EXHIBIT 10.17
HCC INSURANCE HOLDINGS, INC.
NONQUALIFIED DEFERRED COMPENSATION PLAN
FOR STEPHEN L. WAY
HCC INSURANCE HOLDINGS, INC.
NONQUALIFIED DEFERRED COMPENSATION PLAN
FOR STEPHEN L. WAY
Table of Contents
Page
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ARTICLE 1 - DEFINITIONS .....................................................1
ARTICLE 2 - ELIGIBILITY......................................................2
ARTICLE 3 - CONTRIBUTIONS....................................................3
ARTICLE 4 - CREDITING OF CONTRIBUTIONS AND INCOME............................3
ARTICLE 5 - PAYMENT OF BENEFITS - DEATH, DISABILITY, OR RETIREMENT...........3
ARTICLE 6 - OTHER PAYMENT OF BENEFITS........................................4
ARTICLE 7 - ADMINISTRATION OF THE PLAN.......................................5
ARTICLE 8 - CLAIM REVIEW PROCEDURE...........................................6
ARTICLE 9 - LIMITATION OF RIGHTS.............................................7
ARTICLE 10 - LIMITATION OF ASSIGNMENT........................................7
ARTICLE 11 - AMENDMENT TO OR TERMINATION OF THE PLAN.........................8
ARTICLE 12 - STATUS OF PARTICIPANT AS UNSECURED CREDITOR.....................8
ARTICLE 13 - GENERAL AND MISCELLANEOUS.......................................8
HCC INSURANCE HOLDINGS, INC.
NONQUALIFIED DEFERRED COMPENSATION PLAN
FOR STEPHEN L. WAY
PREAMBLE
WHEREAS, the Company desires to establish a nonqualified deferred
compensation plan for the exclusive benefit of Stephen L. Way (the
"Participant"), who is the Chief Executive Officer and Chairman of the Board of
the Company, to allow the Company to pay a portion of the Participant's
compensation on a deferred basis by making Contributions to the Plan on his
behalf;
WHEREAS, the Company intends that the Participant and his Beneficiary
under the Plan shall have the status of unsecured general creditors of the
Company with respect to the Plan and that the Plan shall constitute an unfunded
plan maintained primarily for the purpose of providing deferred compensation for
a select key management and highly compensated employee within the meaning of
section 201(2) and similar provisions of ERISA;
NOW, THEREFORE, the Company hereby establishes the HCC Insurance
Holdings, Inc. Nonqualified Deferred Compensation Plan for Stephen L. Way,
effective as of the Effective Date.
ARTICLE 1
DEFINITIONS
1.1 "Account" shall mean the record maintained by the Committee showing
the monetary value of the individual interest in the Plan of the Participant.
The term "Account" shall refer only to a bookkeeping entry and shall not be
construed to require the segregation of assets on behalf of the Participant.
1.2 "Accrual Date" shall mean the date on which a Company Contribution
is deemed to be made to the Participant's Account and shall be specified for
each Company Contribution hereunder in the Board action approving such
Contribution. The Accrual Date is relevant for purposes of interest accrual
hereunder.
1.3 "Affiliate" shall mean a member of the controlled group of
corporations (as defined in section 1563 of the Code) of which the Company is a
member.
1.4 "Beneficiary" shall mean the beneficiary or beneficiaries
(including any contingent beneficiary or beneficiaries, if applicable)
designated by the Participant to receive death benefits, if any, hereunder. Such
designation shall be effected by delivery to the Committee of a written
beneficiary designation, on a form provided by the Committee for that purpose.
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1.5 "Board" shall mean the Board of Directors of the Company.
1.6 "Code" shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time, and the rules and regulations promulgated thereunder.
1.7 "Committee" shall mean the Compensation Committee of the Board or,
if none, the Board.
1.8 "Company" shall mean HCC Insurance Holdings, Inc., a Delaware
corporation, or its successor or successors.
