-----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, I7FU1qmzeZarA5ESHWv9ESXd8cs4M9eA4/XvHb0taGlk7ftN+UdIXMlf5dtz0Ars 7haeZ5Eb10/APOEG3Kf4Gg== 0000950123-11-003813.txt : 20110120 0000950123-11-003813.hdr.sgml : 20110120 20110119175621 ACCESSION NUMBER: 0000950123-11-003813 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20110118 ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20110120 DATE AS OF CHANGE: 20110119 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALLEGHANY CORP /DE CENTRAL INDEX KEY: 0000775368 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 510283071 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-09371 FILM NUMBER: 11536747 BUSINESS ADDRESS: STREET 1: 375 PARK AVENUE STREET 2: SUITE 3201 CITY: NEW YORK STATE: NY ZIP: 10152 BUSINESS PHONE: 2127521356 MAIL ADDRESS: STREET 1: 375 PARK AVENUE STREET 2: SUITE 3201 CITY: NEW YORK STATE: NY ZIP: 10152 FORMER COMPANY: FORMER CONFORMED NAME: ALLEGHANY FINANCIAL CORP DATE OF NAME CHANGE: 19870115 8-K 1 y89146e8vk.htm FORM 8-K e8vk
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 18, 2011
Alleghany Corporation
 
(Exact name of registrant as specified in its charter)
         
Delaware   1-9371   51-0283071
 
(State or other jurisdiction
of incorporation)
  (Commission File Number)   (IRS Employer
Identification No.)
         
7 Times Square Tower, 17th Floor, New York, New York       10036
 
(Address of principal executive offices)       (Zip Code)
Registrant’s telephone number, including area code: (212) 752-1356
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o     Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o     Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o     Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o     Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 


 

Item 5.02   Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
     (b) On January 19, 2011, Robert M. Hart, Senior Vice President—Law and Secretary of Alleghany Corporation (“Alleghany”), notified the Board of Directors of Alleghany (the “Board”) that he will retire from the Company effective April 30, 2011. Also at such meeting, the Board elected Christopher K. Dalrymple, Vice President and General Counsel to succeed Mr. Hart as Secretary, effective January 20, 2011. Mr. Hart and the Company have agreed that Mr. Hart will serve as a consultant to the Company from May 1 through December 31, 2011, in consideration of consulting fees of $20,000 per month.
     (e)
     (i) Deferred Compensation Plan
     The Alleghany Corporation Officers and Highly Compensated Employees Deferred Compensation Plan (the “Deferred Compensation Plan”) generally provides for unfunded deferred compensation arrangements for Alleghany officers and certain other employees. Pursuant to the Deferred Compensation Plan, Alleghany credits an amount equal to 15% of a participant’s base salary (the “Savings Benefit Credit”) to the Deferred Compensation Plan each year. In addition, the Deferred Compensation Plan permits a participant to defer the receipt of all or part of his or her base salary and annual incentive compensation each year (“Deferred Compensation Amount”) other than compensation that would be paid in the form of the common stock, par value $1.00 per share, of Alleghany (“Common Stock”). Prior to January 1, 2011, the Deferred Compensation Plan provided that account balances with respect to a participant’s Savings Benefit Credit and Deferred Compensation Amount could, at a participant’s election, be treated as invested in Common Stock or be credited with interest at the prime rate as reported by JP Morgan Chase Bank.
     At a meeting held on January 18-19, 2011 (the “January 2011 Board Meeting”), the Board, upon the recommendation of the Compensation Committee of the Board, approved an amendment to the Deferred Compensation Plan (the “Amended and Restated Deferred Compensation Plan”) allowing a participant to elect at January 1 of any year to have all or part of his or her Savings Benefit Credit and/or Deferred Compensation Amount account balances increase or decrease by the growth or decline in Alleghany stockholders’ equity per share for such year (the “Stockholders’ Equity Alternative”), in addition to the two alternatives described above. Participants were given the opportunity to elect, prior to December 31, 2010, the Stockholders’ Equity Alternative for 2011, subject to this approval of the Amended and Restated Deferred Compensation Plan by the Board.
     The foregoing description of the Amended and Restated Deferred Compensation Plan is qualified in its entirety by reference to the Amended and Restated Deferred Compensation Plan, a copy of which is filed herewith as Exhibit 10.1 and incorporated herein by reference.

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     (ii) ACP Incentive Program
     At a meeting held on January 18, 2011, the Compensation Committee of the Board established the ACP Incentive Program pursuant to the 2010 Management Incentive Plan. The ACP Incentive Program is intended to further the long-term growth of Alleghany and its subsidiaries by providing incentives to select officers of Alleghany and the investment personnel of Alleghany Capital Partners LLC, a wholly-owned subsidiary of Alleghany (“ACP”), the employees of which are responsible, under the supervision of Weston M. Hicks, President and chief executive officer of Alleghany, for group-wide equity investments of Alleghany and its subsidiaries. Pursuant to the ACP Program, it is generally expected that successive annual incentive awards will be made with performance criteria related to the performance of a designated portfolio of public equities and cash investments held by Alleghany and its subsidiaries which are managed by ACP and with payouts over three years following the expiration of the relevant three-year incentive program. Awards under the ACP Incentive Program in 2011 (the “2011 ACP Incentive Awards”) provide for interim payouts in respect of performance during 2011, 2012 and 2013 in order to transition into a rolling three year-incentive.
     Pursuant to the 2011 ACP Incentive Awards, a 2011 Incentive Pool will be created equal to 5% of the amount by which (a) the performance of a designated portfolio, with an aggregate value of approximately $1.5 billion, of public equities and cash investments held by Alleghany and its subsidiaries and managed by ACP exceeds (b) the performance that would have been achieved if the designated portfolio had a total return equal to the total return of the S&P 500, over the three-year period of January 1, 2011 — December 31, 2013. Mr. Hicks was granted a 50% interest of the 2011 Incentive Pool. For purposes of interim payouts of the 2011 ACP Incentive Awards, the 2011 maximum aggregate payouts are capped at $1.0 million, and the 2012 maximum aggregate payouts are capped at $2.0 million less the amount of any 2011 payouts. Overall, the 2011 Incentive Pool for the three-year period (inclusive of interim payouts) may be limited by the Compensation Committee to payouts of $5.0 million.
     The foregoing description of the ACP Incentive Program is qualified in its entirety by reference to the Terms and Provisions Governing 2011 ACP Incentive Awards, a copy of which is filed herewith as Exhibit 10.2 and incorporated herein by reference.
     (iii) Salary Increase
     At a meeting held on January 18, 2011, the Compensation Committee of the Board increased the annual base salary of Christopher K. Dalrymple, Vice President, General Counsel and Secretary of the Company, from $320,000 to $380,000, effective January 1, 2011, in light of the increase of his duties resulting from the impending retirement of Mr. Hart.
Item 8.01   Other Events.
     Prior to the 2011 Board Meeting, Alleghany’s retirement policy for directors, which is set forth in Alleghany’s Corporate Governance Guidelines (the “Guidelines”), generally provided that, except in respect of directors serving when the policy was first adopted in 1979, a director must retire from the Board at the next Annual Meeting of Stockholders following his or her

