As filed with the Securities and Exchange
Commission on November 27, 1996.
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
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AMWEST INSURANCE GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-2672141
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6320 Canoga Avenue Suite 300, Woodland Hills, California 91367
(818) 704-1111
(Address, including zip code, and telephone number, including
area code, of Principal Executive Offices)
AMWEST INSURANCE GROUP, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Mr. John E. Savage
Co-Chief Executive Officer,
President and Chief Operating Officer
Amwest Insurance Group, Inc.
6320 Canoga Avenue, Suite 300
Woodland Hills, California 91367
(818) 704-1111
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
with a copy to:
Jonathan K. Layne, Esq.
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7000
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Aggregate Registration
Registered Registered Price Per Share Offering Price Fee
Common Stock, 200,000 $12.375 (1) $ 2,475,000(1) $ 750.00
$.01 par value
===============================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) of the Securities Act of 1933, as amended, on
the basis of the average of the high and low prices of the Common Stock
of Amwest Insurance Group, Inc. on the American Stock Exchange on
November 26, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference
The following documents of Amwest Insurance Group, Inc. , a
Delaware corporation (the "Company"), previously filed with the Securities and
Exchange Commission (the "Commission") are hereby incorporated herein by this
reference in and made part of this Registration Statement:
(i) The Company's Annual Reports on Form 10-K for the fiscal
year ended December 31, 1995;
(ii) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1996, June 30, 1996 and September
30, 1996;
(iii) The Company's Current Reports on Form 8-K filed since
December 31, 1995:
The report dated January 30, 1996 included an Item 7
matter in which the Company, pursuant to the merger
announcement, were required to file certain financial
statements of Condor pursuant to Regulation 3.05(b) of
Regulation S-X.
The report dated March 12, 1996 included an Item 5
matter and Press Release announcing an agreement to purchase
100% of the stock of Southern California Bonding Services,
Inc.
The report dated March 19, 1996 included an Item 5
mater and Press Release announcing the completion of the
merger of Condor Services, Inc. into the Company, following
approval of the terms of the transaction by the stockholders
of each of the two companies.
(iv) The description of the Common Stock set forth under the
heading "Description of Capital Stock" in the Company's
Registration Statement on Form S-1 filed with the Commission
on May 19, 1988 (File No. 33-9911), together with any
amendment or report filed with the Commission for the
purpose of updating such description;
(v) All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act of 1934, as
amended, after the date of this Registration Statement and
prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold
or which registers all securities then remaining unsold.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein 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 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
Registration Statement.
ITEM 4. Description of Securities
Not applicable.
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 (the
"DGCL") makes provision for the indemnification of officers and directors in
terms sufficiently broad to indemnify officers and directors of the Company
under certain circumstances from liabilities (including reimbursement for
expenses incurred) arising under the Securities Act. The Company's Certificate
of Incorporation and Bylaws and the indemnification agreements between the
Company and its officers and directors provide, in effect, that, to the fullest
extent and under the circumstances permitted by Section 145 of the DGCL, the
Company will 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,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is a director or officer of the Company or is or was serving at the
request of the Company as a director or officer of another corporation or
enterprise. The company may, in its discretion, similarly indemnify its
employees and agents. The Company's Certificate of Incorporation relieves its
directors from monetary damages to the company or its stockholders for breach of
such director's fiduciary duty as directors to the fullest extent permitted by
the DGCL. Under Section 102(b)(7) of the DGCL, a corporation may relieve its
directors from personal liability to such corporation or its stockholders for
monetary damages for any breach of their fiduciary duty as directors except (i)
for a breach of the duty of loyalty, (ii) for failure to act in good faith,
(iii) for intentional misconduct or knowing violation of law, (iv) for willful
or negligent violation of certain provisions in the DGCL imposing certain
requirements with respect to stock repurchases, redemption and dividends, or (v)
for any transactions from which the director derived an improper personal
benefit. Depending upon the character of the proceeding, under Delaware law, the
Company may indemnify against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred in
connection with any action, suit or proceeding if the person indemnified acted
in good faith and in a matter he or she reasonably believed to be in or not
opposed to the best interest of the Company, and, with respect to any criminal
action or proceeding, had no cause to believe his or her conduct was unlawful.
