As filed with the Securities and Exchange Commission on April 30, 2002
Registration No. 33-88640
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Post Effective Amendment No. 1
to
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
W. R. BERKLEY CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 22-1867895
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
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475 Steamboat Road
Greenwich, Connecticut 06830
(Address, including zip code,
of registrant's principal executive offices)
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W. R. Berkley Corporation Profit Sharing Plan
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Full title of the plan
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Ira S. Lederman, Esq.
Senior Vice President, General Counsel and Secretary
W. R. Berkley Corporation
475 Steamboat Road
Greenwich, Connecticut 06830
(203) 629-3000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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copy to:
Jeffrey S. Hochman, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6099
(212) 728-8000
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CALCULATION OF REGISTRATION FEE
================================ ================ ===================== =================== ==================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered (1) Price per Share (2) Offering Price (2) Registration Fee
- -------------------------------- ---------------- --------------------- ------------------- ------------------
Common Stock, par value $.20
per share... 3,000,000(3) $25.25(3) $75,750,000 $26,120.69(4)
================================ ================ ===================== =================== ==================
(1) Represents the shares of Common Stock issuable pursuant to the W. R. Berkley Corporation Profit Sharing
Plan (the "Plan"). In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement on Form S-8 also covers an indeterminate amount of
interests to be offered or sold pursuant to the Plan. This Registration Statement also covers an
indeterminable number of additional shares as may hereafter be offered or issued, pursuant to the Plan, to
prevent dilution resulting from stock splits, stock dividends or similar transactions effected without
receipt of consideration.
(2) Estimated solely for calculating the amount of the registration fee, pursuant to paragraphs (c) and (h) of
Rule 457 under the Securities Act.
(3) Adjusted to reflect a 3-for-2 stock split effected in September 1997.
(4) Previously paid.
EXPLANATORY NOTE
The purpose of this Post-Effective Amendment No. 1 to Registration
Statement on Form S-8 is to file the consent of KPMG LLP, which is included in
Exhibit 23.1 hereto.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "SEC") are incorporated herein by reference:
o Our Annual Report on Form 10-K for the year ended December 31, 2001;
o Our Current Reports on Form 8-K, dated February 5, 2002, February 6,
2002, February 14, 2002, April 10, 2002 and April 29, 2002;
o Our Proxy Statement dated April 5, 2002 for our 2002 Annual Meeting of
Stockholders; and
o The descriptions of our common stock set forth in our registration
statement on Form 8-A/A filed with the Commission on May 1, 2001 and
of our rights to purchase Series A Junior Participating Preferred
Stock set forth in our registration statement on Form 8-A filed with
the Commission on May 11, 1999, as amended on May 1, 2001, including
any further amendments or reports for the purposes of updating such
descriptions.
All reports and other documents filed by the Registrant with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 subsequent to the date hereof and prior to the filing of a post-effective
amendment which indicates that all the securities offered hereby have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such reports and documents with the SEC.
Any statement contained in a document incorporated or deemed to be
incorporated by reference 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 is incorporated or
deemed to be incorporated by reference modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
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Item 4. DESCRIPTION OF SECURITIES.
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended, which is
applicable to us, provides in regards to indemnification of directors and
officers as follows:
145. Indemnification of Officers, Directors, Employees and Agents;
Insurance.
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which the person reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that the person is or was a director, officer, employee or
agent the corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by the person in connection with the
defense or settlement of such action or suit if the person acted in good faith
and in a manner the person reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
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(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in subsections
(a) and (b) of this section. Such determination shall be made with respect to a
person who is a director or an officer at the time of such determination, (1) by
a majority vote of the directors who were not parties to such action, suit or
proceeding even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or, if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including attorneys'
fees) incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the corporation deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such whether or not the corporation would have the power to
indemnify him against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director,
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officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect to
the resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
As permitted by the Delaware General Corporation Law, our stockholders
approved an amendment to our Restated Certificate of Incorporation containing
provisions eliminating a director's personal liability for monetary damages to
us and our stockholders arising from a breach of a director's fiduciary duty
except for liability under Section 174 of the Delaware General Corporation Law,
liability for any breach of the director's duty of loyalty to us or our
stockholders, acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, or any transaction from which the
director received an improper personal benefit. The amendment also provides for
indemnification of directors, officers and other persons under certain
circumstances.
