<PAGE> 1
As filed with the Securities and Exchange Commission on June 14, 1999
Registration Number 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CHICAGO TITLE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 36-4217886
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
171 North Clark Street 60601-3294
Chicago, Illinois (Zip Code)
(Address of Principal Executive Offices)
CHICAGO TITLE CORPORATION AND SUBSIDIARIES
DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
Paul T. Sands, Jr., Esq.
Executive Vice President, General Counsel
and Secretary
Chicago Title Corporation
171 North Clark Street
Chicago, Illinois 60601-3294
(312) 223-2000
(Name, address and telephone number of agent for service)
Copies to:
Linda E. Ransom, Esq.
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019-6092
(212) 259-8000
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================
PROPOSED
PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER UNIT (1) PRICE (1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred
Compensation
Obligations (2) $40,000,000 100% $40,000,000 $11,120
Common Stock,
par value $1.00
per share 400,000 $36.3125 (3) $14,525,000 (3) $ 4,037.95
================================================================================================
</TABLE>
(1) Estimated for the sole purpose of computing the registration fee.
(2) The Deferred Compensation Obligations are unsecured obligations of
Chicago Title Corporation to pay deferred compensation in the future in
accordance with the terms of the Chicago Title Corporation and
Subsidiaries Deferred Compensation Plan.
(3) Pursuant to Rules 457(c) and 457(h) under the Securities Act, 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 June 7, 1999.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission by Chicago Title Corporation ("Chicago Title") (File No. 1-13995) are
incorporated herein by reference and made a part hereof:
(a) Chicago Title's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
(b) Chicago Title's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999; and
(c) the description of the Common Stock of Chicago Title contained
in its Registration Statement on Form 10, as amended, filed
pursuant to Section 12 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"); such description is qualified
in its entirety by reference to the (i) Certificate of
Incorporation of Chicago Title, filed as Exhibit 3.1 to Chicago
Title's Registration Statement on Form 10, and (ii) By-Laws of
Chicago Title, filed as Exhibit 3.2 to Chicago Title's
Registration Statement on Form S-8 (Registration No. 333-74133),
and any amendment or report filed for the purpose of updating
that description.
All documents filed by Chicago Title 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 financial statement
schedules of Chicago Title and its subsidiaries included in or incorporated by
reference in Chicago Title's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998 have been incorporated herein by reference in reliance
upon the reports, also incorporated herein by reference, of KPMG LLP,
independent auditors, given on their authority as experts in auditing and
accounting.
ITEM 4. DESCRIPTION OF SECURITIES.
The Deferred Compensation Obligations registered hereunder
(the "Obligations") are unsecured obligations of Chicago Title to pay deferred
compensation in the future in accordance with the terms of the Chicago Title
Corporation and Subsidiaries Deferred Compensation Plan (the "Plan"), filed as
Exhibit 4.1 to this Registration Statement, and the Trust under Chicago Title
Corporation and Subsidiaries Deferred Compensation Plan effective as of February
24, 1999 by and between Chicago Title and LaSalle National Bank (the "Trust
II-1
<PAGE> 4
Agreement"), filed as Exhibit 4.2 to this Registration Statement. Such Exhibits
set forth a description of the Obligations and are incorporated herein by
reference in their entirety in response to this Item 4, pursuant to Rule
411(b)(3) under the Securities Act.
No participant under the Plan shall have any preferred claim
to, or any beneficial ownership interest in, any assets which are subject to the
Trust established by the Trust Agreement (the "Trust"). All such assets are
subject to the claims of the creditors of the participant's employer until they
are paid out of the Trust to the participant in accordance with the terms of the
Plan.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Chicago Title is a Delaware corporation. Reference is made to
Section 145 of the Delaware General Corporation Law as to indemnification by
Chicago Title of its officers and directors. The general effect of such law 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 or she 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 or her conduct was unlawful.
Article Ninth of Chicago Title's Certificate of Incorporation
(which Certificate of Incorporation was filed as Exhibit 3.1 to Chicago Title's
Registration Statement on Form 10), provides for the indemnification of Chicago
Title's officers and directors in accordance with the Delaware General
Corporation Law, and includes, as permitted by the Delaware General Corporation
Law, certain limitations on the potential personal liability of members of
Chicago Title's Board of Directors for monetary damages as a result of actions
taken in their capacity as Board members.
The directors and officers of Chicago Title are covered by
insurance policies indemnifying them against certain liabilities arising under
the Securities Act, which might be incurred by them in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-2
<PAGE> 5
ITEM 8. EXHIBITS.
The documents listed hereunder are filed as exhibits hereto.
Exhibit Number Description
4.1 Chicago Title Corporation and Subsidiaries Deferred
Compensation Plan.
