As filed with the Securities and Exchange Commission on March 13, 2000
File No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ESG RE LIMITED
(Exact name of registrant as specified in its charter)
BERMUDA NOT APPLICABLE
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Skandia International House
16 Church Street
Hamilton, HM 11, Bermuda
(Address of Principal Executive Offices) (Zip Code)
ESG RE LIMITED
2000 RESTRICTED STOCK PLAN
(Full Title of Plan)
ESG Re Limited
c/o CT Corporation System
1633 Broadway
New York, New York 10019
(Name and address of agent for service)
(212) 664-1666
(Telephone number, including area code, of agent for service)
Copies to:
RICHARD M. KOSNIK, ESQ.
Clifford Chance Rogers & Wells LLP
200 Park Avenue
New York, New York 10166
CALCULATION OF REGISTRATION FEE
================================================================================
Title of Securities Amount to be Proposed Proposed Amount of
to be Registered Registered Maximum Maximum Registration
Offering Price Aggregate Fee
Per Share* Offering Price*
- --------------------------------------------------------------------------------
Common Stock, par
value $1.00 per share 2,000,000 $4.125 $8,250,000 $2,178.00
================================================================================
* Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(h)(1) of the Securities Act of 1933, as amended, on
the basis of the average of the high and low prices of Company's Common
Stock reported on the Nasdaq National Market on March 8, 2000.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the requirements of the Note to Part I of Form S-8 and Rule
428(b)(1) of the Rules under the Securities Act of 1933, as amended (the
"Securities Act"), the information required by Part I of Form S-8 is included in
a Booklet dated March 13, 2000 distributed to the participants in the ESG Re
Limited 2000 Restricted Stock Plan (the "Plan"). That Booklet, together with the
documents incorporated by reference pursuant to Item 3 of Part II of this
Registration Statement, constitutes a Section 10(a) Prospectus. The Company
shall provide to participants in the Plan a written statement advising them of
the availability without charge, upon written or oral request, of documents
incorporated by reference herein, as is required by Item 2 of Part I of Form
S-8.
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<PAGE>
PART II
Item 3. Incorporation of Documents by Reference
The following documents are incorporated by reference in this Registration
Statement:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1998.
(b) The Company's Quarterly Reports on From 10-Q for the calendar quarters
ended March 31, 1999, June 30, 1999 and September 30, 1999.
(c) The Company's Current Reports on Form 8-K filed December 16, 1999,
December 28, 1999 and January 4, 2000;
(d) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since December 31, 1998.
(e) The description of the Company's Common Stock contained in the
Company's registration statement under Section 12 of the Exchange Act relating
to the Company's Common Stock, including any amendment or report filed for the
purpose of updating that description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of 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, will be deemed incorporated by
reference in this Registration Statement and to be part of it from the date of
filing of those documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 98 of the Companies Act 1981 of Bermuda (the "Companies Act")
provides generally that a Bermudian company may indemnify its directors,
officers and auditors against any liability which arises by virtue of any rule
of Bermudian law with respect to any negligence, default, breach of duty or
breach of trust except in cases where such liability arises from fraud or
dishonesty of which such director, officer or auditor may be guilty in relation
to the Company. Section 98 of the Companies Act further provides that a
Bermudian company may indemnify its directors, officer and auditors against any
liability incurred by them in defending any proceedings, whether civil or
criminal, in which judgment is awarded in their favor or they are acquitted or
in which they are acquitted or granted relief by the Supreme Court of Bermuda in
certain proceedings arising under Section 281 of the Companies Act.
The Company has adopted provisions in its Memorandum of Association and
Bye-Laws that provide that the Company shall indemnify its officers and
directors to the maximum extent permitted under the Companies Act. The Company
also has issued a deed of indemnity for the benefit of directors and officers to
provide them with the maximum indemnification allowed under its Memorandum of
Association, Bye-Laws and the Companies Act.
Item 7. Exemption from Registration Claimed.
Not Applicable.
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<PAGE>
Item 8. Exhibits.
The following documents are filed with or incorporated by reference in this
Registration Statement:
Exhibit 5. Opinion of Appleby, Spurling & Kempe as to the legality of
Common Shares being registered.
Exhibit 24. Consents of Experts and Counsel.
Exhibit 25.1 Power of Attorney (included on signature page of this
registration statement).
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<PAGE>
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 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.
(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 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
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 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15, 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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, on this 13th day of March, 2000.
ESG RE LIMITED
By /s/Joan H. Dillard
---------------------
Joan H. Dillard
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John C Head III and Joan H. Dillard, and each of
them, as his or her true and lawful attorney-in-fact and agent, with sole power
of substitution, to sign for him or her and in his or her name, in any and all
capacities, all amendments (including post-effective amendments) to the
Registration Statement to which this power of attorney is attached, and to file
all such amendments and all exhibits to them and other documents to be filed in
connection with them, with the Securities and Exchange Commission.
