SCHEDULE 14A INFORMATION

 

PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES

EXCHANGE ACT OF 1934 (AMENDMENT NO.      )

 

Filed by the Registrant þ

 

Filed by a Party other than the Registrant o

 

Check the appropriate box:

 

o  Preliminary Proxy Statement

(as permitted by Rule 14a-6(e)(2))

þ  Definitive Proxy Statement

o  Definitive Additional Materials

o  Soliciting Material Pursuant to Section 240.14a-12

 

W. R. BERKLEY CORPORATION

(Name of Registrant as Specified In Its Charter)

 

(Name of Person(s) Filing Proxy Statement, if other than Registrant)

 

Payment of Filing Fee (Check the appropriate box):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

W. R. BERKLEY CORPORATION

475 Steamboat Road

Greenwich, Connecticut 06830

 

 

NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
May 18, 2010

 

 

To The Stockholders of

W. R. Berkley Corporation:

 

Notice Is Hereby Given that the Annual Meeting of Stockholders of W. R. Berkley Corporation (the “Company”) will be held at its executive offices at 475 Steamboat Road, Greenwich, Connecticut, on Tuesday, May 18, 2010 at 1:00 p.m. for the following purposes:

 

 

In accordance with the Company’s By-Laws, the Board of Directors has fixed the close of business on March 23, 2010 as the date for determining stockholders of record entitled to receive notice of, and to vote at, the Annual Meeting.

 

We are pleased to take advantage this year of the Securities and Exchange Commission rule allowing companies to furnish proxy materials to stockholders over the Internet. We believe that this e-proxy process expedites stockholders’ receipt of proxy materials, while also lowering the costs and reducing the environmental impact of our Annual Meeting. On April 8, 2010, we began mailing to our stockholders a Notice of Internet Availability of Proxy Materials containing instructions on how to access our 2010 proxy statement and 2009 annual report and vote online.

 

Your attention is directed to the accompanying proxy statement. You are cordially invited to attend the Annual Meeting.

 

Your vote is important. Please vote as soon as possible by using the Internet or by telephone or, if you received a paper copy of the proxy card by mail, by dating, signing and returning the enclosed proxy card. Instructions for your voting options are described on the Notice of Internet Availability of Proxy Materials or proxy card.

 

By Order of the Board of Directors,

IRA S. LEDERMAN

Senior Vice President,

General Counsel and Secretary

 

Dated: April 8, 2010

 

IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE 2010 ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON MAY 18, 2010:

 

The Proxy Statement and the Company’s Annual Report for the fiscal year ended December 31, 2009 are available free of charge on the website at

www.proxyvote.com.

 

W. R. BERKLEY CORPORATION

 

PROXY STATEMENT

 

 

ANNUAL MEETING OF STOCKHOLDERS
May 18, 2010

 

 

Your proxy is being solicited on behalf of the Board of Directors of W. R. Berkley Corporation (the “Company”) for use at the Annual Meeting of Stockholders to be held at the executive offices of the Company, 475 Steamboat Road, Greenwich, Connecticut, on Tuesday, May 18, 2010 at 1:00 p.m. and at any adjournment thereof. On April 8, 2010, we began mailing to stockholders of record either a Notice of Internet Availability of Proxy Materials (“Notice”) or this proxy statement and proxy card and the Company’s Annual Report for the fiscal year ended December 31, 2009.

 

Why am I receiving this proxy statement and proxy card?

 

You have received these proxy materials because our Board of Directors is soliciting your proxy to vote your shares of our common stock at the Annual Meeting. This proxy statement describes issues on which we would like you to vote at our Annual Meeting. This proxy statement and annual report also give you information on these issues so that you can make an informed decision.

 

Our Board of Directors has made this proxy statement, proxy card and annual report available to you on the Internet because you own shares of W. R. Berkley Corporation common stock, in addition to delivering printed versions of this proxy statement, proxy card and the annual report to certain stockholders by mail.

 

When you vote by using the Internet, by telephone or, if you received your proxy card by mail, by dating, signing and returning the proxy card, you appoint Eugene G. Ballard and Ira S. Lederman, and either of them, as your representatives at the Annual Meeting. They will vote your shares at the Annual Meeting as you have instructed them or, if an issue that is not on the proxy card comes up for vote, in accordance with their best judgment. This way, your shares will be voted whether or not you attend the Annual Meeting. Even if you plan to attend the Annual Meeting, we encourage you to vote in advance by using the Internet, by telephone or (if you received your proxy card by mail) by dating, signing and returning your proxy card.

 

Why did I receive a Notice of Internet Availability of Proxy Materials in the mail instead of a printed set of proxy materials?

 

Pursuant to rules adopted by the Securities and Exchange Commission, we are permitted to furnish our proxy materials over the Internet to our stockholders by delivering a Notice in the mail. We are sending the Notice to certain record stockholders. If you received a Notice by mail, you will not receive a printed copy of the proxy materials in the mail. Instead, the Notice instructs you on how to access and review the proxy statement and annual report over the Internet at www.proxyvote.com. The Notice also instructs you on how you may submit your proxy over the Internet. If you received a Notice by mail and would like to receive a printed copy of our proxy materials, you should follow the instructions for requesting these materials contained in the Notice. Stockholders who receive a

printed set of proxy materials will not receive the Notice, but may still access our proxy materials and submit their proxies over the Internet at www.proxyvote.com.

 

If you received a paper copy of this proxy statement by mail and you wish to receive a notice of availability of next year’s proxy statement either in paper form or electronically via e-mail, you can elect to receive a paper notice of availability by mail or an e-mail message that will provide a link to these documents on our website. By opting to receive the notice of availability and accessing your proxy materials online, you will save the Company the cost of producing and mailing documents to you, reduce the amount of mail you receive and help preserve environmental resources. Registered stockholders may elect to receive electronic proxy and annual report access or a paper notice of availability for future annual meetings by registering online at www.proxyvote.com. If you received electronic or paper notice of availability of these proxy materials and wish to receive paper delivery of a full set of future proxy materials, you may do so at the same location. Beneficial or “street name” stockholders who wish to elect one of these options may also do so at www.proxyvote.com.

 

Who is entitled to vote?

 

Holders of our common stock at the close of business on March 23, 2010 are entitled to vote. March 23, 2010 is referred to as the record date.

 

In accordance with Delaware law, a list of stockholders entitled to vote at the meeting will be available at the place of the Annual Meeting on May 18, 2010 and will be accessible for ten days prior to the meeting at our principal place of business, 475 Steamboat Road, Greenwich, Connecticut, between the hours of 9:00 a.m. and 5:00 p.m.

 

How do I vote?

 

Stockholders of record may vote by using the Internet, by telephone or (if you received a proxy card by mail) by mail as described below. Stockholders also may attend the meeting and vote in person. If you hold shares of our common stock through a bank or broker, please refer to your proxy card, Notice or other information forwarded by your bank or broker to see which voting options are available to you.

 

 

The method you use to vote will not limit your right to vote at the Annual Meeting if you decide to attend in person. Written ballots will be passed out to anyone who wants to vote at the Annual

Meeting. If you hold your shares in “street name,” you must obtain a proxy, executed in your favor, from the holder of record to be able to vote in person at the Annual Meeting.

 

What if I change my mind after I return my proxy?

 

You may revoke your proxy and change your vote at any time prior to voting of the shares represented by your proxy. You may do this by:

 

 

Attendance at the Annual Meeting will not by itself revoke a proxy.

 

How are the votes counted?

 

Votes cast by proxy will be tabulated by Broadridge Financial Solutions, Inc. Votes cast in person at the Annual Meeting will be tabulated by the inspectors of election appointed at the Annual Meeting, who will also determine whether a quorum is present.

 

How many votes do you need to hold the Annual Meeting?

 

The holders of a majority of our common stock outstanding and entitled to vote who are present either in person or represented by proxy constitute a quorum for the Annual Meeting. The election inspector will treat abstentions and “broker non-votes” as shares that are present and entitled to vote for purposes of determining the presence of a quorum, but as unvoted for purposes of determining the approval of any matter submitted. A “broker non-vote” is when a broker indicates on a proxy that it does not have discretionary authority as to certain shares to vote on a particular matter and has not received instructions from the beneficial owner with respect to that matter.

 

On what items am I voting?

 

You are being asked to vote on two items:

 

 

How may I vote for the nominees for director, and how many votes must the nominees receive to be elected?

 

With respect to the election of nominees for director, you may:

 

 

 

The four nominees receiving the highest number of affirmative votes will be elected as directors. If you hold shares of our common stock through a bank or broker, your bank or broker will vote your shares for you if you provide instructions on how to vote the shares. In the absence of instructions, however, beginning this year, banks and brokers no longer have the authority to vote your shares for the election of directors. Accordingly, it is important that you provide voting instructions to your bank or broker, so that your shares may be voted in the election of directors.

 

What happens if a nominee is unable to serve if elected?

 

The persons designated as proxies reserve full discretion to cast votes for other persons in the event any such nominee is unable to serve. However, the Board has no reason to believe that any nominee will be unable to serve if elected. The proxies cannot be voted for a greater number of persons than the four named nominees.

