XXXXX & XxXXXXXX COMPANIES, INC.
Common Stock
(par value $1.00 per share)
REGISTRATION RIGHTS AGREEMENT
Dated as of
March 12, 1997
Xxxxx & McLennan Companies, Inc., a Delaware corporation
(the "Company"), proposes to issue and deliver to the Sellers (as
defined herein) certain shares of its common stock, par value
$1.00 per share ("Common Stock"), as payment in part for the sale
by the Sellers of their shares of common stock of Xxxxxxx &
Xxxxxxx ("Xxxxxxx & Xxxxxxx") to the Company, in each case upon
the terms set forth in the Stock Purchase Agreement (as defined
herein). The Company also proposes to issue and deliver Common
Stock to the Retirees (as defined herein) with whom it enters
into Retiree Agreements (as defined herein) after the date
hereof, in each case upon the terms set forth therein. As an
inducement to the Sellers to enter into the Stock Purchase
Agreement and for the Retirees to enter into the Retiree
Agreements and in satisfaction of a condition to the obligations
of the Sellers under the Stock Purchase Agreement, the Company
agrees with the Sellers, for their own benefit and the benefit of
holders (as defined herein) from time to time of the Registrable
Securities (as defined herein), as follows:
1. DEFINITIONS. (a) As used in this Agreement, the
following defined terms shall have the following meanings:
"Act" or "Securities Act" means the United States Securities
Act of 1933, as amended from time to time.
"Affiliate" of any specified person means any other person
which, directly or indirectly, is in control of, is controlled
by, or is under common control with such specified person. For
purposes of this definition, control of a person means the power,
direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Closing" and "Closing Date" have the meanings assigned
thereto in the Stock Purchase Agreement.
"Commission" means the United States Securities and Exchange
Commission (and any successor).
"Effectiveness Period" has the meaning assigned thereto in
Section 2(b)(i) hereof.
"Effective Time" means the date and time on which the
Commission declares the Shelf Registration Statement effective or
on which the Shelf Registration Statement otherwise becomes
effective.
"Electing Holder" means any holder of Registrable Securities
that has returned a completed and signed Notice and Questionnaire
to the Company in accordance with Section 3(a)(1) hereof.
"Exchange Act" means the United States Securities Exchange
Act of 1934, as amended from time to time.
"Free Registrable Securities" means, at any time, such
Registrable Securities as are not then required under Section 7
to be represented by a certificate bearing a Transfer Legend.
"holder" means, when used with respect to any Registrable
Security, the beneficial owner of such Registrable Security.
"Managing Underwriters" means the investment bank or banks
that manage an underwritten offering, if any, conducted pursuant
to Section 6 hereof.
"NASD Rules" means the Rules of the National Association of
Securities Dealers, Inc., as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially
in the form of Exhibit A hereto.
"Person" means an individual, partnership, corporation,
estate, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Prospectus" means the prospectus (including any preliminary
prospectus, any final prospectus and any prospectus that
discloses information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon
Rule 430A under the Act) included in the Shelf Registration
Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Shelf
Registration Statement and by all other amendments and
supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents
filed after the date of such prospectus by the Company under the
Exchange Act and incorporated by reference therein.
"Registrable Securities" means all or any portion of the
shares of Common Stock issued and delivered from time to time by
the Company pursuant to the Stock Purchase Agreement and pursuant
to the Retiree Agreements; provided, however, that a Registrable
Security remains a Registrable Security regardless of subsequent
transfers and ceases to be a Registrable Security only when it is
no longer a Restricted Security. Any security that is a
successor security to or otherwise issued and delivered in
respect of any Registrable Security, whether as a result of a
reclassification, stock split (including a reverse split), stock
dividend or distribution, recapitalization, merger,
consolidation, exchange offer or other similar transaction, shall
also be a Registrable Security (regardless of subsequent
transfers) until it is no longer a Restricted Security.
"Restricted Security" means any security other than a
security that (i) has been effectively registered under the
Securities Act and sold pursuant to the Shelf Registration
Statement in a manner contemplated thereby, (ii) has been sold in
compliance with Rule 144 or (iii) may be sold by the holder under
Rule 144(k).
"Retiree Agreement" means each of the agreements to which
the Company becomes a party from time to time pursuant to Section
6.5(d) of the Stock Purchase Agreement, in each case as it may be
amended from time to time.
"Retiree" means each Person who is entitled under the Stock
Purchase Agreement to receive a Retiree Agreement (in each case
together with his or her heirs, representatives, successors and
assigns).
"Rules and Regulations" means the published rules and
regulations of the Commission promulgated under the Securities
Act or the Exchange Act, as in effect at any relevant time.
References herein to any particular rule or regulation mean such
rule or regulation (or any successor thereto) as it may be
amended from time to time.
"Seller" means each Person listed on Annex A to the Stock
Purchase Agreement (in each case together with his or her heirs,
representatives, successors and assigns).
"Sellers' Designee" and "Sellers' Committee" have the
meanings assigned thereto in the Stock Purchase Agreement.
"Shelf Registration" means a registration effected pursuant
to Section 2 hereof.
"Shelf Registration Statement" means a "shelf" registration
statement filed under the Securities Act providing for the
registration of, and the sale or other disposition on a
continuous or delayed basis by the holders of, the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or
any similar rule that may be adopted by the Commission, filed by
the Company pursuant to the provisions of Section 2 of this
Agreement, including the Prospectus contained therein, any
amendments and supplements to such registration statement,
including post-effective amendments, and all exhibits and all
material incorporated by reference in such registration
statement.
"Stock Purchase Agreement" means the stock purchase
agreement, dated March 12, 1997, among Xxxxxxx & Xxxxxxx, the
Sellers and the Company, as amended from time to time.
"underwriter" means any underwriter of Registrable
Securities in connection with an offering thereof under a Shelf
Registration Statement.
2. SHELF REGISTRATION. (a)(1) The Company shall, as soon
as practicable after the date hereof and in any case within 15
calender days following the Closing Date (as defined in the Stock
Purchase Agreement), subject to extension if the Sellers'
Designee or Sellers' Committee so requests, file with the
Commission a Shelf Registration Statement relating to the offer
and sale of the Registrable Securities. The Company shall use
its best efforts to cause such Shelf Registration Statement to be
declared effective under the Act as soon as possible after the
initial filing date.
