As filed with the Securities and Exchange Commission on October 2, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Endurance Specialty Holdings Ltd.
(Exact Name of Registrant as Specified in Its Charter)
| Bermuda | 98-0392908 | |
| (State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
Waterloo House
100 Pitts Bay Road
Pembroke HM 08, Bermuda
+1-441-278-0400
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Principal Executive Offices)
Endurance Specialty Holdings Ltd. 2007 Equity Incentive Plan
(Full Title of the Plan)
C T Corporation System
111 Eighth Avenue, New York, NY 10011
(212) 590-9070
(Name, Address and Telephone Number of Agent for Service)
Copies To:
| John V. Del Col Endurance Specialty Holdings Ltd. Waterloo House 100 Pitts Bay Road Pembroke HM 08, Bermuda +1-441-278-0400 |
Todd E. Freed Richard J. Grossman Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, New York 10036 (212) 735-3000 |
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | x | Accelerated filer | ¨ | |||
| Non-accelerated filer | ¨ | Smaller reporting company | ¨ | |||
CALCULATION OF REGISTRATION FEE
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| Title of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum Offering Price per Share(2) |
Proposed Maximum Offering Price(2) |
Amount of Registration Fee(2) | ||||
| Ordinary Shares, par value $1.00 per share |
1,025,349 | $60.54 | $62,074,628 | $6,251 | ||||
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| (1) | This registration statement on Form S-8 (this “Registration Statement”) relates to ordinary shares, par value $1.00 per share (the “Ordinary Shares”), of Endurance Specialty Holdings Ltd. (the “Company”). Pursuant to an Agreement and Plan of Merger, dated as of March 31, 2015 (the “Merger Agreement”), among Montpelier Re Holdings Ltd. (“Montpelier”), the Company and Millhill Holdings Ltd., a direct, wholly-owned subsidiary of the Company (“Merger Sub”), Montpelier merged with and into Merger Sub (the “Merger”). Upon completion of the Merger, the Company assumed the Montpelier Re Holdings Ltd. 2012 Long-Term Incentive Plan (the “2012 Montpelier Equity Plan”) and all awards outstanding thereunder and the future use of the remaining shares available for issuance under the 2012 Montpelier Equity Plan. This Registration Statement relates to the future use of the 1,668,609 remaining shares available for issuance under the 2012 Montpelier Equity Plan (the “Remaining Shares”), which were previously registered pursuant to the Form S-8 filed by Montpelier on May 23, 2012 (File No. 333-181620). The Remaining Shares were not subject to outstanding awards at the time of the Merger and the 2012 Montpelier Equity Plan is no longer available for future awards. On July 31, 2015, Montpelier filed Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 filed on May 23, 2012 (File No. 333-134924) deregistering the Remaining Shares. The number of Remaining Shares was adjusted pursuant to the terms of the Merger Agreement resulting in the registration of 1,030,086 Ordinary Shares under this Registration Statement. The Remaining Shares are being transferred from the 2012 Montpelier Equity Plan into the Endurance Specialty Holdings Ltd. 2007 Equity Incentive Plan (the “2007 Endurance Equity Plan”) for future issuance thereunder. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), the Registration Statement shall also cover additional Ordinary Shares that may become issuable under the agreements described herein by reason of any stock dividend, stock split, recapitalization or other similar transaction effected which results in an increase in the number of outstanding Ordinary Shares. |
| (2) | Estimated pursuant to Rule 457(c) and Rule 457(h) under the Securities Act on the basis of the average of the high and low sale prices for the Ordinary Shares as reported on The New York Stock Exchange on September 29, 2015 solely for the purpose of calculating the registration fee. |
EXPLANATORY NOTE
Endurance is filing this Registration Statement to register 1,025,349 Ordinary Shares authorized for issuance under the 2007 Endurance Equity Plan that were previously registered for use pursuant to the 2012 Montpelier Equity Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
| Item 1. | Plan Information.* |
| Item 2. | Registrant Information and Employee Plan Annual Information.* |
| * | The documents containing the information specified in Part I of Form S-8 will be sent or delivered to participants in the 2007 Endurance Equity Plan as specified by Rule 428(b)(1) under the Securities Act. Such documents are not required to be, and are not, filed with the SEC either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed with the SEC by the Company, pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference in this Registration Statement:
| 1. | the Company’s Annual Report on Form 10-K for the year ended December 31, 2014, filed on February 27, 2015; |
| 2. | the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2015, filed on August 7, 2015; |
| 3. | the Company’s Current Reports on Form 8-K/A filed on March 3, 2015 and September 15, 2015, the Company’s Current Reports on Form 8-K filed on March 31, 2015 (but only as to Items 8.01, 9.01 and Exhibit 99.2), April 1, 2015, May 22, 2015, May 27, 2015, June 30, 2015 and August 3, 2015; and |
| 4. | the description of the Company’s ordinary shares contained in Item 1 of the Company’s Registration Statement on Form 8-A filed with the SEC under Section 12 of the Exchange Act on February 10, 2003, in which reference is made to the information set forth under the heading “Description of Share Capital” in the Company’s Prospectus, which constitutes a part of the Company’s Registration Statement on Form S-1, as amended (File No. 333-102026), filed under the Securities Act, including any amendment or report filed for the purpose of updating such description. |
In addition, except as provided below, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of an additional post-effective amendment to the Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in the Registration Statement and to be part hereof from the date of filing of such documents with the SEC.
