REGISTRATION NO.
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ORION CAPITAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 95-6069054
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
9 Farm Springs Road, Farmington, Connecticut 06032-2504
(Address of Principal Executive Offices) (Zip Code)
Orion Capital Corporation
Employees' Stock Purchase Plan
(Full Title of Plan)
Michael P. Maloney
Senior Vice President, General Counsel and Secretary
Orion Capital Corporation
600 Fifth Avenue
New York, New York 10020-2302
(Name and Address of Agent for Service)
(212) 332-8080
(Telephone Number, Including Area Code, of Agent of Service)
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CALCULATION OF REGISTRATION FEE
- --------------- ----------- -------------- -------------- ----------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount to Offering Price Aggregate Amount of
to be be Per Share (2) Offering Price Registration Fee
Registered Registered
(1)
- --------------- ----------- -------------- -------------- ----------------
Common Stock, 300,000 $54.25 $16,275,000 $4,801.13
$1.00 par value
per share
- -------------------- ------ -------------- -------------- ----------------
<PAGE>
(1) The 300,000 shares of Common Stock being registered hereby will be issuable
from time to time by Orion Capital Corporation (the "Company") to employees
participating in the Company's Employees' Stock Purchase Plan. In addition to
the 300,000 shares of Common stock indicated above, pursuant to Rule 416 under
the Securities Act of 1933, as amended (the "Securities Act"), this Registration
Statement also covers an indeterminate number of shares of Common Stock which
may be issuable as a result of anti-dilution adjustments made under the
Employees' Stock Purchase Plan and pursuant to the Company's stockholder rights
plan.
(2) The maximum offering price per share used to calculate the registration fee
with respect to the 300,000 shares of Common Stock issuable under the Employees'
Stock Purchase Plan was estimated pursuant to Rule 457(h) under the Securities
Act using the average of the high and low prices per share of the Common Stock
reported on the New York Stock Exchange on May 27, 1998.
<PAGE>
PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Pursuant to Rule 428(b)(1) under the Securities Act, the documents
containing the information specified in Part I of Form S-8 will be sent or given
to each participant in the Orion Capital Corporation Employees' Stock Purchase
Plan (the "Plan"). These documents and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Part II hereof, taken
together, constitute the Section 10(a) Prospectus.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The documents listed below are incorporated by reference herein, and all
documents subsequently filed by Orion Capital Corporation ("Registrant")
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference shall be deemed
to be modified or superseded to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
o Registrant's Annual Report on Form 10-K for the year ended December 31,
1997.
o Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31,
1998.
o The description of Registrant's Common Stock and its preferred stock
purchase rights associated with the Common Stock, contained in its
registration statement filed pursuant to Section 12 of the Exchange Act
and any amendment or report filed for the purpose of updating those
descriptions.
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<PAGE>
The consolidated financial statements and schedules of the Registrant
included in the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997 have been audited by Deloitte & Touche LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference.
Item 5. Interests of Named Experts and Counsel
The validity of the securities have been passed upon by Michael P. Maloney,
Esq., Senior Vice President, General Counsel and Secretary for the Registrant.
Mr. Maloney beneficially owns Common Stock and options to purchase Common Stock.
Item 6. Indemnification of Directors and Officers
Article IX of Registrant's By-Laws requires indemnification of Registrant's
directors and officers to the full extent permitted by the Delaware General
Corporation Law (the "Law") and provides for the advancement of defense expenses
provided the director or officer agrees to repay the advance if it is ultimately
determined that he is not entitled to indemnification. Article IX also provides
that the indemnification provided by the By-Laws is not exclusive. Section
145(a) of the Law provides in general that a corporation may indemnify anyone
who is or may be a party to a legal proceeding by reason of his service as a
director or officer against expenses, adjustments, fines and settlement payments
actually and reasonably incurred 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, as to any criminal proceeding, had no reasonable cause to
believe his conduct was unlawful. Section 145(b) of the Law provides similarly
where the proceeding is by or in the right of the corporation to procure a
judgment in its favor. Section 145(g) of the Law allows a corporation to
maintain insurance on behalf of any officer or director against any liability
incurred by him in such capacity, whether or not the corporation would have the
power to indemnify him against such liability under the Law. Registrant
maintains such directors and officers liability insurance coverage.
