Exhibit 10.72


 


To Be Used With
Employment Agreement


 


Restricted Stock Unit Agreement
under

Assured Guaranty Ltd.
2004 Long-Term Incentive Plan


 


THIS AGREEMENT is effective as of the Grant Date (as defined in
paragraph 1), and is by and between the Participant and Assured
Guaranty Ltd. (the “Company”).


 


WHEREAS, the Company maintains the Assured Guaranty Ltd. 2004
Long-Term Incentive Plan (the “Plan”), and the Participant has
been selected by the committee administering the Plan (the “Committee”) to
receive a Restricted Stock Unit Award under the Plan; and


 


NOW, THEREFORE, IT IS AGREED, by and between the Company and the
Participant, as follows:


 


1.  Terms of Award. 
The following words and phrases used in this
Agreement shall have the meanings set forth in this paragraph 1:


 


(a)                                  The
“Participant” is                               


 


(b)                                 The
“Grant Date” is February 5, 2009.


 


(c)                                  The
number of “Covered Units” granted under this Agreement is               
Units.  Each “Unit” represents the right
to receive one share of Stock on the Delivery Date, to the extent that the
Participant is vested in such Units as of the Delivery Date, subject to the
terms of this Agreement and the Plan.


 


(d)                                 The
“Delivery Date” with respect to each Installment shall be the earliest to occur
of:


 


(i)  The date
on which the Participant vests in that Installment in accordance with the
schedule set forth in paragraph 3 (determined without regard to paragraphs
3(a), 3(b), 3(c), or 3(d)).


 


(ii)  The
Participant’s Date of Termination that occurs by reason of the Participant’s
death.


 


(iii)  The
date on which the Participant becomes Permanently Disabled on or before the
Participant’s Date of Termination.


 


(iv)  The
date of a Change in Control on or before the Participant’s Date of Termination,
but only if the Change in Control also satisfies the definition of “change in
control event” as set forth in Treas. Reg. 1.409A-3(i)(5).


 


(v)  If an
Installment constitutes nonqualified deferred compensation subject to Code
section 457A, the date on which the amount is no longer treated as subject to a
substantial risk of forfeiture.


 

















 


Other words and phrases used in this
Agreement are defined pursuant to paragraph 17, elsewhere in this
Agreement or the Plan.


 


2.  Restricted Stock Unit Award.  This Agreement specifies the terms of the “Restricted
Stock Unit Award” granted to the Participant.


 


3.  Restricted Period.  If the Date of Termination does not occur
during the Restricted Period with respect to any Installment of the Covered
Units, then the Participant shall become vested in such Installment at the end
of such Restricted Period.  With respect
to all Covered Units, the “Restricted Period” for each Installment of Covered
Units shall begin on the Grant Date.  The
Restricted Period with respect to each Installment shall end as described in
the following schedule (but only if the Date of Termination has not occurred
before the end of the Restricted Period):


 


 


	
  INSTALLMENT:

  	
   

  	
  RESTRICTED PERIOD WILL END ON:

  
	
   

  	
   

  	
   

  
	
  1⁄4 of Covered
  Units

  	
   

  	
  One year
  anniversary of the Grant Date

  
	
   

  	
   

  	
   

  
	
  1⁄4 of Covered
  Units

  	
   

  	
  Two year
  anniversary of the Grant Date

  
	
   

  	
   

  	
   

  
	
  1⁄4 of Covered
  Units

  	
   

  	
  Three year
  anniversary of the Grant Date

  
	
   

  	
   

  	
   

  
	
  1⁄4 of Covered
  Units

  	
   

  	
  Four year
  anniversary of the Grant Date

  



 


The Restricted Period shall end prior to the date specified in the
foregoing schedule to the extent set forth below:


 


(a)                                  For
Installments as to which the Restricted Period has not otherwise ended prior to
the Date of Termination, the Restricted Period for such Installments shall end
upon the Participant’s Date of Termination, if the Date of Termination occurs
by reason of the Participant’s Disability or death.


 


(b)                                 For
Installments as to which the Restricted Period has not otherwise ended prior to
the date of a Change in Control, the Restricted Period for such Installments
shall end upon a Change in Control, provided that such Change in Control occurs
on or before the Date of Termination.


