Exhibit 10.1


EMPLOYMENT
AGREEMENT


THIS
AGREEMENT, made and entered into as of October 5, 2006 by and
between Assured Guaranty Ltd.,(“AGL”) a Bermuda company , Assured Guaranty
Corp., (“AGC”) a Maryland corporation (collectively referred to as the “Company”),
and Robert Bailenson (the “Executive”).


WHEREAS, the Company
desires to employ the Executive under the terms and conditions set forth below;
and


WHEREAS, the
Executive wishes to accept such employment under such terms and conditions.


NOW,
THEREFORE, in consideration of the promises and mutual
covenants contained herein and for other good and valuable consideration,
the Company and the Executive (the “Parties”) hereby agree as follows:­


1.         Employment


The Company hereby employs the Executive, and the Executive hereby
accepts employment with the Company, for the term of this Agreement as set
forth in Section 2 below, in the position and with the duties and
responsibilities set forth in Section 3 below, and upon such other terms and
conditions as are hereinafter stated.


2.         Term and Place of Performance


(a)                      The
term of Executive’s employment under this Agreement shall commence as of the
date of this Agreement (the “Commencement Date”) and shall continue, subject to
the terms and conditions of this Agreement, until terminated by any party on
written notice to the other parties.


(b)                     Executive
shall perform his duties for AGL primarily at AGL’s offices in Bermuda. Executive
shall perform his duties for AGC primarily at AGC’s offices in the New York
City metropolitan area.


(c)                      The obligations of the Company under this Agreement shall be contingent
upon the maintenance of a work permit by the Government of Bermuda and any
other permits required by the Government of Bermuda. The maintenance of such
permits throughout the term of this Agreement shall be a continuing condition
to the Company’s obligations under this Agreement. If such permits are not
maintained the Company may terminate Executive’s employment or permit Executive
to perform his duties to AGL at some location outside of Bermuda. If Executive
has used his best efforts to



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maintain
the permits and they are terminated or revoked by the Government of Bermuda,
and his employment is terminated then the Executive shall be entitled to the
benefits provided for Termination Without Cause under Section 10(e).


3.         Positions,
Duties. and Time Devoted to the Company & Its Affiliates


(a)                      During
the term of the Agreement, the Executive shall be employed as the Chief Accounting
Officer of AGL and Chief Accounting Officer of AGC, or such other senior
financial position as designated by the chief executive officer of AGL, with
such powers and duties normally attendant to such offices and such other duties
as may be assigned to the Executive. Executive shall answer to and be subject
to the direction of the chief financial officer or the chief executive officer of
AGL.


(b)                     The Executive agrees to remain in the employ of the Company during the
term of this Agreement, to devote his full business time exclusively to the
business affairs of the Company, and to perform his duties faithfully. Subject
to the demands of his position with the Company, the Executive shall be
permitted to:­


(i)                         deliver
lectures and fulfill speaking engagements; and


(ii)                      engage
in industry, charitable and community activities; provided, however, that any
expenses, such as for travel, incurred by the Executive in connection with such
activities shall be for the personal account of the Executive and shall not be
reimbursed by the Company, unless based on managements’ view it is done for the
overall benefit of the Company in forwarding its image, business abilities or
quality of staff.


(c)                      AGL
and AGC will fund the salary and other compensation and benefits under this
Agreement specified above in proportion to the percentage of time executive
performs work for each company.


4.         Salary


For services rendered by the Executive to the Company during the term
of this Agreement while he is employed by the Company, the Executive shall be
paid a minimum annual base salary equal to Executive’s current annual salary.


5.         Reserved


6.         Annual Performance Incentive Plan


Executive shall be eligible to participate in
the Company’s annual incentive program.



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7.         Long-Term
Incentive Awards


Annual Long-Term Incentive Awards—Executive
will be eligible to participate in the AGL Long Term Incentive Plan or similar
future plans (“LTIP”). The amount of any award made to Executive under LTIP
will be based on the profitability of the Company and Executive’s performance
and will be subject to the discretion of the Compensation Committee of AGL’s
Board of Directors. All Long-Term Incentive awards will be subject to the terms
and conditions of the LTIP.


