As filed with the Securities and Exchange Commission on March 26, 1998.
Registration No. _________
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
MARSH & MCLENNAN COMPANIES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of
incorporation or organization)
36-2668272
(I.R.S. Employer Identification Number)
1166 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036-2774
(212) 345-5000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
GREGORY F. VAN GUNDY
GENERAL COUNSEL AND SECRETARY
MARSH & MCLENNAN COMPANIES, INC.
1166 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036-2774
(212) 345-5000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agents for Service)
Copy to:
DAVID B. HARMS, ESQ. GREGORY A. FERNICOLA, ESQ.
SULLIVAN & CROMWELL SKADDEN, ARPS, SLATE,
125 BROAD STREET MEAGHER & FLOM LLP
NEW YORK, NEW YORK 10004 919 THIRD AVENUE
(212) 558-4000 NEW YORK, NEW YORK 10022
(212) 735-3000
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, check the
following box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box: |_|
(Continued on next page)
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO
SAID SECTION 8(A), MAY DETERMINE.
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(Continued from previous page)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Each Class Proposed Maximum Proposed Maximum Amount of
of Securities Amount to be Aggregate Price Aggregate Offering Registration
to be Registered Registered Per Unit(1)(3) Price(1) Fee
- ------------------------------ ------------------- ---------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 par value,
of Marsh & McLennan Companies,
Inc., including the Preferred
Stock Purchase Rights attached
thereto (2).................... 1,872,832 shares(4) $ 89.0625 $ 166,799,100 $ 49,206
</TABLE>
- -------------
(1) Estimated for the sole purpose of computing the registration fee.
(2) The Preferred Stock Purchase Rights initially are attached to and
trade with all the shares of Common Stock outstanding as of, and
issued subsequent to, September 29, 1997, pursuant to the terms of
the Company's Rights Agreement, dated as of September 18, 1997. Until
the occurrence of certain prescribed events, the Preferred Stock
Purchase Rights are not exercisable, are evidenced by the
certificates for the Common Stock and will be transferred only with
the Common Stock. The value attributable to such Preferred Stock
Purchase Rights, if any, is reflected in the market price of the
Common Stock.
(3) Calculated pursuant to Rule 457(c) based on the average of the high
and low prices on the New York Stock Exchange on March 24, 1998.
(4) Pursuant to Rule 429 under the Securities Act, the Prospectus filed
as part of this Registration Statement, in addition to the shares
registered hereby, may also be used in connection with sales of up to
702,452 shares of Common Stock that were registered pursuant to
Registration Statement No. 333-25069 and were not sold as of the date
hereof. A registration fee of $12,546 was previously paid with
respect to such additional shares.
[FLAG]
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the
securities law of any such jurisdiction.
SUBJECT TO COMPLETION, DATED MARCH 26, 1998
PROSPECTUS
MARSH & McLENNAN COMPANIES, INC.
2,575,284 Shares of Common Stock
This Prospectus relates to the offering from time to time of up to
2,575,284 shares of common stock, par value $1.00 per share (the "Common
Stock"), of Marsh & McLennan Companies, Inc., a Delaware corporation (the
"Company"), by certain stockholders of the Company (the "Selling
Stockholders"). The Common Stock offered hereby was issued as partial
consideration to the Selling Stockholders in connection with the Company's
business combination with Johnson & Higgins, a New Jersey corporation. See
"Selling Stockholders." The Company will not receive any proceeds from the
sale of the Common Stock offered hereby.
The Selling Stockholders directly, or through agents, dealers or
underwriters designated from time to time, may sell the Common Stock
offered hereby from time to time on terms to be determined at the time of
sale. To the extent required, the number of shares of Common Stock to be
sold, purchase price, public offering price, the names of the Selling
Stockholders, the names of any such agent, dealer or underwriter, and any
applicable commission or discount with respect to a particular offering
will be set forth in an accompanying Prospectus Supplement. The aggregate
proceeds to the Selling Stockholders from the sale of the Common Stock
offered hereby will be the purchase price thereof less the aggregate
agents' commissions and underwriters' discounts, if any, and other expenses
of distribution not borne by the Company. The Company has agreed to pay
certain expenses of the offering contemplated hereby. See "Plan of
Distribution."
The Selling Stockholders and any dealers, agents or underwriters that
participate with any Selling Stockholder in the distribution of Common
Stock may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"), and any
commission received by them and any profit from the resale of Common Stock
purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. See "Plan of Distribution" for a description of
information regarding indemnification arrangements.
The Common Stock is listed on the New York Stock Exchange (the "NYSE"), the
Chicago Stock Exchange, the Pacific Stock Exchange and the London Stock
Exchange under the trading symbol "MMC."
