As filed with the Securities and Exchange Commission on March 25, 1998.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
PENNCORP FINANCIAL GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-3543540
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
590 Madison Avenue, 38th Floor SCOTT D. SILVERMAN, ESQ.
New York, New York 10022 Senior Vice President,
(Address, Including Zip Code, of General Counsel and Secretary
Registrant's Principal Executive PennCorp Financial Group, Inc.
Offices) 590 Madison Avenue, 38th Floor
New York, New York 10022
(212) 896-2700
(Name, Address, Including Zip Code, and
Telephone Number, Including Area Code, of
Agent for Service)
William M. McCormick Warrant Plan
(Full Title of the Plan)
CALCULATION OF REGISTRATION FEE
<TABLE>
===================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered(1) Registered(1) Per Share(2) Offering Price(2) Registration Fee
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 Par Value 570,760 Shares $4.00 $2,283,040.00 $673.50
===================================================================================================
<FN>
(1) Shares of common stock, $.01 par value per share ("Common Stock"), of
PennCorp Financial Group, Inc. (the "Company") being registered hereby
relate to the William M. McCormick Warrant Plan (the "Plan"). Pursuant to
Rule 416 promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), there is also being registered an indeterminate amount
of additional shares of Common Stock as may become issuable as a result of
stock splits, stock dividends or similar transactions.
(2) In accordance with section (h)(1) of Rule 457 promulgated under the
Securities Act, calculated on the basis of the exercise price of a warrant
to purchase 570,760 shares of Common Stock granted under the Plan.
</FN>
</TABLE>
1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this Registration
Statement:
(a) The Company's Annual Report on Form 10-K (File No. 1-11422) for the
year ended December 31, 1996, as amended by Form 10-K/A (Amendments Nos. 1, 2, 3
and 4), filed pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), which contains audited financial statements for
the year ended December 31, 1996.
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the Annual
Report referred to in (a) above.
(c) The description of the Company's Common Stock, which is contained in
the Company's Registration Statement on Form 8-A (File No. 1-11422) filed under
Section 12(b) of the Exchange Act, including any amendments or reports filed for
the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
of the shares of Common Stock offered have been sold or which deregisters all of
such shares then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement 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 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.
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<PAGE>
Item 5. Interests of Named Experts and Counsel.
Certain legal matters in connection with the shares of Common Stock
offered pursuant to the Plan have been passed upon for the Company by Scott D.
Silverman, Senior Vice President, General Counsel and Secretary of the Company.
As of March 25, 1998, Mr. Silverman held 23,500 shares of Common Stock, 6,581
shares of restricted Common Stock and options to purchase an aggregate of 60,000
shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
Delaware law authorizes corporations to limit or to eliminate the personal
liability of directors to corporations and their stockholders for monetary
damages for breach of directors' fiduciary duty of care. The Company's
Certificate of Incorporation limits the liability of the Company's directors to
the Company or its stockholders to the fullest extent permitted by the Delaware
statute as in effect from time to time. Specifically, directors of the Company
will not be personally liable for monetary damages for breach of a director's
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for unlawful payments of dividends or unlawful stock
repurchases or redemptions as provided in the Delaware law, or (iv) for any
transaction from which the director derived an improper personal benefit.
The Certificate of Incorporation of the Company provides that the Company
shall indemnify its officers and directors and former officers and directors to
the fullest extent permitted by the General Corporation Law of the State of
Delaware. Pursuant to the provisions of Section 145 of the General Corporation
Law of the State of Delaware, the Company has the power 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
Company) by reason of the fact that the person is or was a director, officer,
employee, or agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action,
suit or proceeding if the person acted in good faith and in a manner the person
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 reasonable cause
to believe the person's conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, 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 which the person
reasonable believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that the person's conduct was unlawful.
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<PAGE>
The power to indemnify applies to actions brought by or in the right of
the Company as well, but only to the extent of defense and settlement expenses
and not to any satisfaction of a judgment or settlement of the claim itself, and
with the further limitation that in such actions no indemnification shall be
made in the event such person shall have been adjudged to be liable to the
Company unless and only to the extent that the court determines that, in view of
all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses the court shall deem proper.
The statute further specifically provides that the indemnification
authorized thereby shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions referred to above, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer, or controlling person of the Company in
the successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Third Restated Certificate of Incorporation of PennCorp Financial Group,
Inc. (Incorporated by reference to the Company's Registration Statement on
Form S-8 (Registration No. 333- ) as filed with the Securities and
Exchange Commission on March 25, 1998).
