As filed with the Securities and Exchange Commission on August 30, 2002
REGISTRATION NO. ______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ARCH CAPITAL GROUP LTD.
(Exact name of registrant as specified in its charter)
BERMUDA NOT APPLICABLE
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
WESSEX HOUSE, 3RD FLOOR
45 REID STREET
HAMILTON HM 12 BERMUDA
(441) 278-9250
(Address of Principal Executive Offices)
ARCH CAPITAL GROUP LTD. 2002 LONG TERM INCENTIVE AND SHARE AWARD PLAN
(Full title of the plan)
NATIONAL REGISTERED AGENTS, INC.
440 9TH AVENUE, 5TH FLOOR
NEW YORK, NEW YORK 10001
(Name and address of agent for service)
(800) 767-1553
(Telephone number, including area code, of agent for service)
Copy to:
IMMANUEL KOHN, ESQ.
CAHILL GORDON & REINDEL
80 PINE STREET
NEW YORK, NEW YORK 10005
(212) 701-3000
CALCULATION OF REGISTRATION FEE
============================= ====================== ======================== ======================== =====================
Proposed Maximum Proposed Maximum
Title of Amount to be Offering Price Aggregate Offering Amount of
Securities to be Registered Registered(1) Per Share Price Registration Fee
----------------------------- ---------------------- ------------------------ ------------------------ ---------------------
Common shares,
$.01 par value 3,165,830 shares $ 28.13(2) $89,054,797.90(2) $8,193.04
============================= ====================== ======================== ======================== =====================
(1) Plus such additional number of common shares as may be issued under the
Company's 2002 Long Term Incentive and Share Award Plan in the event of a
share dividend, recapitalization, share split, reverse split,
reorganization, merger, amalgamation, consolidation or other similar
dilutive event.
(2) Estimated pursuant to Rules 457(c) and (h) under the Securities Act of
1933, as amended, solely for purposes of determining the registration fee
and is based on the average of the reported high and low sales prices of
the common shares on the Nasdaq National Market on August 29, 2002.
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REOFFER PROSPECTUS
ARCH CAPITAL GROUP LTD.
COMMON SHARES, PAR VALUE US $0.01 PER SHARE
3,165,830 shares issued or issuable under the
Arch Capital Group Ltd. 2002 Long Term Incentive and Share Award Plan
This prospectus relates to the offer and sale of our common shares, par
value US $0.01 per share, which may be offered hereby from time to time by any
or all of the selling shareholders named herein for their own benefit.
All or a portion of the common shares offered hereby may be offered for
sale, from time to time, through the Nasdaq National Market or otherwise, at
prices and terms then obtainable. All brokers' commissions, concessions or
discounts will be paid by the selling shareholders. We will not receive any of
the proceeds from sales by selling shareholders.
The selling shareholders and brokers through whom sales of the common
shares are made may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act of 1933. In addition, any profits realized by the
selling shareholders or such brokers on the sale of the common shares may be
deemed to be underwriting commissions under the Securities Act.
Our common shares are traded on the Nasdaq National Market under the symbol
"ACGL". The last reported sale price of the common shares on the Nasdaq National
Market on August 29, 2002 was $27.80 per share.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------------------
The date of this Prospectus is August 30, 2002
TABLE OF CONTENTS
PAGE
----
AVAILABLE INFORMATION.........................................................i
THE COMPANY...................................................................1
USE OF PROCEEDS...............................................................1
SELLING SHAREHOLDERS..........................................................1
PLAN OF DISTRIBUTION..........................................................1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...............................2
LEGAL MATTERS.................................................................3
EXPERTS.......................................................................3
SEC POSITION ON INDEMNIFICATION...............................................3
AVAILABLE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission. We have also filed with
the SEC a registration statement on Form S-8 to register the common shares
offered by this prospectus. This prospectus, which forms a part of the
registration statement, does not contain all of the information included in the
registration statement. For further information about us and the securities
offered in this prospectus, you should refer to the registration statement and
the exhibits to it.
