<PAGE>
As filed with the Securities and
Exchange Commission on June 12, 1996
Registration No. 333-
____________
- ------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
EVEREST REINSURANCE HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Three Gateway Center
DELAWARE Newark, New Jersey 07102-4077 22-3263609
- -------- ------------------------------- ----------
(State or other (Address of Principal Executive (I.R.S.
jurisdiction of Offices) (Zip Code) Employer
incorporation or Identification
organization) No.)
1995 Stock Option Plan for
Non-Employee Directors
(Full Title of the Plan)
--------------------------
Janet Burak Melchione, Esq.
Three Gateway Center
Newark, New Jersey 07102-4077
(Name and address of agent for service)
Telephone number, including area code,
of agent for service: (201) 802-6996
---------------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
Title of securities Amount to be Proposed maximum
to be registered registered offering price per share(1)
- ------------------- ------------ ---------------------------
- ------------------------------------------------------------------
Common Stock 50,000 shares $24.3125
Proposed maximum
aggregate offering Amount of
price(1) registration fee
- ------------------ ----------------
$1,215,625 $419.18
- ------------------------------------------------------------------
(1) Pursuant to Rule 457(h), these prices are estimated solely
for the purpose of calculating the registration fee and are based
upon the average of the high and low sales prices of Registrant's
common stock on the New York Stock Exchange on June 7, 1996.
There are also registered hereunder such additional
indeterminate number of shares as may be issued as a result of the
antidilution provisions of the 1995 Stock Option Plan for
Non-Employee Directors.<PAGE>
<PAGE>
PART I
Item 1. PLAN INFORMATION.
Not included pursuant to Form S-8 instructions.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION.
Not included pursuant to Form S-8 instructions.
PART II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this registration
statement the following documents and information heretofore filed
by Everest Reinsurance Holdings, Inc. (the "Company") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
with the Securities and Exchange Commission (the "Commission"):
(1) the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995;
(2) the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1996; and
(3) the description of the common stock of the Company
which is contained in the Company's registration
statement on Form 8-A filed with the Commission on
June 15, 1995 pursuant to Section 12 of the Exchange
Act, including any amendments or reports filed for
the purpose of updating such description.
All reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, after the date of this registration statement and
prior to the filing of a post-effective amendment which indicates
that all securities offered hereby 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 the filing of such reports
and other documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Janet Burak Melchione, Esq. beneficially owns 100 shares
of the common stock of the Company and has the right to
purchase an additional 10,000 shares upon the exercise of
stock options held by her.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the
"DGCL") permits the Company to indemnify its directors, officers,
employees and agents (each an "Insider") against liability for each
such Insider's acts taken in his or her capacity as an Insider in a
civil action, suit or proceeding if such actions were taken in good
faith and in a manner which the Insider believed to be in or not
opposed to the best interests of the Company, and in a criminal
action, suit or proceeding, if the Insider had no reasonable cause to
believe his or her conduct was unlawful, including under certain
circumstances, suits by or in the right of the Company for any
expenses, including attorneys' fees, and for any liabilities which
the Insider may have incurred in consequences of such action, suit or<PAGE>
<PAGE>
proceeding under conditions stated in said Section 145. Article VI
of the Company's By-Laws provides that the Company shall, to the full
extent permitted by Delaware law, indemnify each person who is or was
a director, officer, employee or agent of the Company and may
indemnify each person who is or was serving at the request of the
Company as director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, employee
benefit plan or other enterprise.
As permitted by Section 102(b)(7) of the DGCL, Article VII of
the Company's Certificate of Incorporation provides that a director
of the Company will not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL,
as amended, which concerns unlawful payments of dividends, stock
purchases or redemption, or (iv) for any transaction from which the
director derived an improper personal benefit. Such Article VII also
provides that the Company will indemnify officers, directors,
employees and agents of the Company to the fullest extent permitted
under the DGCL and advance expenses incurred by such officers,
directors, employees and agents in relation to any action, suit or
proceeding.
The Company's directors and officers will be covered under
liability insurance policies which afford officers and directors with
insurance coverage for losses arising from claims based on breaches
of duty, negligence, error and other wrongful acts.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
Exhibit
Number Description
4.1 Certificate of Incorporation as amended
through May 24, 1996
4.2 By-Laws as amended through February 3,
1995
4.3 1995 Stock Option Plan for Non-Employee
Directors, as amended
5 Opinion re legality of Janet Burak Melchione,
Esq., including her consent
23 Consent of Deloitte & Touche LLP
24 Power of Attorney executed by certain
officers and directors of the Company
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 of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed <PAGE>
<PAGE>
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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) of this
section do not apply if the registration statement is on Form S-3,
Form S-8 or Form F-3, and the information required to be included in
a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrant 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 of 1933, 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 of
1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, 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.