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
March 26, 1998
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, any
accompanying Prospectus Supplement or the documents incorporated or deemed
incorporated by reference herein, and any information or representations
not contained herein or therein may not be relied upon as having been
authorized by the Company or by any agent, dealer or underwriter. This
Prospectus and any accompanying Prospectus Supplement do not constitute an
offer to sell or a solicitation of an offer to buy the Common Stock in any
circumstances in which such offer or solicitation is unlawful. The delivery
of this Prospectus or any Prospectus Supplement at any time does not imply
that the information herein is correct as of any time subsequent to the
date of such information.
No action has been or will be taken in any jurisdiction by the
Company or any Selling Stockholder that would permit a public offering of
the Common Stock or possession or distribution of this Prospectus or any
accompanying Prospectus Supplement in any jurisdiction where action for
that purpose is required, other than in the United States. Persons into
whose possession this Prospectus or any accompanying Prospectus Supplement
comes are required by the Company and the Selling Stockholders to inform
themselves about and to observe any restrictions as to the offering of the
Common Stock and the distribution of this Prospectus and any accompanying
Prospectus Supplement.
CERTAIN PERSONS PARTICIPATING IN THE OFFERING MADE HEREBY MAY ENGAGE
IN TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF
THE COMMON STOCK, INCLUDING OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING
TRANSACTIONS IN SUCH SECURITIES AND THE IMPOSITION OF A PENALTY BID, IN
CONNECTION WITH THE OFFERING MADE HEREBY. FOR A DESCRIPTION OF THESE
ACTIVITIES, SEE "PLAN OF DISTRIBUTION".
TABLE OF CONTENTS
PAGE
AVAILABLE INFORMATION...............................................3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.....................3
THE COMPANY.........................................................4
USE OF PROCEEDS.....................................................4
SELLING STOCKHOLDERS................................................4
DESCRIPTION OF CAPITAL STOCK........................................6
PLAN OF DISTRIBUTION................................................8
LEGAL MATTERS......................................................10
EXPERTS............................................................10
AVAILABLE INFORMATION
This Prospectus constitutes part of a Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company with the Securities and Exchange
Commission (the "Commission") under the Securities Act with respect to the
Common Stock offered hereby. This Prospectus does not contain all
information set forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission.
Reference is made to the Registration Statement and to the exhibits thereto
for further information with respect to the Company and the Common Stock
offered hereby.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements and other information
with the Commission. Such reports, proxy statements and other information
can be inspected and copied at the public reference facilities of the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and
at the regional offices of the Commission located at 7 World Trade Center,
13th Floor, Suite 1300, New York, New York 10048 and Citicorp Center, 14th
Floor, Suite 1400, 500 West Madison Street, Chicago, Illinois 60661. Copies
of such material can also be obtained at prescribed rates by writing to the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Such information may also be accessed
electronically by means of the Commission's home page on the Internet
(http://www.sec.gov). In addition, such reports, proxy statements and other
information concerning the Company can be inspected at the offices of the
New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005,
the Chicago Stock Exchange, 440 South LaSalle Street, Chicago, Illinois
60605, and the Pacific Stock Exchange, 301 Pine Street, San Francisco,
California 94104.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated into this Prospectus by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997 (including pages 26 through 55 of the Company's
1997 Annual Report to Stockholders);
(2) The Company's Registration Statement on Form 8-B, dated May 22,
1969, as amended by an Amendment on Form 8, dated February 3, 1987,
describing the Common Stock, including any amendment or reports filed
for the purpose of updating such description; and
(3) The Company's Registration Statement on Form 8-A, dated October
10, 1997, describing the Preferred Stock Purchase Rights attached to
the Common Stock, including any further amendment or reports filed
for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and
prior to the termination of the offering of the Common Stock offered hereby
shall be deemed to be incorporated by reference into this Prospectus and to
be a part of this Prospectus from the date of filing of such document. 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 Prospectus 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 statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
As used herein, the terms "Prospectus" and "herein" mean this
Prospectus including the documents incorporated or deemed to be
incorporated herein by reference, as the same may be amended, supplemented
or otherwise modified from time to time. Statements contained in this
Prospectus as to the contents of any contract or other document referred to
herein do not purport to be complete, and where reference is made to the
particular provisions of such contract or other document, such provisions
are qualified in all respects by reference to all of the provisions of such
contract or other document. The Company will provide without charge to any
person, including any beneficial owner, to whom this Prospectus is
delivered, on the written or oral request of such person, a copy of any or
all of the foregoing documents incorporated by reference herein (not
including exhibits to the information that is incorporated by reference
unless such exhibits are specifically incorporated by reference into the
information that this Prospectus incorporates). Requests for such documents
should be directed to: Corporate Development, Marsh & McLennan Companies,
Inc., 1166 Avenue of the Americas, New York, New York 10036. Telephone
requests may be directed to Corporate Development at (212) 345-5475.
THE COMPANY
Marsh & McLennan Companies, Inc., a professional services
organization with origins dating from 1871 in the United States, is a
holding company which, through its subsidiaries and affiliates, provides
clients with analysis, advice and transactional capabilities in the fields
of insurance and reinsurance broking, investment management and consulting.
