Exhibit 10.20
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (hereinafter the "Agreement") dated as of January
16, 2006 by and among RAM Holdings Ltd., a Bermuda exempted company
("Holdings"), RAM Holdings II Ltd., a Bermuda company ("Holdings II" and,
together with Holdings, "Holding"), RAM Reinsurance Company Ltd., a Bermuda
company (the "Company"), and Victoria Guest (the "Executive").
WHEREAS, Holding and the Company wish to secure the services of the
Executive as their General Counsel; and
WHEREAS, the Executive wishes to serve as General Counsel of Holding
and the Company, and to enter into this Agreement on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are mutually acknowledged, Holding, the Company and the
Executive agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall
have the following meanings:
(a) "Base Salary" means the salary provided for in Section 4 or any
increased salary granted to the Executive pursuant to Section 4.
(b) "Boards" means the Boards of Directors of Holding and the Company.
(c) "Cause" means: (i) the Executive's commission of any felony; (ii)
the Executive's gross negligence, willful malfeasance or gross misconduct in
connection with her employment hereunder; (iii) a substantial and continual
refusal by the Executive in breach of this Agreement to perform the duties,
responsibilities or obligations assigned to the Executive pursuant to the terms
hereof; (iv) the Executive's failure to fully cooperate with a regulatory
investigation involving Holding, the Company or any of its Subsidiaries or
affiliates; or (v) any one or more acts by the Executive of dishonesty, theft,
larceny, embezzlement or fraud from or with respect to Holding, the Company or
any Subsidiary. By way of example, termination from employment necessitated by
the Executive's inability to maintain a valid work permit from the applicable
Bermuda governmental authorities after the Executive has used her best efforts
to maintain such permit or in connection with a Change in Control does not
constitute termination for Cause. Notwithstanding the foregoing, a termination
shall not be treated as a termination for Cause unless Holding or the Company
shall have delivered a written notice to the Executive within thirty (30) days
of the actual knowledge of the Chief Executive Officer of either Holding or the
Company of the occurrence of one or more of such events that may give rise to a
termination of employment for Cause and, for an event described in item (iii)
above, if capable of being cured, shall not have been cured by the Executive
within thirty (30) days of the receipt of such notice and, for an event
described in item (iv) above, shall not have been cured by the Executive
immediately after receipt of such notice. If Holding or the Company has provided
the notice described in the preceding sentence to the Executive on at least two
separate occasions
which involved substantially similar behavior, Holding or the Company may
immediately terminate the Executive's employment for Cause upon the occurrence
of a third similar event without regard to the notice and cure period described
in the preceding sentence.
(d) "Change in Control" means: (i) the acquisition by any person,
entity or "group" (as defined in Section 13(d) of the Securities Exchange Act of
1934, as amended), other than by The PMI Group, Inc., of fifty percent (50%) or
more of the combined voting power of the then outstanding voting securities of
Holding or the Company; (ii) the merger, amalgamation, reorganization, or
consolidation of, or share exchange involving Holding or the Company, as a
result of which the shareholders of Holding or the Company immediately before
such transaction do not, immediately thereafter, own, directly or indirectly,
more than fifty percent (50%) of the combined voting power entitled to vote
generally in the election of directors of the merged or consolidated company;
(iii) a sale of all or substantially all of Holding's or the Company's assets;
and (iv) approval by Holding or the Company of the liquidation or dissolution of
Holding or the Company, other than a liquidation of the Company into Holding.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Common Shares" means the non-voting Class A common shares, par
value $1.00 per share, of Holdings II.
(g) "Cost of Living Allowance" means the amount paid to the Executive
under Section 7(e).
(h) "Disability" means the Executive's inability to substantially
fulfill the positions, duties, responsibilities and obligations set forth in
this Agreement because of physical, mental or emotional incapacity that entitles
the Executive to long-term disability benefits under the Company's disability
plan or policy.
(i) "Effective Date" means [January 16, 2006] or, if later, the date
on which the Executive obtains an appropriate, valid work permit from the
applicable Bermuda governmental authorities.
(j) "Good Reason" means a termination of the Executive's employment by
the Executive for one or more of the following reasons: (i) a reduction in the
Executive's Base Salary, Cost of Living Allowance or the target bonus
opportunity described in Section 5, (ii) Holding's or the Company's removal of
the Executive from her position as General Counsel of Holding and/or the
Company, (iii) a material breach of this Agreement by Holding or the Company,
(iv) a material diminution in the Executive's duties or the assignment to the
Executive of duties that are not materially consistent with those customarily
assigned to the General Counsel of a company of the size and nature of Holding
or the Company or which do, or would be reasonably expected to, materially
impair her ability to function as the General Counsel of Holding and/or the
Company, (v) a relocation of the corporate headquarters away from Bermuda, (vi)
the refusal of a purchaser of all or substantially all of the assets of Holding
or the Company to continue the Executive's employment with substantially the
same position, title and responsibilities and at least the same compensation as
described herein, or (vii) the Executive's inability to maintain a valid work
permit from the applicable Bermuda governmental authorities after the Executive
has used her best efforts to
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maintain such permit. Notwithstanding the foregoing, a termination shall not be
treated as a termination for Good Reason (i) if the Executive shall have
consented in writing to the occurrence of the event giving rise to the claim of
termination for Good Reason, or (ii) unless the Executive shall have delivered a
written notice to the Holdings Board within ninety (90) days of her having
actual knowledge of the occurrence of one or more of such events stating that
she intends to terminate her employment for Good Reason and specifying the
factual basis for such termination, and such event, if capable of being cured,
shall not have been cured by Holding or the Company within thirty (30) days of
the receipt of such notice.
