As filed with the Securities and Exchange Commission on September 26, 1997
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CHARTWELL RE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 41-1652573
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
Four Stamford Plaza, P. O. Box 120043
Stamford, Connecticut 06912-0043
(Address of registrant's principal executive offices)
------------------
CHARTWELL RE CORPORATION
1997 OMNIBUS STOCK INCENTIVE PLAN
(Full title of the plan)
KATHLEEN M. CARROLL
Senior Vice President, General Counsel and Secretary
CHARTWELL RE CORPORATION
Four Stamford Plaza, P. O. Box 120043
Stamford, Connecticut 06912-0043
(Name and address of agent for service)
(203) 705-2530
(Telephone number, including area code,
of agent for service)
Copies to:
PETER R. O'FLINN, ESQ.
LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
125 West 55th Street
New York, New York 10019
(212) 424-8000
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title of Amount to be Proposed maximum Proposed maximum Amount of
securities to registered offering price aggregate registration
be registered per unit (1) offering price(1)
- ------------- ------------ ---------------- ---------------- ------------
- ------------- ------------ ---------------- ---------------- ------------
Common Stock, $500,000 $34.9688 $17,484,375 5,298.30
par value
$0.01 per share
(including the
assoiated Common
Stock Purchase
Rights) (2)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) In accordance with Rule 457(c) under the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee
pursuant to Rule 457(h), the maximum offering price per share is based on
the average of the high and low sales prices for a share of Common Stock on
the Composite Tape for the New York Stock Exchange on September 22, 1997.
(2) Prior to the occurrence of certain events, the Common Stock Purchase Rights
will not be evidenced separately from the Common Stock.
(3) Pursuant to Rule 416, this Registration Statement also covers such
indeterminable number of additional shares of Common Stock as may be
issuable pursuant to the antidilution provisions of the Chartwell Re
Corporation 1997 Omnibus Stock Incentive Plan.
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have heretofore been filed by Chartwell
Re Corporation (the "Company" or "Chartwell") with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), are hereby incorporated by reference in this
Registration Statement:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997 and June 30, 1997.
3. The description of the Company's common stock, par value $0.01 per
share (the "Common Stock"), contained in the Company's Registration
Statement on Form S-1, Registration No. 333-678, filed with the Commission
on January 26, 1996, as amended on February 5, 1996, February 29, 1996 and
March 4, 1996, and as updated by pertinent information furnished in
subsequent reports filed pursuant to Section 13 of the Exchange Act.
4. The description of the Common Stock Purchase Rights of the Company
contained in the Company' s Registration Statement on Form 8-A, dated June
5, 1997, filed pursuant to Section 12 (b) of the Exchange Act, including
any amendment or report filed for the purpose of updating such information.
5. The Company's Current Report on Form 8-K dated June 5, 1997.
All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that 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 herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is deemed to be incorporated by reference
herein 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.
The Company hereby undertakes to provide without charge to each
participant in the Chartwell Re 1997 Omnibus Stock Incentive Plan (the "Plan"),
on the written or oral request of any such person, a copy of any or all of the
documents referred to above which have been or may be incorporated in this
Registration Statement by reference, other than exhibits to such documents
(unless such exhibits are specifically incorporated by reference in such
documents). Requests for such copies should be directed to Kathleen M. Carroll,
Senior Vice President, General Counsel and Secretary, Chartwell Re Corporation,
Four Stamford Plaza, P. O. Box 120043, Stamford, Connecticut 06912-0043,
telephone number: (203) 705-2530.
<PAGE>
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The financial statements and schedules of the Company, which are
incorporated herein by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1996, have been audited by Deloitte & Touche
LLP, independent public accountants, as indicated in their reports with respect
thereto. Such financial statements and schedules are included herein in reliance
upon the authority of said firm as experts in accounting and auditing in giving
said reports. Said firm is not employed by the Company on a contingent fee basis
and has no ownership or other interest in the Company or a subsidiary of the
Company.
Kathleen M. Carroll, Esq., whose legal opinion with respect to the
securities registered hereunder is filed as Exhibit 5 hereto, is an employee of
the Company and may participate in certain of the Company's stock benefit plans.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") grants each corporation thereunder, such as the Company, the power
to indemnify directors and officers under certain circumstances. The Company's
Amended and Restated By-Laws (as currently in effect) provide for
indemnification of directors and officers to the fullest extent permitted by
law.
