- -------------------------------------------------------------------------------
As filed with the Securities and Exchange Commission on November 1, 1999
Registration No. 333-________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ATLANTIC AMERICAN CORPORATION
(Exact name of issuer as specified in its charter)
Georgia 58-1027114
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4370 Peachtree Road
Atlanta, Georgia 30319-3000
(Address of principal executive office)
ATLANTIC AMERICAN CORPORATION
1992 INCENTIVE PLAN
(Full title of the plan)
Mr. Edward L. Rand, Jr.
Vice President and Treasurer
Atlantic American Corporation
4370 Peachtree Road
Atlanta, Georgia 30319-3000
(404) 266-5500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Mark L. Hanson, Esq.
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------ ------------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
To be registered registered per share(1) offering price(1) registration
fee(1)
- ------------------------------------------------------- ------------------------
- ------------------------------- ------------------------------------------------
Common Stock, 1,400,000
$1.00 par value shares $2.625 $3,675,000 $1,021.65
- ------------------------------- ----------------------- ------------------------
(1) In accordance with Rules 457(c) and (h) under the Securities Act of
1933, the maximum aggregate offering price and registration fee have been
computed as follows: the price per share of Common Stock of Atlantic American
Corporation has been based on the average of the high and low prices reported
for the Common Stock on the Nasdaq National Market on October 25, 1999 (a date
within 5 business days prior to the date of filing this Registration Statement).
In accordance with General Instruction E to Form S-8, the filing fee is paid
only with respect to the additional securities being registered under the 1992
Incentive Plan.
<PAGE>
EXPLANATORY NOTE
The purpose of this Registration Statement is to register 1,400,000 additional
shares of Common Stock, par value $1.00 per share, of Atlantic American
Corporation (the "Company"), issuable pursuant to the Company's 1992 Incentive
Plan. In accordance with General Instruction E of Form S-8 the information
contained in the Registration Statement on Form S-8 (No. 33-56866) is
incorporated herein by reference.
Item 8. Exhibits.
4 Atlantic American Corporation 1992 Incentive Plan, as amended Plan
5 Opinion of Jones, Day, Reavis & Pogue (with respect to the legality
of the securities being registered)
23(a) Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5)
23(b) Consent of Arthur Andersen LLP, independent public accountants
23(c) Consent of Ernst & Young LLP, independent auditors
24 Power of Attorney (included as part of the signature page of this
Registration Statement)
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing this Registration Statement 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 Atlanta, State of
Georgia, on the 29th day of October, 1999.
ATLANTIC AMERICAN CORPORATION
By: /s/ Edward L. Rand, Jr.
Edward L. Rand, Jr.
Vice President and Treasurer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints J. Mack Robinson and Hilton H. Howell,
Jr., jointly and severally, his true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
to this 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 attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or 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 each of said attorneys-in-fact and agents, or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated:
Signature Title Date
- --------------------- ---------------- -----------------------
/s/ J. Mack Robinson Chairman of the Board October 29, 1999
- -------------------
J. Mack Robinson
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/s/ Hilton H. Howell, Jr. President, Chief October 29, 1999
- ------------------------- Executive Officer
Hilton H. Howell, Jr. and Director
- -------------------------
/s/ Edward L. Rand, Jr. Vice President October 29, 1999
- ----------------------- and Tresurer
Edward L. Rand, Jr. (Principal Financial
and Accounting Officer)
/s/ Edward E. Elson Director October 29, 1999
- ----------------------
Edward E. Elson
- ------------------------
/s/ Harold K. Fischer Director October 29, 1999
- -------------------------
Harold K. Fischer
- -----------------------
/s/ Samuel E. Hudgins Director October 29, 1999
- --------------------------
Samuel E. Hudgins
- ----------------------
/s/ D. Raymond Riddle Director October 29, 1999
- -------------------------
D. Raymond Riddle
- ----------------------
/s/ Harriett J. Robinson Director October 29, 1999
- --------------------------
Harriett J. Robinson
- ------------------------
/s/ Scott G. Thompson Director October 29, 1999
- ------------------------
Scott G. Thompson
- ----------------------
/s/ William H. Whaley, M.D. Director October 29, 1999
- ----------------------------
William H. Whaley, M.D.
