As filed with the Securities and Exchange Commission on January 26, 1998
Registration Number 333--------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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ORION CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 95-6069054
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
600 Fifth Avenue
New York, New York 10020-2302
(Address of Principal Executive (Zip Code)
Offices)
WM. H. MCGEE & CO., INC. PROFIT SHARING PLAN
(Full Title of Plan)
Michael P. Maloney, Esq.
Senior Vice President, General Counsel and Secretary
Orion Capital Corporation
9 Farm Springs Road
Farmington, Connecticut 06032
(860) 674-6600
(Name and address of agent for service)
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Copies to:
John J. McCann, Esq.
Donovan Leisure Newton & Irvine
30 Rockefeller Plaza
New York, New York 10112
(212) 632-3000
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CALCULATION OF REGISTRATION FEE
================================================================================
TITLE PROPOSED PROPOSED
OF MAXIMUM MAXIMUM AMOUNT
SECURITIES AMOUNT TO OFFERING AGGREGATE OF
TO BE BE PRICE PER OFFERING REGISTRATION
REGISTERED (1) REGISTERED UNIT (2) PRICE (2) FEE
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Common Stock,
par value $1.00
per share 100,000 $44.594 $4,459,000 $1,315.52
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Estimated for the sole purpose of computing the registration fee.
Pursuant to Securities Act Rule 457(c), the proposed maximum offering
price per unit is calculated as the average of the high and low prices,
reported by the New York Stock Exchange, Inc., of the common stock of
the registrant as of January 22, 1998.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Pursuant to Rule 428(b)(1) under the Securities Act of 1933,
as amended, the documents containing the information specified in Part I of Form
S-8 will be sent or given to each participant in the Wm. H. McGee & Co., Inc.
Profit Sharing Plan (the "McGee Savings Plan"). These documents and the
documents incorporated by reference in the Registration Statement pursuant to
Item 3 of Part II hereof, taken together, constitute the Section 10(a)
Prospectus.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by Orion
Capital Corporation ("Orion") (File No. 1-7801) are incorporated herein by
reference and made a part hereof:
(a) Orion's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
(b) Orion's Quarterly Report on Form 10-Q for the quarters ended
March 31, June 30 and September 30, 1997; and
(c) the description of the Common Stock of Orion and its preferred
stock purchase rights associated with the Common Stock,
contained in its Registration Statement filed pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and any amendment or report filed for the
purpose of updating that description.
All documents filed by Orion or the McGee Savings Plan
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 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 part
hereof from the date of filing of such documents.
The consolidated financial statements and the related
financial statement schedules incorporated in this Registration Statement by
reference from Orion's Annual Report on Form 10-K for the year ended December
31, 1996 have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, and have been so incorporated in reliance upon the
report of such firm given upon their authority as experts in accounting and
auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Orion is a Delaware corporation. Wm. H. McGee & Co., Inc.
("McGee") is a New York corporation and may be deemed to be a controlling person
of the McGee Savings Plan. Reference is made to Section 145 of the Delaware
General Corporation Law as to indemnification by Orion of its officers and
directors and to Sections 721 through 726 of the New York Business Corporation
Law as to indemnification by McGee of its officers and directors. The general
effect of such laws is to empower a corporation to indemnify any of its officers
and directors against certain expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by the
person to be indemnified in connection with certain actions, suits or
proceedings (threatened, pending or completed) if the person to be indemnified
acted in good faith and in a manner he 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 his conduct
was unlawful.
Article IX of Orion's By-laws requires indemnification of
Orion's directors and officers to the fullest extent permitted by the Delaware
General Corporation Law ("Delaware Law") and provides for the advancement of
defense expenses provided the director or officer agrees to repay the advance if
it is ultimately determined that he is not entitled to indemnification. Article
IX also provides that the indemnification provided by the By-laws is not
exclusive. Section 145(a) of Delaware Law provides in general that a corporation
may indemnify anyone who is or may be a party to a legal proceeding by reason of
his service as a director or officer against expenses, adjustments, fines and
settlement payments actually and reasonably incurred 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 corporation and, as to any criminal proceeding, had no
reasonable cause to believe his conduct was unlawful. Section 145(b) of Delaware
Law provides similarly where the proceeding is by or in the right of the
corporation to procure a judgment in its favor. Section 145(g) of Delaware Law
allows a corporation to maintain insurance on behalf of any officer or director
against any liability incurred by him in such capacity, whether or not the
corporation would have the power to indemnify him against such liability under
Delaware Law. Registrant maintains such directors and officers liability
insurance coverage.
Each of Orion's directors has entered into an indemnity
agreement with Orion which (i) confirms the indemnity set forth in the By-laws
and gives assurances that such indemnity will continue to be provided despite
any By-law changes and (ii) provides, subject to certain conditions, that the
director shall be indemnified to the fullest extent permitted by law against all
expenses, judgments, fines and settlement amounts incurred or paid by him in any
proceeding.
As permitted by Section 102(b)(7) of Delaware Law, Article VII
of Orion's Restated Certificate of Incorporation eliminates personal liability
of any director to Orion and its stockholders for breach of the director's
fiduciary duty of care, except where the director has breached his duty of
loyalty, acted in bad faith, engaged in intentional or knowing misconduct,
negligently or willfully declared an improper dividend or effected an unlawful
stock repurchase or redemption, or obtained any improper personal benefit.
