Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
ALLEGHANY CORPORATION
DELAWARE
ARTICLE I.
STOCKHOLDERS
Section 1. Annual Meeting
The annual meeting of stockholders for the election of directors and for the transaction of
any other business that may properly come before the meeting shall be held at such hour and at such
place or places within or without the State of Delaware as may from time to time be determined by
the Board of Directors, on the fourth Friday of April in each year or such other date as may be set
by the Board of Directors not more than 15 days before, nor 15 days after, the fourth Friday of
April.
Section 2. Special Meetings
At any time in the interval between regular meetings, special meetings of stockholders may be
called by the Chairman, or by a majority of the Board of Directors, to be held at such times and at
such places within or without the State of Delaware as may be specified in the notices of such
meetings. The notice of any special meeting shall state the purpose of the meeting and specify the
action to be taken at said meeting and no business shall be transacted thereat except that
specifically named in the notice.
Section 3. Notice of Meeting
Notice of the time and place of every meeting of stockholders shall be delivered personally or
mailed at least ten days and not more than sixty days prior thereto to each stockholder of record
entitled to vote at his address as it appears on the records of the Corporation. Such further
notice shall be given as may be required by law. Business transacted at any special
meeting shall be confined to the purpose or purposes stated in the notice of such special meeting.
Meetings may be held without notice if all stockholders entitled to vote are present or if notice
is waived by those not present.
Section 4. Voting
At all meetings of stockholders any stockholder entitled to vote may vote in person or by
proxy. Such proxy or any revocation or amendment thereof, shall be in writing, but need not be
sealed, witnessed or acknowledged, and shall be filed with the Secretary at or before the meeting.
The Corporation may require that such proxy indicate whether such stock is beneficially owned by a
Substantial Stockholder, as defined in Article NINTH of the Certificate of Incorporation.
Section 5. Quorum
Unless otherwise required by statute or the Restated Certificate of Incorporation of the
Corporation (the “Certificate of Incorporation”), at any annual or special meeting of
stockholders the presence in person or by proxy of stockholders entitled to cast a
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majority of all the votes entitled to be cast at the meeting (after giving effect to the
provisions of Article NINTH of the Certificate of Incorporation) shall constitute a quorum, but if
at any meeting of the stockholders there be less than a quorum present, the stockholders present
at such meeting may, without further notice, adjourn, the same from time to time until a quorum
shall attend, but no business shall be transacted at any such adjournment except such as might have
been lawfully transacted had the meeting not been adjourned.
Section 6. Action at Meetings
Except as otherwise required by law, the Certificate of Incorporation or these By-Laws, a
majority of the votes (after giving effect to the provisions of Article NINTH of the Certificate of
Incorporation) cast at a meeting at which a quorum is present shall be sufficient to take or
authorize action upon any matter which may properly come before the meeting, and the stockholders
shall not be entitled to cumulate their votes upon the election of directors, or upon any other
matter. Any action required or permitted to be taken by the stockholders must be effected at an
annual or special meeting of stockholders and may not be effected by any consent in writing by such
stockholders.
Section 7. Procedure at Meetings
The Board of Directors may appoint two or more persons to serve as inspectors of election at
any meeting of stockholders. In the absence of such appointment, the Chairman of the Meeting may
make such appointment. The inspectors of election shall receive, examine and tabulate all ballots,
and proxies, including proxies filed with the Secretary, shall determine the presence or absence of
a quorum and shall report to the officer of the Corporation or other person presiding over the
meeting the result of all voting taken at the meeting by ballot.
The order of business and all other matters of procedure at every meeting of the stockholders
may be determined by the officer of the Corporation or other person presiding over the meeting.
Section 8. Business of the Meeting
At any annual meeting of stockholders, only such business shall be conducted as shall have
been brought before the meeting (i) by or at the direction of the Board of Directors or (ii) by any
stockholder who is entitled to vote with respect thereto and who complies with the notice
procedures set forth in this Section 8. For business to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder’s notice must be delivered or mailed to
and received at the principal executive offices of the Corporation not less than 30 days prior to
the date of the annual meeting; provided, however, that in the event that less than 40 days’ notice
or prior public disclosure of the date of the meeting is given or made to stockholders, notice by
the stockholder to be timely must be received not later than the close of business on the 10th
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day following the day on which such notice of the date of the annual meeting was mailed or
such public disclosure was made. A stockholder’s notice to the Secretary shall set forth as to
each matter such stockholder proposes to bring before the annual meeting(i) a brief description of
the business desired to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting; (ii) the name and address, as they appear on the Corporation’s
books, of the stockholder proposing such business, (iii) the class and number of shares of the
Corporation’s capital stock that are beneficially owned by such stockholder and (iv) any material
interest of such stockholder in such business. Notwithstanding anything in the By-Laws to the
contrary, no business shall be brought before or conducted at the annual meeting except in
accordance with the provisions of this Section 8. The officer of the Corporation or other person
presiding over the annual meeting shall, if the facts so warrant, determine and declare to the
meeting that business was not properly brought before the meeting in accordance with the provisions
of this Section 8 and, if he shall so determine, he shall so declare to the meeting and any such
business so determined to be not properly brought before the meeting shall not be so transacted.
At any special meeting of stockholders, only such business shall be conducted as shall have
been brought before the meeting by or at the direction of the Board of Directors.
Section 9. Nomination of Directors
Only persons who are nominated in accordance with the procedures set forth in these By-Laws
shall be eligible for election as directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders at which directors are to be
elected only (i) by or at the direction of the Board of Directors or (ii) by any stockholder of
the Corporation entitled to vote for the election of directors at the meeting who complies with the
notice procedures set forth in this Section 9. Such nominations, other than those made by or at
the direction of the Board of Directors, shall be made by timely notice in writing to the Secretary
of the Corporation. To be timely, a stockholder’s notice shall be delivered or mailed to and
received at the principal executive offices of the Corporation not less than 30 days prior to the
date of the meeting, provided, however, that in the event that less than 40 days’ notice or prior
disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder
to be timely must be so received not later than the close of business on the 10th day following the
date on which such notice of the date of the meeting was mailed or such public disclosure was made.
Such stockholder’s notice shall set forth (i) as to each person whom such stockholder proposes to
nominate for election as a director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (including
such person’s written consent to being named in the proxy statement as a nominee and to serving as
a director if elected); and (ii) as to the stockholder giving the notice (x) the name and address,
as they appear on the Corporation’s books, of such stockholder and (y) the class and number of
shares of the Corporation’s capital stock that are beneficially owned by such stockholder. At the
request of the Board
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of Directors any person nominated by the Board of Directors for election as a director shall
furnish to the Secretary of the Corporation that information required to be set forth in a
stockholder’s notice of nomination which pertains to the nominee. No person shall be eligible for
election as a director of the Corporation unless nominated in accordance with the provisions of
this Section 9. The officer of the Corporation or other person presiding at the meeting shall, if
the facts so warrant, determine and declare to the meeting that a nomination was not made in
accordance with such provisions and, if he shall so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded.
Section 10. Adjournments
Any meeting of stockholders may be adjourned from time to time, whether or not a quorum is
present, by the affirmative vote of a majority of the votes present and entitled to be cast at the
meeting, or by the officer of the Corporation presiding over the meeting, or by the Board of
Directors.
ARTICLE II.
DIRECTORS
Section 1. Number and Election
Directors (other than such directors, if any, as are elected by holders of preferred stock of
the Corporation voting as a separate class) shall be divided into three classes, which shall be as
nearly equal in number as practicable. Unless changed by the Board of Directors pursuant hereto
the number of directors shall be nine and each class shall consist of three directors. The number
of directors and the number of which each class is to consist may be increased or decreased from
time to time by a resolution adopted by the vote of in excess of three-quarters (75%) of the Whole
Board (as defined in the Certificate of Incorporation); and provided that no decrease in the number
of directors shall affect the tenure of office of any existing director. The term of office of the
first class shall expire at the 1987 annual meeting of stockholders, the term of office of the
second class shall expire at the 1988 annual meeting of stockholders and the term of office of the
third class shall expire at the 1989 annual meeting of stockholders, with each director to hold
office until his or her successor shall have been duly elected and qualified. At each annual
meeting of stockholders, commencing with the 1987 annual meeting, directors elected to succeed
those directors whose terms then expire shall be elected for a term of office to expire at the
third succeeding annual meeting of stockholders after their election, with each director to hold
office until his or her successor shall have been duly elected and qualified.
