AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 25, 2005
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): July 19, 2005
W. R. BERKLEY CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 1-15202 22-1867895
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(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
475 STEAMBOAT ROAD, GREENWICH, CT 06830
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (203) 629-3000
NOT APPLICABLE
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
On July 19, 2005, the W. R. Berkley Corporation (the "Company") and W. R.
Berkley Capital Trust II (the "Trust") executed a Purchase Agreement (the
"Purchase Agreement") with Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Citigroup Global Markets Inc., Morgan Stanley & Co. Incorporated and UBS
Securities LLC, as representatives of the several underwriters named therein,
for the sale of 10,000,000 6.750% Trust Preferred Securities (liquidation amount
$25 per trust preferred security) (the "Trust Preferred Securities") of the
Trust, which will represent undivided beneficial interests in the assets of the
Trust.
The Trust Preferred Securities will be fully and unconditionally
guaranteed by the Company with respect to distributions (the "Preferred
Securities Guarantee"), to the extent the Trust has available funds for payment
of such distributions, pursuant to the Preferred Securities Guarantee Agreement
(the "Preferred Securities Guarantee Agreement"), to be entered into between the
Company and The Bank of New York (Delaware), as trustee.
In connection with the issuance of the Trust Preferred Securities, the
Trust will also issue to the Company four common securities (liquidation amount
$25 per common security) (the "Common Securities"), which will represent
undivided beneficial interests in the assets of the Trust.
The proceeds from the sale of the Trust Preferred Securities and the
Common Securities are to be used by the Trust to purchase $250,000,000 aggregate
principal amount of the Company's 6.750% Subordinated Debentures due 2045 (the
"Subordinated Debentures").
The Trust Preferred Securities and the Preferred Securities Guarantee are
issued pursuant to the Prospectus Supplement dated July 19, 2005 to the
Prospectus dated December 23, 2003, filed as part of the Registration Statement
on Form S-3, as amended (Registration No. 333-109621; declared effective on
December 23, 2003). The Trust Preferred Securities and the Common Securities are
to be issued pursuant to the Amended and Restated Declaration of Trust of W. R.
Berkley Capital Trust II to be entered into by and among the Company, The Bank
of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, the Administrative Trustees named therein, and the Holders, as defined
therein (the "Amended and Restated Declaration of Trust"). The Subordinated
Debentures are to be issued pursuant to the Subordinated Indenture (the
"Subordinated Indenture"), to be dated as of July 26, 2005, as supplemented by
Supplemental Indenture No. 1 ("Supplemental Indenture No. 1"), to be dated as of
July 26, 2005, between the Company and The Bank of New York, as trustee.
The Purchase Agreement, forms of the Amended and Restated Trust Agreement,
Subordinated Indenture, Supplemental Indenture No. 1, Preferred Securities
Guarantee Agreement and Common Securities Guarantee Agreement, an opinion of
Prickett, Jones & Elliot, P.A., special Delaware counsel to the Trust, as to the
validity of the Trust Preferred Securities, an opinion of Willkie Farr &
Gallagher LLP, counsel to the Company and the Trust, as to the validity of the
Preferred Securities Guarantee and the Subordinated Debentures and an opinion of
Willkie Farr & Gallagher LLP, special tax counsel to the Company and the Trust,
as to certain tax matters, are filed as exhibits hereto and are incorporated
herein by reference. The
form of the Trust Preferred Securities and the Common Securities are included as
Exhibit A-1 and Exhibit A-2, respectively, to the Form of Amended and Restated
Trust Agreement.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits:
1.1 Purchase Agreement, dated as of July 19, 2005, between W. R.
Berkley Corporation, W. R. Berkley Capital Trust II Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global
Markets Inc., Morgan Stanley & Co. Incorporated and UBS
Securities LLC, as representatives of the several underwriters
named therein.
4.1 Certificate of Trust of W. R. Berkley Capital Trust II, dated
March 22, 2001 (incorporated by reference to Exhibit 4.13 to
W. R. Berkley Corporation's Registration Statement on Form S-3
(Registration No. 333-57546)).
4.2 Trust Agreement of W. R. Berkley Capital Trust II, dated March
22, 2001 (incorporated by reference to Exhibit 4.15 to W. R.
Berkley Corporation's Registration Statement on Form S-3
(Registration No. 333-57546)).
4.3 Form of Amended and Restated Trust Agreement of W. R. Berkley
Capital Trust II
4.4 Form of Subordinated Indenture between W. R. Berkley
Corporation and the Trustee (incorporated by reference to
Exhibit 4.9 to W. R. Berkley Corporation's Registration
Statement on Form S-3 (Registration No. 333-57546)).
