EX-10.1



 





Exhibit 10.1




W. R. BERKLEY CORPORATION




DEFERRED COMPENSATION PLAN FOR OFFICERS




AS AMENDED AND RESTATED DECEMBER 3, 2007




Section 1. Effective Date





This Plan was created as a spin-off from the W. R. Berkley Corporation Deferred Compensation
Plan for Officers, as adopted September 1, 1986, and subsequently amended effective on
January 1, 1989, January 1, 1991, and January 1, 2004 (the “Prior Plan”). On December 3,
2007, the Plan was amended and restated for purposes of complying with Section 409A of the
Internal Revenue Code of 1986, as amended (“Section 409A”). The Plan, as so amended and
restated, shall apply only to amounts deferred with respect to calendar years 2005 and
thereafter, and the Prior Plan shall govern all prior deferrals.



Section 2. Eligibility





Any officer of W. R. Berkley Corporation (the “Company”), or any President or Executive Vice
President of any subsidiary or any officer of any subsidiary whose base salary is greater than or
equal to $130,000, is eligible to participate in the Plan.



Section 3. Amount of Deferral





Prior to the beginning of each calendar year, a Participant may elect to defer receipt of:




(a) all or a portion of the Bonus Pay Compensation payable to the Participant for that
year;




(b) all or a portion of the Base Salary of the Participant for that year;




                              and/or




(c) all or part of the Profit Sharing Excess Contributions (as defined below). For the
purposes hereof, a Participant’s “Profit Sharing Excess Contributions” for any year means
the excess of (a) the contributions that would be made by the Company to the W. R.
Berkley Corporation Profit Sharing Plan (the “Profit Plan”) on behalf of the Participant
for such year (exclusive of any pre-tax (401(k)) contributions), without taking into
account the Profit Plan’s limitations on a participant’s earnings and maximum annual
additions under Sections 401(a) (17) and 415 of the Internal Revenue Code, over (b) the
actual amount of Company contributions (exclusive of pre-tax (401(k)) contributions)
allocated to the Participant under the Profit Plan for such year.




All amounts deferred will be classified as “Deferred Compensation”.



 









 





Section 4. Type of Plan





The Plan is a non-qualified voluntary deferred compensation type of plan.



Section 5. Funding





The Company will not fund the amount of any Participant’s Deferred Compensation. The amount
of Deferred Compensation is secured only by the Company’s promise to pay it from the assets of the
Company



Section 6. Investment Income





A reasonable rate of interest will be credited to a Participant’s account, from the date of
the deferral, and will be compounded quarterly. The interest rate will be established by
the Compensation Committee of the Board of Directors prior to the beginning of each year.



Section 7. Deferral Period





A Participant may elect to defer his/her Bonus Pay Compensation and/or his/her Base Salary
and/or his/her Excess Profit Sharing Contribution until the earlier of (a) a specified year
in the future and (b) his/her “separation from service” with the Company (as such term is
defined in Treasury Regulation § 1.409A-1(h) and hereinafter referred to as a “Separation
from Service”) (or if such Participant is a “specified employee” (as such term is defined in
Treasury Regulation § 1.409A-1(i)), the six-month anniversary of such Separation from
Service). The actual payment will be made or will commence within sixty days after the date
specified or the actual date of Separation from Service, or if applicable, after the
six-month anniversary of such Separation from Service.



Section 8. Form of Payment





A Participant may elect to receive his/her Deferred Compensation under the Plan in either a
lump sum or in annual installments (not to exceed five), as specified by the Participant at the
time the election to defer is made.



Section 9. Death Prior to Receipt





In the event that a Participant dies prior to receipt of any or all of the amounts payable
to him/her pursuant to this Plan, any amounts that are then credited as Deferred
Compensation will be paid to his/her designated beneficiary in a lump sum within sixty days
following the Company’s notification of the Participant’s death. Such payment shall be made
no later than the later of (i) the last day of the year in which death occurred and (ii) the
15th day of the third calendar month following the date of such death. In the event the
Company is not notified of the Participant’s death at least sixty (60) days prior to the
later of such dates, the Participant’s Deferred Compensation hereunder shall continue to be
paid in accordance with Sections 7 and 8 hereof. The Participant (or his/her designated
beneficiary or estate) shall not be permitted, directly or indirectly, to designate the
taxable year of the payment.



 









 






At the time the election to defer is made, a Participant may designate a beneficiary under
this Plan. The Participant may change the beneficiary by writing to the General Counsel of
the Company. If a beneficiary is not named, the value of the Participant’s Deferred
Compensation Account will be paid to his/her estate.



