As filed with the Securities and Exchange Commission on May 31, 2002
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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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)
-------------------------------------------
XL House
One Bermudiana Road
Hamilton, HM 11, Bermuda
(Address of Principal Executive Offices)
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XL CAPITAL LTD 1991 PERFORMANCE INCENTIVE PROGRAM
(AS AMENDED AND RESTATED)
XL CAPITAL LTD EMPLOYEE SHARE PURCHASE PLAN
XL CAPITAL GLOBALSHARE-SHARE INCENTIVE PLAN
XL CAPITAL LTD UK EMPLOYEE SHARE PURCHASE PLAN
XL CAPITAL LTD GLOBALSHARE-SAVE AS YOU EARN
XL CAPITAL LTD GLOBALSHARE-SWISS EMPLOYEE SHARE PURCHASE PLAN
-------------------
Paul S. Giordano, Esq.
Executive Vice President,
General Counsel and Secretary
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
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CALCULATION OF REGISTRATION FEE
============================ ================= ======================== ======================== ==========================
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered ---------------- Offering Price Per Aggregate Offering Registration Fee
Registered Share Price
---------------------------- ----------------- ------------------------ ------------------------ --------------------------
Class A Ordinary Shares,
par value $.01 per 9,225,000 $88.34(3) $814,936,500.00 $74,974.16
share(1) shares(2)
============================ ================= ======================== ======================== ==========================
(1) Includes Ordinary Share Purchase Rights, which prior to the occurrence of
certain events will not be exercisable or evidenced separately from the
Ordinary Shares
(2) Represents 8,000,000 shares issuable under the XL Capital Ltd 1991
Performance Incentive Program (as amended and restated); and an aggregate
of 1,225,000 shares issuable under the XL Capital Ltd Employee Share
Purchase Plan, XL Capital globalShare - Share Incentive Plan, XL Capital
Ltd UK Employee Share Purchase Plan, XL Capital Ltd globalShare - Save as
You Earn and XL Capital Ltd globalShare - Swiss Employee Share Purchase
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 May 30, 2002.
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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 into this
registration statement:
(i) Quarterly Report on Form 10-Q for the quarter ended March 31, 2002
(File No. 1-10804);
(ii) Proxy Statement for the Annual General Meeting of Shareholders held on
May 10, 2002 (File No. 1-10804);
(iii) Annual Report on Form 10-K for the year ended December 31, 2001 (File
No. 1-10804);
(iv) The Company's current reports on Form 8-K dated January 4, 2002,
January 7, 2002, January 11, 2002, January 14, 2002, January 18, 2002
and February 5, 2002; and
(v) The Company's current report on Form 8-K filed on August 7, 1998 (File
No. 1-10804) relating to the deemed registration of the Ordinary
Shares under Section 12(b) of the Securities Exchange Act of 1934 (the
"Exchange Act") pursuant to Rule 12g-3(a) of the Exchange Act and the
description of such shares set forth under the caption "Description of
XL Capital Ordinary Shares" contained in the Prospectus Supplement to
Prospectus dated October 25, 2001 filed with the Commission on
November 2, 2001.
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.
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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 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.
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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 Hunter & Hunter (included in Exhibit 5).
24 Powers of Attorney.
99.1 Acceptance of Appointment of CT Corporation System as U.S. agent for
Service of Process.
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;
(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
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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 herein, 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.
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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 May 30, 2002.
XL CAPITAL LTD
By: /s/ Brian M. O'Hara
-------------------------------------------------
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
---------- ----- ----
/s/ Brian M. O'Hara President, Chief Executive Officer and May 30, 2002
----------------------------------- Director
Name: Brian M. O'Hara
* Executive Vice President and Chief Financial May 30, 2002
-----------------------------------
Name: Jerry M. St. Paer Officer
* . Chairman of the Board of Directors May 30, 2002
-----------------------------------
Name: Michael P. Esposito, Jr.
* Director May 30, 2002
-----------------------------------
Name: Ronald L. Bornhuetter
* Director May 30, 2002
-----------------------------------
Name: Michael A. Butt
* Director May 30, 2002
-----------------------------------
Name: Dale R. Comey
* Director May 30, 2002
-----------------------------------
Name: Sir Brian Corby
* Director May 30, 2002
-----------------------------------
Name: Robert R. Glauber
* Director May 30, 2002
-----------------------------------
Name: Paul Jeanbart
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* Director May 30, 2002
-----------------------------------
Name: John Loudon
* Director May 30, 2002
-----------------------------------
Name: Robert S. Parker
* Director May 30, 2002
-----------------------------------
Name: Cyril Rance
* Director May 30, 2002
-----------------------------------
Name: Alan Z. Senter
* Director May 30, 2002
-----------------------------------
Name: John T. Thornton
* Director May 30, 2002
-----------------------------------
Name: Ellen E. Thrower
* Director May 30, 2002
-----------------------------------
Name: John Weiser
* Executive Vice President, General Counsel and May 30, 2002
-----------------------------------
Name: Paul S. Giordano Secretary
*By: /s/ Brian M. O'Hara
--------------------
Attorney-in-fact
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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 Hunter & Hunter (included in Exhibit 5).
