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As filed with the Securities and Exchange Commission on August 19, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
W.R. Berkley Corporation
(Exact name of issuer as specified in its charter)
Delaware 22-1867895
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
165 Mason Street
Greenwich, Connecticut 06836
(Address of principal executive
offices, including zip code)
First Amended and Restated
W.R. Berkley Corporation 1992 Stock Option Plan
(Full title of the plan)
Robert S. Gorin, Esq.
Senior Vice President,
General Counsel and Secretary
W.R. Berkley Corporation
165 Mason Street
Greenwich, Connecticut 06836
(203) 629-3000
(Name and address of agent for service)
Telephone number, including area code, of agent for service
COPY TO:
Neil Novikoff, Esq.
Willkie Farr & Gallagher
153 East 53rd Street
New York, NY 10022
(212) 821-8000
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount maximum maximum Amount
securities to be offering aggregate of reg-
to be regis- price offering istration
registered tered (1) per share (2) price (2) fee
- ---------- --------- ------------ --------- ---------
Common Stock,
$0.20 par
value per
share 3,000,000 $56.5625 $169,687,500 $51,420.45
(1) This Registration Statement covers the 3,000,000 additional shares
authorized to be issued under the First Amended and Restated W. R. Berkley
Corporation 1992 Stock Option Plan.
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act of 1933, as amended.
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PART I
INFORMATION NOT REQUIRED
IN THE REGISTRATION STATEMENT
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and
Exchange Commission (the "Commission") by W.R. Berkley Corporation, a Delaware
corporation (the "Company"), are incorporated herein by reference:
(a) The Company's annual report filed on Form 10-K
for the fiscal year ended December 31, 1996, filed pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) The Company's quarterly reports filed on Form
10-Q for the quarters ended March 31, 1997 and June 30, 1997
filed pursuant to the Exchange Act;
(c) The description of the Company's Common Stock,
par value $0.20 per share (the "Common Stock"), which is
contained in Amendment No. 1 to the Company's Registration
Statement on Form S-3, filed pursuant to the Securities Act of
1933, as amended (the "Securities Act") on March 14, 1986; and
(d) The Company's Registration Statement on Form
S-8, Registration No. 33-55726, filed pursuant to the
Securities Act on December 15, 1992.
In addition, all documents filed by the Company with the
Commission 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 the securities offered
hereby have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of the filing of such documents with the Commission.
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby is
being passed upon for the Company by Willkie Farr & Gallagher. As of the date of
this Registration Statement, Robert B. Hodes and Jack H. Nusbaum, each partners
of Willkie Farr & Gallagher, owned an aggregate of 33,661 shares of Common
Stock, of which 20,100 were beneficially owned by Mr. Hodes and 13,561 were
beneficially owned by Mr. Nusbaum (which amount includes 6,450 shares held in
trusts as to which Mr. Nusbaum is a co-trustee). Mr. Hodes and Mr. Nusbaum are
also directors of the Company.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, which is
applicable to the Registrants, 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
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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.
(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.
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(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 actions
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 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 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 benefit plan
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shall be deemed to have acted in a manner "not opposed to the best
interest 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.
As permitted by the Delaware General Corporation Law, the stockholders
of the Company have approved an amendment to its Restated Certificate of
Incorporation containing provisions eliminating a director's personal liability
for monetary damages to the Company 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 Company or its stockholders, or acts or omissions not in
good faith or which involve 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 Company maintains policies of insurance under W.R. Berkley
Corporation 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 Company or any director or officer of the
Company 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 8. EXHIBITS
Exhibit No.
5 Opinion of Willkie Farr & Gallagher, counsel to the Company, as to
the legality of the shares being registered.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
25 Power of Attorney (reference is made to the signature page).
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Greenwich, State of Connecticut, on the 15th day of
August, 1997.
W.R. BERKLEY CORPORATION
By: /s/ Robert S. Gorin
Robert S. Gorin, Esq.
Senior Vice President,
General Counsel and
Secretary
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Robert S. Gorin and John D.