- ------------------------
/s/ Dom H. Wyant Director October 29, 1999
- ----------------------
Dom H. Wyant
- -----------------
/s/ Mark C. West Director October 29, 1999
- ---------------------
Mark C. West
- ---------------------
<PAGE>
Exhibit Index
4 Atlantic American Corporation 1992 Incentive Plan, as amended
5 Opinion of Jones, Day, Reavis & Pogue (with respect to the legality of
the securities being registered)
23(a) Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5)
23(b) Consent of Arthur Andersen LLP, independent public accountants
23(c) Consent of Ernst & Young LLP, independent auditors
24 Power of Attorney (included as part of the signature page of this
Registration Statement)
EXHIBIT 4
As Amended through
May 5, 1998
ATLANTIC AMERICAN CORPORATION
1992 Incentive Plan
1. Purpose. The purpose of this Plan is to attract and retain officers and key
employees for Atlantic American Corporation, a Georgia corporation (the
"Corporation"), and its Subsidiaries and to provide such persons with incentives
and rewards for superior performance.
2. Definitions. As used in this Plan,
"Appreciation Right" means a right granted pursuant to Section 5
of this Plan, including a Free-standing Appreciation Right
and a Tandem Appreciation Right.
"Base Price" means the price to be used as the basis for determining
the Spread upon the exercise of a Free-standing Appreciation Right.
"Board" means the Board of Directors of the Corporation.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Committee" means the committee described in Section 16(a) of this
Plan.
"Common Shares" means (i) shares of the common stock of the
Corporation $1.00 par value and (ii) any security into which Common Shares may
be converted by reason of any transaction or event of the type referred to in
Section 10 of this Plan.
"Date of Grant" means the date specified by the Committee on which a
grant of Option Rights, Appreciation Rights, Performance Shares or Performance
Units or a grant or sale of Restricted Shares or Deferred Shares shall become
effective, which shall not be earlier than the date on which the Committee takes
action with respect thereto.
"Deferral Period" means the period of time during which Deferred
Shares are subject to deferral limitations under Section 7
of this Plan.
"Deferred Shares" means an award pursuant to Section 7 of this Plan
of the right to receive Common Shares at the end of a
specified Deferral Period.
"Free-standing Appreciation Right" means an Appreciation Right granted
pursuant to Section 5 of this Plan that is not granted in tandem with an Option
Right or similar right.
"Incentive Stock Options" means Option Rights that are intended to
qualify as "incentive stock options" under Section 422
of the Code or any successor provision.
<PAGE>
"Management Objectives" means the achievement or performance
objectives established pursuant to this Plan for Participants who have received
grants of Performance Shares or Performance Units or, when so determined by the
Committee, Restricted Shares.
"Market Value per Share" means the fair market value of the Common
Shares as determined by the Committee from time to time.
"Optionee" means the person so designated in an agreement evidencing
an outstanding Option Right.
"Option Price" means the purchase price payable upon the exercise of
an Option Right.
"Option Right" means the right to purchase Common Shares upon
exercise of an option granted pursuant to Section 4 of this
Plan.
"Participant" means a person who is selected by the Committee to
receive benefits under this Plan and (i) is at that time an officer, including
without limitation an officer who may also be a member of the Board, or other
key employee of the Corporation or any one or more of its Subsidiaries or (ii)
has agreed to commence serving in any of such capacities.
"Performance Period" means, in respect of a Performance Share or
Performance Unit, a period of time established pursuant to Section 8 of this
Plan within which the Management Objectives relating to such Performance Share
or Performance Unit are to be achieved.
"Performance Share" means a bookkeeping entry that records the
equivalent of one Common Share awarded pursuant to Section 8
of this Plan.
"Performance Unit" means a bookkeeping entry that records a unit
equivalent to $ 1.00 awarded pursuant to Section 8 of this
Plan.
"Reload Option Rights" means additional Option Rights granted
automatically to an Optionee upon the exercise of Option Rights pursuant to
Section 4(f) of this Plan.
"Restricted Shares" mean Common Shares granted or sold pursuant to
Section 6 of this Plan as to which neither the substantial risk of forfeiture
nor the prohibition on transfers referred to in Section 6 hereof has expired.