8.             Employee Benefits 


(a)                 During
the term of his employment, the Executive shall be entitled to participate in
AGC’s employee benefits programs consistent with such benefits offered to its
employees generally, subject to satisfaction of all eligibility requirements of
general applicability and all other terms and conditions of the plans.


(b)                The
Executive shall be entitled to vacation as generally provided to AGC’s officers
and employees.


9.             Business Expense Reimbursement and Perquisites


(a)                      During
the term his employment, the Executive shall be entitled to be reimbursed by
Company for all reasonable out-of-pocket travel and entertainment expenses
incurred by him in performing services under this Agreement, provided that the
Executive submits reasonable documentation with respect to such expenses.


(b)                     During
the term of his employment, Executive shall be entitled to reimbursement for
the reasonable cost of tax preparation and financial planning services.


(c)                      The
Executive shall be entitled to reimbursement for reasonable initiation and
annual dues at a club of his selection in the New York City metropolitan area,
as approved by the Chief Executive Officer.


(d)                     The
Executive shall be entitled to other perquisites as generally made available to
senior officers of AGC.


(e)                      The
Executive shall be indemnified by the Company in accordance with AGL’s and AGC’s
By-laws, Articles of Incorporation and other governing documents.


(f)                        This
agreement includes the Gross –Up provisions set forth in Exhibit A hereto,
which is incorporated herein by reference.



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10.          Termination of Employment


(a)                      Termination Due to Death


In the event of the Executive’s death during the term of his employment
hereunder, the estate or other legal representative of the Executive shall be
entitled to:


(i)                                                 continuation
of the Executive’s annual base salary provided in Section 4 above through the
last day of the month in which the Executive dies; and


(ii)                                              any
rights and benefits available under any employee benefits plans, policies, and
practices of the Company, determined in accordance with the applicable terms
and provisions of such plans, policies, and practices as in effect on the date
of the Executive’s death.


(b)                     Termination Due to Disability


In the event the Executive’s employment by the Company
is terminated because he is adjudged by the Compensation Committee to be
disabled within the meaning of the Company’s long-term disability plan, the
Executive shall be entitled to:


(i)                                     continuation
of the annual base salary provided in Section 4 above through the last day of
the month in which the Executive’s employment with the Company terminates due
to disability; and


(ii)                                  any rights and benefits available under any
employee benefits plans,
policies, and practices of the Company, determined in accordance with the applicable terms and provisions of such plans, policies, and
practices as in effect on the date of the Executive’s termination of
employment.


(c)       Termination Due to Retirement


The Executive may terminate his employment
with the Company by retirement by giving written notice to the Company any time
after he is at least 55 years old and has five or more years of service with
the Company. In the event the Executive’s
employment by the Company is terminated because of retirement, the Executive
shall be entitled to:


(i)                                     continuation
of the annual base salary provided in Section 4 above through the date the
Executive’s employment with the Company terminates due to retirement; and



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(ii)                                  any rights and benefits available under any
employee benefits plans,
policies, and practices of the Company, determined in accordance with the applicable terms and provisions of such plans, policies, and
practices as in effect on the date of the Executive’s termination of
employment; and


(iii)                               in the discretion of the Compensation Committee of AGL’s Board of
Directors (Compensation Committee approval is not required if Executive retires
after age 60 with at least ten (10) years of service), any AGL restricted
shares and stock options held by Executive upon retirement will continue to
vest in accordance with the schedules set forth in the award grants, and stock options
to purchase shares of AGL stock will be exercisable until the expiration of
their original term. Such restricted stock and stock options will otherwise be
subject to the provisions of the LTIP.


(d)       Termination by the Company for Cause


(i)                                     The
employment of the Executive under this Agreement may be terminated by the
Company for Cause (“Termination For Cause”). For purposes of this Agreement, “Cause”
shall mean;


(A)                       conviction
or admission of guilt by the Executive of a felony involving moral turpitude;


(B)                         violations
of Section 11 or 12 of this Agreement; or


(C)                         the
Executive, in carrying out his duties, has committed (1) a willful, serious,
and continued failure to perform his duties, (2) willful and serious misconduct
or (3) a willful and material breach of the Company Code of Conduct; provided,
however, that any act, or failure to act, by the Executive shall not constitute
Cause for purposes of this Section 10(d)(i)(C) if such act or failure to act,
was committed, or omitted, by the Executive in good faith and in a manner he
reasonably believed to be in the best interests of the Company.