-----------------
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ John C Head III Chief Executive Officer and Director March 13, 2000
- -------------------------------- (Principal Executive Officer)
John C Head III
/s/ Joan H. Dillard Chief Financial Officer March 13, 2000
- -------------------------------- (Principal Financial and Accounting
Joan H. Dillard Officer)
/s/ Gerald Moller Director March 13, 2000
- --------------------------------
Gerald Moller
s/ Steven H. Debrovner Director March 13, 2000
- -------------------------------
Steven H. Debrovner
/s/ Edward A. Tilly Director March 13, 2000
- -------------------------------
Edward A. Tilly
Director
/s/ David L. Newkirk March 13, 2000
- -------------------------------
David L. Newkirk
Authorized Representative in the United March 13, 2000
/s/ John C Head III States
-------------------------------
John C Head III
</TABLE>
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<PAGE>
EXHIBIT INDEX
Page in Sequential
Exhibit Numbering System
- ------- ----------------
Exhibit 5.1 Opinion of Appleby, Spurling & Kempe as to the
Legality of Common Shares being registered............... 8
Exhibit 24.1 Consent of Appleby, Spurling & Kempe (attorneys)
included in Exhibit 5.1
Exhibit 24.2 Consent of Deloitte & Touche LLP (accountants).......... 12
Exhibit 25.1 Power of Attorney - (included on signature page
of this Registration Statement)
7
Exhibit 5.1
[APPLEBY, SPURLING & KEMPE LETTERHEAD]
10 March 2000
ESG Re Limited
Skandia International House
Church Street
Hamilton HM 11
Bermuda
Dear Sirs
ESG Re Limited ("Company")
We have acted as Bermuda counsel to the Company with respect to the Registration
Statement, as filed with the Securities and Exchange Commission on 13 March
2000, on Form S-8, and all amendments thereto (collectively, the "Registration
Statement") under the Securities Act of 1933 of the United States of America, as
amended ("Act"), and the Rules and Regulations promulgated thereunder ("Rules").
For the purposes of this opinion we have examined and relied upon the documents
listed (which in some cases, are also defined in the Schedule to this opinion)
("Documents"). Unless otherwise defined herein, capitalised terms have the
meanings assigned to them in the Registration Statement.
Assumptions
In stating our opinion we have assumed:
(a) the authenticity, accuracy and completeness of all Documents submitted to
us as originals and the conformity to authentic original Documents of all
Documents submitted to us as certified, conformed, notarised or photostatic
copies;
(b) the genuineness of all signatures on the Documents;
(c) that any factual statements made in the Registration Statement are true,
accurate and complete;
(d) that the search made on 9 March 2000 of the Register of Companies at the
office of the Registrar of Companies referred to in paragraph 3 of the
Schedule to this opinion, was complete and accurate at the time of such
search and disclosed all information which is material for the purposes of
this opinion and such information has not since such date been materially
altered;
(e) that the search made on 9 March 2000 in the Supreme Court Causes Book at
the Registry of the Supreme Court referred to in paragraph 4 of the
Schedule to this opinion was complete and
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<PAGE>
accurate at the time of such search and disclosed all information which is
material for the purposes of this opinion and such information has not
since such date been materially altered;
(f) that the Resolutions are in full force and effect and have not been
rescinded, either in whole or in part, accurately record the resolutions
passed by the Board of Directors of the Company in a meeting which was duly
convened and at which a duly constituted quorum was present and voting
throughout; and
(g) that each Director of the Company, when the Board of Directors of the
Company adopted the Resolutions, discharged his fiduciary duty owed to the
Company and acted honestly and in good faith with a view to the best
interests of the Company.
Opinion
Based upon and subject to the following, and subject to the reservations set out
below and any matters not disclosed to us, we are of the opinion that the Common
Shares, when issued, delivered and paid for as contemplated in the Registration
Statement will have been duly authorized, validly issued, fully paid and
non-assessable.
Any reference in this opinion to shares being "non-assessable" shall mean, in
relation to fully-paid shares of a company and subject to any contrary provision
in any agreement in writing between such company and the holder of shares, that:
no shareholder shall be obliged to contribute further amounts to the capital of
the company, either in order to complete payment for their shares, to satisfy
claims of creditors of the company, or otherwise; and no shareholder shall be
bound by an alteration of the Memorandum of Association or Bye-laws of the
company after the date on which he became a shareholder, if and so far as the
alteration requires him take, or subscribe for additional shares, or in any way
increases his liability to contribute to the share capital of, or otherwise to
pay money to, the company.