"Rule 16b-3" means Rule 16b-3 of the Securities and Exchange
Commission (or any successor rule to the same effect), as in effect from time to
time.
"Spread" means, in the case of a Free-standing Appreciation Right, the
amount by which the Market Value per Share on the date when any such right is
exercised exceeds the Base Price specified in such right or, in the case of a
Tandem Appreciation Right, the amount by which the Market Value per Share on the
date when any such right is exercised exceeds the Option Price specified in the
related Option Right.
"Subsidiary" means a corporation, company or other entity (i) more
than 50 percent of whose outstanding shares or securities (representing the
right to vote for the election of directors or other managing authority) are, or
(ii) which does not have outstanding shares or securities (as may be the case in
a partnership, joint venture or unincorporated association), but more than 50
percent of whose ownership interest (representing the right generally to make
decisions for such other entity) is, now or hereafter owned or controlled
directly or indirectly by the Corporation; provided, however, for purposes of
determining whether any person may be a Participant for purposes of any grant of
Incentive Stock Options, "Subsidiary" means any corporation in which the
Corporation owns or controls directly or indirectly more than 50 percent of the
total combined voting power represented by all classes of stock issued by such
corporation at the time of such grant.
"Tandem Appreciation Right" means an Appreciation Right granted
pursuant to Section 5 of this Plan that is granted in tandem with an Option
Right or any similar right granted under any other plan of the Corporation.
<PAGE>
3. Shares Available Under the Plan. Subject to adjustment as provided in Section
10 of this Plan, the number of Common Shares issued or transferred la) upon the
exercise of Option Rights or Appreciation Rights, (b) as Restricted Shares or
Deferred Shares, (c) in payment of Performance Shares or Performance Units that
shall have been earned or (d) in payment of dividend equivalents paid with
respect to awards made under this Plan, shall not in the aggregate exceed
1,800,000 Common Shares, which may be Common Shares of original issuance or
Common Shares held in treasury or a combination thereof. If any portion of an
outstanding award hereunder shall terminate or expire for any reason (other than
pursuant to exercise), the Common Shares allocable to such portion of such award
may again be subject to an award under the Plan; provided, however, that the
Common Shares allocable to awards that have been the subject to the payment of
dividends or dividend equivalents shall not again be available hereunder. The
number of Common Shares that may be issued under the Plan shall be calculated in
accordance with Rule 16b-3.
4. Option Rights. The Committee may from time to time authorize grants to
Participants of options to purchase Common Shares upon such terms and conditions
as the Committee may determine in accordance with the following provisions:
a. Each grant shall specify the number of Common Shares to which it pertains.
b. Each grant shall specify an Option Price per Common Share, which shall
be determined by the Committee and may be less than the Market Value
per Share on the Date of Grant; provided, however, that the Option
Price per Common Share of any Incentive Stock Option shall not be less
than Fair Market Value per Share on the Date of Grant.
c. Each grant shall specify the form of consideration to be paid in
satisfaction of the Option Price and the manner of payment of such
consideration, which may include (i) cash in the form of currency or
check or other cash equivalent acceptable to the Corporation, (ii)
nonforfeitable, unrestricted Common Shares, which are already owned by
the Optionee and have a value at the time of exercise that is equal to
the Option Price, (iii) any other legal consideration that the
Committee may deem appropriate, including without limitation any form
of consideration authorized under Section 4(d) below, on such basis as
the Committee may determine in accordance with this Plan and (iv) any
combination of the foregoing.
d. On or after the Date of Grant of any Option Rights other than Incentive
Stock Options, the Committee may determine that payment of the
Option Price may also be made in whole or in part in the form of
Restricted Shares or other Common Shares that are subject to risk of
forfeiture or restrictions on transfer. Unless otherwise
determined by the Committee on or after the Date of Grant, whenever
any Option Price is paid in whole or in part by means of any of
the forms of consideration specified in this Section 4(d), the
Common Shares received by the Optionee upon the exercise of the
Option Rights shall be subject to the same risks of forfeiture or
restrictions on transfer as those that applied to the
consideration surrendered by the Optionee; provided, however, that
such risks of forfeiture and restrictions on transfer
shall apply only to the same number of Common Shares received by the
Optionee as applied to the forfeitable or restricted
Common Shares surrendered by the Optionee.