4.2 Trust under Chicago Title Corporation and Subsidiaries
Deferred Compensation Plan effective as of February 24, 1999
by and between Chicago Title and LaSalle National Bank.
5 Opinion and Consent of Dewey Ballantine LLP.
23.1 Consent of Dewey Ballantine LLP (included in Exhibit 5
hereto).
23.2 Consent of KPMG LLP.
24 Power of Attorney.
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.
II-3
<PAGE> 6
(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.
II-4
<PAGE> 7
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 City of Chicago, State of Illinois, on the 14th day of
June, 1999.
CHICAGO TITLE CORPORATION
By: /s/ John Rau
-------------------------------------
John Rau
President and Chief Executive Officer
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.
Date: June 14, 1999 By: /s/ John Rau
-------------------------------------------
John Rau
President, Chief Executive Officer and Director
(principal executive officer)
Date: June 14, 1999 By: /s/ Peter G. Leemputte
-------------------------------------------
Peter G. Leemputte
Executive Vice President,
Chief Administrative Officer and
Chief Financial Officer
(principal financial officer)
Date: June 14, 1999 By: /s/ Bryan R. Willis
-------------------------------------------
Bryan R. Willis
Vice President and Corporate Controller
Date: June 14, 1999 By: *
-------------------------------------------
Norman R Bobins
Director
Date: June 14, 1999 By: *
-------------------------------------------
John J. Burns, Jr.
Director
<PAGE> 8
Date: June 14, 1999 By: *
---------------------------------------
Peter H. Dailey
Director
Date: June 14, 1999 By: *
---------------------------------------
Robert M. Hart
Director
Date: June 14, 1999 By: *
---------------------------------------
Philip G. Heasley
Director
Date: June 14, 1999 By: *
---------------------------------------
Allan P. Kirby, Jr.
Director
Date: June 14, 1999 By: *
---------------------------------------
M. Leanne Lachman
Director
Date: June 14, 1999 By: *
---------------------------------------
William K. Lavin
Director
Date: June 14, 1999 By: *
---------------------------------------
Lawrence F. Levy
Director
Date: June 14, 1999 By: *
---------------------------------------
Margaret P. MacKimm
Director
Date: June 14, 1999 By: *
---------------------------------------
Langdon D. Neal
Director
<PAGE> 9
Date: June 14, 1999 By: *
--------------------------------------
Alan N. Prince
Director
Date: June 14, 1999 By: *
--------------------------------------
Richard P. Toft
Director
*By: /s/ Paul T. Sands, Jr.
---------------------------------------
Paul T. Sands, Jr.
Attorney-in-Fact
<PAGE> 10
INDEX TO EXHIBITS
Exhibit Number Description
4.1 Chicago Title Corporation and Subsidiaries Deferred
Compensation Plan.
4.2 Trust under Chicago Title Corporation and Subsidiaries
Deferred Compensation Plan effective as of February 24, 1999
by and between Chicago Title and LaSalle National Bank.
5 Opinion and Consent of Dewey Ballantine LLP.
23.1 Consent of Dewey Ballantine LLP (included in Exhibit 5
hereto).
23.2 Consent of KPMG LLP.
24 Power of Attorney.
<PAGE> 1
Exhibit 4.1
CHICAGO TITLE CORPORATION
AND SUBSIDIARIES
DEFERRED COMPENSATION PLAN
December 1, 1998
1. Establishment and Purpose. Chicago Title Corporation (Company) hereby
establishes for itself and its subsidiary companies (each an Employer)
the Chicago Title Corporation and Subsidiaries Deferred Compensation
Plan (Plan) effective December 1, 1998. The purpose of the plan is to
permit a select group of management or highly compensated employees of
an Employer the opportunity to defer certain compensation received for
services as an employee.
2. Administration of Plan. The Plan shall be administered by the Compensation
Committee of the Board of Directors of the Company (Committee) in its sole
discretion. The Committee shall have full power and authority to
interpret, construe, administer, amend or terminate the Plan and to
delegate duties to other Employers or other persons; provided however,
neither the amendment to, nor the termination of, the Plan shall operate
to reduce the account value of a Participant in the Plan as of the date of
such amendment or termination. The Committee's interpretation and
construction of the Plan, and all actions taken pursuant to the Plan,
shall be final, conclusive and binding on all persons, for all purposes.
3. Eligibility. Each Employer may make recommendations to the Committee of
the employees described in paragraph 1 who shall be eligible to
participate in the Plan and the Committee shall approve all proposed
Participants in its sole discretion.