(k) "Holdings Board" means the Board of Directors of Holdings.
(l) "Party" or "Parties" means Holding, the Company and/or the
Executive.
(m) "Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, estate, board, committee, agency, body,
employee benefit plan or other person or entity.
(n) "Proceeding" means any threatened or actual action, suit or
proceeding, whether civil, criminal, administrative, investigative, appellate or
other.
(o) "Restriction Period" means the Term of Employment plus, if
applicable, any further period during which the Executive is being paid Base
Salary by the Company following termination under Section 9(d).
(p) "Standard Benefit" means any amounts earned, accrued or owing to
the Executive but not yet paid, and receipt of other benefits, if any, in
accordance with applicable plans and programs of Holding, the Company or a
Subsidiary, provided, however, that in no event shall the Standard Benefit be
deemed to include any bonus payments.
(q) "Share Option Plan" means the RAM Reinsurance Company Ltd. Stock
Option Plan for Management Employees as Amended and Restated Effective August
10, 2005, as may be amended from time to time, or any successor plan, including
but not limited to the RAM Holdings Ltd. 2006 Equity Plan.
(r) "Subsidiary" means, with respect to Holdings and Holdings II, any
corporation, partnership, limited liability company or other entity of which (a)
if a corporation, fifty percent (50%) or more of the total voting power of
shares of stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors thereof is at the time owned or controlled,
directly or indirectly, by Holdings and/or Holdings II, or one or more of the
other Subsidiaries of Holdings and/or Holdings II, or a combination thereof, or
(b) if a partnership, limited liability company or other entity, fifty percent
(50%) or more of the partnership, membership or other similar equity ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
Holdings and/or Holdings II, or one or more of the other Subsidiaries of
Holdings and/or Holdings II, or a combination thereof. For purposes hereof,
Holdings, Holdings II and their Subsidiaries will be deemed to have fifty
percent (50%) or more ownership interest in a partnership, limited liability
company or business entity if Holdings, Holdings II and/or a Subsidiary is/are
allocated fifty percent (50%) or more of partnership, limited liability company
or other entity gains or losses or control(s) the general partner,
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managing member or similar managing body of such partnership, limited liability
company or other entity.
(s) "Term of Employment" means the period specified in Section 2.
2. Term of Employment.
(a) Holding and the Company agree to employ the Executive under this
Agreement, and the Executive accepts such employment, for a period commencing on
the Effective Date and ending on the third anniversary thereof, or such later
date as provided in Section 2(b). Notwithstanding the foregoing, the Term of
Employment shall be earlier terminated upon the termination of the Executive's
employment, but only in strict accordance with the provisions of Section 9.
(b) The Term of Employment shall be extended automatically for one
additional year beginning on the last day before the third anniversary of the
Effective Date (the "Extension Date") unless and until, not later than six (6)
months prior to the Extension Date, either Holding or the Company, on the one
hand, or the Executive, on the other hand, gives written notice to the other
Party that the Term of Employment shall not be so extended. A termination of the
Executive's employment that results from the expiration of the Term of
Employment shall not be treated as a termination of employment for any purposes
under this Agreement except as specifically noted herein.
3. Positions; Duties; Responsibilities; and Place of Employment.
(a) During the Term of Employment, the Executive shall be employed as
General Counsel of Holding and the Company and shall be employed in such other
position or positions with Holding and the Company as the Holdings Board shall
from time to time specify. The Executive, in carrying out her executive duties
under this Agreement, shall report to the President and Chief Executive Officer
of Holding and the Company. While employed by Holding and the Company hereunder,
the Executive shall perform her duties at the Company's offices in Bermuda;
provided, however, that the Executive shall be required to travel as reasonably
necessary in carrying out her duties and obligations hereunder. The Executive is
required to work the hours and days necessary to fulfill her executive duties
under this Agreement.
(b) Notwithstanding anything herein to the contrary, nothing shall
preclude the Executive from (i) serving on the boards of directors of a
reasonable number of other corporations, subject to prior approval by the
Holdings Board (which shall not be unreasonably withheld), or the boards of a
reasonable number of trade associations and/or charitable organizations, (ii)
engaging in charitable activities and community affairs, including political
activities, and (iii) managing her personal investments and affairs, provided
that such activities do not materially interfere with the proper performance of
her duties and responsibilities as the General Counsel or violate Section 13 of
this Agreement.