To the extent that a director or officer of the Company has been successful in
the defense of any action, suit or proceeding referred to above, the Company
will be obligated to indemnify him or her against expenses (including attorneys
fees) actually and reasonably incurred in connection therewith.
ITEM 7. Exemption from Registration Claimed
Not Applicable.
ITEM 8. Exhibits.
ITEM 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1993;
(ii) To reflect in the prospectus any facts or events
arising aft the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change in such information in
the Registration Statement provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) of this section do not apply if the Registration
Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 and Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1993, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the Securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Woodland Hills, State of California, on this day 26th
day of November, 1996.
AMWEST INSURANCE GROUP, INC.
By: /s/ JOHN E. SAVAGE
------------------------------
John E. Savage
President,
Chief Operating Officer and
Co-Chief Executive Officer
POWER OF ATTORNEY
Know all men by these presents, that each person whose
signature appears below constitutes and appoints Richard H. Savage, John E.
Savage and Steven R. Kay his true and lawful attorneys-in-fact and agents, each
acting alone, with full powers of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments (including 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, each acting alone, full powers and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, 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, each acting alone, or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
<PAGE>
Pursuant to the requirements of the Securities Exchange Act,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
Chairman of the Board and
Co- Chief Executive Officer
/s/RICHARD H. SAVAGE (Principal Executive Officer) November 26, 1996
- ------------------------
Richard H. Savage
President, Chief Operating
Officer, Co-Chief Executive
/s/JOHN E. SAVAGE Officer and Director November 26, 1996
- ------------------------
John E. Savage
Executive Vice President and
/s/GUY A. MAIN Director November 26, 1996
- ------------------------
Guy A. Main
Senior Vice President, Chief
Financial Officer, Treasurer and
Director (Principal Financial and
/s/STEVEN R. KAY Principal Accounting Officer) November 26, 1996
- ------------------------
Steven R. Kay
Senior Vice President and
/s/NEIL F. PONT Director November 26, 1996
- ------------------------
Neil F. Pont
/s/ARTHUR F. MELTON Director November 26, 1996
- ------------------------
Arthur F. Melton
/s/THOMAS R. BENNETT Director November 26, 1996
- ------------------------
Thomas R. Bennett
/s/ BRUCE A. BUNNER Director November 26, 1996
- ------------------------
Bruce A. Bunner
/s/EDGAR L. FRASER Director November 26, 1996
- ------------------------
Edgar L. Fraser
/s/JONATHAN K. LAYNE Director November 26, 1996
- ------------------------
Jonathan K. Layne
/s/CHARLES L. SCHULTZ Director November 26, 1996
- ------------------------
Charles L. Schultz
<PAGE>
EXHIBIT INDEX
Exhibit Sequentially
Number Description Numbered Page
3.1 Restated Certificate of Incorporation of the
Company as amended to date (incorporated by
reference to Exhibit 3(3)(a) to the Company's
Form 8-B Registration Statement No. 1-9580).
5.1 Opinion of Gibson, Dunn & Crutcher LLP relating
to the Amwest Insurance Group, Inc. Employee
Stock Purchase Plan
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Gibson, Dunn & Crutcher LLP (included
in Exhibit 5.1).
24.1 Power of Attorney (included on Signature Page)
99.1 Form of Amwest Insurance Group, Inc. Employee
Stock Purchase Plan
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November 26, 1996
Amwest Insurance Group, Inc.