Section 2. Vacancies
Subject to the rights of the holders of any series of Preferred Stock, and unless the Board of
Directors otherwise determines, newly created directorships resulting from any increases in the
authorized number of directors or any vacancies in the Board of Directors
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resulting from death, resignation, retirement, disqualification, removal from office or other
cause may be filled only by a majority vote of the directors then in office, though less than a
quorum, and any director so chosen shall hold office for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which such director has been elected
expires and until such director’s successor shall have been duly elected and qualified.
Section 3. Regular Meetings
Regular meetings of the Board of Directors shall be held at such times and places as the Board
of Directors may from time to time determine.
Section 4. Special Meetings
Special meetings of the Board of Directors may be called at any time, at any place and for any
purpose by the Chairman of the Board or by any three directors.
Section 5. Notice of Meeting
Notice of regular meetings of the Board of Directors need not be given.
Notice of every special meeting of the Board of Directors shall be given to each director, by
(a) deposit in the mail at least seventy-two hours before the meeting, or (b) telephone
communication directly with such person, the dispatch of a telegraphic communication to his
address, or actual delivery to his address, at least forty-eight hours before the meeting. If
given to a director by mail, telegraph or actual delivery to his address, such notice shall be sent
or delivered to his business or residential address as shown on the records of the Secretary or an
Assistant Secretary of the Corporation, or to such other address as shall have been furnished to
the Secretary or an Assistant Secretary of the Corporation by him for the purpose. Such notice
need not include a statement of the business to be transacted at, or the purpose of, any such
meeting.
Section 6. Quorum; Action at Meetings
A majority of the Board of Directors shall constitute a quorum for the transaction of
business, but if, at any meeting of the Board, there be less than a quorum present, the members at
the meeting may, without further notice, adjourn the same from time to time until a quorum shall
attend. Except as herein or in the Certificate of Incorporation provided or as required by law, a
majority of such quorum shall decide any questions that may come before the meeting.
Section 7. Participating in Meeting by Conference Telephone
Members of the Board of Directors, or any committee thereof, may participate in a meeting of
such Board or committee by means of conference telephone or similar equipment by means of which all
persons participating in the meeting can hear each other
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at the same time and such participation shall constitute presence in person at such meeting.
Section 8. Dividends
Anything in these By-Laws to the contrary notwithstanding, the declaration of dividends or
other distributions on the capital stock of the Corporation, whether in cash or property (other
than the dividend preference payable on any preferred stock of the Corporation outstanding from
time to time), may be authorized only by vote of in excess of three-quarters (75%) of the directors
present at a meeting duly called at which a quorum is present.
Section 9. Chairman of the Board
The Board may appoint one of its number as Chairman of the Board to serve at the pleasure of
the Board. The Chairman of the Board shall preside at all meetings of the Board of Directors and
shall perform such other duties and exercise such other powers as may be assigned to him from time
to time by the Board of Directors. The position of Chairman of the Board shall not constitute an
officer position of the Corporation and the Chairman of the Board shall not be assigned any duties
or powers which could result in the Chairman of the Board being considered an executive officer of
the Corporation as defined in Rule 3b-7 of the Securities Exchange Act of 1934, as amended, or
Section 162(m) of the Internal Revenue Code of 1986, as amended.
Section 10. Vice Chairman of the Board
In addition to the appointment of a Chairman of the Board, as provided in Section 9 of Article
II of these By-laws, the Board of Directors may appoint one of its number to the position of Vice
Chairman of the Board to serve at the pleasure of the Board. The position of Vice Chairman of the
Board shall not constitute an officer position of the Corporation. The Vice Chairman of the Board
shall perform such duties and exercise such powers as may be assigned to him from time to time by
the Board of Directors or the Chairman of the Board, but shall not be assigned any duties or powers
which could result in the Vice Chairman of the Board being considered an executive officer of the
Corporation as defined in Rule 3b-7 of the Securities Exchange Act of 1934, as amended, or Section
162(m) of the Internal Revenue Code of 1986, as amended.
ARTICLE III.
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. Election
The Board of Directors may appoint an Executive Committee and other committees composed of two
or more of its members, and may appoint one of the members of each such committee to the office of
chairman thereof. Members of the
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committees of the Board of Directors shall hold office for a term of one year and until their
successors are appointed and qualify or until they shall cease to be directors.
Section 2. Powers
Subject to such limitations as may from time to time be established by resolution of the Board
of Directors, the Executive Committee shall have any and may exercise all of the powers of the
Board of Directors when the Board of Directors is not in session except that it shall have no power
to (a) declare dividends, (b) issue stock of the Corporation, (c) recommend to the stockholders any
action which requires stockholder approval, (d) alter, amend or repeal any resolution of the Board
of Directors relating to the Executive Committee, or (e) take any other action which legally may be
taken only by the Board of Directors. Other committees of the Board of Directors shall have such
powers as shall be properly delegated to them by the Board of Directors.
Section 3. Vacancies
If the office of any member of any committee becomes vacant by death, resignation, or
otherwise, such vacancy may be filled from the members of the Board by the Board of Directors.
Section 4. Substitute Members
In the event that a member of any committee is absent from a meeting of the committee, the
members of the committee present at the meeting whether or not they constitute a quorum may appoint
another director to act in place of the absent member.
Section 5. Meetings and Notice of Meetings
The Executive Committee shall meet from time to time on call of the Chairman of the Board, or
on call of any three or more members of the Executive Committee, for the transaction of any
business.
Notice of every meeting of the Executive Committee shall be given to each member, by (a)
deposit in the mail at least seventy-two hours before the meeting, or (b) telephonic communication
directly with such person, the dispatch of a telegraphic communication to his address, or actual
delivery to his address, at least forty-eight hours before the meeting. If given to a member by
mail, telegraph or actual delivery to his address, such notice shall be sent or delivered to his
business or residential address as shown on the records of the Secretary or an Assistant Secretary
of the Corporation, or to such other address as shall have been furnished to the Secretary or an
Assistant Secretary of the Corporation by him for this purpose. Such notice need not include a
statement of the business to be transacted at, or the purpose of, any such meeting.
All other committees of the Board of Directors shall meet at such times and upon such notice
as they may determine.
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Section 6. Quorum; Action at Meetings
At any meeting of any committee, however called, a majority of the members shall constitute a
quorum for the transaction of business. A majority of such quorum shall decide any questions that
may come before the meeting.
ARTICLE IV.
OFFICERS
Section 1. Election and Number
The Board of Directors shall appoint a President from among the directors, and a Secretary and
a Treasurer, who need not be directors. The Board of Directors may also appoint an Executive Vice
President and one or more Senior Vice Presidents and/or Vice Presidents, who need not be directors.
All officers of the Corporation shall hold office at the pleasure of the Board of Directors. Any
two or more offices, except those of President and Vice President, may, at the discretion of the
Board of Directors, be held by the same person. The Board of Directors may from time to time
appoint such other officers and agents with such powers and duties as the Board may prescribe.
Section 2. President
The President shall be the chief executive officer and the chief operating officer of the
Corporation. He shall preside at all meetings of stockholders and, in the absence of the Chairman
of the Board, he shall preside at all meetings of the Board of Directors. Subject to the control
of the Board of Directors, he shall have direct power and authority over the business and affairs
of the Corporation. The President shall perform such other duties and exercise such other powers
as may be assigned to him from time to time by the Board of Directors.
Section 3. Executive Vice President
The Executive Vice President shall perform the duties of President in his absence or during
his disability to act. In addition, the Executive Vice President shall perform the duties and
exercise the powers usually incident to such office and/or such other duties and powers as may be
properly assigned thereto from time to time by the Board of Directors or the President.
Section 4. Senior Vice Presidents
The Senior Vice President or Senior Vice Presidents shall perform the duties of the Executive
Vice President in his absence or during his disability to act. In addition, the Senior Vice
President or Senior Vice Presidents shall perform the duties and exercise the powers usually
incident to their respective offices and/or such other duties and
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powers as may be properly assigned to them from time to time by the Board of Directors, the
President or the Executive Vice President having supervisory authority over them.
Section 5. Vice Presidents
The Vice President or Vice Presidents shall perform the duties of the Senior Vice President or
Senior Vice Presidents in his or their absence or during his or their disability to act. In
addition, the Vice President or Vice Presidents shall perform the duties and exercise the powers
usually incident to their respective offices and such other duties and powers as may be properly
assigned to them from time to time by the Board of Directors, the President, the Executive Vice
President or any Senior Vice President having supervisory authority over them.