 

How may I vote for the ratification of the appointment of our independent registered public accountants, and how many votes must the proposal receive to pass?

 

With respect to the proposal to ratify the appointment of our independent registered public accountants, you may:

 

 

The ratification of the appointment of our independent registered public accountants must receive the affirmative vote of a majority of the votes that could be cast at the Annual Meeting by the holders who are present in person or by proxy to pass. If you abstain from voting on the proposal, it will have the same effect as a vote against the proposal.

 

How does the Board of Directors recommend that I vote?

 

The board recommends a vote:

 

 

What happens if I sign and return my proxy card but do not provide voting instructions?

 

If you return a signed card but do not provide voting instructions, your shares will be voted FOR all four director nominees and FOR the ratification of the appointment of our independent registered public accountants.

Will my shares be voted if I do not vote by using the Internet, by telephone or by signing and returning my proxy card?

 

If you own shares of our common stock and you do not vote by using the Internet, by telephone or, if you received a proxy card by mail, by signing and returning your proxy card, then your shares will not be voted and will not count in deciding non-routine matters presented for stockholder consideration at the Annual Meeting.

 

If your shares of our common stock are held in street name through a bank or broker, your bank or broker may vote your shares under certain limited circumstances if you do not provide voting instructions before the Annual Meeting, in accordance with New York Stock Exchange (“NYSE”) rules that govern the banks and brokers. These circumstances include voting your shares on “routine matters,” such as the ratification of the appointment of our independent registered public accountants described in this proxy statement. With respect to this proposal, therefore, if you do not vote your shares, your bank or broker may vote your shares on your behalf or leave your shares unvoted.

 

Beginning this year, the election of directors is not considered a routine matter under NYSE rules relating to voting by banks and brokers. Accordingly, if a bank or brokerage firm has not received voting instructions from the beneficial owner of the shares with respect to the election of directors, the brokerage firm cannot vote the shares on that matter. These “broker non-votes” that are represented at the Annual Meeting will be counted for purposes of establishing a quorum, but not for determining the number of shares voted for or against the non-routine matter.

 

We encourage you to provide instructions to your bank or brokerage firm by voting your proxy. This action ensures your shares will be voted at the meeting in accordance with your wishes.

 

What do I need to show to attend the Annual Meeting in person?

 

You will need proof of your share ownership (such as a recent brokerage statement or letter from your broker showing that you owned shares of W. R. Berkley Corporation common stock as of the close of business on March 23, 2010) and a form of photo identification. If you do not have proof of ownership and valid photo identification, you may not be admitted to the Annual Meeting.

 

Who pays for the solicitation of proxies and how are they solicited?

 

Proxies are being solicited on behalf of our Board of Directors. The expense of the solicitation of the proxies on behalf of the Board of Directors will be paid by the Company. The Company has engaged Georgeson Inc. to assist in the solicitation of proxies from stockholders for a fee estimated at $7,500, plus expenses. In addition to the use of the mails, proxies may be solicited in person or by mail, telephone, facsimile or electronic transmission by regular employees of the Company without additional compensation, as well as by Georgeson employees. The Company will reimburse banks, brokers and other custodians, nominees and fiduciaries for their direct costs in sending the proxy materials, including the Notice, to the beneficial owners of the Company’s common stock.

 

OUTSTANDING STOCK AND VOTING RIGHTS

 

Only stockholders of record at the close of business on March 23, 2010 are entitled to receive notice of and to vote at the Annual Meeting. The number of shares of voting stock of the Company outstanding and entitled to vote on that date was 153,177,178 shares of common stock. Each such share of common stock is entitled to one vote. At March 23, 2010, executive officers and directors of the Company owned or controlled approximately 20.8% of the outstanding common stock. Information as to persons beneficially owning 5% or more of the common stock may be found under the heading “Principal Stockholders” below.

 

Unless otherwise directed in the proxy, the persons named therein will vote “FOR” the election of the director nominees listed below and “FOR” the ratification of the appointment of KPMG LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2010. If a submitted proxy does not specify a vote for or against a proposal, it will be voted in favor thereof.

 

As of the date hereof, the Board of Directors knows of no other business that will be presented for consideration at the Annual Meeting. If other business shall properly come before the Annual Meeting, the persons named in the proxy will vote according to their best judgment.

 

ELECTION OF DIRECTORS

 

As permitted by Delaware law, the Board of Directors is divided into three classes, each class having a term of three years. Each year the term of office of one class expires. This year the term of a class consisting of four directors expires. The Board intends that the shares represented by proxy, unless otherwise indicated therein, will be voted for the election of W. Robert Berkley, Jr., Ronald E. Blaylock, Mark E. Brockbank and Mary C. Farrell as directors to hold office for a term of three years until the Annual Meeting of Stockholders in 2013 and until their respective successors are duly elected and qualified. There are no arrangements or understandings between the nominees for director and any other person pursuant to which the nominees were selected.

 

The persons designated as proxies reserve full discretion to cast votes for other persons in the event any such nominee is unable to serve. However, the Board has no reason to believe that any nominee will be unable to serve if elected. The proxies cannot be voted for a greater number of persons than the four named nominees.

 

Following the recommendation of the Nominating and Corporate Governance Committee, the Board of Directors unanimously recommends a vote “FOR” all of the nominees for director.

The following table sets forth biographical and other information regarding each nominee and the remaining directors who will continue in office after the Annual Meeting. Following each person’s biographical information, certain information is provided concerning the particular experience, qualifications, attributes or skills that led the Nominating and Corporate Governance Committee and the Board of Directors (together with the qualities described in “Corporate Governance and Board Matters — Board Committees — Nominating and Corporate Governance Committee” below) to determine that each nominee or continuing director should serve as a director.

 

 

 

 

 

 

EXECUTIVE OFFICERS

 

The following provides the name, principal occupation and other pertinent information concerning the executive officers of the Company who do not also serve as a director. The executive officers are elected by the Board of Directors annually and serve at the pleasure of the Board. There are no arrangements or understandings between the executive officers and any other person pursuant to which the executive officers were selected. The information is provided as of April 8, 2010.

 

 

Eugene G. Ballard has been Senior Vice President — Chief Financial Officer of the Company since June 1, 1999. He was Treasurer of the Company from June 1999 to May 2009. He has more than 20 years of experience in the insurance industry.

 

Robert P. Cole has been Senior Vice President — Regional Operations of the Company since January 1999. Prior thereto, he was Senior Vice President from January 1998 and Vice President from October 1996. He has been in the insurance and reinsurance business for more than 30 years.

Kevin H. Ebers has been Senior Vice President — Information Technology of the Company since February 2008. Prior thereto, he was Vice President — Financial Risk Management since 2005. He joined the Company in 1979.

 

Robert W. Gosselink has been Senior Vice President — Insurance Risk Management of the Company since October 2003 and has over 30 years of experience in the reinsurance and insurance industries.

 

Paul J. Hancock has been Senior Vice President — Chief Corporate Actuary of the Company since January 2002. He joined the Company in 1993 and previously served as a Vice President in the actuarial department.

 

Robert C. Hewitt has been Senior Vice President — Excess and Surplus Lines of the Company since January 2006. Prior thereto, Mr. Hewitt was Senior Vice President — Alternative Markets Operations from January 2004, and Senior Vice President — Risk Management from January 2002. Mr. Hewitt has over 25 years of experience in the reinsurance and insurance industries.

 

Gillian James has been Senior Vice President — Enterprise Risk Management of the Company since December 2009. She has over 20 years of experience in the insurance and financial services industry, having served in the United Kingdom as a senior executive at Gallagher Re and Aon Re, where she headed the analytic team.

 

Peter L. Kamford has been Senior Vice President — Admitted Specialty Lines of the Company since January 2006. Prior to joining the Company, he had over 25 years of experience in property casualty insurance and reinsurance with Guy Carpenter & Company, where he was a Managing Director.

 

Carol J. LaPunzina has been Senior Vice President — Human Resources of the Company since September 2009. She has over 23 years of experience in the insurance and reinsurance industry and began her career with the Company more than 11 years ago. From 2004 to 2010, she served as senior vice president, general counsel and secretary of Berkley Insurance Company, and prior to joining the Company she was an associate attorney at a private law firm in New York.

 

Ira S. Lederman has been Senior Vice President since January 1997 and General Counsel and Corporate Secretary of the Company since November 2001. Additionally, he has been General Counsel of Berkley International, LLC since January 1998. He joined the Company in 1983.

 

C. Fred Madsen has been Senior Vice President — Reinsurance Operations of the Company since July 2006. Before he joined the Company, Mr. Madsen was Executive Vice President of Benfield, concentrating on the specialty insurance marketplace, and he has more than 30 years of experience in the property and casualty insurance industry.

 

James G. Shiel has been Senior Vice President — Investments of the Company since January 1997. Prior thereto, he was Vice President — Investments of the Company from January 1992. Since February 1994, Mr. Shiel has been President of Berkley Dean & Company, Inc., a subsidiary of the Company, which he joined in 1987.

