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AGREEMENT
EXHIBIT 10.8
THIS AGREEMENT made and entered into this 19th day of July, 2000 by and
between RADIAN GROUP INC., a corporation organized and existing under the laws
of the state of Delaware (hereinafter referred to as the "Company") and ▇▇▇▇▇
VAN FLEET (hereinafter referred to as the "Employee").
WHEREAS, the Employee is presently employed by the Company as its EXECUTIVE
VICE PRESIDENT FOR SALES AND FIELD OPERATIONS; and
WHEREAS, the Board of Directors of the Company (the "Board") recognizes that,
as is the case with many publicly-held corporations, the possibility of a
change in control of the Company exists and that such possibility, and the
uncertainty and questions it may raise among management, may result in the
departure or distraction of key management personnel to the detriment of the
Company; and
WHEREAS, the Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of key members
of the Company's management to their assigned duties without distraction in
the face of potentially disturbing circumstances arising from the possibility
of a change in control of the Company; and
WHEREAS, in order to induce the Employee to remain in the employ of the
Company, the Company agrees that the Employee shall receive the compensation
set forth in this Agreement as a cushion against the financial and career
impact on the Employee in the event that Employee's employment with the
Company is terminated subsequent to a "Change of Control" (as that term is
defined in Section 1 hereof).
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements hereinafter set forth and intending to be legally bound hereby, the
parties hereto agree as follows:
1. DEFINITIONS. When used in this Agreement, the following terms shall
have the specific meanings shown in this Section unless the context of any
provision of this Agreement clearly requires otherwise:
(a) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) "Beneficial Owner" of any securities shall mean:
(i) that such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether such
right is exercisable immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding (whether or not in writing) or
upon the exercise of conversion rights, exchange rights, rights, warrants or
options, or otherwise; provided, however, that a Person shall not be deemed
the "Beneficial Owner" of securities tendered pursuant to a tender or exchange
offer made by such Person or any of such Person's Affiliates or Associates
until such tendered securities are accepted for payment, purchase or exchange;
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(ii) that such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or dispose of or has
"beneficial ownership" of (as determined pursuant to Rule 13d-3 of the General
Rules and Regulations under the Exchange Act), including without limitation,
pursuant to any agreement, arrangement or understanding (whether or not in
writing); provided, however, that a Person shall not be deemed the "Beneficial
Owner" of any security under this subsection (ii) as a result of an oral or
written agreement, arrangement or understanding to vote such security if such
agreement, arrangement or understanding (A) arises solely from a revocable
proxy given in response to a public proxy or consent solicitation made
pursuant to, an in accordance with, the applicable provisions of the General
Rules and Regulations under the Exchange Act, and (B) is not then reportable
by such Person on Schedule 13D under the Exchange Act (or any comparable
successor report); or
(iii) where voting securities are beneficially owned, directly
or indirectly, by any other Person (or any Affiliate or Associate thereof)
with which such Person (or any of such Person's Affiliates or Associates) has
any agreement, arrangement or understanding (whether or not in writing) for
the purpose of acquiring, holding, voting (except pursuant to a revocable
proxy described in the proviso to subsection (ii) above) or disposing of any
voting securities of the Company;
provided, however, that nothing in this subsection (b) shall cause a Person
engaged in business as an underwriter of securities to be the "Beneficial
Owner" of any securities acquired through such Person's participation in good
faith in a firm commitment underwriting until expiration of forty (40) days
after the date of such acquisition.
(c) "Change of Control" shall be deemed to have taken place if (i)
any Person (except for the Employee or his family, the Company or any employee
benefit plan of the Company or of any Affiliate, any Person or entity
organized, appointed or established by the Company for or pursuant to the
terms of any such employee benefit plan), together with all Affiliates and
Associates of such Person, shall become the Beneficial Owner in the aggregate
of 20% or more of the shares of the Company then outstanding and entitled to
vote for directors generally, (ii) any Person (except the Employee and his
family), together with all Affiliates and Associates of such Person purchases
substantially all of the assets of the Company, or (iii) during any
twenty-four (24) month period, individuals who at the beginning of such period
constituted the Board cease for any reason to constitute a majority thereof,
unless the election, or the nomination for election by the Company's
stockholders, of at least seventy-five percent (75%) of the directors who were
not directors at the beginning of such period was approved by a vote of at
least seventy-five percent (75%) of the directors in office at the time of
such election or nomination who were directors at the beginning of such
period.
