sv8
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SYMETRA FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware
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20-0978027 |
(State or other jurisdiction of
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(I.R.S. Employer |
incorporation or organization)
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Identification No.) |
777 108th Avenue NE, Suite 1200
Bellevue, WA 98004
(425) 256-8000
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Symetra Financial Corporation Equity Plan
Symetra Financial Corporation Employee Stock Purchase Plan
(Full titles of the plans)
George C. Pagos, Esq.
Senior Vice President, General Counsel and Secretary
Symetra Financial Corporation
777 108th Avenue NE, Suite 1200
Bellevue, WA 98004
(425) 256-8000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
William J. Whalen III, Esq.
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
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 filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer o |
Accelerated Filer o |
Non-accelerated filer þ (Do not check if a smaller reporting company) |
Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Proposed Maximum |
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Title of Each Class of |
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Amount to be |
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Offering Price Per |
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Aggregate |
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Amount of |
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Securities to be Registered |
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Registered(1) |
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Share (2) |
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Offering Price(2) |
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Registration Fee |
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Common Stock, $0.01 par
value per share: to be
issued under the Symetra
Financial Corporation
Equity Plan
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7,746,840 shares
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$12.89 (2)
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$99,856,767.60 (2)
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$ |
7,119.79 |
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Common Stock, $0.01 par
value per share: to be
issued under the Symetra
Financial Corporation
Employee Stock Purchase
Plan
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870,000 shares
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$10.96 (3)
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$9,535,200.00 (3)
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$ |
679.86 |
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(1) |
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In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the
Securities Act), this Registration Statement also includes such additional shares of common
stock as may be required pursuant to the anti-dilution provisions of the Symetra Financial
Corporation Equity Plan and the Symetra Financial Corporation Employee Stock Purchase Plan. |
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(2) |
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Estimated solely for the purpose of computing the registration fee pursuant to Rule 457(h)
and 457(c) under the Securities Act of 1933, as amended, based on the average of the high ($13.08) and low ($12.70) prices per share of
common stock as reported on the New York Stock Exchange on
January 22, 2010. |
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(3) |
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Estimated solely for the purpose of computing the registration fee pursuant to Rule 457(h) and
457(c) under the Securities Act of 1933, as amended, based on the average of the high ($13.08) and low ($12.70) prices per share of
common stock as reported on the New York Stock Exchange on
January 22, 2010, multiplied by 85%, which is the current
percentage of the trading purchase price applicable to purchases
under the referenced Plan. |
TABLE OF CONTENTS
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
All information required by Part I to be contained in the Section 10(a) prospectus is omitted
from this Registration Statement in accordance with Rule 428 under the Securities Act, and the Note
to Part 1 of Form S-8.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the Securities and Exchange Commission
(the Commission) by Symetra Financial Corporation, a Delaware corporation (the Company),
pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the Exchange
Act), as applicable, are hereby incorporated by reference in, and shall be deemed to be a part of,
this Registration Statement:
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(a) |
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the Companys prospectus filed with the Commission pursuant to Rule 424(b) promulgated
under the Securities Act filed on January 22, 2010, in connection with the Companys
Registration Statement on Form S-1 (File No. 333-162344), as amended, in which there is set
forth the audited consolidated financial statements for the Companys fiscal year ended
December 31, 2008; and |
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(b) |
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the description of the Companys common stock contained in the Companys Registration
Statement on Form S-1 (File No. 333-162344), as amended, which description is incorporated
by reference into the Form 8-A filed with the Commission on January 15, 2010, pursuant to
the Exchange Act, and any amendment or report filed for the purpose of further 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, subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all such securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
Any statement contained 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 a statement contained herein (or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein) modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the Delaware General Corporation Law (the DGCL) provides in relevant part
that a corporation may indemnify any officer or director who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the corporation) by reason of the fact that such person is or was a
director or officer of the corporation, or is or was serving at the request of the corporation as a
director or officer of another entity, against expenses (including attorneys fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to believe such persons
conduct was unlawful.
Section 145(b) of the DGCL provides in relevant part that a corporation may 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 corporation to procure a judgment in its favor
by reason of the fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if the person acted in good faith
and in a manner the person reasonably believed to be in or not opposed to the best interests of the
corporation 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 corporation unless and
only to the extent that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Our articles of incorporation and bylaws generally provide that we will indemnify our
directors and officers to the fullest extent permitted by law.
We also obtained officers and directors liability insurance which insures against
liabilities that officers and directors of the registrant may, in such capacities, incur. Section
145(g) of the DGCL provides that a corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any such capacity, or arising out of
such persons status as such, whether or not the corporation would have the power to indemnify such
person against such liability under that section.
