution of shares of the Common Stock may not simultaneously
engage in market-making activities with respect to such shares of Common Stock
for a period of two to nine business days prior to the commencement of such
distribution. In addition to and without limiting the foregoing, each Selling
Shareholder and any other person participating in a distribution will be subject
to applicable provisions of the Exchange Act and the rules and regulations
thereunder, including without limitation, Rules 10b-2, 10b-6 and 10b-7, which
provisions may limit the timing of purchases and sales of any of the shares of
Common Stock by the Selling Shareholders or any such other person. All of the
foregoing may affect the marketability of the Common Stock and the brokers' and
dealers' ability to engage in market-making activities with respect to the
Common Stock.
The Company will pay substantially all of the expenses incident to the
registration of the shares of Common Stock offered hereby, estimated to be
approximately $5,000.
DESCRIPTION OF SECURITIES TO BE REGISTERED
The authorized capital stock of the Company consists of 9,000,000 shares of
Common Stock, par value $.01 per share. At March 31, 1998, 2,793,550 shares of
Common Stock were issued and outstanding (assuming full conversion of all
remaining outstanding common stock and preferred stock of the pre-reorganized
I.C.H. Corporation).
Each outstanding share of Common Stock will entitle the holder to one vote
on all matters presented to shareholders for a vote. The holders of Common Stock
are entitled to receive dividends, if any, as may be declared from time to time
by the Board of Directors in its discretion from funds legally available
therefor. Holders of shares of Common Stock will have no preemptive rights,
subscription rights or cumulative voting rights and there are no conversion
rights or redemption or sinking fund provisions with respect to such shares. All
shares of Common Stock to be outstanding following this offering will be duly
authorized, fully paid, and nonassessable.
6
<PAGE>
LEGAL MATTERS
Certain legal matters in connection with this offering, including the
validity of the issuance of the shares of Common Stock offered hereby, will be
passed upon for the Company by Pryor Cashman Sherman & Flynn LLP, New York, New
York.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K of the Company for the year ended December 31,
1997, have been so incorporated in reliance on the report of Pricewaterhouse
Coopers LLP (formerly known as Coopers & Lybrand LLP), independent accountants,
given on the authority of said firm as experts in auditing and accounting.
7
<PAGE>
==================================================
No dealer, salesperson or any other person
has been authorized to give any information or to
make any representations other than those
contained in this Prospectus in connection with
the offer made by this Prospectus and, if given or
made, such information or representations must not
be relied upon as having been authorized by the
Company or the Selling Shareholders. This
Prospectus does not constitute an offer to sell or
a solicitation of an offer to buy, the securities
offered hereby in any jurisdiction in which such
offer or solicitation is not authorized, or to any
person to whom it is unlawful to make such offer
or solicitation. Neither the delivery of this
Prospectus nor any sale made hereunder shall,
under any circumstances, create any implication
that any information contained therein is correct
as of any time subsequent to the date hereof.
-------------------
TABLE OF CONTENTS
Page
----
Available Information..........................2
Incorporation of Certain Documents
by Reference.................................2
The Company....................................3
Use of Proceeds................................3
Selling Shareholders...........................3
Plan of Distribution...........................5
Description of Securities to be
Registered...................................6
Legal Matters..................................7
Experts .......................................7
==================================================
1,900,000 Shares
I.C.H. CORPORATION
Common Stock
-------------------
PROSPECTUS
-------------------
July 24, 1998
==================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference in this
registration statement:
a. The Company's Annual Report on Form 10-K (File No. 1-7697) for the
fiscal year ended December 31, 1997;
b. The Company's Current Report on Form 8-K (File No. 1-7697), dated
February 10, 1998;
c. The Company's Quarterly Report on Form 10-Q (file No. 1-7697) for the
fiscal quarter ended March 31, 1998;
d. The Company's Proxy Statement relating to the Annual Meeting of
Stockholders held on May 29, 1998; and
e. All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the filing of a
post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities all securities then
remaining unsold.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Robert H. Drechsler is a partner with the firm of Pryor Cashman Sherman &
Flynn LLP, legal counsel to the Company, and a member of the Board of Directors
of the Company and its subsidiaries.
Item 6. Indemnification of Directors and Officers.
Under provisions of the Certificate of Incorporation and the By-Laws of the
Company, each person who is or was a director or officer of the Company may be
indemnified by the Company to the full extent permitted or authorized by the
General Corporation Law of Delaware.
Under such law, to the extent that such person is successful on the merits
of defense of a suit or proceeding brought against him by reason of the fact
that he is a director or officer of the Company, he shall be indemnified against
expenses (including attorneys' fees) reasonably incurred in connection with such
action.