1.9 "Contribution" shall mean a bookkeeping entry which reflects the
periodic accrual, if any, approved by the Board on the Participant's behalf, as
provided in Article 3 hereof.
1.10 "Disability" shall mean a physical or mental condition, the
occurrence of which shall entitle the Participant to benefits under the
long-term disability plan maintained by the Company or an Affiliate, if
applicable, for the benefit of eligible employees of the Company and its
Affiliates. If no such long-term disability plan exists, "Disability" shall be
defined as in Code section 72(m)(7).
1.11 "Effective Date" shall mean January 1, 2003.
1.12 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as it may be amended from time to time, and the rules and regulations
promulgated thereunder.
1.13 "Participant" is defined in the above Preamble.
1.14 "Plan" shall mean this HCC Insurance Holdings, Inc. Nonqualified
Deferred Compensation Plan for Stephen L. Way, as amended from time to time.
1.15 "Plan Year" shall mean the annual period beginning January 1 and
ending December 31, both dates inclusive of each year.
ARTICLE 2
ELIGIBILITY
The only individual eligible to participate under the Plan is Stephen
L. Way. He shall be eligible to participate only while he is an employee of the
Company and/or its Affiliates.
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ARTICLE 3
CONTRIBUTIONS
The Committee shall recommend to the Board the amount and timing of the
Company Contribution or Contributions, if any, for a Plan Year. Any such
recommendation of the Committee shall be effective only upon approval of the
Board, which approval shall specify the Accrual Date for each such Contribution.
Contributions shall be accrued by the Company or an Affiliate as directed by the
Committee. No additional Contributions may be accrued after the Participant
ceases to be eligible to participate in the Plan.
ARTICLE 4
CREDITING OF CONTRIBUTIONS AND INCOME
4.1 Contributions by the Company under Article 3 hereof shall be
credited to the Account of the Participant as of the Accrual Date specified by
the Board. All withdrawals and distributions from the Account pursuant to
Articles 5 or 6, respectively, shall be charged against the Account as of the
date of such withdrawal or distribution.
4.2 The Participant's Account shall earn interest each calendar quarter
at an annual rate that is equivalent to the sum of (i) the Prime Rate as
published in the Money Rates section of The Wall Street Journal as of the last
day of each calendar quarter plus (ii) one percent (100 basis points); such rate
prorated to reflect quarterly compounding. Such interest accruals shall be
credited to the Participant's Account as of the last day of each calendar
quarter or at such other time as is determined by the Committee. If a
distribution or withdrawal occurs hereunder before the last day of a calendar
quarter, a prorated interest accrual shall be credited to the Participant's
Account as of the date of such distribution or withdrawal. If a Contribution is
made with an Accrual Date other than the first day of the calendar quarter, a
prorated interest accrual for such quarter shall be credited with respect to the
amount of the Contribution.
ARTICLE 5
PAYMENT OF BENEFITS - DEATH, DISABILITY, OR RETIREMENT
5.1 In the event of the Participant's death, his Beneficiary shall be
entitled to the entire value of all amounts credited to the Participant's
Account as of the date of distribution to the Beneficiary. Payment of such death
benefit shall be made in a lump sum cash payment to the Beneficiary as soon as
administratively practicable after the Committee's receipt of proper notice of
the Participant's death. The Beneficiary may not elect to defer the date of
distribution or change the form of payment of the distribution. If the
Participant fails to name a Beneficiary, or if all Beneficiaries (primary and
contingent) named by the Participant predecease him, the entire death benefit
shall be paid to the Participant's estate.
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5.2 Upon the Participant's Disability, he shall be entitled to the
entire value of all amounts credited to his Account, as of the date of
distribution to the Participant. Payment of the Participant's Disability benefit
shall be made in a lump sum cash payment to the Participant as soon as
administratively practicable after the Committee's determination of the
Participant's Disability. The Participant may not elect to defer the date of
such distribution or change the form of payment of the distribution.