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<PAGE>
Each of Registrant's directors has entered into an indemnity agreement
with Registrant which (i) confirms the indemnity set forth in the By-laws and
gives assurances that such indemnity will continue to be provided despite any
By-law changes and (ii) provides, subject to certain conditions, that the
director shall be indemnified to the fullest possible extent permitted by law
against all expenses, judgments, fines and settlement amounts incurred or paid
by him in any proceeding.
As permitted by Section 102(b)(7) of the Law, Article VII of
Registrant's Certificate of Incorporation eliminates personal liability of any
director to Registrant and its stockholders for breach of the director's
fiduciary duty of care, except where the director has breached his duty of
loyalty, acted in bad faith, engaged in intentional or knowing misconduct,
negligently or willfully declared an improper dividend or effected an unlawful
stock repurchase or redemption, or obtained an improper personal benefit.
Item 8. Exhibits
4.0 Orion Capital Corporation Employees' Stock Purchase Plan
5.0 Opinion of Michael P. Maloney, Esq.
15.0 Letter in Lieu of Consent of Deloitte & Touche LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Michael P. Maloney, Esq. (incorporated in Exhibit 5)
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;
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<PAGE>
(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)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the 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 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 the Securities
Act and will be governed by the final adjudication of such issue.
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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 Town of Farmington, State of Connecticut, on this 29th day of
May, 1998.
ORION CAPITAL CORPORATION
By: /S/W. Marston Becker
W. Marston Becker
Chairman of the Board and
Chief Executive Officer of the Company
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<PAGE>
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 date or dates indicated:
Signature Title Date
/S/ W. Marston Becker
----------------------
W. Marston Becker Chairman of the Board and
Chief Executive Officer of
the Company
/S/ Donald W. Ebbert, Jr.
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Donald W. Ebbert, Jr. Executive Vice President May 29, 1998
and Chief Financial Officer
/S/ Gordon F. Cheesbrough
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Gordon F. Cheesbrough Director May 29, 1998
/S/ John C. Colman
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John C. Colman Director May 29, 1998
/S/ David H. Elliott
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David H. Elliott Director May 29, 1998
/S/ Victoria R. Fash
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Victoria R. Fash Director May 29, 1998
/S/ Robert H. Jeffrey
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Robert H. Jeffrey Director May 29, 1998
/S/ Gordon W. Kreh
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Gordon W. Kreh Director May 29, 1998
- ----------------------
Warren R. Lyons Director
<PAGE>
- ----------------------
James K. McWilliams Director
/S/ Ronald W. Moore
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Ronald W. Moore Director May 29, 1998
/S/ William W. Weaver
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William W. Weaver Director May 29, 1998
<PAGE>
EXHIBIT 4
ORION CAPITAL CORPORATION
EMPLOYEES' STOCK PURCHASE PLAN
SECTION 1. PURPOSE OF THE PLAN
The purpose of the Orion Capital Corporation Employees' Stock Purchase
Plan (the "Plan") is to provide employees of Orion Capital Corporation ("Orion")
and designated subsidiaries an opportunity to acquire a proprietary interest in
Orion through the purchase of shares of the common stock, $1.00 par value, of
Orion ("Common Stock"). It is intended that the Plan qualify as an "employee
stock purchase plan" under Section 423 of the Internal Revenue Code of 1986, as
amended ("Code"), and the provisions of the Plan shall be construed accordingly.
SECTION 2. DEFINITIONS
For purposes of the Plan, the following terms shall be defined as set
forth below:
(a) "Business Day" means each day that the New York Stock Exchange, Inc.
(or such other exchange on which Common Stock is principally traded on the date
of reference) is open for the transaction of business.