4.5 Form of Subordinated Indenture between W. R. Berkley
Corporation and The Bank of New York, as Trustee.
4.6 Form of Supplemental Indenture No. 1 to the Subordinated
Indenture between W. R. Berkley Corporation and The Bank of
New York, as Trustee.
4.7 Form of Preferred Securities Guarantee Agreement between W. R.
Berkley Corporation, as Guarantor, and The Bank of New York,
as Guarantee Trustee.
4.8 Form of Common Securities Guarantee Agreement between W. R.
Berkley Corporation, as Guarantor, and The Bank of New York,
as Guarantee Trustee.
4.9 Form of Trust Preferred Security Certificate for W. R. Berkley
Capital Trust II (included as Exhibit A-1 to the Form of
Amended and Restated Trust Agreement of W. R. Berkley Capital
Trust II).
4.10 Specimen of Subordinated Debenture (included as Exhibit B to
the Form of Amended and Restated Trust Agreement of W. R.
Berkley Capital Trust II).
5.1 Opinion of Prickett, Jones & Elliott, P.A. regarding the
legality of the Trust Preferred Securities
5.2 Opinion of Willkie Farr & Gallagher LLP regarding the legality
of the Preferred Securities Guarantee and the Subordinated
Debentures
8.1 Tax Opinion of Willkie Farr & Gallagher LLP
23.1 Consent of Prickett, Jones & Elliott, P.A. (included in
Exhibit 5.1 hereto)
23.2 Consent of Willkie Farr & Gallagher LLP (included in Exhibits
5.2 and 8.1 hereto)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
W. R. BERKLEY CORPORATION
By: /s/ Eugene G. Ballard
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Name: Eugene G. Ballard
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
Date: July 25, 2005
EXHIBIT INDEX
Exhibit:
1.1 Purchase Agreement, dated as of July 19, 2005, between W. R. Berkley
Corporation, W. R. Berkley Capital Trust II Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Citigroup Global Markets Inc., Morgan Stanley & Co.
Incorporated and UBS Securities LLC, as representatives of the several
underwriters named therein.
4.1 Certificate of Trust of W. R. Berkley Capital Trust II, dated March 22,
2001 (incorporated by reference to Exhibit 4.13 to W. R. Berkley
Corporation's Registration Statement on Form S-3 (Registration No.
333-57546)).
4.2 Trust Agreement of W. R. Berkley Capital Trust II, dated March 22, 2001
(incorporated by reference to Exhibit 4.15 to W. R. Berkley Corporation's
Registration Statement on Form S-3 (Registration No. 333-57546)).
4.3 Form of Amended and Restated Trust Agreement of W. R. Berkley Capital
Trust II
4.4 Form of Subordinated Indenture between W. R. Berkley Corporation and the
Trustee (incorporated by reference to Exhibit 4.9 to W. R. Berkley
Corporation's Registration Statement on Form S-3 (Registration No.
333-57546)).
4.5 Form of Subordinated Indenture between W. R. Berkley Corporation and The
Bank of New York, as Trustee.
4.6 Form of Supplemental Indenture No. 1 to the Subordinated Indenture between
W. R. Berkley Corporation and The Bank of New York, as Trustee.
4.7 Form of Preferred Securities Guarantee Agreement between W. R. Berkley
Corporation, as Guarantor, and The Bank of New York, as Guarantee Trustee.
4.8 Form of Common Securities Guarantee Agreement between W. R. Berkley
Corporation, as Guarantor, and The Bank of New York, as Guarantee Trustee.
4.9 Form of Trust Preferred Security Certificate for W. R. Berkley Capital
Trust II (included as Exhibit A-1 to the Form of Amended and Restated
Trust Agreement of W. R. Berkley Capital Trust II).
4.10 Specimen of Subordinated Debenture (included as Exhibit B to the Form of
Amended and Restated Trust Agreement of W. R. Berkley Capital Trust II).
5.1 Opinion of Prickett, Jones & Elliott, P.A. regarding the legality of the
Trust Preferred Securities
5.2 Opinion of Willkie Farr & Gallagher LLP regarding the legality of the
Preferred Securities Guarantee and the Subordinated Debentures
8.1 Tax Opinion of Willkie Farr & Gallagher LLP
23.1 Consent of Prickett, Jones & Elliott, P.A. (included in Exhibit 5.1
hereto)
23.2 Consent of Willkie Farr & Gallagher LLP (included in Exhibits 5.2 and 8.1
hereto)