As filed with the Securities and Exchange Commission on December 27, 1999.
Registration No. 333-______
================================================================================
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)
4235 Innslake Drive, Glen Allen, Virginia 23060
(Address of Principal Executive Offices) (Zip Code)
------------------
HILB, ROGAL AND HAMILTON COMPANY
EXECUTIVE VOLUNTARY DEFERRAL PLAN
(Full Title of the Plan)
Walter L. Smith, Esq.
Secretary and General Counsel
Hilb, Rogal and Hamilton Company
4235 Innslake Drive
Glen Allen, Virginia 23060
(804) 747-6500
(Name, Address and Telephone Number,
Including Area Code, of Agent for Service)
-----------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
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
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation
Obligations (1)................ $5,000,000 (2) 100% $5,000,000 (2) $1,320
==============================================================================================================
</TABLE>
(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 Executive Voluntary Deferral Plan. 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 has been computed in accordance with Rule 457(h) and is
based upon an estimate of the amount of compensation to be deferred by
participants.
================================================================================
<PAGE>
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, 1998, File No. 0-15981;
(2) the portions of the Registrant's definitive Proxy Statement
for the Annual Meeting of Shareholders held on June 8, 1999
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, 1999, June 30, 1999 and September 30,
1999, File No. 0-15981; and
(4) the Registrant's Current Reports on Form 8-K, filed on April
1, 1999 and May 14, 1999, File No. 0-15981; and
(5) the description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form S-3, File No.
33-56488, effective March 1, 1993.
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") of the Registrant under the Hilb, Rogal
and Hamilton Company Executive Voluntary Deferral Plan (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.
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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 necessarily is 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 rules set forth in the Plan.
Before the Benefit Commencement Date, 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. The amount that the Registrant is required to pay to any
Participant under the terms of the Plan is equal to the Deferral Contributions
made by the Participant, as adjusted for hypothetical gains or losses
attributable to the deemed investment of such Deferral Contributions in shares
of the Registrant's common stock. The
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Participant's Deferral Cash Account and Deferred Stock Unit Account reflect the
Deferral Contributions and the adjustments made thereto.
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 installments at the Participant's election. The Plan also provides for
interim distributions of amounts payable from the Participant's Deferral
Contribution 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.
A Participant who elects to receive distribution of his Accounts in
quarterly installments will not have his or her Deferred Stock Unit Account
credited with Deferred Stock Units on or after the Benefit Commencement Date. On
the Benefit Commencement Date, the Deferred Stock Unit Account of a Participant
who has elected to receive his Deferral Benefit in quarterly installments will
be converted to a Deferred Cash Account which shall be combined with the
Participant's existing Deferred Cash Account. The Deferred Cash Account
continues to accrue interest at the Rate of Return.
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 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, Clark & Dobbins, counsel to the Registrant, has
rendered its opinion that 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. Theodore L. Chandler, Jr., a principal in
Williams, Mullen, Clark & Dobbins, is a director of the Registrant and
beneficially owned an aggregate of 11,000 shares of Common Stock as of December
8, 1999. Other attorneys employed by the firm beneficially owned an aggregate of
931 shares of the Registrant's Common Stock as of December 8, 1999.
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
II-4
<PAGE>
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.*
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, Clark & Dobbins.*
23.1 Consent of Williams, Mullen, Clark & Dobbins (included in Exhibit
5.1).*
II-5
<PAGE>
23.2 Consent of Ernst & Young LLP.*
24 Powers of Attorney (included on Signature Page).*
- ------------
*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
(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.
II-6
<PAGE>
(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.
II-7
<PAGE>
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
17th day of December, 1999.
HILB, ROGAL AND HAMILTON COMPANY
By: /s/ Andrew L. Rogal
-------------------------------------
Andrew L. Rogal, President
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.
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Title Date
/s/ Andrew L. Rogal President and Chief Executive December 17, 1999
- ------------------------------------ Officer and Director
Andrew L. Rogal (Principal Executive Officer)
/s/ Carolyn Jones Senior Vice President, Chief Financial December 17, 1999
- ------------------------------------ Officer and Treasurer
Carolyn Jones (Principal Financial Officer)
/s/ Robert W. Blanton, Jr. Vice President and Controller December 17, 1999
- ------------------------------------ (Principal Accounting Officer)
Robert W. Blanton, Jr.
Chairman of the Board and Director December 17, 1999
- ------------------------------------
Robert H. Hilb
<PAGE>
/s/ Martin L. Vaughan, III Chief Operating Officer and Director December 17, 1999
- ------------------------------------
Martin L. Vaughan, III
/s/ Timothy J. Korman Executive Vice President, Administration December 17, 1999
- ------------------------------------ and Finance and Director
Timothy J. Korman
Director
- ------------------------------------ December 17, 1999
Philip J. Faccenda
/s/ Robert S. Ukrop Director December 17, 1999
- ------------------------------------
Robert S. Ukrop
Director December 17, 1999
- ------------------------------------
Thomas H. O'Brien
Director December 17, 1999
- ------------------------------------
J.S.M. French
/s/ Norwood H. Davis, Jr. Director December 17, 1999
- ------------------------------------
Norwood H. Davis, Jr.
/s/ Theodore L. Chandler, Jr. Director December 17, 1999
- ------------------------------------
Theodore L. Chandler, Jr.
