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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 12, 1998.
REGISTRATION NO. 333-53967
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ARM FINANCIAL GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 63 61-1244251
(State or other jurisdiction (Primary standard industrial (I.R.S. Employer
of incorporation or organization) Classification code number) Identification No.)
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ARM FINANCIAL GROUP, INC.
515 WEST MARKET STREET
LOUISVILLE, KENTUCKY 40202
(502) 582-7900
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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ROBERT H. SCOTT
ARM FINANCIAL GROUP, INC.
515 WEST MARKET STREET
LOUISVILLE, KENTUCKY 40202
(502) 582-7900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
FAITH D. GROSSNICKLE, ESQ.
SHEARMAN & STERLING
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 848-4000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: From time to time after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please 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, other than securities offered only in connection with dividend or interest
reinvestment plans, 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 of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following fees and expenses shall be borne by the Company in connection
with this offering. All fees and expenses other than the SEC and listing fees
are estimated.
SEC Registration Fee........................................ $22,125
NASD Filing Fee............................................. 8,000
Listing Fee................................................. 29,500
Rating Agency Fees.......................................... 75,000
Printing and Engraving Expenses............................. 75,000
Legal Fees and Expenses..................................... 100,000
Accountants' Fees and Expenses.............................. 50,000
Blue Sky Qualification Fees and Expenses.................... 10,000
Preferred Stock Depositary's Fees and Expenses.............. 5,000
Miscellaneous............................................... 50,375
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TOTAL............................................. 425,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law provides, in summary,
that directors and officers of Delaware corporations are entitled, under certain
circumstances, to be indemnified against all expenses and liabilities (including
attorneys' fees) incurred by them as a result of suits brought against them in
their capacity as a director or officer, if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, if they
had no reasonable cause to believe their conduct was unlawful; provided that no
indemnification may be made against expenses in respect of any claim, issue or
matter as to which they shall have been adjudged to be liable to the
corporation, unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, they
are fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper. Any such indemnification may be made by the corporation
only as authorized in each specific case upon a determination by the
stockholders or disinterested directors that indemnification is proper because
the indemnitee has met the applicable standard of conduct.
The Restated Certificate of Incorporation of the Registrant (the
"Certificate of Incorporation") provides that no director of the Registrant
shall be personally liable to the Registrant or its stockholders for monetary
damages for any breach of fiduciary duty as a director, except for liability:
(i) for any breach of the director's duty of loyalty to the Registrant or its
stockholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) in respect of
certain unlawful dividend payments or stock redemptions or purchases or (iv) for
any transaction from which the director derived an improper personal benefit.
The Certificate of Incorporation and the By-laws of the Registrant provide
for indemnification of its directors and officers to the fullest extent
permitted by Delaware law, as the same may be amended from time to time. In
addition, Morgan Stanley Dean Witter & Co. ("MSDW") indemnifies those directors
of the Registrant who are also officers of Morgan Stanley & Co. Incorporated.
The Underwriting Agreement (Exhibit 1.1 hereto) contains provisions for
certain indemnification rights to the directors and officers of the Registrant.
In addition, the Registrant and MSDW maintain directors' and officers'
liability insurance for their respective directors and officers.
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ITEM 16. EXHIBITS
NUMBER
ASSIGNED IN
REGULATION S-K,
ITEM 601 DESCRIPTION OF EXHIBIT
- --------------- ----------------------
1.1* Form of underwriting agreement.
2.1 Asset Purchase Agreement, dated as of January 5, 1995, among
Kleinwort Benson Investment Management Holdings Ltd.,
Kleinwort Benson Investment Management Americas Inc., ARM
Financial Group, Inc., and ARM Capital Advisors, Inc.+
2.2 Stock and Asset Purchase Agreement by and between SBM
Company and ARM Financial Group, Inc. dated as of February
16, 1995.+
2.3 Amended and Restated Stock and Asset Purchase Agreement,
dated as of April 7, 1995, by and between SBM Company and
ARM Financial Group, Inc.++, amending the Stock and Asset
Purchase Agreement, dated as of February 16, 1995.+
2.4 Subscription Agreement dated as of June 12, 1995, among ARM
Financial Group, Inc. and New ARM, LLC, Dudley J. Godfrey,
Jr. and Edward Powers.+++
4.1 Second Amended and Restated Stockholders Agreement dated as
of June 24, 1997, among ARM Financial Group, Inc., The
Morgan Stanley Leveraged Equity Fund II, L.P., John Franco,
Martin H. Ruby, Oldarm L.P., Morgan Stanley Capital Partners
III, L.P., Morgan Stanley Capital Investors, L.P., MSCP III
892 Investors, L.P. and New ARM, LLC.++++
4.2** Form of Certificate of Designation of Offered Preferred
Stock.
4.3** Form of Certificate of Offered Preferred Stock.