Section 145 of the DGCL provides that under certain circumstances 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, 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 its request in such capacity in another
corporation or business association, against expenses (including attorney's
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 Amended and Restated By-Laws of the Company provide that the
Company shall indemnify any person made, or threatened to be made, a party to
any action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Company or is or was a director or officer of the Company serving at its
request as a director, officer, employee or agent of another enterprise and (ii)
the Company shall pay the expenses, including attorneys' fees, reasonably
incurred by a director or officer in connection with such action, suit or
proceeding if such director or officer acted in good faith and in a manner such
director or officer reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
Company shall pay such expenses incurred by a director or officer in defending
or investigating a threatened or pending action, suit or proceeding, 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 is ultimately determined that the director or officer is not entitled to be
indemnified with respect to such amount by the Company. 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 Company, unless and only to the extent
that the Court of Chancery of the State of Delaware, 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.
<PAGE>
Policies of insurance are maintained under which the Company's
directors and officers are insured, within the limits and subject to the
limitations of the policies, against certain expenses in connection with the
defense of actions, suits or proceedings, and certain liabilities which might be
imposed as a result of such actions, suits or proceedings, to which they are
parties by reason of being or having been such directors or officers.
The Plan provides that all members of the committee administering the
Plan will be indemnified against any liabilities, damages, costs and expenses
(including attorney's fees and amounts paid in settlement of a claim approved by
the Company), occasioned by such member's occupying or having occupied a
position on such committee or otherwise in connection with the administration of
the Plan unless such director acted in bad faith and without reasonable belief
that it was in the best interests of the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No.
4(a) Restated Certificate of Incorporation of the Company, as
amended.
4(b) Amended and Restated By-laws of the Company, as amended
(incorporate by reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-1 (File No. 333-678))
4(c) Rights Agreement, dated as of May 22, 1997 between the
Company and Fleet National Bank of Connecticut (filed as an
Exhibit 4.1 to the Company's Registration Statement on Form
8-K, dated June 5, 1997 and incorporated herein by
reference).
5 Opinion of Kathleen M. Carroll, Esq.
23(a) Consent of Kathleen M. Carroll, Esq.(included in Exhibit 5)
23(b) Consent of Deloitte & Touche LLP
24 Powers of Attorney (see signature pages)
<PAGE>
Item 9. Undertakings.
The Company hereby undertakes:
(a)(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, as amended (the
"Securities Act");
(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;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a) (1)(i) and (a) (1)(ii) do not apply if
the 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 Company pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 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 that remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described under Item 6 above, or otherwise,
the Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in said
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company 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 said Act and will be governed by the final
adjudication of such issue.
<PAGE>
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 Stamford, State of Connecticut, on the 24th day of
September, 1997.
CHARTWELL RE CORPORATION
By: /s/ Richard E. Cole
--------------------------------
Richard E. Cole
Chairman of the Board of Directors
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each officer and director of
Chartwell Re Corporation whose signature follows constitutes and appoints each
of RICHARD E. COLE, STEVEN J. BENSINGER, CHARLES E. MEYERS and KATHLEEN M.
CARROLL as such person's true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for such person and in such person's
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) of and supplements to this Registration
Statement on Form S-8, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto each such attorney-in-fact and agent 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 to all intents and purposes and as fully as
such person might or could do in person, hereby ratifying and confirming all
that each such attorney-in-fact and agent, or a substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date or dates indicated.