The mailing address of the Company's principal executive offices is 1166
Avenue of the Americas, New York, New York 10036-2774 , and its telephone
number is (212) 345-5000.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Common
Stock offered hereby, all of the net proceeds of which will be received by
the Selling Stockholders.
SELLING STOCKHOLDERS
GENERAL
On March 27, 1997, the Company consummated a business combination
(the "Transaction") with Johnson & Higgins ("J&H"). In connection with the
Transaction, the Company issued and delivered approximately 10.94 million
shares of Common Stock (as adjusted after giving effect to the Company's
two-for-one stock split on June 27, 1997) to the Sellers (as defined below)
as payment in part for the sale by the Sellers of their shares of common
stock of J&H to the Company, in each case upon the terms set forth in the
Stock Purchase Agreement, dated as of March 12, 1997 and amended as of
March 27, 1997, among J&H, the stockholders of J&H listed on Annex A
thereto (the "Sellers") and the Company. The Company also issued and
delivered approximately 3.22 million shares of its Common Stock (as
adjusted after giving effect to the Company's two-for-one stock split on
June 27, 1997) to certain living, former directors, and the estates of
certain deceased, former directors, of J&H (the "Retirees") with whom it
entered into certain Retiree agreements. The Company entered into a
Registration Rights Agreement, dated as of March 12, 1997 and amended as of
March 27, 1997, with the Sellers (the "Registration Rights Agreement"), for
their own benefit and the benefit of holders from time to time of the
Common Stock originally issued to the Sellers and Retirees in connection
with the Transaction (the "RRA Common Stock").
The Selling Stockholders consist of Sellers who are entitled,
pursuant to the Registration Rights Agreement, to offer under this
Prospectus RRA Common Stock that is not subject to the contractual transfer
restrictions described below ("Freely Registrable RRA Common Stock").
IDENTITY OF SELLING STOCKHOLDERS AND THEIR BENEFICIAL OWNERSHIP OF
COMMON STOCK
The Selling Stockholders, consisting of 27 former J&H stockholders
(or donees thereof), are offering hereby 2,575,284 shares of Common Stock
in the aggregate, which constituted approximately 1.5% of the issued and
outstanding Common Stock on February 28, 1998. On such date the Selling
Stockholders beneficially owned up to approximately 6,222,642 shares of
Common Stock in the aggregate, which constituted approximately 3.6% of the
issued and outstanding Common Stock on such date. The number of shares of
Common Stock beneficially owned and offered hereby by each Selling
Stockholder constituted less than 1.6% of the issued and outstanding Common
Stock on February 28, 1998. The Selling Stockholders include Norman Barham,
a member of the Board of Directors of the Company, who is offering hereby
up to 132,218 shares of Common Stock, which constitutes all of the Common
Stock beneficially owned and eligible for sale by Mr. Barham on the date
hereof. Prior to the closing of the Transaction, each of the Selling
Stockholders (or donees thereof) was a director or managing principal, as
well as an employee, of J&H. As of March 25, 1998, 25 of the Selling
Stockholders were employees of the Company or a subsidiary thereof.
THE REGISTRATION RIGHTS AGREEMENT
Shelf Registration. The Company has agreed in the Registration Rights
Agreement to file the registration statement of which this Prospectus forms
a part, to use its best efforts to cause such registration statement to be
declared effective under the Securities Act on or prior to March 27, 1998
and to keep it continuously effective in order to permit this Prospectus to
be usable at all times during the period ending on May 2, 1999 or such
shorter period that will terminate when the RRA Common Stock is publicly
sold (the "Effectiveness Period").
Underwritten Offering. Under the Registration Rights Agreement, the
holders of 33% or more of the Freely Registrable RRA Common Stock also have
the right, subject to certain conditions, to cause the Company to cooperate
with up to two underwritten offerings for which it receives requests during
the Effectiveness Period. The Company has cooperated with one such
underwritten offering.
Transfer Restrictions. Each Seller who is bound by the Registration
Rights Agreement has agreed with the Company not to sell or otherwise
transfer (a) during the period from the date of the closing of the
Transaction to the first anniversary thereof, more than one-third of the
number of shares of Common Stock he or she received as a Seller under the
Stock Purchase Agreement at such closing; and (b) during the period from
the date of such closing to the second anniversary thereof, more than
two-thirds of the number of shares of Common Stock he or she received as a
Seller under the Stock Purchase Agreement at such closing.
In addition, each Seller and Retiree who is bound by the Registration
Rights Agreement and does not participate in an underwritten offering
pursuant thereto has agreed with the Company to execute and deliver such
reasonable and customary lock-up agreements that the managing underwriters
for such offering may advise are necessary to facilitate it and that do not
restrict dispositions of such Seller's or Retiree's Common Stock for longer
than 90 days.
