As filed with the Securities and Exchange Commission on March 26, 2002
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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THE LIBERTY CORPORATION
(Exact Name of Registrant as specified in its Charter)
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South Carolina 57-0507055
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
135 South Main Street
Greenville, South Carolina 29601
(Address of Principal Executive Offices) (Zip Code)
THE LIBERTY CORPORATION RETIREMENT AND SAVINGS PLAN, AS
AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2002
(Full Title of the Plan)
Martha G. Williams
Vice President, General Counsel and Secretary
The Liberty Corporation
135 South Main Street
Greenville, South Carolina 29601
(Name and Address of Agent for Service)
(864) 241-5400
(Telephone Number, including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered(1) per share(2) price registration fee
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Common Stock, no par value 700,000 shares $40.71 $28,497,000 $2,621.73
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Rights to Purchase Series A 350,000 rights
Participating Cumulative
Preferred Stock, no par value(3)
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(1) This Registration Statement covers 700,000 additional shares and 350,000
additional rights that may be offered under the Plan. Pursuant to Rule 416(c)
under the Securities Act of 1933, this Registration Statement also covers an
indeterminate amount of Plan interests to be offered by the Plan. Prior
Registration Statements on Form S-8 have previously registered securities
offered under this Plan, which was previously named The Cosmos Broadcasting
Corporation Retirement and Savings Plan.
(2) The price is estimated in accordance with Rule 457(h) under the Securities
Act of 1933, solely for the purpose of calculating the registration fee, and
represents the average of the high and low sale prices of the Common Stock (and
attached rights) of The Liberty Corporation on March 22, 2002 as reported by
the consolidated reporting system.
(3) Prior to the occurrence of certain events, purchase rights for shares of
Series A Participating Cumulative Preferred Stock will not be evidenced
separately from the Common Stock.
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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 Rule 428 under
the Securities Act of 1933, as amended, and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by The Liberty Corporation (the
"Company") and by the plan now known as The Liberty Corporation Retirement and
Savings Plan, as Amended and Restated Effective January 1, 2002 (the "Plan"),
with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated herein by reference as of their respective dates:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 2000;
(b) The Annual Report of The Cosmos Broadcasting Corporation
Retirement and Savings Plan (recently renamed as The Liberty
Corporation Retirement and Savings Plan) on Form 11-K for the
year ended December 31, 2000;
(c) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2001, June 30, 2001 and September 30, 2001;
(d) The Company's Current Reports on Form 8-K filed on November 6,
2001 (three separate reports), August 7, 2001 (two separate
reports); May 8, 2001 (two separate reports); and February 5,
2002 (two separate reports);
(e) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10 (File No. 1-5846),
filed on December 30, 1968, as updated and restated by
information contained in subsequently filed periodic reports
(including the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1992); and
2
(f) The description of Rights to Purchase Series A Participating
Cumulative Preferred Stock contained in the Company's
Registration Statement on Form 8-A, as amended and restated in
Amendment No. 1 to the Company's Registration Statement on
Form 8-A, which Amendment was filed on October 12, 2000.
All reports and other documents filed by the Company or by the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date hereof and 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. Any statement contained in any of such documents hereby
incorporated by reference will be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained
herein or in a subsequently filed document that is incorporated by reference
modifies or supersedes such statement. Any such statement so modified or
superseded will 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
The opinion filed with this Registration Statement regarding the
validity of that portion of shares of Common Stock and attached Rights to
Purchase Series A Participating Cumulative Preferred Stock registered hereby
that may be newly issued securities, rather than already outstanding securities,
has been given by Martha G. Williams, Vice President, General Counsel and
Secretary of the Company. As of January 31, 2002, Mrs. Williams owned and had a
pecuniary interest in a total of 152,188 shares of the Company's Common Stock
(including attached Rights), which included 2,152 shares of the Company's Common
Stock (and attached Rights) attributable to her account under the Plan and
25,000 restricted shares (including attached Rights) granted but not yet vested
under the Company's Performance Incentive Program (the "Program"), but did not
include 60,505 shares of Common Stock (including attached Rights) subject to
options granted to, but not yet exercised by, Mrs. Williams under the Program.
Mrs. Williams is entitled to continue participating in the Plan and also is
eligible to continue receiving awards under the Program.
