-----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, NBNGGRfFlhnxDbPDvXOmRpfav/UN7pbU9519D8VnP6Im9To6nKZ4fDVZsJc31FDL JY2dpHQG6PJwIttDFaBw3A== /in/edgar/work/20000920/0000950162-00-001034/0000950162-00-001034.txt : 20000924 0000950162-00-001034.hdr.sgml : 20000924 ACCESSION NUMBER: 0000950162-00-001034 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000920 EFFECTIVENESS DATE: 20000920 FILER: COMPANY DATA: COMPANY CONFORMED NAME: XL CAPITAL LTD CENTRAL INDEX KEY: 0000875159 STANDARD INDUSTRIAL CLASSIFICATION: [6351 ] IRS NUMBER: 980058718 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-46250 FILM NUMBER: 725939 BUSINESS ADDRESS: STREET 1: CUMBERLAND HOUSE STREET 2: 1 VICTORIA ST CITY: HAMILTON HM11 BERMUD STATE: D2 BUSINESS PHONE: 4412928515 MAIL ADDRESS: STREET 1: CAHILL GORDON & REINDEL(IMMANUEL KOHN) STREET 2: 80 PINE STREET CITY: NEW YORKI STATE: NY ZIP: 10005 FORMER COMPANY: FORMER CONFORMED NAME: EXEL LTD DATE OF NAME CHANGE: 19950720 S-8 1 0001.txt FORM S-8 As filed with the Securities and Exchange Commission on September 20, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------- XL CAPITAL LTD (Exact name of registrant as specified in its charter) Cayman Islands 98-0058718 (State or other jurisdiction (I.R.S. Employer Identification No.) of incorporation or organization) Cumberland House One Victoria Street P.O. Box HM 2245 Hamilton HM JX Bermuda (Address of Principal Executive Offices) ------------------- XL CAPITAL LTD 1991 PERFORMANCE INCENTIVE PROGRAM XL CAPITAL LTD 1999 PERFORMANCE INCENTIVE PROGRAM XL CAPITAL CONVERTED 1997 INCENTIVE AND CAPITAL ACCUMULATION PLAN ------------------- Paul S. Giordano, Esq. Senior Vice President and General Counsel XL Capital Ltd c/o CT Corporation System 1633 Broadway New York, New York 10019 (Name and address of agent for service) (212) 246-5070 (Telephone number, including area code, of agent for service) ------------------- Copy to: Immanuel Kohn, Esq. Cahill Gordon & Reindel 80 Pine Street New York, NY 10005-1702 -------------------
CALCULATION OF REGISTRATION FEE ======================================================================================================================= Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of be Registered ---------------- Offering Price Per Aggregate Offering Registration Fee Registered Share Price - ----------------------------------------------------------------------------------------------------------------------- Class A Ordinary Shares, 10,340,801 $69.78(3) $721,581,093.78 $190,497.41 par value $.01 per shares(2) share(1) =======================================================================================================================
(1) Includes Preferred Share Purchase Rights, which prior to the occurrence of certain events will not be exercisable or evidenced separately from the Ordinary Shares (2) Represents 8,500,000 shares issuable under the XL Capital Ltd 1991 Performance Incentive Program; 1,250,000 shares issuable under the XL Capital Ltd 1999 Performance Incentive Program; and 590,801 shares issuable under the XL Capital Converted 1997 Incentive And Capital Accumulation Plan. (3) Pursuant to Rule 457(h)(1) under the Securities Act of 1933, the proposed maximum offering price per share, the proposed maximum aggregate offering price and the registration fee have been calculated based on the basis of the average high and low prices reported for the Class A Ordinary Shares reported on the New York Stock Exchange on September 13, 2000. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by XL Capital Ltd (the "Company" or the "Registrant") with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934 are hereby incorporated by reference in this registration statement: (i) Quarterly Report on Form 10-Q for the quarter ended June 30, 2000 (File No. 1-10804); (ii) Proxy Statement for the Annual General Meeting of Shareholders held on May 12, 2000 (File No. 1-10804); (iii) Quarterly Report on Form 10-Q for the quarter ended March 31, 2000 (File No. 1-10804); (iv) Annual Report on Form 10-K for the year ended December 31, 1999 (File No. 1-10804); and (v) The Company's Registration Statement on Form S-4 filed with the Commission on April 26, 1999, including the description of the Company's Ordinary Shares contained therein under the caption "Share Capital," including any amendment or report filed for the purpose of updating such description. All documents filed by the Registrant pursuant to Section 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 to this registration statement indicating that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this registration statement and to be part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein 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. ITEM 4. DESCRIPTION OF SECURITIES. Not required. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not required. