Exhibit 10.9
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of the 10th day of September, 2003, is
between Conseco, Inc., a Delaware corporation ("Company"), and Xxxxxx X. Xxxxxx
("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 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 third anniversary of the Effective Date. The term of Executive's
employment shall not be automatically renewed. The term ending on the third
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 and Chief Financial Officer of the
Company. Executive shall report to the Chief Executive Officer 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 the Company and the board of directors
of the Company (the "Board"), 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, 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 noncompete listed in
Section 9 hereof); provided, however, that corporate organizations shall be
limited to those 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 Six
Hundred Thousand Dollars ($600,000) 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 Board or the
Compensation Committee thereof.
(b) In addition to Base Salary, Executive will have an opportunity to
earn a bonus each year as determined by the Board or the Compensation
Committee thereof, with a target annual bonus equal to 100% of Executive's
Base Salary (the "Target Bonus") and a maximum annual bonus of 200% of his
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 the Company's severance policy for
senior officers. Notwithstanding the above, a pro-rata portion of the 2006
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 2003 Target Bonus will be based on existing bonus plans and
targets. The Target Bonuses for 2004 and thereafter will be based on
financial and other objective targets that the Board reasonably believes
are reasonably attainable at the time that they are set, with the 2004
targets being based on 2004 agreed-upon budgets and incentive terms.
(c) Executive is entitled to a cash bonus of One Million Two Hundred
Thousand Dollars ($1,200,000) payable immediately upon the execution of the
Agreement by the Company and Executive. Executive is entitled to an
additional One Million Two Hundred Thousand Dollars ($1,200,000) (the
"Future Success Bonus") to be paid on the third anniversary of the
Effective Date. The Future Success Bonus shall be subject to acceleration
triggers under which (a) one-third of the Future Success Bonus will become
immediately payable upon the first refinancing of the preferred stock and
bank debt to occur during the Term, (b) one-third of the Future Success
Bonus will become immediately payable on the first occasion when the
Company obtains an A.M. Best rating of A- or higher, and (c) one-third of
the Future Success Bonus will become immediately payable upon the Company's
first achievement of an agreed-upon expense reduction during the Term.
(d) The Company shall provide to Executive, and, as soon as practicable
after the Effective Date, the Company, Conseco Services, LLC, CIHC,
Incorporated and their successors and assigns shall guarantee payment of a
nonqualified supplemental retirement benefit (the "Supplemental Retirement
Benefit"), subject to vesting as described below. The Supplemental
Retirement Benefit shall provide for annual payments in an amount equal to
Two Hundred Fifty Thousand Dollars ($250,000) per year to be made to
Executive or his spouse, Xxxxx Xxxx Xxxxxx, commencing when Executive
attains age 65 and continuing until the later of the death of Executive or
such
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spouse. Notwithstanding the above, the Supplemental Retirement Benefit
shall be subject to a three-year vesting period during which one-third of
the Supplemental Retirement Benefit will vest on each anniversary of the
Effective Date.
(e) As recently approved by the Board, Executive will receive an award
of options to purchase 250,000 shares of common stock with an exercise
price equal to the fair market value on the date of the grant and an award
of 250,000 shares of restricted stock. One hundred percent (100%) of the
options will vest over a 4-year period beginning on the date of the grant
of the equity awards (the "Grant Date"), with one-fourth vesting on each
anniversary of the Grant Date. Fifty percent (50%) of the restricted stock
will vest on the second anniversary of the Grant Date, with the other fifty
percent (50%) vesting on the third anniversary of the Grant Date. Executive
shall also be eligible to participate in and receive future grants under
any stock option or equity-based program offered by the Company 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 six 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).
(d) In lieu of any insurance on the life of Executive offered by the
Company pursuant to Section 6(a) hereof, the Company shall at its expense
maintain a term life insurance policy or policies on the life of Executive
with a face amount of 100% of Executive's Base Salary, payable to such
beneficiaries as Executive may designate. Executive may, at his expense,
purchase additional insurance at the time the Company purchases said policy
or policies. In the event Executive terminates employment for any reason,
Executive shall have the right, at his expense, to begin paying the
premiums required to continue such insurance coverage from and after the
date of his termination.
