-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, A1kkm8DUxccTkfZNerA+OY/nKkKnqzqMfQRPo8Qg5Jjot3UEj72bynmh9hgvsNbP +0e5fRBYi25BnSgoXXr1ng== 0001002105-01-500099.txt : 20020412 0001002105-01-500099.hdr.sgml : 20020412 ACCESSION NUMBER: 0001002105-01-500099 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20011130 EFFECTIVENESS DATE: 20011130 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HILB ROGAL & HAMILTON CO /VA/ CENTRAL INDEX KEY: 0000814898 STANDARD INDUSTRIAL CLASSIFICATION: INSURANCE AGENTS BROKERS & SERVICES [6411] IRS NUMBER: 541194795 STATE OF INCORPORATION: VA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-93633 FILM NUMBER: 1804405 BUSINESS ADDRESS: STREET 1: THE HILB, ROGAL AND HAMILTON BUILDING STREET 2: 4951 LAKE BROOK DRIVE, SUITE 500 CITY: GLEN ALLEN STATE: VA ZIP: 23060 BUSINESS PHONE: 8047476500 MAIL ADDRESS: STREET 1: P O BOX 1220 CITY: GLEN ALLEN STATE: VA ZIP: 23060 S-8 POS 1 er509.txt As filed with the Securities and Exchange Commission on November 30, 2001. Registration No. 333-93633 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 AMENDMENT NO. 1 to FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 HILB, ROGAL AND HAMILTON COMPANY (Exact Name of Registrant as Specified in its Charter) Virginia 54-1194795 (State or Other Jurisdiction (I.R.S. Employer of Incorporation or Organization) Identification Number) 4951 Lake Brook Drive, Suite 500, Glen Allen, Virginia 23060 (Address of Principal Executive Offices) (Zip Code) ------------------ HILB, ROGAL AND HAMILTON COMPANY EXECUTIVE VOLUNTARY DEFERRAL PLAN (Full Title of the Plan) Walter L. Smith, Esq. Senior Vice President, General Counsel and Secretary Hilb, Rogal and Hamilton Company 4951 Lake Brook Drive, Suite 500 Glen Allen, Virginia 23060 (804) 747-6500 (Name, Address and Telephone Number, Including Area Code, of Agent for Service) ----------- ================================================================================ 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; (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, as amended and restated effective January 1, 2002 (the "Plan"). The shares ("Shares") of Common Stock payable under the Plan with respect to certain Deferred Compensation Obligations are not subject to this Registration Statement, and shall be separately II-2 registered for resale by the Company under the Securities Act of 1933 under another registration statement. Capitalized terms used in this Item 4 and not otherwise defined in this Registration Statement shall have the respective meanings attributed to such terms in the Plan. The Deferred Compensation Obligations incurred by the Registrant under the Plan are unsecured general obligations of the Registrant, and will rank equally with other unsecured and unsubordinated indebtedness of the Registrant outstanding from time to time. The Plan is unfunded, and the Registrant is not required to set aside assets to be used for payment of the Deferred Compensation Obligations. In addition, the right of the Registrant (and hence the rights of creditors of the Registrant, including Participants in the Plan) to participate in a distribution of the assets of a subsidiary of the Registrant upon its liquidation or reorganization or otherwise is necessarily subject to the prior claims of creditors of the subsidiary, except to the extent that claims of the Company itself as a creditor may be recognized. Under the Plan, the Registrant will provide a select group of its executives who have the rank of President or higher of a subsidiary of the Company or any member of the executive group of the Company with the opportunity to elect to defer part of the Salary plus part or all of the Bonus payable to such executives during any Plan Year. The Registrant will establish a Deferred Cash Account and a Deferred Stock Unit Account for each executive who elects to participate in the Plan. A Participant may designate a fixed dollar amount or a percentage to be deducted from his or her Salary and Bonus ("Deferral Contribution") and shall indicate how the Deferral Contribution is to be allocated between the Participant's Deferred Cash Account and the Participant's Deferred Stock Unit Account. The maximum deferral during any Plan Year is 50% of the amount of any Salary and 100% of the amount of any Bonus. Amounts credited to the Participant's Deferred Cash Account earn interest at the Rate of Return (initially 7%), subject to increase by the Compensation Committee. Except as otherwise provided in the Plan, a Participant's Deferred Stock Unit Account will be treated as if it were invested in Deferred Stock Units that are equivalent in value to the fair market value of the shares of the Registrant's Common Stock in accordance with the terms set forth in the Plan. The number of Deferred Stock Units credited to a Participant's Deferred Stock Unit Account will be increased on each date on which a dividend is paid on the Registrant's Common Stock. The number of additional Deferred Stock Units credited to a Participant's Deferred Stock Unit Account as a result of such increase will be determined by (i) multiplying the total number of Deferred Stock Units (with fractional Deferred Stock Units rounded off to the nearest thousandth) credited to the Participant's Deferred Stock Unit Account immediately before such increase by the amount of the dividend paid per share of the Registrant's Common Stock on the dividend payment date, and (ii) dividing the product so determined by the Closing Price of the Registrant's Common Stock on the dividend payment date. The dollar value of the Deferred Stock Units credited to a Participant's Deferred Stock Unit Account on any date will be determined by multiplying the number of Deferred Stock Units (including fractional Deferred Stock Units) credited to the Participant's Deferred Stock Unit Account by the Closing Price on that date. The amounts deferred by Participants under the Plan represent an obligation of the Registrant to make payments to the Participants at some time in the future. A Participant's Deferred II-3 Stock Unit Account shall be paid in Shares of the Company's Common Stock with fractional Shares paid in