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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
Executive Risk Inc.
(Name of Issuer)
Common Stock, Par Value $0.01 per share
(Title of Class of Securities)
301 586 103
(CUSIP Number)
Patrick A. Gerschel, Gerschel & Company, 720 Fifth Avenue, New York, New York,
10019
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
February 6, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box. [ ]
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1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patrick A. Gerschel
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
N.A.
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
7 SOLE VOTING POWER
NUMBER OF --
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 724,318 shares (see the Voting Agreement described herein)
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH
--
10 SHARED DISPOSITIVE POWER
724,318 shares (see the Voting Agreement described herein)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
724,318 SHARES
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.5%
14 TYPE OF REPORTING PERSON
IN
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This statement constitutes the first electronic amendment to a
paper format Schedule 13D filed on March 31, 1994. In accordance with Rule
101(a)(2)(ii) of Regulation S-T, it restates the entire text of the Schedule
13D, amended as of the date of this filing.
Item 1. Security and Issuer.
This statement relates to the common stock, par value $.01 per
share (the "Common Stock"), of Executive Risk Inc., a Delaware corporation (the
"Issuer"). The principal executive offices of the Issuer are located at 82
Hopmeadow Street, Simsbury, Connecticut 06070.
Item 2. Identity and Background.
This statement is filed by Patrick A. Gerschel, an individual
(the "Filing Person"). The business address of the Filing Person is 720 Fifth
Avenue, New York, New York 10019. The Filing Person's present principal
occupation is Chairman, Gerschel & Company. Gerschel & Company is a merchant
banking firm, and its address is 720 Fifth Avenue, New York, New York 10019.
The Filing Person has not during the last five years been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws. The
Filing Person is a United States citizen.
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Item 3. Source and Amount of Funds or Other Consideration.
The aggregate amount of consideration used in making the
purchase of the shares covered hereby was $6,634,651. The source of these
funds was the personal funds of the Filing Person.
Item 4. Purpose of Transaction.
The purchases by the Filing Person of the shares of Common Stock covered
hereby were made for investment purposes.
The Filing Person and The Chubb Corporation, a New Jersey
corporation ("Chubb"), are parties to a Voting Agreement, dated as of February
6, 1999 (the "Voting Agreement"). The Voting Agreement provides that the Filing
Person (a) vote his shares for the merger contemplated by the Agreement and Plan
of Merger, dated as of February 6, 1999 (the "Merger Agreement") among the
Issuer, Chubb and a subsidiary of Chubb and against certain contrary
transactions, (b) grant Chubb a proxy to vote such shares for such purposes and
(c) not dispose of any shares except as may be necessary to satisfy tax
liabilities. The Voting Agreement will terminate upon the termination of the
Merger Agreement. The foregoing description of the Voting Agreement is qualified
in its entirety by reference to the full text of such document, which is filed
as an exhibit hereto and incorporated herein by reference. The Merger Agreement
was filed as an exhibit to the Issuer's Current Report on Form 8-K dated as of
February 9, 1999.
Except as provided in the Voting Agreement, the Filing Person
has no present plans or proposals which relate to or would result in any of the
matters set forth in paragraphs (a)-(j) of Item 4 of Schedule 13D.
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Item 5. Interest in Securities of the Issuer.
(a) The Filing Person beneficially owns 724,318 shares of
Common Stock, including 6,956 shares issuable upon the exercise of options. The
Issuer's Current Report on Form 8-K dated February 9, 1999 indicates that
11,117,526 shares of Common Stock were outstanding as of February 1, 1999. Based
upon such number of outstanding shares, the Filing Person owns approximately
6.5% of the outstanding shares of Common Stock (calculated in accordance with
Rule 13d-3 under the Securities Exchange Act of 1934).
