<PAGE> 1
As filed with the Securities and Exchange Commission on December 16, 1997
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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------
AMERICAN INDEMNITY FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 6331 51-0119643
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
One American Indemnity Plaza
Galveston, Texas 77550
(Address, including zip code, of
registrant's Principal Executive Offices)
--------------------------
AMERICAN INDEMNITY FINANCIAL CORPORATION
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
PHILLIP E. APGAR
VICE PRESIDENT, TREASURER AND CHIEF FINANCIAL OFFICER
AMERICAN INDEMNITY FINANCIAL CORPORATION
ONE AMERICAN INDEMNITY PLAZA
GALVESTON, TEXAS 77550
(409) 766-4600
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
--------------------------
Copies to:
FULBRIGHT & JAWORSKI L.L.P.
1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77010-3095
(713) 651-5151
ATTENTION: HENRY W. HOPE
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
PROPOSED PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED BE REGISTERED PRICE PER UNIT(1) PRICE(1) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$3.33 1/3 par value 25,000 shares $12.25 $306,250 $91
===================================================================================================================
</TABLE>
(1) Pursuant to Rule 457(h), the proposed maximum offering price is
estimated, solely for the purpose of determining the registration fee,
on the basis of the average high and low sales prices of a share of
Common Stock as reported on the NASDAQ National Market System on
December 10, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
American Indemnity Financial Corporation, a Delaware
corporation (the "Company"), hereby incorporates by reference in this
Registration Statement the following documents:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996.
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997.
(c) The Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997.
(d) The Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997.
(e) The description of the Company's common stock,
$3.33 1/3 par value (the "Common Stock"), contained in a Registration
Statement on Form 8-A filed under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), which was declared effective March
20, 1978, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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, are hereby
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of the filing of such documents.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements and schedules of the Company
incorporated by reference in this Registration Statement from the Company's
Annual Report on Form 10-K for the year ended December 31, 1996, have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
reports which are incorporated herein by reference, and have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing. The validity of the issuance
of the shares of Common Stock registered hereby will be passed upon by Fulbright
& Jaworski L.L.P., counsel to the Company. Mr. Henry W. Hope, a director of the
Company, is a partner in Fulbright & Jaworski L.L.P. and beneficially owns 3,479
shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Fourteenth of the Company's Certificate of Incorporation
provides that no director of the Company will be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty by
such directors as a director; provided, however, that such article will not
eliminate or limit liability of a director to the extent provided by applicable
law (i) for any breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law, (iii) under Section
174 of the
<PAGE> 3
General Corporation Law of the State of Delaware (the "GCL"), or (iv) for any
transaction from which the director derived an improper personal benefit. The
effect of this provision is to eliminate the personal liability of a director
to the Company and its stockholders for monetary damages for breach of his
fiduciary duty as a director to the extent allowed under the GCL. If a
director were to breach such duty in performing his duties as a director,
neither the Company nor the stockholders could recover monetary damages from
the director, and the only course of action available to the Company's
stockholders would be equitable remedies such as an action to enjoin or rescind
a transaction involving a breach of fiduciary duty. To the extent certain
claims against directors are limited to equitable remedies, Article Fourteenth
may reduce the likelihood of derivative litigation and may discourage
stockholders or management from initiating litigation against directors for
breach of their fiduciary duty. Additionally, equitable remedies may not be
effective in many situations. If a stockholder's only remedy is to enjoin
completion of the Board of Directors' action, this remedy would be ineffective
if the stockholder does not become aware of a transaction until after it has
been completed. In such a situation, it is possible that the stockholders and
the Company would not have an effective remedy against the directors.
Article X of the Company's Bylaws provides for mandatory
indemnification to the extent specifically allowed by Section 145 of the GCL.
The Bylaws generally follow the language of Section 145 of the GCL. Pursuant
to Article X, the Company generally has the power to indemnify its current and
former directors, officers, employees and agents against expenses (including
attorneys' fees) and liabilities incurred by them in connection with any suit
to which they are, or are threatened to be made, a party by reason of their
serving in such positions so long as they acted in good faith and in a manner
they reasonably believed to be in, or not opposed to, the best interests of the
Company, and with respect to any criminal action, they had no reasonable cause
to believe their conduct was unlawful. With respect to suits by or in the
right of the Company, however, indemnification is generally limited to
attorneys' fees and other expenses and is not available if such person is
adjudged to be liable to the Company unless the court determines that
indemnification is appropriate. The Bylaws expressly provide that the power to
indemnify authorized thereby is not exclusive of any rights granted under any
bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise.