/s/ Anthony F. Markel Director December 17, 1999
- ------------------------------------
Anthony F. Markel
Director December 17, 1999
- ------------------------------------
Robert W. Fiondella
/s/ David W. Searfoss Director December 17, 1999
- ------------------------------------
David W. Searfoss
</TABLE>
<PAGE>
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 Executive Voluntary Deferral
Plan.*
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, Clark & Dobbins.*
23.1 Consent of Williams, Mullen, Clark & Dobbins (included in
Exhibit 5.1).*
23.2 Consent of Ernst & Young LLP.*
24 Powers of Attorney (included on Signature Page).*
- -------------
*Filed herewith
Exhibit 4.3
HILB, ROGAL AND HAMILTON COMPANY
Executive Voluntary Deferral Plan
Effective
January 1, 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
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Page
----
<S> <C>
ARTICLE I Definition of Terms...................................................................1
1.1 Account.................................................................................1
1.2 Administrator...........................................................................1
1.3 Affiliate...............................................................................1
1.4 Beneficiary.............................................................................1
1.5 Benefit Commencement Date...............................................................1
1.6 Board...................................................................................1
1.7 Bonus...................................................................................1
1.8 Code....................................................................................1
1.9 Committee...............................................................................2
1.10 Corporation.............................................................................2
1.11 Death Benefit...........................................................................2
1.12 Deferral Amount.........................................................................2
1.13 Deferral Benefit........................................................................2
1.14 Deferral Contribution...................................................................2
1.15 Deferral Contribution Date..............................................................2
1.16 Deferral Election.......................................................................2
1.17 Deferred Cash Account...................................................................2
1.18 Deferred Stock Unit.....................................................................2
1.19 Deferred Stock Unit Account.............................................................2
1.20 Disabled and Disability.................................................................2
1.21 Effective Date..........................................................................2
1.22 Eligible Executive......................................................................3
1.23 First Plan Year.........................................................................3
1.24 Participant.............................................................................3
1.25 Plan ...............................................................................3
1.26 Plan Year...............................................................................3
1.27 Rate of Return..........................................................................3
1.28 Retirement..............................................................................3
1.29 Salary ...............................................................................3
ARTICLE II Eligibility and Participation........................................................3
2.1 Eligibility.............................................................................3
2.2 Participation...........................................................................3
2.3 Commencement of Active Participation....................................................4
2.4 Length of Participation.................................................................4
ARTICLE III Determination of Deferral...........................................................4
3.1 Deferral Benefit........................................................................4
3.2 Deferral Election.......................................................................4
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TABLE OF CONTENTS
Page
----
3.3 Subtractions from Deferred Cash Account and Deferred Stock Unit Account.................6
3.4 Crediting of Interest to Deferred Cash Account..........................................6
3.5 Equitable Adjustment in Case of Error or Omission.......................................6
3.6 Statement of Benefits...................................................................6
ARTICLE IV Accounts and Investments.............................................................6
4.1 Accounts................................................................................6
4.2 Deferred Stock Units...................................................................6
4.3 Hypothetical Nature of Accounts and Investments.........................................7
ARTICLE V Vesting...............................................................................8
5.1 Vesting.................................................................................8
ARTICLE VI Death Benefits........................................................................8
6.1 Pre-Benefit Commencement Date Death Benefit.............................................8
6.2 Post-Benefit Commencement Date Death Benefit............................................8
ARTICLE VII Payment of Benefits.................................................................8
7.1 Payment of Deferral Benefit.............................................................8
7.2 Payment of Death Benefit................................................................8
7.3 Form of Payment of Deferral Benefit.....................................................8
7.4 Benefit Determination and Payment Procedure.............................................9
7.5 Payments to Minors and Incompetents.....................................................9
7.6 Distribution of Benefit When Distributee Cannot Be Located..............................9
7.7 Deferral Benefit Upon Disability or Retirement..........................................9
ARTICLE VIII Beneficiary Designation...........................................................10
8.1 Beneficiary Designation................................................................10
ARTICLE IX Withdrawals.........................................................................10
9.1 No Withdrawals Permitted...............................................................10
9.2 Hardship Exemption.....................................................................10
ARTICLE X Funding..............................................................................11
10.1 Funding................................................................................11
ARTICLE XI Change of Control...................................................................11
11.1 Change of Control......................................................................11
11.2 Effect of Change of Control............................................................13
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<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE XII Plan Administrator.................................................................13
12.1 Appointment of Administrator...........................................................13
12.2 Duties and Responsibilities of Plan Administrator......................................14
12.3 Claims Procedures......................................................................14
ARTICLE XIII Amendment or Termination of Plan..................................................15
13.1 Amendment or Termination of the Plan...................................................15
ARTICLE XIV Miscellaneous......................................................................15
14.1 Non-assignability......................................................................15
14.2 Notices and Elections..................................................................15
14.3 Delegation of Authority................................................................16
14.4 Service of Process.....................................................................16
14.5 Governing Law..........................................................................16
14.6 Binding Effect.........................................................................16
14.7 Severability...........................................................................16
14.8 Gender and Number......................................................................16
14.9 Titles and Captions....................................................................16
</TABLE>
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<PAGE>
Hilb, Rogal and Hamilton Company
Executive Voluntary Deferral Plan
The Board of Directors is of the opinion that it is in the best
interests of Hilb, Rogal and Hamilton Company (the "Corporation") to provide
certain key executives an opportunity to defer, on a pre-tax basis a portion of
their compensation, as well as an opportunity for such key executives to align
their interests with the Corporation by being tied to the performance of the
Corporation's common stock.
Pursuant to action taken by the Compensation Committee of the Board of
Directors, the following Hilb, Rogal and Hamilton Company Executive Voluntary
Deferral Plan (the "Plan") is hereby adopted.
ARTICLE I
Definition of Terms
-------------------
The following words and terms as used in this Plan shall have the
meaning set forth below, unless a different meaning is clearly required by the
context:
1.1 Account: A bookkeeping account established for a Participant
under Article IV hereof.
1.2 Administrator: The Committee or its designee is the Plan
Administrator.
1.3 Affiliate: Any subsidiary, parent, affiliate, or other related
business entity to the Corporation.