4. Base Salary. Commencing as of the Effective Date, the Company shall pay
the Executive an annualized Base Salary of $240,000 during the Term of
Employment. Such Base Salary shall be payable at intervals in accordance with
the regular payroll practices of the
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Company applicable to executives, but no less frequently than monthly. The
Holdings Board shall review the Base Salary no less frequently than annually
during the Term of Employment; provided, however, that the Base Salary shall not
be decreased during the Term of Employment below the amount set forth above
without the Executive's consent (including, without limitation, for the purpose
of determining benefits due under Section 9). The Executive is a professional or
managerial employee whose Base Salary has been calculated to reflect the fact
that her regular duties are likely to require her to work on occasion more than
forty (40) hours a week. Accordingly, no overtime shall be payable.
5. Annual Incentive Awards. The Executive shall be eligible for a combined
annual incentive bonus award from Holding and the Company in respect of each
calendar year during the Term of Employment. The Executive's target annual
incentive bonus amount for each such year shall be an amount equal to thirty
percent (30%) of her annualized Base Salary for such year, provided, however,
the Executive's annual incentive award for the first year of her employment
hereunder shall be prorated. The Executive's actual annual incentive bonus
amount for each such year may be less than or greater than the target amount
depending upon the degree of attainment of criteria, which shall be established
by the Boards (or committees of the Boards) in advance of each such year. The
Boards (or committees of the Boards) shall determine following the end of each
such year whether the criteria for such year have been attained. The Company
shall pay the Executive her annual incentive award payment in respect of any
year at the same time as bonuses are paid to other executive officers of the
Company, but in no event later than fifteen (15) days after receipt by the
Boards of the audited consolidated financial statements of Holding and the
Company and, if applicable, their Subsidiaries, for the fiscal year for which
the bonus is payable and in no event later than the last day of the calendar
year following the calendar year for which the bonus is payable.
6. Long Term Incentive Plan; Share Option Award. During the Term of
Employment, the Executive shall participate in the Share Option Plan. Pursuant
to the terms and subject to the conditions of the Share Option Plan and the
applicable share option agreement, within ten (10) days after the Effective
Date, the Executive shall be granted an option to purchase 3,500 shares of
Common Shares at a per share exercise price equal to the fair market value of
the shares on the date of grant. The Executive's right to exercise the option
shall vest five percent (5%) on the last day of each calendar quarter
(commencing on the last day of the calendar quarter in which the option is
granted) that the Executive remains employed by Holding and the Company
following the date the option is granted. Subject to the terms of the Share
Option Plan and any applicable share option agreement, the number of shares
subject to the option and the exercise price per share may be adjusted in the
event of a stock split, reverse stock split, reorganization, recapitalization,
or other similar event described in the Share Option Plan and/or any applicable
share option agreement. The Executive shall be eligible for other or additional
long-term incentives in the discretion of the Holdings Board (or a committee of
the Holdings Board). Such other or additional incentive award(s) shall be on a
level, and on terms and conditions, that are commensurate with her positions and
responsibilities at Holding and the Company and are appropriate in light of
corresponding incentive awards to other executives of Holding and the Company.
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7. Other Benefits.
(a) Employee Benefits. During the Term of Employment, the Executive
shall be eligible to participate in all employee benefit plans, programs and
arrangements made available generally to Holding's and the Company's executives
in accordance with the terms and subject to the conditions of such plans,
programs and arrangements, including, without limitation, share option,
profit-sharing, savings (qualified and non-qualified) and other defined
contribution retirement plans or programs, medical, dental, hospitalization,
vision, short-term and long-term disability and life insurance plans or
programs, accidental death and dismemberment protection, travel accident
insurance and any other employee welfare benefit plans or programs that may,
from time to time, be sponsored by Holding, the Company or by a Subsidiary for
the benefit of the Holding's or the Company's employees, including any plans or
programs that supplement the above-listed types of plans or programs, whether
funded or unfunded; provided, however, that nothing in this Agreement shall be
construed to require Holding, the Company or a Subsidiary to establish or
maintain any such plans, programs or arrangements, or to prevent Holding, the
Company or a Subsidiary from terminating any such plan, program or arrangement
in accordance with its terms, except as required by Bermuda law.
(b) Perquisites. During the Term of Employment, the Executive shall
participate in all fringe benefits and perquisites available to executives of
Holding and the Company at levels and on terms and conditions that are
commensurate with her position and responsibilities at Holding and the Company.
The Executive shall also receive such additional fringe benefits and perquisites
as Holding and the Company may, in their discretion, from time to time elect to
provide.
(c) Vacation, Holidays, and Leave. During the Term of Employment, the
Executive shall be entitled to vacation, holidays, and leave in accordance with
the reasonable practices of Holding and the Company and as required by Bermuda
law.
