-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HJG3zrjAhevEZSyQ9YGmwNCaIlKqwvrhufDdIVKOem87cFTuQNVYnHhRRjlLcIjX dGgJfTFdHFBMf5vjoe5seg== 0000950152-02-008802.txt : 20021122 0000950152-02-008802.hdr.sgml : 20021122 20021122133035 ACCESSION NUMBER: 0000950152-02-008802 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20021122 EFFECTIVENESS DATE: 20021122 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MIDLAND CO CENTRAL INDEX KEY: 0000066025 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 310742526 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-101390 FILM NUMBER: 02837502 BUSINESS ADDRESS: STREET 1: 7000 MIDLAND BLVD STREET 2: N/A CITY: AMELIA STATE: OH ZIP: 45102-2607 BUSINESS PHONE: 5139437100 MAIL ADDRESS: STREET 1: N/A STREET 2: P O BOX 1256 CITY: CINCINNATI STATE: OH ZIP: 45201 S-8 1 l97391asv8.txt THE MIDLAND COMPANY S-8 As filed with the Securities and Exchange Commission on November 22, 2002. Registration No. 333-______________ - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ___________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ___________________ Incorporated THE MIDLAND COMPANY I.R.S. Employer Under the Laws 7000 Midland Boulevard Identification No. of Ohio AMELIA, OHIO 45102-2607 31-0742526 (513) 943-7100 ___________________ THE MIDLAND COMPANY 2002 EMPLOYEE INCENTIVE STOCK PLAN THE MIDLAND COMPANY 2002 RESTRICTED STOCK AND STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS Joseph P. Hayden, III The Midland Company 7000 Midland Boulevard Amelia, Ohio 45102-2607 Telephone: (513) 943-7100 Facsimile: (513) 943-7111 (Agent for Service of Process) CALCULATION OF REGISTRATION FEE ___________________
Title of Amount Proposed Proposed Amount of Securities To Be Maximum Maximum Registration To Be Registered Registered(1) Offering Aggregate Fee(3) Price Offering Price(2) Per Share(2) - ---------------------------- ----------------------- ---------------------- ------------------------ ------------------ Common Stock, 2,300,000 Shares $17.68 $40,664,000 $3,742 No par value - ---------------------------- ----------------------- ---------------------- ------------------------ ------------------
(1) This Registration Statement is filed for up to 2,000,000 shares issuable pursuant to The Midland Company 2002 Employee Incentive Stock Plan and 300,000 shares issuable pursuant to The Midland Company 2002 Restricted Stock and Stock Option Plan for Non-Employee Directors. (2) Estimated solely for purposes of calculating the registration fee. (3) Calculated pursuant to Rule 457(h) based on the average of the high and low prices of the Common Stock on the Nasdaq Stock Market on November 15, 2002 at $17.68 per share. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by The Midland Company with the Securities and Exchange Commission are incorporated herein by reference and made a part hereof: 1. Midland's Annual Report on Form 10-K for the fiscal year ended December 31, 2001, Forms 10-Q for the quarters ended March 31, 2002, June 30, 2002 and September 30, 2002 and Form 8-K filed on July 19, 2002. 2. The description of Midland's common stock contained in its Registration Statement on Form 8-C, filed on June 16, 1969. All reports and other documents subsequently filed by Midland pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all Common Stock offered has been sold or which deregisters all Common Stock then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Ohio Revised Code, Section 1701.13(E), allows indemnification by the registrant to any person made or threatened to be made a party to any proceedings, other than a proceeding by or in the right of the registrant, by reason of the fact that he is or was a director, officer, employee or agent of the registrant, 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 registrant 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 registrant, 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 registrant unless deemed otherwise by the court. Indemnification is 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. Midland's Code of Regulations provides that Midland shall indemnify its directors and officers to the fullest extent not prohibited by law. Additionally, Midland maintains director and officer liability insurance which provides coverage against certain liabilities. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. 2 ITEM 8. EXHIBITS* Exhibit 4.1 The Midland Company 2002 Employee Incentive Stock Plan (incorporated by reference to Midland's proxy materials filed with the Securities and Exchange Commission on March 12, 2002). Exhibit 4.2 The Midland Company 2002 Restricted Stock and Stock Option Plan for Non-Employee Directors (incorporated by reference to Midland's proxy materials filed with the Securities and Exchange Commission on March 12, 2002). Exhibit 5 Opinion of Keating, Muething & Klekamp, P.L.L. Exhibit 15 Letter re: Unaudited Interim Financial Information Exhibit 23.1 Consent of Deloitte & Touche LLP. Exhibit 23.2 Consent of Keating, Muething & Klekamp, P.L.L. (contained in Exhibit 5) Exhibit 24 Power of Attorney (contained in the signature page) - --------------- * All exhibits are filed herewith unless otherwise indicated. ITEM 9. UNDERTAKINGS 9.1 The undersigned registrant hereby undertakes 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 in the Registration Statement; provided, however, that (i) and (ii) above do not apply if 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. 3 9.2 The undersigned registrant hereby undertakes 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. 9.3 The undersigned registrant hereby undertakes 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. 9.4 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) of 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. 