OF ITS SUBSIDIARIES, OR (IV) THE
PARTICIPANT'S SUBSTANTIAL AND REPEATED FAILURE TO PERFORM DUTIES AS REASONABLY
DIRECTED BY THE BOARD OR SUPERVISOR, AS APPLICABLE.
SECTION 2.09.
"CHANGE IN CONTROL" SHALL MEAN, WITH RESPECT TO ANY
PARTICIPANT, A CONTROL EVENT OCCURRING WITH RESPECT TO (I) THE CONTROLLED GROUP
ENTITY FOR WHOM SUCH PARTICIPANT PRINCIPALLY PERFORMS SERVICES AT THE TIME OF
SUCH CONTROL EVENT, (II) THE CONTROLLED GROUP ENTITY THAT IS LIABLE FOR THE
PAYMENT OF SUCH PARTICIPANT'S ACCOUNT OR (III) ANY CONTROLLED GROUP ENTITY THAT
IS EITHER A MAJORITY EQUITY HOLDER OF ANY CONTROLLED GROUP ENTITY DESCRIBED IN
CLAUSES (I) OR (II) ABOVE OR THAT IS IN A CHAIN OF ENTITIES THAT EACH ARE
MAJORITY EQUITY HOLDERS OF ANOTHER ENTITY IN THE CHAIN, ENDING IN A CONTROLLED
GROUP ENTITY DESCRIBED IN CLAUSES (I) OR (II), ABOVE.
FOR PURPOSES HEREOF, A
"MAJORITY EQUITY HOLDER" IS A PERSON OWNING MORE THAN 50% OF THE TOTAL FAIR
MARKET VALUE AND TOTAL VOTING POWER OF THE APPLICABLE CONTROLLED GROUP ENTITY
AND TO WHICH THE COMPANY GROUP COLLECTIVELY REPRESENTS AT LEAST 75% OF SUCH
PERSON'S TOTAL REVENUES ( AS DETERMINED IN ACCORDANCE WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES AND REPORTED IN THE CONTROLLED GROUP SECURITIES AND
EXCHANGE COMMISSION FILINGS (AS DETERMINED IN ACCORDANCE WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES). NOTWITHSTANDING THE FOREGOING, A CHANGE IN CONTROL SHALL
NOT BE DEEMED TO OCCUR IF SUCH EVENT WOULD NOT BE CONSIDERED TO BE A "CHANGE IN
CONTROL EVENT" WITHIN THE MEANING OF SECTION 409A OF THE CODE.
SECTION 2.10.
"CODE" MEANS THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
SECTION 2.11.
"COMPANY" MEANS ESURANCE HOLDINGS, INC. AND ANY
SUCCESSOR THERETO.
SECTION 2.12.
"COMPANY GROUP" MEANS THE COMPANY AND ITS DIRECT AND
INDIRECT SUBSIDIARIES OF WHICH IT OWNS MORE THAN 50% OF THE TOTAL FAIR MARKET
VALUE AND TOTAL VOTING POWER.
SECTION 2.13.
"COMPENSATION" MEANS, FOR ANY PLAN YEAR, (I) CASH
AMOUNTS PAYABLE TO KEY EMPLOYEES UNDER THE ESURANCE PUP OR WHITE MOUNTAINS LTIP
IN SUCH
2
PLAN YEAR, (II) ANY APPRECIATION ON ACCOUNT BALANCES IN THIS PLAN; AND (III) ANY
OTHER CASH PAYMENT OR TRANSFER OF PROPERTY THAT MAY BE EARNED BY KEY EMPLOYEES
FROM SERVICES PERFORMED FOR THE CONTROLLED GROUP THAT IS DESIGNATED BY THE BOARD
OR THE ADMINISTRATOR AS "COMPENSATION" UNDER THIS PLAN.
SECTION 2.14.
"CONTROLLED GROUP ENTITY" MEANS ANY ENTITY WITHIN THE
CONTROLLED GROUP.
SECTION 2.15.
"CONTROLLED GROUP" MEANS THE COMPANY AND EACH ENTITY
THAT IS TREATED WITH THE COMPANY AS A SINGLE "SERVICE RECIPIENT" UNDER TREAS.
REG. § 1.409A-1(H)(3) EXCEPT THAT "GREATER THAN 50 PERCENT" SHALL BE USED
INSTEAD OF "AT LEAST 80 PERCENT" IN EACH PLACE IT APPEARS IN CODE SECTIONS
1563(A)(1), (2), AND (3).
SECTION 2.16.
"CONTROL EVENT" SHALL OCCUR WITH RESPECT TO A
CONTROLLED GROUP ENTITY IF:
(A)
ANY PERSON OR PERSONS ACTING AS A GROUP (AS DEFINED IN TREAS. REG. §
1.409A-3(I)(5)(V)(B), OR ANY AMENDED OR SUCCESSOR REGULATIONS, FOR PURPOSES OF
THIS SECTION 2.16), OTHER THAN (X) A CONTROLLED GROUP ENTITY, (Y) AN UNDERWRITER
TEMPORARILY HOLDING EQUITY OF A CONTROLLED GROUP