EX-10.2



 





Exhibit 10.2




Final Version




W. R. BERKLEY CORPORATION

DEFERRED COMPENSATION PLAN FOR DIRECTORS

AS AMENDED AND RESTATED DECEMBER 3, 2007




Section 1. Effective Date; Purpose



The effective date of this Plan is May 3, 2005 (the “Effective Date”). This Plan was created as a
spin-off from the W. R. Berkley Corporation Deferred Compensation Plan for Directors, as adopted
March 7, 1996 (the “Original Deferral Plan”) to allow members of the Board of Directors (the
“Board”) of W. R. Berkley Corporation (the “Company”) to defer their compensation for the calendar
years 2005 and beyond, and was amended and restated December 3, 2007 (the “Restatement Date”).
Accordingly, as of the Effective Date, deferral elections made under the Original Deferral Plan and
deferral accounts established under the Original Deferral Plan with respect to 2005 director
compensation (“2005 Compensation”) have been transferred to this Plan and shall be governed under
the terms of this Plan. The terms of the Plan effective as of the Restatement Date shall govern
all deferrals made hereunder with respect to calendar years 2005 and thereafter, including
deferrals under the Original Deferral Plan as provided herein.




Section 2. Eligibility



Any member of the Board, including any person otherwise participating in the W. R. Berkley
Corporation Deferred Compensation Plan for Officers, is eligible to participate in the Plan.




Section 3. Deferral Election



Prior to the beginning of each calendar year, each member of the Board may elect to defer receipt
of all or a portion of the retainer and/or meeting fees otherwise payable to such person for that
year on account of serving on the Board.



Notwithstanding the foregoing, for the calendar year in which a person first becomes a member of
the Board, such person may elect, not later than thirty days after the date such person first
becomes a member of the Board to defer the receipt of all or a portion of the retainer and/or
meeting fees otherwise payable to such person for serving on the Board subsequent to the date of
making such election through December 31st of such year.



Members of the Board who choose to defer amounts pursuant to this Section 3 will be “Participants”
including any such member who elected to defer his or her 2005 Compensation pursuant to the
Original Deferral Plan. All amounts deferred hereunder, as increased or decreased as a result of
the deemed investment of such amounts pursuant to Section 6 herein, will be classified as “Deferred
Compensation.”




Section 4. Type of Plan



The Plan is a non-qualified voluntary deferred compensation plan. The Plan is not intended to be
subject to the provisions of the Employee Retirement Income Security Act of 1974 (“ERISA”). To the
extent the Plan is determined to be so subject, it is intended, to the extent that any




 









 




Participant is otherwise an employee of the Company or of any subsidiary to constitute a “plan
which is unfunded and is maintained by the employer primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees,” as such phrase is
used in ERISA, and the terms of the Plan shall be interpreted consistent with such intent.




Section 5. No Funding; Participant’s Rights Unsecured



The Company will not fund the amount of any Participant’s Deferred Compensation. The amount of each
Participant’s Deferred Compensation will be separately accounted for in the bookkeeping records of
the Company by setting up for each Participant a Deferred Compensation account (“Deferred
Compensation Account”).



The amount of Deferred Compensation is secured only by the Company’s promise to pay it from the
assets of the Company and Participants will have the status of general unsecured creditors of the
Company with respect to their Deferred Compensation. 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 6. Deemed Investment of Deferred Compensation



Within thirty calendar days following the Effective Date, Participants may elect to have all or a
portion of their Deferred Compensation for 2005 deemed invested in the common stock of the Company,
$0.20 par value per share (the “Stock”) (the “Stock Investment”). Thereafter, at the time an
initial election to defer director compensation for any calendar year hereunder is made, a
Participant may elect to have his or her Deferred Compensation (i) credited with a reasonable rate
of interest (the “Interest Investment”) or (ii) deemed invested in the Stock. Deferred
Compensation shall be credited with a reasonable rate of interest (compounded quarterly) or deemed
invested in Stock at the fair market value of the Stock, as elected by the Participant, commencing
on the first day of the month following the date of the initial deferral date until the
distribution date. If no investment election is made by a Participant, such Participant’s Deferred
Compensation shall automatically be deemed invested in the Interest Investment. The interest rate
which shall apply under the Interest Investment with respect to each year shall be such rate of
interest which is in effect for such year under Section 6 of the W. R. Berkley Corporation Deferred
Compensation Plan for Officers, as amended and restated December 3, 2007. On each date that
dividends are paid (each a “Dividend Payment Date”) on shares of Stock with respect to which the
record date (the “Record Date”) occurs during the deferral period, the Company will credit to an
account for the Participant an amount equal to the dividend paid on a share of the Stock multiplied
by the number of shares of Stock into which such Participant’s Deferred Compensation is deemed
invested as of such Record Date. These dividend equivalent amounts shall be deemed invested in the
Interest Investment until payment of the Deferred Compensation to the Participant as provided in
Section 6 herein. Any remaining dividend equivalent amounts subsequently credited to the account
of a Participant with respect to a Record Date that occurs during the deferral period but for which
the Dividend Payment Date occurs following the deferral period, shall be paid to the Participant on
the next March 31, June 30, September 30 or December 31, whichever is closer, immediately following
such Dividend Payment Date.




