As filed with the Securities and Exchange Commission on May 1, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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ARTHUR J. GALLAGHER & CO.
(Exact name of registrant as specified in its charter)
Delaware 36-2151613
(State or other (I.R.S.
jurisdiction of Employer Identification
incorporation or Number)
organization)
Two Pierce Place, Itasca, Illinois 60143-3141, (630) 773-3800
(Address, including zip code and telephone number, including area code, of
registrant's principal executive offices)
ARTHUR J. GALLAGHER & CO.
1988 NONQUALIFIED STOCK OPTION PLAN
ARTHUR J. GALLAGHER & CO.
1989 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plans)
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JOHN C. ROSENGREN, ESQ.
Vice President and General Counsel
Arthur J. Gallagher & Co.
Two Pierce Place
Itasca, Illinois 60143-3141
(630) 773-3800
(Name, address, including zip code and telephone number, including area code,
of agent for service)
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Please Send Copies of All Communications to:
KURT W. FLORIAN, JR., ESQ.
Katten Muchin Zavis Rosenman
525 West Monroe Street, Suite 1600
Chicago, Illinois 60661-3693
(312) 902-5200
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum
to be Offering Price Aggregate Amount of
Title of Securities to be Registered Registered Per Share Offering Price Registration Fee
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Common Stock, par value
$1.00 per share............. 3,300,000(a) $35.00(b) $115,500,000 $10,626.00
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(a) Includes such indeterminant number of shares as may be issuable by reason
of the operation of the anti-dilution provisions of the Plans.
(b) Estimated in accordance with Rule 457(c) solely for the purpose of
computing the registration fee on the basis of the average of the high and
low prices quoted for the Registrant's Common Stock, as reported on the
consolidated transaction reporting system for securities listed on the New
York Stock Exchange on April 29, 2002.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference
is considered to be part of this registration statement, and the information
that we file later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents and information
listed below:
(1) Our Annual Report on Form 10-K for the fiscal year ended December 31,
2001, filed on March 22, 2002.
(2) The description of our common stock contained in Form 8-A (registration
no. 0-13480), which incorporates by reference our registration statement
on Form S-1 (registration no. 2-89195), and the description of common
share purchase rights currently attached to the common stock contained
in Form 8-A (registration no. 0-13480) filed with the SEC on May 12,
1987 and in Current Report on Form 8-K (registration no. 0-13480) filed
with the SEC on May 18, 1987.
In addition, this registration statement incorporates by reference any
future filings we will make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 from the date of the initial
filing of the registration statement until the termination of the offering.
Information in this registration statement supersedes related information in
the documents listed above and information in subsequently filed documents
supersedes related information in both this registration statement and the
incorporated documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
For the purpose of this offering, our General Counsel, John C. Rosengren,
Esq., is providing an opinion on the validity of the shares. Mr. Rosengren
holds options to purchase 72,200 shares.
Item 6. Indemnification of Directors and Officers.
Article Seventh of our By-laws and Article Thirteenth of our Restated
Certificate of Incorporation provide for indemnification of each of our
directors, officers, employees or agents to the fullest extent permitted by
the Delaware General Corporation Law.
Article Seventh of our By-laws provides that we shall indemnify any
person in connection with any action, suit, or proceeding brought or
threatened by reason of the fact that he or she is or was one of our
directors, officers, employees or agents, or is or was serving at our
request as a director, officer, employee or agent of another enterprise,
against all costs actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed
to our best interests, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was
unlawful. Similar indemnity is permitted to be
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provided to such persons in connection with an action or suit by us or in
our right, and provided further that such person shall not have been
adjudged liable for negligence or misconduct in the performance of his or
her duty to us, unless, in view of all the circumstances of the case, the
court in which the action or suit was brought determines that such person
despite the adjudication of liability is fairly and reasonably entitled to
indemnity for such expenses.
Article Thirteenth of our Restated Certificate of Incorporation
eliminates the liability of our directors for monetary damages for breach of
fiduciary duty as a director except where a director breaches his or her
duty of loyalty to us and our stockholders, fails to act in good faith or
engages in intentional misconduct or a knowing violation of law, authorizes
the payment of a dividend or stock repurchase which is illegal under Section
174 of the Delaware General Corporation Laws or obtains an improper personal
benefit.
We also maintain and pay premiums on a directors' and officers' liability
insurance policy and have entered into an indemnity agreement with each of
our directors and officers. The provisions of the indemnity agreement alter
or clarify the statutory indemnity in the following respects: (1) indemnity
will be explicitly provided for settlements in derivative actions; (2)
prompt payment of litigation expenses will be provided in advance of
indemnification; (3) prompt indemnification of advances of expenses will be
provided unless a determination is made that the director or officer has not
met the required standard; (4) the director or officer will be permitted to
petition a court to determine whether his actions meet the standards
required; and (5) partial indemnification will be permitted in the event
that the director or officer is not entitled to full indemnification. In
addition, the indemnity agreement specifically includes indemnification with
respect to actions, suits or proceedings brought under and/or predicated
upon the Securities Act of 1933 and/or the Securities Exchange Act of 1934.
The preceding summary is qualified in its entirety by our Restated
Certificate of Incorporation, By-laws and the indemnity agreement.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Refer to "Index to Exhibits" on Page II-5 of this registration statement.
Item 9. Undertakings.
We hereby undertake as follows:
(1) To file, during any period in which any offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) may be reflected in the form of a prospectus filed with the
SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement.
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(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant
to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the SEC
such indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Arthur J.
Gallagher & Co. certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Itasca and State of Illinois, on the 30th day
of April, 2002.
ARTHUR J. GALLGHER & CO.
/S/ J. PATRICK GALLAGHER, JR.
By_________________________________
J. Patrick Gallagher, Jr.
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-8 has been signed below on April 30, 2002 by
the following persons in the capacities indicated.
Signature Title
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/S/ ROBERT E. GALLAGHER* Chairman and Director
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Robert E. Gallagher
/S/ J. PATRICK GALLAGHER, JR. President and Director (Chief
------------------------------ Executive Officer)
J. Patrick Gallagher, Jr.
/S/ MICHAEL J. CLOHERTY Executive Vice President and
------------------------------ Director (Chief Financial
Michael J. Cloherty Officer)
/S/ RICHARD C. CARY Controller (Chief Accounting
------------------------------ Officer)
Richard C. Cary
/S/ JAMES J. BRANIFF III* Director
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James J. Braniff III
/S/ T. KIMBALL BROOKER* Director
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T. Kimball Brooker
/S/ GARY P. COUGHLAN* Director
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Gary P. Coughlan
/S/ JAMES W. DURKIN, JR.* Director
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James W. Durkin, Jr.
/S/ ILENE S. GORDON* Director
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Ilene S. Gordon
/S/ DAVID E. MCGURN, JR.* Director
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David E. McGurn, Jr.
/S/ RICHARD J. MCKENNA* Director
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Richard J. McKenna
/S/ ROBERT RIPP* Director
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Robert Ripp
/S/ JAMES R. WIMMER* Director
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James R. Wimmer
/S/ JOHN C. ROSENGREN
*By: ________________________________________________________________________
John C. Rosengren
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit
Number Description
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*5.0 Opinion of John C. Rosengren, our Vice President and General Counsel, including consent.
*23.1 Consent of Ernst & Young LLP, as independent auditors.
23.2 Consent of John C. Rosengren, our Vice President and General Counsel, included in Exhibit 5.0.
*24.0 Powers of Attorney.
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* Filed herewith.
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