As filed with the Securities and Exchange Commission on April 14, 2000.
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________
STEWART ENTERPRISES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
LOUISIANA 72-0693290
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
110 VETERANS MEMORIAL BOULEVARD
METAIRIE, LOUISIANA 70005
(ADDRESS, INCLUDING ZIP CODE, OF
PRINCIPAL EXECUTIVE OFFICES)
STEWART ENTERPRISES, INC. 2000 INCENTIVE COMPENSATION PLAN
STEWART ENTERPRISES, INC. 2000 DIRECTORS' STOCK OPTION PLAN
STEWART ENTERPRISES, INC. EMPLOYEES' RETIREMENT TRUST (A PROFIT SHARING
PLAN) AND TRUST AGREEMENT
(FULL TITLES OF THE PLANS)
__________
WILLIAM E. ROWE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
STEWART ENTERPRISES, INC.
POST OFFICE BOX 19925
NEW ORLEANS, LOUISIANA 70179
(504) 837-5880
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy to:
MARGARET F. MURPHY
JONES, WALKER, WAECHTER, POITEVENT, CARRERE & DENEGRE, L.L.P.
201 ST. CHARLES AVENUE
NEW ORLEANS, LOUISIANA 70170-5100
CALCULATION OF REGISTRATION FEE
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Title of | Amount | Proposed | Proposed |
securities to | to be | maximum | maximum | Amount
be registered | registered(1) | offering | aggregate | of
| | price | offering |registration
| | per share | price | fee
- -------------------------------------------------------------------------------
Class A Common | Incentive Plan: | | |
Stock (no par | 1,873,732 Shares|$4.281250(2)|$ 8,021,915.13(2)|$2,117.79(2)
value per | 1,126,268 Shares|$4.343750(3)|$ 4,892,226.63(3)|$1,291.55(3)
share) | | | |
| Directors' Plan: | | |
| 200,000 Shares|$4.296875(2)|$ 859,375.00(2)|$ 226.88(2)
| 150,000 Shares|$4.343750(3)|$ 651,562.50(3)|$ 172.01(3)
| Profit Sharing | | |
| Plan: | | |
| 2,000,000 Shares|$4.343750(3)|$ 8,687,500.00(3)|$2,293.50(3)
Total Class A | ----------------| |-------------- |---------
Common Stock | 5,350,000 Shares| |$23,112,579.26 |$6,101.73
| | | |
Participation | | | |
interests in | | | |
the Profit | | | |
Sharing Plan | -- |$ -- |$ -- |$ --
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(1)Upon a stock split, stock dividend or similar transaction in the future and
during the effectiveness of this Registration Statement involving Class A
Common Stock of the Company, the number of shares registered shall be
automatically increased to cover the additional shares in accordance with
Rule 416(a) under the Securities Act of 1933.
(2)Computed in accordance with Rule 457(h)(1) under the Securities Act of 1933,
based on the price at which outstanding options granted under the Plans may
be exercised.
(3)Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based on the
average of the high and low price per share of the Class A Common Stock on
The Nasdaq Stock Market, Inc. on April 12, 2000.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by Stewart Enterprises,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended October 31, 1999, filed pursuant to Section 13 of the Securities
Exchange Act of 1934 (the "Exchange Act");
(b) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended January 31, 2000, filed pursuant to Section 13 of the
Exchange Act;
(c) The Company's Current Report on Form 8-K filed November 4, 1999,
pursuant to Section 13 of the Exchange Act;
(d) The Company's Current Report on Form 8-K filed November 19, 1999,
pursuant to Section 13 of the Exchange Act;
(e) The Company's Current Report on Form 8-K filed December 14, 1999,
pursuant to Section 13 of the Exchange Act;
(f) The Company's Current Report on Form 8-K filed December 17, 1999,
pursuant to Section 13 of the Exchange Act;
(g) The Company's Current Report on Form 8-K filed January 6, 2000,
pursuant to Section 13 of the Exchange Act;
(h) The Company's Current Report on Form 8-K filed March 16, 2000,
pursuant to Section 13 of the Exchange Act; and
(i) The description of the Class A Common Stock of the Company
included in Item 1 of the Company's Registration Statement on Form 8-A
dated September 5, 1991, filed under the Exchange Act, incorporated by
reference from pages 37 through 39 of the Company's Registration Statement
on Form S-1, Registration No. 33-42336 filed under the Securities Act of
1933.