<PAGE>
Signature Date
- ------------------- --------------------
/s/ Richard E. Cole September 24, 1997
- ------------------------------
Richard E. Cole
Chairman of the Board and CEO
(principal executive officer)
/s/ Steven J. Bensinger September 24, 1997
- ------------------------------
Steven J. Bensinger
Director
/s/ Jacques Q. Bonneau September 24, 1997
- ------------------------------
Jacques Q. Bonneau
Director
/s/ David J. Callard September 24, 1997
- ------------------------------
David J. Callard
Director
/s/ Robert M. DeMichele September 24, 1997
- ------------------------------
Robert M. DeMichele
Director
/s/ Stephen L. Green September 24, 1997
- ------------------------------
Stephen L. Green
Director
/s/ Frank E. Grzelecki September 24, 1997
- ------------------------------
Frank E. Grzelecki
Director
<PAGE>
Signature Date
- ------------------- --------------------
/s/Charles E. Meyers September 24, 1997
- ------------------------------
Charles E. Meyers
Senior Vice President and
Chief Financial Officer
(principal financial officer)
/s/ Willliam R. Miller September 24, 1997
- ------------------------------
William R. Miller
Director
/s/ Lunsford Richardson, Jr. September 24, 1997
- ------------------------------
Lunsford Richardson, Jr.
Director
/s/ Richard B. Primerano September 24, 1997
- -------------------------------
Richard B. Primerano
Vice President and Controller
(principal accounting officer)
/s/ Stuart S. Richardson September 24, 1997
- -------------------------------
Stuart S. Richardson
Director
/s/ John Sagan September 24, 1997
- -------------------------------
John Sagan
Director
/s/ Bruce W. Schnitzer September 24, 1997
- -------------------------------
Bruce W. Schnitzer
Director
/s/ Stephen L. Wenman September 24, 1997
- -------------------------------
Stephen L. Wenman
Director
<PAGE>
EXHIBIT INDEX
Exhibit
No. Page No.
- --------- ------------
4(a) Restated Certificate of Incorporation of the Company, as amended.
4(b) Amended and Restated By-laws of the Company, as amended
(incorporated by reference to Exhibit 3.2 to the Company's Registration
Statement on Form S-1 (File No. 333-678))
4(c) Rights Agreement, dated as of May 22, 1997, between the Company and
Fleet National Bank of Connecticut (filed as Exhibit 4.1 to the
Company's Registration Statement on Form 8-K, dated June 5, 1997 and
incorporated herein by reference).
5 Opinion of Kathleen M. Carroll, Esq.
23(a) Consent of Kathleen M. Carroll, Esq. (included in Exhibit 5)
23(b) Consent of Deloitte & Touche LLP
24 Powers of Attorney (see signature pages)
EXHIBIT 4
RESTATED
CERTIFICATE OF INCORPORATION
OF
CHARTWELL RE CORPORATION
FIRST: The name of the Corporation is Chartwell Re Corporation (hereinafter
the "Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is The Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of its registered agent at
that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may now or hereafter be organized under the
General Corporation Law of the State of Delaware as set forth in Title 8 of the
Delaware Code (the "GCL").
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 20,000,000 shares of common stock, par value $.01 per
share (the "Common Stock"), and 5,000,000 shares of preferred stock, par value
$1.00 per share (the "Preferred Stock").
Shares of the Preferred Stock of the Corporation may be issued from time to
time in one or more classes or series, each of which class or series shall have
such distinctive designation or title as shall be fixed by the Board of
Directors of the Corporation (the "Board of Directors") prior to the issuance of
any shares thereof. Each such class or series of Preferred Stock shall have such
voting powers, full or limited, or no voting powers, and such preferences and
relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, as shall be stated in such
resolution or resolutions providing for the issue of such class or series of
Preferred Stock as may be adopted from time to time by the Board of Directors
prior to the issuance of any shares thereof pursuant to the authority hereby
expressly vested in it, all in accordance with the laws of the State of
Delaware.
FIFTH: The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors consisting of not less than one
director nor more than fourteen directors, the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors.
