UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 31, 2009
Willis Group Holdings Public Limited Company
(Exact name of registrant as specified in its charter)
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Ireland
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001-16503
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Applied For
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(State or other jurisdiction of
incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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c/o Willis Group Limited, 51 Lime Street, London, EC3M 7DQ, England and Wales
(Address, including Zip Code, of Principal Executive Offices)
Registrant’s telephone number, including area code:
(44) (20) 7488-8111
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
TABLE OF CONTENTS
Item 1.01 Entry into a Material Definitive Agreement.
Supplemental Indentures
On December 31, 2009, Willis North America Inc., as issuer, Willis Group Holdings Limited, an
exempted company incorporated with limited liability under the laws of Bermuda (“Willis-Bermuda”),
Willis Group Holdings Public Limited Company, an Irish public limited company and current parent of
the Willis group (“Willis-Ireland”), Willis Netherlands Holdings B.V., Willis Investment UK
Holdings Limited, TA I Limited, TA II Limited, TA III Limited, Trinity Acquisition plc, TA IV
Limited and Willis Group Limited, as the guarantors, and The Bank of New York Mellon, as trustee,
entered into the Fifth Supplemental Indenture (the “Fifth Supplemental Indenture”) to the Senior
Indenture dated as of July 1, 2005 (as supplemented by the First Supplemental Indenture dated as of
July 1, 2005, the Second Supplemental Indenture dated as of March 28, 2007, the Third Supplemental
Indenture dated as of October 1, 2008 and the Fourth Supplemental Indenture dated as of September
29, 2009, together the “2005 Indenture”). In connection with the Fifth Supplemental Indenture,
Willis-Ireland assumed Willis-Bermuda’s obligations as “Parent Guarantor”
under the 2005 Indenture,
Willis Netherlands Holdings B.V. assumed all of the obligations of a “Guarantor”
under the 2005 Indenture and Willis-Bermuda was released from any
obligations under the 2005 Indenture. The Fifth Supplemental Indenture is filed
as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference. The
foregoing summary of the Fifth Supplemental Indenture is qualified in its entirety by reference to
such Exhibit to this Current Report on Form 8-K.
On
December 31, 2009, Trinity Acquisition Limited, as issuer, Willis-Bermuda, Willis-Ireland,
Willis Netherlands Holdings B.V., Willis Investment UK Holdings Limited,
TA I Limited, TA II Limited, TA III Limited, TA IV Limited, Willis Group Limited and
Willis North America Inc., as the
guarantors, and The Bank of New York Mellon, as trustee, entered into the Second Supplemental
Indenture (the “Second Supplemental Indenture”) to the Indenture dated as of March 6, 2009 (as
supplemented by the First Supplemental Indenture dated as of November 18, 2009,
together the “2009
Indenture”). In connection with the Second Supplemental Indenture, Willis-Ireland assumed
Willis-Bermuda’s obligations as the public holding company and as a guarantor under the 2009
Indenture, Willis Netherlands Holdings B.V. assumed all of the obligations of a
guarantor under the 2009 Indenture
and Willis-Bermuda was released from any obligations under the 2009 Indenture.
The Second Supplemental
Indenture is filed as Exhibit 4.2 to this Current Report on Form 8-K and is incorporated herein by
reference. The foregoing summary of the Second Supplemental Indenture is qualified in its entirety
by reference to such Exhibit to this Current Report on Form 8-K.
In addition to the documents referenced above, the First Supplemental Indenture dated as of
November 18, 2009 among Trinity Acquisition Limited, as the issuer, Willis-Bermuda,
Willis Investment UK Holdings Limited, TA I Limited, TA II Limited, TA III Limited, TA IV Limited,
Willis Group Limited and Willis North America Inc., as the guarantors, and The Bank of New York
Mellon, as the trustee, to the Indenture dated as of March 6, 2009, as previously described in our
Current Report on Form 8-K filed on November 19, 2009, is
filed as Exhibit 4.3 to this Current
Report on Form 8-K.
Guaranty Supplement
Willis-Bermuda is a party to that certain Credit Agreement, dated as of October 1, 2008, among
Willis North America Inc., Willis-Bermuda, Bank of America, N.A., as administrative agent and swing
line lender, and Bank of America Securities LLC, as administrative agent and sole lead arranger,
and the lenders party thereto (as amended by the Amendment dated November 14, 2008, the Second
Amendment dated February 4, 2009, the Third Amendment dated October 28, 2009, and the Fourth
Amendment dated November 18, 2009, the “Credit Agreement”). On December 31, 2009, in accordance
with the Credit Agreement and in connection with the Transaction (as such term is defined in Item
8.01 below), among other things, Willis-Ireland became a guarantor of the obligations under the
Credit Agreement pursuant to a supplement (the “Guaranty Supplement”)
to the Guaranty Agreement, dated as
of October 1, 2008 (the “Guaranty”),
among Willis North America Inc., Willis-Bermuda, the other guarantors party thereto and Bank of
America, N.A., as administrative agent. The Guaranty is filed as Exhibit 10.1 to this
Current Report on Form 8-K and the Guaranty Supplement is filed as Exhibit 10.2
to this Current Report on Form 8-K, and each is incorporated herein by reference.
The foregoing summary of the Guaranty Supplement is qualified in its entirety by reference to such
Exhibit to this Current Report on Form 8-K.
In addition to the documents referenced above, the Fourth Amendment dated November 18, 2009 to the
Credit Agreement, dated as of October 1, 2009, among Willis
North America Inc., Willis-Bermuda, the lenders party thereto, Bank of America, N.A., as administrative agent and
swing line lender, and Bank of America Securities LLC, as sole lead arranger, as previously
described in our Current Report on Form 8-K filed on
November 19, 2009, is filed as Exhibit 10.3
to this Current Report on Form 8-K.
Plan Amendments
On December 31, 2009, Willis-Ireland and Willis-Bermuda entered into a Deed Poll of Assumption
(the “Deed Poll of Assumption”) pursuant to which Willis-Ireland assumed, as of the Transaction
Time (as such term is defined in Item 8.01 below), the following
equity incentive plans, sub-plans and certain
other plans and related agreements and other documents of Willis-Bermuda, including all awards
issued or granted thereunder (collectively, the “Plans”): (1) 1998 Share Purchase and Option Plan
for Key Employees of Willis Group Holdings; (2) Willis Award Plan for Key Employees of Willis Group
Holdings; (3) Willis Group Senior Management Incentive Plan; (4) Willis Group Holdings 2001 North
America Employee Share Purchase Plan; (5) Willis Group Holdings 2001 Share Purchase and Option Plan
(and the following
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sub-plans: Willis Group Holdings
2001 Bonus and Share Plan; Willis Group Holdings 2004 Bonus and Share Plan; Rules of the Willis Group Holdings Sharesave Plan 2001 for the
United Kingdom; The Willis Group Holdings Irish Sharesave Plan; and The Willis Group Holdings
International Sharesave Plan; and including the form of performance-based option agreement); (6)
Willis Group Holdings 2008 Share Purchase and Option Plan (including the form of the
performance-based restricted share units award agreement); (7) the Hilb, Rogal and
Hamilton Company
2000 Share Incentive Plan; and (8) the Hilb Rogal &
Hobbs Company 2007 Share Incentive Plan.
The Deed Poll of Assumption is filed as Exhibit 10.4 to this Current Report on Form 8-K and is
incorporated herein by reference. The foregoing summary of the Deed
Poll of Assumption is qualified in its entirety by reference to such
Exhibit to this Current Report on Form 8-K.
The Plans have been amended and restated (collectively, the “Amended Plans”), effective prior
to the Transaction Time, to provide for certain clarifications to the change of control provisions
therein and, effective at the Transaction Time, to, among others: (i) facilitate the assumption or
adoption by Willis-Ireland of the Plans; (ii) provide that shares of Willis-Ireland will be issued,
acquired, purchased, held, available or used to measure benefits or calculate amounts as
appropriate under the Plans instead of shares of Willis-Bermuda; and (iii) provide for the
appropriate substitution of Willis-Ireland in place of references to Willis-Bermuda in the Plans.
The Amended Plans are filed as Exhibits 10.5-10.19 to this Current Report on Form 8-K and
are incorporated herein by reference. The foregoing summary of the Amended Plans is qualified in
its entirety by reference to such Exhibits to this Current Report on Form 8-K.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant.
The descriptions of the Fifth Supplemental Indenture, the Second Supplemental Indenture and
the Guaranty Supplement included under Item 1.01 are incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The information included under Item 8.01 is incorporated herein by reference.
In
connection with the
Transaction, Willis-Ireland issued a total of approximately 168,645,200
ordinary shares to holders of Willis-Bermuda common shares immediately prior to the
Transaction Time. The terms and conditions of the issuance of the securities were sanctioned by
the Supreme Court of Bermuda after a hearing upon the fairness of such terms and conditions at
which all Willis-Bermuda shareholders had a right to appear and of which adequate notice had been
given. The issuance was exempt from the registration requirements of the Securities Act of 1933,
as amended (the “Securities Act”), by virtue of Section 3(a)(10) of the Securities Act.
Item 3.03 Material Modification to Rights of Security Holders.
The
information included under Items 5.03 and 8.01 is incorporated herein by reference.
Item 5.01 Changes in Control of Registrant.
The information included under Item 8.01 is incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangement of Certain Officers.
Election of Directors and Appointment of Officers
On December 31, 2009, effective on the Transaction Time, the executive officers and directors
of Willis-Bermuda immediately prior to the completion of the Transaction became the executive
officers and directors of Willis-Ireland. Willis-Ireland’s memorandum and articles of association
provide for a single class of directors, just as Willis-Bermuda had, and Willis-Ireland’s directors
will be subject to re-election at the 2010 annual general meeting of Willis-Ireland.
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Indemnification Arrangements
In connection with the Transaction, each of Willis-Ireland and Willis North America Inc., a
Delaware corporation, are entering into
deeds of indemnity and indemnification agreements, respectively,
with each of the directors and certain officers of Willis-Ireland as well as certain individuals
serving as directors or officers of Willis-Ireland’s subsidiaries. These arrangements provide for
the indemnification of, and advancement of expenses to, the indemnitee by Willis-Ireland and Willis
North America Inc., respectively, to the fullest extent permitted by law and include related
provisions meant to facilitate the indemnitee’s receipt of such benefits. A form of deed of
indemnity with Willis-Ireland is filed as Exhibit 10.20
to this Current Report on Form 8-K and a
form of indemnification agreement with Willis North America Inc. is filed as
Exhibit 10.21 to
this Current Report on Form 8-K, and each is incorporated herein by reference.
The foregoing summary of the deeds of indemnity and the indemnification agreements is qualified in
its entirety by reference to such Exhibits to this Current Report on Form 8-K.
Letter regarding Joseph J. Plumeri Employment Agreement
In connection with the Transaction, Joseph J. Plumeri, Willis-Bermuda and Willis North America
Inc. entered into a certain letter agreement dated as of December 30, 2009 waiving any rights or
benefits to which Mr. Plumeri may be entitled under his Amended and Restated Employment Agreement, dated as
of March 25, 2001 (as amended), if the Transaction constituted a change of control or resulted in a
right to terminate for good reason. This letter agreement is filed as Exhibit
10.22 and incorporated herein by reference, and the foregoing information is qualified in its
entirety by reference to Exhibit 10.22.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information included under Item 8.01 is incorporated herein by reference.
On December 31, 2009, in connection with and effective upon completion of the Transaction,
Willis-Ireland amended its memorandum and articles of association. The summary of the material
terms of Willis-Ireland’s memorandum and articles of association and comparison thereof to the
terms of Willis-Bermuda’s articles of association and bye-laws included under the headings
“Description of Willis Group Holdings Public Limited Company Share Capital” and “Comparison of
Rights of Shareholders and Powers of the Board of Directors” in Willis-Bermuda’s Definitive Proxy
Statement on Schedule 14A filed with the U.S. Securities and Exchange Commission on November 2,
2009 are incorporated into this Item 5.03 by reference. Willis-Ireland’s memorandum and
articles of association are filed as Exhibit 3.1 and incorporated herein by reference, and
the foregoing information is qualified in its entirety by reference to Exhibit 3.1.
With effect from the Transaction Time, the board of directors of Willis-Ireland approved a
change in Willis-Ireland’s fiscal year from December 30 to December 31.
Item 8.01 Other Events.
On December 31, 2009, Willis-Bermuda and Willis-Ireland completed a scheme of arrangement
pursuant to which Willis-Bermuda’s common shares were cancelled and Willis-Bermuda’s common
shareholders received, on a one-for-one basis, ordinary shares of Willis-Ireland for the
purpose of changing the place of incorporation of the parent company
of the Willis group from Bermuda to
Ireland (the “Transaction”). The Transaction became
effective at 6:59 p.m. Eastern Time on December 31, 2009 (the “Transaction Time”). As a result of the Transaction, Willis-Bermuda is now a
wholly-owned subsidiary of Willis-Ireland. On December 31, 2009,
Willis-Ireland issued a press
release announcing completion of the Transaction. The press release is filed as Exhibit 99.1 to
this Current Report on Form 8-K and is incorporated herein by reference.
Prior to the Transaction, the Willis-Bermuda common shares were registered pursuant to Section
12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and listed on the
New York Stock Exchange (“NYSE”) under the symbol “WSH.” Willis-Bermuda requested that the NYSE
file with the Commission a Form 25 to remove the Willis-Bermuda common shares from listing on the
NYSE. After the Form 25 becomes effective, Willis-Bermuda will file a Form 15 with the Commission to terminate the registration of the
Willis-Bermuda common shares and suspend its reporting obligations under Sections 13 and 15(d) of
the Exchange Act.
Pursuant to Rule 12g-3(a) promulgated under the Exchange Act, the Willis-Ireland ordinary
shares are deemed registered under Section 12(b) of the Exchange Act and Willis-Ireland is the
successor issuer to Willis-Bermuda. The Willis-Ireland ordinary shares were approved for listing
on the NYSE and began trading on January 4, 2010 under the symbol “WSH,” the same symbol under which the
Willis-Bermuda common shares previously traded.
Set forth below is a description of the share capital of Willis-Ireland. For purposes of the
following description, references to the “Company,” “we” and “our” refer to Willis-Ireland.
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DESCRIPTION OF SHARE CAPITAL OF WILLIS-IRELAND
The following description of our share capital is a summary. This summary is subject to the
Irish Companies Acts 1963-2009 (the “Irish Companies Acts”)
and is qualified in its entirety by reference to our memorandum
and articles of association, which are filed as Exhibit 3.1 to this Current Report on Form 8-K and
incorporated herein by reference. We encourage you to read those laws and documents carefully.
Capital Structure
Authorized Share Capital.
Our authorized share capital is
€
40,000 divided into 40,000
ordinary shares with a nominal value of
€
1 per share and US$575,000 divided into 4,000,000,000
ordinary shares with a nominal value of US$0.000115 per share and 1,000,000,000 preferred shares
with a nominal value of US$0.000115 per share. The authorized share capital includes 40,000
ordinary shares with a nominal value of
€
1 per share in order to satisfy statutory requirements for
all Irish public limited companies commencing operations.
We may issue shares subject to the maximum prescribed by our authorized share capital
contained in our memorandum and articles of association. The authorized share capital may be
increased or reduced by way of an ordinary resolution of our shareholders. The shares comprising
our authorized share capital may be divided into shares of such nominal value as the resolution
shall prescribe. As a matter of Irish company law, the directors of a company may issue new
ordinary or preferred shares without shareholder approval once authorized to do so by the articles
of association of the Company or by an ordinary resolution adopted by the shareholders at a general
meeting. An ordinary resolution requires the approval of over 50% of the votes of a company’s
shareholders cast at a general meeting. The authority conferred can be granted for a maximum period
of five years, at which point it must be renewed by the shareholders of the company by an ordinary
resolution. Because of this requirement of Irish law, our articles of association authorize our
board of directors to issue new ordinary or preferred shares without shareholder approval for a
period of five years from the date of adoption of such articles of association, which were effective
on December 31, 2009.
The rights and restrictions to which the ordinary shares will be subject are prescribed in our
articles of association. Our articles of association entitle the board of directors, without
shareholder approval, to determine the terms of the preferred shares we may issue. Our board of
directors is authorized, without obtaining any vote or consent of the holders of any class or
series of shares, unless expressly provided by the terms of that class or series or shares, to
provide from time to time for the issuance of other classes or series of preferred shares and to
establish the characteristics of each class or series, including the number of shares,
designations, relative voting rights, dividend rights, liquidation and other rights, redemption,
repurchase or exchange rights and any other preferences and relative, participating, optional or
other rights and limitations not inconsistent with applicable law.
Irish law does not recognize fractional shares held of record. Accordingly, our articles of
association do not provide for the issuance of fractional shares, and our official Irish register
will not reflect any fractional shares.
Issued Share Capital
. Immediately prior to the Transaction, the issued share capital of
Willis-Ireland was
€
40,000, comprised of 40,000 ordinary shares, with nominal value of
€
1 per
share (the “Euro Share Capital”). In connection with the consummation of the Transaction, the Euro
Share Capital was acquired by Willis-Ireland and was then cancelled by Willis-Ireland.
Willis-Ireland then issued approximately 168,645,200 ordinary shares having a nominal value of
US$0.000115 each. All shares issued on completion of the Transaction were issued as fully paid
up.
Pre-emption Rights, Share Warrants and Share Options
Under Irish law certain statutory pre-emption rights apply automatically in favor of
shareholders where shares are to be issued for cash. However, we have opted out of these
pre-emption rights in our articles of association as permitted under Irish company law. Under
Irish law this opt-out will cease to be effective after five years unless renewed by a special
resolution of the shareholders. A special resolution requires the approval of not less than 75% of
the votes of our shareholders cast at a general meeting. If the opt-out is not renewed, shares
issued for cash must be offered to pre-existing shareholders of the Company pro rata to their
existing shareholding before the shares can be issued to any new
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shareholders. The statutory
pre-emption rights do not apply where shares are
issued for non-cash consideration (such as in a stock-for-stock acquisition) and do not apply
to the issue of non-equity shares (that is, shares that have the right to participate only up to a
specified amount in any income or capital distribution and shares issued under employee share
plans).
Our articles of association provide that, subject to any shareholder approval requirement
under any laws, regulations or the rules of any stock exchange to which we are subject, our board
of directors is authorized, from time to time, in its discretion, to grant such persons, for such
periods and upon such terms as the board deems advisable, options to purchase such number of shares
of any class or classes or of any series of any class as the board may deem advisable, and to cause
warrants or other appropriate instruments evidencing such options to be issued. The Irish Companies
Acts provide that directors may issue share warrants or options without shareholder approval once
authorized to do so by the articles of association or an ordinary resolution of shareholders. Our
board of directors may issue shares upon exercise of warrants or options without shareholder
approval or authorization (up to the relevant authorized share capital limit). In connection with
the Transaction, we assumed, on a one-for-one basis, Willis-Bermuda’s existing obligations to
deliver shares under our equity incentive plans, warrants or other rights pursuant to the terms
thereof.
The Irish Companies Acts prohibit an Irish company from allotting shares for “nil” or no
consideration. Accordingly, the nominal value of the shares issued upon the lapse of restrictions
or the vesting of any restricted stock unit, performance shares awards, bonus shares or any other
share-based grants must be paid pursuant to the Irish Companies Acts.
We are subject to the rules of the New York Stock Exchange (the “NYSE”) and the Internal
Revenue Code of 1986, as amended (the “Code”), that require shareholder approval of certain equity
plan and share issuances.
Dividends
Under Irish law, dividends and distributions may only be made from distributable reserves.
Distributable reserves generally means our accumulated realized profits less accumulated realized
losses and includes reserves created by way of capital reduction. In addition, no distribution or
dividend may be made unless our net assets are equal to, or in excess of, the aggregate of our
called up share capital plus undistributable reserves and the distribution does not reduce our net
assets below such aggregate. Undistributable reserves include the share premium account, the
capital redemption reserve fund and the amount by which our accumulated unrealized profits, so far
as not previously utilized by any capitalization, exceed our accumulated unrealized losses, so far
as not previously written off in a reduction or reorganization of capital.
The determination as to whether or not we have sufficient distributable reserves to fund a
dividend must be made by reference to “relevant accounts” of the Company. The “relevant accounts”
will be either the last set of unconsolidated annual audited financial statements or other
financial statements properly prepared in accordance with the Irish Companies Acts, which give a
“true and fair view” of our unconsolidated financial position and accord with accepted accounting
practice. The relevant accounts must be filed in the Companies Registration Office (the official
public registry for companies in Ireland).
Although we did not have any distributable reserves immediately following the Transaction
Time, we are taking steps to create such distributable reserves.
The mechanism as to who declares a dividend and when a dividend shall become payable is
governed by our articles of association. Our articles of association authorize the directors to
declare such dividends as appear justified from our profits without the approval of the
shareholders at a general meeting. The board of directors may also recommend a dividend to be
approved and declared by the shareholders at a general meeting. The board of directors may direct
that the payment be made by distribution of assets, shares or cash and no dividend issued may
exceed the amount recommended by the directors. The dividends can be declared and paid in the form
of cash or non-cash assets.
Our directors may deduct from any dividend payable to any member all sums of money (if any)
payable by such member to the Company in relation to the shares of the Company.
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Our directors are also entitled to issue shares with preferred rights to participate in
dividends we declare. The holders of such preferred shares may, depending on their terms, rank
senior to our ordinary shares in terms of dividend rights and/or be entitled to claim arrears of a
declared dividend out of subsequently declared dividends in priority to ordinary shareholders.
Share Repurchases, Redemptions and Conversions
Overview
Our articles of association provide that any ordinary share which we acquire or agree to
acquire shall be converted into a redeemable share. Accordingly, for Irish company law purposes,
our repurchase of ordinary shares can technically be effected as a redemption of those shares as
described below under “— Repurchases and Redemptions by the Company.” If our articles of
association did not contain such provision, repurchases by the Company would be subject to many of
the same rules that apply to purchases of our shares by subsidiaries described below under “—
Purchases by Subsidiaries of the Company,” including the shareholder approval requirements
described below and the requirement that any on-market purchases be effected on a “recognized stock
exchange.” Except where otherwise noted, when we refer elsewhere in this Current Report on Form 8-K
to repurchasing or buying back ordinary shares of the Company, we are referring to the redemption
of ordinary shares by the Company pursuant to such provision of our articles of association or the
purchase of our ordinary shares by us or our subsidiaries, in each case in
accordance with our articles of association and Irish company law as described below.
Repurchases and Redemptions by the Company
Under Irish law, a company can issue redeemable shares and redeem them out of distributable
reserves (which are described above under “— Dividends”) or, subject to certain restrictions, the
proceeds of a new issue of shares for that purpose. Although we did not have any distributable
reserves immediately following the Transaction Time, we are taking steps to create such
distributable reserves. We may only issue redeemable shares where the nominal value of the issued
share capital that is not redeemable is at least 10% of the nominal value of our total issued share
capital. All redeemable shares must also be fully-paid and the terms of redemption of the shares
must provide for payment on redemption. Redeemable shares may, upon redemption, be cancelled or
held in treasury. Based on the provision of our articles described above, shareholder approval
will not be required to redeem our shares.
We may also be given an additional general authority to purchase our own shares on-market
which would take effect on the same terms and be subject to the same conditions as applicable to
purchases by our subsidiaries as described below.
Our board of directors will also be entitled to issue preferred shares which may be redeemed
at our option or our shareholders’, depending on the terms of such preferred shares. Please see “—
Capital Structure — Authorized Share Capital” above for additional information on preferred
shares.
Repurchased and redeemed shares may be cancelled or held as treasury shares. The nominal
value of treasury shares held by us at any time must not exceed 10% of the nominal value of our
issued share capital. We cannot exercise any voting rights in respect of shares held as treasury
shares. Treasury shares may be cancelled by us or re-issued subject to certain conditions.
Purchases by Subsidiaries of the Company
Under Irish law, it may be permissible for an Irish or non-Irish subsidiary to purchase our
shares either on-market or off-market. A general authority of our shareholders (by way of ordinary
resolution) is required to allow a subsidiary of the Company to make on-market purchases of our
shares. However, as long as this general authority has been granted, no specific shareholder
authority for a particular on-market purchase by a subsidiary of the Company is required.
Willis-Bermuda together with the nominee shareholders of the Company authorized the purchase of our
shares by subsidiaries of the Company, such that our subsidiaries will be authorized to purchase
shares in an aggregate amount
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approximately equal to the remaining authorization under the
former Willis-Bermuda
share repurchase program. This authority will expire no later than 18 months
after the date on which it takes effect.
In order for a subsidiary of ours to make an on-market purchase of our shares, such shares
must be purchased on a “recognized stock exchange.” The NYSE, on which our shares became listed
following the Transaction, is not currently specified as a recognized stock exchange for this
purpose by Irish company law. It is possible that the Irish authorities will take appropriate
steps in the near future to add the NYSE to the list of recognized stock exchanges. For an
off-market purchase by a subsidiary of ours, the proposed purchase contract must be authorized by
special resolution of our shareholders before the contract is entered into. The person whose
shares are to be bought back cannot vote in favor of the special resolution and, for at least 21
days prior to the meeting at which the special resolution is voted on, the purchase contract must
be on display or must be available for inspection by shareholders at our registered office. The
purchase contract must also be available for inspection at that meeting.
The number of shares held by our subsidiaries at any time will count as treasury shares and
will be included in any calculation of the permitted treasury share threshold of 10% of the nominal
value of our issued share capital. While a subsidiary holds our shares, it cannot exercise any
voting rights in respect of those shares. The acquisition of our shares by a subsidiary must be
funded out of distributable reserves of the subsidiary.
Existing Share Repurchase Program
The board of directors of Willis-Bermuda has previously authorized a program to repurchase up
to one billion of its common shares. Our board of directors authorized the repurchase of our
shares by the Company and our subsidiaries and Willis-Bermuda and the nominee shareholders of the
Company authorized the purchase of our shares by our subsidiaries, such that the Company and its
subsidiaries are authorized to purchase shares in an aggregate amount approximately equal to the
remaining authorization under the former Willis-Bermuda share repurchase program.
As noted above, because repurchases of our shares by the Company can technically be effected
as a redemption of those shares pursuant to the articles of association, such repurchases may be
made whether or not the NYSE is a “recognized stock exchange” and shareholder approval for such
repurchases will not be required.
However, because purchases of our shares by our subsidiaries may be made only on a “recognized
stock exchange” and only if the required shareholder approval has been obtained, the shareholder
authorization for purchases by our subsidiaries described above was made effective as of the later
of (i) the Transaction Time (which has occurred) and (ii) the date on which the NYSE becomes a
recognized stock exchange for this purpose. This authorization will expire no later than 18 months
after the date on which it takes effect, and we expect that we would seek shareholder approval to
renew this authorization at future annual general meetings.
Bonus Shares
Under our articles of association, our board of directors may resolve to capitalize any amount
for the time being standing to the credit of any of our reserves (including any capital redemption
reserve fund or share premium account) or to the credit of profit and loss account for issuance and
distribution to shareholders as fully paid-up bonus shares on the same basis of entitlement as
would apply in respect of a dividend distribution.
Consolidation and Division; Subdivision
Under our articles of association, we may by ordinary resolution consolidate and divide all or
any of its share capital into shares of larger nominal value than its existing shares or subdivide
its shares into smaller amounts than is fixed by its articles of association.
Reduction of Share Capital
We may, by ordinary resolution, reduce our authorized share capital in any way. We also may,
by special resolution and subject to confirmation by the Irish High Court, reduce or cancel our
issued share capital in any way.
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Annual Meetings of Shareholders
We are required to hold an annual general meeting within 18 months of incorporation and at
intervals of no more than 15 months thereafter, provided that an annual general meeting is held in
each calendar year following the first annual general meeting and no more than nine months after
our fiscal year-end. We plan to hold an annual general meeting in 2010. Under Irish law, our
first annual general meeting is permitted to be held outside Ireland. Thereafter, any annual
general meeting may be held outside Ireland if a resolution so authorizing has been passed at the
preceding annual general meeting. We intend to hold annual general meetings in Ireland. Because of
the 15-month requirement described in this paragraph, our articles of association include a
provision reflecting this requirement of Irish law.
Notice of an annual general meeting must be given to all of our shareholders and to our
auditors. Our articles of association provide for a minimum notice period of 21 days, which is the
minimum permitted under Irish law.
The only matters which must, as a matter of Irish company law, be transacted at an annual
general meeting are the presentation of the annual accounts, balance sheet and reports of the
directors and auditors, the appointment of auditors and the fixing of the auditor’s remuneration
(or delegation of same). An auditor is deemed to be reappointed at an annual general meeting
without any resolution being passed, unless the auditor is not qualified for reappointment, a
resolution is passed that the auditor shall not be reappointed (or appointing another auditor) or
the auditor is unwilling to be reappointed.
Directors are elected by the affirmative vote of a majority of the votes cast by shareholders
at an annual general meeting and serve until the next following general meeting. Any nominee for
director who does not receive a majority of the votes cast is not elected to the board.
Special Meetings of Shareholders
Extraordinary general meetings of the Company may be convened by (i) the chairman of the board
of directors, (ii) the board of directors, (iii) on requisition of shareholders holding not less
than 10% of our paid up share capital carrying voting rights or (iv) on requisition of our
auditors. Extraordinary general meetings are generally held for the purposes of approving
shareholder resolutions as may be required from time to time. At any extraordinary general meeting
only such business shall be conducted as is set forth in the notice thereof.
Notice of an extraordinary general meeting must be given to all of our shareholders and to our
auditors. Under Irish law, the minimum notice periods are 21 days notice in writing for an
extraordinary general meeting to approve a special resolution and 14 days notice in writing for any
other extraordinary general meeting. Because of the 21 day and 14 day requirements described in
this paragraph, our articles of association include provisions reflecting these requirements of
Irish law.
In the case of an extraordinary general meeting convened by our shareholders, the proposed
purpose of the meeting must be set out in the requisition notice. Upon receipt of this requisition
notice, the board of directors has 21 days to convene a meeting of our shareholders to vote on the
matters set out in the requisition notice. This meeting must be held within two months of the
receipt of the requisition notice. If the board of directors does not convene the meeting within
such 21 day period, the requisitioning shareholders, or any of them representing more than one half
of the total voting rights of all of them, may themselves convene a meeting, which meeting must be
held within three months of the receipt of the requisition notice.
If the board of directors becomes aware that our net assets are half or less of the amount of
our called-up share capital, our directors must convene an extraordinary general meeting of our
shareholders not later than 28 days from the date that one of the directors learns of this fact.
This meeting must be convened for the purposes of considering whether any, and if so what, measures should be taken to address the situation.
9
Quorum for General Meetings
The presence, in person or by proxy, of the holders of at least 50% of our ordinary shares
outstanding constitutes a quorum for the conduct of business. No business may take place at a
general meeting of the Company if a quorum is not present in person or by proxy. The board of
directors has no authority to waive quorum requirements stipulated in our articles of association.
Abstentions and broker non-votes will be counted as present for purposes of determining whether
there is a quorum in respect of the proposals. A broker “non-vote” occurs when a nominee (such as a
broker) holding shares for a beneficial owner abstains from voting on a particular proposal because
the nominee does not have discretionary voting power for that proposal and has not received
instructions from the beneficial owner on how to vote those shares.
Voting
Our articles of association provide that all resolutions shall be decided by a poll. Every
shareholder shall have one vote for each ordinary share that he or she holds as of the record date
for the meeting. Voting rights may be exercised by shareholders registered in our share register
as of the record date for the meeting or by a duly appointed proxy of such a registered
shareholder, which proxy need not be a shareholder. Where interests in shares are held by a
nominee trust company this company may exercise the rights of the beneficial holders on their
behalf as their proxy. All proxies must be appointed in the manner prescribed by our articles of
association. Our articles of association permit the appointment of proxies by the shareholders to
be notified to us electronically in such manner as may be approved by the board of directors.
In accordance with our articles of association, our directors may from time to time cause us
to issue preferred shares. These preferred shares may have such voting rights as may be specified
in the terms of such preferred shares (e.g., they may carry more votes per share than ordinary
shares or may entitle their holders to a class vote on such matters as may be specified in the
terms of the preferred shares).
Treasury shares will not be entitled to be voted at general meetings of shareholders.
Irish company law requires “special resolutions” of the shareholders at a general meeting to
approve certain matters. A special resolution requires the approval of not less than 75% of the
votes of our shareholders cast at a general meeting where a quorum is present. This may be
contrasted with “ordinary resolutions,” which require a simple majority of the votes of our
shareholders cast at a general meeting.
Examples of matters requiring special resolutions include:
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amending the objects of the Company;
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amending the articles of association of the Company;
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approving the change of name of the Company;
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authorizing the entering into of a guarantee or provision of security in connection
with a loan, quasi-loan or credit transaction to a director or connected person;
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opting out of pre-emption rights on the issuance of new shares;
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re-registration of the Company from a public limited company as a private company;
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variation of class rights attaching to classes of shares (where the articles of
association do not provide otherwise), which special resolution would be of the class
concerned;
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purchase of own shares off-market;
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the reduction of share capital;
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sanctioning a compromise/scheme of arrangement;
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resolving that the Company be wound up by the Irish courts;
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resolving in favor of a shareholders’ voluntary winding-up;
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re-designation of shares into different share classes; and
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setting the re-issue price of treasury shares.
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Variation of Rights Attaching to a Class or Series of Shares
Any variation of class or series rights attaching to our issued shares is addressed in our
articles of association as well as the Irish Companies Acts and must in accordance with the
articles of association be approved by ordinary resolution of the class or series affected.
Inspection of Books and Records
Under Irish law, shareholders have the right to: (i) receive a copy of our memorandum and
articles of association and any act of the Irish Government which alters our memorandum of
association; (ii) inspect and obtain copies of the minutes of our general meetings and resolutions;
(iii) inspect and receive a copy of the register of shareholders, register of directors and
secretaries, register of directors’ interests and other statutory registers maintained by the
Company; and (iv) receive copies of balance sheets and directors’ and auditors’ reports which have
previously been sent to shareholders prior to an annual general meeting. Our auditors will also
have the right to inspect all of our books, records and vouchers. The auditors’ report must be
circulated to the shareholders with our financial statements prepared in accordance with Irish law
21 days before the annual general meeting and must be read to the shareholders at our annual
general meeting.
Acquisitions
There are a number of mechanisms for acquiring an Irish public limited company, including:
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a court-approved scheme of arrangement under the Irish Companies Acts. A
scheme of arrangement with shareholders requires a court order from the Irish High
Court and the approval of: (i) 75% of the voting shareholders by value; and (ii) 50% in
number of the voting shareholders, at a meeting called to approve the scheme;
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(b)
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through a tender offer by a third party for all of our shares. Where the
holders of 80% or more of our shares have accepted an offer for their shares in the
Company, the remaining shareholders may be statutorily required to also transfer their shares. If the bidder does not exercise its “squeeze out” right, then the
non-accepting shareholders also have a statutory right to require the bidder to acquire
their shares on the same terms. If our shares were listed on the Irish Stock Exchange
or another regulated stock exchange in the European Union (“EU”), this threshold would
be increased to 90%; and
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(c)
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it is also possible for us to be acquired by way of a merger with an
EU-incorporated public company under the EU Cross-Border Merger Directive 2005/56.
Such a merger must be approved by a special resolution. If we are being merged with
another EU public company under the EU Cross-Border Merger Directive 2005/56 and the
consideration payable to our shareholders is not all in cash, the directive allows for
an amendment of the exchange rate applied in the merger in certain circumstances.
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Under Irish law, there is no requirement for a company’s shareholders to approve a sale, lease
or exchange of all or substantially all of a company’s property and assets.
Appraisal Rights
Generally, under Irish law, shareholders of an Irish company do not have dissenters or
appraisal rights. Under the European Communities (Cross-Border Mergers) Regulations 2008 governing
the merger of an Irish public limited company and a company incorporated in the
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European Economic
Area, a shareholder (i) who voted against the special resolution approving the merger or (ii) of a
company in which 90% of the voting shares is held by the other company the party to the merger of
the transferor company has the right to request that the other company acquire its shares for cash.
Disclosure of Interests in Shares
Under the Irish Companies Acts, there is a notification requirement for shareholders who
acquire or cease to be interested in five percent of the shares of an Irish public limited company.
A shareholder of the Company must therefore make such a notification to us if as a result of a
transaction the shareholder will be interested in five percent or more of our shares; or if as a
result of a transaction a shareholder who was interested in more than five percent of our shares
ceases to be so interested. Where a shareholder is interested in more than five percent of our
shares, any alteration of his or her interest that brings his or her total holding through the
nearest whole percentage number, whether an increase or a reduction, must be notified to us. The
relevant percentage figure is calculated by reference to the aggregate nominal value of the shares
in which the shareholder is interested as a proportion of the entire nominal value of our share
capital. Where the percentage level of the shareholder’s interest does not amount to a whole
percentage this figure may be rounded down to the next whole number. All such disclosures should be
notified to us within five business days of the transaction or alteration of the shareholder’s
interests that gave rise to the requirement to notify. Where a person fails to comply with the
notification requirements described above no right or interest of any kind whatsoever in respect of
any of our shares concerned, held by such person, shall be enforceable by such person, whether
directly or indirectly, by action or legal proceeding. However, such person may apply to the court
to have the rights attaching to the shares concerned reinstated.
In addition to the above disclosure requirement, we, under the Irish Companies Acts, may by
notice in writing require a person whom we know or have reasonable cause to believe to be, or at
any time during the three years immediately preceding the date on which such notice is issued, to
have been interested in shares comprised in our relevant share capital to: (i) indicate whether or
not it is the case; and (ii) where such person holds or has during that time held an interest in
our shares, to give such further information as may be required by the Company including
particulars of such person’s own past or present interests in our shares within such three year
period. Any information given in response to the notice is required to be given in writing within
such reasonable time as may be specified in the notice.
Where such a notice is served by us on a person who is or was interested in our shares and
that person fails to give the Company any information required within the reasonable time
specified, we may apply to court for an order directing that the affected shares be subject to
certain restrictions. Under the Irish Companies Acts, the restrictions that may be placed on the
shares by the court are as follows:
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(a)
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any transfer of those shares, or in the case of unissued shares any transfer of
the right to be issued with shares and any issue of shares, shall be void;
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(b)
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no voting rights shall be exercisable in respect of those shares;
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(c)
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no further shares shall be issued in right of those shares or in pursuance of
any offer made to the holder of those shares; and
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(d)
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no payment shall be made of any sums due from the Company on those shares,
whether in respect of capital or otherwise.
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Where our shares are subject to these restrictions, the court may order the shares to be sold
and may also direct that the shares shall cease to be subject to these restrictions.
Anti-Takeover Provisions
Irish Takeover Rules and Substantial Acquisition Rules
A transaction by virtue of which a third party is seeking to acquire 30% or more of the voting
rights of the Company will be governed by the
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Irish Takeover Panel Act 1997 and the Irish Takeover
Rules made thereunder and
will be regulated by the Irish Takeover Panel. The “General Principles”
of the Irish Takeover Rules and certain important aspects of the Irish Takeover Rules are described
below.
General Principles
The Irish Takeover Rules are built on the following General Principles which will apply to any
transaction regulated by the Irish Takeover Panel:
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in the event of an offer, all classes of shareholders of the target company should
be afforded equivalent treatment and, if a person acquires control of a company, the
other holders of securities must be protected;
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the holders of securities in the target company must have sufficient time to allow
them to make an informed decision regarding the offer;
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the board of a company must act in the interests of the company as a whole. If the
board of the target company advises the holders of securities as regards the offer it
must advise on the effects of the implementation of the offer on employment, employment
conditions and the locations of the target company’s place of business;
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false markets in the securities of the target company or any other company concerned
by the offer must not be created;
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a bidder can only announce an offer after ensuring that he or she can fulfill in
full the consideration offered;
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a target company may not be hindered longer than is reasonable by an offer for its
securities. This is a recognition that an offer will disrupt the day-to-day running of
a target company particularly if the offer is hostile and the board of the target
company must divert its attention to resist the offer; and
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a “substantial acquisition” of securities (whether such acquisition is to be
effected by one transaction or a series of transactions) will only be allowed to take
place at an acceptable speed and shall be subject to adequate and timely disclosure.
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Mandatory Bid
If an acquisition of shares were to increase the aggregate holding of an acquirer and its
concert parties to shares carrying 30% or more of the voting rights in the Company, the acquirer
and, depending on the circumstances, its concert parties would be required (except with the consent
of the Irish Takeover Panel) to make a cash offer for the remaining outstanding shares at a price
not less than the highest price paid for the shares by the acquirer or its concert parties during
the previous 12 months. This requirement would also be triggered by an acquisition of shares by a
person holding (together with its concert parties) shares carrying between 30% and 50% of the
voting rights in the Company if the effect of such acquisition were to increase the percentage of
the voting rights held by that person (together with its concert parties) by 0.05% within a
12-month period. A single holder (that is, a holder excluding any parties acting in concert with
the holder) holding more than 50% of the voting rights of a company is not subject to this rule.
Voluntary Bid; Requirements to Make a Cash Offer and Minimum Price Requirements
A voluntary offer is an offer that is not a mandatory offer. If a bidder or any of its concert
parties acquire our ordinary shares within the period of three months prior to the commencement of
the offer period, the offer price must be not less than the highest price paid for our ordinary
shares by the bidder or its concert parties during that period. The Irish Takeover Panel has the
power to extend the “look back” period to 12 months if the Irish Takeover Panel, having regard to
the General Principles, believes it is appropriate to do so.
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If the bidder or any of its concert parties has acquired our ordinary shares (i) during the
period of 12 months prior to the commencement of the offer period which represent more than 10% of
our total ordinary shares or (ii) at any time after the commencement of the offer period, the offer
shall be in cash (or accompanied by a full cash alternative) and the price per ordinary share shall
be not less than the highest price paid by the bidder or its concert parties during, in the case of
(i), the period of 12 months prior to the commencement of the offer period and, in the case of
(ii), the offer period. The Irish Takeover Panel may apply this rule to a bidder who, together
with its concert parties, has acquired less than 10% of our total ordinary shares in the 12 month
period prior to the commencement of the offer period if the Irish Takeover Panel, having regard to
the General Principles, considers it just and proper to do so.
An offer period will generally commence from the date of the first announcement of the offer
or proposed offer.
Substantial Acquisition Rules
The Irish Takeover Rules also contain rules governing substantial acquisitions of shares which
restrict the speed at which a person may increase his or her holding of shares and rights over
shares to an aggregate of between 15% and 30% of the voting rights of the Company. Except in
certain circumstances, an acquisition or series of acquisitions of shares or rights over shares
representing 10% or more of the voting rights of the Company is prohibited, if such acquisition(s),
when aggregated with shares or rights already held, would result in the acquirer holding 15% or
more but less than 30% of the voting rights of the Company and such acquisitions are made within a
period of seven days. These rules also require accelerated disclosure of acquisitions of shares or
rights over shares relating to such holdings.
Frustrating Action
Under the Irish Takeover Rules, our board of directors is not permitted to take any action
which might frustrate an offer for our shares once the board of directors has received an approach
which may lead to an offer or has reason to believe an offer is imminent except as noted below.
Potentially frustrating actions such as (i) the issue of shares, options or convertible securities,
(ii) material disposals, (iii) entering into contracts other than in the ordinary course of
business or (iv) any action, other than seeking alternative offers, which may result in frustration
of an offer, are prohibited during the course of an offer or at any time during which the board has
reason to believe an offer is imminent. Exceptions to this prohibition are available where:
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the action is approved by our shareholders at a general meeting; or
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(b)
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with the consent of the Irish Takeover Panel where:
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(i)
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the Irish Takeover Panel is satisfied the action would not constitute a
frustrating action;
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(ii)
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the holders of 50% of the voting rights state in writing that they
approve the proposed action and would vote in favor of it at a general meeting;
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(iii)
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the relevant action is pursuant to a contract entered into prior to
the announcement of the offer; or
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(iv)
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the decision to take such action was made before the announcement of
the offer and either has been at least partially implemented or is in the ordinary
course of business.
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For other provisions that could be considered to have an anti-takeover effect, please see
above at “— Authorized Share Capital” (regarding issuance of preferred shares), “— Pre-emption
Rights, Share Warrants and Share Options” and “— Disclosure of Interests in Shares,” in addition
to “— Corporate Governance” below.
Corporate Governance
Our articles of association allocate authority over the management of the Company to the board
of directors. The board of directors may
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then delegate the management of the Company to committees
(consisting of members of the board or other persons) or executives, but regardless, the directors
will remain responsible, as a matter of Irish law, for the proper management of the affairs of the
Company. The Company has replicated the existing committees that were previously in place for
Willis-Bermuda, which include an Audit Committee, a Compensation Committee and a Corporate
Governance and Nominating Committee. We also adopted, with certain amendments, Willis-Bermuda’s
Corporate Governance Guidelines, Code of Ethics and Insider Trading Policy. In addition, we
adopted a new Regulation FD Corporate Communications Policy.
Legal Name; Formation; Fiscal Year; Registered Office
The legal and commercial name of the Company is Willis Group Holdings Public Limited Company.
We were incorporated in Ireland as a public limited company on September 24, 2009 with company
registration number 475616. Our fiscal year ends on December 31 and our registered address is Grand
Mill Quay, Barrow Street, Dublin 4, Ireland.
Duration; Dissolution; Rights upon Liquidation
Our duration will be unlimited. We may be dissolved and wound up at any time by way of a
shareholders’ voluntary winding up or a creditors’ winding up. In the case of a shareholders’
voluntary winding-up, a special resolution of shareholders is required. We may also be dissolved
by way of court order on the application of a creditor, or by the Companies Registration Office as
an enforcement measure where we have failed to file certain returns. Our articles of association
also provide for a voluntary winding up to be effected by way of a unanimous vote of the
shareholders.
The rights of the shareholders to a return of our assets on dissolution or winding up,
following the settlement of all claims of creditors, may be prescribed in our articles of
association or the terms of any preferred shares issued by our directors from time to time. The
holders of preferred shares in particular may have the right to priority in a dissolution or
winding up of the Company. If the articles of association contain no specific provisions in
respect of a dissolution or winding up then, subject to the priorities or any creditors, the assets
will be distributed to shareholders in proportion to the paid-up nominal value of the shares held.
Our articles of association provide that our ordinary shareholders are entitled to participate pro
rata in a winding up, but their right to do so may be subject to the rights of any preferred
shareholders to participate under the terms of any series or class of preferred shares.
Uncertificated Shares
Holders of our ordinary shares will not have the right to require the Company to issue
certificates for their shares. We will only issue uncertificated ordinary shares.
Stock Exchange Listing
Immediately following the Transaction Time, our ordinary shares became listed on the NYSE
under the symbol “WSH,” the same symbol under which the Willis-Bermuda common shares were
previously listed. We do not plan for our ordinary shares to be listed on the Irish Stock Exchange
at the present time.
No Sinking Fund
Our ordinary shares have no sinking fund provisions.
No Liability for Further Calls or Assessments
The shares to be issued in the Transaction were duly and validly issued and fully-paid.
Transfer and Registration of Shares
Our share register will be maintained by our transfer agent. Registration in this share
register will be determinative of membership in the
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Company. A shareholder of the Company who
holds shares beneficially will not be the holder of record of such shares. Instead, the depository
(for example, Cede & Co., as nominee for DTC) or other nominee will be the holder of record of such
shares. Accordingly, a transfer of shares from a person who holds such shares beneficially to a
person who also holds such shares beneficially through a depository or other nominee will not be
registered in our official share register, as the depository or other nominee will remain the
record holder of such shares.
A written instrument of transfer is required under Irish law in order to register on our
official share register any transfer of shares (i) from a person who holds such shares directly to
any other person, (ii) from a person who holds such shares beneficially to a person who holds such
shares directly, or (iii) from a person who holds such shares beneficially to another person who
holds such shares beneficially where the transfer involves a change in the depository or other
nominee that is the record owner of the transferred shares. An instrument of transfer also is
required for a shareholder who directly holds shares to transfer those shares into his or her own
broker account (or vice versa). Such instruments of transfer may give rise to Irish stamp duty,
which must be paid prior to registration of the transfer on our official Irish share register.
However, a shareholder who directly holds shares may transfer those shares into his or her own
broker account (or vice versa) without giving rise to Irish stamp duty provided there is no change
in the ultimate beneficial ownership of the shares as a result of the transfer and the transfer is
not made in contemplation of a sale of the shares.
Any transfer of our shares that is subject to Irish stamp duty will not be registered in the
name of the buyer unless an instrument of transfer is duly stamped and provided to our transfer
agent. Our articles of association allow us, in our absolute discretion, to create an instrument
of transfer and pay (or procure the payment of) any stamp duty payable by a buyer. In the event of
any such payment, the Company (on behalf of itself or its affiliates) is entitled to (i) seek
reimbursement from the buyer or seller (at its discretion), (ii) set-off the amount of the stamp
duty against future dividends payable to the buyer or seller (at its discretion), and (iii) claim a
lien against our shares on which it has paid stamp duty. Parties to a share transfer may assume
that any stamp duty arising in respect of a transaction in our shares has been paid unless one or
both of such parties is otherwise notified by us.
Our articles of association delegate to our Secretary the authority to execute an instrument
of transfer on behalf of a transferring party.
In order to help ensure that the official share register is regularly updated to reflect
trading of our shares occurring through normal electronic systems, we intend to regularly produce
any required instruments of transfer in connection with any transactions for which we pay stamp
duty (subject to the reimbursement and set-off rights described above). In the event that we
notify one or both of the parties to a share transfer that we believe stamp duty is required to be
paid in connection with such transfer and that we will not pay such stamp duty, such parties may
either themselves arrange for the execution of the required instrument of transfer (and may request
a form of instrument of transfer from us for this purpose) or request that we execute an instrument
of transfer on behalf of the transferring party in a form determined by us. In either event, if
the parties to the share transfer have the instrument of transfer duly stamped (to the extent
required) and then provide it to our transfer agent, the buyer will be registered as the legal
owner of the relevant shares on our official Irish share register (subject to the matters described
below).
If we are under a contractual obligation to register or to refuse to register the transfer of
a share to any person, the board of directors shall act in accordance with such obligation and
register or refuse to register the transfer of a share to such person, whether or not it is a
fully-paid share or a share on which we have a lien. Subject to the previous sentence, our
directors have general discretion to decline to register an instrument of transfer of a share
whether or not it is a fully-paid share or a share on which we have a lien.
The registration of transfers may be suspended by our directors at such times and for such
period, not exceeding in the whole 30 days in each year, as the directors may from time to time determine.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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Exhibit
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Number
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Description
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3.1
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Memorandum and Articles of Association of Willis Group Holdings Public Limited
Company
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3.2
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Certificate of Incorporation of Willis Group Holdings Public Limited Company
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4.1
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Fifth Supplemental Indenture dated as of December 31, 2009 among
Willis North America Inc., as the Issuer, Willis Group Holdings
Limited, Willis Group Holdings Public Limited Company, Willis
Netherlands Holdings B.V., Willis Investment UK Holdings Limited, TA
I Limited, TA II Limited, TA III Limited, Trinity Acquisition plc, TA
IV Limited and Willis Group Limited, as the Guarantors, and The Bank
of New York Mellon, as the Trustee, to the Indenture dated as of July
1, 2005
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4.2
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Second Supplemental Indenture dated as of December 31, 2009 among
Trinity Acquisition Limited, as the Issuer, Willis Group Holdings
Limited, Willis Group Holdings Public Limited Company, Willis
Netherlands Holdings B.V., Willis Investment UK Holdings Limited, TA
I Limited, TA II Limited, TA III Limited, TA IV Limited, Willis Group
Limited and Willis North America Inc., as the Guarantors, and The
Bank of New York Mellon, as the Trustee, to the Indenture dated as of
March 6, 2009
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4.3
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First Supplemental Indenture dated as of November 18, 2009 among
Trinity Acquisition Limited, as the Issuer, Willis Group Holdings
Limited, Willis Investment UK Holdings Limited, TA I Limited, TA II
Limited, TA III Limited, TA IV Limited, Willis Group Limited and
Willis North America Inc., as the Guarantors, and The Bank of New
York Mellon, as the Trustee, to the Indenture dated as of March 6,
2009
|
|
|
|
10.1
|
|
Guaranty Agreement, dated as of October 1, 2008, among Willis North
America Inc., Willis Group Holdings Limited, the other Guarantors
party thereto and Bank of America, N.A., as Administrative Agent
|
|
|
|
10.2
|
|
Supplement to Guaranty dated as of December 31, 2009 under the
Guaranty Agreement, dated as of October 1, 2008, among Willis North
America Inc., Willis Group Holdings Limited, the other Guarantors
party thereto and Bank of America, N.A., as Administrative Agent
|
|
|
|
10.3
|
|
Fourth Amendment dated as of November 18, 2009 to the Credit
Agreement, dated as of October 1, 2009, among Willis North America
Inc., Willis Group Holdings Limited, the Lenders party thereto, Bank
of America, N.A., as Administrative Agent and Swing Line Lender, and
Bank of America Securities LLC, as Sole Lead Arranger
|
|
|
|
|
|
10.4
|
|
Deed Poll of Assumption dated as of December 31, 2009 between Willis Group
Holdings Limited and Willis Group Limited Public Limited Company
|
|
|
|
|
|
10.5
|
|
1998 Share Purchase and Option Plan for Key Employees of Willis Group Holdings
|
|
|
|
|
|
10.6
|
|
Willis Award Plan for Key Employees of Willis Group Holdings
|
|
|
|
|
|
10.7
|
|
Willis Group Senior Management Incentive Plan
|
|
|
|
|
|
10.8
|
|
Willis Group Holdings 2001 North America Employee Share Purchase Plan
|
|
|
|
|
|
10.9
|
|
Willis Group Holdings 2001 Share Purchase and Option Plan
|
|
|
|
|
|
10.10
|
|
Form of Performance-Based Option Agreement under the Willis Group Holdings 2001
Share Purchase and Option Plan
|
|
|
|
|
|
10.11
|
|
The Willis Group Holdings 2001 Bonus and Share Plan
|
|
|
|
|
|
10.12
|
|
The Willis Group Holdings 2004 Bonus and Share Plan
|
|
|
|
|
|
10.13
|
|
Rules of the Willis Group Holdings Sharesave Plan 2001 for the United Kingdom
|
17
|
|
|
|
|
Exhibit
|
|
|
|
Number
|
|
Description
|
|
10.14
|
|
The Willis Group Holdings Irish Sharesave Plan
|
|
|
|
|
|
10.15
|
|
The Willis Group Holdings International Sharesave Plan
|
|
|
|
|
|
10.16
|
|
Willis Group Holdings 2008 Share Purchase and Option Plan
|
|
|
|
|
|
10.17
|
|
Form of Performance-Based Restricted Share Units Award Agreement under the
Willis Group Holdings 2008 Share Purchase and Option Plan
|
|
|
|
|
|
10.18
|
|
Hilb, Rogal and Hamilton Company 2000 Share Incentive Plan
|
|
|
|
|
|
10.19
|
|
Hilb Rogal & Hobbs Company 2007 Share Incentive Plan
|
|
|
|
|
|
10.20
|
|
Form of Deed of Indemnity of Willis Group Limited Public Limited Company
|
|
|
|
|
|
10.21
|
|
Form of Indemnification Agreement of Willis North America Inc.
|
|
|
|
|
|
10.22
|
|
Letter dated as of December 30, 2009 regarding Amended and Restated
Employment Agreement, dated as of March 25, 2001 (as amended),
between Willis Group Holdings Limited, Willis North America Inc. and Joseph J. Plumeri
|
|
|
|
|
|
99.1
|
|
Press Release, dated December 31, 2009
|
18
SIGNATURES
Pursuant to the requirement of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
|
|
|
|
|
Date: January 4, 2010
|
WILLIS GROUP HOLDINGS PUBLIC
LIMITED COMPANY
|
|
|
|
By:
|
/s/ Adam G. Ciongoli
|
|
|
|
|
Adam G. Ciongoli
|
|
|
|
|
General Counsel
|
|
19
INDEX TO EXHIBITS
|
|
|
|
|
Exhibit
|
|
|
|
Number
|
|
Description
|
|
3.1
|
|
Memorandum and Articles of
Association of Willis Group Holdings Public Limited Company
|
|
|
|
|
|
3.2
|
|
Certificate of Incorporation of Willis Group Holdings Public Limited Company
|
|
|
|
|
|
4.1
|
|
Fifth Supplemental Indenture dated as of December 31, 2009 among
Willis North America Inc., as the Issuer, Willis Group Holdings
Limited, Willis Group Holdings Public Limited Company, Willis
Netherlands Holdings B.V., Willis Investment UK Holdings Limited, TA
I Limited, TA II Limited, TA III Limited, Trinity Acquisition plc, TA
IV Limited and Willis Group Limited, as the Guarantors, and The Bank
of New York Mellon, as the Trustee, to the Indenture dated as of July
1, 2005
|
|
|
|
4.2
|
|
Second Supplemental Indenture dated as of December 31, 2009 among
Trinity Acquisition Limited, as the Issuer, Willis Group Holdings
Limited, Willis Group Holdings Public Limited Company, Willis
Netherlands Holdings B.V., Willis Investment UK Holdings Limited, TA
I Limited, TA II Limited, TA III Limited, TA IV Limited, Willis Group
Limited and Willis North America Inc., as the Guarantors, and The
Bank of New York Mellon, as the Trustee, to the Indenture dated as of
March 6, 2009
|
|
|
|
4.3
|
|
First Supplemental Indenture dated as of November 18, 2009 among
Trinity Acquisition Limited, as the Issuer, Willis Group Holdings
Limited, Willis Investment UK Holdings Limited, TA I Limited, TA II
Limited, TA III Limited, TA IV Limited, Willis Group Limited and
Willis North America Inc., as the Guarantors, and The Bank of New
York Mellon, as the Trustee, to the Indenture dated as of March 6,
2009
|
|
|
|
10.1
|
|
Guaranty Agreement, dated as of October 1, 2008, among Willis North
America Inc., Willis Group Holdings Limited, the other Guarantors
party thereto and Bank of America, N.A., as Administrative Agent
|
|
|
|
10.2
|
|
Supplement to Guaranty dated as of December 31, 2009 under the
Guaranty Agreement, dated as of October 1, 2008, among Willis North
America Inc., Willis Group Holdings Limited, the other Guarantors
party thereto and Bank of America, N.A., as Administrative Agent
|
|
|
|
10.3
|
|
Fourth Amendment dated as of November 18, 2009 to the Credit
Agreement, dated as of October 1, 2009, among Willis North America
Inc., Willis Group Holdings Limited, the Lenders party thereto, Bank
of America, N.A., as Administrative Agent and Swing Line Lender, and
Bank of America Securities LLC, as Sole Lead Arranger
|
|
|
|
|
|
10.4
|
|
Deed Poll of Assumption dated as of
December 31, 2009 between Willis Group Holdings Limited and Willis Group Limited Public Limited Company
|
|
|
|
|
|
10.5
|
|
1998 Share Purchase and Option Plan for Key Employees of
Willis Group Holdings
|
|
|
|
|
|
10.6
|
|
Willis Award Plan for Key Employees of Willis Group Holdings
|
|
|
|
|
|
10.7
|
|
Willis Group Senior Management Incentive Plan
|
|
|
|
|
|
10.8
|
|
Willis Group Holdings 2001 North America Employee Share Purchase Plan
|
|
|
|
|
|
10.9
|
|
Willis Group Holdings 2001 Share Purchase and Option Plan
|
|
|
|
|
|
10.10
|
|
Form of Performance-Based Option
Agreement under the Willis Group Holdings 2001 Share Purchase and Option Plan
|
|
|
|
|
|
10.11
|
|
The Willis Group Holdings 2001 Bonus and Share Plan
|
|
|
|
|
|
10.12
|
|
The Willis Group Holdings 2004 Bonus and Share Plan
|
|
|
|
|
|
10.13
|
|
Rules of the Willis Group Holdings Sharesave Plan 2001 for the United Kingdom
|
|
|
|
|
|
10.14
|
|
The Willis Group Holdings Irish Sharesave Plan
|
20
|
|
|
|
|
Exhibit
|
|
|
|
Number
|
|
Description
|
|
10.15
|
|
The Willis Group Holdings International Sharesave Plan
|
|
|
|
|
|
10.16
|
|
Willis Group Holdings 2008 Share Purchase and Option Plan
|
|
|
|
|
|
10.17
|
|
Form of Performance-Based
Restricted Share Units Award Agreement under the Willis Group Holdings 2008 Share Purchase and Option Plan
|
|
|
|
|
|
10.18
|
|
Hilb, Rogal and Hamilton Company 2000 Share Incentive Plan
|
|
|
|
|
|
10.19
|
|
Hilb Rogal & Hobbs Company 2007 Share Incentive Plan
|
|
|
|
|
|
10.20
|
|
Form of Deed of Indemnity of Willis Group Limited Public Limited Company
|
|
|
|
|
|
10.21
|
|
Form of Indemnification Agreement of Willis North America Inc.
|
|
|
|
|
|
10.22
|
|
Letter dated as of December 30, 2009 regarding Amended and Restated
Employment Agreement, dated as of March 25, 2001 (as amended),
between Willis Group Holdings Limited, Willis North America Inc. and Joseph J. Plumeri
|
|
|
|
|
|
99.1
|
|
Press Release, dated December 31, 2009
|
21
Exhibit 3.1
Memorandum and Articles of Association
Companies Acts 1963 to 2009
A PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM and ARTICLES OF ASSOCIATION
of
WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY
Arthur Cox
Arthur Cox Building
Earlsfort Terrace
Dublin 2
1
Cert.