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article 109 of the Company's Articles of Association, incorporated by reference to Exhibit G to the Joint Proxy Statement of EXEL Limited and Mid Ocean Limited dated July 2, 1998 (the "Joint Proxy II-1 Statement"), contains provisions with respect to indemnification of the directors and officers of the Company. The general effect of these provisions is to provide for the indemnity by the Company of an officer, director, employee or agent of the Company for threatened, pending or completed actions, suits or proceedings (other than an action by or in the right of the Company) brought against such indemnified person by reason of the fact that such person was an officer, director, employee or agent of the Company, if such indemnified person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful. The Articles of Association also provide for the indemnification of such person against expenses actually and reasonably incurred in connection with suits brought by or in the right of the Company by reason of the fact that such indemnified person is an officer, director, employee or agent of the Company if such indemnified person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the Company; provided that no such indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for willful neglect or default in the performance of his duty to the Company unless and only to the extent that the Grand Court of the Cayman Islands or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Grand Court or other such court shall deem proper. To the extent that such indemnified person shall be successful on the merits or otherwise in defense of any such action, suit or proceeding, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. Directors and officers of the Company are also provided with indemnification against certain liabilities pursuant to a directors and officers liability insurance policy. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not required. II-2 ITEM 8. EXHIBITS. Exhibit Number Exhibit 4.1 Memorandum of Association of the Registrant (incorporated by reference to Annex G to the Joint Proxy Statement). 4.2 Articles of Association (incorporated by reference to Annex G to the Joint Proxy Statement). 4.3 Rights Agreement, dated as of September 11, 1998, between the Company and Chase Mellon Shareholder Services, L.L.C., as Rights Agent (incorporated herein by reference to the Company's Current Report on Form 8-K dated October 21, 1998). 5 Opinion of Hunter & Hunter. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Ernst & Young LLP. 23.3 Consent of Hunter & Hunter (included in Exhibit 5). 24 Powers of Attorney. 99.1 Appointment of CT Corporation System as U.S. Agent for Service of Process (incorporated by reference to the Company's Form F-N filed with the Commission on September 24, 1998). 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 (the "Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement (except to the extent the information required to be included by clauses (i) or (ii) is contained in periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference into this registration statement; II-3 (iii) To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; (2) That, for the purpose of determining any liability under the 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 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this 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 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 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. II-4 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 Hamilton and Country of Bermuda, on September 20, 2000. XL CAPITAL LTD By: * ----------------------------------------- Name: Brian M. O'Hara Title: President, Chief Executive Officer and Director Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signatures Title Date - ---------- ----- ---- * President, Chief Executive Officer and September 20, 2000 - --------------------------------- Director Name: Brian M. O'Hara * Executive Vice President and Chief Financial September 20, 2000 - --------------------------------- Officer Name: Robert R. Lusardi * Chairman of the Board of Directors September 20, 2000 - --------------------------------- Name: Michael P. Esposito, Jr. * Director September 20, 2000 - ----------------------------- Name: Ronald L. Bornhuetter * Director September 20, 2000 - ----------------------------- Name: Michael A. Butt * Director September 20, 2000 - ----------------------------- Name: Robert Clements * Director September 20, 2000 - ----------------------------- Name: Sir Brian Corby * Director September 20, 2000 - ----------------------------- Name: Robert R. Glauber * Director September 20, 2000 - ----------------------------- Name: Ian R. Heap II-5 * Director September 20, 2000 - ----------------------------- Name: Paul Jeanbart * Director September 20, 2000 - ----------------------------- Name: John Loudon * Director September 20, 2000 - ----------------------------- Name: Daniel J. McNamara * Director September 20, 2000 - ----------------------------- Name: Robert S. Parker * Director September 20, 2000 - ----------------------------- Name: Cyril Rance * Director September 20, 2000 - ----------------------------- Name: Alan Z. Senter * Director September 20, 2000 - ----------------------------- Name: John T. Thornton * Director September 20, 2000 - ----------------------------- Name: Ellen E. Thrower * Director September 20, 2000 - ----------------------------- Name: John Weiser /s/ Paul S. Giordano Senior Vice President, General Counsel and September 20, 2000 - --------------------------------- Secretary Name: Paul S. Giordano *By: /s/ Paul S. Giordano -------------------- Attorney-in-fact
