Delaware
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1-15202
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22-1867895
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(State or other jurisdiction
of incorporation)
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(Commission File
Number) |
(IRS Employer
Identification No.) |
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Exhibit No.
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Description
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10.3 |
Form of 2019 Performance Unit Award Agreement under the W. R. Berkley Corporation 2019 Long-Term Incentive Plan
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W. R. BERKLEY CORPORATION
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By:
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/s/ Richard M. Baio
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Name: Richard M. Baio
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Title: Executive Vice President – Chief
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Financial Officer and Treasurer
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ARTICLE 1.
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Establishment, Purpose, and Duration
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1
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ARTICLE 2.
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Definitions
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1
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ARTICLE 3.
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Administration
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3
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ARTICLE 4.
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Annual Award Limit
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3
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ARTICLE 5.
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Eligibility and Participation
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4
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ARTICLE 6.
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Performance Units
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4
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ARTICLE 7.
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Performance Measures
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5
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ARTICLE 8.
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Beneficiary Designation
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5
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ARTICLE 9.
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Deferrals
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6
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ARTICLE 10.
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Rights of Participants
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6
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ARTICLE 11.
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Change in Control
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6
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ARTICLE 12.
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Amendment, Modification, Suspension, and Termination
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6
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ARTICLE 13.
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Withholding
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7
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ARTICLE 14.
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Successors
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7
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ARTICLE 15.
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General Provisions
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7
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W. R. Berkley Corporation
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By:__________________________
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Name:
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Title:
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______________________________
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Participant
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(ii) |
This Agreement shall not be effective unless the Participant physically signs an original Agreement.
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(i) |
Section 9(e) shall be deleted in its entirety and replaced with the following:
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(ii) |
The provisions in “Addendum for Australia, Canada, Hong Kong and Singapore” set forth below shall be applicable.
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The provisions in “Addendum for Australia, Canada, Hong Kong and Singapore” set forth below shall be applicable.
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(i) |
Section 6 shall be deleted in its entirety and replaced with the following:
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(ii) |
The provisions in “Addendum for Australia, Canada, Hong Kong and Singapore” set forth below shall be applicable.
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(i) |
In Section 5(d), the words “or Solicitation” shall be added, in each instance after the phrase “Competitive Action”;
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(ii) |
In Section 5(d), in the second sentence, solely with respect to Solicitation the word “second” shall be replaced with “first”;
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(iii) |
In Section 9(j)(v), subsections (C) and (D) shall be deleted and subsection (E) shall be renumbered as subsection (C); and
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(iv) |
In Section 9(j), the following new subsection (xvii) shall be added:
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(v) | In Section 5, a new subsection (f) shall be added |
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(i) |
In second sentence of Section 5(d),the phrase “that, in the Committee’s sole and absolute discretion, reflects the seriousness of the Competitive Action
and/or Misconduct; the maximum amount that the Company may demand from the Participant is” shall be added after the words “an amount” ;
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(ii) |
In Section 5(d), in the last sentence, the following phrase shall be deleted:
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(iii) |
Section 9(e) shall be deleted in its entirety and replaced with the following:
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(iv) |
The provisions in “Addendum for Australia, Canada, Hong Kong and Singapore” set forth below shall be applicable.
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1. | TERMINATION OF EMPLOYMENT |
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With effect from the earlier of the date of termination of the Participant’s employment or the date that the Participant gives or receives notice of
termination of the Participant’s employment for any reason, any unsettled Performance Units shall lapse and be forfeited (except as set out in Section 5(b) of this Agreement and subject to the forfeiture provisions in paragraph 3 below)
and the Participant shall have no further rights with respect to any such unsettled Performance Units.