(h) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the 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 the 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 Act and will be
governed by the final adjudication of such issue.<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that
it meets all 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 Newark, State
of New Jersey, on June 10, 1996.
Everest Reinsurance Holdings, Inc.
By: /s/ Joseph V. Taranto
________________________________
Name: Joseph V. Taranto
Title: Chairman of the Board of
Directors and Chief
Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Janet Burak
Melchione and Robert P. Jacobson, and each of them severally, his
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement,
and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and
agents or either of them, or their or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature Title Date
/s/ Joseph V. Taranto
_______________________ Chairman of the Board June 10, 1996
Joseph V. Taranto of Directors and Chief
Executive Officer and
President
/s/ Robert P. Jacobson
_______________________ Director, Senior Vice June 10, 1996
Robert P. Jacobson President, Chief
Financial Officer, and
Comptroller (Principal
Accounting and Financial
Officer)
/s/ Thomas J. Gallagher
_______________________ Director June 10, 1996
Thomas J. Gallagher
/s/ William F. Galtney
_______________________ Director June 10, 1996
William F. Galtney, Jr.
/s/ Martin Abrahams
_______________________ Director June 10, 1996
Martin Abrahams
/s/ Kenneth J. Duffy
_______________________ Director June 10, 1996
Kenneth J. Duffy<PAGE>
<PAGE>
INDEX TO EXHIBITS
The following documents are filed as part of this Registration
Statement:
Exhibit Location
4.1 Certificate of Incorporation Attached
of the Company, as amended
4.2 By-Laws of the Company, as Incorporated by
amended reference from
Exhibit 3.2 to
the Company's
and restated
Registration
Statement on
Form S-1.
Registration
Statement
No. 33-71652.
4.3 1995 Stock Option Plan for Attached.
Non-Employee Directors, as
amended
5 Opinion re legality of Attached.
Janet Burak Melchione, Esq.,
including her consent
23 Consent of Deloitte & Attached.
Touche LLP
24 Power of Attorney Included on
signature page.
<PAGE>
EXHIBIT 4.1
CERTIFICATE OF INCORPORATION
OF
EVEREST REINSURANCE HOLDINGS, INC.
ARTICLE I
Name Of The Corporation
-----------------------
The name of the Corporation is:
Everest Reinsurance Holdings, Inc.
ARTICLE II
Registered Agent And Registered Office
--------------------------------------
The address of its registered office in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of
New Castle. The name of its registered agent at such address is
United States Corporation Company.
ARTICLE III
Purpose Of The Corporation
--------------------------
The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation
Law.
ARTICLE IV
Authorized Capital Stock
------------------------
The total number of shares of all classes of capital
stock which the Corporation shall have authority to issue is two
hundred and fifty million (250,000,000), consisting of two hundred
million (200,000,000) shares of common stock, par value $.01 per
share (hereinafter called the "Common Stock"), and fifty million
(50,000,000) shares of preferred stock, par value $.01 per share
(hereinafter called the "Preferred Stock").
<PAGE>
The following is a description of each of the classes of
stock of the Corporation and statement of the powers, preferences and
rights of such stock, and the qualifications, limitations and
restrictions thereof:
A. Authority of the Board of Directors. The
Preferred Stock may be issued, from time to time, in one or more
series, and each series shall be known and designated by such
designations as may be stated and expressed in a resolution or
resolutions adopted by the Board of Directors of the Corporation and
as shall have been set forth in a certificate made, executed,
acknowledged, filed and recorded in the manner required by the laws
of the State of Delaware in order to make the same effective. Each
series shall consist of such number of shares as shall be stated and
expressed in such resolution or resolutions providing for the issue
of Preferred Stock of such series together with such additional
number of shares as the Board of Directors by resolution or
resolutions may from time to time determine to issue as a part of
such series. All shares of any one series of such Preferred Stock
shall be alike in every particular except that shares issued at
different times may accumulate dividends from different dates. The
Board of Directors shall have the power and authority to state and
determine in the resolution or resolutions providing for the issue of
each series of Preferred Stock the number of shares of each such
series authorized to be issued, the voting powers (if any) and the
designations, preferences and relative, participating, optional or
other rights appertaining to each such series, and the
qualifications, limitations or restrictions thereof (including, but
not by way of limitation, full power and authority to determine as to
the Preferred Stock of each such series, the rate or rates of
dividends payable thereon, the times of payment of such dividends,
the prices and manner upon which the same may be redeemed, the amount
or amounts payable thereon in the event of liquidation, dissolution
or winding-up of the Corporation or in the event of any merger or
consolidation of or sale of assets by the Corporation, the rights (if
any) to convert the same into, and/or to purchase, stock of any other
class or series, the terms of any sinking fund or redemption or
purchase account (if any) to be provided for shares of such series of
the Preferred Stock, and the voting powers (if any) of the holders of
any series of Preferred Stock generally or with respect to any
particular matter, which may be less than, equal to or greater than
one vote per share, and which may, without limiting the generality of
the foregoing, include the right, voting as a series by
<PAGE>
itself or together with the holders of any other series of Preferred
Stock or all series of Preferred Stock as a class, to elect one or
more directors of the Corporation generally or under such specific
circumstances and on such conditions, as shall be provided in the
resolution or resolutions of the Board of Directors adopted pursuant
hereto, including, without limitation, in the event there shall have
been a default in the payment of dividends on or redemption of any
one or more series of Preferred Stock). The Board of Directors may
from time to time decrease the number of shares of any series of
Preferred Stock (but not below the number thereof then outstanding)
by providing that any unissued shares previously assigned to such
series shall no longer constitute part thereof and may assign such
unissued shares to an existing or newly created series. The
foregoing provisions of this paragraph A with respect to the creation
or issuance of series of Preferred Stock shall be subject to any
additional conditions with respect thereto which may be contained in
any resolutions then in effect which shall have theretofore been
adopted in accordance with the foregoing provisions of this Paragraph
A with respect to any then outstanding series of Preferred Stock.