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72nd birthday. At the January 2011 Board Meeting, the Board, upon the recommendation of the Nominating and Governance Committee of the Board, approved and adopted amendments to the Guidelines to provide that, except in respect of directors serving when the policy was first adopted in 1979, a director must retire from the Board at the next Annual Meeting of Stockholders following his or her 75th birthday.
Item 9.01   Financial Statements and Exhibits.
(d) Exhibits.
     
10.1
  Alleghany Corporation Officers and Highly Compensation Employees Deferred Compensation Plan (as Amended and Restated as of January 1, 2011).
 
   
10.2
  Terms and Provisions Governing 2011 ACP Incentive Awards.

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SIGNATURES
          Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
         
  ALLEGHANY CORPORATION
 
 
Date: January 19, 2011  By:   /s/ Weston M. Hicks  
    Name:   Weston M. Hicks  
    Title:   President and chief executive officer   

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Exhibit Index
     
Exhibit    
Number   Description
10.1
  Alleghany Corporation Officers and Highly Compensation Employees Deferred Compensation Plan (as Amended and Restated as of January 1, 2011).
 
   
10.2
  Terms and Provisions Governing 2011 ACP Incentive Awards.

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EX-10.1 2 y89146exv10w1.htm EX-10.1 exv10w1
Exhibit 10.1
ALLEGHANY CORPORATION OFFICERS AND HIGHLY
COMPENSATED EMPLOYEES
DEFERRED COMPENSATION PLAN
(As Amended and Restated as of January 1, 2011)
     The Alleghany Corporation Officers and Highly Compensated Employees Deferred Compensation Plan (the “Plan”), as amended and restated (and further revised) as of January 1, 2011, provides for an unfunded savings benefit and an unfunded deferred compensation arrangement for officers and certain highly compensated employees of Alleghany Corporation, a Delaware corporation (“Alleghany”). The Plan is intended to be a plan which is unfunded and is maintained by Alleghany primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees both within the meaning, and for the purposes, of Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended.
     All compensation deferred and savings benefits that were vested under the Plan on December 31, 2004, and the earnings credited thereon (whether before or after December 31, 2004) (the “Pre-409A Amounts”) are subject to the provisions of this Plan in effect on December 31, 2004, (the “Pre-2005 Plan”). The Pre-409A Amounts will be separately accounted for, administered and paid solely in accordance with the terms of the Pre-2005 Plan.
1. DEFINITIONS.
     For purposes of the Plan, in addition to the terms otherwise defined herein, the following terms shall have the meanings as set forth below:
     (a) “Account” or “Accounts” shall mean the separate bookkeeping account or accounts established and maintained by Alleghany pursuant to Section 8 in respect of each Participant.
     (b) “Board” means the Board of Directors of Alleghany.
     (c) “Base Salary” means the compensation paid (whether or not such compensation is currently payable or deferred) to the Participant as base salary, which base salary shall not include (by way of illustration and not limitation) any non-cash compensation, any savings benefit amounts, any Incentive Compensation, any long term incentive bonuses, restricted stock, severance, termination or separation pay or other extraordinary compensation, payments, fringes, allowances or reimbursements.
     (d) “Beneficiary” means the person or persons last designated by a Participant, on a form provided by, and filed with, the Committee, to receive any amounts payable to the Participant hereunder following the Participant’s death. If all the persons so designated are

 


 

individuals and if there is no such individual living at the time of the death of the Participant, or if no such person has been designated, then the Participant’s Beneficiary shall be his estate.
     (e) “Book Value Percentage Change” shall mean the percentage change (carried to four places) in common stockholders’ equity per share of Common Stock on a fully diluted basis determined in accordance with generally accepted accounting principals consistently applied. Book Value Percentage Change shall be determined from calendar year-end to calendar year-end on the basis of Alleghany’s audited consolidated balance sheet in Alleghany’s Annual Report to Stockholders for the latest such year-end; provided, however, that if the Book Value Percentage Change is to be determined herein as of any fiscal quarter-end, then the percentage change (carried to four places) in the common stockholders’ equity per share of Common Stock shall be measured from the most recent fiscal year-end to the applicable quarter-end (based on the common stockholders’ equity per share announced in Alleghany’s Quarterly Report on Form 10-Q as filed with the U.S. Securities and Exchange Commission). In the event that (i) any cash dividends or other similar distributions occur with respect to Common Stock or any rights offering, recapitalization, forward split or reverse split, reorganization, merger, consolidation, spin- off, combination, repurchase or share exchange, or other similar corporate transaction or event occurs that affects the common stockholders’ equity per share of Common Stock but is not taken into account under generally accepted accounting principals consistently applied and (ii) the Committee determines that an adjustment in the Book Value Percentage Change is appropriate in order to prevent dilution or enlargement of the rights of Participants under the Plan, then the Committee shall make such equitable adjustment in the applicable Book Value Percentage Change as the Committee in its sole discretion deems appropriate, and the determination of the Committee with respect thereto shall be final and binding.
     (f) “Code” shall mean the Internal Revenue Code of 1986, as amended, and the Treasury Regulations thereunder.
     (g) “Common Stock” shall mean the common stock, $0.10 par value, of Alleghany.
     (h) “Disabled” shall mean a determination that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering employees of the service provider’s employer. A Participant will be deemed Disabled if, and as of the date, determined to be totally disabled by the Social Security Administration or in accordance with a disability insurance program of Alleghany or any subsidiary, provided that the definition of disability applied under such disability insurance program is consistent with this definition of “Disabled.”
     (i) “Incentive Compensation” shall mean compensation payable by Alleghany where the amount of, or entitlement to, the compensation is contingent on the satisfaction of pre-