4. Deferral of Compensation. Each eligible Participant may elect to defer the
receipt of commissions, bonuses, incentive compensation and other
compensatory amounts (whether in the form of cash or Common Stock of the
Company, other than annual base salary) approved by the Committee to be
received from an Employer during the next following calendar year (or in
the case of a Participant initially eligible for the Plan, during the next
following month and for the balance of such calendar year) or, if provided
by the Committee, earned after the date of such election, by completing an
election form approved by the Committee, as the form may be amended from
time to time. A sample election form is attached as Exhibit A.
The election made by a Participant shall be irrevocable for the first
calendar year with respect to which the election is made. The election
made by a Participant shall remain in effect for each successive
calendar year unless the Participant (i) files with the Committee a
notice of discontinuance of Plan participation (which may be filed at
any time to be effective at the commencement of the next calendar year)
or (ii) files with
<PAGE> 2
the Committee a new election at least 30 days before the beginning of a
successive calendar year. Otherwise, the Participant's election shall be
irrevocable with respect to each such successive calendar year.
5. Deferred Accounts. The Company shall establish a separate bookkeeping
account in the name of each Participant and reflecting deferred
compensation otherwise payable by an Employer. Amounts deferred by a
Participant pursuant to the Plan shall be credited to the appropriate
account effective as soon as administratively practical after the time
such amounts would have been payable to the Participant by an Employer
in the absence of an election to defer.
Each deferred account in the name of a Participant shall thereafter be
adjusted for investment return as provided in Section 6 below.
6. Investment Return. Each Participant's account shall be deemed invested
in accordance with either (a) or (b) below as designated by the
Participant in the election form:
(a) Amounts deferred may be credited with interest at a rate equal to
the three-month London Interbank Offered Rate (LIBOR) published
in The Wall Street Journal (WSJ) plus 1.0% per annum. For any
calendar quarter three-month LIBOR will be determined at the
beginning of the quarter effective as of January 1, April 1, July
1 or October 1, as applicable. If January 1, April 1, July 1 or
October 1 of any year is not a day for which LIBOR is published
in the WSJ, then three-month LIBOR will be determined as of the
next succeeding day which is a day for which LIBOR is published
in the WSJ. LIBOR will be applied on the basis of actual days
elapsed over a year consisting of 360 days. Interest will be
credited to each Participant's account quarterly at the end of
the day immediately preceding the day on which a new three-month
LIBOR becomes effective. If three-month LIBOR is no longer
published in the WSJ, then the Committee shall solely determine
an alternative source for such rate information.
(b) Amounts deferred may be deemed invested in shares of common stock
of Chicago Title Corporation, par value $1.00 per share (the
"Common Stock") with the number of whole and fractional shares
credited to the Participant's account to be based on the closing
price of the Common Stock on the trading date immediately
preceding the date of any deemed investment or reinvestment in
the Common Stock. Any dividend or distribution payable with
respect to the Common Stock shall be reflected for
the Participant's account as a deemed reinvestment in the Common
Stock, unless otherwise provided by the Committee.
<PAGE> 3
(c) Subject to Committee approval and such rules as may be
established by the Committee, a Participant at any time after
attaining age 55 may elect, once and only once, by giving thirty
days' advance written notice before the beginning of a calendar
year, to transfer amounts credited under subparagraph (b) above
to subparagraph (a), as of the first trading day of such year.
(d) The Company may, in its sole discretion, establish an irrevocable
grantor trust for the purpose of funding its obligations to pay
deferred compensation benefits under the Plan. The Company shall
not be required to invest the assets of any such trust in the
same manner as the Participant's investment election in
accordance with paragraphs (a) or (b) above, but the Company may
do so in its discretion. The establishment and funding by the
Company of any such trust shall not affect the unfunded status of
the Plan, as provided in Section 10 below.
7. Event of Distribution. The election form executed by a Participant in
accordance with Section 4 above shall contain not only a designation of
compensation to be deferred but also the events elected by the
Participant the occurrence of which will result in distribution of such
accounts. Such election, once made, shall be irrevocable. A
Participant may elect one of the following distribution events:
(a) The Participant's termination of employment or retirement from
the Company's controlled group of companies (within the meaning
of Section 414(b) of the Internal Revenue Code of 1986, as
amended) or
(b) Such other event as shall be specified by the Participant;
provided that no such election shall defer the commencement of
distributions (i) beyond the Participant's attainment of age 65
or, if later, termination of employment or retirement from the
Company's controlled group of companies or (ii) for a period
shorter than two full calendar years following the year of
deferral (other than by termination of employment or retirement).
Notwithstanding the foregoing, in the event of a change in control of
the Company (as defined in the Company's stock option plan), all
deferred amounts (and earnings credited thereon) will be paid
immediately to or on behalf of Participants and no further deferrals
will be permitted under the Plan.
