Exhibit 10.20
EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT
dated as of June 26, 2009 by
and between ABK INVESTMENT ADVISORS, INC. , a Delaware
corporation (the “Company” ), and
ROBERT S. SMITH (the “Executive”
).
WHEREAS, the Company has agreed to
acquire substantially all of the assets (the
“Acquisition” ) of NSM Capital Management
LLC and Structured Credit Solutions LLC (collectively the
“Selling Companies”) pursuant to that
certain Purchase Agreement dated as of the date hereof by and
among, among other persons, the Selling Companies, the Executive
and the Company (the “Purchase
Agreement”); and
WHEREAS, the Company and the
Executive wish to enter into this Agreement to provide for the
Executive’s service with the Company on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of
the premises and the mutual covenants herein contained, the parties
hereto agree as follows (capitalized terms used herein without
definition shall have the meanings ascribed to such terms in
Section 5 below):
1. Employment and
Duties.
(a) Term of the Agreement .
This Agreement shall become effective only upon the Initial Closing
(as defined in the Purchase Agreement) and will apply for a
nonrenewable term beginning on the Initial Closing Date and ending
on the sixth anniversary thereof (the
“Term” ). The Executive’s
employment may continue beyond the end of the Term, but nothing
herein shall require the Executive to continue his employment with
the Company after the end of the Term. In addition, nothing in this
Agreement shall alter the Executive’s status as an “at
will” employee of the Company, subject to the
Executive’s rights and obligations under this Agreement. This
Agreement shall automatically terminate and be of no further force
or effect upon any termination of the Purchase
Agreement.
(b) General .
(i) Title/Reporting . The
Executive will serve as Chief Executive Officer of the Company
during the Term, subject to the supervision and direction of the
Board of Directors of the Company (the
“Board” ), and reporting to David Wallis,
its Chairman, or his successor as chief executive officer of Ambac,
and shall not be required to report to any other
individual.
(ii) Work Location . During
the current term of the Lease by and between The Mill Owners
Company LLC and NSM Capital Management LLC, dated April 3,
2008, the principal office of the Executive shall be in Greenwich,
CT and thereafter may be in any location approved by the Board
within 50 miles thereof, unless the Executive otherwise consents in
writing.
(iii) Scope of
Business/Authority . The Executive and Tim Stevens (or such
other individual as may be designated from time to time by the
Board) shall be the senior-most
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executives of the Company and shall
share day to day operational authority of the Organic Business and
the Synergistic Business, subject to the supervision and direction
of the Board consistent with the terms of this Agreement. The
Executive shall have authority over the hiring or termination of
any personnel within the Organic Business. During the Term, the
Company shall be subject to the budget review and oversight of the
Chief Executive Officer of Ambac or the Chairman of the
Board.
(c) Full-Time Employment .
The Executive shall devote his full-time working hours and best
efforts to his duties hereunder. Executive may devote reasonable
periods of time to serve as a director of other organizations if
approved by the Ambac Board, to perform charitable and other
community activities, and to manage his personal investments;
provided, however, that such activities do not materially interfere
with the performance of his duties hereunder and are not in
conflict or competitive with, or adverse to, the interests of the
Company, as reasonably determined by the Board and comply with any
code of conduct applicable to the employees of the Company or its
Affiliates in the opinion of Ambac’s Chief Compliance
Officer.
2. Compensation and Other
Benefits.
Subject to the provisions of this
Agreement, the Company shall pay and provide the following
compensation and other benefits to the Executive during the Term as
compensation for services rendered hereunder:
(a) Salary . Effective as of
the Initial Closing Date, the Executive’s annual salary (the
“ Salary ”) shall be two hundred fifty
thousand dollars ($250,000). The Salary is payable in accordance
with the Company’s payroll practices as established by the
Company from time to time. The Board shall periodically review and
may increase, but not decrease, the Executive’s
Salary.
(b) Special Equity Grant .