(d) "Person" shall mean any individual, firm, corporation,
partnership or other entity.
(e) "Subsidiary" shall have the meaning ascribed to such term in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
(f) "Termination Date" shall mean the date of receipt of the Notice
of Termination described in Section 2 hereof or any later date specified
therein, as the case may be.
(g) "Termination of Employment" shall mean the termination of the
Employee's actual employment relationship with the Company.
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(h) "Termination following a Change of Control" shall mean a
Termination of Employment within two years after a Change of Control either:
(i) initiated by the Company for any reason other than (a)
the Employee's continuous illness, injury or incapacity for a period of twelve
consecutive months or (b) for "cause", which shall mean misappropriation of
funds, habitual insobriety, substance abuse, conviction of a crime involving
moral turpitude, or gross negligence in the performance of duties, which gross
negligence has had a material adverse effect on the business, operations,
assets, properties or financial condition of the Company and its Subsidiaries
taken as a whole; or
(ii) initiated by the Employee upon the occurrence of one or
more of the following:
(A) any failure of the Company to comply with and
satisfy any of the conditions of this Agreement;
(B) any change resulting in a significant reduction
by the Company of the authority, duties or responsibilities of the Employee;
(C) any removal by the Company of the Employee from
the employment grade, compensation level or officer positions which the
Employee holds as of the effective date hereof, except in connection with
promotions to a higher office;
(D) the requirement that the Employee undertake
business travel (or commuting in excess of fifty miles each way) to an extent
substantially greater than is reasonable and customary for the position the
Employee holds.
2. NOTICE OF TERMINATION. Any Termination following a Change of Control
shall be communicated by a Notice of Termination to the other party hereto
given in accordance with Section 14 hereof. For purposes of this Agreement, a
"Notice of Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) briefly
summarizes the facts and circumstances deemed to provide a basis for
termination of the Employee's employment under the provision so indicated, and
(iii) if the Termination Date is other than the date of receipt of such
notice, specifies the Termination Date (which date shall not be more than
fifteen days after the giving of such notice).
3. BENEFITS UPON CHANGE OF CONTROL.
(a) In the event of a Change of Control (i) any stock options
previously granted to the Employee under any Company stock option or equity
compensation plan which have not yet vested shall become vested, and (ii) any
restricted stock previously granted to the Employee under any Company equity
compensation plan which has not yet vested or become freely transferable shall
become vested and freely transferable.
(b) In the event of the Employee's Termination following a Change
of Control the Company shall pay to the Employee, within fifteen days after
the Termination Date, an amount in cash equal to 2.0 times (i) the Employee's
then current annual base compensation, plus (ii) the Employee's then current
target bonus eligibility.
(c) In the event of the Employee's Termination following a Change
of Control, the Employee shall be entitled to continued participation in the
Company's life, disability, accident
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and health insurance plans for a period not to exceed thirty-six (36) months
following the termination.
4. OTHER PAYMENTS. The payment due under Section 3 hereof shall be in
addition to and not in lieu of any payments or benefits due to the Employee
under any other plan, policy or program of the Company except that no payments
shall be due to the Employee under the Company's then current severance pay
plan for employees, if any.
5. ESTABLISHMENT OF TRUST. The Company has or will establish an
irrevocable trust fund (hereinafter referred to as the "Trust Fund") pursuant
to a trust agreement to hold assets contributed to satisfy its obligations
under this Agreement. Funding of such trust fund shall be subject to the
Company's discretion, as set forth in the trust agreement establishing the
Trust Fund. Notwithstanding the foregoing:
(a) Upon a Change of Control of the Company, the Chief Financial
Officer of the Company, or his authorized representative (hereinafter referred
to collectively as the "Treasurer"), shall immediately remit to the Trustee of
the Trust Fund as a contribution to the applicable trust established as part
of the Trust Fund for the benefit of the Employee the amount due under this
Agreement and not yet contributed to the Trustee as well as an amount
estimated to be sufficient to pay all fees and expenses that may thereafter
become due. The Trustee shall be under no duty to determine the sufficiency,
or to enforce the making, of such contributions.
