|
Previous: HOTELWORKS COM INC, 8-K, EX-99.1, 2000-09-08 |
Next: VESTA INSURANCE GROUP INC, SC 13D, 2000-09-08 |
As filed with the Securities and Exchange Commission on September 8, 2000. Registration No. 333-41560 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 PRE-EFFECTIVE AMENDENT NO. 1 TO Form S-3 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 VESTA INSURANCE GROUP, INC. (Exact name of registrant as specified in its charter)
Delaware 6711 63-1097283 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
3760 River Run Drive Birmingham, Alabama 35243 (205) 970-7000 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) Donald W. Thornton, Senior Vice President, General Counsel and Secretary Vesta Insurance Group, Inc. 3760 River Run Drive Birmingham, Alabama 35243 (205) 970-7000 (Name, address, including zip code, and telephone number, including area code, of agent for service)
With Copies to: John W. McCullough F. Hampton McFadden, Jr. Balch and Bingham LLP Haskell Slaughter and Young L.L.C. 1901 Sixth Avenue North, Suite 2600 1200 AmSouth/Harbert Plaza Birmingham, Alabama 35203 1901 Sixth Avenue North (205)251-8100 Birmingham, Al 35203 (205)251-1000 Approximate date of commencement As soon as practicable following the effective of proposed sale to the public: date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, check the following box. |_| If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. |X| If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. |_| If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. |_| If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. |_|
Proposed Proposed Title of each class of Amount to be maximum offering maximum Amount of securities to be registered Registered price per aggregate Registration unit(2) offering price Fee(2) Preferred Stock 2,950,000(1) $6.4375 $37,981,250 $10,027 Common Stock 5,900,000 $6.4375 $37,981,250 $10,027(1) 5,900,000 shares of Common Stock are issuable upon the conversion of the 2,950,000 shares of preferred stock subject to this registration statement, plus a presently indeterminable number of shares of Common Stock, if any, which may be issuable upon adjustment to the conversion ratio. (2) The registrant is hereby registering a class of convertible preferred securities and the publicly traded common securities which may be issued upon conversion thereof at the same time. The proposed offering price for the convertible preferred security offered hereby will fluctuate based on the established market value of the Common Stock into which it may be converted. Accordingly, pursuant to Rule 457(i) and 457(c), the registration fee is based upon the average of the high and low sales prices for the registrant's Common Stock, as reported on the New York Stock Exchange for July 12, 2000. The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED PROSPECTUS 2,950,000 SHARES OF SERIES A CONVERTIBLE PREFERRED STOCK 5,900,000 SHARES OF COMMON STOCK VESTA INSURANCE GROUP, INC.Birmingham Investment Group LLC, is offering for sale 2,950,000 shares of Vesta Insurance Group, Inc. Series A Convertible Preferred Stock and up to 5,900,000 shares of Vesta Insurance Group, Inc. Common Stock which may be issued upon conversion of the Series A Convertible Preferred Stock. Birmingham Investment Group LLC will receive all of the proceeds of this offering. Birmingham Investment Group LLC may sell the shares from time to time at fixed prices, market prices or at negotiated prices, and may engage a broker or dealer to sell the shares. The shares of Series A Convertible Preferred Stock offered hereby are not and will not be listed for trading on any established trading market. The shares of Common Stock offered hereby will be listed for trading on the New York Stock Exchange and will be traded with our other outstanding shares under the symbol "VTA." On September 7, 2000, the closing price of the Common Stock on the New York Stock Exchange was $5.00 per share.
You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with different information. The Birmingham Investment Group, LLC is not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus or the documents incorporated by reference is accurate as of any date other than the date on the front of this prospectus or those documents.
TABLE OF CONTENTS SUMMARY 1 RISK FACTORS 3 INCORPORATON OF CERTAIN DOCUMENTS BY REFERENCE 5 RECENT DEVELOPMENTS 5 USE OF PROCEEDS 6 DESCRIPTION OF CAPITAL STOCK 6 RATIO OF EARNINGS TO FIXED CHARGES 11 SELLING STOCKHOLDER 12 PLAN OF DISTRIBUTION 12 VALIDITY OF SECURITIES 13 EXPERTS 13 WHERE YOU CAN FIND MORE INFORMATION 14
THE OFFERING Series A Convertible Preferred Stock offered by Birmingham Investment Group LLC (1) 2,950,000 Common Stock offered by Birmingham Investment Group, LLC (1) 5,900,000 Common Stock to be outstanding after the offering(2)(3) 24,725832 Use of proceeds NYSE Symbol VTA Vesta Insurance Group, Inc. will not receive any proceeds from the sale of the shares offered. See "Use of Proceeds."
