-----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, M3lMMYlHSEB4U6ipwJEGTxSecZNknIBsVobyOUZsupf5NqUvcfxQgZkiYtUEd0qT Zvfgx92N9JGokaF2Lgs/3Q== 0000780118-98-000008.txt : 19980820 0000780118-98-000008.hdr.sgml : 19980820 ACCESSION NUMBER: 0000780118-98-000008 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980819 EFFECTIVENESS DATE: 19980819 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMWEST INSURANCE GROUP INC CENTRAL INDEX KEY: 0000780118 STANDARD INDUSTRIAL CLASSIFICATION: SURETY INSURANCE [6351] IRS NUMBER: 952672141 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-61819 FILM NUMBER: 98694215 BUSINESS ADDRESS: STREET 1: 5230 LAS VIRGENES RD CITY: CALABASAS STATE: CA ZIP: 91302 BUSINESS PHONE: 8188712000 MAIL ADDRESS: STREET 1: 5230 LAS VIRGENES RD CITY: CALABASAS STATE: CA ZIP: 91302 S-8 1 FORM S-8 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on August 19, 1998 Registration No. 333-________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 ------------------------ FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 ------------------------ AMWEST INSURANCE GROUP, INC. (Exact name of registrant as specified in its charter) Delaware 95-2672141 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification Number) 5230 Las Virgenes Road Calabasas, California 91302 (818) 871-2000 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) ---------------------------- AMWEST INSURANCE GROUP INC. 1998 STOCK INCENTIVE PLAN ---------------------------- John E. Savage President, Chief Operating Officer and Co-Chief Executive Officer Amwest Insurance Group, Inc. 5230 Las Virgenes Road Calabasas, California 91302 (818) 871-2000 (Name, address, including zip code, and telephone number, including area code, of agent for service of process) ---- CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------- Title of Each Proposed Class of Proposed Maximum Maximum Amount of Securities to Amount to be Offering Price Per Aggregate Registration be Registered Registered Security(2) Offering Fee(2) Price(2) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Common Stock, 250,000 $13.500 $3,375,000 $995.63 par value $0.01 per share(1) - -------------------------------------------------------------------------------- (1) Includes Preferred Stock Purchase Rights ("Rights") issuable pursuant to that certain Rights Agreement dated May 10, 1989, which Rights are related to shares of Common Stock (including shares registered hereunder) in the ratio of one Right to one share. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) on the basis of the average of the high and low prices of the Common Stock of Amwest Insurance Group, Inc. quoted on the American Stock Exchange, Inc. on August 17, 1998. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information* Item 2. Registrant Information and Employee Plan Annual Information* *Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents filed by the Company with the Securities and Exchange Commission (the "Commission") are hereby incorporated by reference: (a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997; (b) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998; (c) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the fiscal year covered by the registrant document referred to in (a) above; (d) The description of the Company's Common Stock which is contained in the Company's Registration Statement on Form S-1 filed with the Commission on May 19, 1988 (File No. 33-9911), together with any amendment or report filed with the Commission for the purpose of updating such description; and (e) The description of the Company's Preferred Stock Purchase Rights which is contained in the Company's Registration Statement on Form 8-A dated May 11, 1989, including any amendment or report filed with the Commission for the purpose of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of 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, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Copies of these documents will not be filed with this Registration Statement. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that such statement is modified or superseded by a subsequently filed document which also is or is deemed to be incorporated by reference herein. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement except as so modified or superseded. