As filed with the Securities and Exchange Commission on July 3, 2001
Registration No.__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
______________________
Form S-8
Registration Statement
Under
The Securities Act of 1933
______________________
Superior Financial Corp.
(Exact name of registrant as specified in its charter)
Delaware 51-0379417
(State of Incorporation) (I.R.S. Employer Identification No.)
16101 LaGrande Drive, Suite 103
Little Rock, Arkansas 72223 (501) 324-7282
(Address of principal executive offices) (Telephone No.)
Superior Financial Corp.
1998 Long-Term Incentive Plan
(Full title of plan)
C. Stanley Bailey
Chief Executive Officer
Superior Financial Corp.
16101 LaGrande Drive, Suite 103
Little Rock, Arkansas 72223
(501) 324-7282
(Name and Address of agent for service)
_______________
With a copy to:
Willard H. Henson
Miller, Hamilton, Snider & Odom, L.L.C.
One Commerce Street, Suite 305
Telephone: (334) 834-5550
Facsimile: (334) 265-4533
CALCULATION OF REGISTRATION FEE
==========================================================================================================
Title of Amount to be Prop. Max. Prop. Max. Aggregate Amount of Fee
Securities to be Registered Offering Price Per Offering Price
Registered Unit
- ----------------------------------------------------------------------------------------------------------
Common Stock, 1,008,050 $ 14.50 (1) $14,616,725 (1) $ 3,654.18
$0.01 par value
per share
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
(1) Estimated in accordance with Rule 457(h), solely for the purpose of
calculating the registration fee at $ 14.50 per share, which was the average
of the bid and ask prices of the Company common stock on June 28, 2001.
PART I
INFORMATION REQUIRED IN THE SECTION 10 (a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the 1998 Long-Term Incentive Plan (the
"Plan") as specified by Rule 428(b)(1) promulgated by the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10 (a) of the Securities Act.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following documents previously or concurrently filed by the Company
with the Commission are hereby incorporated by reference in this Registration
Statement and the prospectus to which this Registration Statement relates (the
"Prospectus"), which Prospectus has been or will be delivered to the
participants covered by this Registration Statement:
(a) The Company's latest annual report filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (the "Exchange Act") that contains
audited financial statements for the Company's latest fiscal year for which
such statements have been filed, i.e., the Annual Report on Form 10-K for
the fiscal year ending December 31, 2000.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the Company,s documents
referred to in (a) above, i.e., the Current Reports on Form 8-K filed on
May 8, 2001 and the Quarterly Report on Form 10-Q for the quarter ending
March 31, 2001; and
(c) The description of the common stock, par value $0.01 per share of the
Company contained in the Company's Registration Statement on Form 8-A (File
No. 000-25239) filed with the Commission on January 5, 1999 and all
amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the registrant pursuant to sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date hereof, and prior
to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
in this Registration Statement and the Prospectus and to be a part hereof and
thereof from the date of filing of such documents. Any statement contained in
the documents incorporated, or deemed to be incorporated, by reference herein or
therein shall be deemed to be modified or superseded for purposes of this
Registration Statement and the Prospectus to the extent that a statement
contained herein or therein or in any other subsequently filed document which
also is, or is deemed to be, incorporated by reference herein or therein
modifies or supercedes 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 and the Prospectus.
The Company shall furnish without charge to each person to whom the
Prospectus is delivered, on written or oral request of such person, a copy of
any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be made to Rick
Gardner, Superior Financial Corp., 16101 LaGrande Drive, Suite 103, Little Rock,
Arkansas 72223, telephone number (501) 324-7253.
All information appearing in this Registration Statement and the Prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Article 10 of the Registrant's Certificate of Incorporation provides as
follows:
The corporation shall indemnify its directors, officers, employees and
agents to the full extent permitted under the Delaware General Corporation Law.
Article IX of the Registrant's Bylaws provides as follows:
1. Definitions. As used in this Section the following terms shall have the
-----------
meanings set out below:
(a) "Board" - the Board of Directors of the Corporation.
2
(b) "Claim" - any threatened or pending or completed claim, action, suit,
or proceeding, whether civil, criminal, administrative or investigative and
whether made judicially or extra-judicially, or any separate issue or matter
therein, as the context requires.