4.2 Certificate of Designation of $3.375 Convertible Preferred Stock of
PennCorp Financial Group, Inc. (Incorporated by reference to the Company's
Annual Report on Form 10-K for the year ended December 31, 1995).
II-3
<PAGE>
4.3 Certificate of Designation of Series C Preferred Stock of PennCorp
Financial Group, Inc. (Incorporated by reference to the Company's Annual
Report on Form 10-K for the year ended December 31, 1995).
4.4 Certificate of Designation of $3.50 Series II Convertible Preferred Stock
of PennCorp Financial Group, Inc. (Incorporated by reference to the
Company's Registration Statement on Form S-3 (Registration No. 333-13285),
as filed with the Securities and Exchange Commission on October 2, 1996).
4.5 Restated By-laws of PennCorp Financial Group, Inc. (Incorporated by
reference to the Company's Annual Report on Form 10-K for the year ended
December 31, 1992).
4.6 Employment Agreement, dated as of August 19, 1990, between PennCorp
Financial Group, Inc. and William M. McCormick. (Incorporated by reference
to the Company's Registration Statement on Form S-1 (Registration No.
33-50530), as filed with the Securities and Exchange Commission on August
6, 1992).
5.1 Opinion of Scott D. Silverman.*
15.1 Letter from KPMG Peat Marwick LLP regarding unaudited interim financial
information.*
23.1(a) Consent of KPMG Peat Marwick LLP.*
23.1(b) Consent of KPMG Peat Marwick LLP.*
23.2 Consent of Scott D. Silverman (included in Exhibit 5.1).
24.1 Power of Attorney (see pages II-6 and II-7 of this Registration Statement).
- ---------------------
* Filed herewith.
Item 9. Undertakings.
(a) The Company 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
II-4
<PAGE>
previously disclosed in this Registration Statement or any
material change to such information in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by
reference in this 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 may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer, or controlling person of the Company in
the successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
II-5
<PAGE>
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 New York, State of New York, on this 23rd day of
March, 1998.
PENNCORP FINANCIAL GROUP, INC.
By: /s/ David J. Stone
-----------------------------------------
David J. Stone
Chairman of the Board and
Chief Executive Officer
Each person whose signature to this Registration Statement appears below
hereby appoints Scott D. Silverman as his attorney-in-fact to sign on his behalf
individually and in the capacity stated below and to file all post-effective
amendments to this Registration Statement, which amendments may make such
changes in and additions to this Registration Statement as such attorney-in-fact
may deem necessary or appropriate.
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/ David J. Stone
- ---------------------- Chairman of the Board, Chief March 23, 1998
David J. Stone Executive Officer and Director
(Principal Executive Officer of
the Registrant)
/s/ Steven W. Fickes
- ---------------------- President, Chief Financial Officer March 23, 1998
Steven W. Fickes Director (Principal Financial and
Accounting Officer of the Registrant)
/s/ Allan D. Greenberg
- ---------------------- Director March 23, 1998
Allan D. Greenberg
/s/ Thomas A. Player
- ---------------------- Director March 23, 1998
Thomas A. Player
II-6
<PAGE>
/s/ Kenneth Roman
- ---------------------- Director March 23, 1998
Kenneth Roman
/s/ Bruce W. Schnitzer
- ---------------------- Director March 23, 1998
Bruce W. Schnitzer
/s/ Maurice W. Slayton
- ---------------------- Director March 23, 1998
Maurice W. Slayton
/s/ David C. Smith
- ---------------------- Director March 23, 1998
David C. Smith
</TABLE>
II-7
<PAGE>
Exhibit Index
Sequentially
Exhibit Numbered
No. Description Page
- ------- ----------- -------------
4.1 Third Restated Certificate of Incorporation of PennCorp Financial
Group, Inc. (Incorporated by reference to the Company's
Registration Statement on Form S-8 (Registration No. 333-
) as filed with the Securities and Exchange Commission on
March 25, 1998).
4.2 Certificate of Designation of $3.375 Convertible Preferred Stock
of PennCorp Financial Group, Inc. (Incorporated by reference to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1995).
4.3 Certificate of Designation of Series C Preferred Stock of
PennCorp Financial Group, Inc. (Incorporated by reference to the
Company's Annual Report on Form 10-K for the year ended December
31, 1995).
4.4 Certificate of Designation of $3.50 Series II Convertible
Preferred Stock of PennCorp Financial Group, Inc. (Incorporated
by reference to the Company's Registration Statement on Form S-3
(Registration No. 333-13285), as filed with the Securities and
Exchange Commission on October 2, 1996).