1.4 Beneficiary: The person or persons designated by a Participant
or otherwise entitled pursuant to Section 8.1 to receive benefits under the Plan
attributable to such Participant after the death of such Participant.
1.5 Benefit Commencement Date: The date irrevocably elected by the
Participant pursuant to Section 3.2, which date may not be later than the
Participant's 75th birthday. The same Benefit Commencement Date shall be
required for all Deferral Contributions made and Deferral Benefits attributable
to a Plan Year.
1.6 Board: The present and any succeeding Board of Directors of
the Corporation, unless such term is used with respect to a particular Affiliate
and its Directors, in which event it shall mean the present and any succeeding
Board of Directors of that Affiliate.
1.7 Bonus: Compensation paid to a Participant for services
rendered to the Corporation, which is designated as a "bonus" by the Committee
and which shall include without limitation any pre-tax or sub-goal bonuses.
1.8 Code: The Internal Revenue Code of 1986, as the same may be
amended from time to time.
<PAGE>
1.9 Committee: The Compensation Committee of the Board.
1.10 Corporation: Hilb, Rogal and Hamilton Company or any successor
thereto.
1.11 Death Benefit: The benefit with respect to a Participant due a
Participant's Beneficiary, determined in accordance with Article VI hereof.
1.12 Deferral Amount: With respect to each Plan Year, the sum of
the Deferral Contributions of a Participant with respect to his Salary and Bonus
to be paid during the Plan Year.
1.13 Deferral Benefit: The balance in a Participant's Deferred Cash
Account and Deferred Stock Unit Account.
1.14 Deferral Contribution: The portion of a Participant's Salary
and Bonus, which is deferred under the Plan.
1.15 Deferral Contribution Date: The Date, set by the
Administrator, on which a Deferral Contribution is credited to a Participant's
Deferred Cash Account or Deferred Stock Unit Account in accordance with Section
3.2.
1.16 Deferral Election: An irrevocable election of a Deferral
Amount in writing executed by the Eligible Executive or Participant and timely
filed with the Administrator.
1.17 Deferred Cash Account: An unfunded, bookkeeping account
maintained on the books of the Corporation for a Participant, which reflects the
Participant's Deferral Contributions made under the Plan. Separate subdivisions
of the Deferred Cash Account shall continue to be maintained to reflect Deferral
Contributions made and Deferral Benefits attributable with respect to each Plan
Year.
1.18 Deferred Stock Unit: A hypothetical share of the Corporation's
common stock.
1.19 Deferred Stock Unit Account: An unfunded, bookkeeping account
maintained on the books of the Corporation for a Participant, which reflects his
interest in amounts attributable to his Deferred Contributions under the Plan.
Separate subdivisions of the Deferred Stock Unit Account shall be maintained to
reflect Deferral Contributions made and Deferral Benefits attributable with
respect to each Plan Year and within each Plan Year, the Deferral Contributions
and Deferral Benefits attributable to Deferral Contributions of Bonus and
Deferral Premiums.
1.20 Disabled and Disability: These terms shall have the meanings
assigned to such terms in the Company's Long-Term Disability Plan, as amended
from time to time.
1.21 Effective Date: The Effective Date of the Plan is January 1,
2000.
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1.22 Eligible Executive: An executive who has the rank of President
or higher of a subsidiary of the Company or a member of the executive group of
the Company.
1.23 First Plan Year: The Plan Year commencing February 1, 2000.
1.24 Participant: An Eligible Executive who elects to participate
in the Plan, and further differentiated as follows:
(i) "Active Participant": A Participant who has an
election to make Deferral Contributions to the Plan in effect at the
time in question.
(ii) "Inactive Participant": A Participant who does not
have an election to make Deferral Contributions to the Plan in effect
at the time in question.
1.25 Plan: This document, as contained herein or duly amended,
which shall be known as the "Hilb, Rogal and Hamilton Company Executive
Voluntary Deferral Plan".
1.26 Plan Year: The calendar year during which a Participant's
Bonus is earned.
1.27 Rate of Return: Seven percent (7%) until, if ever, increased
by the Compensation Committee.
1.28 Retirement: A Participant's termination of employment with the
Company (i) at or after age 65 or (ii) at or after age 55 so long as the
Participant has been employed with the Company for at least ten years.
1.29 Salary: Compensation paid to a Participant for services
rendered to the Corporation, excluding that amount which is designated as a
"bonus" by the Committee.
ARTICLE II
Eligibility and Participation
-----------------------------
2.1 Eligibility. Each Eligible Executive shall be eligible to
participate in the Plan and to defer Salary and Bonus for such Plan Year as
provided in this Plan. Any questions as to whether an executive is employed at
the level of President or higher of a subsidiary of the Company or is a member
of the executive group of the Company shall be determined by the Administrator,
in its sole discretion, in accordance with Company policy, if any, on such
matters.
2.2 Participation.
(a) In order to become an Active Participant and to make Deferral
Contributions with respect to a Plan Year, an Eligible Executive must file with
the Administrator a Deferral Election, in accordance with the terms and
conditions set forth in Section 3.2. For the First Plan Year, such Deferral
Election must be filed no later than January 31, 2000. With respect to all
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Plan Years other than the First Plan Year, such Deferral Election must be filed
no later than the December 31 preceding such Plan Year or at such earlier time
as may be set by the Committee in its sole discretion.
(b) By executing and filing such election with the Administrator,
an Eligible Executive consents and agrees to the following:
(i) To execute such applications and take such physical
examinations and to supply truthfully and completely such information
as may be requested by any health questionnaire provided by the
Administrator;
(ii) To be bound by all terms and conditions of the Plan
and all amendments thereto.
2.3 Commencement of Active Participation. An Eligible Executive
shall become an Active Participant with respect to a Plan Year only if he is
expected to have Salary and Bonus during such Plan Year, and he timely files and
has in effect a Deferral Election for such Plan Year.