(1) Birmingham Investment Group LLC is registering for resale its Series A Convertible Preferred Securities and the publicly traded Common Stock which may be issued upon conversion thereof at the same time. (2) Based on the number of shares actually outstanding on June 30, 2000. (3) Assumes all shares of Series A Preferred Stock being offered pursuant to this prospectus are converted into Common Stock, in which event no shares of Series A Convertible Series A Preferred Stock will be offered hereby. See, "Description of Series A Preferred Stock."
(a) our Annual Report on Form 10-K for the fiscal year ended December 31, 1999; (b) our definitive proxy materials dated April 11, 2000 for the annual meeting of stockholders held May 18, 2000; (c) our Quarterly Reports on Form 10-Q for the quarter ended March 31, 2000 and June 30, 2000; (d) our Current Reports on Form 8-K, dated July 14, 2000, June 21, 2000 and January 13, 2000;We will provide without charge to each person to whom this Prospectus is delivered, on the written or oral request of any such person, a copy of any or all documents incorporated herein by reference (other than the exhibits to such documents unless such exhibits are specifically incorporated by reference). Such requests should be directed to Donald W. Thornton, Senior Vice President, General Counsel and Secretary, Vesta Insurance Group, Inc., 3760 River Run Drive, Birmingham, Alabama 35243. RECENT DEVELOPMENTS On June 30, 2000, our lead insurance subsidiary, Vesta Fire, acquired securities representing approximately 71% of the voting power of American Founders Financial Corp. approximately $25.0 million in cash. Pursuant to an Investor Rights Agreement, Vesta Fire is entitled to appoint four (4) of the seven (7) directors of American Founders. The acquisition will be accounted for as a purchase, and American Founders' results of operations will be consolidated in our consolidated financial statements. American Founders owns directly all of the capital stock of Laurel Life Insurance Company, a Texas life insurance company, and indirectly through Laurel Life all of the capital stock of American Founders Life Insurance Company, a Texas life insurance company. The acquisition of American Founders, which writes primarily life and annuity products, will diversify our insurance lines. USE OF PROCEEDS These shares being offered pursuant to this prospectus are being offered for sale by Birmingham Investment Group, LLC. We will not receive any proceeds from the sale of these shares. DESCRIPTION OF CAPITAL STOCK Authorized Capital Stock Our authorized capital stock consists of 100,000,000 shares of common stock, par value $.01 per share (the "Common Stock") and 5,000,000 shares of Series A Preferred Stock ("Series A Preferred Stock"). At the close of business on June 30, 2000, there were 18,825,832 shares of Common Stock outstanding. Common Stock At the close of business on June 30, 2000, there were 18,825,832 shares of Common Stock outstanding. The holders of Common Stock are entitled to one vote for each share on all matters voted on by shareholders, including elections of directors, and, except as otherwise required by law or provided in any resolution adopted by our board of directors (the "Board") with respect to any series of Series A Preferred Stock, the holders of such shares will possess exclusive voting power. Our Certificate of Incorporation (the "Vesta Certificate") does not provide for cumulative voting in the election of directors. Subject to any preferential rights of any outstanding series of Series A Preferred Stock created by the Board from time to time, the holders of Common Stock will be entitled to such dividends as may be declared from time to time by the Board from funds available therefor, and upon liquidation will be entitled to receive pro rata all assets available for distribution to such holders of Common Stock. Shareholder Rights Plan On June 15, 2000, our Board adopted a stockholder rights plan which provides for the payment of a dividend of one Series A Preferred Stock purchase right ("Right") to be attached to each outstanding share of our Common Stock. Generally, each Right, if and when it becomes exercisable, will entitle the registered holder to purchase from us one one-hundredth (1/100) of a share of our Series B Junior Participating Series A Preferred Stock at an exercise a price of $30.00 per one one-hundredth of a share. The value of the one one-hundredth interest in a share of Series B Junior Participating Series A Preferred Stock purchasable upon exercise of each Right should, because of the nature of the Series B Junior Participating Series A Preferred Stock's dividend, liquidation and voting rights, equal the value of one share of our Common Stock. In addition, upon the occurrence of certain events, the holder of a Right may elect to receive, upon payment of the exercise price, securities in lieu of one one-hundredth (1/100) of a share of the Series B Junior Participating Series A Preferred Stock which would have a then current market value of two times the amount of the exercise price. The Rights become exercisable when any person acquires in excess of 10% of our outstanding Common Stock. Upon such event, each holder of a Right would be able to elect to receive, upon payment of the exercise price of the Right, a number of shares of our Common Stock having a then current market value of two times that exercise price. In the event we did not have a sufficient number of shares of Common Stock available for issuance at that time, we could issue an economically equivalent security, such as the Series B Junior Participating Preferred Stock, in satisfaction of the exercise of the