8. Payment of Distribution. A Participant may elect to receive a
distribution of account value in accordance with the following. Such
election shall be made at the same time and in the same manner as
provided in Section 4 above:
(a) In a cash lump sum as soon as practicable following the
occurrence of the distribution event for accounts invested under
paragraph 6(a), or in an in-kind
<PAGE> 4
payment of Common Stock for accounts invested under paragraph 6(b),
as soon as practicable following a distribution event; or
(b) In substantially equal annual installment payments (in cash or in
kind, as applicable as provided in paragraph (a) above) over a
period not to exceed 10 years and commencing on the January first
following such distribution event. In the event an installment
method is elected, undistributed sums will continue to be
invested as provided in Section 6 of the Plan.
9. Hardship. Notwithstanding any provision herein to the contrary, in
cases of unforeseeable emergency, a Participant may request the payment
of all or any part of the Participant's account value by reason of
financial hardship, to the extent reasonably necessary to satisfy the
emergency need. The Committee will determine whether, in its sole
judgment, such financial hardship has occurred, and if it has, may
grant such request subject to such conditions as it, in its sole
discretion, may determine. Any amount so paid may not be returned to
an account under the Plan.
For purposes of this paragraph "unforeseeable emergency" shall be
defined as an unanticipated emergency that is caused by an event beyond
the control of the Participant and that would result in severe
financial hardship to the individual if early withdrawal were not
permitted. The determination of whether a severe financial hardship
exists shall be made in a manner consistent with section 1.457-2(h)(4)
and (5) of the Income Tax Regulations or other regulations, rulings or
guidance issued by the Internal Revenue Service.
10. Unfunded Status of Accounts. The account of each Participant shall
constitute only a bookkeeping account of the Company for the purpose of
computing entitlements under the Plan. A Participant's interest and
rights in and to such accounts and the value represented thereby shall
only be that of an unsecured general creditor of the Company. A
Participant shall have no interest in any assets of the Company or an
Employer. The Company may in its discretion establish an irrevocable
grantor trust to hold common stock of Chicago Title Corporation but
such trust shall constitute an unfunded arrangement and the assets of
such trust shall be subject to the claims of creditors of the Company
in the event of insolvency.
11. Beneficiary. Each Participant shall designate from time to time in
writing on an election form filed with the Committee, one or more
beneficiaries of the Participant's interest under the Plan in the event
of death. If a Participant does not designate a beneficiary or such
beneficiary does not survive the Participant, then Plan proceeds
will be paid to the Participant's estate or legal representative. Payments
to beneficiaries will be made in the same form of distribution as elected
by the Participant under "Form of Distribution" on the Election Form.
<PAGE> 5
12. Recordkeeping. The Company shall furnish to each Participant a
statement of account not less than annually.
13. Amendment and Termination. Subject to the provisions of Section 2
above, the Committee reserves the right to amend or terminate the Plan
at any time for any reason.
14. Governing Law. This Plan shall be governed by and construed in
accordance with the laws of the State of Delaware.
15. Arbitration. In the event of any dispute between the Participant and
the Company which is not governed by the language of the Plan and which
is irreconcilable after the good faith efforts of the parties to
resolve such issue, the matter shall be submitted to a mandatory
arbitration under the auspices of the American Arbitration Association
with the expense thereof to be borne equally by the affected parties.
16. Tax Withholding. All compensation deferred and distributable pursuant
to the Plan shall be subject to applicable tax withholding
requirements, and the Company is authorized to reduce the amount
deferred, or the value of any account or distribution under the Plan to
the extent necessary to satisfy such tax withholding obligations.
CHICAGO TITLE CORPORATION
By: /s/ John Rau
---------------------------------------
<PAGE> 1
Exhibit 4.2
TRUST UNDER CHICAGO TITLE CORPORATION
AND SUBSIDIARIES DEFERRED COMPENSATION PLAN
THIS TRUST AGREEMENT, made effective as of February 24, 1999, by and
between Chicago Title Corporation (the "Company") and LaSalle National Bank, a
national banking association (the "Trustee"),
WITNESSETH:
WHEREAS, the Company has adopted the Chicago Title Corporation and
Subsidiaries Deferred Compensation Plan (the "Plan"); and
WHEREAS, the Company has incurred or expects to incur liability
under the terms of such Plan with respect to the individuals participating in
such Plan; and
WHEREAS, the Company wishes to establish a trust (hereinafter called
"the Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of the Company's or other Employer's creditors in the
event of the Company's or other Employer's Insolvency, as herein defined, until
paid to Plan participants and their beneficiaries in such manner and at such
times as specified in the Plan; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974;
and
WHEREAS, it is the intention of the Company to make contributions to
the Trust to provide itself with a source of funds to assist it in the meeting
of its liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
SECTION 1
ESTABLISHMENT OF TRUST
1.1 The Company hereby deposits with the Trustee in trust such cash,
common stock of the Company par value $1.00 per share ("Common Stock") and such
other property acceptable to the Trustee, which shall be held, administered and
disposed of by the Trustee as provided in this Trust Agreement.
