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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 15, 1996
REGISTRATION NO. 333-12537
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERICAN FINANCIAL GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
OHIO
(State or other jurisdiction of incorporation or 31-1422526
organization) (IRS Employer Identification Number)
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(513) 579-2121
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
AMERICAN FINANCIAL CAPITAL TRUST I
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(State or other jurisdiction of incorporation or 31-6538554
organization) (IRS Employer Identification Number)
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(513) 579-2121
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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JAMES C. KENNEDY, ESQ.
Deputy General Counsel and Secretary
with copies to: American Financial Group, Inc. with copies to:
One East Fourth Street
Gary P. Kreider, Esq. Cincinnati, Ohio 45202 Timothy E. Hoberg, Esq.
Keating, Muething & Klekamp, P.L.L. (513) 579-2538 Taft, Stettinius & Holliser
1800 Provident Tower (Name, address, including zip code, 1800 Star Bank Center
One East Fourth Street and telephone number, 425 Walnut Street
Cincinnati, Ohio 45202 including area code, of agent for Cincinnati, Ohio 45202
(513) 579-6411 service) (513) 357-9308
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the date this registration statement becomes effective.
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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 of the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box.
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, 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, 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.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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 table sets forth the expenses in connection with the offering
described in this Registration Statement:
Securities and Exchange Commission registration fee*.............................. $ 39,655
NYSE listing fee.................................................................. 45,000
Legal fees and expenses........................................................... 175,000
Accounting fees and expenses...................................................... 40,000
Printing and engraving expenses................................................... 115,000
Trustee's fees and expenses....................................................... 12,000
Rating Agencies' fees............................................................. 95,000
Blue Sky fees and expenses........................................................ 15,000
Miscellaneous..................................................................... 13,345
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TOTAL........................................................................... $550,000
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*Actual; other expenses are to be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Ohio Revised Code, Section 1701.13(E), allows indemnification by the
Company of any person made or threatened to be made a party to any proceedings,
other than a proceeding by or in the right of the Company, by reason of the fact
that he is or was a director, officer, employee or agent of the Company, against
expenses, including judgment and fines, if he acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to criminal actions, in which he had no reasonable
cause to believe that his conduct was unlawful. Similar provisions apply to
actions brought by or in the right of the Company, except that no
indemnification shall be made in such cases when the person shall have been
adjudged to be liable for negligence or misconduct to the Company unless deemed
otherwise by the court. Indemnifications are to be made by a majority vote of a
quorum of disinterested directors or the written opinion of independent counsel
or by the shareholders or by the court. The Company's Code of Regulations
extends such indemnification.
The Company maintains, at its expense, Directors and Officers Liability and
Company Reimbursement Liability Insurance. The Directors and Officers Liability
portion of such policy covers all directors and officers of the Company and of
the companies which are, directly or indirectly, more than 50% owned by the
Company. The policy provides for payment on behalf of the directors and
officers, up to the policy limits and after expenditure of a specified
deductible, of all Loss (as defined) from claims made against them during the
policy period for defined wrongful acts, which include errors, misstatements or
misleading statements, acts or omissions and neglect or breach of duty by
directors and officers in the discharge of their individual or collective duties
as such. The insurance includes the cost of investigations and defenses, appeals
and bonds and settlements and judgments, but not fines or penalties imposed by
law. The insurance does not cover any claims arising out of acts alleged to have
been committed prior to November 24, 1978. The insurer limit of liability under
the policy is $50,000,000 in the aggregate for all losses each year subject to
certain individual and aggregate deductibles. The policy contains various
exclusions and reporting requirements.
The Company also has entered into indemnification agreements with its
executive officers and directors providing for indemnification (and advancement
of expenses) against certain liabilities to the fullest extent provided by Ohio
law.
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The Declaration provides that no Property Trustee or any of its Affiliates,
Delaware Trustee or any of its Affiliates, or any officer, director,
shareholder, member, partner, employee, representative, custodian, nominee or
agent of the Property Trustee or the Delaware Trustee (each a "Fiduciary
Indemnified Person"), and no Regular Trustee, Affiliate of any Regular Trustee,
or any officer, director, shareholder, member, partner, employee, representative
or agent of any regular Trustee or any Affiliate thereof, or any employee or
agent of the Trust or its Affiliates (each a "Company Indemnified Person") shall
be liable, responsible or accountable in damages or otherwise to the Trust or
any officer, director, shareholder, partner, member, representative, employee or
agent of the Trust or its Affiliates or to any holder of Preferred Securities
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Fiduciary Indemnified Person or Company Indemnified
Person in good faith on behalf of the Trust and in a manner such Fiduciary
Indemnified Person or Company Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Fiduciary Indemnified Person
or Company Indemnified Person by such Declaration or by law, except that a
Fiduciary Indemnified Person or Company Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Fiduciary Indemnified
Person's or Company Indemnified Person's gross negligence or willful misconduct
with respect to such acts or omissions.