Section 6. Secretary
The Secretary shall issue notices of meetings, keep the minutes of the Board of Directors and
its committees, have charge of the corporate seal, and perform such other duties and exercise such
other powers as are usually incident to such office or are properly assigned thereto by the Board
of Directors, the President, the Executive Vice President or any Senior Vice President or Vice
President having supervisory authority over him.
Section 7. Treasurer
The Treasurer shall have charge of all monies and securities of the Corporation, other than
monies and securities of any division of the Corporation which has a treasurer or financial officer
appointed by the Board of Directors, and shall keep regular books of account. The funds of the
Corporation shall be deposited in the name of the Corporation by the Treasurer with such banks or
trust companies as the Board of Directors or the Executive Committee from time to time shall
designate. He shall sign or countersign such instruments as require his signature, shall perform
all such duties and have all such powers as are usually incident to such office or are properly
assigned to him by the Board of Directors, the President, the Executive Vice President or any
Senior Vice President or Vice President having supervisory authority over him, and may be required
to give bond for the faithful performance of his duties in such sum and with such surety as may be
required by the Board of Directors.
Section 8. Controller
The Controller shall be responsible for the accounting policies and practices of the
Corporation, maintain its financial records, collect and consolidate the financial results of its
subsidiaries and other operating units, prepare its financial reports, determine the amount and
source of the funds required to meet its financial obligations, and perform such other duties and
exercise such other powers as are usually incident to such office or are properly assigned thereto
by the Board of Directors, the President, the Executive Vice President or any Senior Vice President
or Vice President having supervisory authority over him.
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Section 9. Assistant Secretary; Assistant Treasurer
The Board of Directors may appoint one or more assistant secretaries and one or more assistant
treasurers, or one appointee to both such positions, which officers shall have such powers and
shall perform such duties as are provided in these By-Laws to the Secretary or Treasurer, as the
case may be, or as are properly assigned thereto by the Board of Directors, the President, the
Secretary or Treasurer as the case may be, or any other officer having supervisory authority over
them.
ARTICLE V.
FISCAL YEAR
The fiscal year of the Corporation shall end on the thirty-first day of December in each year,
or on such other day as may be fixed from time to time by the Board of Directors.
ARTICLE VI.
SEAL
The Board of Directors shall provide a suitable seal, containing the name of the Corporation,
which seal shall be in the charge of the Secretary or an Assistant Secretary.
ARTICLE VII.
STOCK
Section 1. Certificates of Stock
Certificates of stock shall be issued in such form as may be approved by the Board of
Directors and shall be signed, manually or by facsimile, by the Chairman of the Board, President,
Executive Vice President, a Senior Vice President or a Vice President, and by the Treasurer,
Assistant Treasurer, Secretary or Assistant Secretary, and sealed with the seal of Corporation or a
facsimile thereof.
Section 2. Transfers
The Board of Directors shall have power and authority to make all such rules and regulations
as it may deem expedient concerning the issue, transfer and registration of certificates of stock.
The Board of Directors may appoint Transfer Agents and Registrars thereof.
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Section 3. Record Date; Closing of Transfer Books
The Board of Directors may fix a record date or direct that the stock transfer books be closed
for a stated period for the purpose of making any proper determination with respect to
stockholders, including which stockholders are entitled to notice of or to vote at a meeting or any
adjournment thereof, receive payment of any dividend or other distribution, or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock. The record date may not be more than sixty (60) nor less than ten (10) days before the date
on which the action requiring the determination will be taken; the transfer books may not be closed
for a period longer than twenty (20) days; and, in the case of a meeting of stockholders, the
closing of the transfer books shall be at least ten (10) days before the date of the meeting.
Section 4. Lost Certificates
The Board of Directors may determine the conditions upon which a new certificate of stock will
be issued to replace a certificate which is alleged to have been lost, stolen, mutilated or
destroyed, and the Board of Directors may delegate to any officer of the Corporation the power to
make such determinations and to cause such replacement certificates to be issued.
Section 5. Warrants
The foregoing provisions relative to certificates of stock shall also apply to allotment
certificates or other certificates or warrants representing rights with respect to stock in the
Corporation, which certificates or warrants may be issued from time to time by a vote of the Board
of Directors in such form as they may approve.
Section 6. Stock Ledger
The Corporation shall maintain a stock ledger which contains the name and address of each
stockholder and the number of shares of stock of each class which the stockholder holds. The stock
ledger may be in written form or in any other form which can be converted within a reasonable time
into written form for visual inspection. The original stock ledger shall be kept at the office of
the Corporation’s Transfer Agent.
ARTICLE VIII.
SIGNATURES
Section 1. Negotiable Instruments
All checks, drafts, notes, or other obligations of the Corporation shall be signed (a) by any
two officers of the Corporation of the rank of President, Executive Vice President, Senior Vice
President or Vice President, (b) by the President, Executive Vice
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President, any Senior Vice President or any Vice President, and by the Treasurer or Assistant
Treasurer or Secretary or Assistant Secretary, or (c) as otherwise authorized by the Board of
Directors or the Executive Committee; provided, however, that bonds, debentures or notes issued
under a mortgage indenture or trust agreement with a bank or trust company as trustee and coupons
attached or pertaining to any such bonds, debentures or notes may be executed manually or by
facsimile.
Section 2. Stock Transfers
All endorsements, assignments, transfers, stock powers or other instruments of transfer of
securities standing in the name of the Corporation shall be executed for and in the name of the
Corporation (a) by any two officers of the Corporation of the rank of President, Executive Vice
President, Senior Vice President or Vice President, or (b) by the President, Executive Vice
President, any Senior Vice President or any Vice President, and by the Secretary or any Assistant
Secretary, or (c) as otherwise authorized by the Board of Directors.
ARTICLE IX.
WAIVER OF NOTICE OF MEETINGS
Section 1. Stockholders
Notice of the time, place and/or purpose of any meeting of stockholders shall not be required
to be given to any stockholder who shall attend such meeting in person or by proxy; and if any
stockholder shall, in a writing filed with the records of the meeting, either before or after the
holding thereof, waive notice of any stockholders’ meeting, notice thereof need not be given to
him.
Section 2. Directors
Notice of any meeting of the Board of Directors or of any committee thereof need not be given
to any director if he shall attend such meeting in person, or shall in a writing filed with the
records of the meeting, either before or after the holding thereof, waive such notice; and any
meeting of the Board of Directors or of any committee thereof shall be a legal meeting without any
notice thereof having been given if all such directors shall be present at such meeting.
ARTICLE X.
VOTING OF STOCKS
Unless otherwise ordered by the Board of Directors, the President, the Executive Vice
President, any Senior Vice President or any Vice President of this Corporation shall have full
power and authority, on behalf of the Corporation, to attend, act and vote at any meeting of the
stockholders of any corporation in which this Corporation may hold stock and at such meeting may
exercise any or all rights and powers incident to the ownership
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of such stock and which as owner thereof the Corporation might exercise if present, and to
execute on behalf of the Corporation a proxy or proxies empowering others to act as aforesaid. The
Board of Directors by resolution from time to time may confer like powers upon any other person or
persons.
ARTICLE XI.
CHECKS, NOTES, ETC.
All checks on the Corporation’s bank accounts and all drafts, bills of exchange and promissory
notes, and all acceptances, obligations and other instruments for the payment of money, shall be
signed by such person or persons as shall be authorized to do so from time to time by the Board of
Directors or by the committee or officer or officers of the Corporation to whom the Board shall
have delegated the power to authorize such signing; provided, however, that the signature of any
person so authorized on checks and drafts drawn on the Corporation’s dividend and special accounts
may be in facsimile if the Board of Directors or such committee or officer or officers, whichever
shall have authorized such person to sign such checks or drafts, shall have authorized such person
to sign in facsimile, and provided further that in case notes or other instruments for the payment
of money (other than notes, bonds or debentures issued under a trust instrument of the
Corporation) are required to be signed by two persons, the signature thereon of only one of the
persons signing any such note or other instrument may be in facsimile, and that in the case of
notes, bonds or debentures issued under a trust instrument of the Corporation and required to be
signed by two officers of the Corporation, the signatures of both such officers may be in facsimile
if specifically authorized and directed by the Board of Directors of the Corporation and if such
notes, bonds or debentures are required to be authenticated by a corporate trustee which is a party
to the trust instrument and provided further that in case any person or persons who shall have
signed any such note or other instrument, either manually or in facsimile, shall have ceased to be
a person or persons so authorized to sign any such note or other instrument, whether because of
death or by reason of any other fact or circumstance, before such note or other instrument shall
have been delivered by the Corporation, such note or other instrument may, nevertheless, be adopted
by the Corporation and be issued and delivered as though the person or persons who so signed such
note or other instrument had not ceased to be such a person or persons.
