-----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, IxZSjxuS9rm5PmEMfE5fjLfQq4dZFmOXav7NK+6sPtO2aN/QwVq6hBUC1Y0yZMze EGChP6oI9myepiSZzJvvFg== 0000950129-97-001968.txt : 19970515 0000950129-97-001968.hdr.sgml : 19970515 ACCESSION NUMBER: 0000950129-97-001968 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970514 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: HCC INSURANCE HOLDINGS INC/DE/ CENTRAL INDEX KEY: 0000888919 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 760336636 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-25513 FILM NUMBER: 97603346 BUSINESS ADDRESS: STREET 1: 13403 NORTHWEST FRWY CITY: HOUSTON STATE: TX ZIP: 77040-6094 BUSINESS PHONE: 7136907300 S-4/A 1 HCC INSURANCE HOLDINGS, INC. AMEND. 2 TO FORM S-4 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 14, 1997 REGISTRATION NO. 333-25513 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------------- AMENDMENT NO. 2 to FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- HCC INSURANCE HOLDINGS, INC. (Exact Name of Registrant as Specified in its Charter) --------------------- DELAWARE 76-0336636 6331 (State or other jurisdiction of (I.R.S. Employer Identification (Primary Standard Industrial incorporation or organization) No.) Classification Code Number)
13403 NORTHWEST FREEWAY HOUSTON, TEXAS 77040-6094 (713) 690-7300 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) STEPHEN L. WAY 13403 NORTHWEST FREEWAY HOUSTON, TEXAS 77040-6094 (713) 690-7300 (Name, address including zip code, and telephone number, including area code, of agent for service) --------------------- Copies to: ARTHUR S. BERNER, ESQ. ROBERT W. SMITH, JR., ESQ. WINSTEAD SECHREST & MINICK P.C. PIPER & MARBURY L.L.P. 910 TRAVIS, SUITE 1700 CHARLES CENTER SOUTH HOUSTON, TEXAS 77002 36 SOUTH CHARLES STREET BALTIMORE, MARYLAND 21201-3018
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the effective time of the Merger described in this Registration Statement. If the securities being registered on this Form are to be offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [ ] THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. ================================================================================ 2 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS HCCH is incorporated under the laws of the State of Delaware. Section 145 of the DGCL ("Section 145") provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful. A Delaware corporation may indemnify any persons who were or are parties, or are threatened to be made a party, to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of such corporation or enterprise. The indemnity may include expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interest except that no indemnification is permitted without judicial approval if the officer is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred. Article IX of HCCH's Restated Certificate of Incorporation, as amended, requires HCCH to indemnify HCCH's directors and officers to the extent permitted under Section 145. Article VIII of HCCH's Bylaws provides that HCCH shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative (other than an action by or in the right of HCCH), by reason of the fact that he is or was a director or officer of HCCH, or is or was serving at the request of HCCH as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of HCCH and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The determination of whether an incumbent or former director or officer is entitled to indemnification because such officer or director has met the applicable standards of conduct set forth above is to be made, unless ordered by a court: (i) by a majority vote of a quorum consisting of directors who at the time of the vote are not parties to the proceeding; (ii) if such quorum cannot be obtained, or even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; or (iii) by a vote of shareholders of HCCH. The HCCH Bylaws further provide that the expenses (including attorneys' fees) incurred in any such action by a director of officer of HCCH may be paid or reimbursed by HCCH in advance of the final disposition of such action, suit or proceeding upon receipt of a written undertaking by or on behalf of the director or officer to repay the amount paid or reimbursed if it is ultimately determined that he is not entitled to be indemnified by HCCH as authorized therein. HCCH's Bylaws also provide that HCCH may indemnify to the extent of the provisions set forth therein, any person, other than an officer or director, who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was an employee or agent of HCCH, or was serving at the request of HCCH as a director, officer, employee or agent of another corporation, partnership, joint venture, II-1 3 trust or other enterprise, if such person makes written application for such indemnification to the HCCH Board and the HCCH Board so determines that indemnification is appropriate and the extent thereof. HCCH's Bylaws further provide that the indemnification described therein is not exclusive, and shall not exclude any other rights to which the person seeking to be indemnified may be entitled under statute, any bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his official capacity and to his action in another capacity while holding such office. ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) Exhibits
