As filed with the Securities and Exchange Commission on January 26, 1996.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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W. R. BERKLEY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 22-1867895
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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165 MASON STREET, P.O. BOX 2518
GREENWICH, CONNECTICUT 06836-2518
(203) 629-2880
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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ROBERT S. GORIN, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
W. R. BERKLEY CORPORATION
165 MASON STREET, P.O. BOX 2518
GREENWICH, CONNECTICUT 06836-2518
(203) 629-3000
(Name, address, including zip code, and telephone number of agent for service of
process)
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Copies to:
NEIL NOVIKOFF, ESQ.
WILLKIE FARR & GALLAGHER
ONE CITICORP CENTER
153 EAST 53RD STREET
NEW YORK, NEW YORK 10022-4677
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement as determined by
market conditions.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. X
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / _______
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / _______
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
<S> <C> <C> <C> <C>
Common Stock, par value $.20 per
share............................. 75,828 $50.00 $3,791,400 $1,308
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee and
based upon the average of the high and low sale prices reported on the
National Association of Securities Dealers Automated Quotation National
Market System on January 22, 1996.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
SUBJECT TO COMPLETION--DATED JANUARY 26, 1996
PROSPECTUS
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W. R. BERKLEY CORPORATION
COMMON STOCK
Up to 75,828 presently outstanding shares (the "Shares") of Common Stock,
par value $.20 per share (the "Common Stock") of W. R. Berkley Corporation, a
Delaware corporation (the "Corporation"), may be offered for sale from time to
time by a certain stockholder of the Corporation (the "Selling Stockholder").
See "Selling Stockholder." The Corporation will not receive any of the proceeds
from the sale of the Shares by the Selling Stockholder.
The Shares covered by this Prospectus may be sold by the Selling Stockholder
or by pledgees, donees, transferees or other successors in interest. Sales of
Shares by the Selling Stockholder may be effected from time to time in one or
more transactions, including block trades, in negotiated transactions or in a
combination of any such methods of sale. The selling price of the Shares may be
at the market price prevailing at the time of sale, at a price related to such
prevailing market price or at a negotiated price. The Selling Stockholder may be
deemed to be an "underwriter" within the meaning of the Securities Act of 1933,
as amended (the "Securities Act"). See "Plan of Distribution."
The Corporation's Common Stock is traded in the over-the-counter market and
is quoted on the National Association of Securities Dealers Automated Quotation
("NASDAQ") National Market System under the trading symbol "BKLY." On January
25, 1996, the last sale price of the Common Stock as quoted by NASDAQ was $50
1/4 per share.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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THE DATE OF THIS PROSPECTUS IS JANUARY , 1996.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Corporation with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
reference:
1. Annual Report on Form 10-K for the year ended December 31, 1994,
filed with the Commission pursuant to Section 13 of the Securities Exchange
Act of 1934 (the "Exchange Act");
2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995,
June 30, 1995 and September 30, 1995, filed with the Commission pursuant to
Section 13 of the Exchange Act;
3. Current Reports on Form 8-K, dated July 20, 1995, September 14, 1995,
September 14, 1995, November 8, 1995 and December 28, 1995, filed with the
Commission pursuant to Section 13 of the Exchange Act; and
4. The description of the Common Stock of the Corporation contained in
the Corporation's Registration Statement on Form 8-A dated July 25, 1974,
filed with respect to such securities pursuant to Section 12 of the Exchange
Act, and all amendments or reports filed for purposes of updating such
description.
All reports subsequently filed pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act prior to the termination of the offering of the Shares shall
be deemed to be incorporated by reference into this Prospectus. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein 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 Prospectus.
THE CORPORATION WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, ON THE REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL
DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS). WRITTEN REQUESTS SHOULD BE DIRECTED TO:
Robert S. Gorin, Esq.
Senior Vice President, General Counsel and Secretary
W. R. Berkley Corporation
165 Mason Street
P.O. Box 2518
Greenwich, Connecticut 06836-2518
Telephone requests may be directed to (203) 629-3000
No person is authorized to give any information or to make any
representations, other than those contained or incorporated by reference in this
Prospectus, in connection with the offering contemplated hereby, and, if given
or made, such information or representations must not be relied upon as having
been authorized by the Corporation or any underwriter, dealer or agent. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy any securities other than the securities to which it relates and does not
constitute an offer to sell or a solicitation of an offer to buy any securities
in any jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. Neither the delivery of this Prospectus nor
any sale made hereunder shall, under any circumstances, create any implication
that there has been no change in the affairs of the Corporation since the date
hereof or that the information contained or incorporated by reference herein is
correct as of any time subsequent to such date.