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established organizational or individual performance criteria relating to a performance period of at least 12 consecutive months, and in most cases would include the compensation payable pursuant to the Alleghany Corporation Management Incentive Plan and the Alleghany Corporation 2007 Long-Term Incentive Plan and any predecessor or successor annual or long-term incentive plans. Compensation may be Incentive Compensation where the amount will be paid regardless of satisfaction of the performance criteria due to the Participant’s death or disability, provided that a payment made under such circumstances without regard to the satisfaction of the performance criteria will not constitute Incentive Compensation and so payment will be made without giving effect to the Deferral Election. Disability refers to any medically determinable physical or mental impairment resulting in the Participant’s inability to perform the duties of his or her position or any substantially similar position, where such disability can be expected to result in death or can be expected to last for a continuous period of not less than 6 months.
     (j) “Separation from Service” shall mean the Participant’s termination of employment with Alleghany, its subsidiaries and with each member of the controlled group (within the meaning of Sections 414(b) or (c) of the Code) of which Alleghany is a member. A Participant will not be treated as having a Separation from Service during any period the Participant’s employment relationship continues, such as a result of a leave of absence granted by Alleghany (consistent with the rules in Treasury Regulation Section 1.409A-1(h)(1)(i)), and whether a Separation from Service has occurred shall be determined by the Committee (on a basis consistent with rules under Section 409A of the Code) after consideration of all the facts and circumstances, including whether either no further services are to be performed or there is a permanent and substantial decrease (e.g., 80% or more) in the level of services to be performed (and the related amount of compensation to be received for such services) below the level of services previously performed (and compensation previously received).
2. ADMINISTRATION OF THE PLAN.
     The Plan shall be administered by the Compensation Committee of the Board (the “Committee”), but that Committee may delegate to an officer of Alleghany (the “Plan Administrator”) responsibility for the day-to-day administration of the Plan under the direction of the Committee. The Committee shall have exclusive power to select the highly-compensated employees to participate in the Plan and shall have the authority (which authority may be delegated to the Plan Administrator subject to such restrictions and limitations as imposed by the Committee) to establish, adopt and revise such rules, regulations, guidelines, forms and instruments relating to the Plan as may be deemed necessary, advisable or appropriate for the administration and operation of the Plan. Any reference in the Plan to the Committee shall be deemed to include the Plan Administrator to the extent that the Committee has delegated any authority or responsibility therefore to the Plan Administrator. The Committee’s interpretation and construction of the Plan and all actions taken thereunder shall be binding on all persons for all purposes.
3. PARTICIPATION.

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     Each employee who is elected or appointed as a corporate officer of Alleghany shall be eligible to participate in the Plan (each a “Participant”) as of the date such employee was elected or appointed by the Board, and any other highly compensated employee of Alleghany who is not a corporate officer but who is designated by the Board to participate in the Plan shall also become a Participant as of the date he or she is designated by the Board to participate in the Plan. A person shall cease to be a Participant on the date the Participant receives all benefits to which the Participant is entitled under the Plan.
4. ALLEGHANY SAVINGS BENEFIT CREDIT.
     On the last business day of each calendar quarter, Alleghany will credit to the Savings Benefit Account of each person who was a Participant at any time during such calendar quarter an amount equal to 3.75% of the Base Salary paid to such Participant during that calendar quarter while he or she was a Participant (the “Savings Benefit Credit”). No amounts shall be credited to a Savings Benefit Account in respect of a calendar quarter following the calendar quarter in which a Participant has a Separation from Service, unless the Participant recommences employment with Alleghany.
5. DEFERRAL ELECTIONS.
     (a) A Participant may make an election (a “Deferral Election”) to defer all or any part of the Base Salary or Incentive Compensation that would be payable to the Participant in the absence of an effective Deferral Election (the “Deferred Compensation”); provided, however, that a Participant may not defer any amounts of the Participant’s Base Salary or Incentive Compensation that in the absence of a Deferral Election would be paid to the Participant in the form of Common Stock. A Participant’s Deferral Election to defer Base Salary must be made on or before, and such Deferral Election will become irrevocable on, the December 31st preceding the calendar year in which the Base Salary being deferred would be earned. A Participant’s Deferral Election to defer all or any part of his or her Incentive Compensation must be made on or before, and such election will become irrevocable on, the date which is six (6) months before the end of the performance period applicable to such Incentive Compensation.
     (b) Notwithstanding the foregoing, in the case of the first year in which a Participant becomes eligible to participate in the Plan, the Participant may make a Deferral Election within 30 days after the date the Participant becomes eligible to participate with respect to (i) Base Salary paid for services to be performed subsequent to the date of the Deferral Election and (ii) in the case of Incentive Compensation (or an amount that would be Incentive Compensation if the performance period with respect to the Participant had been at least 12 months), so much of the Incentive Compensation as is equal to (x) the total amount of the Incentive Compensation for the performance period multiplied by the ratio of the number of days remaining in the performance period after the Deferral Election over the total number of days in the performance period.
6. PAYMENT ELECTIONS.

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     (a) A Participant may affirmatively elect the time of payment or the time of commencement of the payments from the Participant’s Account (a “Payment Election”), which time of payment (or if annual installment payments are elected, the time for the commencement of payments) shall be the first day of the month that is, or next follows, (A) a specified time or the occurrence of an event that is objectively determinable (a “Specified Event Payment”), (B) the date of the Participant’s Separation from Service (a “Separation from Service Payment”) or (C) the determination that the Participant is Disabled (a “Disability Payment”). A Participant may elect a Specified Event Payment, a Separation from Service Payment, a Disability Payment or any combination of payment events, but if the Participant elects one or more payment events the Participant must specify whether payment is to commence on the earliest or latest to occur of the Specified Event Payment, the Separation from Service Payment and/or the Disability Payment. The elected time of payment (or the time of commencement of the payments) is referred to herein as the “Payment Date.”
     (b) A Participant’s Payment Election shall specify whether payment will be made in a lump sum on the Payment Date or in a number of annual installments (not more than 10) as specified, the first such payment becoming payable on the Payment Date and each subsequent annual payment becoming payable on the anniversary of that Payment Date (each subsequent annual payment becoming payable on the anniversary of the Payment Date being referred to herein as the “Payment Date Anniversary”). If a Participant has elected a Specified Event Payment, a Separation from Service Payment or a Disability Payment in the alternative, the Participant may also elect alternative forms of payment for the Specified Event Payment, the Separation from Service Payment and/or the Disability Payment. In addition, if a Participant elects annual installments, the Participant may elect the method of calculating the amount (which method must produce an amount that is objectively determinable) to be paid on the Payment Date and each Payment Date Anniversary, but if the Participant fails to elect a method of calculating the installments, the amount payable shall be determined in accordance with Section 9(b) hereof.
     (c) All Payment Elections shall be subject to the following limitations and restrictions
  (i)   If the Payment Election relates to the time of payment of all or any part of the Base Salary or Incentive Compensation that would have been payable to the Participant in the absence of a valid Deferral Election, then such Payment Election (A) shall be applicable only with respect to the compensation deferred pursuant to such Deferral Election and (B) shall be made, and shall become irrevocable, on the date the Deferral Election becomes irrevocable.
 