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Jonathan K. Layne, a partner in the Los Angeles office of Gibson, Dunn & Crutcher LLP, counsel to the Company, has been a director of the Company since June 1989, and beneficially owned 13,860 shares of the Company's Common Stock as of April 10, 1998, the record date for the Company's 1998 Annual Meeting of Stockholders. Item 6. Indemnification of Directors and Officers. Section 145 of the Delaware General Corporation Law (the "DGCL") makes provision for the indemnification of officers and directors in terms sufficiently broad to indemnify officers and directors of the Company under certain circumstances from liabilities (including reimbursement for expenses incurred) arising under the Securities Act. The Company's Certificate of Incorporation and Bylaws and the indemnification agreements between the Company and its officers and directors provide, in effect, that, to the fullest extent and under the circumstances permitted by Section 145 of the DGCL, the Company will indemnify any 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, by reason of the fact that he is a director or officer of the Company or is or was serving at the request of the Company as a director or officer of another corporation or enterprise. The Company may, in its discretion, similarly indemnify its employees and agents. The Company's Certificate of Incorporation relieves its directors from monetary damages to the Company or its stockholders for breach of such director's fiduciary duty as directors to the fullest extent permitted by the DGCL. Under Section 102(b)(7) of the DGCL, a corporation may relieve its directors from personal liability to such corporation or its stockholders for monetary damages for any breach of their fiduciary duty as directors except (i) for a breach of the duty of loyalty, (ii) for failure to act in good faith, (iii) for intentional misconduct or knowing violation of law, (iv) for willful or negligent violation of certain provisions in the DGCL imposing certain requirements with respect to stock repurchases, redemption and dividends, or (v) for any transactions from which the director derived an improper personal benefit. Depending upon the character of the proceeding, under Delaware law, the Company may indemnify against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding if the person indemnified acted in good faith and in a matter he or she reasonably believed to be in or not opposed to the best interest of the Company, and, with respect to any criminal action or proceeding, had no cause to believe his or her conduct was unlawful. To the extent that a director or officer of the Company has been successful in the defense of any action, suit or proceeding referred to above, the Company will be obligated to indemnify him or her against expenses (including attorneys' fees) actually and reasonably incurred in connection therewith. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. 4.1 Amwest Insurance Group, Inc. 1998 Stock Incentive Plan. 4.2 Restated Certificate of Incorporation of the Company as amended to date (incorporated by reference to Exhibit 3(3)(a) to the Company's Registration Statement on Form 8-B (Registration No. 1-9580)). 4.3 Amended and Restated Bylaws of the Company (incorporated by reference to the Company's Registration Statement on Form S-3 (Registration No. 33-55143)). 4.4 Preferred Stock Purchase Rights Plan (incorporated by reference to the Company's Registration Statement on Form 8-A filed May 12, 1989 (Registration No. 1-9580)). 5.1 Opinion of Gibson, Dunn & Crutcher LLP. 23.1 Consent of KPMG Peat Marwick LLP. 23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.1). 24.1 Power of Attorney (included on page 5 hereto). 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 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 the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and 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 20 percent 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) 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 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 Securities 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 Securities 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 Calabasas, State of California, on this 18th day of August, 1998. AMWEST INSURANCE GROUP, INC. By: /s/ John E. Savage John E. Savage President, Chief Operating Officer and Co-Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature to this Registration Statement appears below hereby constitutes and appoints Richard H. Savage, John E. Savage, Guy A. Main, Steven R. Kay and Neil F. Pont, and each or any of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents 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 might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or his substitute or their substitutes, 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 below by the following persons in their capacities and on the dates indicated. Signature Title Date /s/ Richard H. Savage Chairman of the Board, President August 18, 1998 - -------------------------- and Co-Chief Executive Officer Richard H. Savage (PrincipalExecutive Officer) /s/ John E. Savage President, Chief