(c) "Determining Body" - (i) those members of the Board who are not named
as parties to the Claim for which indemnification is being sought ("impartial
Directors"), if there are at least three Impartial Directors, or (ii) a
committee of at least three directors appointed by the Board (regardless whether
the members of the Board of Directors voting on such appointment are fewer than
three Impartial Directors or if the Board of Directors or the committee
appointed pursuant to clause (ii) of this paragraph so directs (regardless
whether the members thereof are Impartial Directors), independent legal counsel,
which may be the regular outside counsel of the Corporation.
(d) "Disbursing Officer" - the Chief Executive Officer of the Corporation
or, if the Chief Executive Officer is a party to the Claim for which
indemnification is being sought, any officer not a party to such Claim who is
designated by the Chief Executive Officer to be the Disbursing Officer with
respect to indemnification request related to the Claim, which designation shall
be made promptly after receipt of the initial request for indemnification with
respect to such Claim.
(e) "Expenses" - any expenses or costs (including, without limitation,
attorney's fees, judgements, punitive or exemplary damages, fines and amounts
paid in settlement).
(f) "Indemnitee" - each person who is or was a director or officer of the
Corporation or the spouse of such person.
2. Indemnity.
---------
(a) To the extent such Expenses exceed the sum or amounts paid or due
under or pursuant to (i) policies of liability insurance maintained by the
Corporation, (ii) policies of liability insurance maintained by or on behalf of
the Indemnitee, and (iii) provisions for indemnification in the by-laws,
resolutions or other instruments of any entity other than the Corporation, the
Corporation shall indemnify Indemnitee against any Expenses actually and
reasonably incurred by him (as they are incurred) in connection with any Claim
either against him or as to which he is involved solely as a witness or person
required to give evidence, by reason of his position.
(i) as a director or officer of the Corporation,
(ii) as a director or officer of any subsidiary of the Corporation or
as a fiduciary with respect to any employee benefit plan of the Corporation,
(iii) as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other for profit or not for
profit entity or enterprise, if such position is or was held at the request of
the Corporation, or
(iv) as the spouse of any person who is or was a director or officer
of the Corporation with
3
respect to any Claim involving the spouse arising by reason of such person's
position as described in clauses (i) , (ii) or (iii), whether relating to
service in such position before or after the effective date of this Section, if
he (i) is successful in his defense of the Claim on the merits or otherwise or
(ii) has been found by the Determining Body (acting in good faith) to have met
the Standard of Conduct; provided that (A) the amount otherwise payable by the
Corporation may be reduced by the Determining Body to such amount as it deems
proper if it determines that the Claim involved the receipt of a personal
benefit by Indemnitee, and (B) no indemnification shall be made in respect of
any Claim as to which Indemnitee shall have been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable
for willful or intentional misconduct in the performance of his duty to the
Corporation or to have obtained an improper personal benefit, unless, and only
to the extent that, a court shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such Expenses as
the court deems proper.
(b) The Standard of Conduct is met when the conduct by an Indemnitee with
respect to which a Claim is asserted was conduct that he reasonably believed to
be in, or not opposed to, the best interest of the Corporation, and, in the case
of a criminal action or proceeding, that he had no reasonable cause to believe
was unlawful. The termination of any Claim by judgment, or order, settlement,
conviction, or upon a plea of nolo contendere or it equivalent, shall not, of
itself, create a presumption that Indemnitee did not meet the Standard of
Conduct .
(c) Promptly upon becoming aware of the existence of any Claim as to which he
may be indemnified hereunder, Indemnitee shall notify the Chief Executive
Officer of the Corporation of the Claim and whether he intends to seek
indemnification hereunder. If such notice indicates that Indemnitee does so
intend, the Chief Executive Officer shall promptly advise the Board thereof and
notify the Board that the establishment of the Determining Body with respect to
the Claim will be a matter presented at the next regularly scheduled meeting of
the Board. After the Determining Body has been established, the Chief Executive
Officer shall inform the Indemnitee thereof and Indemnitee shall immediately
provide the Determining Body with all facts relevant to the Claim known to him.