(ii)                                  In
the event of a Termination For Cause all grants under the LTIP, the Performance
Retention Plan or other similar incentive plans to Executive, before or after
the date of this agreement, shall terminate and be forfeited as of the date of
the Termination For Cause and the Company shall have no further obligation to
Executive with respect to such grants. The Executive shall be entitled only to:


(a)                           continuation
of the annual base salary provided in Section 4



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above through the
date of the Termination For Cause; and


(b)                          any other rights and benefits, if any, available to employees
terminated for cause under employee benefit plans, policies, and practices of
the Company, determined in accordance with the applicable terms and provisions
of such plans, policies, and practices, as in effect on the date of his
termination of employment.


(e)       Termination Without Cause


(i)                                     Anything
in this Agreement to the contrary notwithstanding, the Executive’s employment
may be terminated without Cause as provided in this Section 10(e) (“Termination
Without Cause”). Termination Without Cause shall mean either (1) a termination by
the Company of the Executive’s employment, (other than a Termination For Cause);
or (2) a termination by the Executive due to a Good Reason Resignation. A Good
Reason Resignation shall mean termination of employment that is voluntary on
the part of the Executive but is due to: (i) a significant reduction of the
Executive’s responsibilities, title or status resulting from a change in such
title or status, or from the assignment to the Executive of any duties
inconsistent with this agreement; or (ii) a reduction in the Executive’s
salary, bonus potential, or a material reduction of benefits.


(ii)                                  In
the event there is a Termination Without Cause, the Executive shall be entitled
to the following:


(A)                       continuation
of Executive’s then current annual base salary until the date which is
twenty-four months after the last day of the month in which such termination
occurs (“Payment Period”); provided, however, that payments pursuant to this
Section 10(e) are subject to the provisions of Section 13 and further provided,
that any payments made under any AGC or AGL severance plan will reduce by an
equal amount any payments to be made hereunder as salary continuation;


(B)                         Base
Bonus for the year of Termination Without Cause, subject to a pro rata
reduction to reflect the portion of the performance period after the
termination occurs, payable within 30 days of the Termination Without Cause,
and a Base Bonus for each 12 month period of the Payment Period, payable within
5 days of the end of each such 12 month period. The Base Bonus shall equal the
average of the Executive’s annual cash bonus for the three (3) years proceeding
the year of Termination Without Cause.



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(C)                         during the Payment Period continuation of coverage under the employee
benefit plans of the Company in which the Executive was participating at the
time of his termination of employment; provided, however, that (1) except as
required by applicable law, any such continued coverage shall terminate upon
the subsequent full-time employment of the Executive, and (2) if the Company is
unable to continue such coverage, then they shall provide the Executive with
economically equivalent employee benefits to the extent such benefits are
reasonably available.


(D)                        Any
awards of restricted Company stock and options to purchase ordinary shares of
Company stock held by Executive will continue to vest and stock options shall
be exercisable in accordance with the terms of the awards until the end of the
Payment Period.


(ii)                                  At
the discretion of the Compensation Committee, the present value of any amounts
payable to the Executive pursuant to Section 10(e) may be paid to the Executive
in a lump sum. The interest rate used in
determining the present value shall be the interest rate on one-year United
States Treasury Bills at the auction of such instruments nearest in time to the
date of the Executive’s termination of employment under this Section 10(e). Any
such lump sum payment by the Company to the Executive shall not affect the
obligations of the Company to provide the other benefits described in Section
10(e).


(iii)                               The obligation of the
Company to make or provide the payments and benefits set forth in this Section
10(e) shall be strictly conditioned on the Executive executing and returning to
the Company a general release and waiver of all claims against the Company in
the form as submitted by the Company.