(b) Except as provided in the Voting Agreement, the Filing
Person has the sole power to vote or to direct the vote and sole power to
dispose of or to direct the disposition of the shares of Common Stock described
in Item 5(a) hereof (in the case of shares issuable upon the exercise of
options, the Filing Person has no rights with respect to voting or disposition
until such time, if any, that such options are exercised).
(c) Other than the execution of the Voting Agreement, the
Filing Person has effected no transactions in the Common Stock during the past
60 days.
(d) No person other than the Filing Person has the right to
receive or the power to direct the receipt of dividends from the Common Stock
owned by the Filing Person.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
The Filing Person has served as a director of the Issuer since
January 1994 and as a director of subsidiaries of the Issuer since July 1990.
Except as set forth in this Schedule 13D, there are no contracts, arrangements,
understandings or relationships between the Filing Person and any other person
with respect to any securities of the Issuer, including any contract,
arrangement, understanding or relationship concerning the transfer or the voting
of any securities
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of the Issuer, finder's fees, joint ventures, loan or option arrangements, puts
or calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
Item 7. Material to be Filed as Exhibits.
1. Voting Agreement.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in the statement is true,
complete and correct.
/s/ Patrick A. Gerschel
------------------------
Patrick A. Gerschel
Date: February 10, 1999
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Exhibit 1
CONFORMED COPY
VOTING AGREEMENT
AGREEMENT, dated as of February 6, 1999 between The Chubb Corporation a
New Jersey corporation ("BUYER"), and each other person set forth on the
signature pages hereof (each a "STOCKHOLDER" and collectively the
"STOCKHOLDERS"). Capitalized terms used but not separately defined herein shall
have the meanings assigned to such terms in the Merger Agreement (as defined
below).
WHEREAS, in order to induce Buyer and Excalibur Acquisition, Inc., a
Delaware Corporation ("MERGER SUBSIDIARY") to enter into an Agreement and Plan
of Merger, dated as of the date hereof (as the same may be amended from time to
time, the "MERGER AGREEMENT"), with Executive Risk Inc., a Delaware corporation
(the "COMPANY"), Buyer has requested the Stockholders, and each Stockholder has
agreed, to enter into this Agreement with respect to shares of common stock, par
value $.01 per share, of the Company (the "COMMON STOCK") that each Stockholder
beneficially owns and shares of Common Stock that each Stockholder may hereafter
acquire (collectively, the "SHARES").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
GRANT OF PROXY; VOTING AGREEMENT
SECTION 1.01. Voting Agreement. (a) Each Stockholder hereby irrevocably
and unconditionally agrees to vote all Shares that each Stockholder is entitled
to vote, at the time of any vote to approve and adopt the Merger Agreement, the
Merger and all agreements related to the Merger and any actions related thereto
at any meeting of the stockholders of the Company, and at any adjournment
thereof, at which such Merger Agreement and other related agreements (or any
amended version thereof), or such other actions, are submitted for the
consideration and vote of the stockholders of the Company, in favor of the
approval and adoption of the Merger Agreement, the Merger and the transactions
contemplated by the Merger Agreement.
(b) Each Stockholder hereby agrees that it will not vote any Shares in
favor of the approval of any (i) Acquisition Proposal, (ii) reorganization,
recapitalization, liquidation or winding up of the Company or any other
extraordinary transaction involving the Company, (iii) corporate action the
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consummation of which would frustrate the purposes, or prevent or delay the
consummation, of the transactions contemplated by the Merger Agreement or (iv)
other matter relating to, or in connection with, any of the foregoing matters.