The Retirees received RRA Common Stock that is not subject to
contractual transfer restrictions against resale other than the lock-up
restriction described above.
SHARES ELIGIBLE FOR SALE
On March 27, 1998, 3,647,402 shares (including those covered by this
Prospectus) became eligible for sale by the Sellers into the open market in
reliance on Rule 144 under the Securities Act. An additional 2,379,642
shares held by the Sellers shall become eligible for sale into the open
market under Rule 144 beginning on March 27, 1999.
DESCRIPTION OF CAPITAL STOCK
The Company's authorized capital stock consists of 406,000,000 shares
of capital stock, 400,000,000 of such shares being Common Stock, and
6,000,000 shares being preferred stock, par value $1.00 per share
("Preferred Stock"). No shares of Preferred Stock were issued or
outstanding as of the date of this Prospectus.
COMMON STOCK
Each holder of Common Stock is entitled to one vote for each share
held on all matters to be voted upon by the stockholders of the Company.
The holders of outstanding shares of Common Stock, subject to any
preferences that may be applicable to any outstanding series of Preferred
Stock, are entitled to receive ratably such dividends out of assets legally
available therefor at such times and in such amounts as the Board of
Directors may from time to time determine. Upon liquidation or dissolution
of the Company, the holders of the Common Stock will be entitled to share
ratably in the assets of the Company legally available for distribution to
stockholders after payment of liabilities and subject to the prior rights
of any holders of any Preferred Stock then outstanding. Holders of the
Common Stock generally have no conversion, sinking fund, redemption,
preemptive or subscription rights. In addition, the Common Stock does not
have cumulative voting rights. Shares of the Common Stock are not subject
to further calls or assessments by the Company.
PREFERRED STOCK
The Company is authorized to issue 6,000,000 shares of Preferred
Stock, none of which currently is issued or outstanding. The Board of
Directors of the Company has the authority, without further action by the
stockholders, to issue shares of Preferred Stock in one or more series and
to fix the number of shares, dividend rights, conversion rights, voting
rights, redemption rights, liquidation preferences, sinking funds, and any
other rights, preferences, privileges and restrictions applicable to each
such series of Preferred Stock. The holders of Preferred Stock will have
the right to vote separately as a class on any proposal involving
fundamental changes in the rights of holders of such Preferred Stock
pursuant to the Delaware General Corporation Law (the "DGCL").
In connection with the Company's Stockholder Rights Plan (the "Rights
Plan"), the Board of Directors has authorized the issuance of up to
2,000,000 shares of Series A Junior Participating Preferred Stock ("Series
A Preferred Stock") upon exercise of preferred stock purchase rights issued
under the Rights Plan. Reference is hereby made to the Company's
Registration Statement on Form 8-A, dated October 10, 1997, which is
incorporated by reference herein, for a description of the preferred stock
purchase rights attached to the Common Stock.
CERTAIN PROVISIONS OF THE COMPANY'S RESTATED CERTIFICATE OF INCORPORATION
AND BY-LAWS AND THE DELAWARE GENERAL CORPORATION LAW
Classified Board of Directors. The Company's Restated Certificate of
Incorporation (the "Certificate of Incorporation") provides for a Board of
Directors divided into three classes, each class to consist as nearly as
possible of one-third of the directors. Each director serves for a term of
three years and until his or her successor is elected and qualified.
Pursuant to the Certificate of Incorporation, the number of directors of
the Company will be fixed from time to time by the Board of Directors.
Removal of Directors by Stockholders. The DGCL provides that members of a
classified board of directors may only be removed for cause by the
affirmative vote of the holders of a majority of the outstanding shares of
capital stock of the Company entitled to vote on the election of such
directors.
Stockholder Nomination of Directors. The Company's Restated By-laws (the
"By-laws") provide that written notice must be given of any stockholder
nomination of a director not less than sixty nor more than ninety days
prior to the date of the meeting at which directors are to be elected;
provided, that if the date for such meeting is not the date set forth in
the By-laws and less than seventy five days' notice or prior public
disclosure of the date for such meeting is given to stockholders, then
notice by a stockholder shall be timely if received by the Company no later
than fifteen days following the date such public disclosure was made.
No Action by Written Consent. The Certificate of Incorporation provides
that stockholders of the Company may not act by written consent and may
only act at duly called meetings of such stockholders.
Interested Stockholder Provision. Article EIGHTH of the Certificate of
Incorporation provides for higher stockholder voting requirements for
certain transactions (such as business combinations) with or otherwise
involving an Interested Stockholder (as defined below). Such a transaction
requires the approval of the holders of a majority of the Company's
outstanding voting power, voting together as a single class (but excluding
any voting stock owned by an Interested Stockholder), unless such
transaction is approved by a majority of Disinterested Directors (as
defined below), in which case the voting requirements of the DGCL, the
Certificate of Incorporation and the Company's By-laws otherwise applicable
govern. Article EIGHTH does not alter the additional requirements regarding
class votes available to holders of Preferred Stock, if any, which arise
under the DGCL and the Certificate of Incorporation.