You may read and copy any document we file with the SEC at the SEC's Public
Reference Room at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549 and may obtain copies of these documents at the SEC's offices at 233
Broadway, New York, New York 10279 at prescribed rates. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference Room. We file our
SEC materials electronically with the SEC, so you can also review our filings by
accessing the website maintained by the SEC at http://www.sec.gov. This site
contains reports, proxy information statements and other information regarding
issuers that file electronically with the SEC.
NO DEALER, SALESPERSON OR OTHER PERSON IS AUTHORIZED TO GIVE ANY
INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS. YOU MUST
NOT RELY ON ANY UNAUTHORIZED INFORMATION OR REPRESENTATIONS. THIS PROSPECTUS IS
AN OFFER TO SELL OR TO BUY ONLY THE SHARES OFFERED BY THIS PROSPECTUS, BUT ONLY
UNDER CIRCUMSTANCES AND IN JURISDICTIONS WHERE IT IS LAWFUL TO DO SO. THE
INFORMATION CONTAINED IN THIS PROSPECTUS IS CURRENT ONLY TO THE DATE OF THIS
PROSPECTUS.
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THE COMPANY
Arch Capital Group Ltd. ("ACGL") was formed in Bermuda on September 22,
2000. Our executive offices are located at Wessex House, 3rd Floor, 45 Reid
Street, Hamilton HM 12 Bermuda; telephone number: (441) 278-9250.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the common shares offered
by this prospectus. All proceeds will be received by the selling shareholders.
SELLING SHAREHOLDERS
Under our 2002 Long Term Incentive and Share Award Plan (the "Plan"),
there are available a total of 3,165,830 common shares for issuance to our
and our subsidiaries' employees and directors. The common shares to which
this prospectus relates are being registered for reoffers and resales by
selling shareholders who may acquire, or have acquired, such shares pursuant
to the Plan. To date, the following persons, pursuant to the Plan, have been
granted options to purchase common shares and restricted shares in the
numbers set forth opposite their names in the table below:
NUMBER OF COMMON
SHARES SUBJECT
NAME TO OPTION RESTRICTED SHARES
---- ---------------- -----------------
Dwight R. Evans........................ 25,000 0
Robert Glanville....................... 300 277
David R. Tunnell....................... 300 277
We do not know whether any of the selling shareholders will use this
prospectus in connection with the offer or sale of any common shares, or, if
this prospectus is so used, how many common shares will be offered or sold. The
selling shareholders may resell all, a portion, or none of the shares that they
have acquired or may acquire pursuant to the Plan. Pursuant to Rule 424(b) under
the Securities Act, we will supplement this prospectus with the number of common
shares, if any, to be offered or sold by the selling shareholders as that
information becomes known.
PLAN OF DISTRIBUTION
The selling shareholders may sell common shares through dealers, through
agents or directly to one or more purchasers. The distribution of the common
shares may be effected from time to time in one or more transactions (which may
involve crosses or block transactions):
o on any national stock exchanges on which the common shares may be
traded from time to time in transactions which may include special
offerings, exchange distributions and/or secondary distributions
pursuant to and in accordance with the rules of such exchanges,
o in the over-the-counter market, or
o in transactions other than on such exchanges or in the
over-the-counter market, or a combination of such transactions.
Any such transaction may be effected at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, at negotiated prices
or at fixed prices. The selling shareholders may effect such transactions by
selling common shares to or through broker-dealers, and such broker-dealers may
receive compensation in the form of discounts, concessions or commissions from
the selling shareholders and/or commissions from purchasers of common shares for
whom they may act as agent. The selling shareholders and any broker-dealers or
agents that participate in the distribution of common shares by them might be
deemed to be underwriters, and any discounts, commissions or concessions
received by any such broker-dealers or agents might be deemed to be underwriting
discounts and commissions, under the Securities Act.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means we can disclose important information to you by referring
you to those documents. The information included in the following documents is
incorporated by reference and is considered to be a part of this prospectus. The
most recent information that we file with the SEC automatically updates and
supersedes information previously filed. We have previously filed the following
documents with the SEC and are incorporating them by reference into this
prospectus:
o Our annual report on Form 10-K for the year ended December 31, 2001.