 

Robert D. Stone has been Senior Vice President — Alternative Markets Operations of the Company since January 2006. Previously, he was the Managing Director of Berkley Capital, LLC from its formation in 2002. Mr. Stone has over 20 years of experience in the financial services industry.

Steven W. Taylor has been Senior Vice President — International of the Company since December 2007. Previously, he was Business Development Officer at Gallagher Re in the United Kingdom from 2004 and served at Benfield for more than 20 years.

 

Richard M. Baio has been Vice President — Treasurer of the Company since May 2009. He has over 19 years of experience in the insurance and financial services industry, having served most recently as a director in Merrill Lynch & Co.’s financial institutions investment banking group, where he specialized in insurance company advisory, financing, merger and acquisition transactions. Previously, he spent a significant part of his career in public accounting advising the insurance industry as a partner in Ernst & Young’s insurance practice.

 

Clement P. Patafio has been Vice President — Corporate Controller of the Company since January 1997. Prior thereto, he was Assistant Vice President — Corporate Controller from July 1994 and Assistant Controller from May 1993.

 

CORPORATE GOVERNANCE AND BOARD MATTERS

 

Our Board of Directors is committed to sound and effective corporate governance practices. Accordingly, our Board has adopted written Corporate Governance Guidelines, which address, among other things, (1) director qualification (including independence) standards, (2) director responsibilities, (3) director access to management and, as necessary and appropriate, independent advisors, (4) director compensation, (5) director orientation and continuing education, (6) management succession, and (7) annual performance evaluation of the Board.

 

The Board has standing committees including: the Audit Committee, Compensation Committee, and Nominating and Corporate Governance Committee. Each of these committees has a written charter. Our Corporate Governance Guidelines and the charters for each of these standing committees are available on our website at www.wrberkley.com.

 

The Board is currently composed of nine directors, all of whom, other than Messrs. William R. Berkley and W. Robert Berkley, Jr., have been determined by the Board to be independent in accordance with applicable New York Stock Exchange (“NYSE”) corporate governance rules and not to have a material relationship with the Company which would impair their independence from management or otherwise compromise their ability to act as an independent director.

 

In making its determination with respect to Mr. Nusbaum, the Board broadly considered the relevant facts and circumstances of Mr. Nusbaum’s business and personal relationships with William R. Berkley, including (1) that Mr. Nusbaum is a Senior Partner in the New York law firm of Willkie Farr & Gallagher LLP (“Willkie”), which serves as legal counsel to the Company, and (2) Mr. Nusbaum’s long service on the Board of Directors of the Company, his previous service on the board of directors of other companies affiliated with Mr. Berkley, and his personal relationship with Mr. Berkley over such time.

 

The Board previously unanimously determined that Mr. Nusbaum be classified as an independent director, based on (1) the relative insignificance of the Company’s annual legal fees paid to Willkie as a percentage of Willkie’s total annual revenue (including that such fees fall below the NYSE’s materiality threshold); (2) Mr. Nusbaum’s reputation and professional background evidencing his independent nature, and particularly Mr. Nusbaum’s history of acting independently of the

Company’s management; and (3) Mr. Nusbaum’s personal financial substance and lack of economic dependence on Mr. Berkley and the Company. The Board also noted that Mr. Nusbaum did not have any transaction or other relationship that violated the specific independence tests described in Section 303A.02(b) of the NYSE rules.

 

The Board held four meetings during 2009. No director attended fewer than 75% of the total number of meetings of the Board and all committees on which he or she served. The Company encourages its directors to attend its Annual Meeting of Stockholders, and, last year, seven of the directors were in attendance at the Annual Meeting.

 

Board Committees

 

Audit Committee.  The Audit Committee is appointed by the Board to assist the Board in monitoring (1) the integrity of the financial statements of the Company, (2) the independent auditors’ qualifications and independence, (3) the performance of the Company’s internal audit function and independent auditors, and (4) compliance by the Company with legal and regulatory requirements. The Audit Committee has also adopted procedures to receive, retain and treat any good faith complaints received regarding accounting, internal accounting controls or auditing matters and provide for the anonymous, confidential submission of concerns regarding these matters.

 

The Audit Committee was composed of Messrs. Shapiro, Blaylock and Daly during 2009. Each member of the Audit Committee is independent under the rules of the Securities and Exchange Commission (“SEC”) and the NYSE. Mr. Shapiro is the current Chair of the Audit Committee. The Board has identified Mr. Shapiro as a current member of the Audit Committee who meets the definition of an “audit committee financial expert” established by the SEC. During 2009, the Audit Committee held nine meetings.

 

The Audit Committee has determined to engage KPMG LLP as the Company’s independent registered public accounting firm for fiscal year 2010 and is recommending that our stockholders ratify this appointment at our Annual Meeting. The report of our Audit Committee is found on page 45 of this proxy statement.

 

Compensation Committee.  The Compensation Committee has overall responsibility for discharging the Board’s responsibilities relating to the compensation of the Company’s senior executive officers and directors.

 

During 2009, the Compensation Committee was composed of Ms. Farrell and Messrs. Philip J. Ablove, Brockbank, and Hawes, Jr. until Mr. Ablove’s retirement on May 19, 2009, and was composed of Ms. Farrell and Messrs. Brockbank and Hawes, Jr. thereafter. Each member of the Compensation Committee is independent under the rules of the NYSE. Mr. Hawes, Jr. is the current Chair of the Committee. During 2009, the Compensation Committee held seven meetings. The report of our Compensation Committee on executive compensation is found on page 34 of this proxy statement.

 

The Compensation Committee retained the services of an external compensation consultant, Hewitt Associates. After 2009 year end, but prior to the date of filing of this proxy statement, Hewitt Associates spun off a portion of its executive compensation practice into a separate, entirely independent entity named Meridian Compensation Partners, LLC (“Meridian”). To maintain consistent process and representation, the Compensation Committee has retained Meridian going forward as

its independent executive compensation consultant. The mandate of the compensation consultant is to serve the Company and work for the Compensation Committee in its review of executive and director compensation practices, including the competitiveness of pay levels, executive compensation design issues, market trends, and technical considerations. The nature and scope of services rendered by the compensation consultant on the Compensation Committee’s behalf is described below:

 

 

The Compensation Committee did not direct the external compensation consultant to perform the above services in any particular manner or under any particular method. The Compensation Committee has the final authority to hire and terminate the consultant and the Compensation Committee evaluates the consultant periodically. The Company does not engage Meridian for other services.

 

Nominating and Corporate Governance Committee.  The Nominating and Corporate Governance Committee was formed to assist the Board in (1) identifying individuals qualified to become members of the Board (consistent with criteria approved by the Board), (2) recommending that the Board select the director nominees for the next annual meeting of stockholders or for other vacancies on the Board, (3) overseeing the evaluation of the Board and management, (4) reviewing the corporate governance guidelines and the corporate code of ethics, and (5) generally advising the Board on corporate governance and related matters. Our Corporate Governance Guidelines address director qualification standards.

 

The Nominating and Corporate Governance Committee will consider qualified director nominees recommended by stockholders. Nominations for consideration by the Nominating and Corporate Governance Committee, together with a description of his or her qualifications and other relevant information, should be sent to the attention of the General Counsel, c/o W. R. Berkley Corporation, 475 Steamboat Road, Greenwich, Connecticut 06830. Stockholders may also follow the nomination procedures described under “Stockholder Nominations for Board Membership and Other Proposals for 2011 Annual Meeting” below.

 

The Company’s Corporate Governance Guidelines set forth certain qualifications and specific qualities that candidates should possess. In accordance with the Guidelines, the Committee, in assessing potential candidates, considers their independence, business, strategic and financial skills and other experience in the context of the needs of the Board of Directors as a whole, as well as a director’s service on the boards of other public companies. The Guidelines further state that directors should: (1) bring to the Company a range of experience, knowledge and judgment; (2) have relevant business or other appropriate experience; (3) maintain an acceptable level of attendance, preparedness and participation with respect to meetings of the Board and its committees; and (4) demonstrate competence in one or more of the following areas: accounting or finance, business or management experience, insurance or investment industry knowledge, crisis management, or leadership and

strategic planning. In identifying and recommending director nominees, the Committee members may take into account such factors as they determine appropriate, including any recommendations made by the Company’s Chief Executive Officer. Due consideration will be given to assessing the qualifications of potential nominees and any potential conflicts with the Company’s interests. The Committee will also assess the contributions of the Company’s incumbent directors in connection with their potential re-nomination.

 

The Committee does not have a formal policy with regard to the consideration of diversity in identifying director nominees. In accordance with the Guidelines, when considering the overall composition of the Board, the Committee seeks a diverse and appropriate balance of members who have the experiences, qualifications, attributes or skills necessary to oversee a publicly traded, financially complex, growth oriented, international organization that operates in multiple regulatory environments. The Committee seeks directors with experience in a variety of professional disciplines and business ventures who can provide diverse perspectives on the Company’s operations. The Committee evaluates the types of backgrounds that are needed to strengthen and balance the Board based on the foregoing factors and nominates candidates to fill vacancies accordingly.