Operating August 18, 1998 - -------------------------- Officer, Co-Chief Executive John E. Savage Officer and Director /s/ Guy A. Main Executive Vice President and August 18, 1998 - -------------------------- Director Guy A. Main /s/ Steven R. Kay Senior Vice President, Chief August 18, 1998 - -------------------------- Financial Officer, Treasurer and Steven R. Kay Director(Principal Financial and Accounting Officer) /s/ Neil F. Pont Senior Vice President and Director August 18, 1998 - -------------------------- Neil F. Pont /s/ Arthur F. Melton Director August 18, 1998 - -------------------------- Arthur F. Melton /s/ Thomas R. Bennett Director August 18, 1998 - -------------------------- Thomas R. Bennett /s/ Bruce A. Bunner Director August 18, 1998 - -------------------------- Bruce A. Bunner /s/ Robert W. Kleinschmidt Director August 18, 1998 - -------------------------- Robert W. Kleinschmidt /s/ Jonathan K. Layne Director August 18, 1998 - -------------------------- Jonathan K. Layne /s/ Roland D. Miller Director August 18, 1998 - -------------------------- Roland D. Miller /s/ Charles L. Schultz Director August 18, 1998 - -------------------------- Charles L. Schultz EXHIBIT INDEX Exhibit No. Description 4.1 Amwest Insurance Group, Inc. 1998 Stock Incentive Plan. 4.2 Certificate of Incorporation of the Company as amended (incorporated by reference to Exhibit 3(3)(a) to the Company's Registration Statement on Form 8-B (Registration No. 1-9580)). 4.3 Amended and Restated Bylaws of the Company (incorporated by reference to the Company's Registration Statement on Form S-3 (Registration No. 33-55143)). 4.4 Preferred Stock Purchase Rights Plan (incorporated by reference to the Company's Registration Statement on Form 8-A filed May 12, 1989). 5.1 Opinion of Gibson, Dunn & Crutcher LLP. 23.1 Consent of KPMG Peat Marwick LLP. 23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.1). 24.1 Power of Attorney (included on page 5 hereto). EX-4.1 2 INSTRUMENTS DEFINING RIGHTS OF SECURITY HOLDERS EXHIBIT 4.1 AMWEST INSURANCE GROUP, INC. 1998 STOCK INCENTIVE PLAN Section 1. Purpose of Plan The purpose of this 1998 Stock Incentive Plan (this "Plan") of Amwest Insurance Group, Inc., a Delaware corporation (the "Company"), is to enable the Company to attract, retain and motivate its employees and consultants in the Company, and to enable the Company to attract, retain and motivate its non-employee directors and further align their interest with those of the stockholders of the Company by providing for or increasing the proprietary interest of such directors in the Company. Section 2. Eligible Persons Each of the following persons (each, a "Participant") shall be eligible to be considered for the grant of Awards (as hereinafter defined) hereunder: (a) any employee of the Company or any of its subsidiaries or affiliates, including any director who is also such an employee, (b) any consultant of the Company or any of its subsidiaries or affiliates or (c) any director of the Company who is not an employee of the Company (a "Non-Employee Director"). Section 3. Awards (a) The Committee (as hereinafter defined), on behalf of the Company, is authorized under this Plan to enter into any type of arrangement with a Participant that is not inconsistent with the provisions of this Plan and that, by its terms, involves or might involve the issuance of (i) shares of common stock, par value $.01 per share ("Common Stock"), of the Company or of any other class of security of the Company that is convertible into shares of Common Stock ("Shares") or (ii) a right or interest with an exercise or conversion privilege at a price related to the Shares or with a value derived from the value of the Shares, which right or interest may, but need not, constitute a Derivative Security (as such term is defined in Rule 16a-1 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as such rule may be amended from time to time). The entering into of any such arrangement is referred to herein as the "grant" of an "Award." (b) Awards are not restricted to any specified form or structure and may include, without limitation, sales or bonuses of stock, restricted stock, stock options, reload stock options, stock purchase warrants, other rights to acquire stock, securities convertible into or redeemable for stock, stock appreciation rights, limited stock appreciation rights, phantom stock, dividend equivalents, performance units or performance shares, and an Award may consist of one such security or benefit or two or more of them in tandem or in the alternative. (c) Subject to paragraph (d)(ii) below, Awards may be issued, and Shares may be issued pursuant to an Award, for any lawful consideration as determined by the Committee, including, without limitation, services rendered by the recipient