 









 








Section 7. Deferral Period



Each Participant may elect to defer the receipt of his/her Deferred Compensation until a specified
date or dates in the future, but not later than such person’s “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”). A separate such election will be made with respect to that
portion of his/her Deferred Compensation attributable to retainer and/or meeting fees otherwise
deferred with respect to each separate year. The actual payment of the Deferred Compensation will
be made or will commence on the earlier of (i) the specified date and (ii) the date (the “Final
Distribution Date”) of such Participant’s 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), or as soon as reasonably practicable following such
specified date or Final Distribution Date. In no event shall any such payment of Deferred
Compensation begin later than the later of (i) the last day of the year in which the specified date
or Final Distribution Date, as applicable, occurs and (ii) the 15th day of the third
calendar month following the specified date or Final Distribution Date, as applicable. In any
event, the Participant shall not be permitted, directly or indirectly, to designate the taxable
year of the payment.




Section 8. Form of Payment



A Participant may elect to receive his/her Deferred Compensation in either a lump sum payment or in
annual installment payments (not to exceed five), on the date or dates specified by the Participant
at the time the election to defer is made. Installment payments shall begin on the date elected by
the Participant and thereafter shall be made in annual installments on the anniversaries of the
initial distribution date. Payments of Deferred Compensation made on account of a Separation from
Service shall be made in a lump sum. Deferred Compensation deemed invested in the Interest
Investment at the time of payment shall be paid in cash and Deferred Compensation deemed invested
in the Stock Investment at the time of payment shall be paid in (i) cash, (ii) whole shares of
Stock rounded down to the nearest whole share with the remainder paid in cash or (iii) any
combination of cash and Stock, in each case as determined by the Company.




Section 9. Death Prior to Receipt



Notwithstanding anything herein to the contrary, 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
upon 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 twenty (20) 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 director compensation hereunder for any year will be irrevocable once the year
to which it applies has commenced, and, except as provided in Section 9 above or in Section 11
below, the amounts deferred hereunder shall not be paid earlier than the distribution date or dates
elected by the Participant, or upon the Final Distribution Date, if earlier.




Section 11. Accelerated Payment upon Unforeseeable Emergency



Notwithstanding anything herein to the contrary, a Participant may petition the Compensation and
Stock Option Committee of the Board (the “Compensation Committee”) for a distribution with respect
to his or her Deferred Compensation on account of an “unforeseeable emergency” (an “Unforeseeable
Emergency”), as defined in Treasury Regulation § 1.409A-3(i)(3); provided that such a distribution
shall be allowed only to the extent it complies with the distribution requirements set forth
therein. Upon such petition by a Participant and the approval of such application by the
Compensation Committee, the Company shall distribute to the Participant as soon as practicable
following such approval only the amount of Deferred Compensation necessary to satisfy such
Unforeseeable Emergency; provided, however, that in no event may such amount exceed
the balance of all of the Deferred Compensation Accounts identified to such Participant; and
further provided, however, that no Participant requesting a distribution for an
Unforeseeable Emergency shall have any involvement in making the determination to approve such
distribution on the part of the Compensation Committee. Distributions made on account of an
Unforeseeable Emergency shall reduce the amounts credited to a Participant’s Deferred Compensation
Account.