EXHIBIT NO. EXHIBIT ------- ------- 2 -- Agreement and Plan of Reorganization -- Included as Appendix "A" to the Proxy Statement/Prospectus 3.1 -- Restated Certificate of Incorporation of HCC Holdings, Inc. as filed with the Delaware Secretary of State on July 23, 1996 -- Included as Appendix "D" to the Proxy Statement/Prospectus 3.2 -- Bylaws of HCC Insurance Holdings, Inc., as amended -- Included as Appendix "E" to the Proxy Statement/Prospectus 4.1 -- Specimen Common Stock Certificate, $1.00 par value per share, of HCC Insurance Holdings, Inc. -- Filed with the SEC as Exhibit 4.1 to the Registrant's Registration Statement on Form S-1, Reg. No. 33-48737, and incorporated herein by reference 5.1 -- Opinion and Consent of Winstead Sechrest & Minick P.C. regarding legality -- Previously filed 8.1 -- Opinion and Consent of Winstead Sechrest & Minick P.C. regarding federal income tax matters -- Previously filed 8.2 -- Opinion and Consent of Piper & Marbury L.L.P. regarding federal income tax matters -- Filed herewith 23.1 -- Consent of Coopers & Lybrand L.L.P. -- Previously filed 23.2 -- Consent of KPMG Peat Marwick LLP -- Previously filed 23.3 -- Consent of Tonneson & Company, C.P.A.'s P.C. -- Previously filed 23.4 -- Consent of Winstead Sechrest & Minick P.C. -- included in their opinions filed as Exhibits 5.1 and 8.1 23.5 -- Consent of Piper & Marbury L.L.P. -- included in their opinion filed as Exhibit 8.2 24 -- Powers of Attorney -- Previously filed 28 -- Information from reports furnished to the State Board of Insurance for the State of Texas -- Filed with the SEC as Exhibits to the Registrant's Form 10-K for the year ended December 31, 1996 99.1 -- Consent of Smith Barney Inc. -- Previously filed 99.2 -- Consent of Alex. Brown & Sons Incorporated -- Filed herewith 99.3 -- Proxy Card of HCC Insurance Holdings, Inc. -- Previously filed 99.4 -- Proxy Card of AVEMCO Corporation -- Previously filed
The Disclosure Schedules and other appendices of the Registrant and AVEMCO Corporation are referred to in the Agreement and Plan of Reorganization, but are omitted from submission to the SEC in connection herewith. Upon request, the Registrant undertakes to furnish to the SEC a copy of any omitted schedule or appendix. II-2 4 (b) Financial Statement Schedules ITEM 22. UNDERTAKINGS The undersigned Registrant hereby undertakes: (1) 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 any 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. (2) That prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this Registration Statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the Registrant undertakes that such reoffering prospectus will contain the information called for by Form S-4 with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of Form S-4. (3) That every prospectus (i) that is filed pursuant to paragraph (2) immediately preceding, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the Registration Statement and will not be used until such amendment is effective, and that, for purposes 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. (4) 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. (5) To respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the Registration Statement through the date of responding to the request. (6) To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the Registration Statement when it became effective. II-3 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Houston, State of Texas, on the 13 day of May, 1997. HCC INSURANCE HOLDINGS, INC. By: /s/ STEPHEN L. WAY ---------------------------------- Stephen L. Way Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ STEPHEN L. WAY* Chairman of the Board and Chief - ----------------------------------------------------- Executive Officer (Principal Stephen L. Way Executive Officer) /s/ FRANK J. BRAMANTI Executive Vice President, - ----------------------------------------------------- Secretary, Chief Financial Frank J. Bramanti Officer (Principal Financial Officer and Principal Accounting Officer) /s/ STEPHEN J. LOCKWOOD* President and Director - ----------------------------------------------------- Stephen J. Lockwood /s/ JAMES M. BERRY* Director - ----------------------------------------------------- James M. Berry /s/ PATRICK B. COLLINS* Director - ----------------------------------------------------- Patrick B. Collins /s/ J. ROBERT DICKERSON* Director - ----------------------------------------------------- J. Robert Dickerson /s/ EDWIN H. FRANK, III* Director - ----------------------------------------------------- Edwin H. Frank, III /s/ JOHN L. KAVANAUGH* Director - ----------------------------------------------------- John L. Kavanaugh /s/ WALTER J. LACK* Director - ----------------------------------------------------- Walter J. Lack /s/ HUGH T. WILSON* Director - ----------------------------------------------------- Hugh T. Wilson *By: /s/ FRANK J. BRAMANTI ------------------------------------------------ Frank J. Bramanti Attorney-in-fact