(iv)                              During the Payment Period the Executive shall make a good faith effort
to seek other employment consistent with Executive’s professional
qualifications and experience in Executive’s most recent position with the
Company. If Executive attains other employment during the Payment Period he
shall promptly so notify the Company. As a condition of
the Executive’s continuing benefits under this Section 10(e), the Company may
require the Executive to certify, from time to time, that he has not been employed
by a new employer. The Company shall reduce any amounts payable
to Executive under this Section 10(e) by the amount of any income received by
the Executive from the new employer, as reported on Executive’s W-2 or
equivalent form, issued by the new employer with respect to the Payment Period.
Executive shall cooperate fully with the Company in calculating the amount of
any reduction, including providing



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the Company copies of pay stubs and W-2’s
from the new employer.


(f)        Voluntary Termination by the Executive


The Executive may voluntarily terminate his employment with the Company
at any time. Such termination shall constitute a voluntary termination and, in
such event, the Executive shall be limited to the same rights and benefits as
applicable to Termination For Cause.


(g)       Change in Control


(i)                                     The
term Change in Control shall be as defined in the Company’s Long-Term Incentive
Plan as of the date hereof. In the event of a Change in Control, all stock
based awards in which the Executive is not yet vested shall become fully vested
and stock options shall be exercisable for their original term. Following a
Change of Control the Company may not reduce Executive’s eligibility for
retiree health benefits or for 15 months following a Change of Control reduce
the level of employer contributions to the Company’s retirement plans on behalf
of the Executive below the rate in effect on December 31st of
the year preceding the Change of Control; in each case such benefit may be
provided through the Company’s non-qualified plans.


(ii)                                  If
Executive is terminated by the Company for any reason following a Change of
Control or the Executive resigns for any reason during the twelve month period beginning
three (3) months following a Change in Control (“COC Termination”), Executive
shall be entitled to the following:


(A)                       continuation
of Executive’s then current annual base salary until the date which is
thirty-six (36) months after the last day of the month in which the COC
Termination occurs (“COC Payment Period”); provided, however, that payments
pursuant to this Section 10(g) are subject to the provisions of Section 13 and
provided, however, that any payments made under any AGC or AGL severance plan
will reduce by an equal amount any payments to be made hereunder as salary continuation;


(B)                         COC
Base Bonus for the year of termination, subject to a pro rata reduction to
reflect the portion of the performance period after the termination occurs,
payable within 30 days of the COC Termination, and a COC Base Bonus for each 12
month period of the COC Payment Period, payable within 5 days of the end of
each such 12 month period. The COC Base Bonus shall equal 150% of the average
of the Executive’s annual cash bonus for the three (3) years proceeding the
year of COC Termination.



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(C)                         the
Company shall continue to make the same level of employer contributions to the
Company’s retirement plans on behalf of the Executive with respect to salary
continuation and bonus payments, as described in this Section 10(g), as in
effect on December 31st of the year preceding the Change of Control;
such contributions may be made to the Company’s non-qualified retirement plan.


(D)                        continuation of coverage under the employee benefit plans of the
Company in which the Executive was participating at the time of his termination
of employment during the COC Payment Period; provided, however, that if the
Company is unable to continue such coverage, then they shall provide the
Executive with economically equivalent employee benefits to the extent such
benefits are reasonably available.


(iii)                               At the discretion of the
Compensation Committee, the present value of any amounts payable to the
Executive in accordance with this Section 10(g) may be paid to the Executive in
a lump sum. The interest rate used in determining the present value
shall be the interest rate on one-year United States Treasury Bills at the
auction of such instruments nearest in time to the date of the Executive’s
termination of employment under this Section 10(g). Any such lump sum payment
by the Company to the Executive shall not affect the obligations of the Company
to provide the other benefits described in Section 10(g).


(iv)                              The
obligation of the Company to make or provide the payments and benefits set
forth in this Section 10(g) shall be strictly conditioned on the Executive
executing and returning to the Company a general release and waiver of all
claims against the Company in the form as submitted by the Company.


(h)                             Resignation Upon Termination


At the time of
termination of employment for any reason, the Executive agrees at the request
of the Company to resign from any position he holds as a Director (or other
similar position) of the Company and any Affiliates, unless other explicit
arrangements are agreed upon between the Executive and the Company.