(b) "Corporate Transaction" means either:
(i) a merger or consolidation in which securities possessing more
than fifty percent (50%) of the total combined voting power of Orion's
outstanding securities are transferred to a person or persons different from the
person holding those securities immediately prior to such transaction; or
(ii) the complete liquidation or dissolution of Orion.
(c) "Fair Market Value" means, with respect to Common Stock, the mean of
the high and low sales prices of Common Stock on the relevant date as reported
on the stock exchange, or market on which the Common Stock is primarily traded,
or if no sale is made on such date, then the Fair Market Value is the weighted
average of the mean of the high and low sales prices of Common Stock on the next
preceding day and the next succeeding day on which such sales were made, as
reported on the stock exchange market on which Common Stock is primarily traded.
(d) "Participating Company" shall mean Orion and each Subsidiary which
the Committee has designated to participate in the Plan.
<PAGE>
(e) "Offering Period" means each period which begins on a Commencement
Date and ends on a Purchase Date during which Eligible Employees may purchase
Common Stock pursuant to an Offering under the Plan.
(f) "Commencement Date" shall mean the first Business Day of each
Offering Period.
(g) "Eligible Employee" means any person who, on a Commencement Date, (i)
is customarily scheduled to be employed by any Participating Company as an
employee for at least seventeen and one-half (17 1/2) hours per week and for
more than five (5) months in any calendar year, and (ii) has completed fifteen
(15) days of employment with Orion or any Subsidiary.
(h) "Purchase Date" shall mean the last Business Day of each Offering
Period.
(i) "Offering" means any proposal made in accordance with the terms and
conditions of the Plan permitting Eligible Employees to purchase Common Stock
under the Plan during an Offering Period.
(j) "Subsidiary" shall mean any corporation which is a "subsidiary" of
Orion, as that term is defined in Section 424(f) of the Code.
SECTION 3. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Compensation and Nominating
Committee of the Board of Directors of Orion (the "Committee"). Any action of
the Committee in administering the Plan shall be final, conclusive and binding
on all persons, including Orion, its Subsidiaries, employees, persons claiming
rights from or through employees and the stockholders or Orion.
Subject to the provisions of the Plan, the Committee shall have full and
final authority in its discretion (a) to designate the Subsidiaries whose
employees will participate in the Plan, (b) to determine the maximum number of
shares of Common Stock to be acquired by each Eligible Employee during each
Offering Period, (c) to determine the terms and conditions of each Offering, (d)
to determine the length of each Offering Period and the Commencement Date
thereof, (e) to correct any defect or supply any omission or reconcile any
inconsistency in the Plan, (f) to adopt, amend and rescind such rules and
regulations as, in its opinion, may be advisable in the administration of the
Plan and the conduct of each Offering, and (g) to make all other determinations
as it may deem necessary or advisable for the administration of the Plan.
<PAGE>
SECTION 4. PARTICIPATION IN THE PLAN
(a) Only individuals who are employees of a Participating Company shall
be eligible to acquire Common Stock pursuant to any Offering under the Plan.
Except as provided in paragraph (b) hereof, every Eligible Employee on the
Commencement Date of an Offering shall be eligible to participate in such
Offering provided such individual remains an Eligible Employee until the
Purchase Date.
(b) Notwithstanding any provisions of the Plan to the contrary, no
Eligible Employee shall be eligible to participate in any Offering, if:
(i) on the Commencement Date, such Eligible Employee (or any other person
whose stock would be attributed to such Eligible Employee pursuant to
Section 424(d) of the Code) would own stock and /or hold outstanding
options to purchase stock possessing five (5) percent or more of the total
voting power or value of all classes of stock of Orion or a Subsidiary; or
(ii) the Eligible Employee belongs to a class or group of Eligible
Employees that the Committee deems ineligible for participation in any
Offering (as the Committee may do from time to time), so long as the
exclusion of class or group of Eligible Employees from participation in an
Offering does not jeopardize the qualification of the Plan under Section
423 of the code or other applicable law.
SECTION 5. OFFERINGS
(a) The Plan shall be implemented by a series of Offerings to all
Eligible Employees, the duration and frequency of which will be specified from
time to time by the Committee.