o Our quarterly report on Form 10-Q for the quarter ended March 31, 2002
and our quarterly report on Form 10-Q for the quarter ended June 30,
2002.
o Our proxy statement on Schedule 14A for our annual meeting of
shareholders held on June 27, 2002 (other than the sections entitled
"Proposal 1--Election of Directors--Report of the Compensation
Committee of the Board of Directors," "Proposal 1--Election of
Directors--Performance Graph," "Proposal 1--Election of Directors--
Report of the Audit Committee of the Board of Directors" and "Proposal
6--Ratification of Selection of Independent Auditors--Audit Fees").
o The description of the common shares contained in our registration
statement on Form 8-A filed on August 23, 2002 pursuant to Section 12
of the Securities Exchange Act of 1934, including any amendment or
report filed for the purpose of updating such description.
We are also incorporating into this prospectus all documents subsequently
filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
prior to the filing of a post-effective amendment that indicates all common
shares offered have been sold, or that deregisters all common shares then
remaining unsold.
We will provide without charge to each person, including any person having
a control relationship with that person, to whom a prospectus is delivered, a
copy of any or all of the information that has been incorporated by reference in
this prospectus but not delivered with this prospectus. If you would like to
obtain this information from us, please direct your request, either in writing
or by telephone, to:
Arch Capital Group Ltd.
Wessex House, 3rd Floor
45 Reid Street
Hamilton HM 12 Bermuda
Attention: Secretary
Telephone Number: (441) 278-9250
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LEGAL MATTERS
The validity of the common shares offered hereby will be passed upon for us
by Conyers Dill & Pearman, Hamilton, Bermuda.
EXPERTS
The financial statements incorporated in this prospectus by reference to
our annual report on Form 10-K for the year ended December 31, 2001 have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
SEC POSITION ON INDEMNIFICATION
Under Bermuda law, a company is permitted to indemnify any officer or
director, out of the funds of the company, against (a) any liability incurred by
him or her 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 any application under relevant Bermuda legislation in which
relief from liability is granted to him or her by the court and (b) any loss or
liability resulting from negligence, default, breach of duty or breach of trust,
save for his or her fraud and dishonesty. Our bye-laws provide for our indemnity
of our officers, directors and employees to the fullest extent permitted by law.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers or persons controlling us pursuant to the
foregoing provisions, we have been informed that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable. We believe that the limitation of liability
provisions in our bye-laws will facilitate our ability to continue to attract
and retain qualified individuals to serve as our officers and directors.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the Note to Part I of Form S-8, the information required by
Part I is not required to be filed with the SEC.
Arch Capital Group Ltd. will provide without charge to each person to whom
a copy of a Section 10(a) prospectus hereunder is delivered, upon the oral or
written request of such person, a copy of any document incorporated in this
registration statement by reference, except exhibits to such documents. Requests
for such information should be directed to Arch Capital Group Ltd., Wessex
House, 3rd Floor, 45 Reid Street, Hamilton HM 12 Bermuda, Attention: Secretary;
telephone number: (441) 278-9250.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
See section of prospectus entitled "Incorporation of Certain Documents by
Reference."
ITEM 4. DESCRIPTION OF SECURITIES
The class of securities offered is registered under Section 12 of the
Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Bermuda law, a company is permitted to indemnify any officer or
director, out of the funds of the company, against (a) any liability incurred by
him or her 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 any application under relevant Bermuda legislation in which
relief from liability is granted to him or her by the court and (b) any loss or
liability resulting from negligence, default, breach of duty or breach of trust,
save for his or her fraud and dishonesty.