11.           Noncompetition


(a)                      During
the term of the Executive’s employment and for the period of 12 months
following the termination of Executive’s employment for any reason other than a
Termination Without Cause, the Executive shall not, directly or indirectly,
whether as



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an employee, consultant, partner, principal, agent,
distributor, representative, stockholder (except as a less than one percent
stockholder of a publicly traded company or a less than five percent
stockholder of a privately held company) or otherwise, engage, within the
United States, Bermuda, or the Cayman Islands, if such activities involve
insurance or reinsurance of United States based entities or risks that are
competitive with the financial guaranty insurance business then being conducted
by the Company and which, during the period covered by the Executive’s
employment, were conducted by the Company. The Company may not enforce this
provision after termination of Executive’s employment unless the Company
continues to pay Executive’s base salary during the 12 month period after
Executive’s termination or resignation from employment for any reason.


(b)                     For
the period of 12 months following the termination of Executive’s employment for
any reason, the Executive shall not, directly or indirectly, hire or solicit to
hire any employee or former employee of the Company or its affiliates nor
encourage any employee of the Company or its affiliates to leave the employ of
the Company or its affiliates


12.           Confidential Information


The Executive covenants that he shall not, without the prior written
consent of the Chief Executive Officer use, or disclose to any person (other
than an employee of either of the Company, or other person to whom disclosure
is necessary to the performance by the Executive of his duties in the employ of
the Company) any confidential or proprietary information about the Company or
their business, unless and until such information has become known to the
public generally (other than as a result of unauthorized disclosure by the Executive).
The foregoing covenants by the Executive shall be without limitation as to time
and geographic applications.


13.                                 Remedy for Violation of Non-competition or Confidential

Information Provisions


Without intending to limit the remedies available to the Company for
the breach of any of the Executive’s covenants in Sections 11 and 12, the
Executive acknowledges and agrees that damages at law are an insufficient
remedy for the Company and that, accordingly, the Company shall be entitled to
apply for and obtain injunctive relief in any court of competent jurisdiction
to restrain the breach or threatened breach, or otherwise specifically enforce,
any or all of said covenants. Executive acknowledges that each of the covenants
contained in Sections 11 and 12 is an essential element of this Agreement. If
any covenant or term of Section 11 or 12 or any portion thereof of this Section
13, is determined to be invalid or unenforceable in any instance, such
determination shall not prevent the reassertion thereof with respect of any
other breach or violation. If, in any proceeding, a court (or other tribunal)
refuses to enforce the covenants contained in Section 11 or 12 or this Section
13 because such covenants cover too extensive a geographic area or too long a period
of time, any such covenant shall be deemed amended to the extent (but only to
the



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extent) required by law to permit its enforceability hereunder. Notwithstanding
anything contained in this Agreement to the contrary, in the event that the
Executive’s employment is Terminated Without Cause or by a COC Termination and
the Court determines by a final, non-appealable order that the Executive has
violated applicable provisions of Section 11 or 12 of this Agreement, then the
Company shall be entitled to discontinue any payments or benefits that would
otherwise be provided under Section 10 and the Executive shall forfeit his
rights to the same.


14.           Withholding


Anything in this Agreement to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Executive shall be
subject to withholding of such amounts relating to taxes as the Company may
reasonably determine they are required to withhold pursuant to any applicable
law or regulation. In lieu of withholding such amounts, in whole or in part,
the Company may, in their sole discretion, accept other provision for payment
of taxes as required by law, provided they are satisfied that all requirements
of law affecting their responsibilities to withholding such taxes have been satisfied.


15.           Arbitration of All Disputes


Subject to the provisions of Section 15, any controversy or claim
arising out of or relating to this Agreement or the breach thereof shall be
settled by arbitration in the City of Hamilton in accordance with the law of
Bermuda by three arbitrators appointed by the parties. If the parties cannot
agree on the appointment of the arbitrators, one shall be appointed by the
Company and one by the Executive and the third shall be
appointed by the first two arbitrators. If the first two arbitrators cannot
agree on the appointment of a third arbitrator, then the third
arbitrator shall be appointed by the Chief Justice of the Supreme Court of
Bermuda. The arbitration shall be conducted in accordance with the rules of the
Bermuda Arbitration Act, 1986, as amended, except with respect to the selection of the arbitrators which shall be as
provided in this Section 15. Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. The arbitrators’
fees and any expenses relating to the arbitration (other than the Parties’ own
legal fees and expenses) shall be shared equally by the parties.