Item 6. Indemnification of Directors and Officers
South Carolina Business Corporation Act
Section 33-8-510 of the South Carolina Business Corporation Act
("SCBCA") authorizes a South Carolina corporation to indemnify a director
against loss or expense incurred by the director as a result of a civil,
criminal, administrative, or investigative proceeding to which the director is
made a party by virtue of his status as a director, provided that the director
conducted himself in good faith and reasonably believed (1) in the case of
conduct in his official capacity, that his conduct was in the best interest of
the corporation, and (2) in all other cases,
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that his conduct was at least not opposed to its best interest, and in the case
of any criminal proceeding, that the director had no reasonable cause to believe
his conduct was unlawful. Section 33-8-510 of the SCBCA provides that this
standard will be satisfied by a director's conduct with respect to an employee
benefit plan that the director reasonably believed to be in the best interests
of the plan's participants and beneficiaries. Section 33-8-510 prohibits a South
Carolina corporation from indemnifying a director in the event of adjudicated
liability in connection with a proceeding by or in the right of the corporation,
or in any other proceeding whether or not in his official capacity, if the
director was adjudged liable on the basis that personal benefit was improperly
received by him. Indemnification in connection with a proceeding by or in the
right of the corporation is limited to reasonable expenses incurred in
connection with the proceeding.
This indemnification under the SCBCA may be made by a South Carolina
corporation only upon (1) a determination that the standard of conduct set forth
in Section 33-8-510 has been met, made by the majority vote of a quorum of
non-party directors, or if such a quorum cannot be obtained, by majority vote of
a committee consisting of two or more non-party directors, by special legal
counsel, or by the affirmative vote of shareholders excluding shares owned, or
the voting of which is controlled, by directors who are parties to the
proceeding; and (2) authorization of indemnification, made in the same manner as
the determination that indemnification is permissible, except that, if the
determination is made by special legal counsel, authorization must be made by
majority vote of a quorum of non-party directors or a special committee
consisting of two or more non-party directors, or if such quorum or committee
cannot be obtained, by majority vote of the board of directors.
Section 33-8-520 of the SCBCA provides that, unless limited by its
articles of incorporation, a South Carolina corporation must provide mandatory
indemnification of a director for reasonable expenses if the director has been
wholly successful (whether or not on the merits) in the defense of any
proceeding to which he was a party because he is or was a director. In addition,
unless provided otherwise by a corporation's articles of incorporation, Section
33-8-540 of the SCBCA authorizes a director to apply for indemnification by
court order, which may be granted if the court determines that the director is
entitled to mandatory indemnification or is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or not the
director met the statutory standard of conduct, or was adjudged liable to the
corporation or improperly derived a personal benefit, but in that event
court-ordered indemnification is limited to reasonable expenses incurred in
connection with the proceeding.
Section 33-8-530 of the SCBCA provides that a South Carolina
corporation may pay for or reimburse the reasonable expenses incurred by a
director who is a party to a proceeding in advance of final disposition of the
proceeding if (1) the director furnishes the corporation with a written
affirmation of his good faith belief that he has met the statutory standard of
conduct described in Section 33-8-510, (2) the director furnishes the
corporation with a written promise to repay expenses advanced if it is
ultimately determined that he did not meet the standard of conduct, and (3) the
corporation determines, in the same manner required for determining the
statutory standard of conduct, that the facts as known would not preclude
indemnification under the SCBCA.
4
Section 33-8-560 of the SCBCA permits a South Carolina corporation,
unless its articles of incorporation provide otherwise, to indemnify an officer,
employee or agent who is not a director to the same extent as to a director.
Absent a contrary provision in the corporation's articles of incorporation, an
officer who is not a director is also entitled to the mandatory indemnification
and court-ordered indemnification available to a director. A South Carolina
corporation may also indemnify and advance expenses to an officer, employee, or
agent who is not a director to the extent, consistent with public policy, that
may be provided by its articles of incorporation, bylaws, general or specific
action of its board of directors, or contract.
The SCBCA provides that a South Carolina corporation has the power to
purchase and maintain insurance on behalf of any director, officer, employee or
agent of the corporation, or one serving as such for another entity or
enterprise at the request of the corporation, against liability whether or not
the corporation would have the power to indemnify him against such liability
under the SCBCA.