e. Any grant may provide for deferred payment of the Option Price from
the proceeds of sale through a bank or broker on the date of exercise
of some or all of the Common Shares to which the exercise relates.
f. On or after the Date of Grant of any Option Rights, the Committee may
provide for the automatic grant to the Optionee of Reload Option
Rights upon the exercise of Option Rights, including Reload Option
Rights, for Common Shares or any other noncash consideration
authorized under Sections 4(c) and (d) above.
g. Successive grants may be made to the same Participant regardless of
whether any Option Rights previously granted to such Participant
remain unexercised.
h. Each grant shall specify the period or periods of continuous
employment of the Optionee by the Corporation or any Subsidiary that
are necessary before the Option Rights or installments thereof shall
become exercisable, and any grant may provide for the earlier exercise
of such rights in the event of a change in control of the Corporation
or other similar transaction or event.
<PAGE>
i. Option Rights granted under this Plan may be (i) options that are
intended to quality under particular provisions of the Code, including
without limitation Incentive Stock Options, (ii) options that are not
intended to so qualify or (iii) combinations of the foregoing.
j. On or after the Date of Grant of any Option Rights other than
Incentive Stock Options, the Committee may provide for the payment to
the Optionee of dividend equivalents thereon in cash or Common Shares
on a current, deferred or contingent basis, or the Committee may
provide that such equivalents shall be credited against the Option
Price.
k. No Option Right granted under this Plan may be exercised more than 10
years from the Date of Grant.
l. Each grant shall be evidenced by an agreement, which shall be executed
on behalf of the Corporation by any officer thereof (other than the
Optionee under such agreement) and delivered to and accepted by the
Optionee and shall contain such terms and provisions as the Committee
may determine consistent with this Plan.
5. Appreciation Rights. The Committee may also authorize grants to Participants
of Appreciation Rights. An Appreciation Right shall be a right of the
Participant to receive from the Corporation an amount, which shall be determined
by the Committee and shall be expressed as a percentage (not exceeding 100
percent) of the Spread at the time of the exercise of such right. Any grant of
Appreciation Rights under this Plan shall be upon such terms and conditions as
the Committee may determine in accordance with the following provisions:
a. Any grant may specify that the amount payable upon the exercise of an
Appreciation Right may be paid by the Corporation in cash, Common
Shares or any combination thereof and may (i) either grant to the
Participant or reserve to the Committee the right to elect among those
alternatives or (ii) preclude the right of the Participant to receive
and the Corporation to issue Common Shares or other equity securities
in lieu of cash.
b. Any grant may specify that the amount payable upon the exercise of an
Appreciation Right shall not exceed a maximum specified by the
Committee on the Date of Grant.
c. Any grant may specify (i) a waiting period or periods before
Appreciation Rights shall become exercisable and (ii) permissible
dates or periods on or during which Appreciation Rights shall be
exercisable.
d. Any grant may specify that an Appreciation Right may be exercised only
in the event of a change in control of the Corporation or other
similar transaction or event.
e. On or after the Date of Grant of any Appreciation Rights, the
Committee may provide for the payment to the Participant of dividend
equivalents thereon in cash or Common Shares on a current, deferred or
contingent basis.
f. Each grant shall be evidenced by an agreement, which shall be executed
on behalf of the Corporation by any officer thereof and delivered to
and accepted by the Optionee and shall describe the subject
Appreciation Rights, identify any related Option Rights, state that
the Appreciation Rights are subject to all of the terms and conditions
of this Plan and contain such other terms and provisions as the
Committee may determine consistent with this Plan.
g. Regarding Tandem Appreciation Rights only:
Each grant shall provide that a Tandem Appreciation Right may be
exercised only (i) at a time when the related Option Right (or any
similar right granted under any other plan of the Corporation) is also
exercisable and the Spread is positive and (ii) by surrender of the
related Option Right (or such other right) for cancellation.
