As filed with the Securities and Exchange Commission on June 4, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
American
Equity Investment Life Holding Company
(Exact name of registrant as specified in its charter)
| Iowa | 42-1447959 |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
|
6000 Westown Parkway West Des Moines, Iowa |
50266 |
| (Address of Principal Executive Offices) | (Zip Code) |
American
Equity Investment Life Holding Company Amended and Restated Equity Incentive Plan
(Full title of the plan)
Anant
Bhalla
Chief Executive Officer and President
6000 Westown Parkway
West Des Moines, Iowa 50266
(Name and address of agent for service)
(515)
221-0002
(Telephone number, including area code, of agent for service)
Copies to:
Shilpi Gupta
Skadden, Arps, Slate, Meagher & Flom LLP
155 North Wacker Drive
Chicago, Illinois 60606
(312) 407-0700
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer x | Accelerated filer ¨ |
| Non-accelerated filer ¨ | Smaller reporting company ¨ |
| Emerging growth company ¨ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
| Title of securities to be registered | Amount to be registered (1)(2)(3) | Proposed maximum offering price per share (4) | Proposed maximum aggregate offering price (4) | Amount of registration fee (5) | ||||||||
| Common Stock, par value $1 per share | 5,038,088 shares | $21.54 | $108,520,415.52 | $14,085.95 |
| (1) | This registration statement registers the issuance of 5,038,088 shares of Common Stock, par value $1 per share, of American Equity Investment Life Holding Company (the “Registrant”) that are issuable pursuant to the Registrant’s Amended and Restated Equity Incentive Plan (the “Plan”), which is an amendment and restatement of the American Equity Investment Life Holding Company 2016 Employee Incentive Plan. |
| (2) | Consists of (a) 4,351,178 shares available for issuance pursuant to future awards under the Plan plus (b) a number of shares equal to the number of shares underlying or constituting outstanding awards held by participants under the Plan that would become available for issuance pursuant to future awards under the Plan to the extent that (i) such outstanding awards expire, are terminated or are canceled without having been exercised or settled in full or (ii) such shares constituting outstanding awards are forfeited or repurchased by the Registrant for an amount not greater than the participant’s purchase price. |
| (3) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate amount of additional securities as may result from anti-dilution adjustments under the Plan and which may hereafter be offered or issued to prevent dilution resulting from stock splits, stock dividends, recapitalizations or certain other capital adjustments. |
| (4) | Estimated solely for purposes of calculating the registration fee in accordance with Rules 457(c) and 457(h) under the Securities Act, based on the average of the high and low prices per share of the Registrant’s Common Stock as reported on the New York Stock Exchange on June 2, 2020. |
| (5) | Calculated pursuant to Section 6(b) of the Securities Act by multiplying 0.0001298 by the proposed maximum aggregate offering price. |
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is omitted from this registration statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part I of Form S-8. The documents containing the information required by Part I will be delivered to the participants in the American Equity Investment Life Holding Company Amended and Restated Equity Incentive Plan (the “Plan”) as required by Rule 428(b)(1) under the Securities Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents previously filed by American Equity Investment Life Holding Company (the “Registrant”) with the Securities and Exchange Commission (the “Commission”) are incorporated by reference in this registration statement:
| · | the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed on February 25, 2020 (File No. 001-31911); |
| · | the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2020, filed on May 11, 2020 (File No. 001-31911); |
| · | the Registrant’s Current Reports on Form 8-K filed on March 2, 2020 and January 9, 2020 (File No. 001-31911); and |
| · | the description of the Registrant’s Common Stock contained in the Registrant’s registration statement on Form S-3 filed on August 30, 2019 (File No. 333-233544) and any amendment or report (including the Registrant’s Current Report on Form 8-K filed on November 21, 2019 (File No. 001-31911)) filed for the purpose of updating such description. |
In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold (other than documents or information deemed to have been furnished and not filed in accordance with Commission rules), shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of filing of such documents. The most recent information that the Registrant files with the Commission automatically updates and supersedes older information. Nothing in this registration statement shall be deemed to incorporate by reference information furnished to, but not filed with, the Commission.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
The validity of the issuance of the shares of the Registrant’s Common Stock, par value $1 per share, offered hereby will be passed upon for the Registrant by Renee D. Montz, Executive Vice President, General Counsel and Secretary of the Registrant. Ms. Montz owns shares of the Registrant’s Common Stock, beneficially and as a participant in various employee benefit plans, holds shares of restricted stock and restricted stock units, and is eligible to participate in the Plan.
| Item 6. | Indemnification of Directors and Officers. |
Section 490.202 of the Iowa Business Corporation Act (the “IBCA”) provides that a corporation’s articles of incorporation may contain a provision eliminating or limiting the liability of a director to the corporation or its shareholders for money damages for any action taken, or failure to take action, as a director, provided that the provision does not eliminate or limit the liability of a director for: (1) the amount of a financial benefit received by a director to which the director is not entitled; (2) an intentional infliction of harm on the corporation or its shareholders; (3) a violation of Section 490.833 of the IBCA, which relates to liability for unlawful distributions; or (4) an intentional violation of criminal law. Further, Section 490.851 of the IBCA provides that a corporation may indemnify its directors party to a proceeding against liability incurred in the proceeding by reason of such person serving in the capacity of director, subject to specified standards being met and subject to certain exclusions. In addition, Section 490.852 of the IBCA provides mandatory indemnification of reasonable expenses incurred by a director who is wholly successful in defending any action in which the director was a party because the director is or was a director of the corporation. A director who is a party to a proceeding because the person is a director may also apply for court-ordered indemnification and advance of expenses under Section 490.854 of the IBCA.