Transactions covered by Article EIGHTH include mergers of the Company
or any of its subsidiaries with an Interested Stockholder, sales of all or
any substantial part of the assets of the Company and its subsidiaries to
an Interested Stockholder, the issuance or delivery of any securities of
the Company or any of its subsidiaries to an Interested Stockholder, any
loan, advance or guarantee, pledge or other financial assistance provided
by the Company or any of its subsidiaries to the Interested Stockholder,
any voluntary dissolution or liquidation of the Company or amendment to the
Company's By-laws, a reclassification of securities or recapitalization of
the Company or other transaction (if such reclassification,
recapitalization or other transaction results in the Interested Stockholder
increasing its proportionate share of any class of the Company's capital
stock) or any agreement, contract, or other arrangement to do any of the
foregoing.
An "Interested Stockholder" is defined in Article EIGHTH as any other
corporation, person, or entity which (i) beneficially owns or controls,
directly or indirectly, 10% or more of the voting stock of the Company (or
has announced a plan or intention to acquire such securities), and any
affiliate or associate of such corporation, person, or entity or (ii) is an
affiliate or associate of the Company and at any time within two years
prior to the date in question was the beneficial owner of 10% or more of
the voting stock of the Company. Specifically excluded from the definition
of Interested Stockholder are (i) the Company and any of its subsidiaries,
and (ii) any profit-sharing, employee stock ownership or other employee
benefit plan of the Company or any subsidiary, or trustees or fiduciaries
for such.
A "Disinterested Director" is defined in Article EIGHTH as a director
who is not an affiliate, associate, representative, agent or employee of an
Interested Stockholder, and who was a member of the Board of Directors
prior to the time that the Interested Stockholder involved in the
transaction being considered became an Interested Stockholder, and any
successor to a Disinterested Director, while such successor is a member of
the Board of Directors, who is not an affiliate, associate, representative,
agent or employee of an Interested Stockholder and who was nominated by a
majority of the Disinterested Directors.
Article EIGHTH may not be altered, amended, or repealed without the
affirmative vote of the holders of a majority of the Company's outstanding
voting power, voting together as a single class (but excluding any voting
stock owned by an Interested Stockholder), except if recommended by a
majority of Disinterested Directors, in which case the voting requirements
of the DGCL, the Certificate of Incorporation and the Company's By-laws
otherwise applicable govern.
Delaware Business Combination Statute. The Company is subject to Section
203 of the DGCL ("Section 203"), which restricts certain transactions and
business combinations between a corporation and an "interested stockholder"
(which is generally defined by Section 203 to be a person owning 15% or
more of the corporation's outstanding voting stock) for a period of three
years from the date the stockholder becomes an interested stockholder.
Subject to certain exceptions, unless the transaction is approved by the
Board of Directors and the holders of at least two-thirds of the
outstanding voting stock of the corporation (excluding shares held by the
interested stockholder), Section 203 prohibits significant business
transactions such as a merger with, disposition of significant assets to or
receipt of disproportionate financial benefits by the interested
stockholder, or any other transaction that would increase the interested
stockholder's proportionate ownership of any class or series of the
Company's capital stock. The statutory ban does not apply if: (i) prior to
the time that any stockholder became an interested stockholder, the Board
of Directors approved either the business combination or the transaction in
which such stockholder became an interested stockholder, or (b) upon
consummation of the transaction in which any stockholder becomes an
interested stockholder, the interested stockholder owns at least 85% of the
outstanding voting stock of the corporation (excluding shares held by
persons who are both directors and officers or by certain employee stock
plans).
DIRECTORS' LIABILITY
The Certificate of Incorporation provides that a member of the Board
of Directors shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions by
the director not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under section 174 of the DGCL (relating to
the declaration of dividends and purchase or redemption of shares in
violation of the DGCL), and (iv) for transactions from which the director
derived an improper personal benefit.
The Certificate of Incorporation also provides for indemnification of
directors and officers to the fullest extent authorized by Delaware law.
TRANSFER AGENT AND REGISTRAR
The Bank of New York acts as transfer agent and registrar for the
Common Stock.
PLAN OF DISTRIBUTION
The Selling Stockholders may sell the Common Stock being offered
hereby directly to other purchasers, or to or through underwriters, dealers
or agents. To the extent required, a Prospectus Supplement with respect to
the Common Stock will set forth the terms of the offering of the Common
Stock, including the name(s) of any underwriters, dealers or agents, the
name(s) of the Selling Stockholders, the number of shares of Common Stock
to be sold, the price of the offered Common Stock, any underwriting
discounts or other items constituting underwriters' compensation and any
discounts or concessions allowed or reallowed or paid to dealers.