We maintain policies of insurance under which we and our directors and
officers are insured subject to specified exclusions and deductible and maximum
amounts against loss arising from any claim which may be made against us or any
of our directors or officers by reason of any breach of duty, neglect, error,
misstatement, omission or act done or alleged to have been done while acting in
our or their respective capacities.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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Item 8. EXHIBITS.
Exhibit No. Description of Exhibit
- ----------- ----------------------
23.1 Consent of KPMG LLP.
24.1 Power of Attorney (included on signature pages of the
initial filing of this Registration Statement).
24.2 Power of Attorney (included on signature pages).
Item 9. UNDERTAKINGS.
1. Rule 415 Offering. The Registrant hereby undertakes:
(a) 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;
(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)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(b) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended, 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.
(c) 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.
2. Filings Incorporating Subsequent Exchange Act Documents By Reference.
The Registrant hereby undertakes that, for purposes of determining any liability
under the
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Securities Act of 1933, as amended, each filing of the Registrant's annual
report pursuant to Section 13(a) or 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.
3. Indemnification. Insofar as indemnification for liabilities arising
under the Securities Act of 1933, as amended, may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the provisions
set forth in item 6 above, 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.
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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 Amendment No. 1 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Greenwich, State of Connecticut, on the 30th day
of April 2002.
W. R. BERKLEY CORPORATION
By: /s/ William R. Berkley
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William R. Berkley
Chairman of the Board,
Chief Executive Officer
and President
Pursuant to the requirements of the Securities Act of 1933, the
administrative committee of the Plan has duly caused this Amendment No. 1 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Greenwich, State of Connecticut, on the 30th day
of April 2002.
W. R. BERKLEY CORPORATION PROFIT SHARING PLAN
By: /s/ Eugene G. Ballard
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Eugene G. Ballard
(a member of the Profit Sharing Plan
Administrative Committee)
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POWER OF ATTORNEY
Each individual whose signature appears below hereby constitutes and
appoints each of William R. Berkley, Eugene G. Ballard and Ira S. Lederman, and
each of them, as his true and lawful attorneys-in-fact and agents for the
undersigned, with full power of substitution, for and in the name, place and
stead of the undersigned to sign and file with the Securities and Exchange
Commission under the Securities Act of 1933 (i) any and all pre-effective and
post-effective amendments to this registration statement, (ii) any registration
statement relating to this offering that is to be effective upon filing pursuant
to Rule 462(b) under the Securities Act of 1933, (iii) any exhibits to any such
registration statement or pre-effective or post-effective amendments or (iv) any
and all applications and other documents in connection with any such
registration statement or pre-effective or post-effective amendments, and
generally to do all things and perform any and all acts and things whatsoever
requisite and necessary or desirable to enable the Registrant to comply with the
provisions of the Securities Act of 1933 and all requirements of the Securities
and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933,
this Amendment No. 1 to Registration Statement has been signed by the following
persons in the capacities indicated on the 30th day of April, 2002.
Signature Title
- --------- -----
/s/ William R. Berkley Chairman of the Board, Chief Executive
- ----------------------------- Officer, President and Chief Operating
William R. Berkley Officer (Principal Executive Officer)
/s/ Eugene G. Ballard Senior Vice President, Chief Financial
- ----------------------------- Officer and Treasurer (Principal
Eugene G. Ballard Financial Officer)
/s/ Clement P. Patafio Vice President, Corporate Controller
- ----------------------------- (Principal Accounting Officer)
Clement P. Patafio
- ----------------------------- Director
George G. Daly
/s/ William R. Berkley, Jr. Senior Vice President and Director
- -----------------------------
William R. Berkley, Jr.
*
- ----------------------------- Director
Richard G. Merrill
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*
- ----------------------------- Director
Jack H. Nusbaum
*
- ----------------------------- Director
Mark L. Shapiro
- ----------------------------- Director
Ronald E. Blaylock
- ----------------------------- Director
Mark E. Brockbank
*By /s/ William R. Berkley
------------------------------
William R. Berkley
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit Page No.
- ---------- ---------------------- --------
23.1 Consent of KPMG LLP.
24.1 Power of Attorney (included on signature pages of the
initial filing of this Registration Statement).
24.2 Power of Attorney (included on signature pages).