(2) In its discretion, the Company may elect initially to
include in the Shelf Registration Statement only such Registrable
Securities as are then Free Registrable Securities. However, the
Company will thereafter take all action necessary to ensure that
each Registrable Security not initially included in the Shelf
Registration Statement is so included (and the Prospectus is
usable by the Electing Holder of such security for resales or
other dispositions thereof), without delay, on and after the
earliest date on which such security is a Free Registrable
Security.
(b) (1) The Company shall use its best efforts to keep the
Shelf Registration Statement continuously effective in order to
permit the Prospectus forming part thereof to be usable at all
times during the Effectiveness Period (as defined below) by
Electing Holders for resales and other dispositions of any and
all Registrable Securities that are then Free Registrable
Securities, in each case in accordance with the intended method
or methods of disposition, as specified in writing by any
Electing Holder in a Notice and Questionnaire. The
"Effectiveness Period" shall be the period ending on the second
anniversary of the Effective Time or such shorter period that
will terminate when there are no Registrable Securities
outstanding.
(2) The Company shall be deemed not to have used its best
efforts to keep the Shelf Registration Statement effective during
the Effectiveness Period if the Company takes or omits to take
any action and such action or omission results in any Electing
Holder being unable, at any time during such period, to use the
Prospectus to offer and sell Registrable Securities that are then
Free Registrable Securities, unless (i) such action or omission
is required, in the Company's good faith judgment, by applicable
law (and, the Company thereafter promptly complies with the
requirements of Sections 3(d)(5) and 3(j) below) or (ii) the
Company determines based upon the advice of counsel that it would
be required to disclose in the Shelf Registration Statement a
financing, acquisition or other corporate transaction, and the
Company shall have determined in good faith that such disclosure
is not in the best interests of the Company and its stockholders
(provided that the Company promptly complies with the
requirements of Section 3(j) below).
3. REGISTRATION PROCEDURES. In connection with the Shelf
Registration Statement, the following provisions shall apply:
(a) (1) No holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement,
and no holder shall be entitled to use the Prospectus
forming a part thereof for resales of Registrable Securities
at any time, unless a completed and signed Notice and
Questionnaire has been returned to the Company by such
holder (or by Xxxxxxx & Xxxxxxx, the Sellers' Designee or
another agent on behalf of such holder). A completed and
signed Notice and Questionnaire need be returned to the
Company on behalf of any holder only once, subject to the
requirement that the Company be notified of any inaccuracies
or changes in the information contained therein.
(2) Promptly after the date hereof, the Company shall
deliver copies of the Notice and Questionnaire to the
Sellers' Designee and Xxxxxxx & Xxxxxxx on behalf of all
Sellers and Retirees, respectively. Each Seller and Retiree
who receives Free Registrable Securities at the Closing
shall be entitled to be named in the Shelf Registration
Statement as a selling securityholder with respect to such
securities, and to use the Prospectus for resales thereof,
beginning at the later of (x) the Effective Time, (y) the
Closing and (z) the second Business Day after a completed
and signed Notice and Questionnaire has been returned to the
Company by or on behalf of such Person.
(3) In addition, each Seller, Retiree and other Person
who acquires Free Registrable Securities (or whose
Registrable Securities become Free Registrable Securities)
after the Closing shall be entitled to be named in the Shelf
Registration Statement as a selling securityholder with
respect to such securities, and to use the Prospectus for
resale thereof, beginning at the later of (w) the Effective
time, (x) the time he or she acquires such securities (or
such securities become Free Registrable Securities, as the
case may be), (y) the second Business Day after a completed
and signed Notice and Questionnaire has been returned to the
Company by or on behalf of such Person and (z) if such
Person acquires such securities from a Person other than the
Company, the second Business Day after the Company receives
a request to include such securities in the Shelf
Registration Statement.
(4) Upon the request of any holder of Registrable
Securities, the Company will promptly send a Notice and
Questionnaire to such holder.
(b) Prior to the initial filing of the Shelf
Registration Statement, and prior to each subsequent filing
of any amendment thereto or any amendment or supplement to
the Prospectus prior to the Effective Time, the Company
shall provide Xxxxxxx & Xxxxxxx and its counsel (or, if the
Closing has occurred, the Sellers' Committee and counsel to
the Electing Holders) reasonable opportunity to review and
comment upon the proposed filing and will use its best
efforts to reflect therein such comments as they reasonably
may propose.
(c) The Company shall promptly take such action as may
be necessary so that (i) each of the Shelf Registration
Statement and any amendment thereto and the Prospectus
forming part thereof and any amendment or supplement thereto
(and each report or other document incorporated therein by
reference in each case) complies in all material respects
with the Securities Act and the Exchange Act and the
respective rules and regulations thereunder, (ii) each of
the Shelf Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) each of the
Prospectus forming part of the Shelf Registration Statement,
and any amendment or supplement to such Prospectus, does not
at any time during the Effectiveness Period include an
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
are made, not misleading, (iv) each Registrable Security
initially excluded from the Shelf Registration Statement
pursuant to Section 2(a)(ii) hereof is registered under the
Shelf Registration Statement, on and after the earliest date
when such security becomes a Free Registrable Security and
and (v) the Free Registrable Securities of each holder who
becomes an Electing Holder from time to time are registered
under the Shelf Registration Statement and such holder is
named therein as a selling security holder with respect to
such securities (at least once every three months).
(d) The Company shall promptly advise the Sellers'
Designee and Xxxxxxx & Xxxxxxx, if prior to the Closing, and
thereafter the Sellers' Committee, and shall confirm such
advice in writing if so requested by any such Person:
(1) when the Shelf Registration Statement and any
amendment thereto has been filed with the Commission and
when the Shelf Registration Statement or any post-
effective amendment thereto has become effective;
(2) of any request by the Commission for amendments
or supplements to the Shelf Registration Statement or the
Prospectus included therein or for additional
information;
(3) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf
Registration Statement or the initiation of any
proceedings for such purpose;
(4) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included in the Shelf
Registration Statement for sale in any jurisdiction or
the initiation of any proceeding for such purpose; and
(5) of the happening of any event or the existence
of any state of facts that requires the making of any
changes in the Shelf Registration Statement or the
Prospectus included therein so that, as of such date,
such Shelf Registration Statement and Prospectus do not
contain an untrue statement of a material fact and do not
omit to state a material fact required to be stated
therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances
under which they were made) not misleading (which advice
shall be accompanied by an instruction to such Persons to
suspend the use of the Prospectus until the requisite
changes have been made).