Section 145(f) of the DGCL provides that the indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of Section 145 of the DGCL shall not be
deemed exclusive of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such persons official capacity and as to action in
another capacity while holding such office.
We have entered into indemnification agreements with each of our directors and officers. Under
the terms of our indemnification agreements, we are required to indemnify each of our directors and
officers, to the fullest extent permitted by the laws of the State of Delaware, against any and all
(a) costs and expenses (including attorneys and experts fees, expenses and charges) actually and
reasonably paid or incurred in connection with investigating, defending, being a witness in or
participating in, or preparing to investigate, defend, be a witness in or participate in, and (b)
damages, losses, liabilities, judgments, fines, penalties and amounts paid in settlement relating
to, resulting from or arising out of, in the case of either (a) or (b), any threatened, pending or
completed action, suit or proceeding, or any inquiry or investigation that such person determines
might lead to the institution of any such action, suit or proceeding, by reason of the fact that
(y) such person is or was a director, officer, employee or agent of the Company and/or a subsidiary
of the Company or (z) such person is or was serving at our request as a director, officer, employee
or agent of another corporation, partnership, non-profit organization, joint venture, trust or
other enterprise. The indemnification agreements also require us, if so requested, to advance
within 20 business days any and all costs and expenses to the director or officer which such person
determines reasonably likely to be payable, provided that such person will return any such advance
which remains unspent at the final conclusion of the claim to which the advance related. Our bylaws
also require that such person return any such advance if it is ultimately determined that such
person is not entitled to indemnification by us as authorized by the laws of the State of Delaware.
We are not required to provide indemnification under our indemnification agreements for
certain matters, including: (1) indemnification beyond that permitted by the laws of the State of
Delaware; (2) indemnification in connection with certain proceedings or claims initiated or brought
voluntarily by the director or officer; (3) indemnification for settlements the director or officer
enters into without the Companys written consent; (4) indemnification related to disgorgement of
profits under Section 16(b) of the Securities Exchange Act of 1934; (5) indemnification where a
final decision by a court having jurisdiction in the matter shall determine that such
indemnification is not lawful; or (6) indemnification for liabilities for which the director or
officer has received
payment under any insurance policy as may exist for such persons benefit, our articles of
incorporation or bylaws or any other contract or otherwise. The indemnification agreements require
us, to the extent that our board of directors determines it to be economically reasonable, to
maintain directors and officers liability insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 |
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Amended and Restated Certificate of Incorporation of Symetra Financial Corporation
(incorporated by reference to Exhibit 3.1 to the Companys Registration Statement on Form S-1
(File No. 333-162344) filed on October 5, 2009). |
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4.2 |
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Form of Bylaws of Symetra Financial Corporation (incorporated by reference to Exhibit 3.2 to
the Companys Registration Statement on Form S-1 (File No. 333-162344) filed on October 5,
2009). |
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4.3 |
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Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Companys
Registration Statement on Form S-1/A (File No. 333-162344) filed on December 29, 2009) . |
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4.4 |
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Symetra Financial Corporation Equity Plan (incorporated by reference to Exhibit 10.16 to the
Companys Registration Statement on Form S-1 (File No. 333-162344) filed on October 5, 2009). |
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4.5 |
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Symetra Financial Corporation Employee Stock Purchase Plan (incorporated by reference to
Exhibit 10.17 to the Companys Registration Statement on Form S-1 (File No. 333-162344) filed
on October 5, 2009). |
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5.1 |
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Opinion of Counsel. |
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23.1 |
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm. |
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23.2 |
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Consent of Counsel (included in Exhibit 5.1). |
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24.1 |
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Power of Attorney (included on signature page to this Registration Statement). |
Item 9. Undertakings.
(a) |
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The undersigned registrant hereby undertakes: |
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(1) |
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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;
(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 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; and
(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 periodic 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 the registration statement.
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That, for the purpose of determining any liability under the Securities Act, 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. |
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(3) |
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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) |
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The undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrants annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plans annual report pursuant to Section 15(d) of the Exchange Act), 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. |
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(c) |
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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
foregoing provisions, 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. |
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company 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 Bellevue, State of Washington, on the
25th day of January, 2010.
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SYMETRA FINANCIAL CORPORATION
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By: |
/s/ George C. Pagos
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Name: |
George C. Pagos |
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Title: |
Senior Vice President,
General Counsel and Secretary |
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POWER OF ATTORNEY
We, the undersigned directors and officers of Symetra Financial Corporation, do hereby
constitute and appoint Margaret A. Meister and George C. Pagos our true and lawful attorneys and
agents, with full power of substitution, to do any and all acts and things in our name and on our
behalf in our capacities as directors and officers and to execute any and all instruments for us
and in our names in the capacities indicated below, which said attorneys and agents, or either of
them, may deem necessary or advisable to enable said registrant to comply with the Securities Act
of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement, including specifically, but without
limitation, power and authority to sign for us or any of us in our names in the capacities
indicated below, any and all amendments, including post-effective amendments, hereto and we do
hereby ratify and confirm that said attorneys and agents, or any of them, shall 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 as
of January 25, 2010.