ARTICLE XII.
OFFICES
The Corporation may have offices outside the State of Delaware at such places as shall be
determined from time to time by the Board of Directors.
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ARTICLE XIII.
AMENDMENTS
Subject to the provisions of the Certificate of Incorporation, (1) these By-Laws may be
amended, altered or repealed by the stockholders at any annual or special meeting by the
affirmative vote of at least 75% of the voting power of the outstanding shares of Voting Stock
(after giving effect to the provisions of Article NINTH of the Certificate of Incorporation) and
(2) these By-Laws may be amended, altered or repealed by the Board of Directors by the affirmative
vote of a majority of the Whole Board.
As amended and restated effective January 1, 2007
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Exhibit 10.2
ALLEGHANY CORPORATION RETIREMENT PLAN
(As Amended and Restated as of December 31, 2006)
This document sets forth the Alleghany Corporation Retirement Plan, as amended and restated
effective as of December 31, 2006.
The Plan, as so amended and restated, is intended to be a plan which is unfunded and is
maintained by Alleghany Corporation primarily for the purpose of providing deferred compensation
for a select group of management or highly compensated employees both within the meaning, and for
the purposes, of Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income
Security Act of 1974, as amended.
The rights under the Plan of any person who retired or otherwise terminated employment with
Alleghany Corporation before the effective date of a particular amendment shall be determined
solely under the terms of the Plan as in effect on the date of such retirement or other termination
of employment, without regard to such amendment, except that such person’s benefit under the Plan
may be paid at such time, and in such form, as may be permitted under the terms of the Plan as in
effect on the date as of which the payment of such person’s benefit commences.
ARTICLE I.
DEFINITIONS
1.01 “
Actuarial Equivalent
” means with respect to a retirement benefit, an equivalent
amount or amounts computed using (i) the mortality table prescribed in Section 417(e)(3)(A)(ii)(I)
of the Code and (ii) the interest rate prescribed by the Internal Revenue Service under Section
417(e)(3)(A)(ii)(II) of the Code for the month immediately preceding the month in which such
Actuarial Equivalent is being determined.
For purpose of this Section 1.01, all references to Section 417(e)(3) of the Code shall be
administered without regard to the effects enacted under the Pension Protection Act of 2006. In
addition, at such time as the Internal Revenue Service ceases to publish the relevant interest
rate, the determination of an Actuarial Equivalent shall instead be computed using the U.S. 30-year
Treasury rate in effect at the close of the first business day of the month in which such Actuarial
Equivalent is being determined.
1.02 “
Alleghany
” means Alleghany Corporation and, solely for purposes of determining
the date of a Participant’s Termination of Employment (other than by reason of his ceasing to be an
officer), includes any corporation or other person treated as a single employer with Alleghany
Corporation under Section 414(b) or (c) of the Code.
1.03 “
Annuity Starting Date
” means the first day on which an amount is payable to the
Participant in accordance with this Plan.
1.04 “
Average Compensation
” means, with respect to any Participant, the annual
average of his Base Compensation and his Short-Term Incentive Compensation for the three
consecutive calendar years in the period of ten calendar years ending with the calendar year in
which he has a Termination of Employment, which results in the highest such average.
1.05 “
Base Compensation
” means the base salary earned by an Employee for the relevant
period (whether or not such compensation is currently payable or deferred) for his services as
such, which base salary shall not include (by way of illustration and not limitation) any non cash
compensation, any savings benefit amounts, (any Short-Term Incentive Compensation), long term
incentive bonuses, restricted stock or other extraordinary compensation, payments, allowances or
reimbursements.
In the case of a Participant who becomes Totally Disabled, the Participant shall be treated as
earning Base Compensation, for the period which begins on the date on which he becomes Totally
Disabled and which ends on his Normal Retirement Date, at an annual rate which is equal to his
annual rate of base salary immediately prior to the date on which he becomes Totally Disabled.
Such amount shall be adjusted on the first day of each Plan Year included in such period to take
into account the percentage increase, if any, in the CPIU over the previous Plan Year. The “CPIU”
is the U.S. City Average All Items Consumer Price Index for all Urban Consumers, published by the
U.S. Department of Labor, Bureau of Labor Statistics, or any successor index designated by the
Department of Labor.
1.06 “
Beneficiary
” means the person or persons last designated by a Participant, on a
form provided by, and filed with, the Plan Administrator, to receive benefits under Article V
following the Participant’s death. If all the persons so designated are individuals and if there
is no such individual living at the death of the Participant, or if no such person has been
designated, then the Participant’s Beneficiary shall be his estate, and if such Participant and his
Beneficiaries all die before all the specified monthly payments have been made under a period
certain option elected by the Participant, the commuted value of the balance shall be paid in a
lump sum to the estate of the last to survive of the Participant and his Beneficiaries.
1.07 “
Board
” means the Board of Directors of Alleghany or the Executive Committee
thereof.
1.08 “
Code
” means the Internal Revenue Code of 1986, as amended.
1.09 “
Early Retirement Date
” means, with respect to any Participant, the first day of
the calendar month coinciding with or next following the latest of (a) the date on which he incurs
a Termination of Employment, (b) the date on which he attains age 55, (c) the date (not later than
his Normal Retirement Date) elected by him (where such election is made in accordance with Section
5.07), or (d) completion of 5 years of service.
1.10 “
Employee
” means any individual in the employ of Alleghany. No person who is
engaged by, or performs services for, Alleghany pursuant to any agreement or arrangement
designating such engagement or services as that of a “consultant,” “independent contractor” or
other words of similar meaning shall be deemed an Employee.
1.11 “
Employment Commencement Date
” means the first day on which an Employee is
employed as a common-law employee by Alleghany.
1.12 “
ERISA
” means the Employee Retirement Income Security Act of 1974 and the
regulations thereunder, as from time to time amended and in effect.
1.13 “
Late Retirement Date
” means the first day of the calendar month coinciding with
or next following the date on which a Participant incurs a Termination of Employment after his
Normal Retirement Date.
1.14 “
Normal Retirement Date
” means the first day of the calendar month coinciding
with or next following the first date on which a Participant has attained at least age 65 and has
completed at least 5 Years of Service.
1.15 “
Participant
” means an Employee who has been selected to participate in the Plan
as provided in Article II or who has any accrued retirement benefits under the Plan which have not
been distributed in full to him (or his Beneficiary).
1.16 “
Plan
” means the plan set forth herein as modified or amended from time to time.
1.17 “
Plan Administrator
” means the person serving from time to time as the Treasurer
of Alleghany, or if no person is so serving at the time of reference, then Alleghany.
1.18 “
Plan Year
” means a calendar year.
1.19 “
Short-Term Incentive Compensation
” means the amount of the cash bonus accrued by
an Employee in respect of the relevant period (whether or not such amount is currently paid or
deferred) under the Alleghany Management Incentive Plan (or any plan adopted by the Board in
replacement of such plan).
In the case of a Participant who becomes Totally Disabled, the Participant shall be treated as
accruing Short-Term Incentive Compensation for the period which begins on the date on which he
becomes Totally Disabled and which ends on his Normal Retirement Date (the “Disability Period”), at
an annual rate which is equal to his average annual rate of Short-Term Incentive Compensation. For
this purpose, a Participant’s average annual rate of Short-Term Incentive Compensation shall mean
the average of his Short-Term Incentive Compensation for the three consecutive calendar years in
the period of the ten calendar years which immediately precedes the date he becomes Totally
Disabled and which results in the highest such average, or if he had not been employed by the
Alleghany for at least 3 complete, consecutive calendar years, then the annual average of his
Short-Term Incentive Compensation for all full calendar years during which he was so employed.
Such average annual rate of Short-Term Incentive Compensation shall be adjusted, for each calendar
year in the Disability Period, to take into account the percentage increase, if any, in the CPIU
(as defined in Section 1.04) over the previous calendar year.
1.20 “
Spouse
” shall mean the person to whom the Participant is lawfully married under
applicable law at the time of reference.