(e) The Company shall use its best efforts to prevent
the issuance, and if issued to obtain the withdrawal, of any
order suspending the effectiveness of the Shelf Registration
Statement at the earliest possible time.
(f) The Company shall furnish to each Electing Holder,
without charge, at least one copy of the Shelf Registration
Statement and all post-effective amendments thereto,
including financial statements and schedules, and, if such
holder so requests in writing, all reports, other documents
and exhibits that are filed with or incorporated by
reference in the Shelf Registration Statement.
(g) The Company shall, during the Effectiveness Period,
deliver to each Electing Holder, without charge, as many
copies of the Prospectus (including each preliminary
Prospectus) included in the Shelf Registration Statement and
any amendment or supplement thereto as such Electing Holder
may reasonably request. (If in connection with sales of
Registrable Securities or otherwise any holder enters into a
hedging transaction with a broker-dealer, which may in turn
engage in short sales of the Registrable Securities in the
course of hedging the positions it assumes, the Company
shall furnish to such holder and such broker-dealer as many
copies of the Prospectus, as supplemented or amended, as
they may reasonably request in connection with any
prospectus delivery requirements of the Securities Act.)
The Company consents (except during the continuance of any
event described in Section 3(d)(5) above) to the use of the
Prospectus and any amendment or supplement thereto by each
of the Electing Holders (and any such broker-dealers) in
connection with the offering and sale of the Registrable
Securities covered by the Prospectus and any amendment or
supplement thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities
pursuant to the Shelf Registration Statement, the Company
shall (1) register or qualify or cooperate with the Electing
Holders and their respective counsel in connection with the
registration or qualification of such Registrable Securities
for offer and sale under the securities or "blue sky" laws
of such jurisdictions within the United States as any
Electing Holder may reasonably request, (2) keep such
registrations or qualifications in effect and comply with
such laws so as to permit the continuance of offers and
sales in such jurisdictions for so long as may be necessary
to enable any Electing Holder or underwriter, if any, to
complete its distribution of Registrable Securities pursuant
to the Shelf Registration Statement, and (3) take any and
all other actions necessary or advisable to enable the
disposition in such jurisdictions of such Registrable
Securities; provided, however, that in no event shall the
Company be obligated to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it
would not otherwise be required to so qualify but for this
Section 3(h) or (ii) file any general consent to service of
process in any jurisdiction where it is not as of the date
hereof so subject.
(i) The Company shall cooperate with the Electing
Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold
pursuant to the Shelf Registration Statement, which
certificates, if so required by any securities exchange upon
which any Registrable Securities are listed, shall be
penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and
which certificates at all times shall be free of any
restrictive legends (except to the extent required in
Section 7 below) and which shall be in such permitted
denominations and registered in such names as Electing
Holders may request in connection with the sale of
Registrable Securities pursuant to the Shelf Registration
Statement.
(j) Upon the occurrence of any fact or event
contemplated by Section 3(d)(5) above, the Company shall
promptly prepare a post-effective amendment or supplement to
the Shelf Registration Statement or the Prospectus, or any
document incorporated therein by reference, or file any
other required document so that, as thereafter delivered to
purchasers of the Registrable Securities included therein,
the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The Company shall promptly notify each Electing Holder of
the occurrence of an event contemplated by Section 3(d)(5)
above, and each Electing Holder agrees, as a consequence of
the inclusion of any of such holder's Registrable Securities
in the Shelf Registration Statement, to suspend the use of
the Prospectus until the requisite changes to the Prospectus
have been made. Notwithstanding the foregoing, if the
Company determines based upon the advice of counsel that it
is required to disclose in the Shelf Registration Statement
a financing, acquisition or other corporate transaction, and
the Chief Executive Officer and Chief Financial Officer of
the Company shall have determined in good faith that such
disclosure would not be in the best interests of the Company
and its stockholders, the Company shall not be required to
prepare and file such amendment, supplement or document;
provided that the total number of calendar days (whether or
not consecutive) during which offers and sales are suspended
due to such a determination by the Company and such
executive officers shall not exceed 90 in any period of 12
calendar months and provided, further, that the Company
promptly notifies each Electing Holder of the time when
offers and sales may resume.
(k) The Company shall use its best efforts to comply
with all applicable Rules and Regulations, and to make
generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months
after (i) the effective date (as defined in Rule 158(c)
under the Securities Act) of the Shelf Registration
Statement, (ii) the effective date of each post-effective
amendment to the Shelf Registration Statement and (iii) the
date of each filing by the Company with the Commission of an
Annual Report on Form 10-K that is incorporated by reference
in the Shelf Registration Statement, an earning statement of
the Company and its subsidiaries complying with
Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including, at the
option of the Company, Rule 158).
(l) In the event of an underwritten offering conducted
pursuant to Section 6 hereof, the Company shall, if
requested, promptly include or incorporate in a Prospectus
supplement or post-effective amendment to the Shelf
Registration Statement such information as the Managing
Underwriters reasonably agree should be included therein and
to which the Company does not reasonably object and shall
make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after it is
notified of the matters to be included or incorporated in
such Prospectus supplement or post-effective amendment.
Prior to making any such filing, the Company will provide
the Managing Underwriters and their counsel, and the
participating Electing Holders and their counsel, a
reasonable opportunity to review and comment upon the
proposed filing and will use its best efforts to reflect
therein such comments as they reasonably may propose.
(m) The Company shall enter into such customary
agreements (including an underwriting agreement in customary
form in the event of an underwritten offering conducted
pursuant to Section 6 hereof) and take all other appropriate
action in order to expedite and facilitate the registration
and disposition of the Registrable Securities, and in
connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification
provisions and procedures substantially identical to those
set forth in Section 5 hereof with respect to all parties to
be indemnified pursuant to Section 5 hereof.
