Exhibit 10.10.9


 


ARCH
CAPITAL GROUP LTD.


 


Amendment to Restricted
Share Unit Agreement


 


THIS AGREEMENT (the “Amendment”), dated December 9, 2008, between
Arch Capital Group Ltd. (the “Company”), a Bermuda company, and
Constantine Iordanou (the “Employee”).


 


WHEREAS, the Company granted 17,668 Restricted Share Units (the “Award”)
to the Employee under the Company’s 2002 Long Term Incentive and Share Award
Plan (the “Plan”) pursuant to a restricted share unit agreement, between the
Company and the Employee, dated as of February 20, 2003 (the “Agreement”);


 


WHEREAS, the Company and the Employee wish to amend the Award in order
to bring it into compliance with Section 409A of the Code;


 


WHEREAS, capitalized terms used without definition herein will have the
meanings given to them in the Agreement and the Plan;


 


NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties have agreed to amend the Agreement as follows:


 


1.                 It is intended that the Restricted Share
Units subject to the Award that were vested on December 31, 2004 (8,834 Shares),
together with any dividend equivalents credited with respect to such Restricted
Share Units under Section 2(f) of the Agreement, will satisfy the
grandfather provisions of Section 409A of the Code so that such Restricted
Share Units, together with any dividend equivalents credited with respect
thereto, will not be subject to Section 409A of the Code.  No amendment to the Award (including, without
limitation, this Amendment) will apply to such Restricted Share Units (or any
dividend equivalents credited with respect thereto), unless the amendment
specifically provides that it applies thereto.


 


2.                                    With the respect to the remaining 8,834
Restricted Share Units provided for in the Award that were not vested on December 31,
2004, the following provisions shall apply:


 


(a) 
The second sentence of Section 4 is amended to read in its entirety as
follows:


 


“The
Company shall pay any issuance, stamp or documentary taxes (other than transfer
taxes) or charges imposed by any governmental body, agency or official (other
than income taxes) or by reason of the issuance of Shares.”


 


(b) 
New Section 11 is added to read in its entirety as follows:


 


“11.  Section 409A.  It is intended that this Agreement and the
Award will comply with Section 409A of the Code and any regulations and
guidelines 


 

















 


promulgated
thereunder (collectively, “Section 409A”), to the extent the Agreement and
the Award are subject thereto, and the Agreement and the Award shall be interpreted
on a basis consistent with such intent. 
If an amendment of the Agreement is necessary in order for it to comply
with Section 409A, the parties hereto will negotiate in good faith to
amend the Agreement in a manner that preserves the original intent of the
parties to the extent reasonably possible. 
Notwithstanding any provision to the contrary in this Agreement, if the
Employee 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-1(i)), then
with regard to any payment 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 shall be
made on the date that is the earlier of (i) the expiration of the six
(6)-month period measured from the date of the Employee’s “separation from
service,” or (ii) the date of the Employee’s death (the “Delay Period”).  Upon the expiration of the Delay Period, all
payments delayed pursuant to this Section 11 (whether they would have
otherwise been payable in a single sum or in installments in the absence of
such delay) shall be paid to the Employee in a lump sum and any remaining
payments and benefits due under this Agreement shall be paid 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 upon or following a termination of
employment, references to the Employee’s “termination of employment” (and corollary
terms) with the Company shall be construed to refer to the Employee’s “separation
from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with
the Company.  No action or failure to act
pursuant to this Section 11 shall subject the Company to any claim, liability,
or expense, and the Company shall not have any obligation to indemnify or
otherwise protect the Employee from the obligation to pay any taxes, interest
or penalties pursuant to Section 409A.”


 


3.                                    All other provisions of the Agreement shall
remain in full force and effect.  This Amendment
shall be governed by and construed in accordance with the laws of New York, without
giving effect to principles of conflict of laws, and may be executed in two
counterparts, each of which shall constitute one and the same instrument.


 


2

















 


IN
WITNESS WHEREOF, the undersigned have executed this Amendment on December 9,
2008.


 


	
   

  	
  ARCH
  CAPITAL GROUP LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dawna Ferguson

  
	
   

  	
  Name: Dawna Ferguson

  
	
   

  	
  Title: Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Constantine Iordanou

  
	
   

  	
  Constantine
  Iordanou

  



 


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