(d) Annual Travel. Each year during the Term of Employment, the
Executive, her spouse and any dependent children, as applicable, shall each be
provided one round-trip ticket between Bermuda and the east coast of the U.S.,
such tickets to be paid for by the Company and used by the Executive, her spouse
and dependent children.
(e) Cost of Living Allowance. During the Term of Employment, the
Company shall pay the Executive a monthly cost of living allowance of $10,000.
(f) Tax Treatment. In the event that, during the Term of Employment,
there is an amendment to the Code governing the taxation of income earned by,
and/or cost of living/housing allowances paid to, a United States citizen
resident in Bermuda that results in both the inclusion in the Executive's income
subject to U.S. taxation of amounts paid by the Company and not previously
subject to such taxation and a decrease in the combined net after-tax Base
Salary and Cost of Living Allowance of the Executive, the Company shall increase
the amount payable hereunder to the Executive as Base Salary and/or Cost of
Living Allowance, as applicable, by an amount such that, with such increase, the
combined net after-tax Base Salary and Cost of Living Allowance payable
hereunder equals the Executive's combined net after-tax
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Base Salary and Cost of Living Allowance payable hereunder immediately prior to
the effective date of any such amendment to the Code.
8. Reimbursement of Business and Other Expenses.
(a) The Executive is authorized to incur reasonable expenses in
carrying out her duties and responsibilities under this Agreement and the
Company shall promptly reimburse the Executive for all such expenses, subject to
documentation in accordance with reasonable policies of Holding and the Company.
(b) Upon presentation of appropriate vouchers or other expense
statements, during the Term of Employment, the Company shall pay for personal
tax advice and/or tax return preparation for the Executive (up to a maximum of
$7,500 per year).
(c) The Company shall be responsible for 100% of any Bermuda payroll
taxes applicable to the compensation payable by the Company to the Executive.
The Company shall be entitled to make deductions from any payments provided for
herein in respect of other amounts that may be required to be withheld from time
to time under any applicable income or employment tax laws or similar statutes
or other provisions of law then in effect, and, with respect to any non-cash
compensation or benefits with respect to which a tax withholding obligation will
arise, may require as a condition to receipt of such compensation or benefit
that the Executive make arrangements with the Company for the satisfaction of
such tax withholding obligation.
(d) Upon presentation of appropriate vouchers or other expense
statements, the Company shall directly pay or reimburse the Executive for the
ordinary and necessary moving expenses (up to a maximum of $70,000) incurred by
her in moving to Bermuda, including the cost of temporary housing reasonably
necessary to permit the Executive to obtain a suitable permanent residence.
(e) Upon presentation of appropriate vouchers or other expense
statements, the Company shall directly pay or reimburse the Executive (or the
Executive's family, in the case of the Executive's death) for the ordinary and
necessary moving expenses (up to a maximum of $50,000) incurred in relocating to
the U.S., provided such relocation occurs within six (6) months following a
termination of employment due to the expiration of the Term of Employment or a
termination of employment with Holding and the Company in accordance with the
provisions of Section 9(a), 9(b) or 9(d) hereof.
(f) In addition to the Company's payment of amounts pursuant to
Sections 8(d) and 8(e), the Company shall pay to the Executive tax gross up
payments so that the net amount retained or benefit received by the Executive
after payment of U.S. Federal, state and local income and employment taxes and
Bermuda payroll taxes (assuming for purposes of calculating such taxes that the
Executive is in the respective highest tax brackets) is equal to the agreed
amount to be reimbursed; provided, however, that a gross up payment shall not be
made with respect to any reimbursement to the extent the related expense is
deductible or is otherwise excludible from the Executive's taxable income. The
dollar limitations set forth in Sections 8(d) and 8(e) shall not apply to gross
up payments made pursuant to this Section 8(f). In addition to
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the Company's payment of amounts pursuant to Section 7(e), to the extent that
such payments are used by the Executive for housing expenses ("Housing
Expenses") which are deductible or otherwise excludible from the Executive's
taxable income under U.S. tax law as in effect on the Effective Date, and such
law changes subsequent to the Effective Date, the Company shall pay to the
Executive tax gross up payments so that the net amount retained or benefit
received by the Executive for Housing Expenses after payment of U.S. Federal,
state and local income and employment taxes (assuming for purposes of
calculating such taxes that the Executive is in the respective highest tax
brackets) is equal to the agreed amount to be paid; provided, however, that a
gross up payment shall not be made with respect to any payment to the extent the
Housing Expenses are deductible or are otherwise excludible from the Executive's
taxable income. The dollar limitation set forth in Section 7(e) shall not apply
to gross up payments made pursuant to this Section 8(f).
