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FORM 8-A/A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
AMENDMENT TO
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
Executive Risk Inc.
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(Exact Name of Registrant as specified in its charter)
Delaware 06-1388171
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
82 Hopmeadow Street
Simsbury, Connecticut 06070
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be registered each class is to be registered
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Common Stock, $.01 par value New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act: None.
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ITEM 1. DESCRIPTION OF CAPITAL STOCK
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The Registrant, Executive Risk Inc. (herein referred to as the
"Registrant" or the "Company") amends and restates Item 1. of the
Registration on Form 8-A, filed with the Securities and Exchange
Commission ("SEC") on February 8, 1994, as amended and restated on
Form 8-A/A, filed with the SEC on May 8, 1996, as follows:
The Company's authorized capital stock consists of 50,000,000
shares of Common Stock, par value $.01 per share (the "Common
Stock"), and 4,000,000 shares of Preferred Stock, par value $.01
(the "Preferred Stock"). No shares of Preferred Stock are issued
and outstanding as of the date of this amendment to Form 8-A.
COMMON STOCK
All shares of Common Stock are fully paid and non-assessable, and
no personal liability will attach to the ownership thereof. The
Common Stock has no preemptive, subscription or conversion rights
and is not redeemable. The holders of shares of Common Stock are
entitled to elect all directors. Each holder of Common Stock is
entitled to one vote for each share held. There are no cumulative
voting rights. The quorum for meetings of stockholders to elect
directors is a majority in voting interest of the holders of the
shares of Common Stock entitled to vote, presenting in person or
represented by proxy unless applicable law requires a greater
number. Holders of the Common Stock are entitled to receive such
dividends as may be declared from time to time by the Board of
Directors in its discretion from funds legally available therefor.
Upon liquidation, the holders of the Common Stock are entitled to
share pro rata in funds legally available for distribution to such
holders, after payments to all creditors and holders of outstanding
preferred stock, if any.
PREFERRED STOCK
The Company is authorized to issue up to 4,000,000 shares of
preferred stock, $.01 par value (the "Preferred Stock"). There are
no shares of Preferred Stock
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issued or outstanding. The Board of Directors may, without further
stockholder action, issue authorized and unissued shares of
Preferred Stock in any number of series and may establish as to
each series the designation and number of shares to be issued and
the relative rights and preferences of the shares of each series,
including provisions regarding voting powers, redemption, dividend
rights, rights upon liquidation and conversion rights. The
issuance of Preferred Stock by the Board of Directors could
adversely affect the rights of holders of Common Stock by, among
other things, establishing preferential dividends, liquidation
rights and voting power. The issuance of Preferred Stock could be
used to discourage or defeat efforts to acquire control of the
Company through the acquisition of shares of Common Stock. The
Company currently has no plans to issue any shares of Preferred
Stock.
SHAREHOLDER RIGHTS PLAN
The Company has adopted a Shareholder Rights Plan (the "Rights
Plan"). In connection with the Rights Plan, on December 30, 1993,
the Board of Directors of the Company declared a dividend
distribution of one right (each, a "Right," and collectively, the
"Rights") for each share of Common Stock outstanding on January 1,
1994. In addition, the Company has authorized the issuance of one
Right with respect to each share of Common Stock that shall become
outstanding between January 1, 1994, and the earlier of the
Distribution Date or Expiration Date (as such terms are hereinafter
described) or the date, if any, on which Rights may be redeemed.
When exercisable, each Right entitles the registered holder to
purchase from the Company one share of Common Stock at a price of
$60.32 per share (the "Purchase Price"), subject to adjustment.
The description and terms of the Rights are set forth in a Rights
Agreement (as amended, the "Rights Agreement") between the Company
and Mellon Bank, N.A., as Rights Agent (the "Rights Agent"). A
copy of the Rights Agreement, together with the form of Right
Certificate (as defined below) and the form of Summary of Rights to
Purchase Common Stock (the "Summary of Rights") attached as
exhibits thereto, has been filed as an exhibit to Registration
Statement No. 333-3956, as filed under the Securities Act of 1933,
as amended. The following summary of the material terms of the
Rights does not purport to be complete, and is qualified in its
entirety by reference to such exhibit.
The Rights Agreement provides that, up to and including the
Distribution Date, the Rights will be evidenced, with respect to
any of the Common Stock certificates outstanding as of the close of
business on January 1, 1994, by such Common Stock certificates,
whether or not a copy of the Summary of Rights is attached thereto,
and the Rights will be transferred with and only with shares of
Common Stock. In addition, up to and including the Distribution
Date (or earlier redemption or expiration of the Rights), (i) new
Common Stock certificates issued after January 1, 1994, upon
transfer or new issuance of shares of Common Stock, contain a
notation incorporating the Rights Agreement by reference and (ii)
the surrender for transfer of any certificates for Common Stock
outstanding on or after January 1, 1994, with or without a copy of
the Summary of Rights attached thereto, will also constitute the
transfer of the Rights associated with Common
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Stock represented by such certificates. As soon as practicable
following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of
record of shares of Common Stock as of the close of business on the
Distribution Date and such separate Right Certificates alone will
evidence the Rights.
