-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ij9s4DwdJfWLIXL8ow9heKq0fSOrMY5zkyjS4mKtN7487EjnYVrBbrJPIjaK8X18 VY4T4nVZK1za3jJkkddqhA== 0000899140-05-000790.txt : 20050816 0000899140-05-000790.hdr.sgml : 20050816 20050816164927 ACCESSION NUMBER: 0000899140-05-000790 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20050816 DATE AS OF CHANGE: 20050816 EFFECTIVENESS DATE: 20050816 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERKLEY W R CORP CENTRAL INDEX KEY: 0000011544 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 221867895 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-127598 FILM NUMBER: 051031264 BUSINESS ADDRESS: STREET 1: 475 STEAMBOAT ROAD STREET 2: . CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: 2036293000 MAIL ADDRESS: STREET 1: 475 STEAMBOAT ROAD STREET 2: . CITY: GREENWICH STATE: CT ZIP: 06830 S-8 1 b2871263b.txt REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on August 16, 2005 Registration No. 333-_____ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 W. R. BERKLEY CORPORATION (Exact name of registrant as specified in its charter) Delaware 22-1867895 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification Number) 475 Steamboat Road Greenwich, Connecticut 06830 (Address of Principal Executive Offices) - -------------------------------------------------------------------------------- W. R. Berkley Corporation Deferred Compensation Plan for Directors (Full title of the plan) - -------------------------------------------------------------------------------- Ira S. Lederman, Esq. Senior Vice President, General Counsel and Secretary W. R. Berkley Corporation 475 Steamboat Road Greenwich, Connecticut 06830 (203) 629-3000 (Name, address and telephone number, including area code, of agent for service) - -------------------------------------------------------------------------------- Copy to: Jeffrey S. Hochman, Esq. Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, New York 10019-6099 (212) 728-8000 - -------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE
========================= ======================= ======================== ====================== ===================== Proposed maximum Proposed maximum Title of Securities to Amount to be offering price per aggregate offering Amount of be registered registered share price registration fee - ------------------------- ----------------------- ------------------------ ---------------------- --------------------- Deferred Compensation $500,000 (2) 100% $500,000 $58.85 (3) Obligations (1) ========================= ======================= ======================== ====================== ===================== Common Stock, $0.20 (4) (4) (4) N/A(5) par value per share (4) ========================= ======================= ======================== ====================== =====================
(1) The W. R. Berkley Corporation Deferred Compensation Plan for Directors (the "Plan") allows members of the Board of Directors (the "Board") of W. R. Berkley Corporation (the "Company") to defer the payment of all or a portion of their compensation for services to the Board and have such deferred amounts deemed invested into an interest-bearing investment or a phantom stock investment representing shares of the Company's common stock, $0.20 par value per share (the "Common Stock"). These securities represent the unsecured obligations of the Company to pay deferred compensation in the future in accordance with the terms of the Plan ("Deferred Compensation Obligations"). (2) Estimated solely for calculating the amount of the registration fee. Such estimate is based on the estimate of the aggregate compensation to be deferred by participants. (3) Calculated pursuant to paragraph (o) of Rule 457 under the Securities Act of 1933, as amended (the "Securities Act"). (4) This Registration Statement also covers an indeterminable number of shares of Common Stock, to be issued at indeterminable prices from time to time pursuant to the terms of the Plan and such additional number of shares as may be issued to prevent dilution resulting from stock splits, dividends or similar transactions effected without the receipt of consideration. (5) Because the Common Stock to be issued under the Plan results from the conversion of the Deferred Compensation Obligations into shares of Common Stock, no separate registration fee is required, pursuant to paragraph (i) of Rule 457 under the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents, filed with the Securities and Exchange Commission (the "Commission") by W. R. Berkley Corporation, a Delaware corporation (the "Company"), are incorporated by reference into this Registration Statement: (a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2004, filed pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"); (b) The Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 2005 and June 30, 2005, respectively, filed pursuant to the Exchange Act; (c) The Company's Current Reports on Form 8-K, filed on February 25, 2005, March 7, 2005, March 14, 2005, May 6, 2005 and July 25, 2005 (two reports), respectively (but only to the extent the information therein is filed and not furnished), pursuant to the Exchange Act; and (d) The descriptions of the Company's (i) common stock, par value $0.20 per share (the "Common Stock"), set forth in the Company's Registration Statement on Form S-3 (No. 333-57546), under the heading "Description of our Capital Stock" (on pages 5-12 therein), filed with the Commission pursuant to the Securities Act of 1933, as amended (the "Securities Act") on March 23, 2001, as amended by, and incorporated by reference into, the Company's Registration Statement on Form 8-A/A (Amendment No. 1) under the heading "Description of the Registrants Securities to be Registered" (on page 1 therein), filed with the Commission pursuant to the Exchange Act on May 1, 2001 and (ii) rights to purchase Series A Junior Participating Preferred Stock, set forth in the Company's Registration Statement on Form 8-A, under the heading "Description of the Registrants Securities to be Registered" (on pages 1-7 therein), filed with the Commission pursuant to the Exchange Act on May 11, 1999, as amended by the Company's Registration Statement on Form 8-A/A (Amendment No. 1), under the heading "Description of the Registrants Securities to be Registered" (on page 1 therein), filed with the Commission pursuant to the Exchange Act on May 1, 2001. In addition, all documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all the securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents with the Commission. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated by reference herein) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded. Item 4. DESCRIPTION OF SECURITIES (a) Common Stock. Inapplicable (the Common Stock is registered under Section 12 of the Exchange Act). (b) Deferred Compensation Obligations. The Company's Deferred Compensation Plan for Directors (the "Plan"), provides members of the Board of Directors of the Company (the "Board") with the opportunity to defer the payment of all or a portion of their Board and committee retainer and meeting fees earned in any year until a later time. During the deferral period, the members of the Board who elect such deferral ("Plan Participants") may have their deferred compensation (i) credited with a predetermined rate of interest or (ii) deemed invested into a phantom interest in the Common Stock and credited with dividend equivalents. Deferred compensation deemed invested in the phantom interest in the Common Stock at the time of distribution from the Plan may be distributed in the form of shares of Common Stock. Plan Participants are always fully vested in their deferred compensation under the Plan. Amounts deferred by a Plan Participant under the Plan will be credited to a bookkeeping account on the books of the Company. The value of each Plan Participant's account will be based on the amount deferred and the performance of the investment benchmark alternatives selected by such Plan Participant. Since no deferrals will actually be required to be invested in any investment benchmark fund or security, Plan Participants will not have ownership interest in any investment benchmark fund or security while their compensation is deferred under the Plan. Payment of each Plan Participant's deferred compensation will be made in a lump sum or a series of up to five annual installments on the earlier of the elected distribution date or dates or upon the termination of the Plan Participant's membership with the Board (and employment with the Company, if applicable). In addition, under certain circumstances, a Plan Participant may request an earlier distribution on account of an Unforeseeable Emergency, as defined in the Plan. The Deferred Compensation Obligations are unsecured general obligations of the Company to pay the value of the deferred compensation accounts in the future as adjusted to reflect the hypothetical gains and losses resulting from the performance of the selected investment benchmarks in accordance with the terms of the Plan. The Deferred Compensation Obligations will rank without preference with other unsecured and unsubordinated indebtedness of the Company from time to time outstanding and are, therefore, subject to the risks of the Company's insolvency. The Deferred Compensation Obligations cannot be transferred or assigned, other than by will or the laws of descent and distribution. The Plan may at any time or from time to time be amended, modified or terminated by the Board. However, no amendment, modification or termination may, without the consent of the Plan Participant, adversely affect any amounts credited to such Plan Participant's deferred compensation account, unless such amendment, modification or termination is for the purpose of complying with Section 409A of the Internal Revenue Code of 1986, as amended. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The validity of the Deferred Compensation Obligations and shares of Common Stock offered hereby is being passed upon for the Company by Willkie Farr & Gallagher LLP. As of the date of this Registration Statement, Mr. Jack H. Nusbaum, the Chairman of Willkie Farr & Gallagher LLP, beneficially owned no Deferred Compensation Obligations and an aggregate of 41,218 shares of Common Stock. Mr. Nusbaum is also a director of the Company and, as such, will be allowed to participate in the Plan to the same extent as other directors. