EXPLANATORY NOTE
We
are filing this Registration Statement to register an additional (i) 13,000,000
of the Companys Ordinary Shares, par value $0.01 per share (the Shares),
that may be acquired by Company employees under the amended and restated XL
Group plc 1991 Performance Incentive Program (the Program), and (ii) 30,000
of the Shares, that may be acquired by employees of the Irish branch of XL Services UK Limited,
a wholly-owned United Kingdom subsidiary, under the XL Services UK Limited
Profit Sharing Scheme.
An
increase of 13,000,000 in the number of Shares authorized for issuance under
the Program was approved by the holders of our Shares at our 2011 annual
general meeting held on May 6, 2011. The full text of the amended and restated
Program is available on the Securities and Exchange Commissions (the
Commission) website as an appendix to our Definitive Proxy Statement on
Schedule 14A, filed with the Commission on March 7, 2011.
We
previously filed our Registration Statement on Form S-8 (File No. 333-161122),
filed with the Commission on August 6, 2009, as amended by Post-Effective
Amendment No. 1 to our Registration Statement on Form S-8, filed with the
Commission on July 1, 2010 (the Original Registration Statement), covering an
additional 13,500,000 Shares issuable under the Program. Pursuant to General
Instruction E to Form S-8, the contents of the Original Registration Statement,
including the periodic and current reports that we filed with the Commission
after the effectiveness of the Original Registration Statement, are
incorporated herein by reference except to the extent supplemented, amended or
superseded by the information set forth herein. Any items in the Original
Registration Statement not expressly changed hereby shall be set forth in the
Original Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The
following documents filed by XL Group plc (XL Group) with the Commission are
hereby incorporated by reference in this registration statement:
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(i)
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Annual
Report on Form 10-K for the year ended December 31, 2010, filed on February
25, 2011, as amended by Amendment No. 1 on Form 10-K/A filed on
March 15, 2011;
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(ii)
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Quarterly
Report on Form 10-Q for the quarter ended March 31, 2011, filed on May 9,
2011;
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(iii)
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Proxy
Statement on Schedule 14A for the Annual General Meeting of Holders of
Ordinary Shares of XL Group plc held on May 6, 2011 filed on March 7, 2011;
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(iv)
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Current
Reports on Form 8-K filed on March 1, 2011, March 10, 2011,
March 28, 2011, April 5, 2011 and May 11, 2011;
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(v)
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the
description of XL Groups ordinary shares included the Definitive Proxy
Statement on Schedule 14A filed by XL Capital Ltd (XL Groups predecessor
issuer) on March 10, 2010, set forth in section Description of XL Group plc
Share Capital, including any amendment or report filed for the purposes of
updating such description.
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All
reports and other documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the Exchange Act)
subsequent to the date of this registration statement and prior to the filing
of a post-effective amendment hereto, which indicates that all securities
offered hereunder have been sold or which deregisters all securities remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of filing of such documents.
For
purposes of this registration statement, any document or any statement
contained in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded to the extent that a
subsequently filed document or a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated herein by
reference modifies or supersedes such document or such statement in such
document. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this registration statement.
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Item 4.
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Description of Securities.
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Not
applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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Not
applicable.
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Item 6.
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Indemnification of Directors and Officers.
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XL
Groups articles of association contains provisions with respect to
indemnification of its officers and directors. The general effect of these
provisions is to provide for indemnity for certain persons, including
directors, the corporate secretary, committee members, persons holding
executive or official positions with XL Group and employees, agents and persons
acting in certain other capacities at the request of XL Group (indemnified
persons) who are a party to actions, suits or proceedings against expenses and
costs in connection with such actions, suits or proceedings if such indemnified
person acted in good faith and in a manner that he or she reasonably believed
to be in or not opposed to the best interests of XL Group, and with respect to
any criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful. Indemnification is also excluded in circumstances where an
indemnified person is adjudged liable for wilful neglect or default in
performance of his duties unless a relevant court determines otherwise. Such
indemnification is subject to board, shareholder or independent legal counsel
approval in any given case and may include expense advancement in certain circumstances.
The
indemnification provisions are subject to limitations imposed by the Irish
Companies Acts (the Law). The Law prescribes that an advance commitment to
indemnify only permits a company to pay the costs or discharge the liability of
a director or corporate secretary where judgment is given in favor of the
director or corporate secretary in any civil or criminal action in respect of
such costs or liability, or where an Irish court grants relief because the
director or corporate secretary acted honestly and reasonably and ought fairly
to be excused. Any provision whereby an Irish company seeks to commit in
advance to indemnify its directors or corporate secretary over and above the
limitations imposed by the Law will be void, whether contained in its articles
of association or any contract between the company and the director or
corporate secretary. This restriction does not apply to executives who are not
directors or the corporate secretary, or other persons who would not be
considered officers within the meaning of that term under the Law, of XL
Group.
