Exhibit 10.28
EMPLOYMENT AGREEMENT
The EMPLOYMENT AGREEMENT, dated as of the 1st day of October, 2004, is
between Conseco Services, LLC, an Indiana limited liability company ("Company"),
and Xxxxx Xxxxx ("Executive").
WHEREAS, the services of Executive and his managerial and professional
experience are of value to the Company.
WHEREAS, the Company desires to continue to have the benefit and
advantage of the services of Executive for an extended period to assist the
Company and Bankers Life and Casualty Company ("Bankers") upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Employment. The Company hereby employs Executive and Executive
hereby accepts employment upon the terms and conditions hereinafter set forth.
2. Term. The effective date of this agreement (the "Agreement") shall
be the date set forth above (the "Effective Date"). Subject to the provisions
for termination as provided in Section 10 hereof, the term of Executive's
employment under this Agreement shall be the period beginning on the Effective
Date and ending on the fourth anniversary of the Effective Date. The term of
Executive's employment shall not be automatically renewed. The term ending on
the fourth anniversary of the Effective Date is hereinafter referred to as the
"Term." The Term shall end upon the termination of Executive's employment with
the Company.
3. Duties. During the Term, Executive shall be engaged by the Company
in the capacity of Executive Vice President, Sales and Distribution of Bankers.
Executive shall report to the Chief Executive Officer of Bankers regarding the
performance of his duties.
4. Extent of Services. During the Term, subject to the direction and
control of the Chief Executive Officer of Bankers, Executive shall have the
power and authority commensurate with his executive status and necessary to
perform his duties hereunder. Executive shall devote his entire employable time,
attention and best efforts to the business of the Company and Bankers and,
during the Term, shall not, without the consent of the Company, be actively
engaged in any other business activity, whether or not such business activity is
pursued for gain, profit or other pecuniary advantage; provided, however, that,
subject to Section 9 hereof, this shall not be construed as preventing Executive
from serving on boards of professional, community, civic, education, charitable
and corporate organizations on which he presently serves or may choose to serve
or investing his assets in such form or manner as will not require any services
on the part of Executive in the operation of the affairs of the companies in
which such investments are made (to the extent not in violation of the
nonsolicitation provisions of Section 9 hereof); provided, however, that
corporate organizations shall be limited to those which Executive presently
serves, if any, as listed on Exhibit A and such others as mutually agreed upon
by Executive and the Company.
5. Compensation. During the Term:
(a) As compensation for services hereunder rendered during the Term
hereof, Executive shall receive a base salary ("Base Salary") of Four
Hundred Thousand Dollars ($400,000) per year payable in equal
installments in accordance with the Company's payroll procedure for
its salaried executives. Salary payments and other payments under this
Agreement shall be subject to withholding of taxes and other
appropriate and customary amounts. Executive may receive increases in
his Base Salary from time to time, based upon his performance, subject
to approval of the Company.
(b) In addition to Base Salary, Executive will have an opportunity
to earn a bonus each year as determined by the Company, with a target
annual bonus equal to 100% of Executive's Base Salary (the "Target
Bonus") and a maximum annual bonus opportunity of 200% of Executive's
Base Salary with respect to any calendar year, with such bonus payable
at such time that other similar payments are made to other Company
executives. For purposes of clarification, annual executive bonuses
are generally paid in March of the year following the year with
respect to which such bonuses are payable, if Executive remains
employed with the Company through such date or as otherwise payable
under Section 11 of this Agreement. Notwithstanding the above, a
pro-rata portion of the 2008 bonus will be paid at the same time that
similar payments are made to other Company executives if Executive
remains employed through the end of the Term. The Target Bonuses for
2004 and thereafter will be based on financial and other objective
targets that the Company believes are attainable at the time that they
are set. The 2004 actual Bonus to be paid based on a salary of
$312,500 and will be a minimum of 100% of that base salary.