1.21 “
Termination of Employment
” means, and an Employee shall be treated as having
incurred, a termination of employment as of the first date on which he ceases for any reason to be
an officer of Alleghany, as provided in the By Laws of Alleghany. A Participant who becomes
Totally Disabled shall not be treated as having incurred a Termination of Employment for any
purpose of the Plan until the earliest of the date on which he ceases to be Totally Disabled
(assuming he does not resume his employment with Alleghany on such date), his Normal Retirement
Date or the date of his death. Solely for purposes of determining the date of the commencement of
any Participant’s benefits, the date of a Participant’s Termination of Employment shall not be
earlier than the date of the Participant’s “termination of employment” within the meaning of
Treasury Regulation Section 1.409A-1(h)(1).
1.22 “
Totally Disabled
” means a physical and/or mental incapacity of such condition
that it qualifies an individual (after the waiting period required thereunder) for benefits under
the Alleghany Corporation Group Long Term Disability Plan, as in effect from time to time.
1.23 “
Year of Service
” shall mean as to any Participant, the number of whole or
fractional periods of 12 consecutive months (such fraction being computed on the basis of complete
months) which are included in the period which begins on the date on which he first became a
Participant and which ends on the date of his final Termination of Employment (which, for the
avoidance of doubt, shall include the period while he is Totally Disabled). The Board may, by
resolution, grant additional Years of Service to a Participant for such period prior to the date he
first became a Participant as the Board shall determine, which grant shall be set forth opposite
the Participant’s name on Exhibit II attached hereto. Further, a Participant employed prior to the
effective date of the Plan, January 1, 1989, shall be credited with that additional number of Years
of Service which is set forth opposite his name on Exhibit I attached hereto.
ARTICLE II.
PARTICIPATION
2.01
Participation
. Each Employee who has been elected by the Board to the position
of an officer of Alleghany, as provided in the By Laws of Alleghany, and who is designated by the
Board to participate in the Plan shall become a Participant effective on the later of his
Employment Commencement Date or the date specified by the Board.
2.02
Re Employment of Former Participant
. If a Participant or former Participant who
incurred a Termination of Employment shall again become an Employee and he is again designated by
the Board to participate in the Plan, such Employee shall again become a Participant or resume his
active participation in the Plan, as applicable, effective on the later of the date of his
re-employment or the date specified by the Board. A Participant or former Participant who again
becomes an Employee, but is not designated by the Board to participate in the Plan, shall not again
become (or resume being) a Participant and his Years of Service and Base Salary and Short-Term
Incentive Compensation during his subsequent period of employment shall be disregarded in calculating his benefits under this Plan.
ARTICLE III.
VESTING AND BENEFIT ENTITLEMENT
3.01
Vesting and Entitlement
. A Participant shall have a nonforfeitable right to 100
percent of, and shall be entitled to receive, his retirement benefit as determined pursuant to
Article IV if he has completed at least 5 Years of Service.
3.02
Termination before Vesting
. A Participant who terminates his employment with
Alleghany before he has completed at least 5 Years of Service shall not be entitled to any
retirement benefit under this Plan unless he is thereafter re employed by Alleghany and completes
at least 5 Years of Service.
ARTICLE IV.
RETIREMENT BENEFITS
4.01
Retirement Benefit at Normal Retirement Date
. The annual retirement benefit of a
Participant, calculated as a monthly annuity which starts on the Participant’s Normal Retirement
Date, is payable to the Participant for his life, and after the Participant’s death continues to
the Participant’s Spouse, if any, for her life in the same monthly amount as was being received by
the Participant, shall equal the product of (i) 66.67% of the Participant’s Average Compensation,
(ii) a fraction, not greater than one, the numerator of which is the number of his whole and
fractional Years of Service and the denominator of which is 15 and (iii) an Actuarial Equivalent
factor, not greater than 1, to reflect the additional value of the Spouse’s benefit on account of
the number of years and months, if any, by which the Spouse is younger than the Participant.
4.02
Reduction for Prior Distributions
. In the case of any Participant identified on
Exhibit III who received a prior distribution of retirement benefits, the Participant’s annual
retirement benefit otherwise payable under Article IV shall be offset by the Actuarial Equivalent
of amounts shown in Exhibit III.
4.03
Retirement Benefit at Late Retirement Date
.
If a Participant terminates employment with Alleghany after his Normal Retirement Date, then
such Participant shall be entitled to receive the greater of:
(a) the annual retirement benefit determined in accordance with the formula in Section
4.01, reduced (if applicable) as set forth in Section 4.02, based on the Participant’s Years
of Service and Average Compensation calculated as of his Normal Retirement Date, then
increased from the Participant’s Normal Retirement Date until his Annuity Starting Date
using the rate of interest in effect at the close of the first business day of each such
calendar year for U.S. Treasury obligations with a then maturity date of one year; or
(b) the annual retirement benefit determined in accordance with the formula in Section
4.01, reduced (if applicable) as set forth in Section 4.02, based on the Participant’s Years
of Service and Average Compensation calculated as of his Late Retirement Date.
4.04
Retirement Benefit at Early Retirement Date
. The annual retirement benefit
payable to a Participant whose retirement benefits commence prior to his Normal Retirement Date
shall equal the annual retirement benefit determined in accordance with the formula in Section
4.01, reduced (if applicable) as set forth in Section 4.02, further adjusted as follows:
(a) if the Participant terminated his employment with Alleghany either (i) on or after
attaining age 55 and completing at least 20 Years of Service or (ii) on or after attaining
age 60 and completing at least 10 Years of Service, then his annual retirement benefit shall
be reduced by 3% for each year (interpolated for fractional years) by which his Annuity
Starting Date is prior to the date he would attain his Normal Retirement Date; and
(b) in all other cases, his annual retirement benefit shall be reduced by 6% for each
year (interpolated for fractional years) by which his Annuity Starting Date is prior to the
date he would attain his Normal Retirement Date.
ARTICLE V.
FORMS OF RETIREMENT BENEFITS
5.01
Calculation of Amount of Benefit Payments
. The actual amount of a Participant’s
retirement benefit distribution under this Article V in the form elected shall be the Actuarial
Equivalent of the annual retirement benefit payable to the Participant pursuant to Section 4.01,
4.03 or 4.04, as applicable to the Participant, including taking account of the actual age of the
Participant’s Spouse, if any.
5.02
Automatic Form of Benefit
.
(a) Unless he shall elect to the contrary, a Participant who is married on his Annuity
Starting Date shall receive a retirement benefit for his life payable monthly beginning on
his Annuity Starting Date, with such monthly annuity continued to the Participant’s Spouse
(if she has survived him) for the remainder of her life in the same monthly amount as the
Participant was receiving prior to his death. For purposes of this Plan, an individual will
not be treated as the Participant’s Spouse unless she was lawfully married to the
Participant on his Annuity Starting Date (or, in the case of a Participant’s death prior to
his Annuity Starting Date, on his date of death).
(b) Unless he shall elect to the contrary, a Participant who is not married on his
Annuity Starting Date shall receive his retirement benefits as monthly payments which shall
continue for as long as the Participant lives after payments begin.
5.03
Optional Forms
. In lieu of the form of benefit provided for by Section 5.02, a
Participant may elect to receive his retirement benefits in any of the following optional forms:
(a) a single life option, under which the Participant’s retirement benefit shall
consist of monthly payments which shall continue for as long as the Participant lives after
payments begin;
(b) a period certain option, under which the Participant shall receive a retirement
benefit payable in equal monthly installments during his lifetime and ending with the
payment due on the first day of the month in which the Participant’s death occurs, but with
the provision that not less than 120 monthly installments shall be made to him and his
Beneficiaries;
(c) a joint and survivor option, under which a Participant shall receive a monthly
retirement benefit for his life with a survivor annuity for the life of his Beneficiary
which is equal to 50% or 100%, as he shall have elected, of the monthly benefit for the
Participant’s life; or
(d) a lump sum option, under which the Participant shall receive a single lump sum
payment equal to the retirement benefit to which he is then entitled.
5.04
Death Benefit for Spouse
.
(a) If a Participant has completed at least 5 Years of Service, dies before his Annuity
Starting Date and is survived by a Spouse (a “Surviving Spouse”), then his Surviving Spouse
shall receive an annuity for the life of the Surviving Spouse which shall be the same as the
amount of the benefit that would have been paid to such Surviving Spouse under Section
5.02(a) if (i) in the case of a Participant who dies after attaining age 55, the Participant
had retired on the day before his death; or (ii) in the case of a Participant who dies on or
before attaining age 55, the Participant had separated from service on the date of his
death, survived until age 55, and retired at that time.