(e) The Company shall reimburse Executive for relocation expenses as
follows:
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(i) Up to two (2) visits by spouse for house-hunting.
(ii) Moving of household goods (if required) from Massachusetts and from
apartment in Indiana (not to exceed $50,000 in the aggregate).
(iii) In the event of a termination of employment by the Company for a
reason other than Just Cause, any capital loss on sale of home in
Indiana, including selling commission, up to One Hundred Thousand
Dollars ($100,000).
(iv) Tax gross-up on any taxable income arising from this Section 6(e).
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 cash payments 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, (ii) the bonus payable pursuant to Section 5(c) (to the
extent not already paid), and (iii) any other applicable severance as described
under Section 11(a) hereof. Executive's Supplemental Retirement Benefit shall
fully vest on the date of termination. 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, 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
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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. 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 (other than with
respect to the SERP) hereunder and for one year 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 or any of its affiliates with respect to
lines of business that the Company and its affiliates derive more than a
non-incidental portion of their revenue from or with respect to which the
Company and its 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 these same or similar products or services provided
by the Company and its 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. 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
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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 in each case 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 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
member of the board or a higher ranking executive of the Company, 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.
(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 the Company or its Ultimate Parent
representing 51% or more of the combined voting power of the then
outstanding securities of the Company or its Ultimate Parent entitled
to vote generally with respect to the election of the board of
directors of the Company 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 the
Company (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 the Company; or
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(iii) the consummation of a merger, consolidation or reorganization
with or into the Company unless (x) the stockholders of the Company
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 the Company (or its successor)
or, if applicable, the Ultimate Parent and (y) individual board members
of the Company (identified as of the date that a binding agreement
providing for such transaction is signed) constitute at least a
majority of the board of directors of the Company (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 the
Company (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 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 that Executive's employment is terminated by the
Company for any reason other than Just Cause (including, without
limitation, a termination under Section 7 hereof), Executive will be
entitled to receive the severance pay and benefits available under the
applicable severance policy for officers of Executive's ranking as and to
the extent approved by the Board and in effect on the date of termination.
(b) 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. No unvested portion of the Supplemental Retirement
Benefit shall vest after the date of termination, and no unpaid portion of
the Future Success Bonus will be paid on or after 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.
(c) In the event Executive's employment is terminated by the death of
Executive, then the Company shall pay Executive's estate (i) the severance
amounts described in Section 11(a) above, if any, (ii) a lump sum of the
remaining payments of
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Base Salary described in Section 5(a) that would have been payable to
Executive through the date of death, and (iii) the bonus payable pursuant
to Section 5(c) (to the extent not already paid). In addition, Executive's
Supplemental Retirement Benefit and Future Success Bonus shall fully vest
on 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.
(d) 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) the bonus payable pursuant to Section 5(c) (to the extent not already
paid), and (iii) the severance amounts described in Section 11(a) above, if
any. In addition, Executive's Supplemental Retirement Benefit and Future
Success Bonus will fully vest on 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.
(e) 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) any amounts payable under the Company's severance policy
pursuant to 11(a) above as in effect prior to the Change in Control, (ii) a
lump sum of the remaining payments of Base Salary described in Section 5(a)
that would have been payable to Executive through the date of termination,
and (iii) the bonus payable pursuant to Section 5(c) (to the extent not
already paid). In addition, Executive's Supplemental Retirement Benefit and
Future Success Bonus will fully vest on the date of termination. 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.
(f) 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.
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.
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
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employment. Executive shall have no duty to mitigate his damages by seeking
other employment and, should Executive actually receive compensation from any
such other employment, the payments required hereunder shall not be reduced or
offset by any such other compensation.
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.
Each party shall pay its own costs and expenses incurred in connection with
the enforcement of this Agreement, regardless of the final outcome.
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(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 the Company and its 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. 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.
21. Expenses of Executive. The Company agrees to reimburse Executive for up
to Ten Thousand Dollars ($10,000) in attorneys' fees he incurred in connection
with the preparation and negotiation of this Agreement.
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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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written, effective as of the Effective Date.
COMPANY:
CONSECO, INC.
/s/ Xxxxxxx X. Xxxx
----------------------------------------
Xxxxxxx X. Xxxx
President and Chief Executive Officer
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