9. Termination of Employment.
(a) Termination Due to Death. If the Executive's employment hereunder
is terminated due to her death, her estate or her beneficiaries (as the case may
be) shall be entitled to the following:
(i) payment of Base Salary, in accordance with the Company's
regular payroll practices (based on the Executive's rate of annual Base Salary
at the time of her death), through the date of her death and for an additional
ninety (90) days thereafter;
(ii) if earned by the Executive but not yet paid at the time of
her death, an annual incentive award for the year prior to the year in which the
Executive's death occurred, payable in accordance with Section 5;
(iii) an annual incentive award for the year in which the
Executive's death occurs, prorated based on the target annual bonus and the
number of days worked in such year, and payable by the Company in a lump sum
promptly after her death;
(iv) immediate vesting of all share options, with such options
remaining exercisable for the remainder of their stated terms;
(v) payment of the Standard Benefit;
(vi) continued participation for three (3) months for each of the
Executive's dependents in all medical, dental, hospitalization and other
employee welfare benefit plans, programs and arrangements in which such
dependent was participating as of the date of the Executive's death, on terms
and conditions no less favorable than those applying on such date, and monthly
payments for nine (9) months thereafter of an amount equal to the monthly
premiums paid by the Company for such coverage at the time of the Executive's
termination of employment; and
(vii) payment of the Cost of Living Allowance for three (3)
months following the Executive's death.
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(b) Termination Due to Disability. If the Executive's employment
hereunder is terminated due to Disability, the Executive shall be entitled to
the following:
(i) payment of Base Salary, in accordance with the Company's
regular payroll practices (based on the Executive's rate of annual Base Salary
at the time of the Executive's termination of employment), until commencement of
long-term disability payments, but in no event for more than one year following
the last day of her employment;
(ii) if earned by the Executive but not yet paid at the time of
her termination of employment, an annual incentive award for the year prior to
the year in which the Executive's employment terminates due to Disability,
payable in accordance with Section 5;
(iii) an annual incentive award for the year in which the
Executive's employment terminates, prorated based on the target annual bonus and
the number of days worked in such year, and payable by the Company in a lump sum
promptly following the last day of the Executive's employment;
(iv) immediate vesting of all share options, with such options
remaining exercisable for the remainder of their stated terms;
(v) payment of the Standard Benefit;
(vi) continued participation for three (3) months for the
Executive and each of her covered dependents in all medical, dental,
hospitalization and life insurance coverages and in all other employee welfare
benefit plans, programs and arrangements in which the Executive and such
dependents were participating at the time of the Executive's termination of
employment, and monthly payments for nine (9) months thereafter of an amount
equal to the monthly premiums paid by the Company for such coverage at the time
of the Executive's termination of employment; and
(vii) payment of the Cost of Living Allowance for three (3)
months following the last day of the Executive's employment.
(c) Termination by Holding or the Company for Cause. Holding or the
Company may terminate the Executive's employment for Cause at any time during
the Term of Employment. If the Executive's employment hereunder is terminated by
Holding or the Company for Cause, the Executive shall be entitled to the
following:
(i) payment of Base Salary and Cost of Living Allowance through
the last day of her employment; and
(ii) payment of the Standard Benefit.
For the avoidance of doubt, no annual incentive awards shall be payable to the
Executive upon a termination of the Executive's employment under this Section
9(c).
(d) Termination Without Cause; Termination by the Executive for Good
Reason. Holding or the Company may terminate the Executive's employment without
Cause and
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the Executive may terminate her employment for Good Reason at any time during
the Term of Employment. If the Executive's employment hereunder is terminated
without Cause (and other than due to death or Disability in accordance with
Sections 9(a) or (b)), or for Good Reason, subject to Section 9(h), the
Executive shall be entitled to:
(i) payment of Base Salary, in accordance with the Company's
regular payroll practices (based on the Executive's rate of annual Base Salary
at the time of the Executive's termination of employment), for one year
following the last day of the Executive's employment;
(ii) if earned by the Executive but not yet paid at the time of
her termination of employment, an annual incentive award for the year prior to
the year in which the Executive's termination of employment occurs, payable in
accordance with Section 5;
(iii) an annual incentive award for the year in which the
Executive was terminated, based on the target annual bonus for that year and
payable in accordance with Section 5;
(iv) continued participation for the Executive and each of her
dependents in all medical, dental, hospitalization and life insurance coverages
and all other welfare benefit plans, programs and arrangements in which the
Executive and such dependents were participating at the time of the Executive's
termination of employment for three (3) months from the last day of the
Executive's employment, and monthly payments for nine (9) months thereafter of
an amount equal to the monthly premiums paid by the Company for such coverage at
the time of the Executive's termination of employment;
(v) payment of the Cost of Living Allowance for three (3) months
following the last day of the Executive's employment; and
(vi) payment of the Standard Benefit.
Notwithstanding the foregoing, any payments to be made or benefits to be
provided to the Executive following termination without Cause or for Good Reason
pursuant to this Section 9(d) shall be reduced on a dollar for dollar basis to
the extent of any payments received by or benefits provided to the Executive if
she obtains other employment during the Restriction Period. Such payments and
benefits shall cease entirely if the Executive breaches any of the provisions of
Section 13. However, the Executive shall not have an affirmative duty to seek
other employment or to otherwise mitigate the damages of the Company under this
Section 9(d).
