Exhibit 10.1.42
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of the 15th day of July, 2002, as
amended and restated as of September 5, 2002, is between CONSECO, INC., an
Indiana corporation ("Company"), and Xxxx X. Xxxxx ("Employee").
RECITALS
A. The services of Employee, and his managerial and professional
experience, are of value to the Company.
B. The Company desires to have the benefit of the Employee's services for
an extended period.
AGREEMENT
In consideration of the foregoing and the mutual covenants contained
herein, the parties agree as follows:
1. Employment. The Company hereby employs Employee and Employee hereby
accepts employment upon the terms and conditions hereinafter set forth.
2. Term. The effective date of this Agreement shall be July 15, 2002.
Subject to the provisions for termination in Sections 7 and 10, the term of this
Agreement shall be the period beginning July 15, 2002, and ending July 14, 2004.
3. Duties. Employee is engaged by the Company in the capacity of Senior
Vice President and Chief Accounting Officer. Employee shall report to the Chief
Financial Officer regarding the performance of his duties and shall be subject
to the direction and control of the Board of Directors of the Company ("Board").
4. Extent of Services. Employee, subject to the direction and control of
the Chief Financial Officer and the Board, shall have the power and authority
commensurate with his officer status and necessary to perform his duties
hereunder. The Company agrees to provide to Employee such assistance and work
accommodations as are suitable to the character of his positions with the
Company and adequate for the performance of his duties. Employee shall devote
his entire employable time, attention and best efforts to the business of the
Company, and shall not, without the consent of the Company, during the term of
his Agreement be actively engaged in any other business activity, whether or not
such business activity is pursued for gain, profit or other pecuniary advantage;
but this shall not be construed as preventing Employee 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 Employee in the operation of the affairs of the companies in which such
investments are made. For purposes of this Agreement, full-time employment shall
be the normal work week for individuals in comparable officer positions with the
Company.
5. Compensation.
(a) As compensation for services rendered during the term hereof,
Employee shall receive a base salary ("Base Salary") of Two Hundred Seventy-Five
Thousand Dollars ($275,000) per year payable in equal installments in accordance
with the Company's payroll procedure for its salaried employees. Salary payments
and other payments under this Agreement shall be subject to withholding of taxes
and other appropriate and customary amounts. Employee may receive increases in
his Base Salary based upon his performance.
(b) In addition to Base Salary, Employee may receive such other
bonuses, incentive compensation, and option awards as the Company may approve
from time to time based on his performance.
(c) Subject to the approval of the Compensation Committee of the
Company's Board of Directors, the Company shall grant to Employee a
non-qualified stock option under the Company's 1997 Non-Qualified Stock Option
Plan to purchase 25,000 shares of Conseco common stock at an exercise price
equal to the average of the high and low sales prices of Conseco common stock on
the date of the grant, such option to vest in five equal annual installments
commencing on the first anniversary of the date of grant and to terminate (to
the extent not previously exercised) ten years after the date of grant, subject
to continued employment from the date of grant to the vesting or termination
date, as the case may be.
(d) Employee shall also receive a signing bonus of Eight Hundred
Sixty-Five Thousand Dollars ($865,000). If Employee voluntarily terminates his
employment with the Company prior to July 14, 2004, he will immediately pay the
Company a pro rata portion of such signing bonus (based on the portion of the
2-year period ending July 14, 2004, remaining after the date of such voluntary
termination of employment).
6. Fringe Benefits.
(a) Employee shall be entitled to participate in such existing
employee benefit plans and insurance programs offered by the Company, or which
it may adopt from time to time, for its 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 employee benefit plans or programs, or employee
fringe benefits, that it may adopt from time to time.
(b) Employee shall be entitled to four (4) weeks vacation with pay for
each year during the term hereof.
7. Disability. If Employee shall become physically or mentally disabled
during the term of this Agreement 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 nine (9) consecutive
months, the Company may terminate Employee's employment hereunder in which case
the Company shall immediately pay Employee a lump sum payment equal to
one-quarter of the sum of his annual Base Salary and bonus with respect to the
most recent fiscal year then ended and, provided further, that no such lump sum
payment shall be required if such disability
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arises primarily from: (a) chronic use of intoxicants, drugs or narcotics, or
(b) intentionally self-inflicted injury or intentionally self-induced sickness.