The Common Stock offered hereby may be sold from time to time
directly by the Selling Stockholders or, alternatively, through
underwriters, broker-dealers or agents. Such Common Stock may be sold in
one or more transactions at fixed prices, at prevailing market prices at
the time of sale, at varying prices determined at the time of sale or at
negotiated prices. Such sales may be effected in transactions (which may
involve crosses or block transactions) (i) on any national securities
exchange or quotation service on which the Common Stock may be listed or
quoted at the time of sale, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or services or in the
over-the-counter market or (iv) through the writing of options. In
connection with sales of the Common Stock offered hereby or otherwise, the
Selling Stockholders may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of such Common
Stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell the Common Stock offered hereby short and
deliver such Common Stock to close out such short positions, or loan or
pledge such Common Stock to broker-dealers that in turn may sell such
securities. The Common Stock offered hereby also may be sold pursuant to
Rule 144 under the Securities Act.
Any Selling Stockholder and any such underwriters, brokers, dealers
or agents, upon effecting the sale of the Common Stock, may be deemed
"underwriters" as that term is defined by the Securities Act.
To the extent required, the underwriter or underwriters with respect
to a particular underwritten offering of Common Stock (if any) will be
named in the Prospectus Supplement relating to such offering, and if an
underwriting syndicate is used, the managing underwriter or underwriters
will be set forth on the cover of such Prospectus Supplement. Unless
otherwise set forth in the Prospectus Supplement, the obligations of the
underwriters to purchase the Common Stock in an underwritten offering will
be subject to certain conditions precedent and the underwriters will be
obligated to purchase all the Common Stock if any is purchased. Any initial
public offering price and any discounts or concessions allowed or reallowed
or paid to dealers may be changed from time to time.
If a dealer is utilized in the sale of any Common Stock in respect of
which this Prospectus is delivered, the Selling Stockholders may sell such
Common Stock to the dealer, as principal. The dealer may then resell such
Common Stock to the public at varying prices to be determined by such
dealer at the time of resale. To the extent required, the name of the
dealer and the terms of the transaction will be set forth in the Prospectus
Supplement relating thereto.
In connection with the sale of the Common Stock offered hereby,
underwriters or agents may receive compensation from the Company, the
Selling Stockholders or from purchasers of such Common Stock for whom they
may act as agents in the form of discounts, concessions, or commissions.
Underwriters, agents, and dealers participating in the distribution of the
Common Stock may be deemed to be underwriters, and any such compensation
received by them and any profit on the resale of Common Stock by them may
be deemed to be underwriting discounts or commissions under the Securities
Act.
The Common Stock is listed on the NYSE, the Pacific Stock Exchange,
the Chicago Stock Exchange and the London Stock Exchange. Any underwriters
to whom Common Stock is sold by the Selling Stockholders for public
offering and sale may make a market in such Common Stock, but such
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the
liquidity of the trading market for any Common Stock.
The Selling Stockholders, agents, dealers, and underwriters may be
entitled under the Registration Rights Agreement or other agreements
entered into with the Company to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act,
or to contribution with respect to payments that the Selling Stockholders,
agents, dealers, or underwriters may be required to make with respect
thereto. Underwriters, dealers, or agents and their associates may be
customers of, engage in transactions with and perform services for, the
Company in the ordinary course of business.
The Company has agreed to pay certain expenses in connection with the
offering contemplated hereby, including (i) registration and filing fees,
(ii) fees and expenses of providing certain information to the Sellers,
(iii) fees and expenses of compliance with securities or blue sky laws and
(iv) fees and expenses of preparing and delivering certificates
representing the Common Stock. In addition to such expenses, the Company
has agreed to pay certain other expenses customarily borne by issuers in
the event of an underwritten offering of Common Stock conducted pursuant to
the Registration Rights Agreement, including: (i) printing expenses, (ii)
fees and disbursements of counsel for the Company and its independent
public accountants, and (iii) reasonable fees and expenses of one counsel
for the Selling Stockholders. The Selling Stockholders participating in any
underwritten offering shall be responsible for any underwriting discounts
and commissions and fees and, subject to clause (iii) immediately above,
expenses of their own counsel. Any Selling Stockholder may agree to
indemnify any agent, dealer or broker-dealer that participates in
transactions involving sales of the Common Stock against certain
liabilities, including liabilities arising under the Securities Act. The
Company and the Selling Stockholders have agreed to indemnify each other
and certain other persons against certain liabilities in connection with
the offering of the Common Stock including liabilities arising under the
Securities Act.
In connection with the offering made hereby, persons participating in
the offering, such as any underwriters, may purchase and sell Common Stock
in the open market. These transactions may include over-allotment and
stabilizing transactions and purchases to cover syndicate short positions
created in connection with the offering. Stabilizing transactions consist
of certain bids or purchases for the purpose of preventing or retarding a
decline in the market price of the Common Stock, and syndicate short
positions involve the sale by underwriters of a greater number of shares of
Common Stock than they are required to purchase from the Selling
Stockholders in the offering. Underwriters also may impose a penalty bid,
whereby selling concessions allowed to syndicate members or other
broker-dealers in respect of the Common Stock sold in the offering for
their account may be reclaimed by the syndicate if such Common Stock is
repurchased by the syndicate in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of
the Common Stock, which may be higher than the price that might prevail in
the open market, and these activities, if commenced, may be discontinued at
any time. These transactions may be effected on the New York Stock
Exchange, in the over-the-counter market or otherwise.