Under the Rights Agreement, the Distribution Date is defined as
the earlier of the tenth business day after (i) the commencement
of a tender or exchange offer by any person (other than the
Company, any subsidiary of the Company or any employee benefit
plan or employee stock plan of the Company or of any subsidiary of
the Company) for a number of the outstanding shares of the Company
stock having in the aggregate 25% or more of the general voting
power of the Company, unless the Board declares that the tenth
business day following such tender or exchange offer shall not be
considered a Distribution Date, or (ii) the date of a public
announcement by the Company or an Acquiring Person (as hereinafter
defined) that an Acquiring Person has become such (the "Stock
Acquisition Date"). In general, under the Rights Agreement, an
"Acquiring Person" is a person or group of affiliated or
associated persons (other than the Company, any subsidiary of the
Company, any employee benefit plan or employee stock plan of the
Company or of any subsidiary of the Company or any person who
acquires shares of the Company stock having in the aggregate 20%
or more of the general voting power of the Company in connection
with a transaction or series of transactions approved in advance
by the Board) who has acquired or obtained the right to acquire
beneficial ownership of a number of the outstanding shares of the
Company stock having in the aggregate 20% or more of the general
voting power of the Company.
The Rights are not exercisable until after the date on which the
Company's right to redeem has expired. The Rights will expire on
January 1, 2004 (the "Expiration Date"), unless earlier redeemed
by the Company as described below.
The Purchase Price payable, and the number of shares of Common
Stock or other securities or property issuable, upon exercise of
the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on Common Stock, or a
subdivision, combination or reclassification of Common Stock, (ii)
upon the grant to holders of Common Stock of certain rights or
warrants to subscribe for Common Stock, or convertible securities,
at less than the current market price of Common Stock, or (iii)
upon the distribution to holders of Common Stock of evidences of
indebtedness or assets (other than aggregate cash dividends
declared during any fiscal year not in excess of 50% of the net
income of the Company, as reported in the audited financial
statements of the Company and its subsidiaries for the immediately
preceding fiscal year), or dividends payable in shares of Common
Stock or of subscription rights or warrants (other than those
referred to above).
In the event that, on or at any time after a Stock Acquisition
Date, the Company is acquired in a merger or other business
combination transaction (in which any shares of Common Stock are
changed into or exchanged for other securities or assets) or more
than 50% of the assets or earning power of the Company and its
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subsidiaries (taken as a whole) are sold (including, without
limitation, by means of bulk or assumption reinsurance), proper
provision shall be made so that each holder of a Right shall
thereafter have the right to receive, upon the exercise thereof at
the then current exercise price of the Right, that number of
shares of common stock of the acquiring company which at the time
of such transaction would have a market value (determined as
provided in the Rights Agreement) of two times the exercise price
of the Right.
In the event that (i) on or at any time after a Stock Acquisition
Date, the Company is the surviving corporation in a merger or
other business combination and its Common Stock remains
outstanding and unchanged, (ii) an Acquiring Person engages in one
or more self-dealing transactions specified in the Rights
Agreement, (iii) a person (other than the Company, any subsidiary
of the Company, any employee benefit plan or employee stock plan
of the Company or of any subsidiary of the Company, a person who
acquires 20% or more of the general voting power of the Company in
connection with a transaction or series of transactions approved
prior to such transaction or transactions by the Board of
Directors of the Company) alone, or together with his, her or its
affiliates or associates, becomes the beneficial owner of a number
of the outstanding shares of the Company stock having in the
aggregate 25% or more of the general voting power of the Company
or (iv) during such time as there is an Acquiring Person, any of
certain events described in the Rights Agreement occurs which
results in such Acquiring Person's ownership interest being
increased by more than 1%, then, and in each such case, proper
provision shall be made so that each holder of a Right (except as
noted below) will thereafter have the right to receive, upon
payment of the Purchase Price, that number of shares of Common
Stock having a market value (determined as provided in the Rights
Agreement) as of the date of occurrence of any such event of two
times the Purchase Price.
The holder of any Rights that are, or were, beneficially owned by
an Acquiring Person or an affiliate or associate thereof or
certain transferees thereof which engaged in, or realized the
benefit of an event or transaction or transactions described in
the immediately preceding paragraph, shall not be entitled to the
benefit of the adjustment described in the immediately preceding
paragraph.
