-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Mrm7GAPEFAMn10M5DZMtt99922Y0cf/elB+tXIQPdkYRiqEF/yZX8JPhhY9pJpUh 3btooeo/7A5R098kMaE2mw== 0000950123-04-010921.txt : 20040913 0000950123-04-010921.hdr.sgml : 20040913 20040913170516 ACCESSION NUMBER: 0000950123-04-010921 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20040913 DATE AS OF CHANGE: 20040913 GROUP MEMBERS: ADMIRAL INSURANCE COMPANY GROUP MEMBERS: BERKLEY INSURANCE COMPANY GROUP MEMBERS: BERKLEY REGIONAL INSURANCE COMPANY GROUP MEMBERS: NAUTILUS INSURANCE COMPANY SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CAPITAL TRUST INC CENTRAL INDEX KEY: 0001061630 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 946181186 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56371 FILM NUMBER: 041028029 BUSINESS ADDRESS: STREET 1: 410 PARK AVENUE STREET 2: 14TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2126550220 MAIL ADDRESS: STREET 1: PAUL, HASTINGS, JANOFSKY & WALKER LLP STREET 2: 75 E 55TH ST CITY: NEW YORK STATE: NY ZIP: 10022 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BERKLEY W R CORP CENTRAL INDEX KEY: 0000011544 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 221867895 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 475 STEAMBOAT ROAD STREET 2: . CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: 2036293000 MAIL ADDRESS: STREET 1: 475 STEAMBOAT ROAD STREET 2: . CITY: GREENWICH STATE: CT ZIP: 06830 SC 13D/A 1 y02047sc13dza.txt AMENDMENT NO. 2 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D/A (Amendment No. 2) Under the Securities Exchange Act of 1934* Capital Trust, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Class A Common Stock, Par Value $0.01 Per Share - -------------------------------------------------------------------------------- (Title of Class of Securities) 14052H100 - -------------------------------------------------------------------------------- (CUSIP Number) Ira S. Lederman Senior Vice President - General Counsel and Corporate Secretary W. R. Berkley Corporation 475 Steamboat Road Greenwich, Connecticut 06830 (203) 629-3000 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: Jeffrey S. Hochman, Esq. Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, New York 10019-6099 (212) 728-8000 September 13, 2004 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D - ---------------------------------------- CUSIP NO. 14052H100 - ---------------------------------------- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION W. R. Berkley Corporation - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) WC - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 2,000,000* ---------------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY EACH ---------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 2,000,000* ---------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,000,000* - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.5%* - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) CO - -------------------------------------------------------------------------------- * See Items 4 through 6. SCHEDULE 13D - ---------------------------------------- CUSIP NO. 14052H100 - ---------------------------------------- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Admiral Insurance Company - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) WC - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 500,000* ---------------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY EACH ---------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 500,000* ---------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 500,000* - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.9%* - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IC, CO - -------------------------------------------------------------------------------- * See Items 4 through 6. SCHEDULE 13D - ---------------------------------------- CUSIP NO. 14052H100 - ---------------------------------------- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Berkley Insurance Company - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) WC - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 500,000* ---------------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY EACH ---------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 500,000* ---------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 500,000* - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.9%* - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IC, CO - -------------------------------------------------------------------------------- * See Items 4 through 6. SCHEDULE 13D - ---------------------------------------- CUSIP NO. 14052H100 - ---------------------------------------- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Berkley Regional Insurance Company - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) WC - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 500,000* ---------------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY EACH ---------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 500,000* ---------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 500,000* - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.9%* - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IC, CO - -------------------------------------------------------------------------------- * See Items 4 through 6. SCHEDULE 13D - ---------------------------------------- CUSIP NO. 14052H100 - ---------------------------------------- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Nautilus Insurance Company - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) WC - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Arizona - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 500,000* ---------------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY EACH ---------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 500,000* ---------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 500,000* - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.9%* - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IC, CO - -------------------------------------------------------------------------------- * See Items 4 through 6. This Amendment No. 2 to Schedule 13D ("Amendment No. 2") is being filed on behalf of W. R. Berkley Corporation, a Delaware corporation ("Berkley"), Admiral Insurance Company, a Delaware corporation ("Admiral"), Berkley Insurance Company, a Delaware corporation ("BIC"), Berkley Regional Insurance Company, a Delaware corporation ("BRIC"), and Nautilus Insurance Company, an Arizona corporation ("Nautilus" and, together with Berkley, Admiral, BIC and BRIC, the "Reporting Persons"). Amendment No. 2 relates to shares of Class A Common Stock, par value $0.01 per share (the "Common Stock"), of Capital Trust, Inc., a Maryland corporation (the "Issuer"). Amendment No. 2 amends and supplements the Schedule 13D, dated May 11, 2004 ("Original Schedule 13D"), as filed with the Securities and Exchange Commission (the "Commission") on May 21, 2004, as amended by Amendment No. 1 to Schedule 13D, dated June 17, 2004, as filed with the Commission on June 21, 2004 (together with the Original Schedule 13D, the "Schedule 13D"), and is being filed in connection with the exercise of the Warrants, as further described below. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Item 3 of Schedule 13D is hereby amended and restated in its entirety as follows: The total amount of funds used by the Reporting Persons to purchase the securities of the Issuer as described herein was furnished from the working capital of the Subsidiaries. The total amount of funds used by the Reporting Persons to purchase the securities of the Issuer as described herein was $46,800,000. Each Subsidiary contributed $11,700,000, or 25%, of the total amount of funds. ITEM 4. PURPOSE OF TRANSACTION. Item 4 of Schedule 13D is hereby amended and restated in its entirety as follows: Pursuant to a Securities Purchase Agreement, dated May 11, 2004 (the "Purchase Agreement"), by and among the Issuer, Berkley and, for purposes of Section 2.4 of the Purchase Agreement, Veqtor Finance Company, L.L.C. ("VFC"), Samstock, L.L.C. ("Samstock"), John R. Klopp ("Klopp"), JRK Investment Partnership LP ("Klopp LP"), Craig M. Hatkoff ("Hatkoff") and CMH Investment Partnership LP ("Hatkoff LP" and, collectively with VFC, Samstock, Klopp, Klopp LP and Hatkoff, the "Shareholders"), the Reporting Persons acquired from the Issuer 1,310,000 shares of Common Stock (the "Tranche 1 Shares") and four Warrants for Common Stock, each dated as of May 11, 2004 (the "Warrants"), for an aggregate purchase price of $30,654,000. The Warrants were issued by the Issuer to each of Admiral, BIC, BRIC and Nautilus (collectively, the "Holders") and granted the Holders the right to purchase, in the aggregate, up to 365,000 shares of Common Stock (the "Warrant Shares") at an exercise price of $23.40 per share, or an aggregate exercise price of $8,541,000. Each of the Warrants could only be exercised following shareholder approval at the Issuer's 2004 annual shareholders meeting (held on June 17, 2004) (the "Annual Meeting") and expires at 5:00 p.m. on December 31, 2004. 