B. Voting Rights.
-------------
1. Common. Except as may otherwise be
required by law and subject to the provisions of such resolution or
resolutions as may be adopted by the Board of Directors pursuant to
Paragraph A of this Article IV granting the holders of one or more
series of Preferred Stock exclusive voting powers with respect to any
matter, each holder of Common Stock shall have one vote in respect of
each share of Common Stock held on all matters voted upon by the
stockholders.
2. Preferred. The Preferred Stock shall
have no voting rights and shall have no rights to receive notice of
any meetings except as required by law or expressly provided in the
resolution establishing any series thereof.
C. Terms of Common Stock. The Common Stock
shall be subject to the express terms of the Preferred Stock and any
series thereof. Each share of Common Stock shall be equal to every
other share of Common Stock.
After the provisions with respect to preferential
dividends, if any, on any series of Preferred Stock (fixed in
accordance with the provisions of Paragraph A of this Article IV)
shall have been satisfied and after the
<PAGE>
Corporation shall have complied with all the requirements, if any,
with respect to redemption of, or the setting aside of sums such as
sinking funds or redemption or purchase accounts with respect to, any
series of Preferred Stock (fixed in accordance with the provisions of
Paragraph A of this Article IV), and subject further to any other
conditions that may be fixed in accordance with the provisions of
Paragraph A of this Article IV, then, and not otherwise, the holders
of Common Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors.
In the event of the voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, after distribution in
full of the preferential amounts, if any (fixed in accordance with
the provisions of Paragraph A of this Article IV), to be distributed
to the holders of Preferred Stock by reason thereof, the holders of
Common Stock shall, subject to the additional rights, if any (fixed
in accordance with the provisions of Paragraph A of this Article IV),
of the holders of any outstanding shares of Preferred Stock, be
entitled to receive all of the remaining assets of the Corporation,
tangible and intangible, of whatever kind available for distribution
to stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
The authorized amount or shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased or
decreased from time to time by the affirmative vote of the holders of
a majority of the combined voting power of the then-outstanding
shares of capital stock of the Corporation that pursuant to the
Certificate of Incorporation are entitled to vote generally in the
election of directors of the Corporation, voting together as a single
class.
ARTICLE V
Corporate Existence
-------------------
The Corporation is to have perpetual existence.
ARTICLE VI
Amendment Of The By-Laws
------------------------
In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized
to make, alter or repeal the By-Laws of the corporation.
<PAGE>
ARTICLE VII
Director Liability; Indemnification; Insurance
----------------------------------------------
A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i)
for any breach of the director's 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) under Section 174 of the Delaware General Corporation Law, as
the same exists or hereafter may be amended, or (iv) for any
transaction from which the director derived an improper personal
benefit. If the Delaware General Corporation Law hereafter is
amended to authorize the further elimination or limitation of the
liability of the directors, then the liability of a director shall be
eliminated or limited to the fullest extent permitted by the amended
Delaware General Corporation Law. In addition to the limitation on
personal liability of directors provided herein, the Corporation
shall, to the fullest extent permitted by the Delaware General
Corporation Law: (x) indemnify its officers, directors, employees
and agents and (y) advance expenses incurred by such officers,
directors, employees or agents in relation to any action, suit or
proceeding. Any repeal or modification of this paragraph by the
stockholders of the Corporation shall be prospective only, and shall
not adversely affect any limitation on the personal liability or
right to indemnification or advancement of expenses hereunder
existing at the time of such repeal or modification.
The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and
incurred by him in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of the
Delaware General Corporation Law.