Within 60 days of the receipt of such information, together with such additional
information as the Determining Body may request of Indemnitee, the Determining
Body shall determine, and shall advise Indemnitee of its determination, whether
Indemnitee has met the Standard of Conduct. The Determining Body may extend such
60 day period by no more than an additional 60 days.
(d) Indemnitee shall promptly inform the Determining Body upon his becoming
aware of any relevant facts not therefore provided by him to the Determining
Body, unless the Determining Body has obtained such facts by other means. If,
after determining that the Standard of Conduct has been met, the Determining
Body obtains facts of which it was not aware at the time it made such
determination, the Determining Body on its own motion, after notifying the
Indemnitee and providing him an opportunity to be heard, may, on the basis of
such facts, revoke such determination, provided that in the absence of actual
fraud by Indemnitee no such revocation may be made later than 30 days after
final disposition of the Claim.
(e) In the case of any Claim not involving a proposed, threatened or pending
criminal
4
proceeding,
(i) If Indemnitee has, in the good faith judgment of the Determining
Body, met the Standard of Conduct, the Corporation may, in its sole discretion
after notice to Indemnitee, assume all responsibility for the defense of the
Claim, and, in any event, the Corporation and the Indemnitee each shall keep the
other informed as to the progress of the defense, including prompt disclosure of
any proposals for settlement; provided that if the Corporation is a party to the
Claim and Indemnitee reasonably determines that there is a conflict between the
positions of the Corporation and Indemnitee with respect to the Claim, then
Indemnitee shall be entitled to conduct his defense, with counsel of his choice;
and provided further that Indemnitee shall in any event be entitled at is
expense to employ counsel chosen by him to participate in the defense of the
Claim; and
(ii) The Corporation shall fairly consider any proposals by Indemnitee for
settlement of the Claim. If the Corporation (A) proposes a settlement acceptable
to the person asserting the Claim, or (B) believes a settlement proposed by the
person asserting the Claim should be accepted, it shall inform Indemnitee of the
terms thereof and shall fix a reasonable date by which Indemnitee shall respond.
If Indemnitee agrees to such terms, he shall execute such documents as shall be
necessary to effect the terms, he shall execute such documents as shall be
necessary to effect the settlement. If he does not agree he may proceed with the
defense of the Claim in any manner he chooses, but if he is not successful on
the merits or otherwise, the Corporation's obligation to indemnify him for any
Expenses incurred following his disagreement shall be limited to the lesser of
(A) the total Expenses incurred by him following his decision not to agree to
such proposed settlement or (B) the amount the Corporation would have paid
pursuant to the terms of the proposed settlement. If, however, the proposed
settlement would impose upon Indemnitee any requirement to act or refrain from
acting that would materially interfere with the conduct of his affairs,
Indemnitee may refuse such settlement and proceed with the defense of the Claim,
if he so desires, at the Corporation's expense without regard to the limitations
imposed by the preceding sentence. In no event, however, shall the Corporation
be obligated to indemnify Indemnitee for any amount paid in a settlement that
the Corporation has not approved.
(f) In the case of a Claim involving a proposed, threatened or pending
criminal proceeding, Indemnitee shall be entitled to conduct the defense of the
Claim, and to make all decisions with respect thereto, with counsel of his
choice; provided that the Corporation shall not be obligated to indemnify
Indemnitee for an amount paid in settlement that the Corporation has not
approved.
(g) After notifying the Corporation of the existence of a Claim, Indemnitee
may from time to time request the Corporation to pay the Expenses (other than
judgments, fines, penalties or amounts paid in settlement) that he incurs in
pursuing a defense of the Claim prior to the time that the Determining Body
determines whether the Standard of Conduct has been met. If the Disbursing
Officer believes the amount requested to be reasonable, he shall pay to
Indemnitee the amount requested (regardless of Indemnitee=s apparent ability to
repay such amount) upon receipt of an undertaking by or on behalf of Indemnitee
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation under the circumstances. If the
Disbursing Officer does not believe such amount to be reasonable, the
Corporation shall pay the amount deemed by him to be reasonable and Indemnitee
may apply directly to the Determining
5
Body for the remainder of the amount requested.