Delaware corporations are also authorized to obtain insurance to
protect officers and directors from certain liabilities, including liabilities
against which the corporation cannot indemnify its directors and officers. The
Company currently has in effect a directors' and officers' liability insurance
policy providing aggregate coverage in the amount of $3,000,000.
ITEM 8. EXHIBITS.
4 .1 Certificate of Incorporation of the Company, as amended (Exhibit
3.1 to the Company's Annual Report on Form 10-K for the year
ended December 31, 1989, is incorporated by reference herein).
4 .2 By-Laws of the Company, as amended (Exhibit 3.2 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1992,
is incorporated by reference herein).
4 .3 Specimen form of certificate for Common Stock (filed as Exhibit
4.1 to the Company's Registration Statement on Form S-1 (File
No. 2-58313), is incorporated by reference herein).
4 .4 American Indemnity Financial Corporation 1997 Non-Employee
Director Stock Option Plan.
II-3
<PAGE> 4
4 .5 Form of American Indemnity Financial Corporation Non-Employee
Director Stock Option Agreement.
5 .1 Opinion of Fulbright & Jaworski L.L.P. regarding the legality of
the securities being registered.
24.1 Consent of Deloitte & Touche LLP, independent accountants.
24.2 Consent of Fulbright & Jaworski L.L.P. (contained in Exhibit 5.1
hereto).
25.1 Power of attorney (contained on page II-6 hereof).
ITEM 9. UNDERTAKINGS.
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 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 this Registration Statement; and
(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 (i) and (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 Company
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this 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 herein, 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
Annual Report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference into this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints J. Fellman Seinsheimer, III and Phillip
E. Apgar, and each of them, to act 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 any or all
post-effective amendments to this Registration Statement, and to file the same
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or his substitute or substitutes or
all of them may lawfully do or cause to be done by virtue hereof.
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 Galveston, State of Texas, on the 22nd day of
October, 1997.
AMERICAN INDEMNITY FINANCIAL CORPORATION
By /s/ PHILLIP E. APGAR
-----------------------------------------
Phillip E. Apgar
Vice President, Treasurer and
Chief Financial Officer
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 the 22nd day of October, 1997.
<TABLE>
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Signature Title
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<S> <C>
/s/ J. FELLMAN SEINSHEIMER, III President, Chief Executive Officer and
------------------------------------------------------- Director (Principal Executive Officer)
J. Fellman Seinsheimer, III
/s/ PHILLIP E. APGAR Vice President, Treasurer and Chief
------------------------------------------------------- Financial Officer (Principal Financial
Phillip E. Apgar Officer and Principal Accounting Officer)
/s/ FRED C. BURNS Director
-------------------------------------------------------
Fred C. Burns
</TABLE>
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<TABLE>
<S> <C>
/s/ JACK T. CURRIE Director
-------------------------------------------------------
Jack T. Currie
/s/ HENRY W. HOPE Director
-------------------------------------------------------
Henry W. Hope
/s/ HARRIS L. KEMPNER, JR. Director
-------------------------------------------------------
Harris L. Kempner, Jr.
/s/ WILLIAM C. LEVIN, M.D. Director
-------------------------------------------------------
William C. Levin, M.D.
/s/ JAMES W. MCFARLAND Director
-------------------------------------------------------
James W. McFarland
/s/ SYNOTT L. MCNEEL Director
-------------------------------------------------------
Synott L. McNeel
/s/ MARVIN L. WEST Director
-------------------------------------------------------
Marvin L. West
</TABLE>
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INDEX TO EXHIBITS
4.1 Certificate of Incorporation of the Company, as amended (Exhibit
3.1 to the Company's Annual Report on Form 10-K for the year
ended December 31, 1989, is incorporated by reference herein).