No.: 475616
Companies
Acts 1963 to 2009
A PUBLIC
COMPANY LIMITED BY SHARES
MEMORANDUM
OF ASSOCIATION
-of-
WILLIS
GROUP HOLDINGS PUBLIC LIMITED COMPANY
1. The name of the Company is Willis Group Holdings Public
Limited Company.
2. The Company is to be a public limited company.
3. The objects for which the Company is established are:
3.1 (a) To carry on the business of a holding company
and to co-ordinate the administration, finances and activities
of any subsidiary companies or associated companies, to do all
lawful acts and things whatever that are necessary or convenient
in carrying on the business of such a holding company and in
particular to carry on in all its branches the business of a
management services company, to act as managers and to direct or
coordinate the management of other companies or of the business,
property and estates of any company or person and to undertake
and carry out all such services in connection therewith as may
be deemed expedient by the Company’s board of directors and
to exercise its powers as a shareholder of other companies.
(b) To acquire the entire issued share capital of Willis
Group Holdings Limited, a Bermudan registered company.
(c)To carry on the business of consulting services regarding
global insurance brokerage, reinsurance, financial services and
risk management, and to do all things usually dealt in by all
persons carrying on the above mentioned businesses or any of
them or likely to be required in connection with any of the said
businesses.
3.2 To acquire shares, stocks, debentures, debenture stock,
bonds, obligations and securities by original subscription,
tender, purchase, exchange or otherwise and to subscribe for the
same either conditionally or otherwise, and to guarantee the
subscription thereof and to exercise and enforce all rights and
powers conferred by or incidental to the ownership thereof.
3.3 To facilitate and encourage the creation, issue or
conversion of and to offer for public subscription shares,
stocks, debentures, debenture stock, bonds, obligations and
securities and to act as trustees in connection with any such
securities and to take part in the conversion of business
concerns and undertakings into companies.
3.4 To purchase or by any other means acquire any freehold,
leasehold or other property and in particular lands, tenements
and hereditaments of any tenure, whether subject or not to any
charges or encumbrances, for any estate or interest whatever,
and any rights, privileges or easements over or in respect of
any property, and any buildings, factories, mills, works,
wharves, roads, machinery, engines, plant, live and dead stock,
barges, vessels or things, and any real or personal property or
rights whatsoever which may be necessary for, or may
conveniently be used with, or may enhance the value or property
of the Company, and to hold or to sell, let, alienate, mortgage,
charge or otherwise deal with all or any such freehold,
leasehold, or other property, lands, tenements or hereditaments,
rights, privileges or easements.
3.5 To sell or otherwise dispose of any of the property or
investments of the Company.
3.6 To establish and contribute to any scheme for the
purchase of shares in the Company to be held for the benefit of
employees
and/or
former employees of the Company and any of its subsidiaries and
to
2
lend or otherwise provide money to such schemes or the employees
and/or
former employees of the Company and any of its subsidiaries to
enable them to purchase shares of the Company.
3.7 To grant, convey, transfer or otherwise dispose of any
property or asset of the Company of whatever nature or tenure
for such price, consideration, sum or other return whether equal
to or less than the market value thereof and whether by way of
gift or otherwise as the directors of the Company shall deem fit
and to grant any fee farm grant or lease or to enter into any
agreement for letting or hire of any such property or asset for
a rent or return equal to or less than the market or rack rent
therefor or at no rent and subject to or free from covenants and
restrictions as the directors of the Company shall deem
appropriate.
3.8 To acquire and undertake the whole or any part of the
business, goodwill and assets of any person, firm or company
carrying on or proposing to carry on any of the businesses which
the Company is authorised to carry on, and as part of the
consideration for such acquisition to undertake all or any of
the liabilities of such person, firm or company, or to acquire
an interest in, amalgamate with, or enter into any arrangement
for sharing profits, or for co-operation, or for limiting
competition or for mutual assistance with any such person, firm
or company and to give or accept by way of consideration for any
of the acts or things aforesaid or property acquired, any
shares, stocks, debentures, debenture stock, bonds, obligations
and securities that may be agreed upon, and to hold and retain
or sell, mortgage or deal with any shares, stocks, debentures,
debenture stock, bonds, obligations and securities so received.
3.9 To apply for, purchase or otherwise acquire any
patents, brevets d’invention, licences, concessions and the
like conferring any exclusive or non-exclusive or limited rights
to use or any secret or other information as to any invention
which may seem capable of being used for any of the purposes of
the Company or the acquisition of which may seem calculated
directly or indirectly to benefit the Company, and to use,
exercise, develop or grant licences in respect of or otherwise
turn to account the property, rights or information so acquired.
3.10 To enter into partnership or into any arrangement for
sharing profits, union of interests,
co-operation,
joint venture, reciprocal concession or otherwise with any
person or company carrying on or engaged in or about to carry on
or engage in any business or transaction which the Company is
authorised to carry on or engage in or any business or
transaction capable of being conducted so as directly to benefit
the Company.
3.11 To invest and deal with the moneys of the Company not
immediately required upon such securities and in such manner as
may from time to time be determined.
3.12 To lend money to and guarantee the performance of the
contracts or obligations of any company, firm or person, and the
repayment of the capital and principal of, and dividends,
interest or premiums payable on, any stock, shares and
securities of any company, whether having objects similar to
those of the Company or not, and to give all kinds of
indemnities.
3.13 To engage in currency exchange and interest rate
transactions including, but not limited to, dealings in foreign
currency, spot and forward rate exchange contracts, futures,
options, forward rate agreements, swaps, caps, floors, collars
and any other foreign exchange or interest rate hedging
arrangements and such other instruments as are similar to, or
derived from, any of the foregoing whether for the purpose of
making a profit or avoiding a loss or managing a currency or
interest rate exposure or any other exposure or for any other
purpose.
3.14 To guarantee, support or secure, whether by personal
covenant or by mortgaging or charging all or any part of the
undertaking, property and assets (both present and future) and
uncalled capital of the Company, or by both such methods, the
performance of the obligations of, and the repayment or payment
of the principal amounts of and premiums, interest and dividends
on any securities of, any person, firm or company including
(without prejudice to the generality of the foregoing) any
company which is for the time being the Company’s holding
company as defined by section 155 of the Companies Act 1963
or a subsidiary as therein defined of any such holding company
or otherwise associated with the Company in business.
3
3.15 To borrow or secure the payment of money in such
manner as the Company shall think fit, and in particular by the
issue of shares, stocks, debentures, debenture stock, bonds,
obligations and securities of all kinds, either perpetual or
terminable and either redeemable or otherwise and to secure the
repayment of any money borrowed, raised or owing by trust deed,
mortgage, charge, or lien upon the whole or any part of the
Company’s property or assets (whether present or future)
including its uncalled capital, and also by a similar trust
deed, mortgage, charge or lien to secure and guarantee the
performance by the Company of any obligation or liability it may
undertake.
3.16 To draw, make, accept, endorse, discount, execute,
negotiate and issue promissory notes, bills of exchange, bills
of lading, warrants, debentures and other negotiable or
transferable instruments.
3.17 To subscribe for, take, purchase or otherwise acquire
and hold shares or other interests in, or securities of any
other company having objects altogether or in part similar to
those of the Company, or carrying on any business capable of
being conducted so as directly or indirectly to benefit the
Company.
3.18 To hold in trust as trustees or as nominees and to
deal with, manage and turn to account, any real or personal
property of any kind, and in particular shares, stocks,
debentures, debenture stock, bonds, obligations, securities,
policies, book debts, claims and choses in actions, lands,
buildings, hereditaments, business concerns and undertakings,
mortgages, charges, annuities, patents, licences, and any
interest in real or personal property, and any claims against
such property or against any person or company.
3.19 To constitute any trusts with a view to the issue of
preferred and deferred or other special stocks or securities
based on or representing any shares, stocks and other assets
specifically appropriated for the purpose of any such trust and
to settle and regulate and if thought fit to undertake and
execute any such trusts and to issue dispose of or hold any such
preferred, deferred or other special stocks or securities.
3.20 To give any guarantee in relation to the payment of
any debentures, debenture stock, bonds, obligations or
securities and to guarantee the payment of interest thereon or
of dividends on any stocks or shares of any company.
3.21 To construct, erect and maintain buildings, houses,
flats, shops and all other works, erections, and things of any
description whatsoever either upon the lands acquired by the
Company or upon other lands and to hold, retain as investments
or to sell, let, alienate, mortgage, charge or deal with all or
any of the same and generally to alter, develop and improve the
lands and other property of the Company.
3.22 To provide for the welfare of persons in the
employment of or holding office under or formerly in the
employment of or holding office under the Company including
directors and
ex-directors
of the Company and the spouses, widows or widowers and families,
dependants or connections of such persons by grants of money,
pensions or other payments and by forming and contributing to
pension, provident or benefit funds or profit sharing or
co-partnership schemes for the benefit of such persons and to
form, subscribe to or otherwise aid charitable, benevolent,
religious, scientific, national or other institutions,
exhibitions or objects which shall have any moral or other
claims to support or aid by the Company by reason of the
locality of its operation or otherwise.
3.23 To remunerate by cash payments or allotment of shares
or securities of the Company credited as fully-paid up or
otherwise any person or company for services rendered or to be
rendered to the Company whether in the conduct or management of
its business, or in placing or assisting to place or
guaranteeing the placing of any of the shares of the
Company’s capital, or any debentures or other securities of
the Company or in or about the formation or promotion of the
Company.
3.24 To enter into and carry into effect any arrangement
for joint working in business or for sharing of profits or for
amalgamation with any other company or association or any
partnership or person carrying on any business within the
objects of the Company.
3.25 To distribute in specie or otherwise as may be
resolved, any assets of the Company among its members and in
particular the shares, debentures or other securities of any
other company belonging to the Company or of which the Company
may have the power of disposing.
4
3.26 To vest any real or personal property, rights or
interest acquired or belonging to the Company in any person or
company on behalf of or for the benefit of the Company, and with
or without any declared trust in favour of the Company.
3.27 To transact or carry on any business which may seem to
be capable of being conveniently carried on in connection with
any of these objects or calculated directly or indirectly to
enhance the value of or facilitate the realisation of or render
profitable any of the Company’s property or rights.
3.28 To accept stock or shares in or debentures, mortgages
or securities of any other company in payment or part payment
for any services rendered or for any sale made to or debt owing
from any such company, whether such shares shall be wholly or
partly paid up.
3.29 To pay all costs, charges and expenses incurred or
sustained in or about the promotion and establishment of the
Company or which the Company shall consider to be preliminary
thereto and to issue shares as fully or in part paid up, and to
pay out of the funds of the Company all brokerage and charges
incidental thereto.
3.30 To procure the Company to be registered or recognised
in any foreign country or in any colony or dependency of any
such foreign country.
3.31 To do all or any of the matters hereby authorised in
any part of the world or in conjunction with or as trustee or
agent for any other company or person or by or through any
factors, trustees or agents.
3.32 To make gifts or grant bonuses to the directors of the
Company or any other persons who are or have been in the
employment of the Company.
3.33 To do all such other things that the Company may
consider incidental or conducive to the attainment of the above
objects or as are usually carried on in connection therewith.
3.34 To carry on any business which the Company may
lawfully engage in and to do all such things incidental or
conducive to the business of the Company.
3.35 To make or receive gifts by way of capital
contribution or otherwise.
The objects set forth in any
sub-clause
of this clause shall be regarded as independent objects and
shall not, except, where the context expressly so requires, be
in any way limited or restricted by reference to or inference
from the terms of any other
sub-clause,
or by the name of the Company. None of such
sub-clauses
or the objects therein specified or the powers thereby conferred
shall be deemed subsidiary or auxiliary merely to the objects
mentioned in the first
sub-clause
of this clause, but the Company shall have full power to
exercise all or any of the powers conferred by any part of this
clause in any part of the world notwithstanding that the
business, property or acts proposed to be transacted, acquired
or performed do not fall within the objects of the first
sub-clause
of this clause.
NOTE: It is hereby declared that the word
“company”
in this clause, except where used in reference to the
Company shall be deemed to include any partnership or other body
of persons whether incorporated or not incorporated and whether
domiciled in Ireland or elsewhere and the intention is that the
objects specified in each paragraph of this clause shall, except
where otherwise expressed in such paragraph, be in no way
limited or restricted by reference to or inference from the
terms of any other paragraph.
4. The liability of the members is limited.
5. The share capital of the Company is €40,000
divided into 40,000 ordinary shares of €1.00 each and
US$575,000 divided into 4,000,000,000 ordinary shares of
US$0.000115 each and 1,000,000,000 preferred shares of
US$0.000115 each.
6. The shares forming the capital, increased or reduced,
may be increased or reduced and be divided into such classes and
issued with any special rights, privileges and conditions or
with such qualifications as regards preference, dividend,
capital, voting or other special incidents, and be held upon
such terms as may be attached thereto or as may from time to
time be provided by the original or any substituted or amended
5
articles of association and regulations of the Company for the
time being, but so that where shares are issued with any
preferential or special rights attached thereto such rights
shall not be alterable otherwise than pursuant to the provisions
of the Company’s articles of association for the time being.
We, the several persons whose names and addresses are
subscribed, wish to be formed into a company in pursuance of
this memorandum of association and we agree to take the number
of shares in the capital of the company set opposite our
respective names.
|
|
|
|
|
|
|
Number of Shares Taken
|
|
Names, Addresses and Descriptions of Subscribers
|
|
by Each Subscriber
|
|
|
|
Willis Group Holdings Limited
Canon’s Court
22 Victoria Street
Hamilton HM 12
Bermuda
|
|
Thirty Nine Thousand, Nine Hundred
and Ninety Four Ordinary Share
|
|
For and on behalf of
Attleborough Limited
Arthur Cox Building
Earlsfort Terrace
Dublin 2
|
|
One Ordinary Share
|
|
For and on behalf of
Fand Limited
Arthur Cox Building
Earlsfort Terrace
Dublin 2
|
|
One Ordinary Share
|
|
For and on behalf of
AC Administration Services Limited
Arthur Cox Building,
Earlsfort Terrace
Dublin 2
|
|
One Ordinary Share
|
|
Jacqueline McGowan-Smyth
Arthur Cox Building,
Earlsfort Terrace,
Dublin 2 Company Secretary
|
|
One Ordinary Share
|
|
James Heary
Arthur Cox Building,
Earlsfort Terrace,
Dublin 2 Chartered Accountant
|
|
One Ordinary Share
|
|
Emma Hickey
Arthur Cox Building,
Earlsfort Terrace,
Dublin 2 Company Secretary
|
|
One Ordinary Share
|
Dated the 23rd day of September 2009
|
|
|
|
|
Witness to the above signatures:
|
|
Louise Gaffney
Arthur Cox Building,
Earlsfort Terrace, Dublin 2
|
6
COMPANIES
ACTS 1963 TO 2009
A PUBLIC
COMPANY LIMITED BY SHARES
ARTICLES OF
ASSOCIATION
-of-
WILLIS
GROUP HOLDINGS PUBLIC LIMITED COMPANY
PRELIMINARY
1. The regulations contained in Table A in the First
Schedule to the Companies Act 1963 shall not apply to the
Company.
2. (a) In these articles:-
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“
Act
”
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means the Companies Act, 1963 (No. 3.3 of 1963) as
amended by the Companies Acts 1977 to 2005, Parts 2 and 3 of the
Investment Funds, Companies and Miscellaneous Provisions Act
2006 and the Companies (Amendment) Act 2009, and all statutory
instruments which are to be read as one with, or construed, or
to be read together with the Acts;
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“
1983 Act
”
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means the Companies (Amendment) Act 1983;
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“
1990 Act
”
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means the Companies Act 1990 (No. 33 of 1990);
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“
Acts
”
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means the Companies Acts, 1963 to 2005, Parts 2 and 3 of the
Investment Funds, Companies and Miscellaneous Provisions Act
2006 and the Companies (Amendment) Act 2009, all statutory
instruments which are to be read as one with, or construed or
read together with or as one with, the Companies Acts and every
statutory modification and re-enactment thereof for the time
being in force;
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“
address
”
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includes any number or address used for the purposes of
communication by way of electronic mail or other electronic
communication;
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“
Business Day
”
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means a day (other than a Saturday or a Sunday or public holiday
in Ireland) on which clearing banks are generally open for
business in Dublin and New York;
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“
Clear Days
”
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in relation to the period of notice, that period excluding the
day when the notice is given or deemed to be given and the day
for which it is given or on which it is to take effect;
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“
Company
”
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means the company whose name appears in the heading to these
articles;
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“
Directors
” or “
the Board
”
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means the directors from time to time and for the time being of
the Company or the directors present at a meeting of the board
of directors and includes any person occupying the position of
director by whatever name called;
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“
electronic communication
”
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has the meaning given to those words in the Electronic Commerce
Act 2000;
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“
electronic signature
”
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has the meaning given to those words in the Electronic Commerce
Act 2000;
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“Ordinary Resolution
”
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means an ordinary resolution of the Company’s shareholders
within the meaning of Section 141 of the Act;
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“
redeemable shares
”
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means redeemable shares in accordance with Section 206 of
the 1990 Act;
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“
shareholder
”
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in relation to any share, the member whose name is entered in
the Register as the holder of the share or, where the context
permits, the members whose names are entered in the Register as
the joint holders of shares;
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“
Special Resolution
”
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means a special resolution of the Company’s shareholders
within the meaning of Section 141 of the Act;
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“the office
”
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means, where the context so permits, the registered office from
time to time and for the time being of the Company;
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“
the Register
”
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means the register of members to be kept as required by
section 116 of the Act;
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“
the seal
”
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means the common seal of the Company and includes any duplicate
thereof;
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“
the Secretary
”
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means any person appointed to perform the duties of the
secretary of the Company;
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“
the State
”
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means the island of Ireland excluding Northern Ireland; and
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“
these articles
”
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means the articles of association of which this article forms
part, as the same may be amended and may be from time to time
and for the time being in force.
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(b) Expressions in these articles referring to writing
shall be construed, unless the contrary intention appears, as
including references to printing, lithography, photography and
any other modes of representing or reproducing words in a
visible form except as provided in these articles
and/or
where
it constitutes writing in electronic form sent to the Company,
and the Company has agreed to its receipt in such form.
Expressions in these articles referring to execution of any
document shall include any mode of execution whether under seal
or under hand or any mode of electronic signature as shall be
approved by the Directors. Expressions in these articles
referring to receipt of any electronic communications shall,
unless the contrary intention appears, be limited to receipt in
such manner as the Company has approved.
(c) Unless the contrary intention appears, words or
expressions contained in these articles shall bear the same
meaning as in the Acts or in any statutory modification thereof
in force at the date at which these articles become binding on
the Company.
(d) References herein to any enactment shall mean such
enactment as the same may be amended and may be from time to
time and for the time being in force (and include any successor
enactments).
(e) The masculine gender shall include the feminine and
neuter, and vice versa, and the singular number shall include
the plural, and vice versa, and words importing persons shall
include firms or companies.
(f) Reference to US$, USD or dollars shall mean the
currency of the United States of America and to euro, EUR,
€ or cent shall mean the currency of Ireland.
8
SHARE
CAPITAL AND VARIATION OF RIGHTS
3. The share capital of the Company is €40,000
divided into 40,000 ordinary shares of €1.00 each and
US$575,000 divided into 4,000,000,000 ordinary shares of
US$0.000115 each and 1,000,000,000 preferred shares of
US$0.000115 each.
4. The rights and restrictions attaching to the ordinary
shares shall be as follows:
(a) subject to the right of the Company to set record dates
for the purposes of determining the identity of shareholders
entitled to notice of
and/or
to
vote at a general meeting and the authority of the Board and
chairman of the meeting to maintain order and security, the
right to attend, speak and vote at any general meeting of the
Company as provided in these articles;
(b) the right to participate
pro rata
in all
dividends declared by the Company as provided in these
articles: and
(c) the right, in the event of the Company’s winding
up, to participate
pro rata
in the total assets of the
Company.
The rights attaching to the ordinary shares may be subject to
the terms of issue of any series or class of preferred shares
allotted by the Directors from time to time in accordance with
article 5.
5. The Board is empowered, subject to the Acts, to cause
the preferred shares to be issued from time to time as shares of
one or more class or series of preferred shares, with the
sanction of a resolution of the Board, on terms:
(a) that the Board can fix the distinctive designation of
such class or series and the number of shares which shall
constitute such class or series, which number may be increased
(except as otherwise provided by the Board in creating such
series) or decreased (but not below the number of shares thereof
then in issue) from time to time by resolution of the Board;
(b) that they are to be redeemed (the manner and terms of
redemption in all cases to be set by the Board) on the happening
of a specified event or on a given date;
(c) that they are liable to be redeemed at the option of
the Company;
(d) that they are liable to be redeemed at the option of
the holder; and/or
(e) with any such other preferred, deferred, qualified or
other special rights or such restrictions, whether in regard to
dividend, voting, return of capital, conversion or otherwise, as
the Board by resolution shall determine.
The Board is authorised to change the designations, rights,
preferences and limitations of any series of preferred shares
theretofore established, no shares of which have been issued.
6. An ordinary share shall be converted into a redeemable
share on, and from the time of, the existence or creation of an
agreement, transaction or trade between the Company and any
third party pursuant to which the Company would otherwise
acquire the ordinary share from the relevant third party. In
these circumstances, the acquisition of such ordinary share by
the Company shall take effect as a redemption of a redeemable
share in accordance with Part XI of the 1990 Act. An
ordinary share shall not be converted into a redeemable share
under this article if it would cause a breach of the limit in
Section 210(4) of the 1990 Act.
7. Subject to the provisions of Part XI of the 1990
Act and the other provisions of this article, the Company may:
(a) pursuant to Section 207 of the 1990 Act, issue any
shares of the Company that are to be redeemed or are liable to
be redeemed at the option of the Company or the shareholder on
such terms and in such manner as may be determined by the
Company in general meeting (by Special Resolution) on the
recommendation of the Directors;
9
(b) pursuant to Section 211 of the 1990 Act, purchase
any of its own shares (without any obligation to purchase on any
pro rata
basis as between shareholders or shareholders of
the same class) and may cancel any shares so purchased or hold
them as treasury shares (as defined in Section 209 of the
1990 Act) and may reissue any such shares as shares of any class
or classes; and
(c) pursuant to Section 210 of the 1990 Act, convert
any of its shares (including any shares that the Company has
agreed to purchase) into redeemable shares.
8. Without prejudice to any special rights previously
conferred on the holders of any existing shares or class of
shares, any share in the Company may be issued with such
preferred or deferred or other special rights or such
restrictions, whether in regard to dividend, voting, return of
capital or otherwise, as the Company may from time to time by
Ordinary Resolution determine.
9. (a) Without prejudice to the authority of the
Directors pursuant to article 5, if at any time the share
capital is divided into different classes of shares the rights
attached to any class may, whether or not the Company is being
wound up, be varied or abrogated with the sanction of an
Ordinary Resolution passed at a separate general meeting of the
holders of the shares of that class. To every such separate
general meeting the provisions of article 55 will apply.
(b) The redemption or purchase of preferred shares or any
class or series of preferred shares shall not constitute a
variation of rights of the holders of preferred shares where the
redemption or purchase of the preferred shares has been
authorised solely by a resolution of the holders of ordinary
shares.
(c) The issue, redemption or purchase of any of the
preferred shares or any class or series of preferred shares
shall not constitute a variation of the rights of the holders of
ordinary shares.
10. The rights conferred upon the holders of the shares of
any class or series issued with preferred or other rights shall
not, unless otherwise expressly provided by the terms of issue
of the shares of that class, be deemed to be varied by the
creation, issue or allotment of further shares of any class or
series (including the same class) ranking senior to,
pari
passu
with or junior to such shares.
11. (a) Subject to the provisions of these articles
relating to new shares, the shares shall be at the disposal of
the Directors, and they may (subject to the provisions of the
Acts) allot, grant options over or otherwise dispose of them to
such persons, on such terms and conditions and at such times as
they may consider to be in the best interests of the Company and
its shareholders, but so that no share shall be issued at a
discount and so that, in the case of shares offered to the
public for subscription, the amount payable on application on
each share shall not be less than one-quarter of the nominal
amount of the share and the whole of any premium thereon.
(b) Subject to any requirement to obtain the approval of
shareholders under any laws, regulations or the rules of any
stock exchange to which the Company is subject, the Board is
authorised, from time to time, in its discretion, to grant such
persons, for such periods and upon such terms as the Board deems
advisable, options to purchase or subscribe for such number of
shares of any class or classes or of any series of any class as
the Board may deem advisable, and to cause warrants or other
appropriate instruments evidencing such options to be issued.
(c) The Directors are, for the purposes of Section 20
of the 1983 Act, generally and unconditionally authorised to
exercise all powers of the Company to allot and issue relevant
securities (as defined by the said Section 20) up to
the amount of Company’s authorised share capital as at the
date of adoption of these articles and to allot and issue any
shares purchased by the Company pursuant to the provisions of
Part XI of the 1990 Act and held as treasury shares and
this authority shall expire five years from the date of adoption
of these articles.
(d) The Directors are hereby empowered pursuant to
sections 23 and 24(1) of the 1983 Act to allot equity
securities within the meaning of the said section 23 for
cash pursuant to the authority conferred by paragraph
(c) of this article as if section 23(1) of the said
Act did not apply to any such allotment. The Company may before
the expiry of such authority make an offer or agreement that
would or might require equity securities to
10
be allotted after such expiry and the Directors may allot equity
securities in pursuance of such an offer or agreement as if the
power conferred by this paragraph (d) had not expired.
(e) Nothing in these articles shall preclude the Directors
from recognising a renunciation of the allotment of any shares
by any allottee in favour of some other person.
12. The Company may pay commission to any person in
consideration of a person subscribing or agreeing to subscribe,
whether absolutely or conditionally, for any shares in the
Company or procuring or agreeing to procure subscriptions,
whether absolute or conditional, for any shares in the Company
on such terms and subject to such conditions as the Directors
may determine, including, without limitation, by paying cash or
allotting and issuing fully or partly paid shares or any
combination of the two. The Company may also, on any issue of
shares, pay such brokerage as may be lawful.
13. Except as required by law, no person shall be
recognised by the Company as holding any share upon any trust,
and the Company shall not be bound by or be compelled in any way
to recognise (even when having notice thereof) any equitable,
contingent, future or partial interest in any share or any
interest in any fractional part of a share or (except only as by
these articles or by law otherwise provided) any other rights in
respect of any share except an absolute right to the entirety
thereof in the registered holder; this shall not preclude the
Company from requiring the shareholders or a transferee of
shares to furnish the Company with information as to the
beneficial ownership of any share when such information is
reasonably required by the Company.
14. Subject to the provisions of the Acts, the Company may
keep one or more overseas or branch registers in any place, and
the Board may make, amend and revoke any such regulations as it
may think fit respecting the keeping of such registers.
15. No person shall be entitled to a share certificate in
respect of any ordinary share held by them in the share capital
of the Company, whether such ordinary share was allotted or
transferred to them, and the Company shall not be bound to issue
a share certificate to any such person entered in the Register.
16. The Company shall not give, whether directly or
indirectly and whether by means of a loan, guarantee, the
provision of security or otherwise, any financial assistance for
the purpose of or in connection with a purchase or subscription
made or to be made by any person of or for any shares in the
Company or in its holding company, except as permitted by
section 60 of the Act.
LIEN
17. The Company shall have a first and paramount lien on
every share (not being a fully-paid share) for all moneys
(whether immediately payable or not) called or payable at a
fixed time in respect of that share but the Directors may at any
time declare any share to be wholly or in part exempt from the
provisions of this regulation. The Company shall also hold a
first and paramount lien on every share registered in the name
of a person indebted or under any liability to the Company
(whether such person is the sole registered holder or one of two
or more joint holders) for all amounts owed by him or his estate
to the Company (whether presently payable or not). The
Company’s lien on a share shall extend to all dividends
payable thereon and the Company may retain any dividends or
other moneys payable on or in respect of a share on which the
Company has a lien and may apply the same in or towards
satisfaction of the moneys payable to the Company in respect of
that share.
18. The Company may sell, in such manner as the Directors
think fit, any shares on which the Company has a lien, but no
sale shall be made unless a sum in respect of which the lien
exists is immediately payable, nor until the expiration of
14 days after a notice in writing, stating and demanding
payment of such part of the amount in respect of which the lien
exists as is immediately payable, has been given to the
registered holder for the time being of the share or the person
entitled thereto by reason of his death or bankruptcy.
19. To give effect to any such sale, the Directors may
authorise some person to transfer the shares sold to the
purchaser thereof. The purchaser shall be registered as the
holder of the shares comprised in any such transfer, and he
shall not be bound to see to the application of the purchase
money nor shall his title to the shares be affected by any
irregularity or invalidity in the proceedings in reference to
the sale.
11
20. The proceeds of the sale shall be received by the
Company and applied in payment of such part of the amount in
respect of which the lien exists as is immediately payable, and
the residue, if any, shall (upon surrender to the Company for
cancellation of the certificates for the shares sold (if
applicable) and subject to a like lien for sums not immediately
payable as existed upon the shares before the sale) be paid to
the person entitled to the shares at the date of the sale.
21. Whenever any law for the time being of any country,
state or place imposes or purports to impose any immediate or
future or possible liability upon the Company to make any
payment or empowers any government or taxing authority or
government official to require the Company to make any payment
in respect of any shares registered in the Register as held
either jointly or solely by any shareholder or in respect of any
dividends, bonuses or other monies due or payable or accruing
due or which may become due or payable to such shareholder by
the Company on or in respect of any shares registered as
aforesaid or for or on account or in respect of any shareholder
and whether in consequence of:
(a) the death of such shareholder;
(b) the non-payment of any income tax or other tax by such
shareholder;
(c) the non-payment of any estate, probate, succession,
death, stamp, or other duty by the executor or administrator of
such shareholder or by or out of his estate; or
(d) any other act or thing;
in every such case (except to the extent that the rights
conferred upon holders of any class of shares render the Company
liable to make additional payments in respect of sums withheld
on account of the foregoing):
(a) the Company shall be fully indemnified by such
shareholder or his executor or administrator from all liability;
(b) the Company shall have a lien upon all dividends and
other monies payable in respect of the shares registered in the
Register as held either jointly or solely by such shareholder
for all monies paid or payable by the Company in respect of such
shares or in respect of any dividends or other monies as
aforesaid thereon or for or on account or in respect of such
shareholder under or in consequence of any such law together
with interest at the rate of 15% per annum thereon from the date
of payment to date of repayment and may deduct or set off
against such dividends or other monies payable as aforesaid any
monies paid or payable by the Company as aforesaid together with
interest as aforesaid;
(c) the Company may recover as a debt due from such
shareholder or his executor or administrator wherever
constituted any monies paid by the Company under or in
consequence of any such law and interest thereon at the rate and
for the period aforesaid in excess of any dividends or other
monies as aforesaid then due or payable by the Company; and
(d) the Company may if any such money is paid or payable by
it under any such law as aforesaid refuse to register a transfer
of any shares by any such shareholder or his executor or
administrator until such money and interest as aforesaid is set
off or deducted as aforesaid or in case the same exceeds the
amount of any such dividends or other monies as aforesaid then
due or payable by the Company until such excess is paid to the
Company.
Subject to the rights conferred upon the holders of any class of
shares, nothing herein contained shall prejudice or affect any
right or remedy which any law may confer or purport to confer on
the Company and as between the Company and every such
shareholder as aforesaid, his executor, administrator and estate
wheresoever constituted or situate, any right or remedy which
such law shall confer or purport to confer on the Company shall
be enforceable by the Company.
CALLS ON
SHARES
22. The Directors may from time to time make calls upon the
shareholders in respect of any monies unpaid on their shares
(whether on account of the nominal value of the shares or by way
of premium) and not
12
by the conditions of allotment thereof made payable at fixed
times, and each shareholder shall (subject to receiving at least
14 days notice specifying the time or times and place of
payment) pay to the Company at the time or times and place so
specified the amount called on his shares. A call may be revoked
or postponed as the Directors may determine.
23. A call shall be deemed to have been made at the time
when the resolution of the Directors authorising the call was
passed and may be required to be paid by instalments.
24. The joint holders of a share shall be jointly and
severally liable to pay all calls in respect thereof.
25. If a sum called in respect of a share is not paid
before or on the day appointed for payment thereof, the person
from whom the sum is due shall pay interest on the sum from the
day appointed for payment thereof to the time of actual payment
at such rate as the Directors may determine, but the Directors
shall be at liberty to waive payment of such interest wholly or
in part.
26. Any sum which by the terms of issue of a share becomes
payable on allotment or at any fixed date, whether on account of
the nominal value of the share or by way of premium, shall for
the purpose of these articles be deemed to be a call duly made
and payable on the date on which, by the terms of issue, the
same becomes payable, and in case of non-payment all the
relevant provisions of these articles as to payment of interest
and expenses, forfeiture or otherwise, shall apply as if such
sum had become payable by virtue of a call duly made and
notified.
27. The Directors may, on the issue of shares,
differentiate between the holders as to the amount of calls to
be paid and the time of payment.
TRANSFER
OF SHARES
28. (a) The instrument of transfer of any share may be
executed for and on behalf of the transferor by the Secretary or
an Assistant Secretary, and the Secretary or Assistant Secretary
shall be deemed to have been irrevocably appointed agent for the
transferor of such share or shares with full power to execute,
complete and deliver in the name of and on behalf of the
transferor of such share or shares all such transfers of shares
held by the shareholders in the share capital of the Company.
Any document which records the name of the transferor, the name
of the transferee, the class and number of shares agreed to be
transferred and the date of the agreement to transfer shares,
shall, once executed by the transferor or the Secretary or
Assistant Secretary as agent for the transferor, be deemed to be
a proper instrument of transfer for the purposes of
Section 81 of the Act. The transferor shall be deemed to
remain the holder of the share until the name of the transferee
is entered on the Register in respect thereof, and neither the
title of the transferee nor the title of the transferor shall be
affected by any irregularity or invalidity in the proceedings in
reference to the sale should the Directors so determine.
(b) The Company, at its absolute discretion, may, or may
procure that a subsidiary of the Company or any other person
shall, pay Irish stamp duty arising on a transfer of shares on
behalf of the transferee of such shares of the Company. If stamp
duty resulting from the transfer of shares in the Company, which
would otherwise be payable by the transferee, is paid by the
Company or any subsidiary of the Company on behalf of and as
agent for the transferee, then in those circumstances, the
Company shall, on its behalf or on behalf of its subsidiary (as
the case may be), be entitled to (i) seek reimbursement of
the stamp duty from the transferor or transferee (at its
discretion), (ii) set-off the stamp duty against any
dividends payable to the transferor or transferee (at its
discretion) and (iii) to claim a first and permanent lien
on the shares on which stamp duty has been paid by the Company
or its subsidiary for the amount of stamp duty paid. The
Company’s lien shall extend to all dividends paid on those
shares.
(c) Notwithstanding the provisions of these articles and
subject to any regulations made under Section 239 of the
1990 Act, title to any shares in the Company may also be
evidenced and transferred without a written instrument in
accordance with Section 239 of the 1990 Act or any
regulations made thereunder. The Directors shall have power to
permit any class of shares to be held in uncertificated form and
to implement any arrangements they think fit for such evidencing
and transfer which accord with such regulations and in
particular shall, where appropriate, be entitled to disapply or
modify all or part of the provisions in these
13
articles with respect to the requirement for written instruments
of transfer and share certificates (if any), in order to give
effect to such regulations.
29. Subject to such of the restrictions of these articles
and to such of the conditions of issue of any share warrants as
may be applicable, the shares of any shareholder and any share
warrant may be transferred by instrument in writing in any usual
or common form or any other form which the Directors may approve.
30. If the Company is under a contractual obligation to
register or to refuse to register the transfer of a share to any
person, the Board shall act in accordance with such obligation
and register or refuse to register the transfer of a share to
such person, whether or not it is a fully-paid share or a share
on which the Company has a lien. Subject to the foregoing
sentence, the Directors in their absolute discretion and without
assigning any reason therefor may decline to register any
transfer of a share whether or not it is a fully-paid share or a
share on which the Company has a lien.
31. If the Directors refuse to register a transfer they
shall, within two months after the date on which the transfer
was lodged with the Company, send to the transferee notice of
the refusal.
32. The registration of transfers may be suspended at such
times and for such period, not exceeding in the whole
30 days in each year, as the Directors may from time to
time determine subject to Section 121 of the Act.
33. (a) All instruments of transfer shall upon their
being lodged with the Company remain the property of the Company
and the Company shall be entitled to dispose of same as it so
desires but any instrument of transfer which the Directors
refuse to register shall be returned to the person lodging it
when notice of the refusal is given.
(b) No fee shall be charged for the registration of any
instrument of transfer or other document relating to or
affecting the title to any share, or otherwise making an entry
in the Register relating to any share.
TRANSMISSION
OF SHARES
34. In the case of the death of a shareholder, the survivor
or survivors where the deceased was a joint holder, and the
personal representatives of the deceased where he was a sole
holder, shall be the only persons recognised by the Company as
having any title to his interest in the shares; but nothing
herein contained shall release the estate of a deceased joint
holder from any liability in respect of any share which had been
jointly held by him with other persons.
35. Any person becoming entitled to a share in consequence
of the death or bankruptcy of a shareholder may, upon such
evidence being produced as may from time to time properly be
required by the Directors and subject as herein provided, elect
either to be registered himself as holder of the share or to
have some person nominated by him registered as the transferee
thereof, but the Directors shall, in either case, have the same
right to decline or suspend registration as they would have had
in the case of a transfer of the shares by that shareholder
before his death or bankruptcy, as the case may be.
36. If the person so becoming entitled elects to be
registered himself, he shall deliver or send to the Company a
notice in writing signed by him stating that he so elects. If he
elects to have another person registered, he shall testify his
election by executing to that person a transfer of the share.
All the limitations, restrictions and provisions of these
articles relating to the right to transfer and the registration
of transfers of shares shall be applicable to any such notice or
transfer as aforesaid as if the death or bankruptcy of the
shareholder had not occurred and the notice of transfer were a
transfer signed by that shareholder.
37. A person becoming entitled to a share by reason of the
death or bankruptcy of the holder shall be entitled to the same
dividends and other advantages to which he would be entitled if
he were the registered holder of the share, except that he shall
not, before being registered as a shareholder in respect of the
share, be entitled in respect of it to exercise any right
conferred by membership in relation to the meetings of the
Company, so, however, that the Directors may at any time give
notice requiring such person to elect either to be registered
himself or to transfer the share, and if the notice is not
complied with within 60 days, the
14
Directors may thereupon withhold payment of all dividends,
bonuses or other monies payable in respect of the share until
the requirements of the notice have been complied with.
38. Subject to any directions of the Board from time to
time in force, the Secretary may (and is authorised to) exercise
the powers and discretions of the Board under articles 35,
36 and 37.
FORFEITURE
OF SHARES
39. If a shareholder fails to pay any call or instalment of
a call on the day appointed for payment thereof, the Directors
may, at any time thereafter during such time as any part of the
call or instalment remains unpaid, serve a notice on him
requiring payment of so much of the call or instalment as is
unpaid together with any interest which may have accrued.
40. The notice shall name a further day (not earlier than
the expiration of 14 days from the date of service of the
notice) on or before which the payment required by the notice is
to be made, and shall state that in the event of non-payment at
or before the time appointed the shares in respect of which the
call was made will be liable to be forfeited. The Board may
accept the surrender of any share liable to be forfeited
hereunder and, in such case, references in these articles to
forfeiture shall include surrender.
41. If the requirements of any such notice as aforesaid are
not complied with any shares in respect of which the notice has
been given may at any time thereafter, before the payment
required by the notice has been made, be forfeited by a
resolution of the Directors to that effect. Such forfeiture
shall include all dividends declared in respect of the forfeited
shares and not actually paid before the forfeiture.
42. When any share has been forfeited, notice of the
forfeiture shall be served upon the person who was before
forfeiture the holder of the share; but no forfeiture shall be
in any manner invalidated by any omission or neglect to give
such notice as aforesaid.
43. A forfeited share may be sold or otherwise disposed of
on such terms and in such manner as the Directors think fit, and
at any time before a sale or disposition the forfeiture may be
cancelled on such terms as the Directors think fit.
44. A person whose shares have been forfeited shall cease
to be a shareholder in respect of the forfeited shares, but
shall, notwithstanding, remain liable to pay to the Company all
moneys which, at the date of forfeiture, were payable by him to
the Company in respect of the shares with interest thereon at
such rate as the Directors may determine from the date of
forfeiture until payment, but his liability shall cease if and
when the Company shall have received payment in full of all such
moneys in respect of the shares. The Board may waive payment of
the sums due wholly or in part.
45. A statutory declaration that the declarant is a
Director or the Secretary of the Company, and that a share in
the Company has been duly forfeited on the date stated in the
declaration, shall be conclusive evidence of the facts therein
stated as against all persons claiming to be entitled to the
share. The Company may receive the consideration, if any, given
for the share on any sale or disposition thereof and may execute
a transfer of the share in favour of the person to whom the
share is sold or disposed of and he shall thereupon be
registered as the holder of the share, and shall not be bound to
see to the application of the purchase money, if any, nor shall
his title to the share be affected by any irregularity or
invalidity in the proceedings in reference to the forfeiture,
sale or disposal of the share.
46. The provisions of these articles as to forfeiture shall
apply in the case of non-payment of any sum which, by the terms
of issue of a share, becomes payable at a fixed time, whether on
account of the nominal value of the share or by way of premium,
as if the same had been payable by virtue of a call duly made
and notified.
ALTERATION
OF CAPITAL
47. (a) The Company may from time to time by Ordinary
Resolution increase the authorised share capital by such sum, to
be divided into shares of such amount, as the resolution shall
prescribe.
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(b) Subject to the provisions of the Acts, the new shares
shall be issued to such persons, upon such terms and conditions
and with such rights and privileges annexed thereto as the
general meeting resolving upon the creation thereof shall direct
(including, without limitation, at nominal value or at a premium
to the holders for the time being of shares or any class of
shares in proportion to the number of shares held by them
respectively) and, if no direction be given, as the Directors
shall determine and in particular such shares may be issued with
a preferential or qualified right to dividends and in the
distribution of the assets of the Company and with a special, or
without any, right of voting.
48. The Company may by Ordinary Resolution:
(a) consolidate and divide all or any of its share capital
into shares of larger amount than its existing shares;
(b) subdivide its existing shares, or any of them, into
shares of smaller amount than is fixed by the memorandum of
association subject, nevertheless, to section 68(1)(d) of
the Act;
(c) cancel any shares which, at the date of the passing of
the resolution, have not been taken or agreed to be taken by any
person and reduce the amount of its authorised share capital by
the amount of the shares so cancelled; or
(d) change the currency denomination of its share capital.
49. The Company may by Special Resolution reduce its share
capital, any capital redemption reserve fund or any share
premium account in any manner and with and subject to any
incident authorised, and consent required, by law.
50. Whenever as a result of an alternation or
reorganisation of the share capital of the Company any
shareholders would become entitled to fractions of a share, the
Directors may, on behalf of those shareholders, sell the shares
representing the fractions for the best price reasonably
obtainable to any person and distribute the proceeds of sale in
due proportion among those shareholders, and the Directors may
authorise any person to execute an instrument of transfer of the
shares to, or in accordance with the directions of, the
purchaser. The transferee shall not be bound to see to the
application of the purchase money nor shall his title to the
shares be affected by any irregularity in or invalidity of the
proceedings in reference to the sale.
51. Subject to the Acts and to any confirmation or consent
required by law or these articles, the Company may from time to
time convert any preferred shares into redeemable preferred
shares.
GENERAL
MEETINGS
52. The Company shall in each year hold a general meeting
as its annual general meeting in addition to any other meeting
in that year, and shall specify the meeting as such in the
notices calling it; and not more than 15 months shall
elapse between the date of one annual general meeting of the
Company and that of the next. Subject to Section 140 of the
Act, all general meetings of the Company may be held outside of
Ireland.
53. All general meetings other than annual general meetings
shall be called extraordinary general meetings.
54. The chairman or the Board may convene an extraordinary
general meeting, and extraordinary general meetings shall also
be convened on such requisition, or in default may be convened
by such requisitionists, as provided in section 132 of the
Act.
55. All provisions of these articles relating to general
meetings of the Company shall,
mutatis mutandis
, apply to
every separate general meeting of the holders of any class or
series of shares in the capital of the Company, except that:
(a) the necessary quorum shall be two or more persons
holding or representing by proxy shares of the relevant class
representing a majority of the votes that may be cast by all
holders of shares of that class, if the Company or a class of
the shares shall have only one shareholder, one shareholder
present in person or by proxy shall constitute the necessary
quorum; and
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(b) every holder of shares of the relevant class shall be
entitled to the number of votes for every such share held by him
determined in accordance with article 145.
56. A Director shall be entitled, notwithstanding that he
may not be a shareholder, to attend and speak at any general
meeting and at any separate meeting of any holders of any class
of shares in the Company. The auditors shall be entitled to
attend any general meeting and to be heard on any part of the
business of the meeting which concerns them as auditors.
NOTICE OF
GENERAL MEETINGS
57. (a) Subject to sections 133 and 141 of the
Act, an annual general meeting and a meeting called for the
passing of a Special Resolution shall be called by 21 Clear Days
notice in writing at the least and a meeting of the Company
(other than an annual general meeting or a meeting for the
passing of a Special Resolution) shall be called by 14 Clear
Days notice in writing at the least. The notice shall specify
the day, the place and the hour of the meeting and, in the case
of special business, the general nature of that business and
shall be given in manner authorised by these articles to such
persons as are under these articles entitled to receive such
notices from the Company.
(b) (i) A general meeting other than a meeting for the
passing of a Special Resolution shall, notwithstanding that it
is called by shorter notice than that hereinbefore specified, be
deemed to have been duly called if it is so agreed by the
auditors and by all the shareholders entitled to attend and vote
thereat.
(ii) A resolution may be proposed and passed as a Special
Resolution at a meeting of which less than 21 days notice
has been given if it is so agreed by a majority in number of the
shareholders having the right to attend and vote at any such
meeting being a majority together holding not less than 90% in
nominal value of the shares giving that right.
58. The accidental omission to give notice of a meeting to,
or the non-receipt of notice of a meeting by, any person
entitled to receive notice shall not invalidate the proceedings
at the meeting. A shareholder present, either in person or by
proxy, at any meeting of the Company or of the holders of any
class of shares in the Company shall be deemed to have received
notice of the meeting and, where requisite, of the purposes for
which it was called.
PROCEEDINGS
AT GENERAL MEETINGS
59. All business shall be deemed special that is transacted
at an extraordinary general meeting, and also all that is
transacted at an annual general meeting, with the exception of
declaring a dividend, the consideration of the accounts, balance
sheets and the reports of the Directors and auditors, the
election of Directors, the re-appointment of the retiring
auditors and the fixing of the remuneration of the auditors.
60. Except as otherwise provided by law, at any
extraordinary general meeting only such business shall be
conducted as is set forth in the notice thereof or otherwise
properly brought before the meeting by or at the direction of
the Board.
61. Except as otherwise provided by law, the memorandum of
association or these articles, the chairman of the meeting shall
have the power to determine whether a nomination or any other
business proposed to be brought before a general meeting was
made or proposed, as the case may be, in accordance with these
articles and, if any proposed nomination or other business is
not in compliance with these articles, to declare that no action
shall be taken on such nomination or other proposal and such
nomination or other proposal shall be disregarded.
62. No business shall be transacted at any general meeting
unless a quorum is present at the time when the meeting proceeds
to business. Shareholders holding at least 50% of the issued and
outstanding ordinary shares present in person or by proxy and
entitled to vote shall be a quorum for all purposes;
provided, however
, that if the Company or a class of
shareholders shall have only one shareholder, one shareholder
present in person or by proxy shall constitute the necessary
quorum.
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63. If within five minutes from the time appointed for a
general meeting (or such longer interval as the chairman of the
meeting may think fit to allow) a quorum is not present (a
“Failed Shareholder Meeting”
), the meeting, if
convened upon the requisition of shareholders, shall be
dissolved; in any other case it shall stand adjourned to the
same day in the next week, at the same time and place or to such
other day and at such other time and place as the chairman at
the meeting may determine. If a Failed Shareholder Meeting
occurs and another meeting for the purpose of transacting the
same business as set forth in the notice with respect to the
Failed Shareholder Meeting (the
“Recalled Shareholder
Meeting”
) is called in accordance with article 57,
then a quorum for the Recalled Shareholder Meeting shall not
require inclusion of the shares held by the shareholders who
failed to attend the Failed Shareholder Meeting, in calculating
the quorum for the Recalled Shareholder Meeting. If at a meeting
adjourned in accordance with this article a quorum is not
present within half-an-hour from the time appointed for the
meeting, the meeting shall be dissolved except that if a meeting
to consider a resolution or resolutions for the winding up of
the Company and the appointment of a liquidator be adjourned for
want of a quorum and if at such adjourned meeting such a quorum
is not present within 30 minutes from the time appointed for the
adjourned meeting, any one or more shareholders present in
person or by proxy shall constitute a quorum for the purposes of
considering and if thought fit passing such resolution or
resolutions but no other business may be transacted.
64. The chairman, if any, of the Board shall preside as
chairman at every general meeting of the Company or, if there is
no such chairman, or if he is not present within a reasonable
time (as determined by the Board) after the time appointed for
the holding of the meeting or is unwilling to act, the Directors
present shall elect one of their number to be chairman of the
meeting. The chairman of the meeting shall take such action as
he thinks fit to promote the proper and orderly conduct of the
business of the meeting as laid down in the notice of the
meeting.
65. If at any meeting no Director is willing to act as
chairman or if no Director is present within a reasonable time
(as determined by the Board) after the time appointed for
holding the meeting, the shareholders present shall choose one
of their number to be chairman of the meeting.
66. The chairman may, with the consent of any meeting at
which a quorum is present, and shall if so directed by the
meeting, adjourn the meeting from time to time and from place to
place, but no business shall be transacted at any adjourned
meeting other than the business left unfinished at the meeting
from which the adjournment took place. When a meeting is
adjourned for three months or more, not less than seven days
notice of the adjourned meeting shall be given in like manner as
in the case of the original meeting. Save as aforesaid it shall
not be necessary to give any notice of an adjournment or of the
business to be transacted at an adjourned meeting.
67. If the Board in good faith considers that it is
impractical or unreasonable for any reason to hold a general
meeting on the date or at the time or place specified in the
notice calling the general meeting, the Board may postpone the
general meeting to another date, time and place. When a meeting
is so postponed, notice of the date, time and place of the
postponed meeting shall be given in accordance with applicable
law and the rules and regulations of any securities exchange or
automated securities quotation system on which any shares may be
listed or quoted. If a meeting is rearranged in accordance with
this article, proxy forms may be delivered before the rearranged
meeting. The Board may move or postpone (or both) any rearranged
meeting under this article.
68. The Board may direct that shareholders or proxies
wishing to attend any general meeting should submit to such
searches or other security arrangements or restrictions as the
Board shall consider appropriate in the circumstances and the
chairman of the meeting shall be entitled in his absolute
discretion to refuse entry to, or to eject from, such general
meeting any shareholder or proxy who fails to submit to such
searches or to otherwise comply with such security arrangements
or restrictions.
69. The Board may make arrangements for any persons who the
Board considers cannot be seated in the principal meeting room,
which shall be the room in which the chairman of the meeting is
situated, to attend and participate in the general meeting in an
overflow room or rooms. Any overflow room shall have a live
video link from the principal room and a two-way sound link. The
notice of any general meeting shall not be required to give
details of any arrangements under this article. The Board may
decide, in its absolute
18
discretion, how to divide people between the principal room and
any overflow room. If any overflow room is used, the meeting
shall be treated as being held and taking place in the principal
meeting room.
70. At any general meeting a resolution put to the vote of
the meeting shall be decided on a poll.
71. Where there is an equality of votes, the chairman of
the meeting shall not be entitled to a second or casting vote
and the resolution shall fail.
72. Subject to section 141 of the Act, a resolution in
writing signed by all of the shareholders for the time being
entitled to attend and vote on such resolution at a general
meeting (or being bodies corporate by their duly authorised
representatives) shall be as valid and effective for all
purposes as if the resolution had been passed at a general
meeting of the Company duly convened and held, and may consist
of several documents in like form each signed by one or more
persons, and if described as a special resolution shall be
deemed to be a special resolution within the meaning of the Act.
Any such resolution shall be served on the Company.
73. A meeting of the shareholders or any class thereof may
be held by means of such telephone, electronic or other
communication facilities as permits all persons participating in
the meeting to communicate with each other and participation in
such meeting shall constitute presence in person at such
meeting. The Board may, and at any general meeting, the chairman
of such meeting may make any arrangement and impose any
requirement as may be reasonable for the purpose of verifying
the identity of shareholders participating by way of electronic
or other communication facilities.
VOTES OF
SHAREHOLDERS
74. Subject to the right of the Company to set record dates
for the purposes of determining the identity of shareholders
entitled to notice of
and/or
to
vote at a general meeting
and/or
any
other special rights or restrictions as to voting for the time
being attached by or in accordance with these articles to any
class of shares, every shareholder who is present in person or
by proxy or represented by a duly authorised representative of a
corporate shareholder shall have one vote for each share of
which he is the holder. A person entitled to more than one vote
on a poll need not use all his votes or cast all the votes he
uses in the same way.
75. When there are joint holders, the vote of the senior
who tenders a vote, whether in person or by proxy, shall be
accepted to the exclusion of the votes of the other joint
holders; and for this purpose, seniority shall be determined by
the order in which the names stand in the Register.
76. A shareholder of unsound mind, or in respect of whom an
order has been made by any court having jurisdiction in matters
concerning mental disorder, may vote by his committee, receiver,
guardian or other person appointed by that court, and any such
committee, receiver, guardian or other person may vote by proxy.
77. No shareholder shall be entitled to vote at any general
meeting unless any calls or other sums immediately payable by
him in respect of shares in the Company have been paid.
78. No objection shall be raised to the qualification of
any voter except at the meeting or adjourned meeting at which
the vote objected to is given or tendered, and every vote not
disallowed at such meeting shall be valid for all purposes. Any
such objection made in due time shall be referred to the
chairman of the meeting, whose decision shall be final and
conclusive.
79. Votes may be given personally or by proxy or by a duly
authorised representative of a corporate shareholder.