(b) In the case of a Participant who dies after attaining age 55, such benefit to the
Surviving Spouse shall commence as of the first day of the month coinciding with or next
following the date of the Participant’s death, or, in the case of a Participant who dies on
or before attaining age 55, such benefit to the Surviving Spouse shall commence on the first
day of the month coinciding with or next following the date the Participant would have
attained age 55.
5.05
Commencement of Benefits
.
(a) Payment of a Participant’s retirement benefit to the Participant shall be made or
commence on (and in no event shall be paid or commence later than thirty (30) days after)
the first day of the calendar month coinciding with or next following the date
elected by the Participant or at such other time as provided in the Plan, but in no event
may the date for payment or commencement of any Participant’s retirement benefits under the
Plan precede the date of the Participant’s Termination of Employment or his Early Retirement
Date.
(b) In the absence of a Participant’s effective election, payment of a Participant’s
retirement benefit shall be made in the form provided under Section 5.02, and payment of
such retirement benefit shall commence on the later of (x) the first day of the calendar
month coinciding with or next following the date the Participant has a Termination of
Employment or (y) the date the Participant attains his Normal Retirement Date.
(c) Notwithstanding any other provision of the Plan to the contrary, if on the date of
a Participant’s Termination of Employment the Participant was a “specified employee” within
the meaning of Treasury Regulation Section 1.409A-1(i) then (i) payment of the Participant’s
retirement benefits under this Plan shall not commence before the first day of the month
that is more than six months after his Termination of Employment, and (ii) the aggregate
amount of any payments that would have been made to the Participant because of his
Termination of Employment in the absence of clause (i) shall be paid to the Participant in a
lump sum on the date the payment of his retirement benefits commences under clause (i) with
interest thereon on each such payment from the date the payment was otherwise due until it
is actually paid at the interest rate used to determine Actuarial Equivalences on the date
such payment is actually made. The “identification date” for determining whether an
Employee is a “specified employee” within the meaning of Treasury Regulation Section
1.409A-1(i) shall be December 31st of each year.
5.06
Automatic Payments
. Notwithstanding any Participant’s election pursuant to this
Plan as to the time or form of his benefits, the following shall apply:
(a) If any monthly payment that would otherwise be made to any person under the Plan is
less than $1,000, then, if the Plan Administrator shall so direct, the aggregate of the
amounts which shall be paid to such person in any year shall be paid in quarterly,
semiannual or annual installments; and
(b) If the Actuarial Equivalent value of the Participant’s nonforfeitable retirement
benefit as of the date of his Termination of Employment or the retirement benefit payable to
the Participant’s Surviving Spouse as of the date of the Participant’s death, in either
case, does not exceed $100,000 if paid as a lump sum, then an amount equal to such Actuarial
Equivalent value of such retirement benefits shall be paid to the Participant or the
Participant’s Spouse in a lump sum in lieu of any retirement benefits to which he or she may
be entitled to under this Plan.
5.07
Time of Elections
.
(a) At any time within 30 days after an Employee is first designated as a Participant,
the Participant may affirmatively elect (an “Election”): (i) the form in which the
Participant’s retirement benefit shall be paid, and (ii) the date or dates and/or event or
events for payment of his retirement benefit under the Plan (each such date or dates and/or
event or events being referred to herein as a “Payment Date”); provided, however, that no
Election shall be given effect (and such Election shall be deemed void) if the Payment Date
is, or results in, an Annuity Starting Date that is earlier than the date of the
Participant’s Termination of Employment. Each Payment Date must be objectively
determinable. Unless a Participant elects otherwise, entitlement to any benefit payable as
an annuity will be treated as a single payment, made on the first day on which a payment is
to be made under the annuity, for purposes of applying Section 5.07(b) hereof with respect
to Amended Elections.
(b) At least twelve months prior to the date any amount would have been paid to the
Participant on a specified Payment Date (the actual date of payment pursuant to Section
5.07(a) hereof or, in the absence of such an election, the date such amount would have been
payable pursuant to Section 5.05(b) hereof being the “Original Payment Date”), a Participant
may elect (an “Amended Election”) to defer distribution of the amount payable on, or
beginning as of, that Original Payment Date to a date after that Original Payment Date or to
change the form in which the Participant’s retirement benefit shall be paid (any such later
date shall then becomes the Payment Date); provided, however, that (a) such Amended Election
will not take effect for (and so shall be null and void until) at least 12 months after the
date on which it is made, and (b) the distribution of the amount to which the Amended
Election applies cannot be made until at least 5 years from that Original Payment Date.
Except as set forth herein, a Participant’s Amended Election may otherwise provide for
distribution at any time or in any form as could have been elected in an original Election.
There shall be no limit on the number of Amended Elections that a Participant may make.
(c) Each election shall be in writing on a form provided by and filed with the Plan
Administrator, and shall specify the form of benefit the Participant elects and the Payment
Date or Dates of the payment of such retirement benefit. Any election, once made, shall be
irrevocable, except as provided in Section 5.07(b).
(d) The Plan is intended to be operated in compliance with Section 409A of the Code.
If any provision of the Plan is subject to more than one interpretation, then the Plan shall
be interpreted in a manner that is consistent with Section 409A of the Code. If any payment
or election under the Plan is inconsistent with, or in violation of, Section 409A of the
Code, then such payment or such election, to the extent inconsistent with or in violation of
Section 409A of the Code shall not be made, or shall be null and void, as applicable.
(e) Notwithstanding any other provision of this Section 5.07 to the contrary, each
Participant in this Plan as of December 31, 2007, may on or before December 31, 2007, make,
modify or revoke any election as to the time or form of payment of all or any of his
retirement benefit permitted to be made under this Plan, and all such elections in effect at
the close of business on December 31, 2007, shall be irrevocable, except as otherwise
provided herein.
5.08
Termination of Benefit
. If the period of any retirement benefit is measured by
the life of an individual, the last payment to such individual shall be the last payment due on, or
immediately prior to, the date of the individual’s death. No benefit shall be payable under the
Plan with respect to any Participant after such Participant’s death unless specifically provided
for in the Plan.
5.09
Withholding
. Alleghany shall have the right to deduct from all payments made
hereunder any federal, state, local or foreign income or employment taxes required, in the sole
judgment of Alleghany, to be withheld with respect to such payments. Notwithstanding any provision
of this Plan to the contrary, each Participant, as a condition to the entitlement to any retirement
benefits accruing under this Plan shall pay, or have made arrangements satisfactory to Alleghany
for the payment of, any employment taxes on retirement benefits accruing under this Plan.
ARTICLE VI.
PLAN ADMINISTRATION
6.01
Plan Administrator Records
. The Plan Administrator shall keep or cause to be
kept all data, records and documents relating to the administration of the Plan.
6.02
Employment of Experts
. The Plan Administrator may employ or engage such
independent actuaries, accountants, counsel, and other experts or persons as the Plan Administrator
may deem necessary in connection with discharging its duties under the Plan.
6.03
Payment of Expenses
. All expenses incurred in connection with the administration
of the Plan, including, but not limited to, the compensation of any actuary, accountant, counsel,
and other experts or persons who shall be employed by the Plan Administrator in connection with the
administration of the Plan shall be paid by Alleghany.
6.04
Indemnification of Plan Administrator
. Alleghany shall indemnify and hold
harmless to the fullest extent permitted by law the Plan Administrator and any Employee of
Alleghany to whom Plan responsibilities are delegated by the Plan Administrator from and against
any liabilities, damages, costs and expenses (including attorneys’ fees and amounts paid in
settlement of any claims approved by Alleghany) incurred by or asserted against the Plan
Administrator or such Employee by reason of the occupying or having occupied positions in
connection with the Plan, except that no indemnification shall be provided if the Plan
Administrator or such Employee personally profited from any act or transaction in respect of which
indemnification is sought.
6.05
Binding Action
. To the fullest extent permitted by law, all actions taken and
decisions made by the Plan Administrator shall be final, conclusive and binding on all persons
having any interest in the Plan or in any benefits payable thereunder.
ARTICLE VII.
POWERS AND DUTIES OF PLAN ADMINISTRATOR
7.01
Administration Powers
. The Plan Administrator shall have the power to take all
action and to make all decisions necessary or proper in order to carry out its duties and
responsibilities under the provisions of the Plan, including without limitation, the following:
(a) To make and enforce such rules and regulations as the Plan Administrator shall deem
necessary or proper for the efficient administration of the Plan;
(b) To interpret the Plan and its rules and regulations; and
(c) To delegate to one or more persons the authority to administer the Plan, with such
duties, powers and authority relative to the administration of the Plan as the Plan
Administrator shall determine, and in so doing to limit its own duties and responsibilities
to the extent specified in such appointment.
