As filed with the Securities and Exchange Commission on February 12, 2002.
Registration No. 333-74340
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
to
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
HILB, ROGAL AND HAMILTON COMPANY
(Exact Name of Registrant as Specified in its Charter)
Virginia 54-1194795
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
4951 Lake Brook Drive, Suite 500, Glen Allen, Virginia 23060
(Address of Principal Executive Offices) (Zip Code)
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HILB, ROGAL AND HAMILTON COMPANY
EXECUTIVE VOLUNTARY DEFERRAL PLAN
(Full Title of the Plan)
Walter L. Smith, Esq.
Senior Vice President, General Counsel and Secretary
Hilb, Rogal and Hamilton Company
4951 Lake Brook Drive, Suite 500
Glen Allen, Virginia 23060
(804) 747-6500
(Name, Address and Telephone Number,
Including Area Code, of Agent for Service)
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by the Registrant with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934 (the "Exchange Act") are incorporated herein by reference and made a part
hereof:
(1) the Registrant's Annual Report on Form 10-K (the "Form 10-K")
for the fiscal year ended December 31, 2000, File No. 0-15981;
(2) the portions of the Registrant's definitive Proxy Statement
for the Annual Meeting of Shareholders held on May 1, 2001
that have been incorporated by reference into the Form 10-K;
(3) the Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 2001, June 30, 2001 and September 30,
2001, File No. 0-15981;
(4) the Registrant's Current Report on Form 8-K, filed on June 11,
2001, File No. 0-15981; and
(5) the description of the Registrant's Common Stock contained in
the Registrant's Current Report on Form 8-K, dated January 23,
2001, File No. 0-15981.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained herein or 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 other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such earlier 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
The securities being registered are deferred compensation obligations
("Deferred Compensation Obligations") and shares ("Shares") of Common Stock of
the Registrant payable with respect to certain Deferred Compensation Obligations
of the Registrant under the Hilb, Rogal and Hamilton Company Executive Voluntary
Deferral Plan, as amended and restated effective
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January 1, 2002 (the "Plan"). Capitalized terms used in this Item 4 and not
otherwise defined in this Registration Statement shall have the respective
meanings attributed to such terms in the Plan.
The Deferred Compensation Obligations incurred by the Registrant under
the Plan are unsecured general obligations of the Registrant, and will rank
equally with other unsecured and unsubordinated indebtedness of the Registrant
outstanding from time to time. The Plan is unfunded, and the Registrant is not
required to set aside assets to be used for payment of the Deferred Compensation
Obligations. In addition, the right of the Registrant (and hence the rights of
creditors of the Registrant, including Participants in the Plan) to participate
in a distribution of the assets of a subsidiary of the Registrant upon its
liquidation or reorganization or otherwise is necessarily subject to the prior
claims of creditors of the subsidiary, except to the extent that claims of the
Company itself as a creditor may be recognized.
Under the Plan, the Registrant will provide a select group of its
executives who have the rank of President or higher of a subsidiary of the
Company or any member of the executive group of the Company with the opportunity
to elect to defer part of the Salary plus part or all of the Bonus payable to
such executives during any Plan Year. The Registrant will establish a Deferred
Cash Account and a Deferred Stock Unit Account for each executive who elects to
participate in the Plan. A Participant may designate a fixed dollar amount or a
percentage to be deducted from his or her Salary and Bonus ("Deferral
Contribution") and shall indicate how the Deferral Contribution is to be
allocated between the Participant's Deferred Cash Account and the Participant's
Deferred Stock Unit Account. The maximum deferral during any Plan Year is 50% of
the amount of any Salary and 100% of the amount of any Bonus. Amounts credited
to the Participant's Deferred Cash Account earn interest at the Rate of Return
(initially 7%), subject to increase by the Compensation Committee.
Except as otherwise provided in the Plan, a Participant's Deferred
Stock Unit Account will be treated as if it were invested in Deferred Stock
Units that are equivalent in value to the fair market value of the shares of the
Registrant's Common Stock in accordance with the terms set forth in the Plan.
The number of Deferred Stock Units credited to a Participant's Deferred Stock
Unit Account will be increased on each date on which a dividend is paid on the
Registrant's Common Stock. The number of additional Deferred Stock Units
credited to a Participant's Deferred Stock Unit Account as a result of such
increase will be determined by (i) multiplying the total number of Deferred
Stock Units (with fractional Deferred Stock Units rounded off to the nearest
thousandth) credited to the Participant's Deferred Stock Unit Account
immediately before such increase by the amount of the dividend paid per share of
the Registrant's Common Stock on the dividend payment date, and (ii) dividing
the product so determined by the Closing Price of the Registrant's Common Stock
on the dividend payment date. The dollar value of the Deferred Stock Units
credited to a Participant's Deferred Stock Unit Account on any date will be
determined by multiplying the number of Deferred Stock Units (including
fractional Deferred Stock Units) credited to the Participant's Deferred Stock
Unit Account by the Closing Price on that date.
