As filed with the Securities and Exchange Commission on July 1, 1999.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ASCENT ASSURANCE, INC.
(formerly, Westbridge Capital Corp.)
(Exact name of issuer as specified in its charter)
Delaware 73-1165000
(State of Incorporation) (I.R.S. Employer
Identification No.)
110 West Seventh Street, Suite 300
Fort Worth, Texas 76102
(817) 878-3300
(Address and telephone number of principal executive offices)
ASCENT ASSURANCE, INC.
1999 STOCK OPTION PLAN
(Full Title of the Plan)
Patrick H. O'Neill, Esq.
Executive Vice President, General Counsel and Secretary
Ascent Assurance, Inc.
110 West Seventh Street, Suite 300
Fort Worth, Texas 76102
(817) 878-3300
(Name, address and telephone number of agent for service)
Copies to:
Milbank, Tweed, Hadley & McCloy LLP
One Chase Manhattan Plaza
New York, New York 10005
(212) 530-5000
Attention: Robert S. Reder, Esq.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of
be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share Price
- ------------------------- --------------------- ------------------------ ------------------------ -----------------
<S> <C> <C> <C> <C>
Common Stock (par value 1,638,804 shares $4.39 $4,818,220 $1,339.47
$0.01 per share)
- ------------------------- --------------------- ------------------------ ------------------------ -----------------
</TABLE>
* The proposed maximum aggregate offering price listed above has been determined
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, and
represents (i) the aggregate exercise price of all options to acquire any of the
above-registered shares granted under the Plan as of the Effective Date of this
registration, plus (ii) the product of the remaining shares registered hereunder
available for future grant under the Plan multiplied by a per share price of
$3.13, the average price of Ascent Assurance, Inc. Common Stock on the OTC BB on
June 21, 1999.
<PAGE>
PART I
ITEM 1. PLAN INFORMATION
This Registration Statement relates to the registration of
1,638,804 shares of Common Stock, $0.01 par value per share, of ASCENT
ASSURANCE, INC. (the "Registrant") awarded under the Ascent Assurance, Inc. 1999
Stock Option Plan (the "Plan"). Documents containing the information required by
Part I of the Registration Statement will be sent or given to participants in
the Plan as specified by Rule 428(b). Such documents are not filed with the
Securities and Exchange Commission (the "Commission" or the "SEC") either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 in reliance on Rule 428.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The Registrant will, upon written or oral request, provide
without charge to any person to whom the Prospectus relating to this
Registration Statement is delivered, a copy of any and all of the information
which has been incorporated by reference in such Prospectus and this
Registration Statement (pursuant to Item 3 of Part II below). Such requests
should be directed to the Secretary, Ascent Assurance, Inc., 110 West Seventh
Street, Suite 300, Fort Worth, Texas 76102 (telephone: 817-878-3300).
PART II
INFORMATION REQUIRED IN THE REGISTRATION
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by Ascent
Assurance, Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933, as amended (the
"Securities Act") and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as applicable, are incorporated by reference herein and shall
be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998.
2. The description of the Company's Capital Stock contained in the
registration statement on Form 8-A filed with the Commission
under the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
3. The Company's Reports on Form 8-K, dated September 18, 1998,
December 28, 1998 and March 26, 1999, respectively.
4. The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1999.
All documents, filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this
registration statement and made a part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents"); provided, however, that the documents
enumerated above or subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act in each year during which the
offering made by this registration statement is in effect prior to the filing
with the Commission of the Company's Annual Report on Form 10-K covering such
year shall not be Incorporated Documents or be incorporated by reference in this
registration statement or be a part hereof from and after the filing of such
Annual Report on Form 10-K.
Any statement contained in an Incorporated Document shall be
deemed to be modified or superseded for purposes of this registration statement
to the extent that a statement contained herein or in any other subsequently
filed Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock being registered hereunder has been
registered pursuant to Section 12 of the Exchange Act and a description of the
Common Stock is contained in the Exchange Act registration statement which has
been filed with the Commission.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, INTER
ALIA, generally empowers a Delaware corporation to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding by reason of the fact that such person is
or was a director, officer, employee or agent of another corporation or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Similar indemnity is
authorized for such person against expense (including attorneys' fees) actually
and reasonably incurred in connection with the defense or settlement of any such
threatened, pending or completed action or suit if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and provided further that (unless a court of
competent jurisdiction otherwise provides) such person shall not have been
adjudged liable to the corporation. Any such indemnification may be made only as
authorized in each specific case upon a determination by the shareholders or
disinterested directors or by independent legal counsel in a written opinion
that indemnification is proper because the indemnitee has met the applicable
standard of conduct.
Section 145 further authorizes a corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise, against any liability asserted against him, and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would otherwise have the power to indemnify him under Section 145.
The Registrant's Second Amended and Restated Certificate of
Incorporation provides that, to the fullest extent permitted by Delaware law, no
director of the Registrant shall be personally liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duties as a director.
The effect of these provisions is to eliminate the rights of the Registrant and
its stockholders (through stockholders' derivative suits on behalf of the
Registrant) to recover monetary damages against a director for breach of
fiduciary duty as a director (including breaches resulting from grossly
negligent conduct). This provision does not exonerate the directors from
liability under federal securities laws nor does it limit the availability of
non-monetary relief in any action or proceeding against a director. In addition,
the Registrant's Amended and Restated By-laws effective March 24, 1999 provide
that the Registrant shall, to the fullest extent permitted by Delaware Law,
indemnify its officers and directors against liabilities, cost and expenses as
provided by Delaware Law. Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers or others
pursuant to the foregoing provisions, the Registrant 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.