 

The Nominating and Corporate Governance Committee is currently composed of Messrs. Blaylock, Brockbank, Daly, Hawes, Jr., Nusbaum and Shapiro, and Ms. Farrell, all of whom are considered independent under the rules of the NYSE. The Nominating and Corporate Governance Committee held two meetings during 2009.

 

Other Committees.  During 2009, the Board had two other standing committees in addition to the committees set forth above: the Executive Committee and the Business Ethics Committee.

 

The Executive Committee is authorized to act on behalf of the Board during periods between Board meetings. During 2009, the Executive Committee was composed of Messrs. Berkley, Berkley, Jr., Nusbaum and Shapiro. During 2009, the Executive Committee acted once by unanimous written consent.

 

The Business Ethics Committee, which during 2009 was composed of Messrs. Blaylock, Nusbaum and Shapiro, administers the Company-wide business ethics program. The Business Ethics Committee reviews certain disclosures made by Company employees and directors under the Company’s Statement of Business Ethics and Statement of Business Ethics for the Board of Directors, determines if any issue presented raises an ethics concern and takes any appropriate action. During 2009, the Business Ethics Committee held two meetings.

 

Additional Information Regarding the Board

 

Board Leadership Structure.  The Board of Directors has not separated the positions of Chairman of the Board and Chief Executive Officer of the Company, as reflected in the Company’s By-Laws. The Board does not believe that the separation of the positions is necessary or desirable in the Company’s present circumstances. The Board believes that current leadership of the Company has been effective in overseeing stockholders’ long-term interests.

 

Mr. Berkley founded the Company in 1967 and has been its Chairman of the Board and Chief Executive Officer since that time, a period of over forty years. Under Mr. Berkley’s strategic leadership, the Company has grown significantly, with Mr. Berkley being recognized for his extensive

experience in and leadership of the insurance and reinsurance industries. Risk oversight is an especially complex issue for property and casualty insurance companies, and the Board believes that the Company’s current leadership structure has served this function well. Given Mr. Berkley’s extensive knowledge of the Company and its operations, employees and culture, his significant ownership stake and the strategic leadership that he brings to the Board, as well as his active involvement in the Company’s day-to-day business, the Board believes that it is appropriate that Mr. Berkley serve as both Chairman of the Board and Chief Executive Officer of the Company. The Board regularly reviews and considers the Board leadership structure.

 

The Board does not have a lead director. The Board believes that its current leadership structure has historically served the Company well and continues to do so, by facilitating communication between the Board and senior management of the Company as well as Board oversight of the Company’s business and affairs. However, as described in “— Communications with Non-Management Directors; Executive Sessions” below, the Board’s independent directors meet regularly in executive session, which serves to promote open discussion among these directors. The presiding director at these executive sessions rotates among the Chairman of the Audit Committee, the Chairman of the Compensation Committee and the non-management member of the Executive Committee who does not already chair another committee, a process, the Board believes, provides different directors the opportunity to guide the Board’s agenda and facilitates collegiality among Board members.

 

Board Role in Risk Oversight.  Managing risk is a critical element of any property casualty insurance business, such as the Company. The Board believes that risk oversight is a responsibility of the entire Board, and it does not look to any individual director or committee to lead it in discharging this responsibility. Risk management is one of the core responsibilities of the Chief Executive Officer and is a critical responsibility of every senior officer of the Company and its operating units.

 

The strategic management of risk in an insurance business, such as the Company, is a multi-level proposition. The Board has an active role, both as a whole and also at the committee level, in risk oversight. The Board and its committees receive periodic updates from members of senior management on areas of material risk to the Company, including operational, financial, strategic, competitive, reputational, legal and regulatory risks. Among other things, the Board as a whole oversees management’s assessment of business risks relating to the Company’s insurance operations and investment portfolio.

 

At the committee level, our Audit Committee regularly reviews our financial statements, financial and other internal controls, and remediation of material weaknesses and significant deficiencies in internal controls, if any. Our Compensation Committee regularly reviews our executive compensation policies and practices and the risks associated with each. Our Nominating and Corporate Governance Committee considers issues associated with the independence of our Board, corporate governance and potential conflicts of interest. While each committee is responsible for evaluating certain risks and risk oversight, the entire Board of Directors is regularly informed of risks relevant to the Company’s business, as described above.

 

Risk management is a core tenet of the Company, with the concept of achieving appropriate risk-adjusted returns in our business a driving principle since the Company was founded. As a key element of their duties, our senior executives are responsible for risks and potential risks as they

arise from day to day in their various operational areas. In recognition of the critical nature of risk management, during 2009 the Company created a new senior position, reporting directly to the Chairman and Chief Executive Officer, which is responsible for enterprise risk management. In addition, our internal audit function reports to our Audit Committee on a quarterly basis, and more frequently to the extent necessary.

 

Our independent outside auditors regularly identify and discuss with our Audit Committee risks and related mitigation measures that may arise during their regular reviews of the Company’s financial statements, audit work and executive compensation policies and practices, as applicable.

 

Compensation Committee Interlocks and Insider Participation

 

During fiscal year 2009, Ms. Farrell and Messrs. Ablove, Brockbank, and Hawes, Jr. served on the Compensation Committee until Mr. Ablove’s retirement on May 19, 2009, and was composed of Ms. Farrell and Messrs. Brockbank, and Hawes, Jr. thereafter. No member of the Compensation Committee was, during fiscal year 2009, an officer or employee of the Company or was formerly an officer of the Company (except for Mr. Ablove, who was Senior Vice President and Chief Financial Officer of the Company from July 1973 to April 1983), or had any relationship requiring disclosure by the Company as a related party transaction under Item 404 of Regulation S-K. No executive officer of the Company served on any board of directors or compensation committee of any other company for which any of the Company’s directors served as an executive officer at any time during fiscal year 2009.

 

Code of Ethics

 

We have had a Statement of Business Ethics in place for many years. This statement applies to all of our officers and employees. It is a statement of our high standards for ethical behavior and legal compliance, and governs the manner in which we conduct our business. This Statement of Business Ethics covers all areas of professional conduct, including employment policies, conflicts of interest, anti-competitive practices, intellectual property and the protection of confidential information, as well as adherence to the laws and regulations applicable to the conduct of our business. We have also adopted a Statement of Business Ethics for the Board of Directors.

 

We have adopted a Code of Ethics for Senior Financial Officers. This Code of Ethics, which applies to our Chief Executive Officer, Chief Financial Officer and Controller, addresses the ethical handling of conflicts of interest, the accuracy and timeliness of SEC disclosure and other public communications and compliance with law.

 

Copies of our Statement of Business Ethics, Statement of Business Ethics for the Board of Directors and Code of Ethics for Senior Financial Officers can be found on our website at www.wrberkley.com. We intend to disclose amendments to these procedures, and waivers of these policies for executive officers and directors, on our website.

 

Communications with Non-Management Directors; Executive Sessions

 

A stockholder who has an interest in communicating with management or non-management members of the Board of Directors may do so by directing the communication to the General Counsel. Information about the Company, including with respect to its corporate governance policies and

copies of its SEC filings, is available on our website at www.wrberkley.com. Our filings with the SEC are also available on the SEC’s website at www.sec.gov. Persons who desire to communicate with the non-management directors should send their correspondence addressed to the attention of the General Counsel, c/o W. R. Berkley Corporation, 475 Steamboat Road, Greenwich, Connecticut 06830. The General Counsel will provide a summary of all appropriate communications to the addressed non-management directors and will provide a complete copy of such communications upon the request of the addressed director.

 

In accordance with applicable NYSE rules, the independent directors meet regularly in executive session. The presiding director at these executive sessions rotates among the Chairman of the Audit Committee, the Chairman of the Compensation Committee and the non-management member of the Executive Committee who does not already chair another committee.

 

PRINCIPAL STOCKHOLDERS

 

The following table sets forth as of March 23, 2010 (except as otherwise noted below) those persons known by the Company to be the beneficial owners of more than 5% of the Company’s common stock:

 

 

 

The following table sets forth information as of March 23, 2010 regarding ownership by all directors and executive officers of the Company, as a group, and each director and each executive officer named in the Summary Compensation Table, individually, of the Company’s common stock. Except as described in the footnotes below, all amounts reflected in the table represent shares the beneficial owners of which have sole voting and investment power.

 

 

 

 

 

 

 

The Company knows of no arrangements, including any pledge by any person of securities of the Company, the operation of which may at a subsequent date result in a change of control of the Company. Under applicable Insurance Holding Company Acts in various states, a potential owner cannot exercise voting control over an amount in excess of 10% of the Company’s outstanding voting securities (5% in the State of Alabama) without obtaining prior regulatory approval.

 

TRANSACTIONS WITH MANAGEMENT AND OTHERS

 

As described above, the Company has adopted both a Statement of Business Ethics that applies to all officers and employees and a Statement of Business Ethics for the Board of Directors, each of which is administered by the Business Ethics Committee. The Statements address, among other things, transactions in which the Company is or will be a party and in which any employee or director (or members of his or her immediate family, as such term is defined by the NYSE rules) has a direct or indirect interest. The Statements require full and timely disclosure of any such transaction to the Company. Company management initially determines whether a disclosed transaction by an employee requires review by the Committee. Based on its consideration of all of the relevant facts and circumstances, the Committee decides whether or not to approve such a transaction and approves only those transactions that are not contrary to the best interests of the Company. If the Company becomes aware of an existing transaction which has not been approved, the matter will be referred to the Committee. The Committee will evaluate all available options, including ratification, revision or termination of such transaction.