cash, and the Deferred Cash Account shall be paid in cash. The amount that the Registrant is required to pay to any Participant under the terms of the Plan is equal to the Deferral Benefit, or the sum of the Deferred Contributions made by the Participant plus interest accrued at the Rate of Return with respect to a Participant's Deferred Cash Account, and adjusted for hypothetical gains or losses attributable to the deemed investment of such Deferral Contributions in shares of the Registrant's Common Stock with respect to his or her Deferred Stock Unit Account. The amounts payable to Participants under the Plan are distributed in accordance with the distribution provisions of the Plan. Generally, such distributions are made as of the Benefit Commencement Date specified in the Participant's Deferral Election. Payment of benefits may either be in a lump sum or in annual installments at the Participant's election. The Plan also provides for interim distributions of amounts payable from the Participant's Deferral Account and for withdrawal of Plan amounts in the event of a financial emergency. The Registrant is entitled to withhold all federal, state and local income, employment and other taxes required to be withheld by the Registrant in connection with payments to be made to Participants under the Plan. Each Participant is at all times 100% vested in all Deferral Contributions, as well as in any appreciation (or depreciation) in the amount thereof due to appreciation or depreciation in the Registrant's Common Stock. The Plan provides that the Company may, but is not required to, establish a grantor trust (the "Trust") which may be used to hold assets of the Company to be maintained as reserves against the Company's unfunded, unsecured obligations under the Plan. The Company may appoint one or more individuals or corporations to act as Trustee. The Company may remove the Trustee and appoint a successor Trustee at any time. The Trustee's responsibility would be limited to holding and investing the assets of the Trust in its possession and voting the Common Stock it holds as a fiduciary. No Participant or Beneficiary would have any right, title or interest in or to any Trust assets (and all such assets shall remain subject to the claims of the Company's creditors). Neither the Participant nor his or her Beneficiary has any right to sell, assign, transfer or otherwise convey the right to receive any payments under the Plan or any interest in the Plan, which payments and interest are expressly declared to be non-assignable and non-transferable. The interests of each Participant under the Plan are not subject to the claims of the Participant's creditors. The Registrant reserves the right to amend or terminate the Plan, provided that any such amendment does not decrease or restrict the value of a Participant's account balance under the Plan in existence at the time the amendment is made. Moreover, the Registrant reserves the right to unilaterally shorten the Deferral Period of any Participant, if it determines that to do so will be fair and equitable to the Participant. Item 5. Interests of Named Experts and Counsel Williams Mullen, counsel to the Registrant, has rendered its opinion that the Deferred Compensation Obligations, when issued pursuant to the terms and conditions of the Plan, will be II-4 legal, valid and binding obligations of the Registrant. Theodore L. Chandler, Jr., a principal in Williams Mullen until February, 1, 2000, 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 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. II-5 4.2 Amended and Restated Bylaws of the Registrant, incorporated by reference to Exhibit 3.2 of the Registrant's Form 10-K for the year ended December 31, 1998, File No. 0-15981. 4.3 Hilb, Rogal and Hamilton Company Executive Voluntary Deferral Plan, as amended and restated effective January 1, 2002.* 4.4 Form of Common Stock Certificate, incorporated by reference to Exhibit 1 of the Registrant's Form 8-A Registration Statement, filed June 12, 1987, File No. 0-15981. 5.1 Opinion of Williams Mullen. 23.1 Consent of Williams Mullen (included in Exhibit 5.1). 23.2 Consent of Ernst & Young LLP.* 24 Powers of Attorney (included on Signature Page to original filing). - ------------ *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 II-6 (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraph (1)(i) and (1)(ii) shall not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the County of Henrico, Commonwealth of Virginia, on this 30th day of November, 2001. HILB, ROGAL AND HAMILTON COMPANY By: * -------------------------------------- Andrew L. Rogal Chairman and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- * Chairman, Chief Executive Officer November 30, 2001 - -------------------------------------------- and Director Andrew L. Rogal (Principal Executive Officer) * Senior Vice President November 30, 2001 - -------------------------------------------- and Chief Financial Officer Carolyn Jones (Principal Financial Officer) * Vice President and Controller November 30, 2001 - -------------------------------------------- (Principal Accounting Officer) Robert W. Blanton, Jr. * Chairman Emeritus and Director November 30, 2001 - --------------------------------------------- Robert H. Hilb * Chief Operating Officer November 30, 2001 - -------------------------------------------- and Director Martin L. Vaughan, III Signature Title Date --------- ----- ---- * Executive Vice President, November 30, 2001 - -------------------------------------------- Finance and Administration and Director Timothy J. Korman * Director November 30, 2001 - -------------------------------------------- Robert S. Ukrop Director November 30, 2001 - -------------------------------------------- Thomas H. O'Brien Director November 30, 2001 - -------------------------------------------- J.S.M. French * Director November 30, 2001 - -------------------------------------------- Norwood H. Davis, Jr. * Director November 30, 2001 - -------------------------------------------- Theodore L. Chandler, Jr. * Director November 30, 2001 - -------------------------------------------- Anthony F. Markel Director November 30, 2001 - -------------------------------------------- Robert W. Fiondella * Director November 30, 2001 - -------------------------------------------- David W. Searfoss Signature Title Date --------- ----- ---- Director November 30, 2001 - -------------------------------------------- Julious P. Smith, Jr.