ARTICLE VIII
Election of Directors
---------------------
A. Except as otherwise provided by law, the number of
directors which shall constitute the Board shall
<PAGE>
be as set forth in the Corporation's By-Laws and, in any event, shall
not be less than three (3). The directors of the Corporation shall be
elected at the annual meeting of stockholders in each year. Elections of
directors need not be by written ballot. The directors of the Corporation
shall be divided into three classes: Class I, Class II and Class
III. The number of directors in each class shall be divided equally
so far as possible among the three Classes. The initial Class I,
Class II and Class III directors shall be designated and the terms of
the Board shall be as follows:
(i) Class I directors shall be elected to
serve until the 1994 Annual Meeting of Stockholders,
(ii) Class II directors shall be elected to
serve until the 1995 Annual Meeting of Stockholders, and
(iii) Class III directors shall be elected to
serve until the 1996 Annual Meeting of Stockholders,
and until their successors shall be duly elected and qualified. At
each annual election of directors, beginning with the 1994 annual
election, the successors to the directors of each class whose term
shall expire at such meeting shall be elected to hold office for a
term of three years from the date of their election and until their
successors shall be duly elected and qualified. In case of any
increase or decrease in the number of directors, the increase or
decrease shall be apportioned by the directors among the several
classes as nearly equally as possible; provided, however, that any
decrease in the number of directors which shall cause a director to
be removed prior to the expiration of his term shall be subject to
the provisions of Paragraph (B) of this Article VIII.
B. Anything herein to the contrary notwithstanding,
the provisions of this Article VIII shall apply only to directors
elected by holders of Common Stock together with holders of all other
classes of the Corporation's capital stock voting as a single class
therewith on the election of Directors. If holders of any class of
the Corporation's capital stock have the right to elect directors
voting as a separate class and such right be then in effect, the
maximum number of directors which such holders may so elect and upon
termination of such right the number shall be reduced to the extent
it was previously so increased.
C. Notwithstanding any other provisions of this
Certificate of Incorporation or the Bylaws (and notwithstanding the
fact that some lesser percentage may be
<PAGE>
specified by law, this Certificate of Incorporation or the Bylaws), the
affirmative vote of the holders of 66-2/3% or more of the outstanding
shares of capital stock of the Corporation entitled to vote on such
amendment, alteration, change or repeal (considered for this purpose as
one class) shall be required to amend, alter, change or repeal this
Article VIII.
ARTICLE IX
Compromise or Arrangement
-------------------------
Whenever a compromise or arrangement is proposed between
the Corporation and its creditors or any class of them and/or between
the Corporation and its stockholders or any class of them, any court
of equitable jurisdiction within the State of Delaware may, on the
application in a summary way of the Corporation or of any creditor or
stockholder thereof or on the application of any receiver or
receivers appointed for the Corporation under the provisions of
Section 291 of the Delaware General Corporation Law or on the
application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provisions of
Section 279 of the Delaware General Corporation Law, order a meeting
of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of the Corporation, as the case may be, to be
summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class
of creditors, and/or of the stockholders or class of stockholders the
Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as a
consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the
court to which the said application has been made, be binding on all
the creditors or class of creditors, and/or on all the stockholders
or class of stockholders, of the corporation, as the case may be, and
also on the Corporation.
ARTICLE X
Further Amendments
------------------
Subject to the provisions hereof, the Corporation
reserves the right at any time, and from time to time, to amend,
alter, repeal, or rescind any provision contained herein, in the
manner now or hereafter prescribed by law, and other provisions
authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner now or hereafter prescribed
by law; and all
<PAGE>
rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors, or any other persons whomsoever by and pursuant
to this Certificate of Incorporation in its present form or as hereafter
amended are granted subject to this reservation.
ARTICLE XI
----------
The name and mailing address of the incorporator is as
follows:
Name Mailing Address
Lisa F. Lindblom c/o White & Case
1155 Avenue of the Americas
New York, New York 10036
ARTICLE XII
Certain Matters Related to Section 203 of the
General Corporation Law of the State of Delaware
------------------------------------------------
The Company expressly elects not to be governed by the
provisions of Section 203 of the General Corporation Law of the State
of Delaware.
<PAGE>
EXHIBIT 4.3
Amended on February 29, 1996
PRUDENTIAL REINSURANCE HOLDINGS, INC.
1995 STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
1. Purpose of the Plan. The purpose of the Prudential
Reinsurance Holdings, Inc. 1995 Stock Option Plan for Non-Employee
Directors (the "Plan") is to aid Prudential Reinsurance Holdings,
Inc. (the "Company") in securing for the Company and its stockholders
the benefits of having experienced and highly qualified persons who
are not employees of the Company or any of its Subsidiaries or
affiliates become and remain members of the Board of Directors (the
"Board") of the Company and to provide to such persons the benefits
of the incentive inherent in common stock ownership.
2. Stock Subject to Plan. The stock which may be issued and
sold under the Plan shall be the Common Stock (par value $.01 per
share) of the Company, of a total number not exceeding 50,000 shares,
subject to adjustment as provided in Section 9. The stock to be
issued may be either authorized and unissued shares or issued shares
acquired by the Company or its Subsidiaries. Each stock option
granted pursuant to the Plan is referred to herein as an "Option."