4.2 By-Laws of the Company, as amended (Exhibit 3.2 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1992,
is incorporated by reference herein).
4.3 Specimen form of certificate for Common Stock (filed as Exhibit
4.1 to the Company's Registration Statement on Form S-1 (File
No. 2-58313), is incorporated by reference herein).
4.4 American Indemnity Financial Corporation 1997 Non-Employee
Director Stock Option Plan.
4.5 Form of American Indemnity Financial Corporation Non-Employee
Director Stock Option Agreement.
5.1 Opinion of Fulbright & Jaworski L.L.P. regarding the legality of
the securities being registered.
24.1 Consent of Deloitte & Touche LLP, independent accountants.
24.2 Consent of Fulbright & Jaworski L.L.P. (contained in Exhibit 5.1
hereto).
25.1 Power of attorney (contained on page II-6 hereof).
<PAGE> 1
EXHIBIT 4.4
AMERICAN INDEMNITY FINANCIAL CORPORATION
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. PURPOSE. The 1997 Non-Employee Director Stock Option
Plan (the "Plan") of American Indemnity Financial Corporation, a Delaware
corporation (the "Company"), is for the benefit of members of the boards of
directors of the Company and its subsidiaries who, at the time of their
service, are not employees of the Company or its subsidiaries ("Non-Employee
Directors"), but are persons who have made or are expected to make a
significant contribution to the continued growth of the Company or its
subsidiaries by providing them with an additional incentive through an increase
in their proprietary interest in the success of the Company--thereby
encouraging them to continue in their present capacity.
2. ADMINISTRATION. The Plan shall be administered by a
committee (the "Committee") to be appointed by the board of directors of the
Company (the "Board of Directors"). The Committee shall consist of one or more
members who are employees of the Company and who have not been eligible to
participate under the Plan for a period of at least one year prior to being
appointed to the Committee. The Board of Directors of the Company shall have
the power from time to time to add or remove members of the Committee, and to
fill vacancies arising for any reason. The Committee shall designate a
chairman from among its members, who shall preside at all of its meetings, and
shall designate a secretary, without regard to whether that person is a member
of the Committee, who shall keep the minutes of the proceedings and all
records, documents, and data pertaining to its administration of the Plan.
Meetings shall be held at any time and place as it shall choose. A majority of
the members of the Committee shall constitute a quorum for the transaction of
business. The vote of a majority of those members present at any meeting shall
decide any question brought before that meeting. In addition, the Committee
may take any action otherwise proper under the Plan by the affirmative vote,
taken without a meeting, of a majority of its members. No member of the
Committee shall be liable for any act or omission of any other member of the
Committee or for any act or omission on his own part, including but not limited
to the exercise of any power or discretion given to him under the Plan, except
those resulting from his own gross negligence or willful misconduct. The
Committee shall have no discretion in the selection of Non-Employee Directors
to whom Options are to be granted, the number of shares subject to an Option,
the exercise price of the Option and the term of the Option. All other
questions of interpretation and application of the Plan, or as to options
granted under it (the "Options"), shall be subject to the determination of a
majority of the Committee. The Committee in exercising any power or authority
granted under this Plan or in making any determination under this Plan shall
perform or refrain from performing those acts using its sole discretion and
judgment. Any decision made by the Committee or any refraining to act or any
act taken by the Committee in good faith shall be final and binding on all
parties. The Committee's decision shall never be subject to de novo review.
3. OPTION SHARES. The stock subject to the Options and
other provisions of the Plan shall be shares of the Company's Common Stock,
$3.33 1/3 par value (the "Common Stock"). The total amount of the Common Stock
with respect to
<PAGE> 2
which Options may be granted shall not exceed in the aggregate 25,000 shares.
The class and aggregate number of shares which may be subject to the Options
granted under this Plan shall be subject to adjustment under Section 16. The
shares may be treasury shares or authorized but unissued shares.
In the event that an outstanding Option shall expire or
terminate for any reason, the shares of Common Stock allocable to the
unexercised portion of that Option may again be subject to an Option under the
Plan.