(e) Voluntary Termination Without Good Reason. The Executive may
terminate her employment without Good Reason at any time during the Term of
Employment, provided she gives at least thirty (30) days' advance written
notice. If the Executive terminates her employment with Holding or the Company
without Good Reason (and not because of her death or due to Disability), the
Executive shall have the same entitlements hereunder as provided in Section 9(c)
in the case of a termination by Holding or the Company for Cause.
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(f) Termination of Employment Due to the Expiration of the Term of
Employment. If the Executive's employment terminates as a result of the
expiration of the Term of Employment, the Executive shall be entitled to the
following:
(i) payment of Base Salary and Cost of Living Allowance through
the last day of her employment;
(ii) payment of the Standard Benefit;
(iii) if earned by the Executive but not yet paid at the time of
her termination of employment due to the expiration of the Term of Employment,
an annual incentive award for the year prior to the year in which the
Executive's employment terminates, payable in accordance with Section 5; and
(iv) an annual incentive award with respect to the year in which
the Executive's employment terminates as a result of the expiration of the Term
of Employment, prorated based on the target annual bonus and the number of days
worked in such year and payable in accordance with Section 5.
(g) Benefit Plans. If the Executive, or any of her dependents, is
precluded from continuing participation in any employee welfare benefit plan,
program or arrangement for the period following termination of the Executive's
employment, as provided in Sections 9(a)(vi), 9(b)(vi) or 9(d)(iv), the
Executive shall be provided with the after-tax economic equivalent of any
benefit or coverage foregone. For this purpose, the economic equivalent of any
benefit or coverage foregone shall be deemed to be the total cost to the
Executive or any of her dependents of obtaining such benefit or coverage by
herself on an individual basis. Payment of such after-tax economic equivalent
shall be made quarterly in advance, without discount.
(h) Mutual Release. Notwithstanding any provision herein to the
contrary, Holding or the Company may require that, prior to payment of any
amount or provision of any benefit pursuant to Section 9(d)(i), (d)(ii),
(d)(iii), (d)(iv) or (d)(v), the Executive, on the one hand, and Holding and
the Company, on the other hand, shall have executed a valid mutual release,
pursuant to which the Executive, on the one hand, and Holding and the Company,
on the other hand, shall each mutually release each other and all related
parties, to the maximum extent permitted by law, from any and all claims either
Party may have against the other as of the date of termination that relate to or
arise out of the Executive's employment or termination of employment, except
such claims arising under this Agreement, and any waiting periods contained in
such mutual release shall have expired.
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10. Indemnification and Officers' & Directors' Insurance.
(a) Holding and the Company shall indemnify the Executive (and her
legal representatives or other successors and heirs), except in relation to any
fraud or dishonesty of which she may be guilty in relation to Holding or the
Company, to the fullest extent permitted by the laws of Bermuda, as in effect at
the time of the subject act or omission, or the Certificate of Incorporation and
Bye-Laws of Holding or the Company as in effect at such time or on the date of
this Agreement, whichever affords or afforded greater protection to the
Executive; and the Executive shall be entitled to the protection of any
insurance policies which Holding, the Company or a Subsidiary elects to maintain
generally for the benefit of Holding, the Company and their Subsidiaries'
directors and officers, against all costs, charges and expenses whatsoever
incurred or sustained by the Executive or her legal representatives in
connection with any Proceeding to which she (or her legal representative or
other successors and heirs) may be made a party by reason of her being or having
been a director, officer or employee of Holding, the Company or any of their
Subsidiaries. If any Proceeding is brought or threatened against the Executive
in respect of which indemnity may be sought against Holding or the Company
pursuant to the foregoing, the Executive shall notify Holding or the Company
promptly in writing of the institution of such Proceeding and Holding and the
Company shall assume the defense thereof and the employment of counsel and
payment of all fees and expenses; provided, however, that if a conflict of
interest exists between Holding and the Company and the Executive such that it
is not legally practicable for Holding or the Company to assume the Executive's
defense, the Executive shall be entitled to retain separate counsel reasonably
acceptable to Holding or the Company and the payment of all fees and expenses of
such separate counsel shall be assumed by Holding or the Company.
(b) In the event that Holding or the Company's common shares are
publicly traded, at all times while the Executive is employed by Holding and the
Company (and following such employment for such period of time as is customary
for companies in the same industry as Holding and the Company and of comparable
size), the Executive shall be covered under an officers' and directors'
liability insurance policy maintained by Holdings and the Company. Such coverage
shall be in an amount that is customary for companies in the same industry as
Holding and the Company and of comparable size.
11. Assignability; Binding Nature.
(a) This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective successors, heirs (in the case of the
Executive) and assigns.