In the event that Options granted under the Plan shall terminate or
expire without being exercised in whole or in part, new Options may
be granted covering the shares not purchased under such lapsed
Options.
3. Eligibility. Each member of the Board who first becomes
a director of the Company after February 22, 1996 shall be eligible
to receive Options in accordance with the terms of the Plan, provided
he or she, as of the date of a granting of an Option, (i) is not an
employee of the Company or any of its Subsidiaries, and (ii) is
otherwise not eligible for selection to participate in any plan of
the Company or any of its Subsidiaries that entitles the participant
therein to acquire securities or derivative securities of the Company
(an "Eligible Director"). Each member of the Board who receives an
option hereunder is referred to herein as an "Optionee." As used in
the Plan, "Subsidiary" means any corporation in which the Company,
directly or indirectly, controls 50% or more of the total combined
voting power of all classes of such corporation's stock.
<PAGE>
4. Option Grants. (a) Each person who first becomes an
Eligible Director of the Company shall, on the date on which he or
she is first elected to the Board, by reason of an election and
without further action by the Board, be granted as of the close of
business on said date an Option to purchase, in the manner and
subject to the terms and conditions herein provided and to the extent
such number of shares remain available for such purpose hereunder,
that number of shares of the Common Stock of the Company equal to
$50,000 divided by the Market Price of the Common Stock (provided
that, if the number of shares so calculated includes a fractional
share, such number shall be rounded down to the next lower whole
number). In the event that the number of shares available for grants
under the Plan is insufficient to make all grants hereby specified on
the applicable date, then all those who become entitled to a grant on
such date shall share ratably in the number of shares then available
for grant under the Plan.
(b) It is understood that the Board may, at any time
and from time to time after the granting of an Option hereunder,
specify such additional terms, conditions and restrictions with
respect to such Option as may be deemed necessary or appropriate to
ensure compliance with any and all applicable laws, including, but
not limited to, terms, restrictions and conditions for compliance
with federal and state securities laws and methods of withholding or
providing for the payment of required taxes.
5. General Terms and Conditions of Options. Each Option
granted under the Plan shall be evidenced by an agreement in such
form as the Board shall prescribe from time to time in accordance
with the Plan and shall comply with the following terms and
conditions:
(a) The Option exercise price shall be the fair market
value of the Common Stock on the date the Option is granted (the
"Market Price"), which shall be the average of the highest and lowest
sale prices of the Common Stock on the date of grant as reported on
the New York Stock Exchange Composite Transactions Tape (or such
other exchange, if any, on which the Common Stock is traded) or, if
no sale of the Common Stock is reported for such date, on the next
preceding day for which there is a reported sale.
(b) An Option Agreement shall be prepared by the
Company and delivered to the Optionee as soon as practicable
following the date on which the Option is granted. The Option
Agreement shall not be a precondition to the granting of Options;
however, no person shall have any rights under any Option granted
under the Plan unless and until the Optionee to whom such Option
shall have been granted shall have executed and delivered to the
Company an Option Agreement. A fully
<PAGE>
executed original of the Option Agreement shall be provided to
both the Company and the Optionee. By executing an Option
Agreement, an Optionee shall be deemed to have accepted and
consented to any action taken under the Plan by the Board or
its delegates.
(c) All Options shall be nonstatutory stock options not
intended to qualify as stock options entitled to special tax
treatment under Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
(d) Options shall not be transferable by the Optionee
otherwise than by will or the laws of descent and distribution, and
shall be exercisable during the Optionee's lifetime only by the
Optionee or his or her guardian or legal representative.
(e) Each Option shall be subject to the following
restrictions on exercise:
(i) The Option is not immediately exercisable.
Except in the event of the Optionee's death, an Option
shall not be exercisable, in whole or in part, prior to the
expiration of one (1) year from the date of grant. In no event shall
an Option be exercisable after the expiration of ten years from the
date the Option was granted. To the extent that an Option is not
exercised within the ten-year period of exercisability, it shall
expire as to the then unexercised part.
(ii) Subject to Sections 5(e)(i) and 6 and 7, Options
shall vest in accordance with the following schedule:
(A) in the event the date of grant of the Option is the
annual meeting of stockholders of the Company, one-half of the total
number of shares of Common Stock covered by the Option (as such
number may be adjusted pursuant to the provisions of Section 9) shall
become exercisable on the next succeeding annual meeting of
stockholders, and the additional one-half of said initial total
number of shares shall become exercisable on the second succeeding
annual meeting of stockholders; or
(B) in the event the date of grant is a date other than
the annual meeting of stockholders, one-half of the total number of
shares of Common Stock covered by the Option (as such number may be
adjusted pursuant to the provisions of Section 9) shall become
exercisable on the first anniversary date of the grant of the Option,
and the additional one-half of said initial total number of shares
<PAGE>
shall become exercisable on the second succeeding anniversary date of
the date of grant.