7 Subject to the receipt of shareholder approval and the satisfaction or waiver of other conditions, the Reporting Persons were required under the Purchase Agreement to purchase an additional 325,000 shares of Common Stock (the "Tranche 2 Shares") at a purchase price of $23.40 per share, or an aggregate purchase price of $7,605,000. Pursuant to the Purchase Agreement, the Issuer agreed to appoint one designee of the Reporting Persons to its Board of Directors, and thereafter nominate this designee or alternative designee for election to the Board at each subsequent annual meeting of shareholders subject to certain conditions relating to the Reporting Persons continued ownership of the Issuer's Common Stock. Effective May 11, 2004, pursuant to such designation right, the Board appointed Joshua A. Polan ("Mr. Polan") a director of the Issuer. Pursuant to the Purchase Agreement, the Shareholders agreed to vote all shares of the Issuer's Common Stock they beneficially own or over which they have voting control over in favor of the continued election of the Reporting Persons' Board designee. In addition, the Shareholders agreed not to take, or support the taking of, any action to remove as a director the Reporting Persons' Board designee, unless the Reporting Persons request that such director be removed (in which case the Shareholders agreed to cooperate in effecting such removal and electing a replacement). The Shareholders agreed to vote at the Annual Meeting all shares of the Issuer's Common Stock they beneficially own or over which they have voting control over in favor of the issuance of the Tranche 2 Shares and the Warrant Shares. At the Annual Meeting, the Issuer's shareholders approved the issuance of the Warrant Shares and the Tranche 2 Shares and voted in favor of the election of the Reporting Person's Board designee, Mr. Polan, who was elected a director of the Issuer. As a result, the Warrants became exercisable for the 365,000 Warrant Shares. In addition, on June 21, 2004, in accordance with the Purchase Agreement, the Reporting Persons acquired the 325,000 Tranche 2 Shares for the aggregate purchase price of $7,605,000. On September 13, 2004, the Reporting Persons exercised the Warrants and purchased the Warrant Shares for the aggregate purchase price of $8,541,000. The Shareholders have reported aggregate beneficial ownership of 2,646,789 shares of the Issuer's Common Stock, which shares represent 20.5% of the outstanding shares of the Issuer's Common Stock (calculated in accordance with Rule 13d-3(d)(1)). The Reporting Persons disclaim beneficial ownership of any shares of Common Stock beneficially owned by the Shareholders. The Shareholders disclaim beneficial ownership of any shares of the Issuer's Common Stock held by the Reporting Persons. Neither the Tranche 1 Shares, the Tranche 2 Shares, the Warrants nor the Warrant Shares are registered for re-sale by the Reporting Persons under the Securities Act of 1933, as amended (the "Securities Act"). Under that certain Registration Rights Agreement, dated May 11, 2004 (the "Registration Rights Agreement"), by and among the Issuer and Berkley, subject to certain conditions, the Reporting Persons have the right 8 to cause the Issuer to effect a registration under the Securities Act with respect to any such shares of Common Stock, as well as certain other shares of Common Stock that they may then hold. The foregoing descriptions of the Purchase Agreement, the Warrants and the Registration Rights Agreement are qualified in their entirety by reference to the Purchase Agreement, the Warrants and the Registration Rights Agreement, which are incorporated in this Amendment No. 2 by reference to Exhibits 2, 3 and 4, respectively, which were filed with the Commission in connection with the Original Schedule 13D. The acquisition by the Reporting Persons of beneficial ownership of the securities as described herein was effected because of the Reporting Persons' belief that the Issuer represents an attractive investment based on the Issuer's business prospects and strategy. Depending on prevailing market, economic and other conditions, the Reporting Persons may from time to time acquire additional securities of the Issuer, engage in discussions with the Issuer concerning further acquisitions of securities of the Issuer or otherwise invest in the Issuer or one or more of its subsidiaries. The Reporting Persons intend to review their investment in the Issuer on a continuing basis and, depending upon the price and availability of the Issuer's securities, subsequent developments concerning the Issuer, the Issuer's business and prospects, other investment and business opportunities available to the Reporting Persons, general stock market and economic conditions, tax considerations and other factors considered relevant, may decide at any time to increase or decrease the size of their investment in the Issuer or to sell any or all of the securities of the Issuer that they hold. Except as set forth above in this Item 4, none of the Reporting Persons nor, to the best of their knowledge, any person listed in Schedule I to this Amendment No. 2, has any plans or proposals which relate to or would result in: (a) the acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d) any change in the present Board of Directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the Board of Directors; (e) any material change in the present capitalization or dividend policy of the Issuer; (f) any other material change in the Issuer's business or corporate structure; (g) changes in the Issuer's charter, by-laws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person; (h) causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or (j) any action similar to any of those enumerated above. 