<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CAPITAL HOLDINGS, INC.
(Exact Name of Registrant as specified in its Charter)
OHIO 34-1588902
(State of Incorporation) (IRS Employer Identification No.)
5520 MONROE STREET
SYLVANIA, OHIO 43560
(Address of principal executive offices, including zip code)
CAPITAL HOLDINGS, INC. INCENTIVE STOCK OPTION PLAN
(Full Title of the Plan)
MR. JOHN S. SZUCH
CHAIRMAN AND CEO
CAPITAL HOLDINGS, INC.
5520 MONROE STREET
SYLVANIA, OHIO 43560
(419) 885-7379
(Name, address and telephone number of agent for service)
COPIES TO:
EDWIN L. HERBERT, ESQ.
WERNER & BLANK CO., L.P.A.
7205 WEST CENTRAL AVENUE
TOLEDO, OHIO 43617
(419) 841-8051
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) per Share(2) Price(2) Fee
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 477,000 $28.75 $13,713,750.00 $3,813.00
</TABLE>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares of common stock, no par value ("Common
Stock"), of Capital Holdings, Inc. (the "Company" or "Registrant") registered
hereby as a result of a stock split, stock dividend or similar adjustment of the
outstanding Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee, which
has been calculated pursuant to Rule 457(h) under the Securities Act of 1933,
("Securities Act"), based upon the average of the high and low prices of the
Common Stock as reported on the Over-the-Counter Electronic Bulletin Board on
November 15, 1999.
<PAGE> 2
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998.
(b) All reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), since
the end of the fiscal year covered by the Form 10-K referred to in clause (a)
above.
(c) The description of the Common Stock of the Company contained in
the Company's registration statement on Form 8-A filed on April 30, 1993.
(d) All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1701.13(E) of the Ohio Revised Code provides that a corporation
may indemnify or agree 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, whether civil, criminal, administrative, or investigative,
other than an action by or in the right of the corporation, by reason of the
fact that he 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, trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's 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 interests of the
corporation, and, with respect to any criminal action or proceeding, if he had
no reasonable cause to believe his conduct was unlawful.
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The termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, that he had reasonable cause to believe that his conduct was
unlawful. Section 1701.13(E)(2) further specifies that a corporation may
indemnify or agree 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
or suit by or in the right of the corporation to procure a judgment in its
favor, by reason of the fact that he 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, trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall be made
in respect of (a) any claim, issue, or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his duty to the corporation unless, and only to the extent, that the court of
common pleas or the court in which such action or suit was brought determines,
upon application, that, despite the adjudication of liability, but in view of
all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses as the court of common pleas or such other court
shall deem proper, and (b) any action or suit in which the only liability
asserted against a director is pursuant to Section 1701.95 of the Ohio Revised
Code concerning unlawful loans, dividends and distribution of assets.
In addition, Section 1701.13(E) requires a corporation to pay any
expenses, including attorney's fees, of a director in defending an action, suit,
or proceeding referred to above as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, upon receipt of an undertaking
by or on behalf of the director in which he agrees to both (1) repay such amount
if it is proved by clear and convincing evidence that his action or failure to
act involved an act or omission undertaken with deliberate intent to cause
injury to the corporation or undertaken with reckless disregard for the best
interests of the corporation and (2) reasonably cooperate with the corporation
concerning the action, suit, or proceeding. The indemnification provided by
Section 1701.13(E) shall not be deemed exclusive of any other rights to which
those seeking indemnification may be entitled under the articles of
incorporation or code of regulations of Registrant.
The Articles of Incorporation of Registrant provide that it has the
power to indemnify each director and each officer of Registrant, and each person
employed by it who serves at its written request as a director, trustee,
officer, employee or agent of another corporation, domestic or foreign,
nonprofit or for profit, to the full extent permitted by Ohio law. The
Registrant's Articles of Incorporation provide that it shall indemnify its
directors for monetary damages resulting from breach of a fiduciary duty as
director, with the exception of liability for breach of the duty of loyalty,
acts or omissions not in good faith or involving intentional misconduct or
knowing violations of law, illegal payment of dividends, or transactions
involving an improper personal benefit.
Registrant carries directors' and officers' liability insurance
coverage which insures its directors and officers and the directors and officers
of its subsidiaries in certain circumstances.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8:
Number Exhibit
4.1* Articles of Incorporation of Capital Holdings, Inc.
4.2** Amendment to Articles of Incorporation of Capital
Holdings, Inc.
5 Opinion of Werner & Blank Co., L.P.A. as to the legality
of the securities
23.1 Consent of Werner & Blank Co., L.P.A.
(contained in the opinion included as Exhibit 5)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney
* Incorporated by reference to the Registrant's filing on Form S-1 (File No.