Management will recommend to the Compensation Committee (the
“ Committee ”) of the Board of Directors
(the “ Ambac Board ”) of Ambac Financial
Group, Inc. (“ Ambac ”) that the
Committee approve a special grant to the Executive of phantom stock
units (“ PSUs ”) under Ambac’s 1997
Equity Plan, as amended (the “ Equity Plan
”). The number of PSUs included in such award will be
determined by dividing (i) Thirty-Five Thousand dollars
($35,000) by (ii) the Fair Market Value of a share of
Ambac’s common stock on the date the Committee approves such
award. All PSUs included in such award will vest on the third
anniversary of the date of the grant. The PSUs included in the
Executive’s award shall be settled pursuant to the terms of
the Equity Plan and award agreement by delivery of the
corresponding cash, which in no event shall exceed three
(3) times the Fair Market Value of a share of Ambac’s
common stock on the date the Committee approved such award
multiplied by the number of PSUs granted. If the Ambac Board does
not approve this PSU award, the Executive shall receive $35,000
plus annual interest (computed on the basis of a 360-day year of
twelve 30-day months) accruing from the Initial Closing Date at the
Interest Rate in cash on the third anniversary of the Initial
Closing Date if the Executive is still employed by the Company at
such time or the Executive’s employment hereunder is
terminated by the Company without Cause or by the Executive’s
resignation for Good Reason.
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(c) Organic Business Earn-Out
. For each twelve month period commencing on the first day of the
calendar month following the Initial Closing Date (each a
“Measurement Period”), the Executive will
receive the applicable percentage of Organic Net Income set forth
in Table I below for such Measurement Period (each an
“Organic Payout”); provided that, unless
the Executive shall have given notice to the Company within
forty-five (45) days prior to the end of the sixth Measurement
Period, the Executive also shall receive a one-time lump sum
payment in an amount equal to the product of (i) four
(4) times (ii) fifteen percent (15%) of the average
of the annual Organic Net Income for the fifth and sixth
Measurement Periods in lieu of the amounts provided for in the
seventh through fifteenth Measurement Periods, inclusive, at the
same time as he is paid the Organic Payout for the Sixth
Measurement Period (the “Final Organic
Payout”) .
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Table I
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Measurement
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Organic
Percentage
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1
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35
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%
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2
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30
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%
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3
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25
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%
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4
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20
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%
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5
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15
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%
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6
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15
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%
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7-15
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15
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%
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(d) Synergistic Business
Earn-Out . For each Measurement Period the Executive will
receive the applicable percentage of Synergistic Net Income set
forth in Table II below for such Measurement Period in the form
provided in the next sentence (each, a “Synergistic
Payout”) . One-third (1/3) of each Synergistic
Payout will be paid in cash and two-thirds (2/3) of each
Synergistic Payout (each a “PSU Payout”)
will be paid by delivery of a grant, effective on the date of
payment (the “Synergistic Payout Date”)
of a number of PSUs determined by dividing (i) two thirds
(2/3) of the Synergistic Payout by (ii) the Fair Market
Value of a share of Ambac’s common stock on the date the
Committee approves such award. PSUs included in such award will be
granted at the first meeting of the Ambac Board subsequent to the
determination of such amount and shall vest on the third
anniversary of the Synergistic Payout Date. The PSUs included in a
Synergistic Payout shall be settled pursuant to the terms of the
Equity Plan and award agreement by delivery of the corresponding
cash, which, shall not exceed three (3) times the Fair Market
Value of a share of Ambac’s common stock on the date the
Committee approved such award multiplied by the number of PSUs
granted. If the shares of Ambac stock are trading below $0.50 per
share on the date the Committee would have approved such award, the
PSU Payout shall be made in cash plus interest (computed on the
basis of a 360-day year of twelve 30-day months) accruing from the
Synergistic Payout Date at the Interest Rate on the third
anniversary of the Synergistic Payout Date if the Executive is
still employed by the Company at such time or the Executive’s
employment hereunder is terminated by the Company without Cause or
by the Executive’s resignation for Good Reason.
