Exhibit 10.12


 


AMENDMENT NO. 2

TO

EMPLOYMENT AGREEMENT


 


This
amendment dated and effective December 31, 2008 (this “Amendment”),
amends that certain employment agreement dated as of September 12, 2005
(the “Original Agreement”) and amended as of February 9, 2006, by
and between Zenith National Insurance Corp., a Delaware corporation (the “Company”),
and Davidson M. Pattiz (“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/ Jack D. Miller

  
	
   

  	
   

  	
  Name: 

  	
    Jack D.
  Miller

  
	
   

  	
   

  	
  Title: 

  	
  Executive Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Davidson
  M. Pattiz

  
	
   

  	
   

  	
  Name: 

  	
  Davidson M. Pattiz

  
	
   

  	
   

  	
  Title: 

  	
  Executive Vice President