Vollaro, and each of them, with full power to act without the other, his true
and lawful attorney-in-fact and agent, 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 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 fully to all
intents and purposes as he might or could do in person thereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ William R. Berkley Chairman of the Board and August 15, 1997
(William R. Berkley) Chief Executive Officer
(Chief Executive Officer)
/s/ John D. Vollaro President, Chief August 15, 1997
(John D. Vollaro) Operating Officer
and Director
/s/ Anthony J. Del Tufo Senior Vice President, August 15, 1997
(Anthony J. Del Tufo) Chief Financial Officer
and Treasurer (Chief
Financial Officer)
/s/ Clement P. Patafio Vice President and August 15, 1997
(Clement P. Patafio) Corporate Controller
(Chief Accounting Officer)
/s/ Robert B. Hodes Director August 15, 1997
(Robert B. Hodes)
/s/ Henry Kaufman Director August 15, 1997
(Henry Kaufman)
</TABLE>
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<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Richard G. Merrill Director August 15, 1997
(Richard G. Merrill)
/s/ Jack H. Nusbaum Director August 15, 1997
(Jack H. Nusbaum)
/s/ Mark L. Shapiro Director August 15, 1997
(Mark L. Shapiro)
/s/ Martin Stone Director August 15, 1997
(Martin Stone)
</TABLE>
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INDEX TO EXHIBITS
Exhibit No. Exhibit
- ----------- -------
5 Opinion of Willie Farr & Gallagher, counsel to the
Company, as to the legality of the shares being
registered.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in
Exhibit 5).
25 Powers of Attorney (reference is made to the signature
pages).
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Exhibit 5
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, NY 10022-4677
August 18, 1997
W. R. Berkley Corporation
165 Mason Street
Greenwich, Connecticut 06830
Ladies and Gentlemen:
We have acted as counsel to W. R. Berkley Corporation (the "Company"), a
corporation organized under the laws of the State of Delaware, with respect to
the Company's Form S-8 Registration Statement (the "Registration Statement") to
be filed by the Company with the Securities and Exchange Commission on or about
August 18, 1997, in connection with the registration under the Securities Act of
1933, as amended (the "Act"), by the Company of an aggregate of 3,000,000 shares
of Common Stock, par value $0.20 per share (the "Common Stock"), issuable upon
exercise of stock options granted or to be granted under the First Amended and
Restated W. R. Berkley Corporation 1992 Stock Option Plan (the "Plan").
As counsel for the Company, we have examined, among other things, such Federal
and state laws and originals and/or copies (certified or otherwise identified to
our satisfaction) of such documents, certificates and records as we deemed
necessary and appropriate for the purpose of rendering this opinion.
Based on the foregoing, we hereby inform you that in our opinion the shares of
Common Stock issuable upon exercise of stock options granted or to be granted
under the Plan have been duly and validly authorized for issuance and, when
issued in accordance with the terms of the Plan for consideration in excess of
$0.20 per share, will be validly issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not hereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and Exchange Commission.
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W. R. Berkley Corporation
August 18, 1997
Page 2
We are members of the Bar of the State of New York and do not purport to be
experts in the laws of jurisdictions other than the State of New York, the
General Corporation Law of the State of Delaware and the Federal laws of the
United States of America.
Very truly yours,
/s/ Willkie Farr & Gallagher
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Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board Of Directors
W. R. Berkley Corporation
We consent to incorporation by reference in the Registration Statement on Form
S-8 of our report dated February 21, 1997 relating to the financial statements
and related schedules of W. R. Berkley Corporation which appear in, or are
incorporated by reference in the Annual Report on Form 10-K of W. R. Berkley
Corporation for the fiscal year ended December 31, 1996. Our report refers to
the adoption of the provisions of Financial Accounting Standards Board Statement
of Financial Accounting Standards No. 115 "Accounting for Certain Investments in
Debt and Equity Securities" and No. 109, "Accounting for Income Taxes" at
December 31, 1993 and 1992, respectively.
/s/ KPMG Peat Marwick LLP
New York, New York
August 18, 1997
