Exhibit 10.9
AMENDMENT TO
EMPLOYMENT AGREEMENT
AMENDMENT
TO EMPLOYMENT AGREEMENT (“Amendment”) dated as of
December __, 2008 between XL Capital Ltd, a Cayman Islands
corporation (the “Company”), and Michael S. McGavick
(the “Executive”).
WHEREAS,
the Company and the Executive are parties to an Employment
Agreement dated as of March 14, 2008 (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:
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“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 his “separation from service” (as defined
below) with the Company.
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3.
Section 25(b) is amended to read in its entirety as
follows:
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“(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 his
“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-l(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 applicable 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
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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 the meaning of Treas.
Reg. Section 1.409A-l(h)) with the Company. With respect to any
reimbursement or in-kind benefit arrangements of the Company and
its subsidiaries that constitute deferred compensation for purposes
of Section 409A, except as otherwise permitted by Section 409A, the
following conditions shall be applicable: (i) the am
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