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the Delaware General Corporation Law, as amended, which is applicable to the Company, provides in regards to indemnification of directors and officers as follows: (a) A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person's conduct was unlawful. (b) A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. (c) To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith. (d) Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders. (e) Expenses (including attorneys' fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys' fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate. (f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office. (g) A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the corporation would have the power to indemnify such person against such liability under this section. (h) For purposes of this section, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. (i) For purposes of this section, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this section. (j) The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. As permitted by the Delaware General Corporation Law, the Company's stockholders approved an amendment to its Restated Certificate of Incorporation containing provisions eliminating a director's personal liability for monetary damages to the Company and its stockholders arising from a breach of a director's fiduciary duty except for liability under Section 174 of the Delaware General Corporation Law, liability for any breach of the director's duty of loyalty to the Company or its stockholders, acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, or any transaction from which the director received an improper personal benefit. The amendment also provides for indemnification of directors, officers and other persons under certain circumstances. The Company maintains policies of insurance under which the Company and its directors and officers are insured subject to specified exclusions and deductible and maximum amounts against loss arising from any claim which may be made against the Company or any of its directors or officers by reason of any breach of duty, neglect, error, misstatement, omission or act done or alleged to have been done while acting in the Company's or their respective capacities. Item 7. EXEMPTION FROM REGISTRATION CLAIMED Inapplicable. Item 8. EXHIBITS Exhibit No. Description of Exhibits - ----------- ----------------------- 4 W. R. Berkley Corporation Deferred Compensation Plan for Directors. 5 Opinion of Willkie Farr & Gallagher LLP regarding the legality of the securities being registered. 23.1 Consent of KPMG LLP. 23.2 Consent of Willkie Farr & Gallagher LLP (included in Exhibit 5). 24 Power of Attorney (reference is made to the signature page). Item 9. UNDERTAKINGS 1. The undersigned registrant hereby undertakes: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to the Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 2. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized on the 2nd day of August, 2005. W. R. Berkley Corporation By: /s/ William R. Berkley ----------------------------------- William R. Berkley Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY Each of the undersigned officers and directors of W. R. Berkley Corporation hereby severally constitutes and appoints William R. Berkley, Eugene G. Ballard and Ira S. Lederman, and each of them, with full power to act without the other, as his true and lawful attorney-in-fact and agent for the undersigned, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, thereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
Name Title Date ---- ----- ---- By: /s/ William R. Berkley Chairman of the Board and Chief August 2, 2005 --------------------------------- Executive Officer (Principal Executive William R. Berkley Officer) By: /s/ Eugene G. Ballard Senior Vice President, Chief August 2, 2005 --------------------------------- Financial Officer and Treasurer Eugene G. Ballard (Principal Financial Officer) By: /s/ Clement P. Patafio Vice President, Corporate Controller August 2, 2005 --------------------------------- (Principal Accounting Officer) Clement P. Patafio By: /s/ W. Robert Berkley, Jr. Senior Vice President and Director August 2, 2005 --------------------------------- W. Robert Berkley, Jr. By: /s/ Philip J. Ablove Director August 2, 2005 --------------------------------- Philip J. Ablove By: /s/ Ronald E. Blaylock Director August 2, 2005 --------------------------------- Ronald E. Blaylock By: /s/ Mark E. Brockbank Director August 2, 2005 -------------------------------- Mark E. Brockbank By: /s/ George G. Daly Director August 2, 2005 --------------------------------- George G. Daly By: /s/ Rodney A. Hawes, Jr. Director August 2, 2005 --------------------------------- Rodney A. Hawes, Jr. By: /s/ Jack H. Nusbaum Director August 2, 2005 --------------------------------- Jack H. Nusbaum By: /s/ Mark L. Shapiro Director August 2, 2005 --------------------------------- Mark L. Shapiro