(n) The Company shall:
(i)(A) make reasonably available for inspection by
the Sellers' Committee, counsel for the Electing Holders,
any underwriter participating in any disposition pursuant
to the Shelf Registration Statement and any attorney,
accountant or other agent retained by such holders or any
such underwriter all relevant financial and other
records, pertinent corporate documents and properties of
the Company and its subsidiaries and (B) cause the
Company's officers, directors and employees to supply all
information reasonably requested by such holders or any
such underwriter, attorney, accountant or agent in
connection with the Shelf Registration Statement, in each
case as is customary for similar due diligence
examinations; provided, however, that all records,
information and documents that are designated in writing
by the Company, in good faith, as confidential shall be
kept confidential by such holders and any such
underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding
or required by law, or such records, information or
documents become available to the public generally or
through a third party without an accompanying obligation
of confidentiality; and provided further that, if the
foregoing inspection and information gathering would
otherwise disrupt the Company's conduct of its business,
such inspection and information gathering shall, to the
greatest extent possible, be coordinated on behalf of the
Electing Holders and the other parties entitled thereto
by one counsel designated by and on behalf of Electing
Holders and other parties;
(ii) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, make such
representations and warranties to the holders
participating in such underwritten offering and to the
Managing Underwriters, in such form, substance and scope
as are customary for an issuer in a secondary
underwritten offering of equity securities, provided that
the Company need not make any representation or warranty
in the underwriting to the participating Sellers with
respect to information generally covered by the Sellers'
representation and warranty contained in Section 2.22 and
that the Company's indemnification and other obligations
under Section 5 hereof will not preclude the Company from
seeking indemnification available under Article IX of the
Stock Purchase Agreement;
(iii) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, obtain opinions
of counsel to the Company (which counsel and opinions (in
form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters) addressed to
each holder participating in such underwritten offering
and the underwriters, covering such matters as are
customarily covered in opinions requested in secondary
underwritten offerings of equity securities;
(iv) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, obtain "cold
comfort" letters and updates thereof from the independent
public accountants of the Company (and, if necessary,
from the independent public accountants of any subsidiary
of the Company or of any business acquired by the Company
for which financial statements and financial data are, or
are required to be, included in the Shelf Registration
Statement), addressed to the Sellers' Committee on behalf
of each holder participating in such underwritten
offering and the underwriters, in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten
offerings;
(v) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, deliver such
documents and certificates as may be reasonably requested
by any holders participating in such underwritten
offering and the Managing Underwriters, if any, including
certificates to evidence compliance with any conditions
contained in the underwriting agreement or other
agreements entered into by the Company;
(vi) in connection with any underwritten offering
conducted pursuant to Section 6 hereof and if requested
by the Managing Underwriters, make appropriate officers
of the Company available to participate in a "road show"
or other investor meetings as would be customary for an
underwritten equity offering of the kind proposed, at
such times and places as the Managing Underwriters
reasonably may request and as do not unduly interfere
with the normal conduct of the Company's business and
affairs.
(o) In the event that any broker-dealer registered
under the Exchange Act shall be an "affiliate" (as defined
in Rule 2720(b)(1) of the NASD Rules (or any successor
provision thereto)) of the Company or has a "conflict of
interest" (as defined in Rule 2720(b)(7) of the NASD Rules
(or any successor provision thereto)) and such broker-dealer
shall underwrite, participate as a member of an underwriting
syndicate or selling group or assist in the distribution of
any Registrable Securities covered by the Shelf Registration
Statement, whether as a holder of such Registrable
Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the
Company shall assist such broker-dealer in complying with
the requirements of the NASD Rules, including by (A)
engaging a "qualified independent underwriter" (as defined
in Rule 2720(b)(15) of the NASD Rules (or any successor
provision thereto)) to participate in the preparation of the
registration statement relating to such Registrable
Securities, to exercise usual standards of due diligence in
respect thereto and to recommend the public offering price
of such Registrable Securities, (B) indemnifying such
qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 5 hereof
and (C) providing such information to such broker-dealer and
such qualified independent underwriter as may be required in
order for such broker-dealer and such qualified independent
underwriter to comply with the requirements of the NASD
Rules.
(p) The Company shall use its best efforts to take all
other steps necessary to effect the registration, offering
and sale of the Registrable Securities covered by the Shelf
Registration Statement contemplated hereby.
4. REGISTRATION EXPENSES. The Company shall bear all fees
and expenses incurred in connection with the performance of its
obligations under Sections 2, 3 and 6 hereof. In addition, in
the event of an underwritten offering of Registrable Securities
conducted pursuant to Section 6 hereof, or if in any other event
the Company requires that inspection and information gathering be
coordinated by counsel for the Electing Holders as provided in
Section 3(n)(i) hereof, the Company shall pay the reasonable fees
and expenses of a single counsel selected by the Electing Holders
of not less than a majority of the Registrable Securities to be
included in such underwritten offering (or, in any such other
event, included in the Shelf Registration Statement) to represent
them. Each Electing Holder shall be responsible for any
underwriting fees attributable to its Registrable Shares.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) Indemnification by the Company. Upon the registration
of Registrable Securities pursuant to Section 2 hereof, the
Company shall indemnify and hold harmless each Electing Holder
and each underwriter, selling agent or other securities
professional, if any, which facilitates the disposition of
Registrable Securities, and each of their respective officers and
directors and each person who controls such Electing Holder,
underwriter, selling agent or other securities professional
within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act (each such person being sometimes referred
to as an "Indemnified Person"), against any losses, claims,
damages or liabilities, joint or several, to which such
Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement or any Prospectus
contained therein or furnished by the Company to any Indemnified
Person, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Company hereby agrees to reimburse such Indemnified Person for
any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the
Company shall not be liable to any such Indemnified Person in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in
such Shelf Registration Statement or Prospectus, or amendment or
supplement, in reliance upon and in conformity with written
information furnished to the Company by such Indemnified Person
expressly for use therein.