 


(c)                                  If
the Participant’s employment is Terminated Without Cause, then for Installments
as to which the Restricted Period has not otherwise ended prior to the Date of
Termination, the Participant shall be vested on the Date of Termination (and
the Restricted Period shall end) with respect to the Installments (if any) that
would vest on or before the two-year anniversary of the Date of Termination,
determined as though the Participant had remained employed through the two-year
anniversary of the Date of Termination.  The
terms “Cause” and “Terminated Without Cause” shall be defined as set forth in
the Employment Agreement.  Notwithstanding the foregoing, if the
Executive’s employment is Terminated Without Cause, the provisions of this
paragraph (c) shall apply only if the Executive executes and returns to
the Company a general release and waiver of all claims 


 


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against the
Company as required under the Employment Agreement; provided that the
Participant shall be eligible for vesting under this paragraph (c) only if
the release is returned by such time as is established by the Committee; and
further provided that to the extent benefits provided pursuant to this
paragraph (c) would constitute deferred compensation subject to section
409A of the Code, such benefits shall be distributed to the Participant only if
the release is returned in time to permit the distribution of the benefits to
satisfy the requirements of section 409A of the Code with respect to the time
of distribution.


 


(d)                                 If
the Participant’s Date of Termination occurs because of Retirement, then for Installments
as to which the Restricted Period has not otherwise ended prior to the Date of
Termination, the Restricted Period shall end on the Participant’s Date of
Termination, and the Participant shall be vested in those Installments, subject
to paragraph 17(g) (relating to the definition of Retirement).


 


4.  Transfer of Shares and Forfeiture of Units.  On the Delivery Date, the
Participant shall receive one share of Stock for each Unit in which the
Participant is then vested, and such shares shall be free of restrictions
otherwise imposed by this Agreement, subject to the terms of this Agreement applicable
after such Delivery Date (including, without limitation, paragraph 9) and the
Plan.  If any vested Units attributable
to any Installment are allocated to the Participant after the date otherwise
specified as the Delivery Date for that Installment (by reason of payment of
dividends or otherwise), then, as soon as practicable after the date of
allocation of such Units, the Participant will receive one share of Stock with
respect to each such Unit.  As of the
date of distribution of Shares with respect to any Units, such Units shall be
canceled.  If the Restricted Period with
respect to any Installments does not end on or before the Participant’s
Date of Termination, then as of the Participant’s Date of
Termination, the Participant shall forfeit such Installments.  However, the Committee, in its sole
discretion, may accelerate the end of the Restricted Period or provide for the
vesting of the Covered Units under circumstances that such
vesting would not otherwise occur in its sole discretion, based
on such factors as the Committee deems appropriate.


 


5.  Withholding. 
All deliveries and distributions under this Agreement
are subject to withholding of all applicable taxes.  At the election of the Participant, and
subject to such rules and limitations as may be established by the
Committee from time to time, such withholding obligations may be satisfied
through the surrender of shares of Stock which the Participant already owns, or
to which the Participant is otherwise entitled under the Plan; provided,
however, that such shares may be used to satisfy not more than the Company’s
minimum statutory withholding obligation (based on minimum statutory
withholding rates for Federal and state tax purposes, including payroll taxes,
that are applicable to such taxable income).


 


6.  Transferability. 
Except as otherwise provided by the Committee, the Restricted Stock Unit
Award may not be sold, assigned, transferred, pledged or otherwise encumbered
during the Restricted Period.


 


7.  Dividends. 
The Participant will be credited with additional Units to reflect
dividends payable with respect to Stock during the period between the Grant
Date and the Delivery Date, with the increase in the number of Units equal to
the number of shares of Stock which could be 


 


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purchased with the dividends (assuming each Unit was a
share of Stock), based on the value of such Stock at the time such dividends are
paid.  The Units credited on account of
the preceding sentence shall be vested and distributed in accordance with the
same schedule as the Units to which such dividends are attributable.  No dividends shall be credited to or for the
benefit of the Participant for Units with respect to record dates occurring
prior to the Grant Date, or with respect to record dates occurring on or after
the date, if any, on which the Participant has forfeited those Units.


 


8.  Voting.  The
Participant shall not be a shareholder of record with respect to the Units and
shall have no voting rights with respect to the Units during the Restricted
Period or prior to the Delivery Date.


 


9.  Cancellation and Rescission of Restricted
Stock Unit Award.


 


(a)                                  The
Committee may cancel, rescind, suspend, withhold or otherwise limit or restrict
the Restricted Stock Unit Award at any time if the Participant engages in any “Detrimental
Activity.”