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<PAGE>
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the Exchange
Act and in accordance therewith files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities of
the Commission, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's New York Regional Office, 7 World Trade
Center, New York, New York 10048, and Chicago Regional Office, Suite 1400,
Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661, and copies of
such materials can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates.
This Prospectus constitutes part of a registration statement on Form S-3
(together with all amendments and exhibits, the "Registration Statement") filed
by the Corporation with the Commission under the Securities Act. This Prospectus
does not contain all of the information included in the Registration Statement,
certain parts of which are omitted in accordance with applicable regulations.
For further information pertaining to the Corporation and the Shares offered
hereby, reference is made to the Registration Statement and the Exhibits thereto
which may be inspected without charge at the office of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, and copies thereof may be obtained
from the Commission upon payment of the prescribed fees.
3
<PAGE>
THE CORPORATION
The Corporation is an insurance holding company which, through its
subsidiaries, operates in four segments of the insurance business: regional
property casualty insurance; reinsurance (conducted through Signet Star
Holdings, Inc.); specialty lines of insurance (including excess and surplus
lines and commercial transportation); and insurance services operations
(including the management of alternative insurance market mechanisms). The
Corporation's regional insurance operations are conducted primarily in the
Midwest, Southwest and Northeast sections of the United States. The reinsurance
operations, specialty insurance and insurance services are conducted nationwide.
The Corporation was founded on the concept that a group of autonomous
regional and specialty insurance entities could compete effectively in selected
markets within a very large industry in order to achieve a long term competitive
advantage. Decentralized control allows each subsidiary the autonomy necessary
to respond to local or specialty market conditions while capitalizing on the
effectiveness of centralized investment and reinsurance management, and
actuarial, financial and legal staff support.
The Corporation's executive offices are located at 165 Mason Street, P.O.
Box 2518, Greenwich, Connecticut 06836-2518, telephone number (203) 629-3000 The
Corporation was incorporated in Delaware in 1970 as the successor to a New
Jersey corporation incorporated in 1967.
APPLICATION OF PROCEEDS
The Corporation will not receive any of the proceeds from the sale of the
Shares by the Selling Stockholder.
SELLING STOCKHOLDER
The Shares offered by this Prospectus were initially issued to the Selling
Stockholder pursuant to a Stock Purchase Agreement, dated May 3, 1994 (the
"Agreement"), by and between the Selling Stockholder and the Corporation (the
"Acquisition"). Pursuant to the terms of the Agreement, the Corporation agreed
to register on Form S-3 certain shares of Common Stock of the Corporation held
by the Selling Stockholder and to keep effective such registration for such
period as may be reasonably necessary for the Selling Stockholder to dispose of
such shares. The Corporation is responsible for and will bear the costs and
expenses of preparing and maintaining such registration.
Immediately following the consummation of the Acquisition, the Selling
Stockholder held 151,657 shares of Common Stock, which amount is less than 1% of
the Corporation's outstanding Common Stock. Because the Selling Stockholder may
offer pursuant to this Prospectus all or some part of the 75,828 Shares to which
this Prospectus relates, and because the offering may or may not be an
underwritten offering on a firm commitment basis, no estimate can be given as of
the date hereof as to the number of Shares to be offered for sale by the Selling
Stockholder or as to the number of shares of Common Stock that will be held by
the Selling Stockholder upon termination of such offering. See "Plan of
Distribution."
The following table sets forth certain information, as of the date of this
Prospectus, with respect to the Selling Stockholder, who has not had a material
relationship with the Corporation within the past three years:
NO. OF SECURITIES
SELLING OWNED PRIOR TO
STOCKHOLDER OFFERING
----------- --------------
Bobby G. Biggerstaff........................... 151,657
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<PAGE>
PLAN OF DISTRIBUTION
Any or all of the Shares may be sold from time to time to purchasers
directly by the Selling Stockholder. The Shares may also be offered in one or
more underwritten offerings, on a firm commitment or best efforts basis. The
Corporation will receive no proceeds from the sale of the Shares by the Selling
Stockholder.