(b) In the event that the Chairman of the Board determines that a
Change of Control of the Company is imminent, the Treasurer shall make the
payments to the Trustee specified in paragraph (i) above. If a Change of
Control of the Company shall not have occurred within ninety (90) days of the
contribution made pursuant to this Section 5 and the Board adopts a resolution
to the effect that, for purposes of this Agreement, a Change of Control of the
Company is not imminent, any amounts added to the Trust Fund pursuant to this
Section, together with any earnings thereon, shall be paid by the Trustee to
the Company.
6. ENFORCEMENT.
(a) In the event that the Company shall fail or refuse to make
payment of any amounts due the Employee under Sections 3 and 4 hereof within
the respective time periods provided therein, the Company shall pay to the
Employee, in addition to the payment of any other sums provided in this
Agreement, interest, compounded daily, on any amount remaining unpaid from the
date payment is required under Section 3 and 4, as appropriate, until paid to
the Employee, at the rate from time to time announced by PNC Bank, or its
successor, as its "prime rate" plus 2%, each change in such rate to take
effect on the effective date of the change in such prime rate.
(b) It is the intent of the parties that the Employee not be
required to incur any expenses associated with the enforcement of his rights
under this Agreement by arbitration, litigation or other legal action because
the cost and expense thereof would substantially detract from the benefits
intended to be extended to the Employee hereunder. Accordingly, the Company
shall pay the Employee on demand the amount necessary to reimburse the
Employee in full for all expenses (including attorney's fees and legal
expenses) incurred by the Employee in enforcing any of the obligations of the
Company under this Agreement.
7. NO MITIGATION. The Employee shall not be required to mitigate the
amount of any payment or benefit provided for in this Agreement by seeking
other employment or otherwise,
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nor shall the amount of any payment or benefit provided for herein be reduced
by any compensation earned by other employment or otherwise.
8. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Employee's continuing or future participation in or rights under any
benefit, bonus, incentive or other plan or program provided by the Company or
any of its Subsidiaries or Affiliates and for which the Employee may qualify;
provided, however, that with respect to a Termination following a Change of
Control, the Employee hereby waives the Employee's right to receive any
payments under any severance pay plan or similar program applicable to other
employees of the Company, and agrees to accept the payment provided in Section
3(b) above in lieu of any other severance pay plan or similar program.
9. NO SET-OFF. The Company's obligation to make the payments provided for
in this Agreement and otherwise to perform its obligations hereunder shall not
be affected by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the Company may have
against the Employee or others.
10. TAXES. Any payment required under this Agreement shall be subject to
all requirements of law with regard to the withholding of taxes, filing,
making of reports and the like, and the Company shall use its best efforts to
satisfy promptly all such requirements.
11. ADJUSTMENT FOR TAXES. In the event that either the Company's
independent public accountants or the Internal Revenue Service determine that
any payment, coverage, benefit or benefit acceleration provided to the
Employee, whether specifically provided for in this Agreement or otherwise, is
subject to the excise tax imposed by Section 4999 (or any successor provision)
("Section 4999") of the Code, the Company, within thirty (30) days thereafter,
shall pay to the Executive, in addition to any other payment, coverage or
benefit due and owing hereunder, an amount determined by multiplying the rate
of excise tax then imposed by Section 4999 by the amount of the "excess
parachute payment" received by the Executive (determined without regard to any
payments made to the Executive pursuant to this paragraph) and dividing the
product so obtained by the amount obtained by subtracting the aggregate local,
estate and Federal income tax rate applicable to the receipt by the Employee
of the "excess parachute payment" (taking into account the deductibility for
Federal income tax purposes of the payment of state and local income taxes
thereon) from the amount obtained by subtracting from 1.00 the rate of excise
tax then imposed by Section 4999 of the Code, it being the Company's intention
that the Employee's net after tax position be identical to that which would
have obtained had Sections 280G and 4999 not been a part of the Code.