Section 490.853 of the IBCA provides that a corporation may, before final disposition of a proceeding, advance funds to pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding because he is a director if the director meets certain conditions.
Under Section 490.856 of the IBCA, a corporation may indemnify and advance expenses to an officer of the corporation who is a party to a proceeding because he is an officer to the same extent as to a director. In addition, if the person is an officer but not a director, further indemnification may be provided by the corporation’s articles of incorporation, the bylaws, a resolution of the board of directors or contract, subject to certain exclusions. Such indemnification is also available to an officer who is also a director if the basis on which the officer is made a party to a proceeding is an action taken or a failure to take an action solely as an officer.
The Registrant’s amended articles of incorporation provide that its directors will not be liable to the Registrant or its shareholders for money damages for any action taken, or any failure to take any action, as a director, except liability for: (1) the amount of a financial benefit received by a director to which the director is not entitled; (2) intentional infliction of harm on the Registrant or its shareholders; (3) a violation of Section 490.833 of the IBCA, which relates to liability for unlawful distributions; and (4) an intentional violation of criminal law.
The Registrant’s amended articles of incorporation also provide that each of its current and former directors who was or is made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director of the Registrant or is or was serving at its request as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall be indemnified and held harmless by the Registrant to the fullest extent permitted by applicable law, except liability for: (1) a financial benefit received by a director to which the director is not entitled; (2) an intentional infliction of harm on the Registrant or its shareholders; (3) a violation of Section 490.833 of the IBCA, which relates to liability for unlawful distributions; and (4) an intentional violation of criminal law. In addition to such indemnification, any such director and any officer are entitled to have any expenses reasonably incurred in defending any such proceeding or any similar proceeding against any officer in advance of its final disposition paid directly by the Registrant to the fullest extent authorized by applicable law.
The Registrant’s bylaws also provide indemnification to its directors on the same terms as the indemnification provided in the Registrant’s amended articles of incorporation. The Registrant’s bylaws also provide for the direct payment by the Registrant of expenses to its directors and officers on the same terms as provided in the Registrant’s amended articles of incorporation. The indemnification provisions of the Registrant’s bylaws are not exclusive of any other right which any person seeking indemnification may have or acquire under any statute, the Registrant’s amended articles of incorporation or any agreement, vote of shareholders or disinterested directors or otherwise.
As permitted by and in accordance with Section 490.857 of the IBCA, the Registrant maintains insurance coverage for its officers and directors as well as insurance coverage to reimburse the Registrant for potential costs for indemnification of directors and officers.
The Plan provides that, in addition to such other rights of indemnification as they may have as directors or as members of the Compensation Committee of the Registrant’s Board of Directors, directors must be indemnified by the Registrant against reasonable expenses, including attorneys’ fees, actually and reasonably incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan or any award granted thereunder, and against all amounts reasonably paid by them in settlement thereof or in satisfaction of a judgment in any such action, suit or proceeding, provided certain conditions are met. This right of indemnification is not exclusive of any other rights of indemnification to which such individuals may be entitled pursuant to the Registrant’s amended articles of incorporation or bylaws, as a matter of law, or otherwise, or any power that the Registrant may have to indemnify them or hold them harmless.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
| Item 8. | Exhibits. |
* Filed herewith.
| 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: |
| (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 this 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 this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if 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 in the registration statement; |
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in 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 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. |
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 West Des Moines, State of Iowa, on June 4, 2020.
| American Equity Investment Life Holding Company | ||
| By: | /s/ Anant Bhalla | |
| Name: | Anant Bhalla | |
| Title: | Chief Executive Officer and President | |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Anant Bhalla, Chief Executive Officer and President, and Renee D. Montz, Executive Vice President, General Counsel and Secretary, and each of them, as attorneys-in-fact, for him or her and in his or her name, place and stead, in any and all capacities, so long as such individual remains an executive officer of the registrant, to sign (i) any and all amendments (including post-effective amendments) to this registration statement, and (ii) any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933 and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, 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 as he or she might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents or any of them, 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 indicated on June 4, 2020.