Any statement contained in a document incorporated or deemed to be incorporated by reference in the Registration Statement shall be deemed to be modified or superseded for purposes of the Registration Statement to the extent that a statement contained in the Registration Statement, or in any other subsequently filed document that also is or is deemed to be incorporated by reference in the Registration Statement, modifies or supersedes such prior statement. Any statement contained in the Registration Statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document that is or is deemed to be incorporated by reference in the Registration Statement modifies or supersedes such prior statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of the Registration Statement.
Under no circumstances will any information furnished under Items 2.02 or 7.01 of Current Report on Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
| Item 4. | Description of the Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and Officers. |
The amended and restated bye-laws of the Company provide for the indemnification of the Company’s officers and directors, members of a (duly constituted) committee and any resident representative (and their respective heirs, executors or administrators), each referred to as an indemnified person, against all actions, costs, charges, liabilities, loss, damage or expense to the full extent permitted by Bermuda law (including but not limited to liabilities under contract, tort, fiduciary duties and statute or any applicable foreign law or regulation and all reasonable legal and other costs and expenses properly payable), incurred or suffered by such party by reason of any act done, conceived in or omitted in the conduct of the Company’s business or in the discharge of his/her duties; provided that such indemnification shall not extend to any matter which would render it void pursuant to the Companies Act 1981 (the “Companies Act”) as in effect from time to time in Bermuda.
The Company’s amended and restated bye-laws state that an indemnified person shall be indemnified out of the funds of the Company against all liabilities incurred by him or her by reason of any act done, conceived in or omitted in the conduct of the Company’s business or in the discharge of his or her duties, in defending any proceedings, whether civil or criminal, in which judgment is given in his or her favor, or in which he or she is acquitted, or in connection with the application under the Companies Act in which relief is granted to him or her by the court.
In addition, each shareholder and the Company agree to waive any claim or right of action he or it may have at any time, whether individually or by or in the right of the Company against any indemnified person on account of any action taken by such person in the performance of his duties with or for the Company; provided that such waiver shall not extend to any claims or rights of action which would render it void pursuant to the Companies Act as in effect from time to time in Bermuda, that arises out of fraud or dishonesty on the part of such indemnified person or with respect to the recovery of any gain, personal profit or advantage to which such indemnified person is not legally entitled.
The Companies Act provides that a Bermuda company may indemnify its directors in respect of any loss arising or liability attaching to them as a result of any negligence, default, breach of duty or breach of trust of which they may be guilty. However, the Companies Act also provides that any provision, whether contained in the company’s bye-laws or in a contract or arrangement between the company and the director, indemnifying a director against any liability which would attach to him in respect of his fraud or dishonesty will be void.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
| Item 8. | Exhibits. |
A list of Exhibits filed herewith is contained in the Exhibit Index and is incorporated herein by reference.
| Item 9. | Undertakings |
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales of the securities registered hereby are being made, a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; 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;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
(b) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. 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 SEC such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Pembroke, Bermuda on the 2nd day of October, 2015.