All documents filed by the Company and the Stewart Enterprises,
Inc. Employees' Retirement Trust (A Profit Sharing Plan) and Trust
Agreement (the "Profit Sharing Plan") with the Commission pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the
filing of a post-effective amendment that
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indicates that all securities offered have been sold or that deregisters
all securities then remaining unsold shall, except to the extent
otherwise provided by Regulation S-K or any other rule promulgated by the
Commission, be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of such documents.
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 83 of the Louisiana Business Corporation Law gives Louisiana
corporations broad powers to indemnify their present and former directors
and officers and those of affiliated corporations against expenses incurred
in the defense of any lawsuit to which they are made parties by reason of
being or having been such directors or officers; gives a director or
officer who successfully defends an action the right to be so indemnified,
subject to specific conditions and exclusions; and authorizes Louisiana
corporations to buy directors' and officers' liability insurance. Such
indemnification is not exclusive of any other rights to which those
indemnified may be entitled under any by-law, agreement, authorization of
shareholders or otherwise.
Our By-laws make mandatory the indemnification of directors and
officers permitted by the Louisiana Business Corporation Law. The standard
to be applied in evaluating any claim for indemnification (excluding claims
for expenses incurred in connection with the successful defense of any
proceeding or matter therein for which indemnification is mandatory without
reference to any such standard) is whether the claimant acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the corporation. With respect to any criminal action or
proceeding, the standard is that the claimant had no reasonable cause to
believe the conduct was unlawful. No indemnification is permitted in
respect of any claim, issue or matter as to which a director or officer
shall have been adjudged by a court of competent jurisdiction to be liable
for willful or intentional misconduct or to have obtained an improper
personal benefit, unless, and only to the extent that the court shall
determine upon application that, in view of all the circumstances of the
case, he is fairly and reasonably entitled to indemnity for such expenses
that the court shall deem proper.
We have in effect a directors' and officers' liability insurance
policy that provides for indemnification of our officers and directors
against losses arising from claims asserted against them in their
capacities as officers and directors, subject to limitations and conditions
set forth in such policy.
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We have entered into indemnity agreements with each of our directors
and executive officers, pursuant to which we have agreed under certain
circumstances to purchase and maintain directors' and officers' liability
insurance, unless such insurance is not reasonably available or, in the
reasonable judgment of the Board of Directors, there is insufficient
benefit to us from such insurance. The agreements also provide that we
will indemnify each director and executive officer against any costs and
expenses, judgments, settlements and fines incurred in connection with any
claim involving him by reason of his position as director or officer that
are in excess of the coverage provided by any such insurance, provided that
he meets certain standards of conduct.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5 Opinion of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P. (In lieu of filing an opinion of counsel concerning
compliance with the requirements of the Employee Retirement
Income Security Act of 1974 or an Internal Revenue Service
determination letter that the Profit Sharing Plan is qualified
under Section 401 of the Internal Revenue Code, the undertaking
permitted by Item 8(b) of Registration Statement on Form S-8 is
included in Item 9(d) of this Registration Statement.)
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P. (included in Exhibit 5).
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 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.
(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.
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(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 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 of 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.
(d) The registrant will submit the Profit Sharing Plan and any
amendment thereto to the Internal Revenue Service (the "IRS") in a timely
manner and will make all changes required by the IRS in order to qualify
the Profit Sharing Plan.
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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 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 Metairie, State of
Louisiana, on April 6, 2000.
STEWART ENTERPRISES, INC.