 


(b)                                 Immediately
prior to the Delivery Date with respect to an Installment and prior to the transfer
of the shares of Stock to the Participant, the Participant shall certify, to
the extent required by the Committee, in a manner acceptable to the Committee,
that the Participant is not engaging and has not engaged in any Detrimental
Activity.  In the event a Participant has
engaged in any Detrimental Activity prior to, or during the twelve months
after, the Delivery Date with respect to any Installment of Covered Units, the
right to delivery of shares with respect to such Installment may be rescinded
by the Committee within two years thereafter. 
In the event of any such rescission, the Participant shall pay to the
Company the amount of any gain realized as a result of the prior delivery of
shares applicable to the rescinded Installment(s), in such manner and on such
terms and conditions as may be required by the Company, and the Company shall
be entitled to set-off against the amount of any such gain any amount owed to
the Participant by the Company and/or Subsidiary.


 


10.  Heirs and Successors.  This Agreement shall be binding upon, and
inure to the benefit of, the Company and its successors and assigns, and upon
any person acquiring, whether by merger, consolidation, purchase of assets or
otherwise, all or substantially all of the Company’s assets and business.  If any benefits deliverable to the
Participant under this Agreement have not been delivered
at the time of the Participant’s death, such benefits shall be delivered to the
Designated Beneficiary, in accordance with the provisions of this
Agreement and the Plan. 
The “Designated Beneficiary” shall be the beneficiary or beneficiaries
designated by the Participant in a writing filed with the Committee in such
form and at such time as the Committee shall require.  If a deceased Participant fails to designate
a beneficiary, or if the Designated Beneficiary does not survive the
Participant, any rights that would have been exercisable by the Participant and
any benefits distributable to the Participant shall be distributed to the legal
representative of the estate of the Participant.  If a deceased Participant designates a
beneficiary and the Designated Beneficiary survives the Participant but dies
before the complete distribution of benefits to the Designated Beneficiary
under this Agreement, then any benefits 


 


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distributable to the Designated Beneficiary shall be
distributed to the legal representative of the estate of the Designated
Beneficiary.


 


11.  Administration. 
The authority to manage and control the operation and administration of this
Agreement shall be vested in the Committee, and the Committee
shall have all powers with respect to this Agreement
as it has with respect to the Plan.  Any
interpretation of this Agreement by the Committee and any decision made by it
with respect to this Agreement is final and binding on all persons.  The Committee shall have the authority to
obtain such information from the Participant (including tax return information)
as it determines may be necessary to confirm that the Participant is in
compliance with the requirements applicable to Detrimental Activity, and if the
Participant fails to provide such information, the Committee may conclude that
the Participant is not in compliance with such requirements.


 


12.  Plan Governs. 
Notwithstanding anything in this Agreement
to the contrary, this Agreement shall be subject to the terms of the Plan, a
copy of which may be obtained by the Participant from the office of the
Secretary of the Company; and this Agreement
is subject to all interpretations, amendments, rules and regulations
promulgated by the Committee from time to time pursuant to the Plan.


 


13.  Not an Employment Contract.  The Restricted Stock Unit Award will not
confer on the Participant any right with respect to continuance of employment
or other service with the Company or any Related Company, nor will it interfere
in any way with any right the Company or any Related Company would otherwise
have to terminate or modify the terms of such Participant’s employment or other
service at any time.


 


14.  Notices. 
Any written notices provided for in this Agreement
or the Plan shall be in writing and shall be deemed sufficiently given if
either hand delivered or if sent by fax or overnight courier, or by postage
paid first class mail.  Notices sent by
mail shall be deemed received three business days after mailing but in no event
later than the date of actual receipt. 
Notices shall be directed, if to the Participant, at the Participant’s
address indicated by the Company’s records, or if to the Company, at the
Company’s principal executive office.


 


15.  Fractional Shares.  In lieu of issuing a fraction of a share,
resulting from an adjustment of the Restricted Stock Unit Award pursuant to the
Plan or otherwise, the Company will be entitled to pay to the Participant an
amount equal to the fair market value of such fractional share.


 


16.  Amendment. 
This Agreement may be amended in accordance
with the provisions of the Plan, and may otherwise be amended by written
agreement of the Participant and the Company without the consent of any other person.


 


17.  Definitions.  For purposes of this Agreement, words and
phrases shall be defined as follows:


 


(a)                                  Change
in Control.  The term “Change in
Control” shall be defined as set forth in the Plan.


 


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(b)                                 Date
of Termination.  A Participant’s “Date
of Termination” means, with respect to an employee, the date on which the
Participant’s employment with the Company and Subsidiaries terminates for any
reason, and with respect to a Director, the date immediately following the last
day on which the Participant serves as a Director; provided that a Date of
Termination shall not be deemed to occur by reason of a Participant’s transfer
of employment between the Company and a Subsidiary or between two Subsidiaries;
further provided that a Date of Termination shall not be deemed to occur by
reason of a Participant’s cessation of service as a Director if immediately
following such cessation of service the Participant becomes or continues to be
employed by the Company or a Subsidiary, nor by reason of a Participant’s
termination of employment with the Company or a Subsidiary if immediately
following such termination of employment the Participant becomes or continues
to be a Director; and further provided that a Participant’s employment shall
not be considered terminated while the Participant is on a leave of absence
from the Company or a Subsidiary approved by the Participant’s employer.