(h) After it has been determined that the Standard of Conduct was met, for so
long as and to the extent that the Corporation is required to indemnify
Indemnitee under this Agreement, the provisions of Paragraph (g) shall continue
to apply with respect to Expenses incurred after such time, expect that (i) no
undertaking shall be required of Indemnitee and (ii) the Disbursing Officer
shall pay to Indemnitee such amount of any fines, penalties or judgments against
him which have become final as the Corporation is obligated to indemnify him.
(i) Any determination by the Corporation with respect to settlements of a
Claim shall be made by the Determining Body.
(j) The Corporation and Indemnitee shall keep confidential, to the extent
permitted by law and their fiduciary obligations, all facts and determinations
provided or made pursuant to or arising out of the operation of this Agreement,
and the Corporation and Indemnitee shall instruct it or his agents and employees
to do likewise.
3. Enforcement.
-----------
(a) The rights provided by this Section shall be enforceable by Indemnitee in
any court of competent jurisdiction.
(b) If Indemnitee seeks a judicial adjudication of his rights under this
Section, Indemnitee shall be entitled to recover from the Corporation, and shall
be indemnified by the Corporation against, any and all Expenses actually and
reasonably incurred by him in connection with such proceeding, but only if he
prevails therein. If it shall be determined that Indemnitee is entitled to
receive part but not all of the relief sought, then the Indemnitee shall be
entitled to be reimbursed for all Expenses incurred by him in connection with
such judicial adjudication if the amount to which he is determined to be
entitled exceeds 50% of the amount of his claim. Otherwise, the Expenses
incurred by Indemnitee in connection with such judicial adjudication shall be
appropriately prorated.
(c) In any judicial proceeding described in this subsection, the Corporation
shall bear the burden of proving that Indemnitee is not entitled to any Expenses
sough with respect to any Claim.
4. Saving Clause. If any provision of this Section is determined by a court
-------------
having jurisdiction over the matter to require the Corporation to do or refrain
from doing any act that is in violation of applicable law, the court shall be
empowered to modify or reform such provision so that, as modified or reformed,
such provision provides the maximum indemnification permitted by law, and such
provision, as so modified or reformed, and the balance of this Section, shall be
applied in accordance with their terms. Without, the generality of the
foregoing, if any portion of this Section shall be invalidated on any ground,
the Corporation shall nevertheless indemnify an Indemnitee to the full extent
permitted by any applicable portion of this Section that shall not have been
invalidated and to the full extent permitted by law with respect to that portion
that has been invalidated.
5. Non-Exclusivity.
---------------
6
(a) The indemnification and advancement of Expenses provided by or granted
pursuant to this Section shall not be deemed exclusive of any other rights to
which Indemnitee is or may become entitled under any statue, article of
incorporation, by-law, authorization of shareholders or directors, agreement, or
otherwise.
(b) It is the intent of the Corporation by this Section to indemnify and hold
harmless Indemnitee to the full extent permitted by law, so that if applicable
law would permit the Corporation to provide broader indemnification rights that
are currently permitted, the Corporation shall indemnify and hold harmless
Indemnitee to the full extent permitted by applicable law notwithstanding that
the other terms of this Section would provide for lesser indemnification.
6. Successors and Assigns. This Section shall be binding upon the Corporation,
----------------------
its successors and assigns, and shall inure to the benefit of the Indemnitee=s
heirs, personal representatives, and assigns and to the benefit of the
Corporation, its successors and assigns.
7. Indemnification of Other Persons.
--------------------------------
(a) The Corporation may indemnify any person not covered by Section 1 through
6 to the extent provided in a resolution of the Board or a separate Section of
these By-laws.
(b) Nothing in this Section 7 shall obligate the Corporation to indemnify or
advance expenses to any person who was a director, officer or agent of any
corporation merged into this Corporation or otherwise acquired by this
Corporation. Any such person's right to indemnification or advancement of
expenses, if any, shall consist of those rights contained in the agreement
relating to such merger or acquisition.
Section 145 of the General Corporation Law of the State of Delaware
authorizes a corporation's board of directors to grant indemnity under certain
circumstances to directors and officers, when made, or threatened to be made,
parties to certain proceedings by reason of such status with the corporation,
against judgments, fines, settlements and expenses, including attorneys' fees.