(c) In addition to the Target Bonus described in the preceding
paragraph, Executive participates in the Bankers Long-Term Incentive
Plan and will receive a total award in the amount of Six Hundred
Thousand Dollars ($600,000). This award will be paid in four
installments, the first upon the signing of this agreement in the
amount of Two Hundred Thousand ($200,000), the second in March 2005
when payments are made to all participants in the amount of Two
Hundred Thousand ($200,000), and the third and fourth payments on
October 1, 2005 and October 1, 2006 in the amount of One Hundred
Thousand for each payment.
(d) Subject to approval by the Human Resources and Compensation
Committee of the Board of Directors (the "Board") of Conseco, Inc.
("Conseco"), Executive shall receive (i) a 2004 award of 25,000 shares
of restricted stock under the Conseco, Inc. 2003 Long-Term Equity
Incentive Plan (the "Plan"), with fifty percent (50%) of those shares
vesting on October 1, 2006, 25% vesting on October 1, 2007 and 25%
vesting on October 1, 2008, and (ii) in 2005, at such time as awards
are made to other officers, 25,000 shares of restricted stock and
options to purchase 25,000 shares of Conseco common stock at a price
equal to the closing sales price of such stock on the date of grant,
with one hundred percent (100%) of such restricted stock and options
to vest on October 1, 2008 (collectively, the awards described in this
sentence shall be the "Initial Awards"). Executive shall also be
eligible to participate in and receive future
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grants under any stock option or equity-based program offered by
Conseco to executives of similar title and responsibility, if any,
subject to the discretion of the Board.
6. Fringe Benefits. During the Term:
(a) Executive shall be entitled to participate in such existing
executive benefit plans and insurance programs offered by the Company,
or which it may adopt from time to time, for its executive management
or supervisory personnel generally, in accordance with the eligibility
requirements for participation therein. Nothing herein shall be
construed so as to prevent the Company from modifying or terminating
any executive benefit plans or programs, or executive fringe benefits,
that it may adopt from time to time.
(b) Executive shall be entitled to four weeks of vacation with pay
each year.
(c) Executive may incur reasonable expenses for promoting the
Company's business, including expenses for entertainment, travel, and
similar items. The Company shall reimburse Executive for all such
reasonable expenses upon Executive's periodic presentation of an
itemized account of such expenditures. The Company agrees to pay
Executive an additional amount to cover the incremental additional
income taxes incurred by Executive, if any, with respect to payment or
reimbursement of any reasonable business expenses pursuant to this
subsection (c).
7. Disability. If Executive shall become physically or mentally
disabled during the Term to the extent that his ability to perform his duties
and services hereunder is materially and adversely impaired, his Base Salary,
bonus and other compensation provided herein shall continue while he remains
employed by the Company; provided, that if such disability (as confirmed by
competent medical evidence) continues for at least six (6) consecutive months,
the Company may terminate Executive's employment hereunder, in which case the
Company immediately shall pay Executive a cash payment equal to (i) his annual
Base Salary as provided in Section 5(a) hereof to the extent earned but unpaid
as of the date of termination plus (ii) a pro-rata portion of the Target Bonus
for the year in which the disability occurs plus the Target Bonus for the
preceding year if his disability occurs after year-end but before such bonuses
are paid. However, any options or restricted stock held by Executive on the date
of termination shall vest only through the date of termination according to the
normal vesting schedule applicable to such options or restricted stock and
Executive shall not receive any accelerated or additional vesting of such stock
or options due to termination under this Section 7 on or after such date. No
payments or vesting under this paragraph will be made if such disability arose
primarily from (a) chronic use of intoxicants, drugs or narcotics (other than
drugs prescribed to Executive by a physician and used by Executive for their
intended purpose for which they had been prescribed) or (b) intentionally
self-inflicted injury or intentionally self-induced illness.
