-----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, B4ZX1+e+CtKQNAJu5eiO8N0D81ZGtM9QM/u7jCmcfM59tgRlQBfzrCqo04dtHG8x Apyly50lqe9w8LRdO9Qahg== 0000074931-98-000013.txt : 19980714 0000074931-98-000013.hdr.sgml : 19980714 ACCESSION NUMBER: 0000074931-98-000013 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980710 EFFECTIVENESS DATE: 19980710 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ORION CAPITAL CORP CENTRAL INDEX KEY: 0000074931 STANDARD INDUSTRIAL CLASSIFICATION: SURETY INSURANCE [6351] IRS NUMBER: 956069054 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-58889 FILM NUMBER: 98664677 BUSINESS ADDRESS: STREET 1: 600 FIFTH AVE CITY: NEW YORK STATE: NY ZIP: 10020 BUSINESS PHONE: 8606746600 MAIL ADDRESS: STREET 1: 600 FIFTH AVENUE STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10020-2302 FORMER COMPANY: FORMER CONFORMED NAME: EQUITY FUNDING CORP OF AMERICA DATE OF NAME CHANGE: 19760518 FORMER COMPANY: FORMER CONFORMED NAME: TONGOR CORP OF AMERICA DATE OF NAME CHANGE: 19670330 FORMER COMPANY: FORMER CONFORMED NAME: TONGOR CORP DATE OF NAME CHANGE: 19661024 S-8 1 REGISTRATION NO. SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 -------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------------------- ORION CAPITAL CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) Delaware 95-6069054 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 9 Farm Springs Road, Farmington, Connecticut 06032-2504 (Address of Principal Executive Offices) (Zip Code) Orion Capital 401K and Profit Sharing Plan (formerly the Orion Capital Corporation Employees' Stock Savings and Retirement Plan) (Full Title of Plan) John J. McCann Executive Vice President and Chief Legal Officer Orion Capital Corporation 9 Farm Springs Road Farmington, Connecticut 06032-2504 (Name and Address of Agent for Service) (860) 674-6600 (Telephone Number, Including Area Code, of Agent of Service) --------------------------------------------------- CALCULATION OF REGISTRATION FEE - ---------------- -------------- ---------------- ------------------ ------------ Title of Proposed Maximum Proposed Maximum Amount of Securities to be Amount to be Offering Price Aggregate Offering Registration Registered Registered (1) Per Share (2) Price Fee - ---------------- -------------- ---------------- ------------------ ------------ Common Stock, 2,000,000 $58.031 $116,062,500 $34,238.44 $1.00 par value per share - ---------------- -------------- ---------------- ------------------ ------------ (1) The 2,000,000 shares of Common Stock being registered hereby will be issuable from time to time by Orion Capital Corporation (the "Company") to employees of the Company participating in the Company's 401K and Profit Sharing Plan. In addition to the 200,000 shares of Common stock indicated above, pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement also covers an indeterminate number of shares of Common Stock which may be issuable as a result of anti-dilution adjustments made under the 401K and Profit Sharing Plan and pursuant to the Company's stockholder rights plan. (2) The maximum offering price per share used to calculate the registration fee with respect to the 2,000,000 shares of Common Stock issuable under the 401K and Profit Sharing Plan was estimated pursuant to Rule 457(h) under the Securities Act using the average of the high and low prices per share of the Common Stock reported on the New York Stock Exchange on July 9, 1998. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS Pursuant to Rule 428(b)(1) under the Securities Act, the documents containing the information specified in Part I of Form S-8 will be sent or given to each participant in the Orion Capital 401K and Profit Sharing Plan (the "Plan"). These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute the Section 10(a) Prospectus. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The documents listed below are incorporated by reference herein, and all documents subsequently filed by Orion Capital Corporation ("Registrant") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities offered 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 filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference shall be deemed to be modified or superseded to the extent that a statement contained in this Registration Statement or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. o Registrant's Annual Report on Form 10-K for the year ended December 31, 1997. o Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998. o The Plan's Annual Report on Form 11-K for the year ended December 31, 1997. -2- o The description of Registrant's Common Stock and its preferred stock purchase rights associated with the Common Stock, contained in its registration statement filed pursuant to Section 12 of the Exchange Act and any amendment or report filed for the purpose of updating those descriptions. o The contents of the Registrant's Registration Statement on Form S-8 (Registration No. 2-63344) previously filed with the Commission. The consolidated financial statements and schedules of the Registrant included in the Registrant's Annual Report on Form 10-K and the Annual Report of the 401K and Profit Sharing Plan on Form 11-K for the year ended December 31, 1997 have been audited by Deloitte & Touche LLP, independent auditors, as set forth in their reports thereon included therein and incorporated herein by reference. Item 5. Interests of Named Experts and Counsel The validity of the securities have been passed upon by Michael P. Maloney, Esq., Senior Vice President, General Counsel and Secretary for the Registrant. Mr. Maloney beneficially owns Common Stock and options to purchase Common Stock. Item 6. Indemnification of Directors and Officers Article IX of Registrant's By-Laws requires indemnification of Registrant's directors and officers to the full extent permitted by the Delaware General Corporation Law (the "Law") and provides for the advancement of defense expenses provided the director or officer agrees to repay the advance if it is ultimately determined that he is not entitled to indemnification. Article IX also provides that the indemnification provided by the By-Laws is not exclusive. Section 145(a) of the Law provides in general that a corporation may indemnify anyone who is or may be a party to a legal proceeding by reason of his service as a director or officer against expenses, adjustments, fines and settlement payments actually and reasonably incurred if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and, as to any criminal proceeding, had no reasonable cause to believe his conduct was unlawful. Section 145(b) of the Law provides similarly where the proceeding is by or in the