5.3 Upon the Participant's retirement or termination of employment with
the Company and its Affiliates for any reason other than death or Disability,
the Participant shall be entitled to the entire value of all amounts credited to
his Account, as of the date of distribution to the Participant. Payment of the
Participant's benefit on account of his retirement or other termination of
employment shall be made in a lump sum cash payment to the Participant as soon
as administratively practicable after his retirement or other termination of
employment. The Participant may not elect to defer the date of such distribution
or change the form of payment of the distribution.
5.4 Notwithstanding any of the foregoing provisions, all payments under
this Article 5 shall be subject to the limitation described in Section 6.2.
ARTICLE 6
OTHER PAYMENT OF BENEFITS
6.1 Notwithstanding the provisions of Articles 5 and 6, the benefits
payable hereunder may be paid before they would otherwise be payable if, based
on a change in the federal or applicable state tax or revenue laws, a published
ruling or similar announcement issued by the Internal Revenue Service, a
regulation issued by the Secretary of the Treasury, a decision by a court of
competent jurisdiction involving the Participant or a Beneficiary, or a closing
agreement made under section 7121 of the Code that is approved by the Internal
Revenue Service and involves the Participant, the Committee determines that the
Participant has or will recognize income for federal or state income tax
purposes with respect to amounts that are or will be payable under the Plan
before they otherwise would be distributed hereunder. The amount of any payments
pursuant to this Section shall not exceed the lesser of: (a) the amount in the
Participant's Account or (b) the amount of taxable income with respect to which
the tax liability is assessed or determined.
6.2 With respect to payments to be made pursuant to Article 5 or this
Article 6, the amount of a payment by the Company during any calendar year shall
not exceed the amount of the deduction to which the Company (or an Affiliate, as
applicable) is entitled under the applicable provisions of the Code in effect at
the time of such payment. To the extent a payment under Article 5 or this
Article 6 is limited by this Section, the amounts that are not paid in a
particular year shall remain in the Participant's Account and shall be paid as
soon as administratively possible in the first calendar year in which the
Company (or an Affiliate, as applicable) is entitled to a deduction for such
payments under the applicable provisions of the Code.
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ARTICLE 7
ADMINISTRATION OF THE PLAN
7.1 The Plan shall be administered by the Committee. The members of the
Committee shall not receive compensation with respect to their services for the
Plan. The members of the Committee shall serve without bond or security for the
performance of their duties hereunder unless applicable law makes the furnishing
of such bond or security mandatory or unless required by the Company. Any member
of the Committee may resign by delivering his written resignation to the Company
and to the other members of the Committee.
7.2 The Committee shall perform any act which the Plan authorizes
expressed by a vote at a meeting or in a writing signed by a majority of its
members without a meeting. The Committee may, by a writing signed by a majority
of its members, appoint any member of the Committee to act on behalf of the
Committee.
7.3 The Committee may designate in writing other persons to carry out
its responsibilities under the Plan, and may remove any person designated to
carry out its responsibilities under the Plan by notice in writing to that
person. The Committee may employ persons to render advice with regard to any of
its responsibilities. All usual and reasonable expenses of the Committee shall
be paid by the Company. The Company shall indemnify and hold harmless each
member of the Committee from and against any and all claims and expenses
(including, without limitation, attorney's fees and related costs), in
connection with the performance by such member of his duties in that capacity,
other than any of the foregoing arising in connection with the willful neglect
or willful misconduct of the person so acting.
7.4 The Committee shall establish rules, not contrary to the provisions
of the Plan, for the administration of the Plan and the transaction of its
business. The Committee shall interpret the Plan in its sole and absolute
discretion, and shall determine all questions arising in the administration,
interpretation and application of the Plan. All determinations of the Committee
shall be conclusive and binding on all concerned.
7.5 Any action to be taken hereunder by the Company shall be taken by
resolution adopted by the Board or an executive committee thereof; provided,
however, that by resolution, the Board or an executive committee thereof may
delegate to any officer of the Company the authority to take any actions
hereunder, other than the power to amend or terminate the Plan.