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2. |
RESTRICTIVE COVENANTS
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2.1 |
The Participant covenants with the Company and the Group that the Participant will not, save with the prior written consent of the Committee (in its absolute
discretion):
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2.1.1. |
during the Restricted Period directly or indirectly be employed, engaged or retained by or otherwise concerned or interested in any Competing Business. For
this purpose, the Participant is directly or indirectly employed, engaged or retained by or concerned or interested in a Competing Business if:
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(a) | the Participant carries it on as principal or agent; or |
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(b) |
the Participant is a partner, director, employee, secondee, consultant or agent in, of or to any person who carries on the Competing Business;
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(c) |
the Participant has any direct or indirect financial interest (as shareholder, creditor or otherwise) in any person who carries on the Competing Business;
and/or
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(d) |
the Participant is a partner, director, employee, secondee, consultant or agent in, of or to any person who has a direct or indirect financial interest (as
shareholder, creditor or otherwise) in any person who carries on the Competing Business,
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2.1.2 |
during the Restricted Period and whether directly or indirectly, either alone or with or on behalf of any person, firm, company or entity and whether on his
or her own account or as principal, partner, shareholder, director, employee, consultant or in any other capacity whatsoever, have any business dealings with any Client or Prospective Client in relation to or for the benefit of a
Competing Business;
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2.1.3 |
during the Restricted Period and whether directly or indirectly, either alone or with or on behalf of any person, firm, company or entity and whether on his
or her own account or as principal, partner, shareholder, director, employee, consultant or in any other capacity whatsoever, canvass or solicit business or custom from or seek to entice away any Client or Prospective Client from the
Company or any Group Company in relation to or for the benefit of a Competing Business;
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2.1.4 |
during the Restricted Period, directly or indirectly, solicit or endeavour to solicit the employment or engagement of any Key Employee (whether or not such
person would thereby breach their contract of employment or engagement);
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2.1.5 |
at any time after the Termination Date represent himself as being in any way connected with (other than as a former employee) or interested in the business of
the Company or any Group Company or use any registered names, domain names or trading names the same as or that could reasonably be expected to be confused with any such names used by the Company or any Group Company.
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2.1.6 |
before or after the Termination Date, and except in the proper performance of his or her duties of employment by the Company or any Group Company, directly or
indirectly use for his or her own purposes or those of a third party or disclose to any third party any Confidential Information. The Participant will use his or her best endeavours to prevent any unauthorised use or disclosure of
Confidential Information. The obligations contained in this clause 2.1.6 will not apply to any disclosures required by law or to any information or documents which after the Termination Date are in the public domain other than by way of
unauthorised disclosure.
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2.2 |
The Participant gives the covenants above to the Company as trustee for itself (and any company forming part of the Group).
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2.3 |
Each restriction contained in this clause 2 is an entirely separate and independent restriction, despite the fact that they may be contained in the same
phrase, and if any part is found to be unenforceable the remainder will remain valid and enforceable.
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2.4 |
While the restrictions in this clause 2 are considered by the parties to be fair and reasonable in the circumstances, it is agreed that if any such
restriction should be held to be void or ineffective for any reason but would be treated as valid and effective if some part of parts of the restriction were deleted, the restriction in question will apply with such deletion as may be
necessary to make it valid and effective.
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2.5 |
If, during the Participant’s employment or any period during which these restrictions apply, any person, firm, company or entity offers the Participant any
employment, engagement, arrangement or contract which might or would cause him or her to breach any of the restrictions, he or she will notify that person, firm, company or entity of the terms of these restrictions.
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2.6 |
The period of any restraint on the Participant’s activities after the Termination Date imposed pursuant to clauses 2.1.1 to 2.1.4 shall be reduced pro rata by
any period of garden leave served by the Participant pursuant to his or her service agreement with the Company or any Group Company.
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2.7 |
If the Participant breaches any of the covenants contained in clauses 2.1.1 to 2.1.6, then any unsettled Performance Units will lapse with immediate effect
and the Participant will be obliged to return all amounts paid to the Participant in respect of the Performance Units within the Restricted Period to the Company within 14 days of being notified by the Company of its discovery of the
breach.
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2.8 |
In this clause, the following definitions shall apply:
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“directly or indirectly”
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means (without prejudice to the generality of the expression) either alone or jointly with or on behalf of any
other person and whether on his or her own account or in partnership with another or others or as the holder of any interest in or as officer, employee or agent of or consultant to any other person.
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“Group”
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means the Company, its subsidiaries or holding companies from time to time and any subsidiary of any holding
company from time to time; and “Group Company” means any company within the Group.
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“Key Employee”
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means any director or officer of the Company or any Group Company and/or any employee (other than administrative
or clerical personnel) of the Company or any Group Company, in each case who, at any time during the Relevant Period:
i)
was employed by the Company or any Group Company; and
ii)
with whom the Participant has had Material Dealings or exercised control or had management responsibility for; and/or
iii)
has had access to or has obtained Confidential Information during the Relevant Period.
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“Material Dealings”
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means receiving orders, instructions or enquiries from, contracting or making preparations to contract with,
making sales or presenting to or with, tendering for business from, having responsibility with or for, having personal knowledge of or otherwise having significant other contact.