4. GRANT OF OPTIONS. During the term of this Plan if
there is a sufficient number of shares of Common Stock available, there shall
be granted an Option for 1,000 shares of Common Stock: (a) to each individual
who is newly elected as a Non-Employee Director on the day of his initial
election and (b) to each Non-Employee Director who has previously received an
Option under this Plan or the American Indemnity Financial Corporation 1992
Non-Employee Director Stock Option Plan on January 2, 1998, and every other
January 2 thereafter if it is a business day, or if it is not, then on the next
business day if the individual is a Non-Employee Director on that date. If the
aggregate shares authorized for this Plan become subject to an adjustment under
Section 16, then the number of shares which is the subject of each grant after
that date will be subject to the same adjustment. If there are shares
available but in insufficient numbers to permit all grants required on a
particular date of grant to a class of Non-Employee Directors, then options
shall be granted in an equal whole number to each Non-Employee Director of the
class which will use the maximum shares available without issuing an Option in
an unequal amount or for a fractional share.
5. ELIGIBILITY. The individuals who shall be eligible
to participate in the Plan shall be those individuals who are a member of the
board of directors of the Company or of a subsidiary who, at the time of
service, are not employees of any of them. No individual shall be eligible to
receive an Option under the Plan while that individual is a member of the
Committee.
6. OPTION PRICE. The price at which shares may be
purchased pursuant to an Option granted under this Plan (the "Option Price")
shall be its fair market value on the date the Option is granted. The fair
market value of a share of Common Stock shall be the closing sale price of a
share of Common Stock on that date as reported by the principal national
securities exchange on which the Common Stock is listed if the Common Stock is
listed on a national securities exchange, or the average of the bid and asked
price of a share of Common Stock on that date as reported in the NASDAQ listing
if the Common Stock is not listed on a national securities exchange. If no
closing price or quotes are reported on that date, the fair market value of a
share of Common Stock shall be the closing sale price of a share of Common
Stock on the next preceding date that a share of Common Stock is reported by
the principal national securities exchange on which the Common Stock is listed
if the Common Stock is listed on a national securities exchange, or the average
of the bid and asked price of a share of Common Stock on that date as reported
in the NASDAQ listing if the Common Stock is not listed on a national
securities exchange.
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<PAGE> 3
7. DURATION OF OPTIONS. Each Option granted shall be
exercisable for a period of 10 years commencing from the date the Option is
granted.
8. AMOUNT EXERCISABLE. Each Option granted may be
exercised, so long as it is valid and outstanding, from time to time in part or
as a whole, after the expiration of six months following the date of grant.
9. EXERCISE OF OPTIONS. An optionee may exercise an
Option by delivering to the Company a written notice stating (a) that he wishes
to exercise the Option on the date the notice is delivered, (b) the number of
shares of stock with respect to which the Option is to be exercised, (c) the
address to which the certificate representing the shares are to be mailed, and
(d) his social security number. In order to be effective, written notice shall
be accompanied by payment of the Option Price of the shares and payment of any
amount necessary to satisfy any withholding tax liability that may result from
the exercise of the Option.
Normally, each payment shall be made by cashier's check drawn
on a national banking association and payable to the order of the Company in
United States currency.
However, if, at the time of receipt by the Company of the
notice, (a) the Company has unrestricted surplus in an amount not less than the
Option Price of the shares, (b) all accrued cumulative preferential dividends
and other current preferential dividends on all outstanding shares of preferred
stock of the Company, if any, have been fully paid, (c) the acquisition by the
Company of its own shares of stock for the purpose of enabling the optionee to
exercise the Option is permitted by applicable law and without any vote or
consent of any stockholder of the Company, and (d) there has been adopted a
resolution of the Board of Directors, which remains effective, authorizing the
acquisition by the Company of its own shares for that purpose, then the
optionee may deliver to the Company, in payment of the Option Price of the
shares with respect to which the Option is exercised, certificates registered
in the name the optionee that represent a number of shares of stock legally and
beneficially owned by him (free of all liens, claims and encumbrances of every
kind) and having a fair market value on the date of receipt by the Company of
the notice that is not greater than the Option Price of the shares with respect
to which the Option is to be exercised. The certificates must be accompanied
by stock powers duly endorsed in blank by the record holder of the shares
represented by the certificates, with the signature guaranteed by a national
banking association (or, in lieu of certificates, other arrangements for the
transfer of those shares to the Company which are satisfactory to the Company).
