Exhibit 10.9


 


AMENDMENT NO. 1

TO

EMPLOYMENT AGREEMENT


 


This
amendment dated and effective December 31, 2008 (this “Amendment”),
amends that certain employment agreement dated as of October 12, 2004 (the
“Original Agreement”) by and between Zenith National Insurance Corp., a
Delaware corporation (the “Company”), and Jack D. Miller (“Executive”).  Capitalized terms used and not otherwise
defined herein shall have the respective meanings as set forth in the Original
Agreement.


 


RECITALS


 


WHEREAS,
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”),
places certain restrictions, among other things, as to the timing of
distributions from nonqualified deferred compensation plans and arrangements;
and


 


WHEREAS, the Company and Executive desire to amend the
Original Agreement to comply with Section 409A of the Code.


 


NOW, THEREFORE, in consideration of the mutual
promises set forth herein, the parties hereto hereby agree as follows:


 


1.                                       A
new sentence is hereby added to the end of Section 4 of the Original
Agreement, as follows:


 


“Any such discretionary bonus shall be paid in no
event later than the 15th day of the third month following the end of the
taxable year (of the Company or Executive, whichever is later) in which such
bonus is earned.”


 


2.                                       A
new sentence is hereby added to the end of Section 6 of the Original
Agreement, as follows:


 


“Any
such reimbursements paid to the Executive shall be made in no event later than
the end of the calendar year following the calendar year in which the expenses
were incurred.”


 


3.                                       Section 8(a) of
the Original Agreement is hereby removed and replaced in its entirety with a
new Section 8(a), as follows:


 


“Subject to the notice provisions set forth below, the
Company may terminate the Executive’s employment for “Disability.”  “Disability” shall mean the Executive’s
absence from employment with the Company which: (i) was due to his inability to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than
twelve (12) months; or (ii) resulted from a medically determinable physical or
mental 


 

















 


impairment which can be expected to result in death or can be expected
to last for a continuous period of not less than twelve (12) months, and caused
the Executive to receive income replacement benefits for a period of not less
than three (3) months under an accident and health plan covering the Company’s
employees or (iii) qualifies as a disability under the Company’s Long Term
Disability Plan.”


 


4.                                       A
new sentence is hereby added to the end of Section 9(b) of the
Original Agreement, as follows:


 


“Such
pro rata portion of any bonus that becomes payable pursuant to this Section 9(b) shall
be paid at the time such payment would have been made had the Executive’s
employment not been terminated hereunder.”


 


5.                                       A
new sentence is hereby added to the end of the first paragraph of Section 9(c) of
the Original Agreement, as follows:


 


“Subject to the
provisions of Section 18(h), the payment of such Severance Payments will
occur upon the expiration of all applicable review and revocation periods
applicable to the release as statutorily required by law, and in no event later
than the later of (i) the 15th day of the third month following the end of
the Executive’s taxable year in which such termination of employment occurs or (ii) the
15th day of the third month following the end of the Company’s taxable year in
which such termination of employment occurs.”


 


6.                                       A
new sentence is hereby added to the end of Section 9(e) of the
Original Agreement, as follows:


 


“Any payments made by the Company to or on behalf of
the Executive pursuant to this Section 9(e) shall be made no later
than the end of the Executive’s taxable year next following the Executive’s
taxable year in which the related taxes are remitted.”


 


7.                                       Section 18(h) is
hereby added to the Original Agreement as follows:


 


“ For purposes of this
Agreement, each amount to be paid or benefit to be provided shall be construed
as a separate identified payment for purposes of Section 409A of the
Code.  Notwithstanding any provision to
the contrary in this Agreement, no payment or distribution under this Agreement
which constitutes an item of deferred compensation under Section 409A of
the Code and becomes payable by reason of the Executive’s termination of
employment with the Company will be made to the Executive unless the
Executive’s termination of employment constitutes a “separation from service”
(as such term is defined in Treasury Regulations issued under Section 409A
of the Code).  In addition, no such
payment or distribution will be made to the Executive prior to the earlier of (i) the
expiration of the six (6)-month period measured from the date of the Executive’s
“separation from service” (as such term is defined in Treasury Regulations
issued under Section 409A of the Code) or (ii) the date of the
Executive’s death, if the Executive is deemed at the time of such separation
from service to be a “key employee” within the meaning of that term under Section 416(i) of
the Code and such delayed commencement is otherwise required in order to avoid
a prohibited distribution under Section 409A(a)(2) of the Code.  Upon the expiration of the applicable Code Section 409A(a)(2) deferral



 

















 


period,
all payments and benefits deferred pursuant to this Section 18(h) (whether
they would have otherwise been payable in a single sum or in installments in
the absence of such deferral) shall be paid or reimbursed to the Executive in a
lump sum, and any remaining payments due under this Agreement will be paid in
accordance with the normal payment dates specified for them herein.  It is intended that this Agreement shall
comply with the provisions of Section 409A of the Code and the Treasury
Regulations relating thereto so as not to subject the Executive to the payment
of additional taxes and interest under Section 409A of the Code.  In furtherance of this intent, this Agreement
shall be interpreted, operated, and administered in a manner consistent with
these intentions.”


 


IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date
first above written.


 


 


	
   

  	
  ZENITH NATIONAL INSURANCE CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Michael
  E. Jansen

  
	
   

  	
   

  	
  Name: 

  	
  Michael E. Jansen

  
	
   

  	
   

  	
  Title: 

  	
  Executive Vice President

  
	
   

  	
   

  	
   

  	
    and General Counsel

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Jack D.
  Miller

  
	
   

  	
   

  	
  Name: 

  	
  Jack D. Miller

  
	
   

  	
   

  	
  Title: 

  	
  Executive Vice President