right of the corporation to procure a judgment in its favor. Section 145(g) of the Law allows a corporation to maintain insurance on behalf of any officer or director against any liability incurred by him in such capacity, whether or not the corporation would have the power to indemnify him against such liability under the Law. Registrant maintains such directors and officers liability insurance coverage. Each of Registrant's directors has entered into an indemnity agreement with Registrant which (i) confirms the indemnity set forth in the By-laws and gives assurances that such indemnity will continue to be provided despite any By-law changes and (ii) provides, subject to -3- certain conditions, that the director shall be indemnified to the fullest possible extent permitted by law against all expenses, judgments, fines and settlement amounts incurred or paid by him in any proceeding. As permitted by Section 102(b)(7) of the Law, Article VII of Registrant's Certificate of Incorporation eliminates personal liability of any director to Registrant and its stockholders for breach of the director's fiduciary duty of care, except where the director has breached his duty of loyalty, acted in bad faith, engaged in intentional or knowing misconduct, negligently or willfully declared an improper dividend or effected an unlawful stock repurchase or redemption, or obtained an improper personal benefit. Item 8. Exhibits 5.0 Opinion of Michael P. Maloney, Esq. 15.0 Letter in Lieu of Consent of Deloitte & Touche LLP 23.1 Consent of Deloitte & Touche LLP 23.2 Consent of Michael P. Maloney, Esq. (incorporated in Exhibit 5) 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; (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; and (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; -4- provided, however, that paragraphs (a)(1)(i) and (a)(ii) do not apply if the Registration Statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, 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, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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. (c) Insofar as indemnification for liabilities arising under the Securities Act 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 such 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 Securities Act and will be governed by the final adjudication of such issue. -5- SIGNATURES Pursuant to the requirements of the Securities Act, 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 Town of Farmington, State of Connecticut, on this 10th day of July, 1998. ORION CAPITAL CORPORATION By: /S/W. Marston Becker -------------------- W. Marston Becker Chairman of the Board and Chief Executive Officer of the Company -6- 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 date or dates indicated: Signature Title Date /S/ W. Marston Becker W. Marston Becker Chairman of the Board and Chief July 10, 1998 Executive Officer of the Company /S/ Donald W. Ebbert, Jr. Donald W. Ebbert, Jr. Executive Vice President and July 10, 1998 Chief Financial Officer /S/ Gordon F. Cheesbrough Gordon F. Cheesbrough Director July 10, 1998 /S/ John C. Colman John C. Colman Director July 10, 1998 /S/ David H. Elliott David H. Elliott Director July 10, 1998 /S/ Victoria R. Fash Victoria R. Fash Director July 10, 1998 /S/ Robert H. Jeffrey Robert H. Jeffrey Director July 10, 1998 /S/ Gordon W. Kreh Gordon W. Kreh Director July 10, 1998 Warren R. Lyons Director James K. McWilliams Director /S/ Ronald W. Moore Ronald W. Moore Director July 10, 1998 /S/ William W. Weaver William W. Weaver Director July 10, 1998 EX-5 2 [LETTERHEAD OF MICHAEL P. MALONEY, ESQ.] June 30, 1998 Orion Capital Corporation 9 Farm Springs Road Farmington, CT 10020 Orion Capital Corporation: In connection with the Registration Statement on Form S-8 relating to 2,000,000 shares of Common Stock, (par value $1.00 per share) (the "Shares") of Orion Capital Corporation ("Orion") under the 401K and Profit Sharing Plan (the "Plan"), it is my opinion that: 1. Orion is duly incorporated and validly existing in good standing under the laws of the State of Delaware. 2. All necessary corporate proceedings have been taken to authorize the issuance of the Shares under the Plan, and all such Shares, upon issuance in accordance with the Plan and upon full payment in cash for such Shares issued, will be validly issued and outstanding and fully paid and non-assessable. In preparing this opinion, I have examined certificates of public officials, certificates of officers and copies certified to my satisfaction of such corporate documents and records of Orion and such other papers as I have thought relevant and necessary as a basis for my opinion. I have relied on such certificates in connection with the accuracy of actual matters contained in such documents which were not independently established. I consent to the use of this opinion in the Registration Statement and to the reference to my name under the heading "Legal Opinion" in the Prospectus. In giving such consent, I do not admit that I come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, or the Rules and Regulations of the Securities and Exchange Commission. Very truly yours, /s/ Michael P. Maloney ---------------------------- Michael P. Maloney Senior Vice President, General Counsel and Secretary EX-15 3 EXHIBIT 15 July 10, 1998 Orion Capital Corporation 9 Farm Springs Road Farmington, CT 06032 We have made a review, in accordance with standards established by the American Institute of Certified Public Accountants, of the unaudited interim financial information of Orion Capital Corporation and subsidiaries for the period ended March 31, 1998 and 1997, as indicated in our report dated April 30, 1998; because we did not perform an audit, we expressed no opinion on that information. We are aware that our report referred to above, which was included in your Quarterly Report on Form 10-Q for the quarter ended March 31, 1998 is being used in this Registration Statement on Form S-8. We are also aware that the aforementioned report, pursuant to Rule 436(c) under the Securities Act, is not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act. Deloitte & Touche LLP Hartford, Connecticut EX-23 4 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Orion Capital Corporation on Form S-8 of our reports dated February 11, 1998 and June 19, 1998 appearing in the Annual Report on Form 10-K of Orion Capital Corporation for the year ended December 31, 1997 and in the Annual Report on Form 11-K of the Orion Capital 401K and Profit Sharing Plan for the year ended December 31, 1997, respectively. Deloitte & Touche, LLP Hartford, Connecticut July 10, 1998 -----END PRIVACY-ENHANCED MESSAGE-----