  (ii)   If the Payment Election shall apply to any Savings Benefit Credit, then such Payment Election (A) shall be applicable only with respect to the Savings Benefit Credit made in calendar years beginning after the calendar year in which the Payment Election was made and (B) on December 31st shall become irrevocable with respect to all Savings Benefit Credit

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      credited in any calendar year thereafter; provided, however, that the Participant may make a new Payment Election applicable only with respect to the Savings Benefit Credit made in calendar years beginning after the calendar year in which the new Payment Election was made.
 
  (iii)   If the Payment Date is a specified time or event, different forms of payment (i.e., a lump sum or annual installments) may be elected depending upon whether the Payment Date occurs on or before a specified time.
 
  (iv)   If the Payment Date is based upon a Separation from Service, a different time and form of payment (i.e., a lump sum or annual installments) may be designated depending upon whether (x) the Separation from Service occurs before or after a specified date, (y) the Separation from Service occurs before or after a combination of a specified date and a specified period of service (measured from the Participant’s date of hire until Separation from Service) determined under a predetermined, nondiscretionary, objective formula, or (z) there is a Separation from Service not described in the foregoing clauses (x) or (y).
 
  (v)   No Payment Date may be elected (or if elected, will not be given effect) with respect to an amount in a Savings Benefit Account or Deferral Account that is later than 12 months after the date of the Participant’s Separation from Service.
     (d) Notwithstanding the foregoing, each Participant who is credited under the Plan with any amount in excess of the Participant’s Pre-409A Amount may, on or before December 31, 2008, make a Payment Election (or may revoke any prior Payment Election and make a new Payment Election) with respect to such amount (i.e., in excess of the Pre-409A Amounts) at any time on or before December 31, 2008, excluding any amount credited under the Plan that in the absence of such election would otherwise be paid in 2008.
7. AMENDED PAYMENT ELECTIONS.
     (a) A Participant may make another election (an “Amended Payment Election”) to defer, but not to accelerate, the amount payable on the Payment Date elected in accordance with Section 6 hereof (or in the absence of a valid Payment Election, pursuant to Section 10(a) hereof). Each Amended Payment Election shall be made in accordance with this Section 7 and shall cause the payments from the Participant’s Account and attributable to such Payment Election to be made (or commence) at a later Payment Date than such payment would have been made in the absence of such Amended Payment Election.
     (b) For purposes of applying this Section 7, if a Participant has elected to have the Participant’s Account paid in annual installments, then this Section 7 shall be applied as if the amount to be paid on the Payment Date and on each subsequent Payment Date Anniversary were

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made pursuant to a separate Election, such that an Amended Payment Election to change the time or form of an amount payable upon a Payment Date or any Payment Date Anniversary must separately satisfy the requirements of this Section 7.
     (c) A Participant’s Amended Payment Election to be valid must satisfy the following limitations:
  (i)   No Amended Payment Election shall take (or be given) effect until twelve (12) months after the date on which such Amended Payment Election is made.
 
  (ii)   The Amended Payment Election must provide for a Payment Date for the amount deferred by reason of the Amended Payment Election that is not less than five (5) years after the date that the payment subject to the Amended Payment Election would otherwise have been made.
 
  (iii)   In the case of a Specified Event Payment, no Amended Payment Election may be made if the payment, in the absence of the Amended Payment Election would have been paid within twelve (12) months from the date of the Amended Payment Election.
     (d) Except as set forth herein, a Participant’s Amended Payment Election may provide for payment at any of the time or times or in any of the form or forms as could have been elected in an original Election.
8. ACCOUNTS.
     (a) One Account for each Participant shall be denominated as a “Savings Benefit Account” and shall reflect the Savings Benefit Credits made by Alleghany for the benefit of the Participant pursuant to the Plan. If the Participant has made a Deferral Election with respect to any of the Participant’s compensation, then a separate Account, denominated as the Participant’s Deferral Account, shall also be maintained for such Participant. In addition, if the Participant shall make different Payment Elections (or Amended Payment Elections) with respect to amounts credited either to the Participant’s Savings Benefit Account and/or Deferral Account such that any amounts may be paid at different times or in different forms, then separate subaccounts shall be established within such Savings Benefit Account and/or Deferral Account, as the case may be, and each subaccount shall reflect all credits, deferrals, earnings thereon and distributions therefrom, so that all amounts in any subaccount shall be subject to the same Payment Election (or any Amended Payment Election). For the avoidance of doubt, any reference in the Plan to a payment from an Account (including, without limiting the generality of the foregoing, for purposes of Section 9 hereof) shall be deemed to refer to each subaccount independently. Each Account and any subaccount shall exist solely for record keeping purposes and shall not represent any actual interest in any assets of Alleghany or shares of Common Stock.