Right. Importantly, the person who acquired in excess of 10% of our Common Stock would not be entitled to exercise its Rights, and its interest in us would be substantially diluted after giving effect to the exercise of all other Rights. For purposes of determining whether any person has acquired in excess of 10% of our outstanding Common Stock (an "Acquiring Person"), the Common Stock issuable upon conversion of Series A Convertible Preferred Stock originally issued to Birmingham Investment Group, LLC (described below) is deemed to be outstanding. We have also agreed that, once a person has become an "Acquiring Person," we will not merge or otherwise combine with another entity, or sell 50% or more of our consolidated assets or earning power to another entity, unless adequate provision is made to ensure that each holder of a Right (other than the Acquiring Person, whose Rights will be void) will thereafter have the right to receive that number of shares of Common Stock of the acquiring company which, at the time of such transaction, will have a market value of two times the exercise price of the Right. The Shareholder Rights Plan has an anti-takeover effect. The Shareholder Rights Plan will cause substantial dilution to a person or group that attempts to acquire us on terms not approved by our Board. However, the Shareholder Rights Plan should not interfere with any merger or other business combination approved by the Board since the Shareholder Rights Plan may be redeemed at $0.01 per Right at any time on or prior to the tenth day following the Distribution Date. Thus, the Shareholder Rights Plan is intended to encourage persons who may seek to acquire control of us to initiate such an acquisition through negotiations with our Board. However, the effect of the Rights may be to discourage a third party from making a partial tender offer or otherwise attempting to obtain a substantial equity position in the equity securities of, or seeking to obtain control of, us. To the extent any potential acquirors are deterred by the Shareholder Rights Plan, the Shareholder Rights Plan may have the effect of preserving incumbent management in office. Series A Preferred Stock-General The Vesta Certificate authorizes the Board to establish one or more series of Preferred Stock and to determine, with respect to any series of Preferred Stock, the terms and rights of such series, including:
(i) the designation of the series. (ii) the number of shares of the series, which number the Board may thereafter (except where otherwise provided in the applicable certificate of designation) increase or decrease (but not below the number of shares thereof then outstanding). (iii) whether dividends, if any, will be cumulative or noncumulative, the preference or relation which such dividend, if any, will bear to the dividends payable on any other class or classes of any other series of capital stock, and the dividend rate of the series. (iv) the conditions and dates upon which dividends, if any, will be payable. (v) the redemption rights and price or prices, if any, for shares of the series. (vi) the terms and amounts of any sinking fund provided for the purchase or redemption of shares of the series. (vii) the amounts payable on and the preference, if any, of shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding up of our affairs. (viii) whether the shares of the series will be convertible or exchangeable into shares of any other class or series, or any other security, of us or any other corporation, and, if so, the specification of such other class or series or such other security, the conversion or exchange price or prices or rate or rates, any adjustments thereof, the date or dates as of which such shares shall be convertible or exchangeable and all other terms and conditions upon which such conversion or exchange may be made. (ix) restrictions on the issuance of shares of the same series or of any other class or series. (x) the voting rights, if any, of the holders of the shares of the series. (xi) any other relative rights, preferences and limitations of such series.We believe that the ability of the Board to issue one or more series of Series A Preferred Stock will provide us with flexibility in structuring possible future financings and acquisitions, and in meeting other corporate needs which might arise. The authorized shares of Series A Preferred Stock, as well as shares of Common Stock, will be available for issuance without further action by our shareholders, unless such action is required by applicable law or the rules of any stock exchange or automated quotation system on which our securities may be listed or traded. The New York Stock Exchange currently requires shareholder approval as a prerequisite to listing shares in several instances, including where the present or potential issuance of shares could result in an increase in the number of shares of Common Stock, or in the amount of voting securities, outstanding of at least 20%. If the approval of our stockholders is not required for the issuance of shares of Series A Preferred Stock or Common Stock, the Board may determine not to seek stockholder approval. Series A Convertible Preferred Stock On September 30, 1999, we issued 2,950,000 shares of Series A Convertible Preferred Stock (the "Series A Preferred Stock") to Birmingham Investment Group, LLC pursuant to the Certificate of Designation of Preferences and Rights of the Series A Convertible Preferred Stock of Vesta Insurance Group, Inc. (the "Certificate of Designation", the following summarizes certain terms of the Series A Preferred Stock. Dividends. Dividends shall accrue on the Series A Preferred Stock at the rate of 9% per annum and will