(b) Indemnification by the Holders and any Agents and
Underwriters. Each Electing Holder agrees, as a consequence of
the inclusion of any of such holder's Registrable Securities in a
Shelf Registration Statement, and each underwriter, selling agent
or other securities professional, if any, which facilitates the
disposition of Registrable Securities shall agree, as a
consequence of facilitating such disposition of Registrable
Securities, severally and not jointly, to (i) indemnify and hold
harmless the Company, its directors and officers who sign such
Shelf Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any
losses, claims, damages or liabilities to which the Company or
such other persons may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in such Shelf Registration Statement or
Prospectus, or any amendment or supplement, or arise out of or
are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information
furnished to the Company by such holder, underwriter, selling
agent or other securities professional, as the case may be,
expressly for use therein, and (ii) reimburse the Company for any
legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of notice of
the commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against an indemnifying
party under this Section 5, notify such indemnifying party in
writing of the commencement thereof; but the omission so to
notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise
than under this Section 5. In case any such action shall be
brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, such indemnifying party shall not be liable to
such indemnified party under this Section 5 for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise
or judgment (i) includes a release of the indemnified party from
all liability arising out of such action or claim similar to that
obtained for the indemnifying party and (ii) does not include a
statement as to, or an admission of, fault, culpability or a
failure to act, by or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in
this Section 5 is unavailable (other than pursuant to its terms)
to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and the indemnified
party in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied
by such indemnifying party or by such indemnified party, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Electing Holders or any
underwriters, selling agents or other securities professionals or
all of them were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the
equitable considerations referred to in this Section 5(d). The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
obligations of the Electing Holders and any underwriters, selling
agents or other securities professionals in this Section 5(d) to
contribute shall be several in proportion to the percentage of
principal amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 5,
in no event will any (i) Electing Holder be required to undertake
liability to any person under this Section 5 for any amounts in
excess of the dollar amount of the proceeds to be received by
such holder from the sale of such holder's Registrable Securities
(after deducting any fees, discounts and commissions applicable
thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the
Securities Act and (ii) underwriter, selling agent or other
securities professional be required to undertake liability to any
person hereunder for any amounts in excess of the discount,
commission or other compensation payable to such underwriter,
selling agent or other securities professional with respect to
the Registrable Securities distributed to the public by or
through it.
(f) The obligations of the Company under this Section 5
shall be in addition to any liability which the Company may
otherwise have to any Indemnified Person and the obligations of
any Indemnified Person under this Section 5 shall be in addition
to any liability which such Indemnified Person may otherwise have
to the Company. The remedies provided in this Section 5 are not
exclusive and shall not limit any rights or remedies which may
otherwise be available to an indemnified party at law or in
equity.
6. UNDERWRITTEN OFFERING.
(a) Any holder of Registrable Securities who desires to do
so may sell Registrable Securities which do not bear any Transfer
Legends (as defined below), plus any such other Registrable
Securities as the Company, in its discretion, may permit (all
such Registrable Securities, "Permitted Securities"), in whole or
in part, in an underwritten offering; provided that (i) the
Electing Holders of at least 33% of the Registrable Securities
then covered by the Shelf Registration Statement and which bear
no Transfer Legends shall request such an offering and (ii) at
least 33% of such Registrable Securities shall be included in
such offering; and provided, further, that (A) the Company shall
not be obligated to cooperate with more than two underwritten
offerings, (B) if one underwritten offering has been completed
under this Section 6, no request for a second underwritten
offering hereunder will be effective until at least twelve months
after the pricing of such earlier offering has occurred and (C)
the Company shall not be obligated to cooperate with any request
for an underwritten offering hereunder if received on or after
the expiration of the Effectiveness Period. Upon receipt of an
effective request for an underwritten offering, the Company shall
provide all holders of Registrable Securities written notice of
the request, which notice shall inform such holders that they
have the opportunity to participate in the offering with respect
to their Permitted Securities. In any such underwritten
offering, the Managing Underwriters for the offering will be
selected by, and the underwriting arrangements with respect
thereto (including the size of the offering) will be approved by,
the Company; provided, however, that the Managing Underwriter
must be reasonably acceptable to the Sellers' Committee. No
holder may participate in any underwritten offering contemplated
hereby unless (i) such holder agrees to sell such holder's
Registrable Securities to be included in the underwritten
offering in accordance with any approved underwriting
arrangements, (ii) such holder completes and executes all
reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting
arrangements and (iii) if such holder is not then an Electing
Holder, such holder returns a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)
hereof within a reasonable amount of time before such
underwritten offering. The holders participating in any
underwritten offering shall be responsible for any underwriting
discounts and commissions and fees and, subject to Section 4
hereof, expenses of their own counsel. The Company shall pay all
expenses customarily borne by issuers, including filing fees, the
fees and disbursements of its counsel and independent public
accountants and any printing expenses incurred in connection with
such underwritten offering. The Company understands and
acknowledges that the Sellers hereby makes a demand for an
underwritten offering as soon as practicable after the Closing,
which demand may be withdrawn with the consent of the Company,
not to be unreasonably withheld. In the event such demand is
withdrawn, the rights of the Sellers hereunder with respect to
underwritten offerings shall be unaffected, as though such demand
were never made.
(b) Each Electing Holder agrees that, in connection with
any underwritten offering conducted in accordance with this
Section 6 and in which such holder does not participate, such
holder will execute and deliver such reasonable and customary
lock-up agreements with respect to his or her Registrable
Securities as the Managing Underwriters for the offering may
advise are necessary to facilitate the offering, provided that
such lock-ups shall not be more restrictive than those to which
the participating holders are party and shall not restrict
resales or other dispositions of Registrable Securities for
longer than a period of 90 days, beginning at the pricing of the
offering.
(c) Each Electing Holder further agrees that, in the event
the total number of Permitted Securities proposed to be included
by all Electing Holders in the underwritten offering exceed the
maximum amount (the "Maximum Amount") of securities that, upon
advice of the Managing Underwriters given to the Company and the
participating Electing Holders could be included in the offering
without materially threatening the success of the offering
(including the price at which such securities could be sold),
then each such participating Electing Holder's securities to be
included in the offering will be limited to his or her pro rata
percentage of the Maximum Amount. For each such holder, the pro
rata percentage shall be determined by dividing the amount of
Permitted Securities that such holder proposes in good faith to
include in the offering by the total amount of Permitted
Securities that all Electing Holders propose in good faith to
include in the offering. (Nothing in this paragraph shall
prevent an Electing Holder who in good faith proposes to
participate in the offering from voluntarily ceding all or any
portion of his allocation to another such holder.)