8. Disclosure of Information. Executive acknowledges that, in and as a
result of his employment with the Company, he has been and will be making use
of, acquiring and/or adding to confidential information of the Company and its
affiliates of a special and unique nature and value. As a material inducement to
the Company to enter into this Agreement and to pay to Executive the
compensation stated in Section 5, as well as any additional benefits stated
herein,
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Executive covenants and agrees that he shall not, at any time while he is
employed by the Company or at any time thereafter, directly or indirectly,
divulge or disclose for any purpose whatsoever, any confidential information
(whether or not specifically labeled or identified as "confidential
information"), in any form or medium, that has been obtained by or disclosed to
him as a result of his employment with the Company and which the Company or any
of its affiliates has taken appropriate steps to safeguard, except to the extent
that such confidential information (a) becomes a matter of public record or is
published in a newspaper, magazine or other periodical available to the general
public, other than as a result of any act or omission of Executive, (b) is
required to be disclosed by any law, regulation or order of any court or
regulatory commission, department or agency, in which event Executive shall give
prompt notice of such requirement to the Company to enable the Company to seek
an appropriate protective order or confidential treatment, or (c) must be
disclosed to enable Executive properly to perform his duties under this
Agreement. Upon the termination of Executive's employment, Executive shall
return such information (in whatever form) obtained from or belonging to the
Company or any of its affiliates which he may have in his possession or control.
9. Covenants against Competition and Solicitation.
(a) Executive acknowledges that the services he is to render to the
Company and its affiliates are of a special and unusual character,
with a unique value to the Company and its affiliates, the loss of
which cannot adequately be compensated by damages or an action at law.
In view of the unique value to the Company and its affiliates of the
services of Executive for which the Company has contracted hereunder,
because of the confidential information to be obtained by, or
disclosed to, Executive as set forth in Section 8 above, and as a
material inducement to the Company to enter into this Agreement and to
pay to Executive the compensation stated in Section 5 hereof, as well
as any additional benefits stated herein, and other good and valuable
consideration, Executive covenants and agrees that throughout the
period Executive remains employed or compensated hereunder and during
the applicable "Restricted Period" (as defined in Section 9(b))
thereafter, Executive shall not, directly or indirectly, anywhere in
the United States of America (i) render any services, as an agent,
independent contractor, consultant or otherwise, or become employed or
compensated by any other corporation, person or entity that derives a
non-incidental portion of its revenue from the business of selling or
providing annuity, life, accident or health insurance products or
services; (ii) in any manner compete with the Company, Bankers or any
of their affiliates with respect to lines of business that the
Company, Bankers and their respective affiliates derive more than a
non-incidental portion of their revenue from or with respect to which
the Company, Bankers and their respective affiliates have made a
significant investment in; (iii) solicit or attempt to convert to
other insurance carriers or other corporations, persons or other
entities providing the same or similar products or services provided
by the Company, Bankers and their respective affiliates, any customers
or policyholders of the Company or any of its affiliates or (iv)
solicit for employment or employ any employee of the Company or any of
its affiliates.
(b) The Restricted Period shall be, with respect to Section
9(a)(iii) and (iv), two years following termination of employment for
any reason, other than death. With respect to Section 9(a)(i) and
(ii), the Restricted Period shall be as follows:
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(i) in the case of a termination of employment described in
Section 11(a) or (d) or Section 7, one year following termination
of employment;
(ii) in the case of a termination of employment described in
Section 11(c), two years following termination of employment,
unless Executive elects in writing after termination of employment
to reduce the Restricted Period, both for purposes of this Section
9 and for purposes of Section 11(c), to a period of no less than
one year following termination of employment; and
(iii) in the case of a termination of employment as a result
of the expiration of this Agreement after its original four-year
term, one year following termination of employment, but only if the
Company pays Executive his Base Salary for such period on a basis
consistent with the timing of the Company's normal payroll
processing.