Walter L. Smith, by signing his name hereto, signs this document on behalf of each of the persons indicated by the asterick above pursuant to powers of attorney duly executed by such persons and previously filed with the Securities and Exchange Commission as part of the Registration Statement. Date: November 30, 2001 /s/ Walter L. Smith --------------------------------- Walter L. Smith, Attorney-in-Fact 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, as amended and restated effective January 1, 2002.* 4.4 Form of Common Stock Certificate, incorporated by reference to Exhibit 1 of the Registrant's Form 8-A Registration Statement, filed June 12, 1987, File No. 0-15981. 5.1 Opinion of Williams Mullen. 23.1 Consent of Williams Mullen (included in Exhibit 5.1). 23.2 Consent of Ernst & Young LLP.* 24 Powers of Attorney (included on Signature Page to original filing). - ------------ *Filed herewith EX-4 3 er4-3.txt EXHIBIT 4.3 Exhibit 4.3 HILB, ROGAL AND HAMILTON COMPANY Amended and Restated Executive Voluntary Deferral Plan Effective January 1, 2000 Amended and Restated Effective January 1, 2002 TABLE OF CONTENTS
Page ---- 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..........................................................................2 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.......................................................3 1.21 Effective Date................................................................3 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..............................................4 2.1 Eligibility...................................................................4 2.2 Participation.................................................................4 2.3 Commencement of Active Participation..........................................4 2.4 Length of Participation.......................................................4 ARTICLE III Determination of Deferral.................................................4 3.1 Deferral Benefit..............................................................5 3.2 Deferral Election.............................................................5 3.3 Subtractions from Deferred Cash Account and Deferred Stock Unit Account.......6 -i- TABLE OF CONTENTS Page ---- 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...................................................7 4.1 Accounts......................................................................7 4.2 Deferred Stock Units.........................................................7 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......................................................9 7.3 Form of Payment of Deferral Benefit...........................................9 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.........................................................12 11.1 Change of Control............................................................12 11.2 Effect of Change of Control..................................................13 -ii- TABLE OF CONTENTS Page ---- ARTICLE XII Plan Administrator.......................................................14 12.1 Appointment of Administrator.................................................14 12.2 Duties and Responsibilities of Plan Administrator............................14 12.3 Claims Procedures............................................................15 ARTICLE XIII Amendment or Termination of Plan........................................16 13.1 Amendment or Termination of the Plan.........................................16 ARTICLE XIV Miscellaneous............................................................16 14.1 Non-assignability............................................................16 14.2 Notices and Elections........................................................16 14.3 Delegation of Authority......................................................16 14.4 Service of Process...........................................................17 14.5 Governing Law................................................................17 14.6 Binding Effect...............................................................17 14.7 Severability.................................................................17 14.8 Gender and Number............................................................17 14.9 Titles and Captions..........................................................17
-iii- 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 January 1 following 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. -1- 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. -2- 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 Plan Years other than the First Plan Year, such Deferral Election must be filed no later than the -3- 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 indication of (x) the excess of a dollar level, (y) a stated percentage, or (z) a stated -4- 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 annual 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 January 1 following 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 January 1 following 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 Cash Account and Deferred Stock Unit Account at such time and provided that a -5- Participant may not postpone the elected Benefit Commencement Date past the January 1 following 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) 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 Unit Account immediately before such increase by the amount of the dividend paid per share of the Corporation's common -6- 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. 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, and shall not carry any voting or dividend rights. 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 Beneficiary of such Participant shall be entitled to receive the value of the Participant's Account. 