9 ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5(a) of Schedule 13D is hereby amended and restated in its entirety as follows: (a) Berkley may be deemed to beneficially own, in the aggregate, 2,000,000 shares of Common Stock, which represents 15.5% of the outstanding Common Stock of the Issuer. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Item 6 of Schedule 13D is hereby amended and restated in its entirety as follows: Pursuant to Rule 13d-1(k) promulgated under the Exchange Act, the Reporting Persons have entered into an agreement with respect to the joint filing of the Schedule 13D, and any amendment or amendments thereto, a copy of which was filed with the Commission as Exhibit 1 to the Schedule 13D. Pursuant to the Purchase Agreement, the Reporting Persons acquired from the Issuer the Tranche 1 Shares and the Warrants for an aggregate purchase price of $30,654,000. The Warrants granted the Holders the right to purchase, in the aggregate, up to 365,000 shares of Common Stock at an exercise price of $23.40 per share, or an aggregate exercise price of $8,541,000. Each of the Warrants could only be exercised following shareholder approval at the Annual Meeting and expires at 5:00 p.m. on December 31, 2004. Subject to the receipt of shareholder approval and the satisfaction or waiver of other conditions, the Reporting Persons were required under the Purchase Agreement to purchase the Tranche 2 Shares at a purchase price of $23.40 per share, or an aggregate purchase price of $7,605,000. Pursuant to the Purchase Agreement, the Issuer agreed to appoint one designee of the Reporting Persons to its Board of Directors, and thereafter nominate this designee or alternative designee for election to the Board at each subsequent annual meeting of shareholders subject to certain conditions relating to the Reporting Persons continued ownership of the Issuer's Common Stock. Effective May 11, 2004, pursuant to such designation right, the Board appointed Mr. Polan a director of the Issuer. Pursuant to the Purchase Agreement, the Shareholders agreed to vote all shares of the Issuer's Common Stock they beneficially own or over which they have voting control over in favor of the continued election of the Reporting Persons' Board designee. In addition, the Shareholders agreed not to take, or support the taking of, any action to remove as a director the Reporting Persons' Board designee, unless the Reporting Persons request that such director be removed (in which case the Shareholders agreed to cooperate in effecting such removal and electing a replacement). The Shareholders agreed to vote at the Annual Meeting of shareholders all shares of the Issuer's Common Stock they beneficially own or over which they have voting control over in favor of the issuance of the Tranche 2 Shares and the Warrant Shares. 10 At the Annual Meeting, the Issuer's shareholders approved the issuance of the Warrant Shares and the Tranche 2 Shares and voted in favor of the election of the Reporting Person's Board designee, Mr. Polan, who was elected a director of the Issuer. As a result, the Warrants became exercisable for the 365,000 Warrant Shares. In addition, on June 21, 2004, in accordance with the Purchase Agreement, the Reporting Persons acquired the 325,000 Tranche 2 Shares for the aggregate purchase price of $7,605,000. On September 13, 2004, the Reporting Persons exercised the Warrants and purchased the Warrant Shares for the aggregate purchase price of $8,541,000. The Shareholders have reported aggregate beneficial ownership of 2,646,789 shares of the Issuer's Common Stock, which shares represent 20.5% of the outstanding shares of the Issuer's Common Stock (calculated in accordance with Rule 13d-3(d)(1)). The Reporting Persons disclaim beneficial ownership of any shares of Common Stock beneficially owned by the Shareholders. The Shareholders disclaim beneficial ownership of any shares of the Issuer's Common Stock held by the Reporting Persons. The Registration Rights Agreement grants the Reporting Persons the right (subject to certain conditions) to cause the Issuer to effect a registration under the Securities Act with respect to the re-sale of the Tranche 1 Shares, the Tranche 2 Shares, the Warrants and the shares of Common Stock issuable upon the conversion or exercise (as