As filed with the Securities and Exchange Commission on September 13, 2002
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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HCC INSURANCE HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 76-0336636
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
13403 NORTHWEST FREEWAY 77040-6094
HOUSTON, TEXAS (Zip Code)
(Address of Principal Executive Offices)
HCC INSURANCE HOLDINGS, INC.
2001 FLEXIBLE INCENTIVE PLAN
(Full title of the plan)
STEPHEN L. WAY
13403 NORTHWEST FREEWAY
HOUSTON, TEXAS 77040-6094
(713) 690-7300
(Name and address, including zip code, and
telephone number of agent for service)
Copies to:
ARTHUR S. BERNER, ESQ. CHRISTOPHER L. MARTIN, ESQ.
HAYNES AND BOONE, LLP 13403 NORTHWEST FREEWAY
1000 LOUISIANA STREET, SUITE 4300 HOUSTON, TEXAS 77040-6094
HOUSTON, TEXAS 77002 (713) 690-7300
(713) 547-2526
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE PRICE FEE
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Common Stock, par value $1.00 5,500,000 shares $ 23.50(2) $ 129,250,000(2) $ 11,891
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(1) Pursuant to Rule 416(a) promulgated under the Securities Act of 1933,
as amended, this Registration Statement shall be deemed to cover an
indeterminate number of additional shares of common stock that may
become issuable as a result of stock splits, stock dividends or similar
transactions pursuant to anti-dilution and adjustment provisions of the
above-referenced plan.
(2) Computed pursuant to Rule 457(c) and 457(h) of the Securities Act of
1933, based on the average of the high and low sale prices, as reported
on the New York Stock Exchange on September 6, 2002 ($23.50).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*The documents containing the information specified in Part I of Form
S-8 will be sent or given to participants as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). Such documents need
not be filed with the Securities and Exchange Commission (the "SEC") either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Securities Act Rule 424. These documents, which include the
statement of availability required by Item 2 of Form S-8 and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by us with the Securities and Exchange
Commission pursuant to Section 13 of the Securities Exchange Act of 1934, are
incorporated herein by reference:
o Annual Report on Form 10-K for the fiscal year ended December 31, 2001.
o Quarterly Report on Form 10-Q for the quarter ended March 31, 2002.
o Quarterly Report on Form 10-Q for the quarter ended June 30, 2002.
o All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 2001
o The description of common stock contained in our Registration Statement
on Form S-1, filed with the Commission on October 27, 1992
(Registration No. 33-48737), including any future amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all securities offered under
the Plans 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 the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
We are incorporated under the laws of the State of Delaware. Section
145 of the General Corporation Law of the State of Delaware ("Section 145")
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was an officer,
director, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or enterprise, including an
employee benefit plan. The indemnity may include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided that such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation's best interests and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
that his conduct was unlawful, except that no indemnification shall be made in
connection with any action or suit by or in the right of the corporation to
procure a judgment in its favor 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
that such court deems proper. 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 he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
Section 145 also provides that to the extent that a director, officer,
employee or agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, the corporation must indemnify
him against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
Section 145 further provides that any indemnification (unless ordered
by a court) must be made only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth above. Such determination must be made (i) by a majority vote
of the directors who were not parties to such action, suit or proceeding, even
though less than a quorum, or (ii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (iii)
by the stockholders.
Section 145 also provides that expenses (including attorneys' fees)
incurred by an officer or director in defending or settling 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 is ultimately determined that he is not
entitled to be indemnified by the corporation.
Section 145 further provides that the indemnification and advancement
of expenses provided by, or granted pursuant to, Section 145 shall not exclude
any other rights to which a person 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 his official capacity
and as to action in another capacity while holding such office.
Article IX of the our Certificate of Incorporation, as amended and
restated, requires us to indemnify our directors and officers to the extent
permitted under Section 145.
Article VIII of the our Bylaws also provides that we shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding whether civil,
criminal, administrative, or investigative, by reason of the fact that he is or
was a director or officer, or is or was serving at our request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, or other enterprise, in accordance with provisions corresponding to
Section 145. However, such Article requires that the determination of whether a
person is entitled to indemnification is to be made, unless ordered by a court:
(i) by a majority vote of a quorum consisting of directors who at the time of
the vote are not parties to the
proceeding; (ii) if such quorum cannot be obtained, or even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion; or (iii) by our stockholders. Further, our Bylaws provide that
any person, other than an officer or director, who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action,
suit or proceeding, whether civil, criminal, administrative, or investigative,
by reason of the fact that he is or was our employee or agent, or was serving at
our request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise, and who desires
indemnification shall make written application for such indemnification to the
board of directors for its determination that indemnification is appropriate,
and if so, to what extent.
Section 145 further provides that a corporation may 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 authority to
indemnify him against such liability and expenses under the provisions described
in the preceding paragraphs. We maintain liability insurance covering our
directors and officers.
