-----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, KUNkmGbuCIhMwOfQZLpZ/toIVETGjJyvOEHiOSHZrK2wLlvfl/wxJU2F+AZvuzB5 FULnRN4RZwGdyPikTHXAbw== 0000902873-96-000045.txt : 19960613 0000902873-96-000045.hdr.sgml : 19960613 ACCESSION NUMBER: 0000902873-96-000045 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19960612 EFFECTIVENESS DATE: 19960701 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: PRUDENTIAL REINSURANCE HOLDINGS INC CENTRAL INDEX KEY: 0000914748 STANDARD INDUSTRIAL CLASSIFICATION: ACCIDENT & HEALTH INSURANCE [6321] IRS NUMBER: 223263609 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-05771 FILM NUMBER: 96579854 BUSINESS ADDRESS: STREET 1: THREE GATEWAY CENTER CITY: NEWARK STATE: NJ ZIP: 07102 BUSINESS PHONE: 2018028000 MAIL ADDRESS: STREET 1: THREE GATEWAY CENTER CITY: NEWARK STATE: NJ ZIP: 07102 S-8 1 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 --------------------------------------- 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. 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 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 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. 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 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. EX-4.1 2 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"). 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 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 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. 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 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 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 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. EX-4.3 3 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. 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 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 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 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. 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 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. 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. (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: (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. EX-5 4 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 EX-23 5 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 -----END PRIVACY-ENHANCED MESSAGE-----