<PAGE>
Regarding Free-standing Appreciation Rights only:
(i) Each grant shall specify in respect of each
Free-standing Appreciation Right a Base Price per Common
Share, which shall be equal to or greater than the Market
Value per Share or the Date of Grant;
(ii) Successive grants may be made to the same
Participant regardless of whether any Free-standing
Appreciation Rights previously granted to such Participant
remain unexercised;
(iii) Each grant shall specify the period or periods
of continuous employment of the Participant by the Corporation
or any Subsidiary that are necessary before the Free-standing
Appreciation Rights or installments thereof shall become
exercisable, and any grant may provide for the earlier
exercise of such rights in the event of a change in control of
the Corporation or other similar transaction or event; and
(iv) No Free-standing Appreciation
Right granted under this Plan may be exercised more than 10
years from the Date of Grant.
6. Restricted Shares. The Committee may also authorize grants or sales to
Participants of Restricted Shares upon such terms and conditions as the
Committee may determine in accordance with the following provisions:
a. Each grant or sale shall constitute an immediate transfer of the
ownership of Common Shares to the Participant in consideration of the
performance of services, entitling such Participant to dividend, voting
and other ownership rights, subject to the substantial risk of
forfeiture and restrictions on transfer hereinafter referred to.
b. Each grant or sale may be made without additional consideration from
the Participant or in consideration of a payment by the Participant
that is less than the Market Value per Share on the Date of Grant.
c. Each grant or sale shall provide that the Restricted Shares covered
thereby shall be subject to a "substantial risk of forfeiture" within
the meaning of Section 83 of the Code for a period to be determined by
the Committee on the Date of Grant, and any grant or sale may provide
for the earlier termination of such period in the event of a change in
control of the Corporation or other similar transaction or event.
d. Each grant or sale shall provide that, during the period for which such
substantial risk of forfeiture is to continue, the transferability of
the Restricted Shares shall be prohibited or restricted in the manner
and to the extent prescribed by the Committee on the Date of Grant.
Such restrictions may include without limitation rights of repurchase
or first refusal in the Corporation or provisions subjecting the
Restricted Shares to a continuing substantial risk of forfeiture in the
hands of any transferee.
e. Any grant or sale may be further conditioned upon the attainment of
Management Objectives to be established and, if appropriate, adjusted
by the Committee in accordance with the applicable provisions of
Section 8 of this Plan regarding Performance Shares and Performance
Units.
f. Any grant or sale may require that any or all dividends or other
distributions paid on the Restricted Shares during the period of such
restrictions be automatically sequestered and reinvested on an
immediate or deferred basis in additional Common Shares, which may be
subject to the same restrictions as the underlying award or such other
restrictions as the Committee may determine.
g. Each grant or sale shall be evidenced by an agreement, which shall be
executed on behalf of the Corporation by any officer thereof and
delivered to and accepted by the Participant and shall contain such
terms and provisions as the Committee may determine consistent with
this Plan. Unless otherwise directed by the Committee, all certificates
representing Restricted Shares, together with a stock power that shall
be endorsed in blank by the Participant with respect to such shares,
shall be held in custody by the Corporation until all restrictions
thereon lapse.
<PAGE>
7. Deferred Shares. The Committee may also authorize grants or sales of Deferred
Shares to Participants upon such terms and conditions as the Committee may
determine in accordance with the following provisions:
a. Each grant or sale shall constitute the agreement by the Corporation to
issue or transfer Common Shares to the Participant in the future in
consideration of the performance of services, subject to the
fulfillment during the Deferral Period of such conditions as the
Committee may specify.
b. Each grant or sale may be made without additional consideration from
the Participant or in consideration of a payment by the Participant
that is less than the Market Value per Share on the Date of Grant.
c. Each grant or sale shall provide that the Deferred Shares covered
thereby shall be subject to a Deferral Period, which shall be fixed by
the Committee on the Date of Grant, and any grant or sale may provide
for the earlier termination of such period in the event of a change in
control of the Corporation or other similar transaction or event.
d. During the Deferral Period, the Participant shall not have any right to
transfer any rights under the subject award, shall not have any rights
of ownership in the Deferred Shares and shall not have any right to
vote such shares, but the Committee may on or after the Date of Grant
authorize the payment of dividend equivalents on such shares in cash or
additional Common Shares on a current, deferred or contingent basis.
e. Each grant or sale shall be evidenced by an agreement, which shall be
executed on behalf of the Corporation by any officer thereof and
delivered to and accepted by the Participant and shall contain such
terms and provisions as the Committee may determine consistent with
this Plan.