Reservations
We have the following reservations:
(a) We express no opinion as to any law other than Bermuda law and none of the
opinions expressed herein relates to compliance with or matters governed by
the laws of any jurisdiction except Bermuda. This opinion is limited to
Bermuda law as applied by the Courts of Bermuda at the date hereof.
(b) Where an obligation is to be performed in a jurisdiction other than
Bermuda, the courts of Bermuda may refuse to enforce it to the extent that
such performance would be illegal under the laws of, or contrary to public
policy of, such other jurisdiction.
(c) Searches of the Register of Companies at the office of the Registrar of
Companies and of the Supreme Court Causes Book at the Registry of the
Supreme Court are not conclusive and it should be noted that the Register
of Companies and the Supreme Court Causes Book do not reveal:
(i) whether an application to the Supreme Court for a winding up petition
or for the appointment of a receiver or manager has been prepared but
not yet been presented or has been presented but does not appear in
the Causes Book at the date and time the Search is concluded;
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<PAGE>
(ii) whether any arbitration or administrative proceedings are pending or
whether any proceedings are threatened, or whether any arbitrator has
been appointed;
(iii) details of matters which have been lodged for filing or registration
which as a matter of general practice of the Registrar of Companies
would have or should have been disclosed on the public file but have
not actually been registered or to the extent that they have been
registered have not been disclosed or appear in the public records at
the date and time the search is concluded;
(iv) details of matters which should have been lodged for registration but
have not been lodged for registration at the date the search in
concluded; or
(v) whether a receiver or manager has been appointed privately pursuant to
the provisions of a debenture or other security, unless notice of the
fact has been entered in the register of charges in accordance with
the provisions of the Act.
Furthermore, in the absence of a statutorily defined system for the
registration of charges created by companies incorporated outside Bermuda
("overseas companies") over their assets located in Bermuda, it is not possible
to determine definitively from searches of the register of charges maintained by
the Registrar of Companies in respect of such overseas companies what charges
have been registered over any of their assets located in Bermuda or whether any
one charge has priority over any other charge over such assets.
(d) In order to issue this opinion we have carried out the search referred to
in paragraph 3 of the Schedule to this opinion on 9 March 2000 and have not
enquired as to whether there has been any change since that time and date.
(e) In order to issue this opinion we have carried out the search referred to
in paragraph 4 of the Schedule to this opinion on 9 March 2000 and have not
enquired as to whether there has been any change since that time and date.
Disclosure
This opinion is addressed to you solely for your benefit and is neither to be
transmitted to any other person, nor relied upon by any other person or for any
other purpose nor quoted or referred to in any public document nor filed with
any governmental agency or person, without our prior written consent, except as
may be required by law or regulatory authority. Further, this opinion speaks as
of its date and is strictly limited to the matters stated herein and we assume
no obligation to review or update this opinion if applicable law or the existing
facts or circumstances should change.
We hereby specifically consent to the use of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, we do not thereby admit that we
come within the category of persons whose consent is required by the Act or the
Rules.
This opinion is governed by and is to be construed in accordance with Bermuda
law. It is given on the basis that it will not give rise to any legal
proceedings with respect thereto in any jurisdiction other than Bermuda.
Yours faithfully,
APPLEBY, SPURLING & KEMPE
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<PAGE>
SCHEDULE
1. A draft copy of Registration Statement No. 333-[ ] (undated) sent to us on
8 March 2000.
2. Certified copy of the resolutions of the Board of Directors of the Company
dated 25 February 2000 ("Resolutions").
3. The entries and filings shown in respect of the Company on the file of the
Company maintained in the Register of Companies at the office of the
Registrar of Companies in Hamilton, Bermuda, as revealed by a search on 9
March 2000.
4. The entries and filings shown in the Supreme Court Causes Book maintained
at the Registry of the Supreme Court in Hamilton, Bermuda, as revealed by a
search on 9 March 2000 in respect of the Company.
5. Certified copies of the Certificate of Incorporation, Memorandum of
Association and Bye-laws for the Company (referred to as the
"Constitutional Documents").
6. A certified copy of the "Foreign Exchange Letter", dated 21 August 1997,
issued by the Bermuda Monetary Authority, Hamilton, Bermuda in relation to
the Company.
7. A certified copy of the "Tax Assurance", dated 18 September 1997, issued by
the Registrar of Companies for the Minister of Finance in relation to the
Company.
8. A certified copy of the Register of Directors and Officers in respect of
the Company.
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Exhibit 24.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement
of ESG Re Limited on Form S-8 of our report dated March 8, 1999, appearing in
the Annual Report on Form 10-K of ESG Re Limited for the year ended December 31,
1998.
Deloitte & Touche
Chartered Accountants
Hamilton, Bermuda
March 10, 2000
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