33-46573) Registration Statement, as amended.
** Incorporated by reference to the Registrant's filing on Form S-3 (File No.
333-85837) Registration Statement, as amended.
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 1933;
(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;
(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 Paragraph (a)(l)(i) and (a)(l)(ii)
shall 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 registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in
the Registration Statement
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(2) 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.
(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
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item
6, 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 proceedings) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sylvania, State of Ohio, on November 12,1999.
By: /s/ John S. Szuch
-----------------
John S. Szuch
Chairman and Chief Executive Officer
(Duly Authorized Representative)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ John S. Szuch
- ----------------------------
John S. Szuch Chairman of the Board of Directors, November 12, 1999
Chief Executive Officer and Director
(Principal Executive Officer)
/s/ David L. Mead
- ----------------------------
David L. Mead Senior Vice President and November 12, 1999
Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Robert A. Sullivan
- ----------------------------
Robert A. Sullivan President, Chief Operating Officer, November 12, 1999
Secretary and Director
/s/ Bruce K. Lee
- ----------------------------
Bruce K. Lee Executive Vice President and Director November 12, 1999
</TABLE>
Directors*
George A. Isaac, III
W. Geoffrey Lyden, III
James D. Sayre
James M. Appold
David P. Bennett
Yale M. Feniger
Harley J. Kripke
Thomas W. Noe
Michael C. Landin
Ronald R. Langenderfer
Noel S. Romanoff
Scott J. Savage
* for each of the above directors pursuant to power of attorney filed with this
Registration Statement.
By: /s/ John S. Szuch November 12, 1999
---------------------------------------- -----------------
(pursuant to power of attorney) Date
<PAGE> 7
EXHIBIT INDEX
4.1* Articles of Incorporation of Registrant
4.2** Amendment to Articles of Incorporation of Registrant
5 Opinion of Werner & Blank Co., L.P.A. as to validity of
securities registered
23.1 Consent of Werner & Blank Co., L.P.A., regarding opinion
(contained in Exhibit 5)
23.2 Consent of Ernst & Young LLP, independent auditors for the
Registrant
24 Power of Attorney
* Incorporated by reference to the Registrant's filing on Form S-1 (File No.
33-46573) Registration Statement, as amended.
** Incorporated by reference to the Registrant's filing on Form S-3 (File No.
333-85837) Registration Statement, as amended.
<PAGE> 1
EXHIBIT 5
November 12, 1999
Capital Holdings, Inc.
5520 Monroe Street
Sylvania, Ohio 43560
Re: Incentive Stock Option Plan - Issuance of Shares
Gentlemen:
This letter is written in connection with the Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission (the "Commission"), pursuant to the Securities Act of 1933,
as amended (the "Securities Act"), for the purpose of registering 477,000 shares
(the "Shares") of common stock, no par value (the "Common Stock"), of Capital
Holdings, Inc. (the "Company"), to be offered and sold pursuant to the Company's
Incentive Stock Option Plan adopted in 1996 (the "Plan").
For purposes of rendering the opinion expressed below, I have examined
and relied upon originals, or copies certified to my satisfaction, of such
records, documents, certificates of public officials and officers of the
Company, and other documents and instruments as I have deemed appropriate.
In conducting my examination, I have assumed, without investigation,
the genuineness of all signatures, the correctness of all certificates, the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified or photostatic
copies and the authenticity of the originals of such copies, and the accuracy
and completeness of all records made available to me by the Company. In
rendering my opinion below, I have assumed, without investigation, that any
certificate or other document on which I have relied that was given or dated
earlier than the date of this letter continued to remain accurate insofar as
relevant to such opinion, from such earlier date through and including the date
of this letter. In addition, I have assumed, without investigation, the accuracy
of the representations and statements as to factual matters made in the
Registration Statement and in the prospectus to be delivered to each shareholder
and employee of the Company participating in the Plan (the "Prospectus"), and
the accuracy of representations and statements as to factual matters made by the
officers and employees of the Company and public officials.
<PAGE> 2
Capital Holdings, Inc.
November 12, 1999
Page 2
The opinion expressed below is subject, without investigation, to the
following assumptions:
A. The Registration Statement will become automatically effective on
the day of the filing thereof with the Commission pursuant to Rule 462 under the
Securities Act, and, together with any subsequent amendments thereto, will
continue to remain effective under the Securities Act, throughout all periods
relevant to the opinion expressed below.
B. The Prospectus will fulfill, and, together with any subsequent
amendments or supplements thereto, will continue to fulfill all of the
requirements of the Securities Act, throughout all periods relevant to the
opinion expressed below.