Section 102(b)(7) of the General Corporation Law of the State of
Delaware permits a Delaware corporation to include a provision in its
Certificate of Incorporation eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except (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) pursuant to Section 174 of the General Corporation Law
of the State of Delaware (providing for liability of directors for unlawful
payment of dividends or unlawful stock purchases or redemptions), or (iv) for
any transaction from which the director derived an improper personal benefit.
Article X of our Certificate of Incorporation eliminates liability of
our directors to us or our shareholders for monetary damages for breach of
fiduciary duty to the extent permitted by Section 102(b)(7) of the General
Corporation Law of the State of Delaware.
The foregoing discussion is qualified in its entirety by reference to
the General Corporation Law of the State of Delaware and our Certificate of
Incorporation and Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Items denoted by a letter are incorporated by reference to other
documents previously filed with the Securities and Exchange Commission as set
forth at the end of this table. Items not denoted by a letter but denoted with
an * are being filed herewith.
EXHIBIT
NUMBER DESCRIPTION
4.1 Specimen of Common Stock certificate, $1.00 par value, of HCC Insurance
Holdings, Inc. (a)
*5.1 Opinion of Haynes and Boone, LLP, counsel for HCC Insurance Holdings,
Inc.
*23.1 Consent of PricewaterhouseCoopers LLP.
*23.2 Consent of Haynes and Boone, LLP (included in Exhibit 5.1).
*24.1 Powers of Attorney (included on signature page to this registration
statement).
*99.1 HCC Insurance Holdings, Inc. 2001 Flexible Incentive Plan, as amended.
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(a) Incorporated by reference to our Registration Statement on Form S-1,
filed with the Commission on October 27, 1992 (Registration No.
33-48737), and all amendments thereto.
ITEM 9. UNDERTAKINGS.
(a) We hereby undertake:
(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 a
prospectus filed 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) 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 us 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) We hereby undertake that, for purposes of determining any
liability under the Securities Act of 1933, each filing of our
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 benefits 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 our directors, officers
and controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by us of expenses
incurred or paid by a director, officer or controlling person 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, we will, unless
in the opinion of our counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by us is
against public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
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 Houston, State of Texas, on August 22, 2002.
HCC INSURANCE HOLDINGS, INC.
By: /s/ Stephen L. Way
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Stephen L. Way,
Chairman of the Board
and Chief Executive Officer
Each of the undersigned constitutes and appoints Stephen L. Way and
Christopher L. Martin, and each of them, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign this registration
statement and any and all amendments to this registration statement (including
post-effective amendments) and to file same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and/or any state securities department or any other federal or state
agency or governmental authority granting unto such attorneys-in-fact and
agents, and each of them, full power to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully and
to all extents and purposes as he might or could do in person, hereby ratifying
and confirming all that such attorneys-in-fact and agents or any of them, or
their or his substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons on
behalf of the Registrant and in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Stephen L. Way Chairman of the Board of Directors and Chief August 22, 2002
------------------------------- Executive Officer (Principal Executive Officer)
Stephen L. Way
/s/ Frank J. Bramanti Director August 22, 2002
-------------------------------
Frank J. Bramanti
/s/ Marvin P. Bush Director August 22, 2002
-------------------------------
Marvin P. Bush
/s/ Patrick B. Collins Director August 22, 2002
-------------------------------
Patrick B. Collins
/s/ James R. Crane Director August 22, 2002
-------------------------------
James R. Crane
/s/ J. Robert Dickerson Director August 22, 2002
-------------------------------
J. Robert Dickerson
/s/ Edward H. Ellis, Jr. Director, Senior Vice President and Chief Financial August 22, 2002
------------------------------- Officer (Chief Accounting Officer)
Edward H. Ellis, Jr.
/s/ James C. Flagg, Ph.D. Director August 22, 2002
-------------------------------
James C. Flagg, Ph.D.
/s/ Edwin H. Frank, III Director August 22, 2002
-------------------------------
Edwin H. Frank, III
/s/ Allan W. Fulkerson Director August 22, 2002
-------------------------------
Allan W. Fulkerson
/s/ Walter J. Lack Director August 22, 2002
-------------------------------
Walter J. Lack
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 Specimen of Common Stock certificate, $1.00 par value, of HCC Insurance
Holdings, Inc. (a)
*5.1 Opinion of Haynes and Boone, LLP, counsel for HCC Insurance Holdings,
Inc.
*23.1 Consent of PricewaterhouseCoopers LLP.
*23.2 Consent of Haynes and Boone, LLP (included in Exhibit 5.1).
*24.1 Powers of Attorney (included on signature page to this registration
statement).
*99.1 HCC Insurance Holdings, Inc. 2001 Flexible Incentive Plan, as amended.
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(a) Incorporated by reference to our Registration Statement on Form S-1, filed
with the Commission on October 27, 1992 (Registration No. 33-48737), and all
amendments thereto.