<PAGE> 2
1.2 The Trust hereby established shall be irrevocable.
1.3 The Trust is intended to be a grantor trust, of which the
Company is the grantor, within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended, and
shall be construed accordingly.
1.4 The principal of the Trust, and any dividends or earnings
thereon, shall be held separate and apart from other funds of the Company and
shall be used exclusively for the uses and purposes of Plan participants and
general creditors as herein set forth. Plan participants and their beneficiaries
shall have no preferred claim on, or any beneficial ownership interest in, any
assets of the Trust. Any rights created under the Plan and this Trust Agreement
shall be mere unsecured contractual rights of Plan participants and their
beneficiaries against the Company. Any assets held by the Trust will be subject
to the claims of the Company's general creditors under federal and state law in
the event of Insolvency, as defined in Section 3.1 herein.
1.5 The Company, in its sole discretion, may at any time, or from
time to time, deposit additional cash, Common Stock other property in trust with
the Trustee to augment the principal to be held, administered and disposed of by
the Trustee as provided in this Trust Agreement. Dividends paid on Common Stock
and cash held by the Trustee shall first be applied to pay the expenses of
administration of the Trust and Plan and then shall be applied to purchase
additional Common Stock of the Company if so directed by the Company. Neither
the Trustee nor any Plan participant or beneficiary shall have any right to
compel such additional deposits.
SECTION 2
PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES
2.1 The Company shall deliver to the Trustee a schedule (the
"Payment Schedule") that indicates the amounts payable in respect of each Plan
participant (and his or her beneficiaries), that provides a formula or other
instructions acceptable to the Trustee for determining the amounts so payable,
the form in which such amount is to be paid (as provided for or available under
the Plan), and the time of commencement for payment of such amounts. Except as
otherwise provided herein, the Trustee shall make payments to the Plan
participants and their beneficiaries in accordance with such Payment Schedule.
The Company shall direct the Trustee as to the amounts required to be withheld
from such payments for any federal, state or local taxes that may be required to
be withheld with respect to the payment of benefits pursuant to the terms of the
Plan. The Trustee shall pay such amounts withheld to the Company for reporting
and forwarding to the appropriate taxing authorities, unless such amounts have
been
-2-
<PAGE> 3
reported, withheld and paid directly by the Company. The Company may direct the
Trustee to sell Common Stock to satisfy such tax liability but, at the Company's
direction, such Common Stock shall be sold to the Company.
2.2 The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plan shall be determined by the Company or
by such Committee the Company shall designate under the Plan, and any claim for
such benefits shall be considered and reviewed under the procedures set out in
the Plan.
2.3 The Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms of the
Plan. The Company shall notify the Trustee of its decision to make payment of
benefits directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, if the principal of the Trust, and any earnings
thereon, are not sufficient to make payments of benefits in accordance with the
terms of the Plan, the Company shall make the balance of each such payment as it
falls due. The Trustee shall notify the Company where principal and earnings are
not sufficient.
SECTION 3
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS
TO TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT
3.1 The Trustee shall cease payment of benefits to Plan participants
and their beneficiaries if the Company is Insolvent. The Company shall be
considered "Insolvent" for purposes of this Trust Agreement if (i) the Company
is unable to pay its debts as they become due, or (ii) the Company is subject to
a pending proceeding as a debtor under the United States Bankruptcy Code.
3.2 At all times during the continuance of this Trust, as provided
in Section 1.4 hereof, the principal and income of the Trust shall be subject to
claims of general creditors of the Company under federal and state law as set
forth below:
(a) The Board of Directors and the Chief Executive Officer of the
Company shall have the duty to inform the Trustee in writing
of the Company's Insolvency. If a person claiming to be a
creditor of the Company alleges in writing to the Trustee that
the Company has become Insolvent, the Trustee shall determine
whether the Company is Insolvent and, pending such
determination, the Trustee shall discontinue
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<PAGE> 4
payment of benefits to Plan participants or their
beneficiaries.
(b) Unless the Trustee has actual knowledge of the Company's
Insolvency, or has received notice from the Company or a
person claiming to be a creditor alleging that the Company is
Insolvent, the Trustee shall have no duty to inquire whether
the Company is Insolvent. The Trustee may in all events rely
on such evidence concerning the Company's solvency as may be
furnished to the Trustee and that provides the Trustee with a
reasonable basis for making a determination concerning the
Company's solvency.