of such Award. (d) Subject to the provisions of this Plan, the Committee, in its sole and absolute discretion, shall determine all of the terms and conditions of each Award granted under this Plan, which terms and conditions may, but need not, include, among other things: (i) a provision permitting the recipient of such Award, including any recipient who is a director or officer of the Company, to pay the purchase price of the Shares or other property issuable pursuant to such Award, and/or any tax withholding obligation with respect to such issuance, in whole or in part, by any one or more of the following: (A) the delivery of cash; (B) the delivery of the other property deemed acceptable by the Committee; (C) the delivery of previously owned shares of capital stock of the Company (including "pyramiding") or other property; or (D) a reduction in the amount of Shares or other property otherwise issuable pursuant to such Award; (ii) a provision specifying the exercise or settlement price for any option, stock appreciation right or similar Award, or specifying the method by which such price is determined; provided, that the exercise or settlement price of any option, stock appreciation right or similar Award that is intended to qualify as performance-based compensation ("Performance-Based Compensation") for purposes of Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code"), shall be not less that the fair market value of a Share on the date such Award is granted; (iii) a provision relating to the exercisability and/or vesting of Awards, lapse and non-lapse restrictions upon the Shares obtained or obtainable under Awards or under the Plan and the termination, expiration and/or forfeiture of Awards; (iv) a provision conditioning or accelerating the receipt of benefits pursuant to such Award, either automatically or in the discretion of the Committee, upon the occurrence of specified events, including without limitation, a change of control of the Company (as defined by the Committee), an acquisition of a specified percentage of the voting power of the Company, the dissolution or liquidation of the Company, a sale of substantially all of the property and assets of the Company or an event of the type described in Section 7 hereof; (v) a provision required in order for such Award to qualify (A) as an incentive stock option (an "Incentive Stock Option") under Section 422 of the Code; provided, however that no Award issued to any consultant or any Non-Employee Director may qualify as an Incentive Stock Option, (B) as "performance based compensation" under Section 162(m) of the Code and/or (C) for an exemption for Section 16 of the Exchange Act; and/or (vi) a provision restricting the transferability of Awards or Shares issued under Awards. Section 4. Stock Subject to Plan (a) The aggregate number of Shares that may be issued pursuant to all Incentive Stock Options granted under this Plan shall not exceed 250,000, subject to adjustment as provided in Section 7 hereof. (b) At any time, the aggregate number of Shares issued pursuant to all Awards (including all Incentive Stock Options) granted under this Plan shall not exceed 250,000, subject to adjustment as provided in Section 7 hereof. (c) For purposes of Section 4(b) hereof, the aggregate number of Shares issued and issuable pursuant to Awards granted under this Plan shall at any time be deemed to be equal to the sum of the following: (i) the number of Shares that were issued prior to such time pursuant to Awards granted under this Plan, other than Shares that were subsequently reacquired by the Company pursuant to the terms and conditions of such Awards and with respect to which the holder thereof received no benefits of ownership such as dividends; plus (ii) the number of Shares that were otherwise issuable prior to such time pursuant to Awards granted under the Plan, but that were withheld by the Company as payment of the purchase price of the Shares issued pursuant to such Awards or as payment of the recipient's tax withholding obligation with respect to such issuance; plus (iii) the maximum number of Shares that are or may be issuable at or after such time pursuant to Awards granted or to be granted under this Plan prior to such time. (d) Subject to adjustment as provided in Section 7 hereof, the aggregate number of Shares subject to Awards granted during any calendar year to any one Participant (including the number of Shares involved in Awards having a value derived from the value of Shares) shall not exceed 25,000 Shares. Section 5. Duration of Plan No Awards shall be made under this Plan after April 13, 2008. Although Shares may be issued after April 12, 2008 pursuant to Awards made on or prior to such date, no Shares shall be issued under this Plan after April 11, 2018. Section 6. Administration