SECTION 1.02. Irrevocable Proxy. Each Stockholder hereby revokes any
and all previous proxies granted with respect to the Shares. By entering into
this Agreement, each Stockholder hereby grants a proxy appointing Buyer as the
Stockholder's attorney-in-fact and proxy, with full power of substitution, for
and in the Stockholder's name, to vote, express, consent or dissent, or
otherwise to utilize such voting power in the manner contemplated by Section
1.01 above as Buyer or its proxy or substitute shall, in Buyer's sole
discretion, deem proper with respect to the Shares. The proxy granted by each
Stockholder pursuant to this Article 1 is irrevocable and is granted in
consideration of Buyer entering into this Agreement and the Merger Agreement and
incurring certain related fees and expenses. The proxy granted by each
Stockholder shall be revoked upon termination of this Agreement in accordance
with its terms.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder represents and warrants to Buyer that:
SECTION 2.01. Authorization. The execution, delivery and performance by
Stockholder of this Agreement and the consummation by Stockholder of the
transactions contemplated hereby are within the powers of Stockholder. This
Agreement constitutes a valid and binding Agreement of Stockholder. If the
Stockholder is married and the Shares set forth on the signature page hereto
opposite such Stockholder's name constitute community property under applicable
laws, this Agreement has been duly authorized, executed and delivered by, and
constitutes the valid and binding agreement of, such Stockholder's spouse.
SECTION 2.02. Non-Contravention. The execution, delivery and
performance by Stockholder of this Agreement and the consummation of the
transactions contemplated hereby do not and will not, (i) violate any applicable
law, rule, regulation, judgment, injunction, order or decree, (ii) require any
consent or other action by any Person under, constitute a default under, or give
rise to any right of termination, cancellation or acceleration or to a loss of
any benefit to which Stockholder is entitled under any provision of any
agreement or other instrument binding on Stockholder or (iii) result in the
imposition of any
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Lien on any asset of Stockholder, other than, in respect of each of clauses (i),
(ii) and (iii), any such items as would not, individually or in the aggregate,
prevent or materially impair the ability of Stockholder to consummate the
transactions contemplated by this Agreement.
SECTION 2.03. Ownership of Shares. Stockholder is the beneficial owner
of the Shares, free and clear of any Lien and any other limitation or
restriction (including any restriction on the right to vote or otherwise dispose
of the Shares). None of the Shares is subject to any voting trust or other
agreement or arrangement with respect to the voting of such Shares.
SECTION 2.04. Total Shares. Except for the Shares, Stockholder does not
beneficially own any (i) shares of capital stock or voting securities of the
Company, (ii) securities of the Company convertible into or exchangeable for
shares of capital stock or voting securities of the Company or (iii) options or
other rights to acquire from the Company any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of the Company.
SECTION 2.05. Finder's Fees. No investment banker, broker, finder or
other intermediary is entitled to a fee or commission from Buyer or the Company
in respect of this Agreement based upon any arrangement or agreement made by or
on behalf of Stockholder.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to each Stockholder:
SECTION 3.01. Corporate Authorization. The execution, delivery and
performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby are within the corporate powers of Buyer and
have been duly authorized by all necessary corporate action. This Agreement
constitutes a valid and binding Agreement of Buyer.
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ARTICLE 4
COVENANTS OF STOCKHOLDERS
Each Stockholder hereby covenants and agrees that:
SECTION 4.01. No Proxies for or Encumbrances on Shares. Except pursuant
to the terms of this Agreement, Stockholder shall not, without the prior written
consent of Buyer, directly or indirectly, (i) grant any proxies or enter into
any voting trust or other agreement or arrangement with respect to the voting of
any Shares or (ii) sell, assign, transfer, encumber or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to the direct or indirect sale, assignment, transfer, encumbrance or
other disposition of, any shares of Common Stock during the term of this
Agreement; provided, however, that Stockholder may sell such number of Shares as
may be necessary to satisfy tax liabilities of such Stockholder. Stockholder
shall not seek or solicit any such acquisition or sale, assignment, transfer,
encumbrance or other disposition or any such contract, option or other
arrangement or understanding and agrees to notify Buyer promptly, and to provide
all details requested by Buyer, if Stockholder shall be approached or solicited,
directly or indirectly, by any Person with respect to any of the foregoing.