 

During 2009, the Company continued to engage the services of Associated Community Brokers, Inc., an insurance agency owned by Associated Community Bancorp, Inc. William R. Berkley, the Company’s Chairman of the Board and Chief Executive Officer, serves as Chairman of the Board of

Directors and is the majority stockholder of Associated Community Bancorp, Inc., and W. Robert Berkley, Jr., the Company’s President and Chief Operating Officer, is a minority stockholder and a director of Associated Community Bancorp, Inc. During 2009, Associated Community Brokers, Inc. received commissions (both directly and indirectly) from the relevant insurance carriers in the amount of $666,410 in connection with insurance brokerage services provided to the Company and certain of its subsidiaries. In addition, Associated Community Brokers, Inc. may place business on behalf of unrelated third parties with insurance company subsidiaries of the Company.

 

Also during 2009, certain of the Company’s employees performed services for Interlaken Capital, Inc., a company substantially owned and controlled by William R. Berkley, the Company’s Chairman of the Board and Chief Executive Officer. Interlaken separately compensates those Company employees for such services.

 

The transactions requiring approval have been previously approved in accordance with the procedures described above.

 

Jack H. Nusbaum, a director of the Company, is a Senior Partner of Willkie Farr & Gallagher LLP, outside counsel to the Company.

 

COMPENSATION DISCUSSION AND ANALYSIS

 

Introduction

 

The purpose of this Compensation Discussion and Analysis (“CD&A”) is to provide material information about the Company’s compensation policies, objectives and decisions regarding the Company’s Named Executive Officers (or “NEOs”) and to put into perspective for investors the numbers and narratives that follow. The following topics are covered:

 

 

The CD&A and the tables that follow cover the compensation paid to the following five NEOs:

 

 

The three other highest-paid executive officers:

 

 

Objectives of the Executive Compensation Program

 

Our executive compensation program is designed to:

 

 

Design of the Executive Compensation Program

 

The Company’s executive compensation program for the NEOs includes the following compensation elements.

 

Additional Design Information

 

Annual Incentive Bonus.

 

2007 Annual Incentive Compensation Plan. In 2006, the Company adopted, and its stockholders approved, the 2007 Annual Incentive Compensation Plan. The 2007 Annual Incentive Compensation Plan is a cash-based annual bonus plan that does not provide for the payment of equity compensation. During the fiscal year ended December 31, 2009, the Compensation Committee granted new awards under this plan to the CEO and the COO. These awards were each subject to a maximum bonus value. The awards were designed to ensure that bonus amounts are tax deductible under IRC Section 162(m). For 2009, the CEO was eligible for a maximum bonus equal to 4% of the Company’s pre-tax net income. The COO was eligible for a maximum bonus equal to 1% of the Company’s pre-tax net income.

 

Subject to the maximum bonus value, actual bonus amounts were determined by the Committee, using reasoned negative discretion, after evaluating individual accomplishments and certain Company results. Return on equity was the primary factor evaluated for 2009. The Committee also considered earnings per share, combined ratio (combined ratio is a measure of overall underwriting profitability where a combined ratio of less than 100 indicates an underwriting profit), investment income and consistency of the management team in determining the annual bonus amounts. In addition, for the COO, the Committee took into account an initial recommendation from the CEO.

 

Annual Bonus Program. The annual incentive bonus for each NEO other than the CEO and the COO is a discretionary bonus based primarily on financial goals for the Company. Actual bonus amounts for the other NEOs (Messrs. Ballard, Lederman, and Shiel) are determined by the CEO and are additionally based on a subjective evaluation of each individual’s accomplishments and contributions to the Company’s results. For Mr. Shiel, consideration is also given to the performance of the Company’s investment portfolio. These bonus amounts are reviewed and confirmed by the Committee.

 

The annual incentive bonus is designed to support the Company’s objectives by providing a financially attractive compensation program designed to attract and retain executive talent, while focusing NEOs on short-term Company goals designed to contribute to overall Company success and add to shareholder value.

 

Long-Term Incentives.  The Company’s long-term incentive program consists of a combination of equity compensation through awards of RSUs pursuant to the Company’s 2003 Stock Incentive Plan and cash compensation through awards of performance units under the LTIP.

 

LTIP Awards. In 2009, the Company adopted, and its stockholders reapproved, the LTIP. The LTIP is a cash-based plan that does not provide for the payment of equity compensation. LTIP awards are denominated in performance units that grow in value based on one or more performance measures selected by the Committee and are payable, to the extent earned, in cash. The performance measure for current LTIP awards is the sum of the year-to-year increase in book value of Company stock during a five-year performance period. In order to fully earn the maximum value of the LTIP award, the Company’s return on equity objectives need to be met. The performance units pay out in cash at the end of the performance period. New LTIP units are granted periodically, generally twice

within a five-year period. Awards under the LTIP are designed to meet the requirements for performance-based compensation under Section 162(m) of the IRC.

 

No new LTIP awards were made in 2009.

 

Restricted Stock Units. RSUs awarded to the NEOs generally have a five-year vesting period, during which they are subject to a substantial risk of forfeiture. After vesting, payment of the RSUs is deferred (on a mandatory basis) until 90 days following the NEO’s separation from service with the Company (subject to a six-month delay to comply with Section 409A of the IRC). Grants of RSUs are made periodically, generally twice within a five-year period.

 

No new RSU awards were made in 2009 to the NEOs.

 

The long-term incentive program supports the Company’s objectives by encouraging the NEOs to continue their employment with us through multiple overlapping 5-year vesting cycles for RSUs and LTIP awards. The LTIP and RSU awards encourage the NEOs to achieve and sustain longer-term Company performance goals. The RSUs also align the NEOs’ financial interests with those of the Company’s stockholders and reward the NEOs in line with stockholders as the value of the Company’s stock increases.

 

Deferred Compensation.  The Company maintains the Deferred Compensation Plan for Officers, in which NEOs are eligible to participate on a voluntary basis. Under the plan, participants may elect to defer all or a portion of their base salary, bonus compensation, and excess profit sharing contribution for any year. Amounts deferred will accrue a reasonable rate of interest, as determined annually by the Compensation Committee. At the time of the deferral election, amounts may be deferred until any date on or before the officer’s separation from service. At the officer’s election made at the time of deferral, the Company will pay the deferred amounts either in a lump sum or in no more than five annual installments beginning generally within 60 days of a date which is prior to or on the date of the officer’s separation from service (subject to a six-month delay to comply with Section 409A of the IRC). The amounts deferred are not secured or funded by the Company in any manner. For 2009, the Compensation Committee agreed to accrue interest on the deferred amounts at the prime rate of interest reported by JPMorgan Chase. The Non-Qualified Deferred Compensation table for 2009 and the associated narrative and footnotes provide information on the amounts deferred by the NEOs under the Plan in 2009, interest earned on deferred amounts in 2009, and the year-end balances.

 

The Deferred Compensation Plan for Officers provides a valuable tax planning mechanism to the NEOs and thereby supports the Company’s objectives by providing a compensation program designed to attract talented executives and retain our current NEOs. In addition, deferrals under the plan allow for delayed compensation payments and thereby increased cash flow for the Company.

 

Benefit Replacement.  The Company maintains a Benefit Replacement Plan to make up for IRC pay limits under the Company’s Profit Sharing Plan. Under the Benefit Replacement Plan, participants receive a potential annual payment of the amount they would have otherwise received absent the limitations imposed by the IRC on the Profit Sharing Plan. This amount is paid in an annual lump sum unless deferred by the employee under the Deferred Compensation Plan for Officers. Additional information on the amounts paid under this plan can be found in the Summary Compensation Table — All Other Compensation and the associated footnotes.

The Benefit Replacement Plan ensures that the full value of the intended benefits under the Company’s Profit Sharing Plan is provided to the NEOs and as such supports the Company’s objectives by providing a compensation program designed to attract talented executives and retain current NEOs.

 

Supplemental Benefits Agreement with the CEO.  On August 19, 2004, the Company entered into a Supplemental Benefits Agreement with Mr. William Berkley. The agreement was put into place to recognize the significant contribution that the CEO has made to the Company’s past and ongoing success. The agreement was amended in December 2007 to comply with the requirements of Section 409A of the IRC and further amended in December 2008. The agreement provides the CEO, or spouse, as described below, with the following benefits:

 

An annual retirement benefit equal to the greater of $1,000,000 or 50% of Mr. William Berkley’s highest average three-year compensation over the prior ten fiscal years, but not exceeding 150% of his average five-year compensation over the prior five fiscal years;

 

Continued health insurance coverage (including coverage for his spouse) for the remainder of his or her life, as applicable;

 

Continued use of the Company plane and a car and driver for a period beginning with termination (as defined in the agreement) and ending with the latest to occur of two years following such termination, the date he ceases to be Chairman of the Board, or the date he ceases to provide consulting services to the Company;

 

Office accommodations and secretarial support; and

 

Payment of any excise taxes imposed on the CEO under Section 4999 of the IRC (plus payment of additional taxes incurred as a result of the Company’s payment of excise taxes) should any of these benefits trigger such excise taxes.