be payable semi-annually in arrears on each January 1 and July 1, beginning January 1, 2000. If any dividend on the Series A Preferred Stock shall for any reason not be paid at the time such dividend becomes due, then dividends shall continue to accrue on a cumulative basis. In the event that any dividends remain accrued but unpaid at the time of any conversion of any of the Series A Preferred Stock , such accrued but unpaid dividends shall remain payable, notwithstanding such conversion. General Voting Rights. The holder of each share of Series A Preferred Stock shall have the right to cast one vote for each share of Common Stock issuable on conversion, or two votes per share of Series A Preferred Stock (subject to adjustment as described herein). As of June 30, 2000, there were 18,825,832 shares of Common Stock outstanding, each entitled to one vote. The Series A Preferred Stock is entitled to 5,900,000 votes. Assuming the number of shares of Common Stock outstanding stays constant, the total number of votes which could be cast generally would be 24,725,832, of which 5,900,000, or approximately 24%, could be cast by the holders of the Series A Preferred Stock. In connection with these general voting rights, the Series A Preferred Stock will vote with the Common Stock as a single class, and the holders of the Series A Preferred Stock shall have voting rights and powers equal to the voting rights and powers of the holders of Common Stock. Special Voting Rights -- Class A Directors. The Series A Preferred Stock, voting as a separate class, has the right to elect a certain number of directors of the Company (the "Class A Directors"), depending upon the size of the full Board and the number of shares of Series A Preferred Stock outstanding. The following table indicates the number of Class A Directors which the holders of the Series A Preferred Stock are entitled to elect:
# of Shares of Series A Preferred Stock Number of Outstanding Size of Full Board Class A Directors More than 1,976,500 7 or less 2 8-10 3 11-12 4 Between 973,000 and 1,976,500 7 or less 1 8-10 2 11-12 3 Less than 973,000 No Class A Directors No Class A Directors
If redeemed during the twelve-month period beginning July 1: 2009 110% 2010 108% 2011 106% 2012 104% 2013 102%In the event we elect to redeem all or any portion of the Series A Preferred Stock for cash, the holders of the Series A Preferred Stock may, at their option, convert each share of their Series A Preferred Stock into two shares of the Common Stock (subject to adjustment as described herein and as set forth in the Certificate of Designation) in lieu of such redemption. Optional Conversion. The holders of the Series A Preferred Stock will have the right, at any time, to convert each share of Series A Preferred Stock into two shares of the Common Stock, subject to adjustment as described below under the heading "Conversion Price" and as more fully set forth in the Certificate of Designation. Mandatory Conversion. Each share of the Series A Preferred Stock shall automatically be converted into two shares of Common Stock, subject to adjustment as described below under the heading "Conversion Price" and as more fully set forth in the Certificate of Designation, on the earlier of (a) the date on which the average closing price of Common Stock for twenty consecutive trading days is $8.00 or greater or (b) fifteen years from the date of issuance of the Series A Preferred Stock. If, in the future, we declare a stock split (including a reverse split), a dividend payable in Common Stock or any other distribution of securities to the holders of the Common Stock with respect to their Common Stock, then the closing price of $8.00 per share referred to in clause (a) of the preceding sentence shall be appropriately adjusted to reflect such stock split, dividend or other distribution of securities. Conversion Price. Each share of the Series A Preferred Stock will be convertible into the number of shares of Common Stock which results from dividing the "Conversion Price" in effect at the time of conversion into $8.50. The initial "Conversion Price" is $4.25, which divided into $8.50 results in 2 shares of Common Stock. However, this Conversion Price will be adjusted automatically in the event of the following:
* We issue any Common Stock (or options, rights, warrants or other securities convertible into or exchangeable for shares of Common Stock) at a price per share less than the Conversion Price in effect on the date of issuance; * We (i) declare a stock dividend or other distribution on Common Stock in shares of Common Stock, (ii) subdivide or reclassify the outstanding share of its Common Stock into a greater number of shares, or (iii) combine or reclassify the outstanding shares of Common Stock into a smaller number of shares; or * We distribute to all holders of shares of Common Stock (i) any equity security other than Common Stock, (ii) any debt instruments (including debt of our subsidiaries), (iii) any other assets (excluding cash dividends or distributions in shares of Common Stock) or (iv) other rights or warrants (excluding options, rights, warrants or other securities convertible into or exchangeable for shares of Common Stock).Consolidation, Merger, Sale, Lease or Conveyance. If we consolidate with or merge with or into another corporation, or sell, lease or convey our assets or property as an entirety or substantially as an entirety to another corporation, then each share of Series A Preferred Stock shall thereafter be convertible into the number of shares of stock or other securities or property (including cash) which the Common Stock issuable (at the time of such consolidation, merger, sale, lease or