6320 Canoga Avenue, Suite 300
Woodland Hills, California 91367
Re: Form S-8 Registration Statement - Amwest Insurance Group, Inc. Employee
Stock Purchase Plan
Ladies and Gentlemen:
We have acted as special counsel to Amwest Insurance Group, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 to be filed with the Securities and Exchange
Commission (the "Registration Statement") with respect to the registration under
the Securities Act of 1933, as amended (the "Act"), of 200,000 shares of Common
Stock, $.01 par value (the "Shares"), of the Company which have been reserved
for issuance from time-to-time pursuant to awards granted and to be granted
pursuant to the Company's Employee Stock Purchase Plan (the "Plan"). We are
familiar with the corporate actions taken and to be taken by the Company in
connection with the authorization, issuance and sale of the Shares and have made
such other legal and factual inquiries as we deem necessary for the purpose of
rendering this opinion.We have examined, among other things, the Company's
Certificate of Incorporation and Bylaws, the Plan and related agreements, and
records of corporate proceedings and other actions taken and proposed to be
taken by the Company in connection with the authorization, issuance and sale of
the Shares pursuant to awards granted under the Plan. Based on the foregoing and
in reliance thereon, it is our opinion that the Shares, when issued pursuant to
awards granted and exercised in accordance with the provisions of the Plan and
related agreements, will be legally issued, fully paid and non-assessable.The
Company is incorporated under the laws of the State of Delaware. We are not
admitted to practice in Delaware. However, we are generally familiar with the
Delaware General Corporation Law and have made such review thereof as we
consider necessary for the purpose of rendering this opinion. Subject to the
foregoing, this opinion is limited to Delaware and federal law.We hereby consent
to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In
giving this consent, we do not admit that we are within the category of persons
whose consent is required under Section 7 of the Act or the General Rules and
Regulations of the Commission. Very truly yours, GIBSON, DUNN & CRUTCHER LLP
ACCOUNTANTS' CONSENT
Board of Directors
Amwest Insurance Group, Inc.:
We consent to the use of our reports incorporated herein by reference.
KPMG PEAT MARWICK LLP
Los Angeles, California
November 22, 1996
AMWEST INSURANCE GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. Purpose of the Plan. Under this Employee Stock Purchase Plan (the "Purchase
Plan") of Amwest Insurance Group, Inc., a Delaware corporation, (the "Company"),
certain eligible employees will be able to purchase directly from the Company
shares of the Company's common stock ("Common Stock") at a discount from the
market price, and to pay the purchase price in installments by payroll
deductions. The Purchase Plan is designed to advance the best interests of the
Company, to promote employee morale, and to encourage employee ownership of the
Company's Common Stock. The Purchase Plan is intended to qualify as an "employee
stock purchase plan" under Section 423 of the Internal Revenue Code of 1986, as
amended (the "Code") (including any amendments or replacements of such section),
and the Purchase Plan shall be so construed.
2. Stock Subject to Plan. Under the Purchase Plan, there is a maximum of
200,000 shares of Common Stock (subject to adjustment as provided under Section
14) which may be sold. Such shares may be either authorized but unissued shares,
or shares reaquired by the Company for sale under the Purchase Plan. The Common
Stock to be purchased under the Purchase Plan shall be previously issued shares
purchased in the open market or in privately-negotiated transactions.
3. Eligible Employees. The employees eligible to be considered for
participation in the Purchase Plan are any persons employed by the Company or
its parent or subsidiaries for at least 3 months; provided, however, that the
term "Eligible Employee" shall specifically exclude:
(a) any employee whose customary working schedule is 20 hours or less per
week;
(b) any employee whose customary employment is 5 months or less in any
calendar year;
(c) any employee who owns, or immediately after an offering under the
Purchase Plan would be deemed to own (under Section 424(d) of the Code,
relating to attribution of stock ownership) shares of stock possessing 5%
or more of the total combined voting power or value of all classes of
stock of the Company or of any parent or subsidiary of the Company. For
this purpose, shares which the employee may purchase under outstanding
options shall be treated as stock owned by the employee; and
(d) any employee who resides in a jurisdiction whose laws prohibit
participation in the Purchase Plan.
