Exhibit 10.2
AGREEMENT
THIS AGREEMENT is made and entered into as of the 20th day of March 2006,
by and between Eric B. Dana ("Employee"), a citizen and resident of North
Carolina, and Triad Guaranty Inc., its subsidiaries and affiliates (collectively
referred to as "Company");
WHEREAS, Employee is currently employed by the Company as Senior Vice
President and Chief Financial Officer and serves as a director of its
subsidiaries; and
WHEREAS, by the execution of this Agreement, Employee will resign as an
officer and employee of Company and director of its subsidiaries effective May
18, 2006; and
WHEREAS, Company and Employee mutually acknowledge that this Agreement is
entered into pursuant to and in full and complete settlement of all obligations
under the Employment Agreement dated May 19, 2005 (the "Employment Agreement")
and that neither the Employee nor Company has any further obligation under the
Employment Agreement; and
WHEREAS, Company has requested and Employee has agreed to assist the
Company by providing transition services upon request for the period beginning
May 18, 2006, and ending on May 18, 2007; and
WHEREAS, in consideration of the mutual covenants hereinafter contained,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
I.
Employee hereby resigns as Senior Vice President and Chief Financial
Officer of Company and director of its subsidiaries effective May 18, 2006.
II.
Employee and Company mutually agree that the Employment Agreement is
terminated as a result of such resignation and that neither Employee nor Company
has any further obligation under the Employment Agreement.
III.
In consideration of Employee's execution of this Agreement, Company will
provide Employee with the following benefits:
Upon the expiration of the seven (7) day period described in Paragraph XI
(c) of this Agreement (the "Effective Date"), Company will be obligated to pay
Employee a payment of $372,884 in twenty-four (24) semi-monthly pay periods
beginning May 31, 2006, in accordance with the Company's usual practice. All
payments will be subject to required federal and state withholding.
Employee and/or his family will be entitled to COBRA benefits, if eligible,
under the Company's medical and dental plans beginning May 19, 2006 and
continuing for up to eighteen (18) months. Company will subsidize such premiums
through the earlier of May 18, 2007, or the discontinuance of COBRA benefits.
Employee will be entitled to convert his group life insurance policy to an
individual policy, which said individual policy will be paid for solely by
Employee and with no contribution from Company.
Employee's contribution to the Company's 401 (K) plan with Company match,
if any, will terminate effective May 18, 2006.
Employee will be entitled to standard executive outplacement services at
Company expense.
Company may request, and Employee agrees to provide, assistance with the
transition to a new Chief Financial Officer for the period beginning on May 18,
2006, and ending on May 18, 2007. Employee will be paid for the hours actually
worked at the rate of $150.00/hour.
IV.
Employee is not eligible to participate in the following Company benefits:
1. Short term disability insurance
2. Long term disability insurance
3. Employee stock purchase plan
4. Medical and dental benefits (except as noted in III above)
V.
Other than the payments and benefits provided for in Paragraph III above,
Company shall have no obligation to make any payments to or for the benefit of
Employee or to provide any benefits of any kind available to other employees of
Company, and Employee expressly releases Company of and from any obligation to
make any other payments or provide any benefits of any kind related to his
employment by Company; provided, however, that this Agreement will not effect
benefits which are or become vested on or before May 18, 2007. Employee agrees
to refrain from buying, selling or transferring the Company's stock, or
exercising options derived from the Company's stock, until January 1, 2007,
without the prior approval of the Company.
VI.
For one year from the date of this Agreement, Employee shall not, either as
an individual on his own account; as a partner, joint venturer, employee, agent,
or salesman for any person; as an officer, director or stockholder (other than a
beneficial holder of not more than 5% of the outstanding voting stock of a
company having at least 250 holders of voting stock) of a corporation; or
otherwise, directly or indirectly:
1. Solicit or recruit any person who is an employee or agent of the
Company, either now or during such period, for employment in the
private mortgage insurance business or for the purpose of soliciting
or attempting to solicit any of the Company's customers or prospective
customers.
2. Solicit, directly or indirectly, any of the Company's then current or
prospective customers.
3. Engage as a consultant to, or employee or agent of, any mortgage
insurer, which competes, directly or indirectly, with the Company.
Employee and the Company agree and acknowledge that the Company does
business on a nationwide basis, with customers located throughout the United
States, and that any breach by Employee of the restrictive covenant contained
herein would immeasurably and irreparably damage the Company. Employee and the
Company agree and acknowledge that the duration, scope and geographic areas
applicable to the restrictive covenant in this Section VI are fair, reasonable
and necessary to protect legitimate business interests of the Company and that
adequate compensation has been received by Employee for such obligations.
VII.
This Agreement shall terminate immediately upon Employee's death and any
amounts not yet paid by the Company will be immediately due and payable.
VIII.
(a) Employee, for himself and his heirs, executors, administrators,
successors, and assigns (collectively referred to hereafter in the Agreement as
"Releasors") hereby release, acquit and forever discharge Company, together with
any affiliated or subsidiary corporations, and their respective present and
former officers, directors, employees and agents (collectively referred to
hereafter in the Agreement as "Releasees"), and their respective executors,
administrators, successors, and assigns of and from all claims whether or not
previously asserted against Releasees. This release specifically includes all
claims by or on behalf of Releasors against Releasees, together with any and all
claims, which might have been asserted by or on behalf of Releasors against
Releasees in any suit, claim or charge on account of any matter or things
whatsoever up to and including the date of the execution of the Agreement.