The directors shall be divided into three classes, designated Class I, Class II
and Class III. Each class shall consist, as nearly as may be possible, of
one-third of the total number of directors constituting the entire Board of
Directors. The term of the initial Class I directors shall terminate on the date
of the 1996 annual meeting of stockholders; the term of the initial Class II
directors shall terminate on the date of the 1997 annual meeting of stockholders
and the term of the initial Class III directors shall terminate on the date of
the 1998 annual meeting of stockholders. At each annual meeting of stockholders
beginning in 1996, successors to the class of directors whose term expires at
that annual meeting shall be elected for a three-year term. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as nearly equal
as possible, and any additional director of any class elected to fill a vacancy
resulting from an increase in such class shall hold office for a term that shall
coincide with the remaining term of that class, but in no case will a decrease
in the number of directors shorten the term of any incumbent director. A
director shall hold office until the annual meeting for the year in which his
term expires and until his successor shall be elected and shall qualify for
office, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Any vacancy on the Board of Directors,
however resulting, may be filled by an affirmative vote of the majority of the
directors then in office, even if less than a quorum, or by an affirmative vote
of the sole remaining director. Any director elected to fill a vacancy shall
hold office for a term that shall coincide with the term of the class to which
such director shall have been elected.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation or the resolution or resolutions
adopted by the Board of Directors pursuant to Article FOURTH applicable thereto,
and such directors so elected shall not be divided into classes pursuant to this
Article FIFTH unless expressly provided by such terms.
SIXTH: Subject to the rights, if any, of the holders of shares of Preferred
Stock then outstanding, any or all of the directors of the Corporation may be
removed from office at any time, but only for cause and only by the affirmative
vote of the holders of a majority of the outstanding securities of the
Corporation then entitled to vote generally in the election of directors,
considered for purposes of this Article SIXTH as one class.
SEVENTH: Elections of directors at an annual or special meeting of
stockholders shall be by written ballot unless the Bylaws of the Corporation
shall otherwise provide.
EIGHTH: Any action required or permitted to be taken at any annual or
special meeting of stockholders may be taken only upon the vote of the
stockholders at an annual or special meeting duly noticed and called, as
provided in the Bylaws of the Corporation, and may not be taken by a written
consent of the stockholders pursuant to the GCL.
NINTH: Special meetings of the stockholders of the Corporation for any
purposes may be called at any time by the Board of Directors, the Chairman of
the Board of Directors or the President. Special meetings of the stockholders of
the Corporation may not be called by any other person or persons.
TENTH: The officers of the Corporation shall be chosen in such manner,
shall hold their offices for such terms and shall carry out such duties as are
determined solely by the Board of Directors, subject to the right of the Board
of Directors to remove any officer or officers at any time with or without
cause.
ELEVENTH: The Corporation shall indemnify to the full extent authorized or
permitted by law any person made, or threatened to be made, a party to any
action or proceeding (whether civil or criminal or otherwise) by reason of the
fact that he, his testator or intestate, is or was a director or officer of the
Corporation or by reason of the fact that such director or officer, at the
request of the Corporation, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, in
any capacity. Nothing contained herein shall affect any rights to
indemnification to which employees other than directors and officers may be
entitled by law. No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty by such a director as a director. Notwithstanding the foregoing
sentence, a director shall be liable to the extent provided by applicable law
(i) for any breach of the directors duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the Delaware General Corporation Law, or (iv) for any transaction from
which such director derived an improper personal benefit. No amendment to or
repeal of this Article ELEVENTH shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment.
TWELFTH: The provisions set forth in Article II, Section 2 (except for the
first paragraph thereof) and Section 3; Article III, Section 1 (except for the
first paragraph thereof); and Article IX, Section 1 of the By-laws or any
provision contained in this Certificate of Incorporation may be repealed,
altered, amended or rescinded, in whole or in part, or a new Certificate of
Incorporation may be adopted by a majority of the entire Board of Directors then
in office with the consent of stockholders of the Corporation holding at least
sixty-six and two-thirds percent (66 2/3%) of the votes entitled to be cast by
the holders of all outstanding securities which by their terms may be voted on
all matters submitted to stockholders of the Corporation generally.