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.To the extent not paid out in a lump sum payment, the Participant's Deferred Stock Unit Account will continue to be credited -7- with additional Deferred Stock Units in accordance with Section 4.2 and the Participant's Deferred Cash Account shall accrue annual interest thereafter at the Rate of Return. 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 annual 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 payments payable annually for the term of years as irrevocably elected by the Participant pursuant to Section 3.2. A Participant's Deferred Stock Unit Account shall be paid in shares of the Corporation's common stock with fractional shares paid in cash, and the Deferred Cash Account shall be paid in cash. 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 -8- 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. To the extent not paid out in a alump sum payment, the Deferred Stock Unit Account of a Participant who has elected to receive his Deferral Benefit in annual installments shall continue to be credited with additional Deferred Stock Units in accordance with Section 4.2. 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. ARTICLE VIII Beneficiary Designation ----------------------- 8.1 Beneficiary Designation. (a) A Participant may designate a Beneficiary and a contingent Beneficiary. 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. The most recent Beneficiary designation received by the Administrator shall be the effective Beneficiary designation for all Plan Years and shall supercede all prior Beneficiary designations unless specifically designated otherwise. 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. -9- (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 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. -10- (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 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 -11- (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. 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. (a) Upon a Change of Control, the Corporation shall establish, if one has not been established, a grantor trust, as described in Section 10(c), and shall contribute to such trust, within seven (7) days of the Change of Control, and within thirty (30) days of the end of each Plan year thereafter, a lump-sum payment equal to the difference between the aggregate value of all Participants' Accounts and the value of the assets of the trust on the date of the Change of Control or end of the Plan year. -12- (b) Notwithstanding any other provision in any other Article of this Plan to the contrary, in the event a Participant separates from service to the Corporation within three (3) years following a Change of Control, other than on account of the Participant's death, Disability or Retirement, the value of such Participant's Deferred Stock Unit Account as of the date of his separation from service shall be paid to Participant in a lump-sum payment in shares of the Corporation's common stock with fractional shares paid in cash and the value of such Participant's Deferred Cash Account as of the date of his separation from service shall be paid to Participant in a lump-sum cash payment no later than 30 days after the date the Participant's separation from service. (c) Upon a Change of Control, each Participant may make an irrevocable election within ninety (90) days after the Change of Control to convert all or part of the balance in his Deferred Stock Unit Account to a Deferred Cash Account effective as of the Change of Control date. For purposes of this conversion, the value of a Deferred Stock Unit held in a Participant's Account at the time of the Change of Control 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 price per share for shares of the Corporation's common stock actually paid in connection with the Change of Control. The amount converted shall be combined with the Participant's existing Deferred Cash Account and shall accrue interest at the Rate of Return. (d) If a Change of Control results from a merger, consolidation or other reorganization in which the Corporation is not the surviving parent corporation and the Participant does not elect to convert all of his Deferred Stock Unit Account into a Deferred Cash Account, as permitted by Section 11(c), the Participant's Deferred Stock Unit Account shall be converted into Deferred Stock Units of the parent corporation that are equivalent in value to the Deferred Stock Unit Account. The number of the parent corporation shares credited to Participant's Account shall be the greater of (1) the amount determined by dividing the value of the Participant's Deferred Stock Unit Account at the time of the Change of Control determined under Section 11(c) by the Closing Price of the acquiring corporation's stock on the Change of Control date or (2) the number of shares determined by applying the conversion ratio used to determine the number of shares of the acquiring parent corporation stock received by the holders of common stock of the Corporation in the merger, consolidation or other reorganization causing the Change of Control. -13- 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. 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. -14- (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. (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. -15- 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 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. -16- EX-23 4 er23-2.txt EXHIBIT 23.2 Exhibit 23.2 Consent of Independent Auditors We consent to the incorporation by reference in Amendment No. 1 to the Registration Statement (Form S-8 No. 333-93633) pertaining to the Hilb, Rogal and Hamilton Company Executive Voluntary Deferral Plan of our report dated February 9, 2001, with respect to the consolidated financial statements and schedule of Hilb, Rogal and Hamilton Company included or incorporated by reference in its Annual Report (Form 10-K) for the year ended December 31, 2000, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Richmond, Virginia November 28, 2001 -----END PRIVACY-ENHANCED MESSAGE-----