II-6 EXHIBIT INDEX Exhibit Number Exhibit 4.1 Memorandum of Association of the Registrant (incorporated by reference to Annex G to the Joint Proxy Statement). 4.2 Articles of Association (incorporated by reference to Annex G to the Joint Proxy Statement). 4.3 Rights Agreement, dated as of September 11, 1998, between the Company and Chase Mellon Shareholder Services, L.L.C., as Rights Agent (incorporated herein by reference to the Company's Current Report on Form 8-K dated October 21, 1998). 5 Opinion of Hunter & Hunter. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Ernst & Young LLP. 23.3 Consent of Hunter & Hunter (included in Exhibit 5). 24 Power of Attorney. 99.1 Appointment of CT Corporation System as U.S. Agent for Service of Process (incorporated by reference to the Company's Form F-N filed with the Commission on September 24, 1998). II-7 EX-5 2 0002.txt OPINION OF HUNTER & HUNTER Exhibit 5 HUNTER & HUNTER The Huntlaw Building P.O. Box 190 GT Grand Cayman Cayman Islands 18 September 2000 TO: XL Capital Ltd Cumberland House One Victoria Street P.O. Box HM 2245 Hamilton HM JX Bermuda Dear Sirs: XL Capital Ltd (the "Company") - Form S-8 Registration Statement You have asked us to render this opinion in our capacity as your counsel as to Cayman Islands law in connection with the registration pursuant to a Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as Amended (the "Act") of the 10,340,801 Class A ordinary shares of the Company, par value US$0.01 per share (the "Ordinary Shares") to be issued pursuant to the Company's 1991 Performance Incentive Program, 1999 Performance Incentive Program and the Company's Converted 1997 Incentive and Capital Accumulation Plan (together, the "Plans") as ratified and adopted by the board of directors of the Company. We have reviewed the Company's Memorandum and Articles of Association as issued by or filed with the Registrar of Companies prior to the date hereof and the form of the Registration Statement as filed with the Securities and Exchange Commission. We have assumed without independent verification the genuiness of all signatures, authenticity of all documents submitted to us as originals and the conformity with the original documents of all documents submitted to us by telefax or as copies or conformed copies. We have relied upon the accuracy of a certificate of an officer of the Company dated 15 September 2000 in giving this opinion further verification. We assume that all subscription monies due in respect of shares issued by the Company have been or will be duly received by the Company. We further assume that all Ordinary Shares to be issued in accordance with the Plans have been reserved for issuance and that there are no intervening changes in the Plans, the Company's Memorandum and Articles of Association, the laws of the Cayman Islands or any other relevant matter. On the basis of the foregoing, we would advise as follows: 1. The Company's authorised capital is US$9,990,000 divided into 999,990,000 Ordinary Shares of a par value of US$0.01 each. 2. The Company has sufficient authorised share capital to issue the Ordinary Shares and the issue thereof is within the power of the Company's Board of Directors. The Ordinary Shares to be issued in accordance with the Plans have been duly authorised and when issued and registered in the Company's Register of Members in accordance with the provisions of the Plans will be legally and validly issued. 3. On the basis that the contractual subscription price (being not less than the par value) of the Ordinary Shares is fully paid in cash or satisfied by other consideration approved by the Board of Directors of the Company or a duly established Committee thereof, such Ordinary Shares issued or to be issued may properly be credited as fully paid under Cayman Islands Law. 4. Fully paid shares are not subject to further calls or assessments by the Company in respect of such shares. 5. The Company has been incorporated as an exempted company under the Companies Law of the Cayman Islands and under the Memorandum of Association of the Company, the liability of its shareholders is limited to the amount, if any, unpaid on their shares. On the basis that all such shares are fully paid, there is no rule of Cayman Islands law that would impose any further liability on person holding shares in the Company solely by reason of such shareholding. We are practicing in the Cayman Islands and we do not purport to be experts on the laws of any other jurisdiction and we have made no investigation of, or express any opinion as to the laws of any jurisdiction other than the Cayman Islands. This opinion is based upon the laws of the Cayman Islands in effect at the date hereof and is given only as to the circumstances existing on the date hereof and known to us. This opinion is intended solely for your benefit and may not be relied upon by any person although we hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the heading "Certain Legal Matters." Yours faithfully, HUNTER & HUNTER