<PAGE>
Certificate of Designation, Preferences and
Rights of Junior Participating Cumulative Preferred Stock
of
Chartwell Re Corporation
(pursuant to ss. 151 of the Delaware
General Corporation Law)
Chartwell Re Corporation, a Delaware corporation (the "Company"), certifies
that pursuant to the authority contained in its Certificate of Incorporation and
in accordance with Section 151 of the General Corporation Law of the State of
Delaware, its Board of Directors (the "Board of Directors") has adopted the
following resolution creating a series of its Preferred Stock, $1.00 par value,
designated as Junior Participating Cumulative Preferred Stock:
RESOLVED, that pursuant to the authority granted to and vested in the Board
of Directors of the Company in accordance with the provisions of the
Certificate of Incorporation, the Board of Directors hereby creates a
series of Junior Participating Cumulative Preferred Stock, with a par value
of $1.00 per share of the Company and hereby states the designation and
number of shares, and fixes the relative rights, preferences and
limitations thereof (in addition to the provisions in the Certificate of
Incorporation that are applicable to the Preferred Stock of all series as
follows:
Junior Participating Cumulative Preferred Stock
Section I. Designation and Amount. The shares of such series shall be
designated as Junior Participating Cumulative Preferred Stock, with a par value
of $1.00 per share (the "Junior Preferred Shares"), and the number of shares
constituting such series shall be 125,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided,
however, that no decrease shall reduce the number of shares of Junior Preferred
Shares to a number less than the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Company convertible into Junior
Preferred Shares.
Section II. Dividends and Distributions.
A. Subject to the rights of the holders of any shares of any series of
preferred stock (or any similar stock) ranking prior and superior to the Junior
Preferred Shares with respect to dividends, the holders of Junior Preferred
Shares, in preference to the holders of shares of the Company's common stock,
$.01 par value per share (the "Common Shares"), and of any other junior stock
which may be outstanding, shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the first day of January, April, July and
October in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a Junior Preferred Share, in an amount per share
(rounded to the nearest cent) equal to the greater of (i)$25.00 per share
($100.00 per annum), and (ii) subject to the provision for adjustment
hereinafter set forth, the sum of 100 times the aggregate per share amount of
all cash dividends and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions, other than a dividend
payable in Common Shares or a subdivision of the outstanding Common Shares (by
reclassification or otherwise), declared on the Common Shares since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any Junior
Preferred Shares. In the event the Company shall at any time declare or pay any
dividend on Common Shares payable in Common Shares, or effect a subdivision or
combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a dividend in Common Shares)
into a greater or lesser number of Common Shares, then in each such case the
amount to which holders of Junior Preferred Shares were entitled immediately
prior to such event under clause (ii) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of which is the
number of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were outstanding
immediately prior to such event.
B. The Company shall declare a dividend or distribution on the Junior
Preferred Shares as provided in paragraph (A) of this Section immediately after
it declares a dividend or distribution on the Common Shares (other than a
dividend payable in Common Shares); provided, however, that in the event no
dividend or distribution shall have been declared on the Common Shares during
the period between any Quarterly Dividend Payment date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $25.00 per share ($100.00 per
annum) on the Junior Preferred Shares shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
C. Dividends shall begin to accrue and be cumulative on outstanding Junior
Preferred Shares from the Quarterly Dividend Payment Date next preceding the
date of issue of such Junior Preferred Shares, unless (i) the date of issue of
such shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or (ii) the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of Junior Preferred Shares entitled to receive a quarterly dividend and before
such Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall accumulate but shall not bear interest.
Dividends paid on the Junior Preferred Shares in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of Junior Preferred Shares entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be not more than 30
days prior to the date fixed for the payment thereof.
Section III. Voting Rights.
The holders of Junior Preferred Shares shall have the following voting
rights:
A. Subject to the provisions for adjustment as hereinafter set forth,
each Junior Preferred Share shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of the shareholders of the Company. In
the event the Company shall at any time declare or pay any dividend on
Common Shares payable in Common Shares or effect a subdivision or
combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a dividend in Common
Shares) into a greater or lesser number of Common Shares, then in each such
case the number of votes per share to which holders of Junior Preferred
Shares were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which is the number
of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were outstanding
immediately prior to such event.
B. Except as otherwise provided herein, in the Certificate of
Incorporation, as from time to time amended, and/or in any other
resolutions adopted by the Board of Directors creating a series of
preferred stock or any similar stock, or by law, the holders of Junior
Preferred Shares and the holders of Common Shares and any other capital
stock of the Company having general voting rights shall vote together as
one class on all matters submitted to a vote of shareholders of the
Company.