8. Performance Shares and Performance Units. The Committee may also authorize
grants of Performance Shares and Performance Units, which shall become payable
to the Participant upon the achievement of specified Management Objectives, upon
such terms and conditions as the Committee may determine in accordance with the
following provisions:
a. Each grant shall specify the number of Performance Shares or
Performance Units to which it pertains, which may be subject to
adjustment to reflect changes in compensation or other factors.
b. The Performance Period with respect to each Performance Share or
Performance Unit shall be determined by the Committee on the Date of
Grant, shall commence on the Date of Grant and may be subject to
earlier termination in the event of a change in control of the
Corporation or other similar transaction or event.
c. Each grant shall specify the Management Objectives that are to be
achieved by the Participant, which may be described in terms of
Corporation-wide objectives or objectives that are related to the
performance of the individual Participant or the Subsidiary, division,
department or function within the Corporation or Subsidiary in which
the Participant is employed.
d. Each grant shall specify in respect of the specified Management
Objectives a minimum acceptable level of achievement below which no
payment will be made and shall set forth a formula for determining the
amount of any payment to be made if performance is at or above such
minimum acceptable level but falls short of full achievement of the
specified Management Objectives.
e. Each grant shall specify the time and manner of payment of Performance
Shares or Performance Units that shall have been earned, and any grant
may specify that any such amount may be paid by the Corporation in
cash, Common Shares or any combination thereof and may either grant to
the Participant or reserve to the Committee the right to elect among
those alternatives.
<PAGE>
f. Any grant of Performance Shares may specify that the amount payable
with respect thereto may not exceed a maximum specified by the
Committee on the Date of Grant. Any grant of Performance Units may
specify that the amount payable, or the number of Common Shares issued,
with respect thereto may not exceed maximums specified by the Committee
on the Date of Grant.
g. On or after the Date of Grant of Performance Shares, the Committee may
provide for the payment to the Participant of dividend equivalents
thereon in cash or additional Common Shares on a current, deferred or
contingent basis.
h. The Committee may adjust Management Objectives and the related minimum
acceptable level of achievement if, in the sole judgment of the
Committee, events or transactions have occurred after the Date of Grant
that are unrelated to the performance of the Participant and result in
distortion of the Management Objectives or the related minimum
acceptable level of achievement.
i. Each grant shall be evidenced by an agreement, which shall be executed
on behalf of the Corporation by any officer thereof and delivered to
and accepted by the Participant and shall state that the Performance
Shares or Performance Units are subject to all of the terms and
conditions of this Plan and such other terms and provisions as the
Committee may determine consistent with this Plan.
9. Transferability.
a. No Option Right or other derivative security (as that term is used in
Rule 16b-3) awarded under this Plan shall be transferable by a
Participant other than by will or the laws of descent and distribution.
Option Rights and Appreciation Rights shall be exercisable during a
Participant's lifetime only by the Participant or, in the event of the
Participant's legal incapacity, by his guardian or legal representative
acting in a fiduciary capacity on behalf of the Participant under state
law and court supervision.
b. Any award made under this Plan may provide that all or any part of the
Common Shares that are (i) to be issued or transferred by the
Corporation upon the exercise of Option Rights or Appreciation Rights,
upon the termination of the Deferral Period applicable to Deferred
Shares or upon payment under any grant of Performance Shares or
Performance Units, or (ii) no longer subject to the substantial risk of
forfeiture and restrictions on transfer referred to in Section 6 of
this Plan, shall be subject to further restrictions upon transfer.