conveyance) upon conversion of such Series A Preferred Stock would have been entitled upon such consolidation, merger, sale, lease or conveyance. If necessary, the provisions set forth in the Certificate of Designation shall be appropriately adjusted so as to be applicable, as nearly as may reasonably be, to any shares of stock or other securities or property thereafter deliverable on the conversion of the shares of Series A Preferred Stock. Preference on Liquidation. In the event of any liquidation, dissolution, involuntary or voluntary corporate reorganization under the federal bankruptcy laws or similar state laws, or winding up, the holders of the Series A Preferred Stock then outstanding shall be senior to any other class or series of our capital stock. Accordingly, the holders of the Series A Preferred Stock shall be entitled to be paid out of the assets and surplus funds available for distribution to stockholders, and before any payment shall be made to the holders of any shares of Common Stock, an amount equal to $8.50 per share plus declared and unpaid dividends thereon to the date fixed for distribution. Call For Special Meeting. As long as more than 973,500 shares of Series A Preferred Stock remain outstanding, the Series A Preferred Stock, voting as a separate class, shall have the right to call special stockholders' meetings upon the minimum notice required by applicable law or regulation. Right To Approve Certain Transactions. Without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a majority of the then outstanding shares of the Series A Preferred Stock, voting together as a separate class, we may not:
* sell, convey or otherwise dispose of all or substantially all of our property or business; * merge into or consolidate with any other corporation (other than a wholly-owned subsidiary ) or effect any transaction or series of related transactions in which more than fifty percent (50%) of the voting power is disposed of; * alter or change the rights, preferences or privileges of the Series A Preferred Stock as to adversely affect such series; * increase the authorized number of shares of Series A Preferred Stock; or * create any new class or series of stock having rights, preferences or privileges superior to the Series A Preferred Stock.Right To Nominate Directors, Generally. In addition to the right to elect Class A Directors, the holders of the Series A Preferred Stock, acting through the Class A Directors, will have the right to nominate additional directors for general election, if the Class A Directors' proportionate representation on the full Board is less than the proportionate number of votes which the holders of the Series A Preferred Stock may cast in a general election of directors (including the votes which may be cast by holders of the Series A Preferred Stock, the Common Stock and any other voting securities ). In such a circumstance, the holders of the Series A Preferred Stock will be entitled to nominate a number of nominees which, when added to the number of Class A Directors and assuming their election, would make their proportionate representation on the full board equal to or greater than the proportionate number of votes which the holders of the Series A Preferred Stock may cast in a general election of directors. The number of nominees which the holders of the Series A Preferred Stock are entitled to nominate under this clause shall increase proportionately upon any increase in the percentage of the total number of votes which the holders of the Series A Preferred Stock may cast in a general election of directors. The Board shall exercise all authority under applicable law to cause the Class A Director nominees to be elected as directors of the Company.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDEND For the last five years the consolidated ratio of earnings to combined fixed charges and Preferred Stock dividend was: Six Months Ended Year Ended December 31, June 30, 1995 1996 1997 1998 1999 2000 ------ Earnings to Combined Fixed Charges(1)...............5.12 5.87 3.72 (6.62)(2) 2.53(3) 1.58-----------
(1) For purposes of these computations, earnings consist of earnings from continuing operations before taxes plus combined fixed charges. Combined Fixed Charges and Preferred Stock Dividend consist of interest on indebtedness plus deferreable capital security interest plus a portion of rental expense, which is deemed to be representative of the interest factor thereon, plus the preferred stock dividend. (2) Included in earnings for 1998 was a nonrecurring loss of $65.5 million before income taxes relating to the write-down of goodwill as disclosed in Note B to the consolidated financial statements. If such write-down had not occurred, the ratio of earnings to combined fixed charges would have been (3.80). (3) Included in earnings for 1999 was a nonrecurring gain of $19.8 million before income taxes relating to the sale of certain businesses as disclosed in Part 1 of the Form 10-K and in Note R to the consolidated financial statements. If such sales had not occurred, the ratio of earnings to combined fixed charges would have been 1.68.SELLING STOCKHOLDER The shares offered hereby are owned by Birmingham Investment Group, LLC ("Birmingham Investment Group") The following table sets forth (i) the number and percent of shares offered hereby that Birmingham Investment Group, LLC beneficially owned prior to this offering; (ii) the number of shares that Birmingham Investment Group, LLC is offering for resale pursuant to this prospectus; and (iii) the number and percent of shares to be held by Birmingham Investment Group, LLC after the offering (assuming all of the shares offered hereby are sold).