Rights are not exercisable until such time as the Rights are no
longer redeemable by the Company as described below. With certain
exceptions, no adjustment in the Purchase Price will be required
until cumulative adjustments require an adjustment of at least 1%
in such Purchase Price. No fractional shares (other than
fractions which are integral multiples of the fraction of a share
for which a Right is then exercisable) will be issued and in lieu
thereof an adjustment in cash will be made based on the market
price of Common Stock on the last trading date prior to the date
of exercise.
Up to and including the tenth business day after a Stock
Acquisition Date, which time period may be extended by the Board
of Directors of the Company to any time up to and including the
thirtieth business day after a Stock Acquisition Date, the Company
may redeem the rights in whole, but not in part, at a price of
$.0l per Right, which amount may be adjusted as provided in the
Rights
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Agreement (the "Redemption Price"). Under certain circumstances
set forth in the Rights Agreement, the decision to redeem or
extend the redemption period shall require the concurrence of a
majority of the Continuing Directors (as such term is defined
below). Promptly upon the action of the Board of Directors of the
Company electing to redeem the Rights, the Company shall make an
announcement thereof and, upon such announcement, the right to
exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
The term "Continuing Director" means any member of the Board of
Directors of the Company who was a member of the Board immediately
prior to the time that any person became an Acquiring Person, or
any member of the Board of Directors who becomes a member of the
Board subsequent to the time that any person shall become an
Acquiring Person if such person is recommended or approved by a
majority of the Continuing Directors then in office, but shall not
include an Acquiring Person or any affiliate, associate or
representative of an Acquiring Person.
Other than those provisions relating to the principal economic
terms of the Rights, any of the provisions of the Rights Agreement
may be amended by the Board of Directors of the Company prior to
the Distribution Date. On and after the Distribution Date, the
provisions of the Rights Agreement may be amended by the Board in
order to cure any ambiguity, to correct any provision which may be
defective or inconsistent with any other provision of the Rights
Agreement, to make changes which do not adversely affect the
interests of holders of Rights, or to shorten or lengthen any time
period under the Rights Agreement; provided, however, that the
Redemption Price, the Expiration Date, the Purchase Price and the
number of shares of Common Stock for which a Right is exercisable
may not be changed, and the time period for redemption may not be
lengthened when the Rights are not redeemable.
Until a Right is exercised, the holder thereof as such, will have
no rights as a stockholder of the Company with respect to a Right
held, including, without limitation, the right to vote or to
receive dividends.
On April 8, 1996, the Rights Agreement was amended to provide
that Aetna Life and Casualty Company shall not be deemed to be an
Acquiring Person by reason of the execution of the Agreement and
Plan of Merger, dated as of March 30, 1996, among Aetna Life and
Casualty Company, U.S. Healthcare Inc., Butterfly, Inc., Antelope
Sub, Inc., and New Merger Corporation, the public announcement
thereof or the closing of the transaction contemplated therein.
BOARD OF DIRECTORS. The Certificate of Incorporation and the
By-laws provide for the Board of Directors to be divided into
three classes of directors serving staggered three-year terms. As
a result, one-third of the Board of Directors will be elected each
year. The classification of directors has the effect of making it
more difficult to change the composition of the Board of Directors
because at least two annual meetings of stockholders, instead of
one, generally will be required to effect a change in the majority
of the Board of Directors. Third
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parties are precluded from removing incumbent directors without
cause and simultaneously gaining control of the Board of Directors
by filling, with their own nominees, the vacancies created by
removal. These provisions also reduce the power of stockholders
generally, even those with a majority voting power in the Company,
to remove incumbent directors and to fill vacancies on the Board
of Directors without the support of incumbent directors.
STOCKHOLDER ACTION BY WRITTEN CONSENT. The Certificate of
Incorporation also requires that any action required or permitted
to be taken by stockholders of the Company must be effected at a
duly called annual or special meeting of stockholders and may not
be effected by any consent in writing. This provision reduces the
power of the Company's stockholders and precludes a stockholder of
the Company from conducting any form of consent solicitation.
AMENDMENTS TO GOVERNING DOCUMENTS. Any amendment to the provisions
of the Company's Certificate of Incorporation governing the number
and classification of directors, the liability of directors to the
Corporation, the requirement that the stockholders effect corporate
action at a meeting and the procedures for adopting amendments to
the Certificate of Incorporation, itself, require the affirmative
vote of at least 75% of the then-outstanding shares of Common
Stock. In addition, the provisions of the By-laws of the Company
may not be amended, modified or rescinded by the stockholders
without the vote of the holders of at least 75% of the
then-outstanding shares of Common Stock.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is The Bank
of New York.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this
Amendment to its Registration Statement to be signed on its behalf
by the undersigned, thereto duly authorized on August 26, 1997.
Executive Risk Inc.
By: /s/ Robert H. Kullas
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Name: Robert H. Kullas
Title: Chairman