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Signature |
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Title |
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Randall H. Talbot |
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President, Chief Executive Officer and Director |
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(Principal Executive Officer) |
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Margaret A. Meister |
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Executive Vice President and Chief Financial Officer |
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(Principal Financial and Accounting Officer) |
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David T. Foy |
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(Director) |
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Lois W. Grady |
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(Director) |
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Sander M. Levy |
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(Director) |
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Robert R. Lusardi |
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(Director) |
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David I. Schamis |
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(Director) |
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Lowndes A. Smith |
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(Director) |
INDEX TO EXHIBITS
4.1 |
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Amended and Restated Certificate of Incorporation of Symetra Financial Corporation
(incorporated by reference to Exhibit 3.1 to the Companys Registration Statement on Form S-1
(File No. 333-162344) filed on October 5, 2009). |
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4.2 |
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Form of Bylaws of Symetra Financial Corporation (incorporated by reference to Exhibit 3.2 to
the Companys Registration Statement on Form S-1 (File No. 333-162344) filed on October 5,
2009). |
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4.3 |
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Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Companys
Registration Statement on Form S-1/A (File No. 333-162344) filed on December 29, 2009) . |
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4.4 |
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Symetra Financial Corporation Equity Plan (incorporated by reference to Exhibit 10.16 to the
Companys Registration Statement on Form S-1 (File No. 333-162344) filed on October 5, 2009). |
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4.5 |
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Symetra Financial Corporation Employee Stock Purchase Plan (incorporated by reference to
Exhibit 10.17 to the Companys Registration Statement on Form S-1 (File No. 333-162344) filed
on October 5, 2009). |
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5.1 |
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Opinion of Counsel. |
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23.1 |
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm. |
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23.2 |
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Consent of Counsel (included in Exhibit 5.1). |
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24.1 |
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Power of Attorney (included on signature page to this Registration Statement). |
exv5w1
Exhibit 5.1
[Letterhead of]
CRAVATH, SWAINE & MOORE LLP
[New York Office]
January
25, 2010
Symetra Financial Corporation
8,616,840 Shares of Common Stock
Ladies and Gentlemen:
We have acted as counsel for Symetra Financial Corporation, a Delaware corporation (the
Company), in connection with the Registration Statement on Form S-8 (the
Registration Statement) filed by the Company with the Securities and Exchange Commission
(the Commission) under the Securities Act of 1933, as amended (the Securities
Act), relating to 8,616,840 shares (the Shares) of Common Stock, par value $0.01 per
share, of the Company issuable pursuant to the Symetra Financial Corporation Equity Plan and the
Symetra Financial Corporation Employee Stock Purchase Plan (collectively, the Stock
Plans).
In that connection, we have examined originals, or copies certified or otherwise identified to
our satisfaction, of such documents, corporate records and other instruments as we have deemed
necessary or appropriate for the purposes of this opinion, including: (a) the Amended and Restated
Certificate of Incorporation of the Company; (b) the Bylaws of the Company; (c) resolutions adopted
by the board of directors of the Company; and (d) the Stock Plans.
Based on the foregoing and subject to the qualifications set forth herein, we are of opinion
that the Shares have been duly and validly authorized, and when, and if, issued pursuant to the
terms of the Stock Plans will be validly issued, fully paid and nonassessable.
We are admitted to practice in the State of New York, and we express no opinion as to matters
governed by any laws other than the laws of the State of New York, the General Corporation Law of
the State of Delaware and the Federal laws of the United States of America. The reference and
limitation to Delaware General Corporation Law includes the statutory provisions and all
applicable provisions of the Delaware Constitution and reported judicial decisions interpreting
these laws.
2
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the
Registration Statement. In giving this consent, we do not thereby admit that we are included in the
category of persons whose consent is required under Section 7 of the Securities Act or the rules
and regulations of the Commission.
Very truly yours,
/s/ Cravath, Swaine & Moore LLP
Symetra Financial Corporation
777 108th Avenue NE, Suite 1200
Bellevue, WA 98004
exv23w1
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to
the Symetra Financial Corporation Equity Plan and the Symetra Financial Corporation Employee Stock
Purchase Plan of our reports dated March 6, 2009, with respect to the consolidated financial
statements and schedules of Symetra Financial Corporation included in its Registration Statement
(Form S-1 No. 333-162344) filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Seattle, Washington
January 21, 2010