4.5 Restated By-laws of PennCorp Financial Group, Inc. (Incorporated
by reference to the Company's Annual Report on Form 10-K for the
year ended December 31, 1992).
4.6 Employment Agreement, dated as of August 19, 1990, between
PennCorp Financial Group, Inc. and William M. McCormick.
(Incorporated by reference to the Company's Registration
Statement on Form S-1 (Registration No. 33-50530), as filed with
the Securities and Exchange Commission on August 6, 1992).
5.1 Opinion of Scott D. Silverman.
15.1 Letter from KPMG Peat Marwick LLP regarding unaudited interim
financial information.
23.1(a) Consent of KPMG Peat Marwick LLP.
23.1(b) Consent of KPMG Peat Marwick LLP.
23.2 Consent of Scott D. Silverman (included in Exhibit 5.1).
24.1 Power of Attorney (see pages II-6 and II-7 of this Registration
Statement).
EXHIBIT 5.1
[PENNCORP FINANCIAL GROUP, INC.]
March 23, 1998
PennCorp Financial Group, Inc.
590 Madison Avenue, 38th Floor
New York, New York 10022
Ladies and Gentlemen:
I am General Counsel of PennCorp Financial Group, Inc., a Delaware
corporation (the "Company"). In such capacity, I have acted as counsel to the
Company in connection with the preparation and filing by the Company with the
Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-8 to be filed with the Commission on or about March 25,
1998 (the "Registration Statement"), under the Securities Act of 1933, as
amended, with respect to the offer and sale by the Company of up to 570,760
shares (the "Registered Shares") of the common stock, par value $.01 per share,
of the Company issuable upon exercise of a warrant (the "Warrant") granted
pursuant to the Company's William M. McCormick Warrant Plan (the "Plan").
In so acting, I have examined originals or copies, certified or otherwise
identified to my satisfaction, of the Registration Statement, the Plan, and such
corporate records, agreements, documents, and other instruments and such
certificates or comparable documents of public officials and of officers and
representatives of the Company, and have made such inquiries of such officers
and representatives, as I have deemed relevant and necessary as a basis for the
opinion hereinafter set forth.
In such examination, I have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents submitted
to me as originals, the conformity to original documents of documents submitted
to me as certified or photostatic copies and the authenticity of the originals
of such latter documents. As to all questions of fact material to this opinion
that have not been independently established, I have relied upon certificates of
officers and representatives of the Company.
1
<PAGE>
Based on the foregoing, and subject to the qualifications stated herein, I
am of the opinion that when the Registered Shares are issued and delivered
against receipt of payment therefor in accordance with the terms of the Warrant,
such Registered Shares will be validly issued, fully paid and nonassessable.
The opinion herein is limited to the corporate laws of the State of
Delaware and I express no opinion as to the effect on the matters covered by
this opinion of the laws of any other jurisdiction.
I consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Scott D. Silverman
--------------------------------------------
Scott D. Silverman,
Senior Vice President,
General Counsel & Secretary
2
EXHIBIT 15.1
The Board of Directors
PennCorp Financial Group, Inc.:
Re: William M. McCormick Warrant Plan
With respect to the subject registration statement, we acknowledge our awareness
of the use therein of our reports dated May 15, 1997 (except as to note 8 which
is as of November 14, 1997), August 14, 1997 (except as to note 8 which is as of
November 14, 1997) and November 14, 1997, related to our reviews of interim
financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the meaning
of sections 7 and 11 of the Act.
Very truly yours,
/s/ KPMG Peat Marwick LLP
--------------------------------------------
KPMG PEAT MARWICK LLP
Raleigh, North Carolina
March 23, 1998
1
EXHIBIT 23.1(a)
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
PennCorp Financial Group, Inc.:
We consent to the use of our report dated February 28, 1997 (except as to note
19 which is as of November 14, 1997) on the consolidated financial statements of
PennCorp Financial Group, Inc. and subsidiaries as of December 31, 1996 and
1995, and for each of the years in the three-year period ended December 31,
1996, incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
--------------------------------------------
KPMG PEAT MARWICK LLP
Raleigh, North Carolina
March 23, 1998
1
EXHIBIT 23.1(b)
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our report dated March 14, 1997 (except as to note 19
which is as of November 14, 1997) on the consolidated financial statements of
Southwestern Financial Corporation and subsidiaries as of December 31, 1996, and
for the year then ended incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
-----------------------------------------
KPMG PEAT MARWICK LLP
Dallas, Texas
March 23, 1998
1