The Shares may be sold from time to time in one or more transactions at a
fixed offering price, which may be changed, or at varying prices determined at
the time of sale or at negotiated prices. Such prices will be determined by the
Selling Stockholder or by agreement between the Selling Stockholder and the
Selling Stockholder's underwriters, dealers, brokers or agents.
Any underwriters, dealers, brokers or agents participating in the
distribution of the Shares may receive compensation in the form of underwriting
discounts, concessions, commissions or fees from the Selling Stockholder and/or
purchasers of Shares, for whom they may act. In addition, the Selling
Stockholder and any such underwriters, dealers, brokers or agents that
participate in the distribution of Shares may be deemed to be underwriters under
the Securities Act, and any profits on the sale of Shares by them and any
discounts, commissions or concessions received by any of such persons may be
deemed to be underwriting discounts and commissions under the Securities Act.
Those who act as underwriter, broker, dealer or agent in connection with the
sale of Shares will be selected by the Selling Stockholder and may have other
business relationships with the Corporation and its subsidiaries or affiliates
in the ordinary course of business.
At any time a particular offer of Shares is made by the Selling Stockholder,
a supplement to this Prospectus will be distributed, if required, which will set
forth the aggregate amount of Shares being offered and the terms of the
offering, including the name or names of any underwriters, dealers or agents,
any discounts, commissions and other items constituting compensation from the
Selling Stockholder and any discounts, commissions or concessions allowed or
reallowed or paid to dealers. Such Prospectus supplement and, if necessary, a
post-effective amendment to the Registration Statement of which this Prospectus
is a part will be filed with the Commission to reflect the disclosure of
additional information with respect to the distribution of the Shares.
DESCRIPTION OF THE CORPORATION'S OUTSTANDING CAPITAL STOCK
The aggregate number of shares of capital stock of all classes which the
Corporation has authority to issue is forty-five million (45,000,000) shares, of
which forty million (40,000,000) shares are Common Stock of the par value of
twenty cents ($.20) each, and five million (5,000,000) shares are Preferred
Stock of the par value of ten cents ($.10) each. As of December 31, 1995, there
were 20,168,167 shares of Common Stock and 1,450,000 shares of Preferred Stock
outstanding.
COMMON STOCK
Subject to the senior rights of Preferred Stock which may from time to time
be outstanding, holders of Common Stock are entitled to receive such dividends
as may be declared by the Board of Directors out of funds legally available
therefor. Upon dissolution and liquidation, holders of Common Stock are entitled
to a ratable share of the net assets of the Company remaining after payment to
the holders of the Preferred Stock of the full preferential amounts to which
they are entitled. All outstanding shares of Common Stock are fully paid and
nonassessable.
The holders of Common Stock are entitled to one vote per share for the
election of Directors and on all other matters submitted to a vote of
stockholders. Holders of Common Stock are not entitled to cumulative voting for
the election of Directors. They are not entitled to preemptive rights.
The transfer agent and registrar for the Common Stock is Chemical Bank.
5
<PAGE>
PREFERRED STOCK
The Preferred Stock has priority over the Common Stock with respect to
dividends and to other distributions, including the distribution of assets upon
liquidation. The Board of Directors is authorized to fix and determine the
terms, limitations and relative rights and preferences of the Preferred Stock,
to establish series of Preferred Stock and to fix and determine the variations
as among series. The Board of Directors without stockholder approval could issue
Preferred Stock with voting and conversion rights which could adversely affect
the voting power of the holders of Common Stock.
The Corporation's outstanding Preferred Stock consists of 1,000,000 shares
of Series A Cumulative Redeemable Preferred Stock and 450,000 shares of Series B
Cumulative Redeemable Preferred Stock.