SECTION 4.02. No Solicitation. (a) From the date hereof until the
termination hereof, Stockholder, in its capacity as a Stockholder, will not, and
will authorize or knowingly permit any investment bankers, attorneys,
accountants, consultants and other agents or advisors ("REPRESENTATIVES") of
Stockholder not to, directly or indirectly, (i) take any action to solicit,
initiate or facilitate or encourage the submission of any Acquisition Proposal,
(ii) engage in any negotiations regarding, or furnish to any person any
nonpublic information with respect to, or take any other action knowingly to
facilitate any inquiries or the making of any proposal that constitutes, or may
be reasonably expected to lead to, any Acquisition Proposal or (iii) grant any
waiver or release under any standstill or similar agreement to which Stockholder
is a party with respect to any class of equity securities of the Company;
provided, that notwithstanding any other provision of this Agreement,
Stockholder may take any action in its capacity as a director of the Company
that the Board of Directors would be permitted to take in accordance with the
terms and conditions of the Merger Agreement.
(b) Stockholder will notify Buyer promptly (but in no event later than
24 hours) upon obtaining any knowledge of any Acquisition Proposal or of any
request for nonpublic information relating to the Company or any of its
Subsidiaries or for access to the properties, books or records of the Company or
any of its Subsidiaries or any request for a waiver or release under any
standstill or similar agreement by any Person who indicates that it is
considering making, or has made, an Acquisition Proposal. The notice shall state
the identity of the offer or and the material terms and conditions of such
proposal, inquiry, contact or request. Stockholder shall keep Buyer reasonably
apprised of any material
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development with respect to such proposal. Stockholder shall, and shall cause
its Representatives to, cease immediately and cause to be terminated all
existing discussions or negotiations, if any, with any Persons conducted
heretofore with respect to, or that could reasonably expected to lead to, any
Acquisition Proposal.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Further Assurances. Buyer and each Stockholder will
execute and deliver, or cause to be executed and delivered, all further
documents and instruments and use their reasonable best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations, to
consummate and make effective the transactions contemplated by this Agreement.
SECTION 5.02. Amendments; Termination. Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement or
in the case of a waiver, by the party against whom the waiver is to be
effective. This Agreement shall terminate upon the termination of the Merger
Agreement in accordance with its terms.
SECTION 5.03. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
SECTION 5.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other parties hereto, except that Buyer may transfer
or assign its rights and obligations to any Affiliate of Buyer.
SECTION 5.05. Governing Law. This Agreement shall construed in
accordance with and governed by the laws of the State of Delaware.
SECTION 5.06. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
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SECTION 5.07. Severability. If any term, provision or covenant of this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions and
covenants of this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
SECTION 5.08. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement is
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof in addition to any other
remedy to which they are entitled at law or in equity.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
THE CHUBB CORPORATION
By: /s/ Dean R. O'Hare
Name: Dean R. O'Hare
Title: Chairman and Chief Executive
Officer
No. of shares of Common Stock
of the Company beneficially
owned as of February 1,
1999:(1)
/s/ Robert H. Kullas 143,930
Name: Robert H. Kullas
/s/ Stephen J. Sills 485,824
Name: Stephen J. Sills
/s/ Robert V. Deutsch 373,275
Name: Robert V. Deutsch
/s/ Gary G. Benanav 15,687
Name: Gary G. Benanav
/s/ Barbara G. Cohen 3,017
Name: Barbara G. Cohen
/s/ John G. Crosby 16,748
Name: John G. Crosby
/s/ Patrick A. Gerschel 724,318
Name: Patrick A. Gerschel
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(1) Please include shares of Common Stock subject to option.
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/s/ Peter Goldberg 8,740
Name: Peter Goldberg
/s/ Michael D. Rice 11,984
Name: Michael D. Rice
/s/ Joseph D. Sargent 42,543
Name: Joseph D. Sargent
/s/ Irving B. Yoskowitz 2,366
Name: Irving B. Yoskowitz