May 13, 1997 II-4 6 INDEX TO EXHIBITS
SEQUENTIALLY EXHIBIT NUMBERED NO. EXHIBIT PAGE ------- ------- ------------ 2 -- Agreement and Plan of Reorganization -- Included as Appendix "A" to the Proxy Statement/Prospectus 3.1 -- Restated Certificate of Incorporation of HCC Holdings, Inc. as filed with the Delaware Secretary of State on July 23, 1996 -- Included as Appendix "D" to the Proxy Statement/Prospectus 3.2 -- Bylaws of HCC Insurance Holdings, Inc., as amended -- Included as Appendix "E" to the Proxy Statement/Prospectus 4.1 -- Specimen Common Stock Certificate, $1.00 par value per share, of HCC Insurance Holdings, Inc. -- Filed with the SEC as Exhibit 4.1 to the Registrant's Registration Statement on Form S-1, Reg. No. 33-48737, and incorporated herein by reference 5.1 -- Opinion and Consent of Winstead Sechrest & Minick P.C. regarding legality -- Previously filed 8.1 -- Opinion and Consent of Winstead Sechrest & Minick P.C. regarding federal income tax matters -- Previously filed 8.2 -- Opinion and Consent of Piper & Marbury L.L.P. regarding federal income tax matters -- Filed herewith 23.1 -- Consent of Coopers & Lybrand L.L.P. -- Previously filed 23.2 -- Consent of KPMG Peat Marwick LLP -- Previously filed 23.3 -- Consent of Tonneson & Company, C.P.A.'s P.C. -- Previously filed 23.4 -- Consent of Winstead Sechrest & Minick P.C. -- included in their opinions filed as Exhibits 5.1 and 8.1 23.5 -- Consent of Piper & Marbury L.L.P. -- included in their opinion filed as Exhibit 8.2 24 -- Powers of Attorney -- Previously filed 28 -- Information from reports furnished to the State Board of Insurance for the State of Texas -- Filed with the SEC as Exhibits to the Registrant's Form 10-K for the year ended December 31, 1996 99.1 -- Consent of Smith Barney Inc. -- Previously filed 99.2 -- Consent of Alex. Brown & Sons Incorporated -- Filed herewith 99.3 -- Proxy Card of HCC Insurance Holdings, Inc. -- Previously filed 99.4 -- Proxy Card of AVEMCO Corporation -- Previously filed
EX-8.2 2 OPINION AND CONSENT OF PIPER & MARBURY L.L.P. 1 EXHIBIT 8.2 PIPER & MARBURY L.L.P. CHARLES CENTER SOUTH 36 SOUTH CHARLES STREET BALTIMORE, MARYLAND WASHINGTON 21201-3018 NEW YORK 410-539-2530 PHILADELPHIA FAX: 410-539-0489 EASTON
May 13, 1997 AVEMCO Corporation Frederick Municipal Airport 411 Aviation Way Frederick, Maryland 21701 Merger of Merger Sub #4, Inc., a wholly-owned subsidiary of HCC Insurance Holdings, Inc., with and into AVEMCO Corporation Ladies and Gentlemen: We have acted as special counsel to AVEMCO Corporation ("Company") in connection with the transactions contemplated by the Agreement and Plan of Reorganization, dated as of February 27, 1997 (the "Merger Agreement"), by and among HCC Insurance Holdings, Inc. ("Parent"), Merger Sub #4, Inc., a wholly-owned subsidiary of Parent ("Merger Sub") and Company. This letter is delivered on the effective date of a Registration Statement on Form S-4 (the "Registration Statement"), which includes the Joint Proxy Statement/Prospectus of Parent and Company (the "Proxy Statement/Prospectus"), with respect to the transaction contemplated by the Merger Agreement. The delivery of a letter expressing opinions in substantially the form hereof (and the reconfirmation of such opinions on and as of the Effective Time) are conditions to the obligations of Company to consummate the Merger pursuant to section 7.2(d) of the Merger Agreement. All capitalized terms used herein, unless otherwise specified, shall have the meanings ascribed to them in the Merger Agreement. In rendering our opinions, we have examined and relied upon the accuracy and completeness of the facts, information, covenants and representations contained in originals or copies, certified or otherwise identified to our satisfaction, of the Merger Agreement, the Proxy Statement/Prospectus and such other documents as we have deemed necessary or appropriate as a basis for the opinions set forth below. Our opinions assume, among other things, the accuracy as of the date hereof, and continuing accuracy as of the Effective Time, of such facts, information, covenants, statements and representations, as well as an absence of any change in the foregoing that are material to such opinions between the date hereof and the Effective Time. We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such documents. We have