7. TRANSFER RESTRICTIONS AND LEGENDS.
(a) Transfer Restrictions. Each Seller who is bound by
this Agreement agrees with the Company not to sell or otherwise
transfer (i) during the period from the Closing Date to the first
anniversary thereof, any shares of Common Stock received by such
holder, under the Stock Purchase Agreement, that are represented
by a certificate that bears a restrictive legend in the form set
forth in either Section 7(b)(i) or 7(b)(ii) below (each such
legend, a "Transfer Legend") and (ii) during the period from the
Closing Date to the second anniversary thereof, any shares of
Common Stock received by such holder, under the Stock Purchase
Agreement, that are evidenced by a certificate that bears a
Transfer Legend in the form set forth in Section 7(b)(ii) below,
in each case (i) and (ii) without the Company's consent and
except as provided in the next sentence. The foregoing shall not
prohibit any sale or other transfer of securities made in a
private transaction exempt from the registration requirements of
the Securities Act to a family member, another Seller, a Retiree
or a charitable foundation or to facilitate estate planning,
provided that, prior to such transfer, the transferee delivers to
the Company a written undertaking to be bound by the transfer
restrictions set forth in this Section 7 with respect to the
transferred shares. For the purpose of this Section 7, a pledge
of securities in the ordinary course is not a sale or other
transfer of such securities unless and until the pledgee acquires
such securities upon foreclosure.
(b) Transfer Legend. Each Seller who is bound by this
Agreement agrees with the Company that (i) one-third of the
number of shares of Common Stock he or she receives under the
Stock Purchase Agreement at the Closing, will initially be
represented by certificates bearing a Transfer Legend as follows:
"Prior to ______ __, 1998,* the securities represented
hereby are subject to restrictions on transfer set forth
in Section 7(a) of the Registration Rights Agreement,
dated March __, 1997, between the Issuer and certain of
its stockholders. Such restrictions shall not apply to
such securities on and after _____ __, 1998.*"
and (ii) an additional one-third of the number of shares of
Common Stock he or she receives under the Stock Purchase
Agreement at the Closing, will initially be represented by
certificates bearing a Transfer Legend as follows:
---------------------
* The first anniversary of the Closing Date, to be filled in
when certificates are issued.
"Prior to _______ __, 1999*, the securities represented
hereby are subject to restrictions on transfer set forth
in Section 7(a) of the Registration Rights Agreement,
dated March __, 1997, between the Issuer and certain of
its stockholders. Such restrictions shall not apply to
such securities on and after _____ __, 1999**."
The Company shall cause the Transfer Legend in the form set forth
in Section 7(b)(i) to be removed from any certificate
representing Registrable Securities promptly upon request at any
time on or after the first anniversary of the Closing Date. The
Company shall cause the Transfer Legend in the form set forth in
Section 7(b)(ii) to be removed from any certificate representing
Registrable Securities promptly upon request at any time on or
after the second annivarsary of the Closing Date. In addition,
the Company may cause the Transfer Legend to be removed from any
certificate if it determines that removal would be appropriate.
Any security that is a successor security to or otherwise issued
and delivered in respect of any shares of Common Stock evidenced
by a certificate bearing a Transfer Legend shall also be
evidenced by a certificate bearing a Transfer Legend in the same
form. In the event that any securities subject to the transfer
restrictions set forth in this Section 7 are changed in amount or
nature as a result of a reclassification, stock split (including
a reverse split), stock dividend or distribution,
recapitalization, merger, consolidation, exchange offer or other
similar transaction, then such transfer restrictions will be
modified as necessary to ensure that a holder's ability to sell
or otherwise transfer such securities during any period is no
more or less restricted than would have been the case in the
absence of such change.
(c) Securities Act Legend. Registrable Securities will
initially be represented by certificates bearing a restrictive
legend as follows (the "Securities Act Legend"):
"The securities represented hereby have not been
registered under the Securities Act of 1933 and may not
be sold or otherwise transferred except pursuant to an
effective registration statement under such Act or an
available exemption from the registration requirements
thereof."
The Securities Act Legend will not apply with respect to any
securities that are included in the Shelf Registration Statement
after such securities have been or are being sold or otherwise
transferred during the Effectiveness Period, unless they are
being transferred in a private transaction where no delivery of
the Prospectus is intended. In addition, the Securities Act
Legend will not apply to any securities (x) that have been or are
being sold pursuant to Rule 144, (y) that are eligible for resale
pursuant to paragraph (k) of Rule 144 or (z) that have otherwise
ceased to be "restricted securities" within the meaning of Rule
144. The Company will cause the Securities Act Legend to be
removed from any certificate representing securities to which
such legend does not apply, and such securities shall be freely
transferrable, (i) in the case of any security referred to in the
-----------------------
* The second anniversary of the Closing Date, to be filled in
when the certificates are issued.
second preceding sentence, promptly upon request, (ii) in the
case of any security referred to in clause (x) or (y) of the
immediately preceding sentence, promptly upon delivery to the
Company or its transfer agent of a signed certificate
substantially in the form of Exhibit B hereto and (iii) in the
case of any security referred to in clause (z) of the immediately
preceding sentence, promptly upon delivery to the Company of such
written certification (which may include a customary opinion of
counsel) that such security is not such a "restricted security"
as the Company reasonable may request. In addition, the Company
may also remove the Securities Act Legend from any certificate if
it determines that such removal would be appropriate. In
connection with any sale or other transfer of Registrable
Securities proposed to be made in reliance on a private placement
exemption from the registration requirements of the Securities
Act, the Company may require the transferor to provide reasonable
written confirmation (which may include a customary opinion of
counsel) that such exemption is available.