INDEX TO EXHIBITS Exhibit No. Description of Exhibit - ----------- ---------------------- 4 W. R. Berkley Corporation Deferred Compensation Plan for Directors. 5 Opinion of Willkie Farr & Gallagher LLP regarding the legality of the securities being registered. 23.1 Consent of KPMG LLP. 23.2 Consent of Willkie Farr & Gallagher LLP (included in Exhibit 5). 24 Power of Attorney (reference is made to the signature page). EX-4 3 b2871263bb.txt DEFERRED COMPENSATION PLAN W. R. BERKLEY CORPORATION DEFERRED COMPENSATION PLAN FOR DIRECTORS AS ADOPTED May 3, 2005 Section 1. Effective Date; Purpose The effective date of this Plan is May 3, 2005 (the "Effective Date"). This Plan was created as a spin-off from the W. R. Berkley Corporation Deferred Compensation Plan for Directors, as adopted March 7, 1996 (the "Original Deferral Plan") to allow members of the Board of Directors (the "Board") of W. R. Berkley Corporation (the "Company") to defer their compensation for the calendar years 2005 and beyond. Accordingly, as of the Effective Date, deferral elections made under the Original Deferral Plan and deferral accounts established under the Original Deferral Plan with respect to 2005 director compensation ("2005 Compensation") have been transferred to this Plan and shall be governed under the terms of this Plan. Section 2. Eligibility Any member of the Board, including any person otherwise participating in the W. R. Berkley Corporation Deferred Compensation Plan for Officers, is eligible to participate in the Plan. Section 3. Deferral Election Prior to the beginning of each calendar year, each member of the Board may elect to defer receipt of all or a portion of the retainer and/or meeting fees otherwise payable to such person for that year on account of serving on the Board. Notwithstanding the foregoing, for the calendar year in which a person first becomes a member of the Board, such person may elect, not later than thirty days after the date such person first becomes a member of the Board to defer the receipt of all or a portion of the retainer and/or meeting fees otherwise payable to such person for serving on the Board subsequent to the date of making such election through December 31st of such year. Members of the Board who choose to defer amounts pursuant to this Section 3 will be "Participants" including any such member who elected to defer his or her 2005 Compensation pursuant to the Original Deferral Plan. All amounts deferred hereunder, as increased or decreased as a result of the deemed investment of such amounts pursuant to Section 6 herein, will be classified as "Deferred Compensation." Section 4. Type of Plan The Plan is a non-qualified voluntary deferred compensation plan. The Plan is not intended to be subject to the provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"). To the extent the Plan is determined to be so subject, it is intended, to the extent that any Participant is otherwise an employee of the Company or of any subsidiary to constitute a "plan which is unfunded and is maintained by the employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees," as such phrase is used in ERISA, and the terms of the Plan shall be interpreted consistent with such intent. Section 5. No Funding; Participant's Rights Unsecured The Company will not fund the amount of any Participant's Deferred Compensation. The amount of each Participant's Deferred Compensation will be separately accounted for in the bookkeeping records of the Company by setting up for each Participant a Deferred Compensation account ("Deferred Compensation Account"). The amount of Deferred Compensation is secured only by the Company's promise to pay it from the assets of the Company and Participants will have the status of general unsecured creditors of the Company with respect to their Deferred Compensation. The Company will not be required to establish any special or separate fund or to make any segregation of assets to assure the payment of any amounts under the Plan. Section 6. Deemed Investment of Deferred Compensation Within thirty calendar days following the Effective Date, Participants may elect to have all or a portion of their Deferred Compensation for 2005 deemed invested in the common stock of the Company, $0.20 par value per share (the "Stock") (the "Stock Investment"). Thereafter, at the time an initial election to defer director compensation for any calendar year hereunder is made, a Participant may elect to have his or her Deferred Compensation (i) credited with a reasonable rate of interest (the "Interest Investment") or (ii) deemed invested in the Stock. Deferred Compensation shall be credited with a reasonable rate of interest (compounded quarterly) or deemed invested in Stock at the fair market value of the Stock, as elected by the Participant, commencing on the first day of the month following the date of the initial deferral date until the distribution date. If no investment election is made by a Participant, such Participant's Deferred Compensation shall automatically be deemed invested in the Interest Investment. The interest rate which shall apply under the Interest Investment with respect to each year shall be such rate of interest which is in effect for such year under Section 6 of the W. R. Berkley Corporation Deferred Compensation Plan for Officers. On each date that dividends are paid (each a "Dividend Payment Date") on shares of Stock with respect to which the record date (the "Record Date") occurs during