4. Method of Participation. "Purchase Periods" shall be of one-month
duration, commencing on the first day of each month. Each Eligible Employee on
the first day of a Purchase Period may elect to participate in the Purchase Plan
("Participant") by executing and delivering, at least 15 days prior to such day,
a payroll deduction authorization, on the terms and conditions specified in
Section 5. Such Employee will thereby become a "Participant" for such Purchase
Period and for each subsequent consecutive Purchase Period, subject to Section 5
below.
5. Payroll Deductions. All Participant contributions to the Purchase Plan
shall be made only by payroll deductions. Each enrollment form shall specify the
amount that the Participant elects to contribute under the Purchase Plan for
each payroll period and shall authorize the Company to withhold such amount from
the salary of such Participant with respect to each payroll period thereafter
until such Participant's participation in the Purchase Plan is terminated or
until the amount of such deductions is changed or suspended as hereafter
provided. The payroll deduction authorization shall request withholding at a
rate (in whole percentages) of not less than 1% nor more than 15% from the
Participant's Compensation by means of substantially equal payroll deductions
over the Purchase Period. The payroll deduction authorization shall remain in
effect for consecutive subsequent Purchase Periods unless changed or revoked by
the Participant pursuant to this Section 5. A Participant may increase or reduce
the withholding rate of his or her payroll deduction authorization by one or
more whole percentage points (but not less than 1% or more than 15%) or may
cease Participation entirely by delivering a revised enrollment/change form to
the Company. Such increase or reduction in withholding or cessation of
participation shall become effective at the earliest administratively feasible
time. All amounts withheld in accordance with a Participant's payroll deduction
authorization shall be credited to a withholding account for such Participant as
soon as administratively feasible after payroll withholding. The Company shall
be entitled to use of the contributions immediately after payroll withholding,
may maintain the contributions as a single account, and shall have no obligation
to pay interest with respect to the contributions or Common Stock of any
Participant.
6. Purchase of Shares. Each person who is a Participant on the first
business day of a Purchase Period shall, as of such day, automatically receive a
share purchase right to purchase shares of the Common Stock during such Purchase
Period, subject to the following conditions. Subject to the limitation specified
below, such right to purchase Common Stock shares shall be for a number of
shares of Common Stock, determined by dividing (i) the balance in the
Participant's withholding account on the last day of the Purchase Period by (ii)
the purchase price per share of the Common Stock determined under Section 7. In
no event shall a Participant receive a share purchase right under the Purchase
Plan in any calendar year exceeding $25,000 (or such different amount as may be
permitted under the Code and still comply with the requirements of the Code) in
fair market value (as calculated in the manner provided for in the Code).
7. Purchase Price. The purchase price per share of Common Stock purchased
under the Purchase Plan shall be 92% of the fair market value of the Common
Stock on the last business day of the Purchase Period, defined as the closing
price of the Company's Common Stock on the American Stock Exchange (or such
other securities market on which the Company's Common Stock is primarily traded)
on such date.
8. Purchase of Shares. Each Participant in the Purchase Plan on the last
business day of a Purchase Period shall be deemed to have exercised on such day
the share purchase right granted to him or her for that Purchase Period. Upon
such exercise, the balance of the Participant's withholding account shall be
applied to the purchase of the number of shares of Common Stock determined under
Section 6.
9. Cancellation of Share Purchase Right; Withdrawal. A Participant who
holds a share purchase right under the Purchase Plan may at any time prior to
exercise thereof under Section 8 cancel such share purchase right as to all (but
not less than all) the shares subject or to be subject to such share purchase
right by written notice delivered to the Company. A Participant who cancels a
share purchase right under the Purchase Plan shall be deemed to have withdrawn
from the Purchase Plan. A Participant who terminates his or her payroll
deduction authorization pursuant to Section 5 shall be deemed to have withdrawn
from the Purchase Plan. Any Participant who cancels a share purchase right or
terminates his or her payroll deduction authorization may again become a
Participant in accordance with such rules and regulations as the Company may
adopt from time-to-time relating to re-entry in the Purchase Plan. Upon
withdrawal, the balance in his or her withholding account shall be returned to
him or her as soon as administratively feasible.