10. Adjustments. The Committee may make or provide for such adjustments in the
(a) number of Common Shares covered by outstanding Option Rights, Appreciation
Rights, Deferred Shares and Performance Shares granted hereunder, (b) prices per
share applicable to such Option Rights and Appreciation Rights, and (c) kind of
shares covered thereby, as the Committee in its sole discretion may in good
faith determine to be equitably required in order to prevent dilution or
enlargement of the rights of Optionees that otherwise would result from (x) any
stock dividend, stock split, combination of shares, recapitalization or other
change in the capital structure of the Corporation, (y) any merger ,
consolidation, spin-off, spin-out, split-off, split-up, reorganization, partial
or complete liquidation or other distribution of assets, issuance of rights or
warrants to purchase securities or (z) any other corporate transaction or event
having an effect similar to any of the foregoing. Moreover, in the event of any
such transaction or event, the Committee may provide in substitution for any or
all outstanding awards under this Plan such alternative consideration as it may
in good faith determine to be equitable under, the circumstances and may require
in connection therewith the surrender of all awards so replaced. The Committee
may also make or provide for such adjustments in the number of shares specified
in Section 3 or Section 16(c) of this Plan as the Committee in its sole
discretion may in good faith determine to be appropriate in order to reflect any
transaction or event described in this Section 10.
11. Fractional Shares. The Corporation shall not be required to issue any
fractional Common Shares pursuant to this Plan. The Committee may provide for
the elimination of fractions or for the settlement thereof in cash.
<PAGE>
12. Withholding Taxes. To the extent that the Corporation is required to
withhold federal, state, local or foreign taxes in connection with any payment
made or benefit realized by a Participant or other person under this Plan, and
the amounts available to the Corporation for such withholding are insufficient,
it shall be a condition to the receipt of such payment or the realization of
such benefit that the Participant or such other person make arrangements
satisfactory to the Corporation for payment of the balance of such taxes
required to be withheld. At the discretion of the Committee, such arrangements
may include relinquishment of a portion of such benefit. The Corporation and any
Participant or such other person may also make similar arrangements with respect
to the payment of any taxes with respect to which withholding is not required.
13. Certain Terminations of Employment, Hardship and Approved Leaves of Absence.
Notwithstanding any other provision of this Plan to the contrary, in the event
of termination of employment by reason of death, disability, normal retirement,
early retirement with the consent of the Corporation or leave of absence
approved by the Corporation, or in the event of hardship or other special
circumstances, of a Participant who holds an Option Right or Appreciation Right
that is not immediately and fully exercisable, any Restricted Shares as to which
the substantial risk of forfeiture or the prohibition or restriction on transfer
has not lapsed, any Deferred Shares as to which the Deferral Period is not
complete, any Performance Shares or Performance Units that have not been fully
earned, or any Common Shares that are subject to any transfer restriction
pursuant to Section 9(b) of this Plan, the Committee may in its sole discretion
take any action that it deems to be equitable under the circumstances or in the
best interests of the Corporation, including without limitation waiving or
modifying any limitation or requirement with respect to any award under this
Plan.
14. Foreign Employees. In order to facilitate the making of any grant or
combination of grants under this Plan, the Committee may provide for such
special terms for awards to Participants who are foreign nationals, or who are
employed by the Corporation or any Subsidiary outside of the United States of
America, as the Committee may consider necessary or appropriate to accommodate
differences in local law, tax policy or custom. Moreover, the Committee may
approve such supplements to, or amendments, restatements or alternative versions
of, this Plan as it may consider necessary or appropriate for such purposes
without thereby affecting the terms of this Plan as in effect for any other
purpose; provided, however, that no such supplements, amendments, restatements
or alternative versions shall include any provisions that are inconsistent with
the terms of this Plan, as then in effect, unless this Plan could have been
amended to eliminate such inconsistency without further approval by the
shareholders of the Corporation.
15. Administration of the Plan.
a. This Plan shall be administered by a committee of members of the Board
which shall satisfy the disinterested administration requirements of
Rule 16b-3. A majority of the Committee shall constitute a quorum, and
the acts of the members of the Committee who are present at any meeting
thereof at which a quorum is present, or acts unanimously approved by
the members of the Committee in writing, shall be the acts of the
Committee.
b. The interpretation and construction by the Committee of any provision
of this Plan or of any agreement, notification or document evidencing
the grant of Option Rights, Appreciation Rights, Restricted Shares,
Deferred Shares, Performance Shares or Performance Units, and any
determination by the Committee pursuant to any provision of this Plan
or any such agreement, notification or document, shall be final and
conclusive. No member of the Committee shall be liable for any such
action taken or determination made in good faith.