 

Mr. William Berkley is entitled to the commencement of retirement benefits on the earliest to occur of January 2, 2014, his death, and a change of control of the Company. If Mr. Berkley’s employment terminates prior to the benefit commencement date, a make-up account will be credited monthly with an amount equal to one twelfth of the annual retirement benefit plus interest. This make-up account was added to ensure Mr. Berkley’s benefit is kept whole for changes required under Section 409A of the IRC. The balance in the make-up account and the commencement of regular payments of the annual retirement benefit will begin on the benefit commencement date. Mr. Berkley is entitled to the other benefits as triggered or when he voluntarily leaves the Company.

 

In exchange for the benefits outlined above, the agreement prohibits Mr. Berkley from competing against the Company for two years following his resignation of employment other than for “good reason,” during which time Mr. Berkley has agreed to be available to provide consulting services to the Company. The decision to provide these benefits was made without regard to other compensation elements. Likewise, providing these benefits did not influence compensation levels in other areas. The Supplemental Benefits Agreement supports the Company’s objectives by rewarding the CEO for his long service and prior contributions to the Company’s long-term success and stockholder value. The agreement also protects the Company from potential competitive activities following the CEO’s retirement. Additional detail on this agreement is provided in the Summary Compensation Table (for

the annual accrual value of the retirement benefit), the Pension Benefits table, and the Description of Potential Post-Employment Payments section.

 

Use of Market and Peer Group Data

 

The Committee reviews and analyzes market data on total direct executive compensation annually. Total direct compensation (defined as salary, annual bonus, and long-term incentive awards) for the NEOs is compared to that paid to individuals holding comparable positions at peer companies.

 

Historically, the Committee reviewed data from two peer groups, (1) direct competitors in the property and casualty insurance industry, and (2) organizations with a similar historical financial performance profile to W. R. Berkley Corporation. In 2009, the Committee decided to review data from only the direct competitors, since positions at those companies are more closely related to those at the W. R. Berkley Corporation. These direct competitors are shown in the following chart.

 

 

Among these companies, SAFECO Corp. was removed from the group used last year due to its acquisition by Liberty Mutual. Alleghany and Axis Capital were added given their similar industry focus.

Market data is reviewed together with performance data for the peer companies to determine that total direct compensation paid is in line with relative performance of the peer companies. However, market data is only one of many factors considered in setting future compensation awards as discussed further below.

 

Executive Compensation Decisions During the Last Fiscal Year

 

General Approach.  The Company does not target any particular allocation for base salary, annual incentive bonus, or long-term incentive compensation as a percentage of total compensation. Rather, pay decisions for NEOs, other than the CEO and COO, are based on a reasoned subjective assessment by the CEO of individual performance and future potential. For the CEO and COO, pay decisions are made by the Committee and are based on a reasoned subjective assessment of Company performance and designed to ensure that compensation is appropriate based on relative performance.

 

Other than the CEO, no executive officer plays a role in determining compensation for the NEOs.

 

For 2009.  This past fiscal year remained challenging, with many competitors and financial services organizations continuing to experience significant volatility and write-downs of asset values. The Company performed relatively well given the adverse economic environment, and continued to exceed the long-term performance of peer companies on many fronts. See the discussion on CEO bonus for a more detailed analysis of Company performance. Operationally, the Company added business units and finished the year with a strong balance sheet. Cash compensation for the NEOs is down over prior years, reflecting these results, with the exception of cash compensation for Mr. Shiel, which was up over 2008.

 

Base Salary.  The CEO has not received a salary increase since January 1, 2000, since base pay in excess of the current level is not deductible by the Company for income tax purposes. At Mr. Berkley, Jr.’s request, he has not received a salary increase since January 1, 2007. However, effective January 1, 2010, his salary was increased to $850,000 reflecting his promotion to COO of the Company.

 

Salary actions taken for other NEOs were based on the CEO’s subjective assessment as outlined below, the NEO’s contribution to the Company, and retention needs:

 

 

All base salary changes were effective January 1, 2009.

 

Annual Incentive Bonus.  For Messrs. Ballard, Lederman, and Shiel, the CEO determined, and reviewed with the Committee, the 2009 bonus amounts, as shown in the Summary Compensation Table, based on a reasoned subjective assessment of Company performance (primarily ROE) and individual performance. For Mr. Ballard, the CEO reviewed his management of the financial

accounting department as well as management of strategic accounting and treasury issues related to the Company’s business. For Mr. Lederman, the CEO reviewed his management of the legal department and management of the legal department’s responses to law and regulations as they relate to the Company’s business. For Mr. Shiel, the CEO reviewed his management of the investment department. In addition, for Mr. Shiel, consideration was given to performance of the Company’s investment portfolio. See the discussion on CEO bonus for a more detailed analysis of Company performance. The 2009 bonus award for each of Mr. Ballard and Mr. Lederman was $325,000, which represented a 4.5% decline over the prior year. The reduction in bonus amount was due primarily to Company performance. The 2009 bonus award for Mr. Shiel was brought back in line with Messrs. Ballard and Lederman, or $325,000, after having been reduced by 50% in 2008.

 

Annual Incentive Bonus Under the Plan.  For 2009, the CEO and COO were the only participants in the 2007 Annual Incentive Compensation Plan. For the COO, the CEO made an initial recommendation for a bonus of $1,100,000 and the Committee approved this amount. The bonus amount was based on a reasoned subjective assessment by the CEO and the Committee of Company performance, primarily ROE, as well as earnings per share, combined ratio, and investment income. Analysis of the Company’s performance is outlined below. Consideration was also given to the individual performance of the COO, including his management of domestic operations, evaluation and development of growth opportunities for the Company, and strategic analysis. This bonus amount was less than the maximum (1% of pre-tax net income, or $3,820,000) described earlier, and represents an 8% decline from the prior year bonus amount.

 

For the CEO, Company performance was a critical factor in determining the final bonus amount. Using a reasoned subjective assessment of different measures previously established, the Committee awarded the CEO a bonus of $6,200,000. The primary measure considered was ROE. The Committee also considered the Company’s earnings per share, combined ratio (relative to the industry), and investment income.

 

While the measures are listed in order of importance, no particular allocation was applied to the measures. The Committee also considered:

 

 

W. R. Berkley Corporation’s financial performance in 2009 was strong considering economic conditions. The following outlines the Committee’s analysis for the CEO’s bonus determination:

 

 

 

The CEO’s bonus represents an 8% decline from the previous year, generally consistent with other executive officers of the Company. The absolute bonus for the CEO reflects the Committee’s satisfaction with the efforts of the CEO and actions taken to ensure the Company’s success in years to come. The amount paid was less than the maximum bonus amount (4% of pre-tax net income, or $15,280,000) described earlier.

 

Long-Term Incentives.  NEOs did not receive new LTIP awards in 2009. LTIP awards are generally made twice over a five-year period and have a five-year performance term. LTIPs have no value on the date of grant, but are expected to grow in value based on the growth in book value over the five-year period. LTIP awards were last granted in March 2008.

 

During 2008, amendments were made to the outstanding LTIP awards originally granted in 2006 in order to comply with Internal Revenue Code Section 409A. Originally, the award could be paid out as soon as the maximum award value was achieved, or after five years, whichever occurred earlier. In order to comply with Section 409A, however, a specific payout date needed to be set. More than half of the maximum award for the 2006 LTIP had already been earned as of the end of 2008, and it appeared likely to achieve early payment. Therefore, the Committee decided to pay 50% of the maximum value on January 2, 2009. The balance of the award would be paid after the end of the five-year performance period. With respect to the NEOs other than the CFO, an IRS discount factor was applied to the January 2, 2009 accelerated payment in order to maintain compliance with Section 162(m) (which ensures the payment is tax deductible to the Company). The accruals for these payments have already been reflected in the Non-Equity Incentive Plan Compensation column of the Summary Compensation Table over the prior two years. Actual payments made to the NEOs on January 2, 2009 were as follows:

 

 

Severance and Change-of-Control Benefits

 

Except as provided for in the CEO’s Supplemental Benefits Agreement, RSUs that ratably vest upon death or disability and LTIP awards that become payable upon certain terminations, the Company does not have any contracts, agreements, plans or arrangements that provide for severance payments to the NEOs at, following, or in connection with any termination of employment.

 

 

 

Upon a Change of Control as described in the various plan documents:

 

 

These provisions support the Company’s compensation objectives by keeping executives focused on delivering strong results and evaluating potential change of control events from a neutral perspective. The provisions remove concerns over the possible personal impact of such events. For additional detail, see “Executive Compensation — Potential Payments Upon Termination or Change of Control” below.