Additionally,
XL Group Ltd. has entered into indemnification agreements (the Indemnification
Agreements) with each of XL Groups directors and its corporate secretary and
a deed poll indemnity (the Deed Poll) as to the executives, directors and
employees of XL Group (and its subsidiaries). The Indemnification Agreements
and Deed Poll provide that XL Group Ltd. will indemnify the indemnitees to the
fullest extent permitted by Cayman Islands law against claims related to each
indemnitees service to (or at the request of) XL Group, except in certain
circumstances, including (i) where payment is actually made or then due (A) by
XL Group in its discretion, (B) under an insurance policy, (C) pursuant to an
agreement between indemnitee and XL Group, XL Group Ltd. or other entity served
by indemnitee at the request of XL Group or (D) under the governing documents
of XL Group, XL Group Ltd. or other entity served by indemnitee at the request
of XL Group; (ii) in connection with a proceeding initiated by indemnitee,
unless such proceeding was authorized by XL Group Ltd.s board of directors or
falls within certain limited exceptions specifically provided for in the
Indemnification Agreements; (iii) in connection with a proceeding brought by or
in the name of XL Group, where the indemnitee is found, in a final and
non-appealable judgment of a court of competent jurisdiction, to be liable for
willful neglect or willful default in the performance of the indemnitees duty,
unless a court of competent jurisdiction determines that the indemnitee is
fairly and reasonably entitled to such payment. The Indemnification Agreements
and Deed Poll also provide that any and all indemnifiable expenses shall, if so
requested by the indemnitee, be advanced promptly as they are incurred,
provided that the
indemnitee
must repay any such expense advance if it is determined in a final and
non-appealable judgment of a court of competent jurisdiction that the
indemnitee is not entitled to be indemnified against such expenses. Prior to
seeking an indemnification payment or expense advance under the Indemnification
Agreements, an indemnitee must request that XL Group consider in its discretion
whether to make such indemnification payment or expense advance. In the event
an indemnification or expense advance (or an undertaking to provide such
indemnification or advance) is not received from XL Group within five business
days of such request, the indemnitees will be eligible to receive such
indemnification or expense advance from XL Group Ltd. pursuant to the terms of
the Indemnification Agreement.
XL
Groups directors and officers also are provided with indemnification against
certain liabilities pursuant to a directors and officers liability insurance
policy maintained by XL Group (or one of its subsidiaries).
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Item 7.
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Exemption From Registration Claimed.
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Not
applicable.
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Item 8.
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Exhibits.
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The
following exhibits are filed with or incorporated by reference into this registration
statement (numbering corresponds to Exhibit Table in Item 601 of Regulation
S-K):
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Exhibit
Number
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Description
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4.1
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Memorandum
and Articles of Association of XL Group (incorporated by reference to Exhibit
3.1 to XL Groups Current Report on Form 8-K, filed on July 1, 2010)
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4.2
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XL Group plc
1991 Performance Incentive Program (as amended and restated on May 6, 2011)
(incorporated by reference to Appendix A to XL Groups Proxy Statement on
Schedule 14A for the Annual General Meeting of Holders of Ordinary Shares
held on May 6, 2011, filed on March 7, 2011)
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4.3
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*
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XL Services
UK Limited Profit Sharing Scheme
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4.4
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Certificate
of Incorporation of XL Group (incorporated by reference to Exhibit 3.2 to XL
Groups Current Report on Form 8-K, filed on July 1, 2010)
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5.1
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*
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Opinion of
A&L Goodbody
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23.1
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*
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Consent of
PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm
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23.2
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*
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Consent of
A&L Goodbody (included as part of Exhibit 5.1)
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24.1
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*
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Powers of
Attorney (included on signature pages)
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99.1
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*
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Acceptance
of Appointment of Puglisi & Associates as U.S. Agent for Service of Process
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99.2
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Description
of XL Group plc Share Capital (incorporated by reference to the section so
entitled of XL Capital Ltds Definitive Proxy Statement on Schedule 14A,
filed on March 10, 2010)
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* Filed
herewith.
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Item 9.
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Undertakings.
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(a)
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The
undersigned Registrant hereby undertakes:
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(1)
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To file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
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(i)
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To include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933
(the Securities Act);
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(ii)
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To reflect
in the prospectus any facts or events arising after the effective date of
this Registration Statement (or the most recent post-effective amendment the-
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reof)
which, individually or in the aggregate, represent a fundamental change in
the information set forth in this Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with
the Securities and Exchange Commission (the SEC or the Commission)
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20% change in the maximum aggregate offering price set
forth in the Calculation of Registration Fee table in the effective
registration statement; and
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(iii)
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To include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement;
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provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
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(2)
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That, for
the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide
offering thereof.
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(3)
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To remove
from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
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(b)
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The
undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrants
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and,
where applicable, each filing of the employee benefit plans annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
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(c)
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Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant pursuant
to the foregoing provisions, or otherwise, the Registrant has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hamilton and Country of Bermuda, on May 11, 2011.
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XL GROUP PLC
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By:
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/s/
Irene M. Esteves
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Name:
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Irene M.