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     (b) All Savings Benefit Credits shall be credited to the Participant’s Savings Benefit Account on the last business day of each calendar quarter. If a Participant has made a Deferral Election, then any Deferred Compensation shall be credited to the Participant’s Deferral Account in accordance with the administrative procedures established by the Plan Administrator from time to time.
     (c) Unless a Participant has elected (and not subsequently revoked such election) to have all or a portion of the amounts credited to an Account be (i) invested in Common Stock (a “Common Stock Election”) or (ii) adjusted based on Book Value Percentage Change (a “Book Value Election”), then the Account (or the balance in the Account, if applicable) shall be deemed to earn interest at the Prime Rate, which credit shall be computed on and from the date an amount is credited to such Account through the date an amount is distributed from the Account or a Common Stock Election or a Book Value Election is implemented or becomes effective with respect to such amount, which interest credits shall otherwise be compounded on an annual basis and credited to the Account as of the December 31st of each year or, if earlier, the date the Account is liquidated. For these purposes, the “Prime Rate” shall be the rate of interest announced by JP Morgan Chase Bank, N.A. from time to time as its “prime rate” and as in effect at the close of the last business day of each month, which rate shall be deemed to remain in effect through the last business day of the next month.
     (d) If a Participant at any time or from time to time makes a Common Stock Election with respect to all or any part of the balance in the Participant’s Account, after such Common Stock Election is implemented such amount shall thereafter be treated as if such amount were instead invested in Common Stock, reflecting the investment experience which the Account would have had if the amount so designated had been invested in (without commissions or other transaction expenses) whole or fractional shares of Common Stock during such period. Accounts credited with Common Stock shall be adjusted as appropriate to reflect cash and stock dividends, stock splits, and other similar distributions or transactions which, from time to time, occur with respect to Common Stock during the period such Common Stock is credited to the Account and any cash dividends and other distributions (other than in the form of Common Stock) shall be deemed to purchase additional Common Stock on the date of payment thereof. The number of whole or fractional shares of Common Stock credited to, or debited from, an Account shall be based upon the mean between the high and low prices of Common Stock on the applicable date on the New York Stock Exchange Consolidated Tape.
     (e) If a Participant makes a Book Value Election with respect to all or any part of the balance in the Participant’s Account, after such Book Value Election becomes effective, such amount shall thereafter be adjusted on a yearly basis by a percentage of such amount equal to the Book Value Percentage Change for such year, until such amount, as so adjusted, is distributed from the Account or the election is effectively revoked. A Book Value Election with respect to all or any part of the balance in a Participant’s Account shall become effective as of January 1st of the year following the year in which such election is made; provided, however, that in the case of the first year in which a Participant becomes eligible to participate in the Plan, a Book Value Election by such Participant shall become effective for such year if made within the first 30 days

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of the start of such year. If any Participant elects to revoke all or any part of a prior Book Value Election, such revocation shall become effective as to such amount as of the close of business on December 31st of the year in which such revocation is made (and the Book Value Percent Change shall be given effect with respect to such amount for the year of such revocation). If a Book Value Election is in effect with respect to any amount payable on a Payment Date, the Book Value Percentage Change applicable to the amount payable on such Payment Date shall be determined as of the most recent fiscal quarter-end preceding such Payment Date.
     (f) The Committee or the chief legal officer of Alleghany may establish, revoke or change from time to time rules regarding the date or period for implementing the crediting to, or debiting from, any Account any Common Stock, which rules may require that the crediting or debiting of Common Stock shall be given effect only as of the date or during a period as the Committee or the chief legal officer of Alleghany determines. The Committee or the chief legal officer may at any time, in its or his sole discretion, suspend the availability of Common Stock as a notional investment for an Account, impose limitations upon the frequency and amount of debits and credits of Common Stock and otherwise prohibit such debits and credits, with or without advance notice to Participants, as the Committee or the chief legal officer, as the case may be, deems necessary, appropriate or advisable.
9. PAYMENT FROM ACCOUNTS.
     (a) If a Participant elects to have payment of the Participant’s Account made in annual installments, the Participant’s Account shall continue to be credited with (i) the Prime Rate, (ii) changes in the value of, and the distributions on, Common Stock, or (iii) adjustments based on the applicable Book Value Percentage Change, all as the case may be, subject to such rules and limitations as may be adopted by the Committee, until the installment payments are debited from the Account.
     (b) Unless another objectively determinable method is specified in a Participant’s Election pursuant to Section 6(c) hereof (or Amended Payment Election), if a Participant’s Account is payable in annual installments, then the amount payable on the Payment Date or the Payment Date Anniversary, as the case may be, shall be determined by dividing the value of the Account as of the December 31st prior to the Payment Date or Payment Date Anniversary, as the case may be, by the number of annual installments remaining to be made from the Account, including the payment then due on such Payment Date or Payment Date Anniversary, as the case may be. If a Participant elects annual installments of fixed dollar amounts, any amounts remaining in the Account shall be paid to the Participant as of the last Payment Date Anniversary.
     (c) All payments shall be made in cash as promptly as practicable following the Payment Date or Payment Date Anniversary and, in any event, on or before the later of (x) the last day of the calendar year in which the Payment Date or Payment Date Anniversary occurs or (y) the date 2 1/2 months after such Payment Date or Payment Date Anniversary.
10. TIME OF PAYMENT IN CERTAIN CIRCUMSTANCES.

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     (a) Absence of Election. In the absence of an effective Payment Election with respect to any Savings Benefit Credit or Deferred Compensation, a Participant will be deemed to have elected as a Payment Date with respect to such Savings Benefit Credit or Deferred Compensation the first day of the calendar month coinciding with or next following the Participant’s Separation from Service and to have elected that such amount be paid in a lump sum.
     (b) Death. Notwithstanding any Participant’s Payment Election or any Amended Payment Election, in the event that a Participant dies prior to the payment of the entire balance in the Participant’s Account, then the balance in the Participant’s Account shall be paid in a lump sum to the Participant’s Beneficiary on the first day of the calendar month coinciding with or next following the date of the Participant’s death.
     (c) Delay for Specified Employees. Notwithstanding any other provision of this Plan to the contrary, in the event that payment under the Plan is based upon or attributable to the Participant’s Separation from Service and the Participant is at the time of the Participant’s Separation from Service a “Specified Employee,” then any payment otherwise required to be made to the Participant shall remain in the Account and be deferred and paid in a lump sum to the Participant on the day after the date that is six (6) months from the date of the Participant’s Separation from Service; provided, however, if the Participant dies prior to the expiration of such six (6) month period, payment to the Participant’s beneficiary shall be made as soon as practicable following the Participant’s death; and provided, further, that if the Participant has elected to have his Account paid over ten (10) years in substantially equal payments, then instead of any payments being deferred and such deferred payments being paid in a lump sum, commencement of the payment of the Participant’s Account shall be deferred and commence on the day after the expiration of such six-month period over the ten-year period elected by the Participant and this later date of payment commencement shall be deemed to be the Payment Date for purposes of the Plan. A Participant will be a “Specified Employee” for purposes of this Plan if, on the date of the Participant’s Separation from Service, the Participant is an individual who is, under the method of determination adopted by the Committee designated as, or within the category of employees deemed to be, a “specified employee” within the meaning and in accordance with Treasury Regulation Section 1.409A-1(i). The Committee shall determine in its sole discretion all matters relating to who is a “Specified Employee” and the application of and effects of the change in such determination.
     (d) Other Special Circumstances of Payment. Notwithstanding any restriction in the Plan to the contrary, the Committee, in its sole and absolute discretion, may accelerate the time or schedule of a payment under the Plan:
  (i)   to an individual (other than the Participant) as may be necessary to fulfill a domestic relations order (as defined in Section 414(p)(1)(B) of the Code);
 