 

Discussion of Risk and Compensation Plans

 

There are a number of practices, policies, and incentive design features that are intended to ensure executives are not encouraged to take unnecessary or excessive risks. These include:

 

 

COMPENSATION COMMITTEE REPORT

 

The Compensation Committee has reviewed and discussed with management the Compensation Discussion and Analysis shown above. Based on this review and discussion, the Compensation Committee recommended to the Board of Directors that this Compensation Discussion and Analysis be included in this Proxy Statement and the Annual Report on Form 10-K for the year ended December 31, 2009.

 

Compensation Committee

 

Rodney A. Hawes, Jr., Chairman
Mark E. Brockbank
Mary C. Farrell

 

April 6, 2010

 

The above report of the Compensation Committee shall not be deemed incorporated by reference by any general statement incorporating by reference this proxy statement into any filing under the Securities Act of 1933 or under the Securities Exchange Act of 1934, except to the extent that the Company specifically incorporates this information by reference, and shall not otherwise be deemed filed under such Acts.

 

EXECUTIVE COMPENSATION

 

Summary Compensation Table

 

The following table sets forth the cash and non-cash compensation awarded to or earned by the Chairman of the Board and Chief Executive Officer of the Company, the Chief Financial Officer of the Company and the three other highest paid executive officers of the Company whose total compensation exceeded $100,000 for the last fiscal year.

 

Summary Compensation Table

 

 

 

 

 

 

Plan-Based Awards

 

The following table shows information regarding awards granted to the NEOs in 2009 (portions of which are reflected to the extent required in the Summary Compensation Table):

 

2009 GRANTS OF PLAN-BASED AWARDS

 

 

 

 

Outstanding Equity Awards

 

The following table provides information on the holdings of stock options and stock awards by the NEOs as of December 31, 2009. This table includes unexercised option awards (no NEO has any unvested option awards) and unvested RSUs. Each equity grant is shown separately for each NEO. The market value of the stock awards is based on the closing market price of the Company’s stock as of December 31, 2009, which was $24.64.

 

OUTSTANDING EQUITY AWARDS AT FISCAL 2009 YEAR-END

 

 

 

 

Option Exercises

 

The following table shows for the fiscal year ended December 31, 2009, information concerning the exercise of stock options by the NEOs and the pre-tax value realized upon such exercises.

 

OPTION EXERCISES AND STOCK VESTED IN 2009

 

 

 

 

Pension Benefits

 

The following table shows for the fiscal year ended December 31, 2009 information relating to the pension benefits provided to Mr. Berkley under the Supplemental Benefits Agreement:

 

PENSION BENEFITS

 

 

 

 

Mr. Berkley is entitled to the commencement of retirement benefits on the earliest to occur of January 2, 2014, his death, and a change of control of the Company. In the event retirement benefits are triggered by a change in control of the Company, Mr. Berkley will receive, in lieu of the yearly retirement benefits described above on pages 28-29, a lump sum amount equal to the actuarial present value set forth in the Pension Benefits table. If Mr. Berkley predeceases his spouse, fifty percent (50%) of such benefit will be paid annually to his spouse for the remainder of her life. Mr. Berkley may elect, within ten days of the date the annual retirement benefit begins, to receive an annual lifetime annuity benefit under a joint-and survivor annuity based on the lives of Mr. Berkley and his spouse that is the actuarial equivalent to the payments that would otherwise have been made had no such election occurred.

 

Non-Qualified Deferred Compensation

 

The table below provides information on the year-end balances of amounts deferred in prior years by the NEOs under the Deferred Compensation Plan for Officers.

 

NON-QUALIFIED DEFERRED COMPENSATION FOR 2009

 

 

 

 

The amounts set forth in the table above were deferred pursuant to the Company’s Deferred Compensation Plan for Officers, which NEOs are eligible to participate in on a voluntary basis. Under the plan, participants may elect to defer all or a portion of their base salary, bonus compensation, and excess profit sharing contribution for any year. Amounts deferred will accrue a reasonable rate of interest, as determined annually by the Compensation Committee. At the time of the deferral election, amounts may be deferred until any date on or before the officer’s separation from service. At the officer’s election made at the time of deferral, the Company will pay the deferred amounts either in a lump sum or in no more than five annual installments beginning generally within 60 days of a date which is prior to or on the date of the officer’s separation from service (subject to a six-month delay to comply with Section 409A of the IRC). For 2009, the Compensation Committee agreed to accrue interest on the deferred amounts at the prime rate of interest reported by JPMorgan Chase.

 

Potential Payments Upon Termination or Change of Control

 

Except as provided for in the CEO’s Supplemental Benefits Agreement, RSUs that ratably vest upon death or disability, and LTIP awards that become payable upon certain terminations, the Company does not have any contracts, agreements, plans or arrangements that provide for severance payments to the NEOs at, following, or in connection with any termination of employment. None of

the NEOs other than the CEO has employment or change of control agreements with the Company. The information below describes and quantifies certain compensation that would become payable under existing plans and arrangements if a change of control had occurred or if an NEO’s employment had terminated on December 31, 2009. Due to the number of factors that affect the nature and amount of any benefits provided upon the events discussed below, any actual amounts paid or distributed may be different. Factors that could affect these amounts include the timing during the year of any such event and the Company’s stock price.

 

Mr. Berkley is the only named executive who was eligible to receive immediate retirement benefits as of December 31, 2009, which benefits are described above and quantified in the Pension Benefits table on page 38. In addition to the cash retirement benefit described above on pages 28-29, during the two-year period following his termination as defined in the agreement or, if longer, the period that Mr. Berkley performs consulting services to the Company or remains Chairman of the Board, he will be entitled to continue to receive certain perquisites, including continued use of the Company plane and a car and driver, in a manner consistent with his prior use of such perquisites. Additionally, for so long as Mr. Berkley requests, following such termination, the Company is required to provide him with office accommodations and support, including secretarial support, in a manner consistent with that provided prior to such termination. The Company estimates the cost associated with the benefits that are to be provided during the two-year period set forth above to be $800,000 per annum, and that the cost associated with the benefits to be provided upon request would be $200,000 per annum. After his termination, Mr. Berkley and his spouse are also entitled to receive lifetime health insurance coverage for which the Company estimates the present value of the cost to be $200,000. The estimated benefit to Mr. Berkley under the Supplemental Benefits Agreement described above, had he become entitled to receive such benefits upon a change in control occurring on December 31, 2009, does not include any gross-up as provided under the agreement because Mr. Berkley would not have been subject to the excise tax under Section 4999 of the Internal Revenue Code.

 

The agreement prohibits Mr. Berkley from competing against the Company for two years following his resignation of employment other than for “good reason,” during which time Mr. Berkley has agreed to be available to provide consulting services to the Company.

 

As described in the Compensation Discussion and Analysis above, with respect to all the NEOs, and in the Pension Benefits table, with respect to Mr. Berkley, upon a Change of Control as described in the various plan documents:

 

1. Mr. Berkley will be entitled to a lump sum payment of the present value of the retirement benefit under the Supplemental Benefits Agreement, as disclosed in the Pension Benefits table above.

 

2. RSUs become fully vested and settled in full as of the date immediately before the date of the Change of Control, or such other date as determined by the Compensation Committee, but no later than the date of the Change of Control.

 

3. The value of all LTIP awards will be determined and fixed as of the end of the fiscal year immediately prior to the fiscal year in which the Change of Control occurred. The value will be paid to the participant within 90 days following the last day of the performance period.

In addition, if one of the NEOs were to die or become disabled, his RSUs would vest pro-rata. With respect to LTIP awards, if one of the NEOs, prior to the last day of the performance period of the award, were to terminate employment due to death, disability, qualified retirement, or termination by the Company for a reason other than cause, subject to the terms and conditions of the LTIP agreements, the cash value of the LTIP awards for that NEO would be determined and fixed as of the end of the fiscal year immediately prior to the fiscal year in which the termination occurred and paid 90 days following the termination.

 

The following table provides the intrinsic value (that is, the value based upon the Company’s stock price) of RSUs that would become exercisable or vested, as well as the value of all performance units awarded under the LTIP, upon (A) a change in control or (B) if the named executive had died or become disabled, in each case as of December 31, 2009.

 

POTENTIAL TERMINATION OR CHANGE OF CONTROL PAYMENTS
UNDER RSUS AND THE LTIP

 

 

 

 

Certain of the NEOs participate in the Deferred Compensation Plan for Officers that permits the deferral of their base salary, bonus compensation, and excess profit sharing contribution for any year. The last column of the Non-Qualified Deferred Compensation table for 2009 on page 39 reports each NEO’s aggregate balance at December 31, 2009. The NEOs are entitled to receive the amount in their deferred compensation account in the event of a separation from service. The account balances continue to accrue interest income between the separation from service event and the date

distributions are made, and therefore amounts payable to the NEOs, assuming a separation from service on December 31, 2009, would differ from those shown in the Non-Qualified Deferred Compensation table for 2009 to some small degree to account for such interest.