The SCBCA validates provisions in the articles of incorporation or
bylaws of a South Carolina corporation, resolutions of its shareholders or board
of directors, or otherwise, only to the extent such provisions or resolutions
are consistent with the SCBCA, but does not limit a corporation's power to pay
or reimburse expenses incurred by a director in connection with his appearance
as a witness in a proceeding at a time when he is not a defendant or respondent
to the proceeding.
Bylaws
Article Five of the Company's Bylaws provides for indemnification to
the fullest extent permitted by the SCBCA. Under Article Five, any present or
former director, officer or employee of the Company, or any person, who, at the
request of the Company, may have served as a director or officer of another
company in which the Company owns shares or of which the Company is a creditor,
is entitled to reimbursement of expenses and other liabilities, including
attorney's fees actually and reasonably incurred by him and any amount owing or
paid by him in connection with a civil, criminal or administrative proceeding to
which he is a party by reason of being or having been a director, officer or
employee of the Company or such other company.
Article Five also authorizes the Company to purchase and maintain
insurance on behalf of any present or former director, officer or employee of
the Company, or any person who, at the request of the Company, may have served
as a director or officer of any company in which the Company owns shares or in
which the Company is a creditor, against any liability asserted against him and
incurred by him in any such capacity or arising out of his status as such
together with all costs, fees, penalties, fines and the like with respect
thereto.
Insurance Policies
The Company currently maintains an insurance policy providing
reimbursement of indemnification payments to officers and directors of the
Company and its subsidiaries and reimbursement of certain liabilities incurred
by directors and officers of the Company and its subsidiaries in their
capacities as such, to the extent that they are not indemnified by the Company.
5
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 See Articles 4, 5, 7, 9 and 10 of the Company's Restated Articles of
Incorporation (filed as Exhibit 3.1 to the Company's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1997, as amended on June
26, 1997 and incorporated herein by reference) and Articles I, II and
VI of the Company's Bylaws (filed as Exhibit 3.2 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1999 and
incorporated herein by reference).
4.2 See the Form of Rights Agreement dated as of August 7, 1990 between The
Liberty Corporation and The Bank of New York, as Rights Agent, which
includes as Exhibit B thereto the form of Right Certificate (filed as
Exhibits 1 and 2 to the Company's Form 8-A, dated August 10, 1990, and
incorporated herein by reference) as amended by Amendments 1, 2 and 3
thereto, dated as of June 1, 1999, May 2, 2000 and June 20, 2000,
respectively (filed on October 12, 2000 as Exhibits 3, 4 and 5 to the
Amendment No. 1 to the Company's Form 8-A and incorporated herein by
reference) with respect to the Rights to purchase Series A
Participating Cumulative Preferred Stock.
4.3 The Liberty Corporation Retirement and Savings Plan, as Amended and
Restated Effective January 1, 2002.
4.4 First Amendment to The Liberty Corporation Retirement and Savings Plan,
as Amended and Restated Effective January 1, 2002, which Amendment is
also effective January 1, 2002.
5.1 (a) Opinion of Martha G. Williams, General Counsel of the Company,
as to the validity of that portion of the securities being
registered that may be newly issued, including consent to the
filing of her opinion.
(b) The Company will submit, on a timely basis, The Liberty
Corporation Retirement and Savings Plan, as Amended and
Restated Effective January 1, 2002, and as further amended by
the First Amendment thereto, also effective January 1, 2002,
to the Internal Revenue Service ("IRS") for a determination
letter that the Plan, as amended and restated, is qualified
under Section 401 of the Internal Revenue Code and will make
any changes required by the IRS in order to so qualify the
Plan, as amended and restated.
23.1 Consent of Independent Auditors.
23.2 Consent of Martha G. Williams is included in Exhibit 5.1.
6
24.1 Power of Attorney of W. W. Johnson
24.2 Power of Attorney of William O. McCoy
24.3 Power of Attorney of John H. Mullin, III
24.4 Power of Attorney of Benjamin F. Payton
24.5 Power of Attorney of J. Thurston Roach
24.6 Power of Attorney of Eugene E. Stone, IV
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;
(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
Registration Statement is on Form S-3, Form S-8 or Form F-3, and 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
7
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 Company's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 and each filing of an annual report of the Plan
(or the Predecessor Plan) pursuant to Section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
* * *
8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Greenville, State of South Carolina,
on March 26, 2002.
THE LIBERTY CORPORATION
By: /s/ HAYNE HIPP
--------------------------------------
Hayne Hipp
Chief Executive Officer
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.