2.4 Length of Participation. An individual who is or becomes a
Participant shall be or remain an Active Participant as long as he has a
Deferral Election in effect; and he shall be or remain an Inactive Participant
as long as he is entitled to future benefits under the terms of the Plan and is
not considered an Active Participant.
ARTICLE III
Determination of Deferral
-------------------------
3.1 Deferral Benefit. For purposes hereof, a Participant's
Deferral Benefit shall be the balance in his Deferred Cash Account and his
Deferred Stock Unit Account at the time in question.
3.2 Deferral Election.
(a) Subject to the restrictions and conditions hereinafter
provided, a Participant may irrevocably elect, as a Deferral Contribution with
respect to a Plan Year, to defer part of the Participant's Salary, plus part or
all of the Participant's Bonus for a given Plan Year, which is specified in his
Deferral Election for such Plan Year in accordance with the conditions set forth
in this Section 3.2. Any such Deferral Election must be filed with the
Administrator at the time required under Section 2.2(a).
(b) The following conditions apply:
(i) The maximum Deferral Contribution with respect to any
Participant for a Plan Year shall be fifty percent (50%) of his Salary
and one hundred percent (100%) of his Bonus for such Plan Year, and
such election shall be expressed by the Participant's
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indication of (x) the excess of a dollar level, (y) a stated
percentage, or (z) a stated percentage of the excess of a dollar level
of the Participant's Salary and Bonus for a given Plan Year.
(ii) On such election form, the Participant 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. To the extent that a Participant elects to defer
amounts into his Deferred Cash Account, the Participant's Deferred Cash
Account shall be credited with the dollar amount of the Deferral
Contribution allocated to such Account either (i) as of the day on
which the Salary and/or Bonus would otherwise be paid to the
Participant if such day is a Deferral Contribution Date, or (ii) if
such day on which the Salary and/or Bonus would otherwise be paid is
not a Deferral Contribution Date, then as of the next occurring
Deferral Contribution Date. To the extent that a Participant elects to
defer amounts into his Deferred Stock Unit Account, the Participant's
Deferred Stock Unit Account shall be credited with that number of
Deferred Stock Units determined by dividing the dollar amount of the
Participant's Deferral Contribution to the Deferred Stock Unit Account
by the Closing Price either (i) as of the day on which the Salary
and/or Bonus would otherwise be paid to the Participant if such day is
a Deferral Contribution Date; or (ii) if such day on which the Salary
and/or Bonus would otherwise be paid is not a Deferral Contribution
Date, then as of the next occurring Deferral Contribution Date.
(iii) A separate Deferral Election must be filed for each
Plan Year.
(iv) Each Deferral Election shall be made on a form
provided by the Administrator and shall specify any such information as
the Administrator may require.
(v) A Deferral Election must specify the manner of
payment and the period of payment. A Participant may elect to receive a
lump sum payment or quarterly installment payments over a term of years
of up to fifteen years.
(vi) A Deferral Election must specify the Benefit
Commencement Date. A Participant may elect to receive payments on a
date which is at least three (3) years from the Deferral Contribution
Date for such election but in no event later than the Participant's
75th birthday or on a date which is the later of three (3) years from
the Deferral Contribution Date for such election but in no event later
than the Participant's 75th birthday or the Participant's termination
of employment with the Corporation. The Benefit Commencement Date
specified in the Participant's Deferral Election may be accelerated
upon the Participant's death, Disability, Retirement or upon a Change
of Control as further provided in this Plan.
(vii) A Participant shall have the option of postponing the
elected Benefit Commencement Date of a Deferral Benefit whether from
the Participant's Deferred Cash Account or Deferred Stock Unit Account
by making an irrevocable election to roll over such Deferral Benefit at
least one year before such Deferral Benefit is payable, provided that
the Participant may not change his previous allocation of amounts to
his Deferred
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Cash Account and Deferred Stock Unit Account at such time and provided
that a Participant may not postpone the elected Benefit Commencement
Date past the Participant's 75th birthday. A Participant shall make
such election on a form designated by the Administrator.
3.3 Subtractions from Deferred Cash Account and Deferred Stock
Unit Account. All distributions from a Participant's Deferred Cash Account and
Deferred Stock Unit Account shall be subtracted when such distributions are
made.
3.4 Crediting of Interest to Deferred Cash Account. There shall be
credited to each Participant's Deferred Cash Account an amount representing
interest on the balance of such account. Interest shall be credited as earned.
Such interest shall be based on the applicable Rate of Return for the Plan Year.
3.5 Equitable Adjustment in Case of Error or Omission. If an error
or omission is discovered in the Deferred Cash Account and Deferred Stock Unit
Account of a Participant, the Administrator shall make such equitable
adjustments as the Administrator deems appropriate.
3.6 Statement of Benefits. Within a reasonable time after the end
of the Plan Year and at the date a Participant's Deferral Benefit or Death
Benefit becomes payable under the Plan, the Administrator shall provide to each
Participant (or, if deceased, to his Beneficiary) a statement of the benefit
under the Plan.
ARTICLE IV
Accounts and Investments
------------------------
4.1 Accounts. A separate Account under the Plan shall be
established for each Participant. Such Account shall be (a) credited with the
amounts credited in accordance with Section 3.2, (b) credited (or charged, as
the case may be) with the investment results determined in accordance with
Section 4.2, and (c) charged with the amounts paid by the Plan to or on behalf
of the Participant in accordance with Article VII. With each Participant's
Account, separate subaccounts including a Deferred Stock Unit Account and a
Deferred Cash Account shall be maintained.