If the Option Price of the shares with respect to which the Option is to be
exercised exceeds the fair market value, the optionee must also deliver a
cashier's check drawn on a national banking association and payable to the
order of the Company in an amount, in United States currency, equal to the
amount of the excess plus the amount of money necessary to satisfy any
withholding tax liability that may result from the exercise of the Option.
In any event, the Committee, in its sole discretion, may
refuse to accept shares in payment of the Option Price of the shares with
respect to which the Option
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<PAGE> 4
is to be exercised. In that event, any certificates representing shares that
were received by the Company with the notice shall be returned to the optionee,
together with a notice by the Company to the optionee of the refusal of the
Committee to accept the shares. If, at the expiration of seven business days
after the delivery to the optionee of the notice, the optionee has not
delivered to the Company a cashier's check drawn on a national banking
association, payable to the order of the Company, in an amount in United States
currency, equal to the amount for which the shares were to have been payment,
the notice from the optionee to the Company shall be ineffective to exercise
the Option.
The Company, with the approval of the Board of Directors may,
at the request of the optionee, retain shares of Common Stock which would
otherwise be issued upon exercise of an Option to satisfy any withholding tax
liability that may result from the exercise of the Option. The shares shall be
valued for this purpose at their fair market value on the date of the exercise
of the Option.
As promptly as practicable after receipt of written
notification and payment, the Company shall deliver to the optionee
certificates for the number of shares with respect to which the Option has been
exercised less any shares retained to pay any withholding tax, issued in the
optionee's name. Delivery shall be deemed effected when a stock transfer agent
of the Company shall have deposited the certificates in the United States mail,
addressed to the optionee, at the address specified under this Section.
10. TRANSFERABILITY OF OPTIONS. Options shall not be
transferable by the optionee except by will or under the laws of descent and
distribution, and shall be exercisable, during his lifetime, only by him.
11. TERMINATION OF POSITION OR DEATH OF OPTIONEE. Except
as may be otherwise expressly set out in this Plan, Options shall normally
terminate on the earlier of the date of the expiration of the Option or upon
severance of that relationship between the Company and the optionee which made
the individual eligible to receive an Option under this Plan, without regard
for the reason for severance. But, if before the expiration of the Option, the
optionee shall be retired in good standing from the board of directors of the
Company or its subsidiaries, the Option shall terminate on the earlier of the
date of expiration of the Option or one day less than three months after the
date of retirement. In addition, if the optionee shall die while serving upon
the board of directors of the Company or its subsidiaries or during the three
month period after retirement in good standing and before the date of
expiration of the Option, the Option shall terminate on the earlier of the date
of expiration or one year following the date of death. After the death of the
optionee, his executors, administrators or any person or persons to whom his
Option may be transferred by will or by the laws of descent and distribution,
shall have the right, at any time prior to its termination, to exercise the
Option to the extent the optionee could have exercised it had he lived and
remained on the board of directors of the Company or its subsidiaries.
12. FORFEITURES. Notwithstanding any other provision of
this Plan, if the Committee finds by a majority vote, that the optionee, before
or after termination
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<PAGE> 5
of his capacity as a Non-Employee Director of the Company or any subsidiary
corporation (as used in this Section, the "Company and (or) its Affiliates"),
committed fraud, embezzlement, theft, commission of felony, or proven
dishonesty in the course of his advisory relationship to the Company and its
Affiliates which conduct damaged the Company or its Affiliates, or for
disclosing trade secrets of the Company or its Affiliates, then any outstanding
options which have not been exercised by optionee shall be forfeited. The
decision of the Committee will be final. In order to provide the Company with
an opportunity to enforce this Section, an Option may not be exercised if the
Committee notifies the stock transfer agent that a forbidden action has been
raised for its determination, until it has made a decision favorable to the
optionee.