ARTICLE 8
CLAIM REVIEW PROCEDURE
8.1 The Committee shall automatically direct the distribution of all
benefits to which the Participant or his Beneficiary is entitled hereunder. In
the event that the Participant or his Beneficiary (the "Claimant") believes that
he (or she) has been denied benefits to which he (or
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she) is entitled under the provisions of the Plan, the Committee shall, upon the
request of the Claimant, provide to the Claimant written notice of the denial
which shall set forth:
(a) the specific reason or reasons for the denial;
(b) specific references to pertinent Plan provisions on which the
Committee based its denial;
(c) a description of any additional material or information
needed for the Claimant to perfect the claim and an explanation of why
the material or information is needed;
(d) a statement that the Claimant or his authorized
representative may:
(i) Request a review upon written application to the
Committee;
(ii) Review pertinent Plan documents; and
(iii) Submit issues and comments in writing;
(e) a statement that any appeal the Claimant wishes to make of
the adverse determination must be made in writing to the Committee
within sixty (60) days after receipt of the Committee's notice of
denial of benefits and that failure to appeal the initial determination
to the Committee in writing within such sixty (60)-day period will
render the Committee's determination final, binding, and conclusive;
and
(f) the address to which the Claimant must forward any request
for review.
8.2 If the Claimant should appeal to the Committee, he, or his duly
authorized representative, may submit, in writing, whatever issues and comments
he, or his duly authorized representative, feels are pertinent. The Committee
shall re-examine all facts related to the appeal and make a final determination
as to whether the denial of the claim is justified under the circumstances. The
Committee shall advise the Claimant in writing of its decision on appeal, the
specific reasons for the decision, and the specific Plan provisions on which the
decision is based. The notice of the decision shall be given within sixty (60)
days (forty-five (45) days in the case of a claim relating to Disability) after
the Claimant's written request for review, unless special circumstances (such as
a hearing) would make the rendering of a decision within such sixty (60)-day
period (or forty-five (45)-day period in the case of a claim relating to
Disability) impracticable. In such case, notice of an extension shall be
provided to the Claimant within the original sixty (60)-day period (or
forty-five (45)-day period in the case of a claim relating to Disability), and
notice of a final decision regarding the denial of a claim for benefits will be
provided within 120 days (or ninety (90) days in the case of a claim relating to
Disability) after its receipt of a request for review. If an extension of time
for review is required because of special circumstances, written notice of the
extension shall be furnished to the Claimant prior to the date the extension
period commences.
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ARTICLE 9
LIMITATION OF RIGHTS
The establishment of this Plan shall not be construed as giving the
Participant or any person claiming by, through, or on behalf of the Participant,
any legal, equitable or other rights against the Company, any Affiliate, or the
respective officers, directors, employees, agents or shareholders of the Company
or any Affiliate, or as giving to the Participant or his Beneficiary, or any
person claiming by, through, or on behalf of the Participant or his Beneficiary,
any equity or other interest in the assets or business of the Company or any
Affiliate or shares of stock of the Company or any Affiliate, or as giving the
Participant the right to be retained in the employment of the Company or any of
its Affiliates. The rights of the Participant and his Beneficiary hereunder
shall be solely those of an unsecured general creditor of the Company and, to
the extent applicable, of any Affiliate which has accrued a Contribution in
accordance with Article 3.
ARTICLE 10
LIMITATION OF ASSIGNMENT
10.1 No benefits which shall be payable under the Plan to the
Participant or his Beneficiary shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any
attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber,
charge or otherwise dispose of the same shall be void. No benefits shall in any
manner be subject to the debts, contracts, liabilities, engagements or torts of
the Participant or his Beneficiary, nor shall they be subject to attachment or
legal process for or against any person, except to the extent required by law.