of Plan (a) This Plan shall be administered by a committee (the "Committee") of the Board of Directors of the Company (the "Board") consisting of two or more directors, each of whom is a "Non-Employee Director" (as such term is defined in Rule 16b-3 promulgated under the Exchange Act, as such Rule may be amended from time to time) and, with respect to grants of and other determinations affecting Awards intended to qualify as Performance-Based Compensation, is an "outside director" within the meaning of Section 162(m) of the Code. Notwithstanding the foregoing, however, prior to the registration of the Shares under Section 12 of the Exchange Act, this Plan may in the absence of action by the Committee, be administered by the entire Board (subject to any limitations contained in Rule 16b-3 or otherwise), with respect to any Award not intended to qualify as Performance-Based Compensation. (b) Subject to the provisions of this Plan, the Committee shall be authorized and empowered to do all things necessary or desirable in connection with the administration of this Plan, including without limitation, the following: (i) adopt, amend and rescind rules and regulations relating to this Plan; (ii) determine which persons are Participants and to which of Participants, if any, Awards shall be granted hereunder; (iii) grant Awards to Participants and determine the terms and conditions thereof, including the number of Shares issuable pursuant thereto; (iv) determine whether, and the extent to which adjustments are required pursuant to Section 7 thereof; and (v) interpret and construe this Plan and the terms and conditions of any Award granted hereunder. Section 7. Adjustments If the outstanding securities of the class then subject to this Plan are increased, decreased or exchanged for or converted into cash, property or a different number or kind of securities, or if cash, property or securities are distributed in respect of such outstanding securities, in either case as a result of a reorganization, merger, consolidation, recapitalization, restructuring, reclassification, dividend (other than a regular, quarterly cash dividend) or other distribution, stock split, reverse stock split or the like, or if substantially all of the property and assets of the Company are sold, then, unless the terms of such transaction shall provide otherwise, the Committee shall make appropriate and proportionate adjustments in (a) the number and type of shares or other securities or cash or other property that may be acquired pursuant to Incentive Stock Options and other Awards theretofore granted under this Plan, (b) the maximum number and type of shares or other securities that may be issued pursuant to Incentive Stock Options and other Awards thereafter granted under this Plan, and (c) the maximum number of Shares for which options may be granted to any participant during any one calendar year; provided, however, that no adjustment shall be made to the number of Shares that may be acquired pursuant to outstanding Incentive Stock Options or the maximum number of Shares with respect to which Incentive Stock Options may be granted under this Plan to the extent such adjustment would result in such options being treated as other than Incentive Stock Options; provided further that no such adjustment shall be made to the extent the Committee determines that such adjustment would result in the disallowance of a federal income tax deduction for compensation attributable to Awards hereunder by causing such compensation to be other than Performance-Based Compensation. Section 8. Amendment and Termination of Plan The Board may amend or terminate this Plan at any time and in any manner, subject to the following limitations: (a) No such amendment or termination shall deprive the recipient of any Award theretofore granted under this Plan, without the consent of such recipient, of any of his or her rights thereunder or with respect thereto; (b) If an amendment to the Plan would (i) increase the maximum number of Shares that may be issued pursuant to (A) all Awards granted under this Plan, (B) all Incentive Stock Options granted under this Plan and (C) Awards granted under this Plan during any calendar year to any one Participant, (ii) change the class of persons eligible to receive Awards under the Plan, (iii) otherwise materially increase the benefits hereunder accruing to participants who are subject to Section 16 of the Exchange Act in a manner not specifically contemplated herein or (iv) affect the Plan's compliance with Rule 16-b3 or applicable provisions of the Code, as amended from time to time, the amendment shall be approved by the Company's stockholders to the extent required to comply with Rule 16b-3, Sections 422 and 162(m) of the Code, and other applicable provisions of or