13. REQUIREMENTS OF LAW. The Company shall not be
required to sell or issue any shares under any Option if issuing the shares
shall constitute a violation by the optionee or the Company of any provisions
of any law or regulation of any governmental authority. Each Option granted
under this Plan shall be subject to the requirements that, if at any time the
Company or the Committee shall determine that the listing, registration or
qualification of the shares upon any securities exchange or under any state or
federal law of the United States or of any other country or governmental
subdivision, or the consent or approval of any governmental regulatory body, or
investment or other representations, are necessary or desirable in connection
with the issue or purchase of shares subject to an Option, that Option shall
not be exercised in whole or in part unless the listing, registration,
qualification, consent, approval or representations shall have been effected or
obtained free of any conditions not acceptable to the Company. Any
determination in this connection by the Committee shall be final. In the event
the shares issuable on exercise of an Option are not registered under the
Securities Act of 1933, as amended (the "Act"), the Company may imprint on the
certificate for those shares the following legend or any other legend which
counsel for the Company considers necessary or advisable to comply with the Act
or other applicable state or federal securities laws or regulations:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933 or under the
securities laws of any state and may not be sold or
transferred except upon registration or upon receipt by the
Corporation of an opinion of counsel satisfactory to the
Corporation, in form and substance satisfactory to the
Corporation, that registration is not required for a sale or
transfer."
The Company may, but shall in no event be obligated to, register any securities
covered by this Plan under the Act (as now in effect or as later amended) and,
in the event any shares are registered, the Company may remove any legend on
certificates representing those shares. The Company shall not be obligated to
take any other affirmative action in order to cause the exercise of an Option
or the issuance of shares under the Option to comply with any law or regulation
or any governmental authority.
14. NO RIGHTS AS STOCKHOLDER. No optionee shall have
rights as a stockholder with respect to shares covered by his Option until the
date a stock
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<PAGE> 6
certificate is issued for the shares. Except as provided in Section 16, no
adjustment for dividends or other matters shall be made if the record date is
prior to the date the certificate is issued.
15. NO OBLIGATION TO RETAIN OPTIONEE. The granting of
any Option shall not impose upon the Company or any of its subsidiaries any
obligation to retain or continue to retain any optionee in his capacity as a
Non-Employee Director. The right of the Company, the directors or the
stockholders of the Company or of any subsidiary of the Company to terminate
any optionee shall not be diminished or affected by reason of the fact that one
or more Options have been or will be granted to him.
16. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE. The
existence of outstanding Options shall not affect in any way the right or power
of the Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or
any issue of bonds, debentures, preferred or prior preference stock ahead of or
affecting the Common Stock or the rights of the Common Stock, or the
dissolution or liquidation of the Company, or any sale or transfer of all or
any part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
If the Company shall effect a subdivision or consolidation of
shares or other capital readjustment, the payment of a stock dividend, or other
increase or reduction of the number of shares of the Common Stock outstanding,
without receiving compensation for it in money, services or property, then (a)
the number, class and per share price of shares of stock subject to outstanding
Options under this Plan shall be appropriately adjusted in a manner as to
entitle an optionee to receive upon exercise of an Option, for the same
aggregate cash consideration, the same total number and class or classes of
shares as he would have received had he exercised his Option in full
immediately prior to the event requiring the adjustment; and (b) the number and
class of shares then reserved for issuance under the Plan shall be adjusted by
substituting for the total number and class of shares of stock then reserved
for the number and class or classes of shares of stock that would have been
received by the owner of an equal number of outstanding shares of Common Stock
as the result of the event requiring the adjustment.
If the Company merges or consolidates with another
corporation, whether or not the Company is a surviving corporation, or if the
Company is liquidated or sells or otherwise disposes of substantially all its
assets while unexercised Options remain outstanding under the Plan, (a) subject
to the provisions of clause (c) below, after the effective date of the merger,
consolidation, liquidation, sale or other disposition, as the case may be, each
holder of an outstanding Option shall be entitled, upon exercise of an Option,
to receive, in lieu of shares of Common Stock, the number and class or classes
of shares of stock or other securities or property to which the holder would
have been entitled if, immediately prior to the merger, consolidation,
liquidation, sale or other disposition, the holder had been the holder of
record of a number of shares of Common Stock equal to the number of shares as
to which the Option may be exercised; (b) the Board of Directors may waive any
limitations set out in or imposed pursuant
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<PAGE> 7
to this Plan so that all Options, from and after a date prior to the effective
date of the merger, consolidation, liquidation, sale or other disposition, as
the case may be, specified by the Board of Directors, shall be exercisable in
full; and (c) all outstanding Options may be canceled by the Board of Directors
as of the effective date of any the merger, consolidation, liquidation, sale or
other disposition.