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Table II
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Measurement
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Synergistic
Percentage
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1
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20
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%
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2
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15
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%
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3
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10
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%
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(e) Time of Payment . The
undisputed amount of the Organic Payout, the Final Organic Payout
and the Synergistic Payout (other than the PSU Payouts payable in
cash) shall be paid within ten (10) business days of
Ambac’s filing of a form 10Q or 10K with the Securities and
Exchange Commission for the applicable period. Such amounts shall
be net of Revenue Accruals. Any Revenue Accruals shall be paid
within ten (10) business days of Ambac’s filing of a
form 10Q or 10K with the Securities and Exchange Commission for the
period in which the account receivable related to such Revenue
Accrual is collected. Any disputed amount shall be paid within ten
(10) business days of final determination of such amount.
Subject to Sections 2(l) and 4, the Organic Payout, the Final
Organic Payout and the Synergistic Payout (other than the PSU
Payout) in respect of any concluded Measurement Period shall be
paid without regard to whether or not Executive is employed by the
Company on the payment date.
(f) Reporting Requirements .
The Company shall (i) designate each engagement, contract or
statement of work as ABK Business, Organic Business or Synergistic
Business within fourteen (14) business days of the executed
contract, statement of work or start of such engagement as
appropriate and (ii) provide the Executive with a quarterly
report of the Organic Net Income and the Synergistic Net Income
within thirty (30) days following the closing of the books of
Ambac for such quarter and such designation decision and report
shall be conclusive and binding unless the Executive notifies the
Company of any objections or disputes within thirty (30) days
of receipt of such designation decision and/or report.
(g) Dispute Resolution . If
the Executive disputes the Company’s designation of any
engagement, contract or statement of work as ABK Business, Organic
Business or Synergistic Business or the quarterly report of the
Organic Net Income and the Synergistic Net Income and the dispute
can not be resolved through good faith efforts by the Company and
the Executive within sixty (60) days, then the dispute shall
be resolved by an independent third party selected by the mutual
consent of the Company and the Executive; provided that in the
event that the Company and the Executive are unable to mutually
agree on an independent third party, the Company and the Executive
shall each select an independent third party and the two
independent third parties shall mutually agree upon a third
independent third party. A majority of the independent third
parties shall determine such designation and/or amount of Organic
Net Income and Synergistic Net Income and such determination shall
be set forth in a written report mutually addressed to the Company
and the Executive and shall be final, conclusive and binding upon
the parties.
(h) Operation of the Company
. The Executive agrees and acknowledges that Ambac and the Company
may make, from time to time, such business decisions as each deems
appropriate in the conduct of its business and the business of its
Affiliates, including the acquisition or operation of any business
(including the business in which the Company is
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currently engaged) or other actions that may
have an impact on the Organic Business and the Synergistic Business
and the Executive will not have any right to claim any lost
earn-out, compensation or other damages as a result of such
decisions unless such decisions are made against the written
objections of the Executive and directly and materially impede the
Executive’s ability to grow the Organic Business as currently
contemplated by the parties.
(i) Expenses . The Company
shall reimburse the Executive for reasonable travel and other
business-related expenses incurred by him in performance of the
business of the Company.
(j) 401(k), Welfare and Fringe
Benefits . The Executive shall participate in each 401(k),
welfare, life insurance, health, disability and other fringe
benefit plan or program maintained by the Company for its executive
officers in accordance with the terms thereof.
(k) Termination Due to Death or
Disability . In the event of the Executive’s Disability,
the Company shall be entitled to terminate his employment.
Notwithstanding anything contained in this Agreement to the
contrary, if the Executive’s employment terminates before the
end of the Term due to death or Disability, any Salary earned by
the Executive up to the date of such termination, plus a pro rata
portion (based on the number of days elapsed prior to such
termination) of his cash earn-out under Section 2(c) or 2(d)
for the year in which such termination occurs, shall be paid to the
Executive or his estate, as the case may be, within thirty
(30) days of his terminat