16.           Entire Agreement


This Agreement contains the entire agreement between the Parties
concerning the subject matter hereof and supercedes and replaces all prior
agreements, undertakings, discussions, negotiations, and undertakings, whether
written or oral, between the Company and the Executive with respect thereto,
including, but not limited to, the letter dated August 23, 2004 to Executive from
Dominic Frederico.



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17.           Assignability; Binding Nature


This Agreement shall be binding upon and inure to the benefit of the parties
and their respective successors, heirs, and assigns. No rights or obligations
of the Executive under this Agreement may be assigned or transferred by the
Executive, other than his rights to receive salary and bonuses hereunder which
may be transferred by will or operation of law subject to the limitations of
this Agreement. No rights or obligations of the Company under this Agreement
may be assigned or transferred by the Company except that such rights or
obligations may be assigned or transferred pursuant to a merger or
consolidation in which the Company is not the continuing entity, or the sale or
liquidation of all or substantially all of the assets of the Company, provided
that that assignee or transferee is the successor to all or substantially all
of the assets of the Company and such assignee or transferee assumes the
liabilities, obligations, and duties of the Company as contained in this
Agreement, either contractually or as a matter of law.


18.           Amendment or Waiver


No provision in this Agreement may be amended or waived unless such
amendment or waiver is (1) agreed to in writing, and (2) the agreement is
signed by the Executive and by authorized officers of AGC and AGL. No waiver by
any party hereto of any breach by any other party of any condition or provision
of this Agreement to be performed by such other party shall be deemed a waiver
of a similar or dissimilar condition or provision at the same or any prior or
subsequent time.


19.           Notices


Any notice required or permitted to be given under this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
or sent by certified or registered mail, postage prepaid, return receipt
requested, duly addressed to the party concerned at the address indicated below
to such changed address of which such party may subsequently by similar process
give notice:


	
  If to the Company:

  	
  Assured Guaranty Ltd.

  
	
   

  	
  30 Woodbourne Ave

  
	
   

  	
  Hamilton, Bermuda

  
	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  
	
  If to the
  Executive:

  	
  Mr. Robert Bailenson

  
	
   

  	
  8 Halyard Court, Cold
  Spring Harbor

  
	
   

  	
  New York, 11724

  




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20.           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.


21.           Survivorship


The respective rights and obligations of the parties shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.


22.           References


In the event of the Executive’s death or a judicial determination of
his incompetence, reference in this Agreement to the Executive shall be deemed,
where appropriate, to refer to his estate or other legal representative. All
statements of or references to dollar amounts in this Agreement shall mean
lawful money of the United States of America.


23.           Governing-Law


This Agreement shall be governed by and construed and interpreted in
accordance with the laws of Bermuda, without reference to the principles of
conflict of laws of any jurisdiction.


24.           Headings


The headings of paragraphs 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.


25.           Counterparts


This Agreement may be executed in one or more
counterparts.



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IN WITNESS WHEREOF, the undersigned have executed
this Agreement as of the date first written above.


	
   

  	
  Assured Guaranty Ltd.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dominic J. Frederico

  	
   

  
	
   

  	
   

  	
  Dominic
  J. Frederico

  	
   

  
	
   

  	
   

  	
  Chief
  Executive Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Assured
  Guaranty Corp.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dominic J. Frederico

  	
   

  
	
   

  	
   

  	
  Dominic
  J. Frederico

  	
   

  
	
   

  	
   

  	
  Chief
  Executive Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Robert Bailenson

  	
   

  
	
   

  	
  Robert
  Bailenson

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
								



 



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EXHIBIT A

Gross-Up Provisions


(a)  Anything in this Agreement to the contrary
notwithstanding, except for paragraph (b) below, in the event it shall be
determined that the Executive shall become entitled to payments and/or benefits
provided by this Agreement or any other amounts in the “nature of compensation”
(whether pursuant to the terms of this Agreement or any other plan, arrangement
or agreement with the Company or any affiliate, any person whose actions result
in a change of ownership or effective control of the Company covered by Section
280G of the Code or any person affiliated with the Company or such person) as a
result of such change in ownership or effective control of the Company (a “Payment”)
would be subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties are incurred by the Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the “Excise Tax”), then the Executive
shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an
amount such that after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.