the deferral period, the Company will credit to an account for the Participant an amount equal to the dividend paid on a share of the Stock multiplied by the number of shares of Stock into which such Participant's Deferred Compensation is deemed invested as of such Record Date. These dividend equivalent amounts shall be deemed invested in the Interest Investment until payment of the Deferred Compensation to the Participant as provided in Section 6 herein. Any remaining dividend equivalent amounts subsequently credited to the account of a Participant with respect to a Record Date that occurs during the deferral period but for which the Dividend Payment Date occurs following the deferral period, shall be paid to the Participant on the next March 31, June 30, September 30 or December 31, whichever is closer, immediately following such Dividend Payment Date. Section 7. Deferral Period A Participant who is not otherwise an employee of the Company or of any subsidiary may elect to defer the receipt of his/her Deferred Compensation until a specified date or dates in the future, but not later than such person's termination as a member of the Board. A Participant who is otherwise an employee of the Company or of any subsidiary may elect to defer the receipt of -2- his/her Deferred Compensation until a specified date in the future, but no later than his/her termination as both an employee and member of the Board. A separate such election will be made with respect to that portion of his/her Deferred Compensation attributable to retainer and/or meeting fees otherwise deferred with respect to each separate year. The actual payment of the Deferred Compensation will be made or will commence on the earlier of (i) the date specified or (ii) the date the Participant ceases to be associated with the Company as either a member of the Board or an employee of the Company or any subsidiary, as the case may be (the date of such cessation is hereafter referred to as the "Final Distribution Date"), or as soon as reasonably practicable following such specified date or Final Distribution Date, if such later payment is an allowable distribution under Section 409A of the Internal Revenue Code of 1986, as amended ("Section 409A") (a "Later Payment Date"). Section 8. Form of Payment A Participant may elect to receive his/her Deferred Compensation in either a lump sum payment or in annual installment payments (not to exceed five), on the date or dates specified by the Participant at the time the election to defer is made. Installment payments shall begin on the date elected by the Participant and thereafter shall be made in annual installments on the anniversaries of the initial distribution date. Payments of Deferred Compensation made on account of a termination of employment or a termination as a member of the Board, as applicable, shall be made in a lump sum. Deferred Compensation deemed invested in the Interest Investment at the time of payment shall be paid in cash and Deferred Compensation deemed invested in the Stock Investment at the time of payment shall be paid in (i) cash, (ii) whole shares of Stock rounded down to the nearest whole share with the remainder paid in cash or (iii) any combination of cash and Stock, in each case as determined by the Company. Section 9. Death Prior to Receipt In the event that a Participant dies prior to receipt of any or all of the amounts payable to him/her pursuant to this Plan, any amounts that are then credited as Deferred Compensation will be paid to his/her designated beneficiary in a lump sum upon the Company's notification of the Participant's death (or a Later Payment Date). At the time the election to defer is made, a Participant may designate a beneficiary under this Plan. The Participant may change the beneficiary by writing to the General Counsel of the Company. If a beneficiary is not named, the value of the Participant's Deferred Compensation Account will be paid to his/her estate. Section 10. Effect of Election An election to defer director compensation hereunder for any year will be irrevocable once the year to which it applies has commenced, and, except as provided in Section 11 below, the amounts deferred hereunder shall not be paid earlier than the distribution date or dates elected by the Participant, or upon termination of such Participant as a member of the Board or termination of employment, if earlier. -3- Section 11. Accelerated Payment upon Unforeseeable Emergency Notwithstanding anything herein to the contrary, a Participant may petition the Compensation and Stock Option Committee of the Board (the "Compensation Committee") for a distribution with respect to his or her Deferred Compensation on account of an "unforeseeable emergency" (an "Unforeseeable Emergency"), as defined in Section 409A of the Internal Revenue Code of 1986, as amended ("Section 409A"). Distributions on account of an Unforeseeable Emergency shall only be allowed to the extent they comply with the distribution requirements of Section 409A. Upon such petition by a Participant and the approval of such application by the Compensation Committee, the Company shall distribute to the Participant as soon as practicable following such approval only the amount of Deferred Compensation necessary