C. The resolutions of the board of directors and shareholders
authorizing the adoption of the Plan, the amendments to the Plan, and the offer,
sale and issuance of the Shares pursuant to the Plan (the "Authorizing
Resolutions") will not be revoked or rescinded, and no amendment, modification,
or other alteration of the Authorizing Resolutions will cause such resolutions,
as amended, to deviate materially in substance from the provisions of the
Authorizing Resolutions as in effect on the date hereof.
D. All offers, sales and issuances of the Shares will be made in a
manner (i) which complies with the terms, provisions and conditions described in
the Prospectus and any amendments or supplements to the Prospectus, and (ii)
which is within the scope of the Authorizing Resolutions.
E. All offers, sales and issuances of the Shares will be made in
accordance with the terms, provisions, and conditions of the Plan.
F. All offers, sales and issuances of the Shares will comply with the
securities laws of the states having jurisdiction thereover.
G. At all times relevant to the opinion set forth below, the Company
has been and will remain in good standing in Ohio and in each foreign
jurisdiction where qualification is required.
H. No subsequent amendment, modification or other alteration of the
Plan, the Prospectus or the Registration Statement will cause the terms,
provisions and conditions relating to the offer, sale and issuance of the Shares
pursuant thereto to deviate materially in substance from said terms, provisions
and conditions as described therein on the date hereof.
The opinion expressed below is subject to the following qualifications:
(a) The opinion expressed below is limited to the matters expressly set
forth in this opinion letter, and no opinion is to be implied or may be inferred
beyond the matters expressly so stated.
<PAGE> 3
Capital Holdings, Inc.
November 12, 1999
Page 3
(b) I disclaim any obligation to update this opinion letter for events
occurring after the date of this opinion letter.
(c) The opinion expressed below is limited to the effect of the General
Corporation Law of the State of Ohio; accordingly, no opinion is expressed with
respect to the laws of any other jurisdiction, or the effect thereof, on the
offer, sale or issuance of the Shares.
Based upon and subject to the foregoing, I am of the opinion that the
Shares, when issued, will be validly issued, fully paid and nonassessable.
* * *
I hereby consent to the filing of this opinion letter as an exhibit to
the Registration Statement. This opinion letter is rendered solely for your
benefit in connection with the Registration Statement. Except as provided in
this opinion letter, without my prior written consent, this opinion letter may
not be: (i) relied upon by any other person or for any other purpose; (ii)
quoted in whole or in part or otherwise referred to in any report or document;
or (iii) furnished (the original or copies thereof) to any other person.
Sincerely,
/s/ Werner & Blank Co., L.P.A.
Werner & Blank Co., L.P.A.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Capital Holdings, Inc. Incentive Stock
Option Plan of our report dated January 15, 1999 with respect to the
consolidated financial statements and schedules of Capital Holdings, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1998,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Detroit, Michigan
November 12, 1999
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
DIRECTORS OF CAPITAL HOLDINGS, INC.
Know all men by these presents that each person whose name is signed
below has made, constituted and appointed, and by this instrument does make,
constitute and appoint John S. Szuch his true and lawful attorney with full
power of substitution and resubstitution to affix for him and in his name, place
and stead, as attorney-in-fact, his signature as director or officer, or both,
of Capital Holdings, Inc., an Ohio corporation (the "Company"), to a
Registration Statement on Form S-8 registering under the Securities Act of 1933,
common stock to be sold under the Capital Holdings, Inc. Incentive Stock Option
Plan, and to any and all amendments, post-effective amendments and exhibits to
that Registration Statement, and to any and all applications and other documents
pertaining thereto, giving and granting to such attorney-in-fact full power and
authority to do and perform every act and thing whatsoever necessary to be done
in the premises, as fully as he might or could do if personally present, and
hereby ratifying and confirming all that said attorney-in-fact or any such
substitute shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed at Sylvania,
Ohio, this 9th day of November, 1999.
/s/ James M. Appold Director
- -------------------
James M. Appold
/s/ David P. Bennett Director
- --------------------
David P. Bennett
/s/ Yale M. Feniger Director
- -------------------
Yale M. Feniger
/s/ George A. Isaac, III Director
- ------------------------
George A. Isaac, III
/s/ Harley J. Kripke Director
- --------------------
Harley J. Kripke
/s Michael C. Landin Director
- --------------------
Michael C. Landin
/s/ Ronald R. Langenderfer Director
- --------------------------
Ronald R. Langenderfer
Director
- --------------------------------
Joel A. Levine
/s/ W. G. Lyden, III Director
- --------------------
W. G. Lyden, III
/s/ Thomas W. Noe Director
- -----------------
Thomas W. Noe
/s/ Noel S. Romanoff Director
- --------------------
Noel S. Romanoff
/s/ Scott J. Savage Director
- -------------------
Scott J. Savage
/s/ James D. Sayre Director
- ------------------
James D. Sayre