The amounts deferred by Participants under the Plan represent an
obligation of the Registrant to make payments to the Participants at some time
in the future. A Participant's Deferred Stock Unit Account shall be paid in
Shares of the Company's Common Stock with fractional Shares
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paid in cash, and the Deferred Cash Account shall be paid in cash. The amount
that the Registrant is required to pay to any Participant under the terms of the
Plan is equal to the Deferral Benefit, or the sum of the Deferred Contributions
made by the Participant plus interest accrued at the Rate of Return with respect
to a Participant's Deferred Cash Account, and adjusted for hypothetical gains or
losses attributable to the deemed investment of such Deferral Contributions in
shares of the Registrant's Common Stock with respect to his or her Deferred
Stock Unit Account.
The amounts payable to Participants under the Plan are distributed in
accordance with the distribution provisions of the Plan. Generally, such
distributions are made as of the Benefit Commencement Date specified in the
Participant's Deferral Election. Payment of benefits may either be in a lump sum
or in annual installments at the Participant's election. The Plan also provides
for interim distributions of amounts payable from the Participant's Deferral
Account and for withdrawal of Plan amounts in the event of a financial
emergency. The Registrant is entitled to withhold all federal, state and local
income, employment and other taxes required to be withheld by the Registrant in
connection with payments to be made to Participants under the Plan.
Each Participant is at all times 100% vested in all Deferral
Contributions, as well as in any appreciation (or depreciation) in the amount
thereof due to appreciation or depreciation in the Registrant's Common Stock.
The Plan provides that the Company may, but is not required to,
establish a grantor trust (the "Trust") which may be used to hold assets of the
Company to be maintained as reserves against the Company's unfunded, unsecured
obligations under the Plan. The Company may appoint one or more individuals or
corporations to act as Trustee. The Company may remove the Trustee and appoint a
successor Trustee at any time. The Trustee's responsibility would be limited to
holding and investing the assets of the Trust in its possession and voting the
Common Stock it holds in its discretion as a fiduciary. No Participant or
Beneficiary would have any right, title or interest in or to, any Trust assets
(and all such assets shall remain subject to the claims of the Company's
creditors).
Neither the Participant nor his or her Beneficiary has any right to
sell, assign, transfer or otherwise convey the right to receive any payments
under the Plan or any interest in the Plan, which payments and interest are
expressly declared to be non-assignable and non-transferable. The interests of
each Participant under the Plan are not subject to the claims of the
Participant's creditors.
The Registrant reserves the right to amend or terminate the Plan,
provided that any such amendment does not decrease or restrict the value of a
Participant's account balance under the Plan in existence at the time the
amendment is made. Moreover, the Registrant reserves the right to unilaterally
shorten the Deferral Period of any Participant, if it determines that to do so
will be fair and equitable to the Participant.
Item 5. Interests of Named Experts and Counsel
Williams Mullen, counsel to the Registrant, has rendered its opinion
that (i) the Deferred Compensation Obligations, when issued pursuant to the
terms and conditions of the Plan, will be
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legal, valid and binding obligations of the Registrant and (ii) any Shares which
are original issue securities, when paid pursuant to the terms and conditions of
the Plan, will be legally issued, fully paid and non-assessable. Julious P.
Smith, Jr., a principal in Williams Mullen, is a director of the Registrant and
beneficially owned an aggregate of 1000 shares of Common Stock as of November
27, 2001. Other attorneys employed by the firm beneficially owned an aggregate
of 931 shares of the Registrant's Common Stock as of November 27, 2001.
Item 6. Indemnification of Directors and Officers
Article 10 of Chapter 9 of Title 13.1 of the Code of Virginia (the
"Code") permits a Virginia corporation to indemnify any director or officer for
reasonable expenses incurred in any legal proceeding in advance of final
disposition of the proceeding, if the director or officer furnishes the
corporation a written statement of his good faith belief that he or she has met
the standard of conduct prescribed by the Code, and a determination is made by
the board of directors that such standard has been met. In a proceeding by or in
the right of the corporation, no indemnification shall be made in respect of any
matter as to which an officer or director is adjudged to be liable to the
corporation, unless the court in which the proceeding took place determines
that, despite such liability, such person is reasonably entitled to
indemnification in view of all of the relevant circumstances. In any other
proceeding, no indemnification shall be made if the director or officer is
adjudged liable to the corporation on the basis that he improperly received a
personal benefit. Corporations are given the power to make any other or further
indemnity, including advance of expenses, to any director or officer that may be
authorized by the articles of incorporation or any bylaw made by the
shareholders, or any resolution adopted, before or after the event, by the
shareholders, except an indemnity against willful misconduct or a knowing
violation of the criminal law. Unless limited by its articles of incorporation,
indemnification of a director or officer is mandatory when he or she entirely
prevails in the defense of any proceeding to which he or she is a party because
he or she is or was a director or officer.