(c) Should any particular covenant or provision of this Section 9
be held unreasonable or contrary to public policy for any reason,
including, without limitation, the time period, geographical area, or
scope of activity covered by any restrictive covenant or provision,
the Company and Executive acknowledge and agree that such covenant or
provision shall automatically be deemed modified such that the
contested covenant or provision shall have the closest effect
permitted by applicable law to the original form and shall be given
effect and enforced as so modified to whatever extent would be
reasonable and enforceable under applicable law.
10. Termination.
(a) Either the Company or Executive may terminate his employment at
any time for any reason upon written notice to the other. The Company
may terminate Executive's employment for Just Cause pursuant to
Section 10(b) below or in a Control Termination pursuant to Section
10(c) below. Executive's employment shall also terminate (i) upon the
death of Executive or (ii) after disability of Executive pursuant to
Section 7 hereof.
(b) The Company may terminate Executive's employment at any time
for Just Cause. For purposes of this Agreement, "Just Cause" shall
mean: (i) (A) a material breach by Executive of this Agreement, (B) a
material breach of Executive's duty of loyalty to the Company or its
affiliates, or (C) willful malfeasance or fraud or dishonesty of a
substantial nature in performing Executive's services on behalf of the
Company or its affiliates, which breach or action described in (A),
(B) or (C) is willful and deliberate on Executive's part and committed
in bad faith or without reasonable belief that such breach or action
is in the best interests of the Company or its affiliates; (ii)
Executive's use of alcohol or drugs (other than drugs prescribed to
Executive by a physician and used by Executive for their intended
purposes for which they had been prescribed) or other repeated conduct
which materially and repeatedly interferes with the performance of his
duties hereunder, which materially compromises the integrity or the
reputation of the Company or its affiliates, or which results in other
substantial economic harm to the Company or its affiliates; (iii)
Executive's conviction by a court of law, admission that he
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is guilty, or entry of a plea of nolo contendere with regard to a
felony or other crime involving moral turpitude; (iv) Executive's
unscheduled absence from his employment duties other than as a result
of illness or disability, for whatever cause, for a period of more
than ten (10) consecutive days, without consent from the Company prior
to the expiration of the ten (10) day period; or (v) Executive's
failure to take action or to abstain from taking action, as directed
in writing by a higher ranking executive of the Company or Bankers,
where such failure continues after Executive has been given written
notice of such failure and at least five (5) business days thereafter
to cure such failure.
No termination shall be deemed to be a termination by the Company
for Just Cause if the termination is as a result of Executive refusing
to act in a manner that would be a violation of applicable law or
where Executive acts (or refrains from taking action) in good faith in
accordance with directions of a higher ranking executive but was
unable to attain the desired results because such results were
inherently unreasonable or unattainable.
(c) The Company may terminate Executive's employment in a Control
Termination. A "Control Termination" shall mean any termination by the
Company (or its successor) of Executive's employment for any reason
within six months in anticipation of or within two years following a
Change in Control of the Company.
The term "Change in Control" shall mean the occurrence of any of the
following:
(i) the acquisition (other than an acquisition in connection
with a "Non-Control Transaction") by any "person" (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act")) of "beneficial ownership" (as
such term is defined in Rule 13d-3 promulgated under the 1934 Act),
directly or indirectly, of securities of Conseco or its Ultimate
Parent representing 51% or more of the combined voting power of the
then outstanding securities of Conseco or its Ultimate Parent
entitled to vote generally with respect to the election of the
board of directors of Conseco or its Ultimate Parent; or
(ii) as a result of or in connection with a tender or exchange
offer or contest for election of directors, individual board
members of Conseco (identified as of the date of commencement of
such tender or exchange offer, or the commencement of such election
contest, as the case may be) cease to constitute at least a
majority of the board of directors of Conseco; or
(iii) the consummation of a merger, consolidation or
reorganization with or into Conseco unless (x) the stockholders of
Conseco immediately before such transaction beneficially own,
directly or indirectly, immediately following such transaction
securities representing 51% or more of the combined voting power of
the then outstanding securities entitled to vote generally with
respect to the election of the board of directors of Conseco (or
its successor) or, if applicable, the Ultimate Parent and (y)
individual board members of Conseco (identified as of the date that
a binding agreement providing for such transaction
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is signed) constitute at least a majority of the board of directors
of Conseco (or its successor) or, if applicable, the Ultimate
Parent (a transaction to which clauses (x) and (y) apply, a
"Non-Control Transaction").