(b)
 Notwithstanding the provisions of
paragraph (a) above, if it shall be determined that the Executive would
otherwise be entitled to the Gross-Up Payment, but the value of all Payments do
not exceed 310% of the Executive’s “base amount,” within the meaning of Section
280G of the Code, then no Gross-Up Payment shall be made to the Executive and
the amounts payable under this Agreement or any other amounts in the “nature of
compensation” (whether pursuant to the terms of this Agreement or any other
plan, arrangement or agreement with the Company) shall be reduced so that the
value of all Payments, in the aggregate, equals the Safe Harbor Amount. The “Safe
Harbor Amount” means 2.99 times the Executive’s “base amount,” within the
meaning of Section 280G of the Code. The Executive shall be entitled to select
the order in which payments are to be reduced in accordance with the foregoing
provisions of this paragraph (b). As a result of uncertainty in the application
of Section 280G of the Code at the time of any initial determination by the
Accounting Firm (as described in paragraph (c) below), it is possible that
Payments will have been paid or distributed by the Company which should not be
so paid or distributed (“Overpayment”) or that additional Payments which were
not paid or distributed by the Company could have been so paid or distributed (“Underpayment”),
in each case, consistent with the calculation of the amount due hereunder. In
the event that the Accounting Firm determines that an Overpayment has been
made, any such Overpayment shall be treated for all purposes as a loan to the
Executive which the Executive shall repay to the Company promptly upon
receiving notice of such Overpayment together with interest at the applicable
federal rate provided for in Section 7872(f)(2) of the Code; provided, however,
that no amount shall be payable by the Executive to the Company (or if paid by
the Executive to the Company shall be returned to the Executive) if and to the
extent such payment would not reduce the amount



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which is nondeductible under Section 280G of the Code or which is
subject to taxation under Section 4999 of the Code. In the event that the
Accounting Firm determines that an Underpayment has occurred, any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive together with interest at the applicable federal rate provided for in
Section 7872(f)(2) of the Code.


(c)  Subject to the provisions of paragraph (d)
below, all determinations required to be made under this Exhibit A, including
whether and when a Gross-Up Payment is required and the amount of such Gross-Up
Payment, or whether a reduction in Payments is required under paragraph (b)
above is required, and the assumptions to be utilized in arriving at such
determination, shall be made by a nationally recognized accounting firm (the “Accounting
Firm”) which shall provide detailed supporting calculations both to the Company
and the Executive within 15 business days of the receipt of notice from the
Executive that there has been a Payment, or such earlier time as is requested
by the Company. The Accounting Firm shall be jointly selected by the Company
and the Executive and shall not, during the two years preceding the date of its
selection, have acted in any way on behalf of the Company or its affiliated
companies. If the Company and the Executive cannot agree on the firm to serve
as the Accounting Firm, then the Company and the Executive shall each select a
nationally recognized accounting firm and those two firms shall jointly select
a nationally recognized accounting firm to serve as the Accounting Firm. All
fees and expenses of the Accounting Firm shall be borne solely by the Company.
Any Gross-Up Payment, as determined pursuant to this Exhibit A, shall be paid
by the Company to the Executive within five days of the receipt of the
Accounting Firm’s determination. If the Accounting Firm determines that no
Excise Tax is payable by the Executive, it shall furnish the Executive with a
written opinion that failure to report the Excise Tax on the Executive’s
applicable federal income tax return would not result in the imposition of a
negligence or similar penalty. Any determination by the Accounting Firm shall
be binding upon the Company and the Executive. As a result of the uncertainty
in the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made (a “Gross-Up
Underpayment”), consistent with the calculations required to be made hereunder.
In the event that the Company exhausts its remedies pursuant to paragraph (d)
below and the Executive thereafter is required to make a payment of any Excise
Tax, the Accounting Firm shall determine the amount of the Gross-Up
Underpayment that has occurred and any such Gross-Up Underpayment shall be
promptly paid by the Company to or for the benefit of the Executive.