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Skadden,
Arps, Slate, Meagher & Flom LLP, New York, New York.
EXPERTS
The consolidated financial statements and supplemental notes of the
Company and its subsidiaries as of December 31, 1997 and 1996 and for each
of the years in the three year period ended December 31, 1997, included and
incorporated by reference in the Company's Annual Report on Form 10-K for
the year ended December 31, 1997 and incorporated by reference into this
Prospectus, have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports, which are incorporated herein by
reference, and have been so incorporated in reliance upon the reports of
such firm given upon their authority as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses to be borne by the Company in
connection with the offering described in this Registration Statement. All
such expenses other than the Securities and Exchange Commission registration
fee are estimates.
Securities and Exchange Commission Registration Fee.... $ 49,206
Legal Fees and Expenses................................ 20,000
Miscellaneous ......................................... 10,794
---------
Total...................................... $ 80,000
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As authorized by Section 145 of the General Corporation Law of the State of
Delaware, each director and officer of the Company may be indemnified by
the Company against expenses (including attorney's fees, judgments, fines
and amounts paid in settlement) actually and reasonably incurred in
connection with the defense or settlement of any threatened, pending or
completed legal proceedings in which he is involved by reason of the fact
that he is or was a director or officer of the Company if he acted in good
faith and in a manner that he reasonably believed to be in or not opposed
to the best interests of the Company and, with respect to any criminal
action or proceeding, if he had no reasonable cause to believe that his
conduct was unlawful. If the legal proceeding, however, is by or in the
right of the Company, the director or officer may not be indemnified in
respect of any claim, issue or matter as to which he shall have been
adjudged to be liable for negligence or misconduct in the performance of
his duty to the Company unless a court determines otherwise.
In addition, the Company maintains directors' and officers' liability
insurance policies.
Article Sixth of the Restated Certificate of Incorporation of the Company
and Article VI of the Restated By-laws of the Company provide that, to the
fullest extent authorized by law, directors of the Company will not be
liable for monetary damages to the Company or its stockholders for breaches
of their fiduciary duties.
ITEM 16. EXHIBITS
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-3, including those incorporated herein by
reference.
Exhibit
Number Description of Exhibits
- ------- -----------------------
2(a) Stock Purchase Agreement, dated as of March 12, 1997 (the
"Stock Purchase Agreement"), by and among the Company, J&H and
the stockholders of J&H listed on Annex A thereto (incorporated
by reference to the Company's Current Report on Form 8-K, filed
with the Commission on March 17, 1997, relating to the business
combination with J&H).
2(b) First Amendment, dated as of March 27, 1997, to the Stock
Purchase Agreement (incorporated by reference to the Company's
Current Report on Form 8-K, filed with the Commission on April
7, 1997, relating to the business combination with J&H).
4(a) Specimen Certificate Evidencing the Common Stock (incorporated
by reference to the Company's Registration Statement on Form
8-B, dated May 22, 1969).
4(b) Rights Agreement, dated as of September 18, 1997 (incorporated
by reference to the Company's Registration Statement on Form
8-A, dated October 10, 1997.)
5 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
23(a) Consent of Deloitte & Touche LLP, Auditors.
23(b) Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5).
24 Powers of Attorney of certain directors of the Company
(incorporated by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 1997).
ITEM 17. UNDERTAKINGS
The undersigned registrant (the "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 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 the registration statement
or any material change to such information in the registration
statement; provided, however, that, since this registration statement
is on Form S-3, paragraphs (1)(i) and 1(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 Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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 which remain unsold
at the termination of the offering.
The 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 Securities
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.
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.
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-3 and has duly caused this
Registration Statement or amendment thereto to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of New York, in the
State of New York, on March 26, 1998.
MARSH & MCLENNAN COMPANIES, INC.