For purposes of this Agreement, "Ultimate Parent" shall mean the parent
corporation (or if there is more than one parent corporation, the ultimate
parent corporation) that, following a transaction, directly or indirectly
beneficially owns a majority of the voting power of the outstanding securities
entitled to vote with respect to the election of the board of directors of
Conseco (or its successor).
(d) Upon termination of Executive's employment with the Company for
any reason (whether voluntary or involuntary), Executive shall be
deemed to have voluntarily resigned from all positions that Executive
may then hold with the Company and any of its affiliates; provided
that such deemed resignation shall not adversely affect Executive's
rights to compensation or benefits under Section 11 of this Agreement
and shall not affect the determination of whether Executive's
termination was for Just Cause.
11. Payments Following Termination.
(a) In the event Executive's employment is terminated by the
Company for Just Cause as so defined, or if Executive voluntarily
resigns, then the Company immediately shall pay Executive a cash
payment of his Base Salary as provided in Section 5(a) hereof that was
earned but unpaid as of the date of termination. Any options or
restricted stock held by Executive on the date of termination shall
vest only through the date of termination according to the normal
vesting schedule applicable to such options or restricted stock, and
Executive shall not receive any accelerated or additional vesting of
such stock or options on or after such date.
(b) In the event Executive's employment is terminated by the death
of Executive, then the Company shall pay Executive's estate a cash
lump sum of the sum of (i) the remaining payments of Base Salary
described in Section 5(a) that would have been payable to Executive
through the date of death plus (ii) a pro-rata portion of the Target
Bonus for the year in which his death occurs plus the Target Bonus for
the preceding year if his death occurs after year-end but before such
bonuses are paid. Any options or restricted stock held by Executive on
the date of termination shall vest only through the date of
termination according to the normal vesting schedule applicable to
such options or restricted stock, and Executive shall not receive any
accelerated or additional vesting of such stock or options on or after
such date.
(c) In the event that Executive is terminated by the Company
without Just Cause, then the Company shall pay Executive (i) on a
basis consistent with the timing of the Company's normal payroll
processing, the remaining payments of Base Salary described in Section
5(a) that would have been payable to Executive through the date of his
termination of employment, (ii) his Base Salary and Target Bonus (in
the form of salary continuation on a pro-rata basis with or without
medical and dental benefits, at the Executive's election and cost) for
the Restricted Period (as set forth in Section 9(b)(ii)) following his
termination of employment and (iii) a cash lump sum equal to a
pro-rata
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portion of the Target Bonus for the year in which the date of
termination occurs plus the Target Bonus for the preceding year if
termination occurs after year-end but before such bonuses are paid.
Any options or restricted stock held by Executive on the date of
termination shall, unless otherwise provided in this Section 11(c),
vest only through the date of termination according to the normal
vesting schedule applicable to such options or restricted stock, and
Executive shall not receive any accelerated or additional vesting of
such stock or options on or after such date. Notwithstanding the
foregoing, if Executive is terminated pursuant to this Section 11(c)
on or after October 1, 2005 but before October 1, 2007 each Initial
Award, to the extent not then at least 25% vested, shall upon such
termination become 25% vested, and if Executive is terminated pursuant
to this Section 11(c) on or after October 1, 2007 but before October
1, 2008, each Initial Award, to the extent not then at least 50%
vested, shall upon such termination become 50% vested.