Esteves
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Title:
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Executive
Vice President and
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Chief
Financial Officer
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Pursuant
to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
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Signature
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Title
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Date
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/s/ Michael S. McGavick
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Chief Executive Officer
(Principal Executive Officer)
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May 11, 2011
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and Director
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Name: Michael S. McGavick
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/s/ Irene M. Esteves
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Executive Vice President
and Chief Financial Officer
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May 11, 2011
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(Principal Financial
Officer and Principal Accounting Officer)
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Name: Irene M. Esteves
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*
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Director and Chairperson of
the Board of Directors
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May 11, 2011
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Name: Robert R. Glauber
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*
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Director
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May 11, 2011
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Name: Ramani Ayer
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*
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Director
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May 11, 2011
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Name: Dale R. Comey
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*
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Director
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May 11, 2011
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Name: Herbert N. Haag
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*
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Director
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May 11, 2011
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Name: Joseph Mauriello
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*
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Director
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May 11, 2011
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Name: Eugene M. McQuade
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*
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Director
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May 11, 2011
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Name: Clayton S. Rose
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*
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Director
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May 11, 2011
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Name: Ellen E. Thrower
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*
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Director
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May 11, 2011
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Name: John M. Vereker
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*BY: /s/ Kirstin R. Gould
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Attorney-in-Fact
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May 11, 2011
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Kirstin R. Gould
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/s/ Donald J. Puglisi
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Authorized U.S.
Representative
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May 11, 2011
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Donald J. Puglisi, Puglisi
& Associates
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POWER OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each of the undersigned officers and directors
of XL Group plc in their respective capacities set forth below constitutes and
appoints Michael S. McGavick and Kirstin R. Gould, and each of them, as his or
her true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign his or her name to this registration statement
of XL Group plc, an Irish public limited company, on Form S-8 under the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission thereunder and any and all amendments
(including any post-effective amendments thereto) and supplements to this
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent or his or her substitute, may lawfully do or cause to be done by
virtue hereof.
This Power of Attorney may be executed in multiple counterparts, each of which
shall be deemed an original, but which taken together shall constitute one
instrument.
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Signature
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Title
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Date
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/s/ Michael S. McGavick
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Chief Executive Officer
(Principal Executive Officer)
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May 10, 2011
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and Director
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Name: Michael S. McGavick
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/s/ Irene M. Esteves
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Executive Vice President
and Chief Financial Officer
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May 6, 2011
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(Principal Financial
Officer and Principal Accounting Officer)
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Name: Irene M. Esteves
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/s/ Robert R. Glauber
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Director and Chairperson of
the Board of Directors
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May 6, 2011
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Name: Robert R. Glauber
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/s/ Ramani Ayer
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Director
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May 6, 2011
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Name: Ramani Ayer
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/s/ Dale R. Comey
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Director
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May 6, 2011
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Name: Dale R. Comey
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/s/ Herbert N. Haag
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Director
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May 6, 2011
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Name: Herbert N. Haag
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/s/ Joseph Mauriello
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Director
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May 6, 2011
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Name: Joseph Mauriello
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/s/ Eugene M. McQuade
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Director
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May 6, 2011
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Name: Eugene M. McQuade
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/s/ Clayton S. Rose
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Director
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May 6, 2011
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Name: Clayton S. Rose
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/s/ Ellen E. Thrower
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Director
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May 6, 2011
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Name: Ellen E. Thrower
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/s/ John M. Vereker
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Director
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May 6, 2011
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Name: John M. Vereker
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EXHIBIT INDEX
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Exhibit
Number
|
|
Description
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4.1
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|
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Memorandum
and Articles of Association of XL Group (incorporated by reference to Exhibit
3.1 to XL Groups Current Report on Form 8-K, filed on July 1, 2010)
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4.2
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|
|
XL Group plc
1991 Performance Incentive Program (as amended and restated on May 6, 2011)
(incorporated by reference to Appendix A to XL Groups Proxy Statement on
Schedule 14A for the Annual General Meeting of Holders of Ordinary Shares
held on May 6, 2011, filed on March 7, 2011)
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4.3
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*
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XL Services
UK Limited Profit Sharing Scheme
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4.4
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|
|
Certificate
of Incorporation of XL Group (incorporated by reference to Exhibit 3.2 to XL
Groups Current Report on Form 8-K, filed on July 1, 2010)
|
5.1
|
*
|
|
Opinion of
A&L Goodbody
|
23.1
|
*
|
|
Consent of
PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm
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23.2
|
*
|
|
Consent of
A&L Goodbody (included as part of Exhibit 5.1)
|
24.1
|
*
|
|
Powers of
Attorney (included on signature pages)
|
99.1
|
*
|
|
Acceptance
of Appointment of Puglisi & Associates as U.S. Agent for Service of Process
|
99.2
|
|
|
Description
of XL Group plc Share Capital (incorporated by reference to the section so
entitled of XL Capital Ltds Definitive Proxy Statement on Schedule 14A,
filed on March 10, 2010)
|
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