(b) Each Offering shall permit each Eligible Employee to purchase on the
Purchase Date Common Stock at a such purchase price per share which shall not be
less than the lower of (i) 90% of the Fair Market Value of the Common Stock on
the Commencement Date, or (ii) 90% of the Fair Market value of Common Stock on
the Purchase Date.
(c) No Offering Period pursuant to the Plan shall before a period greater
than 12 months from the Commencement Date.
(d) All Eligible Employees participating in an Offering under the Plan
shall have the same rights and privileges, except that the Committee may from
time to time provide for differences in the rights and privileges of Eligible
Employees so long as such differences do not, jeopardize the qualification of
the Plan under Section 423 of the Code or violate other applicable law.
<PAGE>
SECTION 6. SHARES AVAILABLE UNDER THE PLAN
(a) Subject to the provisions of Section 7 hereof, the aggregate number
of shares of Common Stock available for purchase pursuant to all Offerings under
the Plan shall not exceed 300,000 shares.
(b) If the total number of shares of Common Stock to be purchased on any
Purchase Date when added to the number of shares of Common Stock previously
issued pursuant to Offerings under the Plan exceeds the maximum number of shares
then available under the Plan, the Committee shall make a pro rata allocation of
the shares available for purchase in such Offering in as nearly a uniform manner
as shall be practicable and as it shall determine to be equitable, and the
amounts received from each Eligible Employee in excess of the amounts applied to
purchase Common Stock shall be refunded to each Eligible Employee.
SECTION 7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
In the event that the Committee determines that any stock dividend,
recapitalization, forward split or reverse split, reorganization, merger,
consolidation, spin-off, combination share exchange or other similar corporate
transaction or event affects the Common Stock such that an adjustment is
appropriate in order to prevent dilution or enlargement of the rights of
Eligible Employees under the Plan, then the Committee shall, in such manner as
it may deem equitable, adjust any or all of (i) the number and kind of shares of
Common Stock which may thereafter be available under the Plan, (ii) the number
and kind of shares of Common Stock issuable in respect of any current Offering,
and (iii) the purchase price relating to any purchase of Common Stock to be
acquired in any Offering; provided, however, that no adjustment shall be made
if, or to the extent that, such adjustment would case the Plan to violate
Section 423 of the Code.
SECTION 8. ACCRUAL LIMITATIONS
(a) No Eligible Employee shall be entitled to accrue rights to acquire
Common Stock in any Offering under this Plan (which right shall accrue on the
Purchase Date for an Offering Period) if and to the extent such accrual, when
aggregated with (i) rights to purchase Common stock accrued under any other
Offering under this Plan during the same calendar year and (ii) rights accrued
under any other employee stock purchase plan (within the meaning of Section 423
of the Code) of Orion or any Subsidiary during the same calendar year, would
cause such Eligible Employee to be able to purchase more than Twenty-Five
Thousand Dollars ($25,000) worth of Common Stock or stock of any Subsidiary
(determined on the basis of the Fair Market Value of such stock on the date or
dates such rights are granted) for each calendar year such rights are at any
time outstanding.
<PAGE>
SECTION 9. GENERAL PROVISIONS
(a) Neither the Plan nor any action taken hereunder shall be construed as
giving any employee any right to be retained in the employee of Orion or any
Subsidiary, and no employee of any Subsidiary which is not a Participating
Company shall have any claim or right to participate in any Offerings under the
Plan.
(b) No right of an Eligible Employee to purchase Common Stock pursuant to
an Offering under the Plan shall be assigned or transferred by such Eligible
Employee and such rights to purchase Common Stock pursuant to an Offering shall
be exercisable during the lifetime of the Eligible Employee only by the Eligible
Employee.
(c) No Offering shall confer on any Eligible Employee any of the rights
of a stockholder of Orion unless and until Common Stock is duly issued or
transferred to the Eligible Employee in accordance with the terms of the
Offering.