4.2 Deferred Stock Units. Except as provided below, a
Participant's Deferred Stock Unit Account shall 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 Corporation's common stock in accordance with the
following rules:
(a) Before the Benefit Commencement Date, the number of Deferred
Stock Units credited to a Participant's Deferred Stock Unit Account shall be
increased on each date on which a dividend is paid on the Corporation'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 shall 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
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Unit Account immediately before such increase by the amount of the dividend paid
per share of the Corporation's common stock on the dividend payment date, and
(ii) dividing the product so determined by the Closing Price on the dividend
payment date.
(b) The dollar value of the Deferred Stock Units credited to a
Participant's Deferred Stock Unit Account on any date shall 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.
(c) In the event of a transaction or event described in this
subsection (c), the number of Deferred Stock Units credited to a Participant's
Deferred Stock Unit Account shall be adjusted in such manner as the Board, in
its sole discretion, deems equitable. A transaction or event is described in
this subsection (c) if (i) it is a dividend (other than regular quarterly
dividends) or other distribution (whether in the form of cash, shares, other
securities, or other property), extraordinary cash dividend, recapitalization,
stock split, reverse stock split, reorganization, merger, consolidation,
split-up, spin-off, repurchase, or exchange of shares or other securities, the
issuance or exercisability of stock purchase rights, the issuance of warrants or
other rights to purchase shares or other securities, or other similar corporate
transaction or event and (ii) the Board determines that such transaction or
event affects the shares of the Corporation's common stock, such that an
adjustment pursuant to this paragraph (c) is appropriate to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available
under the Plan.
(d) A Participant who elects to receive distribution of his
Accounts in quarterly installments will not have his or her Deferred Stock Unit
Account credited with Deferred Stock Units on or after the Benefit Commencement
Date.
(e) On the Benefit Commencement Date, the Deferred Stock Unit
Account of a Participant who has elected to receive his Deferral Benefit in
quarterly installments shall be converted to a Deferred Cash Account which shall
be combined with the Participant's existing Deferred Cash Account. The Deferred
Cash Account shall continue to accrue interest at the Rate of Return.
4.3 Hypothetical Nature of Accounts and Investments. Each Account
established under this Article IV shall be maintained for bookkeeping purposes
only. Neither the Plan nor any of the Accounts established under the Plan shall
hold any actual funds or assets. The Deferred Stock Units established hereunder
shall be used solely to determine the amounts to be paid hereunder, shall not
represent an equity security of the Corporation, shall not be convertible into
or otherwise entitle a Participant to acquire an equity security of the
Corporation and shall not carry any voting or dividend rights.
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ARTICLE V
Vesting
-------
5.1 Vesting. A Participant's Deferred Cash Account and Deferred
Stock Unit Account shall be fully vested and non-forfeitable at all times.
ARTICLE VI
Death Benefits
--------------
6.1 Pre-Benefit Commencement Date Death Benefit. In the event that
a Participant dies prior to his Benefit Commencement Date, then the
Participant's Deferred Stock Unit Account shall be converted to a Deferred Cash
Account as of the first day of the month following the Participant's date of
death, which Deferred Cash Account shall accrue annual interest thereafter at
the Rate of Return to the extent not paid out in a lump sum pursuant to the
Participant's election form. The Beneficiary of such Participant shall be
entitled to receive as a Death Benefit an amount equal to the Deferral Benefit
as of the Benefit Commencement Date that the Participant would have received had
the Participant lived to receive the full Deferral Benefit. This Death Benefit
shall be paid pursuant to the Participant's election form except that the
payment shall be made, or begin, no more than ninety (90) days after the
Participant's date of death.
6.2 Post-Benefit Commencement Date Death Benefit. In the event
that a Participant dies after his Benefit Commencement Date, then the
Beneficiary of such Participant shall be entitled to receive as a Death Benefit
a continuation of the payment of the Deferral Benefit in the same manner and in
the same amount that the Participant would have received had the Participant
lived to receive the Deferral Benefit.
ARTICLE VII
Payment of Benefits
-------------------
7.1 Payment of Deferral Benefit. A Participant's Deferral Benefit,
if any, shall become payable to the Participant as of the Benefit Commencement
Date specified in his Deferral Election or as soon thereafter as is
administratively practical. If the Participant has elected to receive the
Deferral Benefit in quarterly installments, each of the Participant's
installment payments shall be comprised of accrued interest, if any, and that
portion of the Participant's Deferral Benefit equal to the balance in the
Participant's Deferred Cash Account divided by the number of remaining annual
installment payments to be made to the Participant.
7.2 Payment of Death Benefit. A Participant's Death Benefit shall
be payable to his Beneficiary as set forth in Article VI.
7.3 Form of Payment of Deferral Benefit. A Participant shall be
paid his Deferral Benefit beginning at the Benefit Commencement Date in a lump
sum or in periodic installment
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payments payable quarterly for the term of years as irrevocably elected by the
Participant pursuant to Section 3.2.
7.4 Benefit Determination and Payment Procedure. The Administrator
has the authority, in its sole discretion and judgment to make all
determinations concerning eligibility for benefits under the Plan, the time or
terms of payment, and the form or manner of payment to the Participant or the
Participant's Beneficiary, in the event of the death or Disability of the
Participant. The Administrator shall promptly notify the Corporation of each
such determination that benefit payments are due and provide to the Corporation
all other information necessary to allow the Corporation to carry out said
determination, whereupon the Corporation shall pay such benefits in accordance
with the Administrator's determination.
7.5 Payments to Minors and Incompetents. If a Participant or
Beneficiary entitled to receive any benefits hereunder is a minor or is adjudged
to be legally incapable of giving valid receipt and discharge for such benefits,
or is deemed so by the Administrator, benefits will be paid to such person as
the Administrator may designate for the benefit of such Participant or
Beneficiary. Such payments shall be considered a payment to such Participant or
Beneficiary and shall, to the extent made, be deemed a complete discharge of any
liability for such payments under the Plan.