80. (a) Every shareholder entitled to attend and vote
at a general meeting may appoint a proxy or proxies to attend,
speak and vote on his behalf;
provided that
, where a
shareholder appoints more than one proxy in relation to a
general meeting, each proxy must be appointed to exercise the
rights attached to a different share or shares held by him. The
appointment of a proxy shall be in writing in any usual form or
in any other form which the Directors may approve and shall be
signed by or on behalf of the appointer. The signature on such
appointment need not be witnessed. A body corporate may sign a
form of proxy under its common seal, under
19
the hand of a duly authorised officer thereof or in such manner
as the Directors may approve. A proxy need not be a shareholder
of the Company. The appointment of a proxy in electronic form
shall only be effective in such manner as the Directors may
approve.
(b) Without limiting the foregoing, the Directors may from
time to time permit appointments of a proxy to be made by means
of a telephonic, electronic or internet communication or
facility and may in a similar manner permit supplements to, or
amendments or revocations of, any such telephonic, electronic or
internet communication or facility to be made. The Directors may
in addition prescribe the method of determining the time at
which any such telephonic, electronic or internet communication
or facility is to be treated as received by the Company. The
Directors may treat any such telephonic, electronic or Internet
communication or facility which purports to be or is expressed
to be sent on behalf of a shareholder as sufficient evidence of
the authority of the person sending that instruction to send it
on behalf of that shareholder.
81. Any shareholder may appoint a standing proxy or proxies
or (if a body corporate) representative or representatives by
depositing at the office a proxy or (if a body corporate) an
authorisation and such proxy or authorisation shall be valid for
all general meetings and adjournments thereof, until notice of
revocation is received at the office. Where a standing proxy or
authorisation exists, its operation shall be deemed to have been
suspended at any general meeting or adjournment thereof at which
the shareholder is present or in respect to which the
shareholder has specially appointed a proxy or representative.
Where a shareholder appoints more than one proxy or
representative in relation to a general meeting, each proxy or
representative must be appointed to exercise the rights attached
to a different share or shares held by him. The Board may from
time to time require such evidence as it shall deem necessary as
to the due execution and continuing validity of any such
standing proxy or authorization and the operation of any such
standing proxy or authorization shall be deemed to be suspended
until such time as the Board determines that it has received the
requested evidence or other evidence satisfactory to it.
82. The instrument appointing a proxy and the power of
attorney or other authority, if any, under which it is signed,
or a notarially certified copy of that power or authority, shall
be deposited at the office or at such other place in Ireland as
is specified for that purpose in the notice convening the
meeting, before the time appointed for the taking of the poll
and, in default, the instrument of proxy shall not be treated as
valid. Where the instrument appointing a proxy is in electronic
form, it may be so received where an address has been specified
by the Company for the purpose of receiving electronic
communications:
(a) in the notice convening the meeting;
(b) in any appointment of proxy sent out by the Company in
relation to the meeting; or
(c) in any invitation contained in an electronic
communication to appoint a proxy issued by the Company in
relation to the meeting.
83. The instrument appointing a proxy shall be deemed to
confer authority to vote on any amendment of a resolution put to
the meeting for which it is given as the proxy thinks fit. The
instrument of proxy shall unless the contrary is stated therein
be valid as well for any adjournment of the meeting as for the
meeting to which it relates.
84. Receipt by the Company of an appointment of proxy in
respect of a meeting shall not preclude a shareholder from
attending and voting at the meeting or at any adjournment
thereof.
85. A vote given in accordance with the terms of an
instrument of proxy shall be valid notwithstanding the previous
death or insanity of the principal or revocation of the proxy or
of the authority under which the proxy was executed or the
transfer of the share in respect of which the proxy is given, if
no intimation in writing of such death, insanity, revocation or
transfer as aforesaid is received by the Company at the office
at least one hour before the commencement of the meeting or
adjourned meeting at which the proxy is used.
86. Subject to the Acts, the Board may at its discretion
waive any of the provisions of these articles related to proxies
or authorisations and, in particular, may accept such verbal or
other assurances as it thinks fit as to the right of any person
to attend and vote on behalf of any shareholder at general
meetings or to sign written resolutions.
20
DIRECTORS
87. The number of Directors shall not be less than two nor
more than 12. The continuing Directors may act notwithstanding
any vacancy in their body, provided that if the number of the
Directors is reduced below the fixed number the remaining
Director or Directors shall be authorized to appoint an
additional Director or additional Directors to meet such fixed
number or may convene a general meeting of the Company for the
purpose of making such appointment in their sole discretion.
88. The ordinary remuneration of the Directors who do not
hold executive office for their services (excluding amounts
payable under any other provision of these articles) shall be
payable in such amount and in such form as the Board may from
time to time by resolution determine and in the absence of a
determination to the contrary such remuneration shall be deemed
to accrue from day to day or such other amount and in such form
as may be paid to the Director pursuant to the Company’s
Directors’ Deferred Compensation Plan adopted on
May 3, 2001 (as may be revised or superseded from time to
time). Subject thereto, each such Director shall be remunerated
(which shall be deemed to accrue from day to day) at such rate
as may from time to time be determined by the Board. The
Directors may also be paid all travelling, hotel and other
expenses properly incurred by them in attending and returning
from meetings of the Directors or any committee of the Directors
or general meetings of the Company or in connection with the
business of the Company.
89. If any Director shall be called upon to go or reside
abroad, hold any executive position or office, serve on any
committee or otherwise perform extra services which in the
opinion of the Directors are outside the scope of the ordinary
duties of a Director, the Company may remunerate such Director
either by a fixed sum or by a percentage of profits, in
securities or interests in same or otherwise as may be
determined by a resolution passed at a meeting of the Directors
and such remuneration may be either in addition to or in
substitution for any other remuneration to which he may be
entitled as a Director.
90. A shareholding qualification for Directors may be fixed
by the Company in general meeting and, unless and until so
fixed, no qualification shall be required. A Director who is not
a shareholder of the Company shall nevertheless be entitled to
attend and speak at general meetings.
91. Unless the Company otherwise directs, a Director of the
Company may be or become a Director or other officer or employee
of, or otherwise interested in, any company promoted by the
Company or in which the Company may be interested as shareholder
or otherwise, and no such Director shall be accountable to the
Company for any remuneration or other benefits received by him
as a Director, other officer or employee of, or from his
interest in, such other company.
BORROWING
POWERS
92. Subject to Part III of the 1983 Act, the Directors
may exercise all the powers of the Company to borrow or raise
money, and to mortgage or charge its undertaking, property,
assets, and uncalled capital or any part thereof and to issue
debentures, debenture stock and other securities whether
outright or as collateral security for any debt, liability or
obligation of the Company or of any third party, without any
limitation as to amount.
POWERS
AND DUTIES OF THE DIRECTORS
93. The business of the Company shall be managed by the
Directors, who may pay all expenses incurred in promoting and
registering the Company and may exercise all such powers of the
Company as are not, by the Acts or by these articles, required
to be exercised by the Company in general meeting, subject,
nevertheless, to any of these articles and to the provisions of
the Acts. The powers given by this article shall not be limited
by any special power given to the Directors by these articles
and a meeting of Directors at which a quorum is present may
exercise all powers exercisable by the Directors.
94. The Directors may from time to time and at any time by
power of attorney appoint any company, firm or person or body of
persons, whether nominated directly or indirectly by the
Directors, to be the attorney or attorneys of the Company for
such purposes and with such powers, authorities and discretions
(not
21
exceeding those vested in or exercisable by the Directors under
these articles) and for such period and subject to such
conditions as they may think fit, and any such power of attorney
may contain such provisions for the protection of persons
dealing with any such attorney as the Directors may think fit,
and may also authorise any such attorney to delegate all or any
of the powers, authorities and discretions vested in him.
95. A Director who is in any way, whether directly or
indirectly, interested in a contract or proposed contract with
the Company shall declare the nature of his interest at a
meeting of the Directors in accordance with section 194 of
the Act.
96. (a) Subject to the Acts, a Director may
notwithstanding his office be a party to, or otherwise
interested in, any transaction or arrangement with the Company
or in which the Company is otherwise interested; and be a
director or other officer of, or employed by, or a party to any
transaction or arrangement with, or otherwise interested in, any
body corporate promoted by the Company or in which the Company
is interested. The Board may also cause the voting power
conferred by the shares in any other company held or owned by
the Company to be exercised in such manner in all respects as it
thinks fit, including the exercise thereof in favor of any
resolution appointing the Directors or any of them to be
directors, officers or employees of such other company, or
voting or providing for the payment of remuneration to the
directors, officers or employees of such company.
(b) So long as, where it is necessary, he declares the
nature of his interest at the first opportunity at a meeting of
the Board or by writing to the Directors as required by the
Acts, a Director shall not by reason of his office be
accountable to the Company for any benefit which he derives from
any office or employment to which these articles allow him to be
appointed or from any transaction or arrangement in which these
articles allow him to be interested, and no such transaction or
arrangement shall be liable to be avoided on the ground of any
interest or benefit.
(c) Subject to the Acts and any further disclosure required
thereby, a general notice to the Directors by a Director
declaring that he is a director, officer or employee of, or has
an interest in, a person and is to be regarded as interested in
any transaction or arrangement made with that person, shall be
sufficient declaration of interest in relation to any
transaction or arrangement so made.
(d) A Director who has disclosed his interest in a
transaction or arrangement with the Company, or in which the
Company is otherwise interested, may (subject to
article 102 (c)) be counted in the quorum and vote at any
meeting at which such transaction or arrangement is considered
by the Board.
(e) For the purposes of these articles, without limiting
the generality of the foregoing, a Director is deemed to have an
interest in a transaction or arrangement with the Company if he
is the holder or beneficially interested in five percent or more
of any class of the equity share capital of any body corporate
(or any other body corporate through which his interest derived)
or of the voting rights available to shareholders of the
relevant body corporate with which the Company is proposing to
enter into a transaction or arrangement,
provided
,
that
, there shall be disregarded any shares held by such
Director as bare or custodian trustee and in which the
Director’s interest is in reversion or remainder if and so
long as some other person is entitled to receive the income
thereof, and any shares comprised in an authorised unit trust,
investment trust company or in any other mutual fund in which
the Director is only interested as an investor. For the purposes
of this article, an interest of a person who is connected with a
Director shall be treated as an interest of the Director.
97. A Director may hold and be remunerated in respect of
any other office or place of profit under the Company or any
other company in which the Company may be interested (other than
the office of auditor of the Company or any subsidiary thereof)
in conjunction with his office of Director for such period and
on such terms as to remuneration and otherwise as the Directors
may determine, and no Director or intending Director shall be
disqualified by his office from contracting or being interested,
directly or indirectly, in any contract or arrangement with the
Company or any such other company either with regard to his
tenure of any such other office or place of profit or as vendor,
purchaser or otherwise nor shall any Director so contracting or
being so interested be liable to account to the Company for any
profits and advantages accruing to him from any such contract or
arrangement by reason of such Director holding that office or of
the fiduciary relationship thereby established.
22
98. Any Director may act by himself or his firm in a
professional capacity for the Company, and he or his firm shall
be entitled to remuneration for professional services as if he
were not a Director, but nothing herein contained shall
authorise a Director or his firm to act as auditor to the
Company.
99. All cheques, promissory notes, drafts, bills of
exchange and other negotiable instruments and all receipts for
money paid to the Company shall be signed, drawn, accepted,
endorsed or otherwise executed, as the case may be, by such
person or persons and in such manner as the Directors shall from
time to time by resolution determine.
100. The Directors shall cause minutes to be made in books
provided for the purpose:
(a) of all appointments of officers made by the Directors;
(b) of the names of the Directors present at each meeting
of the Directors and of any committee of the Directors; and
(c) of all resolutions and proceedings at all meetings of
the Company and of the Directors and of committees of Directors.
101. (a) The Directors may procure the establishment
and maintenance of or participate in, or contribute to any
non-contributory or contributory pension or superannuation fund,
scheme or arrangement or life assurance scheme or arrangement
for the benefit of, and pay, provide for or procure the grant of
donations, gratuities, pensions, allowances, benefits or
emoluments to any persons (including Directors or other
officers) who are or shall have been at any time in the
employment or service of the Company or of any company which is
or was a subsidiary of the Company or of the predecessor in
business of the Company or any such subsidiary or holding
Company and the wives, widows, families, relatives or dependants
of any such persons. The Directors may also procure the
establishment and subsidy of or subscription to and support of
any institutions, associations, clubs, funds or trusts
calculated to be for the benefit of any such persons as
aforesaid or otherwise to advance the interests and well being
of the Company or of any such other Company as aforesaid, or its
shareholders, and payments for or towards the insurance of any
such persons as aforesaid and subscriptions or guarantees of
money for charitable or benevolent objects or for any exhibition
or for any public, general or useful object. Provided that any
Director shall be entitled to retain any benefit received by him
hereunder, subject only, where the Acts require, to disclosure
to the shareholders and the approval of the Company in general
meeting.
(b) No Director or former Director shall be accountable to
the Company or the shareholders for any benefit provided
pursuant to this article and the receipt of any such benefit
shall not disqualify any person from being or becoming a
Director of the Company.
102. (a) A Director shall be entitled (in the absence
of some other relevant interest than is indicated below) to vote
(and be counted in the quorum) in respect of any resolutions
concerning any of the following matters, namely:
(i) the giving of any security, guarantee or indemnity to
him in respect of money lent by him to the Company or any of its
subsidiary or associated companies or obligations incurred by
him or by any other person at the request of or for the benefit
of the Company or any of its subsidiary or associated companies;
(ii) the giving of any security, guarantee or indemnity to
a third party in respect of a debt or obligation of the Company
or any of its subsidiary or associated companies for which he
himself has assumed responsibility in whole or in part and
whether alone or jointly with others under a guarantee or
indemnity or by the giving of security;
(iii) any proposal concerning any offer of shares or
debentures or other securities of or by the Company or any of
its subsidiary or associated companies for subscription,
purchase or exchange in which offer he is or is to be interested
as a participant in the underwriting or
sub-underwriting
thereof;
(iv) any proposal concerning the adoption, modification or
operation of any scheme for enabling employees or former
employees (including full time executive Directors) of the
Company
and/or
any
23
subsidiary thereof to acquire shares in the Company or any
arrangement for the benefit of employees or former employees of
the Company or any of its subsidiaries under which the Director
benefits or may benefit; or
(v) any proposal concerning the giving of any indemnity
pursuant to articles 157 to 164 or the discharge of the
cost of any insurance cover purchased or maintained pursuant to
article 162.
(b) Where proposals are under consideration concerning the
appointment (including fixing or varying the terms of
appointment) of two or more Directors to offices or employments
with the Company or any company in which the Company is
interested, such proposals may be divided and considered in
relation to each Director separately and in such case each of
the Directors concerned shall be entitled to vote (and be
counted in the quorum) in respect of each resolution except that
concerning his own appointment.
(c) If a question arises at a meeting of Directors or of a
committee of Directors as to the right of any Director to vote
on a matter in which he has an interest and such question is not
resolved by his voluntarily agreeing to abstain from voting,
such question may be referred, before the conclusion of the
meeting, to the chairman of the meeting and his ruling in
relation to any Director other than himself shall be final and
conclusive. In relation to the chairman, such question may be
resolved by a resolution of a majority of the Directors (other
than the chairman) present at the meeting at which the question
first arises.
(d) For the purposes of this article,
(i) an interest of a person who is the spouse or a minor
child of a Director shall be treated as an interest of the
Director; and
(ii) an interest of which a Director has no knowledge and
of which it is unreasonable to expect him to have knowledge
shall not be treated as an interest of his.
DISQUALIFICATION
OF DIRECTORS
103. The office of a Director shall be vacated ipso facto
if the Director:
(a) is adjudged bankrupt in the State or in any other place
or makes any arrangement or composition with his creditors
generally;
(b) is restricted or disqualified to act as a Director
under the provisions of Part VII of the 1990 Act;
(c) in the State or elsewhere has an order made by any
court claiming jurisdiction in that behalf on the ground
(howsoever formulated) of mental disorder for his detention or
for the appointment of a guardian or for the appointment of a
receiver or other person (by whatsoever name called) to exercise
powers with respect to his property or affairs;
(d) resigns his office by notice in writing to the Company
or in writing offers to resign and the Directors resolve to
accept such offer;
(e) is removed from office under article 110; and
(f) is for more than six months absent without permission
of the Directors from meetings of the Directors held during that
period, and they pass a resolution that he has by reason of such
absence vacated office.
Any vacancy created by the removal of a Director pursuant to
this article may be filled by the election of another Director
in his place or, in the absence of any such election, by the
Board in accordance with article 109.
APPOINTMENT,
ROTATION AND REMOVAL OF DIRECTORS
104. At every annual general meeting of the Company, all of
the Directors shall retire from office unless re-elected by
Ordinary Resolution at the annual general meeting. A Director
retiring at a meeting shall retain office until the close or
adjournment of the meeting.
24
105. A retiring Director shall be eligible for re-election.
106. The Company, at the meeting at which a Director
retires in manner aforesaid, may fill the vacated office by
electing a person thereto and in default the retiring Director
shall, if offering himself for re-election, be deemed to have
been re-elected, unless at such meeting it is expressly resolved
not to fill such vacated office, or unless a resolution for the
re-election of such Director has been put to the meeting and
lost.
107. The Board of Directors of the Company shall by
resolution nominate such number of persons qualified to serve as
independent Directors as shall be necessary or appropriate under
applicable law or the rules and regulations of any securities
exchange or automated quotation system on which the securities
of the Company may be listed.
108. Subject to the Acts, no person other than a Director
retiring at the meeting shall be eligible for election to the
office of Director unless:
(a) in the case of a general meeting, such person is
recommended by the Board;
(b) (i) if the Company is a foreign private issuer
within the meaning of Rule 405 of the United States
Securities Act of 1933, as amended (a
“foreign private
issuer”
), in the case of an annual general meeting, not
less than 120 nor more than 150 days before the date fixed
for the meeting, notice has been given to the Company by a
shareholder qualified to vote at the meeting of the intention to
propose such person for appointment or reappointment; or
(ii) if the Company is not a foreign private issuer, in the
case of an annual general meeting, not less than 120 nor more
than 150 days before the date of the Company’s proxy
statement released to shareholders in connection with the prior
year’s annual general meeting, notice executed by a
shareholder (not being the person to be proposed) has been
received by the Secretary of the Company of the intention to
propose such person for appointment, in the case of each of
clause (i) and (ii), setting forth as to each person whom
the shareholder proposes to nominate for election or re-election
as a Director (A) the name, age, business address and
residence address of such person, (B) the principal
occupation or employment of such person, (C) the class,
series and number of shares which are beneficially owned by such
person, (D) particulars which would, if he were so
appointed, be required to be included in the Company’s
Register of Directors and Secretaries and (E), in the case of
clause (ii), all other information relating to such person that
is required to be disclosed in solicitations for proxies for the
election of Directors pursuant to the rules and regulations of
the United States Securities and Exchange Commission under
Section 14 of the United States Exchange Act of 1934, as
amended, together with notice executed by such person of his
willingness to serve as a Director if so elected;
provided,
however,
that no shareholder shall be entitled to propose
any person to be appointed, elected or re-elected Director at
any extraordinary general meeting.
109. The Directors shall have power at any time and from
time to time to appoint any person to be a Director, either to
fill a casual vacancy or as an addition to the existing
Directors, but so that the total number of Directors shall not
at any time exceed the number fixed in accordance with these
articles. Any Director so appointed shall hold office only until
the next following annual general meeting, and shall then be
eligible for re-election.
110. The Company may, by Ordinary Resolution, of which
extended notice has been given in accordance with
section 142 of the Act, remove any Director before the
expiration of his period of office notwithstanding anything in
these articles or in any agreement between the Company and such
Director. Such removal shall be without prejudice to any claim
such Director may have for damages for breach of any contract of
service between him and the Company.
111. The Company may, by Ordinary Resolution, appoint
another person in place of a Director removed from office under
article 110 and, without prejudice to the powers of the
Directors under article 109, the Company in general meeting
may appoint any person to be a Director either to fill a casual
vacancy or as an additional Director; provided, that the total
number of Directors shall not at any time exceed the number
fixed in accordance with these articles. A person appointed in
place of a Director so removed or to fill such a vacancy shall
be subject to retirement at the same time as if he had become a
Director on the day on which the Director in whose place he is
appointed was last elected a Director. If at any general meeting
resolutions
25
are passed in respect of the election or re-election (as the
case may be) of Directors which would result in the maximum
number of Directors fixed in accordance with these articles
being exceeded, then those Director(s), in such number as
exceeds such maximum fixed number, receiving the lowest total
number of votes in favour of election or re-election (as the
case may be) shall, notwithstanding the passing of any
resolution in their favour, not be elected or re-elected (as the
case may be) to the Board.
PROCEEDINGS
OF DIRECTORS
112. (a) The Directors may meet together for the
dispatch of business, adjourn and otherwise regulate their
meetings as they may think fit. The quorum necessary for the
transaction of the business of the Directors shall be two or
such higher number as may be fixed by the Directors. Questions
arising at any meeting shall be decided by a majority of votes.
In the case of an equality of votes, the chairman of the meeting
shall have a second or casting vote.
(b) No shareholder shall cause, directly or indirectly, any
Director nominated by such shareholder to fail to attend any
meeting of the Board for purposes of removing the quorum. Any
Director who ceases to be a Director at a meeting of the Board
may continue to be present and to act as a Director and be
counted in the quorum until the termination of the meeting if no
other Director objects and if otherwise a quorum of Directors
would not be present.
(c) Each Director present and voting shall have one vote
and shall in addition to his own vote be entitled to one vote in
respect of each other Director not present at the meeting who
shall have authorised him in respect of such meeting to vote for
such other Director in his absence. Any such authority may
relate generally to all meetings of the Directors or to any
specified meeting or meetings and must be in writing and may be
sent by delivery, post, cable, telegram, telex, telefax,
electronic mail or any other means of communication approved by
the Directors and may bear a printed or facsimile signature of
the Director giving such authority. The authority must be
delivered to the Secretary for filing prior to or must be
produced at the first meeting at which a vote is to be cast
pursuant thereto.
113. A Director may, and the Secretary on the requisition
of a Director shall, at any time summon a meeting of the
Directors.
114. Notice of a meeting of the Board shall be deemed to be
duly given to a Director if it is given to him personally or by
word of mouth or sent to him by post, cable, telegram, telex,
telecopier, electronic mail or other mode of representing or
reproducing words in a legible and non-transitory form at his
last known address or any other address given by him to the
Company for this purpose. A Director may retrospectively waive
the requirement for notice of any meeting by consenting in
writing to the business conducted at the meeting.
115. The continuing Directors may act notwithstanding any
vacancy in their number;
provided
,
however
, if and
so long as their number is reduced below the number fixed by or
pursuant to these articles as the necessary quorum of Directors,
the continuing Directors or Director may act for the purpose of
summoning a general meeting of the Company but for no other
purpose.
116. The Directors may elect a chairman of the Board and
determine the period for which each is to hold office. Any
Director may be elected no matter by whom he was appointed but
if no such chairman is elected, or if at any meeting the
chairman is not present within a reasonable time (as determined
by the Board) after the time appointed for holding the same, the
Directors present may choose one of their number to be chairman
of the meeting.
117. The Board may delegate any of its powers, authorities
and discretions (including, without prejudice to the generality
of the foregoing, all powers and discretions whose exercise
includes or may include the payment of remuneration to or the
conferring of any other benefit on all or any of the Directors)
to committees, consisting of such person or persons (whether a
member or members of its body or not) as it thinks fit. Any
committee so formed shall, in the exercise of the powers,
authorities and discretions so delegated, and in conducting its
proceedings conform to any regulations which may be imposed upon
it by the Board. Any such committee shall, unless the Board
otherwise resolves, have power to
sub-delegate
to
26
subcommittees any of the powers or discretions delegated to it.
If no regulations are imposed by the Board the proceedings of a
committee with two or more members shall be, as far as is
practicable, governed by the articles regulating the proceedings
of the Board.
118. All acts done by any meeting of the Directors or of a
committee of Directors or by any person acting as a Director
shall, notwithstanding that it be afterwards discovered that
there was some defect in the appointment of any such Director or
person acting as aforesaid, or that they or any of them were
disqualified, be as valid as if every such person had been duly
appointed and was qualified to be a Director.
119. A resolution in writing signed by all of the Directors
shall be as effective as if it had been duly passed at a meeting
of the Directors. Any such resolution may consist of several
documents in the like form, each signed by one or more of the
Directors.
120. A meeting of the Board or a committee appointed by the
Board may be held by means of such telephone, electronic or
other communication facilities as permit all persons
participating in the meeting to communicate with each other
simultaneously and instantaneously and participation in such a
meeting shall constitute presence in person at such meeting.
EXECUTIVES
121. Subject to the Acts, the Board may appoint any person
to fill the positions of chairman and Chief Executive Officer
who shall be Directors and shall be elected by the Board as soon
as possible after each annual general meeting. In addition, the
Board may appoint any person, whether or not he is a Director,
to hold such executive or official position (except that of
auditor) as the Board may from time to time determine. The
Company may enter into an agreement or arrangement with any
person elected or appointed pursuant to this article for his
employment by the Company or for the provision by him of any
services outside the scope of the ordinary duties of a Director
and any such person shall serve for such period and upon such
terms (including, without limitation, as to term and
remuneration (which may be in addition to or in lieu of any
ordinary remuneration as a Director)) as the Board may determine
and the Board may revoke or terminate any such election or
appointment. Any such revocation or termination shall be without
prejudice to any claim for damages that such executive may have
against the Company or the Company may have against such
executive for any breach of any contract of service between him
and the Company which may be involved in such revocation or
termination. Save as provided in the Acts or these articles, the
powers and duties of such executives of the Company shall be
such (if any) as are determined from time to time by the Board.
122. The emoluments of any Director holding executive
office for his services as such shall be determined by the Board
and may be of any description and (without limiting the
generality of the foregoing) may include the admission to or
continuance of membership of any plan (including any share
acquisition plan) or fund instituted or established or financed
or contributed to by the Company for the provision of pensions,
life assurance or other benefits for employees or their
dependents or the payment of a pension or other benefits to him
or his dependents on or after retirement or death, apart from
membership or any such plan or fund.
SECRETARY/ASSISTANT/DEPUTY
SECRETARIES
123. The Secretary shall be appointed by the Directors for
such term, at such remuneration and upon such conditions as they
may think fit; and any Secretary so appointed may be removed by
them. In addition, the Directors may appoint an assistant
company secretary (an
“Assistant”
)
and/or
a
deputy company secretary (a
“Deputy”
) for such
term, at such remuneration and upon such conditions as they may
think fit; and any such Assistant or Deputy so appointed may be
removed by them and references herein to “secretary”
shall be construed, if permitted, as including references to an
Assistant or a Deputy.
124. A provision of the Acts or these articles requiring or
authorising a thing to be done by or to a Director and the
Secretary shall not be satisfied by its being done by or to the
same person acting both as Director and as, or in place of, the
Secretary.
27
THE
SEAL
125. The seal shall be used only by the authority of the
Directors or of a committee authorised by the Directors on their
behalf (a
“Sealing Committee”
).
126. The Company may exercise the powers conferred by
section 41 of the Act with regard to having an official
seal for use abroad and such powers shall be vested in the
Directors and any Sealing Committee.
127. (a) Every instrument to which the seal shall be
affixed shall be signed by a Director and shall also be signed
by the Secretary or by a second Director or by some other person
appointed by the Directors for the purpose or by any two members
of a Sealing Committee save that as regards any certificates for
shares or debentures or other securities of the Company the
Directors may determine by resolution that such signatures or
either of them shall be dispensed with, or be printed thereon or
affixed thereto by some method or system of mechanical signature
provided that in any such case the certificate to be sealed
shall have been approved for sealing by the Secretary or by the
registrar of the Company or by the auditors or by some other
person appointed by the Directors for this purpose in writing
(and, for the avoidance of doubt, it is hereby declared that it
shall be sufficient for approval to be given
and/or
evidenced either in such manner (if any) as may be approved by
or on behalf of the Directors or by having certificates
initialled before sealing or by having certificates presented
for sealing accompanied by a list thereof which has been
initialled) and
provided
that the Secretary or a Director
may affix a seal over his signature alone to authenticate copies
of these articles, the minutes of any meeting or any other
documents requiring authentication.
(b) For the purposes of this article, any instrument
in electronic form to which the seal is required to be affixed,
shall be sealed by means of an advanced electronic signature
based on a qualified certificate of a Director and the Secretary
or of a second Director or by some other person appointed by the
Directors for the purpose or by any two members of a Sealing
Committee.
DIVIDENDS
AND RESERVES
128. The Company in general meeting may declare and pay
dividends, but no dividends shall exceed the amount recommended
by the Directors.
129. The Directors may from time to time pay to the
shareholders such interim dividends as appear to the Directors
to be justified by the profits of the Company. If the share
capital is divided into different classes, the Directors may
declare and pay interim dividends on shares which confer
deferred or non-preferred rights with regard to dividend as well
as on shares which confer preferential rights with regard to
dividend, but subject always to any restrictions for the time
being in force (whether under these articles, under the terms of
issue of any shares or under any agreement to which the Company
is a party, or otherwise) relating to the application, or the
priority of application, of the Company’s profits available
for distribution or to the declaration or as the case may be the
payment of dividends by the Company. Subject as aforesaid, the
Directors may also pay at intervals settled by them any dividend
payable at a fixed rate if it appears to them that the profits
available for distribution justify the payment. Provided the
Directors act in good faith, they shall not incur any liability
to the holders of shares conferring preferred rights for any
loss they may suffer by the lawful payment of an interim
dividend on any shares having deferred or non-preferred rights.
130. No dividend or interim dividend shall be paid
otherwise than in accordance with the provisions of Part IV
of the 1983 Act.
131. The Directors may, before declaring or recommending
any dividend, set aside out of the profits of the Company such
sums as they think proper as a reserve or reserves which shall,
at the discretion of the Directors, be applicable for any
purpose to which the profits of the Company may be properly
applied and pending such application may at the like discretion
either be employed in the business of the Company or be invested
in such investments as the Directors may lawfully determine. The
Directors may also, without placing the same to reserve, carry
forward any profits which they may think it prudent not to
divide.
132. Subject to article 145 and the rights of persons,
if any, entitled to shares with special rights as to dividend,
all dividends shall be declared and paid according to the
amounts paid or credited as paid on the
28
shares in respect whereof the dividend is paid, but no amount
paid or credited as paid on a share in advance of calls shall be
treated for the purposes of this article as paid on the share.
All dividends shall be apportioned and paid proportionately to
the amounts paid or credited as paid on the shares during any
portion or portions of the period in respect of which the
dividend is paid; but if any share is issued on terms providing
that it shall rank for dividend as from a particular date, such
share shall rank for dividend accordingly.
133. The Directors may deduct from any dividend payable to
any shareholder all sums of money (if any) immediately payable
by such shareholder to the Company on account of calls or
otherwise in relation to the shares of the Company.
134. The Board may also, in addition to its other powers,
direct payment or satisfaction of any dividend or distribution
out of contributed surplus wholly or in part by the distribution
of specific assets, and in particular of
paid-up
shares or debentures of the Company or any other company, and
where any difficulty arises in regard to such distribution or
dividend the Board may settle it as it thinks expedient, and in
particular, may authorize any person to sell and transfer any
fractions or may ignore fractions altogether, and may fix the
value for distribution or dividend purposes of any such specific
assets and may determine that cash payments shall be made to any
shareholders upon the footing of the values so fixed in order to
secure equality of distribution and may vest any such specific
assets in trustees as may seem expedient to the Board,
provided
that such dividend or distribution may not be
satisfied by the distribution of any partly paid shares or
debentures of any company without the sanction of an Ordinary
Resolution.
135. Any dividend, distribution or interest, or part
thereof payable in cash, or any other sum payable in cash to the
holder of shares may be paid by: (i) cheque or warrant sent
through the post addressed to the holder at his address in the
Register or, in the case of joint holders, addressed to the
holder whose name stands first in the Register in respect of the
shares at his registered address as appearing in the Register or
addressed to such person at such address as the holder or joint
holders may in writing direct; (ii) by interbank transfer
or other electronic means to such account as the payee or payees
shall in writing direct or, where applicable, using the
facilities of a relevant system; or (iii) by such other
method of payment as the shareholder (or in the case of joint
holders of a share, all of them) may agree to. Every such cheque
or warrant shall, unless the holder or joint holders otherwise
direct, be made payable to the order of the holder or, in the
case of joint holders, to the order of the holder whose name
stands first in the Register in respect of such shares and shall
be sent at his or their risk and payment of the cheque or
warrant by the bank on which it is drawn shall constitute a good
discharge to the Company. Any one of two or more joint holders
may give effectual receipts for any dividends, distributions or
other moneys payable or property distributable in respect of the
shares held by such joint holders. Payment of the cheque or
warrant or other form of payment shall be a good discharge to
the Company. Every such payment shall be sent at the risk of the
person entitled to the money represented thereby.
136. Any dividend or distribution out of contributed
surplus unclaimed for a period of six years from the date of
declaration of such dividend or distribution shall be forfeited
and shall revert to the Company and the payment by the Board of
any unclaimed dividend, distribution, interest or other sum
payable on or in respect of the share into a separate account
shall not constitute the Company a trustee in respect thereof.
137. No dividend shall bear interest against the Company.
ACCOUNTS
138. The Directors shall cause proper books of account to
be kept, whether in the form of documents, electronic form or
otherwise, that:
(a) correctly record and explain the transactions of the
Company;
(b) will at any time enable the financial position of the
Company to be determined with reasonable accuracy;
(c) will enable the Directors to ensure that any balance
sheet, profit and loss account or income and expenditure account
of the Company complies with the requirements of the
Acts; and
29
(d) will enable the accounts of the Company to be readily
and properly audited.
139. The books of account shall be at the office or,
subject to section 202 of the 1990 Act, at such place as
the Directors think fit and shall at all reasonable times be
open to inspection by the officers of the Company and by any
other persons entitled pursuant to the Acts to inspect the books
of account of the Company.
140. In accordance with the provisions of the Acts, the
Directors shall cause to be prepared and to be laid before the
annual general meeting of the Company such profit and loss
accounts, balance sheets, group accounts and reports as are
required by the Acts to be prepared and laid before the annual
general meeting of the Company.
141. A copy of every balance sheet (including every
document required by law to be annexed thereto) which is
required to be laid before the annual general meeting of the
Company together with a copy of the Directors’ report and
auditors’ report shall be sent by post, electronic mail or
any other means of electronic communication, not less than 21
Clear Days before the date of the annual general meeting, to
every person entitled under the provisions of the Acts to
receive them;
provided
that in the case of those
documents sent by electronic mail or any other means of
electronic communication, such documents shall be sent
electronically with the consent of the recipient to the address
of the recipient notified to the Company by the recipient for
such purposes. The Company may send by post, electronic mail or
any other means of electronic communication a summary financial
statement to its shareholders or persons nominated by any
shareholder. The Company may meet, but shall be under no
obligation to meet, any request from any of its shareholders to
be sent additional copies of its full report and accounts or
summary financial statement or other communications with its
shareholders.
CAPITALISATION
OF PROFITS
142. (a) The Company in general meeting may upon the
recommendation of the Directors resolve that any sum for the
time being standing to the credit of any of the Company’s
reserves (including any capital redemption reserve fund or share
premium account) or to the credit of profit and loss account be
capitalised and applied on behalf of the shareholders who would
have been entitled to receive the same if the same had been
distributed by way of dividend and in the same proportions
either in or towards paying up amounts for the time being unpaid
on any shares held by them respectively or in paying up in full
unissued shares or debentures of the Company of a nominal amount
equal to the sum capitalised (such shares or debentures to be
allotted and distributed credited as fully-paid up to and
amongst such holders in the proportions aforesaid) or partly in
one way and partly in another, so, however, that the only
purposes for which sums standing to the credit of the capital
redemption reserve fund or the share premium account shall be
applied shall be those permitted by sections 62 and 64 of
the Act.
(b) The Company in general meeting may on the
recommendation of the Directors resolve that any sum for the
time being standing to the credit of any of the Company’s
reserve accounts or to the credit of the profit and loss account
which is not available for distribution be capitalised by
applying such sum in paying up in full unissued shares to be
allotted as fully-paid bonus shares to those shareholders of the
Company who would have been entitled to that sum if it were
distributed by way of dividend (and in the same proportions),
and the Directors shall give effect to such resolution.
143. Whenever a resolution shall have been passed pursuant
to article 134, the Directors shall make all appropriations and
applications of the undivided profits resolved to be capitalised
thereby and all allotments and issues of fully-paid shares or
debentures, if any, and generally shall do all acts and things
required to give effect thereto with full power to the Directors
to make such provision as they shall think fit for the case of
shares or debentures becoming distributable in fractions (and,
in particular, without prejudice to the generality of the
foregoing, to sell the shares or debentures represented by such
fractions and distribute the net proceeds of such sale amongst
the shareholders otherwise entitled to such fractions in due
proportions) and also to authorise any person to enter on behalf
of all the shareholders concerned into an agreement with the
Company providing for the allotment to them respectively
credited as fully-paid up of any further shares or debentures to
which they may become entitled on such capitalisation or, as the
case may require, for the payment up by the application thereto
of their respective proportions of the profits resolved to be
capitalised of the amounts
30
remaining unpaid on their existing shares and any agreement made
under such authority shall be effective and binding on all such
shareholders.
144. The Directors may from time to time at their
discretion, subject to the provisions of the Acts and, in
particular, to their being duly authorised pursuant to
Section 20 of the 1983 Act, to allot the relevant shares,
to offer to the holders of ordinary shares the right to elect to
receive in lieu of any dividend or proposed dividend or part
thereof an allotment of additional ordinary shares credited as
fully paid. In any such case the following provisions shall
apply:
(a) The basis of allotment shall be determined by the
Directors.
(b) The Directors shall give notice in writing (whether in
electronic form or otherwise) to the holders of ordinary shares
of the right of election offered to them and shall send with or
following such notice forms of election and specify the
procedure to be followed and the place at which, and the latest
date and time by which, duly completed forms of election must be
lodged in order to be effective. The Directors may also issue
forms under which holders may elect in advance to receive new
ordinary shares instead of dividends in respect of future
dividends not yet declared (and, therefore, in respect of which
the basis of allotment shall not yet have been determined).
(c) The dividend (or that part of the dividend in respect
of which a right of election has been offered) shall not be
payable on ordinary shares in respect of which the right of
election as aforesaid has been duly exercised (the
“Subject Ordinary Shares”
) and in lieu thereof
additional ordinary shares (but not any fraction of a share)
shall be allotted to the holders of the Subject Ordinary Shares
on the basis of allotment determined aforesaid and for such
purpose the Directors shall capitalise, out of such of the sums
standing to the credit of any of the Company’s reserves
(including any capital redemption reserve fund or share premium
account) or to the credit of the profit and loss account as the
Directors may determine, a sum equal to the aggregate nominal
amount of additional ordinary shares to be allotted on such
basis and apply the same in paying up in full the appropriate
number of unissued ordinary shares for allotment and
distribution to and amongst the holders of the Subject Ordinary
Shares on such basis.
(d) The additional ordinary shares so allotted shall rank
pari passu
in all respects with the fully-paid ordinary
shares then in issue save only as regards to participation in
the relevant dividend or share election in lieu.
(e) The Directors may do all acts and things considered
necessary or expedient to give effect to any such capitalisation
with full power to the Directors to make such provisions as they
think fit where shares would otherwise have been distributable
in fractions (including provisions whereby, in whole or in part,
fractional entitlements are disregarded and the benefit of
fractional entitlements accrues to the Company rather than to
the holders concerned). The Directors may authorise any person
to enter on behalf of all the holders interested into an
agreement with the Company providing for such capitalisation and
matters incidental thereto and any agreement made under such
authority shall be effective and binding on all concerned.
(f) The Directors may on any occasion determine that rights
of election shall not be offered to any holders of ordinary
shares who are citizens or residents of any territory where the
making or publication of an offer of rights of election or any
exercise of rights of election or any purported acceptance of
the same would or might be unlawful, and in such event the
provisions aforesaid shall be read and construed subject to such
determination.
RECORD
DATE
145. Notwithstanding any other provisions of these
articles, the Company may by Ordinary Resolution or the Board
may fix any date as the record date for the purpose of
identifying the persons entitled to receive any dividend,
distribution, allotment or issue and for the purpose of
identifying the persons entitled to receive notices of, and
entitled to vote at, general meetings or entitled to express
consent to corporate action in writing without a meeting. Any
such record date may be on or at any time (i) not more than
60 days before any date on which such dividend,
distribution, allotment or issue is declared, paid or made,
(ii) not more than 90 days
31
nor less than 10 days before the date of any such meetings
and (iii) not more than 10 days after the date on
which the resolution fixing the record date for a shareholder
action by written consent is adopted by the Board.
AUDIT
146. Auditors shall be appointed and their duties regulated
in accordance with sections 160 to 163 of the Act or any
statutory amendment thereof.
NOTICES
147. Any notice or other document (including a share
certificate) may be served on or delivered to any shareholder by
the Company either personally or by sending it by electronic
record, facsimile, through the post (by airmail where
applicable) in a pre-paid letter addressed to such shareholder
at his address as appearing in the Register or by any other
means. Acknowledgement of receipt shall not be required and is
not a condition of valid service of due notice. In the case of
joint holders of a share, service or delivery of any notice or
other document on or to one of the joint holders shall for all
purposes be deemed as sufficient service on or delivery to all
the joint holders. Any notice or other document (i) if
given by facsimile, shall be deemed to have been served or
delivered at the time such facsimile is transmitted and the
appropriate confirmation is received (or, if such time is not
during a Business Day, at the beginning of the following
Business Day), (ii) if sent by post, shall be deemed to
have been served or delivered three Business Days or, if to an
address outside the United States, seven calendar days after it
was put in the post with first-class postage prepaid or
(iii) if given by electronic mail, shall be deemed to have
been served or delivered 48 hours after the time such
electronic is transmitted (or, if such time is not during a
Business Day, at the beginning of the following Business Day),
or (iv) if given by any other means, shall be deemed to
have been served or delivered when delivered at the applicable
address, and in proving such service or delivery, it shall be
sufficient to prove that the notice or document was properly
addressed, stamped and put in the post, except for electronic
means where the record of the Company’s or its agent’s
system shall be deemed to be the definitive record of delivery.
148. For the purposes of these articles and the Act, a
document shall be deemed to have been sent to a shareholder if a
notice is given, served, sent or delivered to the shareholder
and the notice specifies the website or hotlink or other
electronic link at or through which the shareholder may obtain a
copy of the relevant document.
149. Any notice of a general meeting of the Company shall
be deemed to be duly given to a shareholder, or other person
entitled to it, if it is sent to him by cable, telex,
telecopier, electronic mail or other mode of representing or
reproducing words in a legible and non-transitory form at his
address as appearing in the Register or any other address given
by him to the Company for this purpose. Any such notice shall be
deemed to have been served 24 hours after its dispatch.
150. Any notice or other document delivered, sent or given
to a shareholder in any manner permitted by these articles
shall, notwithstanding that such shareholder is then dead or
bankrupt or that any other event has occurred, and whether or
not the Company has notice of the death or bankruptcy or other
event, be deemed to have been duly served or delivered in
respect of any share registered in the name of such shareholder
as sole or joint holder unless his name shall, at the time of
the service or delivery of the notice or document, have been
removed from the Register as the holder of the share, and such
service or delivery shall for all purposes be deemed as
sufficient service or delivery of such notice or document on all
persons interested (whether jointly with or as claiming through
or under him) in the share.
151. A notice may be given by the Company to the persons
entitled to a share in consequence of the death or bankruptcy of
a shareholder by sending it through the post in a prepaid letter
addressed to them by name or by title of representatives of the
deceased or official assignee in bankruptcy or by any like
description at the address supplied for the purpose by the
persons claiming to be so entitled, or (until such an address
has been so supplied) by giving the notice in any manner in
which the same might have been given if the death or bankruptcy
had not occurred.
32
152. The signature (whether electronic signature, an
advanced electronic signature or otherwise) to any notice to be
given by the Company may be written (in electronic form or
otherwise) or printed.
WINDING
UP
153. The interests of the shareholders in the Company shall
be liquidated upon the occurrence of any one of the following
events (each a
“Termination Event”
):
(a) the unanimous vote of the shareholders;
(b) the involuntary liquidation of the Company; or
(c) as otherwise provided or required by applicable law.
154. Upon the occurrence of any Termination Event, the
Company shall be wound up and dissolved. In connection with the
winding up and dissolution of the Company, a liquidator
appointed by the affirmative vote of a majority of the shares
shall proceed, in its sole discretion, with the liquidation of
all the assets of the Company and the final distribution of the
assets of the Company, in the following manner and order of
priority:
(a) first, to the creditors (including any shareholders or
their respective affiliates that are creditors) of the Company
in satisfaction of all the Company’s debts and liabilities
(whether by payment or by making reasonable provision for
payment thereof, including the setting up of any reserves which
are, in the judgment of the liquidator, reasonably necessary
therefor); and
(b) second, 100% to the shareholders, proportionate to
their ownership of the total number of shares then outstanding.
155. If any dividend or other distribution shall have been
made by the Company to the shareholders prior to the
winding-up
and dissolution of the Company, any amounts received by any
shareholder from such dividends or other distributions shall be
deducted from the amount such shareholder would otherwise be
entitled to receive in the
winding-up
and dissolution of the Company, and the aggregate amount of all
dividends and other distributions previously made by the Company
to the shareholders shall be deemed to be included in amounts
available for distribution to shareholders in the event of the
winding-up
and dissolution of the Company.
156. If the Company is wound up, the liquidator may, with
the sanction of a Special Resolution of the Company and any
other sanction required by the Acts, divide among the
shareholders in specie or kind the whole or any part of the
assets of the Company (whether they shall consist of property of
the same kind or not) and may, for such purpose, set such value
as he deems fair upon any property to be divided as aforesaid
and may determine how such division shall be carried out as
between the shareholders or different classes of shareholders.
The liquidator may, with the like sanction, vest the whole or
any part of such assets in trustees upon such trusts for the
benefit of the contributories as the liquidator, with the like
sanction, shall think fit, but so that no shareholder shall be
compelled to accept any shares or other securities whereon there
is any liability.
INDEMNITY
157. Subject to the proviso below and the Acts, every
Director, officer of the Company, member of a committee of the
Board and any other persons appointed pursuant to
article 121 (each, individually, a
“Covered
Person”
) shall be indemnified out of the funds of the
Company against all liabilities, loss, damage or expense
(including but not limited to liabilities under contract, tort
and statute or any applicable foreign law or regulation and all
reasonable legal and other costs and expenses payable) incurred
or suffered by him as such Covered Person and the indemnity
contained in this article shall extend to any person acting as a
Covered Person in the reasonable belief that he has been so
appointed or elected notwithstanding any defect in such
appointment or election;
provided
always that the
indemnity contained in this article shall not extend to any
matter which would render it void pursuant to the Acts.
33
158. Every Covered Person shall be indemnified out of the
funds of the Company against all liabilities incurred or
suffered by him as such Covered Person in defending any
proceedings, whether civil or criminal, and the Company shall
pay such amounts unless expressly prohibited by the Acts.
159. To the extent that any Covered Person is entitled to
claim an indemnity pursuant to these articles in respect of
amounts paid or discharged by him, the relative indemnity shall
take effect as an obligation of the Company to reimburse the
person making such payment or effecting such discharge.
160. To the maximum degree permitted under applicable law,
each shareholder and the Company agree to waive any claim or
right of action he or it may at any time have, whether
individually or by or in the right of the Company, against any
Covered Person on account of any action taken by such Covered
Person or the failure of such Covered Person to take any action
in the performance of his duties with or for the Company;
provided, however,
that such waiver shall not apply to
any claims or rights of action arising out of the fraud or
dishonesty of such Covered Person or to recover any gain,
personal profit or advantage to which such Covered Person is not
legally entitled.
161. Subject to the Acts, expenses incurred in defending
any civil or criminal action or proceeding for which
indemnification is required pursuant to these articles shall be
paid by the Company in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by or on
behalf of the indemnified party to repay such amount if it shall
ultimately be determined that the indemnified party is not
entitled to be indemnified pursuant to these articles. Each
shareholder of the Company, by virtue of his acquisition and
continued holding of a share, shall be deemed to have
acknowledged and agreed that the advances of funds may be made
by the Company as aforesaid, and when made by the Company under
this article, are made to meet expenditures incurred for the
purpose of enabling such Covered Person to properly perform his
duties as such Covered Person.
162. The Directors shall have power to purchase and
maintain for, or for the benefit of, any person (including
themselves) who is or was at any time a Director, the Secretary
or other officer, executive, employee or agent of the Company,
or any director, executive, employee or agent of any of the
Company’s subsidiaries, insurance against any liability as
referred to in Section 200 of the Act or otherwise.
163. The Company may additionally indemnify any employee or
agent of the Company or any director, executive, employee or
agent of any of its subsidiaries to the fullest extent permitted
by law.
164. It being the policy of the Company that
indemnification of the persons specified in this article shall
be made to the fullest extent permitted by law, the
indemnification provided by this article shall not be deemed
exclusive (a) of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
these articles, any agreement, any insurance purchased by the
Company, vote of shareholders or disinterested Directors, or
pursuant to the direction (however embodied) of any court of
competent jurisdiction, or otherwise, both as to action in his
or her official capacity and as to action in another capacity
while holding such office, or (b) of the power of the
Company to indemnify any person who is or was an employee or
agent of the Company or of another company, joint venture, trust
or other enterprise which he is serving or has served at the
request of the Company, to the same extent and in the same
situations and subject to the same determinations as are
hereinabove set forth. As used in this article, references to
the “Company” include all constituent companies in a
consolidation or merger in which the Company or a predecessor to
the Company by consolidation or merger was involved. The
indemnification provided by this article shall continue as to a
person who has ceased to be a Covered Person and shall inure to
the benefit of their heirs, executors, and administrators.
UNTRACED
SHAREHOLDERS
165. The Company shall be entitled to sell at the best
price reasonably obtainable any share or stock of a shareholder
or any share or stock to which a person is entitled by
transmission if and provided that:
(a) for a period of 12 years (not less than three
dividends having been declared and paid) no cheque or warrant
sent by the Company through the post in a prepaid letter
addressed to the shareholder or to the person entitled by
transmission to the share or stock at his address on the
Register or other last known
34
address given by the shareholder or the person entitled by
transmission to which cheques and warrants are to be sent has
been cashed and no communication has been received by the
Company from the shareholder or the person entitled by
transmission;
(b) at the expiration of the said period of 12 years
the Company has given notice by advertisement in a leading
Dublin newspaper and a newspaper circulating in the area in
which the address referred to in paragraph (a) of this
article is located of its intention to sell such share or stock;
(c) the Company has not during the further period of three
months after the date of the advertisement and prior to the
exercise of the power of sale received any communication from
the shareholder or person entitled by transmission; and
(d) if any shares in the Company are listed or dealt in on
a stock exchange or automated quotation system, notice shall
have been to the relevant department of such stock exchange or
automated quotation system of the Company’s intention to
make such sale or purchase prior to the publication of
advertisements.
166. If during any
12-year
period referred to in article 165(a) above, further shares
have been issued in right of those held at the beginning of such
period or of any previously issued during such period and all
the other requirements of article 165 (other than the
requirement that they be in issue for 12 years) have been
satisfied in regard to the further shares, the Company may also
sell or purchase the further shares.
167. To give effect to any such sale the Company may
appoint any person to execute as transferor an instrument of
transfer of such share or stock and such instrument of transfer
shall be as effective as if it had been executed by the
registered holder of or person entitled by transmission to such
share or stock. The net proceeds of sale or purchase of shares
shall belong to the Company which, for the period of six years
after the transfer or purchase, shall be obliged to account to
the former shareholder or other person previously entitled as
aforesaid for an amount equal to such proceeds and shall enter
the name of such former shareholder or other person in the books
of the Company as a creditor for such amount. No trust shall be
created in respect of the debt, no interest shall be payable in
respect of the same and the Company shall not be required to
account for any money earned on the net proceeds, which may be
employed in the business of the Company or invested in such
investments as the Board from time to time thinks fit. After the
said six-year period has passed, the net proceeds of sale shall
become the property of the Company, absolutely, and any rights
of the former shareholder or other person previously entitled as
aforesaid shall terminate completely.
DESTRUCTION
OF DOCUMENTS
168. The Company may destroy:
(a) any share certificate which has been cancelled, at any
time after the expiry of one year from the date of such
cancellation;
(b) any dividend mandate or any variation or cancellation
thereof or any notification of change of name or address, at any
time after the expiry of two years from the date such mandate
variation, cancellation or notification was recorded by the
Company;
(c) any instrument of transfer of shares which has been
registered, at any time after the expiry of six years from the
date of registration; and
(d) any other document on the basis of which any entry in
the Register was made, at any time after the expiry of six years
from the date an entry in the Register was first made in respect
of it;
and it shall be presumed conclusively in favour of the Company
that every share certificate so destroyed was a valid
certificate duly and properly sealed and that every instrument
of transfer so destroyed was a valid and effective instrument
duly and properly registered and that every other document
destroyed
35
hereunder was a valid and effective document in accordance with
the recorded particulars thereof in the books or records of the
Company
provided
always that:
(a) the foregoing provisions of this article shall apply
only to the destruction of a document in good faith and without
express notice to the Company that the preservation of such
document was relevant to a claim;
(b) nothing contained in this article shall be construed as
imposing upon the Company any liability in respect of the
destruction of any such document earlier than as aforesaid or in
any case where the conditions of proviso (a) above are not
fulfilled; and
(c) references in this article to the destruction of any
document include references to its disposal in any manner.
|
|
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Names, addresses and descriptions
of subscribers
|
|
|
Willis Group Holdings Limited
Canon’s Court
22 Victoria Street
Hamilton HM 12
Bermuda
|
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Thirty Nine Thousand, Nine Hundred and Ninety Four Ordinary
Share
|
For and on behalf of
Attleborough Limited
Arthur Cox Building
Earlsfort Terrace
Dublin 2
|
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One Ordinary Share
|
For and on behalf of
Fand Limited
Arthur Cox Building
Earlsfort Terrace
Dublin 2
|
|
One Ordinary Share
|
For and on behalf of
AC Administration Services Limited
Arthur Cox Building,
Earlsfort Terrace
Dublin 2
|
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One Ordinary Share
|
Jacqueline McGowan-Smyth
Arthur Cox Building, Earlsfort Terrace,
Dublin 2
Company Secretary
|
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One Ordinary Share
|
James Heary
Arthur Cox Building, Earlsfort Terrace,
Dublin 2
Chartered Accountant
|
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One Ordinary Share
|
Emma Hickey
Arthur Cox Building, Earlsfort Terrace,
Dublin 2
Company Secretary
|
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One Ordinary Share
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Dated the 23rd day of September 2009
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Witness to the above signatures:
Louise Gaffney
Arthur Cox Building,
Earlsfort Terrace, Dublin 2
36
Companies
Acts 1963 to 2009
A PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM and ARTICLES OF ASSOCIATION
of
WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY
Arthur Cox
Arthur Cox Building
Earlsfort Terrace
Dublin 2
37
Exhibit 4.2
Issuer
WILLIS GROUP HOLDINGS LIMITED
Old Holdings
WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY
New Holdings
WILLIS NETHERLANDS HOLDINGS B.V.
New Guarantor
WILLIS INVESTMENT UK HOLDINGS LIMITED
TA I LIMITED
TA II LIMITED
TA III LIMITED
TA IV LIMITED
WILLIS GROUP LIMITED
WILLIS NORTH AMERICA INC.
the Existing Guarantors
and
THE BANK OF NEW YORK MELLON
Trustee
Second Supplemental Indenture
Dated as of December 31, 2009
to the
Indenture
Dated as of March 6, 2009
Supplemental Indenture (this “
Supplemental Indenture
”), dated December 31, 2009, among
TRINITY ACQUISITION PLC (the “Issuer”), WILLIS GROUP HOLDINGS LIMITED (“
Old Holdings
”),
WILLIS INVESTMENT UK HOLDINGS LIMITED, TA I LIMITED, TA II LIMITED, TA III LIMITED, TA IV LIMITED,
WILLIS GROUP LIMITED and WILLIS NORTH AMERICA INC. (the “
Existing Guarantors
”), and WILLIS
GROUP HOLDINGS PUBLIC LIMITED COMPANY (“
New Holdings
”) and WILLIS NETHERLANDS HOLDINGS B.V.
(“
New Guarantor
” and together with New Holdings, the “
Guaranteeing Entities
”) and
THE BANK OF NEW YORK MELLON, as trustee (the “
Trustee
”).
W I T N E S S E T H
WHEREAS, each of the Issuer, Old Holdings and the Guarantors (as defined in the Indenture
referred to below) has heretofore executed and delivered to the Trustee an indenture, dated as of
March 6, 2009, and supplemented by the First Supplemental Indenture, dated as of November 18, 2009
(together, the “
Indenture
”), providing for the issuance of $500,000,000 aggregate principal
amount of 12.875% Senior Notes due 2016 (the “
Notes
”);
WHEREAS,
Section 9.02(a)
of the Indenture provides that the Issuer, the Guarantors and
the Trustee may amend or supplement certain provisions of the Indenture, the Notes and the
Guarantees with the consent of the Required Holders voting as a single class and upon the delivery
of certain documentation to the Trustee;
WHEREAS,
Section 10.06
of the Indenture provides that a Guarantee by a Guarantor shall
be automatically and unconditionally released and discharged upon a transfer of all or
substantially all of the assets of such Guarantor, which transfer is made in compliance with the
applicable provisions of the Indenture;
WHEREAS, the Indenture provides that, under certain circumstances, the Guaranteeing Entities
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Entities shall unconditionally guarantee all of the Issuer’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “
Guarantee
”); and
WHEREAS, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree
as follows:
(1)
Capitalized Terms
. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
(2)
Amendments to Indenture
. Subject to the conditions set forth in
Article
9
, the Indenture is amended as set forth in this
Section 2
.