  (ii)   as may be necessary to comply with applicable federal, state, local or foreign ethics or conflicts of interest law; or

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  (iii)   to pay the Federal Insurance Contributions Act tax imposed under Sections 3101, 3121(a) and 3121(v)(2) of the Code, where applicable, on amounts deferred under this Plan (the “FICA Amount”) or to pay the income tax at source on wages imposed under Section 3401 of the Code (or the corresponding withholding provisions of applicable state, local, or foreign tax laws) as a result of the payment of the FICA Amount, and to pay the additional income tax at source on wages attributable to the pyramiding of the Section 3401 wages and taxes (provided that the total payment does not exceed the aggregate of the FICA Amount, and the income tax withholding related to such FICA Amount).
11. GENERAL PROVISIONS.
     (a) Nothing in the Plan shall create, or be construed to create, a trust or fiduciary relationship of any kind between Alleghany and a Participant, his or her Beneficiary, or any other person. Any amounts deferred under the Plan shall be construed for all purposes as a part of the general funds of Alleghany, and any right to receive payments from Alleghany under the Plan shall be no greater than the right of any unsecured general creditor. Alleghany may, but need not, purchase any securities or instruments as a means of hedging its obligations to any Participant under the Plan, but if it does, neither the Participant, his Beneficiary nor any other person shall have any interest therein or other right to such property. All payments hereunder shall be made in cash and no Participant shall be entitled hereunder to any shares of Common Stock.
     (b) The right of any Participant to any amount payable pursuant to this Plan shall not be assigned, transferred, pledged or encumbered except by the laws of descent and distribution.
     (c) No employee benefits to which a Participant would be entitled under any other employee benefit plan or arrangement maintained by Alleghany for its employees shall be decreased or modified because of any Deferred Compensation under the Plan.
     (d) Payment by Alleghany to a Participant or to a Participant’s Beneficiary shall be binding on all interested parties and on such Participant’s heirs, executors, administrators and assigns, and shall discharge Alleghany and its directors, officers and employees from all claims, demands, actions or causes of action of every kind arising out of or on account of such Participant’s participation in the Plan, known or unknown, for himself, his heirs, executors, administrators and assigns.
     (e) All Savings Benefit Credits and Deferred Compensation under the Plan shall be subject to employment taxes, and all payments shall be subject to income tax withholding, if applicable. Each Participant shall make arrangements satisfactory to Alleghany with respect to the collection of such taxes with respect to all Savings Benefit Credits and Deferred Compensation hereunder, and Alleghany shall have the right to deduct from all payments made hereunder any federal, state, local or foreign income taxes required, in the sole judgment of Alleghany, to be withheld with respect to such payments.

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     (f) The validity and construction of the Plan shall be governed by the laws of the State of Delaware, but without giving effect to the choice of law principles thereof.
     (g) Nothing contained in this Plan shall be deemed (i) to give any person the right to be retained in the service of Alleghany or to be continued as a corporate officer of Alleghany or (ii) to interfere with the right of Alleghany to discharge any person at any time without regard to the effect which such discharge shall have upon his rights or potential rights, if any, under the Plan.
     (h) The Board may designate officers of Alleghany Capital Partners LLC (“ACP”) to participate in the Plan and accrue benefits hereunder as if such officer were an officer of Alleghany (each an “ACP Participant”). During the period an ACP Participant is an officer of ACP, such ACP Participant shall be treated as employee of Alleghany and a Participant for purposes of the Plan.
12. AMENDMENT OR TERMINATION OF THE PLAN.
     The Board, without the consent of any Participant, may at any time terminate or from time to time amend the Plan in whole or in part; provided, however, that no such action shall adversely affect any rights or obligations with respect to payment under the Plan; and provided, further, that no such action shall cause the Plan to violate Section 409A of the Code.
13. COMPLIANCE WITH SECTION 409A OF THE CODE.
     (a) The Plan is intended to be operated in compliance with Section 409A of the Code. If any provision of the Plan is subject to more than one interpretation, then the Plan shall be interpreted in a manner that is consistent with Section 409A of the Code.
     (b) All Deferral Elections, Payment Elections or Amended Payment Elections shall be in writing and shall be effective as and when received by Alleghany pursuant to procedures established by the Committee from time to time. An Amended Payment Election when received pursuant to such procedures is irrevocable when received.

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EX-10.2 3 y89146exv10w2.htm EX-10.2 exv10w2
Exhibit 10.2
TERMS AND PROVISIONS GOVERNING
2011 ACP INCENTIVE AWARDS
1. ACP INCENTIVE PROGRAM
     The ACP Incentive Program, of which the 2011 ACP Incentive Awards are part, is being established by the Compensation Committee (“Compensation Committee”) of the Board of Directors of Alleghany Corporation (the “Company”), pursuant to the Alleghany Corporation 2010 Management Incentive Plan, to further the long-term growth of the Company and its subsidiaries by providing incentives to select officers of the Company and the investment personnel of Alleghany Capital Partners LLC (“ACP”), a wholly owned subsidiary of the Company, who are largely responsible for group-wide equity investments of the Company and its subsidiaries. Pursuant to the ACP Incentive Program, commencing in 2012, it is expected that successive annual incentive awards will be made with performance criteria comparable to the 2011 ACP Incentive Awards and with payouts over the three years following the expiration of the relevant three-year period, effectively creating a rolling three-year incentive program. In order to transition into a rolling three-year incentive, the 2011 ACP Incentive Awards provide for interim payouts in respect of performance during 2011 and 2012.
2. CREATION AND MEASUREMENT OF 2011 ACP INCENTIVE POOL
     (a) A portfolio of Qualifying Assets held for investment for the benefit of the Company, and its subsidiaries, including Alleghany Insurance Holdings LLC, all of which are subject to the investment management of ACP, shall be identified in writing by the Compensation Committee by no later than January 30, 2011 (the “2011 Qualifying Assets” or “2011 QA”). Thereafter during the 2011 Performance Period, Qualifying Assets may be withdrawn from, but may not be added to, the 2011 Qualifying Assets; provided, however, that if the Company elects to withdraw any Qualifying Assets from the 2011 Qualifying Assets to effectuate an acquisition by the Company (or any entity controlled by the Company) of the stock or assets of another entity and the proposed acquisition is not thereafter consummated for any reason, the Company may (within 30 days of the termination of the proposed acquisition) re-contribute Qualifying Assets equal to all or any amount of the Fair Market Value of the Qualifying Assets withdrawn (valued on the date withdrawn) to the 2011 Qualifying Assets. Assets, whether or not constituting Qualifying Assets, managed by ACP that are not in the 2011 Qualifying Assets shall not be taken into account for any purpose of the 2011 ACP Incentive Awards. In the event that any assets in the 2011 QA are not Qualifying Assets, such Non-qualifying Assets shall be withdrawn from the 2011 QA.