(iii) An Option shall not be exercisable with respect
to a fractional share or with respect to the lesser of fifty
(50) shares or the full number of shares then subject to the Option.
If a fractional share shall become subject to an Option by reason of
a stock dividend or otherwise, the Optionee shall not be entitled to
exercise the Option with respect to such fractional share.
(iv) Except as provided in Section 6, an Option shall
not be exercisable in whole or in part unless the Optionee, at
the time the Optionee exercises the Option, is, and has been at
all times since the date of grant of the Option, an Eligible
Director.
(v) An Option may only be exercised by delivery of
written notice of the exercise to the Company specifying the
number of shares to be purchased and by making payment in full
for the shares of Common Stock being acquired thereunder at the time
of exercise (including applicable withholding taxes, if any); unless
the Option Agreement shall otherwise provide, such payment shall be
made
(A) in United States dollars by check or bank
draft, or
(B) by tendering to the Company Common Stock
shares already owned for at least six (6) months by the person
exercising the Option, which may include shares received as the
result of a prior exercise of an Option, and having a fair market
value equal to the cash exercise price applicable to such Option,
such fair market value to be the average of the high and low sales
prices of a Common Stock share on the date of exercise as reported on
the New York Stock Exchange Composite Transactions Tape (or such
other exchange, if any, on which the Common Stock is traded), or, if
no sale of the Common Stock is reported for such date, on the next
preceding day for which there is a reported sale, or
(C) by a combination of United States dollars and
Common Stock shares as aforesaid, or
(D) in accordance with a cashless exercise
program under which, if so instructed by the Optionee, shares of
Common Stock may be issued directly to the Optionee's broker or
dealer upon
<PAGE>
receipt of the purchase price in cash from the broker or
dealer.
(vi) If at any time the Board shall determine, in its
discretion, that the listing, registration or qualification of
shares upon any national securities exchange or under any state
or federal law, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of,
or in connection with, the sale or purchase of shares hereunder,
such Option may not be exercised in whole or in part unless and
until such listing, registration, qualification, consent or
approval shall have been effected or obtained, or otherwise
provided for, free of any conditions not acceptable to the Board in
the exercise of its reasonable judgment.
6. Termination of Service. An Option shall terminate upon
the termination, for any reason, of the Optionee's directorship with
the Company, and no shares may thereafter be purchased under such
Option except as follows:
(a) If a director's service as a member of the Board
shall be discontinued for any reason after the completion of such
director's initial elected term of office, each unexpired Option held
by the Optionee shall, to the extent exercisable on such date, remain
exercisable, in whole or in part, for a period of three (3) years
following such director's termination of service as a director of the
Company.
(b) Upon termination of service as a director of the
Company by reason of death or disability each unexpired Option held
by the Optionee, or in the case of death, the Optionee's executors,
administrators, heirs or distributees, as the case may be, shall
become immediately exercisable and shall remain exercisable, in whole
or in part, for a period of three (3) years after such termination.
Disability shall mean an inability as determined by the Board to
perform duties and services as a director of the Company by reason of
a medically determinable physical or mental impairment, supported by
medical evidence, which can be expected to last for a continuous
period of not less than six (6) months.
In the event any Option is exercised by the executors,
administrators, heirs or distributees of the estate of a deceased
Optionee, the Company shall be under no obligation to issue Common
Stock thereunder unless and until the Company is satisfied that the
person or persons exercising the Option are the duly appointed legal
representative of the deceased Optionee's estate or the proper
legatees or distributees thereof.
<PAGE>
Notwithstanding the foregoing, in no event shall an
Option be exercised after ten (10) years from the date it was
granted.
7. Change in Control. (a) Notwithstanding other provisions
of the Plan, but subject to Section 6, in the event of a change in
control of the Company, (i) all of the Optionee's then outstanding
Options shall immediately become exercisable and each Optionee shall
have the right within one (1) year after such event to exercise the
Option in full notwithstanding any limitation or restriction in any
Option Agreement or in the Plan.
(b) For purposes of this Section 7, a "change in
control" shall be deemed to have occurred if:
(i) A tender offer or exchange offer is made whereby
the effect of such offer is to take over and control the
affairs of the Company, and such offer is consummated for the
ownership of securities of the Company representing twenty-five
percent (25%) or more of the combined voting power of the Company's
then outstanding voting securities.
(ii) The Company is merged or consolidated with
another corporation and, as a result of such merger or
consolidation, less than seventy-five percent (75%) of the
outstanding voting securities of the surviving or resulting
corporation shall then be owned in the aggregate by the former
stockholders of the Company, other than affiliates within the meaning
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") or any party to such merger or consolidation.