Article V of McGee's By-laws requires indemnification of
McGee's directors and officers as permitted by Sections 721 through 725 of the
Business Corporation Law of New York ("New York Law") and provides for the
advancement of defense expenses provided the director or officer agrees to repay
the advance if it is ultimately determined that he is not entitled to
indemnification. The McGee By-laws also provide that the indemnification
provisions are not exclusive and that other rights to indemnification may be
granted through shareholder resolutions, director resolutions and
indemnification agreements between McGee and its officers and directors. Section
726 of New York Law allows a corporation to maintain insurance on behalf of any
officer or director against any liability incurred by him in such capacity,
whether or not the corporation would have the power to indemnify him against
such liability under New York Law. Registrant maintains such director's and
officer's liability insurance coverage.
Paragraph 6 of McGee's Restated Certificate of Incorporation
eliminates personal liability of any director to McGee and its stockholders for
any breach of duty by the director, except where, in a judgment or other final
adjudication adverse to the director, the director's acts or omissions were
determined to be in bad faith, involve intentional misconduct or a knowing
violation of law or in which it was determined that the director gained, in
fact, a financial profit or other advantage to which the director was not
legally entitled or that the director's acts violated New York Law Section 719.
The Wm. H. McGee & Co., Inc. Profit Sharing Trust (the "Trust
Agreement") provides that McGee shall indemnify and save harmless from and
against all liability to which the trustee, Fidelity Management Trust Company, a
Massachusetts corporation, may be subjected by reason of any act or conduct in
its capacity as trustee, including all expenses reasonably incurred in its
defense, except for losses or expenses resulting from the negligence or willful
misconduct of the Trustee or its affiliates.
ITEM 8. EXHIBITS.
The documents listed hereunder are filed as exhibits hereto.
EXHIBIT NUMBER DESCRIPTION
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4.1 Wm. H. McGee & Co., Inc. Profit Sharing Plan as amended
effective January 1, 1997
4.2 Wm. H. McGee & Co., Inc. Profit Sharing Trust as amended
effective January 1, 1997
23 Consent of Deloitte & Touche LLP dated January 23, 1998
Orion will cause the McGee Savings Plan, as amended to date,
to be submitted to the Internal Revenue Service ("IRS") in a timely manner and
will cause to be made all changes required by the IRS in order to qualify such
plan.
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; 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) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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.
SIGNATURES
The Registrant. 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 New York, State of New York, on the 23rd day of
January, 1998.
ORION CAPITAL CORPORATION
By:/s/ W. Marston Becker
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W. Marston Becker
Chairman and
Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below authorizes Michael P. Maloney as attorney-in-fact, with full power of
substitution and resubstitution, to sign and file on his behalf, individually
and in each capacity stated below, all amendments to this Registration
Statement.
Date: January 23, 1998 By:/s/ W. Marston Becker
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W. Marston Becker
Chairman and Director
(Principal Executive Officer)
Date: January 23, 1998 By:/s/ Daniel L. Barry
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Daniel L. Barry
Senior Vice President and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
Date: January 23, 1998 By:/s/ Bertram J. Cohn
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Bertram J. Cohn
Director
Date: January 23, 1998 By:/s/ Gordon F. Cheesbrough
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Gordon F. Cheesbrough
Director
Date: January 23, 1998 By:/s/ John C. Coleman
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John C. Coleman
Director
Date: January 23, 1998 By:/s/ Victoria R. Fash
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Victoria R. Fash
Director
Date: January 23, 1998 By:/s/ Robert H. Jeffrey
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Robert H. Jeffrey
Director
Date: January 23, 1998 By:/s/ Warren R. Lyons
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Warren R. Lyons
Director
Date: January 23, 1998 By:/s/ James K. McWilliams
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James K. McWilliams
Director
Date: January 23, 1998 By:/s/ Ronald W. Moore
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Ronald W. Moore
Director
Date: January 23, 1998 By:/s/ Robert B. Sanborn
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Robert B. Sanborn
Director
Date: January 23, 1998 By:/s/ William J. Shepherd
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William J. Shepherd
Director
Date: January 23, 1998 By:/s/ John R. Thorne
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John R. Thorne
Director
Date: January 23, 1998 By:/s/ Roger B. Ware
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Roger B. Ware
Director
Date: January 23, 1998 By:
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William Weaver
Director
The Plan. Pursuant to the requirements of the Securities Act
of 1933, the trustee of or other persons who administer the McGee Savings Plan
have 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 the 23rd day of January, 1998.
WM. H. MCGEE & CO, INC.
PROFIT SHARING PLAN
By:/s/ Michael Miller
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Michael Miller
Chairman of the Employee
Benefits Committee of
Wm. H. McGee & Co., Inc.
INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION
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4.1 Wm. H. McGee & Co., Inc. Profit Sharing Plan as amended
effective January 1, 1997
4.2 Wm. H. McGee & Co., Inc. Profit Sharing Trust as amended
effective January 1, 1997
23 Consent of Deloitte & Touche LLP dated January 23, 1998