C. If at any time the Company shall not have declared and paid all
accrued and unpaid dividends on the Junior Preferred Shares as provided in
Section 2 hereof for four consecutive quarterly dividend payment dates,
then, in addition to any voting rights provided for in paragraphs (A) and
(B), the holders of the Junior Preferred Shares shall have the exclusive
right, voting separately as a class, to elect two directors to the Board of
Directors of the Company (such directors, the "Preferred Directors"). The
right of the holders of the Junior Preferred Shares to elect the Preferred
Directors shall continue until all such accrued and unpaid dividends shall
have been paid. At such time, the terms of any of the Preferred Directors
shall terminate. At any time when the holders of the Junior Preferred
Shares shall have thus become entitled to elect Preferred Directors, a
special meeting of the holders of the Junior Preferred Shares shall be
called for the purpose of electing such Preferred Directors, to be held
within 30 days after the right of the holders of the Junior Preferred
Shares to elect such Preferred Directors shall arise, upon notice given in
the manner provided by law or the by-laws of the Company for giving notice
of a special meeting of shareholders; provided, however, that such a
special meeting shall not be called if the annual meeting of shareholders
is to convene within such 30-day period. At any such special meeting or at
any annual meeting at which the holders of the Junior Preferred Shares
shall be entitled to elect Preferred Directors, the holders of a majority
of the then outstanding Junior Preferred Shares present in person or by
proxy shall be sufficient to constitute a quorum for the election of such
directors. The persons elected by the holders of the Junior Preferred
Shares at any meeting in accordance with the terms of the preceding
sentence shall become directors on the date of such election.
Section IV. Certain Restrictions.
A. Whenever quarterly dividends or other dividends or distributions payable
on the Junior Preferred Shares as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on Junior Preferred Shares outstanding shall have been paid in
full, the Company shall not:
1. declare or pay dividends or make any other distributions on any
shares or stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding- up) to the Junior Preferred Shares;
2. declare or pay dividends or make any other distributions on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding-up) with the Junior Preferred Shares
except dividends paid ratably on the Junior Preferred Shares and all such
parity stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled;
3. redeem or purchase or otherwise acquire for consideration shares of
any stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding-up) with or junior to the Junior Preferred Shares;
provided, however, that the Company may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for shares of
any stock of the Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding-up) to the Junior Preferred Shares; or
4. purchase or otherwise acquire for consideration any Junior
Preferred Shares, or any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding-up) with the Junior
Preferred Shares, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative
rights and preferences of the respective series or classes, shall determine
in good faith will result in fair and equitable treatment among the
respective series or classes.
B. The Company shall not permit any subsidiary of the Company to purchase
or otherwise acquire for consideration any shares of stock of the Company unless
the Company could, under paragraph (A) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.
Section V. Reacquired Shares. Any Junior Preferred Shares purchased or
otherwise acquired by the Company in any manner whatsoever shall be retired
promptly after the acquisition thereof. All such shares shall upon their
retirement become authorized but unissued shares of preferred stock, without
designation as to series, and may be reissued as part of a new series of
preferred stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein, in the Certificate of Incorporation, in any other resolution of the
Board of Directors creating a series of preferred stock or any similar stock or
as otherwise required by law.
Section VI. Liquidation, Dissolution or Winding-Up. Upon any voluntary or
involuntary liquidation, dissolution or winding- up of the Company, no
distribution shall be made (a) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding-up) to the
Junior Preferred Shares unless prior thereto, the holders of Junior Preferred
Shares shall have received the greater of (i)$100.00 per share, plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, and (ii) an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of Common
Shares, or (b) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding-up) with the Junior
Preferred Shares, except distributions made ratably on the Junior Preferred
Shares and all other such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding-up. In the event the Company shall at any time declare or
pay any dividend on Common Shares payable in Common Shares, or effect a
subdivision or combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a dividend in Common Shares)
into a greater or lesser number of Common Shares, then in each such case the
aggregate amount to which holders of Junior Preferred Shares are entitled
immediately prior to such event under the provisions in clause (a) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of Common Shares outstanding immediately
after such event and the denominator of which is the number of Common Shares
that were outstanding immediately prior to such event.