24 Power of Attorney.
99.1 Acceptance of Appointment of CT Corporation System as U.S. agent for
Service of Process.
Exhibit 5
HUNTER & HUNTER
The Huntlaw Building
P.O. Box 190 GT
Grand Cayman
Cayman Islands
XL Capital Ltd
Cumberland House
One Victoria Street
P.O. Box HM 2245
Hamilton HM JX
Bermuda
31st May 2002
Dear Sirs:
XL Capital Ltd - 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 9,225,000 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 (as amended
and restated), Employee Share Purchase Plan, Globalshare-Share Incentive Plan,
UK Employee Share Purchase Plan, Globalshare-Save As You Earn, and the Company's
Global Share-Swiss Employee Share Purchase 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 Registration Statement as filed with the Securities and Exchange
Commission. We have assumed without independant verification the genuiness of
all signatures, authenticity of all documents submitted to us as originals and
the conformity with original documents of all documents submitted to us by
telefax or as copies or conformed copies. We have relied upon the accuracy of
the facts contained in a certificate of an officer of the Company dated 25
February 2002 and have assumed the continuing accuracy as at the date hereof 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
relevant Plans and the Registration Statement 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 practising 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 other 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
/s/ Allison B. Nolan
Allison B. Nolan
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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 12, 2002 relating to the
financial statements and financial statement schedules, which appear in XL
Capital Ltd's Annual Report on Form 10-K for the year ended December 31, 2001.
/s/ PRICEWATERHOUSECOOPERS LLP
New York, New York
May 30, 2002
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 Ordinary Share Purchase Rights which are
exercisable under certain circumstances) ("Ordinary Shares"), 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 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 May 30, 2002
--------------------------------------
Name: Brian M. O'Hara Director
/s/ Paul S. Giordano Executive Vice President, May 30, 2002
--------------------------------------
Name: Paul S. Giordano General Counsel and Secretary
/s/ Jerry M. de St. Paer Executive Vice President and Chief Financial May 30, 2002
--------------------------------------
Name: Jerry M. de St. Paer Officer
/s/ Michael P. Esposito, Jr. Chairman of the Board of Directors May 30, 2002
--------------------------------------
Name: Michael P. Esposito, Jr.
/s/ Ronald L. Bornhuetter Director May 30, 2002
--------------------------------------
Name: Ronald L. Bornhuetter
/s/ Michael A. Butt Director May 30, 2002
--------------------------------------
Name: Michael A. Butt
/s/ Dale R. Comey Director May 30, 2002
--------------------------------------
Name: Dale R. Comey
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/s/ Sir Brian Corby Director May 30, 2002
--------------------------------------
Name: Sir Brian Corby
/s/ Robert R. Glauber Director May 30, 2002
--------------------------------------
Name: Robert R. Glauber
/s/ Paul Jeanbart Director May 30, 2002
--------------------------------------
Name: Paul Jeanbart
/s/ John Loudon Director May 30, 2002
--------------------------------------
Name: John Loudon
/s/ Robert S. Parker Director May 30, 2002
--------------------------------------
Name: Robert S. Parker
/s/ Cyril Rance Director May 30, 2002
--------------------------------------
Name: Cyril Rance
/s/ Alan Z. Senter Director May 30, 2002
--------------------------------------
Name: Alan Z. Senter
/s/ John T. Thornton Director May 30, 2002
--------------------------------------
Name: John T. Thornton
/s/ Ellen E. Thrower Director May 30, 2002
--------------------------------------
Name: Ellen E. Thrower
/s/ John Weiser Director May 30, 2002
--------------------------------------
Name: John Weiser
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Exhibit 99.1
Cahill Gordon & Reindel
80 Pine Street
New York, NY
10005-0000
May 31, 2002
Re: Registration Statement on From S-8 of registering 9,225,000 Ordinary Shares
of XL Capital Ltd (the "Registration Statement")
Dear Stuart:
C T Corporation System, located at 111 Eighth Avenue, New York, New York 10011,
hereby accept its appointment as agent for service of process for XL Capital
Ltd, in connection with the Registration Statement.
Any process received by us will be forwarded to:
XL House
One Bermudiana Road
Hamilton HM11
Bermuda
Attn: Paul S. Giordano
(441) 292-8515
Any process received by us will be forwarded to:
XL Capital Finance (Europe) PLC
35 Basinghall Street
London EC2V 5DB
England
Any process received by us will be forwarded to:
Immanuel Kohn, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, NY
10005-1702
(212) 701-3000
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We acknowledge that we have previously been appointed as agent with respect
to other registrations statements of XL Capital Ltd and that our fee for the
first year of this appointment will be $204.00 and that you will be invoiced
annually at our then-current renewal rate so long as such invoices continue to
be paid, or until we are advised in writing to discontinue our representation.
Our continued representation is contingent upon our receipt of timely payment of
our charges for services.
Very truly yours,
/s/ Deborah Diaz
Associate/Customer Specialist
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