(c) If at any time the Trustee has determined that the Company is
Insolvent, the Trustee shall discontinue payments to Plan
participants or their beneficiaries and shall hold the assets
of the Trust for the benefit of the Company's general
creditors. Nothing in the Trust Agreement shall in any way
diminish any rights of Plan participants or their
beneficiaries to pursue their rights as general creditors of
the Company with respect to benefits due under the Plan or
otherwise.
(d) The Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section
2 of this Trust Agreement only after the Trustee has
determined that the Company is not Insolvent (or is no longer
Insolvent).
(e) The provisions of this Section 3 shall apply separately to
each other Employer of Plan participants under the Plan in the
event of the Insolvency of such Employer employing such
participants.
(f) In carrying out its responsibilities under this Section 3.2,
the Trustee shall retain independent public accountants
(including the Company's independent public accountants) to
make any determinations of Insolvency and may conclusively
rely on the opinion of such independent public accountants
with respect to the determination of the Company's or other
Employer's Insolvency.
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<PAGE> 5
3.3 Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to Section 3.2
hereof and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by the Company in lieu of the payments
provided for hereunder during any such period of discontinuance.
SECTION 4
PAYMENTS TO THE COMPANY
Except as provided in Section 3 and Section 9 hereof, after the
Trust has become irrevocable, the Company shall have no right or power to direct
the Trustee to return to the Company or to divert to others any of the Trust
assets before all payment of benefits have been made to Plan participants and
their beneficiaries pursuant to the terms of the Plan.
SECTION 5
INVESTMENT AUTHORITY
The assets of the Trust may be invested in Common Stock (including
stock or rights to acquire stock) or obligations issued by the Company, as
directed by the Company. All rights associated with assets of the Trust shall be
exercised by the Trustee or the person designated by the Trustee, and shall in
no event be exercisable by or rest with Plan participants. The Company shall
have the right at any time, and from time to time in its sole discretion, to
substitute assets of equal fair market value for any asset held by the Trust.
This right is exercisable by the Company in a nonfiduciary capacity without the
approval or consent of any person in a fiduciary capacity.
SECTION 6
DISPOSITION OF INCOME
During the term of this Trust, all income received by the Trust, net
of expenses and taxes, shall be accumulated and reinvested.
-5-
<PAGE> 6
SECTION 7
ACCOUNTING BY THE TRUSTEE
The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions required to be
made, including such specific records as shall be agreed upon in writing between
the Company and the Trustee. Within 90 days following the close of each fiscal
year and within 120 days after the removal or resignation of the Trustee, the
Trustee shall deliver to the Company a written account of its administration of
the Trust during such year or during the period from the close of the last
preceding year to the date of such removal or resignation, setting forth all
investments, receipts, disbursements and other transactions effected by it,
including a description of all securities and investments purchased and sold
with the cost or net proceeds of such purchases or sales (accrued interest paid
or receivable being shown separately), and showing all cash, securities and
other property held in the Trust at the end of such year or as of the date of
such removal or resignation, as the case may be.
SECTION 8
RESPONSIBILITY OF THE TRUSTEE
8.1 The Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent person acting
in like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that the
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by the Plan Committee or Company which is
contemplated by, and in conformity with, the terms of the Plan or this Trust and
is given in writing by the Plan Committee or Company. In the event of a dispute
between the Company and a party, the Trustee may apply to a court of competent
jurisdiction to resolve the dispute.
8.2 If the Trustee undertakes or defends any litigation arising in
connection with this Trust, the Company agrees to indemnify the Trustee against
the Trustee's costs, expenses and liabilities (including, without limitation,
attorneys' fees and expenses) relating thereto and to be primarily liable for
such payments. If the Company does not pay such costs, expenses and liabilities
in a reasonably timely manner, the Trustee may obtain payment from the Trust.
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<PAGE> 7
8.3 The Trustee may consult with legal counsel (who may also be
counsel for the Company) with respect to any of its duties or obligations
hereunder.
8.4 The Trustee may hire agents, accountants, investment advisors,
or other professionals to assist it in performing any of its duties or
obligations hereunder.
8.5 The Trustee shall have, without exclusion, all powers conferred
on Trustees by applicable law, unless expressly provided otherwise herein.
8.6 Notwithstanding any powers granted to the Trustee pursuant to
this Trust Agreement or by applicable law, the Trustee shall not have any power
that could give this Trust the objective of carrying on a business and dividing
the gains therefrom, within the meaning of section 301.7701-2 of the Procedure
and Administrative Regulations promulgated pursuant to the Internal Revenue
Code.