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“Prospective Client”
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means any person, firm, company or other business entity who was at any time during the Relevant Period:
(a) in negotiations with the Company or any Group Company for the provision of insurance or reinsurance; or
(b) an insurance intermediary who may introduce such insurance or reinsurance business to the Company or any Group
Company,
and in each case with whom or which during the Relevant Period:
i)
the Participant (or any person reporting to the Participant) had Material Dealings in relation to Relevant Business; or
ii)
about whom or which the Participant has had Confidential Information during the course of Participant’s employment.
Provided that this definition shall not apply to any such person, firm, company or other business entity which has
withdrawn from or discontinued such negotiations or discussions, having stated its intention to do so (other than through any unlawful activity by the Participant).
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“Relevant Business”
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means any class or classes of insurance or reinsurance business which was underwritten in the twelve months
immediately prior to the Termination Date by the Company or any Group Company and with which the Participant was directly or indirectly materially concerned or involved or had personal knowledge in the course of Participant’s duties during
the Relevant Period.
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“Relevant Period”
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means (1) during employment, the twelve month period immediately prior to the action or activity that may be in
breach of clauses 2.1.1 to 2.1.4 and (2) after termination of employment, the twelve month period immediately prior to the Termination Date.
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“Restricted Period”
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means the period beginning on the date hereof and ending two years following the Settlemant Date.
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“
Termination Date”
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means the date on which the Participant’s employment or engagement with the Company terminates for any reason.
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3. |
CLAWBACK
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3.1 |
If at any time under the terms of this Agreement the Committee becomes aware of any material wrongdoing, negligence or misconduct on the part of the
Participant that would have entitled the Company to terminate the Participant's employment with or without notice for Cause, and (x) if such material wrongdoing, negligence or misconduct occurred prior to the Settlement Date, all
Performance Units will lapse with immediate effect or (y) if such material wrongdoing, negligence or misconduct occurred on or after the Settlement Date or occurred prior to the Settlement Date but was not discovered until after the
Settlement Date, the Company will be entitled, in its absolute discretion, to recover from the Participant up to 100% of the amount paid on the Settlement Date to the Participant in respect of the Performance Units (which have been
settled within the 2 years prior to such determination by the Committee) to the Company within 14 days of being notified in writing by the Company of its discovery of the material wrongdoing, negligence or misconduct.
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3.2 |
Clause 3.1 is without prejudice to the Company's other remedies for such wrongdoing or any other clawback policy that the Company may adopt from time to time
as required by applicable laws or the applicable listing rules of any securities exchange.
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3.3 |
The Committee may review any Performance Units granted to the Participant under the terms of this Agreement, in light of:
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a. |
there being a significant deterioration in the financial health of the Company, the Group or the business area or team in which the Participant worked;
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b. |
the Participant having caused harm to the reputation of the Company or the Group;
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c. |
the Participant having deliberately misled the Company in relation to the financial performance of the Company, the Group or the business area or team in
which he or she worked; and/or
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d. |
the Participant’s actions having amounted to gross misconduct, incompetence or negligence.
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3.4 |
The Participant agrees that any sums owed to the Company or any Group Company under this Agreement including any adjustment, forfeiture or repayment may be
deducted from any sums due to the Participant from the Company or any Group Company. For the avoidance of doubt, this is without prejudice to any right the Company or the Group may have at any time to recover any sums from the
Participant and the Participant agrees that such sums are recoverable by the Company or any Group Company as a debt.
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3.5 |
In this Clause 3, “Cause” means:
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a. |
any serious negligence or gross misconduct by the Participant in connection with or affecting the business or affairs of the Company or any member of the
Group;
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b. |
the Participant being convicted of any arrestable offence other than an offence under road traffic legislation in the UK; or
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c. |
the Participant being convicted of an offence under any statutory enactment or regulation relating to insider dealing or market abuse.
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4.1 |
Any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation
shall be governed by and construed in accordance with the law of England and Wales.
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5.1 |
If at any time any dispute or question shall arise between the parties arising out of or in connection with this Agreement or its or their validity,
construction or performance then the same shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules, which Rules are deemed to be incorporated by reference into this clause.