Section VII. Consolidation, Merger, etc. In case the Company shall enter
into any consolidation, merger, combination or other transaction in which the
Common Shares are exchanged for or changed into other stock or securities, cash
and/or any other property, or otherwise changed, then in any such case each
Junior Preferred Share shall at the same time be similarly exchanged for or
changed into an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each Common Share is changed or exchanged. In the
event the Company shall at any time declare or pay any dividend on Common Shares
payable in Common Shares, or effect a subdivision or combination or
consolidation of the outstanding Common Shares (by reclassification or otherwise
than by payment of a dividend in Common Shares) into a greater or lesser number
of Common Shares, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of Junior Preferred Shares shall
be adjusted by multiplying such amount by a fraction the numerator of which is
the number of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were outstanding
immediately prior to such event.
Section VIII. No Redemption. The Junior Preferred Shares shall not be
redeemable.
Section IX. Rank. Unless otherwise provided in the Certificate of
Incorporation, as it may be from time to time amended, or in resolutions by the
Board of Directors relating to a subsequent series of preferred stock of the
Company, the Junior Preferred Shares shall rank junior to all other series of
the Company's preferred stock as to the payment of dividends and the
distribution of assets on liquidation, dissolution or winding-up, and senior to
the Common Shares.
Section X. Amendment. The Certificate of Incorporation of the Company shall
not be amended in any manner which would materially alter or change the powers,
preferences or special rights of the Junior Preferred Shares so as to affect
them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding Junior Preferred Shares, voting together as a
single series.
Section XI. Fractional Shares. Junior Preferred Shares shall not be issued
in fractions of a share.
RESOLVED, that the proper officers of the company be, and each of them
hereby is, authorized to execute a Certificate of Designation with respect
to the Junior Preferred Stock pursuant to Section 151 of the General
Corporation Law of the State of Delaware and to take all appropriate action
to cause such Certificate to become effective, including, but not limited
to, the filing and recording of such Certificate with and/or by the
Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, I have executed and subscribed to this Certificate and
to affirm the foregoing as true under penalty of perjury this 28th day of May,
1997.
/s/ Steven J. Bensinger
-----------------------------------
Name: Steven J. Bensinger
Title: President
EXHIBIT 5
September 24, 1997
Chartwell Re Corporation
Four Stamford Plaza
P. O. Box 120043
Stamford, CT 06912-0043
Ladies and Gentlemen:
I am familiar with the Chartwell Re Corporation 1997 Omnibus Stock Incentive
Plan (the "Omnibus Plan") of Chartwell Re Corporation, a Delaware corporation
("Chartwell"), under which 607,000 shares of common stock, $.01 par value per
share (the "Common Shares"), have been authorized for issuance by Chartwell. I
have acted as counsel to Chartwell in connection with the preparation and filing
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act"), of a Registration Statement on Form S-8 (the "Registration
Statement") with respect to the registration under the Act of 500,000 of the
Common Shares and the Common Stock Purchase Rights (the "Rights") associated
therewith pursuant to the Rights Agreement, dated May 22, 1997, between the
Company and Fleet National Bank of Connecticut, as Rights Agent (the
"Agreement"). In this connection, I have examined such records, documents and
proceedings as I have deemed relevant and necessary as a basis for the opinion
expressed herein. Stock options ("Options") with respect to an aggregate of
370,500 Common Shares have been granted under the Omnibus Plan.
Based upon and subject to the foregoing, I am of the opinion that the Common
Shares and Rights reserved for issuance upon the exercise of Options have been
duly authorized and that such Common Shares and Rights when issued and delivered
upon exercise of Options or otherwise in accordance with the terms of the
Omnibus Plan, will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an Exhibit to the Registration
Statement and to the reference to me in Item 5, Interests of Named Experts and
Counsel, of the registration Statement.
Very truly yours,
Kathleen M. Carroll
Senior Vice President, General Counsel
and Secretary
Exhibit 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Chartwell Re Corporation on Form S-8 of our report dated February 5, 1997,
appearing in the Annual Report on Form 10-K of Chartwell Re Corporation for the
year ended December 31, 1996 and to the reference to us under the heading "Item
5. Interests of Named Experts and Counsel" appearing in this Registration
Statement.
/s/ Deloitte & Touche LLP
Parsippany, New Jersey
September 24, 1997