10. Termination of Employment. Subject to Section 11, upon the termination
of a Participant's service with the Company for any reason, he or she shall
cease to be a Participant, and any share purchase right held by such Participant
under the Purchase Plan shall be deemed canceled. The balance of his or her
withholding account shall be returned to him or her, and he or she shall have no
further rights under the Purchase Plan.
11. Death of Participant. A Participant may file a written designation of
"Designated Beneficiary". Such designation shall also provide the Participant'
election whether to either (i) cancel (pursuant to Section 9) the Participant's
share purchase right upon his or her death or (ii) apply, as of the last
business day of the Purchase Period, the balance of the deceased Participant's
withholding account at the time of death to the exercise of his or her share
purchase right (pursuant to Section 8). In the absence of a valid election
otherwise, the death of a Participant shall be deemed to effect a cancellation
of his or her share purchase right pursuant to Section 9.
A designation of Designated Beneficiary and the foregoing election may be
changed by the Participant at any time, by written notice to the Company. In the
event of the death of a Participant and receipt by the Company of proof of the
identity and existence at the Participant's death of a Designated Beneficiary,
the Company shall deliver to such beneficiary the Common Stock or cash in the
Participant's account. If there is no surviving Designated Beneficiary, then the
Company shall deliver the Common Stock or cash in the Participant's account to
the executor or administrator of the estate of the Participant. No Designated
Beneficiary shall, prior to the death of the Participant by who he or she has
been designated, acquire any interest in any Common Stock or cash credited to
the Participant under the Purchase Plan.
12. Participant' Rights Not Transferable. All Participants shall have the
same rights and privileges under the Purchase Plan. Each Participant's rights
and privileges under the Purchase Plan may be exercisable during his or her
lifetime only by him or her. No share purchase right shall be assignable or
transferable except by will or under the laws of descent and distribution, and
no right or interest of any Participant shall be subject to any lien, obligation
or liability of the Participant. If any Participant violates the terms of this
Section 12, then any share purchase right held by him or her may be terminated
by the Company and upon return to the Participant of the balance of his or her
withholding account, all his or her rights under the Purchase Plan shall
terminate.
13. Administration of Purchase Plan; Costs. The Purchase Plan shall be
administered by a committee comprised of at least two directors (the
"Committee"). Members of the Committee shall be selected by the Board of
Directors. To the extent necessary to comply with the requirements of Rule
16b-3, the Committee shall consist of two or more Disinterested Directors. Also,
if the requirements of Section 162(m) of the Code are intended to be met, the
Committee shall consist of two or more "outside directors" within the meaning of
Section 162(m) of the Code. The Committee shall have sole and complete authority
to adopt, alter and repeal such administrative rules, guidelines and practices
governing the operation of the Purchase Plan as it shall from time-to-time deem
advisable, and to construe, interpret, and administer the terms and provisions
of the Purchase Plan and the agreements thereunder, subject to the overall
supervision of the Board of Directors and to the limitations of Section 423 of
the Code. The operational details relating to the day-to-day functioning of the
Purchase Plan shall be handled by such person(s) as the Company may from
time-to-time designate. The determinations and interpretations made by the
Committee are final, conclusive, and binding on all participants. If the Company
in its discretion so elects, it may retain a brokerage firm, bank or other
financial institution to assist in the purchase of shares, delivery of reports
or other administrative aspects of the Purchase Plan.
All costs and expenses incurred in administering the Purchase Plan shall be
paid by the Company, except that any stamp duties or transfer taxes applicable
to participation in the Purchase Plan shall be charged to the account of the
Participant. Brokerage fees for the purchase of shares by a Participant shall be
paid by the Company, while brokerage fees for the sale of shares by a
Participant shall be paid by the Participant.