8. MISCELLANEOUS.
(a) Other Registration Rights. The Company may not
include, and has not and will not grant any rights that would
permit any third party to include, any securities for its own
account in an underwritten offering conducted under Section 6
hereof, except to the extent that the Managing Underwriters of
the offering advise the Company and the participating Electing
Holders that the total amount of securities that the Company and
all such third parties intend to include in the offering, when
added to the total amount of Registrable Securities that such
participating holders would propose to include (whether or not
such securities are Permitted Securities and before any reduction
pursuant to Section 6(c) above), would not materially threaten
the success of such offering (including the price at which such
securities could be sold). Any such securities to be included
for the account of the Company or any such third party shall be
included, if at all, on a second-priority basis (i.e., after the
inclusion of all Registrable Securities that such participating
holders would propose to include, whether or not such securities
are Permitted Securities and before giving effect to any such
reduction), and only to the extent that the total amount included
in the offering does not exceed the recommended maximum limit
based on the Managing Underwriters' advice. Any participation by
the Company or such third parties shall be on the same terms and
conditions as are approved by the Electing Holders participating
in the offering (as provided in Section 6) and the Managing
Underwriters. The Company agrees that, upon receipt of any
effective request for an underwritten offering of securities
pursuant to Section 6 hereof, the Company shall not take any
steps to register or offer securities of the same or a
substantially similar class, or any securities exercisable or
exchangeable for or convertible into or otherwise representing a
right to acquire any such securities (other than in furtherance
of such underwritten offering as provided herein), and will agree
with the Managing Underwriters to abide by a customary lock-up in
connection with such offering that is no less restrictive than
any lock-up to which the participating holders agree and that in
any case will not extend beyond the 90th day after the pricing of
the offerings other than registration statements on Form X-0, X-0
or any successor form.
(b) Amendments and Waivers. This Agreement, including
this Section 8(b), may be amended, and waivers or consents to
departures from the provisions hereof may be given, only by a
written instrument duly executed by the Company and the Sellers'
Designee (if before the Closing Date), the Sellers' Committee (if
after the Closing Date) or the Electing Holders of a majority of
the Registrable Securities then outstanding. Each Electing
Holder of Registrable Securities outstanding at the time of any
such amendment, waiver or consent or thereafter shall be bound by
any amendment, waiver or consent effected pursuant to this
Section 8(b), whether or not any notice, writing or marking
indicating such amendment, waiver or consent appears on the
Registrable Securities or is delivered to such holder.
(c) Notices. All notices hereunder shall be deemed given
if in writing and delivered personally or sent by telecopy or
telegram or by registered or certified mail (return receipt
requested), (i) if to any Electing Holder, at such Electing
Holder's address specified in his or her Notice and
Questionnaire, (ii) if to any other holder, at such holder s
address as it appears in the security register for the Common
Stock and (iii) if to the Company, at the following address:
Xxxxx & XxXxxxxx Companies, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
(d) Parties in Interest. The parties to this Agreement
intend that all holders of Registrable Securities from time to
time shall be entitled to receive the benefits of this Agreement
and that any Electing Holder shall be bound by the applicable
terms and provisions of this Agreement by reason of such election
with respect to such holder's Registrable Securities. All the
terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the
Sellers and other Persons who become Electing Holders from time
to time, and the respective heirs, representatives, successors
and assigns of the Seller and such other Persons. In the event
that any Person shall acquire Registrable Securities, in any
manner, whether from the Company or another holder of Registrable
Securities and whether by gift, bequest, purchase, operation of
law or otherwise, such Person shall, without any further writing
or action of any kind, be entitled to receive the benefits of
and, if such Person is or becomes an Electing Holder, be
conclusively deemed to have agreed to be bound by and to perform
all of the applicable terms and provisions of this Agreement to
the aforesaid extent.
(e) Assignment. This Agreement may not be assigned by the
Company without the written consent of the Sellers' Designee (if
before the Closing Date), the Sellers' Committee (if after the
Closing Date) or the Electing Holders of a majority of the
Registrable Securities then outstanding, except by operation of
law.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(g) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New
York.
(i) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable in
any respect for any reason, then to the furthest extent permitted
by law, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions
hereof shall not be in any way impaired or affected thereby, it
being intended that all of the rights and privileges of the
parties hereto shall be enforceable to the fullest extent
permitted by law.
(j) Survival. The respective indemnities, agreements,
representations, warranties and other provisions set forth in
this Agreement or made pursuant hereto shall remain in full force
and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Electing
Holder, any director, officer or partner of such holder, any
agent or underwriter, any director, officer or partner of such
agent or underwriter, or any controlling person of any of the
foregoing, and shall survive the transfer and registration of the
Registrable Securities of such holder.
(k) Merger, Consolidation, Etc. The Company (including any
successor or permitted assign) (i) shall not consolidate or merge
with any other Person and not be the surviving corporation and
(ii) shall not transfer all or substantially all of its
properties and assets to any Person, unless in any such case (i)
or (ii), proper provision shall have been made for such surviving
or transferee Person to assume the obligations of the Company (or
any successor or permitted assign) under this Agreement.
XXXXX & XxXXXXXX COMPANIES, INC.
By:/s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Each of the Sellers
By:/s/ Xxxxxxx X. Xxxxx
-----------------------------
Attorney-in-Fact
EXHIBIT A
Xxxxx & McLennan Companies, Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Registration Rights
Agreement (the "Registration Rights Agreement") between Xxxxx &
McLennan Companies, Inc. (the "Company") and certain holders of
the Company's common stock, par value $1.00 per share (the
"Common Stock"), including the undersigned. All terms not
otherwise defined herein shall have the meanings ascribed thereto
in the Registration Rights Agreement.
ELECTION
The undersigned (the "Selling Securityholder") hereby
elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below
in Item (3). The Selling Securityholder hereby provides the
following information to the Company and represents and warrants
to the Company that such information is accurate and complete:
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same
as in (a) above) of Registrable Securities Listed in
(3) below:
(c) Full Legal Name of DTC Participant (if applicable and
if not the same as (b) above) Through which
Registrable Securities Listed in (3) below are Held:
(2) Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(3) Beneficial Ownership of Common Stock:
Except as set forth below in this Item (3), and except for
any securities that the undersigned may hereafter acquire
directly from the Company, the Selling Securityholder does not
beneficially own any shares of Common Stock. For this purpose,
the Selling Securityholder is deemed to beneficially own any
shares of which he or she has the right to acquire beneficial
ownership within 60 days (e.g., through exercise or conversion of
any option, warrant or convertible security.
(a) Number of shares of Registrable Securities (as defined
in the Registration Rights Agreement) beneficially
owned:
(b) Number of shares of Common Stock other than
Registrable Securities beneficially owned:
(c) Number of shares of Registrable Securities which the
undersigned wishes to be included in the Shelf
Registration Statement:
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the Selling
Securityholder is not the beneficial or registered owner of any
other securities of the Company other than the shares of Common
Stock listed above in Item (3) and any securities that the
undersigned may hereafter acquire directly from the Company.