The Series A Cumulative Redeemable Preferred Stock was issued on January 14,
1994 in connection with the sale of 6,000,000 Depositary Shares, each
representing a 1/6 fractional interest in a share of Series A Cumulative
Redeemable Preferred Stock. The liquidation preference of each share of Series A
Cumulative Redeemable Preferred Stock is $150.00 (equivalent to $25.00 per
Depositary Share). Dividends on the Series A Cumulative Redeemable Preferred
Stock and the Depositary Shares representing such Series A Cumulative Redeemable
Preferred Stock are cumulative from the date of original issue and are payable
quarterly in arrears at the rate of 7 3/8% of the liquidation preference per
annum (equivalent to $1.84375 per annum per Depositary Share). The Series A
Cumulative Redeemable Preferred Stock and the Depositary Shares representing
such Series A Cumulative Redeemable Preferred Stock may be redeemed for cash at
the option of the Corporation, in whole or in part, at a redemption price of
$150.00 per share (equivalent to $25.00 per Depositary Share), plus accrued and
unpaid dividends, if any, thereon. The Series A Cumulative Redeemable Preferred
Stock and the Depositary Shares representing such Series A Cumulative Redeemable
Preferred Stock have no stated maturity and are not subject to any sinking fund
or mandatory redemption or convertible into or exchangeable for any other
property or securities of the Corporation.
The Series B Cumulative Redeemable Preferred Stock was issued on December
28, 1995 in connection with the purchase from General Re Corporation ("General
Re") of all of the capital stock of Signet Star Holdings, Inc. owned by General
Re. As a result of a 1993 venture between the two companies, the Corporation had
owned 60% and General Re had owned 40% of Signet Star Holdings, Inc. Pursuant to
an Agreement and Plan of Restructuring, the Corporation issued to General Re
450,000 shares of Series B Cumulative Redeemable Preferred Stock having an
aggregate liquidation preference of $68,800,000. The Series B Cumulative
Redeemable Preferred Stock has a dividend rate increasing up to 6% during the
first twelve months after issuance. The rate is thereafter subject to
readjustment based on certain predetermined conditions. The Series B Cumulative
Redeemable Preferred Stock has no stated maturity and is not subject to any
sinking fund or mandatory redemption or convertible into or exchangeable for any
other property or securities of the Corporation.
ANTI-TAKEOVER PROVISIONS
The Corporation currently has provisions in its Restated Certificate of
Incorporation and By-Laws which could have an "anti-takeover" effect. The Board
of Directors is divided into three classes, each class having a term of three
years. Each year the term of one class expires. In addition, the affirmative
vote or consent of the holders of four-fifths (80%) of the stock of the
Corporation entitled to vote in elections of Directors is required to authorize
any of the following transactions:
(a) merger or consolidation of the Corporation into any other
corporation; or
(b) sale, lease, exchange, mortgage or other disposition of all or any
substantial part of the assets of the Corporation to any other corporation,
person or other entity; or
6
<PAGE>
(c) sale or lease by any other corporation, person or entity to the
Corporation or any subsidiary thereof of any securities or assets (except
assets having an aggregate fair market value of less than $4,000,000) in
exchange for voting securities (securities convertible into voting
securities or options, warrants or rights to purchase voting securities) of
the Corporation or any subsidiary thereof
if such corporation, person or entity is, or has been at any time within the
preceding two years, the beneficial owner of 5% or more of the outstanding
shares of stock of the Corporation entitled to vote in elections of Directors.
LEGAL OPINIONS
The legality of the Shares offered hereby will be passed upon for the
Corporation by Willkie Farr & Gallagher, One Citicorp Center, 153 East 53rd
Street, New York, New York 10022. Attorneys of Willkie Farr & Gallagher who have
participated in this offering beneficially own an aggregate of 49,761 shares of
Common Stock, of which 20,000 are beneficially owned by Robert B. Hodes and
29,761 are beneficially owned by Jack H. Nusbaum (which amount includes 22,750
shares held in trusts as to which Mr. Nusbaum is a co-trustee). Mr. Hodes and
Mr. Nusbaum are also Directors of the Corporation.
EXPERTS
The financial statements, schedules and selected financial data of W. R.