14. Change in Capitalization. If the Committee shall determine that any
stock dividend, recapitalization, reorganization, merger, consolidation,
split-up, spin-off, combination, exchange of shares, or other similar corporate
event affects the Common Stock such that an adjustment is required in order to
preserve the benefits or potential benefits intended to be made available under
the Purchase Plan, then the Committee shall adjust appropriately the number and
kind of shares which thereafter may be purchased under the Purchase Plan and the
number and kind of shares subject to outstanding share purchase rights.
15. Amendment and Termination of Purchase Plan. The Board of Directors may
amend, abandon, suspend or terminate the Purchase Plan or any portion thereof at
any time in such respects as it may deem advisable in its sole discretion,
provided that no amendment shall be made without stockholder approval if such
approval is necessary to comply with any tax or regulatory requirement,
including for these purposes any approval requirement that is prerequisite for
exemptive relief under Section 16(b).
The Purchase Plan shall terminate automatically as of May 31, 2006. The
Purchase Plan shall terminate, in any case, when all or substantially all of the
Common Stock reserved for the purposes of the Purchase Plan has been purchased
by Participants.
16. Effective Dates. The Purchase Plan shall be in effect commencing on
May 31, 1996, subject to approval by the Company's stockholders.
17. General.
(a) No Participant or Designated Beneficiary shall have any rights as a
stockholder with respect to any shares of Common Stock to be distributed
under the Purchase Plan until he or she has become the holder thereof.
(b) The validity, construction, interpretation, administration and
effect of the Purchase Plan and of its rules and regulations, and rights
relating to the Purchase Plan, shall be determined solely in accordance
with the laws of the State of Delaware and, to the extent applicable,
federal law.
(c) Restrictions on Issuance of Shares
(1) No shares of Common Stock may be purchased under the Purchase
Plan unless; (i) the shares pertaining to such share purchase right
have been registered under applicable securities laws or are exempt
from such registration; (ii) the prior approval has been obtained
from any regulatory body having jurisdiction ; and (iii) in the
event the Common Stock has been listed on any exchange, the shares
pertaining to such share purchase right have been duly listed on
such exchange in accordance with the procedure specified therefor.
The Company shall be under no obligation to effect or obtain any
listing, registration, qualification, consent or approval with
respect to shares pertaining to any share purchase right granted
under the Purchase Plan. If the shares to be issued upon the
exercise of any share purchase right granted under the Purchase
Plan are intended to be issued by the Company in reliance upon the
exemptions from the registration requirements of applicable
securities laws, the recipient of the share purchase right, if so
requested by the Company, shall furnish to the Company such
evidence and representations, including an opinion of counsel,
satisfactory to it, as the Company may reasonably request.
(2) The Company shall not be liable for damages due to a delay in
the delivery or issuance of any stock certificates for any reason
whatsoever, including, but not limited to, a delay caused by
listing, registration or qualification of the shares of Common
Stock pertaining to any share purchase right granted under the
Purchase Plan upon any securities exchange or under any applicable
law or the effecting or obtaining of any consent or approval of any
governmental body.
(d) The Company expressly reserves the right at any time to terminate a
Participant's employment free from any liability or any claim under the
Purchase Plan. Neither the Purchase Plan nor any share purchase right
granted hereunder is intended to confer upon any Participant any rights
with respect to continuance of employment or other utilization of his or
her services the Company or its parent or subsidiaries, nor to interfere
in any way with his or her right or that of his or her employer to
terminate his or her employment or other services at any time (subject
to the terms of any applicable written agreement). The loss of existing
or potential profit in share purchase rights shall not constitute an
element of damages in the event of termination of employment for any
reason, even if the termination is in violation of any obligation to the
Participant.
IN TESTIMONY WHEREOF, Amwest Insurance Group, Inc. has executed this
Employee Stock Purchase Plan by its officers thereunto duly authorized.
AMWEST INSURANCE GROUP, INC.
By: /s/ RICHARD H. SAVAGE
Richard H. Savage
Chairman of the Board and
Co-Chief Executive Officer
ATTEST:
By: /s/ RICHARD S. BUSCH
Richard S. Busch
Secretary