per: /s/ Allison Nolan ----------------------- Allison Nolan -2- EX-23.1 3 0003.txt CONSENT OF PRICEWATERHOUSECOOPERS LLP Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 9, 2000 relating to the financial statements, which appears in the 1999 Annual Report to Shareholders of XL Capital Ltd, which is incorporated by reference in XL Capital Ltd's Annual Report on Form 10-K for the year ended December 31, 1999 which states that we did not audit the financial statements of NAC Re Corp. for the year ended December 31, 1998 and that our opinion, insofar as it relates to the amounts included in NAC Re Corp. for those dates, is based solely on the report of other auditors, which report is included herein. We also consent to the incorporation by reference of our report dated February 9, 2000 relating to the financial statements schedules, which appears in such Annual Report on Form 10-K. /s/ PRICEWATERHOUSECOOPERS LLP New York, New York September 14, 2000 EX-23.2 4 0004.txt CONSENT OF ERNST & YOUNG LLP Exhibit 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement of XL Capital Ltd (Form S-8) of our report, on the consolidated financial statements of NAC Re Corporation as of December 31, 1998 and for each of the two years in the period ended December 31, 1998, dated February 3, 1999 except for Note 15, as to which the date is February 15, 1999 incorporated by reference in the Annual Report on Form 10-K of XL Capital Ltd for 1999 filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP New York, New York September 14, 2000 EX-24 5 0005.txt POWER OF ATTORNEY Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and directors of XL Capital Ltd (the "Company") in their respective capacities set forth below constitutes and appoints Brian M. O'Hara and Paul S. Giordano as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to do any and all acts and all things and to execute any and all instruments which said attorney and agent may deem necessary or desirable to enable the Company to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission thereunder in connection with the registration under such Act of shares of Class A Ordinary Shares, par value US $0.01 per share (together with related Preferred Share Purchase Rights which are exercisable under certain circumstances) ("Ordinary Shares") issuable to employees pursuant to the Company's 1991 Performance Incentive Program and 1999 Performance Incentive Program to the extent that any such registration may be required in the opinion of the executive officers of the Company, upon the advice of counsel, including without limitation, the power and authority to sign the name of the undersigned individual in the capacity indicated below opposite the name of such individual to the Registration Statement on Form S-8 or any Form relating to the registration of such Ordinary Shares, to be filed with the Securities and Exchange Commission with respect to said Ordinary Shares, to sign any and all amendments (including post-effective amendments) and supplements to such 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 attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute, may lawfully do or cause to be done by virtue hereof.
Signatures Title Date - ---------- ----- ---- /s/ Brian M. O'Hara President, Chief Executive Officer and July 22, 2000 - --------------------------------- Director Name: Brian M. O'Hara /s/ Robert R. Lusardi Executive Vice President and Chief Financial July 22, 2000 - --------------------------------- Officer Name: Robert R. Lusardi /s/ Michael P. Esposito, Jr. Chairman of the Board of Directors July 22, 2000 - ------------------------------------ Name: Michael P. Esposito, Jr. /s/ Ronald L. Bornhuetter Director July 22, 2000 - --------------------------------- Name: Ronald L. Bornhuetter /s/ Michael A. Butt Director July 22, 2000 - --------------------------------- Name: Michael A. Butt /s/ Robert Clements Director July 22, 2000 - --------------------------------- Name: Robert Clements /s/ Sir Brian Corby Director July 22, 2000 - --------------------------------- Name: Sir Brian Corby /s/ Robert R. Glauber Director July 22, 2000 - --------------------------------- Name: Robert R. Glauber /s/ Ian R. Heap Director July 22, 2000 - --------------------------------- Name: Ian R. Heap /s/ Paul Jeanbart Director July 22, 2000 - --------------------------------- Name: Paul Jeanbart /s/ John Loudon Director July 22, 2000 - --------------------------------- Name: John Loudon /s/ Daniel J. McNamara Director July 22, 2000 - --------------------------------- Name: Daniel J. McNamara /s/ Robert S. Parker Director July 22, 2000 - --------------------------------- Name: Robert S. Parker /s/ Cyril Rance Director July 22, 2000 - --------------------------------- Name: Cyril Rance /s/ Alan Z. Senter Director July 22, 2000 - --------------------------------- Name: Alan Z. Senter /s/ John T. Thornton Director July 22, 2000 - --------------------------------- Name: John T. Thornton /s/ Ellen E. Thrower Director July 22, 2000 - --------------------------------- Name: Ellen E. Thrower /s/ John Weiser Director July 22, 2000 - --------------------------------- Name: John Weiser
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