(d)  The Executive shall notify the Company in
writing of any claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of a Gross-Up Payment. Such notification
shall be given as soon as practicable but no later than ten business days after
the Executive is informed in writing of such claim and shall apprise the
Company of the nature of such claim and the date on which such claim is
requested to be paid. The Executive shall not pay such claim prior to the
expiration of the 30-day period following the date on which he or she gives
such notice to the Company (or such shorter period ending on the date that any
payment of taxes with



 16
 






 



respect to such claim is due). If the Company notifies the Executive in
writing prior to the expiration of such period that it desires to contest such
claim, the Executive shall:


(i)                                     give the
Company any information reasonably requested by the Company relating to such
claim,


(ii)                                  take such
action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Company,


(iii)                               cooperate with
the Company in good faith in order effectively to contest such claim, and


(iv)                              permit the
Company to participate in any proceedings relating to such claim; provided,
however, that the Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold the Executive harmless, on an after-tax
basis, for any Excise Tax or income tax (including interest and penalties with
respect thereto) imposed as a result of such representation and payment of
costs and expenses.


Without
limitation on the foregoing provisions of this paragraph (d), the Company shall
control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim and
may, at its sole option, either direct the Executive to pay the tax claimed and
sue for a refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that if the Company
directs the Executive to pay such claim and sue for a refund, the Company shall
advance the amount of such payment to the Executive, on an interest-free basis
and shall indemnify and hold the Executive harmless, on an after-tax basis,
from any Excise Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any imputed
income with respect to such advance; and further provided the Executive shall
not be required by the Company to agree to any extension of the statute of
limitations relating to the payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due
unless such extension is limited solely to such contested amount. Furthermore,
the Company’s control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Executive shall be
entitled to settle or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority.


(e)  If, after the receipt by the Executive of an
amount advanced by the Company pursuant to paragraph (d) above, the Executive
becomes entitled to receive any refund with respect to such claim, the
Executive shall (subject to the Company’s complying with



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the requirements of paragraph (d) above) promptly pay to the Company
the amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt by the Executive of an
amount advanced by the Company pursuant to paragraph (d) above, a determination
is made that the Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Executive in writing of its
intent to contest such denial of refund prior to the expiration of 30 days
after such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be paid.


(f)  If, pursuant to regulations issued under
Section 280G or 4999 of the Code, the Company and the Executive were required
to make a preliminary determination of the amount of an excess parachute
payment and thereafter a redetermination of the Excise Tax is required under
the applicable regulations, the parties shall request the Accounting Firm to
make such redetermination. If as a result of such redetermination an additional
Gross-Up Payment is required, the amount thereof shall be paid by the Company
to the Executive within five days of the receipt of the Accounting Firm’s
determination. If the redetermination of the Excise Tax results in a reduction
of the Excise Tax, the Executive shall take such steps as the Company may
reasonably direct in order to obtain a refund of the excess Excise Tax paid. If
the Company determines that any suit or proceeding is necessary or advisable in
order to obtain such refund, the provisions of paragraph (d) above relating to
the contesting of a claim shall apply to the claim for such refund, including,
without limitation, the provisions concerning legal representation, cooperation
by the Executive, participation by the Company in the proceedings and
indemnification by the Company. Upon receipt of any such refund, the Executive
shall promptly pay the amount of such refund to the Company. If the amount of
the income taxes otherwise payable by the Executive in respect of the year in
which the Executive makes such payment to the Company is reduced as a result of
such payment, the Executive shall, no later than the filing of his income tax
return in respect of such year, pay the amount of such tax benefit to the
Company. In the event there is a subsequent redetermination of the Executive’s
income taxes resulting in a reduction of such tax benefit, the Company shall,
promptly after receipt of notice of such reduction, pay to the Executive the
amount of such reduction. If the Company objects to the calculation or
recalculation of the tax benefit, as described in the preceding two sentences,
the Accounting Firm shall make the final determination of the appropriate
amount. The Executive shall not be obligated to pay to the Company the amount
of any further tax benefits that may be realized by him or her as a result of
paying to the Company the amount of the initial tax benefit.



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