(d) In the event that Executive is terminated by the Company (or
its successor) in a Control Termination as so defined, then the
Company shall pay Executive (i) on a basis consistent with the timing
of the Company's normal payroll processing, the remaining payments of
Base Salary described in Section 5(a) that would have been payable to
Executive through the date of his termination of employment, (ii) his
Base Salary and Target Bonus (in the form of salary continuation on a
pro-rata basis with or without medical and dental benefits at the cost
charged to active employees) for the 12-month period following his
termination of employment and (iii) a cash lump sum equal to a
pro-rata portion of the Target Bonus for the year in which the date of
termination occurs plus the Target Bonus for the preceding year if
termination occurs after year-end but before such bonuses are paid. To
the extent that Executive is terminated in a Control Termination that
occurs in anticipation of a Change in Control, any options or
restricted stock held by Executive shall fully vest, retroactive to
the date of termination, upon the occurrence of the Change in Control.
(e) Notwithstanding anything to the contrary, in the event that
Executive's employment terminates, the Company shall pay to Executive,
in accordance with its standard payroll practice, Executive's accrued
vacation.
(f) Notwithstanding anything to the contrary, payment of severance
under this Agreement is conditioned upon the execution by Executive of
a separation and release agreement in a form acceptable to the Company
and the observation of such waiting or revocation periods, if any,
before and after execution of the agreement by Executive as are
required by law, such as, for example, the waiting or revocation
periods required for a waiver and release to be effective with respect
to claims under the Age Discrimination in Employment Act, provided
that the Company delivers to Executive such agreement within seven
days of the date of his termination.
12. Change in Control. In the event of a Change in Control, Executive
will be entitled to the full vesting of any options and restricted stock held by
Executive on the date of such Change in Control.
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13. Character of Termination Payments. The amounts payable to
Executive upon any termination of his employment shall be considered severance
pay in consideration of past services rendered on behalf of the Company and his
continued service from the date hereof to the date he becomes entitled to such
payments and shall be the sole amount of severance pay to which Executive is
entitled from the Company and its affiliates upon termination of his employment
during the Term. Executive shall have no duty to mitigate his damages by seeking
other employment.
14. Representations of the Parties.
(a) The Company represents and warrants to Executive that (i) this
Agreement has been duly authorized, executed and delivered by the
Company and constitutes valid and binding obligations of the Company;
and (ii) the employment of Executive on the terms and conditions
contained in this Agreement will not conflict with, result in a breach
or violation of, constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to: (A) the certificate of formation,
(B) the terms of any indenture, contract, lease, mortgage, deed of
trust, note, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company is a party or bound or to
which its property is subject, or (C) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company, or
any regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company.
(b) Executive represents and warrants to the Company that: (i) this
Agreement has been duly executed and delivered by Executive and
constitutes a valid and binding obligation of Executive; and (ii)
neither the execution of this Agreement by Executive nor his
employment by the Company on the terms and conditions contained herein
will conflict with, result in a breach or violation of, or constitute
a default under any agreement, obligation, condition, covenant or
instrument to which Executive is a party or bound or to which his
property is subject, or any statute, law, rule, regulation, judgment,
order or decree applicable to Executive of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over Executive or any of his property.
15. Arbitration of Disputes; Injunctive Relief.
(a) Except as provided in subsection (b) below, any controversy or
claim arising out of or relating to this Agreement or the breach
thereof shall be settled by binding arbitration in the City of
Indianapolis, Indiana, in accordance with the laws of the State of
Indiana by three arbitrators, one of whom shall be appointed by the
Company, one by Executive, and the third of whom 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 Judge of the United States District
Court for the Southern District of Indiana. The arbitration shall be
conducted in accordance with the rules of the American Arbitration
Association, except with respect to the selection of arbitrators,
which shall be as provided in this Section. Judgment upon the award
rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
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In any action to enforce this Agreement, attorney's fees incurred by
Executive will be paid by the Company if the Executive is the
prevailing party. The Company shall pay its own costs and expenses
incurred in connection with the enforcement of this Agreement and
shall pay the cost of arbitration, regardless of the final outcome.