(b) Holding's and the Company's rights or obligations under this
Agreement may be assigned or transferred by Holding or the Company only pursuant
to a merger, consolidation or similar transaction in which Holding or the
Company are not the continuing entities, or a sale or liquidation of all or
substantially all of the assets and business of the Company; provided that the
Executive's written consent shall be required prior to the assignment or
transfer of Holding's or the Company's rights or obligations hereunder, and
provided further that the assignee or transferee is the successor to all or
substantially all of the assets and business of Holding or the Company and such
assignee or transferee assumes the liabilities, obligations and duties of
Holding or the Company, as contained in this Agreement, either contractually or
as
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a matter of law. In the event of any sale of assets and business or liquidation
as described in the preceding sentence, Holding or the Company shall use their
best efforts to cause such assignee or transferee to expressly assume the
liabilities, obligations and duties of Holding or the Company hereunder and
shall cause such assignee or transferee to deliver a legal, valid and
enforceable written instrument in form and substance satisfactory to the
Executive and her counsel to such effect.
(c) No rights or obligations of the Executive under this Agreement may
be assigned or transferred by the Executive other than her rights to
compensation and benefits, which may be transferred only by will or operation of
law, or as provided in Section 16(e).
12. Representations. Holding and the Company represent and warrant that (a)
they are fully authorized by action of the Boards (and of any other Person whose
action is required) to enter into this Agreement and to perform their
obligations hereunder, and (b) upon the execution and delivery of this Agreement
by the Parties, this Agreement shall be the valid and binding obligation of
Holding and the Company, enforceable against Holding and the Company in
accordance with its terms.
13. Covenant Not to Compete; Confidentiality.
(a) Covenant Not to Compete.
(i) The Executive agrees that for so long as the Executive is
employed by Holding and the Company and for a period of one year following the
termination of the Executive's employment for any reason (other than a
termination of the Executive's employment resulting from the expiration of the
Term of Employment), the Executive shall not directly or indirectly:
(A) enter into or attempt to enter into a Restricted
Business (as defined below) in the United States or other jurisdictions in which
Holding, the Company or their Subsidiaries conduct business or are planning to
conduct business within one year thereafter as a principal, partner, employee,
consultant, agent, broker, intermediary, shareholder, investor, officer or
director (other than as a holder of not in excess of 1% of the outstanding
voting shares of any publicly traded company);
(B) induce or attempt to persuade any former or then-current
employee, agent, manager, consultant or director of Holding, the Company or a
Subsidiary to terminate such employment or other relationship in order to enter
into any business relationship or business combination with the Executive in
competition with Holding's, the Company's or a Subsidiary's business;
(C) use contracts, proprietary information, trade secrets,
confidential information, customer lists, mailing lists, goodwill, or other
intangible property used or useful in connection with the business of Holding,
the Company or a Subsidiary; or
(D) solicit or otherwise attempt to establish for the
Executive or any other Person any business relationship with any Person which
is, or during the one year
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period preceding the Executive's date of termination of employment was, a
customer, client or distributor of Holding, the Company or a Subsidiary.
(ii) For the purposes of this Section 13, a "Restricted Business"
shall mean a financial guaranty reinsurance business, whether existing or to be
formed, without regard to its claims-paying ability.
(iii) The covenants of the Executive set forth in this Section 13
shall be null and void and without any force or effect upon the effective date
of any liquidation or dissolution of Holding or the Company. For purposes of
clarity, an amalgamation or similar combination of Holdings and Holdings II
shall not constitute a liquidation or dissolution of Holding.
(iv) It is the desire and intent of the Parties that the
provisions of this Section 13 shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular portion of this
Section 13 shall be adjudicated to be invalid or unenforceable, this Section 13
shall be deemed amended to delete therefrom the portion thus adjudicated to be
invalid or unenforceable, such deletion to apply only with respect to the
operation of this Section 13 in the particular jurisdiction in which such
adjudication is made. The Executive acknowledges that she has received good and
valuable consideration for the restrictive covenants contained in this Section
13.
(b) Confidentiality. The Executive acknowledges that she will develop
and be exposed to information that is or will be proprietary to Holding, the
Company and their Subsidiaries, including, but not limited to, customer lists,
marketing plans, pricing data, product development plans and other intangible
information. Such information shall be deemed confidential to the extent such
information is not generally known to the public or in Holding's or the
Company's industry. The Executive agrees to use such information only in
connection with the performance of her duties hereunder and to maintain such
information in confidence; provided, however, that the Executive may disclose
such information when required to by law or by a court, government agency,
legislative body or other Person with apparent jurisdiction to order her to
divulge, disclose or make accessible such information. Further information
regarding the Executive's duties with respect to confidential information and
other matters is contained in the Company's Code of Conduct which the Executive
is required to acknowledge as a condition to employment with the Company.
(c) Company Property. Promptly following any termination of the
Executive's employment with Holding or the Company, the Executive shall return
to Holding or the Company all property of Holding, the Company and their
Subsidiaries, and all copies thereof in the Executive's possession or under her
control.