(a)
Section 1.01
, the definition of “Change of Control” is amended by
inserting a new paragraph after
clause (6)
, that states as follows:
“Notwithstanding the foregoing, a transfer of all or substantially all of the
assets of Holdings to a Person which expressly assumes the obligations of Holdings
under the Notes and the Indenture for the purpose of effecting a Redomestication as
permitted by
Section 5.03
of this Indenture shall not be considered a
Change of Control.
(b)
Section 1.01
, the definition of “Officer” is amended by replacing it,
in its entirety, with the following:
“means the chairman of the board, the chief executive officer, the chief financial
officer, the chief responsible officer, the chief operating officer, the president,
any executive vice president, senior vice president or vice president, the
treasurer, the secretary or (in respect of any Person organized under the laws of
England and Wales, Ireland or the Netherlands) a director or member of the sealing
committee.”
(c)
Section 1.01
is amended, by adding the following definitions:
“New Guarantor” means Willis Netherlands Holdings B.V., after assuming the
obligations of a Guarantor under the Indenture pursuant to the Second Supplemental
Indenture to this Indenture, and any successor thereto pursuant to the applicable
provisions of this Indenture.
“New Holdings” means Willis Group Holdings Public Limited Company, after
assuming the obligations of Old Holdings under the Indenture pursuant to the Second
Supplemental Indenture to this Indenture, and any successor thereto pursuant to the
applicable provisions of this Indenture.
“Old Holdings” means Willis Group Holdings Limited.
“
Redomestication
” means a series of transactions pursuant to which (a)
New Holdings shall become the publicly held indirect parent of the Issuer in lieu
of Old Holdings, (b) New Guarantor shall become a wholly-owned direct subsidiary of
New Holdings, (c) after giving effect thereto (i) New Holdings and New Guarantor
shall collectively own substantially all of the assets owned by Old Holdings prior
to any such transactions and (ii) the Issuer shall be a wholly owned, indirect
Subsidiary of New Holdings and New Guarantor and (d) after the consummation of the
transactions contemplated by
clauses (a)
,
(b)
and
(c)
above, Old Holdings may be liquidated or dissolved and cease to exist. The
Redomestication shall be deemed to have been consummated on the date on which New
Holdings and/or New Guarantor shall collectively own substantially all of the
assets (including all indirect Equity Interests in the Issuer) owned by Old
Holdings immediately prior to the transactions referred to in this definition and
New Holdings is the publicly held indirect parent company of the Issuer in lieu of
Old Holdings.
(d)
Section 5.01(a)(ii)
is amended by adding the following phrase
immediately before the semicolon at the end thereof:
“, unless such obligation is retained by the Designated Obligor”.
(e) A new
Section 5.03
is added to the Indenture to read as follows:
“Section 5.03
Successor Holdings Pursuant to Redomestication.
For the avoidance of doubt and notwithstanding anything to the contrary
contained in this Indenture, including in clauses (i), (iii), (iv) and (vi) of
Section 5.01 and in Section 5.02, (a) effective upon the transfer of all or
substantially all of the assets of Old Holdings to New Holdings, pursuant to the
Redomestication, (i) New Holdings shall automatically become “Holdings” for all
purposes under this Indenture, and any other documents delivered in connection
herewith and (ii) Old Holdings shall cease to be a Guarantor or to have any
obligations under the Notes and this Indenture and (b) effective upon the transfer
of all or substantially all of the assets of New Holdings to New Guarantor,
pursuant to the Redomestication, (i) New Guarantor shall automatically become a
“Designated Obligor” for all purposes under this Indenture, and any other documents
delivered in connection herewith and (ii) New Holdings shall continue to be
“Holdings” for all purposes under this Indenture, and any other documents delivered
in connection herewith.”
(f)
Section 10.03
is amended by striking the first paragraph of the section
and replacing it entirely with the following:
“To evidence its Guarantee set forth in
Section 10.01
hereof, each
Guarantor hereby agrees that this Indenture shall be executed on behalf of such
Guarantor by its chairman of the board, chief executive officer, chief financial
officer, chief responsible officer, chief operating officer, president, any
executive vice president, senior vice president, vice president or assistant vice
president or (in respect of any Person organized or incorporated under the laws of
England and Wales, Ireland or the Netherlands) a director or member of the sealing
committee.”
(3)
Agreement to Assume Obligations and to Guarantee
. The Guaranteeing Entities
hereby agree as follows:
(a) Pursuant to
Section 5.01(a)(ii)
and
Section 5.03
of the
Indenture, as hereby amended, upon Old Holdings’ transfer of all or substantially
all of its properties and assets to New Holdings, New Holdings expressly assumes
the obligations of Old Holdings under the Notes and the Indenture.
(b) Pursuant to
Section 5.01(a)(ii)
of the Indenture, as hereby amended,
upon New Holdings’ transfer of all or substantially all of its properties and
assets to New Guarantor, New Guarantor expressly assumes a Guarantee under the
Notes and the Indenture, and New Holdings retains all of the obligations it assumed
from Old Holdings under the Notes and the Indenture.
(c) Pursuant to
Section 5.01(b)
,
Section 5.03
, and
Section
10.06
of the Indenture, as hereby amended, upon transfer of all or
substantially all of its properties and assets, Old Holdings shall cease to have
any obligations under the Notes and the Indenture and shall be automatically and
unconditionally released and discharged from its Guarantee.
(d) Pursuant to
Section 5.01(a)(v)
, the Guaranteeing Entities along with
all Guarantors named in the Indenture, hereby agree to jointly and severally,
absolutely and unconditionally guarantee to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture, the Notes or the
obligations of the Issuer hereunder or thereunder, that:
(i) the principal of and interest and Additional Amounts, if any, premium, if
any, on the Notes will be promptly paid in full when due, whether at maturity, by
acceleration, demand, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all other
obligations of the Issuer to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance with the terms hereof
and thereof; and
(ii) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that same obligations will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. Failing payment when due
of any amount so guaranteed or any performance so guaranteed for whatever reason,
the Guarantors and each Guaranteeing Entity shall be jointly and severally
obligated to pay the same immediately. This is a guarantee of payment and not a
guarantee of collection.
(e) The obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against
the Issuer, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
(f) The following is hereby waived: any defense arising by reason of any
disability or other defense of the Issuer or any Guaranteeing Entity, or the
cessation from any cause whatsoever (including any act or omission of any Obligor)
of the liability of the Issuer; (ii) any defense based on any claim that any
Guaranteeing Entity obligations exceed or are more burdensome than those of the
Issuer; (iii) the benefit of any statute of limitations affecting any Guaranteeing
Entity’s liability hereunder; (iv) any right to proceed against the Issuer, proceed
against or exhaust any security for the Obligations under the Financing Documents,
or pursue any other remedy in the power of any Obligor whatsoever; (v) any benefit
of and any right to participate in any security now or hereafter held by any
Obligor; and (vi) to the fullest extent permitted by law, any and all other
defenses or benefits that may be derived from or afforded by applicable law
limiting the liability of or exonerating guarantors or sureties. Each Guaranteeing
Entity expressly waives all setoffs and counterclaims and all presentments, demands
for payment or performance, notices of nonpayment or nonperformance, protests,
notices of protest, notices of dishonor and all other notices or demands of any
kind or nature whatsoever with respect to the Obligations under the Financing
Documents, and all notices of acceptance of the
Guarantee or of the existence, creation or incurrence of new or additional
Obligations under the Financing Documents.
(g) This Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes, the Indenture and this Supplemental Indenture,
and each Guaranteeing Entity accepts all obligations of a Guarantor under the
Indenture.
(h) If any Holder or the Trustee is required by any court or otherwise to return to
the Issuer, the Guarantors (including any Guaranteeing Entity), or any custodian,
trustee, liquidator or other similar official acting in relation to either the
Issuer or the Guarantors, any amount paid either to the Trustee or such Holder,
this Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
(i) Neither Guaranteeing Entity shall be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
(j) As between the Guaranteeing Entities, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby
may be accelerated as provided in
Article 6
of the Indenture for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations guaranteed
hereby, and (y) in the event of any declaration of acceleration of such obligations
as provided in
Article 6
of the Indenture, such obligations (whether or not
due and payable) shall forthwith become due and payable by any Guaranteeing Entity
for the purpose of this Guarantee.
(k) Each Guaranteeing Entity shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Guarantee.
(l) Pursuant to
Section 10.02
of the Indenture, after giving effect to all
other contingent and fixed liabilities that are relevant under any applicable
Bankruptcy Law or fraudulent conveyance laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other Guarantor
under
Article 10
of the Indenture, this new Guarantee shall be limited to
the maximum amount permissible such that the obligations of such Guaranteeing
Entity under this Guarantee will not constitute a fraudulent transfer or
conveyance.
(m) This Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Issuer for liquidation,
reorganization, should the Issuer become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed for all or any
significant part of the Issuer’s assets, and shall, to the fullest extent permitted
by law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Notes are, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee
on the Notes and Guarantee, whether as a “voidable preference”, “fraudulent
transfer” or otherwise, all as though such payment or performance had not been
made. In the event that any payment or any part thereof, is rescinded, reduced,
restored or returned, the Note shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
(n) In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
(o) This Guarantee shall be a general unsecured senior obligation of such
Guaranteeing Entity, ranking
pari passu
with any other future senior Indebtedness
of such Guaranteeing Entity, if any.
(p) Each payment to be made by any Guaranteeing Entity in respect of this Guarantee
shall be made without set-off, counterclaim, reduction or diminution of any kind or
nature.
(q) Each Guaranteeing Entity consents and agree that the Holders may, at any time
and from time to time, without notice or demand, and without affecting the
enforceability or continuing effectiveness hereof: (i) amend, extend, renew,
compromise, discharge, accelerate or otherwise change the time for payment or the
terms of the Obligations under the Financing Documents or any part thereof; and
(ii) release or substitute one or more of any endorsers or other guarantors of any
of the Obligations under the Financing Documents. Without limiting the generality
of the foregoing, the Guarantors consent to the taking of, or failure to take, any
action which might in any manner or to any extent vary the risks of any
Guaranteeing Entity under this Supplemental Indenture or which, but for this
provision, might operate as a discharge of such Guaranteeing Entity.
(4)
Conditions Precedent to Effectiveness
. This Guarantee shall become effective upon
the satisfaction of each of the conditions precedent set forth in this
Section 3
:
(a) The Trustee shall have received evidence of consent of the Required Holders to
amend the Indenture pursuant to
Section 9.02(a)
of the Indenture along with
the documents described in
Section 7.02(b)
,
Section 9.02(a)
,
Section 9.05
and
Section 12.03
of the Indenture.
(b) The Trustee shall have received a certificate of each Guaranteeing Entity,
dated as of the date hereof, as to the authority and signatures of those Persons
authorized to execute, deliver, perform and to act with respect to each instrument,
agreement or other document to be executed in connection with the transactions
contemplated in connection herewith, upon which certificate the Trustee and each
Holder, including each assignee (whether or not it shall have then become a party
hereto), may conclusively rely until it shall have received a further certificate
of each Guaranteeing Entity canceling or amending such prior certificate;
(c) The Trustee shall have received a copy of the organization documents of each
Guaranteeing Entity, each certified in a manner reasonably satisfactory to the
Trustee, and a copy of the certificate of registration or incorporation, as
applicable, and, if applicable, a certificate of good standing for each
Guaranteeing Entity issued by the appropriate governmental office in its
jurisdiction of organization;
(d) The Trustee shall have received executed counterparts of this Supplemental
Indenture;
(e) The Trustee shall have received a certificate of each Guaranteeing Entity
addressed to the Trustee and the Holders, dated as of the date hereof, in form and
substance reasonably satisfactory to the Trustee, to the effect that, as of such
date all conditions set forth in this
Section 4
have been fulfilled;
(f) The Trustee shall have received such other instruments, agreements, legal
opinions addressed to the Trustee and, during any period which is a Holding Period,
the Required Holders (including legal opinions regarding corporate, enforceability
and security matters) as it shall request.
(5)
Execution and Delivery
. Each Guaranteeing Entity agrees that the Guarantee shall
remain in full force and effect notwithstanding the absence of the endorsement of any notation of
such Guarantee on the Notes.
(6)
Merger, Consolidation or Sale of All or Substantially All Assets
. A Guaranteeing
Entity may not consolidate or merge with or into or wind up into (whether or not the Issuer or
Guaranteeing Entity is the surviving corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets, in one or more related
transactions, to any Person except as provided in
Article 5
of the Indenture.
(7)
Releases
. The Guarantees of the Guaranteeing Entities shall be automatically and
unconditionally released and discharged, and no further action by such Guaranteeing Entity, the
Issuer or the Trustee is required for the release of such Guaranteeing Entity’s Guarantee, upon:
(i) (A) any sale, exchange or transfer (by merger or otherwise) of the Capital
Stock of any Guaranteeing Entity (including any sale, exchange or transfer), after
which such Guaranteeing Entity is no longer a Subsidiary of Holdings or all or
substantially all the assets of such Guaranteeing Entity, which sale, exchange or
transfer is made in compliance with the applicable provisions of the Indenture; or
(B) the Issuer exercising its Legal Defeasance option or Covenant Defeasance option
in accordance with
Article 8
of the Indenture or the Issuer’s obligations
under the Indenture being discharged in accordance with the terms of the Indenture;
and
(ii) delivery by such Guaranteeing Entity to the Trustee of an Officer’s
Certificate and an Opinion of Counsel, each stating that all conditions precedent
provided for in the Indenture relating to such transaction have been complied with.
(8)
No Recourse Against Others
. No director, officer, employee, incorporator or
stockholder of any Guaranteeing Entity shall have any liability for any obligations of the Issuer
or the Guarantors (including such Guaranteeing Entity) under the Notes, any Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder by accepting Notes waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Notes.
(9)
Governing Law
. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(10)
Counterparts
. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
(11)
Effect of Headings
. The section headings herein are for convenience only and
shall not affect the construction hereof.
(12)
The Trustee
. The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Entities
and the other parties hereto.
(13)
Subrogation
. Each Guaranteeing Entity shall be subrogated to all rights of
Holders of Notes against the Issuer in respect of any amounts paid by such Guaranteeing Entity
pursuant to the provisions of
Section 2
hereof and
Section 10.01
of the Indenture;
provided
that, if an Event of Default has occurred and is continuing, such Guaranteeing
Entity shall not be entitled to enforce or receive any payments arising out of, or based upon, such
right of subrogation until all amounts then due and payable by the Issuer under the Indenture or
the Notes shall have been paid in full.
(14)
Benefits Acknowledged
. Each Guaranteeing Entity’s Guarantee is subject to the
terms and conditions set forth in the Indenture. The Guaranteeing Entity acknowledges that it will
receive direct and indirect benefits from the financing arrangements contemplated by the Indenture
and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to this
Guarantee are knowingly made in contemplation of such benefits.
(15)
Successors
. All agreements of each Guaranteeing Entity in this Supplemental
Indenture shall bind its successors, except as otherwise provided in
Section 3(n)
hereof or
elsewhere in this Supplemental Indenture. All agreements of the Trustee in this Supplemental
Indenture shall bind its successors.
(16)
Notice of Transfers
. The Guaranteeing Entities shall give the Trustee prompt
written notice of Old Holdings’ transfer of all or substantially all of its properties and
assets to New Holdings and of New Holdings’ transfer of all or substantially all of its
properties and assets to New Guarantor promptly after each such transfer.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the date first above written.
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TRINITY ACQUISITION PLC
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By:
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/s/ Patrick C. Regan
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Name:
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Patrick C. Regan
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Title:
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Director
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WILLIS GROUP HOLDINGS LIMITED
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By:
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/s/ Patrick C. Regan
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Name:
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Patrick C. Regan
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Title:
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Chief Financial Officer and Group Chief
Operating Officer
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WILLIS INVESTMENT UK HOLDINGS LIMITED
TA I LIMITED
TA II LIMITED
TA III LIMITED
TA IV LIMITED
WILLIS GROUP LIMITED
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By:
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/s/ Patrick C. Regan
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Name:
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Patrick C. Regan
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Title:
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Director
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[Signature page to the Second Supplemental Indenture]
WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY
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PRESENT
when the common seal of
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WILLIS GROUP HOLDINGS
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/s/ Patrick C. Regan
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PUBLIC LIMITED COMPANY
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DIRECTOR/ MEMBER OF SEALING COMMITTEE
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was affixed to this Deed:-
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/s/ Adam G. Ciongoli
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DIRECTOR/ MEMBER OF SEALING COMMITTEE
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Witness’s signature:
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/s/ David Molloy
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Name:
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David Molloy
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Address:
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Earlsfort Terrace, Dublin 2
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Occupation:
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Solicitor
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[Signature page to the Second Supplemental Indenture]
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WILLIS NETHERLANDS HOLDINGS B.V.
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By:
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/s/ A. C. Konijnendijk
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Name:
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A. C. Konijnendijk
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Title:
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Managing Director A
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[Signature page to the Second Supplemental Indenture]
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WILLIS NORTH AMERICA INC.
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By:
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/s/ Donald J Bailey
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Name:
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Donald J Bailey
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Title:
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Chief Executive Officer and President
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[Signature page to the Second Supplemental Indenture]
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THE BANK OF NEW YORK MELLON, as Trustee
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By:
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/s/ Timothy E. Burke
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Name:
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Timothy E. Burke
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Title:
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Vice President
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[Signature page to the Second Supplemental Indenture]
Exhibit 10.1
GUARANTY AGREEMENT
dated as of
October 1, 2008
among
WILLIS NORTH AMERICA INC.,
WILLIS GROUP HOLDINGS LIMITED,
THE OTHER GUARANTORS
IDENTIFIED HEREIN
and
BANK OF AMERICA, N.A.,
as Administrative Agent
TABLE OF CONTENTS
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ARTICLE I Definitions
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1
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SECTION 1.01. Credit Agreement
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1
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SECTION 1.02. Other Defined Terms
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1
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ARTICLE II The Guaranty
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2
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SECTION 2.01. Guaranty
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2
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SECTION 2.02. Guarantee of Payment
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2
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SECTION 2.03. No Limitations
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2
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SECTION 2.04. Reinstatement
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3
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SECTION 2.05. Agreement To Pay; Subrogation
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3
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SECTION 2.06. Information
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4
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ARTICLE III Indemnity, Subrogation and Subordination
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4
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SECTION 3.01. Indemnity and Subrogation
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4
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SECTION 3.02. Contribution and Subrogation
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4
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SECTION 3.03. Subordination.
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5
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ARTICLE IV Miscellaneous
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5
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SECTION 4.01. Notices
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5
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SECTION 4.02. Waivers; Amendment
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5
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SECTION 4.03. Administrative Agent’s Fees and Expenses; Indemnification
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5
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SECTION 4.04. Successors and Assigns
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6
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SECTION 4.05. Survival of Agreement
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6
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SECTION 4.06. Counterparts; Effectiveness; Several Agreement
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6
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SECTION 4.07. Severability
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7
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SECTION 4.08. Right of Set-Off
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7
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SECTION 4.09. Governing Law; Jurisdiction; Consent to Service of Process
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7
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SECTION 4.10. WAIVER OF JURY TRIAL
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8
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SECTION 4.11. Headings
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9
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SECTION 4.12. Termination
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9
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SECTION 4.13. Additional Guarantors
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9
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Exhibits
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Exhibit A
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Form of Supplement
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GUARANTY AGREEMENT (this “
Guaranty Agreement
”) dated as of October 1, 2008, among
WILLIS NORTH AMERICA INC. (the “
Borrower
”), WILLIS GROUP HOLDINGS LIMITED (the
“
Parent
”), the other Guarantors (as defined below) and BANK OF AMERICA, N.A., as
Administrative Agent (the “
Administrative Agent
”).
Reference is made to the Credit Agreement dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the “
Credit Agreement
”), among the
Borrower, the Parent, the Lenders party thereto and the Administrative Agent. The Lenders have
agreed to extend credit to the Borrower subject to the terms and conditions set forth in the Credit
Agreement. The obligations of the Lenders to extend such credit are conditioned upon, among other
things, the execution and delivery of this Guaranty Agreement. The Parent and the other Guarantors
are affiliates of the Borrower, will derive substantial benefits from the extension of credit to
the Borrower pursuant to the Credit Agreement and are willing to execute and deliver this Guaranty
Agreement in order to induce the Lenders to extend such credit. Accordingly, the parties hereto
agree as follows:
ARTICLE I
Definitions
SECTION 1.01.
Credit Agreement
. (a) Capitalized terms used in this Guaranty Agreement
and not otherwise defined herein have the meanings specified in the Credit Agreement.
(b) The rules of construction specified in Section 1.02 of the Credit Agreement also apply
to this Guaranty Agreement.
SECTION 1.02.
Other Defined Terms
. As used in this Guaranty Agreement, the following
terms have the meanings specified below:
“
Administrative Agent
” has the meaning assigned to such term in the preliminary
statement of this Guaranty Agreement.
“
Borrower
” has the meaning assigned to such term in the preliminary statement of this
Guaranty Agreement.
“
Credit Agreement
” has the meaning assigned to such term in the preliminary statement
of this Guaranty Agreement.
“
Guaranty Agreement
” has the meaning assigned to such term in the preliminary
statement of this Guaranty Agreement.
“
Guaranteed Parties
” means (a) the Lenders, (b) the Administrative Agent, (c) the
Swing Line Lender, (d) the beneficiaries of each indemnification obligation undertaken by any Loan
Party under any Loan Document and (e) the successors and assigns of each of the foregoing.
“
Guarantors
” means the Parent, each of its Subsidiaries identified on Schedule 1.01(b)
of the Credit Agreement and each Subsidiary that, at the Parent’s election, becomes a party to this
Guaranty Agreement as a Guarantor after the Closing Date.
“
Obligations
” means (a) the due and punctual payment by the Borrower of (i) the
principal of and interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, and (ii) all other monetary obligations of the Borrower
to any of the Guaranteed Parties under the Credit Agreement and each of the other Loan Documents,
including obligations to pay fees, expense reimbursement obligations and indemnification
obligations, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such proceeding), and (b) the due
and punctual payment of all the obligations of each other Loan Party under or pursuant to this
Guaranty Agreement and each of the other Loan Documents.
“
Non-Parent Guarantors
” means each Guarantor that does not wholly-own (directly or
indirectly) the Borrower.
“
Parent
” has the meaning assigned to such term in the preliminary statement of this
Guaranty Agreement.
“
Parent Guarantors
” means each Guarantor that wholly-owns (directly or indirectly) the
Borrower.
ARTICLE II
The Guaranty
SECTION 2.01.
Guaranty
. Each Guarantor unconditionally guarantees, jointly with the
other Guarantors and severally, as a primary obligor and not merely as a surety, the due and
punctual payment and performance of the Obligations. Each of the Guarantors further agrees that
the Obligations may be extended or renewed, in whole or in part, without notice to or further
assent from it, and that it will remain bound upon its guarantee notwithstanding any extension or
renewal of any Obligation. Each of the Guarantors waives presentment to, demand of payment from
and protest to the Borrower or any other Loan Party of any of the Obligations, and also waives
notice of acceptance of its guarantee and notice of protest for nonpayment.
SECTION 2.02.
Guarantee of Payment
. Each of the Guarantors further agrees that its
guarantee hereunder constitutes a guarantee of payment when due and not of collection, and waives
any right to require that any resort be had by the Guaranteed Parties to any balance of any deposit
account or credit on the books of any Guaranteed Party in favor of the Borrower or any other
Person.
SECTION 2.03.
No Limitations
. (a) Except for termination of a Guarantor’s obligations
hereunder as expressly provided in Section 4.12, the obligations of each Guarantor hereunder shall
not be subject to any reduction, limitation, impairment or termination
2
for any reason, including any claim of waiver, release, surrender, alteration or compromise,
and shall not be subject to any defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor
hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of any
Guaranteed Party to assert any claim or demand or to enforce any right or remedy under the
provisions of any Loan Document or otherwise; (ii) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of, any Loan Document or any
other agreement, including with respect to any other Guarantor under this Guaranty Agreement; (iii)
the release of any security held by any Guaranteed Party for any of the Obligations; (iv) any
default, failure or delay, willful or otherwise, in the performance of the Obligations; or (v) any
other act or omission that may or might in any manner or to any extent vary the risk of any
Guarantor or otherwise operate as a discharge of any Guarantor as a matter of law or equity (other
than the indefeasible payment in full in cash of all the Obligations). Each Guarantor expressly
authorizes the Guaranteed Parties to take and hold security for the payment and performance of the
Obligations, to exchange, waive or release any or all such security (with or without
consideration), to enforce or apply such security and direct the order and manner of any sale
thereof in their sole discretion or to release or substitute any one or more other guarantors or
obligors upon or in respect of the Obligations, all without affecting the obligations of any
Guarantor hereunder.
(b) To the fullest extent permitted by applicable law, each Guarantor waives any defense
based on or arising out of any defense of the Borrower or any other Loan Party or the
unenforceability of the Obligations or any part thereof from any cause, or the cessation from any
cause of the liability of the Borrower or any other Loan Party, other than the indefeasible
payment in full in cash of all the Obligations. The Guaranteed Parties may, at their election,
foreclose on any security held by one or more of them by one or more judicial or nonjudicial
sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any
part of the Obligations, make any other accommodation with the Parent, the Borrower or any other
Loan Party or exercise any other right or remedy available to them against the Parent, the
Borrower or any other Loan Party, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Obligations have been fully and indefeasibly paid in
full in cash. To the fullest extent permitted by applicable law, each Guarantor waives any
defense arising out of any such election even though such election operates, pursuant to
applicable law, to impair or to extinguish any right of reimbursement or subrogation or other
right or remedy of such Guarantor against the Parent, the Borrower or any other Loan Party, as
the case may be, or any security.
SECTION 2.04.
Reinstatement
. Each of the Guarantors agrees that its guarantee
hereunder shall continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by any
Guaranteed Party upon the bankruptcy or reorganization of the Borrower, any other Loan Party or
otherwise.
SECTION 2.05.
Agreement To Pay; Subrogation
. In furtherance of the foregoing and not
in limitation of any other right that the Administrative Agent or any other
3
Guaranteed Party has at law or in equity against any Guarantor by virtue hereof, upon the
failure of the Borrower or any other Loan Party to pay any Obligation when and as the same shall
become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each
Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Administrative
Agent for distribution to the applicable Guaranteed Parties in cash the amount of such unpaid
Obligation. Upon payment by any Guarantor of any sums to the Administrative Agent as provided
above, all rights of such Guarantor against the Borrower or any other Loan Party arising as a
result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subject to Article III.
SECTION 2.06.
Information
. Each Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower’s and each other Loan Party’s financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of the Obligations and
the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and
agrees that none of the Guaranteed Parties will have any duty to advise such Guarantor of
information known to it or any of them regarding such circumstances or risks.
ARTICLE III
Indemnity, Subrogation and Subordination
SECTION 3.01.
Indemnity and Subrogation
. In addition to all such rights of indemnity
and subrogation as the Guarantors may have under applicable law (but subject to Section 3.03), the
Borrower agrees that in the event a payment of an Obligation shall be made by any Guarantor under
this Guaranty Agreement, the Borrower shall indemnify such Guarantor for the full amount of such
payment and such Guarantor shall be subrogated to the rights of the Person to whom such payment
shall have been made to the extent of such payment.
SECTION 3.02.
Contribution and Subrogation
. (a) Each Non-Parent Guarantor (a
“
Contributing Party
”) agrees (subject to Section 3.03) that, in the event a payment shall
be made by any other Non-Parent Guarantor hereunder in respect of any Obligation and such other
Guarantor (the “
Claiming Party
”) shall not have been fully indemnified by the Borrower as
provided in Section 3.01, the Contributing Party shall indemnify the Claiming Party in an amount
equal to the amount of such payment, multiplied by a fraction of which the numerator shall be the
net worth of the Contributing Party on the date hereof and the denominator shall be the aggregate
net worth of all the Non-Parent Guarantors on the date hereof (or, in the case of any Non-Parent
Guarantor becoming a party hereto pursuant to Section 4.13, the date of the supplement hereto
executed and delivered by such Non-Parent Guarantor). Any Contributing Party making any payment to
a Claiming Party pursuant to this Section 3.02 shall be subrogated to the rights of such Claiming
Party under Section 3.01 to the extent of such payment.
(b) Notwithstanding anything to the contrary contained herein, the parties hereto acknowledge
and agree that each Non-Parent Guarantor shall have a right of reimbursement and indemnity from
each Parent Guarantor (to the extent such Non-Parent Guarantor is a wholly-owned Subsidiary of such
Parent Guarantor) for any amount paid by such Non-Parent Guarantor in lieu of a right of
contribution between such Non-Parent Guarantor and such Parent Guarantor.
4
SECTION 3.03. Subordination. (a) Notwithstanding any provision of this Guaranty Agreement to
the contrary, all rights of the Guarantors under Sections 3.01 and 3.02 and all other rights of
indemnity, contribution or subrogation under applicable law or otherwise shall be fully
subordinated to the indefeasible payment in full in cash of the Obligations. No failure on the
part of the Borrower or any Guarantor to make the payments required by Sections 3.01 and 3.02 (or
any other payments required under applicable law or otherwise) shall in any respect limit the
obligations and liabilities of any Guarantor with respect to its obligations hereunder, and each
Guarantor shall remain liable for the full amount of the obligations of such Guarantor hereunder.
(b) Each Guarantor hereby agrees that all Indebtedness and other monetary obligations owed by
it to any other Guarantor or any other Subsidiary shall be fully subordinated to the indefeasible
payment in full in cash of the Obligations.
ARTICLE IV
Miscellaneous
SECTION 4.01.
Notices
. All communications and notices hereunder shall (except as
otherwise expressly permitted herein) be in writing and given as provided in Section 10.02 of the
Credit Agreement. All communications and notices hereunder to any Guarantor shall be given to it
in care of the Borrower as provided in Section 10.02 of the Credit Agreement.
SECTION 4.02.
Waivers; Amendment
. (a) No failure or delay by the Administrative Agent
or any Lender in exercising any right or power hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other
or further exercise thereof or the exercise of any other right or power. The rights and remedies
of the Administrative Agent and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Guaranty Agreement or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of
this Section 4.02, and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the foregoing, the making
of a Loan shall not be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such Default at the time.
No notice or demand on any Loan Party in any case shall entitle any Loan Party to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Guaranty Agreement nor any provision hereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered into by the
Administrative Agent and the Loan Party or Loan Parties with respect to which such waiver,
amendment or modification is to apply, subject to any consent required in accordance with Section
10.01 of the Credit Agreement.
SECTION 4.03.
Administrative Agent’s Fees and Expenses; Indemnification
. (a) The
parties hereto agree that the Administrative Agent shall be entitled to
5
reimbursement of its expenses incurred hereunder as provided in Section 10.04 of the Credit
Agreement.
(b) Without limitation of its indemnification obligations under the other Loan Documents,
each Guarantor jointly and severally agrees to indemnify the Administrative Agent and the other
Indemnitees (as defined in Section 10.04(b) of the Credit Agreement) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a result of, the
execution, delivery or performance of this Guaranty Agreement or any claim, litigation,
investigation or proceeding relating to any of the foregoing agreement or instrument contemplated
hereby, whether or not any Indemnitee is a party thereto;
provided
that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Indemnitee or any of its Related Parties.
(c) Any such amounts payable as provided hereunder shall be additional Obligations
guaranteed hereunder. The provisions of this Section 4.03 shall remain operative and in full
force and effect regardless of the termination of this Guaranty Agreement or any other Loan
Document, the consummation of the transactions contemplated hereby, the repayment of any of the
Obligations, the invalidity or unenforceability of any term or provision of this Guaranty
Agreement or any other Loan Document, or any investigation made by or on behalf of any Guaranteed
Party. All amounts due under this Section 4.03 shall be payable on written demand therefor.
SECTION 4.04.
Successors and Assigns
. Whenever in this Guaranty Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the permitted successors
and assigns of such party; and all covenants, promises and agreements by or on behalf of any
Guarantor or the Administrative Agent that are contained in this Guaranty Agreement shall bind and
inure to the benefit of their respective successors and assigns.
SECTION 4.05.
Survival of Agreement
. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this Guaranty Agreement or any
other Loan Document shall be considered to have been relied upon by the Lenders and shall survive
the execution and delivery of the Loan Documents and the making of any Loans, regardless of any
investigation made by any Lender or on its behalf and notwithstanding that the Administrative Agent
or any Lender may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended under the Credit Agreement, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under any Loan Document is outstanding and unpaid and so long as the
Commitments have not expired or terminated.
SECTION 4.06.
Counterparts; Effectiveness; Several Agreement
. This Guaranty Agreement
may be executed in counterparts, each of which shall constitute an original but all of which when
taken together shall constitute single contract. Delivery of an executed
6
signature page to this Guaranty Agreement by facsimile transmission or other electronic
imaging means shall be as effective as delivery of a manually signed counterpart of this Guaranty
Agreement. This Guaranty Agreement shall become effective as to any Loan Party when a counterpart
hereof executed on behalf of such Loan Party shall have been delivered to the Administrative Agent
and a counterpart hereof shall have been executed on behalf of the Administrative Agent, and
thereafter shall be binding upon such Loan Party and the Administrative Agent and their respective
permitted successors and assigns, and shall inure to the benefit of such Loan Party, the
Administrative Agent and the other Guaranteed Parties and their respective successors and assigns,
except that no Loan Party shall have the right to assign or transfer its rights or obligations
hereunder or any interest herein (and any such assignment or transfer shall be void) except as
expressly contemplated by this Guaranty Agreement or the Credit Agreement. This Guaranty Agreement
shall be construed as a separate agreement with respect to each Loan Party and may be amended,
modified, supplemented, waived or released with respect to any Loan Party without the approval of
any other Loan Party and without affecting the obligations of any other Loan Party hereunder.
SECTION 4.07.
Severability
. Any provision of this Guaranty Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability without affecting the
validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 4.08.
Right of Set-Off
. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of any Guarantor against
any of and all the obligations of such Guarantor then due and owing under this Guaranty Agreement
to such Lender, irrespective of whether or not such Lender shall have made any demand under this
Guaranty Agreement. The rights of each Lender under this Section 4.08 are in addition to other
rights and remedies (including other rights of set-off) which such Lender may have.
SECTION 4.09.
Governing Law; Jurisdiction; Consent to Service of Process
. (a) This
Guaranty Agreement shall be construed in accordance with and governed by the law of the State of
New York.
(b) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District Court of the Southern District of
New York, and any appellate court from any thereof, in any action or proceeding arising out of or
relating to this Guaranty Agreement or any other Loan Document, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be
7
heard and determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Guaranty Agreement or any other Loan
Document shall affect any right that any of the parties hereto, the Swing Line Lender or any
Lender may otherwise have to bring any action or proceeding relating to this Guaranty Agreement
or any other Loan Document against any Guarantor, in the courts of any jurisdiction.
(c) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty
Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section
4.09. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) The Parent hereby irrevocably appoints Adam G. Ciongoli (c/o Willis North America Inc.,
One World Financial Center, 200 Liberty Street, 7th floor, New York, New York 10281), and the
Borrower hereby appoints CT Corporation, in each case, as its authorized agent in the Borough of
Manhattan of the City of New York upon which process may be served in any such suit or
proceeding, and agrees that service of process upon such agent, and written notice of said
service to the Parent or the Borrower, as applicable, by the person serving the same in the
manner provided for notices in Section 4.01, shall be deemed in every respect effective service
of process upon such party in any such suit or proceeding. The Parent and the Borrower further
agree to take any and all action as may be necessary to maintain such designation and appointment
of such agents in full force and effect from the date hereof until the Commitments have expired
or been terminated and all Obligations shall have been indefeasibly paid in full. Each other
Guarantor irrevocably consents to service of process delivered by hand or overnight courier
service, mailed by certified or registered mail, to Willis North America, Inc., One World
Financial Center, 200 Liberty Street, 7th floor, New York, New York 10281 (Attention: Adam G.
Ciongoli), and the Administrative Agent irrevocably consents to service of process in the manner
provided for notices in Section 4.01. Nothing in this Guaranty Agreement or any other Loan
Document will affect the right of any party to this Guaranty Agreement to serve process in any
other manner permitted by law.
SECTION 4.10.
WAIVER OF JURY TRIAL
. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT, ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE
8
BEEN INDUCED TO ENTER INTO THIS GUARANTY AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 4.10.
SECTION 4.11.
Headings
. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Guaranty Agreement and are not
to affect the construction of, or to be taken into consideration in interpreting, this Guaranty
Agreement.
SECTION 4.12.
Termination
. (a) Subject to Section 2.04, this Guaranty Agreement and
the Guarantees made herein shall terminate when all the outstanding Obligations have been
indefeasibly paid in full and the Lenders have no further commitment to lend under the Credit
Agreement.
(b) A Guarantor (other than the Parent) shall automatically be released from its obligations
hereunder upon the consummation of any transaction permitted by the Credit Agreement as a result
of which such Guarantor ceases to be a Subsidiary of the Parent;
provided
that the
Required Lenders shall have consented to such transaction (to the extent required by the Credit
Agreement) and the terms of such consent did not provide otherwise.
SECTION 4.13.
Additional Guarantors
. Pursuant to the Credit Agreement, the Parent, at
its option, may elect that additional Subsidiaries become Guarantors hereunder after the date
hereof. If the Parent shall elect that any Subsidiary become a Guarantor hereunder, such
Subsidiary shall become a Guarantor hereunder with the same force and effect as if originally named
as a Guarantor herein upon (a) execution and delivery by the Administrative Agent and such
Subsidiary of an instrument in the form of Exhibit A hereto and (b) delivery to the Administrative
Agent of such Organization Documents, resolutions and favorable opinions of counsel or may be
requested by the Administrative Agent in its reasonable discretion, all in form, content and scope
reasonably satisfactory to the Administrative Agent. The execution and delivery of any such
instrument shall not require the consent of any other Loan Party hereunder. The rights and
obligations of each Loan Party hereunder shall remain in full force and effect notwithstanding the
addition of any new Loan Party as a party to this Guaranty Agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Guaranty Agreement as of the
day and year first above written.
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BORROWER:
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WILLIS NORTH AMERICA, INC.
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By:
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/s/ Donald J. Bailey
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Name:
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Donald J. Bailey
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Title:
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CFO
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PARENT GUARANTORS:
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WILLIS GROUP HOLDINGS LIMITED
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By:
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/s/ Patrick C. Regan
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Name:
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Patrick C. Regan
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Title:
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CFO
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TA I LIMITED
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By:
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/s/ Patrick C. Regan
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Name:
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Patrick C. Regan
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Title:
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Director
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TA II LIMITED
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By:
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/s/ Patrick C. Regan
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Name:
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Patrick C. Regan
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Title:
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Director
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TA III LIMITED
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By:
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/s/ Patrick C. Regan
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Name:
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Patrick C. Regan
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Title:
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Director
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TA IV LIMITED
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By:
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/s/ Patrick C. Regan
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Name:
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Patrick C. Regan
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Title:
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Director
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TRINITY ACQUISITION LIMITED
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By:
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/s/ Patrick C. Regan
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Name:
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Patrick C. Regan
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Title:
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Director
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WILLIS GROUP LIMITED
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By:
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/s/ Patrick C. Regan
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Name:
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Patrick C. Regan
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Title:
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Director
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WILLIS INVESTMENT UK HOLDINGS LIMITED
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By:
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/s/ Patrick C. Regan
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Name:
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Patrick C. Regan
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Title:
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Director
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BANK OF AMERICA, N.A.,
as Administrative Agent
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By:
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/s/ Aamir Saleem
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Name:
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Aamir Saleem
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Title:
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Vice President
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Exhibit A to the
Guaranty Agreement
SUPPLEMENT NO.___dated as of ___, 20___, to the Guaranty Agreement dated as of October
1, 2008 among WILLIS NORTH AMERICA INC., a Delaware corporation (the “
Borrower
”), WILLIS
GROUP HOLDINGS LIMITED, an exempted company under the Companies Act 1981 of Bermuda (the
“
Parent
”), each Subsidiary constituting a “Guarantor” thereunder as of date hereof (each of
the Parent and each such Subsidiary, individually, a “
Guarantor
” and collectively, the
“
Guarantors
”) and BANK OF AMERICA, N.A., as Administrative Agent.
A. Reference is made to the Credit Agreement dated as of October 1, 2008 (as amended,
supplemented or otherwise modified from time to time, the “
Credit Agreement
”), among the
Borrower, the Parent, the Lenders from time to time party thereto and Bank of America, N.A., as
Administrative Agent.
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement and the Guaranty Agreement referred to therein.
C. The Guarantors have entered into the Guaranty Agreement in order to induce the Lenders to
make Loans. Section 4.13 of the Guaranty Agreement provides that additional Subsidiaries of the
Parent may become Guarantors under the Guaranty Agreement by execution and delivery of an
instrument in the form of this Supplement. The undersigned Subsidiary (the “
New
Subsidiary
”) is executing this Supplement to become a Guarantor under the Guaranty Agreement in
order to induce the Lenders to make additional Loans and as consideration for Loans previously
made.
Accordingly, the Administrative Agent and the New Subsidiary agree as follows:
SECTION 1. In accordance with Section 4.13 of the Guaranty Agreement, the New Subsidiary by
its signature below becomes a Guarantor under the Guaranty Agreement with the same force and effect
as if originally named therein as a Guarantor, and the New Subsidiary hereby (a) agrees to all the
terms and provisions of the Guaranty Agreement applicable to it as a Guarantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a Guarantor
thereunder are true and correct on and as of the date hereof. Each reference to a “Guarantor” in
the Guaranty Agreement shall be deemed to include the New Subsidiary. The Guaranty Agreement is
hereby incorporated herein by reference.
SECTION 2. The New Subsidiary represents and warrants to the Administrative Agent and the
other Guaranteed Parties that this Supplement has been duly authorized, executed and delivered by
it and constitutes its legal, valid and binding obligation, enforceable against it in accordance
with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Supplement shall become effective when the
Administrative Agent shall have received (a) a counterpart of this Supplement
13
that bears the signature of the New Subsidiary and the Administrative Agent has executed a
counterpart hereof and (b) such other documents and opinions as the Administrative Agent may have
requested in accordance with Section 4.13 of the Guaranty Agreement. Delivery of an executed
signature page to this Supplement by facsimile transmission or other electronic imaging means shall
be as effective as delivery of a manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guaranty Agreement shall remain in
full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this Supplement should be
held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and in the Guaranty Agreement shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a particular provision in
a particular jurisdiction shall not in and of itself affect the validity of such provision in any
other jurisdiction). The parties hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing and given as provided
in Section 10.02 of the Credit Agreement.
SECTION 8. The New Subsidiary agrees to reimburse the Administrative Agent for its reasonable
out-of-pocket expenses in connection with this Supplement, including the reasonable fees, other
charges and disbursements of counsel for the Administrative Agent.
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IN WITNESS WHEREOF, the New Subsidiary and the Administrative Agent have duly executed this
Supplement to the Guaranty Agreement as of the day and year first above written.
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[NAME OF NEW SUBSIDIARY],
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By
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Name:
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Title:
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BANK OF AMERICA, N.A.,
as Administrative Agent
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By
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Name:
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Title:
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15
Exhibit 10.5
1998 SHARE PURCHASE AND OPTION PLAN
FOR KEY EMPLOYEES OF WILLIS GROUP HOLDINGS
AS AMENDED AND RESTATED ON DECEMBER 30, 2009 BY WILLIS GROUP HOLDINGS LIMITED
AND AS AMENDED AND RESTATED AND ASSUMED BY WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY ON
DECEMBER 31, 2009
1. PURPOSE OF PLAN
The 1998 Share Purchase and Option Plan for Key Employees of Willis Group Holdings, as amended
and restated on December 30, 2009 by Willis Group Holdings Limited and as amended and restated and assumed by Willis Group
Holdings Public Limited Company on December 31, 2009 (the “Plan”), is designed:
(a) to promote the long term financial interests and growth of Willis
Group Holdings Public Limited Company and its subsidiaries by attracting and retaining management
personnel with the training, experience and ability to enable them to make a substantial
contribution to the success of the Company’s business;
(b) to motivate management personnel by means of growth-related incentives to achieve long
range goals; and
(c) to further the alignment of interests of participants with those of the shareholders of
the Company through opportunities for increased share
ownership in the Company.
2. DEFINITIONS
As used in the Plan, the following words shall have the following
meanings:
(a) “Act” means the Companies Act 1963 of Ireland.
(b) “Affiliate” shall mean with respect to any Person, any entity directly or indirectly
controlling, controlled by or under common control with such Person.
(c) “Board of Directors” means the Board of Directors of the Company.
(d) “Change of Control” means (i) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the
rules of the U.S. Securities and Exchange Commission there under as in effect on the date hereof)
of the Ordinary Shares of the Company representing more than 50% of the aggregate voting power
represented by the issued and outstanding Ordinary Shares of the Company; or (ii) occupation of a
majority of the seats (other than vacant seats) on the Board of Directors by persons(as defined in
Sections 13(d) and 14(d) of the Exchange Act) who were neither (x) nominated by the Board of
Directors nor (y) appointed by directors so nominated. For the avoidance of doubt, a transaction
shall not constitute a Change of Control or other consolidating event described in Section 9
below(i) if effected for the purpose of changing the place of incorporation or form of organization
of the ultimate parent entity of the Willis group of companies (including where the
Company is succeeded by an issuer incorporated under the laws of another state, country or foreign
government for such purpose and whether or not the Company remains in existence following such
transaction) and (ii) where all or substantially all of the person(s)who are the beneficial owners
of the outstanding voting securities of the Company immediately prior to such transaction will
beneficially own, directly or indirectly, all or substantially all of the combined voting power of
the outstanding voting securities entitled to vote generally in the election of directors of the
ultimate parent entity resulting from such transaction in substantially the same proportions as
their ownership, immediately prior to such transaction, of such outstanding securities of the
Company. The Board of Directors, in its sole discretion, may make an appropriate and equitable
adjustment to the Shares underlying a Grant to take into account such transaction, including to
substitute or provide for the issuance of Shares of the resulting ultimate parent entity in lieu of
shares of the Company.
(e) “Committee” means the Compensation Committee of the Board of Directors.
(f) “Company” means Willis Group Holding Public Limited Company, a company
incorporated in Ireland under registered number 475616, or any successor thereto.
(g) “Employee” means a Person, including an officer, in the regular
employment of the Company or one of its Subsidiaries who, in the opinion of the Committee, is, or
is expected to be, primarily responsible for the management, growth or protection of some part or
all of the business of the Company.
(h) “Exchange Act” means the U.S. Securities Exchange Act of 1934, as
amended.
(i) “Fair Market Value” means such value of a Share as determined no less than annually (or
more frequently if the Board of Directors so determines is required), in good faith by the Board of
Directors, after it has taken into consideration certain factors (including, without limitation,
the general condition of the Company’s industry, the historical performance of the Company, and the
Company’s financial prospects) and after it has consulted with an independent investment banking
firm selected with the consent of the Group Executive Committee. In addition, after determining the
Fair Market Value, the value of an individual Participant’s shares, on a per share basis, shall not
be reduced to reflect the illiquidity or minority nature associated with such Participant’s shares.
(j) “Grant” means an award made to a Participant pursuant to the Plan and described in
Paragraph 5, including, without limitation, an award of an U.S. Incentive Stock Option, U.S.
Non-Qualified Share Option, Share Appreciation Right, Dividend Equivalent Right, Restricted Share,
Purchase Share, Performance Unit, Performance Share or any Other Share-Based Grant or any
combination of the foregoing.
(k) “Grant Agreement” means an agreement between the Company and a
Participant that sets forth the terms, conditions and limitations applicable to a Grant.
2
(l) “Group” means two or more Persons acting together as a partnership, limited partnership,
syndicate or other group for the purpose of acquiring, holding or disposing of securities of the
Company.
(m) “Options” means the collective reference to “U.S. Incentive Stock Options” and “U.S.
Non-Qualified Stock Options”.
(n) “Option Agreement” means an agreement between the Company and a Participant that sets
forth the terms, conditions and limitations applicable to an Option.
(o) “Ordinary Shares” or “Shares” means ordinary shares in the Company, nominal value
US$0.000115.
(p) “Parent” shall mean, with respect to the Company, a “parent corporation” of that
corporation within the meaning of section 424(e) of the U.S. Internal Revenue Code of 1986, as
amended from time to time (the “Code”)
(q) “Participant” means an Employee or Director to whom one or more Options have been granted
and such Options have not all been forfeited or terminated under the Plan.
(r) “Person” means an individual, partnership, corporation, limited liability company business
trust, joint share company, trust, unincorporated association, joint venture, governmental
authority or other entity of whatever nature.
(s) “Share-Based Grants” means the collective reference to the grant of Share Appreciation
Rights, Dividend Equivalent Rights, Restricted Shares, Performance Units, Performance Shares, and
Other Share-Based Grants.
(t) “Subsidiary” shall mean, with respect to the Company, any subsidiary of the Company within
the meaning of Section 155 of the Act. For purposes of granting share options or any other “stock
rights,” within the meaning of Section 409A of the Code, an entity shall not be considered a
Subsidiary if granting any such stock right would result in the stock right becoming subject to
Section 409A of the Code. For purposes of granting U.S. incentive stock options, an entity shall
not be considered a Subsidiary if it does not also meet the requirements of Section 424(f) of the
Code.
(u) “Director” shall mean any member of the Board of Directors, whether or not an Employee of
the Company or any Subsidiary.
3. ADMINISTRATION OF PLAN
(a) The Plan shall be administered by the Committee. All of the members of the Committee shall
be eligible to be selected for Grants under the Plan, or have been so eligible for selection within
one year prior thereto; PROVIDED, HOWEVER, that the members of the Committee shall qualify to
administer the Plan for purposes of Rule 16b-3 (and any other applicable rule) promulgated under
Section 16(b) of the Exchange Act to the extent that the Company is subject to such rule. The
Committee may adopt its own rules of procedure, and action of a majority of the members of the
Committee taken at a meeting, or action taken without a meeting by unanimous written consent, shall
constitute action by the Committee. The Committee shall have the power and authority to administer,
construe and interpret the Plan, to make rules for carrying it out and to make changes in such
rules. Any such
3
interpretations, rules, and administration shall be consistent with the basic purposes of the Plan.
(b) The Committee may delegate to the Chief Executive Officer and to other senior officers of
the Company its duties under the Plan subject to such conditions and limitations as the Committee
shall prescribe except that only the Committee may designate and make Grants to Participants who
are subject to Section 16 of the Exchange Act.
(c) The Committee may employ lawyers, consultants, accountants, appraisers, brokers or other
persons. The Committee, the Company, and the officers and Directors of the Company shall be
entitled to rely upon the advice, opinions or valuations of any such persons. All actions taken and
all interpretations and determinations made by the Committee in good faith shall be final and
binding upon all Participants, the Company and all other interested persons. No member of the
Committee shall be personally liable for any action, determination or interpretation made in good
faith with respect to the Plan or the Grants, and all members of the Committee shall be fully
protected by the Company with respect to any such action, determination or interpretation.
4. ELIGIBILITY
The Committee may from time to time make Grants under the Plan, to such Directors and
Employees, and in such form, and having such terms, conditions and limitations as the Committee may
determine. The terms, conditions and limitations of each Grant under the Plan shall be set forth in
a Grant Agreement, in a form approved by the Committee, consistent, however, with the terms of the
Plan; PROVIDED, HOWEVER, that such Grant Agreement shall contain provisions dealing with the
treatment of Grants in the event of the termination, death or disability of a Participant, and may
also include provisions concerning the treatment of Grants in the event of a Change of Control.
5. GRANTS
From time to time, the Committee will determine the forms and amounts of Grants for
Participants. Such Grants may take the following forms in the
Committee’s sole discretion:
(a) U.S. INCENTIVE STOCK OPTIONS — These are Share options within the meaning of Section 422
of the Code, to purchase Ordinary Shares. In addition to other restrictions contained in the Plan,
an option granted under this Paragraph 5(a), (i) may not be exercised more than 10 years after the
date it is granted, (ii) may not have an option price less than the Fair Market Value of Ordinary
Shares on the date the option is granted (or, if the Participant to whom the Incentive Stock Option
is granted owns ordinary shares representing more than 10 percent of the voting power of all
classes of Company shares, the option price shall be at least equal to 110% of the Fair Market
Value of the Ordinary Shares on the date the option is granted), (iii) must otherwise comply with
Code Section 422, and (iv) must be designated as an “Incentive Stock Option” by the Committee. The
maximum aggregate Fair Market Value of Ordinary Shares (determined at the time of grant) with
respect to which Incentive Stock Options are first exercisable with respect to any Employee under
this Plan and any Incentive Stock Options granted to the Employee for such year under any plans of
the Company or any Parent or Subsidiary in any calendar year is $100,000. Payment of the option
price
4
shall be made in cash in accordance with the terms of the Plan, the Option Agreement, and of any
applicable guidelines of the Committee in effect at the time. Incentive Stock Options may be
granted only to Employees of the Company or any Parent or Subsidiary.
(b) U.S. NON-QUALIFIED STOCK OPTIONS — These are options to purchase Ordinary Shares which are
not designated by the Committee as “U.S. Incentive Stock Options”. At the time of grant the
Committee shall determine, and shall include in the Option Agreement or other Plan rules, the
option exercise period, the option price, and such other conditions or restrictions on the grant or
exercise of the option as the Committee deems appropriate. In addition to other restrictions
contained in the Plan, an option granted under this Paragraph 5(b) may not be exercised more than
10 years after the date it is granted. Payment of the option price shall be made in cash in
accordance with the terms of the Plan, the Option Agreement and of any applicable guidelines of the
Committee in effect at the time.
(c) SHARE APPRECIATION RIGHTS — These are rights that on exercise entitle the holder to
receive the excess of (i) the Fair Market Value of a share of Ordinary Shares on the date of
exercise over (ii) the Fair Market Value on the date of Grant (the “base value”) multiplied by
(iii) the number of rights exercised as determined by the Committee. Share Appreciation Rights
granted under the Plan may, but need not be, granted in conjunction with an Option under Paragraph
5(a) or 5(b). The Committee, in the Grant Agreement or by other Plan rules, may impose such
conditions or restrictions on the exercise of Share Appreciation Rights as it deems appropriate,
and may terminate, amend, or suspend such Share Appreciation Rights at any time. No Share
Appreciation Right granted under this Plan may be exercised less than 6 months or more than 10
years after the date it is granted except in the event of death or disability of a Participant. To
the extent that any Share Appreciation Right that shall have become exercisable but shall not have
been exercised or cancelled or by reason of any termination of employment, shall have become
non-exercisable, it shall be deemed to have been exercised automatically, without any notice of
exercise, on the last day of which it is exercisable, provided that any conditions or limitations
on its exercise are satisfied (other than (i) notice of exercise and (ii) exercise or election to
exercise during the period prescribed) and the Share Appreciation Right shall then have value. Such
exercise shall be deemed to specify that the holder elects to receive cash and that such exercise
of a Share Appreciation Right shall be effective as of the time of automatic exercise.
(d) RESTRICTED SHARES — Restricted Shares are Ordinary Shares delivered to a Participant with
or without payment of consideration with restrictions or conditions on the Participant’s right to
transfer or sell such shares. If a Participant irrevocably elects in writing in the calendar year
preceding a Grant of Restricted Shares, dividends paid on the Restricted Shares granted may be paid
in Restricted Shares equal to the cash dividend paid on Ordinary Shares. The number of Restricted
Shares and the restrictions or conditions on such Shares shall be as the Committee determines, in
the Grant Agreement or by other Plan rules, and the Shares underlying the Restricted Shares shall
bear evidence of the restrictions or conditions. No Restricted Shares may have a restriction period
of less than 6 months, other than in the case of death or disability. Should the Restricted Shares
be issued in circumstances where they are not otherwise fully paid up, the Board of Directors may
require the Participant to pay the aggregate nominal value of such Restricted Shares on the basis
that such Restricted Shares shall then be allotted as fully paid to the Participant.
5
(e) PURCHASE SHARES — Purchase Shares are shares of Ordinary Shares offered to a Participant
at such price as determined by the Committee, the acquisition of which will make him eligible to
receive under the Plan, including, but not limited to, U.S. Non-Qualified Share Options.
(f) DIVIDEND EQUIVALENT RIGHTS — These are rights to receive cash payments from the Company at
the same time and in the same amount as any cash dividends paid on an equal number of Ordinary
Shares to shareholders of record during the period such rights are effective. The Committee, in the
Grant Agreement or by other Plan rules, may impose such restrictions and conditions on the Dividend
Equivalent Rights, including the date such rights will terminate, as it deems appropriate, and may
terminate, amend, or suspend such Dividend Equivalent Rights at any time.
(g) PERFORMANCE UNITS — These are rights to receive at a specified future date, payment in
cash of an amount equal to all or a portion of the value of a unit granted by the Committee. At the
time of the Grant, in the Grant Agreement or by other Plan rules, the Committee must determine the
base value of the unit, the performance factors applicable to the determination of the ultimate
payment value of the unit and the period over which Company performance will be measured. These
factors must include a minimum performance standard for the Company below which no payment will be
made and a maximum performance level above which no increased payment will be made. The term over
which Company performance will be measured shall be not less than six months.
(h) PERFORMANCE SHARES — These are rights to receive at a specified future date, payment in
cash or Ordinary Shares, as determined by the Committee, of an amount equal to all or a portion of
the Fair Market Value for all days that the Ordinary Shares are traded during the last forty-five
(45) days of the specified period of performance of a specified number of shares of Ordinary Shares
at the end of a specified period based on Company performance during the period. At the time of the
Grant, the Committee, in the Grant Agreement or by Plan rules, will determine the factors which
will govern the portion of the rights so payable and the period over which Company performance will
be measured. The factors will be based on Company performance and must include a minimum
performance standard for the Company below which no payment will be made and a maximum performance
level above which no increased payment will be made. The term over which Company performance will
be measured shall be not less than six months. Performance Shares will be granted for no
consideration.