See Exhibit Index on page 8.
ITEM 9. UNDERTAKINGS.
(1) The Company hereby undertakes:
(a) 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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (1)(a)(i) and (1)(a)(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(a) or Section 15(d) of the 1934 Act that are
incorporated by reference in the registration statement.
(b) 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.
(c) 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.
(2) The Company hereby undertakes that, for the purpose of determining any
liability under the Securities Act, each filing of the issuer's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act of (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at the time shall be deemed to be the initial bona fide offering hereof.
(3) 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 above-mentioned provisions, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fort Worth and the State of Texas, on June 29,
1999.
ASCENT ASSURANCE, INC.
By: /S/ PATRICK H. O'NEILL
Patrick H. O'Neill
Executive Vice President,
General Counsel and Secretary
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below hereby severally
constitutes and appoints Patrick J. Mitchell and Patrick H. O'Neill and each of
them acting singly, as his or her true and lawful attorney-in-fact and agent,
with full and several power of substitution and resubstitution, to sign for him
or her and in his or her name, place and stead in any and all capacities
indicated below, the registration statement on Form S-8 filed herewith and any
and all pre-effective and post-effective amendments and supplements to the said
registration statement, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, full power and authority to do
and perform each and every act and thing requisite and necessary fully to all
intents and purposes as he or she might or could do in person hereby ratifying
and confirming all that said attorney-in-fact and agent, or his or her
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement or amendment thereto has been signed below by the
following persons in the capacities and on the date indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------ ------------------------------------------ -------------------------
<S> <C> <C>
/S/ PATRICK J. MITCHELL Director, Chairman of the Board April 14, 1999
(Patrick J. Mitchell) and Chief Executive Officer
(Principal Executive Officer)
(Principal Financial and Accounting
Officer)
/S/ JOHN H. GUTFREUND Director April 14, 1999
(John H. Gutfreund)
/S/ RICHARD H. HERSHMAN Director April 14, 1999
(Richard H. Hershman)
/S/ MICHAEL A. KRAMER Director April 14, 1999
(Michael A. Kramer)
/S/ ROBERT A. PEISER Director April 14, 1999
(Robert A. Peiser)
/S/ JAMES K. STEEN Director April 14, 1999
(James K. Steen)
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
4(a) Second Amended and Restated Certificate of
Incorporation of the Company (incorporated by reference
to Exhibit 3.1 to the Company's Form 8-A filed on March
25, 1999.
4(b) Amended and Restated By-laws of the Company, effective
as of March 24, 1999 (incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement on
Form 8-A filed on March 25, 1999.
5 Opinion of Milbank, Tweed, Hadley & McCloy LLP as to
the legality of the Company's Common Stock.
23(a) Consent of Milbank, Tweed, Hadley & McCloy LLP
(included in the Opinion filed as Exhibit 5 hereto).
23(b) Consent of PricewaterhouseCoopers LLP, independent
auditors.
24 Power of Attorney (set forth on the signature page
hereof).
99(a) Ascent Assurance, Inc. 1999 Stock Option Plan.
<PAGE>
Exhibits 5 and 23(a)
[LETTERHEAD]
June 29, 1999
Ascent Assurance, Inc.
110 West Seventh Street, Suite 300
Fort Worth, Texas 76102
Re: Registration Statement on Form S-8 of Ascent Assurance, Inc. Relating
to the Issuance of Shares of Common Stock Pursuant to the Ascent
Assurance, Inc. 1999 Stock Option Plan.
Ladies and Gentlemen:
We have acted as special counsel to Ascent Assurance, Inc., a
Delaware corporation (the "Company"), in connection with the preparation of a
registration statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act") relating to the offering of up to
1,638,804 shares of the Company's Common Stock, par value $0.01 per share (the
"Shares"), to be issued pursuant to the provisions of the Ascent Assurance, Inc.
1999 Stock Option Plan (the "Plan"). We have examined such records, documents,
statutes and decisions as we have deemed relevant in rendering this opinion.
We are of the opinion that, when (i) the applicable provisions
of the Act and of State securities or blue sky laws shall have been complied
with and (ii) the Shares shall have been duly issued and paid for in accordance
with the terms of the Plan, the Shares will be legally issued, fully paid and
non-assessable.
We hereby consent to the use of this opinion as Exhibit 5 to
the Registration Statement. In giving such opinion, we do not thereby admit that
we are acting within the category of persons whose consent is required under
Section 7 of the Act or the rules or regulations of the Commission thereunder.
Very truly yours,
/s/ Milbank, Tweed, Hadley & McCloy LLP
RSR/RH
<PAGE>
Exhibit 23(b)
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated March 29, 1999 relating to the
financial statements and the financial statement schedules, which appears on
page 40 of the Ascent Assurance, Inc. (formerly, Westbridge Capital Corp.)
Annual Report on Form 10-K for the year ended December 31, 1998.
PricewaterhouseCoopers LLP
Dallas, Texas
June 29, 1999
