As filed with the Securities and Exchange Commission on December 30, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TRIAD GUARANTY INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 56-1838519
(State of Incorporation) (I.R.S. Employer
Identification Number)
101 South Stratford Road, Suite 500
Winston-salem, North Carolina 27104
(Address, including Zip Code, of Registrant's Principal Executive Offices)
TRIAD GUARANTY INC. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
Earl F. Wall
Triad Guaranty Inc.
101 South Stratford Road, Suite 500
Winston-salem, North Carolina 27104
(336) 723-1282
(Name, Address, and Telephone Number of Agent For Service)
Copies to:
John S. Chapman, Esq.
Lord, Bissell & Brook
115 South LaSalle Street
Chicago, Illinois 60603
(312) 443-0700
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title of
Securities Proposed maximum Proposed maximum Amount of
to be Amount to be offering price aggregate registration
Registered registered(1)(2) per share offering price fee
- ------------ ----------------- ---------------- ---------------- ------------
Common Stock 60,000 $20.00(3) $1,200,000(3) $333.60(3)
- ------------ ----------------- ---------------- ---------------- ------------
(1) Represents the maximum number of shares of Common Stock of the Company that
may be issued hereunder.
(2) Together with an indeterminant number of additional shares which may be
necessary to adjust the number of shares registered hereunder as a result
of any future stock split, stock dividend or similar adjustment of the
outstanding Common Stock of the Company.
(3) Estimated pursuant to Rule 457(c) and (h) of the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee and
based on the average of the high and low prices of the Common Stock as
reported by the Nasdaq National Market on December 29, 1998.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed below which have been filed with the Securities
and Exchange Commission (the "Commission"):
1. The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, as amended;
2. The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998; and
3. The description of the shares of the Registrant's Common Stock, $0.01
par value per share, contained in the Registrant's Form 8-A filed with
the Securities and Exchange Commission on September 7, 1993, including
any amendment or report filed for the purpose of updating such
description.
In addition, each document or report subsequently filed by the Registrant
with the Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the
Securities Exchange Act of 1934, as amended, after the date of this Registration
Statement, but prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered by this
Registration Statement have been sold or which deregisters all such securities
then remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement. Each document or report incorporated into this
Registration Statement by reference shall be deemed to be a part of this
Registration Statement from the date of the filing of such document with the
Commission until the information contained therein is superseded or updated by
any subsequently filed document which is incorporated by reference into this
Registration Statement or by any subsequently furnished appendix to this
Registration Statement.
II-1
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law, a corporation
may indemnify a director, officer, employee or agent of the corporation who was
or is a party or is threatened to be made a party to an action (other than an
action by the corporation) by reason of his service to the corporation, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her if he or she acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interest of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. In the case of an action brought by or in the right of a corporation,
the corporation may indemnify a director, officer, employee or agent of the
corporation against expenses (including attorneys' fees) actually and reasonably
incurred by him or her if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless a court finds that, in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court shall deem proper.
The Registrant's Certificate of Incorporation provides for the broad
indemnification of the directors and officers of the Registrant to the fullest
extent permitted by current Delaware law. The Registrant's Certificate of
Incorporation also eliminates the personal liability of a director to the
Registrant or its stockholders under certain circumstances, for monetary damages
for breach of fiduciary duty as a director.
II-2
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the Index to Exhibits immediately following the signature page.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
A. (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii)
to reflect in the prospectus any facts or events arising after the effective
date of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement; and (iii) to include
any material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement; provided, however, that paragraphs
(1)(i) and (1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. 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.
II-3
<PAGE>
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, 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 of 1933 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 of 1933 and will be governed by the
final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing 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 Winston-Salem and State of North Carolina, on
December 23, 1998.
TRIAD GUARANTY INC.
By: /s/ Darryl W. Thompson
--------------------------
Name: Darryl W. Thompson
Its: President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Earl F. Wall and Michael R. Oswalt or
either of them with power to act without the other, as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all subsequent amendments and supplements to this Registration Statement, and
to file the same, or cause to be filed the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto each said attorney-in-fact and agent full power 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 as he might or
could do in person, hereby ratifying and confirming all that any 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.
NAME AND CAPACITY DATE
- ----------------- ----
/s/ William T. Ratliff, III December 21, 1998
- ---------------------------
William T. Ratliff, III
Chairman
/s/ Darryl W. Thompson December 23, 1998
- -----------------------
Darryl W. Thompson
President, Chief Executive Officer and Director
II-5
<PAGE>
/s/ David W. Whitehurst December 18, 1998
- ------------------------
David W. Whitehurst
Executive Vice President, Chief Financial Officer,
Treasurer and Director
/s/ Michael R. Oswalt December 22, 1998
- ----------------------
Michael R. Oswalt
Vice President and Controller
Principal Accounting Officer
/s/ Robert T. David December 21, 1998
- --------------------
Robert T. David
Director
/s/ Raymond H. Elliott December 18, 1998
- -----------------------
Raymond H. Elliott
Director
II-6
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
--- -----------
4.1 Form of Common Stock Certificate (1)
5 Opinion of Lord, Bissell & Brook (filed herewith)
23.1 Consent of Ernst & Young (filed herewith)
23.2 Consent of Lord, Bissell & Brook (included in
Exhibit 5 above)
24 Power of Attorney of certain officers and directors
of the Company (included on the signature page)
- -------------------------
(1) Incorporated by reference to Exhibit 4(a) to the Registrant's Registration
Statement on Form S-1 filed October 22, 1993 and amendments thereto.
II-7
EXHIBIT 5
December 29, 1998
Triad Guaranty Inc.
101 South Stratford Road, Suite 500
Winston-Salem, North Carolina 27104
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We are acting as counsel to Triad Guaranty Inc., a Delaware corporation
(the "Company"), in connection with the preparation of a Registration Statement
on Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission. The Registration Statement registers 60,000 shares (the
"Shares") of the Company's common stock, $.01 par value per share (the "Common
Stock") in connection with the Triad Guaranty Inc. Employee Stock Purchase Plan
(the "Plan"). The Shares represent issued and outstanding shares of Common Stock
which may be acquired on the open market on behalf of the Plan pursuant to the
terms of the Plan.
In connection with the offering of the Shares, we have examined originals
or copies identified to our satisfaction of such documents, corporate and other
records, certificates, and other papers as we deemed necessary to examine for
purposes of this opinion, including but not limited to the Plan, the Certificate
of Incorporation of the Company, the Bylaws of the Company, as amended, and
certain resolutions adopted by the Board of Directors of the Company.
We are of the opinion that the Shares will, when acquired on the open
market pursuant to the terms of the Plan, be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
/s/ Lord, Bissell & Brook
-------------------------
LORD, BISSELL & BROOK
EXHIBIT 23.1
Exhibit 23.1 - Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 33-00000) pertaining to the Employee Stock Purchase Plan of Triad
Guaranty Inc. of our reports dated January 22, 1998 and March 23, 1988, with
respect to the consolidated financial statements of Triad Guaranty Inc. included
in its Annual Report (Form 10-K, as amended) for the year ended December 31,
1997 and the related financial statement schedules included therein, filed with
the Securities and Exchange Commission.
/s/ ERNST & YOUNG, LLP
- ----------------------
Raleigh, North Carolina
December 30, 1998