4.4** Form of Deposit Agreement.
5.1** Opinion of Shearman & Sterling.
12.1* Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends.
23.1** Consent of Shearman & Sterling (included in its opinion
delivered under Exhibit No. 5.1)
23.2* Consent of Ernst & Young LLP.
24.1* Powers of Attorney.
- ---------------
* Previously filed.
** Filed herewith.
+ Incorporated by reference to the Form 10-K filed by the
Registrant on March 30, 1995.
++ Incorporated by reference to the Form 10-Q filed by the
Registrant on May 15, 1995.
+++ Incorporated by reference to the Form 10-K filed by the
Registrant on March 29, 1996.
++++ Incorporated by reference to Amendment No. 3 to the Form S-1
Registration Statement filed by the Registrant on May 23,
1997.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales of the
securities 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if
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the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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 set forth in the Registration
Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section
do not apply if the Registration Statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission 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) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant for 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.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
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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-3 and has duly caused this amendment to the
Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Louisville, State of
Kentucky, on June 12, 1998.
ARM FINANCIAL GROUP, INC.
By: /s/ MARTIN H. RUBY
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Name: Martin H. Ruby
Title: Chairman of the Board of
Directors and Chief Executive
Officer (Principal Executive
Officer)
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the Registration Statement on Form S-3 has been signed below by the following
persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ MARTIN H. RUBY Chairman of the Board of June 12, 1998
- ----------------------------------------------------- Directors and Chief
Martin H. Ruby Executive Officer (Principal
Executive Officer) and
Director
* President -- Retail Business June 12, 1998
- ----------------------------------------------------- Division and Director
John R. Lindholm
* Executive Vice June 12, 1998
- ----------------------------------------------------- President -- Chief Financial
Edward L. Zeman Officer (Principal Financial
Officer)
* Controller (Principal June 12, 1998
- ----------------------------------------------------- Accounting Officer)
Barry G. Ward
* Director June 12, 1998
- -----------------------------------------------------
Dudley J. Godfrey, Jr.
* Director June 12, 1998
- -----------------------------------------------------
Edward D. Powers
* Director June 12, 1998
- -----------------------------------------------------
Colin F. Raymond
* Director June 12, 1998
- -----------------------------------------------------
Irwin T. Vanderhoof
*By Martin H. Ruby, attorney-in-fact.
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NUMBER
ASSIGNED IN SEQUENTIALLY
REGULATION S-K, NUMBERED
ITEM 601 DESCRIPTION OF EXHIBIT PAGE
- --------------- ---------------------- ------------
1.1* Form of underwriting agreement.
2.1 Asset Purchase Agreement, dated as of January 5, 1995, among
Kleinwort Benson Investment Management Holdings Ltd.,
Kleinwort Benson Investment Management Americas Inc., ARM
Financial Group, Inc., and ARM Capital Advisors, Inc.+
2.2 Stock and Asset Purchase Agreement by and between SBM
Company and ARM Financial Group, Inc. dated as of February
16, 1995.+
2.3 Amended and Restated Stock and Asset Purchase Agreement,
dated as of April 7, 1995, by and between SBM Company and
ARM Financial Group, Inc.++, amending the Stock and Asset
Purchase Agreement, dated as of February 16, 1995.+
2.4 Subscription Agreement dated as of June 12, 1995, among ARM
Financial Group, Inc. and New ARM, LLC, Dudley J. Godfrey,
Jr. and Edward Powers.+++
4.1 Second Amended and Restated Stockholders Agreement dated as
of June 24, 1997, among ARM Financial Group, Inc., The
Morgan Stanley Leveraged Equity Fund II, L.P., John Franco,
Martin H. Ruby, Oldarm L.P., Morgan Stanley Capital Partners
III, L.P., Morgan Stanley Capital Investors, L.P., MSCP III
892 Investors, L.P. and New ARM, LLC.++++
4.2** Form of Certificate of Designation of Offered Preferred
Stock.
4.3** Form of Certificate of Offered Preferred Stock.
4.4** Form of Deposit Agreement.
5.1** Opinion of Shearman & Sterling.
12.1* Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends.
23.1** Consent of Shearman & Sterling (included in its opinion
delivered under Exhibit No. 5.1)
23.2* Consent of Ernst & Young LLP.
24.1* Powers of Attorney.
- ---------------
* Previously filed.
** Filed herewith.
+ Incorporated by reference to the Form 10-K filed by the
Registrant on March 30, 1995.
++ Incorporated by reference to the Form 10-Q filed by the
Registrant on May 15, 1995.
+++ Incorporated by reference to the Form 10-K filed by the
Registrant on March 29, 1996.
++++ Incorporated by reference to Amendment No. 3 to the Form S-1
Registration Statement filed by the Registrant on May 23,
1997.