As filed with the Securities and Exchange Commission on November 30, 2001.
Registration No. _____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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)
------------------------
HILB, ROGAL AND HAMILTON COMPANY
OUTSIDE DIRECTORS 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)
-----------
CALCULATION OF REGISTRATION FEE
====================================== ================= ====================== ======================= =============
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price per Aggregate Offering Registration
To be Registered Registered Obligation Price Fee
-------------------------------------- ----------------- ---------------------- ----------------------- -------------
Deferred Compensation
Obligations (1)..................... $5,000,000 (2) --(3) $5,000,000 (2) $1,195(4)
Common Stock, no
par value per share................ --(5) --(5) --(5) --(5)
====================================== ================= ====================== ======================= =============
(1) The Deferred Compensation Obligations are unsecured obligations of Hilb,
Rogal and Hamilton Company to pay deferred compensation in the future in
accordance with the terms of the Hilb, Rogal and Hamilton Company Outside
Directors Deferral Plan, as amended and restated effective January 1,
2002. Pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee. Such
estimate is based upon an estimate of the aggregate compensation to be
deferred by participants.
(3) The proposed maximum offering price per obligation or share will be
determined from time to time by the Registrant in connection with the
issuance of the securities hereunder.
(4) Calculated pursuant to Rule 457(o) of the Rules and Regulations under the
Securities Act of 1933, as amended.
(5) Certain Deferred Compensation Obligations issued pursuant to the Hilb,
Rogal and Hamilton Company Outside Directors Deferral Plan are paid in
Shares of Common Stock, no par value, of equal value. No separate
registration fee is required.
================================================================================
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 Outside Directors
Deferral Plan, as amended and restated effective 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.
II-2
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 certain non-employee
members of the Company's Board of Directors with the opportunity to elect to
defer Retainer and Additional Fees payable to such Directors during any Plan
Year. A separate Account under the Plan will be established for each
Participant. Within each Participant's Account, the Company will maintain
separate subaccounts. For certain Participants in the Former Plan, this will
include a Deferred Cash Account with respect to Compensation earned after
December 31, 1994 and before April 1, 1998. No further Deferred Contributions
may be made by Participants to Deferred Cash Accounts. The balance in a
Participant's Deferred Account shall earn interest at the Rate of Return (9%),
subject to increase by the Compensation Committee.
All Participants subsequent to April 1, 1998 will have a Deferred Stock
Unit Account into which Deferral Contributions can be made with respect to
Deferred Stock Units. The Participant may designate a dollar amount to be
deducted from his or her Compensation ("Deferral Contribution"). The maximum
Deferral Contribution of Retainer with respect to any Participant for a Plan
Year shall be 100%. The maximum Deferral Contribution of Additional Fees is also
100%, and such election must be made in 25% increments. A Participant who elects
to defer 100% of his Compensation (Retainer and Additional Fees) shall receive
additional Deferred Stock Units equal to 30% of such Participant's Compensation
for the Plan Year.
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.
II-3
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 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.
In the event a Participant dies prior to his Benefit Commencement Date,
the Beneficiary of such Participant shall be entitled to receive as a Death
Benefit the Participant's Deferral Benefit which shall be paid pursuant to the
Participant's election form except that the payment shall be made, or begin, on
the first of January following the Participant's date of death. If the
Participant is not age 65 or older at the time of his death, his Deferral
Benefit shall be increased to an amount equal to the Deferral Benefit the
Participant would have received as of his Benefit Commencement Date. This amount
shall be calculated assuming the balances in both the Participant's Deferral
Cash Account and Deferred Stock Account had been held in a Deferred Cash Account
as of the first of January following the Participant's date of death and
credited with additional amounts at the Rate of Return through the Benefit
Commencement Date as provided in the Plan. The number of additional shares added
to the Participant Deferral Benefit as a result of this adjustment shall be
based on the Closing Price of the Company's Common Stock on the first of January
following the Participant's date of death.
If the Participant dies after his Benefit Commencement Date, the
Beneficiary of such Participant shall be entitled to receive as a Death Benefit
a continuation of the payment of the remaining Deferral Benefit in the same
manner and amount elected by the Participant.
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
II-4
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 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 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
II-5
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 Outside Directors 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).*
------------
*Filed herewith
II-6
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
(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.
II-7
(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.
II-8
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
30th day of November, 2001.
HILB, ROGAL AND HAMILTON COMPANY
By: /s/ Andrew L. Rogal
------------------------------------
Andrew L. Rogal
Chairman and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned hereby appoints Walter L. Smith and Carolyn
Jones, each of whom may act individually, as attorneys-in-fact and agents for
the undersigned, with full power of substitution, for and in the name, place and
stead of the undersigned, to sign and file with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, any and all amendments
(including post-effective amendments) to this registration statement, with any
schedules or exhibits thereto, and any and all supplements or other documents to
be filed with the Securities and Exchange Commission pertaining to the
registration of securities covered hereby, with full power and authority to do
and perform any and all acts and things as may be necessary or desirable in
furtherance of such registration.
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
--------- ----- ----
/s/ Andrew L. Rogal Chairman, Chief Executive Officer November 30, 2001
-------------------------------------------- and Director
Andrew L. Rogal (Principal Executive Officer)
/s/ Carolyn Jones Senior Vice President November 30, 2001
-------------------------------------------- and Chief Financial Officer
Carolyn Jones (Principal Financial Officer)
/s/ Robert W. Blanton, Jr. Vice President and Controller November 30, 2001
-------------------------------------------- (Principal Accounting Officer)
Robert W. Blanton, Jr.
/s/ Robert H. Hilb Chairman Emeritus and Director November 30, 2001
--------------------------------------------
Robert H. Hilb
Signature Title Date
--------- ----- ----
/s/ Martin L. Vaughan, III President, Chief Operating Officer November 30, 2001
--------------------------------------------- and Director
Martin L. Vaughan, III
/s/ Timothy J. Korman Executive Vice President, November 30, 2001
--------------------------------------------- Finance and Administration and
Timothy J. Korman Director
/s/ Theodore L. Chandler, Jr. Director November 30, 2001
---------------------------------------------
Theodore L. Chandler, Jr.
/s/ Norwood H. Davis, Jr. Director November 30, 2001
---------------------------------------------
Norwood H. Davis, Jr.
/s/ Robert W. Fiondella Director November 30, 2001
---------------------------------------------
Robert W. Fiondella
/s/ J.S.M. French Director November 30, 2001
---------------------------------------------
J.S.M. French
/s/ Anthony F. Markel Director November 30, 2001
--------------------------------------------
Anthony F. Markel
/s/ Thomas H. O'Brien Director November 30, 2001
--------------------------------------------
Thomas H. O'Brien
Director November 30, 2001
--------------------------------------------
David W. Searfoss
/s/ Robert S. Ukrop Director November 30, 2001
--------------------------------------------
Robert S. Ukrop
Signature Title Date
--------- ----- ----
/s/ Julious P. Smith, Jr. Director November 30, 2001
--------------------------------------------
Julious P. Smith, Jr.
EXHIBIT INDEX
-------------
TO
FORM S-8 REGISTRATION STATEMENT
----------------------
Exhibit
Number Description of Exhibit
------ ----------------------
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 Outside Directors 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).*
------------
*Filed herewith