As filed with the Securities and Exchange Commission on May 13, 2014
File No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Ambac Financial Group, Inc.
(Exact name of Registrant as specified in its charter)
Delaware | 13-3621676 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
One State Street Plaza
New York, New York 10004
(Address of principal executive offices, including zip code)
Ambac Financial Group, Inc. Incentive Compensation Plan
(Full title of the plan)
Stephen M. Ksenak, Esq
Ambac Financial Group, Inc.
One State Street Plaza
New York, New York 10004
(212) 658-7470
(Name, address, telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filed” and “smaller reporting company” in Rule12b-2 of the Exchange Act.
Large accelerated filer | þ | Accelerated filer | ¨ | |||
Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ |
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee | ||||
Common Stock, $0.01 par value per share: | ||||||||
To be issued under the Incentive Compensation Plan | 3,933,332 | $29.20(2) | $114,853,294.40 | $14,793.11 | ||||
To be issued upon exercise of options outstanding under the Incentive Compensation Plan | 66,668 | $20.63(3) | $1,375,360.84 | $177.15 | ||||
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(1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover additional shares of the Registrant’s common stock which become issuable by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of common stock of the Registrant. |
(2) | Estimated in accordance with Rules 457(c) and 457(h) solely for purposes of calculating the registration fee on the basis of $29.20, the average of the high and low sale prices per share of common stock as reported on the Nasdaq Global Market on May 7, 2014. |
(3) | Estimated in accordance with Rule 457(h) solely for purposes of calculating the registration fee on the basis of the weighted average exercise price of $20.63 per share for options outstanding under the Incentive Compensation Plan. |
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required by Part I of Form S-8 will be sent or given to employees or others as specified in Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. | Incorporation of Documents by Reference. |
Ambac Financial Group, Inc. (the “Registrant”) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Commission:
(a) | The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013, filed with the Commission on March 3, 2014; |
(b) | The Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2014, filed with the Commission on May 12, 2014; |
(c) | The Registrant’s Current Reports on Form 8-K filed with the Commission on March 13, 2014, April 9, 2014 and April 21, 2014; |
(c) | All other reports filed by the Registrant 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 Annual Report referred to in (a) above; and |
(c) | The description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-10777) filed with the Commission on May 1, 2013, pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description. |
In addition, all documents subsequently filed with the Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part thereof from the date of filing of such document.
Item 4. | Description of Securities. |
Not applicable.
Item 5. | Interests of Named Experts and Counsel. |
Stephen M. Ksenak, Senior Managing Director and General Counsel of the Registrant, has given an opinion on the validity of the securities being registered. Mr. Ksenak beneficially owns, or has the right to acquire under Ambac’s employee benefits plans, an aggregate of less than 1% of Ambac’s common stock.
Item 6. | Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation Law (the “DGCL”) authorizes a corporation’s board of directors to grant, and authorizes a court to award, indemnity to officers, directors and other corporate agents.
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In addition, the Registrant’s Amended and Restated Certificate of Incorporation, effective May 1, 2013 (the “Certificate of Incorporation”), and Amended By-laws, effective February 28, 2014 (the “By-laws”), provide that the Registrant shall 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 (other than an action by or in the right of the Registrant) by reason of the fact that he is or was a director, officer or employee of the Registrant, or is or was serving at the request of the Registrant as a director, officer or employee of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, 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 interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The Registrant shall also indemnify any 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 Registrant to procure a judgment in its favor by reason of the fact that he is or was a director, officer or employee of the Registrant, or is or was serving at the request of the Registrant as a director, officer or employee of another corporation, partnership, joint venture, trust or other enterprise 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 Registrant and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Registrant unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Additionally, we have entered into an employment agreement with Diana Adams, our Chief Executive Officer and President, pursuant to which we have agreed to indemnify Ms. Adams to the maximum extent that our officers, directors and employees are entitled to indemnification pursuant to our Certificate of Incorporation and Bylaws.
As permitted by Section 102(b)(7) of the DGCL, the Registrant’s Certificate of Incorporation eliminates, to the fullest extent permitted by law, personal liability of a director of the Registrant to the Registrant or any of its stockholders for monetary damages for breach of fiduciary duty as a director except (i) for any breach of the director’s duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit.
The Registrant’s Certificate of Incorporation and By-laws provide that the Registrant may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Registrant, or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss incurred by him in any such capacity, or arising out of his status as such, whether or not the Registrant would have the power to indemnify him against such expense, liability or loss under the provisions of Section 145 of the DGCL.
Item 7. | Exemption from Registration Claimed. |
Not applicable.
Item 8. | Exhibits. |
See Index to Exhibits.
Item 9. | Undertakings. |
1. The undersigned Registrant hereby undertakes:
(a) | To file, during any period in which offers or sales are being made, apost-effective amendment to this Registration Statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
(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; |
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(iii) | To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; |
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in apost-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(b) | That, for the purpose of determining any liability under the Securities Act, each suchpost-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. |
(c) | 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. |
2. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this 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.
3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions of the Registrant’s articles of incorporation or bylaws, or otherwise, the Registrant has been advised that in the opinion of the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 New York, State of New York, on May 13, 2014.
AMBAC FINANCIAL GROUP, INC. | ||
By: | /s/ Stephen M. Ksenak | |
Stephen M. Ksenak | ||
Senior Managing Director and General Counsel |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Stephen M. Ksenak and William J. White, and each of them, as such person’s true and lawful attorney in fact and agent with full power of substitution, for such person in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or such person’s substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ Diana N. Adams Diana N. Adams | President, Chief Executive Officer | May 13, 2014 | ||
/s/ David Trick David Trick | Senior Managing Director, | May 13, 2014 | ||
/s/ Victor Mandel Victor Mandel | Director | May 13, 2014 | ||
/s/ Nader Tavakoli Nader Tavakoli | Director | May 13, 2014 | ||
/s/ Eugene M. Bullis Eugene M. Bullis | Director | May 13, 2014 | ||
/s/ Jeffrey S. Stein Jeffrey S. Stein | Director | May 13, 2014 |
INDEX TO EXHIBITS
Exhibit | Description | |
4.1 | Amended and Restated Certificate of Incorporation of Ambac Financial Group, Inc. filed with the Secretary of State of the State of Delaware on May 1, 2013. (Filed as Exhibit 3.1 to Ambac Financial Group, Inc.’s Registration Statement on Form 8-A filed May 1, 2013 and incorporated herein by reference.) | |
4.2 | Amended By-laws of Ambac Financial Group, Inc., effective as of February 28, 2014. (Filed as Exhibit 3.2 to Ambac Financial Group, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2013, filed March 3, 2014, and incorporated herein by reference.) | |
4.3 | Specimen form of stock certificate. (Filed as Exhibit 4.1 to Ambac Financial Group, Inc.’s Registration Statement on Form 8-A filed May 1, 2013 and incorporated herein by reference.) | |
4.4 | Ambac Financial Group, Inc. Incentive Compensation Plan (Filed as Appendix A to Ambac Financial Group, Inc.’s 2013 Definitive Proxy Statement on Schedule 14A filed on November 8, 2013 and incorporated herein by reference.) | |
5.1 | Opinion of Stephen M. Ksenak | |
23.1 | Consent of KPMG LLP | |
23.3 | Consent of Stephen M. Ksenak (included in exhibit 5.1) | |
24.1 | Power of Attorney (included on signature page to this Registration Statement) |