(d) Non-Disparagement. During the Term of Employment and thereafter
following any termination of the Executive's employment with Holding or the
Company, (i) neither the Executive, on the one hand, nor Holding or the Company,
on the other hand, shall engage in conduct that could be disruptive in any way
to the business or operations of the other or that could wrongfully interfere
therewith, and (ii) neither the Executive, on the one hand, nor
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Holding or the Company, on the other hand, shall make at any time in the future
any derogatory comments concerning the other or the business or operations of
the other; provided, however, that nothing in this Section 13(d) shall be deemed
to prevent either Party from enforcing the other terms of this Agreement.
14. Governing Law and Arbitration; Waiver of Jury Trial. This Agreement
shall be governed by the laws of the State of New York, without reference to
principles of conflicts or choice of law under which the law of any other
jurisdiction would apply. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by binding
arbitration in New York, New York, before a sole arbitrator, in accordance with
the laws of the state of New York. The arbitration shall be administered by
Judicial Arbitration & Mediation Services, Inc., or a successor thereto,
("JAMS") in accordance with any streamlined or expedited (rather than
comprehensive) JAMS procedures then in effect. If Holding, the Company and the
Executive do not agree on an arbitrator within thirty (30) days of the date any
claim for arbitration hereunder is asserted, Holding and the Company, on the one
hand, and the Executive, on the other hand, each shall appoint one arbitrator,
who shall appoint a third arbitrator to settle the dispute or controversy. If
JAMS does not exist at the time of the dispute or controversy, the American
Arbitration Association shall be substituted for JAMS for purposes of this
Section 14. Holding or the Company, on the one hand, and the Executive, on the
other hand, shall each pay one-half of all arbitration fees and expenses arising
in connection with a dispute or controversy governed by this Section 14 and each
Party shall be responsible for payment of its own attorney's fees. Judgment may
be entered on the arbitrator's award in any court having jurisdiction.
15. Notices. Any notice required or desired to be delivered under this
Agreement shall be in writing and shall be delivered personally, by courier
service, by registered mail, return receipt requested, or by telecopy and shall
be effective upon actual receipt by the Party to which such notice shall be
directed, and shall be addressed as follows (or to such other address as the
Party entitled to notice shall hereafter designate in accordance with the terms
hereof):
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If to Holding or the Company:
Courier Address:
RAM Re House
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Chief Executive Officer
(with a copy to the General Counsel)
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Regular Mail:
RAM ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Chief Executive Officer
(with a copy to the General Counsel)
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Executive, to her at her address as filed with the Company's
personnel records, with a copy to:
[_____________]
16. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire understanding
and agreement between the Parties concerning the subject matter hereof and, as
of the Effective Date, supersedes all prior agreements, understandings,
discussions, negotiations and undertakings, whether written or oral, between the
Parties with respect thereto. This Agreement shall serve as a written statement
of employment for purposes of Section 6 of the Bermuda Employment Act of 2000.
There is no applicable collective agreement.
(b) Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law so as to achieve the purposes of this Agreement.
(c) Amendment or Waiver. No provision in this Agreement may be amended
unless such amendment is set forth in writing and signed by the Parties. No
waiver by either Party of any breach of any condition or provision contained in
this Agreement shall be deemed a waiver of any similar or dissimilar condition
or provision at the same or any prior or subsequent time. To be effective, any
waiver must be set forth in writing and signed by the waiving Party.
(d) Headings. The headings of the sections contained in this Agreement
are for convenience only and shall not be deemed to control or affect the
meaning or construction of any provision of this Agreement.
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(e) Beneficiaries/References. The Executive shall be entitled, to the
extent permitted under any applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit hereunder following the
Executive's death by giving Holding or the Company written notice thereof. In
the event of the Executive's death or a judicial determination of her
incompetence, reference in this Agreement to the Executive shall be deemed,
where appropriate, to refer to her beneficiary, estate or other legal
representative.
(f) Survivorship. Notwithstanding anything contained herein to the
contrary, if the Executive's employment with Holding or the Company terminates
during the Term of Employment, Sections 9, 10, 11, 13, 14, 15, and 16 of this
Agreement, and the Parties' respective rights and obligations under such
provisions, shall survive until all of the Parties' obligations under such
provisions are satisfied.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which, when
taken together, shall constitute one and the same instrument.
(h) Code Section 409A. To the extent applicable, it is intended that
this Agreement and any payment made hereunder shall comply with the requirements
of Section 409A of the Code, and any related regulations or other guidance
promulgated with respect to such Section by the U.S. Department of the Treasury
or the Internal Revenue Service ("Code Section 409A"). Any provision that would
cause the Agreement or any payment hereof to fail to satisfy Code Section 409A
shall have no force or effect until amended to comply with Code Section 409A,
which amendment may be retroactive to the extent permitted by Code Section 409A.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
RAM HOLDINGS LTD.
By:
------------------------------------
Its:President and
Chief Executive Officer
RAM HOLDINGS II LTD.
By:
------------------------------------
Its: President and
Chief Executive Officer
RAM REINSURANCE COMPANY LTD.
By:
------------------------------------
Its: President and
Chief Executive Officer
EXECUTIVE
----------------------------------------
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