(i) OTHER SHARE-BASED GRANTS — The Committee may make other Grants under the Plan pursuant to
which Ordinary Shares (which may, but need not, be Restricted Shares pursuant to Paragraph 5(d)),
are or may in the future be acquired, or Grants denominated in Share units, including ones valued
using measures other than market value. Other Share-Based Grants may be granted with or without
consideration. Such Other Share-Based Grants may be made alone, in addition to or in tandem with
any Grant of any type made under the Plan and must be consistent with the purposes of the Plan.
6. LIMITATIONS AND CONDITIONS
(a) The number of Shares available for Grants under this Plan shall be 30,000,000 Shares. The
number of Shares subject to Grants made under this Plan to any one Participant in any given
calendar year shall not be more than
6
10,000,000 Shares. PROVIDED, HOWEVER, that in no event shall the total number of Shares subject to
options and other equity for current and future Participants exceed 25% of the equity of the
Company on a fully diluted basis. Shares subject to Grants that are forfeited, terminated,
cancelled or expire unexercised, shall immediately become available for other Grants.
(b) No Grants shall be made under the Plan beyond ten years after the effective date of the
Plan, but the terms of Grants made on or before the expiration of the Plan may extend beyond such
expiration. At the time a Grant is made or amended or the terms or conditions of a Grant are
changed, the Committee may provide for limitations or conditions on such Grant.
(c) Nothing contained herein shall affect the right of the Company to terminate any
Participant’s employment at any time or for any reason. The rights and obligations of any
individual under the terms of his office or employment with the Company or any Subsidiary shall not
be affected by his participation in this Plan or any right which he may have to participate in it,
and an individual who participates in it shall waive any and all rights to compensation or damages
in consequence of the termination of his office or employment for any reason whatsoever insofar as
those rights arise or may arise from his ceasing to have rights under or be entitled to exercise
any Grant as a result of such termination.
(d) Other than as specifically provided in the Management and Employee Shareholders’ and
Subscription Agreement attached hereto as Exhibit A with regard to the death of a Participant, no
benefit under the Plan shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, or charge, and any attempt to do so shall be void. No such benefit
shall, prior to receipt thereof by the Participant, be in any manner liable for or subject to the
debts, contracts, liabilities, engagements, or torts of the Participant.
(e) Participants shall not be, and shall not have any of the rights or privileges of,
shareholders of the Company in respect of any Shares purchasable in connection with any Grant
unless and until such Shares have been issued by the Company to such Participants.
(f) No Grant may be exercised during a Participant’s lifetime by anyone other than the
Participant except by a legal representative appointed for or by the Participant.
(g) Absent express provisions to the contrary, any Grant made under this Plan shall not be
deemed compensation for purposes of computing benefits or contributions under any retirement plan
of the Company or its Subsidiaries and shall not affect any benefits under any other benefit plan
of any kind now or subsequently in effect under which the availability or amount of benefits is
related to level of compensation. This Plan is not a “Retirement Plan” or “Welfare Plan” under the
U.S. Employee Retirement Income Security Act of 1974, as amended.
(h) Unless the Committee determines otherwise, no benefit or promise under the Plan shall be
secured by any specific assets of the Company or any of its Subsidiaries, nor shall any assets of
the Company or any of its Subsidiaries be designated as attributable or allocated to the
satisfaction of the Company’s obligations under the Plan.
7
7. TRANSFERS AND LEAVES OF ABSENCE
For purposes of the Plan, unless the Committee determines otherwise: (a) a transfer of a
Participant’s employment without an intervening period of separation among the Company and any
Subsidiary shall not be deemed a termination of employment, and (b) a Participant who is granted in
writing a leave of absence shall be deemed to have remained in the employ of the Company during
such leave of absence.
8. ADJUSTMENTS
(a) In the event of any increase or variation of the share capital of the Company, the
Committee may make such adjustments as it considers appropriate under Paragraph 8(b) below.
(b) An adjustment made under this Paragraph 8(b) shall be to one or more of the following:
(i) the number of Shares in respect of which any Option or Other Share-Based Grant may be
exercised;
(ii) the price at which Shares may be acquired by the exercise of any Option or Other
Share-Based Grant;
(iii) where any Option or Other Share-Based Grant has been exercised but no Shares have been
allotted or transferred pursuant to the exercise, the number of Shares which may be so allotted or
transferred and the price at which they may be acquired.
(c) An adjustment under Paragraph 8(b) above may have the effect of reducing the price at
which Shares may be acquired by the exercise of an Option or Other Share-Based Grant to less than
their nominal value, but only if and to the extent that the Board of Directors shall be authorized
to capitalise from the reserves of the Company a sum equal to the amount by which the nominal value
of the Shares in respect of which the Option or Other Share-Based Grant is exercised and which are
to be allotted pursuant to such exercise exceeds the price at which the same may be subscribed for
and to apply that sum in paying up that amount on the Shares; and so that on exercise of any Option
or Other Share-based Grant in respect of which such a reduction shall have been made the Board of
Directors shall capitalise such sum (if any) and apply it in paying up such amount as aforesaid.
9. EXCHANGE, ACQUISITION, LIQUIDATION OR DISSOLUTION
(a) In its absolute discretion, and on such terms and conditions as it
deems appropriate, coincident with or after the grant of any Option or Other
Share-Based Grant, the Committee may provide that such Option or Other
Share-Based Grant cannot be exercised after the exchange of all or substantially all of the assets
of the Company for the securities of another corporation, the acquisition by another corporation of
80% or more of the Company’s then outstanding voting Shares, liquidation or dissolution of the
Company, any variation of the share capital of the Company, and if the Committee so provides, it
may, in its absolute discretion and on such terms and conditions as it deems appropriate, also
provide, either by the terms of such Option or Other Share-Based Grant or by a resolution adopted
prior to the occurrence of such exchange, acquisition, any variation of the share capital of the
Company, liquidation or dissolution, that, for some period of
8
time prior to such event, such Option or Other Share-Based Grant shall be exercisable as to all
Shares subject thereto, notwithstanding anything to the contrary herein (but subject to the
provisions of Paragraph 6(b)) and that, upon the occurrence of such event, such Option or Other
Share-Based Grant shall terminate and be of no further force or effect; PROVIDED, HOWEVER, that the
Committee may also provide, in its absolute discretion, that even if the Option or Other
Share-Based Grant shall remain exercisable after any such event, from and after such event, any
such Option or Other Share-Based Grant shall be exercisable only for the kind and amount of
securities and/or other property, or the cash equivalent thereof, receivable as a result of such
event by the holder of a number of Shares for which such Option or Other Share-Based Grant could
have been exercised immediately prior to such event.
10. AMENDMENT AND TERMINATION
The Committee shall have the authority to make such amendments to any terms and conditions
applicable to outstanding Grants as are consistent with this Plan provided that, except for
adjustments under Paragraph 8 or 9 hereof, no amendment to the disadvantage of any Participant
shall be made unless:
(a) the Committee shall have invited every such Participant to give an indication as to
whether or not he approves the amendment, and
(b) the amendment is approved by a majority of those Participants who have given such an
indication.
The Board of Directors may amend, suspend or terminate the Plan except that no such action,
other than an action under Paragraph 8 or 9 hereof, may be taken which would, without shareholder
approval, increase the aggregate number of Shares available for Grants under the Plan, decrease the
price of outstanding Grants, change the requirements relating to the Committee or extend the term
of the Plan.
11. INTERNATIONAL OPTIONS AND RIGHTS
The Committee may make Grants to Employees who are subject to the laws of countries other than
Ireland, which Grants may have terms and conditions that differ from the terms thereof as provided
elsewhere in the Plan for the purpose of complying with foreign laws.
12. WITHHOLDING TAXES, ALLOTMENT AND TRANSFER
(a) The Company shall have the right to deduct from any cash payment made under the Plan any
federal, state or local income or other taxes required by law to be withheld with respect to such
payment.
(b) Within 30 days after an Option has been exercised by any person, before delivery of
Restricted Shares or payment of Performance Shares (if paid in Ordinary Shares) or before exercise,
settlement or payment (if paid in Ordinary Shares) of any Other Share-Based Grant, the Board of
Directors shall allot to such person (or a nominee for him) or, as appropriate, procure the
transfer to him (or a nominee for him) of the number of Shares in respect of which the option has
been exercised, provided that:
(i) the Board of Directors considers that the issue or transfer thereof would be lawful in
all relevant jurisdictions; and
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(ii) in a case where the Company or any Subsidiary (“Group Member”) is obliged to (or would
suffer a disadvantage if it were not to) account for any tax (in any jurisdiction) for which the
person in question is liable by virtue of the exercise of the option and/or for any social
security, contributions recoverable from the person in question (together, the “Tax Liability”),
that person has either:
(A) made a payment to the Group Member of an amount equal to the Tax Liability; or
(B) entered into arrangements acceptable to that or another Group Member to secure that such
a payment is made (whether by authorizing the sale of some or all of the Shares on his behalf and
the payment to the Group Member of the relevant amount out of the proceeds of sale or otherwise).
(c) All Shares allotted under this Plan shall rank equally in all respects with Shares of the
same class then in issue except for any rights attaching to such Shares by reference to a record
date prior to the date of the allotment.
13. EFFECTIVE DATE AND TERMINATION DATES
The Plan became effective on and as of the date of the original approval of the Plan by the
Board of Directors and no additional Grants shall be made under the Plan; PROVIDED, HOWEVER the
Plan shall remain in full force and effect with respect to any outstanding Grants that have not
expired or terminated by their terms.
14. FINANCIAL ASSISTANCE
The Company and any Subsidiary may provide money to the trustees of any trust or any other
person to enable them or him to acquire Shares to be held for the purposes of the Plan, or enter
into any guarantee or indemnity for these purposes or provide financial assistance of any other
kind, to the extent permitted by section 60 of the Act.
15. MISCELLANEOUS
The masculine pronoun shall include the feminine and neuter, and the singular the plural,
where the context so indicates.
16. GOVERNING LAW
The Plan shall be governed by the laws of the United Kingdom, without regard to conflicts of
laws.
10
Exhibit 10.6
WILLIS AWARD PLAN FOR KEY EMPLOYEES OF
WILLIS GROUP HOLDINGS
AS AMENDED AND RESTATED ON DECEMBER 30, 2009 BY WILLIS GROUP HOLDINGS LIMITED
AND AS AMENDED AND RESTATED AND ASSUMED BY
WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY ON DECEMBER 31, 2009
1. PURPOSE OF PLAN
The Willis Award Plan for Key Employees of Willis Group Holdings, as amended and restated on December 30, 2009
by Willis Group Holdings Limited and as amended and restated and assumed by Willis Group Holdings Public Limited
Company on December 31, 2009 (the “Plan”) is designed:
(a) to promote the long term financial interests and growth of the Company and its subsidiaries by
attracting and retaining management personnel with the training, experience and ability to enable
them to make a substantial contribution to the success of the Company’s business;
(b) to motivate management personnel by means of growth-related incentives to achieve long range
goals; and
(c) to further the alignment of interests of participants with those of the shareholders of the
Company through opportunities for increased share ownership in the Company.
2. DEFINITIONS
As used in the Plan, the following words shall have the following meanings:
(a) “Act” means the Companies Act 1963 of Ireland.
(b) “Affiliate” shall mean with respect to any Person, any entity directly or indirectly
controlling, controlled by or under common control with such Person.
(c) “Board” means the board of directors of the Company, or a duly authorised committee thereof.
(d) “Change of Control” means (i) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the
rules of the U.S. Securities and Exchange Commission there under as in effect on the date hereof)
of the Ordinary Shares of the Company representing more than 50% of the aggregate voting power
represented by the issued and outstanding Ordinary Shares of the Company; or (ii) occupation of a
majority of the seats (other than vacant seats) on the Board by Persons who were neither (x)
nominated by the Board nor (y) appointed by directors so nominated. For the avoidance of doubt, a
transaction shall not constitute a Change of Control or other consolidating event described in
Section 9 below (i) if effected for the purpose of changing the place of incorporation or form of
organization of the ultimate parent entity of the Willis group of
1
companies (including where the Company is succeeded by an issuer incorporated under the laws of
another state, country or foreign government for such purpose and whether or not the Company
remains in existence following such transaction) and (ii) where all or substantially all of the
Person(s) who are the beneficial owners of the outstanding voting securities of the Company
immediately prior to such transaction will beneficially own, directly or indirectly, all or
substantially all of the combined voting power of the outstanding voting securities entitled to
vote generally in the election of directors of the ultimate parent entity resulting from such
transaction in substantially the same proportions as their ownership, immediately prior to such
transaction, of such outstanding securities of the Company. The Board, in its sole discretion, may
make an appropriate and equitable adjustment to the Shares underlying a Grant to take into account
such transaction, including to substitute or provide for the issuance of shares of the resulting
ultimate parent entity in lieu of Shares of the Company.
(e) “Company” means Willis Group Holding Public Limited Company, a company incorporated in Ireland under registered number 475616, or any successor thereto.
(f) “Employee” means a person, including an officer, in the regular employment of the Company or
one of its Subsidiaries who, in the opinion of the Board, is, or is expected to be, primarily
responsible for the management, growth or protection of some part or all of the business of the
Company.
(g) “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
(h) “Fair Market Value” means such value of a Share as determined no less than annually (or more
frequently if the Board so determines is required), in good faith by the Board, after it has taken
into consideration certain factors (including, without limitation, the general condition of the
Company’s industry, the historical performance of the Company, and the Company’s financial
prospects) and after it has consulted with an independent investment banking firm selected with the
consent of the GEC. In addition, after determining the Fair Market Value, the value of an
individual Participant’s shares, on a per share basis, shall not be reduced to reflect the
illiquidity or minority nature associated with such Participant’s shares.
(i) “GEC” shall mean the Group Executive Committee of the Company, or its successor body, or if
none, the Board.
(j) “Grant” means an award made to a Participant pursuant to the Plan and described in Paragraph 5,
including, without limitation, an award of an U.S. Incentive Stock Option, U.S. Non-Qualified Stock
Option, Share Appreciation Right, Performance Unit, Performance Share or any Other Share-Based
Grant or any combination of the foregoing.
(k) “Grant Agreement” means an agreement between the Company and a Participant that sets forth the
terms, conditions and limitations applicable to a Grant.
(l) “Group” means two or more Persons acting together as a partnership, limited partnership,
syndicate or other group for the purpose of acquiring, holding or disposing of securities of the
Company.
2
(m) “Options” means the collective reference to “U.S. Incentive Stock Options” and “U.S.
Non-Qualified Stock Options.”
(n) “Option Agreement” means an agreement between the Company and a Participant that sets forth the
terms, conditions and limitations applicable to an Option.
(o) “Ordinary Shares” or “Shares” means ordinary shares in the Company, nominal value $0.000115.
(p) “Parent” shall mean with respect to the Company, a “parent corporation” of that corporation
within the meaning of section 424(e) of the U.S. Internal Revenue Code of 1986, as amended from
time to time (the “Code”).
(q) “Participant” means an Employee to whom one or more Options have been granted and such Options
have not all been forfeited or terminated under the Plan.
(r) “Person” means an individual, partnership, corporation, limited liability company business
trust, joint share company, trust, unincorporated association, joint venture, governmental
authority or other entity of whatever nature.
(s) “Share-Based Grants” means the collective reference to the grant of Share Appreciation Rights,
Performance Units, Performance Shares, and Other Share-Based Grants.
(t) “Subsidiary” shall mean with respect to the Company, any subsidiary of the Company within the
meaning of Section 155 of the Act. For purposes of granting share options or any other “stock
rights,” within the meaning of Section 409A of the Code, an entity shall not be considered a
Subsidiary if granting any such stock right would result in the stock right becoming subject to
Section 409A of the Code. For purposes of granting U.S. incentive stock options, an entity shall
not be considered a Subsidiary if it does not also meet the requirements of Section 424(f) of the
Code.
3. ADMINISTRATION OF PLAN
(a) The Plan shall be administered by the Board. None of the members of the Board shall be eligible
to be selected for Grants under the Plan, or have been so eligible for selection within one year
prior thereto; PROVIDED, HOWEVER, that the members of the Board shall qualify to administer the
Plan for purposes of Rule 16b-3 (and any other applicable rule) promulgated under Section 16(b) of
the Exchange Act to the extent that the Company is subject to such rule. The Board may adopt its
own rules of procedure, and action of a majority of the members of the Board taken at a meeting, or
action taken without a meeting by unanimous written consent, shall constitute action by the Board.
The Board shall have the power and authority to administer, construe and interpret the Plan, to
make rules for carrying it out and to make changes in such rules. Any such interpretations, rules,
and administration shall be consistent with the basic purposes of the Plan.
3
(b) The Board may delegate to the Chief Executive Officer and to other senior officers of the
Company its duties under the Plan subject to such conditions and limitations as the Board shall
prescribe except that only the Board may designate and make Grants to Participants who are subject
to Section 16 of the Exchange Act.
(c) The Board may employ lawyers, consultants, accountants, appraisers, brokers or other persons.
The Board, the Company, and the officers and directors of the Company shall be entitled to rely
upon the advice, opinions or valuations of any such persons. All actions taken and all
interpretations and determinations made by the Board in good faith shall be final and binding upon
all Participants, the Company and all other interested persons. No member of the Board shall be
personally liable for any action, determination or interpretation made in good faith with respect
to the Plan or the Grants, and all members of the Board shall be fully protected by the Company
with respect to any such action, determination or interpretation.
4. ELIGIBILITY
(a) The Board may from time to time make Grants under the Plan to such Employees and in such form
and having such terms, conditions and limitations as the Board may determine. No Grants may be made
under this Plan to non-employee directors of Company or any of its Subsidiaries. The terms,
conditions and limitations of each Grant under the Plan shall be set forth in a Grant Agreement, in
a form approved by the Board, consistent, however, with the terms of the Plan; PROVIDED, HOWEVER,
that such Grant Agreement shall contain provisions dealing with the treatment of Grants in the
event of the termination, death or disability of a Participant, and may also include provisions
concerning the treatment of Grants in the event of a Change of Control.
5. GRANTS
From time to time, the Board will determine the forms and amounts of Grants for Participants. Such
Grants may take the following forms in the Board’s sole discretion:
(a) U.S. INCENTIVE STOCK OPTIONS — These are share options within the meaning of Section 422 of the
Code, to purchase Ordinary Shares. In addition to other restrictions contained in the Plan, an
option granted under this Paragraph 5(a), (i) may not be exercised more than 10 years after the
date it is granted, (ii) may not have an option price less than the Fair Market Value of Ordinary
Shares on the date the option is granted (or, if the Participant to whom the Incentive Stock Option
is granted owns ordinary shares representing more than 10 percent of the voting power of all
classes of Company shares, the option price shall be at least equal to 110 percent of the Fair
Market Value of the Ordinary Shares on the date the option is granted), (iii) must otherwise comply
with Code Section 422, and (iv) must be designated as an “Incentive Stock Option” by the Board. The
maximum aggregate Fair Market Value of Ordinary Shares (determined at the time of grant) with
respect to which Incentive Stock Options are first exercisable with respect to any participant
under this Plan and any Incentive Stock Options granted to the Participant for such year under any
plans of the Company or any Parent or Subsidiary in any calendar year is $100,000. Payment of the
option price shall be made in cash in accordance with the terms of the Plan, the Option Agreement,
and of any applicable guidelines
4
of the Board in effect at the time. Incentive Stock Options may be granted only to Employees of the
Company or any Parent or Subsidiary.
(b) U.S. NON-QUALIFIED STOCK OPTIONS — These are options to purchase Ordinary Shares which are not
designated by the Board as “U.S. Incentive Stock Options”. At the time of grant the Board shall
determine, and shall include in the Option Agreement or other Plan rules, the option exercise
period, the option price, and such other conditions or restrictions on the grant or exercise of the
option as the Board deems appropriate. In addition to other restrictions contained in the Plan, an
option granted under this Paragraph 5(b) may not be exercised more than 10 years after the date it
is granted. Payment of the option price shall be made in cash in accordance with the terms of the
Plan, the Option Agreement and of any applicable guidelines of the Board in effect at the time.
(c) SHARE APPRECIATION RIGHTS — These are rights that on exercise entitle the holder to receive the
excess of (i) the Fair Market Value of a share of Ordinary Shares on the date of exercise over (ii)
the Fair Market Value on the date of Grant (the “base value”) multiplied by (iii) the number of
rights exercised as determined by the Board. Share Appreciation Rights granted under the Plan may,
but need not be, granted in conjunction with an Option under Paragraph 5(a) or 5(b). The Board, in
the Grant Agreement or by other Plan rules, may impose such conditions or restrictions on the
exercise of Share Appreciation Rights as it deems appropriate, and may terminate, amend, or suspend
such Share Appreciation Rights at any time. No Share Appreciation Right granted under this Plan may
be exercised less than 6 months or more than 10 years after the date it is granted except in the
event of death or disability of a Participant. To the extent that any Share Appreciation Right that
shall have become exercisable but shall not have been exercised or cancelled or by reason of any
termination of employment, shall have become non-exercisable, it shall be deemed to have been
exercised automatically, without any notice of exercise, on the last day which it is exercisable,
provided that any conditions or limitations on its exercise are satisfied (other than (i) notice of
exercise and (ii) exercise or election to exercise during the period prescribed) and the Share
Appreciation Right shall then have value. Such exercise shall be deemed to specify that the holder
elects to receive cash and that such exercise of a Share Appreciation Right shall be effective as
of the time of automatic exercise.
(d) PERFORMANCE UNITS — These are rights to receive at a specified future date, payment in cash of
an amount equal to all or a portion of the value of a unit granted by the Board. At the time of the
Grant, in the Grant Agreement or by other Plan rules, the Board must determine the base value of
the unit, the performance factors applicable to the determination of the ultimate payment value of
the unit and the period over which Company performance will be measured. These factors must include
a minimum performance standard for the Company below which no payment will be made and a maximum
performance level above which no increased payment will be made. The term over which Company
performance will be measured shall be not less than six months.
(e) PERFORMANCE SHARES — These are rights to receive at a specified future date, payment in cash or
Ordinary Shares, as determined by the Board, of an amount equal to all or a portion of the Fair
Market Value for all days that the Ordinary Shares are traded during the last forty-five (45) days
of the specified period of performance of a specified number of shares of
5
Ordinary Shares at the end of a specified period based on Company performance during the period. At
the time of the Grant, the Board, in the Grant Agreement or by Plan rules, will determine the
factors which will govern the portion of the rights so payable and the period over which Company
performance will be measured. The factors will be based on Company performance and must include a
minimum performance standard for the Company below which no payment will be made and a maximum
performance level above which no increased payment will be made. The term over which Company
performance will be measured shall be not less than six months. Performance Shares will be granted
for no consideration.
(f) OTHER SHARE-BASED GRANTS — The Board may make other Grants under the Plan pursuant to which
Ordinary Shares, are or may in the future be acquired, or Grants denominated in Share units,
including ones valued using measures other than market value. Other Share-Based Grants may be
granted with or without consideration. Such Other Share-Based Grants may be made alone, in addition
to or in tandem with any Grant of any type made under the Plan and must be consistent with the
purposes of the Plan.
6. LIMITATIONS AND CONDITIONS
(a) The number of Shares available for Grants under this Plan shall be 5,000,000
Shares; PROVIDED, HOWEVER, that in no event shall the total number of Shares subject to
options and other equity for current and future Participants exceed 25% of the equity of the
Company on a fully diluted basis. Shares subject to Grants that are forfeited, terminated, canceled
or expire unexercised, shall immediately become available for other Grants.
(b) No Grants shall be made under the Plan beyond ten years after the original effective date of
the Plan, but the terms of Grants made on or before the expiration of the Plan may extend beyond
such expiration. At the time a Grant is made or amended or the terms or conditions of a Grant are
changed, the Board may provide for limitations or conditions on such Grant.
(c) Nothing contained herein shall affect the right of the Company to terminate any Participant’s
employment at any time or for any reason. The rights and obligations of any individual under the
terms of his office or employment with the Company or any Subsidiary shall not be affected by his
participation in this Plan or any right which he may have to participate in it, and an individual
who participates in it shall waive any and all rights to compensation or damages in consequence of
the termination of his office or employment for any reason whatsoever insofar as those rights arise
or may arise from his ceasing to have rights under or be entitled to exercise any Grant as a result
of such termination.
(d) Other than as specifically provided in the Management and Employee Shareholders’ and
Subscription Agreement attached hereto as Exhibit A with regard to the death of a Participant, no
benefit under the Plan shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, or charge, and any attempt to do so shall be void. No such benefit
shall, prior to receipt thereof by the Participant, be in any manner liable for or subject to the
debts, contracts, liabilities, engagements, or torts of the Participant.
6
(e) Participants shall not be, and shall not have any of the rights or privileges of, shareholders
of the Company in respect of any Shares purchasable in connection with any Grant unless and until
such Shares have been issued by the Company to such Participants.
(f) No Grant may be exercised during a Participant’s lifetime by anyone other than the Participant
except by a legal representative appointed for or by the Participant.
(g) Absent express provisions to the contrary, any Grant made under this Plan shall not be deemed
compensation for purposes of computing benefits or contributions under any retirement plan of the
Company or its Subsidiaries and shall not affect any benefits under any other benefit plan of any
kind now or subsequently in effect under which the availability or amount of benefits is related to
level of compensation. This Plan is not a “Retirement Plan” or “Welfare Plan” under the U.S.
Employee
(h) Unless the Board determines otherwise, no benefit or promise under the Plan shall be secured by
any specific assets of the Company or any of its Subsidiaries, nor shall any assets of the Company
or any of its Subsidiaries be designated as attributable or allocated to the satisfaction of the
Company’s obligations under the Plan.
7. TRANSFERS AND LEAVES OF ABSENCE
For purposes of the Plan, unless the Board determines otherwise: (a) a transfer of a Participant’s
employment without an intervening period of separation among the Company and any Subsidiary shall
not be deemed a termination of employment, and (b) a
Participant who is granted in writing a leave of absence shall be deemed to have remained in the
employ of the Company during such leave of absence.
8. ADJUSTMENTS
(a) In the event of any increase or variation of the share capital of the Company, the Board may
make such adjustments as it considers appropriate under Paragraph 8(b) below.
(b) An adjustment made under this Paragraph 8(b) shall be to one or more of the following:
(i) the number of Shares in respect of which any Option or Other Share-Based Grant may be
exercised;
(ii) the price at which Shares may be acquired by the exercise of any Option or Other Share-Based
Grant;
(iii) where any Option or Other Share-Based Grant has been exercised but no Shares have been
allotted or transferred pursuant to the exercise, the number of Shares which may be so allotted or
transferred and the price at which they may be acquired.
7
(c) An adjustment under Paragraph 8(b) above may have the effect of reducing the price at which
Shares may be acquired by the exercise of an Option or Other Share-Based Grant to less than their
nominal value, but only if and to the extent that the Board shall be authorised to capitalize from
the reserves of the Company a sum equal to the amount by which the nominal value of the Shares in
respect of which the Option or Other Share-Based Grant is exercised and which are to be allotted
pursuant to such exercise exceeds the price at which the same may be subscribed for and to apply
that sum in paying up that amount on the Shares; and so that on exercise of any Option or Other
Share-based Grant in respect of which such a reduction shall have been made the Board shall
capitalise such sum (if any) and apply it in paying up such amount as aforesaid.
9. EXCHANGE, ACQUISITION, LIQUIDATION OR DISSOLUTION
In its absolute discretion, and on such terms and conditions as it deems appropriate, coincident
with or after the grant of any Option or Other Share-Based Grant, the Board may provide that such
Option or Other Share-Based Grant cannot be exercised after the exchange of all or substantially
all of the assets of the Company for the securities of another corporation, the acquisition by
another corporation of 80% or more of the Company’s then outstanding voting Shares, liquidation or
dissolution of the Company, any variation of the share capital of the Company, and if the Board so
provides, it may, in its absolute discretion and on such terms and conditions as it deems
appropriate, also provide, either by the terms of such Option or Other Share-Based Grant or by a
resolution adopted prior to the occurrence of such exchange, acquisition, any variation of the
share capital of the Company, liquidation or dissolution, that, for some period of time prior to
such event, such Option or Other Share-Based Grant shall be exercisable as to all Shares subject
thereto, notwithstanding anything to the contrary herein (but subject to the provisions of
Paragraph 6(b)) and that, upon the occurrence of such event, such Option or Other Share-Based Grant
shall terminate and be of no further force or effect; provided, HOWEVER, that the Board may also
provide, in its absolute discretion, that even if the Option or Other Share-Based Grant shall
remain exercisable after any such event, from and after such event, any such Option or Other
Share-Based Grant shall be exercisable only for the kind and amount of securities and/or other
property, or the cash equivalent thereof, receivable as a result of such event by the holder of a
number of Shares for which such Option or Other Share-Based Grant could have been exercised
immediately prior to such event.
10. AMENDMENT AND TERMINATION
The Board shall have the authority to make such amendments to any terms and conditions applicable
to outstanding Grants as are consistent with this Plan provided that, except for adjustments under
Paragraph 8 or 9 hereof, no amendment to the disadvantage of any Participant shall be made unless:
(a) the Board shall have invited every such Participant to give an indication as to whether or not
he approves the amendment, and
(b) the amendment is approved by a majority of those Participants who have given such an
indication.
8
The Board may amend, suspend or terminate the Plan except that no such action, other than an action
under Paragraph 8 or 9 hereof, may be taken which would, without shareholder approval, increase the
aggregate number of Shares available for Grants under the Plan, decrease the price of outstanding
Grants, change the requirements relating to the Board or extend the term of the Plan.
11. INTERNATIONAL OPTIONS AND RIGHTS
The Board may make Grants to Employees who are subject to the laws of countries other than Ireland,
which Grants may have terms and conditions that differ from the terms thereof as provided elsewhere
in the Plan for the purpose of complying with foreign laws.
12. WITHHOLDING TAXES, ALLOTMENT AND TRANSFER
(a) The Company shall have the right to deduct from any cash payment made under the Plan any
federal, state or local income or other taxes required by law to be withheld with respect to such
payment.
(b) Within 30 days after an Option has been exercised by any person, before payment of Performance
Shares (if paid in Ordinary Shares) or before exercise, settlement or payment (if paid in Ordinary
Shares) of any Other Share-Based Grant, the Board shall allot to such person (or a nominee for him)
or, as appropriate, procure the transfer to him (or a nominee for him) of the number of Shares in
respect of which the option has been exercised, provided that:
(i) the Board considers that the issue or transfer thereof would be lawful in all relevant
jurisdictions; and
(ii) in a case where the Company or any Subsidiary (“Group Member”) is obliged to (or would suffer
a disadvantage if it were not to) account for any tax (in any jurisdiction) for which the person in
question is liable by virtue of the exercise of the option and/or for any social security,
contributions recoverable from the person in question (together, the “Tax Liability”), that person
has either:
(A) made a payment to the Group Member of an amount equal to the Tax Liability; or
(B) entered into arrangements acceptable to that or another Group Member to secure that such a
payment is made (whether by authorizing the sale of some or all of the Shares on his behalf and the
payment to the Group Member of the relevant amount out of the proceeds of sale or otherwise).
(c) All Shares allotted under this Plan shall rank equally in all respects with Shares of the same
class then in issue except for any rights attaching to such Shares by reference to a record date
prior to the date of the allotment.
9
13. EFFECTIVE DATE AND TERMINATION DATES
The Plan shall be effective on and as of the date of the original approval by the Board of the Plan
and no additional Grants shall be made under the Plan; PROVIDED, HOWEVER the Plan shall remain in
full force and effect with respect to any outstanding Grants that have not expired or terminated by
their terms.
14. FINANCIAL ASSISTANCE
The Company and any Subsidiary may provide money to the trustees of any trust or any other person
to enable them or him to acquire Shares to be held for the purposes of the Plan, or enter into any
guarantee or indemnities for these purposes or provide financial assistance of any other kind, to
the extent permitted by section 60 of the Act.
15. MISCELLANEOUS
The masculine pronoun shall include the feminine and neuter, and the singular the plural, where the
context so indicates.
16. GOVERNING LAW
The Plan shall be governed by the laws of the United Kingdom, without regard to conflicts of laws.
10
Exhibit 10.10
WILLIS GROUP HOLDINGS
2001 SHARE PURCHASE AND OPTION PLAN
(AS
AMENDED AND RESTATED ON DECEMBER 30, 2009 BY WILLIS GROUP HOLDINGS LIMITED
AND AS AMENDED AND RESTATED AND ASSUMED BY WILLIS GROUP HOLDINGS PUBLIC
LIMITED COMPANY ON DECEMBER 31, 2009)
OPTION AGREEMENT
THIS OPTION AGREEMENT
(this “Agreement”), effective as of
is made by and between
Willis Group Holdings Public Limited Company, and any successor thereto, hereinafter referred to as
the “Company” and the individual (the “Optionee”) who has duly completed, executed and delivered
the Option Acceptance Form, a copy of which is set out in Schedule A attached hereto and deemed to
be a part hereof; if applicable and the Agreement of Restrictive Covenants and Other Obligations, a
copy of which is set out in Schedule C attached hereto and deemed to be a part hereof.
WHEREAS,
completion, execution and delivery of this Agreement shall be deemed to have taken
place where at the discretion of the Company, acceptance of the award to which this Agreement
relates is required to be made through an Internet-based administration system or other electronic
means identified for this purpose by the Company, to the maximum extent permitted by the laws in
the Optionee’s country of residence at the time of grant.
WHEREAS,
the Company wishes to carry out the Plan (as hereinafter defined), the terms of which
are hereby incorporated by reference and made a part of this Agreement; and
WHEREAS
, the Board (as hereinafter defined) has determined that it would be to the advantage
and best interest of the Company and its shareholders to grant the Option (as hereinafter defined)
provided for herein to Optionee as an incentive for increased efforts on the part of Optionee
during Optionee’s employment with the Company or its Subsidiaries, and has advised the Company
thereof and instructed the undersigned officer to grant said Option.
NOW, THEREFORE
, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall have the meaning specified
in the Plan or below unless the context clearly indicates to the contrary.
Section 1.1
—
Adjusted Earnings Per Share
“Adjusted Earnings Per Share” shall mean the adjusted earnings per share as stated by the
Company in its annual financial results as issued by the Company.
1
Section 1.2
—
Adjusted Operating Margin
“Adjusted Operating Margin” shall mean the adjusted operating margin as stated by the Company
in its annual financial results as issued by the Company.
Section 1.3
—
Board
“Board” shall mean the Board of Directors of the Company.
Section 1.4
—
Cause
“Cause” shall mean (i) Optionee’s continued and/or chronic failure to adequately and/or
competently perform his or her material duties with respect to the Company or its Subsidiaries
after having been provided reasonable notice of such failure and a period of at least ten days
after Optionee’s receipt of such notice to cure and/or correct such performance failure, (ii)
willful misconduct by Optionee in connection with Optionee’s employment which is injurious to the
Company or its Subsidiaries (willful misconduct shall be understood to include, but not be limited
to, any breach of the duty of loyalty owed by Optionee to the Company or its Subsidiaries), (iii)
conviction of any criminal act (other than minor road traffic violations not involving
imprisonment), (iv) any breach of Optionee’s restrictive covenants and other obligations as
provided in Schedule C to this Agreement (if applicable), in Optionee’s employment agreement (if
any), or any other non-compete agreement and/or confidentiality agreement entered into between
Optionee and the Company or any of its Subsidiaries (other than an insubstantial, inadvertent and
non-recurring breach), or (v) any material violation of any written Company policy after reasonable
notice and an opportunity to cure such violation within ten (10) days after Optionee’s receipt of
such notice.
Section 1.5
—
Committee
“Committee” means the Compensation Committee of the Board (or if no such committee is
appointed, the Board provided that a majority of the Board are “independent directors” for the
purpose of the rules and regulations of the New York Stock Exchange).
Section 1.6
—
Earned Date
“Earned Date” shall mean the date that the annual financial results of the Company are issued
by the Company.
Section 1.7
—
Earned Performance Shares
“Earned Performance Shares” shall mean shares subject to the Option in respect of which the
applicable performance conditions, as set out in section 3.1 or as otherwise determined by the
Compensation Committee, have been achieved and shall become exercisable as set out in section 3.2.
Section 1.8
—
Good Reason
“Good Reason” shall mean (i) a reduction in Optionee’s base salary or a material adverse
reduction in Optionee’s benefits other than (a) in the case of base salary, a reduction that is
offset by an increase in Optionee’s bonus opportunity upon the attainment of reasonable performance
2
targets established by the Board, (b) a general reduction in the compensation or benefits of,
or a shift in the general compensation or benefits schemes affecting, a broad group of employees of
the Company or any of its Subsidiaries, or (c) in the case of base salary, a reduction which is
imposed in accordance with normal administration and application of a producer compensation plan,
if applicable to Optionee, (ii) a material adverse reduction in Optionee’s principal duties and
responsibilities, which continues beyond ten days after written notice by Optionee to the Company
or the applicable Subsidiary of such reduction or (iii) a significant transfer of Optionee away
from Optionee’s primary service area or primary workplace, other than as permitted by Optionee’s
existing service contracts; provided, however, that Optionee shall have a period of ten days
following any of the foregoing occurrences or the last event in a series of events which culminate
in providing the basis for such notice during which such Optionee may claim that a basis for a Good
Reason termination by Optionee has occurred.
Section 1.9
—
Grant Date
“Grant Date” shall be
.
Section
1.10 —
Option
“Option” shall mean the option to purchase Ordinary Shares of the Company granted in
accordance with this Agreement and the Plan.
Section 1.11
—
Exercise Price
“Exercise Price” shall mean the exercise price of the Option set forth in Schedule A to this
Agreement.
Section 1.12
—
Permanent Disability
Optionee shall be deemed to have a “Permanent Disability” if Optionee meets the requirements
of the definition of such term, or of an equivalent term, as defined in the Company’s or
Subsidiary’s long-term disability plan applicable to Optionee or, if no such plan is applicable, in
the event Optionee is unable by reason of physical or mental illness or other similar disability,
to perform the material duties and responsibilities of his job for a period of 180 consecutive
business days out of 270 business days.
Section 1.13
—
Plan
“Plan” shall mean the Willis Group Holdings 2001 Share Purchase and Option Plan, as amended
from time to time.
Section 1.14
—
Pronouns
The masculine pronoun shall include the feminine and neuter, and the singular the plural,
where the context so indicates.
Section 1.15
—
Secretary
“Secretary” shall mean the Secretary of the Company.
3
Section 1.16
—
Shares or Ordinary Shares
“Shares” or “Ordinary Shares” means ordinary shares of the Company, which may be authorised
but unissued.
Section 1.17
—
Subsidiary
“Subsidiary” shall mean with respect to the Company, any subsidiary of the Company within the
meaning of Section 155 of the Act. For purposes of granting share options or any other “stock
rights,” within the meaning of Section 409A of the Code, an entity shall not be considered a
Subsidiary if granting any such share right would result in the share right becoming subject to
Section 409A of the Code. For purposes of granting U.S. incentive stock options, an entity shall
not be considered a Subsidiary if it does not also meet the requirements of section 424(f) of the
Code.
ARTICLE II
GRANT OF OPTIONS
Section 2.1
—
Grant of Options
On and as of the Grant Date, the Company grants to Optionee an Option to purchase any part or
all of an aggregate number of Shares, as stated in Schedule A to this Agreement, upon the terms
and conditions set forth in this Agreement, including any country-specific terms and conditions set
forth in Schedule B to this Agreement. In circumstances where Optionee is required to enter into
the Agreement of Restrictive Covenants and Other Obligations set forth in Schedule C, Optionee
agrees that the grant of an Option pursuant to this Agreement is sufficient consideration for
Optionee entering into such agreement.
Optionee acknowledges and agrees that the Company may provide grants of an Option and/or
Shares pursuant to this Plan in lieu of any grants the Company is obligated to make under any
pre-existing plans, agreements or letters and that such grants when made pursuant to this Plan
shall fully discharge the Company’s obligations to make any such grant under any pre-existing plan,
agreement or letter.
Section 2.2
—
Exercise Price
Subject to Section 2.4, the exercise price of each Share subject to the Option shall be as
stated in Schedule A to this Agreement.
Section 2.3
—
Employment Rights
Subject to the terms of the Agreement of Restrictive Covenants and Other Obligations where
applicable, the rights and obligations of Optionee under the terms of his office or employment with
the Company or any Subsidiary shall not be affected by his participation in this Plan or any right
which he may have to participate in it. The Option and the Optionee’s participation in the Plan
will not be interpreted to form an employment agreement with the Company. Optionee hereby waives
any and all rights to compensation or damages in consequence of the termination of his office or
employment for any reason whatsoever insofar as
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those rights arise or may arise from his ceasing to have rights under or be entitled to vest
in or exercise any Option as a result of such termination. If, notwithstanding the foregoing, any
such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, the
Optionee shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute
any and all documents necessary to request dismissal or withdrawal of such claims.
Section 2.4
—
Adjustments in Options Pursuant to Merger, Consolidation, etc.
Subject to Section 8 of the Plan, in the event that the outstanding Shares subject to an
Option are, from time to time, changed into or exchanged for a different number or kind of Shares
or other securities, by reason of a share split, spin-off, share dividend, share combination or
reclassification, recapitalization or merger, Change of Control (as defined in the Plan), or
similar event, the Committee, in its absolute discretion shall make an appropriate and equitable
adjustment in the number and kind of Shares and/or the amount of consideration as to which or for
which, as the case may be, as is permitted under the Plan. For the avoidance of doubt, a
transaction shall not constitute a Change of Control or other consolidating event described in
Section 9 of the Plan (i) if effected for the purpose of changing the place of incorporation or
form of organization of the ultimate parent entity of the Willis group of companies (including
where the Company is succeeded by an issuer incorporated under the laws of another state, country
or foreign government for such purpose and whether or not the Company remains in existence
following such transaction) and (ii) where all or substantially all of the Person(s) who are the
beneficial owners of the outstanding voting securities of the Company immediately prior to such
transaction will beneficially own, directly or indirectly, all or substantially all of the combined
voting power of the outstanding voting securities entitled to vote generally in the election of
directors of the ultimate parent entity resulting from such transaction in substantially the same
proportions as their ownership, immediately prior to such transaction, of such outstanding
securities of the Company. The Board, in its sole discretion, may make an appropriate and
equitable adjustment to the Shares underlying the Option to take into account such transaction,
including to substitute or provide for the issuance of shares of the resulting ultimate parent
entity in lieu of Shares of the Company.
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1
—
Commencement of Earning
(a) Subject to 3.1(b), the Shares subject to Option shall become Earned Performance Shares
subject to the Optionee being in the employment of the Company or any Subsidiary at each respective
date and provided the performance conditions applicable are achieved.
(b) Shares subject to the Option shall become Earned Performance Shares with effect from the
Earned Date for the year ending
if (i) in respect of the year ending
, the
Company achieves an Adjusted Earnings Per Share of not less than
and an Adjusted
Operating Margin of not less than
, and (ii) in respect of year ending
,
the Company achieves an Adjusted Earnings Per Share of not less than
and an Adjusted
Operating Margin of not less than
.
5
(c) Optionee understands and agrees that the terms under which the Option shall become Earned
Performance Shares as described in Section 3.1(b) above is confidential and the Optionee agrees not
to disclose, reproduce or distribute such confidential information concerning the Company, except
as required in the course of the Optionee’s employment with the Company or one of its Subsidiaries,
without the prior written consent of the Company. The Optionee’s failure to abide by this
condition may result in the immediate cancellation of the Option.
(d) All Shares subject to the Option shall be forfeited if and immediately upon the Company
failing to meet any of the performance conditions set out in 3.1(b) above.
Section 3.2
—
Commencement of Vesting and Exercisability
(a) The Earned Performance Shares shall vest and become exercisable as follows:
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(b) In the event of a termination of Optionee’s employment as a result of death or Permanent
Disability, then (i) the Earned Performance Shares and the Option in respect thereof shall become
immediately exercisable with respect to all of the Shares underlying such Option through the time
period set forth in Section 3.3 (b)(ii) below, and (ii) as of the date of termination of
employment, any portion of the Option which then has not become vested and an Earned Performance
Share shall immediately terminate and will at no time be exercisable.
(c) Notwithstanding anything herewith to the contrary, at the discretion of the Board, the
Option over Earned Performance Shares that have not yet vested shall immediately terminate and will
at no time become exercisable, except that the Board may, for termination of employment for reasons
other than Cause, determine in its discretion that the Option over the Earned Performance Shares
that has not yet vested and become exercisable, shall become vested and exercisable.
(d) In the event of a termination of Optionee’s employment for any reason other than death or
Permanent Disability, then the Earned Performance Shares that have vested and become exercisable
and the Option in respect thereof shall remain exercisable through the time period set forth in
Section 3.3 (b)(iii) or 3.3 (b)(iv) below.
6
(e) In the event of a termination of Optionee’s employment for any reason other than set out
in (b) and (d) above and subject to Section 3.3, all Options will lapse with effect from the date
of termination.
Section 3.3
—
Expiration of Options
(a) The Option shall immediately lapse upon the termination of Optionee’s employment, subject
to, and except as otherwise specified within, the terms and conditions of Section 3.2 above.
(b) The Option over Earned Performance Shares that has become vested and exercisable in
accordance with Section 3.2 will cease to be exercisable by Optionee upon the first to occur of the
following events:
(i) The eighth anniversary of the Grant Date; or
(ii) The first anniversary of the date of Optionee’s termination of employment by
reason of death or Permanent Disability; or
(iii) Ninety days after the date of any termination of Optionee’s employment by the
Company or its Subsidiary for Cause or by Optionee without Good Reason; or
(iv) Ninety days after the date of termination of Optionee’s employment other than as
set forth in Section 3.2(b) or (d), above or where the Board has exercised its discretion in
accordance with Section 3.2(c), the period shall be six calendar months after the date of
termination;
(v) If the Committee so determines pursuant to Section 9 of the Plan, the effective
date of a Change of Control, merger, amalgamation pursuant to Irish law, or other
consolidation of the Company or group of companies collectively known as Willis Group, or
other similar event, as provided in the Plan, so long as Optionee has a reasonable
opportunity to exercise his Options prior to such effective date.
(c) The Optionee agrees to execute and deliver the following agreements or other documents in
connection with the grant of the Option within the period set forth below:
(i) Optionee must execute the Agreement of Restrictive Covenants and Other Obligations
pursuant to Article VII below, if applicable, and deliver it to the Company within 45 days
of the receipt of this Agreement;
(ii) Optionee must execute the Option Acceptance Form and deliver it to the Company
within 45 days of the receipt of this Agreement; and
(iii) Optionees who are resident in the United Kingdom must execute the form of joint
election as described in terms set forth in Schedule B for the United Kingdom and deliver it
to their employing company within 45 days of the receipt of this Agreement.
(d) The Committee may, in its sole discretion, cancel the Option, if the Optionee fails to
execute and deliver the agreements and documents within the period set forth in Section 3.3(c) or
fails to meet the requirements set forth in Section 3.1(e).
7
ARTICLE IV
EXERCISE OF OPTION
Section 4.1
—
Person Eligible to Exercise
During the lifetime of Optionee, only he may exercise an Option or any portion thereof. After
the death of Optionee, any exercisable portion of an Option may, prior to the time when an Option
becomes unexercisable under Section 3.3, be exercised by his personal representative or by any
person empowered to do so under Optionee’s will or under then applicable laws of inheritance.
Section 4.2
—
Partial Exercise
Any exercisable portion of an Option or the entire Option, if then wholly exercisable, may be
exercised in whole or in part at any time prior to the time when the Option or portion thereof
becomes unexercisable under Section 3.3; provided, however, that any partial exercise shall be for
whole Shares only.
Section 4.3
—
Manner of Exercise
An Option, or any exercisable portion thereof, may be exercised solely by delivering to the
Secretary or his office all of the following prior to the time when the Option or such portion
becomes unexercisable under Section 3.3:
(a) Notice in writing signed by Optionee or the other person then entitled to exercise the
Option or portion thereof, stating that the Option or portion thereof is thereby exercised, such
notice complying with all applicable rules established by the Board and made available to Optionee
(or such other person then entitled to exercise the Option);
(b) Full payment (in cash, by cheque, electronic transfer, by way of a cashless exercise as
approved by the Company, by way of surrender of Shares to the Company or by a combination thereof)
of the Exercise Price for the Shares with respect to which such Option or portion thereof is
exercised;
(c) Full payment to the Company or any Subsidiary by which Optionee is employed (the
“Employer”), of all income tax, payroll tax, payment on account, and social insurance contributions
amounts (“Tax”) which, under federal, state, local or foreign law, it is required to withhold upon
exercise of the Option; and
(d) In a case where any Employer is obliged to (or would suffer a disadvantage if it were not
to) account for any Tax for which Optionee is liable by virtue of the Optionee’s participation in
the Plan and/or any social security contributions recoverable from and legally applicable to the
Optionee (the “Tax-Related Items”), the Optionee has either:
(i) made full payment to the Employer of an amount equal to the Tax-Related Items, or
(ii) entered into arrangements acceptable to the Employer or another Subsidiary to
secure that such a payment is made (whether by withholding from the Optionee’s
8
wages or other cash compensation paid to the Optionee or from the proceeds of the sale
of Shares acquired at exercise of the Option either through a voluntary sale or through a
mandatory sale arranged by the Company (on the Optionee’s behalf pursuant to this
authorization));
(e) In the event the Option or any portion thereof shall be exercised pursuant to Section 4.1
by any person or persons other than Optionee, appropriate proof of the right of such person or
persons to exercise the Option.
Without limiting the generality of the foregoing, the Board may in the case of U.S. resident
Optionees of the Company or any Subsidiary require an opinion of counsel reasonably acceptable to
it to the effect that any subsequent transfer of Shares acquired on exercise of an Option does not
violate the U.S. Securities Exchange Act of 1934, as amended, and may issue stop-transfer orders in
the U.S. covering such Shares.
Section 4.4
—
Conditions to Issuance of Shares
The Shares deliverable upon the exercise of an Option, or any portion thereof, may be either
previously authorized but unissued Shares or issued Shares held by any other person. Such Shares
shall be fully paid. The Company shall not be required to issue or deliver any Shares granted upon
the exercise of an Option or portion thereof prior to fulfillment of all of the following
conditions:
(a) The obtaining of approval or other clearance from any state, federal, local or foreign
governmental agency which the Board shall, in its absolute discretion, determine to be necessary or
advisable; and
(b) The lapse of such reasonable period of time following the exercise of the Option as the
Board may from time to time establish for reasons of administrative convenience.
Section 4.5
—
Rights as Shareholder
The Optionee shall not be, nor have any of the rights or privileges of, a shareholder of the
Company in respect of any Shares that may be received upon the exercise of the Option or any
portion thereof unless and until certificates representing such shares or their electronic
equivalent shall have been issued by the Company to the Optionee.
ARTICLE V
ADDITIONAL TERMS AND CONDITIONS OF OPTION
Section 5.1
—
Nature of Grant
In accepting the Option, the Optionee acknowledges, understands and agrees that:
(a) the Plan is established voluntarily by the Company, is discretionary in nature and may be
amended, suspended or terminated by the Company at any time;
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(b) the grant of the Option is voluntary and occasional and does not create any contractual or
other right to receive future options, or benefits in lieu of options, even if options have been
granted repeatedly in the past;
(c) all decisions with respect to future Option grants, if any, will be at the sole discretion
of the Company;
(d) the Optionee’s participation in the Plan is voluntary;
(e) the Option and any Shares acquired under the Plan are not intended to replace any pension
rights or compensation under any pension arrangement;
(f) the Option and any Shares acquired under the Plan are not part of normal or expected
compensation or salary for any purposes, including, but not limited to, calculating any severance,
resignation, termination, redundancy, end of service payments, dismissal, bonuses, long-service
awards, pension or retirement or welfare benefits or similar payments and in no event should be
considered as compensation for, or relating in any way to past services for, the Employer, the
Company or a Subsidiary;
(g) the future value of the Shares underlying the Option is unknown and cannot be predicted
with certainty; and
(h) if the Optionee exercises the Option and acquires Shares, the value of such Shares may
increase or decrease in value, even below the exercise price.
Section 5.2
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No Advice Regarding Grant
The Company is not providing any tax, legal or financial advice, nor is the Company making any
recommendations regarding the Optionee’s participation in the Plan, or the issuance of Shares upon
exercise of the Option or sale of the Shares. The Optionee is hereby advised to consult with his
or her own personal tax, legal and financial advisors regarding his or her participation in the
Plan before taking any action related to the Plan.
ARTICLE VI
DATA PRIVACY NOTICE AND CONSENT
Section 6
—
Data Privacy
(a) The Optionee hereby explicitly and unambiguously consents to the collection, use and
transfer, in electronic or other form, of the Optionee’s personal data as described in this
Agreement and any other Option grant materials by and among, as applicable, the Employer, the
Company and its Subsidiaries for the exclusive purpose of implementing, administering and managing
the Optionee’s participation in the Plan.
(b) The Optionee understands that the Company and the Employer may hold certain personal
information about the Optionee, including, but not limited to, the Optionee’s name, home address,
telephone number, date of birth, social insurance number or other identification number, salary,
nationality, job title, any Shares or directorships held in the
10
Company, details of all Options or any other entitlement to Shares awarded, canceled,
exercised, vested, unvested or outstanding in the Optionee’s favor, for the exclusive purpose of
implementing, administering and managing the Plan (“Data”).
(c) The Optionee understands that Data will be transferred to
or to any other
third party assisting in the implementation, administration and management of the Plan. The
Optionee understands that the recipients of the Data may be located in the Optionee’s country or
elsewhere, and that the recipients’ country (e.g., Ireland) may have different data privacy laws
and protections from the Optionee’s country. The Optionee understands that he or she may request a
list with the names and addresses of any potential recipients of the Data by contacting his or her
local human resources representative. The Optionee authorizes the Company,
and any
other recipients of Data which may assist the Company (presently or in the future) with
implementing, administering and managing the Plan to receive, possess, use, retain and transfer the
Data, in electronic or other form, for the sole purpose of implementing, administering and managing
his or her participation in the Plan. The Optionee understands that Data will be held only as long
as is necessary to implement, administer and manage the Optionee’s participation in the Plan. The
Optionee understands that he or she may, at any time, view Data, request additional information
about the storage and processing of Data, require any necessary amendments to Data or refuse or
withdraw the consents herein, in any case without cost, by contacting in writing his or her local
human resources representative. The Optionee understands, however, that refusing or withdrawing
his or her consent may affect the Optionee’s ability to participate in the Plan. For more
information on the consequences of the Optionee’s refusal to consent or withdrawal of consent, the
Optionee understands that he or she may contact his or her local human resources representative.
ARTICLE VII
AGREEMENT OF RESTRICTIVE COVENANTS AND OTHER OBLIGATIONS
Section 7
—
Restrictive Covenants and Other Obligations
In consideration of the grant of an Option, Optionee shall enter into the Agreement of
Restrictive Covenants and Other Obligations, a copy of which is attached hereto as Schedule C. In
the event Optionee does not sign and return the Agreement of Restrictive Covenants and Other
Obligations within 45 days of the receipt of this Agreement, the Committee may, in its sole
discretion, cancel the Option. If no such agreement is required, Schedule C shall state none or
not applicable.
ARTICLE VIII
MISCELLANEOUS
Section 8.1
—
Administration
The Board shall have the power to interpret the Plan and this Agreement and to adopt such
rules for the administration, interpretation and application of the Plan as are consistent
therewith and to interpret or revoke any such rules. All actions taken and all interpretations and
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determinations made by the Board shall be final and binding upon Optionee, the Company and all
other interested persons. No member of the Board shall be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or the Options. In its
absolute discretion, the Board may at any time and from time to time exercise any and all rights
and duties of the Board under the Plan and this Agreement.
Section 8.2
—
Options Not Transferable
Neither the Options nor any interest or right therein or part thereof shall be subject to the
debts, contracts or engagements of Optionee or his successors in interest or shall be subject to
disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other
means whether such disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy),
and any attempted disposition thereof shall be null and void and of no effect; provided, however,
that this Section 8.2 shall not prevent transfers made solely for estate planning purposes or under
a will or by the applicable laws of inheritance.
Section 8.3
—
Binding Effect
The provisions of this Agreement shall be binding upon and accrue to the benefit of the
parties hereto and their respective heirs, legal representatives, successors and assigns.
Section 8.4
—
Notices
Any notice to be given under the terms of this Agreement to the Company shall be addressed to
the Company at the following address:
Willis Group Holdings Public Limited Company
c/o Willis North America Inc.
One World Financial Center
200 Liberty Street
New York, NY 10281
Attention: Company Secretary
and any notice to be given to Optionee shall be at the address set forth in the Option Acceptance
Form.
By a notice given pursuant to this Section 8.4, either party may hereafter designate a
different address for notices to be given to him. Any notice that is required to be given to
Optionee shall, if Optionee is then deceased, be given to Optionee’s personal representatives if
such representatives have previously informed the Company of their status and address by written
notice under this Section 8.4. Any notice shall have been deemed duly given when sent by facsimile
or enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with
postage prepaid) in a post office or branch post office regularly maintained by the United States
Postal Service or the United Kingdom’s Post Office or in the case of a notice given by an Optionee
resident outside the United States of America or the United Kingdom, sent by facsimile or by a
recognized international courier service.
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Section 8.5
—
Titles
Titles are provided herein for convenience only and are not to serve as a basis for
interpretation or construction of this Agreement.
Section 8.6
—
Applicability of Plan
The Options shall be subject to all of the terms and provisions of the Plan, to the extent
applicable to the Options. In the event of any conflict between this Agreement and the Plan, the
terms of the Plan shall control.
Section 8.7
—
Amendment
This Agreement may be amended only by a document executed by the parties hereto, which
specifically states that it is amending this Agreement.
Section 8.8
—
Governing Law
This Agreement shall be governed by, and construed in accordance with the laws of Ireland;
provided, however, that the Agreement of Restrictive Covenants and Other Obligations, if
applicable, shall be governed by and construed in accordance with the laws specified in that
agreement.