Section 10. Effect of Election





An election to defer Compensation for any year will be irrevocable once the term to which it
applies has commenced, and can be revoked only due to an “unforeseeable emergency” (as such
term is defined in Treasury Regulation § 1.409A-3(i)(3)), as determined by the Compensation
Committee of the Board of Directors of the Company.



Section 11. Participant’s Rights Unsecured





The right of any Participant to receive future payments under the provisions of the Plan
will be an unsecured contractual claim against the general assets of the Company. The Plan
will not be funded. The Company will not be required to establish any special or separate
fund or to make any segregation of assets to assure the payment of any amounts under the
Plan.



Section 12. Statement of Account





Statements will be sent to each Participant by February 15th each year as to the value of
his/her Deferred Compensation Account as of the end of the preceding December.



Section 13. Assignability





No right to receive payments hereunder will be transferable or assignable by a Participant,
except by will or by the laws of descent and distribution.



Section 14. Administration





This Plan will be administered on a day-to-day basis on behalf of the Compensation Committee
of the Board of Directors of the Company by the General Counsel of the Company, who will
have the authority to adopt rules and regulations for carrying out the Plan. The
Compensation Committee of the Board of Directors of the Company will have the authority to
interpret, construe and implement the provisions of the Plan and to prescribe the form of
the request for deferral of compensation under the Plan.



Section 15. Amendment/Termination





This Plan may at any time or from time to time be amended, modified or terminated by the
Board of Directors of the Company; provided, however, that any termination of the Plan must
comply with the requirements of Treasury Regulation § 1.409A-3(j)(4)(ix). No amendment,
modification or termination will, without the consent of the Participant, adversely affect
any amounts credited to such Participant’s



 









 






Deferred Compensation Account; unless the Board
determines, in its sole discretion, that such amendment, modification or termination is
appropriate or necessary to cause this Plan to comply with Section 409A (including the
distribution requirements thereunder) or any Deferred Compensation to be exempt from the tax
penalty under Section 409A(a)(1)(B).



Section 16. Tax Treatment





Deferred Compensation and credited interest are taxed as ordinary income when payment is
actually received. Distributions received from the Plan are not eligible for favorable tax
treatment or rollovers as permitted under qualified plans.



Section 17. Other Benefits





The computation and basis for other Company provided benefits may be affected if a
Participant elects to defer a portion of his/her Base Salary.




 









 








W. R. BERKLEY CORPORATION

DEFERRED COMPENSATION PLAN FOR OFFICERS

ELECTION FORM




In accordance with and subject to the W. R. Berkley Corporation Deferred Compensation Plan for
Officers (the “Plan”), I hereby request to defer the receipt of compensation for the year ending
December 31,  ______, as follows:



	 	 	 	 	 
	Amount of Bonus Pay to be Deferred:
	 

	 	(a) ALL (100%)
	 	OR
	 
	 	 	 	 
	 

	 	(b)                      % (multiples of 10%)
	 	OR
	 
	 	 	 	 
	 

	 	(c) $                     (multiples of $1,000)	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Amount of Base Salary to be Deferred:
	 

	 	(a) ALL (100%)
	 	OR
	 
	 	 	 	 
	 

	 	(b)                      % (multiples of 10%)
	 	OR
	 
	 	 	 	 
	 

	 	(c) $                     (multiples of $1,000)	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Amount of Excess Profit Sharing Contribution to be Deferred:
	 

	 	(a) ALL 100%
	 	OR
	 


	 	(b)                      % (multiples of 10%)
	 	OR
	 


	 	(c) $                     (multiples of $1,000)	 	 
	 


	 	 	 	 
	Period of Deferral:
	 

	 	(a) Year in which payments should be made or commence (not later than my Separation from Service
	 	 
	 
	 	 	 	 
	 

	 	 (as defined in the
Plan)                     OR
	 	 
	 


	 	(b) Until my Separation from Service	 	 
	 


	 
	 	 	 	 
	Form of Distribution:
	 


	 	Lump sum
	 	OR
	 


	 	Annual installments                     	 	 
	 


	 	(not to exceed 5)
	 	 






     A Participant should contact his/her Tax Advisor prior to making an election to defer
compensation.



     I have received a copy of the Plan. I understand that, in the event of my death prior to
receipt of all amounts payable to me pursuant to the Plan, the amount credited to my Deferred
Compensation Account will be paid to my designated beneficiary in the form of a lump sum.



	 	 	 	 	 	 	 	 	 
	Beneficiary Name

	 	 	 	 	 	Officer Name	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Address

	 	 	 	 	 	Address	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Beneficiary

	 	 	 	 	 	Officer	 	 
	Social Security No.

	 	 	 	 	 	Social Security No.	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Date	 	 
	 
	 	 	 	 	 	 
	Signature of Officer