(b) Executive acknowledges that a breach or threatened breach by
Executive of Sections 8 or 9 of this Agreement will give rise to
irreparable injury to the Company and that money damages will not be
adequate relief for such injury. Notwithstanding paragraph (a) above,
the Company and Executive agree that the Company may seek and obtain
injunctive relief, including, without limitation, temporary
restraining orders, preliminary injunctions and/or permanent
injunctions, in a court of proper jurisdiction to restrain or prohibit
a breach or threatened breach of Section 8 or 9 of this Agreement.
Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies available to the Company for such breach
or threatened breach, including the recovery of damages from
Executive.
16. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered mail to
his residence, in the case of Executive, or to the business office of its
General Counsel, in the case of the Company.
17. Waiver of Breach and Severability. The waiver by either party of a
breach of any provision of this Agreement by the other party shall not operate
or be construed as a waiver of any subsequent breach by either party. In the
event any provision of this Agreement is found to be invalid or unenforceable,
it may be severed from the Agreement, and the remaining provisions of the
Agreement shall continue to be binding and effective.
18. Entire Agreement. Other than any equity award agreements entered
into pursuant to the Conseco, Inc. 2003 Long-Term Equity Incentive Plan, this
instrument contains the entire agreement of the parties and, as of the Effective
Date, supersedes all other obligations of the Company and its affiliates under
other agreements or otherwise, including, without limitation, severance provided
under the Senior Officer Key Employee Retention Program approved by the
Bankruptcy Court. The compensation and benefits to be paid under the terms of
this Agreement are in lieu of all other compensation or benefits to which
Executive is entitled from Conseco, the Company, Bankers and their affiliates.
This Agreement may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
19. Binding Agreement and Governing Law; Assignment Limited. This
Agreement shall be binding upon and shall inure to the benefit of the parties
and their lawful successors in interest (including, without limitation,
Executive's estate, heirs and personal representatives) and, except for issues
or matters as to which federal law is applicable, shall be construed in
accordance with and governed by the laws of the State of Indiana. This Agreement
is personal to each of the parties hereto, and neither party may assign or
delegate any of its rights or obligations hereunder without the prior written
consent of the other.
20. Indemnification. If Executive was or is made a party or is
threatened to be made a party to or is otherwise involved (including involvement
as a witness) in any action, suit or
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proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she is or was an officer or
employee of the Company or any of its affiliates, Executive shall be indemnified
and held harmless by the Company to the fullest extent authorized by Indiana
law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Company to
provide broader indemnification rights than permitted prior thereto), against
all expense, liability and loss (including attorneys' fees, judgments, fines,
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by Executive in connection therewith and such indemnification shall
continue as to Executive if he ceases to be an officer or employee and shall
inure to the benefit of Executive's heirs, executors and administrators;
provided, however, that the Company shall indemnify Executive in connection with
a proceeding (or part thereof) initiated by Executive only if such Proceeding
(or part thereof) was authorized by the Company. The right to indemnification
conferred in this paragraph shall include the obligation of the Company to pay
the expenses incurred in defending any such proceeding in advance of its final
disposition (an "Advance of Expenses"); provided, however, that, if and to the
extent that Indiana law requires, an Advance of Expenses incurred by Executive
in his capacity as an officer or employee shall be made only upon delivery to
the Company of an undertaking, by or on behalf of Executive, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal that Executive is not
entitled to be indemnified for such expenses under this paragraph or otherwise.
21. No Third Party Beneficiaries. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not intended to confer
third-party beneficiary rights upon any other person.
22. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written, effective as of the Effective Date.
COMPANY:
CONSECO SERVICES, LLC
By:/s/Xxxxxxx Xxxxxx
---------------------------------
Name:
Its:
EXECUTIVE:
/s/Xxxxx Xxxxx
----------------------------------------
Xxxxx Xxxxx
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