The Declaration also provides that to the full extent permitted by law, the
Company shall indemnify any Company Indemnified Person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Trust) by reason of the fact
that he is or was a Company Indemnified Person against expense (including
attorneys' fees), judgements, fines and amounts paid in settlement actually and
reasonably incurred by him 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 interest of the Trust, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The Declaration also provides that to the full extent permitted by
law, the Company shall indemnify and Company Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a judgement
in its favor by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit 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 Trust and except that no such
indemnification shall be made in respect of any claim, issue or manner as to
which such Company Indemnified Person shall have been adjudged to be liable to
the Trust unless and only to the extent that the Court of Chancery of Delaware
or 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, such person is fairly and reasonably entitled to
indemnity for such expenses which Court of Chancery or such other court shall
deem proper. The Declaration further provides that expenses (including
attorneys' fees) incurred by a Company Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding referred to
in the immediately preceding two sentences shall be paid by the Company in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such Company Indemnified Person to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Company as authorized in the Declaration.
The directors and officers of the Company and the Regular Trustees are
covered by insurance policies indemnifying them against certain liabilities,
including certain liabilities arising under the Securities Act of 1933, as
amended (the "Securities Act"), which might be incurred by them in such
capacities and against which they cannot be indemnified by the Company or the
Trust. Any agents, dealers or underwriters who execute any of the agreements
filed as Exhibit 1 to this Registration Statement will agree to indemnify the
Company's directors and their officers and the Trustees who signed the
Registration Statement against certain liabilities that may arise under the
Securities Act with respect to information furnished to the Company or the Trust
by or on behalf of any such indemnifying party.
The Declaration also provides that the Company shall indemnify each
Fiduciary Indemnified Person against any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts under the Trust,
including the costs and
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expenses (including reasonable legal fees and expenses) of defending itself
against or investigating any claim or liability in connection with the exercise
or performance of any of its powers or duties thereunder.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT
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1.1 Form of Underwriting Agreement for Preferred Securities
4.1* Form of Indenture
4.2* Certificate of Trust of American Financial Capital Trust I
4.3 Amended and Restated Declaration of Trust of American Financial Capital Trust I
4.4* Form of Preferred Securities Guarantee Agreement
4.5* Form of Common Securities Guarantee Agreement
4.6* Form of Subordinated Debenture (contained in Exhibit 4.1)
4.7* Form of Preferred Security
4.8* Form of Common Security
5.1 Opinion of Keating, Muething & Klekamp, P.L.L.
5.2 Opinion of Morris, Nichols, Arsht & Tunnell
8.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
23.1 Consents of Independent Auditors.
23.2 Consent of Keating, Muething & Klekamp, P.L.L. (Contained on Exhibit 5.1)
23.3 Consent of Morris, Nichols, Arsht & Tunnell (Contained on Exhibit 5.2)
23.4 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (Contained on Exhibit
8.1)
24 * Powers of Attorney (contained on the signature page).
25.1* Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Trustee under the Indenture
25.2* Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Trustee under the Declaration of American
Financial Capital Trust I
25.3* Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Trustee of the Trust Preferred Securities
Guarantee for the benefit of the holders of Preferred Securities of American
Financial Capital Trust I
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* Previously filed.
ITEM 17. UNDERTAKINGS.
(a) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or 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.
(b) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any
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action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Company will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question 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.
(c) The Company and the Trust hereby undertake 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 a form of
prospectus filed by the Company and the Trust pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and
(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 Company
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
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Cincinnati, State of Ohio, as of the 15th day of
October, 1996
AMERICAN FINANCIAL GROUP, INC.
By: /s/ CARL H. LINDNER
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Carl H. Lindner
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE CAPACITY DATE
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/s/ CARL H. LINDNER* Chairman of the Board and Chief October 15, 1996
- ---------------------------- Executive Officer and a Director
Carl H. Lindner (Principal Executive Officer)
/s/ CARL H. LINDNER III* Director October 15, 1996
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Carl H. Lindner III
/s/ S. CRAIG LINDNER* Director October 15, 1996
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S. Craig Lindner
/s/ KEITH E. LINDNER* Director October 15, 1996
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Keith E. Lindner
/s/ JAMES E. EVANS* Director October 15, 1996
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James E. Evans
/s/ Theodore H. Emmerich* Director October 15, 1996
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Theodore H. Emmerich
/s/ THOMAS M. HUNT* Director October 15, 1996
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Thomas M. Hunt
/s/ WILLIAM R. MARTIN* Director October 15, 1996
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William R. Martin
/s/ FRED J. RUNK Senior Vice President and Treasurer October 15, 1996
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Fred J. Runk Officer)
*By: /s/ JAMES C. KENNEDY
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James C. Kennedy
Attorney-in-Fact
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, American
Financial Capital Trust I 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 Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Cincinnati, State of Ohio,
as of the 15th day of October, 1996
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
AMERICAN FINANCIAL CAPITAL TRUST I
By: /s/ JAMES E. EVANS*
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James E. Evans, as Trustee
By: /s/ THOMAS E. MISCHELL*
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Thomas E. Mischell, as Trustee
*By: /s/ JAMES C. KENNEDY
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James C. Kennedy
Attorney-in-Fact
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