Berkley Corporation and subsidiaries as of December 31, 1994 and 1993 and for
each of the years in the three-year period ended December 31, 1994, incorporated
by reference in the registration statement on Form S-3 (together with all
amendments and exhibits, the "Registration Statement") have been audited and
reported upon by KPMG Peat Marwick LLP, independent certified public
accountants. The financial information for the five years ended December 31,
1994, in the table under "Selected Consolidated Financial Data" incorporated by
reference herein and in the Registration Statement has been derived from
financial statements audited by KPMG Peat Marwick LLP and has been reported upon
by KPMG Peat Marwick LLP. Such financial statements, schedules and selected
financial data have been incorporated by reference herein and in the
Registration Statement in reliance upon the reports of KPMG Peat Marwick LLP,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
The reports of KPMG Peat Marwick LLP on the financial statements, schedules
and selected financial data as described in the preceding paragraph refer to the
Company's adoption of the provisions of the Financial Accounting Standards
Board's Statements of Financial Accounting Standards No. 109, "Accounting for
Income Taxes" in 1992 and No. 115, "Accounting for Certain Investments in Debt
and Equity Securities," at December 31, 1993.
The financial statements of MECC, Inc. and its subsidiary as of December 31,
1994 and 1993 and for each of the years in the three-year period ended December
31, 1994 have been incorporated by reference in the Registration Statement in
reliance upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
The report of KPMG Peat Marwick LLP on the financial statements as of
December 31, 1994 and 1993 and for each of the years in the three-year period
ended December 31, 1994 refers to MECC, Inc. and its subsidiary's adoption of
the provisions of the Financial Accounting Standards Board's Statement of
Financial Accounting Standards No. 115, "Accounting for Certain Investments in
Debt and Equity Securities," at December 31, 1993.
7
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses, other than underwriting discounts and commissions,
in connection with the offerings of the Securities are as follows:
Securities Act Registration Fee.................................. $ 1,308
"Blue Sky" Fees and Expenses..................................... 1,000
Legal Fees and Expenses.......................................... 10,000
Accounting Fees and Expenses..................................... 5,000
Miscellaneous.................................................... 692
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$ 18,000
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, which is applicable
to the Registrant, reads as follows:
(a) A 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, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), 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
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which 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 reasonable cause to believe that his conduct was unlawful.
(b) A 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 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, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him
in connection with the defense or settlement of such action or suit 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 except that no
indemnification shall 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 of Chancery or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court shall deem
proper.
II-1
<PAGE>
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b), or in
defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) (unless ordered by
a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b). Such
determination shall be made (1) by a majority vote of the directors who are
not parties to such action, suit or proceeding even though less than a
quorum, or (2) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending a civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any by-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who 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, partnership,
joint venture, trust or other enterprise against any liability asserted
against him and 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 liability under the provisions of this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
section with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence
had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in
a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee
II-2
<PAGE>
benefit plan shall be deemed to have acted in a manner "not opposed to the
best interests of the corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise. The Court of
Chancery may summarily determine a corporation's obligation to advance
expenses (including attorneys' fees).
As permitted by the Delaware General Corporation Law, the Registrant's
stockholders have approved an amendment to its Restated Certificate of
Incorporation containing provisions eliminating a director's personal liability
for monetary damages to the Registrant and its stockholders arising from a
breach of a director's fiduciary duty except for liability under Section 174 of
the Delaware General Corporation Law or liability for any breach of the
director's duty of loyalty to the Registrant or its stockholders, or acts or
omissions not in good faith or which involves intentional misconduct or a
knowing violation of law or for any transaction from which the director derived
an improper personal benefit. The amendment also provides for indemnification of
directors, officers and other persons under certain circumstances.
The Registrant maintains policies of insurance under which the Registrant
and its directors and officers are insured subject to specified exclusions and
deductible and maximum amounts against loss arising from any claim which may be
made against the Registrant or any director or officer of the Registrant by
reason of any breach of duty, neglect, error, misstatement, omission or act done
or alleged to have been done while acting in their respective capacities.
ITEM 16. EXHIBITS.
5 --Opinion of Willkie Farr & Gallagher
23(a) --Consent of KPMG Peat Marwick LLP
(b) --Consent of Willkie Farr & Gallagher (included in Exhibit 5)
24 --Power of Attorney (included on Page II-5)
ITEM 17. UNDERTAKINGS.
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
this registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or
any material change to such information
II-3
<PAGE>
in this registration statement; provided, however, that subparagraphs (i)
and (ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in registration
statements on Form S-3 or Form S-8 and the periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(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
herein, 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.
The undersigned Registrant hereby further undertakes that, for the 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 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.