 


 

     (b) The “2011 Performance Period” shall be the period beginning on January 1, 2011 and ending on December 31, 2013.
     (c) “Performance Value Added” or “PVA” shall equal the amount determined, as provided in Exhibit A hereto, for the 2011 Performance Period (or such shorter period as may be provided in Section 4 hereof for interim payouts).
     (d) Subject to the provisions of Section 4 hereof for determining interim payouts, the “2011 ACP Incentive Pool” shall be an amount equal to 5% of PVA.
     (e) “Qualifying Assets” shall mean cash, any shares of any mutual or other regulated fund regularly reported in The Wall Street Journal, any shares of stock or other equity interests or any notes, bonds or other interest bearing instruments in each case regularly traded on a nationally-recognized domestic or foreign exchange or dealer quotation system and for which market quotations are readily available.
3. PARTICIPANT’S SHARE OF PVA2
     (a) The Committee has established a share, expressed as a percentage of the 2011 ACP Incentive Pool which is allocable to each recipient of a 2011 ACP Incentive Pool Award (a “Share Award”), as set forth on Exhibit B attached hereto; provided, however, that the Share Award of any participant may be increased or decreased by the Committee in its sole discretion for the calendar year 2012 and/or 2013 at any time prior to January 30th of such calendar year; provided further, that the Share Award of any participant granted as a Qualifying Incentive may not be increased (but may be decreased) over the Share Award granted to the participant as set forth in Exhibit B. Each recipient of a Share Award shall receive written notice of such award and a copy of the Terms and Provisions Governing 2011 ACP Incentive Awards.
     (b) If the Share Award awarded to any participant for all or any part of the 2011 Performance Period is a Qualifying Incentive, then notwithstanding any provision of the terms and provisions of this 2011 ACP Incentive Award, the maximum amount payable to such participant in any calendar year shall not exceed $5,000,000 less the amount theretofore paid to the participant in such calendar year under any other Qualifying Incentive granted pursuant to the 2010 Management Incentive Plan. If the Share Award awarded to any participant for all or any part of the 2011 Performance Period is a Qualifying Incentive, then as a condition to the acceptance of any payment, the participant agrees that the maximum amount payable to such participant pursuant to all Qualifying Incentives awarded under the 2010 Management Incentive Plan in any calendar year shall not exceed $5,000,000.

 


 

4. FORM AND TIMING OF PAYMENTS TO PARTICIPANTS OF SHARE AWARD
     The 2011 ACP Incentive Awards initiate the ACP Incentive Program. Pursuant to such Program, commencing in 2012, the Company intends to establish successive annual incentive awards with performance criteria comparable to the 2011 ACP Incentive Awards and with payouts over the three years following expiration of the relevant three year performance period. In order to integrate the 2011 ACP Incentive Award with future awards under the ACP Incentive Program, the Committee has determined that interim payouts shall be made pursuant to the 2011 ACP Incentive Awards in respect of 2011 and 2012 based on incentive pools calculated on the basis of PVAs for 2011 and 2012, respectively the “2011 Short Period Pool” and the “2012 Short Period Pool.” Thus, the 2011 Short Period Pool is equal to the one year PVA computed at the end of 2011 (the “2011 Short Period”) multiplied by 5%. The 2012 Short Period Pool is equal to the two year PVA computed at the end of 2012 (the “2012 Short Period”) multiplied by 5%. The 2011 ACP Incentive Pool is equal to the three year PVA computed at the end of 2013 multiplied by 5%.
     By way of illustration: (a) if the 2011 PVA was $5 million, then the 2011 Short Period Pool would be $250,000; (b) if the 2012 PVA was negative $1 million and thus the PVA for both 2011 and 2012 was $4 million, then the 2012 Short Period Pool would be $200,000; and (c) if the 2013 PVA was $5 million and thus the three-year PVA was $9 million, then the 2011 ACP Incentive Pool would be $450,000. As provided for in 4(a) below, this illustration would provide a 2011 Payment to all participants of $250,000, a 2012 Payment to all participants of zero, and a 2013 Payment to all participants of $200,000, representing a sum of $450,000 for all three payments. In the event that 2011 ACP Incentive Pool is less than the sum of the 2011 and 2012 Payments, it is intended that such difference will be deducted from payments to be made pursuant to the 2012 ACP Incentive Awards. Notwithstanding the foregoing, for purposes of determining the 2011 Payments, as defined below, the 2011 Short Period Pool shall not exceed $1 million and for purposes of determining the 2012 Payments, as defined below, the 2012 Short Period Pool shall not exceed $2 million (resulting in maximum aggregate 2011 and 2012 Payments of $2 million). In the event that the ACP 2011 Incentive Pool, as determined hereunder at the end of the 2011 Performance Period, would exceed $5 million, the Committee, in its discretion, may reduce the ACP 2011 Incentive Pool to a level not less than $5 million.
     (a) Subject to the foregoing limitations, each recipient of a Share Award shall be entitled to payment on account thereof in an amount equal to:

 


 

  (1)   the recipient’s Share Award times the 2011 Short Period Pool (the “2011 Payment”);
 
  (2)   the excess of (i) the recipient’s Share Award times the 2012 Short Period Pool over (ii) the participant’s 2011 Payment (the “2012 Payment”); and
 