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling
Securityholder nor any of its affiliates, officers, directors or
principal equity holders (5% or more) has held any position or
office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three
years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the Selling Securityholder
intends to distribute the Registrable Securities listed above in
Item (3) only as follows (if at all): Such Registrable
Securities may be sold from time to time directly by the Selling
Securityholder or, alternatively, through underwriters, broker-
dealers or agents. Such Registrable Securities may be sold in
one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the
time of sale or at negotiated prices. Such sales may be effected
in transactions (which may involve crosses or block transactions)
(i) on any national securities exchange or quotation service on
which the Registered Securities may be listed or quoted at the
time of sale, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or services or in
the over-the-counter market or (iv) through the writing of
options. In connection with sales of the Registrable Securities
or otherwise, the Selling Securityholder may enter into hedging
transactions with broker-dealers, which may in turn engage in
short sales of the Registrable Securities in the course of
hedging the positions they assume. The Selling Securityholder
may also sell Registrable Securities short and deliver Registrable
Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
----------------------
By signing below, the Selling Securityholder acknowledges
that it understands its obligation to comply, and agrees that it
will comply, with the provisions of the Exchange Act and the
rules and regulations thereunder, particularly Regulation M.
By signing below, the Selling Securityholder also consents
to the disclosure of the information contained herein in its
answers to Items (1) through (6) above and the inclusion of such
information in the Shelf Registration Statement and related
Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with
the preparation of the Shelf Registration Statement and related
Prospectus. The Selling Securityholder agrees to promptly notify
the Company of any inaccuracies or changes in the information
provided herein which may occur subsequent to the date hereof at
any time while the Shelf Registration Statement remains in effect
and includes Registrable Securities owned by such holder and
listed in Item 3 above.
All notices hereunder and pursuant to the Registration
Rights Agreement shall be made in writing, by hand-delivery,
first-class mail or air courier guaranteeing overnight delivery
as follows:
To the Company:
Xxxxx & XxXxxxxx Companies, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Once this Notice and Questionnaire is executed by the
Selling Securityholder and received by the Company's counsel, the
terms of this Notice and Questionnaire, and the representations
and warranties contained herein, shall inure to the benefit of
and be enforceable by the respective successors, heirs, personal
representatives and assigns of the Company and the Selling
Securityholder (with respect to the Registrable Securities
beneficially owned by such Selling Securityholder). The
undersigned, by signing and returning this Notice and
Questionnaire, agrees to be bound with respect to such
Registrable Securities by the terms and conditions of this Notice
and Questionnaire and the Registration Rights Agreement as if the
undersigned were an original party thereto. This Agreement shall
be governed in all respects by the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly
given, has caused this Notice and Questionnaire to be executed
and delivered either in person or by its duly authorized agent.
Dated: ________________
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE
TO THE COMPANY'S COUNSEL AT:
Xxxxx & XxXxxxxx Companies, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
EXHIBIT B
FORM OF RULE 144 CERTIFICATE
Xxxxx & XxXxxxxx Companies, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000.
Attention: General Counsel
Re: Xxxxx & McLennan Companies, Inc. Common Stock
Dear Sirs:
Reference is hereby made to the Registration Rights
Agreement (the "Registration Rights Agreement") between Xxxxx &
McLennan Companies, Inc. (the "Company") and certain holders of
the Company's common stock, par value $1.00 per share ("Common
Stock"). All terms not otherwise defined herein shall have the
meanings ascribed thereto in the Registration Rights Agreement.
This letter relates to ________ shares of Common Stock
(the "Shares"), which are represented by share certificate
number(s) __________________ (the "Legended Certificate(s)").
The undersigned is the beneficial owner of the Shares and
proposes to (please check as applicable):
1.( ) TRANSFER the Shares to a Person who will take
delivery thereof in book-entry form or in the
form of one or more certificates that do not bear
the Securities Act Legend; OR
2.( ) continue holding the Shares but in book-entry
form or in the form of one or more certificates
that do not bear the Securities Act Legend.
Any shares represented by the Legended Certificate(s), other than
the Shares, are to be returned to such holder in the form of one
or more certificates bearing the Securities Act Legend.
In connection with the foregoing, the undersigned hereby
certifies to the Company as follows:
Transfers. If 1. above is checked please confirm that A
or B below is true by checking the applicable box:
A.( ) For transfers after _____ __, 1998(*) -- a minimum of
one year has elapsed since the Shares were last
acquired by the undersigned or any prior holder from
the Company or any "affiliate" thereof (or, if later
and if such last acquisition was by purchase, since
the purchase price for such last acquisition was paid
in full), and such transfer is being made in
accordance with the applicable volume limit, notice
filing and other requirements of Rule 144; or
-----------------------
* The first anniversary of the Closing Date, to be filled in
when certificates are issued.
B.( ) For transfers after _____ __, 1999(*) -- a minimum
of two years have elapsed since the Shares were
last acquired by the undersigned or any prior
holder from the Company or any "affiliate" thereof
(or, if later and if such last acquisition was by
purchase, since the purchase price for such last
acquisition was paid in full), and the undersigned
is not, and during the preceding three months has
not been, an "affiliate" of the Company.
OR
Exchanges. If 2. above is checked, please confirm that
C. below is true by checking the applicable box:
C.( ) For exchanges after ______ __, 1999* -- a minimum of
two years have elapsed since the Shares were last
acquired by the undersigned or any prior holder from
the Company or any "affiliate" thereof (or, if later
and if such last acquisition was by purchase, since
the purchase price for such last acquisition was paid
in full), and such holder is not, and during the
preceding three months has not been, an "affiliate" of
the Company.
For the purposes of this certificate, an "affiliate" of
the Company is a person that directly, or indirectly through one
or more intermediaries, controls, is controlled by or is under
common control with the Company.
This certificate and the statements contained herein are
made for the benefit of the Company.
Dated: _______________________ Print Name of Beneficial Owner
of the Shares:
Signature of Beneficial Owner:
By:___________________________
Name:
Title:
(If the beneficial owner is a corporation,
partnership or fiduciary, the name and title of
the Person signing on behalf of the beneficial
owner must be printed.)
--------------------------
* The second anniversary of Closing Date, to be filled in when
the certificates are issued.