to satisfy such Unforeseeable Emergency; provided, however, that in no event may such amount exceed the balance of all of the Deferred Compensation Accounts identified to such Participant; and further provided, however, that no Participant requesting a distribution for an Unforeseeable Emergency shall have any involvement in making the determination to approve such distribution on the part of the Compensation Committee. Distributions made on account of an Unforeseeable Emergency shall reduce the amounts credited to a Participant's Deferred Compensation Account. Section 12. Redeferral Election Upon application by a Participant, the Company may, in its sole discretion, allow for a redeferral election whereby all or a portion of the Deferred Compensation may be further deferred for no less than an additional five (5) years from the distribution date in effect for such Deferred Compensation immediately prior to such redeferral election, but no later than the Final Distribution Date (or Later Payment Date), upon such terms and conditions that the Company deems appropriate to ensure that the amounts subject to redeferral are not taxable to the Participant until the time of actual distribution; provided, however, that (i) an election to redefer all or a portion of such Deferred Compensation must be made at least twelve months prior to the distribution date for such Deferred Compensation in effect immediately prior to the redeferral election, and (ii) such redeferral election must otherwise comply with Section 409A(a)(4)(C). Section 13. Statement of Account Statements will be sent to each Participant by February 15th each year as to the value of his/her Deferred Compensation Account as of the end of the preceding December. Section 14. Assignability No right to receive payments hereunder will be transferable or assignable by a Participant, except by will or by the laws of descent and distribution. Section 15. Administration This Plan will be administered on a day-to-day basis on behalf of the Compensation Committee by the General Counsel of the Company, who will have the authority to adopt rules and regulations for carrying out the Plan. The Compensation Committee will have the authority to interpret, construe and implement the provisions of the Plan and to prescribe the form of the request for deferral of compensation under the Plan. Notwithstanding the foregoing, in the case of -4- any Participant who is also a member of the Compensation Committee, such person shall not participate in any action by the Compensation Committee which affects only such individual Participant's rights under the Plan. Section 16. Amendment/Termination This Plan may at any time or from time to time be amended, modified or terminated by the Board. No amendment, modification or termination will, without the consent of the Participant, adversely affect any amounts credited to such Participant's Deferred Compensation Account; unless the Board determines, in its sole discretion, that such amendment, modification or termination is appropriate or necessary to cause this Plan to comply with Section 409A (including the distribution requirements thereunder) or any Deferred Compensation to be exempt from the tax penalty under Section 409A(a)(1)(B). Section 17. Tax Treatment Deferred Compensation is taxed as ordinary income when payment is actually received. Distributions received from the Plan are not eligible for favorable tax treatment or rollovers as permitted under qualified plans. Section 18. Other Benefits The compensation and basis for other Company provided benefits in the case of any member of the Board who is also an employee of the Company or of any affiliate may be affected if a Participant elects to defer a portion of his/her retainer and/or meeting fees. -5- W. R. BERKLEY CORPORATION DEFERRED COMPENSATION PLAN FOR DIRECTORS ELECTION FORM In accordance with and subject to the W. R. Berkley Corporation Deferred Compensation Plan for Directors (the "Plan"), I hereby request to defer the receipt of my annual retainer and/or meeting fees for the year ending December 31, _____, as follows: Amount to be Deferred: I. Annual Retainer: [ ] (a) ALL (100%), OR [ ] (b) $____ (multiples of $1,000) II. Meeting Fees: [ ] (a) ALL (100%), OR [ ] (b) $____ (multiples of $1,000) Deemed Investment I. Stock Investment [ ] (a) ALL (100%), OR [ ] (b) $____ (multiples of $1,000) II. Interest Investment [ ] (a) ALL (100%), OR [ ] (b) $____ (multiples of $1,000) Period of Deferral: [ ] (a) Indicate Date on which payments should be made or commence (not later than the date I cease to be associated with W. R. Berkley Corporation as a member of the Board of Directors or an employee of W. R. Berkley Corporation or any subsidiary) _______ (Date), OR [ ] (b) Until termination of my association with W. R. Berkley Corporation as a member of the Board of Directors or an employee Form of Distribution: [ ] Lump sum, OR [ ] Annual installments ______________ (not to exceed 5 - annual installments will be distributed on the anniversaries of the initial distribution date selected above) A Participant should contact his/her tax advisor prior to making an election to defer his/her annual retainer and/or meeting fees. I have received a copy of the Plan. I