The Articles of Incorporation of the Registrant contain provisions
indemnifying the directors and officers of the Registrant to the full extent
permitted by Virginia law. In addition, the Articles of Incorporation of the
Registrant eliminate the personal liability of the Registrant's directors and
officers to the Registrant or its shareholders for monetary damages to the full
extent permitted by Virginia law.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed on behalf of the Registrant as part of this
Registration Statement:
4.1 Articles of Incorporation of the Registrant, incorporated by
reference to Exhibit 4.1 of the Registrant's Registration
Statement on Form S-3, File No. 33-56488.
4.2 Amended and Restated Bylaws of the Registrant, incorporated by
reference to Exhibit 3.2 of the Registrant's Form 10-K for the
year ended December 31, 1998, File No. 0-15981.
4.3 Hilb, Rogal and Hamilton Company Executive Voluntary Deferral
Plan, as amended and restated effective January 1, 2002.*
4.4 Form of Common Stock Certificate, incorporated by reference to
Exhibit 1 of the Registrant's Form 8-A Registration Statement,
filed June 12, 1987, File No. 0-15981.
5.1 Opinion of Williams Mullen.
23.1 Consent of Williams Mullen (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.*
24 Powers of Attorney (included on Signature Page to original
filing).
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*Filed herewith
Item 9. Undertakings
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;
(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. 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
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement; and
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(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 paragraph (1)(i) and (1)(ii)
shall not apply if the registration statement is on
Form S-3, Form S-8 or Form F-3, and 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 Commission by the
Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act 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.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered that remain unsold at the termination of
the offering.
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 (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.
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 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, as amended,
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 County of Henrico, Commonwealth of Virginia, on this
8th day of February, 2002.
HILB, ROGAL AND HAMILTON COMPANY
By: *
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Andrew L. Rogal
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
* Chairman, Chief Executive Officer February 8, 2002
-------------------------------------------- and Director
Andrew L. Rogal (Principal Executive Officer)
* Senior Vice President February 8, 2002
-------------------------------------------- and Chief Financial Officer
Carolyn Jones (Principal Financial Officer)
* Vice President and Controller February 8, 2002
-------------------------------------------- (Principal Accounting Officer)
Robert W. Blanton, Jr.
* Chairman Emeritus and Director February 8, 2002
--------------------------------------------
Robert H. Hilb
Signature Title Date
--------- ----- ----
* President, Chief Operating Officer February 8, 2002
-------------------------------------------- and Director
Martin L. Vaughan, III
* Executive Vice President, February 8, 2002
-------------------------------------------- Finance and Administration and Director
Timothy J. Korman
* Director February 8, 2002
--------------------------------------------
Theodore L. Chandler, Jr.
* Director February 8, 2002
--------------------------------------------
Norwood H. Davis, Jr.
* Director February 8, 2002
--------------------------------------------
Robert W. Fiondella
* Director February 8, 2002
--------------------------------------------
J.S.M. French
* Director February 8, 2002
--------------------------------------------
Anthony F. Markel
* Director February 8, 2002
--------------------------------------------
Thomas H. O'Brien
Director February 8, 2002
--------------------------------------------
David W. Searfoss
* Director February 8, 2002
--------------------------------------------
Robert S. Ukrop
Signature Title Date
--------- ----- ----
* Director February 8, 2002
--------------------------------------------
Julious P. Smith, Jr.
* Walter L. Smith, by signing his name hereto, signs this document on
behalf of each of the persons indicated by asterisk above pursuant to powers of
attorney duly executed by such persons and previously filed with the Securities
and Exchange Commission as part of the registration statement.
Date: February 8, 2002 /s/ Walter L. Smith
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Walter L. Smith
Attorney-in-Fact
EXHIBIT INDEX
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TO
FORM S-8 REGISTRATION STATEMENT
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Exhibit
Number Description of Exhibit
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4.1 Articles of Incorporation of the Registrant, incorporated by reference
to Exhibit 4.1 of the Registrant's Registration Statement on Form S-3,
File No. 33-56488.
4.2 Amended and Restated Bylaws of the Registrant, incorporated by
reference to Exhibit 3.2 of the Registrant's Form 10-K for the year
ended December 31, 1998, File No. 0-15981.
4.3 Hilb, Rogal and Hamilton Company Executive Voluntary Deferral Plan, as
amended and restated effective January 1, 2002.*
4.4 Form of Common Stock Certificate, incorporated by reference to Exhibit
1 of the Registrant's Form 8-A Registration Statement, filed June 12,
1987, File No. 0-15981.
5.1 Opinion of Williams Mullen.
23.1 Consent of Williams Mullen (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.*
24 Powers of Attorney (included on Signature Page to original filing).
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*Filed herewith