7.6 Distribution of Benefit When Distributee Cannot Be Located.
The Administrator shall make all reasonable attempts to determine the identity
and/or whereabouts of a Participant or a Participant's Beneficiary entitled to
benefits under the Plan, including the mailing by certified mail of a notice to
the last known address shown on the Corporation's or the Administrator's
records. If the Administrator is unable to locate such a person entitled to
benefits hereunder, or if there has been no claim made for such benefits, the
Corporation shall continue to hold the benefit due such person, subject to any
applicable statute of escheats.
7.7 Deferral Benefit Upon Disability or Retirement. In the event
of the Participant's Disability or Retirement prior to his selected Benefit
Commencement Date, the Participant's Benefit Commencement Date shall be adjusted
to the first day of the month following the Participant's Retirement or
Disability. On such adjusted Benefit Commencement Date, the Deferred Stock Unit
Account of a Participant who has elected to receive his Deferral Benefit in
quarterly installments shall be converted to a Deferred Cash Account, which
shall be combined with the Participant's existing Deferred Cash Account. The
Deferred Cash Account shall continue to accrue interest at the Rate of Return.
The Participant's Deferral Benefit shall become payable on the first day of the
month following such event and shall be paid in the manner prescribed on the
Participant's election form, except with regard to the Participant's originally
selected Benefit Commencement Date.
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ARTICLE VIII
Beneficiary Designation
-----------------------
8.1 Beneficiary Designation.
(a) A Participant may designate a Beneficiary and a contingent
Beneficiary as part of his Deferral Election. Any Beneficiary designation made
hereunder shall be effective only if properly signed and dated by the
Participant and delivered to the Administrator prior to the time of the
Participant's death. Any Beneficiary designation hereunder shall remain
effective until changed or revoked hereunder.
(b) A Beneficiary designation may be changed by the Participant at
any time, or from time to time, by filing a new designation in writing with the
Administrator.
(c) If the Participant dies without having designated a
Beneficiary or a contingent Beneficiary or if the Participant dies and the
Beneficiary and contingent Beneficiary so named by the Participant have both
predeceased the Participant, then the Participant's estate shall be deemed to be
his Beneficiary. In the event that the Participant dies and the Beneficiary so
named by the Participant has predeceased the Participant, then the surviving
contingent Beneficiary, if any, shall be the Beneficiary.
(d) If a Beneficiary of the Participant shall survive the
Participant but shall die before the Participant's entire benefit under the Plan
has been distributed, then the unpaid balance thereof shall be distributed to
any other beneficiary named by the deceased Beneficiary to receive his interest
or, if none, to the estate of the deceased Beneficiary.
ARTICLE IX
Withdrawals
-----------
9.1 No Withdrawals Permitted. No withdrawals or other
distributions shall be permitted from the Deferred Cash Account and Deferred
Stock Unit Account except as specifically provided in Articles VII and IX.
9.2 Hardship Exemption.
(a) A distribution of a portion of the Participant's Deferral
Account because of an Unforeseeable Emergency will be permitted only to the
extent required by the Participant to satisfy the emergency need. Whether an
Unforeseeable Emergency has occurred will be determined solely by the
Administrator. Distributions in the event of an Unforeseeable Emergency may be
made by and with the approval of the Administrator upon written request by a
Participant.
(b) An "Unforeseeable Emergency" is defined as a severe financial
hardship to the Participant resulting from a sudden and unexpected illness or
accident of the Participant or of a dependent of the Participant, loss of the
Participant's property due to casualty, or other similar
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extraordinary and unforeseeable circumstances arising as a result of events
beyond the Participant's control. The circumstances that will constitute an
Unforeseeable Emergency will depend upon the facts of each case, but, in any
event, any distribution under this Section 9.2 shall not exceed the remaining
amount required by the Participant to resolve the hardship after (i)
reimbursement or compensation through insurance or otherwise, (ii) obtaining
liquidation of the Participant's assets, to the extent such liquidation would
not itself cause a severe financial hardship, or (iii) suspension of deferrals
under the Plan.
ARTICLE X
Funding
-------
10.1 Funding.
(a) All Plan Participants and Beneficiaries are general unsecured
creditors of the Corporation with respect to the benefits due hereunder and the
Plan constitutes a mere promise by the Corporation to make benefit payments in
the future. It is the intention of the Corporation that the Plan be considered
unfunded for tax purposes.
(b) The Corporation may, but is not required to, purchase life
insurance in amounts sufficient to provide some or all of the benefits provided
under this Plan or may otherwise segregate assets for such purpose.
(c) The Corporation may, but is not required to, establish a
grantor trust which may be used to hold assets of the Corporation which are
maintained as reserves against the Corporation's unfunded, unsecured obligations
hereunder. Such reserves shall at all times be subject to the claims of the
Corporation's creditors. To the extent such trust or other vehicle is
established, and assets contributed, for the purpose of fulfilling the
Corporation's obligation hereunder, then such obligation of the Corporation
shall be reduced to the extent such assets are utilized to meet its obligations
hereunder. Any such trust and the assets held thereunder are intended to conform
in substance to the terms of the model trust described in Revenue Procedure
92-64.