understand that, in the event of my death prior to receipt of all amounts payable to me pursuant to the Plan, the amount credited to my Deferred Compensation Account will be paid to my designated beneficiary in the form of a lump sum. Beneficiary Name Participant Name ---------------------- ----------------------- Address Address ------------------------------- -------------------------------- Beneficiary Participant Social Security No. Social Security No. ------------------- -------------------- Date - --------------------------------------- ----------------------------------- Signature of Participant W. R. BERKLEY CORPORATION DEFERRED COMPENSATION PLAN FOR DIRECTORS CHANGE OF DEEMED INVESTMENT FORM FOR 2005 DEFERRED COMPENSATION In accordance with and subject to the W. R. Berkley Corporation Deferred Compensation Plan for Directors (the "Plan"), I hereby request to have my 2005 Compensation currently subject to deferral under the Plan deemed invested as follows: - -------------------------------------------------------------------------------- Change in Deemed Investment I. Amount to be deemed invested in the Interest Investment [ ] (a) ALL (100%), OR [ ] (b) $____ (multiples of $1,000) The amounts indicated above shall hereafter be deemed invested in the Interest Investment. II. Amount to be deemed invested in the Stock Investment [ ] (a) ALL (100%), OR [ ] (b) $____ (multiples of $1,000) The amounts indicated above shall hereafter be deemed invested in the Stock Investment. - -------------------------------------------------------------------------------- Date - --------------------------------------- ----------------------------------- Signature of Participant - -------------------------------------------------------------------------------- EX-5 4 b2871263c.txt LETTER EXHIBIT 5 WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, New York 10019-6099 August 16, 2005 W. R. Berkley Corporation 475 Steamboat Road Greenwich, Connecticut 06830 Ladies and Gentlemen: We have acted as counsel to W. R. Berkley Corporation (the "Company"), a corporation organized under the laws of the State of Delaware, with respect to the Company's Registration Statement on Form S-8 (the "Registration Statement") to be filed by the Company with the Securities and Exchange Commission on or about August 16, 2005, in connection with the registration under the Securities Act of 1933, as amended (the "Act"), by the Company of an aggregate of $500,000 of Deferred Compensation Obligations (the "Obligations") and an indeterminable number of shares of the Company's common stock, par value $0.20 per share (the "Shares"), issuable under the W. R. Berkley Corporation Deferred Compensation Plan for Directors (the "Plan"). We have examined, among other things, originals and/or copies (certified or otherwise identified to our satisfaction) of such documents, papers, statutes and authorities as we have deemed necessary to form a basis for the opinion hereinafter expressed. In our examination, we have assumed the genuineness of all signatures and the conformity to original documents of all copies submitted to us. As to various questions of fact material to our opinion, we have relied on statements and certificates of officers and representatives of the Company. Based on the foregoing, we are of the opinion that (i) the Obligations have been duly authorized for issuance and, when issued in accordance with the terms of the Plan, will be legal, valid and binding obligations of the Company, except that the enforceability of the Obligations may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally, regardless of whether that enforceability is considered in a proceeding in equity or at law and (ii) the Shares to be newly issued by the Company under the Plan, when duly issued, sold and paid for in accordance with the terms of the Plan, will be legally issued, fully paid and non-assessable. This opinion is limited to the General Corporation Law of the State of Delaware and the federal laws of the United States of America. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act. Very truly yours, /s/ Willkie Farr & Gallagher LLP EX-23.1 5 b2871263d.txt INDEPENDENT AUDITOR'S CONSENT EXHIBIT 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM The Board of Directors and Stockholders W.R. Berkley Corporation We consent to the incorporation by reference in the registration statment on Form S-8 of W.R. Berkley Corporation (dated August 16, 2005) of our reports dated March 11, 2005, with respect to the consolidated balance sheets of W.R. Berkley Corporation as of December 31, 2004 and 2003, and the related consolidated statements of income, stockholders' equity, comprehensive income, and cash flows for each of the years in the three-year period ended December 31, 2004 and all related financial statement schedules, management's assessment of the effectiveness of internal control over financial reporting as of December 31, 2004 and the effectiveness of internal control over financial reporting as of December 31, 2004, which reports appear or are incorporated by reference in the December 31, 2004 annual report on Form 10-K of W.R. Berkley Corporation. /s/ KPMG LLP New York, New York August 16, 2005 -----END PRIVACY-ENHANCED MESSAGE-----