Except as expressly provided before in this Plan, the issue by
the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, for cash or property, or for labor or services
either upon direct sale or upon the exercise of rights or warrants to subscribe
for shares, or upon conversion of shares or obligations of the Company
convertible into shares or other securities, shall not affect, and no
adjustment by reason of it shall be made with respect to, the number or price
of shares of Common Stock then subject to outstanding Options.
17. AMENDMENT OR TERMINATION OF PLAN. The Board of
Directors may modify, revise or terminate this Plan at any time and from time
to time. However, without the further approval of the holders of at least a
majority of the outstanding shares of voting stock, or if the provisions of the
corporate charter, by-laws or applicable state law prescribe a greater degree
of stockholder approval for this action, without the degree of stockholder
approval thus required, the Board of Directors may not (a) change the aggregate
number of shares which may be issued under Options pursuant to the provisions
of this Plan; (b) reduce the Option Price permitted for options; (c) change the
class of persons eligible to receive options; (d) extend the term during which
an Option may be exercised or the termination date of the Plan; or (e)
materially increase any other benefits accruing to the Non-Employee Directors
under the Plan or materially modify the requirements as to eligibility for
participation in the Plan unless the Board of Directors shall have obtained an
opinion of legal counsel to the effect that stockholder approval of the
amendment is not required by law or the applicable rules and regulations of, or
any agreement with, any national security exchange on which the Common Stock is
listed or if the Common Stock is not listed, the rules and regulations of, or
any agreement with, the National Association of Securities Dealers, Inc., or in
order to make available to the optionee with respect to any Option granted
under the Plan, the benefits of Rule 16b-3 of the Rules and Regulations under
the Securities Exchange Act of 1934 or any similar or successor rule. In
addition, the terms of the Plan relating to the number of shares that may be
subject to an Option, the times at which Options are to be granted, and the
means by which the Option Price for the Options granted is to be determined
shall not be amended more than once every six months, other than to comport
with the changes in the Internal Revenue Code of 1986, the Employee Retirement
Income Security Act or the rules under either of those laws. All Options
granted under this Plan shall be subject to the terms and provisions of this
Plan and any amendment, modification or revision of this Plan shall be deemed
to amend, modify or revise all Options outstanding under this Plan at the time
of the amendment, modification or revision. In the event this Plan is
terminated by action of the Board of Directors, all Options outstanding under
this Plan may also be terminated by such action.
18. WRITTEN AGREEMENT. Each Option granted under this
Plan shall be embodied in a written option agreement, which shall be subject to
the terms and
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<PAGE> 8
conditions prescribed above, and shall be signed by the optionee and by the
appropriate officer of the Company for and in the name and on behalf of the
Company. Each option agreement shall contain any other provisions that the
Committee in its discretion shall deem advisable if they do not conflict with
the terms of this Plan.
19. INDEMNIFICATION OF THE COMMITTEE AND THE BOARD OF
DIRECTORS. The Company will, to the fullest extent permitted by law,
indemnify, defend and hold harmless any person who at any time is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (whether civil, criminal, administrative or investigative)
in any way relating to or arising out of this Plan or any Option or Options
granted under it by reason of the fact that that person is or was at any time a
director of the Company or a member of the Committee against judgments, fines,
penalties, settlements and reasonable expenses (including attorneys' fees)
actually incurred by that person in connection with the action, suit or
proceeding. This right of indemnification will inure to the benefit of the
heirs, executors and administrators of each person to be protected and is in
addition to all other rights to which that person may be entitled by virtue of
the certificate of incorporation or by-laws of the Company or as a matter of
law, contract or otherwise. Nothing in this Section shall be construed to
limit or otherwise affect any right to indemnification, or payment of expenses,
or any provisions limiting the liability of any officer or director or any
member of the Committee, provided by law, the certificate of incorporation or
by-laws of the Company or otherwise.