Beneficial Ownership Number of Beneficial Ownership Prior to Offering (1) Shares After the Offering Offered (1) Number of Percent of Number of Percent of Name and Address Title of Class Shares Class Shares Class Birmingham Investment Group, LLC Common Stock 5,900,000 24%(2) 5,900,000 -0- -0- 17 North 20th Street Birmingham, Alabama 35203 Birmingham Investment Group, Series A LLC Convertible 2,950,000 100% 2,950,000 -0- -0- 17 North 20th Street Preferred Birmingham, Alabama 35203 Stock
(1) Birmingham Investment Group, LLC directly owns 2,950,000 shares of our Series A Convertible Preferred Stock. These shares of preferred stock may be converted into 5,900,000 shares of our Common Stock, subject to adjustment in certain events. See, "Description of Preferred Stock." The Common Stock being offered hereby will be issued only upon conversion of the preferred stock, in which case the converted preferred stock will no longer be offered hereby. (2) 5,900,000 shares of Common Stock are deemed to be beneficially owned by Birmingham Investment Group even though such shares are not actually outstanding. These shares are deemed to be outstanding for the purpose of computing the Birmingham Investment Group percentage ownership of Common Stock.
* ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; * block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; * purchases by a broker-dealer as principal and resale by the broker-dealer for the broker dealer's account; * an exchange distribution in accordance with the rules of the applicable exchange; * privately negotiated transactions; * broker-dealers may agree with Birmingham Investment Group LLC to sell a specified number of such shares at a stipulated price per share; * a combination of any such methods of sale; and * any other method permitted pursuant to applicable law.Birmingham Investment Group may also sell shares of Common Stock issued upon conversion of the Series A Preferred Stock under Rule 144 under the Securities Act, if available, rather than under this Prospectus. Broker-dealers engaged by Birmingham Investment Group may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from Birmingham Investment Group LLC (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. Birmingham Investment Group does not expect these commissions and discounts to exceed what is customary in the types of transactions involved. Birmingham Investment Group and any broker-dealers or agents that are involved in selling the Series A Preferred Stock or Common Stock may be deemed to be "underwriters" within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the Series A Preferred Stock or Common Stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. We are required to pay all fees and expenses incident to the registration of the Series A Preferred Stock or Common Stock, including the fees and disbursements of counsel to the Birmingham Investment Group. We have also agreed to indemnify Birmingham Investment Group against certain losses, claims, damages and liabilities, including liabilities under the Securities Act. VALIDITY OF SECURITIES The validity of the Common Stock offered hereby will be passed on by Balch and Bingham LLP of Birmingham, Alabama. Walter M. Beale, Jr., a director of the Company, is a partner with Balch and Bingham LLP. As of December 31, 1999, Mr. Beale was the beneficial owner of 39,499 shares of our Common Stock. EXPERTS The financial statements as of December 31, 1999 and December 31, 1998 and for each of the years then ended, incorporated in this prospectus by reference to the Annual Report on Form 10-K, have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. The financial statements and schedules as of December 31, 1997 and for the year then ended December 31, 1997, incorporated by reference herein and in the Registration Statement, have been incorporated by reference in reliance upon the reports of KPMG LLP, independent certified public accountants, appearing elsewhere herein, and upon authority of said firm as experts in accounting and auditing. WHERE YOU CAN FIND MORE INFORMATION We are subject to the informational requirements of the Exchange Act, and in accordance therewith file reports and other information with the Commission. Such reports and other information can be inspected and copied at the public reference facilities of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World Trade Center, 13th Floor, New York, New York 10048. Copies of such material can also be obtained at prescribed rates by writing to the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission maintains a Web site that contains reports, proxy and information statements and other information regarding registrants, that file electronically at . 17 PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution The estimated expenses of issuance and distribution, other than underwriting discounts and commissions, to be borne by the Company are:
Securities and Exchange Commission Registration Fee ............$10,027.75 ---------- Fees and Expenses of Counsel ............................. 10,000.00 ----------- Fees of Accountants .......................................... 15,000.00 ----------- Miscellaneous Expenses ....................................... 1,000.00 ----------- Total $36,027.75 =========Item 15. Indemnification of Directors and Offices The Company is a Delaware corporation. Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a Delaware corporation to indemnify any person who was or is a party to 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 such corporation) by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. A corporation may indemnify such person against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person 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, had no reasonable cause to believe his conduct was unlawful. A corporation may, in advance of the final disposition of any civil, criminal, administrative or investigative action, suit or proceeding, pay the expenses (including attorneys' fees) incurred by any officer or director in defending such action provided that the director or officer undertake to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation.