Section 8.9
—
Jurisdiction
The courts of Ireland shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any disputes which may arise out of or in connection with this Agreement
and, for such purposes, the parties hereto irrevocably submit to the jurisdiction of such courts;
provided, however, where applicable, that with respect to the Agreement of Restrictive Covenants
and Other Obligations the courts specified in such agreement shall have jurisdiction to hear and
determine any suit, action or proceeding and to settle any disputes which may arise out of or in
connection with that agreement.
Section 8.10
—
Electronic Delivery
The Company may, in its sole discretion, decide to deliver any documents related to current or
future participation in the Plan by electronic means. The Optionee hereby consents to receive such
documents by electronic delivery and agrees to participate in the Plan through an on-line or
electronic system established and maintained by the Company or a third party designated by the
Company.
Section 8.11
—
Language
If the Optionee has received this Agreement, or any other document related to the Option
and/or the Plan translated into a language other than English and if the translated version is
different than the English version, the English version will control.
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Section 8.12
—
Severability
The provisions of this Agreement are severable and if any one or more provisions are
determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions
shall nevertheless be binding and enforceable.
Section 8.13
—
Schedule B
The Option shall be subject to any special provisions set forth in Schedule B for the
Optionee’s country of residence, if any. If the Optionee relocates to one of the countries
included in Schedule B during the life of the Option, the special provisions for such country shall
apply to the Optionee, to the extent the Company determines that the application of such provisions
is necessary or advisable in order to comply with local law or facilitate the administration of the
Plan. Schedule B constitutes part of this Agreement.
Section 8.14
—
Imposition of Other Requirements
The Company reserves the right to impose other requirements on the Option and the Shares
acquired upon exercise of the Option, to the extent the Company determines it is necessary or
advisable in order to comply with local laws or facilitate the administration of the Plan, and to
require the Optionee to sign any additional agreements or undertakings that may be necessary to
accomplish the foregoing.
Section 8.15
—
Counterparts
This Agreement may be executed in any number of counterparts (including by facsimile), each of
which shall be deemed to be an original and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF the Company and Optionee have each executed this Agreement.
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WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY
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By:
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Name:
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Title:
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14
Exhibit 10.16
WILLIS GROUP HOLDINGS
2008 SHARE PURCHASE AND OPTION PLAN
(AS AMENDED AND RESTATED ON DECEMBER 30, 2009 BY WILLIS GROUP HOLDINGS LIMITED
AND AS AMENDED AND RESTATED AND ASSUMED BY WILLIS GROUP HOLDINGS PUBLIC LIMITED
COMPANY ON DECEMBER 31, 2009)
1. Purpose of Plan
The Willis Group Holdings 2008 Share Purchase and Option Plan, as amended and restated on December 30, 2009 by
Willis Group Holdings Limited and as amended and restated and assumed by Willis Group Holdings Public Limited
Company (the “Company” or “Willis”) on December 31, 2009, is designed:
(a) to promote the long term financial interests and growth of the Company and its
Subsidiaries (collectively, “Willis Group”) by attracting and retaining personnel with the
training, experience and ability to enable them to make a substantial contribution to the
success of Willis Group’s business;
(b) to motivate management personnel by means of growth-related incentives to achieve long
range goals; and
(c) to further the identity of interests of participants with those of the shareholders of
Willis through opportunities for increased share, or share-based, ownership in Willis.
2. Definitions
As used in the Plan, the following words shall have the following meanings:
(a) “2001 Plan” means the Willis Group Holdings 2001 Share Purchase and Option Plan as
amended and restated on December 30, 2009 by Willis Group Holdings Limited
and as amended and restated and assumed by
Willis Group Holdings Public Limited Company on December 31, 2009.
(b) “Act” means the Companies Act 1963 of Ireland.
(c) “Board of Directors” means the Board of Directors of Willis.
(d) “Change of Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as
in effect on the date hereof) of the Ordinary Shares representing more than 50% of the
aggregate voting power represented by the issued and outstanding Ordinary Shares; or (b)
occupation of a majority of the seats (other than vacant seats) on the Board of Directors by
Persons who were neither (i) nominated by Willis’ Board of Directors nor (ii) appointed by
directors so nominated. For the avoidance of doubt, a transaction shall not constitute a
Change of Control (i) if effected for the purpose of changing the place of incorporation or
form of organization of the ultimate parent entity of the Willis group of companies
(including where the Company is succeeded by an issuer incorporated under the laws of
another state, country or foreign government for such purpose and whether or not the Company
remains in existence following such transaction) and (ii) where all or substantially all of
the Person(s) who are the beneficial owners of the outstanding voting securities of the
Company immediately prior to such transaction will beneficially own, directly or indirectly,
all or substantially all of the combined voting power of the outstanding voting securities
entitled to vote generally in the election of directors of the ultimate parent entity
resulting from such transaction in substantially the same proportions as their ownership,
immediately prior to such transaction, of such outstanding securities of the Company. The
Board of Directors, in its sole discretion, may make an appropriate and equitable adjustment
to the Ordinary Shares underlying a Grant to take into account such
1
transaction, including to substitute or provide for the issuance of ordinary shares of the
resulting ultimate parent entity in lieu of Ordinary Shares of the Company.
(e) “Code” means the Internal Revenue Code of 1986 of the United States of America, as
amended from time to time.
(f) “Committee” means the Compensation Committee of the Board of Directors (or, if no such
committee is appointed, the Board of Directors provided that a majority of the Board of
Directors are “independent directors” for the purpose of the rules and regulations of the
New York Stock Exchange).
(g) “Company” or “Willis” means Willis Group Holding Public Limited Company, a company
incorporated in Ireland under registered number 475616, or any successor thereto.
(h) “Designated Associate Company” means any company in which a member of the Willis Group
owns twenty percent or more of the voting share interest but less than fifty percent of the
voting share interest and that has been designated by the Board of Directors as being
eligible for participation in the Plan.
(i) “Director” means any member of the Board of Directors.
(j) “Dividend Equivalents” means an entitlement to receive, in such form and on such terms
as the Committee may determine, the value of a dividend or distribution paid by Willis on
one of its Shares in accordance with its Bye-Laws that would be payable on the number of
Shares subject to a Grant.
(k) “Employee” means a person, including a Director and an officer, in the employment of
Willis Group or a Designated Associate Company.
(l) “Fair Market Value” means, with respect to any property other than Shares, the market
value of such property determined by such methods or procedures as shall be established from
time to time by the Committee. The Fair Market Value of Shares as of any date shall be the
per Share closing price of the Shares as reported on the New York Stock Exchange on that
date (or if there were no reported prices on such date, on the last preceding date on which
the prices were reported) or, if Willis is not then listed on the New York Stock Exchange,
on such other principal securities exchange on which the Shares are traded, and if Willis is
not listed on the New York Stock Exchange or any other securities exchange, the Fair Market
Value of Shares shall be determined by the Committee in its sole discretion using
appropriate criteria which, with respect to Grants to US Participants, shall comply with
Section 15 and shall be determined pursuant to a reasonable valuation method as set forth in
Section 409A of the Code.
(m) “Grant” means an award made to a Participant pursuant to the Plan and described in
Section 6, including, without limitation, an award of a Share Option, Restricted Share,
Restricted Share Unit, Purchase Shares, Other Share-Based Grant, or any combination of the
foregoing.
(n) “Grant Agreement” means an agreement between Willis and a Participant that sets forth
the terms, conditions and limitations applicable to a Grant.
(o) “Ordinary Shares” or “Share” means the ordinary shares of the Company, nominal value
$0.000115.
(p) “Participant” means an Employee or Director of any member of Willis Group or a
Designated Associate Company, to whom one or more Grants have been made, and such Grants
have not all expired or been forfeited or terminated under the Plan.
(q) “Person” means “person” as such term is used in Sections 13(d) and 14(d) of the Exchange
Act.
2
(r) “Share-Based Grants” means the collective reference to the grant of Purchase Shares,
Restricted Share, Restricted Share Units and Other Share-Based Grants.
(s) “Share Options” means options to purchase Ordinary Shares, which may or may not be
incentive stock options within the meaning of Section 422 of the Code (“Incentive Stock
Options”).
(t) “Subsidiary” shall mean with respect to the Company, any subsidiary of the Company
within the meaning of Section 155 of the Act. For purposes of granting Share Options or
other “stock rights,” within the meaning of Section 409A of the Code, an entity may not be
considered a Subsidiary if granting any such stock right would result in the stock right
becoming subject to Section 409A of the Code.
(u) “Substitute Awards” shall mean a Grant or Shares issued by the Company in assumption of,
or in substitution or exchange for, awards previously granted, or the right or obligation to
make future awards, in each case by a company acquired by the Company or any Subsidiary or
with which the Company or any Subsidiary combines.
3. Administration of Plan
(a) The Plan shall be administered by the Committee. All of the members of the Committee and
any other Directors shall be eligible to be selected for Grants under the Plan; provided,
however, that to the extent the Board of Directors determines it is necessary or desirable
to satisfy any regulation or rule, whether under Section 16 of the Securities Exchange Act
of 1934 of the United States, as amended (“Exchange Act”) or otherwise related to the
Grants, the members of the Committee shall qualify under such regulation or rules. The
Committee may adopt its own rules of procedure, and the action of a majority of the
Committee, taken at a meeting or taken without a meeting by a writing signed by such
majority, shall constitute action by the Committee. The Committee shall have the power and
authority to administer, construe and interpret the Plan in its sole discretion, to make
rules for carrying it out and to make changes in such rules. The Committee shall also have
the power to establish sub-plans, which may constitute separate schemes, for the purpose of
establishing schemes which qualify for approval by the UK Inland Revenue or meet any special
tax or regulatory requirements anywhere in the world. Any such interpretations, rules,
administration and sub-plans shall be consistent with the basic purposes of the Plan and
shall be binding on Participants.
(b) The Committee may delegate to the Chief Executive Officer and to other senior officers
of Willis Group its duties under the Plan subject to such conditions and limitations as the
Committee shall prescribe except that only the Committee may designate and make Grants,
including the variation (including substitution), cancellation or suspension of said Grant,
to Participants who are subject to Section 16 of the Exchange Act.
(c) The Committee may employ attorneys, consultants, accountants, appraisers, brokers or
other persons. The Committee, Willis Group, and the officers and Directors of Willis Group
shall be entitled to rely upon the advice, opinions or valuations of any such persons. All
actions taken and all interpretations and determinations made by the Committee in good faith
shall be final and binding upon all Participants, Willis Group and all other interested
persons. No member of the Committee shall be personally liable for any action, determination
or interpretation made in good faith with respect to the Plan or the Grants, and all members
of the Committee shall be fully protected by Willis Group with respect to any such action,
determination or interpretation.
(d) Notwithstanding anything to the contrary contained in the Plan or any Grant Agreement,
(i) neither Willis, the Willis Group, any Designated Associate Company or any of their
respective employees, directors, officers, agents or representatives nor any member of the
Committee shall have liability to a Participant or otherwise with respect to the failure of
the Plan, any Grant or Grant Agreement to comply with Section 409A of the Code and (ii)
neither Willis, the Willis Group, any Designated Associate Company or any of their
respective employees, directors, officers, agents or representatives nor any member of the
Committee makes any representation or warranty to any Participant that any Grant hereunder
satisfies the requirements of Section 409A of the Code.
3
4. Eligibility
Subject to Section 12 of the Plan, the Committee may from time to time make Grants under the Plan
to such Employees of the Willis Group or of any Designated Associate Company, and in such form and
having such terms, conditions and limitations as the Committee may determine. Grants may be granted
singly, in combination or in tandem. The terms, conditions and limitations of each Grant under the
plan shall be set forth in a Grant Agreement, in a form approved by the Committee, consistent,
however, with the terms of the Plan.
5. Share Limitations and Conditions
(a) Number of Shares—Subject to adjustment as provided in Section 9, a total of
8,000,000 Shares shall be authorized for grant under the Plan. The Shares available for the
grant of Incentive Stock Options under the Plan shall not exceed 5,000,000 Shares, subject
to adjustment as provided in Section 9 and subject to the provisions of Sections 422 or 424
of the Code or any successor provisions. The Shares available for the grant of Restricted
Share, Restricted Share Units or other full-value share-based grants under the Plan shall
not exceed 2,000,000.
If any Shares subject to a Grant are forfeited, terminate, expire or a Grant is settled for
cash (in whole or in part) or otherwise does not result in the issuance of all or a portion
of the Shares subject to such Grant, the Shares subject to such Grant or award shall, to the
extent of such forfeiture, expiration, termination, non-issuance, cash settlement or
otherwise, again be available for Grants under the Plan. Notwithstanding anything to the
contrary contained herein, the following Shares shall not be added to the Shares authorized
for grant under paragraph (a) of this Section: (i) Shares tendered by the Participant or
withheld by the Company in payment of the purchase price of a Share Option; (ii) Shares
tendered by the Participant or withheld by the Company to satisfy any tax withholding
obligation with respect to a Grant; and (iii) Shares repurchased by the Company using Option
proceeds.
(b) Substitute Awards shall not reduce the Shares authorized for grant under the Plan or
authorized for grant to a Participant in any calendar year. Additionally, in the event that
a company acquired by Willis or any Subsidiary or with which the Willis or any Subsidiary
combines has shares available under a pre-existing plan approved by shareholders and not
adopted in contemplation of such acquisition or combination, the shares available for grant
pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate,
using the exchange ratio or other adjustment or valuation ratio or formula used in such
acquisition or combination to determine the consideration payable to the holders of Ordinary
Shares of the entities party to such acquisition or combination) may be used for Grants
under the Plan and shall not reduce the Shares authorized for grant under the Plan; provided
that Grants using such available shares shall not be made after the date grants could have
been made under the terms of the pre-existing plan, absent the acquisition or combination,
and shall only be made to individuals who were not Employees or Directors prior to such
acquisition or combination.
(c) Purchase Shares, as defined in Section 6 (c) below whether offered to a participant or
in connection with any other Grant under this Plan, shall not be counted against the above
limits if they are sold to a Participant at Fair Market Value on the date of purchase.
(d) The number of Shares subject to Grants under this Plan to any one Participant shall not
be more than 2,000,000 Shares in any one calendar year and such limit shall not include
Purchase Shares.
(e) No Grants shall be made under the Plan beyond ten years after the original effective
date of the Plan, but the terms of Grants made on or before the expiration of the Plan may
extend beyond such expiration. At the time a Grant is made or amended or the terms or
conditions of a Grant are changed, the Committee may provide for limitations or conditions
on such Grant.
(f) Nothing contained herein shall affect the right of Willis Group or, if applicable, a
Designated Associate Company to terminate any Participant’s employment at any time or for
any reason. The rights and obligations of any individual under the terms of his office or
employment with any member of Willis
4
Group or, if applicable, a Designated Associate Company shall not be affected by his or her
participation in this Plan or any right which he or she may have to participate in it, and
an individual who participates in this Plan shall waive any and all rights to compensation
or damages in consequence of the termination of his or her office or employment for any
reason whatsoever insofar as those rights arise or may arise from his or her ceasing to have
rights under or be entitled to exercise any Grant as a result of such termination.
(g) Subject to complying with Section 409A of the Code, deferrals of Grant payouts may be
provided for, at the sole discretion of the Committee, in the Grant Agreements.
(h) Except as otherwise prescribed by the Committee, the amounts of the Grants for any
employee of a Subsidiary, along with interest, dividend, and other expenses accrued on
deferred Grants shall be charged to the Participant’s employer during the period for which
the Grant is made. If the Participant is employed by more than one Subsidiary or by both the
Company and a Subsidiary during the period for which the Grant is made, the Participant’s
Grant and related expenses will be allocated between the companies employing the Participant
in a manner prescribed by the Committee.
(i) No option, right or benefit under the Plan may be transferred by a Participant other
than by will or the laws of descent and distribution, and except as set forth in paragraph
(k) of this Section, all options, rights and benefits under the Plan may be exercised during
the Participant’s lifetime only by the Participant. No such benefit shall, prior to receipt
thereof by the Participant, be in any manner liable for or subject to the debts, contracts,
liabilities, engagements, or torts of the Participant.
(j) Participants shall not be, and shall not have any of the rights or privileges of,
shareholders of Willis in respect of any Shares purchasable in connection with any Grant
unless and such Shares have been issued by Willis to such Participants, unless the
Committee shall otherwise determine.
(k) No election as to benefits or exercise of Share Options or other rights may be made
during a Participant’s lifetime by anyone other than the Participant or by a legal
representative appointed for or by the Participant.
(l) Absent express provisions to the contrary, any Grant under this Plan shall not be deemed
compensation for purposes of computing benefits or contributions under any retirement plan
of any member of Willis Group and shall not affect any benefits under any other benefit plan
of any kind now or subsequently in effect under which the availability or amount of benefits
is related to level of compensation. This Plan is not a “Pension Plan” or “Welfare Plan”
under the Employee Retirement Income Security Act of 1974 of the United States, as amended.
(m) Unless the Board of Directors determines otherwise, no benefit or promise under the Plan
shall be secured by any specific assets of any member of Willis Group, nor shall any assets
of any member of Willis Group be designated as attributable or allocated to the satisfaction
of Willis Group’s obligations under the Plan.
6. Grants
From time to time, the Committee will determine the forms and amounts of Grants for Participants.
Such Grants may take the following forms in the Committee’s sole discretion; provided, however,
that in no event shall the purchase price of any Grant be less than the par value of the Shares.
The terms of any Grant may include a requirement that the Participant enter into an agreement or
election under which the Participant agrees to pay his or her employer’s social security liability
(or reimburse the employer for such liability) in any jurisdiction arising on exercise of any Share
Option, or at any other time with respect to any other Share-Based Award, and if this requirement
is not permitted in any jurisdiction the Grant in such circumstances shall be null and void.
(a) Share Options—These are options to purchase Ordinary Shares, which may or may not be
Incentive Stock Options. The option price per each Share purchasable under any Share Option
granted pursuant to this Article shall not be less than 100% of the Fair Market Value of one
Share on the date of
5
grant of such option (or, if the person to whom the Incentive Stock Option is being granted
owns Ordinary Shares representing more than 10 percent of the voting power of all classes of
Willis’ equity, the exercise price shall be at least equal to 110% of the Fair Market Value
of one Ordinary Share on the date of grant) other than in connection with Substitute Awards.
At the time of the Grant the Committee shall determine, and shall have contained in the
Grant Agreement the option exercise period, the option price, and such other conditions or
restrictions on the grant or exercise of the option as the Committee deems appropriate,
which may include the requirement that the grant of options is predicated on the acquisition
of Purchase Shares under Section 6(c) by the Participant or as may be required pursuant to
applicable law, if such options shall be Incentive Stock Options, subject to Section 12.
Payment of the option price shall be made in cash or in Ordinary Shares (provided, that such
Shares have been held by the Participant for not less than six months (or such other period
as established by the Committee from time to time)), or a combination thereof, in accordance
with the terms of the Plan, the Grant Agreement and any applicable guidelines of the
Committee in effect at the time. Notwithstanding anything to the contrary in the Plan,
Incentive Stock Options may be granted only to employees of Willis or of a “parent
corporation” or “subsidiary corporation” (as such terms are defined in Section 424 of the
Code) at the date of grant. The aggregate Fair Market Value (generally determined as of the
time the Share Option is granted) of the Shares with respect to which Incentive Stock
Options are exercisable for the first time by a Participant during any calendar year (under
all plans of Willis and of any parent corporation or subsidiary corporation as defined in
Section 424 of the Code) shall not exceed one hundred thousand dollars ($100,000). For
purposes of the preceding sentence, Incentive Stock Options will be taken into account
generally in the order in which they are granted. No Incentive Stock Option may be exercised
later than ten (10) years after the date it is granted or five years, in the case of a
Participant who owns Ordinary Shares representing more than 10 percent of the voting power
of all classes of Willis’ equity. Each provision of the Plan and each Grant Agreement
relating to an Incentive Stock Option shall be construed so that each Incentive Stock Option
shall be an incentive stock option as defined in Section 422 of the Code, and any provisions
of the Grant Agreement thereof that cannot be so construed shall be disregarded. Except for
Substitute Awards and in certain limited situations, including, without limitation the
death, disability, termination of employment of the Participant without good cause as
determined by the Committee, or retirement of the Participant or a Change of Control, Share
Options shall have a vesting period of not less than three (3) years from date of grant (but
permitting pro rata vesting over such time) provided that such restrictions shall not be
applicable to grants of Share Options, Restricted Share Awards or Restricted Share Unit
Awards not in excess of 5% of the number of shares available for Grants under Section 5(a).
Share Options subject to the achievement of performance objectives shall have a minimum
vesting period of one (1) year.
(b) Restricted Share and Restricted Share Units
—
Grants of Restricted Share and of
Restricted Share Units may be issued to Participants either alone or in addition to other
Grants made under the Plan (a “Restricted Share Award” or “Restricted Share Unit Award”
respectively). Except for Substitute Awards and in certain limited situations, including,
without limitation the death, disability, termination of employment of the Participant
without good cause as determined by the Committee, or retirement of the Participant, a
Change of Control, Restricted Share Awards and Restricted Share Unit Awards subject to
continued service with the Company or a Subsidiary shall have a vesting period of not less
than three (3) years from date of grant (but permitting pro rata vesting over such time);
provided that such restrictions shall not be applicable to grants of Share Options,
Restricted Share Awards or Restricted Share Unit Awards not in excess of 5% of the number of
shares available for Grants under Section 5(a). Restricted Share Awards and Restricted Share
Unit Awards subject to the achievement of performance objectives shall have a minimum
vesting period of one (1) year.
Unless otherwise provided in the Grant Agreement, beginning on the date of grant of the
Restricted Share Award and subject to execution of the Grant Agreement, the Participant
shall become a shareholder of Willis with respect to all Shares subject to the Grant
Agreement and shall have all of the rights of a shareholder, including the right to vote
such Shares and the right to receive distributions made with respect to such Shares. A
Participant receiving a Restricted Share Unit Award shall not possess the rights of a
shareholder of Willis with respect to such grant. Except as otherwise provided in an Grant
Agreement any Shares or any other property (other than cash) distributed as a dividend or
otherwise with respect to any Restricted Share Award or Restricted Share Unit Award as to
which the restrictions have not yet lapsed shall be subject to the same restrictions as such
Restricted Share Award or Restricted Share Unit Award.
6
Should Shares be issued upon vesting of Restricted Share Award or Restricted Share Unit
Awards in circumstances where they are not otherwise fully paid up, the Board may require
the Participant to pay the aggregate nominal value of the Shares on the basis that such
Shares underlying the Restricted Share Award or Restricted Share Unit Award shall then be
allotted as fully paid to the Participant.
(c) Purchase Shares—Purchase Shares refer to Ordinary Shares held in Willis’ employee share
ownership plan trust, The Trinity Employees’ Share Ownership Plan Trust, offered to a
Participant at not less than 100% of the Fair Market Value of one Share on the date of
purchase, the acquisition of which may make him eligible to receive under the Plan, among
other things, Share Options.
(d) Other Share-Based Grants—The Committee may make other Grants under the Plan pursuant to
which Ordinary Shares or other equity securities of Willis are or may in the future be
acquired, or Grants denominated in Share units, including ones valued using measures other
than Fair Market Value. Other Share-Based Grants may be granted with or without
consideration. Should Ordinary Shares be issued on the vesting of a Share-Based Grant in
circumstances where they are not otherwise fully paid up, the Board may require the
Participant to pay the aggregate nominal value of such Ordinary Shares on the basis that
such Ordinary Shares shall then be allotted as fully paid to the Participant.
(e) Entitlement to Dividend Equivalents—Subject to complying with Section 409A of the Code
and the provisions of the Plan, including, without limitation Section 14, and any Grant
Agreement, the recipient of a Grant other than a Share Option may, if so determined by the
Committee, be entitled to receive, currently or on a deferred basis, cash, Share or other
property dividends, or cash payments in amounts equivalent to cash, Share or other property
dividends on Shares (“Dividend Equivalents”) with respect to the number of Shares covered by
the Grant, as determined by the Committee, in its sole discretion. The right of US
Participants to receive Dividend Equivalents or other dividends or payments shall be treated
as a separate Grant and such Dividend Equivalents or other dividends or payments for such US
Participants, if any, shall be credited to a notional account maintained by Willis or paid,
as of the dividend payment dates during the period between the date of the Grant and the
date the Grant is exercised, vested, expired, credited or paid, as applicable and shall be
subject to such limitations as may be determined by the Committee. The Committee may provide
that such amounts and Dividend Equivalents (if any) shall be deemed to have been reinvested
in additional Shares or otherwise reinvested and may provide that such amounts and Dividend
Equivalents are subject to the same vesting or performance conditions as the underlying
Grant.
(f) Performance Awards—If the Committee determines that a Share Option, Restricted Share
Award, a Restricted Share Unit Award, a Performance Award or an Other Share-Based Award is
intended to be subject to performance goals, the lapsing of restrictions thereon and the
distribution of cash, Shares or other property pursuant thereto, as applicable, shall be
subject to the achievement of one or more objective performance goals established by the
Committee, which shall be based on the attainment of specified levels of one or any
combination of the following: net revenue; revenue growth or product revenue growth;
operating income (before or after taxes); pre- or after-tax income (before or after
allocation of corporate overhead and bonus); earnings per share; net income (before or after
taxes); return on equity; total shareholder return; return on assets or net assets;
appreciation in and/or maintenance of the price of the Shares or any other publicly-traded
securities of Willis; market share; gross profits; earnings (including earnings before
taxes, earnings before interest and taxes or earnings before interest, taxes, depreciation
and amortization); economic value-added models or equivalent metrics; comparisons with
various Share market indices; reductions in costs; cash flow or cash flow per share (before
or after dividends); return on capital (including return on total capital or return on
invested capital); cash flow return on investment; improvement in or attainment of expense
levels or working capital levels; operating margins, gross margins or cash margin; year-end
cash; debt reductions; Shareholder equity; market share; regulatory achievements; and
implementation, completion or attainment of measurable objectives with respect to research,
development, products or projects, production volume levels, acquisitions and divestitures
and recruiting and maintaining personnel. Such performance goals also may be based solely by
reference to Willis’ performance or the performance of a Subsidiary, division, business
segment or business unit of Willis, or based upon the relative performance of other
companies or upon comparisons of any of the indicators of performance relative to other
companies. The Committee may also exclude charges related to an event or
7
occurrence which the Committee determines should appropriately be excluded, including (a)
restructurings, discontinued operations, extraordinary items, and other unusual or
non-recurring charges, (b) an event either not directly related to the operations of Willis
or not within the reasonable control of Willis’ management, or (c) the cumulative effects of
tax or accounting changes in accordance with U.S. generally accepted accounting principles.
Such performance goals shall be set by the Committee within the time period prescribed by,
and shall otherwise comply with the requirements of, Section 162(m) of the Code, and the
regulations thereunder.
7. Forfeiture or Clawback of Awards
Notwithstanding anything to the contrary contained herein, a Grant Agreement may provide that the
Grant shall be canceled if the Participant, without the consent of Willis, while employed by
Willis, any Subsidiary or, if applicable, a Designated Associate Company or after termination of
such employment or service, establishes a relationship with a competitor of Willis, any Subsidiary
or, if applicable, a Designated Associate Company or engages in activity that is in conflict with
or adverse to the interest of Willis, any Subsidiary or, if applicable, a Designated Associate
Company (including conduct contributing to financial restatements or irregularities), as determined
by the Board of Directors in its sole discretion. The Committee may provide in a Grant Agreement
that if within the time period specified in the Grant Agreement the Participant establishes a
relationship with a competitor or engages in an activity referred to in the preceding sentence, the
Participant will forfeit any gain realized on the vesting or exercise of the Grant and must repay
such gain to Willis.
8. Transfers and Leaves of Absence
For purposes of the Plan, unless the Committee determines otherwise: (a) a transfer of a
Participant’s employment without an intervening period of separation among a member of the Willis
Group and any Subsidiary or Designated Associate Company shall not be deemed a termination of
employment, and (b) a Participant who is granted in writing a leave of absence shall be deemed to
have remained in the employ of Willis Group or Designated Associate Company during such leave of
absence.
9. Adjustments
In the event of any change in the outstanding Ordinary Shares by reason of a Share split, spin-off,
Share or extraordinary cash dividend, Share combination or reclassification, recapitalization or
merger, Change of Control, or similar event, the Committee shall substitute or adjust
proportionately, in its sole discretion, (a) the number and kind of Shares or other securities that
may be issued under the Plan or under particular forms of Grants, (b) the number and kind of Shares
or other securities subject to outstanding Grants, (c) the Share Option exercise price, grant price
or purchase price applicable to outstanding Grants, (d) the grant of a Dividend Equivalent or other
dividends or payments, and/or (e) other value determinations applicable to the Plan or outstanding
Grants, in all events in order to allow Participants to participate to such event in an equitable
manner. An adjustment under this provision may have the effect of reducing the price at which
Ordinary Shares may be acquired to less than their nominal value (the “Shortfall”), but only if and
to the extent that the Board shall be authorized to capitalize from the reserves of the Company a
sum equal to the Shortfall and to apply that sum in paying up that amount on the Ordinary
Shares.
10. Change of Control
(a) Grant Agreements may provide that in the event of a Change of Control of Willis, Share
Options outstanding as of the date of the Change of Control shall be cancelled and
terminated without payment therefore if 100% of the Fair Market Value of one Share as of the
date of the Change of Control is less than the per Share Option exercise price grant price.
(b) Assumption or Substitution of Certain Awards
—
Unless otherwise provided in a Grant
Agreement, in the event of a Change of Control of Willis in which the successor company
assumes or substitutes for a Share Option, Restricted Share Award, Restricted Share Unit
Award or Other Share-Based Grant, if a Participant’s employment with such successor company
(or a subsidiary thereof) terminates within 24 months following such Change of Control (or
such other period set forth in the Grant Agreement,
8
including prior thereto if applicable) and under the circumstances specified in the Grant Agreement:
(i) Share Options outstanding as of the date of such termination of employment will
immediately vest, become fully exercisable, and may thereafter be exercised for 24 months
(or the period of time set forth in the Grant Agreement), (ii) restrictions and deferral
limitations on Restricted Share Awards and Restricted Share Units Awards shall lapse and the
Restricted Shares and Restricted Share Units shall become free of all restrictions and
limitations and become fully vested, and (iii) the restrictions and deferral limitations and
other conditions applicable to any Other Share-Based Grants or any other Grants shall lapse,
and such Other Share-Based Grants or such other Grants shall become free of all
restrictions, limitations or conditions and become fully vested and transferable to the full
extent of the original Grant. For the purposes of this Section 10(b), a Share Option,
Restricted Share Award, Restricted Share Unit Award or Other Share-Based Grants shall be
considered assumed or substituted for if following the Change of Control the Grant confers
the right to purchase or receive, for each Share subject to the Share Option, Restricted
Share Award, Restricted Share Unit Award or Other Share-Based Grants immediately prior to
the Change of Control, the consideration (whether Shares, cash or other securities or
property) received in the transaction constituting a Change of Control by holders of Shares
for each Share held on the effective date of such transaction (and if holders were offered a
choice of consideration, the type of consideration chosen by the holders of a majority of
the outstanding shares); provided, however, that if such consideration received in the
transaction constituting a Change of Control is not solely ordinary shares of the successor
company, the Committee may, with the consent of the successor company, provide that the
consideration to be received upon the exercise or vesting of a Share Option, Restricted
Share Award, Restricted Share Unit Award or Other Share-Based Grant, for each Share subject
thereto, will be solely ordinary shares of the successor company substantially equal in Fair
Market Value to the per Share consideration received by holders of Shares in the transaction
constituting a Change in Control. The determination of such substantial equality of value of
consideration shall be made by the Committee in its sole discretion and its determination
shall be conclusive and binding.
(c) Unless otherwise provided in a Grant Agreement, in the event of a Change of Control of
Willis to the extent the successor company does not assume or substitute for a Share Option,
Restricted Stock Award, Restricted Stock Unit Award or Other Share-Based Grant: (i) those
Share Options outstanding as of the date of the Change of Control that are not assumed or
substituted for shall immediately vest and become fully exercisable, (ii) restrictions and
deferral limitations on Restricted Stock and Restricted Stock Units that are not assumed or
substituted for shall lapse and the Restricted Stock and Restricted Stock Units shall become
free of all restrictions and limitations and become fully vested, and (iii) the restrictions
and deferral limitations and other conditions applicable to any Other Share-Based Grants or
any other Grants that are not assumed or substituted for shall lapse, and such Other
Share-Based Grants or such other Grants shall become free of all restrictions, limitations
or conditions and become fully vested and transferable to the full extent of the original
grant.
(d) The Committee, in its discretion, may determine that, upon the occurrence of a Change of
Control of Willis, each Share Option outstanding shall terminate within a specified number
of days after notice to the Participant, and/or that each Participant shall receive, with
respect to each Share subject to such Share Option an amount equal to the excess of the Fair
Market Value of such Share immediately prior to the occurrence of such Change of Control
over the exercise price per share of such Share Option; such amount to be payable in cash,
in one or more kinds of Shares or property (including the Shares or property, if any,
payable in the transaction) or in a combination thereof, as the Committee, in its
discretion, shall determine.
11. Amendment and Termination
The Committee shall have the authority to make such amendments to any terms and conditions
applicable to outstanding Grants as are consistent with this Plan. The Board of Directors may
amend, suspend or terminate the Plan at any time.
Without the approval of Willis’ Shareholders, other than pursuant to Section 9, the Committee shall
not (i) increase the benefits accrued to Participants, (ii) increase the number of shares which may
be issued under the Plan, (iii) cancel any Share Option in exchange for cash or another Grant
(other than in connection with Substitute
9
Awards) (iv) modify the requirements for participation in the Plan, (v) lapse or waive restrictions except
in limited cases relating to death, disability, retirement, termination of employment without
“cause” or for “good reason” as is determined by the Board, or Change of Control.
12. Foreign Options and Rights
The Committee or Board of Directors, as applicable, may establish rules or schemes in order to make
Grants to Employees who are subject to the laws of nations other than Ireland, which Grants may
have terms and conditions that differ from the terms thereof as provided elsewhere in the Plan for
the purpose of complying with foreign laws. In the event that the Committee or Board of Directors
establishes such rules or schemes, the substantive provisions thereof shall be set forth on
schedules attached hereto, and are hereby incorporated by reference as part of the Plan, subject to
any additional action required to be taken pursuant to the applicable foreign law.
13. Withholding Taxes
(a) Willis Group shall have the right to deduct from any cash payment made under the Plan
any federal, state, local, national, provincial or other income or other taxes required by
law to be withheld with respect to such payment. It shall be a condition to the obligation
of Willis Group to deliver shares upon the exercise of a Share Option, upon delivery of
Restricted Share or upon exercise, settlement or payment of Restricted Share Units or any
Other Share-Based Grant that the Participant shall pay to Willis Group such amount as may be
requested by Willis Group for the purpose of satisfying any liability for such withholding
taxes. Any Grant Agreement may provide that the Participant may elect, in accordance with
any conditions set forth in such Grant Agreement, to pay a portion or the entire minimum
amount of such withholding taxes in Ordinary Shares.
(b) In the event that Willis Group is required to account for tax arising from the exercise
or vesting of a Grant to the relevant tax authorities and the Participant has not paid, or
otherwise made arrangements acceptable to Willis Group to pay the amounts due, Willis Group
shall be authorized to procure and effect the sale of a sufficient number of Shares to be
allotted or transferred to the Participant as a consequence of the vesting or exercise of
the Grant in order to pay the amounts due out of the sale proceeds.
(c) Notwithstanding anything set forth in this Section 13, an option may not be exercised
unless:
(i) the Board of Directors considers that the issue or transfer of shares pursuant
to such exercise would be lawful in all relevant jurisdictions; and
(ii) in a case where, if the option were exercised, Willis Group would be obliged to
(or would suffer a disadvantage if it were not to) account for any tax (in any
jurisdiction) for which the person in question would be liable by virtue of the
exercise of the option and/or for any social security contributions that would be
recoverable from the person in question (together, the “Tax Liability”), that person
has either:
(d) made a payment to Willis Group of an amount at least equal to the Company’s estimate of
the Tax Liability; or
(e) entered into arrangements acceptable to Willis Group to secure that such a payment is
made (whether by authorizing the sale of some or all of the shares on his behalf and the
payment to Willis Group of the relevant amount out of the proceeds of sale or otherwise).
14. Compliance with Section 409A of the Code
(a) To the extent that the Plan and/or Grants are subject to Section 409A of the Code, the
Committee may, in its sole discretion and without a Participant’s prior consent, amend the
Plan and/or Grants, adopt policies and procedures, or take any other actions (including
amendments, policies, procedures and actions with retroactive effect) as are necessary or
appropriate to (a) exempt the Plan and/or any Grant from the
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application of Section 409A of the Code, (b) preserve the intended tax treatment of any such
Grant, and/or (c) comply with the requirements of Section 409A of the Code. This Plan shall
be interpreted at all times in such a manner that the terms and provisions of the Plan and
Grants are exempt from or comply with Section 409A of the Code. Reference to Section 409A of
the Code includes reference to any proposed, temporary or final regulations and any other
guidance promulgated with respect to such section by the U.S. Department of the Treasury of
the Internal Revenue Service.
(b) All Grants that would otherwise be subject to Section 409A of the Code shall be paid or
otherwise settled on or as soon as practicable after the applicable vesting date and not
later than the 15th day of the third month from the end of (i) the Participant’s tax year
that includes the applicable vesting date, or (ii) Willis’ tax year that includes the
applicable vesting date, whichever is later; provided, however, that the Committee reserves
the right to delay payment or specify a compliant payment date with respect to any such
Grant under circumstances set forth in Section 409A of the Code; provided, further, that
notwithstanding any contrary provision of the Plan or a Grant Agreement, any payment(s) that
are otherwise required to be made under the Plan to a “specified employee” (as defined under
Section 409A of the Code) as a result of his or her separation from service (other than a
payment that is not subject to Section 409A of the Code) shall be delayed for the first six
(6) months following such separation from service (or, if earlier, the date of death of the
specified employee) and shall instead be paid (in a manner set forth in the Grant Agreement)
on the date that immediately follows the end of such six-month period or as soon as
administratively practicable thereafter.
15. Governing Law
This Plan shall be governed by the laws of Ireland, without regard to conflicts of laws.
16. Effective Date and Termination Dates
The Plan became effective on and as of the date of the original approval of the Willis Group
Holdings 2008 Share Purchase and Option Plan by a majority of the shareholders of Willis,
and shall terminate ten years thereafter, subject to earlier termination by the Board of Directors
pursuant to Section 11.
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Exhibit 10.17
WILLIS GROUP HOLDINGS
2008 SHARE PURCHASE AND OPTION PLAN
(AS AMENDED AND RESTATED ON DECEMBER 30, 2009 BY WILLIS GROUP HOLDINGS LIMITED
AND AS AMENDED AND RESTATED AND ASSUMED BY WILLIS GROUP HOLDINGS PUBLIC
LIMITED COMPANY ON DECEMBER 31, 2009)
RESTRICTED SHARE UNITS AWARD AGREEMENT
THIS RESTRICTED SHARE UNITS AWARD AGREEMENT
(this “Agreement”), effective as of
is made by and between Willis Group Holdings Public Limited Company and any successor thereto,
hereinafter referred to as the “Company”, and the individual (the “Associate”) who has duly
completed, executed and delivered the Award Acceptance Form, a copy of which is set out in Schedule
A attached hereto and deemed to be part hereof and, if applicable and the Agreement of Restrictive
Covenants and Other Obligations, a copy of which is set out in Schedule C attached hereto and
deemed to be a part hereof.
WHEREAS,
completion, execution and delivery of this Agreement shall be deemed to have taken
place where at the discretion of the Company, acceptance of the award to which this Agreement
relates is required to be made through an Internet-based administration system or other electronic
means identified for this purpose by the Company, to the maximum extent permitted by the laws in
the Associate’s country of residence at the time of grant.
WHEREAS
, the Company wishes to carry out the Plan (as hereinafter defined), the terms of which
are hereby incorporated by reference and made a part of this Agreement; and
WHEREAS
, the Board (as hereinafter defined) has determined that it would be to the advantage
and best interest of the Company and its shareholders to grant an award of Restricted Share Units
(as hereinafter defined) provided for herein to the Associate as an incentive for increased efforts
during his or her term of office with the Company or its Subsidiaries, and has advised the Company
thereof and instructed the undersigned officer to grant a Restricted Share Unit Award;
NOW, THEREFORE
, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall have the meaning specified
in the Plan or below unless the context clearly indicates to the contrary.
Section 1.1
—
Adjusted Earnings Per Share
“Adjusted Earnings Per Share” shall mean the adjusted earnings per share as stated by the
Company in its annual financial results issued by the Company.
Section 1.2
—
Adjusted Operating Margin
“Adjusted Operating Margin” shall mean the adjusted operating margin as stated by the Company
in its annual financial results issued by the Company.
Section 1.3
—
Board
“Board” shall mean the Board of Directors of the Company.
Section 1.4
—
Cause
“Cause” shall mean (i) Associate’s continued and/or chronic failure to adequately and/or
competently perform his or her material duties with respect to the Company or its subsidiaries
after having been provided reasonable notice of such failure and a period of at least ten days
after Associate’s receipt of such notice to cure and/or correct such performance failure, (ii)
willful misconduct by Associate in connection with Associate’s employment which is injurious to the
Company or its subsidiaries (willful misconduct shall be understood to include, but not be limited
to, any breach of the duty of loyalty owed by Associate to the Company or its subsidiaries), (iii)
conviction of any criminal act (other than minor road traffic violations not involving
imprisonment), (iv) any breach of Associate’s restrictive covenants and other obligations as
provided in Schedule C to this Agreement (if applicable), in Associate’s employment agreement (if
any), or any other non-compete agreement and/or confidentiality agreement entered into between
Associate and the Company or any of its subsidiaries (other than an insubstantial, inadvertent and
non-recurring breach), or (v) any material violation of any written Company policy after reasonable
notice and an opportunity to cure such violation within ten (10) days after Associate’s receipt of
such notice.
Section 1.5
—
Committee
“Committee” means the Compensation Committee of the Board (or if no such committee is
appointed, the Board provided that a majority of the Board are “independent directors” for the
purpose of the rules and regulations of the New York Stock Exchange).
Section 1.6
—
Earned Date
“Earned Date” shall mean the date that the annual financial results of the Company are issued
by the Company.
Section 1.7
—
Earned Performance Shares
“Earned Performance Shares” shall mean shares subject to the RSUs in respect of which the
applicable performance conditions, as set out in section 3.1, have been achieved and shall become
vested as set out in section 3.2.
Section 1.8
—
Good Reason
“Good Reason” shall mean (i) a reduction in Associate’s base salary or a material adverse
reduction in Associate’s benefits other than (a) in the case of base salary, a reduction that is
offset by an increase in Associate’s bonus opportunity upon the attainment of reasonable
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performance targets established by the Board, (b) a general reduction in the compensation or
benefits of, or a shift in the general compensation or benefits schemes affecting, a broad group of
employees of the Company or any of its subsidiaries, or (c) in the case of base salary, a reduction
which is imposed in accordance with normal administration and application of a producer
compensation plan, if applicable to Associate, (ii) a material adverse reduction in Associate’s
principal duties and responsibilities, which continues beyond ten days after written notice by
Associate to the Company or the applicable Subsidiary of such reduction or (iii) a significant
transfer of Associate away from Associate’s primary service area or primary workplace, other than
as permitted by Associate’s existing service contracts; provided, however, that Associate shall
have a period of ten days following any of the foregoing occurrences or the last event in a series
of events which culminate in providing the basis for such notice during which such Associate may
claim that a basis for a Good Reason termination by Associate has occurred.
Section 1.9
—
Grant Date
“Grant Date” shall be
.
Section 1.10
—
Permanent Disability
Associate shall be deemed to have a “Permanent Disability” if Associate meets the requirements
of the definition of such term, or of an equivalent term, as defined in the Company’s or
Subsidiary’s long-term disability plan applicable to Associate or, if no such plan is applicable,
in the event Associate is unable by reason of physical or mental illness or other similar
disability, to perform the material duties and responsibilities of his job for a period of 180
consecutive business days out of 270 business days.
Section 1.11
—
Plan
“Plan” shall mean the Willis Group Holdings 2008 Share Purchase and Option Plan, as amended
from time to time.
Section 1.12
—
Pronouns
The masculine pronoun shall include the feminine and neuter, and the singular the plural,
where the context so indicates.
Section 1.13
—
Restricted Share Unit
Restricted Share Unit shall mean a conditional right to be given an ordinary share par value
of $0.000115 each in the Company (the “Ordinary Shares” or “Shares”) pursuant to the terms of the
Plan upon vesting, as set forth in Section 2.1 of this Agreement.
Section 1.14
—
Secretary
“Secretary” shall mean the Secretary of the Company.
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Section 1.15
—
Subsidiary
“Subsidiary” shall mean with respect to the Company, any subsidiary of the Company
within the meaning of Section 155 of the Act. For purposes of granting Share Options or other
“share rights,” within the meaning of Section 409A of the Code, an entity may not be considered a
Subsidiary if granting any such share right would result in the share right becoming subject to
Section 409A of the Code.
Section 1.16
—
Willis Group
“Willis Group” shall mean the Company and the Subsidiaries, collectively.
ARTICLE II
GRANT OF RESTRICTED SHARE UNITS
Section 2.1
—
Grant of the Restricted Share Units
Subject to the terms and conditions of the Plan and the additional terms and conditions set
forth in this Agreement including any country-specific provisions set forth in Schedule B to this
Agreement, the Company hereby grants Restricted Share Units (hereinafter called “RSUs”) to the
Associate, over a number of Shares as stated in Schedule A to this Agreement. In circumstances
where the Associate is required to enter into the Agreement of Restrictive Covenants and Other
Obligations set forth in Schedule C, the Associate agrees that the grant of RSUs pursuant to this
Agreement is sufficient consideration for the Associate entering into such agreement.
Section 2.2
—
Employment Rights
Subject to the terms of the Agreement of Restrictive Covenants and Other Obligations, where
applicable, the rights and obligations of the Associate under the terms of his office or employment
with the Company or any Subsidiary shall not be affected by his participation in this Plan or any
right which he may have to participate in it. The RSUs and the Associate’s participation in the
Plan will not be interpreted to form an employment agreement with the Company. The Associate hereby
waives any and all rights to compensation or damages in consequence of the termination of his
office or employment for any reason whatsoever insofar as those rights arise or may arise from his
ceasing to have rights under or be entitled to vest his RSUs as a result of such termination. If,
notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction,
then, by participating in the Plan, the Associate shall be deemed irrevocable to have agreed not to
pursue such claim and agrees to execute any and all documents necessary to request dismissal or
withdrawal of such claims.
Section 2.3
—
Adjustments in RSUs Pursuant to Merger, Consolidation, etc.
Subject to Section 9 of the Plan, in the event that the outstanding Shares subject to a RSU
are, from time to time, changed into or exchanged for a different number or kind of Shares or other
securities, by reason of a share split, spin-off, shares or extraordinary cash dividend, share
combination or reclassification, recapitalization, merger, Change of Control (as defined in the
Plan), or similar event, the Committee shall in its absolute discretion, make an appropriate and
equitable adjustment in the number and kind of Shares. Notwithstanding Section 10 of the Plan, in
the event of a Change of Control (as defined in the Plan), and regardless of whether the RSUs
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are assumed or substituted by a successor company, the RSUs shall not immediately vest unless the
Committee so determines at the time of the Change of Control, in its absolute discretion, on such
terms and conditions that the Committee deems appropriate. Any such adjustment or determination
made by the Committee shall be final and binding upon the Associate, the Company and all other
interested persons. For the avoidance of doubt, a transaction shall not constitute a Change of
Control (i) if effected for the purpose of changing the place of incorporation or form of
organization of the ultimate parent entity of the Willis group of companies (including where the
Company is succeeded by an issuer incorporated under the laws of another state, country or foreign
government for such purpose and whether or not the Company remains in existence following such
transaction) and (ii) where all or substantially all of the Person(s) who are the beneficial owners
of the outstanding voting securities of the Company immediately prior to such transaction will
beneficially own, directly or indirectly, all or substantially all of the combined voting power of
the outstanding voting securities entitled to vote generally in the election of directors of the
ultimate parent entity resulting from such transaction in substantially the same proportions as
their ownership, immediately prior to such transaction, of such outstanding securities of the
Company. The Board, in its sole discretion, may make an appropriate and equitable adjustment to
the Shares underlying the RSUs to take into account such transaction, including to substitute or
provide for the issuance of shares of the resulting ultimate parent entity in lieu of Shares of the
Company.
Section 2.4
—
Employee Costs
The Associate must make full payment to the Company or any Subsidiary by which the Associate
is employed (the “Employer”) of all income tax, payroll tax, payment on account, and social
insurance contribution amounts (“Tax”), which under federal, state, local or foreign law, it is
required to withhold upon vesting or other tax event of the RSUs. In a case where the Employer is
obliged to (or would suffer a disadvantage if it were not to) account for any Tax (in any
jurisdiction) for which the Associate is liable by virtue of the Associate’s participation in the
Plan or any social security contributions recoverable from and legally applicable to the Associate
(the “Tax-Related Items”), the Associate shall make full payment to the Employer of an amount equal
to the Tax-Related Items, or otherwise enter into arrangements acceptable to the Employer or
another Subsidiary to secure that such a payment is made (whether by withholding from the
Associate’s wages or other cash compensation paid to the Associate or from the proceeds of the sale
of Shares acquired at vesting of the RSUs).
In the event that the Associate has not made payment of an amount equal to the Tax-Related
Items liability, or entered into arrangements to secure that such a payment is made by the date of
vesting or shortly thereafter as agreed by the Company, the Associate hereby authorizes and
empowers the Company to act on his behalf and procure and effect the sale of a sufficient number of
the Shares arising from the RSUs to vest and pay out of the sale proceeds the Tax-Related Items
liability to the Employer.
5
ARTICLE III
PERIOD OF VESTING
Section 3.1
—
Commencement of Earning
(a) Subject to 3.1(b) and (c), the Shares subject to the RSUs shall become Earned Performance
Shares subject to the Participant being in the employment of the Company or any Subsidiary at each
respective date and provided the performance conditions applicable are achieved.
(b) Shares subject to the RSUs shall become Earned Performance Shares with effect from the
Earned Date for the year ending
, if (i) in respect of the year ending
,
the Company achieves an Adjusted Earnings Per Share of not less than
and an Adjusted
Operating Margin of not less than
, and (ii) in respect of the year ending
, the Company achieves an Adjusted Earnings Per Share of not less than
and
an Adjusted Operating Margin of not less than
.
(c) The Associate understands and agrees that the terms under which the RSUs shall become
Earned Performance Shares is confidential and the Associate agrees not to disclose, reproduce or
distribute such confidential information concerning the Company, except as required in the course
of the Associate’s employment with the Company or one of its Subsidiaries, without the prior
written consent of the Company. The Associate’s failure to abide by this condition may result in
the immediate cancellation of the RSUs.
(d) All Shares subject to the RSUs shall be forfeited if and immediately upon the Company
failing to meet any of the performance conditions set out in 3.1(b) above.
Section 3.2
—
Commencement of Vesting
(a) The Earned Performance Shares shall vest as follows:
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(b) The RSUs shall immediately be forfeited upon the termination of the Associate’s
employment, subject to, and except as otherwise specified within, the terms and conditions of
Sections 3.2(c) to 3.2(g) below.
(c) In the event of a termination of the Associate’s employment as a result of death or
Permanent Disability, the RSUs shall become fully vested with respect to all Earned Performance
Shares upon termination.
(d) In the event of a termination of the Associate’s employment for reasons other than death,
Permanent Disability or Cause, the Board may, in its discretion accelerate the vesting of the RSUs
over Earned Performance Shares held by the Associate immediately prior to such termination as to
all or a portion of the Shares subject thereto. If no determination is made, then the RSUs over
Earned Performance Shares shall, to the extent not then vested be immediately forfeited by the
Associate.
(e) In the event of a termination of the Associate’s employment for Cause, the RSUs over
Earned Performance Shares shall, to the extent not then vested, be immediately forfeited by the
Associate.
(f) In the event of a termination of the Associate’s employment for any reason other than as
set out above, the RSUs shall, to the extent not then vested, be forfeited by the Associate.
(g) The RSUs will immediately vest, if the Committee so determines subject to Section 2.4 of
this Agreement, upon the effective date of a Change in Control.
(h) The Associate agrees to execute and deliver the following agreements or other documents in
connection with the grant of the RSUs within the period set forth below:
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the Associate must execute the Agreement of Restrictive Covenants and
Other Obligations pursuant to Article IV below, if applicable, and deliver it to
the Company within 45 days of the Grant Date;
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the Associate must execute the form of joint election as described in
Schedule B for the United Kingdom and deliver it to his employing company within
45 days of the Grant Date; and
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(iii)
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the Associate must execute the RSU Award Agreement Acceptance Form
and deliver to the Company within 45 days of the Grant Date.
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(i) The Committee may, in its sole discretion, cancel the RSUs if the Associate fails to
execute and deliver the agreements and documents within the period set forth in Section 3.2(h) or
fails to meet the requirements as set forth in Section 3.1(c).
Section 3.3
—
Conditions to Issuance of Shares
The Shares to be delivered within one month of each vesting date of the RSUs, as set out in
3.1(a) above, may be either previously authorized but unissued shares or issued Shares held by any
other person. Such Shares shall be fully paid. The Company shall not be required to issue
7
or deliver any Shares allotted and issued upon the applicable date of the vesting of the RSUs
prior to fulfillment of all of the following conditions:
(a) The obtaining of approval or other clearance from any state or federal governmental agency
which the Board shall, in its absolute discretion, determine to be necessary or advisable; and
(b) the Associate has paid or made arrangements to pay the Tax-Related Items liability in
accordance with Section 2.4.
Without limiting the generality of the foregoing, the Board may in the case of U.S. resident
employees of the Company or any of its Subsidiaries require an opinion of counsel reasonably
acceptable to it to the effect that any subsequent transfer of Shares acquired on the vesting of
RSUs does not violate the U.S. Securities Exchange Act of 1934, as amended, and may issue
stop-transfer orders in the U.S. covering such Shares.
Section 3.4
—
Rights as Shareholder
The Associate shall not be, nor have any of the rights or privileges of, a shareholder of the
Company in respect of any Shares that may be received upon the vesting of the RSUs unless and until
certificates representing such Shares or their electronic equivalent shall have been issued by the
Company to the Associate.
Section 3.4
—
Limitation on Obligations
The Company’s obligation with respect to the RSUs granted hereunder is limited solely to the
delivery to the Associate of Shares within the period when such Shares are due to be delivered
hereunder, and in no way shall the Company become obligated to pay cash in respect of such
obligation. The RSUs shall not be secured by any specific assets of the Company or any of its
Subsidiaries, nor shall any assets of the Company or any of its Subsidiaries be designated as
attributable or allocated to the satisfaction of the Company’s obligations under this Agreement.
In addition, the Company shall not be liable to the Associate for damages relating to any delays in
issuing the share certificates or its electronic equivalent to the Associate (or his or her
designated entities), any loss of the certificates, or any mistakes or errors in the issuance of
the certificates (or the electronic equivalent) to the Associate (or his or her designated
entities) or in the certificates themselves.
ARTICLE IV
ADDITIONAL TERMS AND CONDITIONS OF THE RSUs
Section 4.1
—
Nature of Award
In accepting the RSUs, the Associate acknowledges, understands and agrees that:
(a) the Plan is established voluntarily by the Company, is discretionary in nature and may be
amended, suspended or terminated by the Company at any time;
8
(b) the RSU award is voluntary and occasional and does not create any contractual or other
right to receive future RSU awards, or benefits in lieu of RSU awards, even if RSU awards have been
granted repeatedly in the past;
(c) all decisions with respect to future RSUs, if any, will be at the sole discretion of the
Company;
(d) the Associate’s participation in the Plan is voluntary;
(e) the RSUs and any Shares acquired under the Plan are not intended to replace any pension
rights or compensation under any pension arrangement;
(f) the RSUs and any Shares acquired under the Plan are not part of normal or expected
compensation or salary for any purposes, including, but not limited to, calculating any severance,
resignation, termination, redundancy, end of service payments, dismissal, bonuses, long-service
awards, pension or retirement or welfare benefits or similar payments and in no event should be
considered as compensation for, or relating in any way to past services for, the Employer, the
Company or any Subsidiary; and
(g) the future value of the Shares underlying the RSUs is unknown and cannot be predicted with
certainty.
Section 4.2
—
No Advice Regarding Grant
The Company is not providing any tax, legal or financial advice, nor is the Company making any
recommendations regarding the Associate’s participation in the Plan, the issuance of Shares upon
vesting of the RSUs or sale of the Shares. The Associate is hereby advised to consult with his or
her own personal tax, legal and financial advisors regarding his or her participation in the Plan
before taking any action related to the Plan.
ARTICLE V
DATA PRIVACY NOTICE AND CONSENT
Section 5
—
Data Privacy
(a) The Associate hereby explicitly and unambiguously consents to the collection, use and
transfer, in electronic or other form, of the Associate’s personal data as described in this
Agreement and any other RSU materials by and among, as applicable, the Employer, the Company and
its Subsidiaries for the exclusive purpose of implementing, administering and managing the
Associate’s participation in the Plan.
(b) The Associate understands that the Company and the Employer may hold certain personal
information about the Associate, including, but not limited to, the Associate’s name, home address,
telephone number, date of birth, social insurance number or other identification number, salary,
nationality, job title, any Shares or directorships held in the Company, details of all RSUs or any
other entitlement to Shares awarded, canceled, exercised,
9
vested, unvested or outstanding in the Associate’s favor, for the exclusive purpose of
implementing, administering and managing the Plan (“Data”).
(c) The Associate understands that Data will be transferred to
or to any other
third party assisting in the implementation, administration and management of the Plan. The
Associate understands that the recipients of the Data may be located in the Associate’s country or
elsewhere, and that the recipients’ country (e.g., Ireland) may have different data privacy laws
and protections from the Associate’s country. The Associate understands that he or she may request
a list with the names and addresses of any potential recipients of the Data by contacting his or
her local human resources representative. The Associate authorizes the Company,
and
any other recipients of Data which may assist the Company (presently or in the future) with
implementing, administering and managing the Plan to receive, possess, use, retain and transfer the
Data, in electronic or other form, for the sole purpose of implementing, administering and managing
his or her participation in the Plan. The Associate understands that Data will be held only as
long as is necessary to implement, administer and manage the Associate’s participation in the Plan.