 


(c)                                  Detrimental
Activity.  The term “Detrimental
Activity” shall mean (i) a violation of paragraph 11 of the Employment
Agreement (relating to competition) during the period in which such activity is
prohibited under the Employment Agreement; or (ii) a violation of paragraph
12 of the Employment Agreement (relating to confidentiality).


 


(d)                                 Director.  The term “Director” means a member of the
Board of Directors of Assured Guaranty, Ltd., who may or may not be an employee
of the Company or a Subsidiary.


 


(e)                                  Disability.  The Participant shall be considered to have a
“Disability” during the period in which the Participant is unable, by reason of
a medically determinable physical or mental impairment, to engage in any
substantial gainful activity, which condition, in the opinion of a physician
selected by the Committee, is expected to have a duration of not less than 120
days.  The Participant shall be
considered to be Permanently Disabled if he would be treated as “disabled” in
accordance with the provisions of Treas. Reg. §1.409A-3(i)(4).


 


(f)            Employment Agreement.  “Employment Agreement” shall mean the
agreement between the Participant and the Company as amended and restated as of
January 1, 2009 or any successor agreement thereto.


 


(g)                                 Retirement. 
“Retirement” of a Participant will be determined in accordance with the
following:


 


(i)  Retirement
shall mean the occurrence of a Participant’s Date of Termination with the
consent of the Participant’s employer after the Participant has completed three
years of service and attained age 55.(1)


 


(ii)  For
purposes of defining “Retirement,” years of service shall be determined in
accordance with rules which may be established by the Committee, and shall
take into 


 






(1)                                “Retirement”
for Mr. Bailenson, 55 years of age with 5 years of service and the consent
of the Compensation Committee or 60 years of age with 5 years of service.


 


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account service
with the Company and the Subsidiaries. 
If, on or before the date of the initial public offering of stock of the
Company, the Participant was employed by the Company or its Subsidiaries, years
of service shall also include service with ACE Limited and its subsidiaries
occurring prior to such initial public offering.


 


(iii)  Notwithstanding
that the Participant’s Date of Termination satisfies the requirements of
paragraph (i) above, the Participant will not be considered to have
retired (or have terminated by reason of Retirement) with respect to any
Installment if the Committee determines that the Participant has provided
significant commercial or business services to any one or more persons or
entities on or before the Delivery Date applicable to that Installment,
regardless of whether such entity is owned or controlled by the Participant;
provided that the Participant may devote reasonable time to the supervision of
his personal investments, and activities involving professional, charitable,
community, educational, religious and similar types of organizations, speaking
engagements, membership on the boards of directors of other organizations, and
similar types of activities, to the extent that the Committee, in its
discretion, determines that such activities are consistent with the Participant’s
Retirement.


 


(iv)  At the
request of the Committee, and as a condition of receiving a distribution of
Shares in settlement of an Installment, the Participant shall be required to
provide a listing of the activities engaged in by the Participant following the
Participant’s Date of Termination and prior to the Delivery Date applicable to
such Installment and such other information that the Committee determines may
be necessary from time to time to establish whether the Participant has acted
in a manner that is consistent with the requirements of paragraph (iii).  Such listing and information shall be
provided promptly by the Participant, but in no event more than 10 days after
written request is delivered to the Participant.


 


(v)  At the
request of the Participant, the Committee shall determine whether a proposed
activity of the Participant will be consistent with the requirements of
paragraph (iii).  Such request shall be
accompanied by a description of the proposed activities, and the Participant
shall provide such additional information as the Committee may determine is
necessary to make the determination. 
Such a determination shall be made promptly, but in no event more than
30 days after the written request, together with any additional information
requested of the Participant, is delivered to the Committee.


 


(vi)  If, prior
to the Delivery Date applicable to any Installment, a Participant engages in
one or more activities that the Committee determines to be inconsistent with
Retirement, as set forth in paragraph (iii) above, the right to a
distribution of Shares with respect to the Installment (including the right to
distribution of Shares attributable to dividends) may be canceled by the
Committee.


 


(h)                                 Plan
Definitions.  Except where the
context clearly implies or indicates the contrary, a word, term, or phrase used
in the Plan is similarly used in this Agreement.


 


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  Agreed Upon:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Assured Guaranty Ltd.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Participant

  	
   

  



 


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