16. Amendments and Other Matters.
a. This Plan may be amended from time to time by the Committee, but no
such amendment shall increase the maximum number of shares specified in
Section 3 of this Plan except as expressly authorized by this Plan, or
cause Rule 16b-3 to become inapplicable to this Plan, without the
further approval of the shareholders of the Corporation.
b. With the concurrence of the affected Optionee, the Committee may cancel
any agreement evidencing Option Rights or any other award granted under
this Plan. In the event of such cancellation, the Committee may
authorize the granting of new Option Rights or other awards hereunder,
which may or may not cover the same number of Common Shares that had
been the subject of the prior award, in such manner, at such Option
Price and subject to such other terms, conditions and discretions as
would have been applicable under this Plan had the cancelled Option
Rights or other award not been granted.
<PAGE>
d. The Committee may condition any grant under this Plan upon the
surrender by the Participant for cancellation of any or all option
rights or restricted stock outstanding under this Plan or any other
plan of the Corporation.
e. This Plan shall not confer upon any Participant any right with respect
to continuance of employment or other service with the Corporation or
any Subsidiary and shall not interfere in any way with any right that
the Corporation or any Subsidiary would otherwise have to terminate any
Participant's employment or other service at any time.
f. (i) To the extent that any provision of this Plan would prevent any
Option Right that was intended to qualify under particular provisions
of the Code from so qualifying, such provision of this Plan shall be
null and void with respect to such Option Right; provided, however,
that such provision shall remain in effect with respect to other Option
Rights, and there shall be no further effect on any provision of this
Plan.
(ii) If this Plan is not approved by the holders of a majority
of the shares of stock of the Corporation represented at a
meeting and entitled for vote thereon within twelve (12)
months after this Plan is adopted by the Board, this Plan and
any awards made hereunder shall be null and void.
(iii) Any award that may be made pursuant to an amendment to
this Plan that shall have been adopted without the approval of
the shareholders of the Corporation shall be null and void if
it is subsequently determined that such approval was required
in order for Rule 16b-3 to remain applicable to this Plan.
6. This Plan is intended to comply with and be subject to Rule 16b-3 as in
effect prior to May 1, 1991. The Committee may at any time elect that
this Plan shall be subject to Rule 16b-3 as in effect on and after May
1, 1991.
JONES, DAY, REAVIS & POGUE
3500 SUNTRUST PLAZA
303 Peachtree Street
Atlanta, GA 30308
October 29, 1999
Atlantic American Corporation
4370 Peachtree Road
Atlanta, Georgia 30319
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel for Atlantic American
Corporation, a Georgia corporation (the "Company"), in connection with the
registration under the Securities Act of 1933, as amended, pursuant to a
Registration Statement on Form S-8, of 1,400,000 shares (the "Shares") of the
Company's Common Stock, par value $1.00 per share, issuable pursuant to the
Company's 1992 Incentive Plan (the "Plan").
We have examined such documents, records and matters of law as
we have deemed necessary for purposes of rendering this opinion. Based upon and
subject to the foregoing, we are of the opinion that the Shares have been duly
authorized and, when issued in accordance with the Plan at not less than the par
value of the Shares, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5
to the Company's Registration Statement on Form S-8.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
JONES, DAY, REAVIS & POGUE
EXHIBIT 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated March 26, 1999,
incorporated by reference in Atlantic American Corporation's Form 10-K for
the year ended December 31, 1998, and to all references to our firm
included in this Registration Statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
October 27, 1999
EXHIBIT 23 (c)
CONSENT OF ERNST & YOUNG LLP
INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of Atlantic American Corporation, with respect to the
1992 Incentive Plan of our report dated September 7, 1999, with respect to
the combined financial statements of Association Casualty Insurance
Company and Association Risk Management General Agency, Inc., included in
Atlantic American Corporation's Current Report on Form 8-K/A dated September
14, 1999.
Austin, Texas /s/ Ernst & Young LLP
October 27, 1999