ARTICLE XI
Change of Control
-----------------
11.1 Change of Control.
A "Change of Control" shall mean:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 25% or more of
either (i) the then outstanding shares of common stock of the Corporation (the
"Outstanding Corporation Common Stock") or (ii) the combined voting power
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of the then outstanding voting securities of the Corporation entitled to vote
generally in the election of directors (the "Outstanding Corporation Voting
Securities"); provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change of Control: (i) any
acquisition directly from the Corporation, (ii) any acquisition by the
Corporation, (iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any corporation controlled
by the Corporation or (iv) any acquisition by any corporation pursuant to a
transaction which complies with clauses (i), (ii) and (iii) of subsection (c) of
this Section; or
(b) Individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Corporation's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(c) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Corporation (a "Business Combination"), in each case, unless, following such
Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination (including,
without limitation a corporation which as a result of such transaction owns the
Corporation or all or substantially all of the Corporation's assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business Combination
of the Outstanding Corporation Common Stock and Outstanding Corporation Voting
Securities, as the case may be, (ii) no Person (excluding any corporation
resulting from such Business Combination or any employee benefit plan (or
related trust) of the Corporation or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 25% or more of,
respectively, the then outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power of the
then outstanding voting securities of such corporation except to the extent that
such ownership existed prior to the Business Combination and (iii) at least a
majority of the members of the board of directors of the corporation resulting
from such Business Combination were members of the Incumbent Board at the time
of the execution of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(d) Approval by the shareholders of the Corporation of a complete
liquidation or dissolution of the Corporation.
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Notwithstanding the foregoing, for purposes of subsection (a) of this
Section, a Change of Control shall not be deemed to have taken place if, as a
result of an acquisition by the Corporation which reduces the Outstanding
Corporation Common Stock or the Outstanding Corporation Voting Securities, the
beneficial ownership of a Person increases to 25% or more of the Outstanding
Corporation Common Stock or the Outstanding Corporation Voting Securities;
provided, however, that if a Person shall become the beneficial owner of 25% or
more of the Outstanding Corporation Common Stock or the Outstanding Corporation
Voting Securities by reason of share purchases by the Corporation and, after
such share purchases by the Corporation, such Person becomes the beneficial
owner of any additional shares of the Outstanding Corporation Common Stock or
the Outstanding Corporation Voting Stock, for purposes of subsection (a) of this
Section, a Change of Control shall be deemed to have taken place.
11.2 Effect of Change of Control.
Notwithstanding any other provision in any other Article of this Plan
to the contrary, (i) the value of all amounts deferred by a Participant which
have not yet been credited to the Participant's Account and (ii) the value of
such Participant's Account shall be paid to such Participant in each case in a
lump-sum cash payment on the occurrence of a Change of Control or as soon
thereafter as practicable, but in no event later than five days after the Change
of Control. The amount of cash credited to each Participant's Account prior to
determining the amount of cash to be paid from the Account shall be determined
by the Board (which, for this purpose, shall be comprised of employee members of
the Board prior to the Change of Control) so as to reflect fairly and equitably
appropriate interest and dividends and circumstances as the Board deems
appropriate, including, without limitation, the recent price of shares of the
Corporation's common stock. For purposes of payments under this Article XI, the
value of a Deferred Stock Unit shall be computed as the greater of (1) the
Closing Price on or nearest the date on which the Change of Control is deemed to
occur, or (2) the highest per share price for shares of the Corporation's common
stock actually paid in connection with the Change of Control.
ARTICLE XII
Plan Administrator
------------------
12.1 Appointment of Administrator.
(a) The Committee shall serve as the Administrator unless the
Committee has appointed one or more persons to serve as the Plan Administrator
(the "Administrator") for the purpose of administering the Plan. In the event
more than one person is appointed, the persons shall form a committee for the
purpose of functioning as the Administrator of the Plan. If the Committee has so
appointed an Administrator, the person or committeemen serving as Administrator
shall serve for indefinite terms at the pleasure of the Committee, and may, by
thirty (30) days prior written notice to the Committee, terminate such
appointment.
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12.2 Duties and Responsibilities of Plan Administrator.
(a) The Administrator shall maintain and retain necessary records
regarding its administration of the Plan.
(b) The Administrator is empowered to settle claims against the
Plan and to make such equitable adjustments in a Participant's or Beneficiary's
rights or entitlements under the Plan as it deems appropriate in the event an
error or omission is discovered or claimed in the operation or administration of
the Plan as provided in Section 12.3.
(c) The Administrator has the authority in its sole judgment and
discretion to construe the Plan, correct defects, supply omissions or reconcile
inconsistencies to the extent necessary to effectuate the Plan, and such action
shall be conclusive and binding on all Participants.
12.3 Claims Procedures.
(a) Any claim by a Participant or his or her Beneficiary
(hereafter the "Claimant") for benefits shall be submitted in writing to the
Administrator. The Administrator shall be responsible for deciding whether such
claim is payable, or the claimed relief otherwise is allowable, under the
provisions and rules of the Plan (a "Covered Claim"). The Administrator
otherwise shall be responsible for providing a full review of the
Administrator's decision with regard to any claim, upon a written request.
(b) Each Claimant or other interested person shall file with the
Administrator such pertinent information as the Administrator may specify, and
in such manner and form as the Administrator may specify; and, such person shall
not have any rights or be entitled to any benefits, or further benefits,
hereunder, as the case may be, unless the required information is filed by the
Claimant or on behalf of the Claimant. Each Claimant shall supply, at such times
and in such manner as may be required, written proof that the benefit is covered
under the Plan. If it is determined that a Claimant has not incurred a Covered
Claim or if the Claimant shall fail to furnish such proof as is requested, no
benefits, or no further benefits, hereunder, as the case may be, shall be
payable to such Claimant.
(c) Notice of any decision by the Administrator with respect to a
Claim generally shall be furnished to the Claimant within ninety (90) days
following the receipt of the claim by the Administrator (or within ninety (90)
days following the expiration of the initial ninety (90) day period in any case
where there are special circumstances requiring extension of time for processing
the claim). If special circumstances require an extension of time for processing
the claim, written notice of the extension shall be furnished by the
Administrator to the Claimant.
(d) Commencement of benefit payments shall constitute notice of
approval of a claim to the extent of the amount of the approved benefit. If such
claim shall be wholly or partially denied, such notice shall be in writing. If
the Administrator fails to notify the Claimant of the decision regarding his or
her claim in accordance with the "Claims Procedure" provisions, the claim shall
be deemed "denied"; and, the Claimant then shall be permitted to proceed with
the claims review procedure provided for herein.
