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.