Section 12. Redeferral Election



Upon application by a Participant, the Company may, in its sole discretion, allow for a redeferral
election whereby all or a portion of the Deferred Compensation may be further deferred for no less
than an additional five (5) years from the distribution date in effect for such Deferred
Compensation immediately prior to such redeferral election, but no later than the Final
Distribution Date, upon such terms and conditions that the Company deems appropriate to ensure that
the amounts subject to redeferral are not taxable to the Participant until the time of actual
distribution; provided, however, that (i) an election to redefer all or a portion of such Deferred
Compensation must be made at least twelve months prior to the distribution date for such Deferred
Compensation in effect immediately prior to the redeferral election, and (ii) such an election
shall not take effect until the twelve-month anniversary of the date on which it is made.




Section 13. 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 14. 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 15. Administration



This Plan will be administered on a day-to-day basis on behalf of the Compensation Committee 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 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. Notwithstanding the foregoing, in the case of any Participant who is
also a member of the Compensation Committee, such person shall not participate in any action by the
Compensation Committee which affects only such individual Participant’s rights under the Plan.




Section 16. Amendment/Termination



This Plan may at any time or from time to time be amended, modified or terminated by the Board;
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 of the Internal Revenue Code of 1986, as amended (the
“Code”), and the Treasury Regulations thereunder (including the distribution requirements
thereunder), or any Deferred Compensation to be exempt from the tax penalty under Section
409A(a)(1)(B) of the Code.




Section 17. Tax Treatment



Deferred Compensation is 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 18. Other Benefits



The compensation and basis for other Company provided benefits in the case of any member of the
Board who is also an employee of the Company or of any affiliate may be affected if a Participant
elects to defer a portion of his/her retainer and/or meeting fees.





 









 








W. R. BERKLEY CORPORATION

DEFERRED COMPENSATION PLAN FOR DIRECTORS

ELECTION FORM



In accordance with and subject to the W. R. Berkley Corporation Deferred Compensation Plan for
Directors (the “Plan”), I hereby request to defer the receipt of my annual retainer and/or meeting
fees for the year ending December 31, ___, as follows:




	 	 	 	 	 
	Amount to be Deferred:
	 
	 	 	 	 
	I.	 	Annual Retainer:
	 
	 	 	 	 
	 

	 	(a)
	 	ALL (100%), OR
	 
	 	 	 	 
	 

	 	(b)
	 	$___(multiples of $1,000)
	 
	 	 	 	 
	 
	 	 	 	 
	II.	 	Meeting Fees:
	 
	 	 	 	 
	 

	 	(a)
	 	ALL (100%), OR
	 
	 	 	 	 
	 

	 	(b)
	 	$___(multiples of $1,000)
	 
	 	 	 	 
	 
	 	 	 	 
	Deemed Investment
	 
	 	 	 	 
	I.	 	Stock Investment
	 
	 	 	 	 
	 

	 	(a)
	 	ALL (100%), OR
	 
	 	 	 	 
	 

	 	(b)
	 	$___(multiples of $1,000)
	 
	 	 	 	 
	 
	 	 	 	 
	II.	 	Interest Investment
	 
	 	 	 	 
	 

	 	(a)
	 	ALL (100%), OR
	 
	 	 	 	 
	 

	 	(b)
	 	$___(multiples of $1,000)
	 
	 	 	 	 
	 
	 	 	 	 
	Period of Deferral:
	 
	 	 	 	 
	 


	 	(a)
	 	Indicate Date on which payments should be
made or commence (not later than the date
of my Separation from Service with
	 


	 	 
	 	 W. R.
Berkley Corporation (as such term is used
in Section 409A of the Code)                     
(Date), OR
	 
	 	 	 	 
	 


	 	(b)
	 	Until the date of my Separation from
Service with W. R. Berkley Corporation
	 
	 	 	 	 
	Form of Distribution:






	 	 	 	 	 
	 

	 	Lump sum, OR	 	 
	 
	 	 	 	 
	 

	 	Annual
installments                                  
	 	(not to exceed 5 — annual installments will be distributed on the anniversaries of the initial


	 
	 	 	 	 distribution date selected above)






 









 







A Participant should contact his/her tax advisor prior to making an election to defer his/her
annual retainer and/or meeting fees. 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

	 	 	 	Participant Name	 	 
	 

	 	 
	 	 	 	 
	 
	Address

	 	 	 	Address	 	 
	 

	 	 
	 	 	 	 
	 
	Beneficiary

	 	 	 	Participant	 	 
	Social Security No.

	 	 	 	Social Security No.	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Date	 	 
	 	 	 	 	 
	Signature of Participant