Signature Title Date
--------- ----- ----
/s/ HAYNE HIPP Chief Executive Officer March 26, 2002
--------------------------- and Director
Hayne Hipp
/s/ JAMES M. KEELOR President March 26, 2002
---------------------------
James M. Keelor
/s/ HOWARD L. SCHROTT Chief Financial Officer March 26, 2002
---------------------------
Howard L. Schrott
Director March , 2002
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Edward E. Crutchfield
Director March , 2002
---------------------------
John R. Farmer
/s/ W.W. JOHNSON* Director March 26, 2002
---------------------------
W. W. Johnson
9
Signature Title Date
--------- ----- ----
/s/ WILLIAM O. MCCOY* Director March 26, 2002
---------------------------
William O. McCoy
Director March , 2002
---------------------------
Frank E. Melton
/s/ JOHN H. MULLIN, III* Director March 26, 2002
---------------------------
John H. Mullin, III
/s/ BENJAMIN F. PAYTON* Director March 26, 2002
---------------------------
Benjamin F. Payton
/s/ J. THURSTON ROACH* Director March 26, 2002
---------------------------
J. Thurston Roach
/s/ EUGENE E. STONE, IV* Director March 26, 2002
---------------------------
Eugene E. Stone, IV
Director March , 2002
---------------------------
William B. Timmerman
*By Martha G. Williams as attorney-in-fact
/s/ MARTHA G. WILLIAMS
---------------------------
Martha G. Williams as attorney-in-fact
for the individuals as indicated
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The Plan. Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Greenville, State of
South Carolina, on March 26, 2002.
THE LIBERTY CORPORATION RETIREMENT
AND SAVINGS PLAN, AS AMENDED AND
RESTATED EFFECTIVE JANUARY 1, 2002
By: /s/ Mary Anne Bunton
--------------------------------------
Mary Anne Bunton
Plan Administrator
By: /s/ Carol Plemmons
--------------------------------------
Carol Plemmons
Plan Administrator
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
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4.1 See Articles 4, 5, 7, 9 and 10 of the Company's Restated Articles
of Incorporation (filed as Exhibit 3.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1997, as
amended on June 26, 1997, and incorporated herein by reference)
and Articles I, II and VI of the Company's Bylaws (filed as
Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1999 and incorporated herein by
reference).
4.2 See the Form of Rights Agreement dated as of August 7, 1990
between The Liberty Corporation and The Bank of New York, as
Rights Agent, which includes as Exhibit B thereto the form of
Right Certificate (filed as Exhibits 1 and 2 to the Company's
Form 8-A, dated August 10, 1990, and incorporated herein by
reference) as amended by Amendments 1, 2 and 3 thereto, dated as
of June 1, 1999, May 2, 2000 and June 20, 2000, respectively
(filed on October 12, 2000 as Exhibits 3, 4 and 5 to the
Amendment No. 1 to the Company's Form 8-A and incorporated herein
by reference) with respect to the Rights to purchase Series A
Participating Cumulative Preferred Stock
4.3 The Liberty Corporation Retirement and Savings Plan, as
Amended and Restated Effective January 1, 2002.
4.4 First Amendment to The Liberty Corporation Retirement and
Savings Plan, as Amended and Restated Effective January 1,
2002, which Amendment is also effective January 1, 2002.
5.1 (a) Opinion of Martha G. Williams, General Counsel of the
Company, as to the validity of that portion of the
securities being registered that may be newly issued,
including consent to the filing of her opinion.
(b) The Company will submit, on a timely basis, The Liberty
Corporation Retirement and Savings Plan, as Amended and
Restated Effective January 1, 2002, and as further amended
by the First Amendment thereto, also effective January 1,
2002, to the Internal Revenue Service ("IRS") for a
determination letter that the Plan, as amended and
restated, is qualified under Section 401 of the Internal
Revenue Code and will make any changes required by the IRS
in order to so qualify the Plan, as amended and restated.
23.1 Consent of Independent Auditors.
23.2 Consent of Martha G. Williams is included in Exhibit 5.1.
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24.1 Power of Attorney of W. W. Johnson
24.2 Power of Attorney of William O. McCoy
24.3 Power of Attorney of John H. Mullin, III
24.4 Power of Attorney of Benjamin F. Payton
24.5 Power of Attorney of J. Thurston Roach
24.6 Power of Attorney of Eugene E. Stone, IV
13