10.2 Notwithstanding Section 10.1, whenever any benefit which shall be
payable under the Plan is to be paid to or for the benefit of any person who is
then a minor or determined by the Committee, on the basis of qualified medical
advice, to be incompetent, the Committee need not require the appointment of a
guardian or custodian, but shall be authorized to cause the same to be paid over
to the person having custody of the minor or incompetent, or to cause the same
to be paid to the minor or incompetent without the intervention of a guardian or
custodian, or to cause the same to be paid to a legal guardian or custodian of
the minor or incompetent, if one has been appointed, or to cause the same to be
used for the benefit of the minor or incompetent.
ARTICLE 11
AMENDMENT TO OR TERMINATION OF THE PLAN
The Company reserves the right at any time to amend or terminate the
Plan in whole or in part by resolution of the Board. No amendment shall have the
effect of retroactively decreasing the Participant's Account or depriving the
Participant or his Beneficiary of rights already accrued under the Plan unless
the Participant (or his Beneficiary in the event of the Participant's death
prior to the adoption of the amendment) consents to the amendment. In the event
that the
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Company shall change its name, the Plan shall be deemed to be amended to reflect
the name change without further action of the Company, and the language of the
Plan shall be changed accordingly.
ARTICLE 12
STATUS OF PARTICIPANT AS UNSECURED CREDITOR
All benefits under the Plan shall be paid from the general assets of
the Company or an Affiliate and shall be the unsecured obligations of the
Company and, to the extent applicable, of any Affiliate which has accrued a
Contribution in accordance with Article 3. No assets will be placed in trust or
otherwise segregated from the general assets of the Company or any Affiliate for
the payment of obligations hereunder. To the extent that any person acquires a
right to receive payments hereunder, such right shall be no greater than the
right of any unsecured general creditor of the Company or any Affiliate.
ARTICLE 13
GENERAL AND MISCELLANEOUS
13.1 Severability. In the event that any provision of this Plan shall
be declared illegal or invalid for any reason, said illegality or invalidity
shall not affect the remaining provisions of this Plan but shall be fully
severable and this Plan shall be construed and enforced as if said illegal or
invalid provision had never been inserted herein.
13.2 Construction. The section headings and numbers are included only
for convenience of reference and are not to be taken as limiting or extending
the meaning of any of the terms and provisions of this Plan. Whenever
appropriate, words used in the singular shall include the plural or the plural
may be read as the singular.
13.3 Governing Law. The validity and effect of this Plan and the rights
and obligations of all persons affected hereby shall be construed and determined
in accordance with the laws of the State of Texas unless superseded by federal
law.
13.4 No Requirement to Fund. Neither the Company nor any Affiliate is
required to set aside any assets for payment of the benefits provided under this
Plan. It is the Company's intention that this Plan be construed as a plan which
is unfunded and maintained primarily for the purpose of providing deferred
compensation for a select key management and highly compensated employee within
the meaning of section 201(2) and similar provisions of ERISA.
13.5 Taxes. All amounts payable hereunder shall be reduced by any and
all federal, state and local taxes imposed upon the Participant or his
Beneficiary which are required to be paid or withheld by the Company or an
Affiliate.
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13.6 Waiver. Neither the failure nor any delay on the part of the
Company, any Affiliate, or the Committee to exercise any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise or waiver of any such right, power or privilege preclude any
other or further exercise thereof, or the exercise of any other right, power or
privilege available to the Company, its Affiliates, or the Committee at law or
in equity
[Signature page follows]
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IN WITNESS WHEREOF, the Company has caused its corporate seal to be
affixed hereto and these presents to be duly executed in its name and behalf by
a duly authorized officer on this 31st day of December, 2003.
COMPANY:
HCC INSURANCE HOLDINGS, INC.
By: /s/ WALTER J. LACK
-----------------------------------
Title: Chairman of the Compensation
Committee of the Board of Directors
ATTEST:
/s/ CHRISTOPHER L. MARTIN
- ---------------------------
Secretary
[CORPORATE SEAL]
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