 

Director Compensation

 

For 2009, each director received a quarterly stipend of $18,000 and a fee of $1,500 for each Board meeting attended. In addition, on May 19, 2009, pursuant to the Company’s 2009 Directors Stock Plan, each continuing director received a grant of 2,000 shares of the Company’s common stock. Members of the Audit Committee and the Compensation Committee, which both consist solely of directors who are independent under the rules of the NYSE, each receive an annual stipend of $5,000, with the Chairman of each such committee receiving an additional annual stipend of $30,000. Members of the Audit Committee and the Compensation Committee each also receive $1,000 for each substantive meeting attended. In accordance with the Company’s guidelines, each director, within 12 months of becoming a director, is required to own an amount of common stock of the Company equal to three times the annual stipend paid to the director. The Company also maintains a Deferred Compensation Plan for Directors pursuant to which directors may elect to defer all or a portion of their retainer and/or meeting fees for any year. Amounts deferred may, at the election of the director, (1) be deemed invested in the Company’s common stock or (2) accrue a reasonable rate of interest, determined annually by the Compensation Committee. At the time of the deferral election, amounts may be deferred until any date on or before the director’s separation from service with the Board. The Company will pay the deferred amounts, at the election of the director made at the time of deferral, either in a lump sum or in no more than five annual installments beginning on a date which is prior to or on the date of the director’s separation from service with the Board. Upon the death of a director, the director’s deferred account balance will be distributed within sixty days following death. For 2009, the Compensation Committee determined that interest on the deferred amounts would accrue at the prime rate of interest reported by JPMorgan Chase.

 

The following table shows for the fiscal year ended December 31, 2009, information concerning the compensation of directors who are not named in the Summary Compensation Table:

 

2009 DIRECTOR COMPENSATION

 

 

 

 

EQUITY COMPENSATION PLAN INFORMATION

 

The following table gives information about our common stock that may be issued upon the exercise of options, warrants and rights under our existing equity compensation plans and arrangements as of December 31, 2009, including the W. R. Berkley Corporation 2003 Stock Incentive Plan. The table also includes information regarding 1,012,500 RSUs awarded to officers of the Company and its subsidiaries on April 4, 2003 (as adjusted for subsequent stock splits) under a plan not approved by stockholders.

 

 

 

 

APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

KPMG LLP has been appointed by the Board of Directors as the independent registered public accounting firm to audit the financial statements of the Company for the fiscal year ending December 31, 2010. The appointment of this firm was recommended to the Board by the Audit Committee. The Board is submitting this matter to a vote of stockholders in order to ascertain their views. If the appointment of KPMG LLP is not ratified, the Board will reconsider its action and will appoint auditors for the 2010 fiscal year without further stockholder action. Further, even if the appointment is ratified by stockholder action, the Board may at any time in the future in its discretion reconsider the appointment without submitting the matter to a vote of stockholders.

It is expected that representatives of KPMG LLP will attend the Annual Meeting, will have the opportunity to make a statement if they desire to do so and will be available to respond to appropriate stockholder questions.

 

The Board of Directors unanimously recommends a vote “FOR” the ratification of the appointment of KPMG LLP.

 

Audit and Non-Audit Fees

 

The aggregate amount of the fees billed or expected to be billed by KPMG LLP for its professional services provided in 2009 and 2008 were as follows:

 

 

 

 

Pre-Approval Policies

 

Consistent with SEC policies regarding auditor independence, the Audit Committee has adopted a policy regarding the pre-approval of services of the Company’s independent auditors. Pursuant to this policy, such services may be generally pre-approved on an annual basis; other services, or services exceeding the pre-approved cost levels, must be specifically pre-approved by the Audit Committee. The Audit Committee may also delegate pre-approval authority to one or more of its members. All of such fees for 2009 were approved by the Audit Committee in accordance with this policy.

 

AUDIT COMMITTEE REPORT

 

To the Board of Directors of W. R. Berkley Corporation:

 

The Audit Committee reviews the Company’s financial reporting process on behalf of the Board. Management has the primary responsibility for establishing and maintaining adequate internal financial controls, for preparing the financial statements and for the public reporting process. KPMG LLP, the Company’s independent registered public accounting firm for 2009, is responsible for expressing opinions on the conformity of the Company’s audited financial statements with accounting principles generally accepted in the United States of America and on the effectiveness of the Company’s internal control over financial reporting.

 

In this context, the Audit Committee has reviewed and discussed with management and KPMG LLP the audited financial statements for the year ended December 31, 2009 and KPMG LLP’s evaluation of the Company’s internal control over financial reporting. The Audit Committee has discussed with KPMG LLP the matters that are required to be discussed by Statement on Auditing Standards No. 61, as currently in effect (Communication With Audit Committees). KPMG LLP has provided to the Audit Committee the written disclosures and the letter required by the applicable requirements of the Public Company Accounting Oversight Board regarding the independent accountant’s communications with the audit committee concerning independence and the Audit Committee has discussed with KPMG LLP that firm’s independence. The Audit Committee has concluded that KPMG LLP’s provision of audit and non-audit services to the Company and its affiliates are compatible with KPMG LLP’s independence.

 

Based on the considerations and discussions referred to above, the Audit Committee recommended to our Board of Directors that the audited financial statements for the year ended December 31, 2009 be included in our Annual Report on Form 10-K for 2009. The Audit Committee has selected, and the Board of Directors has ratified the selection of KPMG LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2010.

 

Audit Committee

 

Mark L. Shapiro, Chairman

Ronald E. Blaylock

George G. Daly

 

April 6, 2010

 

The above report of the Audit Committee shall not be deemed incorporated by reference by any general statement incorporating by reference this proxy statement into any filing under the Securities Act of 1933 or under the Securities Exchange Act of 1934, except to the extent that the Company specifically incorporates this information by reference, and shall not otherwise be deemed filed under such Acts.

 

OTHER MATTERS TO COME BEFORE THE MEETING

 

Management is not aware of any matters to come before the Annual Meeting other than as set forth above. However, since matters of which management is not now aware may come before the Annual Meeting or any adjournment thereof, the proxies intend to vote, act and consent in accordance with their best judgment with respect thereto. Upon receipt of such proxies properly submitted in time for voting, the shares represented thereby will be voted as indicated therein and in this proxy statement.

 

SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE

 

Based solely on its review of the copies of Forms 3, 4 and 5 received by it, or written representations from certain reporting persons that no Forms 5 were required for such persons, the Company believes that all filing requirements under Section 16(a) of the Exchange Act applicable to its officers, directors and ten-percent stockholders were complied with during the fiscal year ended December 31, 2009, except that the most recent Form 4 for W. Robert Berkley, Jr. included 25,312 shares of common stock (5,000 shares initially issued, as adjusted for subsequent stock splits) that were not included in his initial Form 3 and subsequent reports of beneficial ownership.

 

STOCKHOLDER NOMINATIONS FOR BOARD MEMBERSHIP
AND OTHER PROPOSALS FOR 2011 ANNUAL MEETING

 

It is anticipated that the next Annual Meeting of Stockholders after the one scheduled for May 18, 2010 will be held on or about May 17, 2011. The Company’s By-Laws require that, for nominations of directors or other business to be properly brought before an Annual Meeting of Stockholders, written notice of such nomination or proposal for other business must be furnished to the Company. Such notice must contain certain information concerning the nominating or proposing stockholder and information concerning the nominee and must be furnished by the stockholder (who must be entitled to vote at the meeting) to the Secretary of the Company, in the case of the Annual Meeting of Stockholders to be held in 2011 no earlier than February 17, 2011 and no later than March 21, 2011. A copy of the applicable provisions of the By-Laws may be obtained by any stockholder, without charge, upon written request to the Secretary of the Company at the address set forth below.

 

Since the Company did not receive notice of any stockholder proposal for the 2010 Annual Meeting, it will have discretionary authority to vote on any stockholder proposals presented at such meeting.

 

In addition to the foregoing, and in accordance with the rules of the Securities and Exchange Commission, in order for a stockholder proposal, relating to a proper subject, to be considered for inclusion in the Company’s proxy statement and form of proxy relating to the Annual Meeting of Stockholders to be held in 2011, such proposal must be received by the Secretary of the Company by December 9, 2010 in the form required under and subject to the other requirements of the applicable rules of the Securities and Exchange Commission. Any such proposal should be submitted by certified mail, return receipt requested, or other means, including electronic means, that allow the stockholder to prove the date of delivery.

 

The Company’s (i) Annual Report on Form 10-K for the fiscal year ended December 31, 2009; (ii) Corporate Governance Guidelines; (iii) Statement of Business Ethics; (iv) Statement of Business Ethics for the Board of Directors; (v) Code of Ethics for Senior Financial Officers; (vi) Audit Committee Charter; (vii) Compensation Committee Charter; and (viii) Nominating and Corporate Governance Committee Charter are available on our website at www.wrberkley.com and are also available without charge to any stockholder of the Company who requests a copy in writing. Requests for copies of any or all of these documents should be directed to the Secretary, W. R. Berkley Corporation, 475 Steamboat Road, Greenwich, Connecticut 06830.

 

By Order of the Board of Directors,

 

William R. Berkley

Chairman of the Board and

Chief Executive Officer