A Delaware corporation may indemnify officers and directors in an action by or in the right of the corporation to procure a judgment in its favor under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where the officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses (including attorneys fees) which he actually and reasonably incurred in connection therewith. The indemnification provided is not deemed to be exclusive of other rights to which an officer or director may be entitled under any corporations bylaws, agreement or otherwise.
The Companys Certificate of Incorporation provides that no officer or director of the Company will be personally liable to the Company or its shareholders for monetary damages for breach of fiduciary duty as an officer or director, except for liability (i) for any breach of the officers or directors duty of loyalty to the Company or shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, which concerns unlawful payments of dividends, stock purchases or redemptions, or (iv) for any transaction from which the officer or director received an improper personal benefit.
The Companys Bylaws provide that each director and officer of the Company, and each person serving at the request of the Company as a director, officer, employee or agent of any other corporation or of a partnership, joint venture, trust or other enterprise, who was or is made a party to or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, will be indemnified and held harmless to the fullest extent authorized by Delaware law against all expense, liability and loss reasonably incurred by such indemnitee in such action, suit or proceeding. The Companys Bylaws also provide that the Company may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Company or of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss.
While the Companys Certificate of Incorporation and Bylaws provide officers and directors with protection from awards for monetary damages for breaches of their duty of care, they do not eliminate such duty. Accordingly, the Certificate of incorporation will have no effect on the availability of equitable remedies such as an injunction or rescission based on an officers or a directors breach of his or her duty of care.
Item 16. Exhibits An index to Exhibits attached to this registration statement appears at page II-6 hereof.Item 17. Undertakings (a) The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made of the securities registered hereby, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not 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 herein, 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 Section 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 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 Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Birmingham, State of Alabama, on September 7, 2000.
VESTA INSURANCE GROUP, INC. By /s/ Norman W. Gayle, III ------------------------------------------------------- Norman W. Gayle, III Its President and Chief Executive OfficerKNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors of Vesta Insurance Group, Inc., a Delaware corporation (Company) by his execution hereof or upon an identical counterpart hereof, does hereby constitute and appoint Norman W. Gayle III and Donald W. Thornton as his true and lawful attorney-in-fact and agent, for him and in his name, place and stead, to execute and sign any and all pre-effective and post-effective amendments to this Registration Statement and to file same, with all exhibits and schedules thereto and all other documents in connection therewith, with the Securities and Exchange Commission and with such state securities authorities as may be appropriate, granting unto said attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes of the undersigned might or could do in person, hereby ratifying and confirming all the acts of said attorneys-in-fact and agent or any of them which they may lawfully do in the premises or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on September 7, 2000./s/ Norman W. Gayle, III President (Principal Executive ------------------------------------- Norman W. Gayle, III Officer), Director /s/ James E. Tait Chairman of the Board of Directors ---------------------------------------- James E. Tait /s/ William P. Cronin Chief Financial Officer (Principal Financial Officer) ------------------------------------- William P. Cronin /s/ Hopson B. Nance Controller (Principal Accounting Officer) --------------------------------------- Hopson B. Nance /s/Robert B.D. Batlivala Director --------------------------------------- Robert B. D. Batlivala Director --------------------------------------- Walter M. Beale, Jr. Director --------------------------------------- Ehney A. Camp, III _____/s/Alan S. Farrior _______________ Director Alan S. Farrior /s/ Clifford F. Palmer Director -------------------------------------- Clifford F. Palmer Director -------------------------------------- Larry D. Striplin, Jr. /s/ James A. Taylor Director --------------------------------------- James A. Taylor /s/Stephen R. Windom Director --------------------------------------- Stephen R. WindomINDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT -------------- ---------------------- 4.1 Indenture between the Company and Southtrust Bank of Alabama, National Association, dated as of July 19, 1995 (filed as an exhibit to the Company's Form 10-K for the year ended December 31, 1995, filed on March 28, 1996 and incorporated herein by reference (File No. 1-12338)) 4.2 Supplemental Indenture between the Company and Southtrust Bank of Alabama, National Association, dated July 19, 1995 (filed as an exhibit to the Company's Form 10-K for the year ended December 31, 1995, filed on March 28, 1996 and incorporated herein by reference (File No. 1-12338)) 4.3 Indenture dated as of January 31, 1997, between the Company and First Union National Bank of North Carolina, as trustee (filed as an exhibit to the Company's Form 10-Q for the quarter ended March 31, 1997, filed on May 13, 1997 and incorporated herein by reference (File No. 1-12338)) 4.4 Amended and Restated Declaration of Trust, dated as of January 31, 1997, of Vesta Capital Trust I (filed as an exhibit to the Company's Form 10-Q for the quarter ended March 31, 1997, filed on May 13, 1997 and incorporated herein by reference (File No. 1-12338) 4.5 Capital Securities Guarantee Agreement, dated as of January 31, 1997, between the Company and First Union National Bank of North Carolina, as trustee (filed as an exhibit to the Company's Form 10-Q for the quarter ended March 31, 1997, filed on May 13, 1997 and incorporated by reference (File No. 1-12338)) 5 Opinion of Balch and Bingham LLP as to legality of the shares to be issued by the Company 12 Computation of Earnings to Combined Fixed Charges 23.1 Consent of KPMG LLP 23.2 Consent of PricewaterhouseCoopers LLP 24 Powers of Attorney for Officers and Directors (included in Signature page of this Registration Statement)
Exhibit 12<pre>
Six monthsEnded Year Ended December 31, June 30, 1995 1996 1997 1998 1999 2000 -------------------------------------------------------------------------------------------------------------------------------------------- Pre-tax income from continuing operations before Adjustment for deferred capital security interest $ 22,711 $ 50,578 $ 59,717 $ (168,153) $ 44,962 $9,237 Pre-tax deferrable capital security interest -- -- 7,815 8,525 8,525 1,757 ----------------------------------------------------------------------------------- Pre-tax income from continuing operations 22,711 50,578 51,905 (176,678) 36,437 7,480 Fixed charges: Interest expense 5,273 10,059 10,859 14,054 13,215 6,166 Deferrable capital security interest 7,815 8,525 8,525 1,757 Appropriate portion (1/3) of rentals 235 333 400 600 700 350 ------------------------------------------------------------------------ Total fixed charges 5,508 10,392 19,074 23,179 22,440 8,273 -------------------------------------------------------------------------- Pre-tax income from continuing operations plus fixed charges $ 28,219 $ 60,970 $ 70,976 $(153,499) $ 58,877 $15,753 ===================================== ====================== ============== Preferred Stock dividend requirements -- -- -- -- 563 1,126 Ratio of pre-tax income to net income -- -- -- -- 1.44 1.49 -------------------------------------------------------------------------------- Preferred Stock dividend factor -- -- -- -- 808 1,678 Total Fixed charges 5,508 10,392 19,074 23,179 22,440 8,273 ----------------------------------------------------------------------------- Combined fixed charges and Preferred Stock dividends $ 5,508 $ 10,392 $ 19,074 $ 23,179 $ 23,248 $9,951 =============================================================================== Ratio of earnings to combined fixed charges and Preferred Stock dividends(1) 5.12 5.87 3.72 6.62)(2) 2.53(3) 1.58 =============================================================================
(1) For the purposes of these computations, earnings consist of earnings from continuing operations before taxes, plus combined fixed charges. Combined fixed charges and preferred stock dividends consist of interest on indebtedness, plus deferred capital security interest, plus a portion of rental expense which is deemed to be representative of the interest factor thereon, plus the preferred stock dividend. (2) Included in earnings for 1998 was a nonrecurring loss of $65.5 million before income taxes relating to the write-down of goodwill as disclosed in Note B to the Company's consolidated financial statements. If such write-down had not occurred, the ratio of earnings to combined fixed charges would have been (3.80). (3) Included in earnings for 1999 was a nonrecurring gain of $19.8 million before income taxes relating to the sale of certain businesses as disclosed in the Company's Form 10-K and in Note R to the Company's consolidated financial statements. If such sales had not occurred, the combined fixed ratio of earnings to charges would have been 1.68.
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated March 12, 2000 relating to the financial statements and financial statement schedules, which appears in the Vesta Insurance Group, Inc.s Annual Report on Form 10-K for the year ended December 31, 1999. We also consent to the reference to us under the heading Experts in such Registration Statement.
/s/ PricewaterhouseCoopers LLP September 8, 2000
|