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A. |
during the Restricted Period, directly or indirectly, be employed, engaged or retained by or otherwise concerned or interested in any Competing Business. For
this purpose, the Participant is directly or indirectly employed, engaged or retained by or concerned or interested in a Competing Business if:
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(i) | the Participant carries it on as principal or agent; or |
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(ii) |
the Participant is a partner, director, employee, secondee, consultant or agent in, of or to any person who carries on the Competing Business;
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(iii) |
the Participant has any direct or indirect financial interest (as shareholder, creditor or otherwise) in any person who carries on the Competing Business;
and/or
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(iv) |
the Participant is a partner, director, employee, secondee, consultant or agent in, of or to any person who has a direct or indirect financial interest (as
shareholder, creditor or otherwise) in any person who carries on the Competing Business,
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B. |
during the Restricted Period and whether directly or indirectly, either alone or with or on behalf of any person, firm, company or entity and whether on his
or her own account or as principal, partner, shareholder, director, employee, consultant or in any other capacity whatsoever, have any business dealings with any Client or Prospective Client in relation to or for the benefit of a
Competing Business;
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C. |
during the Restricted Period and whether directly or indirectly, either alone or with or on behalf of any person, firm, company or entity and whether on his
or her own account or as principal, partner, shareholder, director, employee, consultant or in any other capacity whatsoever, canvass or solicit business or custom from or seek to entice away any Client or Prospective Client from the
Company or any Group Company in relation to or for the benefit of a Competing Business;
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D. |
during the Restricted Period, directly or indirectly, solicit or endeavour to solicit the employment or engagement of any Key Employee (whether or not such
person would thereby breach their contract of employment or engagement);
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E. |
at any time after the Termination Date represent himself or herself as being in any way connected with (other than as a former employee) or interested in the
business of the Company or any Group Company or use any registered names, domain names or trading names the same as or that could reasonably be expected to be confused with any such names used by the Company or any Group Company.
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F. |
before or after the Termination Date and except in the proper performance of his or her duties of employment for the Company or Group Company directly or
indirectly use for his or her own purposes or those of a third party or disclose to any third party any Confidential Information. The Participant will use his or her best endeavours to prevent any unauthorised use or disclosure of
Confidential Information. The obligations contained in this subsection F will not apply to any disclosures required by law or to any information or documents which after the Termination Date are in the public domain other than by way of
unauthorised disclosure.
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“directly or indirectly”
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means (without prejudice to the generality of the expression) either alone or jointly with or on behalf of any
other person and whether on his or her own account or in partnership with another or others or as the holder of any interest in or as officer, employee or agent of or consultant to any other person.
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“Group”
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means the Company, its subsidiaries or holding companies from time to time and any subsidiary of any holding
company from time to time; and “Group Company” means any company within the Group.
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“Key Employee”
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means any director or officer of the Company or any Group Company and/or any employee (other than administrative
or clerical personnel) of the Company or any Group Company, in each case who, at any time during the Relevant Period:
i)
was employed by the Company or any Group Company; and
ii)
with whom the Participant has had Material Dealings or exercised control or had management responsibility for; and/or
iii)
has had access to or has obtained Confidential Information during the Relevant Period.
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“Material Dealings”
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means receiving orders, instructions or enquiries from, contracting or making preparations to contract with,
making sales or presenting to or with, tendering for business from, having responsibility with or for, having personal knowledge of or otherwise having significant other contact.
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“Prospective Client”
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means any person, firm, company or other business entity who was at any time during the Relevant Period:
(a) in negotiations with the Company or any Group Company for the provision of insurance or reinsurance; or
(b) an insurance intermediary who may introduce such insurance or reinsurance business to the Company or any Group
Company,
and in each case with whom or which during the Relevant Period:
i)
the Participant (or any person reporting to the Participant) had Material Dealings in relation to Relevant Business; or
ii)
about whom or which the Participant has had Confidential Information during
the course of Participant’s employment.
Provided that this definition shall not apply to any such person, firm, company or other business entity which has
withdrawn from or discontinued such negotiations or discussions, having stated its intention to do so (other than through any unlawful activity by the Participant).
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“Relevant Business”
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means any class or classes of insurance or reinsurance business which was underwritten in the twelve months
immediately prior to the Termination Date by the Company or any Group Company and with which the Participant was directly or indirectly materially concerned or involved or had personal knowledge in the course of Participant’s duties during
the Relevant Period.
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“Relevant Period”
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means (1) during employment, the twelve month period immediately prior to the action or activity that may be in
breach of clauses A to D of Section 5(f) and (2) after termination of employment, the twelve month period immediately prior to the Termination Date.
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“
Termination Date”
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means the date on which the Participant’s employment or engagement with the Company terminates for any reason.
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W. R. Berkley Corporation
475 Steamboat Road
Greenwich, Connecticut 06830
(203) 629-3000
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NEWS
RELEASE
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FOR IMMEDIATE RELEASE
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CONTACT
: Karen A. Horvath
Vice President – External
Financial Communications
203-629-3000 |