| Signature | Title | |
| /s/ Anant Bhalla | Chief Executive Officer, President and Director | |
| Anant Bhalla | (Principal Executive Officer) | |
| /s/ Ted M. Johnson | Chief Financial Officer and Treasurer | |
| Ted M. Johnson | (Principal Financial Officer) | |
| /s/ Scott A. Samuelson | Vice President and Chief Accounting Officer | |
| Scott A. Samuelson | (Principal Accounting Officer) | |
| /s/ John M. Matovina | Chairman and Director | |
| John M. Matovina | ||
| /s/ Joyce A. Chapman | Director | |
| Joyce A. Chapman | ||
| /s/ Brenda J. Cushing | Director | |
| Brenda J. Cushing | ||
| /s/ James M. Gerlach | Director | |
| James M. Gerlach | ||
| /s/ Robert L. Howe | Director | |
| Robert L. Howe | ||
| /s/ Michelle M. Keeley | Director | |
| Michelle M. Keeley | ||
| /s/ William R. Kunkel | Director | |
| William R. Kunkel | ||
| /s/ Alan D. Matula | Director | |
| Alan D. Matula | ||
| /s/ David S. Mulcahy | Director | |
| David S. Mulcahy | ||
| /s/ Gerard D. Neugent | Director | |
| Gerard D. Neugent | ||
| /s/ A. J. Strickland, III | Director | |
| A. J. Strickland, III |
Exhibit 5.1
[Letterhead of American Equity Investment Life Holding Company]
June 4, 2020
American Equity Investment Life Holding Company
6000 Westown Parkway
West Des Moines, Iowa 50266
| Re: | American Equity Investment Life Holding Company Registration Statement on Form S-8 |
Ladies and Gentlemen:
I am the Executive Vice President, General Counsel and Secretary of American Equity Investment Life Holding Company, an Iowa corporation (the “Company”), and have acted in such capacity in connection with the registration statement on Form S-8 (the “Registration Statement”) to be filed on the date hereof by the Company with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”). The Registration Statement relates to the registration of 5,038,088 shares (the “Shares”) of the Company’s Common Stock, par value $1 per Share (the “Common Stock”), issuable under the American Equity Investment Life Holding Company Amended and Restated Equity Incentive Plan (the “Plan”).
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
In rendering the opinion stated herein, I have examined and relied upon the following: (i) the Registration Statement; (ii) a specimen certificate representing the Common Stock; (iii) the Articles of Incorporation of the Company, as amended to date and in effect on the date hereof; (iv) the Third Amended and Restated Bylaws of the Company, as in effect on the date hereof; (v) the Plan; (vi) the approval of the Plan by the shareholders of the Company at the annual meeting of the Company held on June 4, 2020; and (vii) certain resolutions of the Board of Directors of the Company relating to the Plan and the filing of the Registration Statement. I have also examined originals or copies, certified or otherwise identified to my satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as I have deemed necessary or appropriate as a basis for the opinion stated below.
In my examination, I have assumed the genuineness of all signatures, including endorsements, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. In making my examination of executed documents or documents to be executed, I have assumed that the parties thereto, other than the Company, had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. As to any facts relevant to the opinion stated herein that I did not independently establish or verify, I have relied upon statements and representations of officers and other representatives of the Company and others and of public officials.
In rendering the opinion stated herein, I have also assumed that (i) an appropriate account statement evidencing the Shares credited to the recipient’s account maintained with the Company’s transfer agent has been issued by the Company’s transfer agent; (ii) the issuance of the Shares will be duly recorded in the books and records of the Company; and (iii) each award agreement and the issuance of any Shares will be consistent with the Plan and will be duly authorized, executed and delivered by the parties thereto.
I am a member of the Bar in the State of Iowa and my opinion set forth herein is limited to the Iowa Business Corporation Act and, to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such laws (all of the foregoing being referred to as “Opined on Law”). I do not express any opinion with respect to the law of any jurisdiction other than Opined on Law or as to the effect of any non-Opined on Law on the opinion herein stated. The Shares may be issued from time to time on a delayed or continuous basis, and this opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof, which laws are subject to change with possible retroactive effect.
Based upon the foregoing and subject to the qualifications and assumptions stated herein, I am of the opinion that the Shares have been duly authorized for issuance by the Company and, when issued, delivered and paid for in accordance with the terms and conditions of the Plan and any applicable award agreement, the Shares will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission. This opinion is expressed as of the date hereof unless otherwise expressly stated, and I disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
| Very truly yours, | |
| /s/ Renee D. Montz | |
| Renee D. Montz | |
| Executive Vice President, General Counsel and Secretary |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
American Equity Investment Life Holding Company:
We consent to the incorporation by reference in the registration statement on Form S-8 of American Equity Investment Life Holding Company of our report dated February 25, 2020, with respect to the consolidated balance sheets of American Equity Investment Life Holding Company and subsidiaries as of December 31, 2019 and 2018, the related consolidated statements of operations, comprehensive income (loss), changes in stockholders’ equity, and cash flows for each of the years in the three-year period ended December 31, 2019, and the related notes and financial statement schedules I to V, and the effectiveness of internal control over financial reporting as of December 31, 2019, which report appears in the December 31, 2019 annual report on Form 10-K of American Equity Investment Life Holding Company.
/s/ KPMG LLP
Des Moines, Iowa
June 4, 2020