20. EFFECTIVE DATE OF PLAN. The Plan shall become
effective and shall be deemed to have been adopted on January 22, 1997, if at
the first annual meeting of the stockholders of the Company following such date
it is approved by the holders of at least a majority of the outstanding shares
of voting stock of the Company voting in person or by proxy, or if the
provisions of the certificate of incorporation, by-laws or applicable state law
prescribe a greater degree of stockholder approval for this action, the
approval by the holders of that percentage at such annual meeting of
stockholders. No Options shall be granted pursuant to the Plan after January
22, 2007.
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<PAGE> 1
EXHIBIT 4.5
AMERICAN INDEMNITY FINANCIAL CORPORATION
NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
Under the terms and conditions of the 1997 Non-Employee
Director Stock Option Plan (the "Plan"), of American Indemnity Financial
Corporation (the "Company"), a copy of which is attached and incorporated in
this Agreement by reference, the Company grants to
----------------------------
(the "Optionee") the option to purchase shares of the Company's
--------
Common Stock, $3.33 1/3 par value, at the price of $ per share,
---------------
subject to adjustment as provided in the Plan.
This option shall be for a term commencing on this date and
ending , , unless this Option is terminated sooner by reason
----------- ------
of your termination of employment, as provided in Section 11 in the Plan.
[Upon the expiration of six months from the date hereof, this
option shall be exercisable by the Optionee at any time during the term
hereof.] [This option shall be exercisable at the rate and in the following
manner:]
This option is an non-incentive stock option which is not
governed by Section 422 of the Internal Revenue Code of 1986, as amended.
The Optionee in accepting this Option accepts and agrees to be
bound by all the terms and conditions of the Plan.
Granted the day of , 19 .
------- ---------------------- ----
AMERICAN INDEMNITY FINANCIAL CORPORATION
By
------------------------------------
ACCEPTED:
- ------------------------------------------
Optionee
- ------------------------------------------
Date
<PAGE> 1
EXHIBIT 5.1
[FULBRIGHT & JAWORSKI L.L.P. LETTERHEAD]
December 12, 1997
American Indemnity Financial Corporation
One American Indemnity Plaza
Galveston, Texas 77550
Gentlemen:
We have acted as counsel for American Indemnity Financial
Corporation, a Delaware corporation (the "Company"), in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), of
25,000 shares of the Company's common stock, $3.33 1/3 par value (the "Common
Stock"), to be offered upon the terms and subject to the conditions set forth
in the Company's 1997 Non-Employee Director Stock Option Plan (the "NED Plan").
The Company is filing a Registration Statement on Form S-8 (the "Registration
Statement") relating thereto with the Securities and Exchange Commission.
In connection therewith, we have examined originals or copies
certified or otherwise identified to our satisfaction of the Certificate of
Incorporation of the Company, the Bylaws of the Company, the corporate
proceedings with respect to the offering of shares and such other documents and
instruments as we have deemed necessary or appropriate for the expression of
the opinions contained herein.
We have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to us as originals, the conformity
to original documents of all records, certificates and other instruments
submitted to us as copies and the correctness of all statements of fact
contained in all records, certificates and other instruments that we have
examined.
Based on the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that:
1. The Company has been duly organized and is validly
existing in good standing under the laws of the State of
Delaware.
2. The 25,000 shares of Common Stock proposed to be sold by
the Company pursuant to the NED Plan have been duly and
validly authorized for issuance and, when issued in
<PAGE> 2
American Indemnity Financial Corporation
December 12, 1997
Page 2
accordance with the terms of the NED Plan, and subject to
compliance with any applicable Blue Sky laws, will be duly
and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ FULBRIGHT & JAWORSKI L.L.P.
Fulbright & Jaworski L.L.P.
<PAGE> 1
Exhibit 24.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
American Indemnity Financial Corporation:
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 7, 1997, appearing in and
incorporated by reference in the Annual Report on Form 10-K of American
Indemnity Financial Corporation for the year ended December 31, 1996 and to the
reference to Deloitte & Touche LLP under the heading "Interests of Named
Experts and Counsel."
DELOITTE & TOUCHE
Houston, Texas
December 12, 1997