If unsuccessful in defense of a third-party civil suit or if a criminal
suit is settled, such a person may be indemnified under such law against both
(1) expenses (including attorneys' fees) and (2) judgments, fines and amounts
paid in settlement if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Company, and
with respect to any criminal action, had no reasonable cause to believe his
conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of the
Company, or if such suit is settled, such a person may be indemnified under such
law only against expenses (including attorneys' fees) incurred in the defense or
settlement of such suit if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Company except
that if such a person is adjudged to be liable in such suit for negligence or
misconduct in the performance of
II-1
<PAGE>
his duty to the Company, he cannot be made whole even for expenses unless the
court determines that he is fairly and reasonably entitled to indemnity for such
expenses.
The Company and its officers and directors are covered by officers and
directors liability insurance. The policy coverage is $5,000,000, which includes
reimbursement for costs and fees. There is a maximum deductible under the policy
of 250,000 for each claim.
Neither the Certificate of Incorporation nor the By-Laws of the company
contain any provisions which prevent or prohibit the indemnification of the
Company's directors or officers. However, in accordance with Delaware law and
the broad powers granted its directors and officers, the Company could provide
indemnification to its directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing, the Company has been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
4.1 - Form of Common Stock certificate (incorporated by reference to Exhibit
4.1 to Registration Statement No. 333-49855 on Form S-8)
5.1 - Opinion of Pryor Cashman Sherman & Flynn LLP
23.1 - Consent of Pryor Cashman Sherman & Flynn LLP (included in Exhibit 5.1)
23.2 - Consent of Pricewaterhouse Coopers LLP
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; 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, as amended, 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 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 discussed 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
II-2
<PAGE>
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 of 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.
II-3
<PAGE>
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 San Diego, California on this 24th day of July, 1998.
I.C.H. CORPORATION
By: /s/ James R. Arabia
-------------------------------------
JAMES R. ARABIA
CHAIRMAN OF THE BOARD,
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 dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ James R. Arabia Chairman of The Board, President July 24, 1998
- -------------------------------- and Chief Executive Officer
JAMES R. ARABIA
/s/ David A. Brainard Senior Vice President and Chief July 24, 1998
- -------------------------------- Financial Officer
DAVID A. BRAINARD
/s/ John A. Bicks Senior Vice President, July 24, 1998
- -------------------------------- General Counsel, Secretary
JOHN A. BICKS and Director
/s/ Kenneth E. Giddens Director July 24, 1998
- -------------------------------
KENNETH E. GIDDENS
/s/ Carl D. Robinson Director July 24, 1998
- -------------------------------
CARL D. ROBINSON
/s/ Raymond L. Steele Director July 24, 1998
- -------------------------------
RAYMOND L. STEELE
/s/ Robert H. Drechsler Director July 24, 1998
- -------------------------------
ROBERT H. DRECHSLER
/s/ Timothy Scott Director July 24, 1998
- -------------------------------
TIMOTHY SCOTT
</TABLE>
II-4
<PAGE>
INDEX TO EHXIBITS
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 Form of Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to Registration Statement No.
333-49855 on Form S-8)
5.1 Opinion of Pryor Cashman Sherman & Flynn LLP
23.1 Consent of Pryor Cashman Sherman & Flynn LLP (included
as part of Exhibit 5.1)
23.2 Consent of Pricewaterhouse Coopers LLP
II-5
EXHIBIT 5.1
<PAGE>
[Letterhead of Pryor Cashman Sherman & Flynn LLP]
July 24, 1998
I.C.H. Corporation
9255 Towne Centre Drive
Suite 600
San Diego, California 92121
Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") to be filed by you with the Securities and Exchange Commission with
respect to the registration under the Securities Act of 1933, as amended (the
"Act"), of 1,900,000 shares (the "Shares"), $.01 par value per Share, of the
Common Stock of I.C.H. Corporation (the "Company"), for delivery under the
Company's 1997 Employee Stock Option Plan, as amended, and the 1997 Director
Stock Option Plan (collectively, the "Plans").
We are qualified to practice law in the State of New York. We express no
opinion as to, and, for the purposes of the opinion set forth herein, we have
conducted no investigation of, and do not purport to be experts on, any laws
other than the laws of the State of New York, the Delaware Corporation Law and
the federal laws of the United States of America.
We have examined such documents as we considered necessary for the purposes
of this opinion. Based on such examination, it is our opinion that the Shares
have been duly authorized and, upon issuance in accordance with the Plans, will
be legally issued, fully-paid and non-assessable under the laws of the State of
Delaware (the state of incorporation of the Company).
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
PRYOR CASHMAN SHERMAN & FLYNN LLP
EXHIBIT 23.2
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our reports dated March 28, 1998 and April 17, 1997, on our audits
of the consolidated financial statements of I.C.H. Corporation and Subsidiaries,
and Sybra, Inc., as predecessor. We also consent to the reference to our firm
under the caption "Experts."
/s/ Pricewaterhouse Coopers LLP
- -------------------------------
Pricewaterhouse Coopers LLP
Atlanta, Georgia
July 23, 1998