12. TERM OF AGREEMENT. The term of this Agreement shall be for 3 years
from the date hereof and shall be automatically renewed for successive
one-year periods unless the Company notifies the Employee in writing that this
Agreement will not be renewed at least sixty (60) days prior to the end of the
current term; provided, however, that (i) after a Change of Control during the
term of this Agreement, this Agreement shall remain in effect until all of the
obligations of the parties hereunder are satisfied or have expired, and (ii)
this Agreement shall terminate if, prior to a Change of Control, the
employment of the Employee with the Company or any of its Subsidiaries, as the
case may be, shall terminate for any reason, or if the Employee shall cease to
be an Employee.
13. SUCCESSOR COMPANY. The Company shall require any successor or
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to the
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Employee, to acknowledge expressly that this Agreement is binding upon and
enforceable against the Company in accordance with the terms hereof, and to
become jointly and severally obligated with the Company to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession or successions had taken place.
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement. As used in this
Agreement, the Company shall mean the Company as hereinbefore defined and any
successor or successors to its business and/or assets, jointly and severally.
14. NOTICE. All notices and other communications required or permitted
hereunder or necessary or convenient herewith shall be in writing and shall be
delivered personally or mailed by registered or certified mail, return receipt
requested, or by overnight express courier service, as follows:
If to the Company, to:
Radian Group Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
If to the Employee, to:
▇▇▇▇▇ Van Fleet
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other names or addresses as the Company or the Employee, as the
case may be, shall designate by notice to the other party hereto in the manner
specified in this Section 14; provided, however, that if no such notice is
given by the Company following a Change of Control, notice at the last address
of the Company or to any successor pursuant to Section 13 hereof shall be
deemed sufficient for the purposes hereof. Any such notice shall be deemed
delivered and effective when received in the case of personal delivery; five
days after deposit, postage prepaid, with the U.S. Postal Service in the case
of registered or certified mail; or on the next business day in the case of an
overnight express courier service.
15. GOVERNING LAW. This Agreement shall be governed by and construed by
and interpreted under the laws of the Commonwealth of Pennsylvania without
giving effect to any conflict of laws provisions.
16. CONTENTS OF AGREEMENTS, AMENDMENT AND ASSIGNMENT.
(a) This Agreement supersedes all prior agreements and sets forth
the entire understanding between the parties hereto with respect to the
subject matter hereof and cannot be changed, modified, extended or terminated
except upon written amendment executed by the Employee and approved by the
Board and executed on the Company's behalf by a duly authorized officer. The
provisions of this Agreement may provide for payments to the Employee under
certain compensation or bonus plans under circumstances where such plans would
not provide for the payment thereof. It is the specific intention of the
parties that the provisions of this Agreement shall supersede any provisions
to the contrary in such plans, and such plans shall be deemed to
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have been amended to correspond with this Agreement without further action by
the Company or the Board.
(b) Nothing in this Agreement shall be construed as giving the
Employee any right to be retained in the employ of the Company.
(c) All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, representatives, successors and assigns of the parties hereto, except
that the duties and responsibilities of the Employee and the Company hereunder
shall not be assignable in whole or in part by the Company.
17. SEVERABILITY. If any provision of this Agreement or application
thereof to anyone or under any circumstances shall be determined to be invalid
or unenforceable, such invalidity or unenforceability shall not affect any
other provisions or applications of this Agreement which can be given effect
without the invalid or unenforceable provision or application.
18. REMEDIES CUMULATIVE; NO WAIVER. No right conferred upon the Employee
by this Agreement is intended to be exclusive of any other right or remedy,
and each and every such right or remedy shall be cumulative and shall be in
addition to any other right or remedy given hereunder or now or hereafter
existing at law or in equity. No delay or omission by the Employee in
exercising any right, remedy or power hereunder or existing at law or in
equity shall be construed as a waiver thereof, including, without limitation,
any delay by the Employee in delivering a Notice of Termination pursuant to
Section 2 hereof after an event has occurred which would, if the Employee had
resigned, have constituted a Termination following a Change of Control
pursuant to this Agreement.
19. MISCELLANEOUS. All section headings are for convenience only. This
Agreement may be executed in several counterparts, each of which is an
original. It shall not be necessary in making proof of this Agreement or any
counterpart hereof to produce or account for any of the other counterparts.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first above written.
RADIAN GROUP INC.
By: ___________________________ _________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President ▇▇▇▇▇ Van Fleet
Attest: ________________________________