The Associate understands that he or she may, at any time, view Data, request additional
information about the storage and processing of Data, require any necessary amendments to Data or
refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or
her local human resources representative. The Associate understands, however, that refusing or
withdrawing his or her consent may affect the Associate’s ability to participate in the Plan. For
more information on the consequences of the Associate’s refusal to consent or withdrawal of
consent, the Associate understands that he or she may contact his or her local human resources
representative.
ARTICLE VI
AGREEMENT OF RESTRICTIVE COVENANTS AND OTHER OBLIGATIONS
Section 6
—
Restrictive Covenants and Other Obligations
In consideration of the grant of RSUs, the Associate shall enter into the Agreement of
Restrictive Covenants and Other Obligations, a copy of which is attached hereto as Schedule C. In
the event the Associate does not sign and return the Agreement of Restrictive Covenants and Other
Obligations within 45 days of the Grant Date. the Committee may, in its sole discretion, cancel the
RSUs. If no such agreement is required, Schedule C shall state none or not applicable.
ARTICLE VII
MISCELLANEOUS
Section 7.1
—
Administration
The Board shall have the power to interpret the Plan and this Agreement and to adopt such
rules for the administration, interpretation and application of the Plan as are consistent
therewith and to interpret or revoke any such rules. All actions taken and all interpretations and
determinations made by the Board shall be final and binding upon the Associate, the Company and all
other interested persons. No member of the Board shall be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or the RSUs.
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In its absolute discretion, the Board may at any time and from time to time exercise any and
all rights and duties of the Board under the Plan and this Agreement.
Section 7.2
—
RSUs Not Transferable
Neither the RSUs nor any interest or right therein or part thereof shall be subject to the
debts, contracts or engagements of the Associate or his successors in interest or shall be subject
to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other
means whether such disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy),
and any attempted disposition thereof shall be null and void and of no effect;
provided
,
however
, that this Section 7.2 shall not prevent transfers made solely for estate planning
purposes or under a will or by the applicable laws of inheritance.
Section 7.3
—
Binding Effect
The provisions of this Agreement shall be binding upon and accrue to the benefit of the
parties hereto and their respective heirs, legal representatives, successors and assigns.
Section 7.4
—
Notices
Any notice to be given under the terms of this Agreement to the Company shall be addressed to
the Company at the following address:
Willis Group Holdings Public Limited Company
c/o Willis North America Inc.
One World Financial Center
200 Liberty Street
New York, NY 10281
Attention: Company Secretary
and any notice to be given to the Associate shall be at the address set forth in the RSUs
Acceptance Form.
By a notice given pursuant to this Section 7.4, either party may hereafter designate a
different address for notices to be given to him. Any notice that is required to be given to the
Associate shall, if the Associate is then deceased, be given to the Associate’s personal
representatives if such representatives have previously informed the Company of their status and
address by written notice under this Section 7.4. Any notice shall have been deemed duly given
when sent by facsimile or enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
deposited (with postage prepaid) in a post office or branch post office regularly maintained by the
United States Postal Service or the United Kingdom’s Post Office or in the case of a notice given
by an Associate resident outside the United States of America or the United Kingdom, sent by
facsimile or with a recognized international courier service.
Section 7.5
—
Titles
Titles are provided herein for convenience only and are not to serve as a basis for
interpretation or construction of this Agreement.
11
Section 7.6
—
Applicability of Plan
The RSUs shall be subject to all of the terms and provisions of the Plan, to the extent
applicable to the RSUs. In the event of any conflict between this Agreement and the Plan, the
terms of the Plan shall control.
Section 7.7
—
Amendment
This Agreement may be amended only by a document executed by the parties hereto, which
specifically states that it is amending this Agreement.
Section 7.8
—
Governing Law
This Agreement shall be governed by, and construed in accordance with the laws of Ireland;
provided, however, that the Agreement of Restrictive Covenants and Other Obligations, if
applicable, shall be governed by and construed in accordance with the laws specified in that
agreement.
Section 7.9
—
Jurisdiction
The courts of Ireland shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any disputes which may arise out of or in connection with this Agreement
and, for such purposes, the parties hereto irrevocably submit to the jurisdiction of such courts;
provided, however, where applicable, that with respect to the Agreement of Restrictive Covenants
and Other Obligations the courts specified in such agreement shall have jurisdiction to hear and
determine any suit, action or proceeding and to settle any disputes which may arise out of or in
connection with that agreement.
Section 7.10
—
Electronic Delivery
The Company may, in its sole discretion, decide to deliver any documents related to current or
future participation in the Plan by electronic means. The Associate hereby consents to receive
such documents by electronic delivery and agrees to participate in the Plan through an on-line or
electronic system established and maintained by the Company or a third party designated by the
Company.
Section 7.11
—
Language
If the Associate has received this Agreement, or any other document related to the RSUs and/or
the Plan translated into a language other than English and if the translated version is different
than the English version, the English version will control.
Section 7.12
—
Severability
The provisions of this Agreement are severable and if any one or more provisions are
determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions
shall nevertheless be binding and enforceable.
12
Section 7.13
—
Schedule B
The RSUs shall be subject to any special provisions set forth in Schedule B for the
Associate’s country of residence, if any. If the Associate relocates to one of the countries
included in Schedule B during prior to the vesting of the RSUs, the special provisions for such
country shall apply to the Associate, to the extent the Company determines that the application of
such provisions is necessary or advisable in order to comply with local law or facilitate the
administration of the Plan. Schedule B constitutes part of this Agreement.
Section 7.14
—
Imposition of Other Requirements
The Company reserves the right to impose other requirements on the RSUs and the Shares
acquired upon vesting of the RSUs, to the extent the Company determines it is necessary or
advisable in order to comply with local laws or facilitate the administration of the Plan, and to
require the Associate to sign any additional agreements or undertakings that may be necessary to
accomplish the foregoing.
Section 7.15
—
Counterparts
.
This Agreement may be executed in any number of counterparts (including by facsimile), each of
which shall be deemed to be an original and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Company and the Associate have each executed this Agreement.
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WILLIS GROUP HOLDINGS PUBLIC
LIMITED COMPANY
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By:
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Name:
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Title:
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13
Exhibit 10.18
HILB, ROGAL AND HAMILTON COMPANY
2000 SHARE INCENTIVE PLAN
(as amended and restated February 11, 2003, as amended and restated on December 30, 2009 by Willis Group
Holdings Limited and as amended and restated and assumed by Willis Group Holdings Public Limited Company on
December 31, 2009)
Article I
DEFINITIONS
For purposes of this Plan, the following terms shall have the following meanings:
1.01 Affiliate
means any “subsidiary corporation” or “parent corporation” (within the meaning
of Section 424 of the Code) of the Company. For purposes of granting Share Options or any
other “stock rights,” within the meaning of Section 409A of the Code, an entity may not be
considered an Affiliate if granting any such stock right would result in the stock right becoming
subject to Section 409A of the Code.
1.02 Agreement
means a written agreement (including any amendment or supplement thereto)
between the Company and a Participant specifying the terms and conditions of a Grant or an Award
issued to such Participant.
1.03 Award
means an award of Ordinary Shares, Restricted Shares and/or Phantom Shares.
1.04 Board
means the Board of Directors of the Company.
1.05 Change of Control
means
(i) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of 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 (a) the then outstanding
Ordinary Shares of the Company (the “Outstanding Company Ordinary Shares”) or (b) the combined
voting power of the then outstanding voting securities of the Company entitled to vote generally in
the election of directors (the “Outstanding Company Voting Securities”); provided, however, that
for purposes of this subsection (i), the following acquisitions shall not constitute a Change of
Control: (w) any acquisition directly from the Company, (x) any acquisition by the Company, (y) any
acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company or (z) any acquisition by any corporation pursuant to
a transaction which complies with clauses (a), (b) and (c) of subsection (iii) of this Section
1.05; or
(ii) Individuals who constitute the Board (the “Incumbent Board”) cease for any reason to
constitute at least a majority of the Board; provided, however, that any
- 1 -
individual becoming a director subsequent to the Effective Date whose election, or nomination
for election, by the Company’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
(iii) Consummation of a reorganization, merger or consolidation or sale or other disposition
of all or substantially all of the assets of the Company (a “Business Combination”), in each case,
unless, following such Business Combination, (a) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding Company Ordinary Shares
and Outstanding Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of, respectively, the then outstanding
Ordinary Shares 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 Company or all or substantially all of the Company’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 Company Ordinary Shares and
Outstanding Company Voting Securities, as the case may be, (b) no Person (excluding any corporation
resulting from such Business Combination or any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Business Combination) beneficially owns, directly
or indirectly, 25% or more of, respectively, the then outstanding Ordinary Shares 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 (c) 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
(iv) Approval by the shareholders of the Company of a complete liquidation or dissolution of
the Company.
(v) Notwithstanding the foregoing, for purposes of subsection (i) of this Section 1.05, a
Change of Control shall not be deemed to have taken place if, as a result of an acquisition by the
Company which reduces the Outstanding Company Ordinary Shares or the Outstanding Company Voting
Securities, the beneficial ownership of a Person increases to 25% or more of the Outstanding
Company Ordinary Shares or the Outstanding Company Voting Securities; provided, however, that if a
Person shall become the beneficial owner of 25% or more of the Outstanding Company Ordinary Shares
or the Outstanding Company Voting Securities by reason of share purchases by
- 2 -
the Company and, after such share purchases by the Company, such Person becomes the beneficial
owner of any additional shares of the Outstanding Company Ordinary Shares or the Outstanding
Company Voting Share through any means except an acquisition directly from the Company, for
purposes of subsection (i) of this Section 1.05, a Change of Control shall be deemed to have taken
place. For the avoidance of doubt, a transaction shall not constitute a Change of Control (i) if
effected for the purpose of changing the place of incorporation or form of organization of the
ultimate parent entity of the Willis group of companies (including where the Company is succeeded
by an issuer incorporated under the laws of another state, country or foreign government for such
purpose and whether or not the Company remains in existence following such transaction) and (ii)
where all or substantially all of the Person(s) who are the beneficial owners of the Outstanding
Company Voting Securities immediately prior to such transaction will beneficially own, directly or
indirectly, all or substantially all of the combined voting power of the Outstanding Company Voting
Securities entitled to vote generally in the election of directors of the ultimate parent entity
resulting from such transaction in substantially the same proportions as their ownership,
immediately prior to such transaction, of such Outstanding Company Voting Securities. The Board,
in its sole discretion, may make an appropriate and equitable adjustment to the Outstanding Company
Ordinary Shares underlying an Award to take into account such transaction, including to substitute
or provide for the issuance of ordinary shares of the resulting ultimate parent entity in lieu of
Ordinary Shares of the Company.
1.06 Change of Control Date
is the date on which an event described in (i) through (iv) of
Section 1.05 occurs.
1.07 Code
means the U.S. Internal Revenue Code of 1986, as amended from time to time.
References to the Code shall include the valid and binding governmental regulations, court
decisions and other regulatory and judicial authority issued or rendered thereunder.
1.08 Commission
means the U.S. Securities and Exchange Commission or any successor agency.
1.09 Committee
means the Compensation Committee of the Board.
1.10 Company
means Willis Group Holdings Public Limited Company, a company organized under
the laws of Ireland under registered number 475616, the successor entity to Willis Group Holdings
Limited, which acquired Hilb, Rogal & Hobb Company (f/k/a Hilb Rogal and Hamilton Company).
1.11 Disability,
with respect to a Participant, means “‘disability” as defined from time to
time under any long-term disability plan of the Company or Subsidiary with which the Participant is
employed.
1.12 Effective Date
means the date on which this Plan was originally approved by the
shareholders of Hilb, Rogal & Hamilton Company.
- 3 -
1.13 Exchange Act
means the U.S. Securities Exchange Act of 1934, as amended from time to
time, and any successor thereto.
1.14 Fair Market Value
means, on any given date, the closing price of an Ordinary Share as
reported on the New York Stock Exchange composite tape on such day or, if the Ordinary Share was
not traded on the New York Stock Exchange on such day, then on the next preceding day that the
Ordinary Share was traded on such exchange, all as reported by such source as the Committee may
select.
1.15 Grant
means the grant of an Option or a SAR, or both.
1.16 Incentive Stock Option
means an Option which qualifies and is intended to qualify as an
“incentive stock option” under Section 422 of the Code.
1.17 Initial Value
means, with respect to a SAR, the Fair Market Value of one share of
Ordinary Shares on the date of grant, as set forth in an Agreement.
1.18 Non-Qualified Share Option
means an Option other than an Incentive Stock Option.
1.19 Option
means a Share Option that entitles the holder to purchase from the Company a
stated number of Ordinary Shares at the price and on the conditions set forth in an Agreement.
1.20 Option Price
means the price per share for Ordinary Shares purchased on the exercise of
an Option as provided in Article VI.
1.21 Ordinary Shares
means the ordinary shares of the Company, nominal value US$0.000115.
1.22 Parent
shall mean with respect to the Company, a “parent corporation” of that corporation
within the meaning of section 424(e) of the Code.
1.23 Participant
means an officer, director or employee of the Company or of a Subsidiary
who satisfies the requirements of Article IV and is selected by the Committee to receive a Grant or
an Award.
1.24 Phantom Shares
means a bookkeeping entry on behalf of a Participant by which his or her
account is credited (but not funded) as though Ordinary Shares had been transferred to such
account.
1.25 Plan
means the Hilb, Rogal and Hamilton Company 2000 Share Incentive Plan, as amended and restated on
December 30, 2009 by Willis Group Holdings Limited and as amended and restated and assumed by Willis Group
Holdings Public Limited Company on December 31, 2009.
- 4 -
1.26 Prior Plan
means the Hilb, Rogal and Hamilton Company 1989 Stock Plan.
1.27 Restricted Shares
means Ordinary Shares awarded to a Participant under Article IX and
designated as Restricted Shares. Ordinary Shares shall cease to be Restricted Shares when, in
accordance with the terms of the applicable Agreement, they become transferable and free of
substantial risk of forfeiture.
1.28 Rule 16b-3
means Rule 16b-3, as promulgated by the Commission under Section 16(b) of the
Exchange Act, as amended from time to time, or any successor rule.
1.29 SAR
means a share appreciation right granted pursuant to this Plan that entitles the
holder to receive, with respect to each share of Ordinary Shares encompassed by the exercise of
such SAR, the excess of the Fair Market Value at the time of exercise over the Initial Value of the
SAR; provided, that any limited share appreciation right granted by the Committee and exercisable
upon a Change of Control shall entitle the holder to receive, with respect to each share of
Ordinary Shares encompassed by the exercise of such SAR, the higher of (x) the highest closing
sales price (excluding after-hours trading) of a share of Ordinary Shares as reported on the New
York Stock Exchange composite tape during the 60-day period prior to and including the Change of
Control Date, or (y) the highest price per share paid in a Change of Control transaction, over the
Initial Value of such SAR, except that in the case of SARs related to Incentive Stock Options, such
price shall be based only on the Fair Market Value of the Ordinary Shares on the date that the
Incentive Stock Option is exercised.
1.30 Securities Broker
means the registered securities broker acceptable to the Company who
agrees to effect the cashless exercise of an Option pursuant to Section 8.04 hereof.
1.31 Subsidiary
means, a body corporate which is a subsidiary of the Company within the
meaning of section 155 of the Irish Companies Act 1963 and a “subsidiary corporation” of that
corporation within the meaning of Section 424(f) of the Code.
Article II
PURPOSES
The Plan is intended to assist the Company in recruiting and retaining officers, directors and
key employees with ability and initiative by enabling such persons who contribute significantly to
the Company or an Affiliate to participate in its future success and to associate their interests
with those of the Company and its shareholders. The Plan is intended to permit the award of
Ordinary Shares, Restricted Shares and Phantom Shares, and the grant of Options, qualifying as
Incentive Stock Options or Non-Qualified Stock Options as designated by the Committee at the time
of grant, and SARs. No Option that is intended to be an Incentive Stock Option, however, shall be
invalid for
- 5 -
failure to qualify as an Incentive Stock Option under Section 422 of the Code but shall be
treated as a Non-Qualified Stock Option.
Article III
ADMINISTRATION
This Plan shall be administered by the Committee. The Committee shall have authority to issue
Grants and Awards upon such terms (not inconsistent with the provisions of this Plan) as the
Committee may consider appropriate. The terms of such Grants and Awards may include conditions (in
addition to those contained in this Plan) on (i) the exercisability of all or any part of an Option
or SAR and (ii) the transferability or forfeitability of Restricted Shares or Phantom Shares. In
addition, the Committee shall have complete authority to interpret all provisions of this Plan; to
prescribe the form of Agreements; to adopt, amend, and rescind rules and regulations pertaining to
the administration of the Plan; and to make all other determinations necessary or advisable for the
administration of this Plan. To fulfil the purposes of the Plan without amending the Plan, the
Committee may also modify any Grants or Awards issued to Participants who are non-resident aliens
or employed outside of the United States to recognize differences in local law, tax policy or
custom.
The express grant in the Plan of any specific power to the Committee shall not be construed as
limiting any power or authority of the Committee. Any decision made, or action taken, by the
Committee or in connection with the administration of this Plan shall be final and conclusive. All
expenses of administering this Plan shall be borne by the Company.
Article IV
ELIGIBILITY
4.01 General.
Any officer, director or employee of the Company or of any Company Affiliate
(including any corporation that becomes an Affiliate of the Company after the adoption of this
Plan) who, in the judgment of the Committee, has contributed significantly or can be expected to
contribute significantly to the profits or growth of the Company or a Subsidiary of the Company may
receive one or more Awards or Grants, or any combination or type thereof. Employee and non-employee
directors of the Company are eligible to participate in this Plan.
4.02 Grants and Awards.
The Committee will designate the individuals to whom Grants and/or
Awards are to be made and will specify the number of Ordinary Shares subject to each such Grant or
Award. An Option may be granted alone or in addition to other Grants and/or Awards under the Plan.
The Committee shall have the authority to grant Incentive Stock Options, Non-Qualified Stock
Options or both types of Options to any Participant (in each case with or without a related SAR);
provided, however, that Incentive Stock Options may be granted only to employees of the Company and
any Parent or Subsidiary. A SAR may be granted with or without a related
- 6 -
Option. All Grants or Awards under this Plan shall be evidenced by Agreements which shall be
subject to applicable provisions of this Plan and to such other provisions as the Committee may
determine. No Participant may be granted Options that are Incentive Stock Options or related SARs
(under all plans of the Company and its Affiliates which provide for the grant of Incentive Stock
Options) which are first exercisable in any calendar year for Ordinary Shares having an aggregate
Fair Market Value (determined as of the date an Option is granted) exceeding $100,000 or such other
amount as shall be specified in Code Section 422 and the rules and regulations thereunder from time
to time. No Participant may receive Grants or Awards under the Plan with respect to more than
200,000 Ordinary Shares during any one calendar year.
4.03 Designation of Option as an Incentive Stock Option or Non-Qualified Share Option.
The
Committee will designate at the time an Option is granted whether the Option is to be treated as an
Incentive Stock Option or a Non-Qualified Stock Option. In the absence, however, of any such
designation, such Option shall be treated as a Non-Qualified Stock Option.
4.04 Qualification of Incentive Stock Option under Section 422 of the Code.
Anything in this
Plan to the contrary notwithstanding, no term of this Plan relating to Incentive Stock Options
shall be interpreted, amended or altered, nor shall any discretion or authority granted under the
Plan be exercised so as to disqualify the Plan under Section 422 of the Code or, without the
consent of the Participant so affected, to disqualify any Incentive Stock Option under such Section
422. No Option that is intended to be an Incentive Stock Option however, shall be invalid for
failure to qualify as an Incentive Stock Option under Section 422 of the Code but shall be treated
as a Non-Qualified Share Option.
Article V
SHARE SUBJECT TO PLAN
5.01 Maximum Number of Shares to be Issued.
Subject to the adjustment provisions of Article
XI and the provisions of (a) through (c) of this Article V, up to 4,400,000 Ordinary Shares may be
issued under the Plan. In addition to such authorization, the following Ordinary Shares may be
issued under the Plan:
(a) Ordinary Shares that are forfeited under the Prior Plan, and Ordinary Shares that are not
issued under the Prior Plan because of (i) the cancellation, termination or expiration of Grants
and Awards, and/or (ii) other similar events under the Prior Plan, shall be available for issuance
under this Plan.
(b) If a Participant tenders, or has withheld, Ordinary Shares in payment of all or part of
the Option Price under an Option granted under the Plan or the Prior Plan, or in satisfaction of
withholding tax obligations thereunder, the Ordinary Shares so tendered by the Participant or so
withheld shall become available for issuance under the Plan.
- 7 -
(c) Ordinary Shares that are forfeited under the Plan, and Ordinary Shares that are not
issued under the Plan because of (i) a payment of cash in lieu of Ordinary Shares, (ii) the
cancellation, termination or expiration of Grants and Awards, and/or (iii) other similar events
under the Plan, shall be available for issuance under this Plan.
Notwithstanding (a) above, any Ordinary Shares that are authorized to be issued under the
Prior Plan but that are not issued or covered by Grants or Awards under the Prior Plan, shall not
be available for issuance under this Plan.
Subject to the adjustment provisions of Article XI, not more than 1,100,000 Ordinary Shares
shall be issued under Awards of Ordinary Shares, Restricted Shares and/or Phantom Shares.
Subject to the foregoing provisions of this Section 5.01, if a Grant or an Award may be paid
only in Ordinary Shares, or in either cash or Ordinary Shares, the Ordinary Shares shall be deemed
to be issued hereunder only when and to the extent that payment is actually made in Ordinary
Shares. However, the Committee may authorize a cash payment under a Grant or an Award in lieu of
Ordinary Shares if there are insufficient Ordinary Shares available for issuance under the Plan.
5.02 Independent SARs
. Upon the exercise of a SAR granted independently of an Option, the
Company may deliver to the Participant authorized but previously unissued Ordinary Shares, cash, or
a combination thereof as provided in Section 8.06. The maximum aggregate number of Ordinary Shares
that may be issued pursuant to SARs that are granted independently of Options is subject to the
provisions of Section 5.01 hereof.
Article VI
OPTION PRICE
The price per share for Ordinary Shares purchased on the exercise of an Option shall be fixed
by the Committee on the date of grant; provided, however, that the price per share shall not be
less than the Fair Market Value on such date. Notwithstanding the foregoing, if an Incentive Stock
Option is granted to a Participant who, at the time of the Grant, is a 10% shareholder as
determined under Section 422 of the Code, then the Option Price shall be not less than 110% of the
Fair Market Value on the date of Grant.
Article VII
EXERCISE OF OPTIONS AND SARS
7.01 Maximum Option Period or SAR Period.
The period in which an Option or SAR may be
exercised shall be determined by the Committee on the date of grant; provided, however, that an
Option or SAR shall not be exercisable after the expiration of 10 years (or 5 years in the case of
an Incentive Stock Option granted to a
- 8 -
10% shareholder as determined under Section 422 of the Code) from the date the Option or SAR
was granted. The date upon which any Option or SAR granted by the Committee becomes exercisable
may be accelerated by the Committee in its discretion. Subject to the terms hereof, the term of
exercisability for any Option or SAR granted by the Committee may be extended by the Committee and
may be made contingent upon the continued employment of the Participant by the Company or
Affiliate.
7.02 Transferability of Options and SARs.
Non-Qualified Share Options and SARs may be
transferable by a Participant and exercisable by a person other than a Participant, but only to the
extent specifically provided in an Option or SAR Agreement. Incentive Stock Options and any
related SARs, by their terms, shall not be transferable except by will or by the laws of descent
and distribution and shall be exercisable, during the Participant’s lifetime, only by the
Participant. No right or interest of a Participant in any Option or SAR shall be liable for, or
subject to, any lien, obligation or liability of such Participant.
7.03 Employee Status.
For purposes of determining the applicability of Section 422 of the
Code (relating to Incentive Stock Options), or in the event that the terms of any Grant provide
that it may be exercised only during employment or within a specified period of time after
termination of employment, the Committee may decide to what extent leaves of absence for
governmental or military service, illness, temporary Disability, or other reasons shall not be
deemed interruptions of continuous employment.
Article VIII
METHOD OF EXERCISE
8.01 Exercise.
Subject to the provisions of Articles VII and XII, an Option or SAR may be
exercised in whole at any time or in part from time to time at such times and in compliance with
the applicable Agreement and such other requirements as the Committee shall determine; provided,
however, that a SAR that is related to an Incentive Stock Option may be exercised only to the
extent that the related Option is exercisable and when the Fair Market Value exceeds the Option
Price of the related Option. An Option or SAR granted under this Plan may be exercised with
respect to any number of whole shares less than the full number for which the Option or SAR could
be exercised. Such partial exercise of an Option or SAR shall not affect the right to exercise the
Option or SAR from time to time in accordance with this Plan with respect to remaining shares
subject to the Option or SAR. The exercise of an Option or SAR shall result in the termination of
any related Option or SAR to the extent of the number of shares with respect to which the Option or
SAR is exercised.
8.02 Payment.
Unless otherwise provided by the Agreement, payment of the Option Price shall
be made in cash. If the Agreement provides, payment of all or part of the Option Price (and any
applicable withholding taxes) may be made by surrendering (by either actual delivery or
attestation) already owned Ordinary Shares to the Company or by the Company withholding Ordinary
Shares from the Participant upon exercise,
- 9 -
provided the shares surrendered or withheld have a Fair Market Value (determined as of the day
preceding the date of exercise) that is not less than such price or part thereof and any such
withholding taxes. In addition, the Committee may establish such payment or other terms as it may
deem to be appropriate and consistent with these purposes.
8.03 Shareholder Rights.
No Participant shall have any rights as a shareholder with respect
to shares subject to his or her Option or SAR until the date he or she exercises such Option or
SAR.
8.04 Cashless Exercise.
To the extent permitted under the applicable laws and regulations, at
the request of the Participant and with the consent of the Committee, the Company agrees to
cooperate in a “cashless exercise” of the Option. The cashless exercise shall be effected by the
Participant delivering to the Securities Broker instructions to exercise all or part of the Option,
including instructions to sell a sufficient number of Ordinary Shares to cover the costs and
expenses associated therewith. The Committee may permit a Participant to elect to pay any
applicable withholding taxes by requesting that the Company withhold the number of Ordinary Shares
equivalent at current Fair Market Value to the withholding taxes due.
8.05 Cashing Out of Option.
The Committee may elect to cash out all or part of the portion of
any Option to be exercised by paying the optionee an amount, in cash or Ordinary Shares, equal to
the excess of the Fair Market Value of the Ordinary Shares that is the subject of the portion of
the Option to be exercised over the Option Price times the number of Ordinary Shares subject to the
portion of the Option to be exercised on the effective date of such cash out.
8.06 Determination of Payment of Cash and/or Ordinary Shares Upon Exercise of SAR.
At the
Committee’s discretion, the amount payable as a result of the exercise of a SAR may be settled in
cash, Ordinary Shares, or a combination of cash and Ordinary Shares. No fractional shares shall be
delivered upon the exercise of a SAR but a cash payment will be made in lieu thereof.
Article IX
ORDINARY SHARES AND RESTRICTED SHARES
9.01 Award.
In accordance with the provisions of Article IV, the Committee will designate the
individuals to whom an Award of Ordinary Shares and/or Restricted Shares is to be made and will
specify the number of Ordinary Shares covered by such Award or Awards.
9.02 Vesting.
In the case of Restricted Shares, on the date of the Award, the Committee may
prescribe that the Participant’s rights in the Restricted Shares shall be forfeitable or otherwise
restricted in any manner in the discretion of the Committee for such period of time as is set forth
in the Agreement. Subject to the provisions of Article
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XII hereof, the Committee may award Ordinary Shares to a Participant which is not forfeitable
and is free of any restrictions on transferability.
9.03 Shareholder Rights.
Prior to their forfeiture in accordance with the terms of the
Agreement and while the shares are Restricted Shares, a Participant will have all rights of a
shareholder with respect to Restricted Shares, including the right to receive dividends and vote
the shares; provided, however, that (i) a Participant may not sell, transfer, pledge, exchange,
hypothecate, or otherwise dispose of Restricted Shares, (ii) the Company shall retain custody of
the Ordinary Shares underlying the Restricted Shares, and (iii) the Participant will deliver to the
Company a stock transfer form, executed in blank, with respect to each award of Restricted Shares.
Article X
PHANTOM SHARES
10.01 Award.
Pursuant to this Plan or an Agreement establishing additional terms and
conditions, the Committee may designate employees to whom Awards of Phantom Shares may be made and
will specify the number of Ordinary Shares covered by the Award.
10.02 Vesting.
On the date of the Award, the Committee may prescribe that the Participant’s
right to receive payment for Phantom Shares shall be forfeitable or otherwise restricted in any
manner in the discretion of the Committee for such period of time set forth in the Agreement.
10.03 Shareholder Rights.
A Participant for whom Phantom Shares has been credited shall have
none of the rights of a shareholder with respect to such Phantom Shares. However, an Agreement for
the use of Phantom Shares may provide for the crediting of a Participant’s Phantom Shares account
with cash or Share dividends declared with respect to Ordinary Shares represented by such Phantom
Shares.
10.04 Payment.
At the Committee’s discretion, the amount payable to a Participant for Phantom
Shares credited to his or her account shall be made in cash, Ordinary Shares or a combination of
cash and Ordinary Shares.
10.05 Transferability of Phantom Shares.
Phantom Shares may be transferable by a Participant,
but only to the extent specifically provided in the Agreement. No right or interest of a
Participant in any Phantom Shares shall be subject to any lien, obligation or liability of such
Participant.
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Article XI
ADJUSTMENT UPON CHANGE IN ORDINARY SHARES
Should the Company effect one or more (x) share dividends, share split-ups, subdivisions or
consolidations of shares or other similar changes in capitalization; (y) spin-offs, spin-outs,
split-ups, split-offs, or other such distribution of assets to shareholders; or (z) direct or
indirect assumptions and/or conversions of outstanding Options due to an acquisition of the
Company, then the maximum number of Ordinary Shares as to which Grants and Awards may be issued
under this Plan shall be proportionately adjusted and their terms shall be adjusted as the
Committee shall determine to be equitably required, provided that the number of Ordinary Shares
subject to any Grant or Award shall always be a whole number. Any determination made under this
Article XI by the Committee shall be final and conclusive.
The issuance by the Company of shares of any class, or securities convertible into Ordinary
Shares, for cash or property or for labor or services, either upon direct sale or upon the exercise
of rights or warrants to subscribe therefor, or upon conversion of Ordinary Shares or obligations
of the Company convertible into such Ordinary Shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to any Grant or Award.
Article XII
COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES
No Grant shall be exercisable, no Ordinary Shares shall be issued, no Ordinary Shares shall be
delivered, and no payment shall be made under this Plan except in compliance with all applicable
federal, state, local and foreign laws and regulations (including, without limitation, withholding
tax requirements) and the rules of any stock exchanges on which the Company’s shares may be listed.
The Company may rely on an opinion of its counsel as to such compliance. Any Ordinary Shares
issued for which a Grant is exercised or an Award is issued may bear such legends and statements as
the Committee may deem advisable to assure compliance with federal and state laws and regulations.
No Grant shall be exercisable, no Ordinary Shares shall be issued, and no payment shall be made
under this Plan until the Company has obtained such consent or approval as the Committee may deem
advisable from regulatory bodies having jurisdiction over such matters.
Article XIII
GENERAL PROVISIONS
13.01 Effect on Employment.
Neither the adoption of this Plan, its operation, nor any
documents describing or referring to this Plan (or any part thereof) shall confer upon any employee
any right to continue in the employ of the Company or an Affiliate or in any way affect any right
and power of the Company or an Affiliate to terminate the employment of any employee at any time
with or without assigning a reason therefor.
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13.02 Unfunded Plan.
The Plan, insofar as it provides for a Grant or an Award of Phantom
Shares, is not required to be funded, and the Company shall not be required to segregate any assets
that may at any time be represented by a Grant or an Award of Phantom Shares under this Plan.
13.03 Change of Control.
Notwithstanding any other provision of the Plan to the contrary, in
the event of a Change of Control:
(a) Unless otherwise provided by the Committee in an Agreement, any outstanding Option or SAR
(including any limited SAR) or Phantom Shares which is not presently exercisable and vested as of a
Change of Control Date shall become fully exercisable and vested to the full extent of the original
Grant upon such Change of Control Date.
(b) Unless otherwise provided by the Committee in an Agreement, the restrictions applicable
to any outstanding Restricted Shares shall lapse, and such Restricted Shares shall become free of
all restrictions and become fully vested, nonforfeitable and transferable to the full extent of the
original Award. The Committee may also provide in an Agreement that a Participant may elect, by
written notice to the Company within 60 days after a Change of Control Date, to receive, in
exchange for shares that were Restricted Shares immediately before the Change of Control Date, a
cash payment equal to the Fair Market Value of the shares surrendered on the last business day the
Ordinary Shares is traded on the New York Stock Exchange prior to receipt by the Company of such
written notice.
(c) The Committee may, in its complete discretion, cause the acceleration or release of any
and all restrictions or conditions related to a Grant or Award, in such manner, in the case of
officers and directors of the Company who are subject to Section 16(b) of the Exchange Act, as to
conform to the provisions of Rule 16b-3.
13.04 Rules of Construction.
Headings are given to the articles and sections of this Plan
solely for ease of reference and are not to be considered in construing the terms and conditions of
the Plan. The reference to any statute, regulation, or other provision of law shall be construed
to refer to any amendment to or successor of such provision of law.
13.05 Rule 16b-3 Requirements
. Notwithstanding any other provisions of the Plan, the
Committee may impose such conditions on any Grant or Award, and the Board may amend the Plan in any
such respects, as they may determine, on the advice of counsel, are necessary or desirable to
satisfy the provisions of Rule 16b-3. Any provision of the Plan to the contrary notwithstanding,
and except to the extent that the Committee determines otherwise: (a) transactions by and with
respect to officers and directors of the Company who are subject to Section 16(b) of the Exchange
Act shall comply with any applicable conditions of Rule 16b-3; and (b) every provision of the Plan
shall be
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administered, interpreted and construed to carry out the foregoing provisions of this
sentence.
13.06 Amendment, Modification and Termination
. At any time and from time to time, the Board
may terminate, amend or modify the Plan. Such amendment or modification may be without shareholder
approval except to the extent that such approval is required by the Code, pursuant to the rules
under Section 16 of the Exchange Act, by any national securities exchange or system on which the
Ordinary Shares is then listed or reported, by any regulatory body having jurisdiction with respect
thereto or under any other applicable laws, rules, or regulations. No termination, amendment, or
modification of the Plan, other than pursuant to Section 13.05 herein, shall in any manner
adversely affect any Grant or Award theretofore issued under the Plan, without the written consent
of the Participant. The Committee may amend the terms of any Grant or Award theretofore issued
under this Plan, prospectively or retrospectively, but no such amendment shall impair the rights of
any Participant without the Participant’s written consent except an amendment provided for or
contemplated in the terms of the Grant or Award, an amendment made to cause the Plan, or Grant or
Award, to qualify for the exemption provided by Rule 16b-3, or an amendment to make an adjustment
under Article XI. Except as provided in Article XI, the Option Price of any outstanding Option may
not be adjusted or amended, whether through amendment, cancellation or replacement, unless such
adjustment or amendment is approved by the shareholders of the Company.
13.07 Governing Law.
The validity, construction and effect of the Plan and any actions taken
or related to the Plan shall be determined in accordance with the laws of the Commonwealth of
Virginia and applicable federal law.
13.08 Successors and Assigns
. All obligations of the Company under the Plan, with respect to
Grants and Awards issued hereunder, shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase, merger, consolidation
or otherwise, of all or substantially all of the business and/or assets of the Company. The Plan
shall be binding on all successors and permitted assigns of a Participant, including, but not
limited to, the estate of such Participant and the executor, administrator or trustee of such
estate, and the guardians or legal representative of the Participant.
13.09 Effect on Prior Plan and Other Compensation Arrangements.
The adoption of this Plan
shall have no effect on Grants and Awards made pursuant to the Prior Plan and the Company’s other
compensation arrangements. Nothing contained in this Plan shall prevent the Company from adopting
other or additional compensation plans or arrangements for its officers, directors or employees.
13.10 Duration of Plan.
No Grant or Award may be made under this Plan after May 31, 2010.
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Exhibit 10.19
HILB ROGAL & HOBBS COMPANY
2007 SHARE INCENTIVE PLAN
(as amended and restated on December 30, 2009 by Willis Group Holdings Limited
and as amended and restated and assumed by Willis Group Holdings Public Limited Company on December 31, 2009)
Article I
DEFINITIONS
For purposes of this Plan, the following terms shall have the following meanings:
1.01 Affiliate
means any entity that is (a) a “subsidiary corporation” or “parent
corporation” (within the meaning of Code section 424) of the Company and (b) a member of a
controlled group of corporations with the Company under Code section 414(b), using the language “at
least 50 percent” instead of “at least 80 percent” in applying Code section 1563(a)(1) for purposes
of determining a controlled group of corporations under Code section 414(b). For purposes
of granting Share Options or any other “stock rights,” within the meaning of Section 409A of the
Code, an entity may not be considered an Affiliate if granting any such stock right would result in
the stock right becoming subject to Section 409A of the Code.
1.02 Agreement
means a written agreement (including any amendment or supplement
thereto) between the Company and a Participant specifying the terms and conditions of a Grant or an
Award issued to such Participant.
1.03 Award
means an award of Ordinary Shares and/or Restricted Shares.
1.04 Board
means the Board of Directors of the Company.
1.05 Change of Control
means
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(i)
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The acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of 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
(a) the then outstanding Ordinary Shares of the Company (the “Outstanding Company
Ordinary Shares”) or (b) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of directors (the
“Outstanding Company Voting Securities”); provided, however, that for purposes of this
subsection (i), the following acquisitions shall not constitute a Change of Control: (w)
any acquisition directly from the Company, (x) any acquisition by the Company, (y) any
acquisition by any employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company or (z) any acquisition by any
corporation pursuant to a transaction which complies with clauses (a), (b) and (c) of
subsection (iii) of this Section 1.05; or
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(ii)
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Individuals who 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 Effective Date whose election, or nomination for
election, by the Company’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
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(iii)
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Consummation of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the Company (a “Business
Combination”), in each case, unless, following such Business Combination, (a) all or
substantially all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Ordinary Shares and Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding Ordinary Shares 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 Company or all or substantially all of the Company’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 Company Ordinary Shares and Outstanding Company Voting Securities, as the
case may be, (b) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially owns, directly or
indirectly, 25% or more of, respectively, the then outstanding Ordinary Shares 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 (c) 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
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(iv)
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Approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company. Notwithstanding the foregoing, for purposes of subsection (i)
of this Section 1.05, a Change of Control shall not be deemed to have taken place if, as
a result of an acquisition by the Company which reduces the Outstanding Company Ordinary
Shares or the Outstanding Company Voting Securities, the beneficial ownership of a Person
increases to
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25% or more of the Outstanding Company Ordinary Shares or the Outstanding Company
Voting Securities; provided, however, that if a Person shall become the beneficial
owner of 25% or more of the Outstanding Company Ordinary Shares or the Outstanding
Company Voting Securities by reason of share purchases by the Company and, after such
share purchases by the Company, such Person becomes the beneficial owner of any
additional shares of the Outstanding Company Ordinary Shares or the Outstanding
Company Voting Share through any means except an acquisition directly from the
Company, for purposes of subsection (i) of this Section 1.05, a Change of Control
shall be deemed to have taken place.
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(v)
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For the avoidance of doubt, a transaction shall not constitute a Change of Control
(i) if effected for the purpose of changing the place of incorporation or form of
organization of the ultimate parent entity of the Willis group of companies (including
where the Company is succeeded by an issuer incorporated under the laws of another state,
country or foreign government for such purpose and whether or not the Company remains in
existence following such transaction) and (ii) where all or substantially all of the
Person(s) who are the beneficial owners of the Outstanding Company Voting Securities
immediately prior to such transaction will beneficially own, directly or indirectly, all
or substantially all of the combined voting power of the Outstanding Company Voting
Securities entitled to vote generally in the election of directors of the ultimate parent
entity resulting from such transaction in substantially the same proportions as their
ownership, immediately prior to such transaction, of such Outstanding Company Voting
Securities. The Board, in its sole discretion, may make an appropriate and equitable
adjustment to the Outstanding Company Ordinary Shares underlying an Award to take into
account such transaction, including to substitute or provide for the issuance of ordinary shares of the resulting ultimate parent entity in lieu of Ordinary Shares of the Company.
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1.06 Change of Control Date
is the date on which an event described in (i) through (iv)
of Section 1.05 occurs.
1.07 Code
means the U.S. Internal Revenue Code of 1986, as amended from time to time.
References to the Code shall include the valid and binding governmental regulations, court
decisions and other regulatory and judicial authority issued or rendered thereunder, including,
without limitation, proposed Treasury Regulations.
1.08 Commission
means the U.S. Securities and Exchange Commission or any successor
agency.
1.09 Committee
means the Compensation Committee of the Board or any successor thereto.
1.10 Company
means Willis Group Holdings Public Limited Company, a company organized
under the laws of Ireland under registered number 475616, the successor entity to Willis Group
Holdings Limited, which acquired Hilb, Rogal & Hamilton Company.
1.11 Disability,
with respect to a Participant, means “‘disability” as defined from
time to time under any long-term disability plan of the Company or Subsidiary with which the
Participant is employed.
1.12 Effective Date
means the date on which this Plan was originally approved by the
shareholders of Hilb, Rogal & Hobbs Company.
1.13 Exchange Act
means the U.S. Securities Exchange Act of 1934, as amended from
time to time, and any successor thereto.
1.14 Fair Market Value
means, on any given date, the closing price of an Ordinary Share
as reported on the New York Stock Exchange composite tape on such day or, if the Ordinary Share was
not traded on the New York Stock Exchange on such day, then on the next preceding day that the
Ordinary Share was traded on such exchange, all as reported by such source as the Committee may
select.
1.15 Grant
means the grant of an Option.
1.16 Incentive Stock Option
means an Option which qualifies and is intended to qualify
as an “incentive stock option” under Code section 422.
1.17 Non-Qualified Share Option
means an Option other than an Incentive Stock Option.
1.18 Option
means a share option that entitles the holder to purchase from the Company
a stated number of Ordinary Shares at the price and on the conditions set forth in an Agreement.
1.19 Option Price
means the price per share for Ordinary Shares purchased on the
exercise of an Option as provided in Article VI.
1.20 Ordinary Shares
means the ordinary shares of the Company, nominal value
US$0.000115.
1.21 Parent
shall mean with respect to the Company, a “parent corporation” of that corporation
within the meaning of section 424(e) of the Code.
1.22 Participant
means an officer, director or employee of the Company or of a
Subsidiary who satisfies the requirements of Article IV and is selected by the Committee to receive
a Grant or an Award.
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1.23 Plan
means the Hilb Rogal & Hobbs Company 2007 Share Incentive Plan, as amended and restated on
December 30, 2009 by Willis Group Holdings Limited and as amended and restated and assumed by Willis Group
Holdings Public Limited Company on December 31, 2009.
1.24
Prior Plan
means the Hilb Rogal & Hamilton Company 2000 Share Incentive Plan, as
amended and restated on December 30, 2009 by Willis Group Holdings Limited and as amended and restated and assumed by Willis
Group Holdings Public Limited Company on December 31, 2009.
1.25 Restricted Shares
means Ordinary Shares awarded to a Participant under Article IX
and designated as Restricted Shares. Ordinary Shares shall cease to be Restricted Shares when, in
accordance with the terms of the applicable Agreement, they become transferable and free of
substantial risk of forfeiture.
1.26 Rule 16b-3
means Rule 16b-3, as promulgated by the Commission under Section 16(b)
of the Exchange Act, as amended from time to time, or any successor rule.
1.27 Securities Broker
means the registered securities broker acceptable to the Company
who agrees to effect the cashless exercise of an Option pursuant to Section 8.04 hereof.
1.28 Subsidiary
means, a body corporate which is a subsidiary of the Company within the
meaning of section 155 of the Irish Companies Act 1963 and a “subsidiary corporation” of that
corporation within the meaning of Section 424(f) of the Code.
Article II
PURPOSES
The Plan is intended to assist the Company in recruiting and retaining officers, directors and
key employees with ability and initiative by enabling such persons who contribute significantly to
the Company or an Affiliate to participate in its future success and to associate their interests
with those of the Company and its shareholders. The Plan is intended to permit the award of
Ordinary Shares and Restricted Shares, and the grant of Options, qualifying as Incentive Stock
Options or Non-Qualified Stock Options as designated by the Committee at the time of grant. No
Option that is intended to be an Incentive Share Option, however, shall be invalid for failure to
qualify as an Incentive Share Option under Code section 422 but shall be treated as a Non-Qualified
Stock Option.
Article III
ADMINISTRATION
This Plan shall be administered by the Committee. The Committee shall have authority to issue
Grants and Awards upon such terms (not inconsistent with the provisions of this Plan) as the
Committee may consider appropriate. The terms of such Grants and Awards may include conditions (in
addition to those contained in this Plan) on (i) the exercisability of all or any part of an Option
and (ii) the transferability or forfeitability of Restricted Shares. In addition, the Committee
shall have complete authority to interpret all provisions of this Plan; to prescribe the form of
Agreements; to adopt, amend, and rescind rules and regulations pertaining to the administration of
the Plan; and to make all other determinations necessary or advisable for the administration of
this Plan. To fulfill the purposes of the Plan without amending the Plan, the Committee may also
modify any Grants or Awards issued to Participants who are nonresident aliens or employed outside
of the United States to recognize differences in local law, tax policy or custom, provided such
modifications are permitted by Code section 409A, if applicable.
The express grant in the Plan of any specific power to the Committee shall not be construed as
limiting any power or authority of the Committee. Any decision made, or action taken, by the
Committee or in connection with the administration of this Plan shall be final and conclusive. All
expenses of administering this Plan shall be borne by the Company.
Article IV
ELIGIBILITY
4.01 General.
Any officer, director or employee of the Company or of any Affiliate
(including any corporation that becomes an Affiliate after the adoption of this Plan) who, in the
judgment of the Committee, has contributed significantly or can be expected to contribute
significantly to the profits or growth of the Company or a Subsidiary of the Company may receive
one or more Awards or Grants, or any combination or type thereof. Employee and non-employee
directors of the Company are eligible to participate in this Plan.
4.02 Grants and Awards.
The Committee will designate the individuals to whom Grants
and/or Awards are to be made and will specify the number of Ordinary Shares subject to each such
Grant or Award. An Option may be granted alone or in addition to other Grants and/or Awards under
the Plan. The Committee shall have the authority to grant Incentive Stock Options, Non-Qualified
Stock Options or both types of Options to any Participant; provided, however, that Incentive Stock
Options may be granted only to employees of the Company and any Parent or Subsidiary. All Grants or
Awards under this Plan shall be evidenced by Agreements which shall be subject to applicable
provisions of this Plan and to such other provisions as the Committee may determine. No Participant
may be granted Options that are Incentive Stock Options (under all plans of the Company and its
Affiliates which provide for the grant of Incentive Stock Options) which are first exercisable in
any calendar year for Ordinary Shares having an aggregate Fair Market Value (determined as of the
date an Option is granted) exceeding $100,000 or such other amount as shall be specified in Code
Section 422 and the rules and regulations thereunder from time to time. No Participant may receive
Grants or Awards under the Plan with respect to more than 200,000 Ordinary Shares during any one
calendar year.
4.03 Designation of Option as an Incentive Stock Option or Non-Qualified Share Option.
The Committee will designate at the time an Option is granted whether the Option is to be treated
as an Incentive Stock Option or a Non-Qualified Stock Option. In the
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absence, however, of any such designation, such Option shall be treated as a Non-Qualified
Share Option.
4.04 Qualification of Incentive Stock Option under Section 422 of the Code.
Anything in this Plan to the contrary notwithstanding, no term of this Plan relating to Incentive
Stock Options shall be interpreted, amended or altered, nor shall any discretion or authority
granted under the Plan be exercised so as to disqualify the Plan under Code section 422 or, without
the consent of the Participant so affected, to disqualify any Incentive Stock Option under such
Section 422. No Option that is intended to be an Incentive Stock Option however, shall be invalid
for failure to qualify as an Incentive Stock Option under Code section 422 but shall be treated as
a Non-Qualified Share Option.
Article V
SHARE SUBJECT TO PLAN
Subject to the adjustment provisions of Article X and the provisions of (a) and (b) of this
Article V, up to 2,000,000 Ordinary Shares plus any Ordinary Shares remaining available under the
Prior Plan on the Effective Date of the Plan may be issued under the Plan. In addition to such
authorization, the following Ordinary Shares may be issued under the Plan:
(a) Ordinary Shares that are forfeited under the Prior Plan, and Ordinary Shares that
are not issued under the Prior Plan because of (i) the cancellation, termination or expiration of
Grants and Awards, and/or (ii) other similar events under the Prior Plan, shall be available for
issuance under this Plan.
(b) Ordinary Shares that are forfeited under the Plan, and Ordinary Shares that are not
issued under the Plan because of (i) a payment of cash in lieu of Ordinary Shares, (ii) the
cancellation, termination or expiration of Grants and Awards, and/or (iii) other similar events
under the Plan, shall be available for issuance under this Plan.
Subject to the adjustment provisions of Article X, not more than 500,000 of the Ordinary
Shares available for issuance on the Effective Date of the Plan shall be issued under Awards of
Ordinary Shares and/or Restricted Shares.
Subject to the foregoing provisions of this Article, if a Grant or an Award may be paid only
in Ordinary Shares, or in either cash or Ordinary Shares, the Ordinary Shares shall be deemed to be
issued hereunder only when and to the extent that payment is actually made in Ordinary Shares.
However, the Committee may authorize a cash payment under a Grant or an Award in lieu of Ordinary
Shares if there are insufficient Ordinary Shares available for issuance under the Plan.
Article VI
OPTION PRICE
The price per share for Ordinary Shares purchased on the exercise of an Option shall be fixed
by the Committee on the date of grant; provided, however, that the price per share shall not be
less than the Fair Market Value on such date. Notwithstanding the foregoing, if an Incentive Stock
Option is granted to a Participant who, at the time of the Grant, is a 10% shareholder as
determined under Code section 422, then the Option Price shall be not less than 110% of the Fair
Market Value on the date of Grant. Except for adjustments authorized in Article X, the price per
share for Ordinary Shares purchased on exercise of an Option may not be reduced (by amendment or
cancellation of the Option or otherwise) after the date of grant of the Option.
Article VII
EXERCISE OF OPTIONS
7.01 Maximum Option Period.
The period in which an Option may be exercised shall be
determined by the Committee on the date of grant; provided, however, that an Option shall not be
exercisable after the expiration of 10 years (or 5 years in the case of an Incentive Stock Option
granted to a 10% shareholder as determined under Code section 422) from the date the Option was
granted. The date upon which any Option granted by the Committee becomes exercisable may be
accelerated by the Committee in its discretion. Subject to the terms hereof, the term of
exercisability for any Option granted by the Committee may be made contingent upon the continued
employment of the Participant by the Company or Affiliate. The term of exercisability of any Option
may not be extended or renewed except as may be permitted by Code section 409A.
7.02 Transferability of Options.
Non-Qualified Share Options may be transferable by a
Participant and exercisable by a person other than a Participant, but only to the extent such
transfer is not made for value and is specifically provided in an Option Agreement and subject to
applicable securities law requirements. Incentive Stock Options, by their terms, shall not be
transferable except by will or by the laws of descent and distribution and shall be exercisable,
during the Participant’s lifetime, only by the Participant. No right or interest of a Participant
in any Option shall be liable for, or subject to, any lien, obligation or liability of such
Participant.
7.03 Employee Status.
For purposes of determining the applicability of Code section 422
(relating to Incentive Stock Options), or in the event that the terms of any Grant provide that it
may be exercised only during employment or within a specified period of time after termination of
employment, the Committee may decide to what extent leaves of absence for governmental or military
service, illness, temporary Disability, or other reasons shall not be deemed interruptions of
continuous employment.
Article VIII
METHOD OF EXERCISE
8.01 Exercise.
Subject to the provisions of Articles VII and XI, an Option may be
exercised in whole at any time or in part from time to time at such times and in compliance with
the applicable Agreement and such other requirements as the Committee shall determine. An Option
granted under this Plan may be exercised with respect to any number of whole shares less than the
full number for
4
which the Option could be exercised. Such partial exercise of an Option shall not affect the
right to exercise the Option from time to time in accordance with this Plan with respect to
remaining shares subject to the Option. The exercise of an Option shall result in the termination
of any related Option to the extent of the number of shares with respect to which the Option is
exercised.
8.02 Payment.
Unless otherwise provided by the Agreement, payment of the Option Price
shall be made in cash. If the Agreement provides, payment of all or part of the Option Price (and
any applicable withholding taxes) may be made by surrendering (by either actual delivery or
attestation) already owned Ordinary Shares to the Company or by the Company withholding Ordinary
Shares from the Participant upon exercise, provided the shares surrendered or withheld have a Fair
Market Value (determined as of the day preceding the date of exercise) that is not less than such
price or part thereof and any such withholding taxes. In addition, the Committee may establish such
payment or other terms as it may deem to be appropriate and consistent with these purposes.
8.03 Shareholder Rights.
No Participant shall have any rights as a shareholder with
respect to shares subject to his or her Option until the date he or she exercises such Option.
8.04 Cashless Exercise.
To the extent permitted under the applicable laws and
regulations, at the request of the Participant and with the consent of the Committee, the Company
agrees to cooperate in a “cashless exercise” of the Option. The cashless exercise shall be effected
by the Participant delivering to the Securities Broker instructions to exercise all or part of the
Option, including instructions to sell a sufficient number of Ordinary Shares to cover the costs
and expenses associated therewith. The Committee may permit a Participant to elect to pay any
applicable withholding taxes by requesting that the Company withhold the number of Ordinary Shares
equivalent at current Fair Market Value to the withholding taxes due.
8.05 Cashing Out of Option.
The Committee may elect to cash out all or part of the
portion of any Option to be exercised by paying the optionee an amount, in cash or Ordinary Shares,
equal to the excess of the Fair Market Value of the Ordinary Shares that is the subject of the
portion of the Option to be exercised over the Option Price times the number of Ordinary Shares
subject to the portion of the Option to be exercised on the effective date of such cash out.
Article IX
ORDINARY SHARES AND RESTRICTED SHARES
9.01 Award.
In accordance with the provisions of Article IV, the Committee will
designate the individuals to whom an Award of Ordinary Shares and/or Restricted Shares is to be
made and will specify the number of Ordinary Shares covered by such Award or Awards.
9.02 Vesting.
In the case of Restricted Shares, on the date of the Award, the Committee
may prescribe that the Participant’s rights in the Restricted Shares shall be forfeitable or
otherwise restricted in any manner in the discretion of the Committee for such period of time as is
set forth in the Agreement. Subject to the provisions of Article XI hereof, the Committee may award
Ordinary Shares to a Participant which is not forfeitable and is free of any restrictions on
transferability. An election by the Participant to postpone vesting of Restricted Shares or any
other election that could result in a deferral of compensation under Code section 409A may be made
only if authorized by the Committee and only in accordance with the requirements of Code Section
409A.
9.03 Shareholder Rights.
Prior to their forfeiture in accordance with the terms of the
Agreement and while the shares are Restricted Shares, a Participant will have all rights of a
shareholder with respect to Restricted Shares, including the right to receive dividends and vote
the shares; provided, however, that (i) a Participant may not sell, transfer, pledge, exchange,
hypothecate, or otherwise dispose of Restricted Shares, (ii) the Company shall retain custody of
the Ordinary Shares underlying the Restricted Shares, and (iii) the Participant will deliver to the
Company a Share power, endorsed in blank, with respect to each award of Restricted Shares.
Article X
ADJUSTMENT UPON CHANGE IN ORDINARY SHARES
Should the Company effect one or more (x) share dividends, share split-ups, subdivisions or
consolidations of shares or other similar changes in capitalization; (y) spin-offs, spin-outs,
split-ups, split-offs, or other such distribution of assets to shareholders; or (z) direct or
indirect assumptions and/or conversions of outstanding Options due to an acquisition of the
Company, then the maximum number of shares as to which Grants and Awards may be issued under this
Plan shall be proportionately adjusted and their terms shall be adjusted as the Committee shall
determine to be equitably required, provided that the number of shares subject to any Grant or
Award shall always be a whole number. Any determination made under this Article X by the Committee
shall be final and conclusive. No adjustment may be made under this Plan with respect to a Grant or
Award that would create a deferral of compensation or a modification, extension or renewal under
Code section 409A, except to the extent permitted by Code section 409A. The issuance by the Company
of shares of Share of any class, or securities convertible into shares of Share of any class, for
cash or property or for labor or services, either upon direct sale or upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to any Grant or Award.
Article XI
COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES
No Grant shall be exercisable, no Ordinary Shares shall be issued, no Ordinary Shares shall be
delivered, and no payment shall be made under this Plan except in compliance with all applicable
federal, state, local and foreign laws and regulations (including, without limitation, withholding
tax requirements) and the rules of all U.S. stock exchanges on which the Company’s shares may be
listed. The Company may rely on an opinion of its counsel as to such compliance. Any Ordinary
Shares issued for which a Grant is exercised or an Award is issued may bear such legends and
statements as the Committee may deem advisable to assure compliance with federal and
5
state laws and regulations. No Grant shall be exercisable, no Ordinary Shares shall be issued,
and no payment shall be made under this Plan until the Company has obtained such consent or
approval as the Committee may deem advisable from regulatory bodies having jurisdiction over such
matters.