The Plan Administrator shall report to the Compensation Committee of the Board each year
concerning the administration and operation of the Plan.
7.02
Plan Administrator Claims Review Authority and Procedures
. Any claim for
benefits or other payments under the Plan shall be determined in accordance with the procedure set
forth below. A claim for benefits or other payments may be filed by a Participant, the surviving
Spouse of a Participant, a Beneficiary of a Participant or the authorized representative of such
Participant, Surviving Spouse or Beneficiary (the “claimant”).
(a)
Initial Claim Determination
. Any claim for benefits or other payments
under the Plan shall be made by filing a written statement of such claim with the person or
persons designated by the Plan Administrator to process and make initial determinations as
to such claims. In the event such claim is denied in whole or in part, such person or
persons shall notify the claimant of the denial within 90 days after the date on which the
claim was filed. However, if the Plan Administrator determines that special circumstances
require an extension of time for deciding the claim, the Plan Administrator shall furnish
written notice of the extension to the claimant prior to the expiration of such 90 day
period. This notice shall indicate the special circumstances requiring the extension, and
the date by which the Plan expects to render the determination on the claim. If an
extension is taken, and if the claim is denied in whole or in part, the person or persons
who processed and denied the claim shall notify the claimant of the denial within 180 days
after the date on which the claim was filed.
(b)
Initial Notification of Claim Denial
. Any notification of a whole or
partial denial of a claim shall be in writing. Such notification shall set forth, in a
manner calculated to be understood by the claimant:
(i) the specific reason or reasons for the denial;
(ii) reference to the specific provisions of the Plan on which the denial was
based;
(iii) a description of any additional material or information necessary for the
claimant to perfect the claim, and an explanation of why such material or
information is necessary; and
(iv) an explanation of the review procedure under subsection (c), including a
description of the time limits applicable to such procedure and a statement of the
claimant’s right to bring a civil action under Section 502(a) of ERISA following an
adverse determination of the claim on review.
(c)
Review Procedure
. A claimant whose claim is denied in whole or in part
under subsection (a) shall be entitled to have such denial reviewed by the Plan
Administrator, by filing a written request for such review with the Plan Administrator
within 60 days after its receipt of the notification of the claim denial under subsection
(b). The claimant may request and shall be provided, free of charge, reasonable access to,
and copies of, all documents, records and other information which is relevant to the claim,
and which is in the possession of the Plan Administrator or Alleghany. The claimant may
provide comments, documents, records and other information relating to the claim to the
Plan Administrator to consider when reviewing the claim. Upon receipt of a request for a
review of a denied claim, the Plan Administrator shall make a full and fair review of the
claim. Such review shall take into account all comments, documents, records and other
information submitted by the claimant relating to the claim, without regard to whether the
same was submitted or considered in the initial claim determination.
(d)
Decision on Review
. The Plan Administrator shall make a decision with
respect to such claim, and shall notify the claimant of its decision, within 60 days after
its receipt of the claimant’s written request for review. However, if the Plan
Administrator determines that special circumstances, such as the need to hold a hearing,
require an extension of time for deciding the claim, the Plan Administrator shall provide a
written notice of the extension to the claimant prior to the expiration of such 60 day
period. This notice shall indicate the special circumstances requiring the extension, and
the date by which the Plan expects to render the determination on review. If an extension
is taken, the Plan Administrator shall notify the claimant of its decision on the claim
within 120 days after the date on which the request to review the denial of the claim was
filed. However, if the Plan Administrator determines that an extension is needed because
the claimant must submit additional information in order for the Plan Administrator to make
its determination on the claim, and the Plan Administrator requests such additional
information from the claimant in the notification of extension, then the 120 day period
for making the determination on review shall be tolled for the period which starts on the
date on which such notification is sent to the claimant, and which ends on the date on
which the claimant provides such additional information to the Plan Administrator.
(e)
Notification of Decision on Review
. The notification of the Plan
Administrator’s decision on review shall be in writing. If the claim is denied, the
notification shall set forth, in a manner calculated to be understood by the claimant:
(i) the specific reason or reasons for the claim denial;
(ii) reference to the specific Plan provisions on which the claim denial was
based;
(iii) a statement that the claimant is entitled to receive, upon request and
free of charge, reasonable access to, and copies of, all documents, records and
other information which is relevant to the claim, and which is in the possession of
the Plan Administrator or Alleghany; and
(iv) a statement of the claimant’s right to bring an action with respect to the
matter raised in the claim under Section 502(a) of ERISA.
The Plan Administrator shall provide the claimant with reasonable access to, and copies of,
any documents, records and other information which the claimant is entitled to receive, as
indicated in the notification.
7.03
Conflicts of Interest
. The Plan Administrator shall not participate in the
resolution of any question which relates directly or indirectly to him and which, if applied to
him, would significantly vary his eligibility for, or the amount of, any benefit payable to him.
In cases involving the disqualification under this Section 7.03 of the Plan Administrator, the
questions at issue shall be certified to the Compensation Committee of the Board for resolution.
ARTICLE VIII.
LIMITATION OF RIGHTS AND OBLIGATIONS
8.01
Plan is Voluntary
. Although it is the intention of Alleghany that the Plan shall
be continued, the Plan is entirely voluntary on the part of Alleghany and the Plan’s continuance is
not a contractual obligation of Alleghany. Notwithstanding any termination of the Plan by
Alleghany, Alleghany agrees as a contractual obligation with the Participants to pay all amounts as
shall be necessary to provide the retirement benefits accrued by them under the Plan as of the date
of any such termination of the Plan.
8.02
Creation of Certain Employment Rights
. The Plan shall be deemed to constitute a
contract between Alleghany and each Participant and is consideration or inducement for the
employment of the Participant by Alleghany. Notwithstanding the foregoing, nothing contained
in the Plan shall be deemed (a) to give any person the right to be retained in the service of
Alleghany or to be continued as an officer of Alleghany or (b) to interfere with the right of
Alleghany to discharge any person at any time without regard to the effect which such discharge
shall have upon his rights or potential rights, if any, under the Plan.
8.03
Distributions Only from Alleghany
. Each Participant and any other person who
shall claim any retirement benefit or other rights under the Plan shall be entitled to look only to
Alleghany for any payment or benefit, and no member of the Board, officer or employee of Alleghany
shall be liable in any manner if Alleghany shall fail to meet its obligations hereunder. Each
Participant shall be only an unsecured general creditor of Alleghany with respect to the retirement
benefits to which he is entitled under this Plan.
ARTICLE IX.
AMENDMENT AND TERMINATION
9.01
Amendment
. The Plan may be amended, whether prospectively or retroactively, in
whole or in part, at any time, or from time to time, whether upon termination or otherwise, as to
any or all of its provisions, by, or pursuant to authorization contained in, a resolution adopted
by the Board; provided, however, that no amendment may reduce the accrued benefit of any
Participant (calculated as if the Plan then terminated).
9.02
Termination
. The Board may at any time terminate the Plan, in whole or part.
9.03
Payment of Benefits upon Termination
. Upon termination of the Plan, benefits may
be paid directly by Alleghany or by means of insurance and/or annuity contracts purchased from one
or more insurance companies either (a) by payment of the benefits when and as called for under the
Plan until such time as all benefits are paid, or (b) by distribution of the Actuarial Equivalent
of the accrued retirement benefits of each Participant, in cash in one lump sum or (c) by the
purchase of annuity contracts of such type as the Board shall determine; provided, however, that no
payment shall be made in a form or at a time which shall violate Section 409A of the Code. For
this and all other purposes of the Plan, the accrued benefit of any Participant shall equal the
retirement benefit (or the lump sum Actuarial Equivalent thereof) the Participant would have been
entitled to receive at the time of reference if his Termination of Employment were the date of the
Plan termination or the time of reference, as the case may be, and the Participant’s retirement
benefits were payable as of the date, and in the form, then elected by the Participant pursuant to
Section 5.07 or as otherwise provided in the Plan.
ARTICLE X.
LIMITATION ON ASSIGNMENT
10.01
Spendthrift Provision
. In order that the benefits hereunder shall be fully
protected against claims of all sorts, direct or otherwise, none of the benefits provided hereunder
to any person shall be assignable or transferable voluntarily, nor shall they be subject to the
claims of any beneficiary or creditor whatsoever, nor subject to attachment, garnishment or other
legal process by any creditor or to the jurisdiction of any bankruptcy court or any insolvency
proceedings by operation of law, or otherwise. No person shall have any right to alienate,
anticipate, pledge, sell, transfer, assign, commute, or encumber any of such benefits voluntarily
or involuntarily.