In addition, under certain circumstances such persons may be indemnified against
expenses actually and reasonably incurred in defense of a proceeding by or on
behalf of the corporation. Similarly, the corporation, under certain
circumstances, is authorized to indemnify directors and officers of other
corporations or enterprises who are serving as such at the request of the
corporation, when such persons are made, or threatened to be made, parties to
certain proceedings by reason of such status, against judgments, fines,
settlements and expenses, including attorneys' fees; and under certain
circumstances, such persons may be indemnified against expenses actually and
reasonably incurred in connection with the defense or settlement of a proceeding
by or in the right of such other corporation or enterprise. Indemnification is
permitted where such person (i) was acting in good faith, (ii) was acting in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation or other corporation or enterprise, as appropriate, (iii) with
respect to a criminal proceeding, had no reasonable cause to believe his conduct
was unlawful, and (iv) was not adjudged to be liable to the corporation or other
corporation or enterprise (unless the court where the
7
proceeding was brought determines that such person is fairly and reasonably
entitled to indemnity).
Unless ordered by a court, indemnification may be made only following a
determination that such indemnification is permissible because the person being
indemnified has met the requisite standard of conduct. Such determination may be
made (i) by the corporation's board of directors by a majority vote of a quorum
consisting of directors not at the time parties to such proceeding; or (ii) if
such a quorum cannot be obtained or the quorum so directs, then by independent
legal counsel in a written opinion; or (iii) by the stockholders.
Section 145 also permits expenses incurred by directors and officers in
defending a proceeding to be paid by the corporation in advance of the final
disposition of such proceedings upon the receipt of an undertaking by the
director or officer to repay such amount if it is ultimately determined that he
is not entitled to be indemnified by the corporation against such expenses.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits.
---------
Regulation S-K
Exhibit No. Description
- -------------- -----------
4 Superior Financial Corp. 1998 Long-Term Incentive Plan
5 Opinion of Miller, Hamilton, Snider & Odom, L.L.C. as
to certain issues regarding the securities being
registered
23.1 Consent of Miller, Hamilton, Snider & Odom, L.L.C.,
contained in Exhibit 5
23.2 Consent of Ernst & Young LLP
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:
8
(i) To include any prospectus required by section 10(a)(3) of the Securities
Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(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 Exchange Act 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 relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant 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 Exchange Act
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.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions summarized in Item 6 of this
Registration Statement, 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 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 Act and
will be governed by the final adjudication of such issue.
9
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 Little Rock, Arkansas, on the 2nd day of July,
2001.
SUPERIOR FINANCIAL CORP.
BY: /s/ C. Stanley Bailey
------------------------------------
C. Stanley Bailey
Its Chairman of the Board
of Directors and CEO
(Duly Authorized Representative)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ C. Stanley Bailey Chief Executive Officer
- ---------------------------
C. Stanley Bailey Chairman of the Board **
/s/ C. Marvin Scott President and Director **
- ---------------------------
C. Marvin Scott
/s/ Rick D. Gardner Chief Financial Officer and **
- ---------------------------
Rick D. Gardner Director
Director
- ---------------------------
Brian A. Gahr
/s/ David E. Stubblefield Director **
- ---------------------------
David E. Stubblefield
Director
- ---------------------------
John M. Stein
/s/ Howard B. McMahon Director **
- ---------------------------
Howard B. McMahon
/s/ Ben F. Scroggin, Jr. Director **
- ---------------------------
Ben F. Scroggin, Jr.
Director
- ---------------------------
John E. Steuri
** July 2, 2001
EXHIBIT INDEX
EXHIBIT
- -------
EXHIBIT NO. DESCRIPTION
4 Superior Financial Corp. 1998 Long-Term
Incentive Plan
5 Opinion of Miller, Hamilton, Snider & Odom,
L.L.C. as to certain issues regarding the
securities being registered
23.1 Consent of Miller, Hamilton, Snider
& Odom, L.L.C., contained in Exhibit 5
23.2 Consent of Ernst & Young LLP