(iii) The Company transfers substantially all of its
assets to another corporation or entity that is not a wholly
owned subsidiary of the Company.
(iv) Any person (as such term is used in Sections 3(a)(9)
and 13(d)(3) of the Exchange Act) is or becomes the beneficial
owner, directly or indirectly, of securities of the Company
representing twenty-five percent (25%) or more of the combined
voting power of the Company's then outstanding securities, and
the effect of such ownership is to take over and control the
affairs of the Company.
(v) As the result of a tender offer, merger,
consolidation, sale of assets, or contested election, or any
combination of such transactions, the persons who were members of
the Board immediately before the
<PAGE>
transaction, cease to constitute at least a majority thereof.
8. Purchase for Investment. (a) Except as hereafter
provided, the holder of an Option shall, upon any exercise thereof,
execute and deliver to the Company a written statement, in form
satisfactory to the Company, in which such holder represents and
warrants that such holder is purchasing or acquiring the shares
acquired thereunder for such holder's own account, for investment
only and not with a view to the resale or distribution thereof, and
represents and agrees that any subsequent offer for sale or
distribution of any of such shares shall be made only pursuant to
either (i) a registration statement on an appropriate form under the
Securities Act of 1933, as amended (the "Act") which registration
statement has become effective and is current with regard to the
shares being offered or sold, or (ii) a specific exemption from the
registration requirements of the Act, but in claiming such exemption
the holder shall, prior to any offer for sale or sale of such shares,
obtain a prior favorable written opinion, in form and substance
satisfactory to the Company, from counsel for or approved by the
Company, as to the applicability of such exemption thereto. The
foregoing restriction shall not apply to (a) issuances by the Company
so long as the shares being issued are registered under the Act and a
prospectus in respect thereof is current or (b) reofferings of shares
by affiliates of the Company (as defined in Rule 405 or any successor
rule or regulation promulgated under the Act) if the shares being
reoffered are registered under the Act and a prospectus in respect
thereof is current.
(b) The Company may endorse such legend or legends upon
the certificates for shares issued upon exercise of an Option granted
hereunder and may issue such "stop transfer" instructions to its
transfer agent in respect of such shares as, in its discretion, it
determines to be necessary or appropriate to prevent a violation of,
or to perfect an exemption from, the registration requirements of the
Act.
9. Adjustment in the Event of Change in Stock. In the event
of changes in the outstanding Common Stock of the Company by reason
of stock dividend, reverse split, subdivision, recapitalization,
merger (whether or not the Company is the surviving corporation),
consolidation, split-up, combination or exchange of shares,
reorganization or liquidation, extraordinary dividend payable in cash
or property, and the like, the aggregate number and class of shares
available under the Plan, and the number, class and the price of
shares of Common Stock subject to outstanding Options shall be
appropriately adjusted by the Board, whose determination shall be
conclusive.
<PAGE>
10. Administration. The Plan shall be administered by the
Board. The Board shall have all the powers vested in it by the terms
of the Plan, such powers to include authority (within the limitations
described herein) to prescribe the form of all Option Agreements.
The Board shall, subject to the provisions of the Plan, have the
power to construe the Plan, to determine all questions arising
thereunder and to adopt and amend such rules and regulations for the
administration of the Plan as it may deem desirable. Any decision of
the Board in the administration of the Plan, as described herein,
shall be final and conclusive. The Board may act only by a majority
of its members in office, except that the members thereof may
authorize any one or more of their number or the secretary or any
other officer of the Company to execute and deliver documents on
behalf of the Board. No member of the Board shall be liable for
anything done or omitted to be done by such member or by any other
member of the Board in connection with the Plan, except as may
expressly be provided by statute.
11. Miscellaneous Provisions. (a) Except as expressly
provided for in the Plan, no director or other person shall have any
claim or right to be granted an Option under the Plan. Neither the
Plan nor any action taken hereunder shall be construed as giving any
Eligible Director any right to be retained in the service of the
Company as a director or otherwise.
(b) An Optionee's rights and interest under the Plan
may not be assigned or transferred in whole or in part either
directly or by operation of law or otherwise (except in the event of
an Optionee's death, by will or the laws of descent and
distribution), including, but not by way of limitation, execution,
levy, garnishment, attachment, pledge, bankruptcy or in any other
manner, and no such right or interest of any participant in the Plan
shall be subject to any obligation or liability of such participant.
(c) The expenses of the Plan shall be borne by the
Company.
(d) The Plan shall be unfunded. Neither the Company
nor the Board shall be required to establish any special or separate
fund or to make any other segregation of assets to assure the
issuance of shares upon exercise of any Option under the Plan and
issuance of shares upon exercise of Options shall be subordinate to
the claims of the Company's general creditors. Proceeds from the
sale of shares pursuant to Options however shall constitute general
funds of the Company. Neither the Company, a Subsidiary or the Board
shall be deemed to be a trustee of any amounts to be paid under the
Plan.