10.02
Incompetence of Participant or Beneficiary
. If the Plan Administrator receives
evidence satisfactory to him that a person entitled to receive any payment under the Plan is
legally incompetent to receive such payment and to give valid release therefor, such payment may be
made to the guardian, committee, or other representative of such person duly appointed by a court
of competent jurisdiction. If a person or institution other than a guardian, committee, or other
representative of such person who has been duly appointed by a court of competent jurisdiction is
then maintaining or has custody of such incompetent person, the payment may be made to such other
person or institution and the release of such other person or institution shall be valid and
complete discharge for the payment.
ARTICLE XI.
MISCELLANEOUS
11.01
Governing Laws
. This Plan and all provisions thereof shall be construed and
administered according to the laws of the State of New York without giving effect to the principle
of conflicts of law thereof.
11.02
Name
. The name of this Plan is the “Alleghany Corporation Retirement Plan.”
11.03
Titles and Heading not to Control
. The titles to the Articles and the headings
of Sections in the Plan are placed herein for convenience of reference only, and in case of any
conflict, the text of this instrument, rather that such titles or headings, shall control.
11.04
Gender and Person
. The masculine pronoun shall include the feminine, the
feminine pronoun shall include the masculine and the singular shall include the plural wherever the
context so requires.
11.05
Preservation of Pre-Amendment Accrued Benefits
. Notwithstanding any provision
of the Plan to the contrary, each Participant who was employed by Alleghany on December 31, 2006,
shall always be entitled to receive no less than the amount of the retirement benefits (and any
related tax distributions) which such Participant had accrued as of December 31, 2006, payable in
such amounts, subject to such adjustments and utilizing such factors and methods pursuant to the
terms and provisions of the Plan as in effect prior to its amendment effective as of December 31,
2006; provided that the foregoing shall not entitle any Participant to payment of his retirement
benefits prior to the time provided in this Plan as in effect at the time such retirement benefits
commence. The amount of the retirement benefits (and any tax distributions) that a Participant may
be entitled to receive pursuant to the provisions of this Section 11.05 are in lieu of, and not in
addition to, the retirement benefits and entitlements to which such Participant is then entitled to
under this Plan as so amended effective as of December 31, 2006.
ALLEGHANY CORPORATION RETIREMENT PLAN
EXHIBIT I
Pre-Effective Date Years of Service
|
|
|
|
|
|
|
|
|
Years of
|
|
|
|
Service at 12/31/88__
|
|
Name
|
|
|
|
|
|
Sismondo, Peter
|
|
|
1.0
|
|
EXHIBIT II
Special Grants of Additional Years of Service
|
|
|
|
|
|
|
Name
|
|
Additional Years of Service
|
|
Hart, Robert M.
|
|
|
5
|
|
EXHIBIT III
Benson Chapman
|
|
|
|
|
|
|
Accumulation of
|
|
Retirement
|
|
Secular Lump Sum
|
|
Age
|
|
Payment
|
|
63
|
|
1,851,387
|
|
64
|
|
1,917,111
|
|
65
|
|
1,985,169
|
|
66
|
|
2,055,643
|
|
67
|
|
2,128,618
|
|
68
|
|
2,204,185
|
|
69
|
|
2,282,433
|
|
70
|
|
2,363,459
|
|
71
|
|
2,447,362
|
|
72
|
|
2,534,243
|
|
73
|
|
2,624,209
|
|
74
|
|
2,717,368
|
|
75
|
|
2,813,834
|
Robert Hart
|
|
|
|
|
|
|
Accumulation of
|
|
Retirement
|
|
Secular Lump Sum
|
|
Age
|
|
Payment
|
|
60
|
|
5,718,868
|
|
61
|
|
5,921,889
|
|
62
|
|
6,132,116
|
|
63
|
|
6,349,806
|
|
64
|
|
6,575,224
|
|
65
|
|
6,808,644
|
|
66
|
|
7,050,350
|
|
67
|
|
7,300,638
|
|
68
|
|
7,559,810
|
|
69
|
|
7,828,183
|
|
70
|
|
8,106,084
|
|
71
|
|
8,393,850
|
|
72
|
|
8,691,832
|
|
73
|
|
9,000,393
|
|
74
|
|
9,319,906
|
|
75
|
|
9,650,763
|
EXHIBIT III (con’t)
Peter Sismondo
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulation of
|
|
Ongoing Single
|
|
Ongoing Single
|
|
Accumulation of
|
|
Retirement
|
|
Secular Annuity
|
|
Life Secular
|
|
Life Tax-Qualified
|
|
Tax-Qualified
|
|
Age
|
|
Payments
|
|
Annuity Payments
|
|
Annuity Payments
|
|
Annuity Payments
|
|
55
|
|
|
0
|
|
|
|
140,252
|
|
|
|
1,473.44
|
|
|
|
0
|
|
|
56
|
|
|
143,397
|
|
|
|
140,252
|
|
|
|
1,536.59
|
|
|
|
0
|
|
|
57
|
|
|
292,731
|
|
|
|
140,252
|
|
|
|
1,599.74
|
|
|
|
0
|
|
|
58
|
|
|
448,248
|
|
|
|
140,252
|
|
|
|
1,662.89
|
|
|
|
0
|
|
|
59
|
|
|
610,203
|
|
|
|
140,252
|
|
|
|
1,726.03
|
|
|
|
0
|
|
|
60
|
|
|
778,862
|
|
|
|
140,252
|
|
|
|
1,789.18
|
|
|
|
0
|
|
|
61
|
|
|
954,505
|
|
|
|
140,252
|
|
|
|
1,852.33
|
|
|
|
0
|
|
|
62
|
|
|
1,137,418
|
|
|
|
140,252
|
|
|
|
1,915.48
|
|
|
|
0
|
|
|
63
|
|
|
1,327,905
|
|
|
|
140,252
|
|
|
|
1,978.62
|
|
|
|
0
|
|
|
64
|
|
|
1,526,278
|
|
|
|
140,252
|
|
|
|
2,041.77
|
|
|
|
0
|
|
|
65
|
|
|
1,732,863
|
|
|
|
140,252
|
|
|
|
2,104.92
|
|
|
|
0
|
|
|
66
|
|
|
1,948,001
|
|
|
|
140,252
|
|
|
|
2,104.92
|
|
|
|
2,152
|
|
|
67
|
|
|
2,172,045
|
|
|
|
140,252
|
|
|
|
2,104.92
|
|
|
|
4,393
|
|
|
68
|
|
|
2,405,365
|
|
|
|
140,252
|
|
|
|
2,104.92
|
|
|
|
6,727
|
|
|
69
|
|
|
2,648,345
|
|
|
|
140,252
|
|
|
|
2,104.92
|
|
|
|
9,158
|
|
|
70
|
|
|
2,901,384
|
|
|
|
140,252
|
|
|
|
2,104.92
|
|
|
|
11,689
|
|
|
71
|
|
|
3,164,898
|
|
|
|
140,252
|
|
|
|
2,104.92
|
|
|
|
14,325
|
|
|
72
|
|
|
3,439,322
|
|
|
|
140,252
|
|
|
|
2,104.92
|
|
|
|
17,070
|
|
|
73
|
|
|
3,725,108
|
|
|
|
140,252
|
|
|
|
2,104.92
|
|
|
|
19,929
|
|
|
74
|
|
|
4,022,724
|
|
|
|
140,252
|
|
|
|
2,104.92
|
|
|
|
22,907
|
|
|
75
|
|
|
4,332,663
|
|
|
|
140,252
|
|
|
|
2,104.92
|
|
|
|
26,007
|
|
Note: In applying the reduction in Section 4.02, the amounts shown above in this Exhibit III: (i)
as “Accumulations of Secular Annuity Payments” and “Accumulation of Tax-Qualified Annuity Payments”
are converted from a lump sum to the form provided in Article IV on an Actuarial Equivalent basis,
and (ii) as “Annuity Payments” are converted from an annual amount payable monthly of the annuity
form so specified to the form provided in Article IV on an Actuarial Equivalent basis. In each
case, such Actuarial Equivalent basis shall be determined as of the date the Participant’s
retirement benefits commence, and if the date the Participant’s retirement benefits commence is
other than the first day of the month coinciding with or next following the retirement age
indicated, the amount utilized will be based upon the amounts shown above interpolated for
completed months between the retirement ages indicated and the date such retirement benefits
commence.