Article XII
GENERAL PROVISIONS
12.01 Effect on Employment.
Neither the adoption of this Plan, its operation, nor any
documents describing or referring to this Plan (or any part thereof) shall confer upon any employee
any right to continue in the employ of the Company or an Affiliate or in any way affect any right
and power of the Company or an Affiliate to terminate the employment of any employee at any time
with or without assigning a reason therefor.
12.02 Unfunded Plan.
The Plan is not required to be funded and the Company shall not be
required to segregate any assets that may at any time be represented by a Grant or an Award under
this Plan.
12.03 Change of Control.
Notwithstanding any other provision of the Plan to the
contrary, in the event of a Change of Control:
(a) Unless otherwise provided by the Committee in an Agreement, any outstanding Option which
is not presently exercisable as of a Change of Control Date shall become fully exercisable and
vested to the full extent of the original Grant upon such Change of Control Date.
(b) Unless otherwise provided by the Committee in an Agreement, the restrictions applicable to
any outstanding Restricted Shares shall lapse, and such Restricted Shares shall become free of all
restrictions and become fully vested, nonforfeitable and transferable to the full extent of the
original Award. The Committee may also provide in an Agreement that a Participant may elect, by
written notice to the Company within 60 days after a Change of Control Date, to receive, in
exchange for shares that were Restricted Shares immediately before the Change of Control Date, a
cash payment equal to the Fair Market Value of the shares surrendered on the last business day the
Ordinary Shares is traded on the New York Stock Exchange prior to receipt by the Company of such
written notice.
(c) The Committee may, in its complete discretion, cause the acceleration or release of any
and all restrictions or conditions related to a Grant or Award, in such manner, in the case of
officers and directors of the Company who are subject to Section 16(b) of the Exchange Act, as to
conform to the provisions of Rule 16b-3.
12.04 Rules of Construction.
Headings are given to the articles and sections of this
Plan solely for ease of reference and are not to be considered in construing the terms and
conditions of the Plan. The reference to any statute, regulation, or other provision of law shall
be construed to refer to any amendment to or successor of such provision of law.
12.05 Rule 16b-3 Requirements
. Notwithstanding any other provisions of the Plan, the
Committee may impose such conditions on any Grant or Award, and the Board may amend the Plan in any
such respects, as they may determine, on the advice of counsel, are necessary or desirable to
satisfy the provisions of Rule 16b-3. Any provision of the Plan to the contrary notwithstanding,
and except to the extent that the Committee determines otherwise: (a) transactions by and with
respect to officers and directors of the Company who are subject to Section 16(b) of the Exchange
Act shall comply with any applicable conditions of Rule 16b-3; and (b) every provision of the Plan
shall be administered, interpreted and construed to carry out the foregoing provisions of this
sentence.
12.06 Amendment, Modification and Termination
. At any time and from time to time, the
Board may terminate, amend or modify the Plan. Such amendment or modification may be without
shareholder approval except to the extent that such approval is required by the Code, pursuant to
the rules under Section 16 of the Exchange Act, by any U.S. securities exchange or system on which
the Ordinary Shares is then listed or reported, by any regulatory body having jurisdiction with
respect thereto or under any other applicable laws, rules, or regulations. No termination,
amendment, or modification of the Plan, other than pursuant to Section 12.05 herein, shall in any
manner adversely affect any Grant or Award theretofore issued under the Plan, without the written
consent of the Participant. The Committee may amend the terms of any Grant or Award theretofore
issued under this Plan, prospectively or retrospectively, but no such amendment (including an
amendment effected through an amendment to the Plan) (a) shall impair the rights of any Participant
without the Participant’s written consent except an amendment provided for or contemplated in the
terms of the Grant or Award, an amendment made to cause the Plan, or Grant or Award, to qualify for
the exemption provided by Rule 16b-3, or an amendment to make an adjustment under Article X or (b)
shall cause an Award to result in a deferral of compensation unless such amended Award complies
with the requirements of Code section 409A. Except as provided in Article X, the Option Price of
any outstanding Option may not be adjusted or amended, whether through amendment, cancellation or
replacement, unless such adjustment or amendment is approved by the shareholders of the Company.
12.07 Governing Law.
The validity, construction and effect of the Plan and any
actions taken or related to the Plan shall be determined in accordance with the laws of the
Commonwealth of Virginia and applicable federal law.
12.08 Successors and Assigns
. All obligations of the Company under the Plan, with
respect to Grants and Awards issued hereunder, shall be binding on any successor to the Company,
whether the existence of such successor is the result of a direct or indirect purchase, merger,
consolidation or otherwise, of all or substantially all of the business and/or assets of the
Company. The Plan shall be binding on all successors and permitted assigns of a Participant,
including, but not limited to, the estate of such Participant and the executor, administrator or
trustee of such estate, and the guardians or legal representative of the Participant.
12.09 Effect on Prior Plan and Other Compensation Arrangements.
The adoption of this
Plan shall have no effect on Grants and Awards made pursuant to the Prior Plan and the Company’s
other compensation arrangements. Nothing contained in this
6
Plan shall prevent the Company from adopting other or additional compensation plans or
arrangements for its officers, directors or employees.
12.10 Duration of Plan.
No Grant or Award may be made under this Plan after April 30,
2017.
7
Exhibit 10.20
FORM OF DEED OF INDEMNITY
This Deed of Indemnity (this “
Deed
”) is made as of ______ by and
between Willis Group Holdings Public Limited Company, an Irish public limited company (the
“
Company
”), and ______ (“
Indemnitee
”).
PRELIMINARY STATEMENTS
A. Willis Group Holdings Limited will effect a scheme of arrangement under Bermuda law (the
“
Scheme of Arrangement
”) pursuant to which the holders of common shares of Willis Group
Holdings Limited will become shareholders of the Company.
B. The Company desires to attract and retain the services of highly qualified individuals,
such as Indemnitee, to serve the Company and provide for the indemnification of, and advancement of
expenses to, such persons to the maximum extent permitted by law.
C. The articles of association of the Company (the “
Articles
”) provide that
the indemnification provisions set forth therein shall not be deemed exclusive and thereby
contemplate that agreements may be made with members of the board of directors, secretaries,
officers, executives and other persons with respect to indemnification.
D. Indemnitee has been asked to serve as a director, secretary or executive of the Company
and, as partial consideration for agreeing to do so, the Company has agreed to enter into this Deed
with Indemnitee.
AGREEMENT
In consideration of the premises and the covenants contained herein, of Indemnitee serving the
Company directly or, at the Company’s request, with another Enterprise, and for other good and
valuable consideration, receipt of which is hereby acknowledged, and intending to be legally bound
hereby, the parties do hereby agree as follows:
1.
Services to the Company
. Indemnitee has agreed to serve as a director, secretary,
officer or executive of the Company. Indemnitee may at any time and for any reason resign from
such position (subject to any other contractual obligation or any obligation imposed by operation
of law), in which event the Company shall have no obligation under this Deed to continue Indemnitee
in such position. This Deed shall not be deemed an employment contract between the Company (or any
of its subsidiaries or any Enterprise) and Indemnitee. The foregoing notwithstanding, this Deed
shall continue in force after Indemnitee has ceased to serve in such capacity of the Company,
subject to and in accordance with
Section 13
.
2.
Definitions
. As used in this Deed:
(a) “
Corporate Status
” describes the status of a person who is or was a director,
secretary, officer, executive, employee or agent of the Company or of any other Enterprise which
such person is or was serving at the request of the Company.
(b) “
Enterprise
” shall mean the Company and any other corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the request of the Company as a director, secretary, officer,
executive, employee, agent or fiduciary.
1
(c) “
Expenses
” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding. Expenses also shall include Expenses incurred in connection with
any appeal resulting from any Proceeding, including without limitation the premium, security for,
and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent
and matters contemplated by or arising under
Section 11(d)
. Expenses, however, shall not
include amounts paid in settlement by Indemnitee or the amount of judgments, fines, liabilities,
losses or damages against Indemnitee.
(d) “
Independent Counsel
” means a law firm, or a partner (or, if applicable, member)
of such a law firm, that is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter
material to either such party (other than with respect to matters concerning the Indemnitee under
this Deed, or of other indemnitees under similar indemnification agreements); or (ii) any other
party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under
this Deed. The Company agrees to pay the reasonable fees and expenses of the Independent Counsel
referred to above and to fully indemnify such counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Deed or its engagement pursuant hereto.
(e) The term “
Proceeding
” shall include any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened or completed proceeding, whether brought in the right of
the Company or otherwise and whether of a civil, criminal, administrative or investigative nature,
including any appeal therefrom, in which Indemnitee was, is or will be involved as a party or
otherwise by reason of the fact that Indemnitee is or was a director, secretary, officer or
executive of the Company, by reason of any action or inaction taken by him or of any action or
inaction on his part while acting as director, secretary, officer or executive of the Company, or
by reason of the fact that he is or was serving at the request of the Company as a director,
secretary, officer, executive, employee or agent of another Enterprise, in each case whether or not
serving in such capacity at the time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses can be provided under this Deed;
provided
,
however
, other than with respect to a Proceeding in connection with, or
arising under, this Deed with respect to the matters contemplated by or arising under
Section
11(d)
, that the term “Proceeding” shall not include any action, suit or arbitration initiated
by Indemnitee to enforce Indemnitee’s rights under this Deed.
3.
Indemnity
. The Company shall indemnify Indemnitee in accordance with the
provisions of this
Section 3
if Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding. Pursuant to this
Section 3
, Indemnitee shall be indemnified
against all Expenses, judgments, fines, liabilities, losses, damages and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on his behalf in connection with such Proceeding
or any claim, issue or matter therein to the fullest extent permitted by law. Indemnitee shall not
enter into any settlement in connection with a Proceeding without 10 days prior notice to the
Company. For purposes of this Deed, the meaning of the phrase “
to the fullest extent permitted
by law
” shall include, but not be limited to: (i) to the fullest extent permitted by the
provisions of Irish law and/or the Articles that authorize, permit or contemplate indemnification
by agreement, court action or the corresponding provision of any amendment to or replacement of
such provisions; and (ii) to the fullest extent authorized or permitted by any amendments
2
to or replacements of Irish law and/or the Articles adopted after the date of this Deed that
increase the extent to which a company may indemnify its directors, secretaries, officers and
executives. The Company agrees to take all reasonable actions to facilitate any application by
Indemnitee under section 391 of the Irish Companies Act 1963 (as amended) (including any successor
provision, “
Section 391
”), including without limitation the payment of any costs or
expenses incurred by Indemnitee in making such application.
4.
Indemnification for Expenses of a Party Who is Wholly or Partly Successful
.
Notwithstanding any other provisions of this Deed, to the extent that Indemnitee is a party to or a
participant in and is successful, on the merits or otherwise, in any Proceeding or in defense of
any claim, issue or matter therein, in whole or in part, the Company shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by him in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the
Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or
on his behalf in connection with (a) each successfully resolved claim, issue or matter and (b) any
claim, issue or matter related to any such successfully resolved claim, issue or matter. For
purposes of this Section and without limitation, the termination of any claim, issue or matter in
such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter. This provision is in addition to, and not by way of
limitation of, any other rights of Indemnitee hereunder.
5.
Indemnification For Expenses of a Witness
. Notwithstanding any other provision of
this Deed, to the extent that Indemnitee is, by reason of his Corporate Status, a witness in any
Proceeding to which Indemnitee is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection therewith.
6.
Exclusions
. Notwithstanding any provision in this Deed to the contrary, the
Company shall not be obligated under this Deed to make any payment pursuant to this Deed:
(a) for which payment has actually been made to or on behalf of Indemnitee by or on behalf of
the Company under any insurance policy or other indemnity provision, except with respect to any
excess beyond the amount paid under any insurance policy or other indemnity provision;
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of the U.S. Securities
Exchange Act of 1934, as amended, or any successor provision or similar provisions of state
statutory law or common law or equivalent provisions in any applicable jurisdiction; or
(c) for which payment is expressly prohibited by law (including, with respect to any director
or secretary, in respect of any liability expressly prohibited from being indemnified pursuant to
section 200 of the Irish Companies Act 1963 (as amended)) (including any successor provision,
“
Section 200
”), but (i) in no way limiting any rights under Section 391, and (ii) to the
extent any such limitations or prescriptions are amended or determined by a court of competent
jurisdiction to be void or inapplicable, or relief to the contrary is granted, then the Indemnitee
shall receive the greatest rights then available under law (as further set forth in
Section
12
).
These exclusions shall not limit the right to advancement of Expenses under
Section 7
or
otherwise under this Deed pending the outcome of any Proceeding unless such advancement of Expenses
is expressly prohibited by law. Notwithstanding the foregoing, this provision shall not limit
Indemnitee’s obligation to repay Expenses as expressly contemplated elsewhere in this Deed or as
otherwise expressly required by law.
3
7.
Advances of Expenses
. The Company shall advance, to the extent not expressly
prohibited by law, the Expenses incurred by Indemnitee in connection with any Proceeding, and such
advancement shall be made within five days after the receipt by the Company of a statement or
statements requesting such advances (which shall include invoices received by Indemnitee in
connection with such Expenses but, in the case of invoices in connection with legal services, any
references to legal work performed or to expenditures made that would cause Indemnitee to waive any
privilege accorded by law shall not be included with the invoice) from time to time, whether prior
to or after final disposition of any Proceeding. Advances shall be unsecured and interest free.
Advances shall be made without regard to Indemnitee’s ability to repay the expenses and without
regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this
Deed. Advances shall include any and all reasonable Expenses incurred pursuing an action to enforce
this right of advancement, an action to enforce Indemnitee’s rights generally under this Deed and
any application under Section 391, including Expenses incurred preparing and forwarding statements
to the Company to support the advances claimed. The Indemnitee shall qualify for advances upon the
execution and delivery to the Company of this Deed which shall constitute an undertaking providing
that the Indemnitee undertakes to the extent required by law to repay the advance of Expenses if
and to the extent that it is ultimately determined by a court of competent jurisdiction in a final
judgment, not subject to appeal, or other competent authority or arbitrator that Indemnitee is not
entitled to be indemnified by the Company. Indemnitee further undertakes to repay any amounts paid
by the Company for indemnification hereunder if and to the extent that it is ultimately determined
by a court of competent jurisdiction in a final judgment, not subject to appeal, or other competent
authority or arbitrator that Indemnitee is not entitled to be indemnified by the Company. This
Section 7
shall not apply to any claim made by Indemnitee for which indemnity is excluded
pursuant to
Section 6
following the ultimate determination by a court of competent
jurisdiction in a final judgment, not subject to appeal, or other competent authority or
arbitrator. The right to advances under this paragraph shall in all events continue until final
disposition of any Proceeding, including any appeal therein. For the avoidance of doubt, the
provisions of
Section 9
shall not apply to advancement of Expenses as contemplated
by this
Section 7
.
8.
Procedure for Notification and Defense of Claim
.
(a) To obtain indemnification under this Deed (including, without limitation, with respect to
advancement of Expenses or other costs or expenses, including attorney’s fees and disbursements,
for which indemnity is permitted hereby), Indemnitee shall submit to the Company a written request
therefor.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
9.
Procedure Upon Application for Indemnification
.
(a) The Company shall promptly provide the indemnification rights and undertake related
obligations contemplated by this Deed. If the Company concludes, on written advice of counsel,
that a determination with respect to Indemnitee’s entitlement to indemnification, in the specific
case, is required by law, then the Company shall immediately notify Indemnitee in writing. Promptly
thereafter, the board of directors of the Company or, if requested by Indemnitee within 10 days
after receipt of such written notice, Independent Counsel shall make a determination with respect
to Indemnitee’s entitlement to indemnification. If such determination is made by Independent
Counsel, it shall be in a written statement to the board of directors of the Company, a copy of
which shall be delivered to Indemnitee. If it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within five days after such statement is
delivered. Indemnitee shall cooperate with the Independent Counsel making such determination with
respect to Indemnitee’s entitlement to indemnification,
4
including providing to such counsel upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any costs or expenses
(including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the
Independent Counsel shall be borne by the Company (irrespective of the determination as to
Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(b) The Independent Counsel shall be selected by Indemnitee and notified in writing to the
Company. The Company may, within three days after written notice of such selection, deliver to the
Indemnitee a written objection to such selection;
provided
,
however
, that such
objection may be asserted only on the ground that the Independent Counsel so selected does not meet
the requirements of “Independent Counsel” as defined in
Section 2
, and the objection shall
set forth with particularity the factual basis of such assertion. Absent a proper and timely
objection, the person so selected shall act as Independent Counsel. If such written objection is
so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel
unless and until such objection is withdrawn or a court has determined that such objection is
without merit. If, within 10 days after the later of submission by Indemnitee of a written request
for indemnification pursuant to
Section 8(a
), and the final disposition of the Proceeding,
including any appeal therein, no Independent Counsel shall have been selected and not objected to,
the Indemnitee may petition a court of competent jurisdiction for resolution of any objection which
shall have been made by the Company to the selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the court or by such other person as the
court shall designate, and the person with respect to whom all objections are so resolved or the
person so appointed shall act as Independent Counsel under
Section 9(a
). Upon the due
commencement of any judicial proceeding or arbitration pursuant to
Section 11(a
),
Independent Counsel shall be discharged and relieved of any further responsibility in such capacity
(subject to the applicable standards of professional conduct then prevailing).
10.
Presumptions and Effect of Certain Proceedings
.
(a) In making a determination with respect to such entitlement to indemnification hereunder,
the Independent Counsel making such determination shall presume that Indemnitee is entitled to
indemnification under this Deed if Indemnitee has submitted a request for indemnification in
accordance with
Section 8(a
), and the Company shall have the burden of proof to overcome
that presumption in connection with the making by the Independent Counsel of any determination
contrary to that presumption. Neither the failure of the Company or of Independent Counsel to have
made a determination prior to the commencement of any action pursuant to this Deed that
indemnification is proper in the circumstances because Indemnitee has met any applicable standard
of conduct, nor an actual determination by the Company or by Independent Counsel that Indemnitee
has not met such applicable standard of conduct, shall be a defense to the action or create a
presumption that Indemnitee has not met the applicable standard of conduct.
(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of guilty,
nolo contendere
or its equivalent, shall
not (except as otherwise expressly provided in this Deed) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did not act honestly and
reasonably and that Indemnitee ought fairly to be excused for the negligence, default, breach of
duty or breach of trust.
(c) For purposes of any determination of honesty and reasonableness, Indemnitee shall be
deemed to have acted honestly and reasonably if Indemnitee’s action or inaction is based on the
records or books of account of the Enterprise, including financial statements, or on information
supplied to Indemnitee by the officers of the Enterprise in the course of their duties, or on the
advice of legal
5
counsel for the Enterprise or the board of directors of the Company or counsel selected by any
committee of the board of directors of the Company or on information or records given or reports
made to the Enterprise by an independent certified public accountant or by an appraiser, investment
banker or other expert selected with reasonable care by the Company or the board of directors of
the Company or any committee of the board of directors of the Company. The provisions of this
Section 10(c
) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct
set forth in this Deed.
(d) The knowledge and/or actions, or failure to act, of any director, secretary, officer,
executive, employee or agent of the Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Deed.
11.
Remedies of Indemnitee
.
(a) Subject to
Section 11(e
), in the event that (i) a determination is made pursuant
to
Section 9
that Indemnitee is not entitled to indemnification under this Deed, (ii)
advancement of Expenses is not timely made pursuant to
Section 7
, (iii) no determination of
entitlement to indemnification shall have been made pursuant to
Section 9(a
) within 60 days
after receipt by the Company of the request for indemnification, (iv) payment of indemnification is
not made pursuant to
Section 5
or
6
or the last sentence of
Section 9(a
)
within 10 days after receipt by the Company of a written request therefor, or (v) payment of
indemnification pursuant to
Section 3
or
7
is not made within five days after a
determination has been delivered to the Board of Directors of the Company that Indemnitee is
entitled to indemnification, Indemnitee shall be entitled to apply to court for an adjudication of
his entitlement to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at
his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration Association. Indemnitee shall commence
such proceeding seeking an adjudication or an award in arbitration within 180 days following the
date on which Indemnitee first has the right to commence such proceeding pursuant to this
Section 11(a
);
provided
,
however
, that the foregoing clause shall not apply
in respect of a proceeding brought by Indemnitee to enforce his rights under
Section 4
.
The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in
arbitration.
(b) In the event that a determination shall have been made pursuant to
Section 9(a)
that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this
Section 11
shall be conducted in all respects as a
de novo
trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that
adverse determination. In any judicial proceeding or arbitration commenced pursuant to this
Section 11
, the Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to
Section 9(a
) that Indemnitee
is entitled to indemnification, the Company shall be bound by such determination in any judicial
proceeding or arbitration commenced pursuant to this
Section 11
, absent (i) a misstatement
by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) an
express prohibition of such indemnification under law.
(d) The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this
Section 11
that the procedures and presumptions of this Deed are
not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Deed. It is the intent of the
Company that the Indemnitee not be required to incur legal fees or other Expenses associated with
the interpretation,
6
enforcement or defense of Indemnitee’s rights under this Deed by litigation or otherwise
because the cost and expense thereof would substantially detract from the benefits intended to be
extended to the Indemnitee hereunder. The Company shall indemnify Indemnitee against any and all
Expenses and, if requested by Indemnitee, shall (within 10 days after receipt by the Company of a
written request therefor) advance, to the extent not expressly prohibited by law, such Expenses to
Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee
for indemnification or advance of Expenses from the Company under this Deed or under any directors’
and officers’ liability insurance policies maintained by the Company if, in the case of
indemnification, Indemnitee is wholly successful on the underlying claims and if Indemnitee is not
wholly successful on the underlying claims, then such indemnification shall be only to the extent
Indemnitee is successful on such underlying claims or otherwise as permitted by law, whichever is
greater.
(e) Notwithstanding anything in this Deed to the contrary, no determination as to entitlement
to indemnification under this Deed shall be required to be made prior to the final disposition of
the Proceeding, including any appeal therein.
12.
Non-Exclusivity; Survival of Rights; Insurance; Subrogation
.
(a) The rights of indemnification and to receive advancement of Expenses as provided by this
Deed shall not be deemed exclusive of, a substitute for, or to diminish or abrogate, any other
rights to which Indemnitee may at any time be entitled under law, the memorandum of association of
the Company, the Articles, any agreement (including any agreement between Indemnitee and any other
Enterprise), a vote of stockholders or a resolution of directors, or otherwise, and rights of
Indemnitee under this Deed shall supplement and be in furtherance of any other such rights. More
specifically, the parties intend that Indemnitee shall be entitled to (i) indemnification to the
maximum extent permitted by, and the fullest benefits allowable under, Irish law in effect at the
date hereof or as the same may be amended to the extent that such indemnification or benefits are
increased thereby, and (ii) such other benefits as are or may be otherwise available to Indemnitee
pursuant to this Deed, any other agreement or otherwise. The rights of Indemnitee hereunder shall
be a contract right and, as such, shall run to the benefit of Indemnitee. No amendment, alteration
or repeal of this Deed or of any provision hereof shall limit or restrict any right of Indemnitee
under this Deed in respect of any action taken or omitted by such Indemnitee in his Corporate
Status prior to such amendment, alteration or repeal. To the extent that a change in Irish law,
whether by statute or judicial decision, permits greater indemnification or advancement of Expenses
than would be afforded currently, including without limitation under the Articles and/or this Deed,
it is the intent of the parties hereto that Indemnitee shall enjoy by this Deed the greater
benefits so afforded by such change and this Deed shall be automatically amended to provide the
Indemnitee with such greater benefits. No right or remedy herein conferred is intended to be
exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other right or remedy. If
Indemnitee is entitled under any provision of this Deed to indemnification for some or a portion of
Expenses or other costs or expenses, including attorney’s fees and disbursements, but not, however,
for the total amount thereof, Indemnitee shall nevertheless be indemnified for the portion thereof
to which Indemnitee is entitled.
(b) To the extent that the Company (including any affiliates) maintains an insurance policy or
policies providing liability insurance for directors, secretaries, officers, executives, employees
or agents of the Company or of any other Enterprise, Indemnitee shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent of the coverage available for
any such director, secretary, officer, executive, employee or agent under such policy or policies
(notwithstanding any limitations regarding indemnification or advancement of Expenses hereunder and
whether or not the
7
Company would have the power to indemnify such person against such covered liability under
this Deed). If, at the time of the receipt of a notice of a claim pursuant to the terms hereof,
the Company has such liability insurance in effect, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such
Proceeding in accordance with the terms of such policies, including by bringing claims against the
insurers.
(c) In the event of any payment under this Deed, the Company shall be subrogated to the extent
of such payment to all of the rights of recovery of Indemnitee, who shall execute at the request of
the Company all papers required and take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to bring suit to enforce such
rights.
(d) The Company shall not be liable under this Deed to make any payment of amounts otherwise
indemnifiable hereunder or for which advancement of Expenses is provided hereunder if and to the
extent that Indemnitee has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise by or on behalf of the Company.
(e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is
or was serving at the request of the Company as a director, secretary, officer, executive, employee
or agent of any other Enterprise shall be reduced by any amount Indemnitee has actually received as
indemnification or advancement of Expenses from such other Enterprise.
13.
Duration of Deed
. This Deed shall continue until and terminate upon the later of
(a) 10 years after the date that Indemnitee shall have ceased to serve as a director, secretary,
officer or executive of the Company or other Enterprise or (b) one year after the final termination
of any Proceeding, including any appeal, then pending in respect of which Indemnitee is granted
rights of indemnification or advancement of Expenses hereunder and of any proceeding commenced by
Indemnitee pursuant to
Section 11
relating thereto.
14.
Successors and Assigns
. This Deed shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of Indemnitee and his heirs, executors and
administrators. The Company shall require and cause any successor (whether direct or indirect by
purchase, merger, consolidation or otherwise) to all, substantially all or a substantial part, of
the business and/or assets of the Company, by written agreement in form and substance satisfactory
to the Indemnitee, expressly to assume and agree to perform this Deed in the same manner and to the
same extent that the Company would be required to perform if no such succession had taken place.
Failure to comply with the foregoing shall be a breach of this Deed.
15.
Severability
. The parties intend that the rights granted under this Deed and the
obligations of the Company hereunder comply in all respects with the applicable Irish law,
including any limitations on indemnity or the ability for Indemnitee to request be excused for
negligence, default, breach of duty or breach of trust (however such limitations or rights may
exist from time to time under Irish law). If any provision or provisions of this Deed shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Deed (including without limitation, each
portion of any Section of this Deed containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law;
(b) such provision or provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the
fullest extent possible, the provisions of this Deed (including, without limitation, each portion
of any
8
Section of this Deed containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested thereby.
16.
Enforcement
.
(a) The Company expressly confirms and agrees that it has entered into this Deed and assumed
the obligations imposed on it hereby in order to induce Indemnitee to serve as a director,
secretary, officer or executive of the Company, and the Company acknowledges that Indemnitee is
relying upon this Deed in serving as a director, secretary, officer or executive of the Company.
(b) This Deed constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof;
provided
,
however
, that this Deed is a supplement to and in furtherance of the Articles, applicable
law and any applicable insurance maintained for the benefit of Indemnitee, and shall not be deemed
a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
17.
Modification and Waiver
. No supplement, modification or amendment, or wavier of
any provision, of this Deed shall be binding unless executed in writing by the parties thereto. No
waiver of any of the provisions of this Deed shall be deemed or shall constitute a waiver of any
other provisions of this Deed nor shall any waiver constitute a continuing waiver.
18.
Notice by Indemnitee
. Indemnitee agrees promptly to notify the Company in writing
upon being served with any summons, citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company shall
not relieve the Company of any obligation which it may have to the Indemnitee under this Deed or
otherwise.
19.
Notices
. All notices, requests, demands and other communications under this Deed
shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and
receipted for by the party to whom said notice or other communication shall have been directed, (b)
mailed by certified or registered mail with postage prepaid, on the third business day after the
date on which it is so mailed, (c) mailed by reputable overnight courier and receipted for by the
party to whom said notice or other communication shall have been directed or (d) sent by e-mail
facsimile transmission, with receipt of confirmation that such transmission has been received:
(a) If to Indemnitee, at such addresses as Indemnitee shall provide to the Company.
(b) If to the Company, to:
Willis Group Holdings Public Limited Company
c/o Willis of New York, Inc.
One World Financial Center
200 Liberty Street
New York, New York 10281
Attention: Group General Counsel
E-mail:
or to any other addresses as may have been furnished to Indemnitee by the Company.
9
20.
Contribution
. To the fullest extent permissible under law, if the indemnification
and/or advancement of Expenses provided for in this Deed is unavailable to Indemnitee for any
reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for Expenses, judgments, fines, liabilities, losses, damages,
excise taxes and/or amounts paid or to be paid in settlement, in connection with any claim relating
to an indemnifiable event under this Deed, in such proportion as is deemed fair and reasonable in
light of all of the circumstances of such Proceeding in order to reflect: (a) the relative benefits
received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving
cause to such Proceeding; and/or (b) the relative fault of the Company (and its directors,
secretaries, officers, executives, employees and agents) and Indemnitee in connection with such
event(s) and/or transaction(s).
21.
Representation and Warranty of the Company
. The Company represents and warrants
to Indemnitee that it has the absolute and unrestricted right, power and authority to execute and
deliver this Deed and to perform its obligations under this Deed.
22.
Applicable Law and Consent to Jurisdiction
. This Deed and the legal relations
among the parties shall be governed by, and construed and enforced in accordance with, the laws of
Ireland, without regard to its conflict of laws rules. Except with respect to any arbitration
commenced by Indemnitee pursuant to
Section 11(a
), the Company and Indemnitee hereby
irrevocably and unconditionally that any action or proceeding arising out of or in connection with
this Deed may be brought in any court in Ireland, the United States of America or the country of
residence of the Indemnitee or in any other court in which jurisdiction may be properly asserted.
The parties waive any objection to the laying of venue in Ireland, the United States of America or
the country of residence of the Indemnitee and waive, and agree not to plead or make, any claim
that any such action or proceeding brought in such places has been brought in an improper or
inconvenient forum.
23.
Third Party Beneficiaries
. Nothing in this Deed shall be construed for any
shareholder or creditor of the Company to be a third party beneficiary or to confer any such
persons beneficiary rights or status.
24.
Counterparts
. This Deed may be executed in one or more counterparts (including by
facsimile or .pdf), each of which shall for all purposes be deemed to be an original but all of
which together shall constitute one and the same Deed. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the existence of this
Deed.
25.
Headings
. The headings of the sections of this Deed are inserted for convenience
only and shall not be deemed to constitute part of this Deed or to affect the construction thereof.
(Remainder of page intentionally left blank)
10
The parties have caused this Deed to be signed as of the day and year first above written.
PRESENT when the COMMON SEAL of
WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY
was affixed hereto
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Director/Member of Sealing Committee
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Director/Secretary/Member of Sealing Committee
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11
Exhibit 10.21
FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this “
Agreement
”) is made as of
by
and between Willis North America Inc., a Delaware corporation (“
Willis US
”), and
(“
Indemnitee
”).
PRELIMINARY STATEMENTS
A. Willis Group Holdings Limited will effect a scheme of arrangement under Bermuda law (the
“
Scheme of Arrangement
”) pursuant to which the holders of common shares of Willis Group
Holdings Limited will become shareholders of Willis Group Holdings Public Limited Company, an Irish
public limited company (the “
Company
”).
B. The Company and Willis US desire to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Willis group of companies and provide for the
indemnification of, and advancement of expenses to, such persons to the maximum extent permitted by
law.
C. In addition to any rights granted the Indemnitee under the articles of association of the
Company (the “
Articles
”) or any agreement entered into between Indemnitee and the Company,
the parties desire to enter into this Agreement to provide for the indemnification of, and
advancement of expenses to, Indemnitee to the maximum extent permitted by law.
D. Willis US has requested that, at or following the Scheme of Arrangement, the Company
guarantee certain debt and take other actions for the benefit of Willis US. In partial
consideration therefor, Willis US has agreed to provide, from time to time after the Scheme of
Arrangement, indemnity and other rights to the members of the board of directors, secretaries,
officers and executives of the Company as well as to other persons.
AGREEMENT
In consideration of the premises and the covenants contained herein, of Indemnitee serving the
Company directly or, at Willis US and/or the Company’s request, with another Enterprise, and for
other good and valuable consideration, receipt of which is hereby acknowledged, and intending to be
legally bound hereby, the parties do hereby agree as follows:
1.
Services to the Company
. At the request of Willis US, Indemnitee has agreed to
serve as a director, secretary, officer or executive of the Company. Indemnitee may at any time
and for any reason resign from such position (subject to any other contractual obligation or any
obligation imposed by operation of law), in which event the Company shall have no obligation under
this Agreement to continue Indemnitee in such position. This Agreement shall not be deemed an
employment contract between the Company or Willis US (or any of their subsidiaries or any
Enterprise) and Indemnitee. The foregoing notwithstanding, this Agreement shall continue in force
after Indemnitee has ceased to serve in such capacity of the Company, subject to and in accordance
with
Section 16
.
2.
Definitions
. As used in this Agreement:
(a) “
Corporate Status
” describes the status of a person who is or was a director,
secretary, officer, executive, employee or agent of the Company or of any other Enterprise which
such person is or was serving at the request of Willis US and/or the Company.
(b) “
Enterprise
” shall mean the Company and any other corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the request of Willis US and/or the Company as a director,
secretary, officer, executive, employee, agent or fiduciary.
(c) “
Expenses
” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding. Expenses also shall include Expenses incurred in connection with
any appeal resulting from any Proceeding, including without limitation the premium, security for,
and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent
and matters contemplated by or arising under
Section 13(d)
. Expenses, however, shall not
include amounts paid in settlement by Indemnitee or the amount of judgments, fines, liabilities,
losses or damages against Indemnitee.
(d) “
Independent Counsel
” means a law firm, or a partner (or, if applicable, member)
of such a law firm, that is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent: (i) the Company, Willis US or Indemnitee in
any matter material to either such party (other than with respect to matters concerning the
Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements);
or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Company, Willis US or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. Willis US agrees to pay the reasonable fees and expenses
of the Independent Counsel referred to above and to fully indemnify such counsel against any and
all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(e) The term “
Proceeding
” shall include any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened or completed proceeding, whether brought in the right of
Willis US and/or the Company or otherwise and whether of a civil, criminal, administrative or
investigative nature, including any appeal therefrom, in which Indemnitee was, is or will be
involved as a party or otherwise by reason of the fact that Indemnitee is or was a director,
secretary, officer or executive of Willis US and/or the Company, by reason of any action or
inaction taken by him or of any action or inaction on his part while acting as director, secretary,
officer or executive of Willis US and/or the Company, or by reason of the fact that he is or was
serving at the request of Willis US and/or the Company as a director, secretary, officer,
executive, employee or agent of another Enterprise, in each case whether or not serving in such
capacity at the time any liability or expense is incurred for which indemnification, reimbursement,
or advancement of expenses can be provided under this Agreement;
provided
,
however
,
other than with respect to a Proceeding in connection with, or arising under, this Agreement with
respect to the matters contemplated by or arising under
Section 13(d)
, that the term
“Proceeding” shall not include any action, suit or arbitration initiated by Indemnitee to enforce
Indemnitee’s rights under this Agreement.
3.
Indemnity in Third-Party Proceedings
. Willis US shall indemnify Indemnitee in
accordance with the provisions of this
Section 3
if Indemnitee is, or is threatened to be
made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of
the Company or Willis US to procure a judgment in its favor. Pursuant to this
Section 3
,
Indemnitee shall be indemnified against all Expenses, judgments, fines, liabilities, losses,
damages and amounts paid in settlement actually and
2
reasonably incurred by Indemnitee or on his behalf in connection with such Proceeding or any
claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company and, in the case of a
criminal proceeding, had no reasonable cause to believe that his conduct was unlawful. Indemnitee
shall not enter into any settlement in connection with a Proceeding without 10 days prior notice to
Willis US.
4.
Indemnity in Proceedings by or in the Right of the Company or Willis US
. Willis US
shall indemnify Indemnitee in accordance with the provisions of this
Section 4
if
Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in
the right of the Company or Willis US to procure a judgment in its favor. Pursuant to this
Section 4
, Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company. No indemnification for Expenses shall be made under
this
Section 4
in respect of any claim, issue or matter as to which Indemnitee shall have
been finally adjudged by a court to be liable to the Company, unless and only to the extent that
the Delaware Court of Chancery (the “
Delaware Court
”) or any court in which the Proceeding
was brought shall determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnification for such Expenses as the Delaware Court or such other court shall deem proper.
5.
Indemnification for Expenses of a Party Who is Wholly or Partly Successful
.
Notwithstanding any other provisions of this Agreement, to the extent that Indemnitee is a party to
or a participant in and is successful, on the merits or otherwise, in any Proceeding or in defense
of any claim, issue or matter therein, in whole or in part, Willis US shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by him in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, Willis
US shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf in connection with (a) each successfully resolved claim, issue or matter and (b) any
claim, issue or matter related to any such successfully resolved claim, issue or matter. For
purposes of this Section and without limitation, the termination of any claim, issue or matter in
such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter. This provision is in addition to, and not by way of
limitation of, any other rights of Indemnitee hereunder.
6.
Indemnification For Expenses of a Witness
. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness in
any Proceeding to which Indemnitee is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection therewith.
7.
Additional Indemnification
.
(a) Notwithstanding any limitation in
Sections 3
,
4
, or
5
, Willis US
shall indemnify Indemnitee to the fullest extent permitted by law if Indemnitee is a party to or is
threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the
Company or Willis US to procure a judgment in its favor) against all Expenses, judgments, fines,
liabilities, losses, damages and amounts paid in settlement actually and reasonably incurred by
Indemnitee in connection with the Proceeding.
(b) For purposes of
Section 7(a
), the meaning of the phrase “
to the fullest extent
permitted by law
” shall include, but not be limited to:
3
(i) to the fullest extent permitted by the provisions of Delaware General Corporation Law (the
“
DGCL
”) that authorize, permit or contemplate additional indemnification by agreement,
court action or the corresponding provision of any amendment to or replacement of the DGCL or such
provisions thereof;
(ii) to the fullest extent permitted by the provisions of the Articles that authorize, permit
or contemplate additional indemnification by agreement, court action or the corresponding provision
of any amendment to or replacement of the Articles or such provisions thereof;
(iii) to the fullest extent permitted by the provisions of Irish law that authorize, permit or
contemplate additional indemnification by agreement, court action or the corresponding provision of
any amendment to or replacement of Irish law or such provisions thereof; and
(iv) to the fullest extent authorized or permitted by any amendments to or replacements of the
DGCL or Irish law (or such successor law), Articles or agreement or court action adopted, entered
into or that are adjudicated after the date of this Agreement that increase the extent to which a
company may indemnify its directors, secretaries, officers and executives.
8.
Exclusions
. Notwithstanding any provision in this Agreement to the contrary,
Willis US shall not be obligated under this Agreement to make any payment pursuant to this
Agreement:
(a) for which payment has actually been made to or on behalf of Indemnitee by or on behalf of
Willis US or the Company under any insurance policy or other indemnity provision, except with
respect to any excess beyond the amount paid under any insurance policy or other indemnity
provision;
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of the U.S. Securities
Exchange Act of 1934, as amended, or any successor provision or similar provisions of state
statutory law or common law; or
(c) for which payment is expressly prohibited by Delaware law.
These exclusions shall not limit the right to advancement of Expenses under
Section 9
or
otherwise under this Agreement pending the outcome of any Proceeding unless such advancement of
Expenses is expressly prohibited by Delaware law. Notwithstanding the foregoing, this provision
shall not limit Indemnitee’s obligation to repay Expenses as expressly contemplated elsewhere in
this Agreement or as otherwise expressly required by Delaware law.
9.
Advances of Expenses
. Willis US shall advance, to the extent not expressly
prohibited by law, the Expenses incurred by Indemnitee in connection with any Proceeding, and such
advancement shall be made within five days after the receipt by Willis US of a statement or
statements requesting such advances (which shall include invoices received by Indemnitee in
connection with such Expenses but, in the case of invoices in connection with legal services, any
references to legal work performed or to expenditures made that would cause Indemnitee to waive any
privilege accorded by law shall not be included with the invoice) from time to time, whether prior
to or after final disposition of any Proceeding. Advances shall be unsecured and interest free.
Advances shall be made without regard to Indemnitee’s ability to repay the expenses and without
regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this
Agreement. Advances shall include any and all reasonable Expenses incurred pursuing an action to
enforce this right of advancement and to enforce Indemnitee’s rights generally under this
Agreement, including Expenses incurred preparing and forwarding statements to Willis US to support
the advances claimed. The Indemnitee shall qualify for advances upon the execution
4
and delivery to Willis US of this Agreement which shall constitute an undertaking providing
that the Indemnitee undertakes to the extent required by law to repay the advance of Expenses if
and to the extent that it is ultimately determined by a court of competent jurisdiction in a final
judgment, not subject to appeal, or other competent authority or arbitrator that Indemnitee is not
entitled to be indemnified by Willis US. This
Section 9
shall not apply to any claim made
by Indemnitee for which indemnity is excluded pursuant to
Section 8
following the ultimate
determination by a court of competent jurisdiction in a final judgment, not subject to appeal, or
other competent authority or arbitrator. The right to advances under this paragraph shall in all
events continue until final disposition of any Proceeding, including any appeal therein. For the
avoidance of doubt, the provisions of
Section 11
shall not apply to advancement of Expenses
as contemplated by this
Section 9
.
10.
Procedure for Notification and Defense of Claim
.
(a) To obtain indemnification under this Agreement or advancement of Expenses or other costs
or expenses, including attorney’s fees and disbursements, contemplated hereby, Indemnitee shall
submit to Willis US a written request therefor.
(b) Willis US will be entitled to participate in the Proceeding at its own expense.
11.
Procedure Upon Application for Indemnification
.
(a) Willis US shall promptly provide the indemnification rights and undertake related
obligations contemplated by this Agreement. If Willis US concludes, on written advice of counsel,
that a determination with respect to Indemnitee’s entitlement to indemnification, in the specific
case, is required by law, then Willis US shall immediately notify Indemnitee in writing. Promptly
thereafter, the board of directors of Willis US or, if requested by Indemnitee within
10 days after receipt of such written notice, Independent Counsel shall make a determination with
respect to Indemnitee’s entitlement to indemnification. If such determination is made by
Independent Counsel, it shall be in a written statement to the board of directors of Willis US, a
copy of which shall be delivered to Indemnitee. If it is so determined that Indemnitee is entitled
to indemnification, payment to Indemnitee shall be made within five days after such statement is
delivered. Indemnitee shall cooperate with the Independent Counsel making such determination with
respect to Indemnitee’s entitlement to indemnification, including providing to such counsel upon
reasonable advance request any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary
to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred
by Indemnitee in so cooperating with the Independent Counsel shall be borne by Willis US
(irrespective of the determination as to Indemnitee’s entitlement to indemnification) and Willis US
hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) The Independent Counsel shall be selected by Indemnitee and notified in writing to Willis
US. Willis US may, within three days after written notice of such selection, deliver to the
Indemnitee a written objection to such selection;
provided
,
however
, that such
objection may be asserted only on the ground that the Independent Counsel so selected does not meet
the requirements of “Independent Counsel” as defined in
Section 2
, and the objection shall
set forth with particularity the factual basis of such assertion. Absent a proper and timely
objection, the person so selected shall act as Independent Counsel. If such written objection is
so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel
unless and until such objection is withdrawn or a court has determined that such objection is
without merit. If, within 10 days after the later of submission by Indemnitee of a written request
for indemnification pursuant to
Section 10(a
), and the final disposition of
5
the Proceeding, including any appeal therein, no Independent Counsel shall have been selected
and not objected to, the Indemnitee may petition a court of competent jurisdiction for resolution
of any objection which shall have been made by Willis US to the selection of Independent Counsel
and/or for the appointment as Independent Counsel of a person selected by the court or by such
other person as the court shall designate, and the person with respect to whom all objections are
so resolved or the person so appointed shall act as Independent Counsel under
Section
11(a
). Upon the due commencement of any judicial proceeding or arbitration pursuant to
Section 13(a
), Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of professional conduct then
prevailing).
12.
Presumptions and Effect of Certain Proceedings
.
(a) In making a determination with respect to such entitlement to indemnification hereunder,
the Independent Counsel making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for indemnification in
accordance with
Section 10(a
), and Willis US shall have the burden of proof to overcome
that presumption in connection with the making by the Independent Counsel of any determination
contrary to that presumption. Neither the failure of Willis US or of Independent Counsel to have
made a determination prior to the commencement of any action pursuant to this Agreement that
indemnification is proper in the circumstances because Indemnitee has met the applicable standard
of conduct, nor an actual determination by Willis US or by Independent Counsel that Indemnitee has
not met such applicable standard of conduct, shall be a defense to the action or create a
presumption that Indemnitee has not met the applicable standard of conduct.
(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of guilty,
nolo contendere
or its equivalent, shall
not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right
of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to
believe that his conduct was unlawful.
(c) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith if Indemnitee’s action or inaction is based on the records or books of account of the
Enterprise, including financial statements, or on information supplied to Indemnitee by the
officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the
Enterprise or the board of directors of Willis US or counsel selected by any committee of the board
of directors of Willis US or on information or records given or reports made to the Enterprise by
an independent certified public accountant or by an appraiser, investment banker or other expert
selected with reasonable care by Willis US or the board of directors of Willis US or any committee
of the board of directors of Willis US. The provisions of this
Section 12(c
) shall not be
deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may
be deemed to have met the applicable standard of conduct set forth in this Agreement.
(d) The knowledge and/or actions, or failure to act, of any director, secretary, officer,
executive, employee or agent of the Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
6
13.
Remedies of Indemnitee
.
(a) Subject to
Section 13(e
), in the event that (i) a determination is made pursuant
to
Section 11
that Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to
Section 9
, (iii) no determination of
entitlement to indemnification shall have been made pursuant to
Section 11(a
) within 60
days after receipt by Willis US of the request for indemnification, (iv) payment of indemnification
is not made pursuant to
Section 5
or
6
or the last sentence of
Section
11(a
) within 10 days after receipt by Willis US of a written request therefor, or (v) payment
of indemnification pursuant to
Section 3
,
4
or
7
is not made within five
days after a determination has been delivered to the Board of Directors of Willis US that
Indemnitee is entitled to indemnification, Indemnitee shall be entitled to apply to court for an
adjudication of his entitlement to such indemnification or advancement of Expenses. Alternatively,
Indemnitee, at his option, may seek an award in arbitration to be conducted by a single arbitrator
pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee
shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days
following the date on which Indemnitee first has the right to commence such proceeding pursuant to
this
Section 13(a
);
provided
,
however
, that the foregoing clause shall not
apply in respect of a proceeding brought by Indemnitee to enforce his rights under
Section
5
. Neither the Company nor Willis US shall oppose Indemnitee’s right to seek any such
adjudication or award in arbitration.
(b) In the event that a determination shall have been made pursuant to
Section 11(a)
that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this
Section 13
shall be conducted in all respects as a
de novo
trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that
adverse determination. In any judicial proceeding or arbitration commenced pursuant to this
Section 13
, Willis US shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to
Section 11(a
) that Indemnitee
is entitled to indemnification, Willis US shall be bound by such determination in any judicial
proceeding or arbitration commenced pursuant to this
Section 13
, absent (i) a misstatement
by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) an
express prohibition of such indemnification under law.
(d) Willis US shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this
Section 13
that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall stipulate in any such court or before
any such arbitrator that the Willis US is bound by all the provisions of this Agreement. It is the
intent of Willis US that the Indemnitee not be required to incur legal fees or other Expenses
associated with the interpretation, enforcement or defense of Indemnitee’s rights under this
Agreement by litigation or otherwise because the cost and expense thereof would substantially
detract from the benefits intended to be extended to the Indemnitee hereunder. Willis US shall
indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within 10
days after receipt by Willis US of a written request therefor) advance, to the extent not expressly
prohibited by law, such Expenses to Indemnitee, which are incurred by Indemnitee in connection with
any action brought by Indemnitee for indemnification or advance of Expenses from Willis US under
this Agreement or under any directors’ and officers’ liability insurance policies maintained by the
Company if, in the case of indemnification, Indemnitee is wholly successful on the underlying
claims and if Indemnitee is not wholly successful on the underlying claims, then such
indemnification shall be only to the extent Indemnitee is successful on such underlying claims or
otherwise as permitted by law, whichever is greater.
7
(e) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding, including any appeal therein.
(f) To the extent that Willis US is unable to pay any amounts for indemnification or
advancement of Expenses hereunder, Indemnitee may pursue any other company in the Willis group to
receive such indemnification or advancement of Expenses.
14.
Assumption of Indemnification Obligations of Willis Group Holdings Limited
. In
addition to all other obligations hereunder and without limiting any rights of Indemnitee
hereunder, Willis US expressly agrees to, and hereby assumes, all indemnification, advancement of
Expenses and/or similar obligations of Willis Group Holdings Limited to Indemnitee in existence
immediately prior to the effectiveness of the Scheme of Arrangement pursuant to, and upon the terms
of, the provisions set forth in the bye-laws of Willis Group Holdings Limited as then in effect and
applicable and without regard to whether such provisions thereafter change or Willis Group Holdings
Limited is thereafter liquidated, dissolved or otherwise ceases to exist.
15.
Non-Exclusivity; Survival of Rights; Insurance; Subrogation
.
(a) The rights of indemnification and to receive advancement of Expenses as provided by this
Agreement shall not be deemed exclusive of, a substitute for, or to diminish or abrogate, any other
rights to which Indemnitee may at any time be entitled under law, the memorandum of association of
the Company, the Articles, any agreement (including any agreement between Indemnitee and any other
Enterprise), a vote of stockholders or a resolution of directors, or otherwise, and rights of
Indemnitee under this Agreement shall supplement and be in furtherance of any other such rights.
More specifically, the parties intend that Indemnitee shall be entitled to (i) indemnification to
the maximum extent permitted by, and the fullest benefits allowable under, Delaware law in effect
at the date hereof or as the same may be amended to the extent that such indemnification or
benefits are increased thereby, and (ii) such other benefits as are or may be otherwise available
to Indemnitee pursuant to this Agreement, any other agreement or otherwise. The rights of
Indemnitee hereunder shall be a contract right and, as such, shall run to the benefit of
Indemnitee. No amendment, alteration or repeal of this Agreement or of any provision hereof shall
limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or
omitted by such Indemnitee in his Corporate Status prior to such amendment, alteration or repeal.
To the extent that a change in Delaware law, whether by statute or judicial decision, permits
greater indemnification or advancement of Expenses than would be afforded currently, including
without limitation under the Articles and/or this Agreement, it is the intent of the parties hereto
that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change and
this Agreement shall be automatically amended to provide the Indemnitee with such greater benefits.
No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and
every other right and remedy shall be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or remedy. If Indemnitee is entitled under any provision
of this Agreement to indemnification for some or a portion of Expenses or other costs or expenses,
including attorney’s fees and disbursements, but not, however, for the total amount thereof,
Indemnitee shall nevertheless be indemnified for the portion thereof to which Indemnitee is
entitled.
(b) To the extent that Willis US or the Company (including any affiliates) maintains an
insurance policy or policies providing liability insurance for directors, secretaries, officers,
executives, employees or agents of the Company or of any other Enterprise, Indemnitee shall be
covered by such policy or policies in accordance with its or their terms to the maximum extent of
the coverage available
8
for any such director, secretary, officer, executive, employee or agent under such policy or
policies (notwithstanding any limitations regarding indemnification or advancement of Expenses
hereunder and whether or not Willis US or the Company would have the power to indemnify such person
against such covered liability under this Agreement). If, at the time of the receipt of a notice of
a claim pursuant to the terms hereof, Willis US or the Company has such liability insurance in
effect, Willis US shall give prompt notice of the commencement of such proceeding to the insurers
in accordance with the procedures set forth in the respective policies. Willis US and the Company
shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of
the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of
such policies, including by bringing claims against the insurers.
(c) In the event of any payment under this Agreement, the Company and Willis US shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall
execute at the request of Willis US all papers required and take all action necessary to secure
such rights, including execution of such documents as are necessary to enable the Company and/or
Willis US to bring suit to enforce such rights.
(d) Willis US shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder or for which advancement of Expenses is provided hereunder if and
to the extent that Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise by or on behalf of Willis US or the Company.
(e) Willis US’ obligation to indemnify or advance Expenses hereunder to Indemnitee who is or
was serving at the request of the Company as a director, secretary, officer, executive, employee or
agent of any other Enterprise shall be reduced by any amount Indemnitee has actually received as
indemnification or advancement of Expenses from such other Enterprise.
16.
Duration of Agreement
. This Agreement shall continue until and terminate upon the
later of (a) 10 years after the date that Indemnitee shall have ceased to serve at the request of
Willis US and/or the Company as a director, secretary, officer or executive of the Company or other
Enterprise or (b) one year after the final termination of any Proceeding, including any appeal,
then pending in respect of which Indemnitee is granted rights of indemnification or advancement of
Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 13
relating thereto.
17.
Successors and Assigns
. This Agreement shall be binding upon Willis US and its
successors and assigns and shall inure to the benefit of Indemnitee and his heirs, executors and
administrators. Willis US and the Company shall require and cause any successor (whether direct or
indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a
substantial part, of the business and/or assets of Willis US or the Company, by written agreement
in form and substance satisfactory to the Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that Willis US would be required to perform if
no such succession had taken place. Failure to comply with the foregoing shall be a breach of this
Agreement.
18.
Severability
. If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including without limitation, each
portion of any Section of this Agreement containing any such provision held to be invalid, illegal
or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law;
(b) such provision or provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the
fullest extent possible, the provisions of this Agreement
9
(including, without limitation, each portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested thereby.
19.
Enforcement
.
(a) Willis US expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director,
secretary, officer or executive of the Company, and Willis US acknowledges that Indemnitee is
relying upon this Agreement in serving as a director, secretary, officer or executive of the
Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof;
provided
,
however
, that this Agreement is a supplement to and in furtherance of any obligations of
Willis Group Holdings Limited, the Articles, applicable law, agreements or deeds with the Company
or any other Enterprise and any applicable insurance maintained for the benefit of Indemnitee, and
shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder. In the event of a conflict between this Agreement and any agreement or deed between
the Company and Indemnitee, the agreement or deed (or provision thereof), as applicable, granting
Indemnitee the greatest legally enforceable rights shall prevail.
20.
Modification and Waiver
. No supplement, modification or amendment, or wavier of
any provision, of this Agreement shall be binding unless executed in writing by the parties
thereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions of this Agreement nor shall any waiver constitute a continuing
waiver.
21.
Notice by Indemnitee
. Indemnitee agrees promptly to notify Willis US in writing
upon being served with any summons, citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder. The failure of Indemnitee to so notify Willis US shall
not relieve Willis US of any obligation which it may have to the Indemnitee under this Agreement or
otherwise.
22.
Notices
. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand
and receipted for by the party to whom said notice or other communication shall have been directed,
(b) mailed by certified or registered mail with postage prepaid, on the third business day after
the date on which it is so mailed, (c) mailed by reputable overnight courier and receipted for by
the party to whom said notice or other communication shall have been directed or (d) sent by e-mail
or facsimile transmission, with receipt of confirmation that such transmission has been received:
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(a)
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If to Indemnitee, at such addresses as Indemnitee shall provide to Willis US.
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(b)
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If to Willis US, to:
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Willis North America, Inc.
26 Century Boulevard
Nashville, Tennessee 37214
Attention:
E-mail:
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10
or to any other addresses as may have been furnished to Indemnitee by Willis US.
23.
Contribution
. To the fullest extent permissible under law, if the indemnification
and/or advancement of Expenses provided for in this Agreement is unavailable to Indemnitee for any
reason whatsoever, Willis US, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for Expenses, judgments, fines, liabilities, losses, damages,
excise taxes and/or amounts paid or to be paid in settlement, in connection with any claim relating
to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable
in light of all of the circumstances of such Proceeding in order to reflect: (a) the relative
benefits received by Willis US or the Company and Indemnitee as a result of the event(s) and/or
transaction(s) giving cause to such Proceeding; and/or (b) the relative fault of Willis US or the
Company (and its directors, secretaries, officers, executives, employees and agents) and Indemnitee
in connection with such event(s) and/or transaction(s).
24.
Applicable Law and Consent to Jurisdiction
. This Agreement and the legal
relations among the parties shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, without regard to its conflict of laws rules. Except with
respect to any arbitration commenced by Indemnitee pursuant to
Section 13(a
), Willis US and
Indemnitee hereby irrevocably and unconditionally (a) agree that any action or proceeding arising
out of or in connection with this Agreement shall be brought only in the Delaware Court, and not in
any other state or federal court in the United States of America or any court in any other country,
(b) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any
action or proceeding arising out of or in connection with this Agreement, (c) appoint, to the
extent such party is not otherwise subject to service of process in the State of Delaware, The
Corporation Trust Company, Wilmington, Delaware as its agent in the State of Delaware as such
party’s agent for acceptance of legal process in connection with any such action or proceeding
against such party with the same legal force and validity as if served upon such party personally
within the State of Delaware, (d) waive any objection to the laying of venue of any such action or
proceeding in the Delaware Court, and (e) waive, and agree not to plead or to make, any claim that
any such action or proceeding brought in the Delaware Court has been brought in an improper or
inconvenient forum.
25.
Third Party Beneficiaries
. Nothing in this Agreement shall be construed for any
shareholder or creditor of the Company to be a third party beneficiary or to confer any such
persons beneficiary rights or status.
26.
Counterparts
. This Agreement may be executed in one or more counterparts
(including by facsimile or .pdf), each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement. Only one such counterpart
signed by the party against whom enforceability is sought needs to be produced to evidence the
existence of this Agreement.
27.
Headings
. The headings of the sections of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
(Remainder of page intentionally left blank)
11
The parties have caused this Agreement to be signed as of the day and year first above written.
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WILLIS NORTH AMERICA INC.
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By:
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Name:
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Title:
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INDEMNITEE
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By:
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Name:
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12