By: /S/ WILLIAM E. ROWE
-----------------------------------
William E. Rowe
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints William E. Rowe and Kenneth C.
Budde, or either one of them, his true and lawful attorney-in-fact and
agent, with full power of substitution, 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
attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent 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 by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/S/ FRANK B. STEWART, JR. Chairman of the Board April 6, 2000
- -------------------------
Frank B. Stewart, Jr.
/S/ WILLIAM E. ROWE President, Chief Executive April 6, 2000
- ------------------------- Officer and a Director
William E. Rowe
(Principal Executive
Officer)
/S/ KENNETH C. BUDDE Executive Vice President, April 6, 2000
- ------------------------- Chief Financial Officer
Kenneth C. Budde and a Director
(Principal Financial
Officer)
S-1
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/S/ MICHAEL G. HYMEL Vice President - Corporate April 6, 2000
- ------------------------- Controller and
Michael G. Hymel Chief Accounting Officer
(Principal Accounting
Officer)
/S/ DARWIN C. FENNER Director April 6, 2000
- -------------------------
Darwin C. Fenner
- ------------------------- Director April ___, 2000
Dwight A. Holder
/S/ JOHN P. LABORDE Director April 6, 2000
- -------------------------
John P. Laborde
/S/ JAMES W. MCFARLAND Director April 6, 2000
- -------------------------
James W. McFarland
/S/ MICHAEL O. READ Director April 6, 2000
- -------------------------
Michael O. Read
THE PROFIT SHARING PLAN. Pursuant to the requirements of the
Securities Act of 1933, the Profit Sharing Plan Administrator has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Metairie, State of
Louisiana, on April 6, 2000.
STEWART ENTERPRISES, INC.
(Profit Sharing Plan Administrator)
By: /S/ KENNETH C. BUDDE
-------------------------------
Kenneth C. Budde
Executive Vice President and
Chief Financial Officer
S-2
JONES WALKER
WAECHTER POITEVENT
CARRERE & DENEGRE, L.L.P.
April 13, 2000
Stewart Enterprises, Inc.
110 Veterans Memorial Boulevard
Metairie, Louisiana 70005
Gentlemen:
We have acted as counsel for Stewart Enterprises, Inc., a Louisiana
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") to be
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to the offering by the Company
of 3,000,000 shares (the "Incentive Shares") of the Class A Common Stock of
the Company, no par value per share (the "Common Stock"), pursuant to the
terms of the Stewart Enterprises, Inc. 2000 Incentive Compensation Plan
(the "Incentive Plan"), 350,000 shares (the "Directors' Shares") of Common
Stock pursuant to the terms of the Stewart Enterprises, Inc. 2000
Directors' Stock Option Plan (the "Directors' Plan"), and 2,000,000 shares
(the "Profit Sharing Shares") of Common Stock pursuant to the terms of the
Stewart Enterprises, Inc. Employees' Retirement Trust (A Profit Sharing
Plan) and Trust Agreement (the "Profit Sharing Plan").
Based upon the foregoing and upon our examination of such matters as
we deem necessary to furnish this opinion, we are of the opinion that the
Incentive Shares, the Directors' Shares, and the Profit Sharing Shares have
been duly authorized and, when issued upon the terms described in the
Incentive Plan, the Directors' Plan, and the Profit Sharing Plan,
respectively, and the Registration Statement, will be validly issued and
outstanding, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
JONES, WALKER, WAECHTER,
POITEVENT, CARRERE & DENEGRE, L.L.P.
By: /S/ MARGARET F. MURPHY
---------------------------------
Margaret F. Murphy, Partner
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 15, 1999 relating to the
financial statements, which appears in the 1999 Annual Report to
Shareholders of Stewart Enterprises, Inc. which is incorporated by
reference in Stewart Enterprises' Annual Report on Form 10-K for the year
ended October 31, 1999. We also consent to the incorporation by reference
of our report dated December 15, 1999 relating to the financial statement
schedule, which appears in such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
New Orleans, Louisiana
April 11, 2000