Releasors further agree that they will not institute or be a party to, whether
directly or indirectly, any civil action against Releasees under any federal,
state or local authority or any common law theory (whether founded in tort or in
contract), including but not limited to, 42 U.S.C. ss. 1981, Title VII of the
Civil Rights Act of 1964, the Equal Pay Act of 1963, the Civil Rights Act of
1991, the Age Discrimination in Employment Act, the Americans With Disabilities
Act, the North Carolina Handicapped Persons Protection Act, the Employee
Retirement Income Security Act of 1974, the Family and Medical Leave Act, or any
similar legislation, constitutional provision, executive order or regulation, or
any common law theory (whether founded in tort or contract) in connection with
any act, state of facts, or occurrence or omission, whether or not previously
asserted, either occurring before or existing on the date of the execution of
this Agreement.
(b) In the event of the initiation of any proceeding by Releasors against
any of Releasees asserting a claim released by this Paragraph VIII, Releasees
shall be entitled to plead this release in bar to any such claim and to assert a
counterclaim against any such Releasors alleging breach of this Agreement.
Releasors shall indemnify and hold harmless Releasees of and from any and all
loss or damage whatsoever, costs, direct and indirect, and attorneys' fees
incurred in the defense of such proceeding and prosecution of counterclaim.
(c) Notwithstanding the above, Releasors will not be penalized in any
manner for bringing an action that challenges the validity of the waiver of
claims under the Age Discrimination in Employment Act and/or the Older Workers
Benefit Protection Act ("the ADEA waiver"). In the event that Releasors
successfully challenge the ADEA waiver and prevail on the merits of their claims
under the ADEA, Releasees will be entitled to offset any recovery by amounts
already paid under this Agreement. In the event that Releasees prevail in
Releasors' challenge to the ADEA waiver or on the merits of Releasors' ADEA
claim, Releasees will be entitled to any and all remedies provided by law.
IX.
Employee agrees to reasonably cooperate with Company in assisting in the defense
of any existing or future charges, claims, demands, complaints or lawsuits filed
against Company, any of its related companies or subsidiaries or parent company
that involve facts or decisions in which he had input or knowledge.
X.
Employee acknowledges and agrees that he will never disclose to anyone any of
Company's trade secrets or confidential or proprietary information.
XI.
Employee specifically acknowledges the following:
(a) That he is advised in writing that he has the right to take at least
twenty-one (21) days to consider this Agreement;
(b) That he is advised in writing that he has the right and may consult
with an attorney before executing this Agreement and acknowledges that
he has had the opportunity to consult with an attorney;
(c) That he has seven (7) days following his execution of this Agreement
to revoke this Agreement. To revoke this Agreement, Employee should
advise Company, and specifically Earl F. Wall, General Counsel, in
writing of his decision to revoke it at or before the conclusion of
the seven (7) day period;
(d) That he recognizes that he is specifically releasing, among other
claims, any claims under the Age Discrimination in Employment Act of
1967 and all amendments thereto;
(e) That he is not waiving rights or claims that may arise after the date
that this Agreement is executed.
XII.
Employee represents that no promise, inducement or agreement not herein
expressed has been made to him, and that this Agreement is the entire agreement
between the parties hereto.
XIII.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, successors and
assigns.
XIV.
Employee shall not defame, disparage or demean the Company or any director,
officer, employee or agent of the same in any manner whatsoever, and directors
and officers of the Company shall not defame, disparage or demean Employee in
any manner whatsoever. This paragraph shall not preclude either party from
responding truthfully to inquiries made in connection with any legal or
governmental proceeding pursuant to subpoena or other legal process. As a
material condition of this Agreement, Employee agrees that he will not appear as
a witness in any matter adverse to the Company except under subpoena and will
not provide any consultative services that are adverse to the Company in any
way. Employee also agrees that if he is at any time requested to provide
information, whether by subpoena or otherwise, in any matter involving or
affecting the Company in which Employee was involved during his tenure as an
employee, Employee will (1) notify the Company as soon as practicable, but in
any event before providing the requested information; and (2) provide the
Company the opportunity to participate in any meeting or proceeding to provide
such information. In addition, unless Company has filed or otherwise disclosed
this Agreement in a public forum, Employee shall maintain the terms and
existence of this Agreement in strict confidence; provided, however, Employee
may advise his wife, attorney, tax and financial advisors of this Agreement on
the condition that they agree to maintain confidentiality as if they were a
party to this Agreement.
XV.
Employee acknowledges that he has carefully read this Agreement and knows
and understands its contents. Employee further certifies that his signing of
this Agreement acknowledges his intent to be bound by the provisions of this
Agreement.
XVI.
The Parties agree that if any provision or part of this Agreement is deemed to
conflict with superseding federal or state law, such provision or part shall be
deleted from the Agreement and the remainder of the Agreement shall remain in
full force and effect.
XVII.
This Agreement shall be construed in accordance with the laws of the state of
North Carolina.
This the 20th day of March 2006.
/s/ Eric B. Dana (SEAL)
-----------------------
Eric B. Dana
TRIAD GUARANTY INC.
on behalf of itself, its subsidiaries and
affiliates
By: /s/ Mark K. Tonnesen 3/30/06
----------------------------