Our bye-laws provide for our indemnity of our officers, directors and
employees to the fullest extent permitted by law.
Our bye-laws also provide that expenses (including attorneys' fees)
incurred by one of our officers or directors in defending any civil, criminal,
administrative or investigative action, suit or proceeding will be paid by us in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he or she is not entitled to be
indemnified by us pursuant to Bermuda law.
Our bye-laws also provide that our officers and directors will not be
personally liable to us or our shareholders for monetary damages for any breach
of fiduciary duty as a director or officer, except to the extent that such
limitation is prohibited by Bermuda Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
A total of 554 of our common shares previously issued under our 2002 Long
Term Incentive and Share Award Plan to participants listed as selling
shareholders in the prospectus contained in this registration statement were
awarded either in transactions not involving a sale or in reliance upon the
exemption from registration provisions of the Securities Act set forth in
Section 4(2) therein.
ITEM 8. EXHIBITS
See Exhibit Index immediately preceding the Exhibits.
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ITEM 9. UNDERTAKINGS
We hereby undertake:
(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 this 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 this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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;
provided, however, that paragraphs (1)(i) and (1)(ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by us pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference in this
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.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of our 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and persons
controlling us pursuant to the foregoing provisions, or otherwise, we
have been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by us
of expenses incurred or paid by a director, officer or person
controlling us in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securi-
II-2
ties being registered, we will, unless in the opinion of our counsel
the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by us is against public policy as expressed in the
Securities 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, 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 Greenwich, State of Connecticut on August 30, 2002.
ARCH CAPITAL GROUP LTD.
By: /s/ PETER A. APPEL
------------------------------------
Peter A. Appel
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been duly signed below by the following persons on
behalf of the Registrant and in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
* Chairman and Director August 30, 2002
---------------------------------------
Robert Clements
/s/ Peter A. Appel President and Chief Executive Officer August 30, 2002
--------------------------------------- (Principal Executive Officer) and
Peter A. Appel Director
* Executive Vice President and Chief August 30, 2002
--------------------------------------- Financial Officer (Principal
John D. Vollaro Financial and Accounting Officer)
* Chairman and Chief Executive Officer August 30, 2002
--------------------------------------- of Arch Reinsurance Ltd. and Director
Paul B. Ingrey
* President and Chief Executive Officer August 30, 2002
--------------------------------------- of Arch Capital Group (U.S.) Inc.
Constantine Iordanou and Director
* Director August 30, 2002
---------------------------------------
Wolfe "Bill" H. Bragin
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SIGNATURE TITLE DATE
--------- ----- ----
* Director August 30, 2002
---------------------------------------
John L. Bunce, Jr.
* Director August 30, 2002
---------------------------------------
Robert Glanville
* Director August 30, 2002
---------------------------------------
Kewsong Lee
* Director August 30, 2002
---------------------------------------
James J. Meenaghan
* Executive Vice Chairman and August 30, 2002
--------------------------------------- Director
John M. Pasquesi
* Director August 30, 2002
---------------------------------------
David R. Tunnell
* Director August 30, 2002
---------------------------------------
Robert F. Works
*By: /s/ PETER A. APPEL
-----------------------------
Attorney-in-Fact
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4 Specimen Common Share Certificate (a)
5 Opinion of Conyers Dill & Pearman regarding the legality of the securities
10 Arch Capital Group Ltd. 2002 Long Term Incentive and Share Award Plan (b)
15 Accountants' Awareness Letter (regarding unaudited interim financial information) (b)
23.1 Consent of Conyers Dill & Pearman (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney
----------------
(a) Incorporated by reference to the annual report on Form 10-K/A of Arch
Capital Group Ltd. for the year ended December 31, 2000, as filed with the
SEC on August 10, 2001.
(b) Incorporated by reference to the quarterly report on Form 10-Q of Arch
Capital Group Ltd. for the quarterly period ended June 30, 2002, as filed
with the SEC on August 14, 2002.