  (3)   the excess of (i) the Share Award times the ACP 2011 Incentive Pool over (ii) the sum of the participant’s 2011 Payment and 2012 Payment (the “2013 Payment”).
Notwithstanding any other provision of these terms and provisions to the contrary, no participant whose Share constitutes a Qualifying Incentive shall have any entitlement to, and shall not be paid, any amount in respect of his Share unless and until the Committee certifies in writing that the performance goals for each such payout in respect of such Share Award have been achieved.
     (b) Except as otherwise determined by the Committee, if a participant’s Share Award for the calendar year 2012 and/or 2013 is more or less than the Share Award initially established for the participant, then in computing the amount payable to the participant pursuant to paragraphs (2) or (3) of Section 4(a), the Share Award shall be the Share Award as in effect for 2012 or 2013, as the case may be. By way of illustration, (a) if a participant’s Share Award for 2011 was 10% and the 2011 Short Period Pool were $1 million, the 2011 payout for such participant would be $100,000 (10% of $1 million), and (b) if such participant’s Share Award was reduced in 2012 from 10% to 7.5% and the 2012 Short Period Pool were $2 million, the 2012 payout for such participant would be $75,000 (7.5% of $2 million, less a deemed 7.5% payout of $75,000 for 2011), and (c) if such participant’s Share Award was increased in 2013 from 7.5% to 10% and the ACP 2011 Incentive Pool were $3 million, the 2013 payout for such participant would be $100,000 (10% of $3 million, less the $200,000 of deemed prior payouts).
     (c) Payments to participants pursuant to Section 4(a) on account of their Share Awards for the 2011 Short Period, the 2012 Short Period and the 2011 Performance Period shall be made by the Company in cash as soon as practicable after (but in any event by the March 15th following) the completion of the Company’s audited financial statements for the calendar year in which the 2011 Short Period, the 2012 Short Period or the 2011 Performance Period, as the case maybe, ends.
     (d) Notwithstanding anything to the contrary and except as the Committee may otherwise determine, any payment of a participant’s Share Award in respect of the 2011 Performance Period (including the 2011 Short Period or the 2012 Short Period, as the

 


 

case maybe) shall be conditional upon such participant remaining continuously in the employ of the Company, or a successor, subsidiary or controlled company thereof, throughout the date of payment. In the event a participant’s employment by the Company (or a successor, subsidiary or controlled company thereof) is terminated as a result of death or disability (in each case, as conclusively determined by the Committee) prior to the end of the 2011 Performance Period, a participant (or in the event of the participant’s death, the participant’s beneficiary designated in a writing delivered to the Company) shall be entitled to a payment in accordance with the terms of his Share Award at the times herein provided, except that the amount payable in respect of his Share Award shall be reduced on a pro rata basis to reflect the portion of the 2011 Performance Period in which such service continued.
5. MISCELLANEOUS PROVISIONS
     (a) The 2011 ACP Incentive Awards, shall be administered by the Compensation Committee of the Board of Directors of Alleghany Corporation. The Committee’s interpretation of the 2011 ACP Incentive Awards shall be final and binding on all parties involved, including Alleghany, ACP and the participant. The terms, construction and performance of the foregoing provisions, and the rights conferred thereby, shall be governed in all respects by, and subject to, the provisions of the Company’s 2010 Management Incentive Plan and, in the event of any inconsistency, the provisions of the 2010 Management Incentive Plan shall be controlling, including the Committee’s authority to interpret and apply the 2010 Management Incentive Plan.
     (b) The Committee in its sole discretion may modify, amend or revise the terms and provisions of these 2011 ACP Incentive Awards provided that, except to the extent necessary to correct any omission or resolve any ambiguity, such modification, amendment or revision shall not reduce the payment that would be made to such participant under the terms and provisions in effect prior to such modification, amendment or revision if the 2011 Performance Period ended on the effective date of such modification, amendment or revision. Notwithstanding the foregoing, no modification or amendment may result in an increase in the amount payable pursuant to any Qualifying Incentive in the absence of such modification, amendment or revision.
     (c) No participant has the right to be granted any Share Award for any performance period subsequent to the 2011 Performance Period.
     (d) All questions pertaining to the construction, validity and effect of the provisions of the 2011 ACP Incentive Awards shall be determined in accordance with the laws of the State of New York.

 


 

Exhibit A
Calculation of Performance Value Added
     1. The 2011 QA have been identified by the Compensation Committee as provided in Section 2(a) of the 2011 ACP Incentive Awards.
     2. The Benchmark Assets portfolio (“BA”) is a hypothetical portfolio with the same balance on 1/1/11 as the 2011 QA.
     3. The monthly total return on 2011 QA, whether a positive or negative amount, is the monthly total return performance statistic produced by General Re-New England Asset Management, Inc. on the 2011 QA as published by them on their website and calculated in accordance with the Performance Presentation Standards of the CFA Institute.
     4. The monthly total return on BA (Benchmark Return — “BR”), whether a positive or negative amount, is the monthly total return on the S&P 500, as posted on the Bloomberg Professional service of Bloomberg Finance L.P. under the ticker “SPTR.”
     5. At each month’s end, calculate the new 2011 QA balance as 2011 QA beginning balance times (1 + month’s total return). This should equal the 2011 QA at that time.
     6. At each month’s end, calculate the new BA balance as BA beginning balance times (1 + BR).
     7. Month’s Performance Value Added (“Monthly PVA”), whether a positive or negative amount, equals the month ending 2011 QA balance minus the ending BA balance.
     8. The PVA at any time is the sum of each Monthly PVA during the 2011 Performance Period (or such shorter period as may be provided in Section 4 of the 2011 Incentive Awards for interim payouts).
     9. If there is a contribution or withdrawal (“Transaction”) to the 2011 QA as provided in Section 2(a) of the 2011 ACP Incentive Awards, a mirrored addition or deduction is made to the BA.
     10. In the event of any Transaction, the BA ending balance in the month of the Transaction will be calculated in two parts on a daily basis with the first part following the calculation in paragraph 6 above using the beginning BA balance and BR through the date of the Transaction, creating an interim BA; and the second part following the calculation in paragraph 6 above using the interim BA and the BR from the date of the Transaction through the end of the month.


 

Exhibit B
2011 ACP Incentive Awards
         
Participant   Share Award
 
       
Qualifying Awards:
       
Weston M. Hicks
    50 %
 
       
Non-qualifying Awards:
       
ACP Staff Aggregate % Awards
    42.5 %
Subtotal
    92.5 %
Reserved
    7.5 %

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