By /s/ A. J. C. Smith
--------------------------------
Name: A. J. C. Smith
Title: Chairman & Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ A.J.C. Smith Chairman & Chief March 26, 1998
- ----------------------------- Executive Officer
A.J.C. Smith (Principal Executive
Officer)
/s/ Frank J. Borelli Senior Vice President March 26, 1998
- ----------------------------- & Chief Financial
Frank J. Borelli Officer (Principal
Financial Officer)
/s/ Douglas C. Davis Vice President and March 26, 1998
- ----------------------------- Controller (Principal
Douglas C. Davis Accounting Officer)
* Director March 26, 1998
- -----------------------------
Norman Barham
* Director March 26, 1998
- -----------------------------
Lewis W. Bernard
* Director March 26, 1998
- -----------------------------
Richard H. Blum
* Director March 26, 1998
- -----------------------------
Peter Coster
* Director March 26, 1998
- -----------------------------
Robert F. Erburu
* Director March 26, 1998
- -----------------------------
Jeffrey W. Greenberg
* Director March 26, 1998
- -----------------------------
Ray J. Groves
* Director March 26, 1998
- -----------------------------
Richard S. Hickok
* Director March 26, 1998
- -----------------------------
Rt. Hon. Lord Lang of Monkton
* Director March 26, 1998
- -----------------------------
Lawrence J. Lasser
* Director March 26, 1998
- -----------------------------
Richard M. Morrow
* Director March 26, 1998
- -----------------------------
David A. Olsen
* Director March 26, 1998
- -----------------------------
George Putnam
* Director March 26, 1998
- -----------------------------
Adele Smith Simmons
* Director March 26, 1998
- -----------------------------
John T. Sinnott
* Director March 26, 1998
- -----------------------------
Frank J. Tasco
* By: /s/ Gregory F. Van Gundy
------------------------
Gregory F. Van Gundy
Attorney-in-fact
EXHIBIT INDEX
Exhibit
Page Number Description of Exhibits
- ---- ------- -----------------------
2(a) Stock Purchase Agreement, dated as of March 12,
1997 (the "Stock Purchase Agreement"), by and among
the Company, J&H and the stockholders of J&H listed
on Annex A thereto (incorporated by reference to
the Company's Current Report on Form 8-K, filed
with the Commission on March 17, 1997, relating to
the business combination with J&H).
2(b) First Amendment, dated as of March 27, 1997, to the
Stock Purchase Agreement (incorporated by reference
to the Company's Current Report on Form 8-K, filed
with the Commission on April 7, 1997, relating to
the business combination with J&H).
4(a) Specimen Certificate Evidencing the Common Stock
(incorporated by reference to the Company's
Registration Statement on Form 8-B, dated May 22,
1969).
4(b) Rights Agreement, dated as of September 18, 1997
(incorporated by reference to the Company's
Registration Statement on Form 8-A, dated October
10, 1997).
5 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
23(a) Consent of Deloitte & Touche LLP, Auditors.
23(b) Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5).
24 Powers of Attorney of certain directors of the
Company (incorporated by reference to the Company's
Annual Report on Form 10-K for the year ended
December 31, 1997).
Exhibit 5
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 Third Avenue
New York, New York 10022
Tel: (212) 735-3000
Tel: (212) 735-2000
March 26, 1998
Marsh & McLennan Companies, Inc.
1166 Avenue of the Americas
New York, New York 10036-2774
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to Marsh & McLennan Companies,
Inc., a Delaware corporation (the "Company"), in connection with the public
offering by certain stockholders of the Company (the "Selling
Stockholders") of up to 1,872,832 shares (the "Shares") of the Company's
Common Stock, par value $1.00 per share (the "Common Stock").
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act
of 1933 (the "Act").
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Company's Registration Statement (the "Registration Statement") on Form S-3
to be filed with the Securities and Exchange Commission (the "Commission")
on March 26, 1998 under the Act, in accordance with the procedures of the
Commission permitting a delayed or continuous offering of the Shares
pursuant to such Registration Statement; (ii) the Stock Purchase Agreement
pursuant to which the Shares were issued; (iii) the certificates evidencing
the Shares; (iv) the Restated Certificate of Incorporation of the Company,
as presently in effect; (v) the Restated By-laws of the Company, as
presently in effect; and (vi) certain resolutions of the Board of Directors
of the Company. We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company
and such agreements, certificates of public officials, certificates of
officers or other representatives of the Company and others, and such other
documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies and the authenticity of the originals of such latter
documents. In making our examination of documents executed or to be
executed by parties other than the Company, we have assumed that such
parties had or will have the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution
and delivery by such parties of such documents and the validity and binding
effect thereof. As to any facts material to the opinions expressed herein
which we have not independently established or verified, we have relied
upon statements and representations of officers and other representatives
of the Company and others.
Members of our firm are admitted to the bar in the State of New
York, and we do not express any opinion as to the laws of any jurisdiction,
except the General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion
that the Shares have been duly authorized and validly issued and are fully
paid and nonassessable.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. We also consent to
the reference to our firm under the caption "Legal Matters" in the
Registration Statement. In giving this consent, we do not thereby admit
that we are included in the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
Skadden, Arps, Slate, Meagher & Flom LLP
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Marsh & McLennan Companies, Inc. on Form S-3 of our reports dated March
6, 1998, appearing in and incorporated by reference in the Annual Report on
Form 10-K of Marsh & McLennan Companies, Inc. for the year ended December
31, 1997 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
Deloitte & Touche LLP
New York, New York
March 25, 1998