9.5 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. 4 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 Cincinnati, Ohio, on November 22, 2002. THE MIDLAND COMPANY By: /s/ John I. Von Lehman -------------------------------------- John I. Von Lehman Executive Vice President, Chief Financial Officer and Secretary Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Each person whose signature appears below marked with an asterisk hereby authorizes Joseph P. Hayden, III or John I. Von Lehman as attorney-in-fact to sign on his or her behalf individually and in each capacity indicated below, any amendments, including post-effective amendments, to this Registration Statement. Signature Date - --------- ---- /s/ James E. Bushman November 22, 2002 - ----------------------------------- James E. Bushman /s/ James H. Carey November 22, 2002 - ----------------------------------- James H. Carey /s/ Michael J. Conaton November 22, 2002 - ----------------------------------- Michael J. Conaton /s/ Jerry A. Grundhofer November 22, 2002 - ----------------------------------- Jerry A. Grundhofer /s/ Joseph P. Hayden, Jr. November 22, 2002 - ----------------------------------- Joseph P. Hayden, Jr. /s/ Joseph P. Hayden III November 22, 2002 - ----------------------------------- Joseph P. Hayden III /s/ John W. Hayden November 22, 2002 - ----------------------------------- John W. Hayden 5 Signature Date - --------- ---- /s/ Robert W. Hayden November 22, 2002 - ----------------------------------- Robert W. Hayden /s/ William T. Hayden November 22, 2002 - ----------------------------------- William T. Hayden /s/ William J. Keating, Jr. November 22, 2002 - ----------------------------------- William J. Keating. Jr. /s/ John R. LaBar November 22, 2002 - ----------------------------------- John R. LaBar /s/ Richard M. Norman November 22, 2002 - ----------------------------------- Richard M. Norman /s/ David B. O'Maley November 22, 2002 - ----------------------------------- David B. O'Maley /s/ John M. O'Mara November 22, 2002 - ----------------------------------- John M. O'Mara /s/ Glenn E. Schembechler November 22, 2002 - ----------------------------------- Glenn E. Schembechler /s/ Marie Francis Thrailkill November 22, 2002 - ----------------------------------- Marie Francis Thrailkill, OSU Ed.D. /s/ John I. Von Lehman November 22, 2002 - ----------------------------------- John I. Von Lehman 6 EX-5 3 l97391aexv5.txt EXHIBIT 5 EXHIBIT 5 --------- OPINION OF KEATING, MUETHING & KLEKAMP, P.L.L. November 22, 2002 MARK A. WEISS DIRECT DIAL: (513) 579-6599 FACSIMILE: (513) 579-6956 E-Mail: MWeiss@kmklaw.com Ladies and Gentlemen: This firm is general counsel to The Midland Company and, as such, we are familiar with Midland's Articles of Incorporation, Code of Regulations and corporate proceedings generally. We have reviewed the corporate records as to (i) The Midland Company 2002 Employee Incentive Stock Plan pursuant to which a total of 2,000,000 shares of Common Stock may be issued to employees and consultants of Midland and its subsidiaries and (ii) The Midland Company 2002 Restricted Stock Option Plan for Non-Employee Directors pursuant to which a total of 300,000 shares of Common Stock may be issued to outside directors of Midland. Based solely upon such examination, we are of the opinion that: 1. Midland is a duly organized and validly existing corporation under the laws of the State of Ohio; and 2. Midland has taken all necessary and required corporate actions in connection with the proposed issuance of up to 2,300,000 shares of Common Stock pursuant to the Plans and, the Common Stock, when issued and delivered, will be validly issued, fully paid and non-assessable shares of Common Stock of Midland free of any claim of pre-emptive rights. We hereby consent to be named in the Registration Statement and the Prospectus. In providing this consent, we do not admit that we are "experts" within the meaning of Section 11 of the Securities Act of 1933 or that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933. Very truly yours, KEATING, MUETHING & KLEKAMP, P.L.L. By: /s/ Mark A. Weiss -------------------------------------- Mark A. Weiss EX-15 4 l97391aexv15.txt EXHIBIT 15 EXHIBIT 15 ---------- November 22, 2002 THE MIDLAND COMPANY: We have made a review, in accordance with standards established by the American Institute of Certified Public Accountants, of the unaudited interim financial information of The Midland Company and subsidiaries for the periods ended March 31, 2002 and 2001, June 30, 2002 and 2001 and September 30, 2002 and 2001 as indicated in our reports dated April 11, 2002, July 17, 2002 and November 8, 2002, respectively; because we did not perform an audit, we expressed no opinion on that information. We are aware that our reports referred to above, which were included in your Quarterly Report on Form 10-Q for the quarters ended March 31, 2002, June 30, 2002 and September 30, 2002 are incorporated by reference in this Registration Statement on Form S-8. We also are aware that the aforementioned reports, pursuant to Rule 436(c) under the Securities Act of 1933, are not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act. /s/ Deloitte & Touche LLP - ---------------------------------------- Deloitte & Touche LLP Cincinnati, Ohio EX-23.1 5 l97391aexv23w1.txt EXHIBIT 23.1 EXHIBIT 23.1 ------------ INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of The Midland Company on Form S-8 of our report dated February 7, 2002, incorporated by reference in the Annual Report on Form 10-K of The Midland Company for the year ended December 31, 2001 ("Form 10-K") and our report dated March 15, 2002 appearing in the Form 10-K. /s/ Deloitte & Touche LLP - ---------------------------------------- Deloitte & Touche LLP Cincinnati, Ohio November 22, 2002 -----END PRIVACY-ENHANCED MESSAGE-----