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<PAGE>
(e) Within sixty (60) days following receipt by the Claimant of
notice of the claim denial, or within sixty (60) days following the date of a
deemed denial, the Claimant may appeal denial of the claim by filing a written
application for review with the Administrator. Following such request for
review, the Administrator shall fully review the decision denying the claim. The
decision of the Administrator then shall be made within sixty (60) days
following receipt by the Administrator of a timely request for review (or within
one hundred and twenty (120) days after such receipt, in a case where there are
special circumstances requiring an extension of time for reviewing such denied
claim). The Administrator shall deliver its decision to the Claimant in writing.
If the decision on review is not furnished within the prescribed time, the claim
shall be deemed "denied" on review.
(f) For all purposes under the Plan, the decision with respect to
a claim (if no review is requested) and the decision with respect to a claims
review (if requested), shall be final, binding and conclusive on all
Participants, Beneficiaries and other interested parties, as to all matters
relating to the Plan and Plan benefits. Further, each claims determination under
the Plan shall be made in the absolute and exclusive discretion and authority of
the Committee.
ARTICLE XIII
Amendment or Termination of Plan
--------------------------------
13.1 Amendment or Termination of the Plan. The Plan may be
terminated or amended at any time by the Board, effective as of any date
specified. Any such action taken by the Board shall be evidenced by a resolution
and shall be communicated to Participants and Beneficiaries prior to the
effective date thereof. No amendment or termination shall decrease a
Participant's Deferral Benefit accrued prior to the effective date of the
amendment or termination. The Board reserves the right to unilaterally shorten
the Deferral Period of any Participant hereunder in its sole discretion if, in
its sole discretion, it determines that to do so will be fair and equitable to
the Participant.
ARTICLE XIV
Miscellaneous
-------------
14.1 Non-assignability. The interests of each Participant under the
Plan are not subject to claims of the Participant's creditors; and neither the
Participant nor his Beneficiary shall have any right to sell, assign, transfer
or otherwise convey the right to receive any payments hereunder or any interest
under the Plan, which payments and interest are expressly declared to be
non-assignable and non-transferable.
14.2 Notices and Elections. All notices required to be given in
writing and all elections required to be made in writing under any provision of
the Plan shall be invalid unless made on such forms as may be provided or
approved by the Administrator and, in the case of a notice or election by a
Participant or Beneficiary, unless executed by the Participant or
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<PAGE>
Beneficiary giving such notice or making such election. Notices and elections
shall be deemed given or made when received by any member of the committee that
serves as Administrator.
14.3 Delegation of Authority. Whenever the Corporation is permitted
or required to perform any act, such act may be performed by its Chief Executive
Officer or President or other person duly authorized by its Chief Executive
Officer or President or its Board.
14.4 Service of Process. The Administrator shall be the agent for
service of process on the Plan.
14.5 Governing Law. The Plan shall be construed, enforced and
administered in accordance with the laws of the Commonwealth of Virginia.
14.6 Binding Effect. The Plan shall be binding upon and inure to
the benefit of the Corporation, its successors and assigns, and the Participant
and his heirs, executors, administrators and legal representatives.
14.7 Severability. If any provision of the Plan should for any
reason be declared invalid or unenforceable by a court of competent
jurisdiction, the remaining provisions shall nevertheless remain in full force
and effect.
14.8 Gender and Number. In the construction of the Plan, the
masculine shall include the feminine or neuter and the singular shall include
the plural and vice-versa in all cases where such meanings would be appropriate.
14.9 Titles and Captions. Titles and captions and headings herein
have been inserted for convenience of reference only and are to be ignored in
any construction of the provisions hereof.
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Exhibits 5.1 and 23.1
[WILLIAMS, MULLEN, CLARK & DOBBINS LETTERHEAD]
December 27, 1999
The Board of Directors
Hilb, Rogal and Hamilton Company
P.O. Box 1220
Glen Allen, Virginia 23060-1220
Re: Hilb, Rogal and Hamilton Company Executive Voluntary Deferral Plan
Gentlemen:
This letter is delivered to you in connection with the actions taken
and proposed to be taken by Hilb, Rogal and Hamilton Company, a Virginia
corporation (the "Company"), with respect to the offer and sale from time to
time pursuant to the Hilb, Rogal and Hamilton Company Executive Voluntary
Deferral Plan (the "Plan"), of unsecured obligations of the Company to pay
deferred compensation in the future in accordance with the terms of the Plan
(the "Deferred Compensation Obligations"). We have reviewed the Registration
Statement on Form S-8 (the "Registration Statement") to be filed by the Company
with the Securities and Exchange Commission to effect the registration of the
Deferred Compensation Obligations under the Securities Act of 1933, as amended.
In this regard, we have examined such corporate proceedings, records
and documents as we have deemed necessary or advisable in connection with the
opinions set forth herein.
Based upon such examination, it is our opinion that the Deferred
Compensation Obligations, when issued pursuant to the Registration Statement and
the terms and conditions of the Plan, will be legal, valid and binding
obligations of the Company under the laws of the Commonwealth of Virginia.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm as counsel to the
Company in the Registration Statement.
Very truly yours,
Williams Mullen Clark & Dobbins, P.C.
By: /s/ Robert E. Spicer, Jr.
----------------------------------
Robert E. Spicer, Jr.
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Hilb, Rogal and Hamilton Company Executive Voluntary
Deferral Plan of our report dated February 10, 1999, with respect to the
consolidated financial statements and schedule of Hilb, Rogal and Hamilton
Company included in its Annual Report (Form 10-K) for the year ended December
31, 1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Richmond, Virginia
December 17, 1999
