Exhibit 10.5
2008 FORM OF
AMENDMENT TO EMPLOYMENT AGREEMENT IN RESPONSE TO
INTERNAL REVENUE CODE SECTION 457A
AMENDMENT TO EMPLOYMENT AGREEMENT
(“Amendment”) dated as of _____________, 2008 between
XL Capital Ltd, a Cayman Islands corporation (the
“Company”) and _____________ (the
“Executive”).
WHEREAS, the Company and the
Executive are parties to an Employment Agreement dated as of
______________ (the “Agreement”);
WHEREAS, the Company and the
Executive wish to amend the Agreement as set forth herein;
NOW, THEREFORE, in consideration
of the mutual covenants herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Company, the Guarantors (as defined in the
Agreement) and the Executive hereby agree as follows:
1. The last paragraph of Section
8(d)(iii) is amended by deleting “10 days thereafter”
and replacing it with “on the date of the 409A Change in
Control.”
2. The first sentence of Section
18(d) is amended to read in its entirety as follows:
|
|
“Each Party shall bear its own costs
incurred in connection with any proceeding under Sections 18(a) or
18(b) hereof, including all legal fees and expenses;
provided , however , that the Company shall bear all
such costs of the Executive (to the extent such costs are
reasonable) if the Executive substantially prevails in a proceeding
following her “separation from service” (as defined
below) with the Company.
|
|
3. Section 25(b) is amended to
read in its entirety as follows:
|
|
“(b)
Without prejudice to the characterization of any other amounts
payable under this Agreement, the parties hereto specifically
intend that any amounts payable under Section 8(d)(ii)(A)-(C),
Section 8(d)(iii)(A)-(D) and Section 11 will not be considered
deferred compensation for purposes of Section 409A due to Treas.
Reg. Section 1.409A-1(b)(4) or another applicable exception.
However, notwithstanding any provision to the contrary in this
Agreement, if the Executive is deemed on the date of her
“separation from service” (within the meaning of Treas.
Reg. Section 1.409A-1(h)) with the Company to be a “specified
employee” (within the meaning of Treas. Reg. Section
1.409A-1(i)), then with regard to any payment or benefit that is
considered deferred compensation under Section 409A payable on
account of a “separation from service” that is required
to be delayed pursuant to Section 409A(a)(2)(B) of the Code (after
taking into account any ap-
|
|
|
|
plicable exceptions to such requirement), such
payment or benefit shall be made or provided on the date that is
the earlier of (i) the expiration of the six (6)-month period
measured from the date of the Executive’s “separation
from service,” or (ii) the date of the Executive’s
death (the “Delay Period”). Upon the expiration of the
Delay Period, all payments and benefits delayed pursuant to this
Section 25(b) (whether they would have otherwise been payable in a
single sum or in installments in the absence of such delay) shall
be paid or reimbursed to the Executive in a lump sum and any
remaining payments and benefits due under this Agreement shall be
paid or provided in accordance with the normal payment dates
specified for them herein. Notwithstanding any provision of this
Agreement to the contrary, for purposes of any provision of this
Agreement providing for the payment of any amounts or benefits upon
or following a termination of employment, references to the
Executive’s “termination of employment” (and
corollary terms) with the Company shall be construed to refer to
the Executive’s “separation from service” (within
t
|