| ENDURANCE SPECIALTY HOLDINGS LTD. | ||
| By: | /s/ John V. Del Col | |
| Name: | John V. Del Col | |
| Title: | Executive Vice President, General Counsel & Corporate Secretary | |
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints John R. Charman, Michael J. McGuire and John V. Del Col, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign any or all amendments or supplements to this registration statement, whether pre-effective or post-effective, including any subsequent registration statement for the same offering which may be filed under Rule 462(b) under the Securities Act of 1933, as amended, and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing necessary or appropriate to be done with respect to this registration statement or any amendments or supplements hereto in the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
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 as on the date indicated.
| Name |
Title |
Date | ||
| /s/ John R. Charman Name: John R. Charman |
Chairman and Chief Executive Officer | October 2, 2015 | ||
| /s/ Michael J. McGuire Name: Michael J. McGuire |
Chief Financial Officer | October 2, 2015 | ||
| /s/ Carrie L. Rosorea Name: Carrie L. Rosorea |
Chief Accounting Officer (Principal Accounting Officer) |
October 2, 2015 | ||
| /s/ John T. Baily Name: John T. Baily |
Director | October 2, 2015 | ||
| /s/ Norman Barham Name: Norman Barham |
Director | October 2, 2015 | ||
| /s/ Galen R. Barnes Name: Galen R. Barnes |
Director | October 2, 2015 | ||
| /s/ William H. Bolinder Name: William H. Bolinder |
Director | October 2, 2015 | ||
| /s/ Philip M. Butterfield Name: Philip M. Butterfield |
Director | October 2, 2015 | ||
| /s/ Steven W. Carlsen Name: Steven W. Carlsen |
Director | October 2, 2015 | ||
| /s/ Morgan W. Davis Name: Morgan W. Davis |
Director | October 2, 2015 | ||
| /s/ Susan S. Fleming Name: Susan S. Fleming |
Director | October 2, 2015 | ||
| /s/ Nicholas C. Marsh Name: Nicholas C. Marsh |
Director | October 2, 2015 | ||
| /s/ Scott D. Moore Name: Scott D. Moore |
Director | October 2, 2015 | ||
| /s/ William J. Raver Name: William J. Raver |
Director | October 2, 2015 | ||
| /s/ Robert A. Spass Name: Robert A. Spass |
Director | October 2, 2015 | ||
| /s/ Ian M. Winchester Name: Ian M. Winchester |
Director | October 2, 2015 | ||
| /s/ Daniel S. Lurie Name: Daniel S. Lurie |
Authorized Representative in the United States |
October 2, 2015 | ||
EXHIBIT INDEX
| Exhibit Number |
Description of Document | |
| 3.1 | Memorandum of Association (incorporated herein by reference to Exhibit 3.1 to Amendment No. 1 to the Registration Statement on Form S-1, File No. 333-102026, filed on January 28, 2003). | |
| 3.2 | Certificate of Deposit of Memorandum of Increase of Share Capital (incorporated herein by reference to Exhibit 3.2 to the Annual Report on Form 10-K for the Year Ended December 31, 2004). | |
| 3.3 | Amended and Restated Bye-laws (incorporated herein by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on May 9, 2013). | |
| 4.1 | Specimen Ordinary Share Certificate (incorporated herein by reference to Exhibit 4.1 to Amendment No. 2 to the registration statement on Form S-1 filed on February 10, 2003). | |
| 4.2 | Endurance Specialty Holdings Ltd. 2007 Equity Incentive Plan (as amended through March 1, 2012).* | |
| 5.1 | Opinion of ASW Law Limited* | |
| 10.1 | Montpelier Re Holdings Ltd. 2012 Long-Term Incentive Plan (incorporated herein by reference to Exhibit 10.1 to Post-Effective Amendment No. 1 on Form S-8 to the Registration Statement on Form S-4 filed on August 3, 2015). | |
| 23.1 | Consent of ASW Law Limited (included in Exhibit 5.1) | |
| 23.2 | Consent of Ernst & Young Ltd.* | |
| 24.1 | Power of Attorney (included on signature page herein) | |
| * | Filed herewith |