also assumed that the transactions related to the Merger or contemplated by the Merger Agreement will be consummated at the Effective Time in accordance with the Merger Agreement and as described in the Proxy Statement/Prospectus. In addition, our opinion is expressly conditioned on, among other things, the accuracy as of the date hereof, and continuing accuracy as of the Effective Time, of statements and representations contained in certificates executed by officers of Parent and Company as to certain facts relating to, and knowledge and intentions of, Parent and Company, and certain facts relating to the Merger. We have assumed that such statements and representations will be reconfirmed as of the Effective Time. 2 In rendering our opinion, we have considered the applicable provisions of the U.S. Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations promulgated thereunder by the Treasury Department (the "Regulations"), pertinent judicial authorities, rulings of the U.S. Internal Revenue Service and such other authorities as we have considered relevant. It should be noted that such Code, Regulations, judicial decisions, administrative interpretations and such other authorities are subject to change at any time and, in some circumstances, with retroactive effect. A material change in any of the authorities upon which our opinion is based could affect our conclusions stated herein. In addition, there can be no assurance that the Internal Revenue Service would not take a position contrary to that which is stated in this opinion. Based upon and subject to the foregoing, we are of the opinion that, for United States federal income tax purposes: 1. the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code, and Company, Merger Sub and Parent will each be a party to such reorganization within the meaning of Section 368(b) of the Code; 2. no gain or loss will be recognized by Parent or Company as a result of the Merger; 3. no gain or loss will be recognized by the shareholders of Company upon the exchange of their shares of Company Common Stock solely for shares of Parent Common Stock pursuant to the Merger (including fractional shares of Parent Common Stock deemed issued as described below); 4. the aggregate tax basis of the shares of Parent Common Stock received solely in exchange for shares of Company Common Stock pursuant to the Merger (including fractional shares of Parent Common Stock for which cash is received) will be the same as the aggregate tax basis of the shares of Company Common Stock exchanged therefor; 5. the holding period for shares of Parent Common Stock received in exchange for shares of Company Common Stock pursuant to the Merger will include the holding period of the shares of Company Common Stock exchanged therefor, provided such shares of Company Common Stock were held as capital assets by the shareholder at the Effective time; and 6. a shareholder of Company who receives cash in lieu of a fractional share of Parent Common Stock will be treated as if he received a fractional share of Parent Common Stock pursuant to the Merger and Parent then redeemed such fractional share for the cash payment, with the result that such a shareholder will recognize gain or loss equal to the difference, if any, between such shareholder's tax basis in such fractional share (as described in clause (4) above) and the amount of cash received. Except as set forth above, we express no opinion to any party as to any consequences of the Merger or any transactions related thereto. This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes of the matters stated, represented or assumed herein or any subsequent changes in applicable law. In accordance with the requirements of Item 601(b)(23) of Regulation S-K under the Securities Act, we hereby consent to the use of our name in the Proxy Statement/Prospectus and to the filing of this opinion as an Exhibit to the Registration Statement. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. Very truly yours, /s/ PIPER & MARBURY L.L.P. EX-99.2 3 CONSENT OF ALEX. BROWN & SONS INCORPORATED 1 EXHIBIT 99.2 April 16, 1997 The Board of Directors of AVEMCO Corporation 411 Aviation Way Frederick, MD 21701 Dear Members of the Board of Directors: We hereby consent to the inclusion of our opinion date February 21, 1997 in the joint proxy statement/prospectus of AVEMCO Corporation and HCC Insurance Holdings, Inc. related to the Merger. In executing this consent, we do not admit or acknowledge that Alex. Brown & Sons Incorporated is within the class of persons whose consent is required by section 7 of the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder. ALEX. BROWN & SONS INCORPORATED by: /s/ PETER F. DEVOS ----------------------------------- Managing Director ALEX. BROWN & SONS INCORPORATED ONE SOUTH STREET - BALTIMORE, MARYLAND 21202 - TELEPHONE: (410) 727-1700 - TELEX: 198186 -----END PRIVACY-ENHANCED MESSAGE-----