rules under the Code, as amended from time to time; and (c) Section 4 hereof shall not be amended more than once every six months, other than to comport with changes in the Code, the Employment Retirement Income Security Act, or the rules and regulations thereunder. Section 9. Effective Date of Plan This Plan shall be effective as of April 13, 1998, the date upon which it was approved by the Board; provided, however, that no Shares may be issued under this Plan until it has been approved, directly or indirectly by the affirmative votes of the holders of a majority of the securities of the Company present, or represented, and entitles to vote at a meeting duly held or, or, in lieu thereof, by action by written consent, in accordance with the laws of the State of Delaware. Section 10. Compliance with Other Laws and Regulations This Plan, the grant and exercise of Awards thereunder, and the obligation of the Company to sell and deliver Shares under such Awards, shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any governmental or regulatory agency as may be required. The Company shall not be required to issue or deliver any certificates for shares of Common Stock prior to the completion of any registration or qualification of such shares under any federal or state law or issuance of any ruling or regulation of any government body which the Company shall, in its sole discretion, determine to be necessary or advisable. Section 11. No Right to Company Employment Nothing in this Plan or as a result of any Award granted pursuant to this Plan shall confer on an individual any right to continue in the employ of the Company or any of its subsidiaries or affiliates or interfere in any way with the right of the Company (or its subsidiaries or affiliates, as applicable) to terminate an individual's employment at any time. The agreement evidencing an Award may contain such provisions as the Committee may approve with respect to the effect of approved leaves of absence. Section 12. Liability of Company The Company and any affiliate which is in existence or hereafter comes into existence shall not be liable to a Participant or other persons as to: (a) The Non-Issuance of Shares. The non-issuance or sales of Shares as to which the Company has been unable to obtain from any regulatory body having jurisdiction the authority deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares hereunder; and (b) Tax Consequences. Any tax consequence expected, but not realized, by any Participant or other person due to the issuance, exercise, settlement, cancellation or other transaction involving any Award granted hereunder. Section 13. Governing Law This Plan and any Awards and agreements hereunder shall be interpreted and construed in accordance with the laws of the State of Delaware and applicable federal law. IN WITNESS WHEREOF, and as conclusive evidence of the adoption of the foregoing by the Board, Amwest Insurance Group, Inc. has caused the presents to be duly executed in its name and in its name and behalf by its proper officers thereunto duly authorized as of this 13th day of April, 1998. AMWEST INSURANCE GROUP, INC. By: /s/ Richard H. Savage Richard H. Savage Chairman of the Board and Co-Chief Executive Officer ATTEST: By: /s/ Richard H. Busch -------------------- Richard H. Busch Secretary EX-5.1 3 OPINION RE: LEGALITY EXHIBIT 5.1 [GIBSON, DUNN & CRUTCHER LLP LETTERHEAD] August 17, 1998 Amwest Insurance Group, Inc. 5230 Los Virgenes Road Calabasas, California 91302 Re: Amwest Insurance Group, Inc. Registration Statement on Form S-8 Ladies and Gentlemen: As special counsel to Amwest Insurance Group, Inc., a Delaware corporation ("Amwest"), we are familiar with the activities of Amwest and its corporate records. We have participated in the authorization and preparation of the Amwest Insurance Group, Inc. 1998 Stock Incentive Plan (the "Plan") and the Registration Statement on Form S-8 (the "Registration Statement") being filed by Amwest under the Securities Act of 1933, as amended, for the purpose of registering 250,000 shares of common stock, par value $0.01 per share, of Amwest for use in connection with the Plan (the "Shares"). On the basis of our knowledge of Amwest's activities and its corporate records, we are of the opinion that the Shares will be legally issued, fully paid and nonassessable when issued and paid for in accordance with the Plan. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. Sincerely, /s/ Gibson, Dunn & Crutcher LLP GIBSON, DUNN & CRUTCHER LLP EX-23.1 4 CONSENTS OF EXPERTS AND COUNSEL EXHIBIT 23.1 ACCOUNTANTS' CONSENT Board of Directors Amwest Insurance Group, Inc.: We consent to the use of our reports incorporated herein by reference. KPMG PEAT MARWICK LLP Los Angeles, California August 17, 1998 -----END PRIVACY-ENHANCED MESSAGE-----