8.7 Except for the Trustee's gross negligence or willful misconduct,
the Trustee shall not be liable hereunder for any loss or diminution of the
Trust Fund resulting from any action taken or omitted. The Company shall
indemnify the Trustee and defend it and hold it harmless from and against any
and all costs, expenses and liabilities arising out of or in connection with the
performance of the Trustee's duties arising hereunder (but excluding costs
arising from the Trustee's gross negligence or willful misconduct in the
performance of its responsibilities hereunder). If the Company does not pay such
costs, expenses and liabilities in a reasonably timely manner, Trustee may
obtain payment from the Trust. This Section shall survive the termination of
this Agreement.
8.8 Notwithstanding any other provision of this Trust to the
contrary, the Trustee does not guarantee payment of any amount which may become
due and payable to a Participant or his or her beneficiary. The Trustee shall
have no responsibility for the disclosure to Participants regarding the terms of
the Plan or of this Trust, or for the validity thereof. The Trustee shall not be
responsible for administrative functions under the Plan and shall have only such
responsibilities under this Trust Agreement as are specifically set forth
herein. The Trustee will be under no obligation or liability to anyone with
respect to any failure on the part of the Company, Committee, the Plan or the
Company's independent public accounting firm or any Participant to perform any
of their respective obligations under the Plan or this Trust. Nothing in this
Trust shall be construed as requiring the Trustee to make any payment in excess
of the amounts held in the Trust Fund at the time of such payment or otherwise
to risk or expend its own funds.
-7-
<PAGE> 8
SECTION 9
COMPENSATION AND EXPENSES OF THE TRUSTEE
The Trustee shall be paid such reasonable compensation as shall from
time to time be agreed upon by the Company and the Trustee. Such compensation
and all expenses of administration of the Trust and Plan, including attorneys'
fees and independent public accounting fees under Section 3.2, shall be
withdrawn by the Trustee out of the Trust Fund unless paid by the Company.
SECTION 10
RESIGNATION AND REMOVAL OF THE TRUSTEE
10.1 The Trustee may resign at any time by written notice to the
Company, which shall be effective 30 days after receipt of such notice unless
the Company and the Trustee agree otherwise. The Trustee may be removed by the
Company on 30 days notice or upon shorter notice accepted by the Trustee.
10.2 Upon resignation or removal of the Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed within 30 days after receipt of notice
of resignation, removal or transfer, unless the Company extends the time limit.
If the Trustee resigns or is removed, a successor shall be appointed, in
accordance with Section 11 hereof, by the effective date of resignation or
removal under this Section. If no such appointment has been made, the Trustee
may apply to a court of competent jurisdiction for appointment of a successor or
for instructions. All expenses of the Trustee in connection with the preceding
shall be allowed as administrative expenses of the Trust.
SECTION 11
APPOINTMENT OF SUCCESSOR
If the Trustee resigns or is removed in accordance with Section 10
hereof, the Company may appoint any third party, such as a bank trust department
or other party that may be granted corporate trustee powers under state law, as
a successor to replace the Trustee upon resignation or removal. The appointment
shall be effective when accepted in writing by the new Trustee, who shall have
all of the rights and powers of the former Trustee, including ownership rights
in the Trust assets. The former Trustee shall execute any instrument necessary
or reasonably requested by the
-8-
<PAGE> 9
Company or the successor Trustee to evidence the transfer. The successor Trustee
need not examine the records and acts of any prior Trustee and may retain or
dispose of existing Trust assets, subject to Sections 7 and 8 hereof. The
successor Trustee shall not be responsible for and the Company shall indemnify
and defend the successor Trustee from any claim or liability resulting from any
action or inaction of any prior Trustee or from any other past event, or any
condition existing at the time it becomes successor Trustee.
SECTION 12
AMENDMENT OR TERMINATION
12.1 This Trust Agreement may be amended by a written instrument
executed by the Trustee and the Company. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plan or shall make the Trust
revocable after it has become irrevocable in accordance with Section 1.2 hereof.
12.2 The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plan; provided that, upon written approval of participants
or beneficiaries entitled to payment of benefits pursuant to the terms of the
Plan, the Company may terminate this Trust prior to the time all benefit
payments under the Plan have been made. All assets in the Trust at termination
shall be returned to the Company. This Trust Agreement may not be amended by the
Company for one year following a change in control, as defined in the Plan, and
all amounts due under the Plan will become immediately payable.
SECTION 13
MISCELLANEOUS
13.1 Any provision of this Trust Agreement prohibited by law shall
be ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
13.2 Benefits payable to Plan participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
13.3 This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
-9-
<PAGE> 10
IN WITNESS WHEREOF, this instrument has been executed this 21 day
of April, 1999.