(d) Upon the date of any Corporate Transaction, any outstanding Offering
under the Plan will terminate and such date shall be treated as the Purchase
Date, and in lieu of the issuance of Common Stock to participating Eligible
Employees, there shall be paid for each share of Common Stock, as nearly as
reasonably may be determined, the cash, securities and/or property which a
holder of one share of the Common Stock was entitled to receive upon and at the
time of such Corporate Transaction.
(e) The provisions of the Plan shall be governed by the laws of the State
of New York without resort to the State's conflict -of- laws rules.
SECTION 10. EFFECTIVE DATE; AMENDMENT; TERMINATION
(a) The Plan shall become effective if and when approved by the
stockholders of Orion at the 1998 annual Meeting of Stockholders.
(b) The Board of Directors of Orion may terminate the Plan or amend the
Plan from time to time; provided, however, that the Board of Directors of Orion
shall not, without approval of the stockholders of Orion (i) increase the number
of shares available for purchase pursuant to all Offerings, (ii) change the
class of persons eligible to participate in an Offering under the Plan, or (iii)
reduce the purchase price of Common Stock below that set forth in Section 5(b)
herein.
(c) Unless sooner terminated by the Board of Directors of Orion the Plan
shall terminate when all shares available for issuance under the Plan have been
purchased pursuant to an Offering under the Plan, or the date of any Corporate
Transaction, if earlier.
<PAGE>
EXHIBIT 5
[LETTERHEAD OF MICHAEL P. MALONEY, ESQ.]
May 29, 1998
Orion Capital Corporation
600 Fifth Avenue
New York, New York 10020
Orion Capital Corporation:
In connection with the Registration Statement on Form S-8 relating to
300,000 shares of Common Stock, (par value $1.00 per share) (the Shares) of
Orion Capital Corporation (Orion) under the Employees Stock Purchase Plan
(the Plan), it is my opinion that:
1. Orion is duly incorporated and validly existing in good standing under
the laws of the State of Delaware.
2. All necessary corporate proceedings have been taken to authorize the
issuance of the Shares under the Plan, and all such Shares, upon
issuance in accordance with the Plan and upon full payment in cash for
such Shares issued, will be validly issued and outstanding and fully
paid and non-assessable.
In preparing this opinion, I have examined certificates of public
officials, certificates of officers and copies certified to my satisfaction of
such corporate documents and records of Orion and such other papers as I have
thought relevant and necessary as a basis for my opinion. I have relied on such
certificates in connection with the accuracy of actual matters contained in such
documents which were not independently established.
I consent to the use of this opinion in the Registration Statement and to
the reference to my name under the heading Legal Opinion in the Prospectus. In
giving such consent, I do not admit that I come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, or the
Rules and Regulations of the Securities and Exchange commission.
Very truly yours,
/s/ Michael P. Maloney
---------------------------
Michael P. Maloney
Senior Vice President,
General Counsel and
Secretary
<PAGE>
EXHIBIT 15
May 29, 1998
Orion Capital Corporation
9 Farm Springs Road
Farmington, CT 06032
We have made a review, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited interim financial
information of Orion Capital Corporation and subsidiaries for the periods ended
March 31, 1998 and 1997, as indicated in our report dated April 30, 1998;
because we did not perform an audit, we expressed no opinion on that
information.
We are aware that our report referred to above, which was included in your
Quarterly Report on Form 10-Q for the quarter ended March 31, 1998 is being used
in this Registration Statement on Form S-8.
We are also aware that the aforementioned report, pursuant to Rule 436(c) under
the Securities Act, is not considered a part of the Registration Statement
prepared or certified by an accountant or a report prepared or certified by an
accountant within the meaning of Sections 7 and 11 of that Act.
Deloitte & Touche LLP
Hartford, Connecticut
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Orion Capital Corporation on Form S-8 of our report dated February 11, 1998
appearing in the Annual Report on Form 10-K of Orion Capital Corporation for the
year ended December 31, 1997.
Deloitte & Touche LLP
Hartford, Connecticut
May 29, 1998