applicable) thereof, as well as certain other shares of Common Stock that they may then hold. The foregoing descriptions of the Purchase Agreement, the Warrants and the Registration Rights Agreement are qualified in their entirety by reference to the Purchase Agreement, the Warrants and the Registration Rights Agreement, which are incorporated in this Amendment No. 2 by reference to Exhibits 2, 3 and 4, respectively, which were filed with the Commission in connection with the Original Schedule 13D. 11 SIGNATURES After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: September 13, 2004 W.R. BERKLEY CORPORATION By: /s/ William R. Berkley ---------------------------------------- Name: William R. Berkley Title: Chairman of the Board and Chief Executive Officer Dated: September 13, 2004 ADMIRAL INSURANCE COMPANY By: /s/ Scott R. Barraclough ---------------------------------------- Name: Scott R. Barraclough Title: Senior Vice President Dated: September 13, 2004 BERKLEY INSURANCE COMPANY By: /s/ Eugene G. Ballard ---------------------------------------- Name: Eugene G. Ballard Title: Senior Vice President Dated: September 13, 2004 BERKLEY REGIONAL INSURANCE COMPANY By: /s/ Eugene G. Ballard ---------------------------------------- Name: Eugene G. Ballard Title: Senior Vice President Dated: September 13, 2004 NAUTILUS INSURANCE COMPANY By: /s/ John M. Runberg ---------------------------------------- Name: John M. Runberg Title: Senior Vice President SCHEDULE I Set forth below is the name, business address, and present principal occupation of each of the executive officers and directors of the Reporting Persons. Except as otherwise indicated, each person is a citizen of the United States. W.R. Berkley Corporation
Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- Directors: William R. Berkley 475 Steamboat Road Chairman of the Board and Chief Greenwich, Connecticut 06830 Executive Officer Phillip J. Ablove 475 Steamboat Road Retired Executive Vice President and Greenwich, Connecticut 06830 Chief Financial Officer, Pioneer Companies, Inc. William R. Berkley, Jr. 475 Steamboat Road Senior Vice President - Specialty Greenwich, Connecticut 06830 Operations Ronald E. Blaylock 475 Steamboat Road Founder, Chairman and Chief Greenwich, Connecticut 06830 Executive Officer, Blaylock & Partners, LP (investment banking firm) Mark E. Brockbank 475 Steamboat Road Retired Chief Executive of XL Greenwich, Connecticut 06830 Brockbank LTD George G. Daly 475 Steamboat Road Fingerhut Professor and Dean Greenwich, Connecticut 06830 Emeritus, Stern School of Business, New York University Rodney A. Hawes, Jr. 475 Steamboat Road Founder Insurance Investment Greenwich, Connecticut 06830 Associates (investment banking firm) Richard G. Merrill 475 Steamboat Road Retired Executive Vice President of Greenwich, Connecticut 06830 Prudential Insurance Company of America Jack H. Nusbaum 787 Seventh Avenue Chairman, Willkie Farr & Gallagher New York, New York 10019 LLP (attorneys at law) Mark L. Shapiro 475 Steamboat Road Private Investor Greenwich, Connecticut 06830
1 Executive Officers Not Otherwise Listed Above: Eugene G. Ballard 475 Steamboat Road Senior Vice President - Chief Greenwich, Connecticut 06830 Financial Officer and Treasurer Robert P. Cole 475 Steamboat Road Senior Vice President - Regional Greenwich, Connecticut 06830 Operations Paul J. Hancock 475 Steamboat Road Senior Vice President - Chief Greenwich, Connecticut 06830 Corporate Actuary Robert W. Gosselink 475 Steamboat Road Senior Vice President - Risk Greenwich, Connecticut 06830 Management Robert C. Hewitt 475 Steamboat Road Senior Vice President - Alternative Greenwich, Connecticut 06830 Markets Operations Ira S. Lederman 475 Steamboat Road Senior Vice President - General Greenwich, Connecticut 06830 Counsel and Corporate Secretary James W. McCleary 475 Steamboat Road Senior Vice President - Reinsurance Greenwich, Connecticut 06830 Operations and President and Chief Executive Officer, Facultative ReSources, Inc. James G. Shiel 475 Steamboat Road Senior Vice President - Investments Greenwich, Connecticut 06830 Clement P. Patafio 475 Steamboat Road Vice President - Corporate Controller Greenwich, Connecticut 06830
2 Admiral Insurance Company
Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- Directors: William R. Berkley, Jr. 475 Steamboat Road Senior Vice President - Specialty Greenwich, Connecticut 06830 Operations, W. R. Berkley Corporation Eugene G. Ballard 475 Steamboat Road Senior Vice President - Chief Greenwich, Connecticut 06830 Financial Officer and Treasurer, W. R. Berkley Corporation James S. Carey 1255 Caldwell Road President and Chief Executive Officer Cherry Hill, New Jersey 08034 Martin M. Michell 1255 Caldwell Road Regional Vice President Cherry Hill, New Jersey 08034 Michael J. Snead 1255 Caldwell Road Retired Chairman Cherry Hill, New Jersey 08034 Executive Officers Not\ Otherwise Listed Above: Scott R. Barraclough 1255 Caldwell Road Senior Vice President and Treasurer Cherry Hill, New Jersey 08034 Daniel A. MacDonald 1255 Caldwell Road Senior Vice President and Secretary Cherry Hill, New Jersey 08034 Curtis E. Fletcher 1255 Caldwell Road Regional Vice President Cherry Hill, New Jersey 08034 William E. Haines 1255 Caldwell Road Regional Vice President Cherry Hill, New Jersey 08034 Raymond H. McDowell 1255 Caldwell Road Regional Vice President Cherry Hill, New Jersey 08034 William F. Murray 1255 Caldwell Road President, Excess Division Cherry Hill, New Jersey 08034
3 Berkley Insurance Company
Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- Directors: William R. Berkley 475 Steamboat Road Chairman of the Board and Chief Greenwich, Connecticut 06830 Executive Officer, W. R. Berkley Corporation William R. Berkley, Jr. 475 Steamboat Road Senior Vice President - Specialty Greenwich, Connecticut 06830 Operations, W. R. Berkley Corporation Robert P. Cole 475 Steamboat Road Senior Vice President - Regional Greenwich, Connecticut 06830 Operations, W. R. Berkley Corporation Craig N. Johnson 475 Steamboat Road President and Chief Executive Greenwich, Connecticut 06830 Officer, Signet Star Re, LLC Carol J. LaPunzina 475 Steamboat Road Senior Vice President, General Greenwich, Connecticut 06830 Counsel and Secretary Ira S. Lederman 475 Steamboat Road Senior Vice President - General Greenwich, Connecticut 06830 Counsel and Corporate Secretary, W. R. Berkley Corporation James W. McCleary 475 Steamboat Road Senior Vice President - Reinsurance Greenwich, Connecticut 06830 Operations, W. R. Berkley Corporation and President and Chief Executive Officer, Facultative ReSources, Inc. Executive Officers Not Otherwise Listed Above: Larry A. Hansen 475 Steamboat Road Executive Vice President and Chief Greenwich, Connecticut 06830 Financial Officer Roger J. Bassi 475 Steamboat Road Executive Vice President Greenwich, Connecticut 06830 Eugene G. Ballard 475 Steamboat Road Senior Vice President - Chief Greenwich, Connecticut 06830 Financial Officer and Treasurer, W. R. Berkley Corporation (Senior Vice President for Berkley Insurance Company) Donald M. McGuire 475 Steamboat Road Senior Vice President and Treasurer Greenwich, Connecticut 06830 Kevin J. Shea 475 Steamboat Road Senior Vice President Greenwich, Connecticut 06830
4 Berkley Regional Insurance Company
Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- Directors: William R. Berkley 475 Steamboat Road Chairman of the Board and Chief Greenwich, Connecticut 06830 Executive Officer, W. R. Berkley Corporation William R. Berkley, Jr. 475 Steamboat Road Senior Vice President - Specialty Greenwich, Connecticut 06830 Operations, W. R. Berkley Corporation James G. Shiel 475 Steamboat Road Senior Vice President - Investments, Greenwich, Connecticut 06830 W. R. Berkley Corporation Eugene G. Ballard 475 Steamboat Road Senior Vice President - Chief Greenwich, Connecticut 06830 Financial Officer and Treasurer, W. R. Berkley Corporation Ira S. Lederman 475 Steamboat Road Senior Vice President - General Greenwich, Connecticut 06830 Counsel and Corporate Secretary, W. R. Berkley Corporation Robert P. Cole 475 Steamboat Road Senior Vice President - Regional Greenwich, Connecticut 06830 Operations, W. R. Berkley Corporation Robert C. Hewitt 475 Steamboat Road Senior Vice President - Specialty Greenwich, Connecticut 06830 Operations, W. R. Berkley Corporation Paul J. Hancock 475 Steamboat Road Senior Vice President and Chief Greenwich, Connecticut 06830 Corporate Actuary, W. R. Berkley Corporation Clement P. Patafio 475 Steamboat Road Vice President - Corporate Greenwich, Connecticut 06830 Controller, W. R. Berkley Corporation Executive Officers Not Otherwise Listed Above: None
5 Nautilus Insurance Company
Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- Directors: William R. Berkley, Jr. 475 Steamboat Road Senior Vice President - Specialty Greenwich, Connecticut 06830 Operations, W. R. Berkley Corporation Eugene G. Ballard 475 Steamboat Road Senior Vice President - Chief Greenwich, Connecticut 06830 Financial Officer and Treasurer, W. R. Berkley Corporation Ira S. Lederman 475 Steamboat Road Senior Vice President - General Greenwich, Connecticut 06830 Counsel and Corporate Secretary, W. R. Berkley Corporation Thomas M. Kuzma 7273 East Butherus Drive, President and Chief Executive Officer Scottsdale, Arizona 85260 John M. DiBiasi 7273 East Butherus Drive, Executive Vice President, Scottsdale, Arizona 85260 Underwriting/Agency Relations Executive Officers Not Otherwise Listed Above: John M. Runberg 7273 East Butherus Drive, Senior Vice President, Chief Scottsdale, Arizona 85260 Financial Officer and Treasurer
6 -----END PRIVACY-ENHANCED MESSAGE-----