<PAGE>
(e) By accepting any Option or other benefit under the
Plan, each Optionee and each person claiming under or through such
person shall be conclusively deemed to have indicated his acceptance
and ratification, and consent to, any action taken under the Plan by
the Company or the Board.
(f) An Optionee shall have no voting rights or other
rights of stockholders with respect to shares which are subject to an
Option, nor shall cash dividends accrue or be payable with respect to
any such shares.
(g) The Plan shall be governed by and construed in
accordance with the laws of the State of Delaware.
12. Amendment or Discontinuance. The Board may at any time
and from time to time and in any respect, amend or modify the Plan;
provided, however, that, solely to the extent necessary to comply
with Rule 16b-3 or other applicable law (i) the Board may not act
more than once every six months to amend the provisions of the Plan
relating to the determination of the amount, price or timing of any
grant under the Plan; and (ii) the approval of the Company's
stockholders will be required for any amendment that (a) changes the
class of persons eligible for the grants, (b) increases (other than
as described in Section 9 hereof) the maximum number of shares of
Common Stock subject to grant under the Plan, as specified in Section
2 hereof, or (c) materially increases the benefits accruing to
Optionees under the Plan, within the meaning of Rule 16b-3. Any such
approval shall be by the affirmative vote of the stockholders of the
Company present, or represented, and entitled to vote at a meeting
duly held in accordance with applicable state law and the Certificate
of Incorporation and By-Laws of the Company. Notwithstanding the
foregoing, no amendment or modification of the Plan shall in any
manner affect any grant theretofore granted without the consent of
the Optionee or the permitted transferee of the grant.
13. Limits of Liability. (a) Any liability of the Company
to any participant with respect to an Option award shall be based
solely upon contractual obligations, if any, created by the Plan and
the participant's Option Agreement.
(b) Neither the Company nor any member of the Board,
nor any other person participating in any determination of any
question under the Plan, or in the interpretation, administration or
application of the Plan, shall have any liability to any party for
any action taken or not taken in connection with the Plan, except as
may expressly be provided by statute.
14. Termination. This Plan shall terminate upon the earlier
of the following dates or events to occur:
<PAGE>
(a) upon the adoption of a resolution of the Board
terminating the Plan; or
(b) the date all shares of Common Stock subject to the
Plan shall have been purchased according to the Plan's provisions; or
(c) ten years from the date of adoption of the Plan by
the Board.
No such termination of this Plan shall affect the rights of any
Optionee hereunder and all Options previously granted hereunder shall
continue in force and in operation after termination of the Plan,
except as they may be otherwise terminated in accordance with the
terms of the Plan.
15. Effective Date of the Plan. The Plan became effective on
September 26, 1995 and was amended on February 29, 1996.
Exhibit 5
June 9, 1996
Everest Reinsurance Holdings, Inc.
Three Gateway Plaza
Newark, New Jersey 07102-4077
Ladies and Gentlemen:
I am Senior Vice President, Secretary and General Counsel of
Everest Reinsurance Holdings, Inc. (the "Company"). I refer to
the Registration Statement on Form S-8 filed by the Company with the
Securities and Exchange Commission under the Securities Act of 1933,
as amended, relating to 50,000 shares of common stock, $0.01 par
value per share (the "Shares"), of the Company issuable upon the
terms and subject to the conditions of the Company's 1995 Stock
Option Plan for Non-Employee Directors (the "Plan").
I have examined and am familiar with originals, or copies,
certified or otherwise identified to my satisfaction, of such
corporate records of the Company, certificates of officers of the
Company and of public officials and such other documents as I have
deemed appropriate as a basis for the opinions expressed below.
I am admitted to the Bar of the State of New Jersey and express
no opinion as to the laws of any other jurisdiction other
than the General Corporation Law of the State of Delaware.
Based upon the foregoing, I am of the opinion that:
1. The Company is duly incorporated and existing under
the laws of the State of Delaware.
2. The 50,000 Shares have been duly authorized by the
Company and, when the Shares have been issued and
delivered in accordance with the terms of the Plan,
will be validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as Exhibit 5 to
the Registration Statement. In giving such consent, I do not
thereby admit that I come within the category of persons whose
consent is required under Section 7 of the Act, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Janet Melchione
-------------------
Janet Melchione
<PAGE>
Exhibit 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Everest Reinsurance Holdings, Inc. (formerly Prudential
Reinsurance Holdings, Inc.) on Form S-8 of our report dated
February 23, 1996 appearing in the Annual Report on Form 10-K of
Prudential Reinsurance Holdings, Inc. for the year ended December 31,
1995.
We also consent to the reference to us under the heading "Selected
Consolidated Financial Data" in such Annual Report on Form 10-K.
Deloitte & Touche LLP
Parsippany, New Jersey
June 11, 1996
