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As filed with the Securities and Exchange
Commission on May 11, 1998
Registration No. 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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EXECUTIVE RISK INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1388171
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
82 Hopmeadow Street
Simsbury, Connecticut 06070
(Address of Principal
Executive Offices) (Zip Code)
Executive Risk Inc. Performance Share Plan
Executive Risk Inc. Stock Incentive Plan
(Full Title of the Plans)
Stephen J. Sills
Chief Executive Officer and President
Executive Risk Inc.
82 Hopmeadow Street
Simsbury, Connecticut 06070
(860) 408-2200
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of securities Amount to be registered Proposed maximum Proposed maximum Amount of registration
to be registered offering price per aggregate offering fee
share price
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Common Stock, par 200,000 $65.25 $13,050,000* $3,850
value $.01 per share . . . .
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*Pursuant to Rule 457(h), these prices are estimated solely for the purpose of
calculating the registration fee and are based upon the average of the high and
low sales prices of the Registrant's Common Stock on the New York Stock Exchange
on May 5, 1998.
There are also registered hereunder such additional indeterminate number of
shares as may be issued as a result of the antidilution provisions of the
Executive Risk Inc. Performance Share Plan and the Executive Risk Inc. Stock
Incentive Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing information specified by Part I of this Form
S-8 Registration Statement (the "Registration Statement") have been or will be
sent or given to participants in the plans listed on the cover of the
Registration Statement (the "Plans") as specified in Rule 428(b)(1) promulgated
by the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"). Such document(s) are
not being filed with the Commission but constitute (along with the documents
incorporated by reference into the Registration Statement pursuant to Item 3 of
Part II hereof), a prospectus (the "Prospectus") that meets the requirements of
Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission pursuant to Section
13 of the Exchange Act are incorporated herein by reference:
(1) Annual Report on Form 10-K for the fiscal year ended December 31, 1997;
and
(2) Description of the Company's capital stock contained in the Company's
Registration Statement on Form 8-A, filed with the Commission on
February 9, 1994, as amended by Form 8-A/A, filed with the Commission
on May 8, 1996, and as further amended by Form 8-A/A, filed with the
Commission on August 26, 1997, including any further amendments or
reports filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), 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 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 that
also is or is deemed to be incorporated by reference herein or therein) modifies
or supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
The Company will provide without charge to each participant under
either of the Plans, upon the written or oral request of such person, a copy of
any or all of the documents referred to above which have been or may be
incorporated by reference herein (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference in such documents).
Requests for such copies should be directed to Executive Risk Inc., 82 Hopmeadow
Street, Simsbury, Connecticut 06070, Attention: Robert V. Deutsch, telephone
number (860) 408-2000.
ITEM 4. NOT APPLICABLE
ITEM 5. NOT APPLICABLE
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the General Corporation Law of the State of Delaware
(the "DGCL") provides that a Delaware 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, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that he 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 or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no cause to believe his conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware 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 such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him in connection with the defense
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or settlement of such action or suit if he acted under similar standards, except
that no indemnification may 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 in which such action or suit was
brought shall determine that despite the adjudication of liability, such person
is fairly and reasonably entitled to be indemnified for such expenses which the
court shall deem proper.
Section 145(c) of the DGCL provides that to the extent a director or
officer of a Delaware corporation has been successful in the defense of any
action, suit or proceeding referred to in subsections (a) and (b) or in the
defense of any claim, issue or matter therein, he shall be indemnified against
expenses actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him or
incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under such Section 145.
The Company's By-laws provide that the Company shall indemnify officers
and directors, employees and agents of the Company, to the full extent permitted
by and in the manner permissible under the laws of the State of Delaware. The
By-laws also permit the Board of Directors to authorize the Company to purchase
and maintain insurance against any liability asserted against any director,
officer, employee or agent of the Company arising out of his capacity as such.
Section 102(b)(7) of the DGCL provides that a Delaware corporation in
its original certificate of incorporation or an amendment thereto validly
approved by stockholders may eliminate or limit personal liability of members of
its board of directors or governing body for monetary damages for breach of a
director's fiduciary duty. However, no such provision may eliminate or limit the
liability of a director for breaching his duty of loyalty, failing to act in
good faith, engaging in intentional misconduct or knowingly violating a law,
paying a dividend or approving a stock repurchase which was illegal, or
obtaining an improper personal benefit. A provision of this type has no effect
on the availability of equitable remedies, such as injunction or rescission, for
breach of fiduciary duty. The Company's Certificate of Incorporation contains
such a provision.
ITEM 7. NOT APPLICABLE
ITEM 8. EXHIBITS
Exhibit Number Description
5.1 - Opinion of Dewey Ballantine LLP as to legality of
securities being registered.
23.1 - Consent of Ernst & Young LLP.
23.2 - Consent of Dewey Ballantine LLP (included in
Exhibit 5.1).
24 - Power of Attorney executed by the Officers and Directors
who signed this Registration Statement set forth on
pages II-4 and II-5 herein.
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:
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(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;
(iii) To include any material information with respect to the
plans 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 by the registrant
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) 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.
(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, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
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.
(c) 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 the director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Town of Simsbury, State of Connecticut, on this ___ day of
____, 1998.
EXECUTIVE RISK INC.
By /s/ Stephen J. Sills
Stephen J. Sills
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of the Company, for himself and not for one another, hereby
constitutes and appoints Stephen J. Sills, Robert H. Kullas and Robert V.
Deutsch and each of them (with full power to each of them to act alone), his
true and lawful attorneys-in-fact and agents for him and on his behalf and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to the Registration Statement,
and any other documents in connection therewith, granting unto said
attorneys-in-fact and agents and each of them full power and authority to do and
perform each and every act and thing necessary and proper to be done in and
about the premises in order to effectuate the same as fully to all intents and
purposes as the undersigned might or could do if personally present; and each of
the undersigned hereby ratifies and confirms all that said attorneys-in-fact and
agents or any one of them, or their substitute or substitutes, may or shall
lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on this ___ day of __________, 1998.
Signature Title
- --------- -----
/s/ Stephen J. Sills Chief Executive Officer and President
- ---------------------------------------------------- (Principal Executive Officer) and Director
Stephen J. Sills
/s/ Robert H. Kullas Chairman of the Board and Director
- ----------------------------------------------------
Robert H. Kullas
/s/ Robert V. Deutsch Executive Vice President, Treasurer,
- ------------------------------------------ Chief Financial Officer (Principal Financial
Robert V. Deutsch Officer and Principal Accounting Officer),
Chief Actuary and Director
/s/ Gary G. Benanav Director
- ----------------------------------------------------
Gary G. Benanav
/s/ Barbara G. Cohen Director
- ----------------------------------------------------
Barbara G. Cohen
/s/ John G. Crosby Director
- ----------------------------------------------------
John G. Crosby
/s/ Patrick A. Gerschel Director
- ----------------------------------------------------
Patrick A. Gerschel
/s/ Peter Goldberg Director
- ----------------------------------------------------
Peter Goldberg
/s/ Michael D. Rice Director
- ----------------------------------------------------
Michael D. Rice
/s/ Joseph D. Sargent Director
- ----------------------------------------------------
Joseph D. Sargent
/s/ Irving B. Yoskowitz Director
- ----------------------------------------------------
Irving B. Yoskowitz
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