8. Disclosure of Information. Employee 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 of a special
and unique nature and value. As a material inducement to the Company to enter
into this Agreement and to pay to Employee the compensation stated in Section 5,
as well as any additional benefits stated herein, Employee covenants and agrees
that he shall not, at any time during or following the term of his employment,
directly or indirectly, divulge or disclose for any purpose whatsoever, any
confidential information that has been obtained by or disclosed to him as a
result of his employment with the Company and which the Company 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 Employee, (b) is required to be
disclosed by any law, regulation or order of any court or regulatory commission,
department or agency, in which event Employee 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
Employee properly to perform his duties under this Agreement, in which event
Employee shall give prompt notice of such requirement to the Company to enable
the Company to seek an appropriate protective order or confidential treatment.
Upon the termination of this Agreement, Employee shall return all materials
obtained from or belonging to the Company which he may have in his possession or
control.
9. The Company acknowledges and affirms Employee's right to indemnification
in accordance with, and subject to the terms of, Article 7 of the Company's
Amended and Restated Bylaws.
10. Termination.
(a) Either the Company or Employee may terminate this Agreement at any
time for any reason upon written notice to the other. This Agreement shall also
terminate upon (i) the death of Employee or (ii) termination by the Company
after disability of Employee pursuant to Section 7.
(b) In the event that this Agreement is terminated by the Company and
such termination is not pursuant to the last sentence of (a) above or for "just
cause" as defined in (d) below, then Employee shall be entitled to receive (x)
his Base Salary and the Company-paid portion of his health and welfare benefits,
less applicable taxes, for eighteen (18) months after such termination, reduced
by any compensation that Employee earns from other employment during such
18-month period, and (y) any other unpaid amounts previously accrued or awarded
pursuant to any other provision of this Agreement. The payments specified in
this Section 10(b) shall be in lieu of any other severance benefits to which
Employee may otherwise be entitled.
(c) In the event that this Agreement is terminated (i) by the Company
for "just cause" as defined in (d) below, (ii) by Employee, or (iii) upon the
death of Employee, Employee or his estate shall be entitled to receive
Employee's Base Salary as provided in Section 5(a)
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accrued but unpaid as of the date of termination, and any other unpaid amounts
previously accrued or awarded pursuant to any other provision of this Agreement.
(d) For purposes of this Agreement, "just cause" shall mean:
(i) a material breach by Employee of this Agreement or willful
malfeasance or fraud or dishonesty of a substantial nature in performing
Employee's services on behalf of the Company, which is in any case willful
and deliberate on Employee's part and committed in bad faith or without
reasonable belief that such breach is in the best interests of the Company;
(ii) Employee's use of alcohol or drugs which interferes with the
performance of his duties hereunder or which compromises the integrity and
reputation of the Company, its employees, and products;
(iii) Employee's conviction by a court of law, or admission that he is
guilty, of a felony or other crime involving moral turpitude; or
(iv) Employee's absence from his employment other than as a result of
Section 7 hereof, for whatever cause, for a period of more than one (1)
month, without prior consent from the Company.
11. Character of Termination Payments. The amounts payable to Employee upon
any termination of this Agreement 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.
12. Arbitration of Disputes; Injunctive Relief.
(a) Except as provided in paragraph (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 Employee 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. The Company shall pay the costs and expenses associated with the
arbitration proceeding. Judgment upon the award rendered by the arbitrators may
be entered in any court having jurisdiction thereof. In the event that it shall
be necessary or desirable for Employee to retain legal counsel and/or incur
other costs and expenses in connection with the enforcement of any and all of
his rights under this Agreement, the Company shall pay (or Employee shall be
entitled to recover from the Company, as the case may be) his reasonable
attorneys' fees and costs and expenses in connection with the enforcement of any
arbitration award in court, regardless of the final outcome, unless the
arbitrators shall determine that under the circumstances recovery by Employee of
all or a part of any such fees and costs and expenses would be unjust.
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(b) Employee acknowledges that a breach or threatened breach by
Employee of Section 8 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 Employee 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 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 Employee.
13. 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 Employee, or to the business office of its General
Counsel, in the case of the Company.
14. 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.
15. Entire Agreement. This instrument contains the entire agreement of the
parties and supersedes all prior agreements between them. 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.
16. 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, Employee's estate,
heirs and personal representatives) and 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 nor delegate any of its
rights or obligations hereunder without the prior written consent of the other.
IN WITNESS WHEREOF, the parties have executed this Agreement as of July 15,
2002.
CONSECO, INC.
By:/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, President
"Company"
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
"Employee"
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