COMPANY:
Attest:
/s/ Kenneth C. Ferraro By: /s/ Thomas J. Adams
- -------------------------------- --------------------------------
Ass't. Secretary
TRUSTEE:
Attest:
/s/ Illegible By: /s/ Illegible
- -------------------------------- --------------------------------
-10-
<PAGE> 1
Exhibit 5
DEWEY BALLANTINE LLP
1301 Avenue of the Americas
New York 10019-6092
TEL 212 259-8000 FAX 212 259-6333
June 14, 1999
Chicago Title Corporation
171 North Clark Street
Chicago, Illinois 60601
Re: Registration Statement on Form S-8 Filed with the Securities
and Exchange Commission on June 14, 1999
Gentlemen:
We are acting as counsel for Chicago Title Corporation, a
Delaware corporation ("Chicago Title"), in connection with the registration by
Chicago Title under the Securities Act of 1933, as amended (the "Act"), of
400,000 shares of common stock, par value $1.00 per share (the "Shares"), of
Chicago Title and $40,000,000 of Deferred Compensation Obligations (the
"Obligations") offered pursuant to the Chicago Title Corporation and
Subsidiaries Deferred Compensation Plan (the "Plan") under the Registration
Statement on Form S-8 filed with the Securities and Exchange Commission on June
14, 1999 (the "Registration Statement").
We are familiar with the proceedings of Chicago Title relating
to the authorization and issuance of the Shares and the Obligations. In
addition, we have made such further examinations of law and fact as we have
deemed appropriate in connection with the opinion hereinafter set forth. We
express no opinion as to the law of any jurisdiction other than the laws of the
State of New York and the corporate laws of the State of Delaware.
Based upon the foregoing, we are of the opinion that (a) the
Shares offered pursuant to the Plan have been duly authorized and, when issued
in accordance with the resolutions of the Board of Directors of Chicago Title
authorizing such issuance, will be validly issued, fully paid and nonassessable,
and (b) the Obligations offered pursuant to the Plan have been duly authorized
and, when issued in accordance with the resolutions of the Board of Directors of
Chicago Title authorizing such issuance, will be binding obligations of Chicago
Title.
<PAGE> 2
Chicago Title Corporation
June 14, 1999
Page 2
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. In giving such consent, we do not thereby admit
that we come within the category of persons whose consent is required under
Section 7 of the Act, or under the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ Dewey Ballantine LLP
<PAGE> 1
Exhibit 23.2
[KPMG LLP LOGO]
303 East Wacker Drive Telephone 312 665 1000
Chicago, IL 60601-5212 Fax 312 665 6000
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Chicago Title Corporation
We consent to the use of our reports incorporated herein by reference and to the
reference to our firm as experts in the registration statement.
/s/ KPMG LLP
Chicago, Illinois
June 11, 1999
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned do hereby
constitute and appoint JOHN RAU and PAUL T. SANDS, JR., and each of them, with
full powers of substitution, their true and lawful attorneys-in-fact and agents
to do any and all acts and things and to execute any and all instruments which
said attorneys-in-fact and agents may deem necessary or advisable to enable
Chicago Title Corporation, a Delaware corporation, to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission in respect thereof, in connection with the
registration under said Act of the number of shares of Common Stock, par value
$1.00 per share, of Chicago Title Corporation and the amount of deferred
compensation obligations of Chicago Title Corporation that may be offered from
time to time pursuant to the Chicago Title Corporation and Subsidiaries Deferred
Compensation Plan, including specifically, but without limitation thereof, power
and authority to sign the names of the undersigned as directors of Chicago Title
Corporation to the Registration Statement to be filed with the Securities and
Exchange Commission and any amendment, supplement or update thereto in respect
of such shares of Common Stock of Chicago Title Corporation and such amount of
deferred compensation obligations of Chicago Title Corporation and to any
documents filed as part of or in connection with said Registration Statement or
amendments, supplements or updates; and the undersigned do hereby ratify and
confirm all that said attorneys-in-fact and agents shall do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned have subscribed these
presents on the 26th day of January, 1999.
/s/ Norman R Bobins /s/ John J. Burns, Jr.
- ---------------------- --------------------------
Norman R Bobins John J. Burns, Jr.
/s/ Peter H. Dailey /s/ Robert M. Hart
- ---------------------- --------------------------
Peter H. Dailey Robert M. Hart
/s/ Philip G. Heasley /s/ Allan P. Kirby, Jr.
- ---------------------- --------------------------
Philip G. Heasley Allan P. Kirby, Jr.
/s/ M. Leanne Lachman /s/ William K. Lavin
- ---------------------- --------------------------
M. Leanne Lachman William K. Lavin
/s/ Lawrence F. Levy /s/ Margaret P. MacKimm
- ---------------------- --------------------------
Lawrence F. Levy Margaret P. MacKimm
/s/ Langdon D. Neal /s/ Alan N. Prince
- ---------------------- --------------------------
Langdon D. Neal Alan N. Prince
/s/ Richard P. Toft
-----------------------
Richard P. Toft