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 provisions described under Item 15 of this
registration statement, or otherwise (other than insurance), the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such 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 such Act and will be governed by the final adjudication
of such issue.
II-4
<PAGE>
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 the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Greenwich, State of Connecticut, on January 26, 1996.
W. R. BERKLEY CORPORATION
By /s/ WILLIAM R. BERKLEY
...................................
William R. Berkley
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William R. Berkley and Robert S. Gorin, and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, 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 requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------- ----------------------------- ----------------
<C> <S> <C>
/s/ WILLIAM R. BERKLEY Chairman of the Board and January 26, 1996
........................................... Chief Executive Officer
William R. Berkley (Principal Executive
Officer)
/s/ JOHN D. VOLLARO President and Chief Operating January 26, 1996
........................................... Officer and Director
John D. Vollaro
/s/ ANTHONY J. DEL TUFO Senior Vice President, Chief January 26, 1996
........................................... Financial Officer and
Anthony J. Del Tufo Treasurer (Principal
Financial and Accounting
Officer)
/s/ SCOTT M. CUNNINGHAM Director January 26, 1996
...........................................
Scott M. Cunningham
</TABLE>
II-5
<PAGE>
<TABLE><CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ROBERT B. HODES Director January 26, 1996
...........................................
Robert B. Hodes
/s/ HENRY KAUFMAN Director January 26, 1996
...........................................
Henry Kaufman
/s/ RICHARD G. MERRILL Director January 26, 1996
...........................................
Richard G. Merrill
/s/ JACK H. NUSBAUM Director January 26, 1996
...........................................
Jack H. Nusbaum
/s/ MARK L. SHAPIRO Director January 26, 1996
...........................................
Mark L. Shapiro
/s/ MARTIN STONE Director January 26, 1996
...........................................
Martin Stone
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE><CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGES
- ------ ---------------------- ------------
<C> <C> <S> <C>
5 -- Opinion of Willkie Farr & Gallagher.....................................
23(a) -- Consent of KPMG Peat Marwick LLP........................................
(b) -- Consent of Willkie Farr & Gallagher (included in Exhibit 5).............
24 -- Power of Attorney (included on page II-5)...............................
</TABLE>
EXHIBIT 5
[WILLKIE FARR & GALLAGHER LETTERHEAD]
January 26, 1996
W. R. Berkley Corporation
165 Mason Street
P. O. Box 2518
Greenwich, CT 06836-2518
Re: Form S-3 -- 75,828 shares of Common Stock
Dear Sirs:
We have acted as counsel to W. R. Berkley Corporation, a Delaware
corporation (the "Corporation"), in connection with the registration statement
on Form S-3 (the "Registration Statement") being filed by the Corporation on the
date hereof with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, with respect to the sale of 75,828 shares of common stock,
par value $.20 per share, of the Corporation (the "Common Stock"). In connection
with this opinion, we have examined such corporate records, certificates and
other documents and have reviewed such questions of law as we deemed necessary
or appropriate.
Based upon that examination and review, we advise you that, in our opinion:
1. The Corporation has been duly incorporated and is a validly existing
corporation under the laws of the State of Delaware.
2. The Common Stock has been duly and validly authorized and legally
issued.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Opinions" in the Prospectus contained in the Registration Statement.
Very truly yours,
Willkie Farr & Gallagher
EXHIBIT 23(a)
Consent of Independent Certified Public Accountants
The Board of Directors
W.R. Berkley Corporation:
We consent to the use of our reports on W. R. Berkley Corporation and
subsidiaries (the Company) and of MECC, Inc. and subsidiary (MECC)
incorporated herein by reference and to the reference to our firm under
the heading "Experts" in the prospectus.
The reports of KPMG Peat Marwick LLP on the financial statements, schedules
and selected financial data of the Company and on the financial statements
of MECC as of December 31,1994 and 1993 and for each of the years in the
three-year period ended December 31, 1994 refer to the adoption of the
provisions of the Financial Accounting Standards Board's Statements of
Financial Accounting Standards No. 115, "Accounting for Certain Investments
in Debt and Equity Securities" at December 31, 1993 and of the Company's
adoption of No. 109, "Accounting for Income Taxes in 1992".
KPMG Peat Marwick LLP
New York, New York
January 25, 1996
